[arin-ppml] On USG 'granting of rights' (was: ARIN-PPML 2015-2)

[Seth Johnson]

Never mind, you're not talking copyright.

I would think the issue would be translated into some concrete aspect
of the situation and what either formal or informal practices have
been.  At best.  But I think abstraction as such gets a strong
assumption it isn't "owned," in any body of law in the US unless some
statutory basis has been created.  So it would be more what are the
regular practices that can be discerned for the way these things are
done with the information, not some exclusive right associated with
the information as such.

Information is free.  Unless there's a statutory basis otherwise.  And
some harms are barred in use of information.  That's the way it works.
(i.e., the situation is really not "information wants to be free" --
it just is free, unless there's for instance, a copyright -- which we
wouldn't have for a number.  Perhaps a trademark in a very unique
situation, but I'd guess not even then.  This is really what the
"third party" doctrine really means -- you give someone information,
you really don't have control over it, because it's essentially
published.  Unless you have an NDA.  Or unless, if the third party is
a telecom, you're actually recognized as performing a public function
-- in which case, fundamental right limits can apply against you as
they would apply against the government.  Smith v. Maryland was about
the fact that Verizon was regarded as a private party, not really
about the fact that the data in question was metadata.  It might well
be decided differently today, if Verizon is regarded as a public
utility.


Seth

On Wed, Jun 3, 2015 at 6:24 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> If it's copyright, the judge won't do that.  There's no such thing as
> an "exclusive right to use" in copyright.
>
> On Wed, Jun 3, 2015 at 1:15 PM, William Herrin <bill at herrin.us> wrote:
>> On Wed, Jun 3, 2015 at 5:02 AM, Owen DeLong <owen at delong.com> wrote:
>>> Mr. Herrin in bringing up tortious interference claims that to be indication of an “exclusive right to use” accompanying the number registry. Unfortunately, this is not true. It does represent a precedence-based presumption about the determination of who is the “interfering party” in a case where interference exists. However, an exclusive right to use would go further than that.
>>
>> Hi Owen,
>>
>> That's possible. However, I wouldn't bet the farm on a judge not
>> following the path from tortious interference to its natural
>> conclusion: that a block of Internet addresses is documentary
>> intangible property under common law, subject to centuries of well
>> understood precedent over folks' rights. When in doubt, what quacks
>> like a duck is a duck.
>>
>>
>>> As an example, if Company A has a registration for 1.2.3.0/24 and uses it entirely on their internal network without advertising it to the internet and Company B also uses it on their internal network without advertising it, there are then at least two possible legal scenarios…
>>>
>>> Scenario 1, A’s registration includes an exclusive right to use. In this case, if A were to learn of B’s usage, they may well have a civil claim against B for violating that exclusive right to use. A case for tortious interference really doesn’t exist here because there is no interference.
>>>
>>> Scenario 2, which I believe is applicable in this case… Since B’s use does not interfere with A’s use, there is no interference and no case for tortious interference exists.
>>
>> I think you've offered a pretty tortured chain of logic. A far simpler
>> explanation is that the rights in question are constrained to the
>> public Internet. IP addresses are more than integers only when they
>> appear in someone's Internet routing table. The law is long familiar
>> with intangibles whose existence is bound by context. Indeed, the law
>> already has excessive precedent establishing the number on a bank
>> check as an intangible property, but only in a specific context.
>>
>>
>>> Thus, the possibility of a case of tortious interference alone is insufficient to prove a right to exclusive use.
>>
>> Perhaps. Time will tell.
>>
>>> There is precedence for this in the Amateur radio system as well. Nobody has
>>> any exclusive rights to frequencies or frequency pairs used for repeaters.
>>> However, a repeater which is registered and allocated frequency pairs by the
>>> local repeater coordinator (a non-government body, similar, but not identical
>>> to ARIN) gets interference from a repeater which is not “coordinated”, the
>>> FCC will side with the coordinated repeater and ask the non-coordinated
>>> repeater to take steps to resolve the interference.
>>
>> Dubious as precedent. Regulation of Ham radio frequencies flows
>> directly from current federal statute. The only vaguely comparable
>> source of governmental authority regarding Internet routing stems from
>> a National Science Foundation research project that ended 20 years ago
>> with something that could be reasonably described as abandonment.
>> More, during the project's run, the NSF failed to offer any guidance
>> that was particularly on point for this debate.
>>
>>
>>> Like it or not, the internet is held together by good will and cooperation.
>>> The high level of cooperation from ISPs with the RIR system is what
>>> gives registration in the RIR system meaning and not some sort of
>>> government-like power or army of enforcement officers.
>>
>> All common law starts as a violation of some mass-respected convention
>> of human behavior that victims choose to challenge in court. At which
>> point the court fits the facts into the nearest framework precedent
>> provides. The decisions the judge makes then establish the new
>> precedent, the new law, that governs how similar sets of facts are
>> treated in future cases. Such law endures until and unless overridden
>> by statute.
>>
>> I think the closest available framework that makes any kind of sense
>> within the history of jurisprudence is that Internet address blocks
>> are documentary intangible property. John disagrees. Still, I can't
>> help but notice that when ARIN has been in court, counsel has been in
>> no rush to induce a judge to clarify the matter. Indeed ARIN appears
>> to have sought every other avenue in which each case could be
>> concluded without a judge having to reach the property question.
>>
>> I think ARIN counsel is far less confident of prevailing on the
>> address-aren't-property claim than John lets on. And I think he has
>> good reason for concern.
>>
>> Regards,
>> Bill Herrin
>>
>>
>> --
>> William Herrin ................ herrin at dirtside.com  bill at herrin.us
>> Owner, Dirtside Systems ......... Web: <http://www.dirtside.com/>
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