Porn trade group the Free Speech Coalition has added its name to the list of organizations saying that ICANN could be sued over its new top-level domains program.
In her latest letter to ICANN, FSC executive director Diane Duke has made a last-ditch attempt to get the proposed .xxx TLD rejected, and not-so-subtly raises the threat of court action:
ICM Registry promises millions of dollars of income for ICANN, assuming that income is not consumed by the inevitable litigation which ICANN will find itself a party to if the proposal is adopted
But she also writes about lawsuits targeting the new TLD program itself.
ICM’s .xxx application is being handled under the rules established for “sponsored” TLDs in 2003, rather than the rules for gTLDs in the Applicant Guidebook that will be enforced in future.
As such, .xxx is not subject to challenges such as the “morality and public order objections” envisioned by the AGB, unlike potential future applications such as .porn. Duke wrote:
What about those in the adult community who wish to apply for a gTLD? With ICANN’s policy development in regards to “Morality and Public Order” will gTLDs be held to a higher standard than the sTLD? Does ICANN believe that it is not liable for this inequity? Any company prepared to invest the substantial moneys necessary to manage a gTLD will surely take ICANN to court to demand equitable standards for their TLD application.
She goes on to suggest that ICM itself may sue to block such applicants.
Does ICANN really believe that the litigious ICM will sit idly by while a .SEX or .PORN gTLD is introduced? Is ICANN so naive to believe that the purveyor of the “sponsored” TLD, who spent in excess of $10 million to bully its way through ICANN’s processes, will stop its threats of litigation with a mere approval of the sTLD?
Is the FSC privy to the TLD aspirations of others in the adult business? Or is this just a lot of hot air born out of desperation? I guess time will tell.
The FSC becomes the third organization to publicly threaten litigation in order to get what it wants out of ICANN.
ICANN expects to set aside $60,000 from every $185,000 TLD application fee to deal with “risks” including the expense of defending itself from lawsuits.
The ICANN board is expected to vote on the .xxx application and the new TLD program next Friday. I expect the number of organizations threatening lawsuits will be in double figures by then.
The Free Speech Coalition and ICM Registry are poised to do battle over the .xxx top-level domain at next week’s ICANN meeting in Cartagena, Colombia.
The FSC, which has opposed the porn-only domain for years, is trying to rally its troops with a flyer declaring it’s “Ready For War”, illustrated with a photograph apparently of Cartagena’s battlements.
(Apropos, really, given the city’s history fighting off the British and ICM’s habit of recruiting Brits for key positions.)
The FSC said on its blog:
the majority of adult Internet business owners and webmasters do not support being categorized in an Internet ghetto that will cost them millions in extra fees annually and also make it easier for anti-adult entities to censor and block their sites.
The trade group will be represented at the meeting by executive director Diane Duke and chair Jeffrey Douglas.
But ICM will have them out-gunned almost 10-to-1. President Stuart Lawley tells me the company is sending 19 people to the meeting.
Discussion of the .xxx TLD is on the ICANN board’s agenda for its meeting Friday December 10. I think it’s quite likely to be approved at that time.
The main stumbling block for ICM is ICANN’s Governmental Advisory Committee, which has expressed reservations about the domain over the years and is firmly opposed to “controversial” TLDs.
Which way the vote swings will depend greatly on what the GAC has to say, and how the power struggle it’s currently engaged in with ICANN pans out.
Here’s part of the FSC’s flyer.
ICM Registry, the would-be .xxx registry operator, has acquired the domain name dotxxx.com from a Korean domainer for $25,000, to support an upcoming marketing campaign.
The company is also expected to unveil a punny new slogan, “Let’s be adult about it”, following its recent hiring of international ad agency M&C Saatchi.
The dotxxx.com domain currently redirects to icmregistry.com, the company’s main site. The private sale used Sedo for escrow.
Given the amount of cash ICM has spent attempting to get .xxx approved over the last ten years, $25,000 is a drop in the ocean.
ICANN recently decided to refer its application to the Governmental Advisory Committee for a consultation, before it makes a final call on whether to approve it or not.
The DotFree Group, which plans to apply to ICANN to run .free as a top-level domain, has become one of the first would-be registries to open its doors for preregistrations.
From noon UTC today, the Czech company has made a tool available on its web site enabling users to reserve their desired strings by handing over their contact information.
Of course, there’s no guarantee any preregistration will actually turn into a .free domain – ICANN may turn down DotFree’s application or award the string to another bidder.
While the plan is to offer some .free domains free of charge, DotFree intends to hold tens (or hundreds) of thousands of “premium” strings for auction or paid-for registrations.
In other words, if you try to register any really juicy strings today, you’re out of luck.
DotFree is one of only a few unapproved TLD registries to accept preregistrations.
ICM Registry started taking .xxx preregs a few years ago, but only after it had already received ICANN’s approval (which was, of course, later revoked).
Another wannabe TLD operator, the MLS Domains Association, is charging “multiple listing service” real estate brokers many hundreds of dollars for the opportunity to own their own .mls domain name.
UPDATE: Messing around with the preregistration tool, I’ve noticed that it appears to ban any string that ends with the number 4. Presumably these will be “premium”, due to the “for” pun.
The long-running .xxx top-level domain saga has tested ICANN processes to their limits over the last decade, and it looks like it may do so at least one more time.
Digging a little deeper into the board’s decision to consult with its Governmental Advisory Committee before approving the TLD, it looks like the discussion will be quite broad-based.
The .xxx consultation could in fact have consequences for the board/GAC power balance, helping define the parameters of their future interactions.
The first is its communiqué from the Wellington meeting in 2007, which noted that several GAC members were “emphatically opposed” to the introduction of .xxx.
The GAC operates on a consensus basis. When it can’t find consensus, its communiqués also reflect minority positions. So ICANN now wants to know whether the Wellington letter constitutes GAC “advice”.
The question remains whether a position taken by “several members of the GAC” can be equated with GAC advice on public policy matters. If it is not GAC advice, then the concern of inconsistency [of the .xxx contract with GAC advice] diminishes.
Some may be surprised to discover that, after over a decade, there’s no broad agreement about when something the GAC says constitutes official “advice” that ICANN, under its bylaws, must consider.
Attendees to the Brussels meeting this June will recall that the joint board-GAC meeting, transcribed here, spent most of its time labouring on this apparent oversight.
In consulting with the GAC on .xxx, there’s an outside chance that some answers with regards the definition of “advice” may be found.
It wouldn’t be the first time ICM Registry’s controversial application has forced ICANN to address shortcomings in its own accountability procedures.
Notably, the Independent Review Process, promised in the bylaws for years, was eventually implemented to allow ICM’s appeal after it had pushed the Reconsideration Request process to its limit.
ICANN’s latest resolution on .xxx also refers to a letter (pdf) GAC chair Heather Dryden sent to the board in August, which expressed a desire that no “controversial” TLDs should be added to the root.
While ostensibly addressing future TLD applications, rather than TLDs applied for under previous rounds, the letter did say that “objection procedures should apply to all pending and future TLDs”, which was widely interpreted as referring directly to .xxx.
Last week’s ICANN board documents say:
If the “pending” TLD refers to .XXX, the approval of the .XXX sTLD Registry Agreement without allowing for these types of objections would be inconsistent with GAC advice.
I’ve reason to believe that the “pending” language may have been inserted quite late into the drafting of the Dryden letter, and may not enjoy the unanimous support of GAC members.
Regardless, the letter implies that whatever “morality and public order” or “Rec6” objections process winds up in the new TLD Applicant Guidebook should also apply, retroactively, to ICM.
If ICANN were to agree on this point, a precedent would presumably be set that would allow the GAC to issue thirteenth-hour “advice” that moves the goal-posts for future new TLD applicants, removing a significant amount of predictability from the process.
For that reason, I think it’s unlikely that ICM will be told it is subject to the Rec6 process (whatever that may ultimately look like).
The consultation, however, may result in some clarity around where the GAC’s powers of “advice” begin and end, which is probably a good thing.