[ppml] Fw: Can a Customer take their IP's with them? (Court says yes!)

[Michael.Dillon at radianz.com]

Is ARIN's legal counsel aware of this? Will the ARIN trustees be 
considering whether
or not to file a "friend of the court" brief with the New York state 
court?

----- Forwarded by Michael Dillon/ENG/INTL/RADIANZ on 29/06/2004 10:57 
-----

owner-nanog at merit.edu wrote on 29/06/2004 04:24:27:

> 
> 
> Please read -- this is lengthy, and important to the industry as a 
whole.
> We ask for, and solicit, comments, letters of support, etc., for our
> position. We are looking for people to take a position on this, and come
> forward, perhaps even to provide an affidavit or certification. 
Something
> along the lines of a 'friend of the court' brief, or even comments as to
> why we are wrong.
> 
> Read on.
> 
> There has been a Temporary Restraining Order (TRO) issued by state court
> that customers may take non-portable IP space with them when they leave
> their provider. Important to realize: THIS TEMPORARY RESTRAINING ORDER 
HAS
> BEEN GRANTED, AND IS CURRENTLY IN EFFECT. THIS IS NOT SOMETHING THAT 
COULD
> HAPPEN, THIS IS SOMETHING THAT HAS HAPPENED. THERE IS AN ABILITY TO
> DISSOLVE IT, AND THAT IS WHAT WE ARE TRYING TO DO.
> 
> This is a matter is of great importance to the entire Internet 
community.
> This type of precedent is very dangerous. If this ruling is upheld it 
has
> the potential to disrupt routing throughout the Internet, and change
> practices of business for any Internet Service Provider.
> 
> In the TRO, the specific language that is enforced is as follows:
> 
>    "NAC shall permit CUSTOMER to continue utilization through any
> carrier or carriers of CUSTOMER's choice of any IP addresses that were
> utilized by, through or on behalf of CUSTOMER under the April 2003
> Agreement during the term thereof (the "Prior CUSTOMER Addresses") and
> shall not interfere in any way with the use of the Prior CUSTOMER
> Addresses, including, but not limited to:
> 
>    (i) by reassignment of IP address space to any customer;
> aggregation and/or BGP announcement modifications,
> 
>    (ii) by directly or indirectly causing the occurrence of
> superseding or conflicting BGP Global Routing Table entries; filters
> and/or access lists, and/or
> 
>    (iii) by directly or indirectly causing reduced prioritization or
> access to and/or from the Prior CUSTOMER Addresses, (c) provide CUSTOMER
> with a Letter of Authorization (LOA) within seven (7) days of CUSTOMER's
> written request for same to the email address/ticket system
> (network at nac.net), and (d) permit announcement of the Prior CUSTOMER
> Addresses to any carrier, IP transit or IP peering network."
> 
> We believe this order to be in direct violation of ARIN policy and the
> standard contract that is signed by every entity that is given an
> allocation of IP space. The ARIN contract strictly states that the IP
> space is NOT property of the ISP and can not be sold or transferred. The
> IP blocks in question in this case are very clearly defined as
> non-portable space by ARIN.
> 
> Section 9 of ARIN's standard Service Agreement clearly states:
> 
> "9. NO PROPERTY RIGHTS. Applicant acknowledges and agrees that the
> numbering resources are not property (real, personal or intellectual) 
and
> that Applicant shall not acquire any property rights in or to any
> numbering resources by virtue of this Agreement or otherwise. Applicant
> further agrees that it will not attempt, directly or indirectly, to 
obtain
> or assert any trademark, service mark, copyright or any other form of
> property rights in any numbering resources in the United States or any
> other country."
> 
>  [ Full ARIN agreement http://www.arin.net/library/agreements/rsa.pdf ]
> 
> Further, it is important to realize that this CUSTOMER has already 
gotten
> allocations from ARIN over 15 months ago, and has chosen not to renumber
> out of NAC IP space. They have asserted that ARIN did not supply them 
with
> IP space fast enough to allow them to renumber. Since they have gotten
> allocations from ARIN, we are confident they have signed ARIN's RSA as
> well, and are aware of the above point (9).
> 
> If this ruling stands and a new precedent is set, any customer of any
> carrier would be allowed to take their IP space with them when they 
leave
> just because it is not convenient for them to renumber. That could be a
> single static IP address for a dial-up customer or many thousands of
> addresses for a web hosting company. This could mean that if you want to
> revoke the address space of a spammer customer, that the court could 
allow
> the customer to simply take the space with them and deny you as the
> carrier (and ARIN) their rights to control the space as you (and ARIN) 
see
> fit.
> 
> REMEMBER, THE INTERNET USED TO BE BASED UPON PORTABLE IP SPACE, AND IS 
NO
> LONGER FOR SEVERAL TECHNICAL REASONS.
> 
> It is important to understand that this is not a situation where a
> customer is being forced to leave on short notice. NAC has not revoked 
the
> IP space of the customer. This is a situation where a customer is
> exercising their option not to renew their services and is leaving
> voluntarily. In addition the customer in question was granted their own 
IP
> space OVER A YEAR AGO and simply chose not to renumber their entire
> network. The key issue is that they want to take the space with them 
AFTER
> they leave NAC and are NO LONGER A CUSTOMER.
> 
> Why this TRO is bad for the Internet:
> 
> 1. It undermines ARIN's entire contract and authority to assign IP 
space.
> 
> 2. It means that once IP addresses have been assigned / SWIP'ed to a
> Customer that the Customer may now have the right to continued use of
> those addresses even if the customer leaves the service of the Provider.
> In other words the right of the Provider to maintain control and use of
> the address space assigned to his network, is to now be subject to the
> Customer going to a State Court and getting an Order to take such space
> with them.  Instead of the Addresses being allocated by delegated
> authority of the Department of Commerce and ARIN they become useable by
> anyone who convinces a Judge that they have a need for the addresses.
> 
> It appears the Customer can keep the addresses for as long as it pleases
> the State Court and as long as the Customer can judicially hijack the
> space.
> 
> The tragic part of this is that the Court which issues the Order does 
not
> even have to hear expert testimony.  So the Court can issue such Order
> without fully understanding the Internet Technology that is affected or
> the havoc it could cause in National and International Communications.
> 
> 3. Significant potential for routing havoc as pieces of non-portable
> blocks of space are no longer controlled by the entity that has the
> assignment from ARIN, but by the end user customer for as long as that
> customer wants to use them. If the customer was causing a routing 
problem
> by improper routing confirmation the carrier would lose their authority 
to
> revoke or limit the use of the IP space to protect the stability of the
> carrier's network. In other words, court-compelled LOAs are a 'bad 
thing.'
> 
> 4. Because the IP space is still assigned to the carrier, the carrier
> would potentially be responsible to continue to respond to all SPAM and
> hacking complaints, DMCA violations, and all other forms of abuse. All 
of
> this abuse responsibility and liability would continue with no recourse 
to
> revoke or limit IP space of that customer and no ability to receive
> financial compensation for that task. This is not a theoretical problem,
> in the case of this customer we have received numerous abuse complaints
> throughout their history as a customer. While they have generally 
resolved
> these issues, it still is a real cost for us to handle. This is 
something
> that has the potential to create a massive burden for the carrier.
> 
> 5. It would fundamentally change the long standing policy that the 
carrier
> that has the IP space assigned to them has the right to assign and 
revoke
> the IP space as it sees fit, and that the customer has no rights to the 
IP
> space other then the rights that the carrier gives them (through a
> delegation from ARIN).
> 
> 6. If the customer is being DDOSed, or attacked (perhaps they may
> even instigate it purposely), and then stops announcing the more
> specific routes, the attack when then flow to us, the innocent
> bystander. Essentially, the customer could cause a DDOS for which I will
> then be billed for. This type of thing has been known to happen in the
> past (but not with this CUSTOMER).
> 
> As you can see, this TRO has widespread effects, and is something that
> everyone in the industry could be affected by. If this precedent is set,
> you will soon have everyone acting as if IP's are property, and 
something
> that they are entitled to. I ask for input from everyone in the 
community
> on this. We don't think we're crazy, but want to make sure.