AIPLA Response to GNSO on whois

[Robin Gross]

AIPLA fires back at GNSO regarding whois definition.



June 21, 2006

Mr. Bruce Tonkin
Chair, GNSO Council
c/o Melbourne IT
120 King Street, Level Two
Melbourne, Victoria 3000 Australia

Dear Mr. Tonkin,

Thank you for your reply to the comments submitted by the American 
Intellectual Property Law Association regarding the GNSO Council vote 
favoring the Formulation 1 definition of the purpose of the WHOIS 
service and for your reassurances about the “aims of the GNSO.” We 
understand that no final decisions have been made, however, we must 
respectfully say that we are perplexed by your statements that you 
“don’t understand how the letter relates to formulations 1 or 2” and 
that “members of the community have made pre-mature judgements on the 
eventual outcomes of the WHOIS work.”

In the Final task force report on the purpose of WHOIS and of the WHOIS 
contacts dated March 15, 2006, it is stated that “Task 1 of the task 
force terms of reference requires the WHOIS Task Force to define the 
purpose of WHOIS. Defining the purpose is important as it will guide 
work on the other work items in the terms of reference. The purpose of 
WHOIS — when defined — will have a significant impact in determining the 
operation of WHOIS.” (Emphasis added)

Looking at the two formulations,

Formulation 1:

“The purpose of the gTLD WHOIS service is to provide information 
sufficient to contact a responsible party for a particular gTLD domain 
name who can resolve, or reliably pass on data to a party who can 
resolve, issues related to the configuration of the records associated 
with the domain name within a DNS nameserver."

Formulation 2:

“The purpose of the WHOIS service is to provide information sufficient 
to contact a responsible party or parties for a particular gTLD domain 
name who can resolve, or reliably pass on data to a party who can 
resolve, technical, legal or other issues related to the registration or 
use of a domain name.”

we simply cannot see how using the narrower definition of WHOIS in 
Formulation 1 will not affect the outcome, or “have a significant impact 
in determining the operation of WHOIS” as stated in the final task force 
report. The future work of the task force, if it follows Formulation 1, 
will focus on providing information “…sufficient to…reliably pass on 
data [for resolving]… issues related to the configuration of the records 
associated with the domain name within a DNS nameserver." This is 
considerably narrower and more limited than the Formulation 2 definition 
“…to provide information sufficient to…pass on data…to resolve, 
technical, legal or other issues related to the registration or use of a 
domain name.”

While it is technically correct to state as you do that “that there are 
no changes in collected data, nor in the requirement for that data to be 
accurate,” basing the further work of the task force on the narrow 
definition of the purpose of WHOIS in Formulation 1 will almost 
inevitably lead to recommendations that the data collected and the 
access provided to that data be more limited than is currently the case.


AIPLA therefore maintains its request that the GNSO adopt a definition 
meeting the needs of all Internet users and that the ICANN Board closely 
monitor the policy development process, bearing in mind the importance 
of preserving the existing requirements to make up-to-date and accurate 
WHOIS information available to all who have a legitimate need to obtain 
such information.

Thank you for consideration of the views of AIPLA.

Sincerely
Michael Kirk
Executive Director

--------------------------------------------------------------------------------------




-------- Original Message --------
Subject: 	RE: [council] Regarding Letter from American Intellectual 
Property Law Association
Date: 	Wed, 21 Jun 2006 19:25:21 +0100
From: 	Ute Decker <Ute.Decker at ifpi.org>
To: 	Council GNSO <council at gnso.icann.org>



Forwarding the second letter sent by AIPLA today for further
clarification:
==
From: Michael K. Kirk [mailto:mkirk at aipla.org] 
Sent: Wednesday, June 21, 2006 12:20 PM
To: 'Bruce.Tonkin at melbourneit.com.au'
Cc: 'vint at google.com'; 'sharil at cmc.gov.my'
Subject: FW: [gnso-dow123] Regarding Letter from American Intellectual
Property Law Association

 

Dear Mr. Tonkin,

 

Thank you for your observations regarding the comments of the American
Intellectual Property Law Association on the GNSO Council vote on the
Formulation 1 definition of the purpose of the WHOIS service. Please
find attached our reply to your observations.


 

Regards,

 

Mike Kirk


-----Original Message-----
From: Bruce Tonkin [mailto:Bruce.Tonkin at melbourneit.com.au] 
Sent: 21 June 2006 03:33
To: Council GNSO
Subject: [council] Regarding Letter from American Intellectual Property
Law Association


Hello All,

I have read the letter from the American Intellectual Property Law
Association.  I don't understand how the letter relates to the
formulations 1 or 2.  It seems that members of the community have made
pre-mature judgements on the eventual outcomes of the WHOIS work.   The
letter raises issues about the importance of the data, and the need for
access to that data by law enforcement and other legitimate parties.
This seems entirely consistent with the current terms of reference of
the WHOIS task force.  I have sent the following reply to clarify that
there are no changes in collected data, nor in the requirement for that
data to be accurate.  The more important work has yet to be done, which
is developing better access controls.

Regards,
Bruce Tonkin



Dear Mr Kirk,
 
I will pass on your letter to the GNSO Council and the WHOIS task force.
 
I will note however that the GNSO Council does believe that its decision
is consistent with your requirements below.   The decision makes no
change to the requirement to collect the data or the requirement that
the data must be accurate.  Thus the data will still be available to
prove any IP infringement.   In fact one of the objectives of improving
controls on access to data is that it will lead to higher data accuracy
as registrants will be more comfortable in providing their true contact
information.


1.	A pattern of behavior that can lead to an inference of bad faith
which, under the UDRP, can result in the transfer of a domain name from
a bad faith registrant is frequently only provable through WHOIS;

2.	Unchecked IP infringement undermines business viability and
technical stability and could result in Internet fragmentation;

3.	Accurate and available information is essential for law
enforcement in crimes including spamming, denial of service attacks,
identity theft and account fraud, hate literature, terrorism and child
pornography;

4.	The requirement to provide accurate contact and identity
information acts as a deterrent to trademark infringement, copyright
infringement, cybersquatting, phishing, typosquatting and other IP cyber
infringements and facilitates  enforcement of IP rights.


The objective to make up-to-date and accurate WHOIS information
available to all who have a legitimate need to obtain such information
is consistent with the aims of the GNSO.  The current work is focussed
on considering methods for access control that ensure that only those
with a legitimate need have access.   This work has not yet reached any
recommendations.

Your letter does not seem to explain why the  American Intellectual
Property Law Association thinks formulation 1 is inconsistent with those
aims.
 
Regards,
Bruce Tonkin