[arin-ppml] ARIN-prop-174 Policies Apply to All Resources in the Registry

[Milton L Mueller]

> -----Original Message-----
> 
> made here.  It certainly makes sense to me that if no legal contract
> exists between ARIN and an entity then ARIN has no authority to assert
> an obligation on that entity. However, it would also follow that such an
> entity had no authority to exert an obligation upon ARIN to maintain
> listings for it or to update those listings per it's request. In my
> limited understanding if no agreement exists between 2 parties then
> NEITHER has obligation toward the other, other than that which is
> codified in law/statute.

[Milton L Mueller] I agree with this. No legacy holder could sue ARIN for not updating a listing. Just as no ccTLD registry could have sued ICANN for refusing to update their root zone entries. However, if ARIN wants to protect and advance its status as the authoritative IP registry, then ARIN has other issues to worry about besides whether it is contractually obligated. E.g., ICANN backed down from its ccTLD coup because of the way its actions undermined its legitimacy and acceptance by the global community. 

> Even assuming that an assignment prior to ARIN established some sort of
> exclusive right to use an address block for an entity, it does not
> follow that also infers a right to transfer such exclusive right to use
> to another entity and to do so absent any restrictions. 

[Milton L Mueller] I am afraid that it does involve both rights. 

> The right to use
> a resource and the right to transfer that use are not identical. I
> believe there are a significant number of historical examples of such
> arrangements. Tenant farming for example, a tenant farmer might have an
> exclusive right to use a particular parcel of land for farming, but they
> didn't have the right to transfer the right to use the land to a 3rd
> party, and certainly not to a 3rd party who wanted to do something other
> then farming on it.

[Milton L Mueller] True, right to use and right to transfer are separable aspects of the bundle of rights. The flaw in your argument, however, is that the tenant farmer has a contract with the land owner (that's what 'tenancy' usually means) that prevents such unauthorized transfers. Or, in other cases, a body of established law governed the relations between landholders and serfs. Absent such an agreement/law, the holder has a de facto right to transfer - or to put it more accurately, no known party has a right to prevent them from transferring the use right.

> None of this speaks to what ARIN's policies should be, but it seems
> pretty clear to me that absent a contract, a court order or a statute
> ARIN can update it's registries according to whatever policies are
> adopted which by it.

[Milton L Mueller] It's very good that you understand the distinction between what ARIN's legal rights are and what good policy would be. Those who believe that ARIN should not record legacy transfers need to tell us what the policy rationale is. What good does such a refusal do? What harms might come of it? That would be an intelligent topic to discuss. If your concept of "doing good" means: "I hate those f**ing legacy holders and think they should be punished for not playing our 8.3 game" or "I want to punish people who make money from IP address trades," I suggest that this is not a constructive policy.