ASCAP Comments .net registry

[SMosenkis@xxxxxxxxx]

The American Society of Composers, Authors and Publishers ("ASCAP") submits
these comments in response to ICANN's request for comments regarding
applications for .net registry operation.  ASCAP, the oldest and largest
U.S. performing rights society, licenses, on behalf of its 200,000 members,
the performing rights of copyrighted musical works.  Included among the
countless types of users that perform ASCAP music and to whom ASCAP grants
licenses are thousands of on-line Internet web sites and services.  One of
the methods by which ASCAP determines who is performing copyrighted music
and requires an ASCAP license is via the contact data residing in the
publicly accessible WHOIS database.  Without access to publicly available
WHOIS contact data, it would be difficult at times, if not impossible, for
ASCAP to determine who is actually performing ASCAP music on-line.  WHOIS
contact information is the necessary tool ASCAP utilizes in ensuring that
its copyright owner members are fairly compensated for the use of their
property on-line.

Currently, .net is operated on a "thin registry" basis, meaning that key
WHOIS contact data on domain name registrants is not held by the registry,
but by the individual domain name registrar.  Most of the applicants
propose migrating .net to a "thick registry" system, in which WHOIS data
for all .net registrations will be held by the registry in a single
database.  Under both models, information on the IP addresses associated
with the domain registration (nameserver data) is held by the registry.
ICANN's RFP for the .net competition requires that competitors either
maintain the same level of public access to WHOIS data that currently
prevails in .net (if a thin registry is proposed), or else to follow the
rules applicable to .org (the largest gTLD that is currently run on a thick
registry basis). See .Net Request for Proposals, at 13 (Dec. 10, 2004),
available at
http://www.icann.org/tlds/dotnet-reassignment/net-rfp-final-10dec04.pdf,
under item 5 "Technical Competence".  Either way, full contact data on
registrants and their administrative and technical contacts would remain
freely accessible to the public, as it always has been since the inception
of .net.

However, as we reviewed the application material first posted a few days
ago, it soon became clear that some of the applicants to run .net plan to
abandon the long-standing  model of free public access to full WHOIS data.
Instead, they propose to close off all public access to some or nearly all
WHOIS data, and in at least one case to nameserver data as well.  Note that
none of the applicants propose a so-called "tiered access system;" under
their proposals, it appears that a great deal of data now made available to
the public would simply disappear from view.  Problematic applications
include those from DENIC, Sentan, and probably Afilias.

These proposals would severely undermine or entirely eliminate the value of
WHOIS and nameserver data in providing accountability and transparency to
Internet activities.  In addition to hampering ASCAP's activities, they
would undercut the efforts of consumers, parents, journalists, law
enforcement agencies, computer security systems, other intellectual
property owners, and countless other Internet users to track down who is
responsible for particular sites or nodes online.  The result would be to
make the second largest gTLD a much more comfortable place than it is today
for online criminals, infringers, phishers, scam artists, and other
malefactors.

Accordingly, ICANN should reject any application that proposes to reduce
the status quo of publicly available WHOIS data.  Furthermore, ICANN should
vigilantly remove the license and authority of any registry that at any
times removes the transparency of domain name ownership WHOIS information.

Sam Mosenkis
Director of Legal Affairs
ASCAP
smosenkis@xxxxxxxxx

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