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

[Mike Burns]

Appropos to this turn of the discussion:

I have heard from a lawyer that the ARIN RSA would have difficulty being enforced as a contract due to issues related to ARIN's Virginia non-profit status and also due to the fact that one side of the contract reserves the unilateral rights to change the contract. That's not like any contract I'm familiar with. One side is bound to contract terms and the other is bound to ....nothing. Seems like nearly coercive power is required to get a contract like that. 

Take it for what it's worth, I am not a lawyer myself, but there are some other issues with the legal standing of the RSA and pace Mr. Curran I don't believe ARIN is anxious to try things in court.

After all, the RSA allowed for revokation for lack of utilization for years. Can anybody show me where ARIN utilized this RSA power in court?

Regards,
Mike



----- Original Message ----- 
From: "Mike Winters" <mwinters at edwardrose.com>
To: <arin-ppml at arin.net>
Sent: Wednesday, June 03, 2015 5:19 PM
Subject: Re: [arin-ppml] On USG 'granting of rights' (was: ARIN-PPML 2015-2)


> It has been interesting.  Trying at times, but interesting.
> 
>>-----Original Message-----
>>From: William Herrin [mailto:bill at herrin.us] 
>>Sent: Wednesday, June 03, 2015 4:15 PM
>>To: Mike Winters
>>Cc: arin-ppml at arin.net List
>>Subject: Re: [arin-ppml] On USG 'granting of rights' (was: ARIN-PPML 2015-2)
> 
>>> 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?
> 
> Again, this is just an interesting possibility.
> Demonstrable reason:  I have been using the addresses for 10 years and now ARIN gives them to someone else causing my business to stop working unexpectedly.
> Registration or Deed/Title, it is well established that if someone uses your property for long enough, for example they park a truck on it daily  or move into a house with or without the owner's permission, they can claim it is theirs and they will usually win.  
> 
> 
>>> 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.
> 
> 
> Actually, the LRSA has a similar paragraph (8) that says basically the same thing.
> 
> Also, ARIN does not say they are not property, only that they are not the property of the holder.
> 
> If it was determined that they were property, that paragraph would mean that ARIN would maintain ownership, not the holder or any other entity.
> It would then probably be determined that it is in the best interest of the public that ownership of the RN's should be maintained by ARIN so that they can effectively manage the assignments, recover address space, etc.  If ownership were to transfer,  then how would you handle (among other things) businesses that shut down but did not sell the resource?  That block could become unavailable forever - or at least until someone realized what they inherited.  While that would not be in the public interest, it could make for an interesting episode of "Antiques Roadshow".  Hey mom!  Look what I found in the attic!  :)
> 
> 
>>Regards,
>>Bill Herrin
> 
> Mike
> 
> 
> --
> William Herrin ................ herrin at dirtside.com  bill at herrin.us Owner, Dirtside Systems ......... Web: <http://www.dirtside.com/>
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