Comment by RIAA and IFPI on Whois Task Force Preliminary Report

["Mark McDevitt" <MMcDevitt@xxxxxxxx>]

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.