[comments-transfer] NYIPLA Internet Law Committee Comments Regarding Interim Reportof the Names Council's WHOIS Task Force
Title: NYIPLA Internet Law Committee Comments Regarding Interim Report of the Names Council's WHOIS Task Force
These comments are submitted on behalf of the New York Intellectual Property Law Association, Internet Law Committee (the “Committee”), and address in particular Section 3 of the October 14 Interim Report. (An opinion of one Committee member dissenting in part from the principal comments immediately follows as part of this message.) As noted below, the Committee is concerned that whois databases are no longer as freely searchable as they were before creation of the current shared registry system and that various registrars no longer make accessible to the public even the minimum information contemplated by the existing Registrar Accreditation Agreement.
As noted in the Interim Report of the Names Council's WHOIS Task Force, Section 3.3 ICANN’s existing gTLD registry agreements, entitled Public Access to Data on Registered Names, specifies that accredited registrars must provide “free public query-based access to up-to-date (i.e., updated at least daily) data concerning all active Registered Names sponsored by Registrar for each TLD in which it is accredited.” Such freely available data include, minimally, at least nine categories of information specified in Section 3.3 of the Registrar Accreditation Agreement. Such minimal requirements are consistent with the public character of the internet, and consistent with the statutory scheme under which domain name registrations are made.
Indeed, by voluntarily applying to register a domain name, a registrant engages in conduct regulated by the Lanham Act, as amended, including in particular 15 U.S.C. §1125(d), and freely submits itself to such statutory requirements. As provided in the Lanham Act, a registrant’s rights in a domain name may be subordinate to pre-existing rights of trademark owners. It is inconsistent with this federal statutory scheme to permit domain name registrations to become secret, or to deny access to such records, in whole or in part, to parties affected by such registrations. Indeed, just as incorporation records (maintained in the offices of the secretaries of state of the several states of the United States) or trademark applications in the United States Trademark Office, are public records, it is the view of this Committee that domain name registrations are equally public records.
Before introduction of the current shared registry system, the InterNIC whois database maintained by Network Solutions permitted relatively easy online searching of domain names and domain name registrants. Up to fifty records could be identified in response to any single such query. Until quite recently, registrant data was also freely searchable by numerous data fields. The Committee is not aware of any registrars that continue to provide access to whois data in a manner remotely similar to such prior practices (including of course Verisign).
Moreover, other registrars, including Register.com, now offer registrants the opportunity to opt out of making public their registration information. Such practices not only are inconsistent with the general provisions of the Registrar Accreditation Agreement discussed above, they are at odds with Section 3.3.5 of the agreement, which provides that “Registrar shall not impose terms and conditions on use of the data provided, except as permitted by policy established by ICANN.”
Therefore, it is the recommendation of the Committee that public access to whois databases at the very least be restored to the level maintained before creation of the shared registry system, if not indeed enhanced beyond such minimal threshold levels, and that registrars not be permitted to render secret what heretofore has been and henceforth should be public information.
I respectfully dissent from the Committee's position on the required verified elements of a WHOIS record. Instead, I would support a formal option to register domain names anonymously or pseudonymously -- a practice that is currently possible through the use of plainly fictitious (and heretofore unverified) contact information.
Domain names are not merely the objects of trademark disputes, they are also important facilitating elements for online speech. Just as it is legal to publish a book or broadsheet with no indicia of authorship or publisher, it should be legal and possible to publish a website or other Internet communication without such identification. Indeed, in the United States, anonymous speech is a constitutionally protected right. Most domain names do not conflict with trademark rights, and ICANN would be overreaching its mandate to subordinate broad free speech interests to this relatively narrow concern.
Use of anonymous or pseudonymous contacts does not give a domain name registrant greater rights than one who uses real contact information, and does not prejudice a trademark owner with a legitimate concern about the domain name's use. The Rules for the Uniform Domain Name Dispute Resolution Policy already provide for decision based upon the complaint if the domain name registrant does not respond after reasonable efforts have been made to contact him. (UDRP Rules 5(e), 2(a)). These provisions, along with the availability of "John Doe" lawsuits, protect the interests of trademark owners even against anonymous infringers. Proactive identification of every domain name registrant is unnecessary to achieve these goals.
I agree with the Committee and the WHOIS Task Force that there should be free, open, and uniform public access to the WHOIS data that is collected.