Re: [wg-b] Second Circuit on First Amendment Analysis of Domain Names

[Milton Mueller <mueller@syr.edu>]

Martin:
The Court stated clearly and explicitly that a "context-sensitive" analysis of a
variety of factors must be done to determine whether free speech rights are
involved. They wrote an entire paragraph about what should be analyzed in a
"particularistic" way.

You are now attempting to "spin" that decision by saying that it can be twisted
and worried and wrangled to lend support to the notion of mechanical exclusions
that are applied across the board without any case-specific anlaysis.

I think you are wrong. But more importantly, I don't understand what you expect to
accomplish on this list by "spinning" the interpretation of an American court
decision. This working group is in no way bound by the court's interpretation, as
much as I happen to like it in this case.

If ICANN enacts exclusions and they are challenged on first amendment grounds, you
can put forward your tortuous interpretation of the appeals court decision. As
they say, "tell it to the judge." Until then, spare us.

Martin B. Schwimmer wrote:

> It would be nice to be able to distinguish a pesky case before the Second
> Circuit by merely stating "au contraire."
>
> The two variables, context [speech vs. non-speech]  and the domain name
> used by defendant [identical to another's mark vs. variations on the mark
> (as in: anti-plannedparenthood.com), create a range of situations.  The
> particularistic, context-sensitive analysis is deployed to this range. OK,
> nobody argues with that.
>
> In the class of situations we are talking about here - where the SLD is
> identical to the mark, even in the most political context, where defendant
> was commenting on the politics of the mark owner, the court held that there
> was an infringement.  That creates the presumption that that entire class
> of cases should come out the same way and that's why you can apply a
> mechanistic rule to that class of cases thereafter (with the ability of
> challenging the famous mark designation as the safety valve).