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

[Owen DeLong]

On Jun 12, 2012, at 10:01 AM, Mike Burns wrote:

> 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.

This involves a series of assertions which are arguably false...

Namely:

	1.	That the original registrant had some right to transfer the blocks to them.
	2.	That they have the exclusive right to use.
	3.	That they have a right to not use and yet retain control of the addresses.

Certainly they have the exclusive right to use or not use the addresses within their network, but, the question is whether or not that creates an obligation for ARIN to maintain an entry associating those addresses with them (or their predecessor) in the ARIN database and/or for ARIN to update that registration. Does it create an obligation for ARIN to avoid creating a conflicting registration in the ARIN database?

If they do not have a right to registration in the ARIN database, how would they have a right to preclude a conflicting registration in the ARIN database? Indeed, absent a contract with ARIN, how can they exert any control whatsoever on the contents of the ARIN database?

Moving beyond the question of how they interact with ARIN, however, how does that "exclusive right to use or not use" the addresses extend to affect other network operators with whom they also do not have a contract? In short, where did these "exclusive rights" come from and under what law or contract are they governed?

>> 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.

ARIN is the successor registry to those contracts and ARIN policies do apply to all such registrations. No rights were conveyed with the original allocations, but, rather a registration for uniqueness among cooperating parties was conveyed. If you have documentation or supporting law or contract to assert or prove otherwise, I would be very interested in seeing that.

>> 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.

Nortel obtained the addresses through transactions that would qualify under 8.2. Therefore, even though Nortel had no deal with ARIN, Nortel did acquire the addresses within ARIN policies.

>> 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.

Then what do you mean by an "exclusive right to use"? If you can't force 3rd-party network operators to route or not route the addresses for you or for another party, how is your right of exclusive usage defined?

You're saying this is merely my opinion as a non-lawyer, yet you state that it is clearly true in your own second sentence.

>> 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.

IMHO, such routing will remain the exception and when a network operator is faced with conflicting data between your chain of custody/alternate registry vs. what ARIN says in the ARIN database, likely most, if not all operators will go with what is in the RIR database.

So long as there is no conflict, I believe you can get certain ISPs to route just about anything.

The real question is what happens when ARIN not only doesn't update, but, drops your registration from the database and subsequently issues a conflicting registration to another party. (Note, I'm not advocating ARIN take such an action, but, if you want to talk about property rights, then it really boils down to your
ability to preclude ARIN from doing just that).

>>> 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.

But you have still failed to define what "address rights" actually are.

You've said that they don't involve the ability to compel behavior of third parties, so, what, exactly are these rights to which you refer?

The right to transfer the right to transfer? That seems rather meaningless to me.

> 
>>> 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.

1.	What contract protected by the government?
2.	What right to use?
	Does your right to use 5 preclude my right to use 5?
3.	Right not to use?
	Are you claiming that addresses are not subject to reclamation[1] for insufficient utilization? I think that is only true if the resources are covered by an LRSA which states that.

Again, absent the ability to compel third-party behavior (which you have acknowledged does not exist), in what way are 2 and 3 meaningful?

[1] reclamation = removing the allocation from the ARIN database and creating the possibility for ARIN to issue a registration of those particular numbers to a third party and/or pass those numbers back to the IANA pool of available addresses.

Owen