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 <[log in to unmask]> To: Council GNSO <[log in to unmask]> Forwarding the second letter sent by AIPLA today for further clarification: == From: Michael K. Kirk [mailto:[log in to unmask]] Sent: Wednesday, June 21, 2006 12:20 PM To: [log in to unmask] Cc: [log in to unmask]; [log in to unmask] 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:[log in to unmask]] 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