Comment by RIAA and IFPI on Whois Task Force Preliminary Report
Please see the following comment by the Recording Industry Association of America and International Federation of the Phonographic Industry. Sincerely, Mark McDevitt VP, Online Anti-Piracy Recording Industry Association of America 1025 F Street N.W., 10th Floor Washington, D.C. 20004 202-775-0101 phone 202-775-7253 fax The Recording Industry Association of America (RIAA) and the International Federation of the Phonographic Industry (IFPI) appreciate this opportunity to comment on the preliminary report of the Whois Task Force. The Recording Industry Association of America is the trade group that represents the U.S. recording industry. Its mission is to foster a business and legal climate that supports and promotes our members' creative and financial vitality. Its members are the record companies that comprise the most vibrant national music industry in the world. RIAA members create, manufacture and/or distribute approximately 90% of all legitimate sound recordings produced and sold in the United States. IFPI is the organisation that promotes the interests of the international recording industry worldwide. Its membership comprises some 1,400 major and independent companies in more than 70 countries. It also provides services to affiliated national recording industry associations in 48 countries. While the digital networked environment is transforming the way that our member companies disseminate recorded music to the public, it is well known that piracy of copyrighted sound recordings is widespread on the Internet. The RIAA and IFPI rely on access to Whois data in its online enforcement activities, especially to the extent that infringing activity is taking place on web sites associated with domain names in the generic Top Level Domains (gTLD environment). In addition, our member companies use Whois to identify parties responsible for infringements of their trademarks online. The OPOC (operational point of contact) model set forth in Appendix A of the task force preliminary report would remove a considerable amount of Whois data from public access. If it were to be implemented, the RIAA, IFPI and our member companies would, much more often than today, be unable to contact quickly the party responsible for copyright-infringing activities associated with a registered domain name. While a query or a cease and desist letter could be directed to the OPOC, it is unclear what the OPOC would be obligated to do with it; whether (and how quickly) it would be passed along to the operator of the site in question; and what options would be available if it failed to do so. Since it is essential to shut down infringing sites as quickly as possible to minimize the damage to the intellectual property rights of RIAA and IFPI members, any solution that makes the process of identifying the site operator slower or more onerous is of concern. It is also unclear what path could be taken to gain access to the registrant contact data (and information on administrative and technical contacts) that would still be collected by registrars but would not be made available to the public. The RIAA and IFPI urge ICANN not to adopt the OPOC proposal in its current form. The "special circumstances" model set forth in Appendix B is more acceptable to the RIAA and IFPI. Under it, the ability to hide registrant contact data would be limited to those individual registrants who have demonstrated to an objective third party a concrete need for such protection. (By contrast, under the OPOC proposal, this capability would in effect be granted to any domain name registrant, without regard to privacy considerations.) While there are some tough practical questions about how such a "special circumstances" model would be implemented, we are aware that it is based upon a system that has been in effect for several years in the country code Top Level Domain .NL. We believe the "special circumstances" approach should be explored further. Public access to Whois data has always been available in the gTLD environment. The RIAA and IFPI believe this policy has been positive for all Internet users because it has helped to preserve transparency and accountability online. Both these proposals would mark a significant change to that policy. If ICANN is to pursue either of these options, it is crucial that a clear, reliable and efficient method of access be provided, for intellectual property enforcement as well as for other legitimate purposes, to any Whois data that is withheld from public access. Neither proposal provides this, although the problem is far more serious with the OPOC proposal since much more data would be hidden than under the special circumstances proposal. ICANN also should take steps to improve the quality of Whois data, which is too often intentionally false. The OPOC proposal includes a small step in this direction but much more needs to be done, including enforcing existing provisions of the Registrar Accreditation Agreement and requiring registrars to do more to detect false contact data that is submitted to them. The RIAA and IFPI thank the members of the Whois Task Force for their efforts and we look forward to participating in further development of Whois policy in the gTLDs.