ICANN approves .XXX red-light district for the Internet

Barry Shein bzs at world.std.com
Sun Mar 27 18:03:35 CDT 2011

On March 27, 2011 at 04:56 johnl at iecc.com (John Levine) wrote:
 > >What changed ICANN's mind between the ruling in 2007 and the ruling in 2010?
 > The growing certainty of an expensive and very embarassing lawsuit if
 > they turned ICM down.  Despite the clear lack of industry support for
 > .XXX, ICM carefully jumped through every hoop, dotted every i, and
 > crossed every t in the 2004 application process and the subsequent
 > appeal and review processes.  I expect the board and staff really
 > really would not want to have to answer questions under oath like "who
 > did you talk to at the US Department of Commerce about the .XXX
 > application and what did you say?" and "why did you vote against .XXX
 > when they followed the same rules as the TLDs you voted for?"

This is purely speculative.

The correct answer to the question vis a vis 2007-2010 is that a
process specified by the ICANN by-laws was followed. This included,
significantly, review by an independent non-binding arbitration panel
agreed to by both parties. This took some time.

Shortly after that 3 member panel issued their recommendation, 2 felt
ICANN was violating their own by-laws in rejecting .XXX, one felt (all
this is of course overly brief) the by-laws allowed them to reject or
accept the application.

Then, in December 2010 (Cartagena) the issue was referred to the GAC,
ICANN's Govt Advisory Committee who had some shared power in the final
decision. Or let's say what power the GAC had was then also an issue,
besides their substantive recommendations. And at the San Francisco
ICANN meeting earlier this month the ICANN Board of Directors approved
a motion to move .XXX along (you are free to read the motion.)

That's much of what happened 2007-2010.

AS AN ASIDE I don't know that the mere threat of an "expensive" or
"embarrassing" lawsuit would be very compelling. Most everything you
allude to is practically public knowledge anyhow.

For a $65M/year organization like ICANN lawsuits are perhaps not their
favorite way to spend money but they're not terribly expensive, it's
not a hugely complicated case and would likely only revolve around
whether ICANN adhered to their own by-laws or similar (contracts and
representations with ICM, prevailing law, undue influence, etc.)

Maybe you meant there was a possibility of an expensive judgment?

Well, a lot of things happen between the filing of a lawsuit and a
judgment, including the possibility of out of court settlements of
various sorts which could include simply yielding, i.e., saying ok you
(ICM) can have .XXX.

My guess is if ICM won such a lawsuit, they get .XXX and perhaps ICANN
would have to remunerate them some expenses, and if ICM lost then they
lost, they'd get nothing. But this is all counter-factual.

        -Barry Shein

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