Analysis of the proposed .xxx TLD - part 2 (including a response to latest documents submitted by the ICM Registry to the ICANN Board)

["Paul Zapf" <paul.zapf@xxxxxxxxx>]

Dear Mister Cerf,



   On February 5th, 2007 I sent you a letter called "Analysis of the
proposed .xxx TLD". I also posted the letter in the Public Comments Forum -
it can be read here:
http://forum.icann.org/lists/xxx-icm-agreement/msg00593.html



   My letter served two purposes:

- To illustrate that the proposed .xxx TLD would not meet the goals which
ICM claims to have for it, neither would it make the Web better in any way;

- To show that the .xxx TLD has marginal or even literally almost
non-existent support and huge opposition among the adult entertainment
industry.



   Since then a Special Meeting of the ICANN Board has taken place on
February 12th, 2007, at which the Board acknowledged that it may indeed seem
like the opposition towards the .xxx TLD among adult webmasters far
outweighs the support for it. At the same time the Board has asked ICANN
staff to "consult with ICM and provide further information to the Board
prior to its next meeting, so as to inform a decision by the Board about
whether sponsorship criteria are met for the creation of a new .xxx sTLD."



   As per the Board's request, ICM has recently submitted new additional
documents that supposedly prove that the proposed .xxx TLD has wide
sponsored community support and that also attempt to address a few key
issues raised by .xxx opponents such as myself.



   Personally, I believe that my previous letter already describes certain
issues and facts in such detail that it alone could show to an outside
observer that support for .xxx is truly marginal. However, since from my
impression we can expect a final ICANN Board vote regarding .xxx on the
upcoming Public ICANN Meeting in Lisbon, I do not intend to leave the last
word in this debate to ICM Registry. In particular, I also believe that most
of ICM's recent claims show an unprecedented attempt to twist certain facts
and to leave a false impression with the ICANN Board. This opinion is shared
by the majority of adult webmasters who took their time to carefully read
the documents submitted recently by ICM.



    That is why I decided to write a new letter to you and briefly address
certain facts related to this issue, even though I am aware that the public
comments period has officially closed already. I sincerely hope that you'll
find some time in your busy pre-Lisbon schedule to read my letter and give
some thought to the arguments presented in it.



   In the letter called "Memorandum to the ICANN Board of Directors" from
13 March 2007, ICM accuses several adult webmasters of an attempt to
"manipulate the public forums to overstate the size and significance of
industry opposition" towards the proposed .xxx domain.

In my letter I will try to convince you of the opposite scenario that I feel
is really taking place, namely that ICM seeks to manipulate the ICANN Board
by presenting you fact snippets and drawing uncalled for conclusions from
them, and by showing you various statements that are grossly out of context.


I would certainly appreciate your attention for what I sum up below.



  To prove the supposed "sponsored community support" ICM claims that
"76,723 domains in the .xxx TLD were pre-reserved since June 2006 by
webmasters".



In my previous letter I have already taken my time to comprehensively
explain how the number of   pre-registrations should by no means be an
indication of any support towards .xxx among the adult entertainment
community. I don't think that repeating the exact arguments again would
serve any purpose. I would like to draw your attention to a few key points
though:



- some, I myself estimate a huge number, of these pre-registrations were
defensive pre-registrations;

- some, also most probably quite a lot - were speculative pre-registrations;

- some were coming from people outside of the adult industry - please note
that Mr Lawley said that "each person so registering had to provide a URL so
it was possible to track that back to see if it represented an adult content
site" (quote from the Preliminary Report of the Special Meeting of the ICANN
Board of Directors from 13 March, 2007).

I'd like to point out that in certain cases "domain investors" from outside
of the adult industry hold adult domains, they don't use them for any kind
of adult sites though. They trade/buy/sell and especially monetize them
through   "domain parking" services, so those people can't be treated as if
they were part of the adult webmasters community. Similarly, if I owned the
domain name books.com but the domain name would be "parked" showing only
search results from Google AdSense, I wouldn't pretend to be a part of the
industry selling books on the internet.

- ICM does not provide any kind of information how many individuals
pre-registered these 76,726 domains - it could have been for instance a
relatively small groups of individuals.



- "1217 webmasters from over 70 countries have registered on the ICM
Registry website since 1 June 2005, saying that they support .xxx and they
want to register an .xxx name". This statement deserves special attention
for reasons that I will present in great detail below.

Please kindly take a look at this url:
http://www.icmregistry.com/join.html- when joining ICM's mailing list,
there are a few different options to
chose from. The possible options are:

- "Support .xxx - Wish to register"

- "ICANN Registrar"

- "Reseller"

- "Media"

- "Other"

- "Wish to Express Opposition"



Please note the following - the option "Support .xxx - Wish to Register" is
the default option, so it's only natural that it has been chosen so often.
Now please also take into consideration the following things:



- a domain speculator wanting to join the ICM's mailing list, to be
up-to-date with any information regarding .xxx - what options would he
choose? Isn't it evident he would choose the first one?

- an adult website owner opposed to .xxx, but looking to join ICM's mailing
list, to be up-to date with any information regarding .xxx, (for instance -
to be able to defensively register "his" domains in .xxx, if it became live)
- what option would he choose? That's right, there would not be an
appropriate option left for him. In short, every person who ever considered
even for a short moment registering an .xxx domain for whatever reason, who
decided to get more info straight from the source and joined the ICM's
mailing list to receive updates on the .xxx TLD application status and
future registration process, such a person   was "forced" to choose the
first, default option "Support .xxx - wish to register". I can't see how ICM
can twist the facts so much to say that the above mentioned information can
be portrayed in a way suggesting that 1217 webmasters have contacted ICM
"saying (sic!) that they support .xxx". This is a fact spun in ways uncalled
for, since it suggests that 1217 adult webmasters contacted ICM on their
own, clearly stating their support and encouragement for the establishment
of the .xxx TLD, while it obviously isn't the case. Unfortunately though
such twisting of the facts seems to be quite characteristic for recent ICM
tactics... to be honest this is only the "tip of the iceberg", to use ICM's
own words.



- "Nearly 300 additional adult webmasters have emailed ICM registry since 1
June 2005, requesting information about registering in .xxx".



Sending an email to ICM is obviously the best way of getting the most
relevant information about registering a .xxx domain, but again, how can ICM
claim that all these individuals were adult webmasters and that they really
support .xxx? I for a fact know one person who e-mailed ICM early 2006,
expressing interest regarding the .xxx domain names, while he was heavily
opposed to this whole idea. I believe if I asked my webmasters friends about
this, I could find several more of those who e-mailed ICM with general
inquires about the terms of allocating the .xxx domains, should the .xxx
concept be in fact approved by ICANN one day.

Please also take into consideration the uncertainty when it comes to the
terms of allocating the .xxx domains (the common understanding is that ICM
would be going to consider each application for a .xxx domain on a case by
case basis, to ensure trademark issues as well as to verify the applicant's
involvement in the adult industry) – who, in their right mind, would, in
such a situation, e-mail ICM and say the following "I am seriously opposed
to the .xxx domain idea and I truly hope it will never be approved, but in
case it would be approved, please give me some information, on how I could
secure my domain name in .xxx"? Considering the predicted process of .xxx
domain names allocation, it is quite apparent that sending an email to ICM
and stating your strong opposition towards .xxx and in the same time
requesting more info related to the registration process would be likely "a
shot in your own foot".



- "ICM Registry submitted letters of support with its application from
members of the sponsored community, with combined presence in 35 countries,
and representing a large portion of online adult industry and tens of
thousands of webmasters."



Now this is truly one of the most stunning examples of an unprecedented
attempt of manipulation. A short lesson about the online porn business is
needed here however. Basically the online adult industry consists of
hundreds of affiliate programs, who supply paid adult content to end-users
(web surfers) and allow third parties - individual website owners
(affiliates) to "promote" their products (most often - paid membership-based
websites) in exchange for a commission for each paid subscriber referred by
a given affiliate. In other words, it means that each of the bigger
affiliate programs has a few thousand affiliates from all over the world who
work either part-time or full time on their individual websites, gaining
visitors and sending them to the paid websites belonging to the affiliate
program. This kind of affiliate business relationship is strongly automated,
which means that in most cases, hardly any interaction takes place. The
affiliate keeps sending visitors to the paid content provider and receives
monthly commissions via check or other payment methods for the revenue he
generated. ICM claims however that those few affiliate programs who
supposedly supported the .xxx TLD at some point (or maybe still support – no
one knows it since the list of .xxx TLD supporters is kept secret) speak
also on behalf of their affiliates. That's a ridiculously false statement -
how can it be implied that the affiliates of certain programs that
supposedly support .xxx, are also in support of .xxx themselves? The
affiliates don't even know that the affiliate programs they "promote", are
supporting .xxx!



Let us, for a minute, follow this twist of thought Mr. Lawley is making to
see where we end up. If ICM dares to spin the facts in such a manner, I feel
forced to reply in a similar way - if ICM implies that "tens of thousands of
adult webmasters" are in support of .xxx, then I'd like to state that
hundreds of thousands of adult webmasters are strongly opposed towards .xxx!
Now, how did I get this number? That's right, I simply counted all the
affiliates of all the tens or even hundreds of adult affiliate programs that
have opposed .xxx in last 3 months. It's quite ironic though that many
webmasters are affiliated with lots of affiliate programs, so if for
instance a webmaster Brazil happens to be in an affiliate relationship with
1 affiliate program supporting .xxx and with 6 affiliate programs who oppose
.xxx, then how should we count him? Obviously, the abovementioned just
serves as an illustration of the manipulation and inaccuracy displayed by
ICM when it comes to presenting numbers.


  Now I would like to further refer to a few of ICM's claims and
accusations. In particular I will refer to some of the Annexes attached to
the ICM recent letters, which contain quotes taken from GFY.com, the leading
and very vivid adult webmasters message board and discussion forum. Below I
will illustrate how inaccurate and out of context some of these quotes are.



*Annex 6 *- http://icann.org/tlds/agreements/xxx/annex06.pdf quotes the
webmaster "mikesouth" who complains "why is that that only myself and FTP
made a comment to ICANN... come on and get of your (...) lazy asses".

As we can see, the message was posted on GFY.com on January 6th, 2007.
Please note that the Revised Proposed Agreement on ICANN was posted at the
ICANN website on January 5th, 2007, that means exactly one day earlier. The
"reliving" of the .xxx domain  was quite a surprise for the mainstream
media, for the adult webmasters community and even for some GAC members, as
it was presented in the ICANN Board minutes from the February 12th meeting.
So yes, one day after the revised agreement was posted on the ICANN website,
there were only two posts from adult webmasters made to the ICANN forum. I
honestly fail to see what that proves?



*Annex 3* - http://icann.org/tlds/agreements/xxx/annex03-outsource.pdfincludes
a
GFY.com post from the webmaster "polish_aristocrat" suggesting outsourcing
the process of sending anti -.xxx comments to the ICANN forum. This post
seems not to be a serious one, as the winking emoticon attached to it
indicates. It is also directed towards a webmaster on this board who happens
to run an outsourcing company. If there was a serious attempt to outsource
this process, such talks would

take place in private. In short - I for a fact know that there has been
absolutely no outsourcing work involved when it comes to opposing .xxx. As
naive as it may sound, please take my word for it.



*Annex 10* - http://icann.org/tlds/agreements/xxx/annex10-hymes.pdf shows a
private letter from Tom Hymes to Jason Hendeles from ICM registry, from 23th
February 2004, sounding like it is written in support of  .xxx. Since then
over 3 years have passed and over 10 letters from Tom Hymes have been

sent to ICANN expressing his strong opposition towards .xxx. Tom Hymes also
participated in ICANN Public Meetings when he was the Director of the Free
Speech Coalition. If this old letter proves anything, then it proves that
people do change their opinions, and its most natural interpretation would
be indicating that perhaps Tom Hymes is not the only one who changed his
position on .xxx in the past 3 years. It's worth mentioning that it has been
often suggested that some of the adult entertainment companies who
originally supported .xxx don't support it anymore - unfortunately all we
have is rumors, because the list of .xxx supporters is kept secret for some
reason. Perhaps contacting those companies and making sure if they still
support .xxx would be an appropriate step for ICANN, should you still have
some doubt about this whole issue?



*Annex 5* - http://www.icann.org/tlds/agreements/xxx/annex05.pdf contains a
picture as well as several sentences and it makes it seem like all these
were quotes from the webmaster using the nickname "polish_aristocrat". I've
researched it and I have come to the conclusion that it's not true, since
apparently ICM took various postings from different threads, from different
adult webmasters, grouped them together and put in the same Annex for some
reason. Actually it is quite interesting  how ICM edited the postings in
this attachment and how they decided to emphasize certain things by changing
the color of posts. For instance I noticed how they put emphasis into this
statement: "The porn industry was doing what it does in such situations -
watch carefully and turn with the tide." "In fact, ICM Registry had a lot of
people - perhaps it's fair to say, most people in the adult industry
agreeing with .xxx". Now... these words seem familiar, but who is their
author? That's right, Mr Kieren McCarthy (here is the original url:

http://www.circleid.com/posts/print/another_view_icann_doc_agreement/ ). In
fact, I already referred to Mr McCarthy's comments in my previous letter to
you. These comments have been discussed among the adult webmasters community
as well, so they were also reposted on the GFY.com industry board. But why
did ICM take these words out of context, removed the quotes, edited the
colors for special emphasis and sent them to ICANN, making it seem like an
adult webmaster was suggesting that most of the adult industry has been
supporting .xxx, while in fact it has been a misinformed (with all due
respect) opinion of a journalist, currently a new ICANN employee?



   In my personal opinion, it is quite shocking that a company planning to
run a registry for an .xxx domain, a company that is expected to be dealing
with lots of controversial topics, a company that constantly claims to be
100% ready to fulfill its various obligations, has to resort to such
tactics in its attempts to get their .xxx TLD application approved. I
sincerely hope that the ICANN Board Directors will be able to see through
all of this and to act appropriately when it is time to make the final vote
on the .xxx TLD application.



   Finally, I would like to point out one more thing. In its Memorandum
letter ICM says that they "disclosed polling in its application, and
expressly informed the ICANN  Board in March 2005 that a minority
(approximately 20%) of the industry vehemently opposed creation of .xxx".
That is strange, since in the Public Forum postings voices of support from
people identifying themselves as adult webmasters have been virtually
imperceptible. To be precise, an isolated opinion in the lines of "I am an
adult webmaster, I want to use an .xxx domain" can be found there, but no
one can ignore the fact that no major or medium sized adult company has
supported .xxx in the Public Forum in the past 3 months. This alone,
compared with the strong opposition of a few hundred webmasters, should
indicate that ICM is providing false information when it says that only 20%
of webmasters are opposed towards .xxx.



   In fact, I will now prove beyond any doubt that the majority of the
adult industry is opposed to the creation of an .xxx domain name.



First of all, I have informed you about the XBiz conference and trade show
which took place in February earlier this year. Personally, I have not
attended that conference but from the industry news reports it has been
quite clear that the overwhelming majority of the attendees were strongly
opposed to .xxx.



Please refer to the following articles from two leading adult industry
resource and news sites.



"Xbiz Hollywood .XXX Seminar Finds Panelists Contentious, Audience Deeply
Sceptical"

http://www.ynot.com/modules.php?op=modload&name=News&file=news_article&sid=24052



To quote the above article: "Judging by the questions posed by members of
the audience, and response to questions posed to the audience by Shalton,
the discrepancy in the perceived industry support for the .xxx proposal was
a chief concern for many in attendance. At one point, Shalton asked those
that did not support .xxx in the audience to clap their hands; the response
evolved into a protracted standing ovation, in which the vast majority of
the audience participated."



Another article with a self-explaining title "Dot-XXX Seminar Raises Ire of
Opposing Webmasters" can be read here
http://www.avnonline.com/index.php?Primary_Navigation=Web_Exclusive_News&Action=View_Article&Content_ID=282932




   If the strong opposition towards the proposed .xxx TLD on the Public
ICANN Forum and on one of the biggest adult industry trade shows wasn't
enough, the .xxx TLD has a received immense opposition on the leading adult
industry chat board - GFY.com. I have referred to this very board already,
because Mr Lawley decided to grab some quotes from that board, edit them and
place them out of context to put the adult industry in a bad light. Unlike
Mr Lawley I will not edit anything though. Instead I will refer to a recent
poll made on that board regarding the .xxx domain.



The webmaster Jon Clark posted to the ICANN Forum recently saying that he
has opened a poll on the GFY.com board to get webmasters voting whether they
support .xxx or not.

http://forum.icann.org/lists/xxx-icm-agreement/msg01621.html



The poll can be found here: http://www.gfy.com/showthread.php?p=12078474

The question was: "Do you want ICANN to approve .xxx?" Results are as
follows.



"No!" - 129 webmaster votes, 90.85%

"Yes!" - 9 webmaster votes,  6.34%

"I do not care!" - 4 webmaster votes, 2.82%



However unscientifically this poll may have been conducted, as far as I'm
concerned the numbers speak for themselves. Please also kindly note the
following   - GFY.com is not only by far the leading adult industry message
board, it is also recognized so by Mr Lawley, as the following quotes prove.




GFY.com post by the webmaster "baddog" who attended the Xbiz seminar about
the .xxx TLD. http://www.gfy.com/showpost.php?p=11890553&postcount=4  "Would
you believe that he (*Mr Lawley) thought my suggestion of having a poll on
GFY to decide who the two board members (*IFFOR board members) from the
adult industry should be was "not a bad idea"?"



The second quote comes from an interview with Mr Lawley from 22nd June, 2005
http://www.avnonline.com/index.php?Primary_Navigation=XXX&Action=View_Article&Content_ID=231419-

"interviewer: So registration will be open to the public?

Mr Lawley: It is not open to the public. This is limited to bona fide
members of the adult community. Cybersquatters will not come through the
door…

Interviewer: Who's bona fide?

Mr Lawley: We will have identification mechanisms in place and we hope
people like AVN, GFY, and places like that will help us authenticate
people."



As I have just showed, ICM clearly recognizes GFY.com as the leading
industry board and as a very important voice of the industry. They decided
to quote GFY.com posts in official correspondence with the ICANN Board, they
suggested that GFY.com members could be helpful in electing the IFFOR Board
Members, and they acknowledged that GFY.com could be used as a tool to
verify if the applicants for the .xxx domain are in fact adult industry
members.



So why won't ICM acknowledge that the overwhelming majority of this industry
is opposed to .xxx? How can they claim that only 20% of adult industry
members are opposed to .xxx, while in fact about 90% are opposed to it?



   To sum up, as I illustrated in this and in my previous letter, I
wholeheartedly believe that:



1. the proposed .xxx TLD would not meet the goals ICM claims it has for it;

2. the proposed .xxx TLD has marginal support and very strong opposition
among the adult industry;

3. the proposed .xxx TLD raises serious concerns when it comes to Freedom of
Speech issues on the Web in general, especially considering the huge risk
that some governments will try to force all erotic content into this
separate TLD (some people suggest that the adult industry's fear that .xxx
could be made mandatory is an irrational one, but we are not alone in this
prediction. For instance, Mr Bret Fausett, described as "partner with
Cathcart Collins, a Los Angeles law firm, and the author of the popular
ICANN Blog" shares a similar opinion on it: "Although the proposed .xxx
domain is voluntary, Fausett predicts that government agencies eventually
will pass regulations that require porn sites to use special domains such as
.xxx. He expects governments to zone online porn the same way they zone
other adult entertainment businesses". Full article can be read here:
http://www.digitmag.co.uk/news/index.cfm?NewsID=7144)

4. ICM is desperately seeking ICANN approval, at the same time resorting to
tactics like popularising false claims, twisting facts, referring to quotes
out of their context, etc.;

5. Several social groups are emphatically opposed to the .xxx TLD because
they feel it will only legitimize online porn;

6. Several members of the International Community, including GAC members
have serious concerns about the proposed .xxx TLD, in particular looking
from a public policy perspective.



   Keeping all the above in mind, I sincerely hope the ICANN Board of
Directors will reject the  proposed .xxx TLD and end all negotiations with
the ICM Registry.



Kind Regards,





Paul Zapf




PS I would very much appreciate if you could confirm the receipt of this
letter. Should you feel that my letter is worth sharing with other Board
members, please feel free to do so. In fact, I would appreciate it . Hoping
the forum is still accepting new posts, I will submit my message to the
Public Comments Forum as well.