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back to article ICANN responds to smut portal antitrust lawsuit

ICANN and .xxx manager ICM Registry want a California judge to throw out an antitrust lawsuit, saying plaintiff Manwin Licensing is just miffed that it missed out on the juiciest domain names. Manwin, which runs major online porn networks including YouPorn and Brazzers, sued ICANN and ICM in November claiming that they had …

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  1. Thomas 18
    Joke

    Greg Dumas

    What a.... who am I kidding, I bet he's had that his whole life.

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  2. NumptyScrub

    confusing fiscal propriety here...

    from the article:

    "ICANN cannot, as a matter of law, be liable under the antitrust laws with respect to the conduct alleged in the Complaint because ICANN does not engage in 'trade or commerce'," ICANN said.

    "[ICANN] does not sell Internet domain names, it does not register Internet domain names, and it certainly is not an Internet pornographer. ICANN does not make or sell anything," the motion adds.

    then it states:

    "The organisation now receives $2 from ICM for every .xxx domain name registered, the highest fee it commands from any registry."

    so tell me, if it is not engaging in trade or commerce (and therefore cannot be considered to have a monopoly under antitrust regulations), why is it receiving fees for each domain that is registered? Would it be possible for me to register and sell domains without having to pay ICANN for the privilege? Sounds pretty monopolising to me... so I must be missing something.

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    1. Steve Knox
      Reply Icon

      @NumptyScrub

      Is an excise or VAT tax "trade or commerce"?

      What about charitable donations?

      Just because someone agrees to give you money, that doesn't make you a business.

      And, yes, it is possible for you to register and sell domains without paying ICANN. There are alternate domain systems on the internet. They require client configuration, and so may not have much of an audience, comparatively speaking, but it is possible.

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      1. Eddie Edwards
        Reply Icon
        Thumb Down

        Yes, but ICANN *is* a business under US law; it says so on their About page.

        They are disputing that they are "doing trade", not that they are a business. And if you're selling registrations at $2 a pop, it looks to me like you're doing trade. Any claim to be above the law tends to be laughable, but this looks particularly cheeky.

        The .xxx domain is a good idea, but the implementation is a cynical money grab. They should be moving existing .com names over so they can be retired, and disallowing registration of existing .com names except by their owner, and they should be doing it for free, or for a nominal cost. That serves the stated aim of .xxx (getting porn into its own channel where it can easily be blocked). Instead they're profiteering by extorting money from people both outside the porn industry ("you wouldn't want a pizzahut.xxx would you?") and inside the porn industry ("you wouldn't want your competitor to get your-domain.xxx would you?").

        The blame isn't squarely on ICANN, of course, but we're talking about a corrupt system where ICANN call the shots, so there is a case to be answered IMO.

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  3. Chris 228

    This is why frivolous lawsuits should be severely punished

    Those who waste the courts time and other people's money with frivolous lawsuits should be jailed and forced to pay ten times ALL costs associated with defense of a frivolous lawsuit plus a minimum of $100K punitive damages for corporate suits.

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  4. Yet Another Anonymous coward Silver badge

    Not extortion?

    Then I can create my own top level domain of .isapeado and offer celebrities the chance to not be listed on it for a mere $300 ?

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    1. AlanS
      Reply Icon
      Facepalm

      Surely ".isapaedo"

      Or do people do peas?

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  5. Richard 120

    Hmm

    So non-profit organisations, that's like a charity right?

    So charities give the stuff they get given to the people it's intended for, like children in africa, that sort of thing, oviously after deducting their overheads (or "skimming" as I like to think of it)

    What happens to the cash given to ICANN then? Presumably a hefty amount of "skimming" and maybe a chunk goes to the people it's intended for, presumably those running the DNS servers?

    If I was looking after those DNS servers I'd be thinking - "Where's my chunk?"

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  6. Eduard Coli
    Childcatcher

    ICANN't stand it anymore

    ICANN has mutated into the business end of an industry choked by a club of well funded and well connected insiders.

    They should and need to be shown the Sherman Act.

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    1. Yes Me Silver badge
      Reply Icon
      Childcatcher

      Unchoked

      I'm pretty sure that ICANN is deeply aware of the Sherman Act and of EU pro-competition legislation. I'm also dead certain that they are not an insiders' club; the process for selecting ICANN Board members ensures that. And although I believe they have made mistakes, and that approving .xxx is their biggest mistake, and that ICM is in a very scummy line of business, they are absolutely in the clear over this frivolous suit.

      There is competition; .biz vs .com is proof enough. The poor take-up of .biz is proof enough that this competition is fairly pointless, but that's another story.

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      1. Anonymous Coward
        Reply Icon
        Anonymous Coward

        "There is competition; .biz vs .com is proof enough. The poor take-up of .biz is proof enough that this competition is fairly pointless, but that's another story."

        If you are in the porn industry you don't have the option of registering .biz or any other domain except ,xxx. Therefore there is not the competition you speak of.

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  7. GarU
    Headmaster

    "ICANN is a not-for-profit, public-benefit corporation" and not a non-profit !

    Per ICANN's court filings they claim that they are a "not-for-profit, public-benefit corporation" -- and not a non-profit. IANAL, but I have been told by several lawyers that there is a hudge difference between a "non-profit" (say a 501(c)3 corporation) and a "not-for profit" corporation."

    It appears to me that the author of the article in The Register as well as a number of people making comments are blurring these differences. The New York Secretary of State has a nice website explaining what a Not-for-Profit Corporation is !

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    1. Tom 13
      Reply Icon

      In the US, you start as a not for profit and

      unless you are a total fool, you quickly add an appropriate non-profit status appropriate for your activities [501(c)3 is only one of about 14 IIRC, albeit the most advantaged] because that's the one that gets you out of paying federal taxes. NPOs are not necessarily prohibited from making money, it's just that their directors can't profit from it. Usually the monies go back into the community is some form. If you don't get the NPO status, you have to either balance your books damned carefully, or pay 35% direct to Uncle Sam. So I'd bet they have an NPO status of some sort, although not necessarily the educational one.

      IANAL but I've helped organize and run many NPOs in my time. Even worked for one once upon a time.

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  8. kain preacher

    a 501c is a non profit put fit a 501c3 is a non profit out fit and must give away all of their money to the the local community to which they physically reside in .

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    1. Tom 13
      Reply Icon

      That would be wrong

      on pretty much all counts, even if I attempt to correct for bad grammar.

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