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Porno union will try to shaft .xxx

Kevin Murphy, August 11, 2010, Domain Registries

The fight between ICM Registry and the Free Speech Coalition over the proposed .xxx top-level domain is not over yet.

The porn trade group has a plan to block ICM’s passage through the ICANN process, and has already stepped up efforts to rally the adult entertainment industry to its cause.

Last weekend at the AVN Show in Florida, FSC chair Diane Duke reportedly said:

ICM is saying this is a done deal… but it is not a done deal. We [the FSC] have a strategy to block the application. I have spoken with people from ICANN, and they agreed that this is not a done deal.

Asked whether lawsuits would be required, Duke reportedly answered: “There are other avenues to block this.”

These comments and others suggest that the FSC intends to use ICANN processes to, at the very least, delay .xxx’s delegation.

A public comment period will be launched soon on the proposed ICM-ICANN registry contract. This will likely be oversubscribed by FSC supporters.

If the contract ends up being bounced to ICANN’s Governmental Advisory Committee for consideration, there’s another opportunity for FSC lobbying.

Then, crucially, if ICANN votes to approve .xxx, the FSC could attempt to temporarily block the actual delegation to the DNS root by filing a Reconsideration Request.

Under my reading of the Reconsideration procedure, the actual delegation of the TLD could be delayed by anything between 30 and 120 days. Possibly longer.

The FSC would need to show at the very least that it would be harmed by .xxx’s introduction. If successful, the best case scenario for the FSC would see the resolution approving .xxx bounced back to the ICANN board for a second vote.

Beyond that, there’s always an Independent Review Panel. For that, the FSC would need to show that the .xxx approval breached ICANN’s bylaws or articles of incorporation, which seems to me to be a more challenging proposition. Also very expensive.

Another interesting quote from the AVN article – reportedly Allan Gelbard, lawyer to John “Buttman” Stagliano, said that the adult industry may be unduly worrying because:

anti-trust and trademark legal challenges would be brought immediately following the final approval by the ICANN board

Make of that what you will.

There’s also a new anti-.xxx blog, written by Theresa “Dark Lady” Reed, containing a new “satirical” video spoofing ICM.

To be honest, the funniest thing about it for me was the decision to cast a handsome, shiny-toothed American anchorman type as British ICM president Stuart Lawley.

.XXX to run the ICANN gauntlet yet again

Kevin Murphy, August 6, 2010, Domain Registries

Bring on the Christians!

The contract between ICANN and ICM Registry to run the .xxx adults-only top-level domain is to be submitted for an ICANN public comment period, again.

ICANN’s board resolved yesterday to publish the proposed registry agreement for comment for at least 30 days.

But it has not yet decided whether to refer the deal to its Governmental Advisory Committee, which remains ICM’s major potential pitfall on its route to the root.

As long as the public comment period kicks off quite soon, the ICANN board could be in a position to make that call at its weekend retreat, September 24.

The .xxx application has generated more public comment over the years than all other ICANN public comment periods combined.

Its last such period, earlier this year, saw thousands of comments, most of them filed in response to outreach by right-wing American Christian groups.

Objections are also regularly received from members of the Free Speech Coalition, a porn trade group.

I expect this forum will be no different. It will be interesting to see what tactics are rolled out this time, given previous failures.

Here’s the meat of the latest resolution:

RESOLVED (2010.08.05.21), upon receipt of ICM’s application documentation, ICANN Staff is authorized to post ICM’s supporting documents and proposed registry agreement for the .XXX sTLD for public comment for a period of no less than 30 days.

RESOLVED (2010.08.05.22), upon completion of public comment period, ICANN Staff shall provide the Board with a summary of the public comments and shall make a recommendation to the Board as to whether the proposed registry agreement for the .XXX sTLD is consistent with GAC advice.

RESOLVED (2010.08.05.23), once the Board has received the above public comment summary and recommendation from the ICANN Staff regarding the proposed registry agreement for the .XXX sTLD, the Board shall at its next possible meeting, consider this recommendation, and determine, consistent with the ICANN Bylaws, whether a GAC consultation shall be required.

ICANN Brussels – .xxx approved but not approved

The controversy over the .xxx top-level domain has for the last few years, at least from one point of view, centered on opposing views of whether it was already “approved”.

ICM Registry has long claimed that ICANN “approved” it in 2005, and believes the Independent Review Panel agreed with that position. ICANN said the opposite.

Regardless of what happened in Brussels yesterday, when the board grudgingly voted to reopen talks on .xxx (to a surprisingly muted audience response), the question of whether .xxx is “approved” is definitely not over yet.

ICM tweeted shortly after the ICANN’s board’s decision:

@ICMRegistry: We are delighted to announce that the #ICANN Board has approved the .xxx top-level domain.

But a couple of hours later, ICANN chair Peter Dengate Thrush told us at a press conference that it categorically was not “approved”.

In terms of getting its point across to the media, ICM’s message trumped ICANN’s, judging by the headlines currently scrolling past me on Google News.

I guess this boils down to a question of definitions.

From the ICANN perspective, a TLD is presumably not “approved” until a contract has been signed and the board has resolved to add it to the root.

The board’s decision yesterday merely sets out the track towards that eventuality, with a few hurdles scattered along the way. In conversation with ICM people, I get the impression they believe the hurdles are low and easily surmountable.

Crucially for ICM, the issue of community support, the stick with which ICANN nearly killed .xxx back in 2007, is now off the table. There will be a quick review of ICM’s books and technical capabilities, but the views of the porn industry now seem pretty much irrelevant.

The only real way I can see .xxx being derailed again now is if the Governmental Advisory Committee issues future advice that unequivocally opposes the TLD.

As Kieren McCarthy noted in some detail over on CircleID, the GAC has never had a hell of a lot of substantial advice to impart about .xxx in its official communiques, so it’s difficult to see where a clash could arise based on its previous missives.

But with the GAC currently using bogus “morality and public order” arguments to jerk everybody around with regards the next new TLD round, it’s not entirely impossible that it could lob one final grenade in ICM’s direction.

This story ain’t over yet.

Porn domain firm urges ICANN to ignore the haters

ICM Registry has asked ICANN to set aside the views of thousands of naysayers and approve the porn-only .xxx top-level domain as soon as possible.

The company has sent three documents to ICANN today, two of which set out ICM’s position in the same firm tone that has characterized its previous missives.

Basically: no more delays, your only option here is to get back into contract talks now.

I would say ICM is drawing a line in the sand, but ICM has drawn so many lines in the sand recently it’s beginning to look like a game of beach tic-tac-toe (which, visualizing it, is kinda appropriate).

The third document is a post-game summary of ICANN’s recently closed comment period on the .xxx application, which attracted record comments. That’s written by former ICANN public participation wonk Kieren McCarthy and is more measured in tone.

ICM president Stuart Lawley believes that the thousands of copy-paste comments from US-based anti-porn Christian groups can be safely ignored. I get the impression ICANN will probably agree.

The volume of comments on an entirely irrelevant issue – that is, the content of websites on the Internet – was one of the original reasons this process went off the rails. ICANN should not repeat its earlier mistakes and pander to those interests.

Given that a substantial number of comments came from the porn industry itself, notably the Free Speech Coalition, Lawley wrote that “debate about community support is no longer appropriate”.

ICM’s on shakier ground here than with the Christians. A TLD for a sponsored community that is unequivocally hated (NSFW) by a vocal part of that community can’t look good.

But the FSC, along with the Adult Entertainment Broadcast Network, one of its members, “represent only a small fraction of the adult industry”, Lawley claimed.

Over 100,000 .xxx domains have been pre-registered over the last five years and several hundred of these people sent ICM’s copy-paste letter to ICANN. ICM says this indicates adult industry support, though I think that’s a less than watertight argument.

ICANN’s board will undoubtedly have a good old chinwag about their current predicament at their retreat this weekend, but they’re not due to make any decisions until the Brussels meeting a little over a month from now.

Porn trade group director says .xxx could be a gTLD

One of the directors of porn industry organization the Free Speech Coalition has suggested the .xxx top-level domain could be approved as an unrestricted gTLD.

Tom Hymes, who sits on the Free Speech Coalition’s board of directors, wrote to ICANN urging it first and foremost to kill ICM Registry’s .xxx application once and for all.

But Hymes went on to say: “If that scenario is unacceptable to the Board for one reason or another, I would then encourage it to explore a gTLD option for ICM.”

He noted that he was writing in a personal capacity, not as a representative of the FSC.

ICM’s application was filed under the 2005 round of “sponsored” TLDs, which meant it had to show backing from a sponsorship organization and some measure of ownership restriction.

For example, the Society for Human Resource Management is the sponsor for .jobs and the Universal Postal Union backed .post.

ICM, which has never been part of the adult entertainment industry, created a policy-making body called the International Foundation For Online Responsibility, IFFOR, to act as its sponsor.

In my view, IFFOR was basically a crude hack to get around the fact that in 2005 ICANN was not looking for any new gTLDs.

The FSC doesn’t like IFFOR, because a) it will make policy on what can be hosted under .xxx domains and b) the adult industry will not control its board or see any of its money.

Hymes, in his personal capacity, seems to be saying that an unrestricted .xxx gTLD would be okay. It’s the first ground I’ve seen anyone in the porn industry give in this debate. He says:

To its credit, the Board is striving to solve the dot xxx imbroglio by dangling a gTLD in front of ICM, a solution ICM thus far has refused to consider. But that sort of suspicious recalcitrance can no longer be tolerated. Instead of threatening to bring a costly lawsuit against ICANN in order to secure control of a policy making regime for which it does not have the required support, ICM should cut its losses, save everyone a lot of money and take the gTLD while it has the opportunity.

I happen to agree, mostly: .xxx would make a heck of a lot more sense, and would be a whole lot less controversial (Christians notwithstanding), as a gTLD.

Unfortunately, I can’t see it happening. Not easily, anyway.

There’s no ICANN process in place for approving gTLDs today, and if ICANN were to choose to kick ICM into the next new gTLD round, there’s a pretty good chance that ICM would find itself fighting a contested string battle with other applications.

From a process point of view, sponsored TLDs are a failed experiment.