browse comments: WIPO RFC-3

WIPO RFC-3
metalitz@iipa.com
Fri, 12 Mar 1999 17:22:44 -0500

Browse by: [ date ][ subject ][ author ]
Next message: Willis H. Ware: "COMMENTS on DOCUMENT RFC_3"
Previous message: ruvenschwartz@hotmail.com: "WIPO RFC-3"

Attachment: http://arbiter.wipo.int/processes/process1/rfc/dns_attachments/rfc3/attach921277364.doc

COMMENTS OF THE INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE

on the

Interim Report of the WIPO Internet Domain Name Process

The International Intellectual Property Alliance appreciates this opportunity to comment upon the Interim Report of the WIPO Internet Domain Name Process ("Interim Report").

The International Intellectual Property Alliance (IIPA), founded in 1984, is a coalition of seven trade associations (AFMA (formerly the American Film Marketing Association), Association of American Publishers (AAP), Business Software Alliance (BSA), Interactive Digital Software Association (IDSA), Motion Picture Association of America (MPAA), National Music Publishers Association (NMPA), and Recording Industry Association of America (RIAA)), representing the U.S. copyright based industries. These associations represent over 1,350 U.S. companies (with over US $250 billion of annual gross revenue) producing and distributing works protected by copyright laws throughout the world - all types of computer software, including business and entertainment software; motion pictures, television programs and home videocassettes; music, records, CDs and audiocassettes; and textbooks, trade books, reference and professional publications and journals. These associations also participate actively in the online environment
, and have created thousands of web pages devoted not only to marketing and other commercial activities, but also to educate, inform and entertain.

IIPA submitted extensive comments in response to WIPO RFC-2, and we are pleased that many of our concerns are reflected in the Interim Report. Before turning to specific comments on the Interim Report, it may be useful to review the main interests of the copyright industries in the operation of the domain name system. (In this regard, I am authorized to state that the two largest performance rights societies in the United States, the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), representing the interests of the vast majority of songwriters, composers and music publishers, support this filing and have concerns similar to those expressed herein.)

Interests of the Copyright Industries

The copyright industries have a vital interest in the efficient functioning of the Domain Name System (DNS). The companies in this industry operate thousands of web sites using .com and country-code Second Level Domains (SLDs). These websites have become indispensable for the promotion and marketing of every kind of copyrighted material, from books and other printed matter to music and sound recordings, from audio-visual material to databases, and of all kinds of computer software, including both business and entertainment applications. Increasingly, these sites are becoming venues, not only for providing information about and technical support for these products, but also for the online delivery of copyrighted materials in digital form. Activities on some websites are becoming integrated into copyrighted products themselves, as with sites for interactive play of computer games over the Internet, or for the provision of enhanced features for commercially distributed audio compact discs.

Thus, companies in the copyright industries need to be able to register SLD's quickly, reliably, and at a reasonable cost. From this perspective, these companies are following the plans for the introduction of competition in domain names registration services with great interest. At the same time, a DNS that is not well-administered is a substantial threat to the vital interests of the copyright industries, in at least two ways.

Like other businesses, copyright-based companies own a substantial number of trademarks, trade names, service marks, slogans, character names and titles throughout the world, and thus are vulnerable to cybersquatting, warehousing, and other types of trademark infringement, dilution or tarnishment if SLD's are registered without proper safeguards or if dispute prevention and settlement procedures are deficient. In this regard, the concerns of companies in the copyright industries are similar to those of many other business concerns which rely heavily upon trademark and related forms of intellectual property protection.

However, in contrast to other businesses, companies in the copyright industries face another, potentially even more crippling problem if the DNS is maladministered. As it becomes more and more common for copyrighted works to be distributed in digital form, a domain name abuser can not only weaken, tarnish or dilute a copyright-based company's marks; it can also usurp some or all of the market for the company's product. A brand name like Toyota, Fiat or Cadillac can be undermined through laxity in DNS administration; but realistically it is not yet possible to distribute automobiles over the Internet. By contrast, pirated copies of popular songs or recordings, hit videogames, current movies, and the best-selling computer programs or books can increasingly be found on, and downloaded from, the sites of domain name thieves, or even from sites whose names do not directly threaten trademark interests.

This unique vulnerability requires companies in the copyright industry to ask not only how the DNS can be used to promote, market, transmit and distribute legitimate product, but also how it can be used to fight the accelerating trend toward online digital piracy. This trend is a major impediment to the development of electronic commerce, and if left unchecked will threaten the viability of the World Wide Web itself as a venue for global business.

Transparency of Registrant Data is the Key

Accordingly, the copyright industries' approach to DNS administration focuses on ensuring that the system allows copyright owners to rapidly and efficiently identify, pursue and shut down Internet sites involved in piratical distribution, public performance, and other infringing activities with respect to copyrighted works. The cardinal attribute for advancing this goal is transparency. The Whois database, and similar databases of SLD registrant information, must be robust, highly reliable in terms of both availability and data quality, and instantly accessible to all. Anonymity, "opt-in" or "opt-out" features and other opaque design elements should be avoided to the greatest extent possible.

Transparency is essential, not only for the enforcement of copyright on the Internet, but also for the protection of other vital legal interests. For example, the prevalence of fraudulent schemes online necessitates that consumers have ready access to Whois and similar databases in order to establish the identity and bona fides of the operator of a site with which they are considering doing business. Consumers also need this data in order to seek redress from unfair business practices once they occur. While IIPA acknowledges that to some extent these consumer protection considerations fall outside the scope of WIPO's inquiry, we mention them to illustrate that if the DNS lacks adequate transparency, copyright owners will not be the only parties whose vital interests are injured.

Many of the recommendations contained in the Interim Report will substantially advance the goal of a transparent DNS in which intellectual property piracy can be more readily prevented, and more readily remedied, than under current practices. For instance, the requirements for prepayment of domain name registration fees (Interim Report, paragraph 67); for representations of accuracy and non-infringement by registrants (paragraph 53); and for cancellation of registrations based upon inaccurate information (paragraphs 57, 101) are all commendable. However, the Interim Report is much less satisfactory on two key issues that go to the core of the transparency requirement: access to registrant database information, and the possibility of anonymous registration procedures.

Access to Registrant Database Information

While paragraph 88 of the Interim Report recommends that "a searchable database containing contact details of all domain name holders be made available," the option of "filtered access to the database" would, as a practical matter, render the database largely unavailable for use by copyright owners seeking to enforce their intellectual property rights against piratical Internet sites. The model described in paragraph 87 of the Interim Report would require the copyright owner to identify itself and "provide a justification of its interest in obtaining the detailed contact information," all of which could be instantly made available to the operator of the pirate site. Only after the pirate has been tipped off to the identity and strategy of the copyright owner would the latter be permitted access to the contact information in the database. A better system for shielding pirates and handicapping rights holders could hardly be devised.

Even if the option of disclosing the particulars of the copyright owner's request to the site operator were not incorporated in the "filtered access" system, the concept of filtration itself is counterproductive to the use of the database to bring some minimal degree of accountability to the operation of sites. Upon what legitimate grounds should the "relevant registration authority" interpose itself as an obstacle to the ability of a creator to identify the thief who is trafficking in stolen property belonging to the creator, in plain sight, through the operation of a pirate Web site? What purpose other than delay or outright denial could be served by the requirement that the right holder identify itself and state its "justification" for seeking information which ought to be readily available to all? Under this model, the pirate site operator and his customers may all be cloaked with anonymity, and thus with effective impunity, for their larcenous transactions. It is only the copyright owner, seeking t
o vindicate its rights, or at least to learn more about the circumstances under which its property is being stolen, who must disclose its identity and purpose.

The so-called "filtered access" option is in fact an option for access delayed, denied, or deprived of any value as an anti-piracy tool. It must be rejected in favor of the "unrestricted" option described in paragraphs 84-86.

Privacy and Anonymous Registration

IIPA believes that the Interim Report's discussion of anonymity and privacy issues in the DNS underestimates the value of transparency as the key tool for preventing intellectual property theft from occurring and for facilitating remedial action when it does occur. This misapprehension is quite apparent in paragraph 49, in which WIPO recites a number of considerations that it believes necessary if "both the recognized right to intellectual property protection and the recognized right to privacy can be accommodated."

IIPA agrees that, in theory, a distinction can be made between the collection of contact information and the making available of that information. However, in practice, the integrity of the DNS demands that all the contact information which is collected in the registration process should be made available without restriction through Whois and similar databases. The distinction made in paragraph 49(ii) between enabling contact with a registrant and identifying a registrant is problematic. In any event, registrars should collect, and should make readily available without restriction, all the information about registrants that is needed to allow right owners to learn who is operating a pirate site and to take expeditious action - including but not limited to initiating a lawsuit - to shut the site down. This emphatically should not be "the minimum information needed to facilitate contact," as paragraph 49(iii) suggests; a postal mailing address by itself would fulfill that function, but it would afford no
practical value whatsoever to a right holder whose intellectual property is being stolen. IIPA sees no justification for excluding from full disclosure any of the data elements listed in paragraph 50.

The legitimate degree to which domain name registrants should be able to impede access to current and complete contact information about themselves is minimal at best. Any privacy concerns can be accommodated through adequate disclosures to registrants at the time registration information is collected. Specifically, registrants should be advised that with respect to all personally identifiable information that is to be submitted: (1) the purposes of collection include disclosure (via "Whois" and otherwise) for the purpose of identifying SLD registrants; (2) the intended recipients of the data include any Internet user (since all such users should have access to "Whois"); and (3) the provision of all such data is obligatory for all registrants. In addition, the registrar should disclose that all personally identifiable information submitted is subject to verification for accuracy. Using such broad disclosures, it should be possible for the registrar to maintain the needed transparency while refraining fr
om processing the data in a way incompatible with its disclosures to registrants. The much more limited disclosure recommended in paragraph 55 of the Interim Report does not correspond to the reality of how "Whois" and similar databases of registrant information are used today, and of how they must be available for use in the future.

Paragraph 51 asks for comment on "whether it would be desirable to allow a domain name holder to remain anonymous on condition that it supply the contact details mentioned in the preceding paragraph of [sic] a designated agent." IIPA strongly opposes this suggestion. The capability for anonymous registration of SLDs invites abuse by pirates. Copyright pirates already make extremely sophisticated use of code names, shell companies and other techniques of evasion, and are sure to exploit the capability of anonymous domain name registration to frustrate efforts to track down and take down pirate sites.

It is not a satisfactory response to this objection to say that the identity of the actual registrant could be exposed eventually, through the use of some procedure involving the contact points for the actual registrant's proxy. Even if this were tolerable with regard to cases of trademark infringement of companies whose products cannot be digitized and downloaded, a copyright owner's market can be ruined if a pirate web site remains undisturbed for a few hours, more than enough time to download an entire digital work or to transfer it to another location, on or offline. Before the end of this year, as greater access bandwidth becomes more commonplace, the critical timespan is likely to be measured in minutes, rather than hours. To divert the copyright owner to some cumbersome procedure simply to determine the true identity and contact information for the site registrant is to eliminate all effective transparency from the system in such cases.

In theory it might be possible to develop a mechanism whereby any ISP that submits registration data on behalf of an anonymous registrant must agree to bear full legal responsibility by standing in the shoes of the registrant with regard to acceptance of service of process and the like. However, the Interim Report seems to rule out such a mechanism in paragraph 64, which declines to require registrants to designate an agent for service of process, and relies instead upon "the provision of accurate and reliable contact information [as] a sufficient safeguard." Of course, allowing anonymous domain name registration totally negates this "safeguard."

An individual's legitimate desire to maintain a presence on the World Wide Web without disclosing his or her identity to the world can easily be satisfied through arrangement between the individual and the ISP hosting the personal site. Anonymous registration of SLD's is not needed to achieve this. Until a detailed and satisfactory mechanism for assigning full legal responsibility to the proxy is in place, efforts to conduct domain name registration anonymously via proxy amount to the submission of false registration information and should be treated as such.

Other Issues

Besides the need for transparency and the unacceptability of a system of anonymous domain name registration, IIPA wishes to comment on a few other aspects of the Interim Report.

Temporary Relief. In its comments on WIPO RFC-2, IIPA called for the dispute resolution system to provide for "temporary relief (preferably ex parte), such as the suspension of a domain name in the case of a legitimate objection to an existing domain name registration (for example, in the case of false applications, cybersquatting, warehousing, proof of prior trademark registration, etc.). Suspension procedures should permit immediate (if not automatic) suspensions of domain names upon a showing of a modicum of proof of illegitimate use (and possibly the posting of a bond by the complainant). In cases of blatant cyber-piracy, claimants should be able to obtain quick and decisive relief."

The recommendation in the Interim Report regarding the length of proceedings in the dispute settlement mechanism (paragraph 171) clearly does not meet this "quick and decisive" criterion. It calls for decisions on requests for interim measures "to be granted within one week of the commencement of the procedure." This pace is too leisurely by several orders of magnitude. As noted above, copyright piracy carried out by domain name abusers can inflict a fatal blow on the market for a copyrighted work within hours if not minutes. IIPA submits that WIPO's observation (in paragraph 170) that "typical cases of clear abuse should be resolved within a matter of days or weeks" ignores the faster velocity of "Internet time." The dispute settlement system should deliver interim relief within a few hours at most if it is to provide a viable alternative for copyright owners.

Requirements to Update Registration Information. The Interim Report's rejection of the suggestion to require registrants to correct or update contact information promptly may derive from a similar misapprehension about the pace of activity on the Internet. Instead, WIPO concludes that "the time of re-registration [of the domain name] is the logical point at which the accuracy of contact details could be practically verified" (paragraph 93). Elsewhere, the Interim Report notes that the typical registration term is one year (paragraph 68). In other words, under WIPO's proposal, a domain name abuser who provides accurate contact information for the initial registration of the site on January 1 is free to change all its contact information on January 2, with no obligation to provide updated information for inclusion in an accessible database (such as Whois) until the following year. Indeed, it can continue to operate its site well into the second year, until a "second notice or reminder" is sent, without
ever bothering to correct the information. During this entire period, the contact information in "Whois" will be inaccurate and therefore worthless.

Since pirates frequently migrate to new sites on a daily or weekly basis in order to evade detection, offering them more than a year of invisibility is a bonanza which should not be countenanced. Registrants should be obligated to provide updated contact information within days at most, subject to suspension or cancellation of their registrations. Such an obligation seems implicit in the "take-down" procedure which WIPO recommends be instituted (see paragraph 99), but should be spelled out in the registration agreement to avoid any ambiguity. It should also be made clear that a registrar has a responsibility to respond to any reasonable notification by a third party that a registrant's contact information is no longer accurate; if it is no longer possible to contact an SLD registrant because the contact information submitted is false or outdated, it should not matter whether or not any third party can state its "good faith belief that the registration and use of the domain name infringes its intellectual
property right," as paragraph 99 requires.

Automatic screening of registration information. In response to the request made in paragraph 92, IIPA reiterates that domain name registrars should bear some responsibility to screen out registration applications containing obviously false contact information. Both online data validation mechanisms (such as making impossible the submission of applications lacking data in all contact fields) and automatic confirmation of the applicant's submitted e-mail address, hostname, and netaddress of the primary and secondary servers appear practical and should be required. Automatic periodic (e.g., monthly) queries to the e-mail address submitted by the registrant could also easily be generated; if those queries were returned because the mailbox in question was no longer active, registrars would be alerted to the likelihood that submitted information was no longer accurate. In addition, a number of automated tools are now available to registrars to facilitate data screening without an undue expenditure of resourc
es. For example, utilities that check for the proper number of digits in the zip codes of mailing addresses in the United States, and that correlate those zip codes with telephone area codes of fax and telephone contact numbers, are staple tools of commercial database management, and should be employed by registrars as a matter of course. In general, every registrar should be required to conduct a reasonable degree of screening of submitted registration data, to bolster the data quality of the "Whois" and similar databases.

"Differentiation" and new gTLD's. The Interim Report suggests in paragraph 49(iv), and spells out in paragraphs 279-284, the idea of differentiating between commercial and non-commercial domain spaces, and lessening the requirements for provision of contact information by registrants in the latter space. As IIPA understands it, this proposal would create two tiers in the DNS, one transparent and the other partly or completely opaque with regard to the contact data on registrants. If such a bifurcation were adopted, it would be a matter of nanoseconds before piratical activity migrated to the opaque tier. The notion that pirates would be deterred from doing so by a requirement to warrant that the domain name not be used for commercial purposes is unsupportable. In any case, online piracy increasingly takes the form of activities carried out by purported hobbyists, fans, or others who can claim (with greater or lesser degrees of sincerity) a non-commercial purpose. It is becoming increasingly clear to
policy makers that such "non-commercial" infringers can inflict just as much damage on legitimate copyright owners as unabashedly commercial pirates. (This realization impelled the U.S. Congress to amend the criminal provisions of the Copyright Act last year to apply them to "non-commercial" infringers who inflict significant damage.) To exempt such "non-commercial" parties from accountability by eliminating transparency in the registration process with respect to them would be a grave error. The "differentiation" proposal should be rejected.

Finally, IIPA applauds WIPO's decision to review the domain name registration policies of the ccTLD's, and to encourage the adoption of sound dispute prevention and resolution policies in all the existing gTLD's (see paragraphs 274-276). Only once these policies have been fully implemented, including by as many ccTLD's as possible, should new gTLD's be introduced. We believe that this perspective is consistent with the discussion of this issue in paragraphs 277-278.

Conclusion

IIPA hopes that these comments are useful to WIPO as it prepares its final report for submission to the ICANN and to WIPO's member States. We commend WIPO on its valuable work on this important issue, and are pleased to offer our assistance in future initiatives in this sphere.

Respectfully submitted,

Steven J. Metalitz
Vice President and General Counsel
International Intellectual Property Alliance
1747 Pennsylvania Ave., NW, Suite 825
Washington, DC 20006 USA
202/833-4198 (ph)
202/872-0546 (fax)
metalitz@iipa.com

Washington, D.C.
March 12, 1999

 -- Posted automatically from Process Web site