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Re: [council] Regarding Letter from American Intellectual Property Law Association

"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 BCUC and ISPC.)
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.

-ross

Ute Decker wrote:

Forwarding the second letter sent by AIPLA today for further
clarification:
==
From: Michael K. Kirk [mailto:mkirk@xxxxxxxxx] Sent: Wednesday, June 21, 2006 12:20 PM 
To: 'Bruce.Tonkin@xxxxxxxxxxxxxxxxxx'
Cc: 'vint@xxxxxxxxxx'; 'sharil@xxxxxxxxxx'
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@xxxxxxxxxxxxxxxxxx] 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



Regards,

--

                       -rr








                "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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