Heiko Recktenwald on Tue, 25 Apr 2000 22:54:33 +0200 (CEST)

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[Nettime-bold] On gwbushsucks and related domain-name disputes (fwd)

Hi, what a topic, sounds familiar:

---------- Forwarded message ----------
Date: Tue, 25 Apr 2000 12:13:39 -0400 (EDT)
From: Andy Oram <andyo@oreilly.com>
To: cyber-rights@cpsr.org
Subject: On gwbushsucks and related domain-name disputes

The following letter, put together by the Center for Democracy and
Technology and signed by a number of supporters including CPSR,
concerns the recent Anticybersquatting Consumer Protection Act. It
criticizes what we consider a dangerous application of the law that
would prevent the registration of Web sites that contain the names of
famous people, unless those people approve.--Andy


April 20, 2000

Sabrina McLaughlin
Office of General Counsel
Department of Commerce
Room 5876
14th & Constitution Avenues, NW
Washington, DC 20230

Dear Ms McLaughlin,

We are writing to comment on section 10745 of the Federal Register 
Notice, "Dispute Resolution Issues Relating to Section 3002(b) of the 
Anticybersquatting Consumer Protection Act." The undersigned groups 
include a wide range of public interest organizations with expertise 
in domain name issues, election law, free expression, privacy, and 
consumer protection. All of us share the following concerns:

1) Defamation issues are already covered by existing state law. 
Creating a new federal law giving individuals a cause of action for 
defamatory use of an individual's personal name as a domain name is 
not desirable. Individual personal names should be treated the same 
way offline as they are online, by existing state laws.

We urge the Department of Commerce to oppose creating new federal 
regulations or laws in this area.

2) Consumer confusion issues are already covered by both existing 
state law and the federal Lanham Act. These laws apply to personal 
names as well as other areas of consumer confusion. There is no 
reason why consumer confusion should be treated differently when the 
issue is one combining a personal name and a domain name than when 
there is an offline consumer confusion issue, or a consumer confusion 
issue involving a domain name that is not also a personal name.

We urge the Department of Commerce to oppose creating new federal 
regulations or laws in this area.

3) Other issues involving famous personal names, such as in the case 
of cybersquatting and political speech, remain unresolved. One 
important value, the rights of individuals engaging in critical 
political speech, satire, and other legitimate uses of famous 
personal names are and should be strongly protected by the First 
Amendment online as well as offline. While it is true that some 
satire is subtle and may be misread by members of the public who are 
unfamiliar with that kind of work, this is not a sufficient reason to 
restrain satirical speech.

Some of these issues are addressed by state laws, and to the extent 
that is the case, those states should not have those protections 
altered or federalized. This is particularly true for cases in which 
the state law governing offline use of famous personal names could 
end up conflicting with a federal law governing online use of the 
same famous personal name.

Federal laws to regulate famous personal names would raise numerous 
constitutional concerns and are not advisable. We urge the Department 
of Commerce to oppose creating new federal regulations or laws in 
this area.

4) The overall tone of section 10745 of the Federal Register Notice 
suggested that the basic premise of trademark law should be extended 
to include personal names. Personal names are a very different form 
of speech than what is ordinarily subject to trademark law. 
Trademarks, by nature, are commercial speech. Personal names may be a 
commercial form of speech, but more typically are found in news, 
opinion, politics, art, or an infinite number of forms of speech. As 
such, personal names should be protected under existing laws 
governing personal privacy, libel, slander, defamation, or the other 
narrow limitations ordinarily applied to speech. This is a better 
approach than creating new laws or expanding the scope of existing 
trademark laws. We urge the Department of Commerce to oppose the 
extension of trademark law into this space.

5) The ICANN Uniform Dispute Resolution Policy does not -- and should 
not -- address the issue of personal names. ICANN is an inappropriate 
forum for addressing this issue. The UDRP developed by ICANN was not 
intended to address personal names and did not debate or discuss such 
issues during the process wherein its policies and procedures were 

We urge the Department of Commerce to oppose attempts to use the 
ICANN dispute resolution forum for these issues.

6) On the narrow issue of political web sites, the Department of 
Commerce should recommend that existing FEC candidate information 
services should include a place for a candidate to list his/her 
official web site. This would be a simpler alternative to creating a 
new Secondary Level Domain (SLD) for official candidate websites to 
separate official candidate web sites from political parody sites. 
This information could easily be linked to or used by political, 
news, and local government portal sites.

There are already a number of non-profit and for-profit Internet 
based efforts to collect and organize political web sites in ways 
that will be useful to consumers and the public. The FEC and state 
election commissions could bolster such sites by providing official 
candidate web site information to other Internet resources.

A few existing examples include:
The Democracy Online Project http://democracyonline.org/
Minnesota's E-Democracy Project http://e-democracy.org/
The Center for Responsive Politics http://www.opensecrets.org/home/index.asp
Political Information (Search Engine) http://politicalinformation.com/

The FEC and state election commissions could bolster such sites by 
providing official candidate web site information to other Internet 
resources. This would be both less bureaucratic, less expensive, and 
more useful for campaigns, officials, and the general public than 
trying to develop and promote a new SLD for campaigns and candidates. 
Those wishing to maintain their current sites could simply do so, and 
anyone who wanted to make sure they were reaching the real site of a 
candidate could verify it either by going to the FEC, or by using the 
FEC to search for their candidate's site.

Deirdre Mulligan
Center for Democracy and Technology

Andy Oram
Computer Professionals for Social Responsibility

Mikki Barry
Domain Name Rights Coalition

Michael Cornfield
George Washington University Graduate School of Political Management

Michael Froomkin
University of Miami School of Law

Jonathan Weinberg
Wayne State University School of Law

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