[arin-ppml] 2015-2

Rudolph Daniel rudi.daniel at gmail.com
Wed Jun 3 17:11:02 EDT 2015


>>>It seems there are these legal rights that exist outside the ARIN
registry system, in particular legacy legal rights which remain untested in
court.<<<

John>>>>If that?s the case, then excellent - I look forward to seeing these
promptly
adjudicated as a result of a party making an appropriate claim to that
end.<<<<

I am really thankful for this discussion thread, as it revisits Microsoft
and Nortel and legacy (rights)(?)

It only occurs to me now that it may well be in the interest of the
community that a legacy allocation party (not Arin) make such a claim in
court :) to legal rights.
RD
On Jun 3, 2015 4:19 PM, <arin-ppml-request at arin.net> wrote:

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> Today's Topics:
>
>    1. Re: On USG 'granting of rights' (was: ARIN-PPML 2015-2)
>       (William Herrin)
>    2. Re: On USG 'granting of rights' (was: ARIN-PPML 2015-2)
>       (Mike Burns)
>    3. Re: On USG 'granting of rights' (was: ARIN-PPML 2015-2)
>       (John Curran)
>    4. Re: On USG 'granting of rights' (was: ARIN-PPML 2015-2)
>       (William Herrin)
>    5. Re: On USG 'granting of rights' (was: ARIN-PPML 2015-2)
>       (John Curran)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Wed, 3 Jun 2015 15:44:37 -0400
> From: William Herrin <bill at herrin.us>
> To: Mike Burns <mike at iptrading.com>
> Cc: "arin-ppml at arin.net" <arin-ppml at arin.net>
> Subject: Re: [arin-ppml] On USG 'granting of rights' (was: ARIN-PPML
>         2015-2)
> Message-ID:
>         <CAP-guGWWo=
> Suh8KPb4+YXkN9OiECsYKhW9g70uCpOrY2-AhC+w at mail.gmail.com>
> Content-Type: text/plain; charset=UTF-8
>
> On Wed, Jun 3, 2015 at 3:02 PM, Mike Burns <mike at iptrading.com> wrote:
> > You could have made a motion for standing with the judge and argued that
> > Nortel did not have the right to transfer without your approval, and in
> that
> > case you may have had the decision you say you want. Instead you
> negotiated
> > with Microsoft to accept changes to the proposed sale agreement which
> > provide the fig leaf of cover for ARIN to claim that this was an
> in-policy
> > transfer.
>
> Exactly.
>
> Regards,
> Bill Herrin
>
>
>
> --
> William Herrin ................ herrin at dirtside.com  bill at herrin.us
> Owner, Dirtside Systems ......... Web: <http://www.dirtside.com/>
>
>
> ------------------------------
>
> Message: 2
> Date: Wed, 3 Jun 2015 16:05:02 -0400
> From: "Mike Burns" <mike at iptrading.com>
> To: "'John Curran'" <jcurran at arin.net>
> Cc: arin-ppml at arin.net
> Subject: Re: [arin-ppml] On USG 'granting of rights' (was: ARIN-PPML
>         2015-2)
> Message-ID: <011201d09e38$93a1b530$bae51f90$@iptrading.com>
> Content-Type: text/plain;       charset="utf-8"
>
> Hi John,
>
> The point remains. You could have argued that no transfer could happen
> without ARIN approval.
> But you didn't, instead you had negotiated language added to the sales
> order which was legally passive and basically dealt with buyer recitals.
> Why would Nortel object? They got their money.
> Why would Microsoft object? They got their addresses.
>
> But why would ARIN twist itself in knots instead of staking their legal
> claim at that point?
>
> Still no word on the queer justification coincidence? Remember that the
> addresses were still in use by Nortel at the time of sale and 198,000 of
> them wouldn't be available until various times in the future, not to go
> past January 31st, 2012?
>
> How can you stand by that justification, especially since Microsoft didn't
> even advertise the majority of the purchased addresses for a year
> afterwards?
>
> This is what we mean by evidence that ARIN does not truly seek a legal
> precedent be set on this matter.
>
> And this begs the question of your assertion that ARIN "provides" the
> rights to the address blocks in your conversation with David Conrad.
> If that were the case, why does ARIN kowtow to legal requirements (a la
> the L/RSA for Microsoft and other changes you make to comport with
> bankruptcy requirements) instead of telling the judge to stuff it because
> ARIN policy defines address holder rights and registry will only be changed
> by policy?
>
> It seems there are these legal rights that exist outside the ARIN registry
> system, in particular legacy legal rights which remain untested in court.
>
> Regards,
> Mike
>
> -----Original Message-----
> From: John Curran [mailto:jcurran at arin.net]
> Sent: Wednesday, June 03, 2015 3:34 PM
> To: Mike Burns
> Cc: arin-ppml at arin.net
> Subject: Re: [arin-ppml] On USG 'granting of rights' (was: ARIN-PPML
> 2015-2)
>
> On Jun 3, 2015, at 3:02 PM, Mike Burns <mike at iptrading.com> wrote:
> > My recollection is not off and my statement stands. The judge, after
> > consulting with counsel for Nortel on the issue, issued a motion for
> > the auction to commence in which he found that Nortel had the
> > exclusive right to transfer the addresses.  Otherwise he couldn't
> > really sell them in bankruptcy court.
>
> ARIN wouldn?t argue that Nortel as "the party with the exclusive right to
> sell the addresses"; in fact, that right is specifically provided for all
> address holders
> in the L/RSA agreements.   The filing in the matter for the auction did
> not inform
> the judge of the nature of the registry system, nor did it seek an order
> to sell the
> addresses, only permission to hold an auction.   It was only when they
> filed to
> actually complete the sale that ARIN was notified.
>
> > There was nothing about ARIN in that motion, the only language
> > involving ARIN came after you were finally notified of the auction and
> > had 30 days to negotiate with Microsoft.
>
> On this we agree - ARIN was not notified in advance, or the original
> auction order would have been much clearer.  We have dealt with many
> bankruptcy matters since that time and are seeing appropriate language now
> being used.
> Upon engaging with Microsoft and Nortel, their revised order and amended
> sale agreement were similarly corrected.
>
> To the original point, we have continuously filed to insure that
> bankruptcy sales are handled in compliance with policy, and that means not
> allowing transfers contrary to policy - we achieved that outcome in
> Microsoft/Nortel.
>
> I will also note that in Nortel's original filing, Nortel made a claim of
> a "property interest? (not just rights of use) as well as a claim that
> legacy numbers are not subject to ARIN's transfer restrictions.  Both of
> these were claims were removed from the revised filings by Nortel; feel
> free to ask them if you wish to why they chose not to attempt pursuing
> these claims.
>
> Thanks!
> /John
>
> John Curran
> President and CEO
> ARIN
>
>
>
>
>
>
>
> ------------------------------
>
> Message: 3
> Date: Wed, 3 Jun 2015 20:05:08 +0000
> From: John Curran <jcurran at arin.net>
> To: BIll Herrin <bill at herrin.us>
> Cc: "arin-ppml at arin.net" <arin-ppml at arin.net>
> Subject: Re: [arin-ppml] On USG 'granting of rights' (was: ARIN-PPML
>         2015-2)
> Message-ID: <55A41FED-BCEC-4ADC-9CFB-29207FC781E5 at arin.net>
> Content-Type: text/plain; charset="utf-8"
>
> On Jun 3, 2015, at 3:44 PM, William Herrin <bill at herrin.us> wrote:
> >
> > On Wed, Jun 3, 2015 at 3:02 PM, Mike Burns <mike at iptrading.com> wrote:
> >> You could have made a motion for standing with the judge and argued that
> >> Nortel did not have the right to transfer without your approval, and in
> that
> >> case you may have had the decision you say you want. Instead you
> negotiated
> >> with Microsoft to accept changes to the proposed sale agreement which
> >> provide the fig leaf of cover for ARIN to claim that this was an
> in-policy
> >> transfer.
> >
> > Exactly.
>
> That?s not for ARIN to do - it would have been for Nortel to continue to
> hold to their
> original claims of "property interest? and that legacy numbers are not
> subject to ARIN?s
> transfer restrictions.  Given that they had significant additional address
> holdings that
> were to become part of bankruptcy proceedings to follow, there was every
> incentive for
> them to pursue such claims, if indeed they felt their arguments had
> sufficient merit.
> (I do not believe that they were subscribed to PPML, perhaps the
> additional legal
> insights would have made the difference?)
>
> Thanks,
> /John
>
> John Curran
> President and CEO
> ARIN
>
>
>
>
>
>
>
> ------------------------------
>
> Message: 4
> Date: Wed, 3 Jun 2015 16:14:41 -0400
> From: William Herrin <bill at herrin.us>
> To: Mike Winters <mwinters at edwardrose.com>
> Cc: "arin-ppml at arin.net List" <arin-ppml at arin.net>
> Subject: Re: [arin-ppml] On USG 'granting of rights' (was: ARIN-PPML
>         2015-2)
> Message-ID:
>         <CAP-guGWr6_wtt6Tzf=
> fHG0kGP9S1UnrkpFgfTpJEC51mumocdQ at mail.gmail.com>
> Content-Type: text/plain; charset=UTF-8
>
> 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/>
>
>
> ------------------------------
>
> Message: 5
> Date: Wed, 3 Jun 2015 20:18:18 +0000
> From: John Curran <jcurran at arin.net>
> To: Mike Burns <mike at iptrading.com>
> Cc: "arin-ppml at arin.net" <arin-ppml at arin.net>
> Subject: Re: [arin-ppml] On USG 'granting of rights' (was: ARIN-PPML
>         2015-2)
> Message-ID: <3909AAFF-973D-41AB-9D3A-82422676903E at arin.net>
> Content-Type: text/plain; charset="utf-8"
>
> On Jun 3, 2015, at 4:05 PM, Mike Burns <mike at iptrading.com> wrote:
> >
> > Hi John,
> >
> > The point remains. You could have argued that no transfer could happen
> without ARIN approval.
>
> We argued exactly that, and the language to the contrary was removed by
> the parties.
>
> An address block is transferred when the registry entry is updated; if
> there is a
> party that wants ARIN to update the entry contrary to policy, then the
> party that
> alleges this ?right? must make that argument in court to obtain an order
> to that
> effect.
>
> > Why would Nortel object? They got their money.
>
> See answer to Mr. Herrin earlier regarding significant motivation due to
> future
> address blocks to be transferred.
>
> > It seems there are these legal rights that exist outside the ARIN
> registry system, in particular legacy legal rights which remain untested in
> court.
>
> If that?s the case, then excellent - I look forward to seeing these
> promptly
> adjudicated as a result of a party making an appropriate claim to that end.
>
> Thanks!
> /John
>
> John Curran
> President and CEO
> ARIN
>
>
>
>
> ------------------------------
>
> _______________________________________________
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>
> End of ARIN-PPML Digest, Vol 120, Issue 20
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