Forwarding on behalf of Rebecca Tushnet, as it appears her original message did not go through to the whole mailing list. Cheers Mary ---------- Forwarded message ---------- From: Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> Date: Fri, Apr 7, 2017 at 10:19 AM Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today To: Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> It's not clear to me why "only some uses of domain names are protected free speech" is an answer to the problem "the current system allows widespread preclusion of protected free speech." Both of these things can easily be true. I would be particularly interested in reading some discussion of the independent review's Table 1, which appears to indicate that over 10% of downloaded strings are common words, and not "apple" or "fox" (common words that are also associated with famous brands): String Download Count Trademark Holder(s) smart 15,198 Smart Communications, Daimler AG forex 14,823 Forex Bank AB hotel 14,690 Hotel Top Level Domain GMBH one 14,205 American Academy of Ophthamology love 13,912 Cartier International AG, The Conde Nast Publications cloud 13,821 Individual nyc 13,622 City of New York, NYC & Company london 13,343 London & Partners abc 13,331 LV Insurance Management Limited luxury 13,125 ILUX Holdings Rebecca Tushnet Georgetown Law 703 593 6759 On Fri, Apr 7, 2017 at 7:55 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote: > Michael: > > U.S. Law does not protect domain names in and of themselves as free speech. Rather, the notion of free speech as applied to domain names concerns the communicative aspect of the domain name at issue and the use of the domain name. A domain name such as BRANDsucks.com has a communicative aspect that could enjoy protection under the first amendment, but if the domain name is being used by a competitor to promote and sell its own products, then that would probably take it out of the scope of free speech under the first amendment Similarly, if one registers BRANDLovesJesus.com and uses it for a website concerning abortion rights (the 8th Circuit Purdy case) , that would not be protected free speech if the brand had never commented on abortion rights (e.g., you cannot use a domain name to ascribe speech to someone who never made speech in that regard). The bottom line, is that first amendment protection under US law for domain name registrations is contextual and not just based on the name itself. > > Original Message > > From: Michael Karanicolas > Sent: Thursday, April 6, 2017 11:00 PM > To: Michael Graham (ELCA) > Cc: gnso-rpm-wg@icann.org > Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today > > > It's an interesting question. Different national courts have handled > the issue in different ways. In the US, for example, the Fifth Circuit > Court of Appeals found in Gibson v. Texas that domain names are > protected as speech under the 1st amendment. But freedom of expression > in the US context tends to be understood differently than elsewhere, > since the way it's protected under the US constitution is a bit > different from how most constitutions frame their equivalent > protections. > > That said - when you're asking about Article 19, the discussion comes > at the international level where, as far as I know, there's no single > authoritative treatment to point to. Generally, discussions of Article > 19 by standard setting bodies tend to focus on the sharper and more > controversial issues: hate speech, defamation, national security > restrictions, etc. > > However - there's a clear and well developed test for restrictions on > freedom of expression that's built right into the ICCPR, and which > applies equally to all restrictions, namely that they should be: (1) > provided by Law (which includes a requirement for clarity and > transparency), (2) fulfill a legitimate purpose, and (3) be necessary > and proportionate to the achievement of that goal. If we establish > that domain names qualify as speech under Article 19 (which, according > to UN Human Rights Committee in Ballantyne, Davidson & McIntyre v. > Canada, is a fairly sure interpretation), then understanding the > applicability of Article 19 just means understanding that three part > test. > > If you want more info, I'd recommend this briefing note as a useful > (and concise!) introduction to restrictions on freedom of expression > under Article 19: > https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law-2Ddemocracy.org_... > > Or if you want to go into a little more depth, you can check out this > one: https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law-2Ddemocracy.org_... > > Unfortunately - neither is specifically about domain names, but the > discussion is basically analogous to how we understand other kinds of > restrictions and protections. > > On Thu, Apr 6, 2017 at 6:50 PM, Michael Graham (ELCA) > <migraham@expedia.com> wrote: >> Michael: >> >> Where can I find a discussion how Article 19 and similar "Freedom of Expression" requirements relate to or impact the registration of domain names? >> >> >> Michael R. >> >> Article 19. >> Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. >> >> -----Original Message----- >> From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Michael Karanicolas >> Sent: Thursday, April 06, 2017 5:53 AM >> To: J. Scott Evans <jsevans@adobe.com> >> Cc: gnso-rpm-wg@icann.org >> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today >> >> Once again - I have to jump in. Freedom of expression is very much a universal concept: >> >> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.un.org_en_universal-... >> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.ohchr.org_EN_Profess... >> >> That's why we call them "human" rights. Not "American" rights. >> >> >> On Thu, Apr 6, 2017 at 9:49 AM, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote: >>> The law is clear: an exact match isn't free speech. It is trademark infringement. A domain that coveys a message (e.g., hotels suck.com) is free speech and protected accordingly. Also, "free speech" is a US constitutional concept adopted by some countries, but it is not a universal legal concept. Perhaps universal free speech is aspirational, but it is not reality. >>> >>> Sent from my iPhone >>> >>>> On Apr 6, 2017, at 5:44 AM, George Kirikos <icann@leap.com> wrote: >>>> >>>> I'm not sure where J. Scott is getting his "facts", but my company >>>> doesn't "arbitrage" nor has it registered *any* new gTLD domain names >>>> (and I have no desire for any), nor is it a "bad actor." If you have >>>> proof that my company is a "bad actor", put it forward, rather than >>>> sling unsupported innuendo. >>>> >>>> The whole point is that the "barriers" are put forth as *required* to >>>> deal with so-called "bad actors", but are instead used to advantage >>>> certain groups, far beyond the "damage" that is claimed to be caused >>>> by the "bad actors." >>>> >>>> I don't want to delve into politics, but some might see parallels to >>>> certain government measures in some countries, where a "problem" is >>>> claimed, but a Draconian solution is applied to deal with it. >>>> >>>> When it comes to the sunrise periods for new gTLDs, the "problem" is >>>> claimed to be cybersquatting, but instead of relying on curative >>>> rights, the Sunrise policy went too far and gave too many advantages >>>> to TM holders, essentially creating an unlevel playing field between >>>> *good actors* and TM holders. >>>> >>>> Free speech means *no prior restraints* (with very rare exceptions), >>>> but harsh penalties for unlawful speech (curative rights). >>>> >>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protecti... . >>>> law.cornell.edu%2Fwex%2Fprior_restraint&data=02%7C01%7C%7C811dc6e8437 >>>> 245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C63 >>>> 6270794483518369&sdata=IyEiG%2FsY%2BTgJkYPGzDiGtCEbfBWA4SVgJ4g%2FOWfC >>>> H7s%3D&reserved=0 >>>> >>>> Sincerely, >>>> >>>> George Kirikos >>>> 416-588-0269 >>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protecti... >>>> eap.com%2F&data=02%7C01%7C%7C811dc6e8437245583fce08d47cea9d30%7Cfa7b1 >>>> b5a7b34438794aed2c178decee1%7C0%7C0%7C636270794483518369&sdata=6BJPNx >>>> olmCYrJK3jZ5%2B7ZFJhorIvFPrA11%2FRit4QYdY%3D&reserved=0 >>>> >>>> >>>>> On Thu, Apr 6, 2017 at 8:08 AM, J. Scott Evans <jsevans@adobe.com> wrote: >>>>> The same logic applies to you and other domaines, cybersquatters, speculators and small businesses. The fact that you want to arbitrage in terms that are also trademarks is your choice and you have to deal with the barriers put in place to deal with the bad actors. >>>>> >>>>> Sent from my iPhone >>>>> >>>>>> On Apr 6, 2017, at 4:59 AM, George Kirikos <icann@leap.com> wrote: >>>>>> >>>>>> Hi folks, >>>>>> >>>>>>> On Thu, Apr 6, 2017 at 4:19 AM, Beckham, Brian <brian.beckham@wipo.int> wrote: >>>>>>> Finally, since the chart references the EFF letter, it is worth >>>>>>> mentioning here that the fact that a trademark owner may pay >>>>>>> (sometimes extremely high >>>>>>> amounts) to defensively register a domain name exactly matching >>>>>>> its trademark in a Sunrise process (and thereby taking it “off the >>>>>>> market”) does not prevent free expression, which may be undertaken >>>>>>> in countless other ways. The number of terms that may be appended >>>>>>> to a trademark (not to mention typos) to engage in all manner of >>>>>>> speech – fair or otherwise – is, practically-speaking, all but limitless. >>>>>> >>>>>> By that "logic", the number of terms that may be appended to a >>>>>> common dictionary word (not to mention typos) to create a >>>>>> trademarkable brand is, practically-speaking, all but limitless. >>>>>> :-) >>>>>> >>>>>> In other words, those creating a new brand/trademark certainly had >>>>>> the opportunity to create a longer (and thus inferior) alternative >>>>>> to a commonly used dictionary word or other common term. The fact >>>>>> that they decided instead to choose a common term that is widely >>>>>> used by the public shouldn't give them any priority access in a >>>>>> launch of a new gTLD. >>>>>> >>>>>> "I created a problem for myself, and I want ICANN to fix it" is the >>>>>> essence of the sunrise argument for commonly used terms, like >>>>>> dictionary words and short acronyms. >>>>>> >>>>>> Sincerely, >>>>>> >>>>>> George Kirikos >>>>>> 416-588-0269 >>>>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protecti... >>>>>> .leap.com%2F&data=02%7C01%7C%7C2b7c1e08334543cacbff08d47ce46e63%7Cf >>>>>> a7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636270767931993418&sdata= >>>>>> 6px9twhTFpg2YYaKWPoClt%2FQGQKnakm1jerYcSj%2F2w0%3D&reserved=0 >>>>>> _______________________________________________ >>>>>> gnso-rpm-wg mailing list >>>>>> gnso-rpm-wg@icann.org >>>>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protecti... >>>>>> .icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C2b7 >>>>>> c1e08334543cacbff08d47ce46e63%7Cfa7b1b5a7b34438794aed2c178decee1%7C >>>>>> 0%7C0%7C636270767931993418&sdata=jZh3dzb5ycHMZLxsR4ZLmQdR%2B2kWcBkF >>>>>> D%2Fj6BAXDjiI%3D&reserved=0 >>>> _______________________________________________ >>>> gnso-rpm-wg mailing list >>>> gnso-rpm-wg@icann.org >>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protecti... >>>> cann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C811dc6e >>>> 8437245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0% >>>> 7C636270794483518369&sdata=mJrIOSHwtTJCADlJ8m6UiUx7baKNfoXhIpZQh1s99f >>>> s%3D&reserved=0 >>> _______________________________________________ >>> gnso-rpm-wg mailing list >>> gnso-rpm-wg@icann.org >>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> _______________________________________________ >> gnso-rpm-wg mailing list >> gnso-rpm-wg@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > > ________________________________ > > Confidentiality Notice: > This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. 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