[ppml] ARIN/Kremen matter

[John Curran]

Dean -

     ARIN has stipulated since the beginning that signing a version
     of the RSA would be necessary to effect the transfers requested. 
     This was the primary basis of initial dispute between the parties.
     In December, the US District Court dismissed Kremen's claims
     with prejudice, and further made his signing a version of ARIN's
     RSA a prerequisite condition prior to transfer of any numbering
     resources.  ARIN will, of course, honor the Court's order if/when
     the prerequisites are met.

     I'd like to also note that the Ninth Circuit Court of Appeals
     has just seen to dismiss the appeal of this case on May 24th,
     and that was the result of discussions between representatives
     of the parties.  At this point, you have made points contrary
     to those already agreed between the parties in this matter
     and you do not appear to represent either party.  If that
     situation changes, please contact me at your convenience.

/John

John Curran
Chairman of the Board of Trustees
American Registry for Internet Numbers
    
===

At 5:03 PM -0400 7/5/07, Dean Anderson wrote:
>I've just reviewed the clarification order.  There are some problems. I
>note that ASN 11083 (block 5 on Kremen's documents) was under ARIN's
>control in 2001. ARIN transferred this block to LACNIC in 2002, _while_
>it was under order to transfer it to Kremen.  Plzak's statement that it
>isn't under ARIN's control really should be challenged. I note that
>ASN's 11082 and 11084 are still in ARIN's hands, so this wasn't simply
>swept up in a larger block of numbers, but was individually transfered
>in _spite_ of the court order.  Well, that's snarky: transfer it to
>LACNIC so it can't be given to Kremen. There is a legal term for that, I
>think.  The Court should be informed of this. The transfer to LACNIC
>really should be invalidated.
>
>The court says "Kremen may sign his choice of (1) RSA mirroring the
>terms and conditions of ARIN's agreement with Cohen (RSA 2);"
>
>RSA 2 would be the legacy form. (Essentially, nothing but the name and
>address). So, ARIN should just change the name and address, as Kremen
>requests.
>
>While the court found that 2 blocks don't have to be transfered (AS11083
>and an IP block belonging to UUnet apparently just used by Cohen),
>Kremen won again:  ARIN has to give Cohen's legacy terms to Kremen, if
>Kremen wants them (and he does).
>
>Yet, ARIN still refuses to comply, and by its refusal, harms Kremen
>further.  ARIN knows that it ultimately has no choice but to comply. Its
>dispute is not based on any principle but on obstinance.  Just like
>Exactis v. MAPS, where MAPS lawyer was chastised for coming to court the
>frivolous claim that the First Amendment permitted violation of the
>Sherman Act and extortion, etc.  It is perhaps telling that Paul Vixie
>is involved in both of these two frivolous disputes. (Vixie was CEO of
>MAPS, and is a board member of ARIN)
>
>There is no policy or principle that is being defended by ARIN. Neither
>Kremen, nor the Court, are demanding any policy change on ARIN.  ARIN
>just has to do for Kremen exactly what it did for Cohen. ARIN's
>continued dispute and refusal is just frivolous.  Therefore, greater
>penalties on ARIN are very appropriate.  That is a proper and just
>result, to everyone but the anarchists.
>
>More inline.
>
>On Wed, 4 Jul 2007 michael.dillon at bt.com wrote:
>>
>> (Search for RYAN to find his words)
>> -----
>> We received the order approximately two years after it had been issued.
>
>The court found otherwise, and found that Kremen had been negotiating
>with ARIN for 5 years between 2001 and 2006.
>
>> It was provided to us in a formal way, and Mr. Kremen asked us to obey
>> the order. That is, to revoke the IP resources that were held by Mr.
>> Cohen and transfer them to Mr. Kremen. We agreed to do so, so long as
>> Mr. Kremen would do what all of you have done since ARIN began in 1998,
>> which is apply for the resources and sign the normal RSA.
>
>In fact, and the court held, Mr. Kremen can't be held standards that
>didn't apply to Mr.  Cohen, and don't apply to other legacy holders. If
>Cohen didn't sign a current RSA, neither should Kremen. The court cites
>3 RSAs (at Kremen's choice) that are appropriate. The Court included the
>one Kremen has wanted: the legacy agreement.
>
>ARIN wants Kremen to agree to _new_ terms, and ARIN's lawyer incorrectly
>describes Kremen's as not wanting to agree to _any_ terms.  The court
>has repeatedly, now, said that ARIN has to give Kremen the same terms it
>gave Cohen (the legacy terms: basically, name and address).  ARIN is
>refusing to do that.
>
>> Mr. Kremen refused to do that and has refused to the current date. His
>> theory is that he doesn't have to do that because he has a court
>> order, and our theory is that we have a certain set of rules and
>> requirements, and that you have to obey the rules and requirements of
>> the community, and we don't read the court order as giving Mr. Kremen
>> a permanent pass from the rules that all of you obey. ... We revoked
>> resources that were held by Mr. Cohen or his associates that were
>> covered by the 2001 order when they were not paid for. In other words,
>> by our own processes, we were very aggressively trying to recover
>> these resources so that they weren't out there. ...
>
>ARIN can't claim that _Cohen_ didn't pay on the block after 2001,
>because thats during the dispute. The 'payment' argument was already
>rejected, by the way.
>
>> First, we've gone back to the court and said that the court in its
>> 2001 order ought to consider modifying the order to make it clear that
>> Mr. Kremen, like everyone else, has to sign an RSA and has to pay for
>> the resources in the future. ... One is that Mr. Kremen is a legacy
>> address holder. He has legacy address blocks. -----
>
>No such formal agreement was ever required of legacy holders. Nor is any
>such agreement even now required of _current_ legacy holders.  Current
>legacy holders have never signed a formal RSA, just the legacy
>registration form, so there is no justification to force Kremen to do
>more.  This is the basis of Kremen's suit, and Kremen has won
>repeatedly.
>
>What's more, its all a waste of ARIN resources to fight this. There is
>no principle to be found here for ARIN. (except the principle of anarchy
>and not submitting to court orders, which many people here do advocate,
>but which isn't going to be useful in court)
>
>ARIN can perform immediately: It can record Kremen as a legacy holder in
>30 seconds, if it chooses to do so.  Its been ordered to make Kremen a
>legacy holder. There is no justification for disobeying the court.
>
>> It's all about an open and level playing field.
>
>On that, we agree.
>
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