[arin-ppml] ARIN-prop-172 Additional definition for NRPM Section 2 - Legacy Resources

[Lindsey, Marc]

John,

The core syllogism you constructed below is impressive (and witty).  I do have some observations about your premises.

* * *

I'm pretty sure there are valid contracts (verbal and otherwise) for which
there is no document. When I got my IANAL certificate, I thought I knew
that a valid contract required only an exchange of consideration and
assent by both parties.

<< M Lindsey >> If by "valid", you mean enforceable, you're missing some necessary steps to support this assertion.  The party trying to enforce an "informal" oral agreement has to prove the existence of the agreement and the parties' assent to the term or condition at issue.  Both of these are very difficult hurdles to overcome.

I do understand that there has been considerable assertion that there is
no contract with "legacy" address resource holders, but has this been
stipulated or in some other way achieved reality?

<< M Lindsey >>  As mentioned above, you've placed the burden on the wrong party.  Those asserting the existence of an undocumented informal/oral agreement bear the burden to prove the existence of the agreement, and establish its terms and conditions.

The exchange of consideration that I have always imputed is: I will give
you these numbers -> I will go build the Intertubez. And how could there
not be assent? If that _IS_ the bargain, I think the pioneers get a
permanent let pass on unwanted changes to the status quo.

<< M Lindsey >>  I suspect that I'm not catching all of the nuisance in your statement above, but you appear to be removing an important fact. Individuals and companies serving as US contractors -- while acting on the USG's behalf -- gave out the legacy IP numbers to end users and network operators.

If, on the other hand, there was, in fact, no valid exchange of
consideration or mutual assent, do these folks have any enduring rights
of use at all? In particular, I think they or their agents don't get to
expand their original bargain to preserve a potential windfall. Invisible
hand be damned.

<< M Lindsey >> If there was no original contract between any given legacy holder and the person/entity serving the role of Internet registrar at the time, then there is no original bargain between these parties to expand or contract.  This, however, does not mean that the legacy holder lacks any rights in its numbers.  It simply means that we must look somewhere else to define the scope of those rights.
Note well: I am not suggesting an assault on the status of legacy numbers
or their holders, but if proposers be proposing changes to policy toward
these folks, perhaps the solidification of first principles may be in
order.

<< M Lindsey >> I'm gathering that this sentiment is at the core of much of the opposition to proposals 171-173. I'd like to express an alternative sentiment in the form of a question.  Can/should transfer policies be designed to further important policy goals and effectively (and practically) address the challenges facing the ARIN community without inviting disputes on first principles between ARIN and off-contract legacy resource holders?

I don't think I gave any advice here.

<< M Lindsey >> Nice!

Marc Lindsey
Levine, Blaszak, Block & Boothby, LLP
2001 L Street, NW Suite 900
Washington, DC 20036
Phone: (202) 857-2564
Email: mlindsey at lb3law.com<mailto:adelgado at lb3law.com>
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