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

[Seth Johnson]

On Wed, Jun 3, 2015 at 6:36 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> Never mind, you're not talking copyright.
>
> I would think the issue would be translated into some concrete aspect
> of the situation and what either formal or informal practices have
> been.  At best.  But I think abstraction as such gets a strong
> assumption it isn't "owned," in any body of law in the US unless some
> statutory basis has been created.  So it would be more what are the
> regular practices that can be discerned for the way these things are
> done with the information, not some exclusive right associated with
> the information as such.
>
> Information is free.  Unless there's a statutory basis otherwise.  And
> some harms are barred in use of information.  That's the way it works.
> (i.e., the situation is really not "information wants to be free" --
> it just is free, unless there's for instance, a copyright -- which we
> wouldn't have for a number.  Perhaps a trademark in a very unique
> situation, but I'd guess not even then.  This is really what the
> "third party" doctrine really means -- you give someone information,
> you really don't have control over it, because it's essentially
> published.  Unless you have an NDA.

Editing some pronouns for clarity:

Or unless, if the third party is a telecom, they're actually
recognized as performing a public function -- in which case,
fundamental right limits can apply against them as they would apply
against the government.  Smith v. Maryland was about the fact that
Verizon was regarded as a private party, not really about the fact
that the data in question was metadata.  It might well be decided
differently today, if Verizon is regarded as a public utility.)



>
>
> Seth
>
> On Wed, Jun 3, 2015 at 6:24 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
>> 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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