[arin-discuss] [ppml] Counsel statement on Legacy assignments?

[Leo Bicknell]

In a message written on Mon, Oct 08, 2007 at 11:15:36AM -0400, Dean Anderson wrote:
> Actually, at the meeting he said that the law permitted one to deny free
> services to those _without_an_agreement_. This is a general principle
> true for any business.  However, Legacy's _do_ have an agreement with
> the government. So this general principle is not true with respect to
> ARIN Legacy's.
> 
> If fact, no statement was made specifically about Legacy's _with_ an
> agreement during the meeting.  I know of no Legacy holders that do not
> have an agreement.  Do you know of any such holders without agreements?

I think there are some fundamental questions that are difficult to
address.  Specifically, to break them out:

1) Did legacy holders have an agreement with the government?

2) Does that agreement cover services in perpetuity?

3) Did these agreements survive the various transfers (DDN Nic to SRI
   NIC, SRI NIC to Internic, InterNIC to ARIN, the trail varies in
   length due to the age of the allocation)?

4) Does the agreement permit modification to the agreement?

4a) Unilaterially?

I am not a lawyer, and have tried to talk to several lawyers about
all of these issues; I have never gotten a straight answer on any
of them.  From reading a lot online, I think that's because in many
areas the law is not clear.

Some things are clear.  As ARIN Council as stated, any legacy holder
who received their allocation while they were doing work for hire
for the federal government probably not only has no right to their
allocation, but actually should have already returned it under
federal rules (or, I suppose converted it to a new contract).

Outside of that, it would seem to me anyone who wanted to prove
they had a valid contract with ARIN would have an extremely uphill
battle.  They would have to show that an oral contract with a
previous government contractor transferred through the various chain
of ownership.  That the contract either had no termination date; and
my understanding is that in most jurisdictions no termination date
is illegal by statute; or that it had a termination date that is
still in force.  Further, you would have to argue that the agreement
does not allow any modification to the agreement.

Probably most importantly is oral contracts require there to be a
meeting of the minds; that both sides agreed to the terms.  So not
only would a legacy holder need to show they believe they have a
contract that survived the transfer, is still in the term, and can't
be modified but they would have to show that's what DDN, SRI,
Internet, or the federal government intended when they entered the
agreement.  I think this is also where history is against legacy
holders; many of the exact same people had domain names, issued
through the exact same process.  They were issued new contracts on
new terms, and accepted them.

I have a hard time believing that a judge, presented with a company
that received a Class C and a domain name both under the same oral
contract with the same original entity would accept their assentation
that the network number cannot be modified when they silently
accepted a modification to the domain name contract.

Courts also seem to look at what is "ordinary and customary" in the
industry when interpreting oral contracts.  All current RSA's have
a 1 year term, and allow unilateral modification.  All domain name
agreements, grown out of the same root have similar provisions.

> Except Legacy's aren't lacking an agreement.  You have paper records of
> these agreements with the government. Do you mean to deny the fact that
> the Legacy's have an agreement with the government that ARIN is
> obligated to honor?

I don't think anyone argues that legacy holders received an address
block from one of ARIN's predecessors.  I think the entire disagreement
is if that "contract" is still in effect at all; and if it is still
in effect what were the terms.  Again, I'm not a lawyer but when
both sides disagree about the terms of an oral contract that does
not bode well for the oral contract to be enforceable.

I am afraid no lawyer is going to be able to answer that with
certainty.  At the end of the day there is discretion for a judge
to go either way, and so it would take an actual court case to
settle the issue in a definitive way.  Anything less is at best an
exercise in probabilities.

-- 
       Leo Bicknell - bicknell at ufp.org - CCIE 3440
        PGP keys at http://www.ufp.org/~bicknell/
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