[arin-ppml] On USG 'granting of rights' (was: ARIN-PPML 2015-2)

[Owen DeLong]

Speaking only as myself and not representing the views of ARIN, the ARIN AC, or any other person, group, body, structure, vessel, corporation or SuperPAC.

I believe at the heart of the difficulty coming to agreement about what rights are being transferred is the fact that one side of the debate appears to be missing some key things about the fundamental nature of the internet.

Mr. Herrin in bringing up tortious interference claims that to be indication of an “exclusive right to use” accompanying the number registry. Unfortunately, this is not true. It does represent a precedence-based presumption about the determination of who is the “interfering party” in a case where interference exists. However, an exclusive right to use would go further than that.

As an example, if Company A has a registration for 1.2.3.0/24 and uses it entirely on their internal network without advertising it to the internet and Company B also uses it on their internal network without advertising it, there are then at least two possible legal scenarios…

Scenario 1, A’s registration includes an exclusive right to use. In this case, if A were to learn of B’s usage, they may well have a civil claim against B for violating that exclusive right to use. A case for tortious interference really doesn’t exist here because there is no interference.

Scenario 2, which I believe is applicable in this case… Since B’s use does not interfere with A’s use, there is no interference and no case for tortious interference exists.

Thus, the possibility of a case of tortious interference alone is insufficient to prove a right to exclusive use. There is precedence for this in the Amateur radio system as well. Nobody has any exclusive rights to frequencies or frequency pairs used for repeaters. However, a repeater which is registered and allocated frequency pairs by the local repeater coordinator (a non-government body, similar, but not identical to ARIN) gets interference from a repeater which is not “coordinated”, the FCC will side with the coordinated repeater and ask the non-coordinated repeater to take steps to resolve the interference.

It is easy and we often make the mistake of thinking of the internet as a single cohesive network with some level of central administration. This ignores the fundamental underlying nature of the internet. The internet is a collection of independently owned and operated networks. None of the network operators have any legal obligation to play by RIR, IETF, or other policies other than those they voluntarily accept in contracts with those entities (e.g. ARIN RSA).

Like it or not, the internet is held together by good will and cooperation. The high level of cooperation from ISPs with the RIR system is what gives registration in the RIR system meaning and not some sort of government-like power or army of enforcement officers.

Owen