[arin-ppml] ARIN-prop-171 Section8.4Modifications:ASNandlegacy resources

[Mike Burns]

Pertinent to this discussion of property rights is Ernesto Rubi (who IS a 
lawyer)'s  response to the Steve Ryan/Matthew Martel article.
Rubi claims that legacy addresses meet the "basket of rights" test for 
property.

http://addrex.net/documents/2012/03/carey-rodriguez-internet-protocol-article-030112.pdf

It's fine for us here at the PPML to declare what is and isn't property, but 
that is just our opinions.
As has been noted, eventually a judge will decide, and it makes sense for us 
to anticipate that he will apply timeworn rules as to what is property and 
what isn't.
Since legacy addresses, post-Nortel,  meet the "basket of rights" test and 
have no written contract attached to them, I think it at least possible that 
a judge will find that legacy holders have property rights to their blocks.

Certainly the right to not-use the addresses, the right to use the 
addresses, and the exclusive right to transfer the addresses were found to 
belong to Nortel, who was not the original allocant of the legacy space in 
question.

How much further must the rights extend before they meet the test of 
property rights?

Regards,
Mike



-----Original Message----- 
From: Owen DeLong
Sent: Tuesday, June 12, 2012 11:33 AM
To: Milton L Mueller
Cc: arin-ppml at arin.net
Subject: Re: [arin-ppml] ARIN-prop-171 Section8.4Modifications:ASNandlegacy 
resources

The following is strictly my own opinion. IANAL and I did not ask a lawyer 
about it. It is not intended as an expression of any opinion of ARIN, the 
AC, or anyone other than myself.

On Jun 12, 2012, at 6:51 AM, Milton L Mueller wrote:

> Jo, glad to see you back away from the "psychotic" remark.
>
> As for confusion about what property is, it is well accepted among 
> political economists that there can be property rights in intangible 
> assets. A property right is defined in economics as the right to exclude, 
> the right to use and the benefit from the use, and the right to trade or 
> assign to others.

Interesting that you use and in this definition. Since you use and, this 
does not, from my perspective, fit IP addresses as the right to exclude and 
the right to use are quite unclear even WRT ARIN issued addresses covered 
under RSA.

Yes, there is a de facto tendency to be able to use and to use with at least 
some exclusivity. However, neither of those abilities is imbued or conveyed 
in the ARIN registration or governed by ARIN policy. Those abilities are an 
individual choice of each operator actually controlling routers and are not 
universal or in any way under control of ARIN or the registrant.

> So to shift slightly to another context, you think that telephone number 
> portability plans, which facilitated competition by giving end users a 
> property right in their number, allowing them to move them from carrier to 
> carrier, was a bad thing? After all, a telephone number "allows you to 
> receive [calls] and for others to find you" and thus conforms exactly to 
> your definition of an address.

Telephone numbers were first divorced from the service delivery topological 
hierarchy before that was made possible in the telephone network. No such 
divorce has yet occurred in IP. As such, the semantics are necessarily quite 
different.

Imagine trying to implement number portability prior to SS7 and you should 
get some idea of what this means in an IP context today.

> By the way, whether the community can take away property rights has 
> nothing to do with whether the rights are property rights or whether it is 
> a good thing to assign them in the first place. E.g., in certain countries 
> tanks claiming the mandate from "the community" can arrive at your door 
> and expropriate your land. Doesn't mean your land isn't property, doesn't 
> mean it's the right thing to do.

No such property rights as you define them exist. The community neither 
gives them nor takes them away because they are fictitious to begin with.

The community controls policy over how the ARIN databases are updated. To 
the extent that legacy holders are effected by the contents of those 
databases, they are subject to ARIN policies whether or not they have any 
agreement with ARIN. Outside of concerns for what is contained in the ARIN 
databases, legacy holders have little or no implications from ARIN policy.

Fortunately, the internet works because most people that run connected 
routers on the largest set of interconnections and interconnected routers 
("the internet") at least so far abide (mostly) by the contents of the ARIN 
databases. To the extent that remains true if legacy holders diverge from 
the ARIN database, they could have interesting problems getting or keeping 
their networks connected with "the internet".

Owen




>
>> -----Original Message-----
>> I think that this conversation demonstrates some deep confusion over
>> what property is.
>>
>> Property: are those tangible assets that you own. You know, the hardware
>> you use to provide the service on. You bought them.  This stuff is not
>> unlike a house, or perhaps one could argue, a mobile home.
>>
>> Address: is that thing you get from the community which allows you to
>> receive mail, and for others to find you. And the community can vote to
>> change it. And does, not often, but perhaps more often than many people
>> expect.
>>
>> I find it totally amusing that "allows you to receive mail, and for
>> others to find you" amazingly sums up both the real uses of physical and
>> IP address ;-)  But neither one is owned, and both can be changed or
>> even taken away if the community votes to do so.
>>
>> --
>> Jo Rhett
>> Net Consonance : net philanthropy to improve open source and internet
>> projects.
>>
>>
>>
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