browse comments: WIPO RFC-3

WIPO RFC-3
reverett@haleybp.com
Thu, 11 Mar 1999 17:34:18 -0500

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Ray Everett-Church, Esq.
Haley Bader & Potts, PLC
4350 North Fairfax Drive, Suite 900
Arlington, VA 22203-1633
reverett@haleybp.com
http://www.haleybp.com

Comments in Response to WIPO RFC-3

1. The following personal comments are submitted in response to WIPO’s Request for Comments Number 3 (WIPO RFC-3). They represent only my own views and do not necessarily represent the opinions of my firm or its clients.

2. The fundamental purpose of the DNS registry database seems to have been forgotten. To read the entirety of WIPO’s Request for Comments Number 3, one would assume that the sole purpose of the maintaining a registry of domain name holders is for facilitating the identification of a defendant in the intellectual property disputes that will inevitably arise. The purpose of my comments is to respectfully remind the committee that assisting the determination of intellectual property rights in domain names is not the primary purpose of the registration process and the maintenance of registry information. Indeed, to the extent that the enforcement of intellectual property rights is aided by the domain name registry process, such benefits are purely a by-product. Moreover, to allow the frenzy of intellectual property disputes in cyberspace to drive fundamental changes in the operation of such a system is a dangerous example of the “tail wagging the dog” – an ancillary issue driving change at the center.

3. To understand what changes in the domain registry database will improve it, it is helpful to recall why a publicly available registry database was first created, and who depends upon its functioning from day-to-day. As RFC-3 correctly recounts in paragraphs 4 and 10, the use of domain names is not only vital to the ease of using the Internet, domain names have become an important part of our lives and of global business. Fundamentally however, the process of registering domains and maintaining information about those domains is key to making sure the system functions.

4. At the front lines of the daily process of keeping the Internet functioning are system administrators who operate and manage those systems. For them, the domain name registry databases are as integral a tool as any other administrative resource at hand. When electronic mail cannot be delivered, when web browsers cannot find a site, when a server is caught in an infinite loop and is flooding a network with spurious datagrams, or when entire networks suddenly disappear from the Net, a system administrators first action is to contact the site in question. And the only reliable way to do this is to query the database. Thus, the importance of the database in maintaining properly functioning networks cannot be understated.

5. As one who utilizes the ‘whois’ databases of numerous registry authorities several times a day, both in administering my own personal domains and in serving clients of my law firm who frequently have domain-related issues, I can fairly and accurately report that the current state of the database for the generic Top Level Domains (gTLDs) of .COM, .NET, .ORG, and .EDU is, in a word, abysmal. I have recently had properly registered domains disappear from the network with no warning or explanation. Inquiries to the database return incomplete information that, while it undoubtedly exists in the database, cannot be accessed for hours or even days at a time. Changes to critical operational data may take weeks to process and, once processed, have the habit of occasionally reverting back to the prior obsolete information. InterNIC, operated by Network Solutions, Inc. (NSI), acknowledges a number of these problems and makes efforts to correct them. But some of the problems are inherent to the system.

6. With the growth of direct marketing in the online arena, a growing number of direct marketers have come to view the domain registry database as their own private direct mail list to be harvested, manipulated, and used as they wish. The constant datamining of the registry database has cause substantial operational problems for NSI, causing the system to be overloaded with requests, rendering the database unreachable for legitimate usage on many occasions. The media have even reported that NSI was forced to block access from certain sites operated by direct marketers because of the huge volume of database queries flooding in.

7. In response to the excesses of those marketers and the resulting flood of unsolicited postal and email advertisements sent to the administrative contacts for domains, a disturbing trend has emerged: the deliberate falsification of registration information by registrants. There are at least two reasons why some registrants register using false information. First, some legitimate registrants simply wish to avoid being added to more and more marketing lists for faxes, phone calls, postal mail, and unsolicited email (sometimes called “spam”). Second, some registrants who use domains in conjunction with the sending or unsolicited bulk email will provide false registration information so as to avoid being deluged with complaints. In a celebrated example, a range of domains being used to launch costly and damaging “spam” attacks on various Internet service providers were registered to a fictional consular office on the planet Mars. Regardless of the reasoning underlying the falsification of registry informat
ion, the ultimate effect of this practice is to impede and complicate the diagnosis of network problems.

8. While I cannot prescribe a solution to the issue of how registration should occur, I urge the committee to seek a middle ground between functionality, accuracy, unfettered and timely access for legitimate purposes, and methods for protecting the system from abuses by marketers and others. It will undoubtedly be helpful for those seeking to protect intellectual property rights to have a reliable source of domain contact information, but any changes that the body recommends must be improvements to the core functionality the current system, with any benefits to intellectual property owners remaining an secondary concern. Therefore, I strongly urge that the original reasons and purposes for a publicly accessible registry database be borne carefully and constantly in mind.

Ray Everett-Church
Haley Bader & Potts P.L.C.
Arlington, Virginia
USA

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