[ppml] /29 limit for ARIN SWIP whois (fwd)

---------- Forwarded message ----------
Date: Sun, 13 Jan 2008 23:28:40 -0500 (EST)
From: Dean Anderson <dean at av8.com>
To: 
Subject: Re: [ppml] ***POSSIBLE SPAM*** Re:  /29 limit for ARIN SWIP whois

On Sun, 13 Jan 2008, xxx wrote:

> Dean Anderson wrote:
> 
> > BTW, Legacy block's don't have to comply with the RSA. "No SWIP" is just
> > one of the many rights that one loses under the Legacy RSA.  Don't sign
> > the Legacy RSA. Contact me, instead.
> 
> It's too late for my organization (xxx), as we've already signed the 
> Legacy RSA.  We were concerned about losing control over our Class x
> address space if we didn't, 

It may not be too late. But spread the word not to sign the Legacy RSA.

The agreement is probably too unfair to enforce.  You should contact
your lawyer immediately though. Your reasoning (fear of losing control)
indicates that you may have been extorted into signing an unfavorable
agreement improperly transferring your property rights to ARIN. This
probably a violation of the Hobbs Act.  See this page on the Hobbs Act:

2403 Hobbs Act -- Extortion By Force, Violence, or Fear

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm02403.htm

The defense of 'right' is prevented by the previous performance by ARIN,
Network Solutions, and SRI (DDN-NIC) of in-addr services and whois
services. ARIN was also asked by ARIN members to get a formal legal
opinion on its right before taking applications or contracts, but ARIN
refused to do so.  ARIN has no reason to think its actions are lawful.
It seems that ARIN has no right to induce such fear, and no right to
transfer rights under such circumstances.

The case Kremen v. Cohen [337 F.3d 1024; (2003)  See also
http://www.nyls.edu/pages/1806.asp] established that domain names are
intangible property subject to conversion.  By the same reasoning, IP
blocks are similarly intangible property. There's more though. Also, In
Kremen v. Cohen, Kremen asserted Network Solutions violated a third
party beneficial contract with the Government. They lost on that claim.
There are stricter standards to meet in order for finding that the
government (as opposed to private parties) created a third party
beneficial contract. ARIN, by contrast with Network Solutions, took over
operations from ICANN (a private corporation operating IANA). ICANN is
not a government agency, so finding that ARIN has a third party
beneficial contract with ICANN is easier than the case with Network
Solutions, which took over from the government.


> and the legacy terms seem pretty reasonable to me.  However, I'd be
> interested in learning why you think it's not a good idea.

I think you didn't read the contract closely, and didn't know what your 
legacy rights were to begin with. Here are some few highlights:

1. The Legacy RSA (LRSA) gives ARIN the right to remove the Class B from
you.  They didn't have that privilege before.

2. ARIN can demand information on your customers. They didn't have that 
right before.

3. "If Legacy Applicant does not provide ARIN with required information,
assistance, or cooperation that ARIN requests, ARIN may [not give you
more space or may terminate the agreement and keep the class B (see
Section 14(e) termination for cause by ARIN--arin gets the number
resources.)]

4. You "agree" that there are no property rights in IP Blocks.  You 
didn't have that before the agreement; you had property rights in 
intangible property.

5. Section 15(i): "This Legacy Agreement will be construed as if it was
jointly drafted by both parties and may not be construed against either
one"  Basically, you "agree" not to challenge the agreement as unfair.  
[I think this provision demonstrates unfairness, actually.]

It goes on and on. ARIN had no rights over Legacy space before.  
Instead, ARIN had obligations that it undertook to obtain the privileges
of operating the registry.

		--Dean

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