[arin-discuss] [ppml] Posting of Legacy RSA and FAQ

[Dean Anderson]

Having reviewed the Legacy RSA, I can say that it removes a number of
significant rights from Legacies.  With the exception of fees, it is
about as onerous and encumbered as the regular RSA.

Embedded in the document is again the threat of denial of services. The 
agreement states that by signing agreement, ARIN will 

Legacies get a fee of $100/yr through 2013. After 2013, the fees can 
go up.

Section 3. A great deal of the agreement is at ARIN's sole discretion.  
It looks like a Legacy that signs this agreement can lose their block if
ARIN "Determines in its sole discretion that it cannot provide
services".


Section 4.  Under the new agreement, if one doesn't 'cooperate' with
ARIN, again in its sole discretion, may take back the block. Wow.

ARIN can take back a block if the applicant is ever found to violate
'any applicable laws, statutes or regulations by a ruling...'.  Guess 
McDonalds won't be able to keep their block. They violate health
regulations somewhere every day.

ARIN can take back a block if the applicant _assists_ anyone doing
something prohibited by this document. I guess that means ISC loses its
blocks, because it assists SORBS and Alan Brown, who has been found in a
court to violate the law for defamation. Oh wait, those aren't legacy
blocks....

Applicant is responsible for timely management and accurate maintenance 
of whois data and SWIP data. So if your whois or SWIP gets out of date, 
you are in violation of the agreement; you lose your block. Wow.

Section 8.  ARIN may review your allocation once per year. If you don't
comply with the allocation policy, ARIN can back your block.

Section 12. Bankruptcy is another provision. If a legacy declares
bankruptcy under any chapter (even debt reorganization!), then ARIN can
take back the block. I can see taking back a block when a chapter 7
bankruptcy or other chapter leading to termination of business would
justify taking back a block. However, there is no reason why chapter 11
(debt reorganization), which doesn't lead to business termination and in
fact prevents creditors from halting operations, should be justification
for ARIN taking back blocks. This is a flaw in the NPRM, too.

What's worse, if SOMEONE ELSE files a bankruptcy petition against you,
ARIN can take back the block. Wow. Guess there will be a lot of
frivolous bankruptcy petitions against people they don't like. This is
also in the RSA, but I hadn't noticed it before.

Section 14. Term and Termination. ARIN can terminate immediately with 
cause (violations above), or at each year.  Its a very lopsided 
agreement.

Section 15. The only right the legacy keeps is the right to transfer.  
Well, not exactly. One now needs ARIN's written permission. There's also
an anti-Kremen v ARIN, Kremen v. Cohen clause to say that blocks cannot
be re-assigned involuntarilly by a Court. Wow.

One of the serious flaws is that one must agree to resolve disputes
through arbitration. Arbitration is a fine way to cheaply resolve small
disputes, where all that is needed a reasonable third person to resolve
trivial disputes. However, there is no appeal from arbitration. If one
goes to Court, and the judge makes a mistake, that mistake can be
corrected. But if an arbitrator makes a mistake, there is no way to
correct that.  An arbitrator also may not have any sophisticated
understanding of the law. They are often lawyers, but need not be
lawyers.  Even where they are lawyers, they may not be experts in the
legal issues relevant to your case. So, for any complicated case, where
there is more possibility of mistake, there is no possibility that
mistake can be corrected.  This makes arbitration a very bad choice for
anything of importance, where proper adherence to the law is important.  
So, I think it is a bad idea to agree to arbitration on any significant
issue.  Certainly, Legacies have not previously agreed to arbitration,
nor anything else in this Legacy RSA.

What a horribly unfair and lopsided agreement. The regular RSA is a real
doozy, too, I just noticed.  Time to write those letters to Congress. We
definitely need a new, FAIR registrar.

I think we can now say without doubt that this Legacy RSA removes rights
from Legacies who sign it and transfers those rights to ARIN. And as a
result, there is an even stronger argument that ARIN, by creating a fear
of denial of services in the minds of Legacies, and then obtaining
contract and property rights from Legacies, has engaged in extortion and
racketeering as explained in my previous message (repeated below)

It also remains unclear at what Board Meeting this was discussed. It
remains unclear what NRPM change allows it to be accepted. It remains
unclear why community input on the document wasn't solicited before it
was released.

It is however clear what benefits ARIN obtains from Legacies.

>From my previous message (Friday):

It occurs to me that the release of the Legacy RSA just announced
violates the process of ARIN to solicit input from the membership before
adopting a new license.  The ARIN community should discuss the license
and decide the terms just like any other significant change in ARIN.  
ARIN can't just drop a new licence without any discussion.

It also occurs to me that Legacy RSA, if it removes _any_ privilege or
value from Legacy's, is extortion.  From Blacks Law dictionary:

Extortion: The obtaining of property from another induced by wrongful
use of actual or threatened force, violence, or fear, or under color of
official right. 18 U.S.C.A section 871 et seq; section 1951

ARIN, in statements by it lawyer, and supported by Chairman Curran's
statements, has threatened to deny service to Legacy's under the color
of official right, creating fear and thereby inducing Legacy's to agree
to an RSA that (presumably) removes valuable rights from Legacy's.

There are references to the Hobbs Act (racketeering) if the extortion
interferes with interstate commerce (it does, since whois and in-addr
services are used in interstate commerce.)

Anticipating that people might argue that IP Addresses aren't property,
I looked up what property is. According to Black's Law Dictionary, in
criminal law, the term 'property' includes contract rights, and that is
exactly what the subject is here.

		--Dean




On Sat, 13 Oct 2007, Member Services wrote:

> The Legacy Registration Services Agreement (RSA), first referenced in the 11 October 2007 announcement, 
> has been posted to the ARIN website at: http://www.arin.net/registration/agreements/legacy_rsa.pdf.
> 
> A Frequently Asked Questions document is also available to assist the community at:
> http://www.arin.net/registration/agreements/legacy_rsa_faq.html
> 
> An implementation date will be announced in the near future.
> 
> Regards,
> 
> Raymond A. Plzak
> President & CEO
> American Registry for Internet Numbers (ARIN) 
> 
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