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Of course, it seems as if most of their case rests on an
impossible-to-make argument about ICANN bowing to pressure or about
ICM misrepresentation, whereas those are not things that will
necessarily help them winning an antitrust case (both not sherman
act tests if i'm not mistaken). <br>
<br>
But if true some of the things they say about the terms of the
contract makes me wonder about my endorsement of said contract on
said terms. Particularly the provisions about one-way termination,
renewal, and restriction on addition of new gTLD in the same market
(sex).<br>
<br>
Also, I still believe in the validity and wisdom of constraining
Registries'/Registrars' ability to market/commercialize new gTLDs as
a defensive scheme. If this is how ICANN sees this TLD enlargement,
it would not be getting my support.<br>
<br>
Which brings me to comment on something separate but relevant: the
qualities of an eventual ICANN chairman.<br>
<br>
Its first and most important quality should be: optimism in the
possibilities of the DNS and the concomitant refusal to see DNS as
(merely) a protection racket and a soon-to-be irrelevant addressing
scheme. One need not be naive (many technologies may replace DNS or
make it irrelevant in the not-so-distant future; that is not a given
but definitely a possibility), but optimistic ― and/or imaginative,
if you will.<br>
<br>
I commented on Esther Dyson's lack of (amazingly for her) free
market imagination before, and it is precisely this that I meant.
How can someone chair ICANN and not be optimistic about the
possibilities of DNS evolution. <br>
<br>
Nicolas<br>
<br>
On 18/11/2011 3:03 PM, Nuno Garcia wrote:
<blockquote
cite="mid:CALbrTwDs9b_EfrhEOBzv6fg3S07P-v5sjuNikKS8De+0C9jUKQ@mail.gmail.com"
type="cite">I can find a couple of points where I think their
argument doesn't hold. If I was an ICANN attorney, I would enjoy
preparing this case :)<br>
<br>
<div class="gmail_quote">On 18 November 2011 19:55, Nicolas Adam <span
dir="ltr"><<a moz-do-not-send="true"
href="mailto:nickolas.adam@gmail.com">nickolas.adam@gmail.com</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex;">
<div bgcolor="#FFFFFF" text="#000000"> I have some choice
quote below. Any comment on the merit of Manwin's case?<br>
<br>
Nicolas<br>
<br>
-------- Original Message --------
<table border="0" cellpadding="0" cellspacing="0">
<tbody>
<tr>
<th nowrap="nowrap" align="RIGHT" valign="BASELINE">Subject:
</th>
<td>[ NNSquad ] Full Text of Manwin Lawsuit Against
ICANN / ICM re .XXX</td>
</tr>
<tr>
<th nowrap="nowrap" align="RIGHT" valign="BASELINE">Date:
</th>
<td>Wed, 16 Nov 2011 23:42:20 -0800</td>
</tr>
<tr>
<th nowrap="nowrap" align="RIGHT" valign="BASELINE">From:
</th>
<td>Lauren Weinstein <a moz-do-not-send="true"
href="mailto:lauren@vortex.com" target="_blank"><lauren@vortex.com></a></td>
</tr>
<tr>
<th nowrap="nowrap" align="RIGHT" valign="BASELINE">To:
</th>
<td><a moz-do-not-send="true"
href="mailto:nnsquad@nnsquad.org" target="_blank">nnsquad@nnsquad.org</a></td>
</tr>
</tbody>
</table>
<br>
<br>
<pre><div class="im">Full Text of Manwin Lawsuit Against ICANN / ICM re .XXX
<a moz-do-not-send="true" href="http://j.mp/vl0InX" target="_blank">http://j.mp/vl0InX</a></div> (Xbiz [PDF])
Interesting Reading!
--Lauren--
######################
51. Not only did the selection of ICM lack any market restraints, the
ICM/ICANN contract contains no substitute for such restraints (e.g., price caps)
such as those imposed by ICANN in other TLD registry contracts. In fact, the
terms of the ICM/ICANN contract bolster ICM's ability to engage in anti-
competitive and monopolistic practices in the sale of .XXX TLD registry services.
"In particular and without limitation:
(a) The ICM/ICANN contract contains no price caps or other restrictions
of any kind on what ICM can charge for .XXX registry services. ICM has
complete price discretion and no fetters on its ability to charge monopolistic prices
considerably higher than those which would exist in a competitive market. Such
higher prices raise costs for registrants and harm consumers through higher prices
and/or fewer choices.
(b) The ICM/ICANN contract leaves ICM with broad discretion to
fashion and limit in a non-competitive, unreasonable manner the nature, quality
and scope of .XXX registry services it offers registrars and registrants. Such
restrictions raise costs and limit innovation, thus harming registrants and
consumers.
(c) Under the terms of the ICM/ICANN contract, ICM may cancel the
contract at any time, and for any reason, on 120 days notice. By contrast, ICANN
may not terminate the contract unless ICM fails to cure adjudicated, material
breaches of its limited contractual obligations. Moreover, the ICM/ICANN
contract lasts for a minimum 10-year term, but "shall" be renewed perpetually
subject only to an ambiguous obligation to negotiate in good faith certain new
terms, none of which appear necessarily to provide registrant or consumer
protections. The unlimited term of the ICM/ICANN agreement permits ICM to
continue insulating itself from market restraints and from any threat of competition
in .XXX registry services.
(d) The ICM/ICANN contract contains a provision which ICM contends
will preclude ICANN from approving any arguably competing TLD designated for
adult content, such as ".sex" or ".porn." This restriction limits future competition,
enabling ICM to bar the threatened entry of new market competitors.
52. ICANN failed to take any reasonable contractual or other steps to
restrain ICM from engaging in monopolistic and anti-competitive conduct, not
only because ICANN was intimidated by ICM's previous pressure tactics and strategies but also because ICM agreed to pay ICANN very significant
compensation for the right to act as the .XXX registry, as more particularly averred
above.
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