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Domain names and Freedom of Expression

I intend to testify that taking away an Internet user's domain of choice constitutes an abridgement of their communication rights under the first amendment, if the domain name in question is used in a manner that does not constitute infringement. In addition, even when a domain corresponds to a trademarked term, nominative reference is a legitimate exercise of free speech rights, as long as deception or deliberate confusion is not involved. The question of user confusion and harm hinges on how the domain is used, not on the mere correspondence between the domain name and a trademark.

It is indisputable that domain names can be used to make short statements: <taubmansucks.com> is an existence proof, and thousands more could be adduced. As noted earlier, the primary function of domain names is to serve as a memorable identifier. As such, domain names forge a critical communicative link between a party who wishes to attract an audience and the prospective audience. Distinctive, short domain names suggestive of the content to be found make it easier to broadcast to the public the existence of the web site and attract those interested in its contents. Prospective web site visitors can more easily remember the address if it is short and conveys meaning related to a message that interests them. For plaintiff to contend that the domain name is an unnecessary part of defendant's anti-plaintiff message is analogous to a claim that a book or movie criticizing President George Bush has no need to put Bush's name in the title.

We think of China as a highly censored society. But just as plaintiff suggests that Mishkoff is free to bury his complaints under third-level domains or deep directories that are difficult to reach intended audiences, so it is perfectly possible to say anything you want in China - as long as it is not said in a way that gets any attention.

As an experiment, contrast the registration and use of <taubmansucks.com> with the use of <webfeats.com/taubmansucks.html>. If defendant runs a short radio or television ad, or proselytizes by word of mouth, imagine the difficulty of trying to speak or display the latter URL in a manner that viewers or listeners will be able to remember, write down, and type in correctly. I recommend that the reader try speaking each of these URLs out loud once, in front of someone who has never heard of this case, and attempt to get them to reproduce each URL. I am confident that attaching a semantically unrelated term to the desired message dramatically diminishes the ability of listeners or viewers to correctly recall and use the address. Thus, in order to fully exercise his right to express his opinion that "Taubman sucks," defendant has a right to select a domain name that best achieves his desired objective, which is to attract people to the message. Taking away the domain name interferes with the registrant's ability to communicate with potentially willing site visitors.

Please note also that the plaintiff's attack on the "sucks" domains is completely inconsistent with its asserted view that ordinary users think of domains as source identifiers with .com appended to them. Either that, or it must believe that ordinary users equate the phrases "taubmansucks" or "willowbendsucks" with its business name, an interesting possibility.

Mishkoff's use of <shopsatwillowbend.com> is defensible as a nominative reference to a subject that Mishkoff was interested in and wished to develop a website about. Just as <digital-convergence.com> is a reference to the subject area of my research center and not a source identifier, so <shopsatwillowbend.com> is what Mishkoff's web site is about, not a source identifier. As long as the actual content on the site and the nature of the domain's use does not confuse or deceive visitors, there is no need to enforce exclusivity in the use of the term in the domain name space.

Next: Mishkoff Does Not Fit the Profile of a Cybersquatter

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