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[comments-whois] MPAA Comments on the Whois Task Force Interim Report

Title: MPAA Comments on the Whois Task Force Interim Report

        The Motion Picture Association of America (MPAA) is pleased to provide its comments in response to the "Interim Report of the Names Council's Whois Task Force."  MPAA is a trade association representing the major producers and distributors of theatrical motion pictures, home video material and television programs.  MPAA member companies include Buena Vista Pictures Distribution, Inc. (Disney); Metro-Goldwyn-Mayer Studios, Inc., Paramount Pictures Corporation; Sony Pictures Entertainment, Inc.; Twentieth Century Fox Film Corporation; Universal City Studios, LLLP; and Warner Bros.

        Public accessibility to current and accurate Whois data provides much-needed transparency in the Domain Name System (DNS) and accountability for those who hold themselves out to the public over the Internet.  As such, it is an important tool not only for intellectual property owners - who rely on Whois data to combat cybersquatting and all forms of online infringement - but also for parents, consumers, Internet service providers, network engineers, law enforcement, and others.  This transparency and accountability serves to both facilitate the redress of abusive and unlawful conduct in the DNS and to deter such conduct in the first place.  That, in turn, leads to increased confidence in the Internet as a trustworthy platform for commerce and communications.

        MPAA appreciates the work of the Task Force and supports many of the recommendations contained in the Interim Report, which are strongly supported by the Whois Survey responses.

Accuracy of Whois Data

Unfortunately, MPAA has extensive experience with false Whois data, much of it supplied by bad actors that seek to hide behind such data to avoid accountability for unlawful and abusive conduct.  MPAA strongly agrees that enforcement of existing contractual obligations is an essential first step toward improving Whois data accuracy in the gTLD environment.  ICANN is to be commended for its recent efforts in this regard, including its May 10, 2002 registrar advisory, its supplemental actions to provide a centralized reporting and tracking mechanism for Whois complaints, and its first formal enforcement actions initiated in September 2002.  MPAA supports the further steps recommended by the Interim Report in Recommendation 1.0A and believes their implementation would enhance the reliability and accuracy of Whois data. In particular, we believe the following to be key recommendations and support their inclusion in the Final Report:

      °       Instructing registrars to use commonly available automated mechanisms to screen out obviously incorrect data (Recommendation 1.0A(4)(a)).

      °       Calling for the immediate cancellation of domain name registrations in cases involving "willful provision of inaccurate or unreliable information," including cases involving blatantly false Whois data (Recommendation 1.0A(4)(b)). 

      °       Requiring verification of "corrected" data by registrants that have already deliberately provided false data (Recommendation 1.0A(4)(c)).

      °       Calling on registrars to treat a complaint about false Whois data as to one registration as a complaint as to all registrations that contain the same Whois data (Recommendation 1.0A(4)(d)).

      °       Recommending that ICANN consider revising the RAA to require registrants to review and validate Whois data upon registration renewal, and to require registrars to spot-check a sample of registrations for accuracy and to use semi-automated methods - such as e-mail pinging and automated telephone dialing - to screen out obviously false Whois data (Recommendation 1.0C).

Each of these recommendations would contribute to much needed improvement in the accuracy and reliability of Whois data.  We believe these steps represent common sense and conservative mechanisms to improve the usefulness of Whois data for the purposes for which it is intended.

Uniformity and Consistency

        MPAA strongly endorses the conclusion that "uniformity of data elements and formats across as many TLDs as possible would be in the best interests of Internet users."  For MPAA member companies, uniformity of data elements and formats would contribute to better, more consistent information, which is key to effective enforcement of intellectual property rights in a DNS environment where infringement is no longer concentrated in a select few TLDs.  In particular, as more ccTLDs move to compete with unrestricted gTLDs as platforms for e-commerce and global domain name registrations, consistency of Whois data elements and formats becomes even more important to addressing abusive conduct in those name spaces.  Even more importantly, consistency of Whois data elements and formats across name spaces contributes to greater trust and confidence and an environment in which electronic commerce and the exchange of information can flourish.

        MPAA supports the Task Force recommendations that existing contractual obligations be enforced in the gTLD space.  MPAA also supports the call for continued efforts by ICANN to reach agreements with ccTLDs that include Whois policies, and that to the extent possible those agreements provide for consistent data elements and formats.  While national laws and other circumstances may dictate some variation in policies, basic policies requiring that accurate Whois data be provided by registrants and made available through a publicly accessible Whois service, and that failure to provide accurate data result in the cancellation of the registration, form a sound foundation for Whois policies across name spaces.  MPAA also supports the recommendation that ICANN consider a "voluntary program" for ccTLDs regarding Whois, using the WIPO Best Practices as a model, and that an effort be undertaken to identify barriers to uniformity.

Searchability of Whois Databases

        MPAA supports the three kinds of improved searchability called for by the Whois Survey respondents and highlighted in the Interim Report.  Continued work should be encouraged to provide query-based Whois search functionality across registrars and registries.  Existing policy should also be reinforced to restore Whois functionality to allow for searching additional elements beyond the domain name field.  Such functionality is important to trademark owners in proving a pattern of infringement - which is identified as being demonstrative of bad faith under both the UDRP and the U.S. Anticybersquatting Consumer Protection Act - and for copyright owners in investigating serial infringers.  As indicated by the Interim Report, realization of such functionality would be a restoration of the InterNIC Whois status quo ante.  Finally, MPAA supports the recommendation for more advanced database query capabilities and centralized search services across TLDs, including ccTLDs.  Several of the new gTLDs have committed to offer advanced query capabilities.  The implementation of those offerings should be monitored and, to the extent they prove successful, they might be looked to as models for broader implementation.

Marketing Use of Whois Data; Bulk Access Provisions

          The Whois Survey clearly indicates both privacy concerns over bulk access to Whois data for marketing purposes and strong support for the continued public availability of Whois data for legitimate purposes.  As the Interim Report recognizes, there are a number of legitimate non-marketing purposes for bulk access.  In fact, much of the functionality supported by the survey respondents might be realized through third-party services enabled by bulk access to reliable Whois data.  MPAA would support efforts to protect against the use of bulk access to Whois data for unwanted and unsolicited marketing purposes.  In fact, such efforts may in fact contribute to better, more accurate Whois data for legitimate uses.  Care can and should be taken, however, to address such privacy concerns in a way that continues to accommodate bulk access by responsible parties in furtherance of legitimate uses of Whois data.

Respectfully Submitted,

Troy Dow

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