Before the

NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION

UNITED STATES DEPARTMENT OF CONGRESS

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In the Matter of :

: Docket No. 060519136-6136-01

The Continued Transition of the Technical :

Coordination and Management of the :

Internet Domain Name and Addressing :

System :

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COMMENTS OF THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS

The American Society of Composers, Authors and Publishers ("ASCAP")
hereby submits these comments in response to the Notice of Inquiry
("NOI") of the National Telecommunications and Information
Administration ("NTIA") dated May 23, 2006 seeking comments on the
continuation of the transition of the technical coordination and
management of the Internet domain name and addressing system to the
private sector.

While all the questions posed by the NTIA are of critical importance,
ASCAP's comments are limited to one significant point. Question two of
the NOI addresses the progress of the Internet Corporation for Assigned
Names and Numbers ("ICANN") in fulfilling its tasks under the existing
memorandum of understanding with NTIA (the "MOU"). Those tasks include
"implementing measures to improve the accuracy of Whois data" (para.
II.C. 10) and augmenting its "system for auditing material contracts for
compliance by all parties to such agreement" (para. II.C.14.g). As set
forth more fully below, while ASCAP strongly supports the critical role
played by ICANN in managing the domain name system, ASCAP urges the NTIA
to ensure that in continuing the transition of such management, such
transparency and accountability tasks made a part of ICANN's managerial
role -- i.e. providing accurate Whois data and managing its contracts
\-- be continued, and improved upon where possible.[^1]

### ASCAP's Interest in Ensuring Free Unfettered Access to Accurate Whois Data

ASCAP is the oldest and largest performing rights society in the United
States and a founding member of ICANN's intellectual property
constituency. ASCAP licenses the public performance of copyrighted
musical works on behalf of over 225,000 songwriter and publisher
members, in addition to works of virtually every foreign society through
reciprocal agreements with such societies. ASCAP has entered licenses
with thousands of music users who perform the millions of songs in
ASCAP's repertory in all venues and media, including television and
radio broadcasts, satellite and cable transmissions, and since 1995, the
Internet.

As part of its licensing efforts, ASCAP identifies and licenses web
sites that make public performances of ASCAP music. Unfortunately, not
all web site owners are willing to cooperate, and some make even the
most preliminary contact very difficult. Without the ability to identify
and, where appropriate, contact the owners of these sites, ASCAP would
be substantially impaired in obtaining fair compensation to ASCAP's
members for the use of their works. Indeed, the majority of ASCAP's
members are not superstars earning millions of dollars annually, and
must rely on every penny to earn a living. It is for their benefit that
ASCAP's licensing efforts are so crucial.

Identifying the owner/operators of some media outlets is fairly simple.
For example, television and radio broadcast stations must be licensed
with the FCC and data concerning such stations, including contact
information, is readily available to the public. Similarly, information
regarding restaurants, clubs, arenas and other venues are also publicly
available. However, performances of music via Internet web sites may be
made -- and often are made -- anonymously. In such instances, ASCAP must
rely on Whois information to identify and contact such user to negotiate
a fair and reasonable license.

Without publicly available accurate Whois data -- particularly owner
name and contact information \-- it would be unreasonably difficult for
ASCAP to determine the owner of web sites that perform copyrighted
music. With accurate, publicly available free Whois data, ASCAP is able
to contact web site owners, negotiate performance licenses and fairly
distribute royalties to the owners of performed copyrighted music.

Of course, ASCAP's members have additional personal needs for
transparent Whois data. ASCAP's members are also recording artists who
seek to prevent piracy of their recordings, consumers who want to be
ensured that the web sites they visit are not fraudulent, journalists
who seek to identify perpetrators of hatred and violence, and parents
who want the ability to control and hold accountable those that target
their children with inappropriate content. In each case, accurate
publicly available Whois information is crucial to meet those ends.

Ensuring the free and open availability of accurate Whois information
supports many of ICANN's core values, including:

-   Preserving and enhancing global interoperability of the Internet

-   Respecting the creativity, innovation and flow of information made
    possible by the Internet

-   Seeking and supporting broad, informed participation, reflecting the
    functional, geographic and cultural diversity of the Internet at all
    levels of policy development and decision-making

-   Acting with a speed that is responsive to the needs of the Internet

-   Remaining accountable to the Internet community

As the domain name system has evolved over the years to include
competition among registrars, both domestic and foreign, installing and
policing a standard Whois policy is not an easy task. Accordingly, we
strongly urge the NTIA to evaluate whether ICANN has done enough to
improve the accuracy of Whois data, and whether it has effectively
audited compliance with the Whois-related obligations of domain name
registrars and registries. The NTIA should consider how best to shape
its relationship with ICANN to ensure the preservation of unimpeded
access to Whois data for consumer protection, assertion of legal rights,
prevention of fraud and identity theft, and other legitimate, beneficial
and well-established uses of this data.

## Dated: July 6, 2006

## 

## Electronic Copy Filed by e-mail Pursuant to the Notice's Instructions

Respectfully Submitted,

AMERICAN SOCIETY OF COMPOSERS,

AUTHORS AND PUBLISHERS

Samuel Mosenkis

Director of Legal Affairs

ASCAP

One Lincoln Plaza

New York, N.Y. 10023

Email: <Smosenkis@ascap.com>

[^1]: Contract compliance is significant since domain name registrars
    and registries are obligated by contract with ICANN to provide free,
    web-based, real-time Whois services, and to take reasonable steps to
    maintain its accuracy.