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

[Mike Burns]

Hi Owen,

Responses inline.



On Jun 12, 2012, at 8:52 AM, Mike Burns wrote:

>> 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.
>

>What, exactly, do you mean by "their blocks"?

>Do you mean the addresses themselves?

>Do you mean the right to use those addresses to number a network?

>Do you mean the right to exclusivity from others using those addresses to 
>number a network?

>Do you mean the registration of the association between the address numbers 
>and the organization in the ARIN database?

>Do you mean some combination of these things?

I mean the address blocks for which they have a chain-of-custody from 
themselves back to the original allocant, for which they have the exclusive 
right to use, to not-use, and to transfer. By transfer I mean sell for 
value, I do not mean ARIN changing a record in the Whois database. I am not 
saying they have the right to registration in the ARIN database.


>Addresses themselves do not have or convey any rights. They are merely 
>integers and whether it's an IP address or a  credit card number or an 
>accounting term or a building number is strictly a matter of the context in 
>which it is used. As such, I cannot imagine a property right here.

I'm not talking about the addresses, but rather the address rights, which 
were conveyed with the original allocation from an agency working under some 
contractual relationship with the US government. These rights have passed 
from party to party on innumerable contracts.

>In terms of the right to use those addresses to number a network, property 
>remains a bit of a stretch unless you couple it with the right to 
>exclusivity. Likewise, the right of exclusivity is nonsensical absent the 
>right to use, so, rather than consider these separately, I'll consider them 
>together.

Remember there was never any deal between Nortel and ARIN, the Nortel 
counsel specified that before the judge, yet the judge found that Nortel had 
exclusive transfer rights to addresses for which they were not the original 
allocant.


>As I have said, the registration of an address does not convey the right to 
>use that address on the internet, nor does it convey the right to exclude 
>someone else from using that address on the internet. Instead, those rights 
>are strictly under the control of those running the upstream or peer 
>routers with which a given organization exchanges datagrams. If you believe 
>that there is some basis in law for enforcing ARIN's view of these 
>registrations as a form of rights and inflicting those rights upon 3rd 
>party network operators, I'd like to see where in the law you believe such 
>a basis would be created.

As I have said, this is merely your opinion as a non-lawyer. Clearly all the 
power here lies in the hands of the network operators, I have never even 
seen postulated a right to force 3rd parties to route addresses.



>Considering the association between the address and the organization, 
>namely, the registration in the ARIN database, which is what can be traded 
>under NRPM 8.3, then, yes, ARIN has stated that there are certain property 
>rights in this registration and I am inclined to agree. However, the extent 
>to which such rights exist outside of a contract with ARIN is questionable 
>at best. Further, the right to force ARIN to update it's database and make 
>changes to that registration outside of ARIN policy is certainly an 
>unlikely (at best) extension of any such property rights to force ARIN to 
>do so.

That's a very ARIN-centric view of things. Remember these addresses were 
allocated before ARIN existed, in an informal manner without contracts. As a 
legacy holder, I say who cares if ARIN updates Whois? There is a competing 
registry. The real question is whether network operators will route the 
addresses, and in my personal opinion they will do so, when presented with 
chain-of-custody documents. Note I am not saying that any law can force ARIN 
to update it's database.


>> 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.

>I think you mean the exclusive right to transfer the registration, but, 
>even that right was noted to be limited in scope by ARIN policy. The 
>integers themselves were not transferred. The registrations associating the 
>numbers with an organization in the ARIN database were transferred.

Owen, did you read Rubi's article? Nothing in the Nortel documents said 
legally that the right to transfer was limited by ARIN policy.  That's 
wishful thinking. Rather the judge found exclusive right to transfer, and 
the ARIN/Microsoft deal was a "side agreement" which Nortel, who was the 
transferer, was not even a party to.  You keep implying that a "transfer" is 
a change in Whois. I am saying a "transfer" is the legal transfer of address 
rights, which does not imply a Whois change.

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

>First we must define what you are claiming is property.

>Owen

What I am claiming is property is the exclusive right to use an address 
block, to not-use an address block, and to transfer those rights under a 
contract protected by the government.

>
> 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.
>>>
>>>
>>>
>>> _______________________________________________
>>> PPML
>>> You are receiving this message because you are subscribed to
>>> the ARIN Public Policy Mailing List (ARIN-PPML at arin.net).
>>> Unsubscribe or manage your mailing list subscription at:
>>> http://lists.arin.net/mailman/listinfo/arin-ppml
>>> Please contact info at arin.net if you experience any issues.
>> _______________________________________________
>> PPML
>> You are receiving this message because you are subscribed to
>> the ARIN Public Policy Mailing List (ARIN-PPML at arin.net).
>> Unsubscribe or manage your mailing list subscription at:
>> http://lists.arin.net/mailman/listinfo/arin-ppml
>> Please contact info at arin.net if you experience any issues.
>
> _______________________________________________
> PPML
> You are receiving this message because you are subscribed to
> the ARIN Public Policy Mailing List (ARIN-PPML at arin.net).
> Unsubscribe or manage your mailing list subscription at:
> http://lists.arin.net/mailman/listinfo/arin-ppml
> Please contact info at arin.net if you experience any issues.