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

[John Springer]

Hi Marc,

On Tue, 19 Jun 2012, Lindsey, Marc wrote:

> John,
>
> The core syllogism you constructed below is impressive (and witty).  I do have some observations about your premises.
>
Thanks for the kind words.
>
> 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.

To me, it is actually much simpler than that. There is a vast difference 
between the contract may not be enforceable and there never was a 
contract. We have a number of folks here loudly and repeatedly asserting 
the latter. I have no particular dispute with the former and respectfully 
disagree with the latter.

> 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.

At the moment of exchange of consideration a contract existed. The 
terms of the agreement may be lost and may very well be unenforceable, but 
those observations are orthogonal to the existance of the original 
agreement.

> 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

I do hope autocomplete has struck again and you meant nuance, although I 
strongly suspect you could find some in agreement with the original 
sentiment. :)

>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.

How about this then? 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 in return for those parties putting them 
into use and other valuable considerations the exact nature of which may 
now be lost and unenforceable but which certainly existed once.

> 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.

Indeed. That search is not likely to be assisted overmuch by repeatedly 
denying that a contract actually once existed. Look, it is not like a 
bunch of ARIN meanies are swooping down on pore ole cranky, but loveable 
legacy grandmas lookin ta steal the ranch. Most of this ongoing kerfluffle 
is the result of a small (but growing) number of motivated players trying 
to manufacture a windfall. Nothing wrong with that per se, but in this 
case, the ARIN community needs to agree to it and so far they haven't 
seemed to. In my case, I have found the "remove needs" proponents to be 
overly reliant on blank assertion and insufficiently persuasive.

> 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?

Ha! Very nice. Maybe so. You move me toward optimism.

John Springer

> 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>
>