educational

Trouble With .XXX

Stephen W. Workman
In a reversal of position, ICANN has decided to authorize ICM Registry to offer and oversee a new “.XXX” TLD regime. Whatever you may think of ICANN’s decision, for now it’s a reality to be dealt with. So the question becomes whether you, as an owner or operator of adult websites, should participate in this, eh hum, brave new world.

The creation of the .XXX registry presents you with a Hobson’s choice: If your site is successful, and you don’t purchase the .XXX domain, chances are that someone else will. If that happens, there are two potential results, neither good. Result One: the .XXX domain registrant will attempt extortion, demanding payment of several thousands dollars in exchange for transferring the domain to you. Result Two: the domain registrant will launch a site in hopes of confusing consumers as to its identity or affiliation with yours and, as parasites want to do, feed off the success you’ve worked so hard to enjoy.

The ICANN Uniform Domain Name Dispute Policy would in most cases relieve you of such nefarious threats or actions, but even that streamlined procedure comes at a cost of time and money, albeit minimal. (I’ve utilized ICANN’s domain dispute procedure on many occasions on behalf of clients, and — thus far — the arbitrators have always gotten it right, so I do have confidence in that protocol.)

But ICM offers you “good news;” it has a solution to this problem (keep in mind that the problem was created by ICM, to be solved at your own expense). The solution is to pay ICM a “one-time fee ranging from $50 to $250” and it will block your second tier name, so that no one else can use it in the .XXX regime.

Clever and perhaps good public relations. Paying ICM a “one-time fee” is cheaper than filing a domain dispute under ICANN, let alone filing a Lanham Act complaint against the plagiarist who seeks to unfairly cash in on your hard earned success. That said, I’m not about to offer much credit to ICM for this gesture.

ICM’s pitch to ICANN has been that establishment of the .XXX TLD would represent an act of good citizenship, a great public service: .XXX domains would enable parents and businesses to block access to those domains on their computers, and would enable consumers of adult entertainment to have “peace of mind,” as website operators under ICM’s regime will supposedly be compelled to commit to principled standards of operation. Apparently, ICANN finally bought into the argument.

I disagree with ICANN’s decision, if only for the fact that it serves to create and enrich a monopoly, i.e., ICM. More importantly, perhaps the more accurate characterization of the .XXX TLD is not as a public service, but as the first step in the creation of a “cyber-ghetto” for adult websites. As history has informed, the problem with ghettos (where a manner of culture or, in this case, a manner of entertainment, is concentrated) is that it becomes all too easy for opponents of that culture or entertainment to punish or banish it.

Constitutional principles could, hopefully*, thwart any misguided attempts to corral all adult websites into the .XXX neighborhood. But make no mistake, the temptation is there, tantalizingly close to those who would like nothing more than to marginalize, if not eradicate, your content.

(* Would forcing you to give up operating on a .com domain and move to a .XXX domain violate the “taking” clause of the 5th and 14th Amendments? The answer is dangerously unclear. Remember, instead of treating domain names as intellectual or intangible property, some courts have reasoned that your rights to a domain name vis-à-vis the domain registries are akin to your rights to a telephone number. As we know, your telephone area code can be changed, and you have no right to prevent it. Could the courts decide that a TLD is akin to an area code? It’s hardly outside the realm of possibility.)

But beyond that important issue — which I can address at length in a subsequent article — the fact is there are millions of adult websites, untold numbers of which are successful. Many of those will feel compelled to either register and redirect, or at least pay to block others from using, identical or confusingly similar .XXX domains. That’s an immense financial windfall for ICM. And, from your point of view, for what?

I think you know the answer to the question, and if it angers you, it should.

Steve Workman has represented the adult Internet community, throughout the U.S. and internationally, since 1997. He can be reached at steve@worldmedialaw.com or (630) 852-2620.

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