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:
[log in to unmask]" type="cite">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 <[log in to unmask]> 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 <[log in to unmask]>
To: [log in to unmask] 


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.