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Why Would Anyone Want a . XXX Domain?; ICANN Screws You Either Way with the Sunrise B Program

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from www.themarknews.com – The long-awaited arrival of the .xxx suffix is upon us. Later this year, for the first time, registrants will be able to register websites with this controversial web suffix.

.xxx is a sponsored top-level domain, which means that unlike generic top-level domains like .com, .net or .org, it requires sponsorship by an organization representing a specific community or industry. Existing examples include “.museum” (sponsored by the Museum Domain Management Association) or “.travel” (Tralliance Corporation). .xxx is sponsored by the International Foundation for Online Responsibility.

The Internet Corporation for Assigned Names and Numbers (ICANN) extended preliminary approval to .xxx in 2005. Even before then, the domain had been met with heavy opposition from both right-wing and religious groups and – quite surprisingly – the pornography industry. The latter felt that .xxx may lead to the facilitation of censorship by search engines. They also feared that the hype and noise about the domain may elicit an unwanted legislative response from the U.S. Congress or other governments.

ICANN’s Governmental Advisory Committee (GAC), which receives input from governments about domain names, has also made its opposition known. In one of its submissions to ICANN regarding the approval process, the committee hinted that this decision “might lead to steps taken by some governments to prohibit access to this [domain].” This, however, did not stop ICANN from finally approving the application by ICM Registry LLC (the registry that operates the .xxx domain).

This presents a puzzling picture. The opponents of .xxx are not just the conservative/religious “usual suspects.” The pornography industry itself is, in large part, against the move. Why, then, is ICANN going ahead with the domain if it is opposed by the very community for which it is intended?

Well, it seems that ICANN is under the impression that the application complies with all of the policy concerns outlined in the GAC communiqué, such as “taking appropriate action to restrict access to illegal and offensive content” and to “ensure the protection of intellectual property and trademark rights, personal names, country names …” The ICANN board gives reasons for its decision here.

ICANN also doesn’t hesitate to point out its vast discretionary power vested by the California Corporations Code. Section 309 of the aforementioned law states that a director of a corporation is obliged to act:

[I]n good faith, in a manner such director believes to be in the best interests of the corporation and its shareholders and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.

The ICANN board believes that its actions are consistent with this standard and, until challenged, this remains the presumption. This law, however, presents a rather high threshold in that proving bad faith on the part of the board represents no small task. Otherwise, it would have to be shown that ICANN’s decision was counter to what a “normal person” would do in the same circumstances.

There are loud voices on both sides of the fence on this issue. That fact alone shows that the “best interest” in this case is hotly and contentiously debated and would render any decision made by ICANN (excluding one made in bad faith) consistent with this law.

As for the divergence of opinion within the adult entertainment industry itself, ICANN chose to hide behind the 2005 decision of the Independent Review Panel (IRP), stating that it will not revisit a decision already rendered. I suppose this can be chalked up to the “discretionary power” of ICANN. Still, it is a rather unconvincing response, considering the circumstances.

Finally, what of businesses and trademark owners outside the adult entertainment industry who want to prevent their marks from being registered with a .xxx suffix? For instance, a company like Disney would not want someone to register www.disney.xxx, for obvious reasons.

To address this, the ICM Registry will implement a pre-launch protection mechanism called “Sunrise B.” In September, for about 30 days, businesses and trademark owners will be able to pre-emptively opt out (for a fee of between US$200 and US$300), thereby protecting their trademark form being registered with a .xxx suffix.

ICANN admits that a decision like this one has both positive and negative impacts. It is quite sure, however, that the good will outweigh the bad in this case, and that the negative impact will concern people opposed to the .xxx domain in the first place. ICANN’s position is that unanimity in the community is unrealistic and waiting for such unanimity would present a barrier to progress – not an altogether unconvincing argument.

It will be interesting to see how this situation plays out. Will the Sunrise B program be an effective deterrent to what would otherwise be an impending flood of trademark litigation? Will governments go so far as to enact legislation restricting or prohibiting access to the .xxx domain?

One thing is certain: The internet is about to undergo an image change that may render its appearance far less wholesome – even if adult content is already as pervasive as ever without .xxx.

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