Comments of ASCAP (American Society of Composers, Authors and Publishers) on Whois Task Force Preliminary Report
ASCAP Comments on Whois Task Force Preliminary Report The American Society of Composers, Authors and Publishers (ASCAP) is a membership association of more than 270,000 U.S. composers, songwriters, lyricists, and music publishers of every kind of music. Through agreements with affiliated international societies, ASCAP also represents hundreds of thousands of music creators worldwide. ASCAP protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of their copyrighted works. ASCAP's licensees encompass all who want to perform copyrighted music publicly, including online. As part of its licensing efforts, ASCAP identifies and licenses web sites that make public performances of ASCAP music. In many cases, there is nothing on the site itself that identifies its operator, and so ASCAP must rely on Whois information to identify and contact the Registered Name Holder to begin the process of negotiating a license. To the extent that we have access to reliable Whois data, it is often possible to conclude a licensing arrangement quickly and without needing to take any further action to enforce the rights of our members. Where this is not possible and we are forced to bring legal actions, access to Whois data assists us in conducting further investigations and in serving legal process. This is the basis of our serious concerns about the proposal, contained in the Whois Task Force Preliminary Report as Appendix A, to remove from publicly accessible Whois services all information about the administrative or technical contact for a domain name registrant, and indeed all information about the Registered Name Holder itself, other than its name and the country and state or province where it is located. This would virtually eliminate ASCAP's ability to rely upon the most readily available form of contact data ? Whois ? in order to communicate with unlicensed website operators. It would thus reduce the proportion of cases in which licensing agreements are reached quickly and easily, and increase the proportion which require further investigation, research and perhaps even litigation to resolve. By increasing the cost, burden, and time expenditure required to convert infringing sites to licensed activity, this change would delay and ultimately reduce the licensing revenue received by the songwriters, composers and music publishers who are our members. The Appendix A proposal would replace all this removed data with contact information on an "operational point of contact." Perhaps, in some instances, this OPOC would facilitate the communication between ASCAP and the site operator and assist in concluding the matter. However, there is nothing in the OPOC proposal that gives us any confidence that this would be the case. Indeed, a query from ASCAP requesting that a site operator obtain a license for the public performance of music would probably not be considered an "operational issue relating to a domain name," and so would fall outside the scope of inquiries that the OPOC is supposed to pass along. Furthermore, even if the OPOC did communicate the ASCAP request to the Registered Name Holder, the OPOC's role would apparently be at an end. At that point, if the registrant did not respond, ASCAP would still have no way to identify or contact him or her, and would have no option but to escalate the dispute, requiring all parties to incur additional expense. The OPOC proposal lacks any recourse if the OPOC simply does not do its job. ASCAP respects privacy rights, and recognizes that privacy issues may arise in some circumstances with the use of Whois data. But the OPOC proposal has nothing to do with protecting privacy: it would hide nearly all the contact data of all gTLD domain name registrants, individual or corporate, commercial or non-commercial, including those who are building a business or basing their online activity on the unauthorized exploitation of the music created by ASCAP members. This approach should be rejected by ICANN. By contrast, the "special circumstances" proposal in Appendix B of the Report is targeted specifically to those situation in which disclosure of registrant contact data would jeopardize the personal security or safety of an individual registrant. The argument for privacy protection is certainly strongest in these cases, which we believe would rarely if ever involve a site that publicly performs ASCAP music. An important feature of the Appendix B proposal is that the decision to hide Whois contact data from the public would not be made unilaterally by a registrar or by the operator of a proxy or private registration service; instead, it would be made by an independent third party, accountable to ICANN and the community, based on transparent criteria that all interested stakeholders had a role in developing. In ASCAP's view, this is a much more responsible approach to take if ICANN is convinced that some Whois data must be withheld from public access on privacy grounds. Although in these comments ASCAP speaks only for itself and its 270,000 members, we believe that the observations above would be fully applicable to music performing rights organizations around the world, which increasingly are enforcing the copyright interests of their members in the online environment. We also note that our members use Whois for many other legitimate purposes. For example, our membership includes recording artists who seek to prevent piracy of their recordings; consumers who want to be sure that the e-commerce sites they visit are legitimate; and parents who want to monitor their children's online activities and minimize their exposure to harmful content. For all these and many other legitimate uses, unrestricted public access to Whois data is an invaluable tool. ASCAP urges ICANN not to abandon this long-standing policy that has well served all users of the Internet who have a common interest in transparency and accountability online. (See attached file: ASCAP Cmts - Whois Task Force Prelim.Rpt. 13 Jan 07.DOC) Joan M. McGivern, Esq. VP, Legal Corporate Affairs ASCAP, One Lincoln Plaza, N.Y., N.Y. 10023 Tel + 212-621-6204; Fax +212-787-1381 Cell + 646-226-8902 email <JMcGivern@xxxxxxxxx> ************************* A S C A P ************************* ASCAP "I Create Music" EXPO The Only National Conference 100% Dedicated to Songwriting and Composing April 19-21, 2007 Los Angeles, CA Register Now at http://www.ASCAP.com/EXPO ********************************* This message, including any attachments, is intended solely for the person or entity to which it is addressed and may contain information that is legally privileged, confidential or otherwise protected from disclosure. If you are not the intended recipient, please contact sender immediately by reply email and destroy all copies.
ASCAP Cmts - Whois Task Force Prelim.Rpt. 13 Jan 07.DOC