March 17, 2011 05:42pm
Other Side of .XXX
Source: Worldwide Media, Inc.
Last week the Free Speech Coalition (FSC) had a five part series on laying out its argumentís against the .XXX extension entitled "Whatís Wrong with .XXX" which was republished by the "Adult Video News" (AVN)
Besides attacking the extension, all 5 articles had in common theme:
The subtitles of the 5 articles were:
".XXX and Child ProtectionÖ.Bullshit!"
".XXX and Sponsorship Community SupportÖBullshit!"
"Intellectual PropertyĖis .XXX good for your brand?Ö Bullshit!"
"If for separate from ICM and Representative of the Adult Industry?ÖBullshit!"
".XXX is All Bullshit! Itís Crunch Time. Letís Fight Back!"
I guess you can tell what the common theme was.
So I read all 5 articles and then sat down with Stuart Lawley CEO of the ICM registry, the applicant for the .XXX registry, for an exclusive interview to respond to these articles.
To the best of my knowledge it's the first time Mr. Lawley has responded or made any public comment in response to the articles.
The interview was held quite impromptu, when I found myself sitting in the row behind him on the Virgin America flight I took from Ft. Lauderdale to the San Francisco last Saturday to come to the ICANN meeting.
First for the disclaimers.
Neither my company, Worldwide Media, Inc. nor my new venture Right of the Dot, has been retained in any capacity by ICM Registry or Mr. Lawley, nor have I or any of the companies Iím affiliated received or been promised a dime from ICM or Lawley.
Moreover and just to be clear, I do not own any .XXX domains, and have not been promised any .XXX domains and have not applied for any .XXX domains during the founders program.
Finally we own thousands of adult domains, mostly .comís and my company Worldwide Media, Inc. is a former member of the FSC.
Now with that out of the way;
Iím calling Bullshit on the FSC.
Going through the arguments made by FSC Iím not impressed they have made any case against the .XXX extension from being approved.
Moreover they simply ignored the findings of the independent judicial review panel which cost both parties, ICM and ICANN millions of dollars in legal fees and other costs.
To remind everybody, this panel, after a full "trial" with evidence and witnesses call by both parties found that ICANN should have approved the application of ICM for .XXX years ago as they meet all the requirements laid out by ICANN.
The Judicial finding was based on ICANN vote back on June 1, 2005, at which they approved the extension.
To read a history of the extension click here
FSC may have had some good arguments to make back then but they are making them at least 7 years too late.
Lets remember that the original application for a .XXX extension goes back to 2000.
The current application was filed in 2003.
There was a public comment period in 2004 and according to Mr. Lawley;
"At that time FSC public position was neutral and while I have never pointed this out to the press before, clearly in 2003, 2004 and most of 2005 the FSC was neutral on this issue."
"The FSC just started opposing .XXX in August 2005."
"So FSC let there members down when they could have opposed it, in 2004 during the public comment period." Lawley said
"By the time the FSC started to oppose it the ICANN Board already passed it" (in June 2005).
This is just one of the reason that Iím calling Bullshit on the FSC.
Lets look at some of FSC arguments against .XXX as stated in the 5 article series:
"FSC has received numerous letters from companies representing thousands of .XXX pre-registrations. These companies voice outright opposition to the .XXX sTLD and state that they have pre-registered defensively in order to protect their brands and Internet traffic."
As Mr. Lawley states ".XXX was never a meant to be a referendum on the extension that would require more people in favor than against it".
"The fact that there are people against the .XXX extension from the adult community doesnít effect those than want and support the extension."
"We have always made it known that many people in the adult industry do not want it"
"However we have 211,000 reservations from 83 countries around the world that are supporting the extension."
Moreover, Lawley refutes the FSC claim that it represents the vast majority of the adult community:
"The FSC is not representative of the adult industry on a global basis, it has less than 1,000 members and they are highly concentrated in California and I would say 90% or more of their membership is Us based."
".XXX is a global brand not just a Us brand." say Lawley
"We will only prosper and be successful if we deliver benefits and the industry prospers"
"We are in for the long term, we have the resources and we plan on delivering long term"
The FSC says that they are objecting to issuing ICM the .XXX extension since they would be the only adult extension.
The FSC writes:
"With the expected roll-out of thousands of new gTLDs, it was originally thought that many of the new TLDs would reference sexual expression in some way. FSC would have had fewer problems with the application if .XXX were among a large group of sexually oriented gTLDs competing in the marketplace. "
"However, with the likelihood that 'controversial' TLDs will be limited in the gTLD process, it is now more likely not only that .XXX would stand alone as the sole sponsored TLD specifically devoted to sexually oriented expression, but also stand alone as the only TLD representing sexually oriented expression, creating a virtual monopoly for ICM."
Well, whether .XXX will be the only "Sexually Oriented" gTLD that may ever be approved, may or may not be true.
If the new gTLD process is ever passed by ICANN, an unlimited number of other parties may well apply for other extensions like .sex, porn or .adult or similar words in other languages such as .sexo or .sexe.
Whether such applications will be submitted, and whether ICANN will approve them, is not within ICM control.
If no one else applies for a sexually oriented extension, is that ICMís fault?
If other apply for "adult extensions" and ICANN doesnít approve them is that ICMís fault?
Of course not and thereby its simply canít be a reason to deny ICM its application to operate the .XXX registry.
The argument that the FSC would not oppose the .XXX application if there were "A large group of sexually oriented gTLDs" is nothing less than ridiculous.
Should ICANN in similar fashion deny .insurance because that would set up a "virtual monopoly" in that vertical?
Isnít that the one of the major reasons that many companies want to apply for their own extension in the new gTLD program, to own a vertical?
So the argument that you canít grant an extension because it would create a "monopoly" in a vertical is counter intuitive to the whole gTLD process.
The way I read the most current version of the Guidebook, ICANN would not allow an application for .insurance, and .insure and .insured to all co-exist.
They would only allow one.
"If there is only one, two or three adult TLDís the FSC would be against them, but if there were 10 extensions it would be different." Lawley notes.
On this point I call Bullshit.
Again lets remember this whole current situation arise out of an application approved by the ICANN board in June 2005.
The new gTLD process wasnít even proposed until 2007 by ICANN.
FSC wants to deny ICMís application which was approved in 2005 because there may not be more new gTLDís in the adult space through a process that was not even proposed until 2 years after the vote?
The FSC also doesnít like the fact that although trademark holders can block a specific brand from ever resolving under a .XXX domain, they argue this doesnít go far enough because "You cannot block variations of the name."
The FSC writes:
"For example, if Barely Legal is trademarked, BarelyLegal.XXX can be 'blocked from live use,' but BarelyLegalGirls.XXX cannot, unless Barely Legal Girls is specifically trademarked."
Is the FSC suggesting that adult brands should enjoy more protection under trademark laws than non-adult brands?
This is the way trademarks and domain protection works.
If you have a valid trademark on a term, you have protection.
You donít get to have 1002s of variations of domains given to you on the basis of a single trademark.
Verizon doesnít have that right and neither does "Barely Legal"
Itís a bullshit argument.
The FSC also doesnít like the fact that once you elect to have your trademarked block you canít unblock it:
"If you want to block your trademarked domains from live use, and at some time in the future change your mind, sorry, youíre screwed again. Your domain will be tossed onto the open market. Sure, there are legal paths you could take, but at what expense to you and your business?"
Yes, adult business will have to make a business decisions as to whether they want to get the .XXX version of their brand and whether they want to use it or just block it and like most business decisions changing your mind is either impossible or very expensive.
"FSC is extremely concerned about how much it will cost established adult entertainment businesses to protect their trademarked brand names and internet traffic should the .XXX sTLD be approved. The adult industry has been hit hard by the worldwide recession, and many companies presently lack any excess capital to throw away, especially at $60 per, just to protect up to thousands of .XXX versions of their second-level domain names."
Well, the adult industry hasnít been as hard by the recession as it has from the fact that thousands of "tube" sites exist which give their product away.
Why pay for the cow when you get the milk for free?
I think my great, great grandmother taught me that one, so it's not exactly a new concept.
While trademark holders have certain rights they donít have the right from keeping other industries and businesses from existing and making money because they donít want to pay the cost of defensive registrations.
If you donít want to pay the cost of car insurance then ride a bike.
There is a cost of doing business and all future business cannot be put on terminal hold because costs increase.
The FSC didnít even get the price right.
$60 per registration is the wholesale cost, not the retail cost.
ICM is going to sell the .XXX domains through registrars which will not surprisingly want to make money as well.
So people will not be able to register .XXX domains for $60, but for what I predict will be a retail price of somewhere between $75-$100 per.
Here is more Bullshit from the FSC:
"But wait! ICM is also trying to convince us that .XXX will, in fact, enhance your brand. In his post of July 8, 2010, Stuart Lawley stated that ICM, "Will be embarking on a multi-million dollar media campaign" to promote the benefits of .XXX. He went on to say, "We will also likely sponsor sporting events, conferences, etc., to make sure that the .XXX brand is fully known prior to the launch and that the general public is fully aware of what .XXX represents." Sponsoring sporting events? Who is he kidding? The NFL is not going to allow .XXX anywhere near its teams. What about baseballÖsoccer? These events are for family viewing and I can promise you they will go nowhere near .XXX. But letís not be too hard on Mr. Lawley. After all, he is not part of the adult industry and knows Nothing about it! ICM is trying to convince us that .XXX will enhance adult brands and traffic? But we know better. We sayÖBullshit!"
Mr. Lawley told me "In fact ICM plans on promoting and marketing the .XXX extension on major sporting events".
"It's our plan and within our budget to get out message out. ICM has the funds and has a plan to market the .XXX extension well beyond traditional adult media."
Can anyone say that a .XXX commercial or promotion would could never be allowed at any major sporting event anywhere in the world, even if the commercial was done in good taste and wasnít sexual in nature?
"I probably wonít be allowed to sponsor the Masters at Augusta," said Lawley, "but there are other sporting events in the Us like Nascar, & UFC, that will allow it and other events held outside the Us that will allow it."
Even so when did whether you can get a commercial aired during the Super Bowl become requirement for getting a domain extension approved?
"They have criticized me saying, he is not part of the adult industry and knows Nothing about it!"
"But I have been in the space since 2003, trying to get .XXX added to the root."
"Everyone is an outsider until they become an insider, so at this point I have as a good grasp of the adult Internet space as anyone"
"When we first started this in 2003 the online adult industry was flourishing but now it could use a boost a different approach"
"There is so much piracy and free adult content combined now thatís hard to get people to spend money on adult content"
Combine this with so many consumers that bad experiences weíre they had joined an adult site in the past and couldnít get off an auto re-billing subscription, unless they died"
"So .XXX allows the industry to have a fresh start a new beginning and the tools to deliver on them."
"Age verification, micro-payments, multi-currency with the ability to pay with cash vouchers mobile SMS, phone billing other e-payments including traditional credit and debit cards will give the industry a boost."
"At one time most people got their music on the Internet by way of stolen content, which is what is happening now with adult material."
"As technology changed and payments get easier and more targeted, combined with enforcement action against piracy, people started paying for music more, and stealing it less."
"Back in 2004 it wasnít an issue."
" Today piracy is it is the biggest issue facing the industry, so thatís should be a main issue for the non-profit (IFFOR), sending out DCMA notices, filing John Doe Lawsuits, publicize coming after Ip thieves, just like the music industry"
"The adult industry traditionally is poorly organized and doesnít have a powerful trade organization."
"The FSC should have been working with us, to fight privacy and other issues important to the industry"
"So we think .XXX could be the shot in the arm that the industry needs."
I also have to point out another common theme in the FSC articles and I find it quite disturbing.
In each of the articles the FSC calls out Mr. Lawley by name in a very personal way.
Now I have been in the domain industry for a Long time and I can honestly say I donít know of any other executive at a registry level that has been personally attacked by name.
There are plenty of people that have issues with VeriSign, but Iíve never seen nor would it be appropriate for a publication to call out the CEO by his name time and time again.
Personally I donít even know the name of the CEO of Verisign, yet in the 5 part series of article the FSC attacked Mr. Lawley by name time and time again.
Matter of fact the applicant of the .XXX extension is called out by the FSC by his personal name many more times than by its corporate name.
I asked Lawley why he has been personally vilified in this process to which he simply responded:
"I have no idea of why they are attacking me personally, honestly donít know, but I can tell you that over the years these types of attacks have gotten very personal."
"I have gotten death threats"
"I have even gotten threats that my kids would be kidnapped and tortured, its just not right".
Thatís some serious bullshit.
Much of the FSC criticism of ICM is over IFFOR which is a non-profit foundation, that is going to be set up as part of the .XXX application and will be funded $10 out of each .XXX registration.
According to Lawley:
"Substantial monies will be available for IFFOR to donate, sponsor and fund whatever initiatives it feels appropriate. We envisage a range of initiatives being considered, including but not limited to: health and safety of Adult Industry workers, legal challenges facing the industry such as 2257, piracy, counterfeiting, onerous legislation etc, labeling initiatives, combating child abuse, parental awareness, etc."
In a video clip cited by the FSC of Mr. Lawley at an XBIZ event back in 2007 also shows that Lawley commits to use funds of the foundation to fight any attempt by governments to mandate that adult material be carries only on a .XXX domain.
".XXX is voluntary and we will spend funds of IFFOR to fight an attempt of governments to require adult material to be carried only on a .XXX extension."
FSC also claims that the application of .XXX should be denied because they set rules that registrants have to follow:
"There are a few other points that are imperative for you to understand concerning .XXX. If you auto-redirect your existing .com at your new .XXX domain, your .com domain will be required to follow the same regulations as .XXX."
Well, of course.
If you register a TLD or a ccTLD extension, youíre subject to the rules of the extension, the terms and conditions set by the registry and the registrar as well as the local law in which you live.
This is not a new issue nor an issue limited to .XXX.
The FSC goes even further and states:
"That means you have to let whatever entity that ICM has chosen to automatically scan and monitor your .XXX site for "illegal and offensive material" and to make sure you are compliant in the best practice regulations that IFFOR imposes"
As Stuart Lawley points out "It's not up to ICM to scan your site for offensive material"
"Law enforcement will decide what is legal and what is not".
"The ICM Registry is subject to US law we are a Us company."
"Everyone has to abide by the laws of the jurisdiction they are in regardless of what TLD they operate in. If you run an adult site from Iran your subject to their laws as well"
"That is in every registration agreement and no registry can tolerate illegal behavior"
All arguments to the contrary are just Bullshit.
The FSC also claims as a reason to deny the .XXX extension is that:
"If .XXX passes, there are governments that will block .XXX. "
"This will not only immediately de-value your .XXX domain, but will also pose a threat to your click-through .com domain. From a business perspective, purchasing .XXX domains is a bad investment and is potentially dangerous to your existing domains and traffic."
So as we all know there are countries are already block adult sites.
In China, Iran and in most of the middle east, porn sites are blocked.
Even Google is mostly blocked in China, as well as are many political sites.
Censorship is not new to the adult industry.
Mr Lawley points out "It could be expected that other extensions will be blocked as well, such as .BBC will be blocked in Iran or .Google in China."
So should the BBC application for a new gTLD be denied because certain countries might block the extensions?
Of course not.
At the end of the day the name of the organization itself, the Free Speech Coalition would indicate that they should support peopleís right to express themselves.
The fact that the Free Speech Coalition wants to limit Free Expression seems counter intuitive.
Finally and maybe the silliest argument the FSC makes, is that somehow ICM spending over $12 million dollars to date, was some kind of grand plan:
"ICM has invested over $12 million to push .XXX through the ICANN machine."
So what has $12 million bought ICM?
"Sponsorships for a number of conferences at which there were votes for .XXX."
"An independent Review Process that voted in favor of ICM on the issue of "sponsored" community (i.e. The adult entertainment community) even though no one from the adult entertainment community was questioned or interviewed in the process. "
The FSC is talking like ICANN did ICM a big favor by making it jump through hoops for years and years, denying their application, making them go through judicial proceedings which cost millions more.
Letís remember that when ICM applied for the .XXX extension, the application fee was under $100K
"ICM original plan called for a budget of $500K to get approval and to be added to the root" said Lawley who added "this should be a cautionary tale for all new TLD applicants"
The fact the ICANN made ICM chase the rabbit around the track, spending millions of dollars, actually over 10 million dollars more than they ever envisioned is not ICM fault.
The FSC even wants to blame ICM for ICANN shortening the public comment period for the San Francisco ICANN meeting:
"A shortened public comment period at the San Francisco conference, two hours rather than the usual five hours, is an attempt to silence the adult communityís public voice."
"ICANN will be in a position to make a great deal of money if .XXX is approved."
If .XXX does exceptional well, they may have 500K registrations.
That would be exceptional.
So even at the inflated rate of $1 per domain that ICANN would be charging under the proposed contract, it comes to $500K a year.
With $50 Million in the bank is ICANN really going to make a "great deal of money" off of .XXX?
As of the last VeriSign report there were 105 Million .com's registered which at $0.18 each means $20 Million a year to ICANN for just .com registrations.
That $500,000 payday that ICANN might receive if .XXX exceeds all reasonable expectations, is going to be a "big payday" for ICANN?
Finally the Big protest that the FSC has called for today is not unlike the Big protest it said it was going to stage at the Brussels ICANN meeting.
I was at the Public Forum of ICANN Brussels and just a few people even bothered to get up and speak.
Matter of fact after the big build up by the FSC of the Big anti .XXX public forum at Brussels, the next topic that was discussed, whether the chairman of ICANN should receive a $100,000 a year stipend, lasted more than twice as long as the discussion on .XXX.
The .XXX discussion went only for only 20 minutes while a ton of people got up for almost an hour telling the ICANN board that the chairman of ICANN more than deserved to receive compensation.
At the Colombia ICANN once again there was little discussion of .XXX.
Now the FSC is blaming ICM for ICANN decision to shorten the time frame for Public comment to just 2 hours.
After making ICM chase the .XXX extension for over 7 years and spend over $12 Million on an application that was supposed to cost less than $100K, ICANN all of a sudden is changing their schedule for ICM benefit.
Maybe ICANN just decided they have heard enough.
Really after 7 years, everyone has said all they have to say about .XXX
Now its time for ICANN to follow its own rules and the ruling of the Independent Judicial Review and give ICM the extension they have meet all the requirements for long ago.
Any other outcome, as the FSC would say is Bullshit.