[gnso-rpm-wg] "free speech"

Thu Sep 29 16:54:59 UTC 2016

I doubt I have the power to chill J. Scott's speech, but ok.  I disagree with your characterization, however, and I think the conversation with J. Scott speaks for itself.  If you would like to take a look at the materials I have already cited and find countries that formally recognize freedom of speech that you don't think count because of reality on the ground, we can debate specifics, but then I reserve the right to argue that those countries don't really have trademark law either.

Rebecca Tushnet
Georgetown Law
703 593 6759

From: Paul McGrady [mailto:policy at paulmcgrady.com]
Sent: Thursday, September 29, 2016 12:30 PM
To: Rebecca Tushnet
Cc: gnso-rpm-wg at icann.org
Subject: RE: [gnso-rpm-wg] "free speech"

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<mailto:policy at paulmcgrady.com>>
Cc: gnso-rpm-wg at icann.org<mailto: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, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn't mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring.  In addition, I don't know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don't recognize any freedom of speech at all.

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

Rebecca Tushnet
Georgetown Law
703 593 6759

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