[gnso-rpm-wg] "free speech"

Paul Keating Paul at law.es
Thu Sep 29 15:46:46 UTC 2016

The term ³free speech² itself is a false deity.  It is all about the
protections afforded to speech.  While some jurisdictions may go further
than others I think taking J. Scott¹s comment to mean ³speech is not
protected² would be a misrepresentation of the situation.

Aside from ³free speech² there is the closely related concept of fair use.

And, finally, of course, trademark protection is limited in scope.  It does
not act to preclude use of the identical indicator for unrelated
goods/services or for purposes which are generic (meaning the thing or its
essence) or descriptive (use in describing the thing).

I think it would serve us best to keep in mind the distinctions.

Paul Keating

From:  <gnso-rpm-wg-bounces at icann.org> on behalf of Rebecca Tushnet
<rlt26 at law.georgetown.edu>
Date:  Thursday, September 29, 2016 at 5:31 PM
To:  Paul McGrady <policy at paulmcgrady.com>
Cc:  "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
Subject:  Re: [gnso-rpm-wg] "free speech"

> That was the misstatement.  ³Most nations don¹t have a US-style First
> Amendment² would have been true.
> Rebecca Tushnet
> Georgetown Law
> 703 593 6759
> From: Paul McGrady [mailto:policy at paulmcgrady.com]
> Sent: Thursday, September 29, 2016 11:29 AM
> To: Rebecca Tushnet
> Cc: gnso-rpm-wg at icann.org
> Subject: RE: [gnso-rpm-wg] "free speech"
> 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 ³very few
> jurisdictions in the world have free speech.²  I didn¹t see anyone who said
> ³Most nations don¹t have a US-style First Amendment.²  In fact, I didn¹t see a
> single reference to the First Amendment in the transcript.
> Regards,
> Paul
> 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 don¹t 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
> <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 doesn¹t 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 don¹t 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/
> <http://www.un.org/en/universal-declaration-human-rights/> , but I doubt we
> want to make policy based on the countries that don¹t recognize any freedom of
> speech at all.
> Also, you can¹t 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 can¹t 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 we¹ve 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 wouldn¹t infringe).
> Rebecca Tushnet
> Georgetown Law
> 703 593 6759
> _______________________________________________ gnso-rpm-wg mailing list
> gnso-rpm-wg at icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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