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>
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