BMI comments on Whois Task Force Preliminary Report

["Coletta, John" <JColetta@xxxxxxx>]

About BMI

Broadcast Music, Inc. (BMI) is a performing rights licensing
organization that issues copyright licenses to various users of music,
including Internet and mobile services.  BMI tracks the public
performance of its members' music, and collects and distributes
licensing revenues for those performances as royalties to the more than
300,000 songwriters, composers and music publishers it represents, as
well as the thousands of creators from around the world who have chosen
BMI for representation in the U.S.

How We Use Whois 

BMI staff are constantly monitoring the Internet to identify websites
where music composed and published by BMI members is being publicly
performed without a public performance license. When such sites are
identified, our first step is always to contact the site operator to
request that a license be obtained.  Contact data on the domain name
corresponding to the website is obtained from Whois services, which we
consult on a daily basis.  Although most cases of unlicensed public
performance are resolved quickly, Whois data is also critical to the
investigation of unresolved cases, and to bringing civil copyright
infringement actions when necessary to achieve compliance.

The Impact of Proposed Changes in Whois Policy 

If ICANN were to adopt the OPOC proposal contained in Appendix A of the
Preliminary Report of the Whois Task Force, see
http://gnso.icann.org/issues/whois-privacy/prelim-tf-rpt-22nov06.pdf,
BMI would, in many cases, no longer be able to contact the operators of
websites that it has identified as performing music without a copyright
license. Instead, BMI would have to notify the "operational point of
contact" identified in Whois, since that is the only entity for which
Whois would provide contact information. The OPOC might or might not
pass this notice along to the site operator, and would be under no
obligation to act promptly in any case. The likely results include:

*                    BMI would be forced to devote additional resources
to identifying and locating the website operator;

*                    Resolution of these cases would take longer,
depriving BMI songwriters, composers, and music publisher of licensing
revenue, increasing administrative costs to BMI, and exposing
affiliates' musical works to increased damages from persisting
infringing activity;

*                    Because fewer cases would be resolved quickly, more
would reach the stage of filing of a lawsuit, which increases costs for
BMI (and ultimately for the site operator as well); 

*                    BMI would have to rely more on more disruptive
means of enforcement, such as "takedown notices" under the Digital
Millennium Copyright Act, under which the online presence of the site
would be interrupted or perhaps terminated, rather than continuing
smoothly after obtaining a BMI license. 

            Ultimately, our 300,000 members - songwriters, composers and
music publishers - would bear the burden of the fact that enforcement of
the public performance rights in their music would be slower, more
difficult, and more expensive.  

            Adoption of the Special Circumstances proposal in Appendix B
would have much less adverse impact on BMI and its members.  Few if any
individual, non-commercial registrants who could be expected to qualify
for "special circumstances" status would be performing music of BMI
members on their websites.  In fact, since the special circumstances
proposal calls for the phase out of private or proxy registration
services, this would be a net benefit to BMI and its members.  Such
services, which are widely available today, hide the contact data of
domain name registrants without regard for personal privacy
justifications.  This delays and complicates BMI's efforts to ensure
that its members' rights are respected.  

            Other Observations

            BMI urges ICANN not to withdraw any Whois data from public
access.  This would change a policy that has been in effect since the
inception of the domain name system, that has not had a significant
adverse impact on personal privacy, and that is in the best interests of
all Internet users.  

            If, however, some contact data is to be made unavailable,
BMI stresses the urgent need for an alternative access mechanism that
could be employed by those with a clear legitimate need for access,
including those such as BMI who need the data to enforce intellectual
property rights and similar laws.  This mechanism must be quick,
predictable, and reliable, and must approximate, as closely as possible,
the immediate free access that has always been a part of the Whois
system.

            Finally, ICANN must do more to improve the accuracy of Whois
data.  Registrants continue to submit false and misleading contact data,
and even worse, registrars continue to accept it without question.  The
part of the OPOC proposal that would clarify what registrars must do
when false contact data is brought to their attention may be of some
help, but it deals only with the tip of the iceberg.  Registrars should
have greater responsibility to verify contact data submitted by
registrants, and ICANN should enforce more aggressively the registrars'
contractual obligations regarding accurate Whois data.


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