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

[William Herrin]

Hi Mike,

On Wed, Jun 3, 2015 at 2:53 PM, Mike Winters <mwinters at edwardrose.com> wrote:
> This has been dragging on for so long, I forget what it was originally
> about…

Policy "improvements" to facilitate buying addressing in the ARIN
region and transferring them to China.

I concede fault for being one of the guys who tends to derail
discussions into well worn tracks like IP address property rights. If
have something to say on the original topic, the mic is open and folks
like myself are still listening.  And ready to help you be heard if
you've something which hasn't already been said.


> So if someone is using addresses that are unassigned or assigned by ARIN
> (but not used) then the unregistered party would own them.  Which means ARIN
> and the “registered user” would be the ones subject to a tortious
> interference claim.

There's an argument to be made there, at least with respect to the
bogons (use of unassigned addresses). With never-registered addresses
I'm not sure how you'd establish that your use was more legitimate
than anyone else's. It's not tortious interference for me to camp in
an open spot in a national park that you promised to your clients. Not
my fault that you made a baseless promise. You'd have to express some
demonstrable reason that you expected to have consistent exclusive use
of the address block. If not registration then what?


> Also, your “natural conclusion” has a major problem, you would have to
> completely overlook paragraph 7 of the RSA which clearly states that there
> are no property rights.

Very true. I suspect this is the most significant hurdle the
registrant would have to overcome.

The strongest point in the registrant's favor is this: standing in a
courtroom, it's not enough for ARIN's council to say what IP addresses
aren't. They must, without appearing to the judge to be blithering
idiots, explain what IP addresses in fact are and why anyone would pay
such sums as they do to obtain them if they are nothing more than
integers in a database.

The registrant's counsel need only respond that ARIN's wacky and
complicated explanation is, in fact, an elaborate lie meant to conceal
that IP addresses are exactly what they appear to be: an intangible
property with trivially determined dollar value, bought and sold like
any other, and a critical component in the operation of a
multi-billion dollar industry. And oh-by-the-way, that was a contract
of adhesion (courts hate contracts of adhesion) where ARIN had
monopoly powers (courts disapprove of monopolies too) to deny
addresses if the registrant failed to feign consent.

It's a civil case, so the standard is "preponderance of the evidence."
Paraphrased, that means: which evidence is more convincing. ARIN
presents the RSA, the MOAs and maybe an RFC or two. Seats an expert or
two to talk about the IETF, and so on. The registrant objects to the
MOAs. Presents newspaper reports of sales, economic analyses of the
Internet industry and ARIN's fee schedule. Seats an expert or two to
talk about the linchpin role IP addresses play in the Internet
business, without which the Internet is impossible. Which explanation
of what an IP address is do you figure will make more sense to a
judge?


Finally: Legacy Registrations. Legacy registrations are not hampered
by an ARIN contract - they don't have one. This means a legacy
registrant would not have to overcome anything written in the RSA.
Should a judge first determine that someone's legacy addresses are
intangible property, it becomes a much harder to determine that the
rest of the IP addresses aren't.


>  It additionally says that the holder may not
> attempt to obtain or assert any rights over the number resources, so by
> going to court and asserting such, you would be in breach of the RSA.

I've seen less enforceable provisions that RSA 7c. Short version: this
line is pure intimidation. Expect it to have no force in law
whatsoever. In contractual terms, it would be "severed" for being
"contrary to public policy" because it "seeks to interfere with the
administration of justice." In fact, expect ARIN to be sanctioned if
they make a serious attempt to push it.

Besides, does it not strike you as odd that a registrant would need to
be prohibited from seeking property rights if addresses are clearly
not property? It all but stipulates that ARIN understands addresses as
property to be in open dispute, not the long-settled matter they'd
like to present to the judge.

ARIN counsel knows this, of course, and will never go beyond rattling sabers.

Regards,
Bill Herrin


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