Beyond the Tolkien Estate

[Child of the 7th Age]

The other day I ran into this listing on e-bay, and my jaw dropped open: sale of planet-tolkien.com

Apparently, the largest Tolkien website in the United Kingdom is now "for sale". As the e-bay listing indicates, Planet Tolkien has over 5,000 members and thousands of hits per day. I had a membership there a number of years ago, so I suppose I am included somewhere in that 5,000. They are asking for at least 3,000 pounds, which would be about $5,700. So far there are no takers.

This is also the same website that I linked to in a former post on this thread. At that point I noted that the site had been contacted by lawyers of the Tolkien Estate in July 2004 who made this charge aganst the owner:

.....you have registered the domain name in "bad faith", with an intention to use its name for your own financial gain (either directly or via advertising revenue) or in the hope of selling it to our client for more than the administrative costs incurred by you. It is, therefore, an abusive registration within the meaning set out in the Nominet DRS.

Are there some legal eagles or knowledgable fans out there who can explain to me what is going on? Can a person "sell" a website complete with 5,000 members, of which I am one? Is it an infringement of the Tolkien Estate to benefit financially from such a deal, or is this the legitimate workings of the market? I was once a librarian responsible for acquiring all the materials for a large public library system so I have some inkling how copyright works, but this website and domain name "stuff" is a complete mystery to me.

[Mithadan]

Websites are bought and sold every day. The membership list is, in effect, a customer list and such lists are often sold in business either alone or as part of a larger commercial transaction. All this auction is selling is a domain name, software, a customer list and data in the form of the content of the website. If I were either buyer or seller, I would certainly not be satisfied without substantial terms and conditions to protect me.

As for the copyright issue, note the disclaimer at the bottom of the listing stating that the website is not sanctioned by or affiliated with the Tolkien Estate, Newline, or Tolkien Enterprises. I would suspect that such a disclaimer might have been what was required to avoid the copyright infringement claim threatened against the website, or maybe the owner is attempting a duck and run. I don't know and don't care to know either.

[William Cloud Hicklin]

Originally Posted by Mithadan

Websites are bought and sold every day. The membership list is, in effect, a customer list and such lists are often sold in business either alone or as part of a larger commercial transaction. All this auction is selling is a domain name, software, a customer list and data in the form of the content of the website. If I were either buyer or seller, I would certainly not be satisfied without substantial terms and conditions to protect me.

As for the copyright issue, note the disclaimer at the bottom of the listing stating that the website is not sanctioned by or affiliated with the Tolkien Estate, Newline, or Tolkien Enterprises. I would suspect that such a disclaimer might have been what was required to avoid the copyright infringement claim threatened against the website, or maybe the owner is attempting a duck and run. I don't know and don't care to know either.

The issue here isn't one of copyright, but of trademark and the developing law of domain names. The Estate has already registered "JRR Tolkien" as a trademark, and has applied to register "Tolkien" as well. Now, it may sound ****y for their lawyers to be suing everyone on the Web who uses the word: but they have to, you see: if a trademark holder doesn't actively protect it, if he just lets infringements slide, then the TM can be "generified" and pass into the public domain. Cf nylon (once a brand name), and Xerox Corp's continual fight to keep "xerox" from being a synonym for "photocopy."

As for domain names: it's solid precedent now in the [insert acronym for the international body that administers domain names] that you have a better right to your own name than anyone else does- it's consistently shot down domain name pirates who used to register tons of names like "beatles.com" and "phantomoftheopera.net," with intent to sell them to said persons for mucho moolah.

[Alcuin]

The Tolkien Estate has its own website, http://tolkienestate.com/. It is registered to Adam Tolkien, grandson of JRR Tolkien and son of Christopher Tolkien, and is currently under construction, but its unique “under construction” page has information about the upcoming book Children of Húrin.