WIPOut Over the last couple of days, there has been a very interesting thread on Dave Farber's IP list regarding Jerry Falwell's intention to sue two parody sites (both are operated by the same person). His first petition is to the World Intellectual Property Organization (WIPO) and asks that they settle the dispute using the Uniform Dispute Resolution Policy (UDRP).
Dave initially posed a simple question, which has precedence, WIPO or the Bill of Rights?
Dan Hunter was one of those who replied:
Dave:
I'm a panelist, so make any bias-adjustment you think appropriate, but
here's my $0.02:
(1) The First Amendment isn't really implicated here. Even if the panelists
find for Falwell, the UDRP isn't going to shut down the site, just force it
to move to a different domain name. So your comment adds a lot of heat to
the debate without adding much light.
(2) A number of panelists interpret the terms of the UDRP (specifically para
4.a.(ii)) to conclude that parody sites are not cybersquatting. Though I
admit that there has been a distressing number of my fellow panelists who
have found infringement in domains like danhuntersucks.com. (Actually, only
a few of these cases are as bad as they sound, but that's a story for
another day).
(3) If you insist on the false dichotomy between the Bill of Rights (Good)
and WIPO (Evil), and ask who has priority, then guess what? Evil wins. The
Bill of Rights is a local ordinance. It applies to a tiny percentage of the
world's population. If you want to deal with transnational problems like
cybersquatting--and the UDRP deals with the problem, if imperfectly--then
you're gonna have to suck it up when it occasionally comes back to bite you
in the ass.
Ok, I'll head off to the bunker now. [Activate the flame shields, Scotty]
muchos smoochos
Dan.
My jaw hit the floor, an international treaty is going to be used to determine a federal dispute? I'm no lawyer, but this sounded horribly wrong (oh wait, that's becoming normal lately). Michael Froomkin finally replied with some good and some bad information.
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.
There is a whole lot more in his ICANN and UDRP papers, linked to in the article. Eventually, my head started spinning. Something I wrote before my head started hurting...
Holy criminy, for someone who doesn't like lawyers, Jerry sure has been involved in a lot of law suits. I'm pretty sure there is something in the bible about this.
10:52:19 PM 
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