New York, NY 10036-5794
Viacom’s Submission on GNSO Whois Task Forces Preliminary Reports
Viacom International Inc., its subsidiaries and affiliated companies including Paramount Pictures Corporation, CBS Broadcasting Inc., Black Entertainment Television, MTV Networks, Showtime Networks Inc., Simon & Schuster, Inc., Spelling Entertainment Television, Infinity Broadcasting Inc., Viacom Outdoor Inc., among many others (collectively, the “Viacom Companies”) are world-renowned entertainment and communication companies involved in the production and distribution of motion pictures and television programming, cable and television broadcasting, distribution of home video and games, publishing and radio broadcasting, outdoor advertising and the promotion of content and various services via the Internet. The Viacom Companies vigorously protect their intellectual property rights worldwide including through enforcement efforts against third party domain name registrations and infringing websites.
In their efforts, the Viacom Companies rely on real-time, prompt, anonymous, public access to accurate and up-to-date Whois information for enforcement against online copyright and trademark infringement, as well as for management of our domain name portfolios and a host of other legitimate and productive purposes. We use this information on a daily basis to review third party domain name registrations, evaluate infringements and contact the infringers to make them aware of our claims and take further action if necessary. Accordingly, it is crucial that we be able to view accurate information including the registrant and administrative contacts’ names and addresses, and emails or facsimile numbers without onerous restrictions on use. In addition, it is important that we be able to review the registration and expiration dates to determine whether to monitor the domain, prepare to acquire it after its imminent release to the general pool, request additional representations of the registrant not to renew or sell it to another, or take additional precautions such as backordering the domain.
The Viacom Companies have participated and provided comments on prior ICANN reports (directly and through the Motion Picture Association), and now offer the following comments on the three preliminary reports of the Generic Names Supporting Organization’s (“GNSO”) Whois Task Forces. We applaud the Task Forces' efforts and are grateful for the opportunity to submit comments for consideration in these reports. Our comments focus on the tiered access recommendations in the Task Force 1 and 2 reports and the accuracy recommendations of Task Force 3.
Tiered Access: Task Force 1 Recommendations C.7, C.8;
Task Force 2 Recommendation 3.5
The Viacom Companies heavily rely on the accurate information currently provided by registrars’ reports including registrant and administrative and technical contact names, addresses, phone, fax and email addresses, registrar name, and registration, expiration and last modified dates. We believe maintaining the status quo is crucial to accountability of registrants and users of the Internet, as well as intellectual property holders. The “tiered access” proposal deviates sharply from the current system by providing different levels of access to different users and requiring onerous restrictions by the users of Whois: the “lower” level or general public access to Whois is sharply restricted to only technical data, and perhaps a minimal amount of registrant and administrative contact data, while the non-public “upper” tier would contain the contact information, but would require the users to qualify for access. The proponents of tiered access claim that this system will prevent data mining and protect registrants’ privacy concerns. While we strongly believe in the status quo and believe there are other mechanisms in place to protect privacy, we would consider a tiered access proposal under certain conditions, if the benefits of the current system could be preserved, namely real-time, prompt accurate access to registrant or contact information and registration and expiration dates. In addition, there are many unresolved questions about the proposed system which must be answered before any such proposal may be considered: What information would be available in the top tier? How is this information different from the current system? What are the qualifications a user must have to obtain access to the top tier? Who determines who qualifies for the top tier (ICANN, each particular registrar)? Whether access would be granted by all registrars through a central authority or by each registrar? Whether this grant is for all requests once the requestor is qualified or is on a case-by-case basis? Who pays for the system or to become qualified? How long does it take to become qualified? Timing is crucial, especially in the online environment. When websites hosting infringing content can be created, exploited, and abandoned in a matter of hours, prompt access to accurate and up-to-date Whois information is critical.
More importantly, the Viacom Companies are concerned with changes to the system mandating that Whois requestors no longer have anonymous access to the databases, but instead must disclose their identity to the registrant. In this regard, there are open issues concerning what information would in fact be disclosed to the registrant, and when and whether that information is verified. In many instances, the disclosure of our identity in our online investigations would be detrimental to our enforcement efforts. For example, if a domain name registration is about to expire and we are closely watching the status because we want to register it ourselves, disclosing our identity and tipping off the registrant to our interest in the domain would seriously affect our efforts. In addition, we often rely on investigators or third parties to investigate and attempt to purchase domain names from registrants. If the entities’ information is disclosed or its efforts impeded by the tiered access system, our efforts are put at risk.
If a revamped system of access to Whois data imposes significant obstacles in cost, time, inconvenience, or insecurity, to timely and anonymous access to at least the range of registrant contact data that is currently available, then such a system will not work to advance the important goals of accountability that are furthered by the current system.
Proxy Registration Services: Task Force 2 Recommendation 3.2
“Proxy” registration services permit registrants to place the name of another party, often the registrar, instead of the actual registrant’s name in the Whois database. The proxy then assumes legal responsibility for any harm caused by the domain name registration unless “it promptly discloses the identity” of the actual registrant when presented with “reasonable evidence of actual harm.” The Viacom Companies support the recommendation to further examine this practice, which could, if properly implemented provide a viable system for registrants that seek to achieve better privacy protection.
Task Force 3 Recommendations
The Viacom Companies support Recommendations 1, 2, 8, 9 and 10, which include mechanisms for requiring the accuracy of the Whois information. We believe that it is the registrar’s responsibility to obtain and maintain accurate registration information for enforcement and accountability purposes. Furthermore, in many cases those who register one domain name with false data have similarly used false data to register other domain names, so under these Recommendations, when any domain name is cancelled or placed on hold for failure to provide accurate contact data, all domain names with similar false contact data should be likewise cancelled or placed on hold. Moreover, ICANN should undertake to create a mechanism to monitor and report registrars’ compliance. Inaccurate or false information results in significant delays and burdens on our enforcement program, and undermines the usefulness of Whois data generally for a wide range of legitimate business purposes.
The Viacom Companies support Recommendation 5 which proposes the addition of a “last verified date” element and a “method of verification” element to the Whois database. Such elements will significantly contribute to the overall accuracy and reliability of Whois information, and such information is crucial to our enforcement efforts in locating the infringers.
The Viacom Companies support Recommendation 6, sub recommendation 4, in which registrars would be required to take steps to correct false data in all registrations for which substantially similar Whois information has been shown to be false for one of those registrations. The existence of such duplicate registrations is, under the current system, easily known to each registrar but invisible to the public. The Viacom Companies also support Recommendation 7 which requires that registrants annually update contact information.
Finally, the Viacom Companies support Recommendation 12, which allows for a scale of graduated sanctions to improve ICANN’s enforcement of registrars’ obligations. Since the penalty of de-accreditation is severe and rarely utilized, different sanctions short of de-accreditation could be applied to different violations contributing to more effective enforcement of compliance, and thus, to the accuracy of the Whois database as a whole.
The Viacom Companies thank you for the opportunity to submit these comments.
Associate General Counsel, Intellectual Property
Viacom International Inc.
New York, NY 10036