When Patrick Moore bought a lottery ticket in 1998, he
never dreamed he'd end up on the wrong end of the state's
legal firepower.
Today, though, the 32-year-old Clackamas stockbroker
feels like a marked man. The Oregon Attorney General's
Office says Moore is illegally capitalizing on the lottery's
good name and blackening it in the process. State lawyers
have ordered him to turn over the Internet domain name
oregonlottery.com or face immediate legal action.
Moore, however, feels as if he's the classic lottery
punter, a small individual facing crushing odds. "I don't
know where else in the world the government can demand
your property or threaten to prosecute you if you don't
give in," Moore says. "It's extortion."
In some respects, it's a classic dispute between an entrepreneur
and his government. But Moore's situation also raises
fundamental questions about governmental responsibility,
free speech and Internet real estate.
Back in 1998, Moore bought a lottery ticket and turned
to the Internet to see whether he was a winner. He typed
the address oregonlottery.com into his computer, only
to find that the site did not exist. Seeing an opportunity,
he registered the name himself with Network Solutions
Inc. in December 1998. He paid $70 to do so.
Initially, Moore says, he used the site to provide links
to Internet casinos and other gambling venues. "The idea
was to offer an alternative to the Oregon Lottery and
make some money by selling advertising," he recalls.
In March 1999, Moore received a letter from the attorney
general's office raising a concern about consumers becoming
confused between oregonlottery.org (the lottery's official
site) and oregonlottery.com. The letter, however, did
not question his ownership of the site.
Moore says he then contacted lottery officials to see
if there was a way he could use oregonlottery.com in a
mutually profitable manner. He envisioned using oregonlottery.com
to develop new games, bring in new customers and link
to the state lottery's site. That, he says, is when things
went wrong. "I discovered a complete bureaucracy," he
says. "That just soured me on the whole organization."
The timeline of the events that followed raise questions
about lottery's diligence in protecting its cyber-real
estate. Lottery officials registered the domain name oregonlottery.org
in July 1997, but left the .com and .net variations unprotected.
Even after Moore initiated conversations with them, lottery
officials failed to register such names as oregonlottery.net.
"He did tell us .net was available," concedes lottery
spokesman Dave Hooper. "But our check-issuing operation
doesn't move as fast as it should."
Moore subsequently registered oregonlottery.net himself,
though he's never used it. "How long was I supposed to
wait for them to move?" he asks.
Frustrated in his talks with the lottery, Moore last
summer converted oregonlottery.com to a public complaint
site, where gambling and lottery critics were invited
to vent. The site did provide a disclaimer and a link
to the lottery's official site, but the criticism apparently
struck a nerve. In an April 24, 2000, letter from Assistant
Attorney General Tim Nord, the state accused Moore of
"tarnishing and disparaging" the lottery's name.
In the letter, Nord demanded that Moore "cease using
the domain name oregonlottery.com, or any variation or
derivation of that name, including oregonlottery.net,
and that you immediately transfer the name to the Oregon
State Lottery."
In response, Moore suggested that the dispute be decided
by the Internet Corporation for Assigned Names and Numbers,
a quasi-governmental organization established in 1998
to resolve domain-name battles quickly and cheaply. Although
Moore offered to pay half the cost of such ICANN mediation,
Nord rejected the offer, saying the state's claims were
broader than ICANN's expertise.
The state, it's clear, is willing to take its chances
in court--and with good reason. Professor Janaka Jayawardena,
director of information technology at Portland State's
engineering school, says domain-name squabbles that end
up in litigation often end in favor of the larger party.
For his part, Moore says he can't afford to go to court.
Moore contends that because he registered oregonlottery.com
legally, and well before lottery officials showed interest
in the name, he's entitled to use it. But John Stevason,
an intellectual-property expert at the law firm Lane Powell
Spears Lubersky, says it's not so simple. Stevason says
that a company can establish ownership of a domain name
simply by advertising and doing business under that name.
Whether Moore retains ownership of the site or not, his
skirmish with the lottery may cost him the right to speak
freely. In a settlement agreement sent to Moore last week,
Nord asks him "not to participate in any business, including
the Internet involving or relating to the Oregon Lottery,
without Lottery's written permission." Moore argues that
such language effectively prohibits him from ever saying
anything negative online about the lottery.
"What they're trying to say is they just don't like what's
being said about them," he contends. "Asking me not to
use the site is one thing; to force me to turn it over
is totally disgusting."
Peter Cogswell, a spokesman for the attorney general,
says Moore is overreacting. "The goal here, "he says,
"is simply to make sure consumers aren't misled."
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Willamette Week | originally
published May 10,
2000
