“Please don’t sue us!”
That’s the message some are taking away from the latest round of published correspondence between lawyers representing ICANN and .jobs registry Employ Media.
Now ICANN has asked the registry’s executives to return to the negotiating table, apparently to reduce the risk of having to spend millions of dollars on lawyering.
In a letter (pdf) to Employ Media’s attorneys, ICANN outside counsel Eric Enson of Jones Day said that ICANN wishes to avoid “costly legal fees associated with arbitration or litigation”:
I again request a meeting among the business persons involved in this matter to discuss potential resolutions before spending more of ICANN’s funding on unnecessary litigation.
The latest round of published correspondence, like the last one, and the one before that, seems to contain a fair bit of legal posturing, with both sides accusing the other of conducting negotiations in “bad faith” for various reasons.
Filing the arbitration notice with the ICC might turn out to be a smart move by Employ Media, knowing how risk-averse and cash-conscious ICANN is.
ICANN is still smarting from the last time it headed to arbitration, for its Independent Review Panel over ICM Registry’s .xxx top-level domain.
ICANN lost that case in February 2010, and had to cover the panel’s almost $500,000 in costs, as well as its own legal fees. The overall price tag is believed to have comfortably made it into seven figures.
But that may well turn out to be small beer compared to the price of losing arbitration against the .jobs registry.
Unlike the IRP, in which both parties pay their own lawyers no matter who wins, Employ Media’s contract states that the losing party in arbitration must pay the legal fees of the winner.
To go up against .jobs at the ICC and lose could hit ICANN’s coffers harder than the .xxx dispute, in other words. That’s not to say it would lose, but with matters as complex as this there is that risk.
It’s worth noting that Employ Media’s lead attorney has form when it comes to reaching into ICANN’s pockets – Crowell & Moring’s Arif Ali also represented ICM Registry in the .xxx IRP case.
European Commissioner for the Digital Agenda Neelie Kroes asked the US Department of Commerce to delay the introduction of the .xxx top-level domain after ICANN approved it, I can reveal.
In an April 6 letter to Secretary of Commerce Gary Locke, a copy of which I have obtained, Kroes expressed dismay with ICANN’s decision, and wrote (my emphasis):
I would therefore consider it necessary for the [ICANN Governmental Advisory Committee] to reflect, at a senior level, on the broader implications of the Board’s decision on .XXX, and to do so before the TLD is introduced into the global Internet. I assume that the United States government would appreciate the opportunity to hear the views of other countries on this important issue, and I very much hope therefore that I can count on your support for such an initiative.
It seems to be an implicit request for the NTIA to delay .xxx’s go-live date to give the Governmental Advisory Committee of ICANN time to regroup and consider how best to continue to oppose the domain.
As I reported this morning, assistant secretary Lawrence Strickling replied to Kroes later in April, agreeing with her in principle but saying that to intervene could do more harm than good.
Kroes objected on the grounds that GAC had “no active support” for .xxx, that national-level blocking of the TLD could threaten internet stability, and that parents will be given a “false sense of security” if they choose to filter .xxx domain names.
She also didn’t buy ICANN’s rationale for its decision, saying it contained “mostly procedural arguments that do not adequately reflect the significant political and cultural sensitivities” created by .xxx.
She additionally noted that:
Most importantly, perhaps, are the wider consequences that we have all have to deal with as a result of this decision. We are both aware of the broader geo-political Internet governance debate that continues regarding the legitimacy of the ICANN model. I am concerned therefore that ICANN’s decision to reject substantive GAC advice – of which there is also an apparent risk in relation to the new generic TLD process – may be detrimental to the multi-stakeholder, private sector-led model which many of us in the international community have been stoutly defending for years.
This seems to be a reference to the longstanding debate over whether the International Telecommunications Union, or another intergovernmental body, may be better suited to overseeing domain name system policy.
In his reply to Kroes, Strickling offered to meet her by teleconference or in person in Brussels, in order to discuss how to proceed.
The fallout from .xxx’s approval may not be over by a long shot.
The European Commission may have asked the US Department of Commerce to block or delay the .xxx top-level domain, it has emerged.
I’ve heard rumors for a few weeks that Neelie Kroes, vice president of the Commission responsible for the digital economy, wrote to Commerce in April, asking it to delay the go-live date for .xxx.
It appears to confirm the rumors. Strickling wrote:
While the Obama Administration does not support ICANN’s decision, we respect the multi-stakeholder Internet governance process and do not think it is in the long-term best interest of the United States or the global Internet community for us unilaterally to reverse the decision.
It’s certainly possible to infer from this that Kroes had asked the US to exercise its unique powers over the domain name system’s root database to block or delay .xxx.
The Kroes letter was evidently sent April 6, about 10 days before the National Telecommunications and Information Administration, part of Commerce, instructed VeriSign to add .xxx to the root.
In his April 20 response, Strickling shared Kroes’ “disappointment” with ICANN’s decision, saying the organization “ignored the clear advice of governments worldwide, including the United States”.
He said the decision “goes against the global public interest and will spur more efforts to block the Internet” and agreed that ICANN “needs to make to engage governments more effectively”.
To that end, Strickly offered to fly to Brussels to meet with Kroes to conduct a “senior level exchange” on how to better work with ICANN.
While it’s probably too late for any of this to affect .xxx, operated by ICM Registry, it is a clear sign that governments are taking a renewed interest in ICANN’s work.
ICANN’s Governmental Advisory Committee issued weak advice on .xxx, noting merely that no governments outright supported it, and that “several” were opposed. The was no consensus.
Because the GAC did not explicitly say “do not approve .xxx”, ICANN was able to rationalize its decision by saying it was not explicitly overruling governmental advice.
At least three countries — Saudi Arabia, India and Kenya — have already indicated that they may block .xxx domains within their borders.
DomainMonster has become the latest registrar, the first in the UK, to announce support for ICM Registry’s upcoming .xxx porn-only top-level domain.
The company said it has been accredited by ICM, and that it will start taking pre-orders for the domains on its Domainbox reseller platform soon.
I’m not sure if any have been officially accredited yet — no .xxx registrars show up on ICANN’s offical list.
DomainMonster CEO Matt Mansell said: “We anticipate the .XXX launch to be the biggest we’ve seen in recent years. The demand our support teams are seeing already far outstrips anything that’s gone before.”
ICM has previously projected somewhere between 300,000 and 500,000 registrations after launch. It took around 600,000 pre-reservations in the few years before it was approved by ICANN.
Getting .xxx accrediation is said to be quite a lengthy process. Registrars have to answer 14 detailed questions, including agreeing to abide by ICM’s policies and detailing how they plan to promote the domains.
Click here: icmregistry.xxx, then come back.
That’s right. After ICM Registry’s almost 11 years of campaigning, and almost $20 million in legal and other expenses, .xxx domain names are actually live in the domain name system.
ICANN, IANA, the US government and VeriSign, in that order, have all agreed to delegate the internet’s newest gTLD, and the first few .xxx domains went live within the last couple hours.
IANA has a .xxx page, complete with a lengthy delegation report (in a snazzy new pdf format) that broadly explains the convoluted process ICANN used to ultimately, albeit reluctantly, approve the TLD.