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YouPorn challenges new gTLDs with review demand

Kevin Murphy, November 17, 2011, 14:00:04 (UTC), 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.

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Comments (11)

  1. Alec says:
    November 17, 2011 at 2:10 pm

    As an adult webmaster I support Manwin’s decision to sue the ICM Registry.

    Reply
  2. Ann Kuch says:
    November 17, 2011 at 2:45 pm

    What perfect timing, given that ICANN’s contract is up for rebid. Best of luck to Manwin and Digital Playground.

    Reply
  3. Stay real says:
    November 17, 2011 at 4:40 pm

    Oh no. We better sue, .org, .com (VeriSign), .biz and all other TLDs as they have as much/little right to sell domains as ICM Registry.

    Reply
  4. Constantine Roussos says:
    November 17, 2011 at 4:52 pm

    Some questions for YouPorn:
    1) How does it verify the age of the persons depicted in the videos?
    2) How does it verify the possibility of unauthorized copyrighted videos being uploaded (e.g Vivid Entertainment’s lawsuit against YouPorn)?
    3) How does it protect victims from unauthorized privacy violations when private sex video tapes are uploaded without the consent of all involved parties?
    How is YouPorn an authority to talk about challenge the new TLD Program when their whole basis of existence is consistently violating not only copyright (yes, porn is copyrighted) using the DMCA as an excuse to willfully engage in infringement? Furthermore, how do they ensure minors do not visit their site? They can not.
    I can tear apart this whole discussion about YouPorn and shred them to pieces in regards to violations that they knowingly engage in to turn in a profit.
    YouPorn only became famous because they were offering FREE video porn to the whole Internet population regardless of age. They did not ask the adult studios for permission. They created their own monopoly and never cleared anything with anyone. Yes, they were one of the free porn video pioneers but the real issue is that they used illegal methods to become the player that they are. Free does create traffic and they benefited by infringing on others rights. YouPorn credibility towards new gTLD Program: zero. Double standard.

    Reply
  5. Jonathan says:
    November 17, 2011 at 5:54 pm

    Thank you Constantine for your comment.

    Reply
  6. Alex Sanders says:
    November 17, 2011 at 8:45 pm

    So the biggest pornography company in the world is suing .XXX? What the hell is going on here? How was this tld even approved by ICANN then? Not only was GAC, religous groups and every country against it, turns out the pornographers themselves are against .XXX as well??
    Its just wrong for regular businesses that arent involved in the sex trade, to have to pay a tax to .XXX, so their company name wont turn into a virtual brothel.
    .XXX must be investigated along with ICANN for approving this cancer. The coruption in this country is becoming out of control!

    Reply
  7. Ann Kuch says:
    November 17, 2011 at 11:57 pm

    @Alex The adult industry did everything possible to express their opposition to .xxx. They sent thousands of emails to ICANN. The heads of the largest companies gave letters to Diane Duke (the ED of their trade association) to hand deliver to ICANN. the FSC sumbitted numerous letters and statements of opposition. They testified at ICANN meetings around the world.
    However, despite the fact that the adult industry did everything but scream from the rooftops, ICM continued to assert support from the sponsorship community and ICANN chose to accept the voice of one over the voices of hundreds, if not thousands.
    Now, the courts will give everyone a voice.

    Reply
  8. Paul Keating says:
    November 18, 2011 at 6:53 pm

    Come on, lets all grow up. The reason (IMO) that the porn industry was against it was that they would have to go out again and invest in domains and could not rely on their having cornered their little niche. This is the same argument now being raised by the advertising community.
    So, to provide a non-internet example, say Manhattan had been built out. Would the argument hold that Brooklyn should not have been built because it would risk the “investment” of the pre-existing owners of real estate in Manhattan?
    Why is this any different?
    Why do we need an economic study? If it succeeds, fine, if not, then we will all know that it was a bust and those that invested will have lost their money. Such is life in every other aspect of the economy.
    But…….its the internet….is not an appropriate (or mature) argument.

    Reply
  9. Rubens Kuhl says:
    November 18, 2011 at 9:27 pm

    The main object I saw from the porn industry was that .xxx creates the risk that they might be obliged to use .xxx instead of regular domains on the jurisdictions that they are incorporated in or distribute content from, which would make too easy to block/filter porn sites on other jurisdictions. (the ones that already blocking .xxx like India)
    It’s a different take from YouPorn, which reminds me more of the ANA views of the new gTLDs program.

    Reply
  10. TAG says:
    November 28, 2011 at 9:08 pm

    ‘Brooklyn should not have been built because it would risk the “investment” of the pre-existing owners of real estate in Manhattan’
    Excellent analogy. CRIDO probably believes this.

    Reply

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