[arin-ppml] ARIN-prop-172 Additional definition for NRPMSection2 - Legacy Resources

[David Farmer]

On 6/14/12 12:30 CDT, Mike Burns wrote:
>
>
>>> I think these "grandfather clause" exceptions enjoyed by legacy
>>> holders ARE
>>> legally transferable, per Nortel selling Bay Network's address space
>>> without
>>> any extant agreement between ARIN and Nortel.
>
>> That's an very interesting conclusion, given that ARIN was present &
>> concurred
>> with the transfer (which we did because the recipient met requirements
>> and had
>> already entered into an registration agreement with ARIN), but it
>> wouldn't be
>> the first time someone has tried to assert such.  Current practice has
>> shown
>> it to be otherwise; no transfers have occurred without meeting
>> community policy.
>
> Did ARIN have any agreement with Nortel which allowed Nortel to sell Bay
> Network's address space?
> If not, how did Nortel have the *legal* right to sell address space
> originally allocated to Bay Networks?
> Chris' point was that a grandfather clause-like situation existed, and
> that usually those rights are not transferable.
> But in this case the legacy rights afforded to Bay Networks WERE
> transferred to Nortel, whom the judge found to have the exclusive right
> to transfer.

What you seem to be asserting is that Legacy status is transferred with 
resources and the other assets of the company, as part of an M&A 
transfer such as envisioned in 8.2.  While I'm not completely convinced 
of that, there may be a reasonable argument for that.

However, it doesn't follow that Legacy status is also transferred with 
the resources independent of any other assets of the company, when a 
transfer occurs as part of 8.3.

The difference is, the purpose of the first type of transfer is to 
record the change of ownership and/or name of the company, or the 
ownership of the assets that use the resources, but not the use of the 
resources per se.  Where as the purpose of the second is to change the 
use of resources, independent of and explicitly not involving any change 
to the ownership of the company or any other assets.

Nortel acquiring Bay, is an instance of the first type of transfer, 
Microsoft acquiring the resources from Nortel through the bankruptcy 
proceeding is an transfer of the second type.

I'm sure even a judge would see the distinction in these two situations.

So it might be worth discussing if an 8.2 transfer removes the Legacy 
status from resources or not, but it seems clear to me that 8.3 
transfers do.

Finally, the transfer of resources from Bay to Nortel seems completely 
consistent with 8.2 and probably would have happened if requested long 
before the bankruptcy.  And, if a judge orders you to do something you 
would probably do anyway; you don't argue with him about it, you just do 
it.  But you say but Nortel didn't request it.  That's not true, I 
believe the action of bankruptcy trustee approved by a judge is legally 
the same thing as a company taking the action.

-- 
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David Farmer               Email:farmer at umn.edu
Networking & Telecommunication Services
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