[arin-ppml] Legacy space holders were a big part of the community... i.e. all of it.

[David Farmer]

Sorry this is so long but, I've been thinking on this for a while.


On 23 Aug 2008 John Curran wrote:

> On Aug 21, 2008, at 2:01 AM, Milton L Mueller wrote:
> > Paul
> > One can make a good case for a unified, consistent address
> governance
> > regime that would involve eliminating legacy holder's special
> rights  
> > and
> > bringing everyone in under the same kind of contract.
> 
> Equating absence of an agreement with "special rights" is
> interesting,
> but that's probably best saved for another time.

I don't think Legacy holders really have any special rights, but the fact that 
legacy holder didn't originally have their rights clearly enumerated through a 
contract or agreement means that there is room to debate what rights they 
have or the terms that their resources were provided under.  What were the 
terms that resources were provided under?  This is a serious question, I 
wasn't personally there.  

It is also not as simple as what were the original terms, I believe for the 
earliest assignments there was an expectation of non-commercial use, I 
don't think anyone really thinks that is still valid.

> > But one cannot make the case you want to make based on appeals to
> "the
> > community" and "consensus." Because the legacy holders are part of
> > "the
> > community." A big part of it, in North America. And I suspect that
> > they
> > will never agree to be part of a "consensus" that eliminates
> their
> > special status.
> 
> It is a very relevant point, since almost all of those same legacy
> holders were certainly part of the consensus decision in 1993 to
> change the basic IP address structure to allow variable sized
> blocks (aka "CIDR") and the matching matching address allocation
> policies (RFC1466/RFC1518/RFC1519).  These documents state that
> an organization should receive sufficient address space to meet
> two years worth of organization need, so that we could "delay
> depletion of the IP address space".
> 
> The community of the legacy space allocation era actually already
> reached consensus years ago that variable-sized blocks were needed
> and that organizational allocations based on two years of need
> were
> most appropriate. They just forgot to return their own extra
> space,
> for reasons unknown, 

With twenty-twenty hind sight, I think maybe this should have happened.  
But I can't find anything explicitly calling for this at the time.  Most of the stuff 
I have found was really focused forward, but that is probably natural, that is 
where the cliff was.  Do you know of anything calling for what are now 
classful legacy resources to be repartitioned with CIDR and excess 
resources to be returned?  Especially from the mid-to late 90's time frame, 
but even from their early 2000's.  

> and at this point are best off if they can
> simultaneously deny that they were part of the community that were
> involved in these decisions but somehow were still part of the
> team
> that earned their legacy allocation by helping build the
> Internet...
> good luck with that.

I propose another spin in the situation, I think the community decided to 
ignore many issues of the Legacy holders because they were hard problems 
and the community had more important things to do like moving forward to 
create the commercialized Internet and avoid driving over the cliff.  If the 
community had stopped to deal with the issues of Legacy resources at that 
time, it is possible that could have jeopardized the success of the Internet as 
a whole.

Also note many of the earliest Legacy Resources are assigned to non-
commercial entities.  I think it is natural and possible a good thing that 
during the early days of ARIN that many of these Legacy Resource holders 
didn't pay close attention to ARIN and let it work on the issues of bringing 
the Internet to the commercial world and the rest of society.  

I personally believe that the community did the prudent thing by leaving the 
Legacy Resource holders alone in the early days of ARIN and focused on 
moving forward.  But now I think the prudent thing for both ARIN and the 
Legacy holders is to normalize the status of Legacy Resources. 

I think part of dealing with the Legacy Resources is to have an open and 
honest debate about what the terms of those original resources were 
assigned under.  Throwing around terms like "special rights" just makes that 
debate harder.  I don't think Legacy Resource holders have special rights, 
but I do think it is possible and even likely that the original terms that the 
resources were allocated under were different that what we have 
documented in the current RSA and maybe even the LRSA.  Some of those 
differences my still be valid, some my not.

I also think if we can have a healthy debate about what the terms Legacy 
Resource holders received their resource under that could inform policy for 
Legacy and non-Legacy resources alike.  

That said I don't think that debate should be accomplished through 
proposing contract language on PPML.  I think we should discuss and the  
idea and policies that need to be incorporated in the contracts. 

So I'll start with a concept that I think is not covered in current contract or 
policies;

I don't believe that Legacy or non-Legacy resource holders have property 
rights to their assigned numbers.  I don't believe numbers should be or can 
be property.  However, that said I do believe that certain implied covenants 
exist between resource holders and ARIN, both Legacy and non-Legacy.  
Some of these covenants are similar to property right covenants, I propose 
this is why some people are so dead set against agreeing the "not property" 
clause.  Just because these covenants are similar doesn't mean the 
resources are property.  But maybe these covenants need to become 
explicit in the RSA or LRSA contract, the Policies, or Both.

I feel these covenants start with;

1. the Assigned or Allocated Resources are unique
2. the Assigned or Allocated Resources are not subject to change for 
arbitrary or capricious reasons
3. the Assigned Resources are in the context of the Internet are for the 
undistrubed use or benefit of the Assigned Entity 

I'm not sure how to word #3 for Allocations. Also, maybe #3 needs a 
limitation of legal use, too. 

I really can't find #1 or #2 anywhere in the NPRM, RSA or LRSA, and #3 is 
kind of in NPRM 2.6, but I think it is really intended as a restriction and not a 
a grant of a right to use.

In my view, these kind of form a right of "Quiet Enjoyment" for Number 
Resources, "Quiet Enjoyment" is from common law for property.  I don't 
think we should call it that but that is the concept I'm after.

I don't think #1 or #2 are that much of an issue, if they were not true, then 
the Internet really wouldn't function.  But, #3 is probably much more 
controversial.  People will argue that it makes the resources look like 
property and therefore it is property, I don't think that is necessarily true, but 
it could be That is for the lawyers and probably only case law will decided it 
some day.  But I believe you can have the above covenants between ARIN 
and Resource Holders without making the Resources property.  
Furthermore, I believe that this provides much of what those that claim that 
resources are property really think they have.

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