[registrars] Copy of letter from Intellectual Property constituency to ICANN General Counsel regarding bulk WHOIS access

["Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au>]

Letter from the Intellectual Property Interests Constituency

1 May 2003
Louis Touton
General Counsel
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292-6601
United States of America


Dear Louis

BULK WHOIS

I am writing in my capacity as President of the ICANN Intellectual Property Interests Constituency ("IPC") to inform you of IPC members' concern relating to actions by the Registrar Constituency and certain registrars that threaten access to Whois data.  These developments are worthy of ICANN's attention, since Whois access helps to preserve and enhance the operational stability, reliability, and security of the Internet for everyday users by, amongst other things, assisting in the prosecution of cybersquatters and copyright pirates who would seek to take advantage of the public's increasing interest in cyberspace.  
 
To begin with, the IPC is extremely concerned about the recently adopted Registrar Constituency resolution calling for the outright elimination of the bulk Whois provision in the Registrar Accreditation Agreement ("RAA").  The IPC was pleased to support the prohibition of the use of bulk Whois data for marketing purposes, which the ICANN Board itself just approved.  However, the outright discontinuation of bulk Whois, without access for parties engaged in providing appropriate value-added services, such as those protecting the rights of intellectual property owners, will only serve to dismantle the stability, reliability and security that I referred to earlier.  We ask that you bear this in mind as this issue makes its way through the ICANN policy development process.
  
We have also been made aware of recent actions by certain individual registrars that appear to be designed to circumvent the RAA requirements regarding access to bulk Whois.  These actions include simply not responding to requests for bulk Whois information; deleting most of the information from the database before making it available under bulk Whois agreements; or drafting extremely restrictive, non-negotiable bulk Whois access contracts.  Such contracts are so one-sided that they have served as a significant deterrent for third parties to enter into an agreement with registrars, effectively denying access to bulk Whois.  Denial of such access is a violation of the RAA, something that falls squarely within the purview of ICANN's enforcement responsibilities.  We also note the conclusion of the Whois Task Force, in its November 30, 2002 Policy report, that "many [RAA] provisions relating to the bulk access rules are not currently being enforced." 

Thank you for taking the time to consider the concerns of the IP community with respect to access to Whois data. On behalf of the IPC, I look forward to your response.

Yours sincerely


Jane Mutimear 
President
jane.mutimear@twobirds.com

cc: Ken Stubbs:  kstubbs@afilias.info
Thomas Keller:  tom@schlund.de
Bruce Tonkin: bruce.tonkin@melbourneit.com.au