But if they had the right to do it
And if fraud could be prevented by
exercising that right
Then by not exercising that right they may be found liable
because customers have been defrauded and need not have been if reasonable and contractual
action had been taken by Afilias
Their inaction could be argued as "obstructive"
in an Irish Court of Law (can't speak of US) - because the inaction compounded and
made inevitable a fraud that need never have come to completion (it may be argued)
do you see the simplicity of the Lorenz case?
They are undone in both directions.
one direction, they submit and register names, in breach of the ICANN contract
the other direction, their inaction and refusal to delete (when they have the right
and power to delete) renders them "obstructive" (it may be argued in court) and therefore
liable (it may be argued in court) for the losses sustained by the victims of the
Lorenz case specifically, and by precedent for the losses sustained by honest Landrush
customers generally (including not only lost pre-registration fees, but accumulated
'expectation' value of the "denied" names en masse)
The fact that Afilias had the
right to delete but didn't... this is highly significant
The fact that ICANN (as
watchdog and regulator) took no action either, draws them in
They neither challenged
the breaches of contract implicit in many names registered by Afilias; nor intervened
(as regulator) when the right to delete could have prevented the completion of the
fraud by undoing the defrauding of the Landrush applicants.
It was in their power
and they "obstructed" the rights and financial interests of honest customers by taking
no action when they reasonably could and should have been expected to.
is an argument that may be presented.
It is a hard case for Afilias or ICANN to
How much deeper will they dig their hole!
They need to get out and get
out now - they need to suspend the roll-out until it's sorted out - but go ahead
Hal! It's your choice!