IP: more on Falwell goes to WIPO (!)

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: "Michael Froomkin - U.Miami School of Law" <froomkin () law miami edu>
Date: Mon, 8 Apr 2002 09:09:57 -0400 (EDT)
To: farber () cis upenn edu
Cc: "Hunter, Dan" <hunterd () wharton upenn edu>
Subject: Re: IP: Prepare nukes --  The New World Order -- our rights ... 
Falwell goes to WIPO (!)

Much as I enormously respect Dan Hunter, in one respect (point 3) the
analysis quoted below is IMHO flat out wrong, and in another (point 1)
it's at least debatable. Contrary to what many arbitrators -- especially
those from outside the US -- would like to believe, the UDRP by its own
terms requires arbitrators to respect the First Amendment rights of US
registrants.  They should respect it, but they don't. I speak as one of
the drafters of the UDRP, a sometime UDRP arbitrator, a member of the
committee currently reviewing the UDRP, and the only person to have been
involved at every stage of the UDRP's creation starting waaay back in the
WIPO days.

The UDRP in its own terms explicitly protects a registrant's right to keep
a domain if validly registered under the laws of the country of his
domicile.  Thus, the stuff about the first amendment being a mere "local
ordinance" misses the point.  (In some hands it is deployed as mystifying
rhetoric by people who wish to trump the First Amendment for the benefit
of large corporations and/or non-US domain name registrants who don't
enjoy as great protection under their local law. I don't think that's what
Dan's doing, which is why I think it's important we have this debate.)
Even if the US Constitution is "just local", it's incorporated by
reference into the UDRP.  Indeed, given that the UDRP is promulgated by
ICANN, and ICANN gets all its relevant authority from the US Government,
any other reading would imply that the US government had used ICANN to
remove constitutional rights from US citizens, which would be an
unconstitutional act on the US government's part.  Cf.
http://personal.law.miami.edu/~froomkin/articles/icann.pdf .

But in fact, that's not the case.  Here's the key text of the UDRP in sec.
4(a)(ii): To win under the UDRP, a complaint MUST show that (regardless of
the good or bad faith of the registration) the registrant has "no rights
or legitimate interests in respect of the domain name".  Where do these
"rights" come from?  From national law.  If you have a First Amendment
"right" to a domain name, then the UDRP must recognize it.  This was
clearly understood by all of the drafters, and I honestly don't think this
is open to debate today.

What *is* open to debate is the extent to which First Amendment rights
attach to domain names at all.  The First Amendment protects all forms of
expression and expressive activity.  Arguably, to the extent the domain
name is just a label, it might not be expressive activity (although some
domain names that combine a name with an Anglo-Saxon monosyllable are
fairly expressive in my book....).  On the other hand, the domain name
enables expressive activity, as it helps you find something, and just as
there are decisions that protect newsgathering on the theory that it's
essential to news writing, so too could one quite reasonably find that the
domain name is part of the expression of the content.  Just saying you
could name the site Blort or use the IP number kind of misses the point
that you want to be able to most easily publicize your content, and
reaching an audience is part of the speech right protected by the First
Amendment.

[PS.  For more on the UDRP, focused on flaws in its procedure rather the
issues of substance discussed above, see
http://personal.law.miami.edu/~froomkin/articles/udrp.pdf ]

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