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Saturday, 27 October 2012

ICANN, UDRP and freedom of speech: a call for humility

This Kat is a silent follower of the CyberProf listserve. I read with interest the comments and exchanges that appear on the site, penned by some of the most thoughtful members of the IP/cyberlaw community. I have never expressed my view in connection with any of the postings on the site. This time, however, I wish to make an exception in connection with the ongoing (as of this writing) thread under the title "Does ICANN reflect American, capitalist values"? In particular, as stated by Professor Peter Swire, who initiated the discussion, is ICANN slanted towards the protection "of enforceable property rights and a sweeping view of the First Amendment [i.e., freedom of speech--NJW]?"

The reason for my interest is that this Kat serves as a Panelist under the auspices of WIPO for URDP disputes. In that capacity, over a decade, he has rendered various decisions on challenges to domain name registrations. As such, this Kat's orientation to domain names is heavily coloured by the adjudicatory framework for resolving such disputes. Procedurally, my focus is on the attenuated time frame for rendering decisions and the framework for the evidentiary submissions. Substantively, my focus is on the basic three-part test for adjudication, namely:

1. The Disputed Domain Name is confusing similar to the Mark.

2. The Respondent has no rights or legitimate interests in the Disputed Domain Name.

3. The Disputed Domain Name was registered and has been used in bad faith.
There is a humbling aspect to this. This Kat once served as an expert witness on copyright law and he underwent cross-examination; it gave him a new appreciation for what it means to be a witness. Similarly, the opportunity to serve as a Panelist and render decisions in UDRP disputes has opened his eyes to the challenges that judges face in carrying out their judicial function. Humility is the touchstone here.

My purpose here is to consider one response to the thread, posted by Professor Michael Froomkin of the University of Miami Law School and a thought leader in the world of domain names and ICANN resolution. Professor Froomkin wrote as follows:
"To me, the sleeper issue is choice of law.

The UDRP was sold as a faster, cheaper way of getting the same results as one would have in a municipal court for a narrow class of easy cases of abuse by cybersquatters. I tried to get a more explicit choice of law provision, so that it would be clear that the free speech values of the court that would have had jurisdiction over the defendant/respondent would be observed. WIPO blocked me at every turn.

I still believe that, properly understood, UDRP panels have an obligation to respect the free speech values that would control in a US court when the defendant is a US person residing in the US. (Many panels alas have not seen it that way!) It does not, however, follow that the same values should control in all other party geometries."
From what I can discern from Professor Froomkin's impressive CV here , while he was involved early on in the creation of the ICANN apparatus, he does not serve as a Panelist. My perspective, to the contrary, is primarily as a Panelist. From this point of view, and thinking about sitting in front of a computer screen as I go about penning my decision, I can only scratch my head: should I be obligated to bring to bear freedom of speech considerations in my decision? Indeed, can and should any administrative system for the adjudication of domain name disputes, relying on a cadre of ad hoc adjudicators (indeed, even if a class of professional, full-time adjudicators had been established), reasonably expect the proceedings necessarily to address freedom of speech issues?

Non-U.S. practitioners can sometimes fail to appreciate the First Amendment/freedom of speech ethos that pervades a huge value swathe of U.S. law. Its role in other jurisdictions tends to be less encompassing. No matter. The more germane point is that the adjudication of a freedom of speech issue is a complex, nuanced matter, supported by a special body of Constitutionally-based case law. As such, in this Kat's view, it was and is unreasonable to expect that the calculus of freedom of speech could have been added to the Panelist's list of adjudicatory considerations in giving a decision in a domain name dispute. Indeed, this Kat has noted that the resolution of the trade mark and related issues that come up in UDRP cases are trending more and more challenging. The days of a registrant seeking to defend "FAMOUSMARK.COM" against the challenge by the owner of FAMOUSMARK is an increasing rarity.

Like many of his co-Panelists, this Kat often reflects about the nature of what is required to render a decision in a UDRP case. In thinking about these issues, he has asked himself and others many questions about the ICANN system and the process of dispute resolution. The question posed by the CyberProf thread--"Does ICANN reflect American, capitalist values"--has never come up, and properly so. The Panelist's task is tough enough as it is.

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