> -----Original Message-----
> From: [log in to unmask] [mailto:[log in to unmask]] On Behalf Of Joly
> MacFie
> 
> The fact that such well informed people as Avri and Milton do not on
> agree on the circumstances here does indicate that the board could be
> honest in its appraisal of its own uncertainty.

I don't agree with your logic. The Board is not, in fact, uncertain about anything. That is just a ploy. The Board is refusing to grant relief to the wronged party. Instead of honestly saying that, it is appealing to "the community" to approve a new process, because it knows full well that .xxx is unpopular and will never gain "consensus" for a grant of the .xxx TLD. 

Some will oppose the grant because they don't like porn. Some will oppose it because they don't like competition. Some will oppose it because they don't like any new TLDs. Some will oppose it because they are jealous of what promises to be a money-making operation, or because they are opposed to commercial exploitation of DNS. You name it, someone will come up with a reason to oppose it. So in the end, the Board can say "no" because .xxx doesn't have the appropriate "community support". 

And yet, that is exactly the same reason ICANN rejected it in the first place! And that is exactly the action that the IRP panel found to be illegitimate and discriminatory. So we are right back where we started. 

As incredible as it seems, the Board is just adding another cycle to the excruciating deviation from fair process that started almost 5 years ago. 

Joly, the essence of free expression is that you don't have to ask "the community" for permission to speak or publish. You are free to publish as long as you don't violate someone else's rights. Doesn't matter how unpopular your ideas are. Are we in agreement on that? I think that's what NCUC stands for wrt the DNS and the addition of top level domains. It doesn't matter how unpopular your TLD is, as long as it's not fraudulent or violating a trademark or otherwise breaking someone else's rights you should be able to start it. For ICANN to turn the rectification of its injustice into a popularity contest is disgraceful. 

> Even Stuart Lawley (see http://www.youtube.com/watch?v=fvqhXXln1vY )
> earlier in the week uses the word 'if' in anticipation of the board's
> decision.

Of course, do you think Stuart Lawley would have any confidence that ICANN would do the right thing, after the way he's been treated? This has no bearing on the justification for ICANNs decision.

> So the board opted to punt, until the various options were clear. How
> long can that take? If Milton is right, and they're SOL legally -
> possibly not that long.

ICANN is supposed to be the responsible party. If a court of law tells me I wronged someone what does it mean to say I "opted to punt?" It means, in effect, that I am choosing not to take responsibility for my actions. 

As I said in my blog, the resort to litigation is VERY bad for the whole community - it shows that in the end, ICANN and its own organic processes do not work, we have to go to the US govt to get them resolved. Bad.