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

["Marilyn Cade" <marilynscade@xxxxxxxxxxx>]

Dear Bruce

Thanks for sharing the communication that you sent to the American
Intellectual Property Association letter. 

I would like for the Council to discuss how to deal with correspondence
related to the work of the  Council or its Task Forces, taking care not to
make any prejudgments in any responses regarding outcomes of policy work
that is underway. I believe that we have an appropriate agenda item on the
Council's upcoming meeting. 

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Bruce Tonkin
Sent: Tuesday, June 20, 2006 10:33 PM
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