That
was the misstatement. “Most nations don’t
have a US-style First Amendment” would
have been true.
What
was the misstatement you are trying to
correct? The most related statement that
I could find in the Transcript was J.
Scott who said “very few jurisdictions in
the world have free speech.” I didn’t see
anyone who said “Most nations don’t have a
US-style First Amendment.” In fact, I
didn’t see a single reference to the First
Amendment in the transcript.
Just
to correct a misstatement on the call
earlier: Most nations don’t have a
US-style First Amendment. Most nations
with a rule of law do, however, recognize
freedom of speech in some form, including
the right to criticize private companies.
As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country,
implementation can be inconsistent on the
ground, but I expect that inconsistent
enforcement of trademark rights on the
ground doesn’t mean that trademark owners
want ICANN to ignore the law on the books;
freedom of speech is equally a principle
worth honoring. In addition, I don’t know
how many countries whose nationals
participate in the ICANN process have
signed on to the Universal Declaration of
Human Rights, which includes freedom of
speech, http://www.un.org/en/universal-declaration-human-rights/,
but I doubt we want to make policy based
on the countries that don’t recognize any
freedom of speech at all.
Also,
you can’t have it both ways: if domain
names can facilitate infringement, which
they absolutely can, then they convey
meaning; if they convey meaning, they can
also facilitate noninfringing conduct or
affirmatively protected freedom of
speech. It is just as true, or untrue,
that a trademark owner can register a
different string if it can’t have the one
that it wants as it is that a person
making fair or otherwise noninfringing use
can do so. This is especially so if we’ve
given trademark owners the ability to jump
the line in many circumstances. Freedom
of speech principles may help tell us when
preclusion of a domain name to a
speaker—whether a trademark owner or a
non-owner—is of particular importance.
That is, they can help us identify the
important false positives (notifications
generated in response to domain names that
wouldn’t infringe).