February 26, 1999
Filing via e-mail

COMMENTS OF THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS (“ASCAP’) ON THE DRAFT GUIDELINES FOR ACCREDITATION OF INTERNET DOMAIN NAME REGISTERS OF INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS (“ICANN”)

TO THE ICANN BOARD OF DIRECTORS:

	The American Society of Composer, Authors and Publishers (“ASCAP”) has joined in collective comments filed by Steven J. Metalitz, Esq., on behalf of the International Intellectual Property Alliance and others (“IIPA Comments”).

ASCAP files these separate comments to re-enforce the concerns expressed in IIPA Comments and to voice its additional concerns posed by the Draft Guidelines that the ICANN Board will be considering.

The first and foremost concern is that the Draft Guidelines, if implemented, will seriously and irreparably impair ASCAP’s ability to license public performances of its members’ music that are transmitted over the internet.

Second, as a web site operator, ASCAP is concerned that the Draft Guidelines will impair ASCAP’s ability in the future to protect its site against spamming and other unwanted interference with its site’s operation.

Background

By way of background, ASCAP is the oldest musical performing rights society in the United States and holds the largest repertory of copyrighted musical works.  ASCAP is a voluntary membership association, now having more than 82,000 writer and publisher members who are composers, lyricists and publishers of copyrighted musical compositions.  ASCAP is also affiliated with over 58 foreign performing rights societies.  The repertory of copyrighted musical compositions of ASCAP members and its affiliated societies represents all music genres – rock, pop, symphonic and concert, classical, jazz, country, R & B and standards.

ASCAP licenses, on a non-exclusive basis, the non-dramatic public performances of the repertory of its members and affiliated societies to those entities and individuals who desire to make public performances of that music.  An ASCAP license provides a licensee permission to use to all works in the repertory.  ASCAP collects the license fees and then distributes those fees to its members and affiliated foreign societies.  ASCAP’s licensees include, but are not limited to, commercial and noncommercial television and radio stations, concert halls, sports arenas and teams, hotels and airlines as well as colleges and universities. With the dawn of digitally transmitted music over the Internet, ASCAP became the first performance rights society to offer web sites a license to transmit works within ASCAP’s repertory.

It should be noted that ASCAP is only authorized to license the non-dramatic public performance rights of its members and that many of its members are also members of the National Music Publishers’ Association and the Harry Fox Agency, Inc.  The latter organizations are authorized to represent these members’ other rights relating to reproduction and distribution.  Here, to the extent that ASCAP has joined in the expressions of concern found in the IIPP Comments and generally within the copyright industry over the capability to make and distribute perfect copies of music from digital transmissions, these expressions on ASCAP’s part are not intended to encroach on these other organizations’ rights to speak to these issues.  Rather, ASCAP’s concern stems from the likely link between more pirated copies leading to the likelihood of more transmissions, without compensation, of ASCAP members’ works and members’ loss of control over the nature and terms of these performances.

ASCAP is delighted that the internet has permitted yet a new form for transmitting performances of its repertory.  However, our enthusiasm for this new medium is conditioned on ASCAP’s ability to employ mechanisms and means of identifying web sites that transmit these performances in order to license these sites so that our members’ right to reasonable compensation is not compromised.

Difficulty in Licensing and Web Site Protection

ASCAP urges the ICANN Board to consider the issues faced by performance rights organizations such as ASCAP.  We have enough difficulty under the present rules tracking down and licensing web sites that are transmitting copyrighted musical performances of works within ASCAP’s repertory.  Similarly, the operation of ASCAP’s web site, including our internal e-mail system, has from time to time suffered from other unwarranted intrusions.  We have already more than once had to contact an ISP because a site was not traceable to an individual or known entity -- no e-mail or mail contacts of any kind were available on the offending site.  Once having made contact with the ISP, ASCAP has had to rely on the willingness of the ISP to cooperate with us and we have not always been able to obtain such cooperation.

Any concession that the ICANN Board would make to permit any degree of anonymity plays into the hands of infringing web site operators, music pirates, spammers and hackers.  Has the ICANN Board given any thought to how extremely difficult it is already is to send cease and desist letters to infringing web sites?  The Draft Guidelines must consider how to balance the ability of performance rights organizations, such as ASCAP, to protect the copyrighted musical compositions of its members from unauthorized and uncompensated transmissions over the internet.

ASCAP needs to be able to contact ISP directly when we become aware of infringement or objectionable conduct or content.  ASCAP needs a means by which it can quickly contact offending party.  Nonetheless, the Draft Guidelines do not appear to propose to employ even the most minimal of verification procedures to weed out genuine from bogus sites.  More information is required of persons seeking to obtain a driver’s license or to fly internationally or even to obtain a local telephone line than the Draft Guidelines require for potential registrants.  Why should persons or entities sending transmissions over the internet have the ability to do so with complete impunity and anonymity, blessed by the Draft Guidelines?  But, this is – in effect – what we believe the potential effect of the proposed Draft Guidelines may be.  ASCAP requests that the ICANN Board give greater consideration to the need for accountability and more stringent and on-going verification procedures as well as oversight procedures. 

	This is not to say that ASCAP does not appreciate the enormity and complexity of the task faced by the ICANN Board.  However, we urge a reasonable delay in the adoption of the Draft Guidelines so that the genuine concerns of copyright owners, and particularly the performance rights organizations around the world, can be heard and considered.

	ASCAP would be happy to join in such any dialogue if that would be of further assistance to the ICANN Board in understanding its unique concerns.

					ASCAP Contact:
					
					Joan M. McGivern, Esq.
					ASCAP
					One Lincoln Plaza
					New York, New York 10023
					Tel. (212) 621-6204
					Fax. (212) 787-1381
					e-mail Jmcgivern @ ascap.com