[gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Michael Graham (ELCA)
migraham at expedia.com
Mon Apr 10 18:28:51 UTC 2017
+1.
The statement "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" is argumentative. There can be no proof of a negative general assertion. On the other hand, assertions that the TMCH has a negative impact on the rights of free speech and/or free expression of non-trademark owners must be supported by some empirical evidence -- else how could they be made other than rhetorically.
Michael R. Graham
-----Original Message-----
From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of J. Scott Evans via gnso-rpm-wg
Sent: Sunday, April 09, 2017 2:28 PM
To: Paul Keating <paul at law.es>
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
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%2Fww
>>>>> w.circleid.com%2Fposts%2F20170401_human_rights_and_regular_interne
>>>>> t_users%2F&data=02%7C01%7C%7C50304f839f204047d22108d47f7f0561%7Cfa
>>>>> 7b1b5a7b34438794aed2c178decee1%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%2Fw
>>>>>> ww.law-democracy.org%2Flive%2Fwp-content%2Fuploads%2F2015%2F02%2F
>>>>>> foe-briefingnotes-2.pdf&data=02%7C01%7C%7C50304f839f204047d22108d
>>>>>> 47f7f0561%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C1%7C6362736309
>>>>>> 35953197&sdata=iibWIOUarmHu8u3nYw1DeYDtN9xNifENvlfw4uNCb0c%3D&res
>>>>>> erved=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%2Fw
>>>>>> ww.law-democracy.org%2Flive%2Fwp-content%2Fuploads%2F2012%2F08%2F
>>>>>> Paper-on-Restrictions.10.03.22.rev_.pdf&data=02%7C01%7C%7C50304f8
>>>>>> 39f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%
>>>>>> 7C1%7C636273630935953197&sdata=lOr2IonxpavnfDnwQ%2Bj3PARbkkw0MGVy
>>>>>> fCxIStBYVpU%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%2F
>>>>>>> www.un.org%2Fen%2Funiversal-declaration-human-rights%2F&data=02%
>>>>>>> 7C01%7C%7C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794a
>>>>>>> ed2c178decee1%7C0%7C0%7C636273630935953197&sdata=vobvPy0220fGdgR
>>>>>>> KPMJWjL0%2FjAHrMa%2FX1bPNa2dCbcY%3D&reserved=0
>>>>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2F
>>>>>>> www.ohchr.org%2FEN%2FProfessionalInterest%2FPages%2FCCPR.aspx&da
>>>>>>> ta=02%7C01%7C%7C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b344
>>>>>>> 38794aed2c178decee1%7C0%7C0%7C636273630935953197&sdata=9SsjyoBo7
>>>>>>> nNUNsLjYOExngiTPOSOfFK6N4ODT0kS4Kg%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%7C811d
>>>>>>>>> c6e8437
>>>>>>>>>
>>>>>>>>> 245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7
>>>>>>>>> C0%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%2
>>>>>>>>>>> F%2Fwww
>>>>>>>>>>>
>>>>>>>>>>> .leap.com%2F&data=02%7C01%7C%7C2b7c1e08334543cacbff08d47ce46
>>>>>>>>>>> e63%7Cf
>>>>>>>>>>>
>>>>>>>>>>> a7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636270767931993418
>>>>>>>>>>> &sdata=
>>>>>>>>>>> 6px9twhTFpg2YYaKWPoClt%2FQGQKnakm1jerYcSj%2F2w0%3D&reserved=
>>>>>>>>>>> 0 _______________________________________________
>>>>>>>>>>> gnso-rpm-wg mailing list
>>>>>>>>>>> gnso-rpm-wg at icann.org
>>>>>>>>>>>
>>>>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%
>>>>>>>>>>> 2F%2Fmm
>>>>>>>>>>>
>>>>>>>>>>> .icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7
>>>>>>>>>>> C%7C2b7
>>>>>>>>>>>
>>>>>>>>>>> c1e08334543cacbff08d47ce46e63%7Cfa7b1b5a7b34438794aed2c178de
>>>>>>>>>>> cee1%7C
>>>>>>>>>>>
>>>>>>>>>>> 0%7C0%7C636270767931993418&sdata=jZh3dzb5ycHMZLxsR4ZLmQdR%2B
>>>>>>>>>>> 2kWcBkF
>>>>>>>>>>> D%2Fj6BAXDjiI%3D&reserved=0
>>>>>>>>> _______________________________________________
>>>>>>>>> gnso-rpm-wg mailing list
>>>>>>>>> gnso-rpm-wg at icann.org
>>>>>>>>>
>>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F
>>>>>>>>> %2Fmm.i
>>>>>>>>>
>>>>>>>>> cann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C
>>>>>>>>> 811dc6e
>>>>>>>>>
>>>>>>>>> 8437245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7
>>>>>>>>> C0%7C0%
>>>>>>>>>
>>>>>>>>> 7C636270794483518369&sdata=mJrIOSHwtTJCADlJ8m6UiUx7baKNfoXhIpZ
>>>>>>>>> Qh1s99f
>>>>>>>>> s%3D&reserved=0
>>>>>>>> _______________________________________________
>>>>>>>> gnso-rpm-wg mailing list
>>>>>>>> gnso-rpm-wg at icann.org
>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%
>>>>>>>> 2Fmm.icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%
>>>>>>>> 7C%7C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c
>>>>>>>> 178decee1%7C0%7C0%7C636273630935953197&sdata=UdpnXGqDXIpO7ijlPP
>>>>>>>> 11TvjclUQ7J%2Bq6joDFUrh22M4%3D&reserved=0
>>>>>>> _______________________________________________
>>>>>>> gnso-rpm-wg mailing list
>>>>>>> gnso-rpm-wg at icann.org
>>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2
>>>>>>> Fmm.icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C
>>>>>>> %7C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178
>>>>>>> decee1%7C0%7C0%7C636273630935953197&sdata=UdpnXGqDXIpO7ijlPP11Tv
>>>>>>> jclUQ7J%2Bq6joDFUrh22M4%3D&reserved=0
>>>>>> _______________________________________________
>>>>>> gnso-rpm-wg mailing list
>>>>>> gnso-rpm-wg at icann.org
>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2F
>>>>>> mm.icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7
>>>>>> C50304f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178dec
>>>>>> ee1%7C0%7C0%7C636273630935953197&sdata=UdpnXGqDXIpO7ijlPP11TvjclU
>>>>>> Q7J%2Bq6joDFUrh22M4%3D&reserved=0
>>>>>
>>>>>
>>>>
>>>
>>>
>>> _______________________________________________
>>> gnso-rpm-wg mailing list
>>> gnso-rpm-wg at icann.org
>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.
>>> icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C50304
>>> f839f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7
>>> C0%7C636273630935953197&sdata=UdpnXGqDXIpO7ijlPP11TvjclUQ7J%2Bq6joDF
>>> Urh22M4%3D&reserved=0
>> _______________________________________________
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>> 39f204047d22108d47f7f0561%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%
>> 7C636273630935953197&sdata=UdpnXGqDXIpO7ijlPP11TvjclUQ7J%2Bq6joDFUrh2
>> 2M4%3D&reserved=0
> _______________________________________________
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> 36273630935963214&sdata=jag2sXALj1mEMB1BAlmLw5mMsp%2Fd2Fb%2FH2m%2FrWHa
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