[council] Regarding Letter from American Intellectual Property Law Association

Ross Rader ross at tucows.com
Wed Jun 21 18:52:35 UTC 2006

"AIPLA therefore maintains its request that the GNSO adopt a definition 
meeting the needs of all Internet users"

In this discussion, it would extremely helpful if stakeholders limited 
themselves to speaking for themselves. I have noticed a trend amongst 
various stakeholder groups to speak on behalf of other stakeholder 
groups. This makes it very difficult to have a frank and compelling 
discussion concerning the requirements of the various groups, and how 
they might be actualized through policy.

This statement, for instance, implies that the GNSO Council vote of 
support for Formulation 1 does not meet the needs of all users, and I 
suppose this is true. It is probably equally true that it is impossible 
to actually meet the needs of all Internet users - at least not in a way 
that everyone would be happy with.

In its current formulation, we have proposed and adopted a definition 
that seems to meet the needs of individual and non-commercial users, 
registries and registrars. The definition also seems to meet the needs 
of web host and ISP operators, at least those outside of the 
telecommunications sector, educational interests, human rights groups, 
and a significant number of governmental and law enforcement interests.

It is also quite apparent that this definition does not meet the needs 
of those that are seeking to preserve unfettered public access to these 
sensitive databases, such as the AIPLA and the rest of the intellectual 
property community (and other related parties such as those that place a 
higher relative value on intellectual property considerations than they 
do on privacy, convenience and cost considerations such as the GNSO's 

In all honesty, I don't think that we'll ever be at a point where what 
we do is 100% acceptable to everyone that uses the internet, but I think 
we can strive to be as fair as possible to as many as possible. In this 
instance, I suspect that we're very close to that ideal, and were it not 
for the inordinately loud voice of the intellectual property community 
and its capability to influence the United States Government and other 
similarly powerful stakeholders, we would probably have moved beyond 
this discussion many moons ago.

Thank you for passing this along Ute.


Ute Decker wrote:
> Forwarding the second letter sent by AIPLA today for further
> clarification:
> ==
> From: Michael K. Kirk [mailto:mkirk at aipla.org] 
> Sent: Wednesday, June 21, 2006 12:20 PM
> To: 'Bruce.Tonkin at melbourneit.com.au'
> Cc: 'vint at google.com'; 'sharil at cmc.gov.my'
> 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:Bruce.Tonkin at melbourneit.com.au] 
> 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




                 "Don't be too timid and squeamish about your actions.
                                            All life is an experiment.
                             The more experiments you make the better."
                         - Ralph Waldo Emerson

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Ross Rader
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