Joint comment by RIAA and IFPI on Whois

["Mark McDevitt" <MMcDevitt@xxxxxxxx>]

The Recording Industry Association of America (RIAA) and the
International Federation of the Phonographic Industry (IFPI) submit this
joint comment in response to the request for public comments on Whois
changes, see http://www.icann.org/public_comment/#whois-comments-2007.
We urge the GNSO council to reject the proposal to remove Whois data
from public access and to substitute the contact data for an
"operational point of contact" ("OPOC proposal") and the proposal to
phase out all WHOIS obligations from the registrar/registry contracts
over the next year (Motions #1 and #3 before the GNSO Council, see
http://gnso.icann.org/drafts/icann-staff-overview-of-whois11oct07.pdf,
at pages 9-10)

RIAA is the trade group that represents the U.S. recording industry. Its
members are US producers of sound recordings that comprise the most
vibrant national music industry in the world. RIAA members create,
manufacture and/or distribute approximately 90% of all legitimate sound
recordings produced and sold in the United States.  

 

IFPI is the international organisation representing the recording
industry worldwide. Its membership comprises over 1,400 major and
independent record producers in more than 70 countries. IFPI also has
affiliated national associations in 48 countries.

 

On January 15, 2007, RIAA and IFPI filed joint comments with ICANN, see
http://forum.icann.org/lists/whois-services-comments/msg00035.html,
that summarized some of our major concerns with the OPOC proposal.  We
stated then that if the OPOC proposal were implemented, our
organizations and our hundreds of member companies "would, much more
often than today, be unable to contact quickly the party responsible for
copyright-infringing activities associated with a registered domain
name.  While a query or a cease and desist letter could be directed to
the OPOC, it is unclear what the OPOC would be obligated to do with it;
whether (and how quickly) it would be passed along to the operator of
the site in question; and what options would be available if it failed
to do so."  Our January 2007 comments also asked "what path could be
taken to gain access to the registrant contact data (and information on
administrative and technical contacts) that would still be collected by
registrars but would not be made available to the public" under the OPOC
proposal.  

Since then, the OPOC proposal, which has been under study for years, has
been intensively scrutinized by a Working Group that was created at the
Lisbon ICANN meeting last March.  The Working Group was asked to examine
three questions about the OPOC proposal, which to a great extent
parallel the concerns we raised in our submission, and met many times
between May and August of this year in an effort to do so.  While the
efforts of Working Group members are greatly appreciated, the Working
Group's results are not encouraging, and do not provide the basis for
moving ahead to implement the OPOC system.  

Despite the Working Group's efforts, the roles and responsibilities of
the "operational point of contact" remain largely undefined. Some of the
Working Group members even blocked agreement on whether it should be
required for the OPOC to acknowledge his or its designation in that
role.  Thus, it would be perfectly compatible with the OPOC proposal for
an unscrupulous domain name registrant to designate an OPOC without the
latter's knowledge or consent.  Such an OPOC would be completely
powerless even to contact the registrant in response to a complaint
about illegal activities taking place on a web site to which the domain
name resolved, much less to resolve the problem.  In the meantime,
thanks to the removal of all information on the registrant's
administrative or technical contact, and all contact information on the
registrant but name, province and country, the registrant would have
achieved a denser cloak of anonymity behind which to carry out his
illegal online activities. 

On the critical question of an alternative path for access to contact
information that would be hidden from the public under the OPOC
proposal, the Working Group made even less progress.  Once again, it
could not even reach agreement on the fundamental question of whether
any such path should be provided  to private sector entities with a
legitimate need for this data in order to combat online infringement,
fraud, or other abuses.  As RIAA and IFPI stated in their earlier
submission, "it is crucial that a clear, reliable and efficient method
of access be provided, for intellectual property enforcement as well as
for other legitimate purposes, to any Whois data that is withheld from
public access." That goal is no closer today than it was nine months
ago. 

ICANN should recognize now, after years of discussion and debate, that
the OPOC proposal is not a viable path to pursue in changing Whois.  It
should stop diverting the time, energy and resources of its staff and
volunteers into this fruitless task.  Instead it should focus its
efforts on improving Whois so that it can better fulfill its function of
enhancing accountability and transparency online.  For example, it is
readily apparent that the sole mechanism that ICANN has implemented to
improve the accuracy of Whois data - the Whois Data Problems Reporting
System - is falling far short of achieving its goal.  ICANN must also
examine the growing use of proxy registration services, and determine
what standards these must meet in order to be compatible with the goals
of Whois.  The comprehensive study on Whois uses, proxy services, and
other related topics that is proposed in motion #2 before the GNSO
council could be a useful step forward.   

Finally, RIAA and IFPI wish to express their strong opposition to
proposed motion #3 before the GNSO Council.  Under this proposal, all
requirements for registrars and registries to make Whois data available
would be eliminated over the next year. Few proposals could be more
destructive of efforts to promote public confidence in the Internet.
With each registry and registrar setting its own rules about what
contact data it will collect from registrants, and under what terms and
conditions - if any - that contact data would be made public, chaos will
inevitably result.  While we can appreciate the frustration felt by the
authors of the OPOC proposal, who have introduced motion #3, this
approach is hardly constructive, and will inflict serious damage to
ICANN's reputation if it is even recommended by the GNSO council.  

Thank you for considering the views of the recording industry and its
member companies.

Mark McDevitt

Vice President, Online Anti-Piracy

Recording Industry Association of America, Inc.

1025 F Street NW, 10th Floor

Washington, D.C. 20004

(202) 775-0101 phone

(202) 775-7253 fax