Further to recent discussions on these lists regarding ownership of data
contained in the whois database of domain names, reprinted below is ICANN's
comments on this issue made in response to questions asked by Rep. Bliley
(R- VA), Chairman of the US House Commerce Committee. All of ICANN's
responses are at
http://www.icann.org/correspondence/bliley-response-08july99.htm
"Question :1(c). Has ICANN conducted, or had conducted on its behalf, a
legal analysis of its authority to retain intellectual property rights over
registrar data? If ICANN has conducted such a legal analysis, please
provide all records related to the aforementioned legal analysis. If ICANN
has not conducted such a legal analysis, please provide a detailed legal
analysis of the source and limits of ICANN's authority to retain
intellectual property rights over registrar data.
[ICANN's Response]: ICANN has not sought to "retain intellectual property
rights over registrar data," and thus has not had occasion to conduct a
legal analysis concerning its ability to do so. ICANN’s Statement of
Registrar Accreditation Policy (adopted on March 4, 1999 after extensive
public comment) provides that ownership of intellectual property rights in
registrar data, to the extent those rights exist under law, is not
"retained" by ICANN, but instead may be claimed by the registrars
themselves. This treatment of intellectual property is reflected in the
provisions of the accreditation agreements ICANN has entered, and stands
ready to enter, with all accredited registrars.
During the process of domain-name registration, registrars collect various
data typed in by registrants. This data includes the domain name itself,
identifying information about the registrant, the registrant’s designation
of administrative, technical, zone, and billing contacts for the domain
name, and technical information concerning the Internet "nameservers" that
are associated with the domain name. Historically, this data has been
freely available to those operating and using the Internet on a query basis
through a service known as "WHOIS," to assist them in resolving problems
that may arise with domain names.
Under current United States law, it is highly doubtful that collection by
registrars of this factual information gives rise to any enforceable
intellectual property rights. Under Feist Publications, Inc. v. Rural
Telephone Service Co., 499 U.S. 340 (1991), copyright may not be claimed in
factual information itself, but only in the selection, coordination, or
arrangement of the information in a sufficiently original way. It therefore
violates no copyright for others to use the registrar data for their own
purposes according to their own selection, coordination, and arrangement.
Similarly, because the registrar data has long been available to the public
for the asking, both by Internet tradition and by U.S. Government
requirements, it would not seem to be subject to legitimate claims of
trade-secret rights.
Although not giving rise to intellectual-property rights under current U.S.
law, registrar data may be subject to claims of intellectual property
rights under the laws of other countries, or under future laws that may be
enacted in this country at the state or federal level. Claims under such
laws, if not accommodated to the Internet’s needs, could complicate the
efforts of the technical community to ensure stable and reliable operation
of the Internet and the legitimate needs of the Internet user community for
information about domain names. Pending proposals for extending U.S.
intellectual-property law to cover databases, fortunately, take into
account these special operational needs of the Internet. For example, H.R.
1858 (the Consumer and Investor Access to Information Act of 1999), which
protects publishers from others who seek to compete unfairly by copying and
selling the publishers’ databases, specifically excludes coverage of
databases "incorporating information collected or organized . . . to
perform the function of addressing, routing, transmitting, or storing
Internet communications . . . ."
The accreditation agreements entered by registrars with ICANN include
provisions addressing these stability concerns. Although registrars are
permitted by their agreements to claim any applicable intellectual-property
rights in most types of registrar data, they provide two licenses to the
data to accommodate the needs of the broader Internet community: (1) a
non-exclusive worldwide license to use of the data for or on behalf of
ICANN for its Internet-management purposes, such as to permit a substitute
registrar to support the customer in case the original registrar goes out
of business, and (2) a non-exclusive license to use the data in WHOIS
services. Registrars also disclaim rights in a limited core of routing data
that must be broadly copied and distributed throughout the Internet to
permit the domain-name system to function properly. These limited
contractual provisions ensure that the data that accredited registrars
collect will be available in specific limited ways necessary to ensure the
Internet’s continued stable and convenient operation, but otherwise leave
with the registrar any intellectual property rights that it may be able to
claim in any particular jurisdiction."
///
At 11:38 AM 7/1/99 -0400, you wrote:
>"Playing domain name hide-and-seek
>By Dan Goodin
>Staff Writer, CNET News.com
>June 30, 1999, 8:10 a.m. PT
>The entry of a new player in the registration of the most popular forms
>of
>Internet addresses is creating confusion about how to tell whether a
>given
>domain name is still available, and if not, who owns it."
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>
>http://www.news.com/News/Item/0,4,84-38576,00.html?tt.yfin..txt.ni
>
>Martin B. Schwimmer
>[EMAIL PROTECTED]
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