[gnso-rpm-wg] "free speech"

[Paul McGrady]

Thanks for the clarification Rebecca.  When stated like this (Just to
correct a misstatement on the call earlier:  Most nations don't have a
US-style First Amendment.) it left me confused, since no one claimed they
did.  

 

As to your conclusion "Most nations with a rule of law do, however,
recognize freedom of speech in some form, including the right to criticize
private companies" that is a statement that is not the reverse of what J.
Scott said.  In fact, the inclusion "with a rule of law" without defining
what that means or identifying which countries have "a rule of law"
significantly distinguishes your argument from J. Scotts.  

 

I know it seems I am getting into the weeds here, but if we are going to be
characterizing each other's speech in the WG as "misstatement", I think that
calls for a level of clarity in the criticism.  Otherwise, if we have to be
worried about being called out for misstatements we didn't actually make,
our speech in our calls could be, ironically, chilled.  

 

Best,

Paul

 

 

From: Rebecca Tushnet [mailto:rlt26 at law.georgetown.edu] 
Sent: Thursday, September 29, 2016 10:31 AM
To: Paul McGrady <policy at paulmcgrady.com>
Cc: gnso-rpm-wg at icann.org
Subject: RE: [gnso-rpm-wg] "free speech"

 

That was the misstatement.  "Most nations don't have a US-style First
Amendment" 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 <mailto: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 "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.

 

Regards,

Paul

 

 

Paul D. McGrady, Jr.

policy at paulmcgrady.com <mailto:policy at paulmcgrady.com> 

 

 

 

From: gnso-rpm-wg-bounces at icann.org <mailto: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 <mailto: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>
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/>
http://www.un.org/en/universal-declaration-human-rights/, but I doubt we
want to make policy based on the countries that don't recognize any freedom
of speech at all.

 

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

 

Rebecca Tushnet

Georgetown Law

703 593 6759 

 

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