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

[Lindsey, Marc]

Hello John,

You wrote:

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.
. . . .
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.

<<< M Lindsey >>> I suffer from a lawyer's mindset.  To me, an unenforceable contract is the same thing as no contract.  


> << 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. :)

<<< M Lindsey >>> Yes, an unfortunate typo!

>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.

<<< M Lindsey >>>  That's a possible theory of what could have happened.  I don't know that there is any actual evidence available to support that theory.  But even assuming the USG contractor thought that these sorts of conditions ought to apply, that opinion does not establish an enforceable condition on the legacy holders today to comply with RIR policy absent an enforceable (preferably written) agreement.  

I do think struggling to find informal agreements in the historical (unwritten) record as the source of ARIN's authority over number resources is not really a winning proposition. 

The better argument (which John Curran touched on in a PPML message for me earlier today) is that the RIRs have been delegated by ICANN authority to serve as registrars and registries for numbers allocated or assigned directly by the RIRs, all as part of the responsibilities/obligations assumed by ICANN under its (written) contract with the USG.  

This is neat and clean with respect to numbers directly allocated and assigned by the RIRs. And it's understandable why someone looking to establish ARIN's authority over legacy numbers would use this same line of reasoning to assert implied or inherited authority over legacy numbers. The reasoning is also appealing because the RIRs have maintained registries listing legacy numbers (even off-contract numbers).  But it collapses when applied to legacy numbers.  

To the best of my knowledge (after considerable research), there are no contracts between ICANN and the USG or between ICANN and the RIRs that grant the RIRs' authority over legacy numbers.  
 
. . . .

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.

<<< M Lindsey >>>  Yes, I get this point.  The combination of the dwindling supply of free-pool IPv4 numbers, the excruciatingly slow uptake of v6 and the vast amount of underutilized previously allocated (mostly, but not only) legacy numbers has spawned an active after-market in IPv4 numbers. And the economics of this marketplace have drawn in many new stakeholders/voices to number resource governance policy discussion. It is understandable why long-standing/contributing members of the ARIN community want to be cautious. 

I do, however, think progressive market-driven transfer policies will actually produce positive benefits for the community (e.g., increase accuracy of the directory, encourage more legacy number holders to join the club, stimulate an increase in supply of IPv4 numbers, reduce barriers to putting previously allocated numbers back into productive (service fee generating) use, and improve marketplace transparency).  I know that I've failed so far, but I will keep trying to persuade you to see these benefits, too! 

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