Fwd: [ NNSquad ] Full Text of Manwin Lawsuit Against ICANN / ICM re .XXX

[Nicolas Adam]

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).

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).

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.

Which brings me to comment on something separate but relevant: the
qualities of an eventual ICANN chairman.

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.

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.

Nicolas

On 18/11/2011 3:03 PM, Nuno Garcia wrote:
> 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 :)
>
> On 18 November 2011 19:55, Nicolas Adam <nickolas.adam at gmail.com
> <mailto:nickolas.adam at gmail.com>> wrote:
>
>     I have some choice quote below. Any comment on the merit of
>     Manwin's case?
>
>     Nicolas
>
>     -------- Original Message --------
>     Subject: 	[ NNSquad ] Full Text of Manwin Lawsuit Against ICANN /
>     ICM re .XXX
>     Date: 	Wed, 16 Nov 2011 23:42:20 -0800
>     From: 	Lauren Weinstein <lauren at vortex.com>
>     <mailto:lauren at vortex.com>
>     To: 	nnsquad at nnsquad.org <mailto:nnsquad at nnsquad.org>
>
>
>
>     Full Text of Manwin Lawsuit Against ICANN / ICM re .XXX
>     http://j.mp/vl0InX
>        (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.
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ncuc.org/pipermail/ncuc-discuss/attachments/20111118/ddb7737c/attachment-0001.html>