Comments of Warner Bros. Entertainment Inc. - Preliminary task force report on the purpose of Whois and of the Whois contacts - 18 January, 2006
Warner Bros. Entertainment Inc. ("Warner Bros.") stands at the forefront of every aspect of the entertainment industry, from feature films to television, home video/DVD, animation, comic books, interactive entertainment and games, product and brand licensing, international cinemas and broadcasting. In addition to the wonderful worldwide recognition and enthusiasm of Warner Bros.' properties by fans, there is an attraction to many of the world-famous brands managed by Warner Bros. that creates a great deal of online brand abuse, including copyright and trademark infringement as well as fraud. Warner Bros. has unfortunately had many occasions to rely on the WHOIS databases in the course of responding to this abuse. We therefore welcome this opportunity to comment on ICANN's "Preliminary task force report on the purpose of Whois and of the Whois contacts." Domain names are basically a form of virtual real estate. Some people use this type of real estate for personal reasons and others for commercial. In most cases, this real estate is accessible to the general public regardless of age or geographical location. Therefore, there must be a certain level of accountability for persons or companies operating in such a public space. Without an accurate WHOIS system, domain name ownership would become a safe haven for cyber criminals. As mentioned, unfortunately many Warner Bros. properties have been the subject of various forms of online abuse. Therefore, Warner Bros. has in fact had a legitimate need to use the WHOIS databases often. This type of online brand abuse ranges from websites offering counterfeit products to online fraud. For example, domain names including the "warnerbros" name have recently been registered and used by criminals to send out spam to individuals reporting to be casting for an upcoming popular Warner Bros. motion picture. These email messages have included some seemingly legitimate Warner Bros. contact information and logos within the body of the message. However, they are unauthorized email messages and have clearly been used to misguide the public into divulging personal information and/or authorizing payments to thieves. Without access to an accurate WHOIS record for the domain names at issue in such a case, there would be no mechanism for Warner Bros. to start an appropriate investigation in order to help put a stop to the criminal activity. In summary, out of the alternative formulations of the purpose of WHOIS, Warner Bros. supports "Formulation 2" (i.e. "The purpose of the gTLD Whois service is to provide information sufficient to contact a responsible party or parties for a particular gTLD domain name who can resolve, or reliably pass on data to a party who can resolve, technical, legal or other issues related to the registration or use of a domain name."). Warner Bros. supports "Formulation 2" because we believe that not only is it most consistent with the well established history of WHOIS, but most importantly because the WHOIS databases proposed in "Formulation 2" maintain a level of accountability on the Internet that is vital for its stability. The proposed "Formulation 1," because of its limited focus on technical issues, is too narrow in scope to provide WHOIS databases that would act as meaningful tools to the Internet community as a whole. It also focuses solely on defects in the configuration of data supplied at the time a domain name is registered. But often it is the use of a domain name - not the fact of its registration - that determines whether or not the website located at a particular domain name will be valuable to the owner. Domain names can also be used for activity that harms others and that violates the law. Formulation 1 does not take this fully into account. The stability of the internet requires that the use of domain names be accountable in some form in order to allow people and companies that are negatively affected by unauthorized uses of domain names a means to take steps to put an end to the harm being inflicted by these uses. The WHOIS databases are currently the foundation for accountability on the internet, and eliminating this function would be a disservice to stability and security on the internet. We urge the task force to recognize the essential nature of the WHOIS databases as a functional tool that ensures stability and accountability on the internet, and to refrain from characterizing it in a manner that would impede the establishment and growth of legitimate online services. We recognize that there are other WHOIS policy issues demanding attention - including the need to improve the accuracy of WHOIS data, and to evaluate current and proposed mechanisms for protecting personal privacy. We look forward to participating in these discussions, but they would become moot if ICANN were to adopt the narrow purpose statement in Formulation 1 and thus eliminated the function of WHOIS as a tool to promote accountability online. We thank the task force for their time and effort in developing this report. Respectfully submitted, Marc Brandon Warner Bros. Entertainment Inc.