Whois Proposals--comment

["Barbara Friedman" <BFriedman@xxxxxxxxxxxxxxxxxx>]

Dear ICANN,
 
I am an intellectual property attorney based in California. I represent
numerous trademark and copyright owners and users who routinely rely on
the information provided in the Whois database in order to quickly and
economically resolve their legal concerns. 

I am writing to urge the GNSO council to support Motion 2 in tomorrow's
meeting because I think that much more study is required before drastic
changes are made to the Whois database. 

Motion 3 (eliminating the requirement that a Whois database be
maintained) is untenable for many reasons. I have no doubt that you will
hear from many brand owners about the need to determine ownership of a
domain name in order to effectively police against infringements. As an
attorney who relies on the database for this reason several times a
week, I can confirm that these are legitimate and reasonable concerns. 

An additional concern, however, which may not have been voiced by
others, is that the US's Digital Millennium Copyright Act ("DMCA")
assumes that copyright owners will have a reasonable way to determine
who the Internet Service Provider
("ISP") is for a particular website that is hosting infringing
materials. Currently the Whois database is the easiest and most reliable
way of obtaining that information, and eliminating the database
undermines the safe harbor protections that both ISPs and website owners
are currently afforded. If a content owner is not able to find out who
the ISP is, she may be left with no choice but to pursue legal action
against the website directly, when both she and the ISP would likely
have preferred to have had the opportunity to respond or not respond to
a simple DMCA take-down notice.

Motion 1, while more tenable, is still problematic. As an initial
matter, my understanding is that the proposed Operational Point of
Contact will have no legal responsibility to forward legal
correspondence to the true owner of the domain name. In addition, while
I understand the importance of anonymous speech on the Internet, I do
not see how the stated concerns (reduction of spam and protection of
privacy) are better addressed by the implementation of an OPOC than they
are under the current system in which domain name owners are free to
provide the registrar with a designated email account or can take
advantage of a registrar's privacy service. Because I believe that more
study is necessary, I urge you to adopt Motion 2 and reject Motions 1
and 3.

Thank you for your consideration

Barbara Friedman



 





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