Looks like that case just went as far as a preliminary injunction ruling and the court ruled that
one aspect of the initial name allocation system implemented by NeuLevel, Inc., was in violation of the State of California's lottery law, namely NeuLevel's decision to charge a $2.00 fee for processing certain
".biz" applications and issued an injunction prohibiting it. I can’t find the ruling but are you saying that the judge ruled that if Neulevel had registered the lottery that it would have been permissible? This is in the ICANN advisory on the litigation
(see
https://www.icann.org/en/announcements/details/advisory-concerning-smiley-litigation-12-10-2001-en).
With respect to California’s lottery laws, there is an exception permitting charities and
certain other private nonprofit organizations may conduct raffles to raise funds for beneficial or charitable purposes in the state. But this exception to the general constitutional prohibition against lotteries
requires that at least 90 percent of the gross receipts from these raffles go directly to beneficial or charitable purposes in California. See
https://oag.ca.gov/charities/raffles . I don’t this would qualify.
Marc H. Trachtenberg
Shareholder
Chair, Internet, Domain Name, e-Commerce and Social Media Practice
Greenberg Traurig, LLP
77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
T +1 312.456.1020
M +1 773.677.3305
trac@gtlaw.com | www.gtlaw.com
| View GT Biography
From: Jeff Neuman <jeff@jjnsolutions.com>
Sent: Friday, August 30, 2024 4:47 PM
To: jim@GALWAYSG.COM; rubensk@nic.br; subpro-irt@icann.org; Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com>
Subject: Re: [SubPro-IRT] Re: Contention Resolution
Yes, it is "lottery". Always known it was. However, lotteries can be legal IF they register with the state of California to do it, which is what they did the last
time. And the reason it had to be "in person" was because all of the activity for the lottery had to take place in California.
And before you ask how I know, go back and review Smiley v. ICANN and NeuLevel, 2001 (California Superior Court).
From: trachtenbergm--- via SubPro-IRT <subpro-irt@icann.org>
Sent: Friday, August 30, 2024 4:55 PM
To: jim@GALWAYSG.COM <jim@GALWAYSG.COM>;
rubensk@nic.br <rubensk@nic.br>;
subpro-irt@icann.org <subpro-irt@icann.org>
Subject: [SubPro-IRT] Re: Contention Resolution
I was just going to ask the same question. This sounds like an illegal lottery for which the elements are:
- Chance
- Prize
- Consideration
Sounds like all 3 are present here.
Best regards,
Marc H. Trachtenberg
Shareholder
Chair, Internet, Domain Name, e-Commerce and Social Media Practice
Greenberg Traurig, LLP
77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
T +1 312.456.1020
M +1 773.677.3305
trac@gtlaw.com | www.gtlaw.com
| View GT Biography
From: Jim Prendergast via SubPro-IRT <subpro-irt@icann.org>
Sent: Friday, August 30, 2024 3:53 PM
To: Rubens Kuhl <rubensk@nic.br>;
subpro-irt@icann.org
Subject: [SubPro-IRT] Re: Contention Resolution
*EXTERNAL TO GT*
Good point Rubens.
Before we get too far down the road with the raffle, do we have a legal opinion that tells us that it’s even feasible?
Jim Prendergast
The Galway Strategy Group
+1 202-285-3699
From: Rubens Kuhl via SubPro-IRT <subpro-irt@icann.org>
Sent: Friday, August 30, 2024 4:51 PM
To: subpro-irt@icann.org
Subject: [SubPro-IRT] Re: Contention Resolution
On the raffle option, it should require payment of the full application fee, even if it gets a 100% refund if it does not prevail in the raffle.
Otherwise, someone could just threaten others of applying to TLDs they know will be applied for.
Sorry if this was already a given.
Rubens
Em 30 de ago. de 2024, à(s) 17:44, Pruis, Elaine via SubPro-IRT <subpro-irt@icann.org> escreveu:
Hello fellow IRT members,
I’ve been thinking about the community consultation on contention resolution, particularly the seemingly popular proposal to hold a ($100/ticket) raffle for applicants (not only for prioritization but for also to eliminate contention). I think there are some positive benefits to the raffle concept, particularly eliminating any need for any of the contention resolution components of the program.
But on that same note, I’m wondering if anyone has considered the negative impact on a single-TLD applicant?
First, the single applicant only has one shot at getting a TLD, and second, if they are applying for a string that is more generic their chance of walking away a “winner” is quite low.
This may not be a problem for the single applicant going for a very uncommon string, but it would be for any single applicant going for a more generic term.
Ultimately a raffle poses no up-front disincentive for a cash-rich portfolio applicant from buying hundreds of tickets (and/or applying for hundreds of strings,) because only the raffle winners would be evaluated (and therefore have to pay the full application fee).
On the other hand, if the Board were to decide on a Vickry auction where applicants put in their bid along with their application, contention sets are also eliminated up front, and there would be a financial disincentive to “over apply”. Applicants would be committed to paying the winning price if they proceed. If they choose not to proceed the next highest bid would win. In this case one is incentivized to “over bid’ or “over apply”.
A Vickry type auction gives applicants some control over the outcome whereas a random drawing has no financial disincentive nor allows the single applicant any control over the outcome.
Thoughts?
Elaine
_______________________________________________
SubPro-IRT mailing list -- subpro-irt@icann.org
To unsubscribe send an email to subpro-irt-leave@icann.org
_______________________________________________
By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at
postmaster@gtlaw.com, and do not use or disseminate the information.