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YouPorn imposes embargo on .xxx sites

Kevin Murphy, December 4, 2011, Domain Registries

Manwin, the company behind YouPorn, has stepped up its fight against ICM Registry by saying it will not do business with any .xxx web site.

Reported in the adult press this weekend, the ban seems to extend to webmasters hoping to promote their sites on Manwin’s “tube” sites, including YouPorn.

It also won’t allow its content to be used on .xxx sites, according to Xbiz.

Manwin is of course already suing ICM and ICANN under US monopoly laws, and has demanded an ICANN independent review, claiming the .xxx launch amounted to “extortion”.

The domain YouPorn.xxx is currently on ICM’s Registry Reserved list, meaning it was not acquired during sunrise and will not become available when .xxx opens its doors on Tuesday.

YouPorn is one of the web’s top 100 sites, according to Alexa.

YouPorn challenges new gTLDs with review demand

Kevin Murphy, November 17, 2011, Domain Registries

YouPorn operator Manwin is demanding a review of .xxx, and ICANN’s top-level domains program by association, in a new Independent Review Panel request.

It becomes only the second company ever, after .xxx manager ICM Registry, to file an IRP request with ICANN. The filing came at the same time as Manwin sued ICANN and ICM in California.

The IRP demand ostensibly focuses on .xxx, but it also suggests that the forthcoming new gTLD program has many of the same flaws as the process that led to .xxx’s approval.

IRP is the final, and most expensive, appeals process available within ICANN for companies that believe they’ve been wronged by the organization’s decisions.

It was first used by ICM in 2008-2009 to have the rejection of its .xxx application overturned.

To win an IRP, complainants have to convince an International Centre for Dispute Resolution panel (probably three retired judges) that ICANN violated its own bylaws when it made a harmful decision.

The only reason .xxx is in the root today is that an IRP decided by majority that ICANN broke the bylaws when it approved and then rejected the .xxx bid filed in the 2004 new gTLD round.

Manwin’s IRP claims that ICANN failed to “adequately address issues including competition, consumer protection, malicious abuse and rights protection prior to approving the .xxx TLD”.

It also claims that ICANN failed to enforce ICM’s compliance with its registry contract, allowing it to engage in “anticompetitive conduct” and help violate IP rights.

The company is basically miffed that it felt it was being forced to spend money in ICM’s sunrise period, and that it was not allowed to block its trademarks and variations of its trademarks.

One of its oddest claims, which is in the IRP as well as the lawsuit, is that ICM was selected in a “closed process” that did not consider alternative .xxx operators.

The 2004 gTLD round was of course open to any applicant, so there was nothing stopping anybody else from applying for .xxx. One gTLD, .tel, did in fact have multiple bidders.

Essentially, the IRP demand cuts to the heart of the domain name industry and the new gTLD concept in general, challenging many practices that have become norms.

Sunrise

Sunrise is “extortion”, according to Manwin.

As well as being opposed to the idea of paying for defensive registrations in general, Manwin also thinks that typos and brand+keyword domains should be eligible for blocking, presumably for free.

It also believes that porn companies should have been able to defensively block some .xxx domains (which ICM called “Sunrise B”) and register others for active use (“Sunrise A”).

Speculation

Manwin’s IRP says that ICM did not act in the best interests of its sponsored community (ostensibly the porn industry) when it sold premium .xxx domains to “known domain name speculators”.

Well-known domainers Frank Schilling and Mike Berkens have invested millions in .xxx, but Manwin says their profit motives show ICM broke its commitment to serve the adult industry only.

Schilling, who signed up to buy domains 33 domains including amateur.xxx before ICM’s registry contract had even been approved, is reportedly already leasing out some of his .xxx names to porn companies for five figures a month.

New gTLDs

Manwin seems to support what you might call a ‘string first, registry later’ model for delegating gTLDs.

It states in its lawsuit and IRP that ICANN should have opened up .xxx for competitive bidding, apparently ignoring the fact that the .xxx string was proposed by ICM, not ICANN.

In the IRP demand, it suggests that allowing gTLD applicants to select their own strings is in violation of ICANN’s bylaws. The complaint states:

[ICANN] gave ICM a permanent monopoly over the .XXX TLD without considering other candidates for registry operator and without making provision for considering other potential registry operators at the end of the initial term of the .xxx Registry Agreement.

If Manwin wins, ICANN could be forced into a situation where it must ask for string proposals from new gTLD applicants and then open up each proposed string to competitive bidding.

That’s not necessarily a bad idea, but it’s pretty much exactly the opposite of how the ICANN-approved new gTLD program is going to work.

The IRP and the lawsuit are also notable in that they target the alleged lack of economic studies that support .xxx and new gTLDs in general.

It states that ICANN “failed to conduct proper economic studies of the impact of the introduction of new TLDs, including the .xxx TLD”.

This is a frequent criticism leveled at ICANN by opponents such as the Association of National Advertisers and the newly formed Coalition for Responsible Internet Domain Oversight.

Manwin is being represented in the suit and IRP by the law firm Mitchell Silberberg & Knupp, the employer of Steve Metalitz, a well-known figure in ICANN’s intellectual property constituency.

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.

ICANN may kick .xxx into new gTLD round

Kevin Murphy, March 27, 2010, Domain Registries

ICANN has chosen to deal with the controversial .xxx TLD application by leaving essentially all options, including urging it into the next gTLD round, wide open.

ICM Registry had pushed for a speedy resolution to its long-running application, following the Independent Review Panel decision that went in its favour last month, but it hasn’t got one.

In Nairobi, ICANN’s board asked ICANN’s staff to tell it what its options were for dealing with the ruling, and staff today responded with this flowchart. Oh, and this flowchart.

It seems that these options are still on the table: (continue reading)