[gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

[J. Scott Evans]

No. Paul. You misinterpret our role on this WG. Our role is to review the existing RPM's a determine if they are functioning as designed and desired. For us to recommend a change, we need to have demonstrated proof that the RPM is not functioning as designed or desired. We do not assume harm just because a group of vocal proponents believes there is harm without demonstrating it be producing evidence of harm.

Sent from my iPhone

> On Apr 9, 2017, at 12:31 PM, Paul Keating <paul at law.es> wrote:
> 
> 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 at 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 at gmail.com> wrote:
>>> My responses are in-line.
>>> 
>>> G
>>> reg
>>> 
>>> 
>>> On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas <mkaranicolas at 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 at 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.com%2Fposts%2F20170401_human_rights_and_regular_internet_users%2F&data=02%7C01%7C%7C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636273630935943189&sdata=6qWZwyRCAD304b1Cjsxqu4lmhk2Iw%2FohGux5waII%2BN0%3D&reserved=0
>>>>> 
>>>>> 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 at gmail.com
>>>>> 
>>>>> 
>>>>> On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas
>>>>> <mkaranicolas at 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-democracy.org%2Flive%2Fwp-content%2Fuploads%2F2015%2F02%2Ffoe-briefingnotes-2.pdf&data=02%7C01%7C%7C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C1%7C636273630935953197&sdata=iibWIOUarmHu8u3nYw1DeYDtN9xNifENvlfw4uNCb0c%3D&reserved=0
>>>>>> 
>>>>>> 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-democracy.org%2Flive%2Fwp-content%2Fuploads%2F2012%2F08%2FPaper-on-Restrictions.10.03.22.rev_.pdf&data=02%7C01%7C%7C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C1%7C636273630935953197&sdata=lOr2IonxpavnfDnwQ%2Bj3PARbkkw0MGVyfCxIStBYVpU%3D&reserved=0
>>>>>> 
>>>>>> 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 at 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 at icann.org
>>>>>>> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Michael Karanicolas
>>>>>>> Sent: Thursday, April 06, 2017 5:53 AM
>>>>>>> To: J. Scott Evans <jsevans at adobe.com>
>>>>>>> Cc: gnso-rpm-wg at 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%2Fen%2Funiversal-declaration-human-rights%2F&data=02%7C01%7C%7C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636273630935953197&sdata=vobvPy0220fGdgRKPMJWjL0%2FjAHrMa%2FX1bPNa2dCbcY%3D&reserved=0
>>>>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.ohchr.org%2FEN%2FProfessionalInterest%2FPages%2FCCPR.aspx&data=02%7C01%7C%7C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636273630935953197&sdata=9SsjyoBo7nNUNsLjYOExngiTPOSOfFK6N4ODT0kS4Kg%3D&reserved=0
>>>>>>> 
>>>>>>> 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 at 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 at 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 at 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 at leap.com> wrote:
>>>>>>>>>>> 
>>>>>>>>>>> Hi folks,
>>>>>>>>>>> 
>>>>>>>>>>>> On Thu, Apr 6, 2017 at 4:19 AM, Beckham, Brian
>>>>>>>>>>>> <brian.beckham at 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
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>>>>> 
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>>>> 
>>> 
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