[gnso-rpm-wg] "free speech"

Paul McGrady policy at paulmcgrady.com
Thu Sep 29 15:29:02 UTC 2016

Hi Rebecca,


What was the misstatement you are trying to correct?  The most related
statement that I could find in the Transcript was J. Scott who said "very
few jurisdictions in the world have free speech."  I didn't see anyone who
said "Most nations don't have a US-style First Amendment."  In fact, I
didn't see a single reference to the First Amendment in the transcript.






Paul D. McGrady, Jr.

policy at paulmcgrady.com




From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org]
On Behalf Of Rebecca Tushnet
Sent: Wednesday, September 28, 2016 12:35 PM
Cc: gnso-rpm-wg at icann.org
Subject: [gnso-rpm-wg] "free speech"


Just to correct a misstatement on the call earlier:  Most nations don't have
a US-style First Amendment.  Most nations with a rule of law do, however,
recognize freedom of speech in some form, including the right to criticize
private companies.  As this Wikipedia entry notes,
https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation
can be inconsistent on the ground, but I expect that inconsistent
enforcement of trademark rights on the ground doesn't mean that trademark
owners want ICANN to ignore the law on the books; freedom of speech is
equally a principle worth honoring.  In addition, I don't know how many
countries whose nationals participate in the ICANN process have signed on to
the Universal Declaration of Human Rights, which includes freedom of speech,
http://www.un.org/en/universal-declaration-human-rights/, but I doubt we
want to make policy based on the countries that don't recognize any freedom
of speech at all.


Also, you can't have it both ways: if domain names can facilitate
infringement, which they absolutely can, then they convey meaning; if they
convey meaning, they can also facilitate noninfringing conduct or
affirmatively protected freedom of speech.  It is just as true, or untrue,
that a trademark owner can register a different string if it can't have the
one that it wants as it is that a person making fair or otherwise
noninfringing use can do so.  This is especially so if we've given trademark
owners the ability to jump the line in many circumstances.  Freedom of
speech principles may help tell us when preclusion of a domain name to a
speaker-whether a trademark owner or a non-owner-is of particular
importance.  That is, they can help us identify the important false
positives (notifications generated in response to domain names that wouldn't


Rebecca Tushnet

Georgetown Law

703 593 6759 


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