Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It would help fairly easily. First, registration in the TMCH does not mean in and of itself there is an abuse. Second, the whole straw man argument with no evidence is that brand owners are somehow overreaching and grabbing all common word domain names in the new extensions. Clearly, if brand owners are not the majority owners of common word domain names in the new extensions, then the whole house of cards argument that brand owners are taking advantage of the system falls apart. Third, you could easily tell in many instances whether a sunrise registration occurred. We know all of the sunrise dates, and whois for the most part show a date of creation. So if you wanted to cross reference you could easily see if a name was registered during a sunrise period. Fourth, what you will likely find from all this is that most common word domain in the new extensions are not registered to brand owners. If it turns out a majority are registered by domainers or speculators would we then go down the path of figuring out how that happened. Original Message From: Rebecca Tushnet Sent: Sunday, April 9, 2017 4:38 PM To: Nahitchevansky, Georges Cc: Paul Keating; Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today How would this exercise indicate whether such registrations occurred with a TMCH claim or in spite of one, or neither? And aren't the top ten in the audit report also valuable? Sent from my phone. Apologies for terseness/typos.
On Apr 9, 2017, at 4:03 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Again, I have to ask where is the evidence of widespread abuse. It seems like the whole argument is on the basis of some strawman argument that brand owners are using the TMCH to take common words out of circulation. I have yet to see anything that even remotely proves or suggests this in fact has occurred. Moreover, the idea that you have to see the TMCH data is a bit of a fishing expedition and will not establish that widespread abuse occurred (e.g., if Delta was registered by Delta Airlines in the TMCH it does in and of itself suggest an abuse of the system). What seems to be happening is that folks are positing a position with little to no evidence, then saying they need the data and making everybody spends gobs of time on issues that have previously been debated, esoteric concepts of human rights, natural justice, free speech and god knows what else. Perhaps, instead of throwing out arguments there should be an effort to gather some real evidence for discussion. If we all decide to continue down this path then perhaps one simple idea would be to take a list of common words that could be perceived as being valuable such as business, music, car, travel, sex, money, ski, football, food, boat, truck, website, online etc and cross reference these words with the new gTld registrations to get some sense of who owns these domain names. Once there is some real data, then we can evaluate who owns most of these ( domainers, brand owners, speculators, industry groups etc.). This would not be a difficult exercise to do. Instead of multiple email chains, folks could take on one or two words from a compiled list and conduct this investigation using whois.
Original Message From: Paul Keating Sent: Sunday, April 9, 2017 3:31 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
I see clear speech issues as well. It is not possible to formulate a position that no domain name represents an expression of speech.
Nor is it sufficient to ignore this issue because there are other forums available to channel the desired expression.
The goal here is not to protect the obvious but rather to protect the speech that is possible but not yet obvious.
So this is not a rabbit hole. The TMCH was developed based upon an assumption that it would not be abused and would not unreasonably infringe upon speech. We must determine if abuse has occurred. The contents of the TMCH database is very much relevant. If we are to be denied information relevant to the database we must assume the worst. For if the IP crowd wants us to believe - there is no problem, - it is encumbrance upon then to prove it, Freedoms of speech is simply too important to ignore.
For if you take away all of my rights save the freedom of speech I will quickly recover those rights lost......Jefferson.
Sent from my iPad
On 9 Apr 2017, at 19:08, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:
Following up on my post from yesterday, let's make this more specific: I see clear free speech issues that can arise from an attempt to register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X, nyc.x and the like. Those along with forex, hotel, one, london, and abc, are the top ten downloads from the TMCH. Of course, as Michael K. indicates, we'd know more about how many dictionary terms are beingdom blocked if there were more transparency, but what we do know right now should be concerning. Rebecca Tushnet Georgetown Law 703 593 6759
On Sun, Apr 9, 2017 at 12:51 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: My responses are in-line.
G reg
On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas <mkaranicolas@gmail.com> wrote:
Hi,
I think that Michael Graham brings up a salient point in terms of falling too far down the rabbit hole on background matters, but I should address a few issues in response to questions that were directly asked of me.
First off, while Greg is correct to point out that the UDHR is not formally legally binding as a UNGA resolution, it is (quite literally) the textbook example of customary international law. I realize that can be a fuzzy concept to rely on, but luckily I don't have to rely on it because the freedom of expression protections in the UDHR are substantially identical to those found in the ICCPR, which IS a formally binding treaty.
Binding on states. Of course, ICANN is not a state. Luckily, we have the new human rights Core Value in the ICANN Bylaws, Section 1.2(b)(viii), which states that one of ICANN's eight Core Values (which must be subject to a balancing analysis involving all Core Values). is "within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law." The Bylaw specifically notes that "This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law." As such, ICANN's obligations do not go beyond what would otherwise be required by applicable law. There's been a great deal of discussion of this in CCWG-Accountability WS1 and in the Human Rights Subgroup of WS2, so I won't go further into the concepts here, which would be a rabbit hole down a rabbit hole from the viewpoint of this group.
Also, while I appreciate Greg's caution against "cherrypicking" by viewing Article 19 in isolation, in this context that argument is just a smokescreen.
Concerns about cherrypicking are in no way a "smokescreen" -- unless the reference is to the saying "where there's smoke, there's fire." John Levine's blog nicely expressed a number of concerns about such cherrypicking, especially for what he calls the "fashionable human rights," so I won't repeat them here. It is important to keep in mind, as Michael notes, that "human rights are fundamentally about balance," so perhaps we are not so far apart, as "balance" and "cherrypicking" are mutually exclusive concepts.
Of course the UDHR and ICCPR need to be viewed holistically - that understanding in no way supports an argument that domains are not speech.
I'm puzzled by the second part of this sentence. I think this point is unrelated to the issue of whether or not domain names are speech, so it neither supports nor negates any argument on that topic.
There's no conflict between believing in personal privacy as protected by the ICCPR (as I do), and believing in the need to combat hate speech as spelled out in the ICCPR (as I do), and believing in freedom of expression. Human rights are fundamentally about balance (more on that in a second).
There are certainly conflicts (e.g., between combating hate speech and supporting free speech); the issue is how to balance these countervailing issues to resolve these conflicts.
With regard to Ballantyne, Davidson & McIntyre, I probably should have been more specific in my original post. Of course, as Greg notes, the case is not specifically about domain names - which would be a pretty niche area for the Human Rights Committee to dig into. But the decision contains the clearest statement of the extent of what constitutes "speech" under the ICCPR, namely that Article 19: "must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others". It's an incredibly broad formulation - to cover virtually anything that conveys meaning. I, personally, can't see an interpretation of that that doesn't include domain names.
This is not really that broad a formulation -- it dovetails nicely with the concept of "expressive speech" under US law (as in the excerpt from Gibson). Furthermore, there is a considerable difference between the speech constituting "subjective ideas and opinions" protected in Ballantyne and the "incredibly broad formulation" that would elevate "virtually anything that conveys meaning." "Subjective ideas and opinions" in no way embraces domain names per se; whether and to what extent it embraces domain names is certainly not a question answered in Ballantyne.
With regard to Gibson v. Texas - I don't want to dig too deeply into this because, honestly, US law is not my specialisation. But I think that part of the disconnect between our positions is due to a particular aspect of the American understanding of free speech, that's sort of different to how it's understood virtually everywhere else. Under most systems, including the international example I just cited, virtually everything is classed as "speech", and then there's a balancing as to whether particular restrictions are justified. But because of the absolutist way the US Constitution is phrased ("Congress shall make no law"), the Courts have had to go through some unusual legal gymnastics to find that speech that they feel justified restricting isn't actually speech.
Simply reading the excerpt from Gibson v. Texas in my prior email shows that this "speech/not speech" analysis is incorrect. Gibson, and the cases cited in it, distinguish between protected speech and speech that that is "not to be protected." Specifically, Gibson mentions that "courts have held that domain names that use trademarks to misidentify the source of a product are outside the reach of the First Amendment" and also cites a line of cases where "the domain name was actually held not to be protected speech because it was not expressive, not because it was misleading." More broadly, the idea that the US approach to free speech is anomalous is incorrect. Of course, free speech regimes vary broadly throughout the world -- so there's no such thing as a single "understanding of free speech... virtually everywhere else" aside from the US. Unfortunately, there are many places in the world where there is no understanding of free speech at all.) If the US approach to free speech tends to be different, it is in a greater tolerance for controversial and offensive speech (what John Levine calls "the absolutist U.S. first amendment approach"). This is why US law doesn't find it so easy to restrict alleged "hate speech" as "virtually everywhere else", and also why I can't be so comfortable in finding "no conflict" between free speech and restricting hate speech. (And I say this as a member of a group that is finding itself increasingly on the wrong end of both offensive speech and hate speech.)
So, without trying to belabour these issues, my point in the above is not to try and invalidate the trademark protection system - indeed, Greg's quite right to point out that trademarks are also speech. My point here is simply to try and demonstrate that there are free speech issues at play.
It's clear that this is false as a general statement, unless this is meant as a statement that could possibly true in a large enough sample, like "people are 7 feet tall". Whether one looks at Ballantyne or Gibson, one sees clear distinctions being drawn being "subjective ideas and opinions" and speech that is "not expressive" or "inherently misleading." This is probably a good time to note that the UDHR and the ICCPR both refer to "freedom of expression" and not to "free speech." So, it would be more proper to discuss whether "expressive speech" is at issue, not whether the over-broad "virtually anything that conveys meaning" is at issue, before we even get to the question of whether free speech issues are at play, to what extent, and how that might affect any discussion that is relevant to this Working Group.
To me, that's not a controversial point - and if we can agree on that,
I don't think we can agree on that, and certainly not as an assumed agreement from which one can proceed blithely on. Rather, I think that is an elemental aspect of the discussion, and as noted above, at best "controversial" and possibly sometimes true, and at worst false (at least as a general statement).
As an aside, it's worth noting what Article 19 of the ICCPR actually protects: "the right to hold opinions without interference" and "the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." I admit to struggling to find instances where the right to hold opinions or to express oneself freely is truly being violated in this context -- especially in a world where holding or expressing an opinion can come under threat of oppression, suppression, violence, imprisonment or worse. As someone who strongly supports First Amendment rights and who has worked on litigation defending First Amendment freedoms, I wonder whether this discussion trivializes free speech concerns rather than promoting them. That is not to dismiss the possibility of free speech concerns here, but just to say that, to the extent there is a viable point here, it pales in comparison to the significant freedom of expression concerns elsewhere (including elsewhere on the Internet, where access to websites with undesirable opinions or expression, or even to the Internet as a whole, is under escalating attack).
then that is relevant to the transparency question, since in my mind it bolsters arguments for why openness in the system is important.
I don't get the logical leaps here, from the possibility of a free speech issue, to the claimed relevance to the transparency question, to the even more attenuated idea that this bolsters arguments regarding changing access rules for the TMCH. In other words, I don't really think that any of this changes the discussion on TMCH database access, nor do I really think it is relevant to any of the work we are undertaking right now. That is not to say that this is an uninteresting discussion (or else I would not have engaged in it), just that it is a rabbit hole in relation to our work.
Best,
Michael
On Fri, Apr 7, 2017 at 2:19 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
It's important to keep in mind that the rights set forth in the UDHR are interrelated and interdependent, so understanding the applicability of any one Article also requires understanding the applicability of the other rights in the UDHR, including some which may be countervailing to others. Looking at Article 19 in isolation is "cherrypicking." A recent CircleID article by John Levine is quite enlightening on this very point:
http://www.circleid.com/posts/20170401_human_rights_and_regular_internet_use...
The article is short, but for those who don't get there, this quote goes to the heart of the matter: "it devalues the whole topic of human rights to pay attention only to a few fashionable rights, while ignoring ones that are at least as important in people's daily lives."
(It should also be noted that the UDHR, while adopted by the United Nations and widely used, does not constitute some form of "universal law" nor is it universally accepted.)
The case mentioned, Gibson v. Texas, has portions that are directly applicable to the discussion at hand. However, the Gibson decision actually distinguishes cases involving trademarks from the situation in that case. As a matter of fact, the Gibson case tells us that there are at least two types of domain names that do not constitute speech protected by the First Amendment: domain names that infringe trademarks, and domain names that do not constitute "expressive speech."
(In other words, there can be no "freedom of expression" issue when the speech is not expressive.)
Before getting to an excerpt from the case, it's important to note that the court did not find that domain names are speech, much less find that domain names are speech protected by the First Amendment. The court made no findings about all domain names. Rather, the court assumed, for the purpose of considering a motion to dismiss, that the domain name in question (texasworkerscomplaw.com) constituted commercial speech. It's also important to note that the case involved the Constitutionality of a law that broadly prohibited the use of the terms "Texas" and "workers comp," and not a trademark infringement matter.
The excerpt is quite instructive:
In order for speech to fall outside of the First Amendment’s protection, the speech must either be “inherently likely to deceive,” or “the record [must] indicate[] that a particular form or method of advertising has in fact been deceptive.” R.M.J., 455 U.S. at 202.
Appellees primarily argue that the Texas statute is constitutional because Gibson’s domain name amounts to inherently misleading speech. In support of this proposition, they cite to a series of cases in which courts have held that domain names that use trademarks to misidentify the source of a product are outside the reach of the First Amendment. The case law cited by Appellees, however, is unique to the field of trademark infringement, see, e.g., Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and does not necessarily extend to a case such as this one, where Texas is prohibiting Gibson from using words that are otherwise in the public domain.[1] Cases involving trademark infringement involve inherently deceptive speech because they contain a significant risk that an infringing party will freeload on the goodwill that has been created by the original trademark. See Friedman, 440 U.S. at 11-16. No such risk is present here. Texas has made no showing that its own talents and energy contributed to the creation of any goodwill in the name “texasworkerscomplaw.com.” See San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533-34 (1987). Instead the regulation at issue is forward-thinking; intended to prohibit confusion for individuals seeking information from the government agency. It is not retrospective in the same way as most trademark litigation, which is generally intended to preserve the reputation that has been built upon a trade name. See Friedman, 440 U.S. at 11-16. Accordingly, the case law cited by Appellees is inapposite.
________________________________
[1] In most of the cases cited by Appellees the domain name was actually held not to be protected speech because it was not expressive, not because it was misleading. See, e.g., Planned Parenthood Fed’n of Am. v. Bucci, No. 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997); Morrison & Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D. Colo. 2000); Jews for Jesus v. Brodsky, 993 F.Supp. 282, 286 n.1 (D.N.J. 1998). Here, in contrast, Gibson’s domain name is expressive because it does more than simply mimic the state agency’s website or identify a source of Texas Workers’ Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11. The domain name is intended to direct visitors to a forum for discussing workers’ compensation laws and their potential reform, as well as to convey to visitors the message of Gibson’s website as a whole. Accordingly, in the context of this case, the domain name is “‘sufficiently imbued with the elements of communication’” to place it in the realm of expressive speech. Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. 2000) (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)).
Greg Shatan
Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com
On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas <mkaranicolas@gmail.com> wrote:
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:
http://www.law-democracy.org/live/wp-content/uploads/2015/02/foe-briefingnot...
Or if you want to go into a little more depth, you can check out this one: http://www.law-democracy.org/live/wp-content/uploads/2012/08/Paper-on-Restri...
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: > > http://www.un.org/en/universal-declaration-human-rights/ > http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx > > 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww. >>> >>> 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://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.l >>> >>> 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://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww >>>>> >>>>> .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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm >>>>> >>>>> .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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.i >>> >>> 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
_______________________________________________ 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. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
________________________________
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
++1 Sent from my iPhone
On Apr 9, 2017, at 3:57 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
It would help fairly easily. First, registration in the TMCH does not mean in and of itself there is an abuse. Second, the whole straw man argument with no evidence is that brand owners are somehow overreaching and grabbing all common word domain names in the new extensions. Clearly, if brand owners are not the majority owners of common word domain names in the new extensions, then the whole house of cards argument that brand owners are taking advantage of the system falls apart. Third, you could easily tell in many instances whether a sunrise registration occurred. We know all of the sunrise dates, and whois for the most part show a date of creation. So if you wanted to cross reference you could easily see if a name was registered during a sunrise period. Fourth, what you will likely find from all this is that most common word domain in the new extensions are not registered to brand owners. If it turns out a majority are registered by domainers or speculators would we then go down the path of figuring out how that happened.
Original Message From: Rebecca Tushnet Sent: Sunday, April 9, 2017 4:38 PM To: Nahitchevansky, Georges Cc: Paul Keating; Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
How would this exercise indicate whether such registrations occurred with a TMCH claim or in spite of one, or neither? And aren't the top ten in the audit report also valuable?
Sent from my phone. Apologies for terseness/typos.
On Apr 9, 2017, at 4:03 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Again, I have to ask where is the evidence of widespread abuse. It seems like the whole argument is on the basis of some strawman argument that brand owners are using the TMCH to take common words out of circulation. I have yet to see anything that even remotely proves or suggests this in fact has occurred. Moreover, the idea that you have to see the TMCH data is a bit of a fishing expedition and will not establish that widespread abuse occurred (e.g., if Delta was registered by Delta Airlines in the TMCH it does in and of itself suggest an abuse of the system). What seems to be happening is that folks are positing a position with little to no evidence, then saying they need the data and making everybody spends gobs of time on issues that have previously been debated, esoteric concepts of human rights, natural justice, free speech and god knows what else. Perhaps, instead of throwing out arguments there should be an effort to gather some real evidence for discussion. If we all decide to continue down this path then perhaps one simple idea would be to take a list of common words that could be perceived as being valuable such as business, music, car, travel, sex, money, ski, football, food, boat, truck, website, online etc and cross reference these words with the new gTld registrations to get some sense of who owns these domain names. Once there is some real data, then we can evaluate who owns most of these ( domainers, brand owners, speculators, industry groups etc.). This would not be a difficult exercise to do. Instead of multiple email chains, folks could take on one or two words from a compiled list and conduct this investigation using whois.
Original Message From: Paul Keating Sent: Sunday, April 9, 2017 3:31 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
I see clear speech issues as well. It is not possible to formulate a position that no domain name represents an expression of speech.
Nor is it sufficient to ignore this issue because there are other forums available to channel the desired expression.
The goal here is not to protect the obvious but rather to protect the speech that is possible but not yet obvious.
So this is not a rabbit hole. The TMCH was developed based upon an assumption that it would not be abused and would not unreasonably infringe upon speech. We must determine if abuse has occurred. The contents of the TMCH database is very much relevant. If we are to be denied information relevant to the database we must assume the worst. For if the IP crowd wants us to believe - there is no problem, - it is encumbrance upon then to prove it, Freedoms of speech is simply too important to ignore.
For if you take away all of my rights save the freedom of speech I will quickly recover those rights lost......Jefferson.
Sent from my iPad
On 9 Apr 2017, at 19:08, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:
Following up on my post from yesterday, let's make this more specific: I see clear free speech issues that can arise from an attempt to register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X, nyc.x and the like. Those along with forex, hotel, one, london, and abc, are the top ten downloads from the TMCH. Of course, as Michael K. indicates, we'd know more about how many dictionary terms are beingdom blocked if there were more transparency, but what we do know right now should be concerning. Rebecca Tushnet Georgetown Law 703 593 6759
On Sun, Apr 9, 2017 at 12:51 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: My responses are in-line.
G reg
On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas <mkaranicolas@gmail.com> wrote:
Hi,
I think that Michael Graham brings up a salient point in terms of falling too far down the rabbit hole on background matters, but I should address a few issues in response to questions that were directly asked of me.
First off, while Greg is correct to point out that the UDHR is not formally legally binding as a UNGA resolution, it is (quite literally) the textbook example of customary international law. I realize that can be a fuzzy concept to rely on, but luckily I don't have to rely on it because the freedom of expression protections in the UDHR are substantially identical to those found in the ICCPR, which IS a formally binding treaty.
Binding on states. Of course, ICANN is not a state. Luckily, we have the new human rights Core Value in the ICANN Bylaws, Section 1.2(b)(viii), which states that one of ICANN's eight Core Values (which must be subject to a balancing analysis involving all Core Values). is "within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law." The Bylaw specifically notes that "This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law." As such, ICANN's obligations do not go beyond what would otherwise be required by applicable law. There's been a great deal of discussion of this in CCWG-Accountability WS1 and in the Human Rights Subgroup of WS2, so I won't go further into the concepts here, which would be a rabbit hole down a rabbit hole from the viewpoint of this group.
Also, while I appreciate Greg's caution against "cherrypicking" by viewing Article 19 in isolation, in this context that argument is just a smokescreen.
Concerns about cherrypicking are in no way a "smokescreen" -- unless the reference is to the saying "where there's smoke, there's fire." John Levine's blog nicely expressed a number of concerns about such cherrypicking, especially for what he calls the "fashionable human rights," so I won't repeat them here. It is important to keep in mind, as Michael notes, that "human rights are fundamentally about balance," so perhaps we are not so far apart, as "balance" and "cherrypicking" are mutually exclusive concepts.
Of course the UDHR and ICCPR need to be viewed holistically - that understanding in no way supports an argument that domains are not speech.
I'm puzzled by the second part of this sentence. I think this point is unrelated to the issue of whether or not domain names are speech, so it neither supports nor negates any argument on that topic.
There's no conflict between believing in personal privacy as protected by the ICCPR (as I do), and believing in the need to combat hate speech as spelled out in the ICCPR (as I do), and believing in freedom of expression. Human rights are fundamentally about balance (more on that in a second).
There are certainly conflicts (e.g., between combating hate speech and supporting free speech); the issue is how to balance these countervailing issues to resolve these conflicts.
With regard to Ballantyne, Davidson & McIntyre, I probably should have been more specific in my original post. Of course, as Greg notes, the case is not specifically about domain names - which would be a pretty niche area for the Human Rights Committee to dig into. But the decision contains the clearest statement of the extent of what constitutes "speech" under the ICCPR, namely that Article 19: "must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others". It's an incredibly broad formulation - to cover virtually anything that conveys meaning. I, personally, can't see an interpretation of that that doesn't include domain names.
This is not really that broad a formulation -- it dovetails nicely with the concept of "expressive speech" under US law (as in the excerpt from Gibson). Furthermore, there is a considerable difference between the speech constituting "subjective ideas and opinions" protected in Ballantyne and the "incredibly broad formulation" that would elevate "virtually anything that conveys meaning." "Subjective ideas and opinions" in no way embraces domain names per se; whether and to what extent it embraces domain names is certainly not a question answered in Ballantyne.
With regard to Gibson v. Texas - I don't want to dig too deeply into this because, honestly, US law is not my specialisation. But I think that part of the disconnect between our positions is due to a particular aspect of the American understanding of free speech, that's sort of different to how it's understood virtually everywhere else. Under most systems, including the international example I just cited, virtually everything is classed as "speech", and then there's a balancing as to whether particular restrictions are justified. But because of the absolutist way the US Constitution is phrased ("Congress shall make no law"), the Courts have had to go through some unusual legal gymnastics to find that speech that they feel justified restricting isn't actually speech.
Simply reading the excerpt from Gibson v. Texas in my prior email shows that this "speech/not speech" analysis is incorrect. Gibson, and the cases cited in it, distinguish between protected speech and speech that that is "not to be protected." Specifically, Gibson mentions that "courts have held that domain names that use trademarks to misidentify the source of a product are outside the reach of the First Amendment" and also cites a line of cases where "the domain name was actually held not to be protected speech because it was not expressive, not because it was misleading." More broadly, the idea that the US approach to free speech is anomalous is incorrect. Of course, free speech regimes vary broadly throughout the world -- so there's no such thing as a single "understanding of free speech... virtually everywhere else" aside from the US. Unfortunately, there are many places in the world where there is no understanding of free speech at all.) If the US approach to free speech tends to be different, it is in a greater tolerance for controversial and offensive speech (what John Levine calls "the absolutist U.S. first amendment approach"). This is why US law doesn't find it so easy to restrict alleged "hate speech" as "virtually everywhere else", and also why I can't be so comfortable in finding "no conflict" between free speech and restricting hate speech. (And I say this as a member of a group that is finding itself increasingly on the wrong end of both offensive speech and hate speech.)
So, without trying to belabour these issues, my point in the above is not to try and invalidate the trademark protection system - indeed, Greg's quite right to point out that trademarks are also speech. My point here is simply to try and demonstrate that there are free speech issues at play.
It's clear that this is false as a general statement, unless this is meant as a statement that could possibly true in a large enough sample, like "people are 7 feet tall". Whether one looks at Ballantyne or Gibson, one sees clear distinctions being drawn being "subjective ideas and opinions" and speech that is "not expressive" or "inherently misleading." This is probably a good time to note that the UDHR and the ICCPR both refer to "freedom of expression" and not to "free speech." So, it would be more proper to discuss whether "expressive speech" is at issue, not whether the over-broad "virtually anything that conveys meaning" is at issue, before we even get to the question of whether free speech issues are at play, to what extent, and how that might affect any discussion that is relevant to this Working Group.
To me, that's not a controversial point - and if we can agree on that,
I don't think we can agree on that, and certainly not as an assumed agreement from which one can proceed blithely on. Rather, I think that is an elemental aspect of the discussion, and as noted above, at best "controversial" and possibly sometimes true, and at worst false (at least as a general statement).
As an aside, it's worth noting what Article 19 of the ICCPR actually protects: "the right to hold opinions without interference" and "the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." I admit to struggling to find instances where the right to hold opinions or to express oneself freely is truly being violated in this context -- especially in a world where holding or expressing an opinion can come under threat of oppression, suppression, violence, imprisonment or worse. As someone who strongly supports First Amendment rights and who has worked on litigation defending First Amendment freedoms, I wonder whether this discussion trivializes free speech concerns rather than promoting them. That is not to dismiss the possibility of free speech concerns here, but just to say that, to the extent there is a viable point here, it pales in comparison to the significant freedom of expression concerns elsewhere (including elsewhere on the Internet, where access to websites with undesirable opinions or expression, or even to the Internet as a whole, is under escalating attack).
then that is relevant to the transparency question, since in my mind it bolsters arguments for why openness in the system is important.
I don't get the logical leaps here, from the possibility of a free speech issue, to the claimed relevance to the transparency question, to the even more attenuated idea that this bolsters arguments regarding changing access rules for the TMCH. In other words, I don't really think that any of this changes the discussion on TMCH database access, nor do I really think it is relevant to any of the work we are undertaking right now. That is not to say that this is an uninteresting discussion (or else I would not have engaged in it), just that it is a rabbit hole in relation to our work.
Best,
Michael
On Fri, Apr 7, 2017 at 2:19 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
It's important to keep in mind that the rights set forth in the UDHR are interrelated and interdependent, so understanding the applicability of any one Article also requires understanding the applicability of the other rights in the UDHR, including some which may be countervailing to others. Looking at Article 19 in isolation is "cherrypicking." A recent CircleID article by John Levine is quite enlightening on this very point:
https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.circleid...
The article is short, but for those who don't get there, this quote goes to the heart of the matter: "it devalues the whole topic of human rights to pay attention only to a few fashionable rights, while ignoring ones that are at least as important in people's daily lives."
(It should also be noted that the UDHR, while adopted by the United Nations and widely used, does not constitute some form of "universal law" nor is it universally accepted.)
The case mentioned, Gibson v. Texas, has portions that are directly applicable to the discussion at hand. However, the Gibson decision actually distinguishes cases involving trademarks from the situation in that case. As a matter of fact, the Gibson case tells us that there are at least two types of domain names that do not constitute speech protected by the First Amendment: domain names that infringe trademarks, and domain names that do not constitute "expressive speech."
(In other words, there can be no "freedom of expression" issue when the speech is not expressive.)
Before getting to an excerpt from the case, it's important to note that the court did not find that domain names are speech, much less find that domain names are speech protected by the First Amendment. The court made no findings about all domain names. Rather, the court assumed, for the purpose of considering a motion to dismiss, that the domain name in question (texasworkerscomplaw.com) constituted commercial speech. It's also important to note that the case involved the Constitutionality of a law that broadly prohibited the use of the terms "Texas" and "workers comp," and not a trademark infringement matter.
The excerpt is quite instructive:
In order for speech to fall outside of the First Amendment’s protection, the speech must either be “inherently likely to deceive,” or “the record [must] indicate[] that a particular form or method of advertising has in fact been deceptive.” R.M.J., 455 U.S. at 202.
Appellees primarily argue that the Texas statute is constitutional because Gibson’s domain name amounts to inherently misleading speech. In support of this proposition, they cite to a series of cases in which courts have held that domain names that use trademarks to misidentify the source of a product are outside the reach of the First Amendment. The case law cited by Appellees, however, is unique to the field of trademark infringement, see, e.g., Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and does not necessarily extend to a case such as this one, where Texas is prohibiting Gibson from using words that are otherwise in the public domain.[1] Cases involving trademark infringement involve inherently deceptive speech because they contain a significant risk that an infringing party will freeload on the goodwill that has been created by the original trademark. See Friedman, 440 U.S. at 11-16. No such risk is present here. Texas has made no showing that its own talents and energy contributed to the creation of any goodwill in the name “texasworkerscomplaw.com.” See San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533-34 (1987). Instead the regulation at issue is forward-thinking; intended to prohibit confusion for individuals seeking information from the government agency. It is not retrospective in the same way as most trademark litigation, which is generally intended to preserve the reputation that has been built upon a trade name. See Friedman, 440 U.S. at 11-16. Accordingly, the case law cited by Appellees is inapposite.
________________________________
[1] In most of the cases cited by Appellees the domain name was actually held not to be protected speech because it was not expressive, not because it was misleading. See, e.g., Planned Parenthood Fed’n of Am. v. Bucci, No. 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997); Morrison & Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D. Colo. 2000); Jews for Jesus v. Brodsky, 993 F.Supp. 282, 286 n.1 (D.N.J. 1998). Here, in contrast, Gibson’s domain name is expressive because it does more than simply mimic the state agency’s website or identify a source of Texas Workers’ Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11. The domain name is intended to direct visitors to a forum for discussing workers’ compensation laws and their potential reform, as well as to convey to visitors the message of Gibson’s website as a whole. Accordingly, in the context of this case, the domain name is “‘sufficiently imbued with the elements of communication’” to place it in the realm of expressive speech. Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. 2000) (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)).
Greg Shatan
Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com
On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas <mkaranicolas@gmail.com> wrote: > > 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://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.law-demo... > > Or if you want to go into a little more depth, you can check out this > one: > https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.law-demo... > > 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://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.un.org%2... >> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.ohchr.or... >> >> 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww. >>>> >>>> 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://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.l >>>> >>>> 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://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww >>>>>> >>>>>> .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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm >>>>>> >>>>>> .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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.i >>>> >>>> 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or... >> _______________________________________________ >> gnso-rpm-wg mailing list >> gnso-rpm-wg@icann.org >> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or... > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or...
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or...
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or...
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or...
________________________________
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
________________________________
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or...
So your argument is that the top ten matches in the audit report such as hotel, cloud, and smart are not common words? If that is not evidence worth investigating, you need to explain why. And even if other common words like zebra, dog, and fight remain unregistered, that doesn't really help someone who wants to talk about hotels, clouds, or something smart. Rebecca Tushnet Georgetown Law 703 593 6759 On Sun, Apr 9, 2017 at 6:57 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
It would help fairly easily. First, registration in the TMCH does not mean in and of itself there is an abuse. Second, the whole straw man argument with no evidence is that brand owners are somehow overreaching and grabbing all common word domain names in the new extensions. Clearly, if brand owners are not the majority owners of common word domain names in the new extensions, then the whole house of cards argument that brand owners are taking advantage of the system falls apart. Third, you could easily tell in many instances whether a sunrise registration occurred. We know all of the sunrise dates, and whois for the most part show a date of creation. So if you wanted to cross reference you could easily see if a name was registered during a sunrise period. Fourth, what you will likely find from all this is that most common word domain in the new extensions are not registered to brand owners. If it turns out a majority are registered by domainers or speculators would we then go down the path of figuring out how that happened.
Original Message From: Rebecca Tushnet Sent: Sunday, April 9, 2017 4:38 PM To: Nahitchevansky, Georges Cc: Paul Keating; Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
How would this exercise indicate whether such registrations occurred with a TMCH claim or in spite of one, or neither? And aren't the top ten in the audit report also valuable?
Sent from my phone. Apologies for terseness/typos.
On Apr 9, 2017, at 4:03 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Again, I have to ask where is the evidence of widespread abuse. It seems like the whole argument is on the basis of some strawman argument that brand owners are using the TMCH to take common words out of circulation. I have yet to see anything that even remotely proves or suggests this in fact has occurred. Moreover, the idea that you have to see the TMCH data is a bit of a fishing expedition and will not establish that widespread abuse occurred (e.g., if Delta was registered by Delta Airlines in the TMCH it does in and of itself suggest an abuse of the system). What seems to be happening is that folks are positing a position with little to no evidence, then saying they need the data and making everybody spends gobs of time on issues that have previously been debated, esoteric concepts of human rights, natural justice, free speech and god knows what else. Perhaps, instead of throwing out arguments there should be an effort to gather some real evidence for discussion. If we all decide to continue down this path then perhaps one simple idea would be to take a list of common words that could be perceived as being valuable such as business, music, car, travel, sex, money, ski, football, food, boat, truck, website, online etc and cross reference these words with the new gTld registrations to get some sense of who owns these domain names. Once there is some real data, then we can evaluate who owns most of these ( domainers, brand owners, speculators, industry groups etc.). This would not be a difficult exercise to do. Instead of multiple email chains, folks could take on one or two words from a compiled list and conduct this investigation using whois.
Original Message From: Paul Keating Sent: Sunday, April 9, 2017 3:31 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
I see clear speech issues as well. It is not possible to formulate a position that no domain name represents an expression of speech.
Nor is it sufficient to ignore this issue because there are other forums available to channel the desired expression.
The goal here is not to protect the obvious but rather to protect the speech that is possible but not yet obvious.
So this is not a rabbit hole. The TMCH was developed based upon an assumption that it would not be abused and would not unreasonably infringe upon speech. We must determine if abuse has occurred. The contents of the TMCH database is very much relevant. If we are to be denied information relevant to the database we must assume the worst. For if the IP crowd wants us to believe - there is no problem, - it is encumbrance upon then to prove it, Freedoms of speech is simply too important to ignore.
For if you take away all of my rights save the freedom of speech I will quickly recover those rights lost......Jefferson.
Sent from my iPad
On 9 Apr 2017, at 19:08, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:
Following up on my post from yesterday, let's make this more specific: I see clear free speech issues that can arise from an attempt to register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X, nyc.x and the like. Those along with forex, hotel, one, london, and abc, are the top ten downloads from the TMCH. Of course, as Michael K. indicates, we'd know more about how many dictionary terms are beingdom blocked if there were more transparency, but what we do know right now should be concerning. Rebecca Tushnet Georgetown Law 703 593 6759
On Sun, Apr 9, 2017 at 12:51 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: My responses are in-line.
G reg
On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas <mkaranicolas@gmail.com> wrote:
Hi,
I think that Michael Graham brings up a salient point in terms of falling too far down the rabbit hole on background matters, but I should address a few issues in response to questions that were directly asked of me.
First off, while Greg is correct to point out that the UDHR is not formally legally binding as a UNGA resolution, it is (quite literally) the textbook example of customary international law. I realize that can be a fuzzy concept to rely on, but luckily I don't have to rely on it because the freedom of expression protections in the UDHR are substantially identical to those found in the ICCPR, which IS a formally binding treaty.
Binding on states. Of course, ICANN is not a state. Luckily, we have the new human rights Core Value in the ICANN Bylaws, Section 1.2(b)(viii), which states that one of ICANN's eight Core Values (which must be subject to a balancing analysis involving all Core Values). is "within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law." The Bylaw specifically notes that "This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law." As such, ICANN's obligations do not go beyond what would otherwise be required by applicable law. There's been a great deal of discussion of this in CCWG-Accountability WS1 and in the Human Rights Subgroup of WS2, so I won't go further into the concepts here, which would be a rabbit hole down a rabbit hole from the viewpoint of this group.
Also, while I appreciate Greg's caution against "cherrypicking" by viewing Article 19 in isolation, in this context that argument is just a smokescreen.
Concerns about cherrypicking are in no way a "smokescreen" -- unless the reference is to the saying "where there's smoke, there's fire." John Levine's blog nicely expressed a number of concerns about such cherrypicking, especially for what he calls the "fashionable human rights," so I won't repeat them here. It is important to keep in mind, as Michael notes, that "human rights are fundamentally about balance," so perhaps we are not so far apart, as "balance" and "cherrypicking" are mutually exclusive concepts.
Of course the UDHR and ICCPR need to be viewed holistically - that understanding in no way supports an argument that domains are not speech.
I'm puzzled by the second part of this sentence. I think this point is unrelated to the issue of whether or not domain names are speech, so it neither supports nor negates any argument on that topic.
There's no conflict between believing in personal privacy as protected by the ICCPR (as I do), and believing in the need to combat hate speech as spelled out in the ICCPR (as I do), and believing in freedom of expression. Human rights are fundamentally about balance (more on that in a second).
There are certainly conflicts (e.g., between combating hate speech and supporting free speech); the issue is how to balance these countervailing issues to resolve these conflicts.
With regard to Ballantyne, Davidson & McIntyre, I probably should have been more specific in my original post. Of course, as Greg notes, the case is not specifically about domain names - which would be a pretty niche area for the Human Rights Committee to dig into. But the decision contains the clearest statement of the extent of what constitutes "speech" under the ICCPR, namely that Article 19: "must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others". It's an incredibly broad formulation - to cover virtually anything that conveys meaning. I, personally, can't see an interpretation of that that doesn't include domain names.
This is not really that broad a formulation -- it dovetails nicely with the concept of "expressive speech" under US law (as in the excerpt from Gibson). Furthermore, there is a considerable difference between the speech constituting "subjective ideas and opinions" protected in Ballantyne and the "incredibly broad formulation" that would elevate "virtually anything that conveys meaning." "Subjective ideas and opinions" in no way embraces domain names per se; whether and to what extent it embraces domain names is certainly not a question answered in Ballantyne.
With regard to Gibson v. Texas - I don't want to dig too deeply into this because, honestly, US law is not my specialisation. But I think that part of the disconnect between our positions is due to a particular aspect of the American understanding of free speech, that's sort of different to how it's understood virtually everywhere else. Under most systems, including the international example I just cited, virtually everything is classed as "speech", and then there's a balancing as to whether particular restrictions are justified. But because of the absolutist way the US Constitution is phrased ("Congress shall make no law"), the Courts have had to go through some unusual legal gymnastics to find that speech that they feel justified restricting isn't actually speech.
Simply reading the excerpt from Gibson v. Texas in my prior email shows that this "speech/not speech" analysis is incorrect. Gibson, and the cases cited in it, distinguish between protected speech and speech that that is "not to be protected." Specifically, Gibson mentions that "courts have held that domain names that use trademarks to misidentify the source of a product are outside the reach of the First Amendment" and also cites a line of cases where "the domain name was actually held not to be protected speech because it was not expressive, not because it was misleading." More broadly, the idea that the US approach to free speech is anomalous is incorrect. Of course, free speech regimes vary broadly throughout the world -- so there's no such thing as a single "understanding of free speech... virtually everywhere else" aside from the US. Unfortunately, there are many places in the world where there is no understanding of free speech at all.) If the US approach to free speech tends to be different, it is in a greater tolerance for controversial and offensive speech (what John Levine calls "the absolutist U.S. first amendment approach"). This is why US law doesn't find it so easy to restrict alleged "hate speech" as "virtually everywhere else", and also why I can't be so comfortable in finding "no conflict" between free speech and restricting hate speech. (And I say this as a member of a group that is finding itself increasingly on the wrong end of both offensive speech and hate speech.)
So, without trying to belabour these issues, my point in the above is not to try and invalidate the trademark protection system - indeed, Greg's quite right to point out that trademarks are also speech. My point here is simply to try and demonstrate that there are free speech issues at play.
It's clear that this is false as a general statement, unless this is meant as a statement that could possibly true in a large enough sample, like "people are 7 feet tall". Whether one looks at Ballantyne or Gibson, one sees clear distinctions being drawn being "subjective ideas and opinions" and speech that is "not expressive" or "inherently misleading." This is probably a good time to note that the UDHR and the ICCPR both refer to "freedom of expression" and not to "free speech." So, it would be more proper to discuss whether "expressive speech" is at issue, not whether the over-broad "virtually anything that conveys meaning" is at issue, before we even get to the question of whether free speech issues are at play, to what extent, and how that might affect any discussion that is relevant to this Working Group.
To me, that's not a controversial point - and if we can agree on that,
I don't think we can agree on that, and certainly not as an assumed agreement from which one can proceed blithely on. Rather, I think that is an elemental aspect of the discussion, and as noted above, at best "controversial" and possibly sometimes true, and at worst false (at least as a general statement).
As an aside, it's worth noting what Article 19 of the ICCPR actually protects: "the right to hold opinions without interference" and "the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." I admit to struggling to find instances where the right to hold opinions or to express oneself freely is truly being violated in this context -- especially in a world where holding or expressing an opinion can come under threat of oppression, suppression, violence, imprisonment or worse. As someone who strongly supports First Amendment rights and who has worked on litigation defending First Amendment freedoms, I wonder whether this discussion trivializes free speech concerns rather than promoting them. That is not to dismiss the possibility of free speech concerns here, but just to say that, to the extent there is a viable point here, it pales in comparison to the significant freedom of expression concerns elsewhere (including elsewhere on the Internet, where access to websites with undesirable opinions or expression, or even to the Internet as a whole, is under escalating attack).
then that is relevant to the transparency question, since in my mind it bolsters arguments for why openness in the system is important.
I don't get the logical leaps here, from the possibility of a free speech issue, to the claimed relevance to the transparency question, to the even more attenuated idea that this bolsters arguments regarding changing access rules for the TMCH. In other words, I don't really think that any of this changes the discussion on TMCH database access, nor do I really think it is relevant to any of the work we are undertaking right now. That is not to say that this is an uninteresting discussion (or else I would not have engaged in it), just that it is a rabbit hole in relation to our work.
Best,
Michael
On Fri, Apr 7, 2017 at 2:19 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
It's important to keep in mind that the rights set forth in the UDHR are interrelated and interdependent, so understanding the applicability of any one Article also requires understanding the applicability of the other rights in the UDHR, including some which may be countervailing to others. Looking at Article 19 in isolation is "cherrypicking." A recent CircleID article by John Levine is quite enlightening on this very point:
http://www.circleid.com/posts/20170401_human_rights_and_regular_internet_use...
The article is short, but for those who don't get there, this quote goes to the heart of the matter: "it devalues the whole topic of human rights to pay attention only to a few fashionable rights, while ignoring ones that are at least as important in people's daily lives."
(It should also be noted that the UDHR, while adopted by the United Nations and widely used, does not constitute some form of "universal law" nor is it universally accepted.)
The case mentioned, Gibson v. Texas, has portions that are directly applicable to the discussion at hand. However, the Gibson decision actually distinguishes cases involving trademarks from the situation in that case. As a matter of fact, the Gibson case tells us that there are at least two types of domain names that do not constitute speech protected by the First Amendment: domain names that infringe trademarks, and domain names that do not constitute "expressive speech."
(In other words, there can be no "freedom of expression" issue when the speech is not expressive.)
Before getting to an excerpt from the case, it's important to note that the court did not find that domain names are speech, much less find that domain names are speech protected by the First Amendment. The court made no findings about all domain names. Rather, the court assumed, for the purpose of considering a motion to dismiss, that the domain name in question (texasworkerscomplaw.com) constituted commercial speech. It's also important to note that the case involved the Constitutionality of a law that broadly prohibited the use of the terms "Texas" and "workers comp," and not a trademark infringement matter.
The excerpt is quite instructive:
In order for speech to fall outside of the First Amendment’s protection, the speech must either be “inherently likely to deceive,” or “the record [must] indicate[] that a particular form or method of advertising has in fact been deceptive.” R.M.J., 455 U.S. at 202.
Appellees primarily argue that the Texas statute is constitutional because Gibson’s domain name amounts to inherently misleading speech. In support of this proposition, they cite to a series of cases in which courts have held that domain names that use trademarks to misidentify the source of a product are outside the reach of the First Amendment. The case law cited by Appellees, however, is unique to the field of trademark infringement, see, e.g., Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and does not necessarily extend to a case such as this one, where Texas is prohibiting Gibson from using words that are otherwise in the public domain.[1] Cases involving trademark infringement involve inherently deceptive speech because they contain a significant risk that an infringing party will freeload on the goodwill that has been created by the original trademark. See Friedman, 440 U.S. at 11-16. No such risk is present here. Texas has made no showing that its own talents and energy contributed to the creation of any goodwill in the name “texasworkerscomplaw.com.” See San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533-34 (1987). Instead the regulation at issue is forward-thinking; intended to prohibit confusion for individuals seeking information from the government agency. It is not retrospective in the same way as most trademark litigation, which is generally intended to preserve the reputation that has been built upon a trade name. See Friedman, 440 U.S. at 11-16. Accordingly, the case law cited by Appellees is inapposite.
________________________________
[1] In most of the cases cited by Appellees the domain name was actually held not to be protected speech because it was not expressive, not because it was misleading. See, e.g., Planned Parenthood Fed’n of Am. v. Bucci, No. 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997); Morrison & Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D. Colo. 2000); Jews for Jesus v. Brodsky, 993 F.Supp. 282, 286 n.1 (D.N.J. 1998). Here, in contrast, Gibson’s domain name is expressive because it does more than simply mimic the state agency’s website or identify a source of Texas Workers’ Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11. The domain name is intended to direct visitors to a forum for discussing workers’ compensation laws and their potential reform, as well as to convey to visitors the message of Gibson’s website as a whole. Accordingly, in the context of this case, the domain name is “‘sufficiently imbued with the elements of communication’” to place it in the realm of expressive speech. Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. 2000) (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)).
Greg Shatan
Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com
On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas <mkaranicolas@gmail.com> wrote: > > 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: > > http://www.law-democracy.org/live/wp-content/uploads/2015/02/foe-briefingnot... > > Or if you want to go into a little more depth, you can check out this > one: > http://www.law-democracy.org/live/wp-content/uploads/2012/08/Paper-on-Restri... > > 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: >> >> http://www.un.org/en/universal-declaration-human-rights/ >> http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx >> >> 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww. >>>> >>>> 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://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.l >>>> >>>> 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://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww >>>>>> >>>>>> .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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm >>>>>> >>>>>> .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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.i >>>> >>>> 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
_______________________________________________ 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. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
________________________________
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
I don't think Georges was arguing that "hotel, cloud and smart are not common words." I'll assume you knew that and you were making that statement for rhetorical effect. The fact that that some trademarks are words, and that some words are common, is hardly news. The relevance or value of these facts is a different question. What do you think "hotel" "cloud" and "smart" being in the TMCH and being in the top 10 matches is "evidence" of? What makes it "worth investigating"? If someone wants to talk about hotels, clouds or something smart, they can do so using those exact words if not registered during Sunrise by one of the trademark owners. And if those exact match strings are not available, they can choose from a slew of variations. Either way, their ability to talk about hotels, clouds or something smart on a website or in emails will be unhindered. Perhaps, you are arguing that merely saying "clouds" or "smart" is talking about "clouds, or something smart," and thus that being unable to register clouds.gtld because someone else got there first is an abridgement of their right of free speech. I don't see that the inability to register a single word raises a freedom of expression issue. In any event, only one entity can register a given domain name, so there are a lot of entities whose rights are abridged every time a domain name is registered. Of course, there is a period in human development where probably all that an infant can say about "clouds" is "Clouds!" or about something smart is "Smart!" But that seems to be a rather slender basis, at best, to claim that clouds.gtld is [protectable] speech. Perhaps there's another argument, but I can't think of it offhand. Finally, it occurs to me that if this is a free speech issue, concerns should not be limited to this discussion. Drop-catching and other forms of automated methods of quickly registering domain names before the typical "hand-registering" potential registrant can get there would seem to raise similar issues, except that the drop-catcher has no legitimate rights in the domain name. Just food for thought..... Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com On Sun, Apr 9, 2017 at 9:33 PM, Rebecca Tushnet < Rebecca.Tushnet@law.georgetown.edu> wrote:
So your argument is that the top ten matches in the audit report such as hotel, cloud, and smart are not common words? If that is not evidence worth investigating, you need to explain why. And even if other common words like zebra, dog, and fight remain unregistered, that doesn't really help someone who wants to talk about hotels, clouds, or something smart. Rebecca Tushnet Georgetown Law 703 593 6759
On Sun, Apr 9, 2017 at 6:57 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
It would help fairly easily. First, registration in the TMCH does not mean in and of itself there is an abuse. Second, the whole straw man argument with no evidence is that brand owners are somehow overreaching and grabbing all common word domain names in the new extensions. Clearly, if brand owners are not the majority owners of common word domain names in the new extensions, then the whole house of cards argument that brand owners are taking advantage of the system falls apart. Third, you could easily tell in many instances whether a sunrise registration occurred. We know all of the sunrise dates, and whois for the most part show a date of creation. So if you wanted to cross reference you could easily see if a name was registered during a sunrise period. Fourth, what you will likely find from all this is that most common word domain in the new extensions are not registered to brand owners. If it turns out a majority are registered by domainers or speculators would we then go down the path of figuring out how that happened.
Original Message From: Rebecca Tushnet Sent: Sunday, April 9, 2017 4:38 PM To: Nahitchevansky, Georges Cc: Paul Keating; Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
How would this exercise indicate whether such registrations occurred with a TMCH claim or in spite of one, or neither? And aren't the top ten in the audit report also valuable?
Sent from my phone. Apologies for terseness/typos.
On Apr 9, 2017, at 4:03 PM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Again, I have to ask where is the evidence of widespread abuse. It seems like the whole argument is on the basis of some strawman argument that brand owners are using the TMCH to take common words out of circulation. I have yet to see anything that even remotely proves or suggests this in fact has occurred. Moreover, the idea that you have to see the TMCH data is a bit of a fishing expedition and will not establish that widespread abuse occurred (e.g., if Delta was registered by Delta Airlines in the TMCH it does in and of itself suggest an abuse of the system). What seems to be happening is that folks are positing a position with little to no evidence, then saying they need the data and making everybody spends gobs of time on issues that have previously been debated, esoteric concepts of human rights, natural justice, free speech and god knows what else. Perhaps, instead of throwing out arguments there should be an effort to gather some real evidence for discussion. If we all decide to continue down this path then perhaps one simple idea would be to take a list of common words that could be perceived as being valuable such as business, music, car, travel, sex, money, ski, football, food, boat, truck, website, online etc and cross reference these words with the new gTld registrations to get some sense of who owns these domain names. Once there is some real data, then we can evaluate who owns most of these ( domainers, brand owners, speculators, industry groups etc.). This would not be a difficult exercise to do. Instead of multiple email chains, folks could take on one or two words from a compiled list and conduct this investigation using whois.
Original Message From: Paul Keating Sent: Sunday, April 9, 2017 3:31 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
I see clear speech issues as well. It is not possible to formulate a position that no domain name represents an expression of speech.
Nor is it sufficient to ignore this issue because there are other forums available to channel the desired expression.
The goal here is not to protect the obvious but rather to protect the speech that is possible but not yet obvious.
So this is not a rabbit hole. The TMCH was developed based upon an assumption that it would not be abused and would not unreasonably infringe upon speech. We must determine if abuse has occurred. The contents of the TMCH database is very much relevant. If we are to be denied information relevant to the database we must assume the worst. For if the IP crowd wants us to believe - there is no problem, - it is encumbrance upon then to prove it, Freedoms of speech is simply too important to ignore.
For if you take away all of my rights save the freedom of speech I will quickly recover those rights lost......Jefferson.
Sent from my iPad
On 9 Apr 2017, at 19:08, Rebecca Tushnet <Rebecca.Tushnet@law. georgetown.edu> wrote:
Following up on my post from yesterday, let's make this more specific: I see clear free speech issues that can arise from an attempt to register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X, nyc.x and the like. Those along with forex, hotel, one, london, and abc, are the top ten downloads from the TMCH. Of course, as Michael K. indicates, we'd know more about how many dictionary terms are beingdom blocked if there were more transparency, but what we do know right now should be concerning. Rebecca Tushnet Georgetown Law 703 593 6759
On Sun, Apr 9, 2017 at 12:51 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: My responses are in-line.
G reg
On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas < mkaranicolas@gmail.com> wrote:
Hi,
I think that Michael Graham brings up a salient point in terms of
falling
too far down the rabbit hole on background matters, but I should address a few issues in response to questions that were directly asked of me.
First off, while Greg is correct to point out that the UDHR is not formally legally binding as a UNGA resolution, it is (quite literally) the textbook example of customary international law. I realize that can be a fuzzy concept to rely on, but luckily I don't have to rely on it because the freedom of expression protections in the UDHR are substantially identical to those found in the ICCPR, which IS a formally binding treaty.
Binding on states. Of course, ICANN is not a state. Luckily, we have the new human rights Core Value in the ICANN Bylaws, Section 1.2(b)(viii), which states that one of ICANN's eight Core Values (which must be subject to a balancing analysis involving all Core Values). is "within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law." The Bylaw specifically notes that "This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law." As such, ICANN's obligations do not go beyond what would otherwise be required by applicable law. There's been a great deal of discussion of this in CCWG-Accountability WS1 and in the Human Rights Subgroup of WS2, so I won't go further into the concepts here, which would be a rabbit hole down a rabbit hole from the viewpoint of this group.
Also, while I appreciate Greg's caution against "cherrypicking" by
viewing
Article 19 in isolation, in this context that argument is just a smokescreen.
Concerns about cherrypicking are in no way a "smokescreen" -- unless the reference is to the saying "where there's smoke, there's fire." John Levine's blog nicely expressed a number of concerns about such cherrypicking, especially for what he calls the "fashionable human rights," so I won't repeat them here. It is important to keep in mind, as Michael notes, that "human rights are fundamentally about balance," so perhaps we are not so far apart, as "balance" and "cherrypicking" are mutually exclusive concepts.
Of course the UDHR and ICCPR need to be viewed holistically - that understanding in no way supports an argument that domains are not speech.
I'm puzzled by the second part of this sentence. I think this point is unrelated to the issue of whether or not domain names are speech, so it neither supports nor negates any argument on that topic.
There's no conflict between believing in personal privacy as protected by the ICCPR (as I do), and believing in the need to combat hate speech as spelled out in the ICCPR (as I do), and believing in freedom of expression. Human rights are fundamentally about balance (more on that in a second).
There are certainly conflicts (e.g., between combating hate speech and supporting free speech); the issue is how to balance these countervailing issues to resolve these conflicts.
With regard to Ballantyne, Davidson & McIntyre, I probably should
have
been more specific in my original post. Of course, as Greg notes, the case is not specifically about domain names - which would be a pretty niche area for the Human Rights Committee to dig into. But the decision contains the clearest statement of the extent of what constitutes "speech" under the ICCPR, namely that Article 19: "must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others". It's an incredibly broad formulation - to cover virtually anything that conveys meaning. I, personally, can't see an interpretation of that that doesn't include domain names.
This is not really that broad a formulation -- it dovetails nicely with the concept of "expressive speech" under US law (as in the excerpt from Gibson). Furthermore, there is a considerable difference between the speech constituting "subjective ideas and opinions" protected in Ballantyne and the "incredibly broad formulation" that would elevate "virtually anything that conveys meaning." "Subjective ideas and opinions" in no way embraces domain names per se; whether and to what extent it embraces domain names is certainly not a question answered in Ballantyne.
With regard to Gibson v. Texas - I don't want to dig too deeply into
this
because, honestly, US law is not my specialisation. But I think that part of the disconnect between our positions is due to a particular aspect of the American understanding of free speech, that's sort of different to how it's understood virtually everywhere else. Under most systems, including the international example I just cited, virtually everything is classed as "speech", and then there's a balancing as to whether particular restrictions are justified. But because of the absolutist way the US Constitution is phrased ("Congress shall make no law"), the Courts have had to go through some unusual legal gymnastics to find that speech that they feel justified restricting isn't actually speech.
Simply reading the excerpt from Gibson v. Texas in my prior email shows that this "speech/not speech" analysis is incorrect. Gibson, and the cases cited in it, distinguish between protected speech and speech that that is "not to be protected." Specifically, Gibson mentions that "courts have held that domain names that use trademarks to misidentify the source of a product are outside the reach of the First Amendment" and also cites a line of cases where "the domain name was actually held not to be protected speech because it was not expressive, not because it was misleading." More broadly, the idea that the US approach to free speech is anomalous is incorrect. Of course, free speech regimes vary broadly throughout the world -- so there's no such thing as a single "understanding of free speech... virtually everywhere else" aside from the US. Unfortunately, there are many places in the world where there is no understanding of free speech at all.) If the US approach to free speech tends to be different, it is in a greater tolerance for controversial and offensive speech (what John Levine calls "the absolutist U.S. first amendment approach"). This is why US law doesn't find it so easy to restrict alleged "hate speech" as "virtually everywhere else", and also why I can't be so comfortable in finding "no conflict" between free speech and restricting hate speech. (And I say this as a member of a group that is finding itself increasingly on the wrong end of both offensive speech and hate speech.)
So, without trying to belabour these issues, my point in the above
is not
to try and invalidate the trademark protection system - indeed, Greg's quite right to point out that trademarks are also speech. My point here is simply to try and demonstrate that there are free speech issues at play.
It's clear that this is false as a general statement, unless this is meant as a statement that could possibly true in a large enough sample, like "people are 7 feet tall". Whether one looks at Ballantyne or Gibson, one sees clear distinctions being drawn being "subjective ideas and opinions" and speech that is "not expressive" or "inherently misleading." This is probably a good time to note that the UDHR and the ICCPR both refer to "freedom of expression" and not to "free speech." So, it would be more proper to discuss whether "expressive speech" is at issue, not whether the over-broad "virtually anything that conveys meaning" is at issue, before we even get to the question of whether free speech issues are at play, to what extent, and how that might affect any discussion that is relevant to this Working Group.
To me, that's not a controversial point - and if we can agree on
that,
I don't think we can agree on that, and certainly not as an assumed agreement from which one can proceed blithely on. Rather, I think that is an elemental aspect of the discussion, and as noted above, at best "controversial" and possibly sometimes true, and at worst false (at least as a general statement).
As an aside, it's worth noting what Article 19 of the ICCPR actually protects: "the right to hold opinions without interference" and "the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." I admit to struggling to find instances where the right to hold opinions or to express oneself freely is truly being violated in this context -- especially in a world where holding or expressing an opinion can come under threat of oppression, suppression, violence, imprisonment or worse. As someone who strongly supports First Amendment rights and who has worked on litigation defending First Amendment freedoms, I wonder whether this discussion trivializes free speech concerns rather than promoting them. That is not to dismiss the possibility of free speech concerns here, but just to say that, to the extent there is a viable point here, it pales in comparison to the significant freedom of expression concerns elsewhere (including elsewhere on the Internet, where access to websites with undesirable opinions or expression, or even to the Internet as a whole, is under escalating attack).
then that is relevant to the transparency question, since in my mind
it
bolsters arguments for why openness in the system is important.
I don't get the logical leaps here, from the possibility of a free speech issue, to the claimed relevance to the transparency question, to the even more attenuated idea that this bolsters arguments regarding changing access rules for the TMCH. In other words, I don't really think that any of this changes the discussion on TMCH database access, nor do I really think it is relevant to any of the work we are undertaking right now. That is not to say that this is an uninteresting discussion (or else I would not have engaged in it), just that it is a rabbit hole in relation to our work.
Best,
Michael
On Fri, Apr 7, 2017 at 2:19 AM, Greg Shatan <gregshatanipc@gmail.com
wrote: > > It's important to keep in mind that the rights set forth in the UDHR are > interrelated and interdependent, so understanding the applicability of any > one Article also requires understanding the applicability of the other > rights in the UDHR, including some which may be countervailing to others. > Looking at Article 19 in isolation is "cherrypicking." A recent CircleID > article by John Levine is quite enlightening on this very point: > > http://www.circleid.com/posts/20170401_human_rights_and_ regular_internet_users/ > > The article is short, but for those who don't get there, this quote goes > to the heart of the matter: "it devalues the whole topic of human rights to > pay attention only to a few fashionable rights, while ignoring ones that are > at least as important in people's daily lives." > > (It should also be noted that the UDHR, while adopted by the United > Nations and widely used, does not constitute some form of "universal law" > nor is it universally accepted.) > > The case mentioned, Gibson v. Texas, has portions that are directly > applicable to the discussion at hand. However, the Gibson decision actually > distinguishes cases involving trademarks from the situation in that case. > As a matter of fact, the Gibson case tells us that there are at least two > types of domain names that do not constitute speech protected by the First > Amendment: domain names that infringe trademarks, and domain names that do > not constitute "expressive speech." > > (In other words, there can be no "freedom of expression" issue when the > speech is not expressive.) > > Before getting to an excerpt from the case, it's important to note that > the court did not find that domain names are speech, much less find that > domain names are speech protected by the First Amendment. The court made no > findings about all domain names. Rather, the court assumed, for the purpose > of considering a motion to dismiss, that the domain name in question > (texasworkerscomplaw.com) constituted commercial speech. It's also > important to note that the case involved the Constitutionality of a law that > broadly prohibited the use of the terms "Texas" and "workers comp," and not > a trademark infringement matter. > > The excerpt is quite instructive: > > > In order for speech to fall outside of the First Amendment’s protection, > the speech must either be “inherently likely to deceive,” or “the record > [must] indicate[] that a particular form or method of advertising has in > fact been deceptive.” R.M.J., 455 U.S. at 202. > > > Appellees primarily argue that the Texas statute is constitutional > because Gibson’s domain name amounts to inherently misleading speech. In > support of this proposition, they cite to a series of cases in which courts > have held that domain names that use trademarks to misidentify the source of > a product are outside the reach of the First Amendment. The case law cited > by Appellees, however, is unique to the field of trademark infringement, > see, e.g., Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and does > not necessarily extend to a case such as this one, where Texas is > prohibiting Gibson from using words that are otherwise in the public > domain.[1] Cases involving trademark infringement involve inherently > deceptive speech because they contain a significant risk that an infringing > party will freeload on the goodwill that has been created by the original > trademark. See Friedman, 440 U.S. at 11-16. No such risk is present here. > Texas has made no showing that its own talents and energy contributed to the > creation of any goodwill in the name “texasworkerscomplaw.com.” See San > Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533-34 > (1987). Instead the regulation at issue is forward-thinking; intended to > prohibit confusion for individuals seeking information from the government > agency. It is not retrospective in the same way as most trademark > litigation, which is generally intended to preserve the reputation that has > been built upon a trade name. See Friedman, 440 U.S. at 11-16. Accordingly, > the case law cited by Appellees is inapposite. > > > ________________________________ > > [1] In most of the cases cited by Appellees the domain name was actually > held not to be protected speech because it was not expressive, not because > it was misleading. See, e.g., Planned Parenthood Fed’n of Am. v. Bucci, No. > 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997); Morrison & > Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D. Colo. 2000); Jews for > Jesus v. Brodsky, 993 F.Supp. 282, 286 n.1 (D.N.J. 1998). Here, in contrast, > Gibson’s domain name is expressive because it does more than simply mimic > the state agency’s website or identify a source of Texas Workers’ > Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11. The domain > name is intended to direct visitors to a forum for discussing workers’ > compensation laws and their potential reform, as well as to convey to > visitors the message of Gibson’s website as a whole. Accordingly, in the > context of this case, the domain name is “‘sufficiently imbued with the > elements of communication’” to place it in the realm of expressive speech. > Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. > 2000) (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)). > > Greg Shatan > > > Greg Shatan > C: 917-816-6428 > S: gsshatan > Phone-to-Skype: 646-845-9428 > gregshatanipc@gmail.com > > > On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas > <mkaranicolas@gmail.com> wrote: >> >> 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: >> >> http://www.law-democracy.org/live/wp-content/uploads/2015/ 02/foe-briefingnotes-2.pdf >> >> Or if you want to go into a little more depth, you can check out this >> one: >> http://www.law-democracy.org/live/wp-content/uploads/2012/ 08/Paper-on-Restrictions.10.03.22.rev_.pdf >> >> 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: >>> >>> http://www.un.org/en/universal-declaration-human-rights/ >>> http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx >>> >>> 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://na01.safelinks.protection.outlook.com/?url= https%3A%2F%2Fwww. >>>>> >>>>> law.cornell.edu%2Fwex%2Fprior_restraint&data=02%7C01%7C% 7C811dc6e8437 >>>>> >>>>> 245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178de cee1%7C0%7C0%7C63 >>>>> >>>>> 6270794483518369&sdata=IyEiG%2FsY%2BTgJkYPGzDiGtCEbfBWA4SVgJ4g% 2FOWfC >>>>> H7s%3D&reserved=0 >>>>> >>>>> Sincerely, >>>>> >>>>> George Kirikos >>>>> 416-588-0269 >>>>> >>>>> https://na01.safelinks.protection.outlook.com/?url= http%3A%2F%2Fwww.l >>>>> >>>>> eap.com%2F&data=02%7C01%7C%7C811dc6e8437245583fce08d47cea 9d30%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://na01.safelinks.protection.outlook.com/?url= http%3A%2F%2Fwww >>>>>>> >>>>>>> .leap.com%2F&data=02%7C01%7C%7C2b7c1e08334543cacbff08d47ce4 6e63%7Cf >>>>>>> >>>>>>> a7b1b5a7b34438794aed2c178decee1%7C0%7C0% 7C636270767931993418&sdata= >>>>>>> 6px9twhTFpg2YYaKWPoClt%2FQGQKnakm1jerYcSj%2F2w0%3D&reserved=0 >>>>>>> _______________________________________________ >>>>>>> gnso-rpm-wg mailing list >>>>>>> gnso-rpm-wg@icann.org >>>>>>> >>>>>>> https://na01.safelinks.protection.outlook.com/?url= https%3A%2F%2Fmm >>>>>>> >>>>>>> .icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data= 02%7C01%7C%7C2b7 >>>>>>> >>>>>>> c1e08334543cacbff08d47ce46e63%7Cfa7b1b5a7b34438794aed2c178de cee1%7C >>>>>>> >>>>>>> 0%7C0%7C636270767931993418&sdata=jZh3dzb5ycHMZLxsR4ZLmQdR% 2B2kWcBkF >>>>>>> D%2Fj6BAXDjiI%3D&reserved=0 >>>>> _______________________________________________ >>>>> gnso-rpm-wg mailing list >>>>> gnso-rpm-wg@icann.org >>>>> >>>>> https://na01.safelinks.protection.outlook.com/?url= https%3A%2F%2Fmm.i >>>>> >>>>> cann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C% 7C811dc6e >>>>> >>>>> 8437245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178de cee1%7C0%7C0% >>>>> >>>>> 7C636270794483518369&sdata=mJrIOSHwtTJCADlJ8m6UiUx7baKNfo XhIpZQh1s99f >>>>> 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 > >
_______________________________________________ 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. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
________________________________
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
participants (4)
-
Greg Shatan -
J. Scott Evans -
Nahitchevansky, Georges -
Rebecca Tushnet