[arin-ppml] ARIN-prop-171 Section 8.4 Modifications: ASN and legacy resources

[John Curran]

On Jun 12, 2012, at 3:16 PM, Mike Burns wrote:

> Nortel was found to have exclusive right to transfer addresses allocated to another company, say Bay Networks, which was acquired by Nortel.
> So presumably Bay Networks, the original registrant, had some right to transfer blocks to Nortel without ARIN's involvement. From the judge's order:
> ‘‘The Seller has the exclusive right to use the Internet
> Numbers and the exclusive right to transfer its exclusive
> right to use the Internet Numbers."

Mike - There have been several bankruptcy cases involving transfers of IPv4
addresses (you can find several listed on slide 3 of my recent "Update on IPv4 
Transfers" presentation at NANOG 55 - http://teamarin.net/event/nanog-55/)  
ARIN processed these transfers because they met the policy for IPv4 transfers
as set by the community.

> Again from the judge :‘‘The Seller has the exclusive right to use the Internet
> Numbers and the exclusive right to transfer its exclusive
> right to use the Internet Numbers."

The original sale order would have transferred Nortel's rights and interests 
"free and clear" to Microsoft.  ARIN filed an objection with the court, and 
the parties were able to work out an amended sale and court order which was
satisfactory. The parties (Nortel and Microsoft) jointed submitted a revised 
sales order that said the addresses "will be placed under a registration 
services agreement (LRSA) between ARIN and Microsoft", and draft court order 
that read  "For avoidance of doubt, this Order shall not affect the LRSA and 
Purchaser's rights in Internet Numbers transferred pursuant to this Order shall 
be subject to the terms of the LRSA".  ARIN found such that requirement to be 
sufficient to provide for the necessary compliance with the community policy.

You will find even more precise language in all of the subsequent bankruptcy
court orders,  e.g. in the case of the Borders transfer - 

" F. Other Provisions.

14. Notwithstanding anything herein to the contrary, including, without limitation, paragraphs J, 3-8, 11 and 16, hereof, (i) the IA Sale, as stated in the Agreements, is conditioned upon ARIN’s consent including any terms and/or conditions established by ARIN’s transfer policies or any other policies, guidelines, or regulations developed by ARIN and published on its website, as may be amended and supplemented from time to time (collectively, “ARIN’s Policies”), (ii) the transfer of the Debtors’ interests in the Internet Addresses to the Purchaser is subject to ARIN’s Policies, (iii) the Debtors and the Purchaser are required to comply with ARIN’s Policies before any transfer of the Debtors’ rights in the Internet Addresses may be effectuated.; (iv) ARIN is not required to take any action in violation of ARIN’s Policies in connection with or as a consequence of this Order, the IA Sale, or the Agreements, nor shall ARIN be required to apply a different standard to the transfer of the Internet Addresses than it does to the transfer of non-legacy Internet Protocol numbers. Nothing in this Order is intended, nor shall be construed, as exempting the Debtors and Purchaser from complying with the ARIN Policies. Subject to the conditions set forth in this paragraph, ARIN has approved of the transfer as contemplated herein and shall take reasonable steps to provide assistance for the transfer as contemplated in this Order. "

On the other hand, you already knew of both of these cases, and neither of 
them are the result of parties which ended up in disagreement (which is most 
likely when these matters will really be decided with far more certainty)

> And where is  your documentation or supporting law to assert that ARIN's post-hoc policies apply to legacy addresses?
> As far a my documentation or case law, 
> ...

It's quite interesting; we've already agreed that these matters are likely 
to decided in courts, and yet you continue to try and argue legal positions
on this mailing list in advance of that event.

ARIN is highly likely to be a party in such proceedings, and hence must decline 
to participate in publicly outlining our legal strategy for obvious reasons.  
(It would be really nice to get this settled, but that obviously takes more 
than just ARIN...)

Today we have an active IPv4 transfer market, and this includes an ever-growing
list of bankruptcy-related transfers completed where the address holders and 
service providers involved simply followed the policies set by the community 
for IPv4 specified transfers.  It is "running code" and has become rather 
well-understood, including facilitators to help parties with their requests.
I expect to see this significantly increase over time, and soon include some
transfers to parties in other regions per recently adopted policy changes.

Discussion of further changes to policies is quite welcome and it would be good 
if we could get back to that - you probably need to talk with someone else about
"property which is neither registration rights nor related to the operator 
community's use of IP addresses", as it doesn't appear to be related to ARIN
or its mission as a registry in the management of the IP address space in the 
region.

Thanks!
/John

John Curran
President and CEO
ARIN