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

[Milton L Mueller]

IMHO it is completely without merit as an anti-trust case.
There is no sensible definition of the market that is monopolized, and the opening up of new TLD opportunities means that doZens of alternatives (.porn, .sex, use your imagination...) could be available.


The complaint says, "The ICM/ICANN contract contains no price caps or other restrictions
of any kind on what ICM can charge for .XXX registry services." If this is illegal then nearly all other TLD registries, established and new, are going to be illegal.

AFAICT this is an attempt by the incumbent porn websites to harass .xxx, now that the battle over its creation has been lost.


From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Nicolas Adam
Sent: Friday, November 18, 2011 2:56 PM
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Subject: [NCSG-Discuss] Fwd: [ NNSquad ] Full Text of Manwin Lawsuit Against ICANN / ICM re .XXX

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.
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