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

[Seth Johnson]

If it's copyright, the judge won't do that.  There's no such thing as
an "exclusive right to use" in copyright.

On Wed, Jun 3, 2015 at 1:15 PM, William Herrin <bill at herrin.us> wrote:
> 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/>
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