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Username: rachelmacgregor
Date/Time: Sun, September 23, 2001 at 7:59 PM GMT
Browser: Microsoft Internet Explorer V5.0 using Windows 98
Subject: So - very much indeed! It's the heart of the case against Afilias!


No Bozo

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)

NOW do you see the simplicity of the Lorenz case?

They are undone in both directions.

In one direction, they submit and register names, in breach of the ICANN contract

In 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.

The above is an argument that may be presented.

It is a hard case for Afilias or ICANN to defend.

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!

Rachel Macgregor


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