Non-commercial speech on the Internet

[KathrynKL@aol.com]

Martin:

Price Waterhouse conducted a study last year which it entitled "Top
Web/Internet Activities."  It listed activities and time spent and found:

research   43%
email       34%
games     9%
online mag/news  5%
online banking    2%
two way voice    1%
shopping   1%.

At the time, the reference to this study was at Cyberatlas,
www.cyberatlas.com/usage_patterns.html. 

I think we have to separate the user's activities from other activities.  For
an offline example, reading the Washington Post (a commercial venture) is not
a commercial activity.  Similarly, if I choose to conduct my private research
on LEXIS/NEXIS  (paid service) or at my public library, I am not engaged in a
commercial activity.

The problem that exists lies in the traditional divisions of commercial and
noncommercial speech and trademark law.  Commercial interests on the Internet
have claimed superior rights to basic dictionary words like PONY.   That
creates a problem because all sorts of organizations, individuals and
companies use and would like to use PONY in their titles and domain names. 

The real world recognizes overlap without any need for the noncommercial users
to prove any "legal right" to the word other than that they liked it; the NSI
Domain Name Dispute Policy did not.  We need to find a way to protect
everyone's access to basic words, and a company's right to identify its goods
and services in such a way that the can be reasonably distinguished on the
Internet.  I, for one, do not believe this means giving McDonald's Corporation
the right to pre-empt the word McDonald in all categories of new TLDs,
including personal ones.  An entire extended clan of people shares that word.
For hamburgers -- yes, for everything else -- no. 

The domain name of the Domain Name Rights Coalition is domain-name.org.  Our
website is www.domain-name.org.  the fact that you reached Dogbert's New
Ruling Class indicates that you were trying to use the URL as a directory
service.  It is not robust enough to be one.  And that is a part of the
problem.  When I go to the hardcopy White Pages or Yellow Pages, I do not
start a lawsuit just because the first "Kleiman" or "Law Firm" I arrive it is
not mine.  Rather, we assume redundancies of last names, descriptive words,
common words and just about everything else and look for additional
information such as city, street, first name, type of business,etc.  

The goal of my organization is simple:  to apply standard trademark law with
all of its exceptions and defenses and limits to the Internet. That will keep
all forms of speech protected until the time (soon, I hope) when good
directories are wide-spread.

Kathryn Kleiman
General Counsel and Co-Founder, A-TCPIP/Domain Name Rights Coalition
-------------------------
previous exchange below
-------------------------

<< 
 KathyrnKL@aol.com wrote:
 
 "according to all studies conducting of the
 Internet, the vast majority of use is for noncommercial purposes -- email,
 chat rooms, research, education.  The vast majority of domain names are also
 for noncommercial purposes:  personal websites, political websites, community
 organization websites, email, FTP sites, etc. In the real world, these
 noncommercial users of words do not have to preclear their use of any terms
or
 titles with a central Trademark office anywhere. For such a requirement to
 exist in cyberspace would be a great burden on speech worldwide."
 
 
 Could you please provide citations to "all studies"  Maybe it is a
 semantical difference but if you look at the measure of activity - hits -
 it seems that the most popular sites - yahoo.com, the various search
 engines, cnn.com, amazon.com - are all commercial enterprises.  If you use
 altavista to do educational research, your personal use is educational but
 altavista's use of the domain name is very very commercial, and someone who
 adopts a mis-spelling of altavista (do a whois search of the names owned by
 Data Arts, which specializes in mis-spellings) would appear to be
 benefitting from DEC's goodwill in the ALTAVISTA mark and domain name.
 
 While it is not readily apparent why harmonizing the DNS with trademark law
 is an unnecessary burden on speech - after all, in this discussion group
 you were not prevented from making political speech using the aol.com
 domain name - perhaps clearly labeled "personal" or "non-commercial" gTLDs
 that did not require pre-clearing, while commercial gTLDs would be subject
 to pre-clearing - would represent the accomodation of non-commercial use
 and the pre-existing trademark rights of the world's businesses?  If
 non-commercial use is in fact responsible for the vast majority of domain
 names, then the for-profit registries would back this proposal.  If their
 interest is in accomodating name speculators, then they might not.
 
 P.S.  I wanted to access the domain names rights coalition web site at
 dnrc.org and instead got the Dogbert New Ruling Class web site.
  >>