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

[William Herrin]

On Wed, Jun 3, 2015 at 5:02 AM, Owen DeLong <owen at delong.com> wrote:
> 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.

Hi Owen,

That's possible. However, I wouldn't bet the farm on a judge not
following the path from tortious interference to its natural
conclusion: that a block of Internet addresses is documentary
intangible property under common law, subject to centuries of well
understood precedent over folks' rights. When in doubt, what quacks
like a duck is a duck.


> 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.

I think you've offered a pretty tortured chain of logic. A far simpler
explanation is that the rights in question are constrained to the
public Internet. IP addresses are more than integers only when they
appear in someone's Internet routing table. The law is long familiar
with intangibles whose existence is bound by context. Indeed, the law
already has excessive precedent establishing the number on a bank
check as an intangible property, but only in a specific context.


> Thus, the possibility of a case of tortious interference alone is insufficient to prove a right to exclusive use.

Perhaps. Time will tell.

> 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.

Dubious as precedent. Regulation of Ham radio frequencies flows
directly from current federal statute. The only vaguely comparable
source of governmental authority regarding Internet routing stems from
a National Science Foundation research project that ended 20 years ago
with something that could be reasonably described as abandonment.
More, during the project's run, the NSF failed to offer any guidance
that was particularly on point for this debate.


> 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.

All common law starts as a violation of some mass-respected convention
of human behavior that victims choose to challenge in court. At which
point the court fits the facts into the nearest framework precedent
provides. The decisions the judge makes then establish the new
precedent, the new law, that governs how similar sets of facts are
treated in future cases. Such law endures until and unless overridden
by statute.

I think the closest available framework that makes any kind of sense
within the history of jurisprudence is that Internet address blocks
are documentary intangible property. John disagrees. Still, I can't
help but notice that when ARIN has been in court, counsel has been in
no rush to induce a judge to clarify the matter. Indeed ARIN appears
to have sought every other avenue in which each case could be
concluded without a judge having to reach the property question.

I think ARIN counsel is far less confident of prevailing on the
address-aren't-property claim than John lets on. And I think he has
good reason for concern.

Regards,
Bill Herrin


-- 
William Herrin ................ herrin at dirtside.com  bill at herrin.us
Owner, Dirtside Systems ......... Web: <http://www.dirtside.com/>