[arin-ppml] On USG 'granting of rights'

[John Curran]

On Jun 4, 2015, at 5:48 PM, Marc Lindsey <MLindsey at avenue4llc.com<mailto:MLindsey at avenue4llc.com>> wrote:

John,

The fact that there are no reported cases (yet) ordering ARIN to update its registry due to an abridgement of property rights isn’t evidence that the legal analysis is incorrect.  It’s never easy or trivial to prevail in litigation when strong interests sit in opposition -- even if the law clearly favors the harmed party.  Discovery tactics, procedural motions, and pre- and post-litigation settlements are all effective tools defendants use to keep disputed matters from going to trial (especially where the matter is of considerable interest and there is a risk of setting undesirable legal precedent).

Agreed.

… Now that the free pool is virtually depleted and IPv4 numbers have economic value, I anticipate that there will be more formal disputes involving ARIN and the issue of property rights with the increased probability of trial and appeal -- particularly where ARIN takes the position that it alone gets to pick the winner and loser in a dispute between parties making claim to the same resource.

I will note that ARIN’s stance with respect to disputed resources is to lock the records to preserve
status quo, and direct the parties to work out the dispute, including litigation if they so desire - ARIN
will support with factual information about the history of the disputed resources in the registry, but
our role ends there; i.e. it is incorrect to state that "ARIN takes the position that it alone gets to pick
the winner and loser in a dispute between parties making claim to the same resource."

...
Regarding your last point, finding property rights in IPv4 numbers does not require a genesis moment or an express grant by the USG.  Nothing in the common law makes these prerequisites.  Pre-existing (non-property) resources can evolve into property.  And property rights can vest in a current possessor/holder where the prior owner is unknown, or unwilling or unable to enforce its rights (e.g., adverse possession and abandonment).

Indeed, Marc, but that process will start with a precise definition of the interest… Either you will need
to define that as rights to the address block entry in the registry (rights beyond those stated by ARIN),
or you will need conjure some other rights in which the address holder has an interest, and state the
party with the corresponding obligation, in order to show that there is an impact to these interests
by the actions of the registry.

You postulate that “(1) IP number registrants have sole authority to decide how their numbers will be
used within the Internet; (2) registrants have the right and authority to use IPv4 numbers exclusively
for routing over the public Internet”, but in order to claim those as rights, then you’ll first need to show
that they are actually enforceable against some party other than the registry (as we do not control
“routing of the public Internet” )   I am not aware of any circumstance in which a service provider’s
routing has been ordered changed pursuant to enforcement of the “rights” you hypothesize above,
so you’ll definitely have your work cut out for you...

/John

John Curran
President and CEO
ARIN

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