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Seven years jail, $150,000 fine if you don’t tell the world your email and home address

WHOIS the mad lawmaker?

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If you don’t tell the world your email, home address and telephone number you could face a seven-year jail sentence and a $150,000 fine under new legislation that the US Congress is trying to push past today.

Congressman Lamar Smith of Texas - chairman of the Courts, the Internet and Intellectual Property Subcommittee of the House Judiciary Committee - yesterday produced from nowhere extensions to the 1946 Trademark Act that would make giving false contact information for a domain name a civil and criminal offence.

His bill (HR 3754) was discussed today at 10am Washington time in his Subcommittee. It was live here.

No you’re not dreaming, this is what the Bill proposes. Mr Smith’s attempt to “provide additional civil and criminal remedies for domain name fraud” may be laudable, but his approach is as unthinking and blinkered as the Intellectual Property lobbyists that have his ear.

The extensions to the Trademark Act would make the provision of misleading contact details when registering a domain an offence. Not only that but a “willful” offence - which in American law means three-times normal payout. Also, anyone “acting in concert with the violator” or “maintaining or renewing such registration” would also be guilty. In the case of a trademark infringement on the domain “the maximum imprisonment otherwise provided by law for a felony offense shall be increased by 7 years”.

The intention for this legislation is clearly peer-to-peer sharing networks, but by making the provision so wide, it is pulling in millions of normal Internet users and businesses. Not to mention registrars.

While the provision of nonsense registration details has proved an irritation - particularly to IP lawyers - many millions of people do not provide their full details because it is freely available to anyone on the Internet and so intrudes on their privacy. Domain name details are also regularly farmed by spammers.

Minding the farm

In fact, the entire WHOIS issue has been controversial for years; and only recently have new systems been introduced to make Internet domains fully functional yet not wide open to abuse. One example is the extra password people have to type in to get at WHOIS information, which cuts down automated email farming.

However, Mr Smith - who can be neatly summed up by pointing to the fact that he introduced the Clean Airwaves Act banning eight profanities from being broadcast, and that he proudly describes himself as a fifth-generation Texan - sees everything from the IP lawyers' point of view.

In fact, invited to speak at the American Intellectual Property Law Association in November last year, he told the assembled: “The gravity of intellectual property crimes are too often dismissed by those who believe they have a right to work created and owned by others. We’re going to do our best to bring IP crime to the forefront of the Congressional agenda and focus attention on it in a new way.”

He went on: “There are billions of illegal file downloads every week on peer-to-peer networks. The result is lost jobs, lost sales to businesses and lost royalties to artists and copyright owners. One way to reduce this illegal activity is through the court system. Most people agree that stealing is wrong. We can all agree that it is wrong to walk into a record store, put a CD in your pocket, and walk out. It’s just as wrong to illegally download a song from the Internet. But many people do not recognize that these actions are one and the same.”

There is much more along this vein, but you get the idea. Smith also introduced the cybercrime legislation that was whisked through with the “Patriot” Act, which hugely expanded the authorities’ ability to wire and electronic tap individuals. He also boasts that he was given the “Cyber Champion Award” by the Business Software Alliance - a concept of such ridiculousness that it is hard not to smile.

Congressman Smith is however an influential man in Washington and his attempts to introduce such legislation and provide IP lawyers with exactly what they want should be taken seriously.

Hogging the conversation

The arguments for and against accurate and accessible WHOIS information were concisely covered by Milton Mueller in his book on ICANN “Ruling the Root” back in 2002. This quote from it (p.237) should provide food for thought.

“Just how radical a shift in the balance of power the intellectual property agenda for WHOIS represents was illustrated by an amusing exchange on a public email list between Judy Henslee, the US trademark manager for Harley-Davidson motorcycles, and an intellectual property lawyer, John Berryhill. Ms. Henslee was complaining about the limitations of the current WHOIS protocol on the INTA email list, and she concluded, ‘The ability to produce (or at the very least, purchase) accurate lists of all domains owned by a single person or entity would be extremely helpful to the trademark owner.’

“Mr Berryhill replied: “Dear Ms. Henslee, I was sitting on my back porch this evening, and someone drove by riding a Harley Davidson motorcycle with a defective exhaust system. My community has strictly enforced noise and smog ordnances, and this person was clearly in violation of the law. I shouted at the rider, whereupon he rode across and damaged my lawn. I would like to bring a trespass against him, but I could not identify him. However, I can identify the make, model, year and colour of the hog. I went to your Web site, and I noticed that Harley Davidson does not include a readily accessible database of warranty registrations or, indeed, any other information that will assist me to identify the violator.

"As you surely can appreciate based on your comments concerning the WHOIS database, your provision of this information would certainly help in bringing this lawbreaker to justice, as well as anyone who uses a Harley Davidson product to violate the law. As I’m sure you’re aware, despite the fine reputation enjoyed by Harley, and my own admiration for your machines, there is an element of the subculture associated with your company’s product which has been known to demonstrate a pattern of unlawful behaviour such as gang activity and drug transportation. Many of them may own more than one motorcycle. So, I’m sure there is considerable demand for this data.

"Since there doesn’t appear to be a convenient database, is there some way that I can arrange to purchase the names, postal addresses, email addresses, and telephone and fax numbers of people who own Harley Davidson motorcycles? If I send the description to you, will you help me identify the owner?" ®

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