Comments of Broadcast Music, Inc. on WHOIS

["Coletta, John" <JColetta@xxxxxxx>]

On behalf of the more than 300,000 composers, songwriters and music
publishers that we represent, Broadcast Music, Inc. (BMI) is pleased to
submit these comments on recent developments in the policy development
process regarding Whois.  We urge ICANN's GNSO council not to endorse
the OPOC proposal (motion #1 before the council), and to reject the
notion that Whois obligations should simply be dropped from ICANN
contracts (motion #3).  We support the proposal (motion #2 before the
council) for a comprehensive and objective study on the uses and abuses
of Whois data. 

BMI filed extensive comments on the Whois Task Force report in January
of this year.  See
http://forum.icann.org/lists/whois-services-comments/msg00056.html.
Those comments explained how BMI uses Whois data to contact the
operators of websites who are publicly performing the music of our
members online.  Ready access to this data enables us to resolve these
infringements quickly and without litigation in most cases.  As a
result, these uses are brought under license, and our songwriters,
composers, and music publishers receive compensation for public
performance of their creative works.  

Our January comments spelled out our concerns that withdrawing much of
the data in Whois from public access, and instead substituting the
contact information for an "operational point of contact" (OPOC), would
make this entire process slower, more expensive, and more difficult to
conclude, to the detriment of BMI's songwriters, composers, and music
publishers and their livelihoods.  In particular, we stressed the
importance of "an alternative access mechanism that could be employed by
those with a clear legitimate need for access, including those such as
BMI who need the data to enforce intellectual property rights and
similar laws.  This mechanism must be quick, predictable, and reliable,
and must approximate, as closely as possible, the immediate free access
that has always been a part of the Whois system."   

 

Today, nine months later, BMI's concerns have not been allayed. Although
a Working Group was chartered to try to address some of the gaps in the
OPOC proposal, and although its many members devote considerable effort
to trying to do so, it made little progress.  Particularly on the key
issue of an alternative access mechanism, the discussion is not much
further along than it was in January.  Some of the Working Group members
were not even willing to concede that anyone in the private sector
should be able to use any such alternative access mechanism, thus
blocking any further progress toward devising a workable system. 

It is time for ICANN to recognize that the OPOC proposal has intractable
problems that make it an unsuitable path for Whois policy.  The time and
resources of ICANN staff and of the dozens of active participants in the
working group would be much better spent on other issues, including the
problem of inaccurate Whois data which BMI flagged in its January 207
comments.  The most recent ICANN audit report
(http://www.icann.org/compliance/reports/contractual-compliance-audit-re
port-18oct07.pdf) demonstrates once again that the measures that have
been taken so far to address this problem are not working.  Even when
false Whois data is reported to ICANN through the mechanism it has
established, too often nothing is done to correct it; and in nearly
one-third of the cases the domain name registration remains live with
flagrantly false Whois data, making it difficult or impossible to
contact the registrant.  

We urge the GNSO council to shift its focus to tackle this persistent
problem and improve the quality of Whois data.  It has been amply
demonstrated that publicly accessible Whois is critical to a wide range
of efforts, both by law enforcement agencies and by the private sector,
to combat online frauds, to identify the parties who instigate them, and
to protect and compensate fraud victims.  Improved Whois data accuracy
will improve the effectiveness of these efforts. Thus, success in this
field will promote greater accountability online, not only for copyright
owners like BMI's songwriters, composers, and music publishers, but for
all Internet users.  

Thank you for considering the views of BMI.

 

Respectfully submitted,

John Coletta

Assistant Vice President, Legal Affairs

BMI

320 West 57th Street

New York, NY 10019

212-830-2590


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