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

[Seth Johnson]

I owe Marc an apology because his commentary was not actually weird in
the ways I thought based on reading this message colored by the part
of the thread I had read.  This is my own error, which I accept
responsibility for, resulting from a failure to track how he was
actually contributing, probably based on my surprise and mistaken
impression that the thread as a whole was discussing the idea of
owning pure information based on the common law (as Bill Herrin's
argumentation on "Documentary Intangible Property" tended more
toward).

(I will first make this comment and set it aside: I question federal
common law reasoning, both as a matter of principle [Federal common
law was held to be antithetical to the federal constitution by Madison
and others; and at least in theory/principle the period of federal
common law that started in 1842 with Swift v Tyson ended in 1938 with
Erie v Tompkins], and as a practical concern [I believe this period of
federal common law accounts for a lot of dubious precedent in areas
that should have been left to political channels — notably precedents
regarding the nature of the corporate form].  If federal common law is
cooking up private property rights in information, I’d first question
it on that basis.  Given that this is hardly a generally acknowledged
concern, I’ll set this point aside.  I don’t know whether Marc is
referring to state common law in the 9th Circuit or elsewhere, or
federal common law [perhaps of the 9th Circuit or elsewhere]; I’ll
just assume he's talking in terms of a general federal common law.)


Based on your previous comment (Marc), I see that you are not entering
an argument for a common law property right to pure information as
such, but you are in fact presenting principles of common law you hold
would convert IP addresses as a type of resource as used in the
registry from commons to private property.  You are not making a case
for a private property right in IP addresses as pure information, but
rather for IP addresses as a resource used in the particular context
of the registry and its uses.  You maintain that registrants can claim
a private property interest in their IP addresses as such a resource,
since they have an interest in deciding how their IP numbers will be
used on the Internet, and in using them exclusively, and can
substantiate their exclusivity through the registry as well as on the
basis of the value and scarcity of IPv4 numbers.

You are not making an argument for ownership of pure information
derived from common law, as I thought based on the part of the thread
I had read, giving the power to control its use beyond the context of
the registry and its uses.  And you are in fact at least indirectly
alluding to the kinds of harms that might result from losing
exclusivity in the use of the IP address as it functions on the
Internet -- not weirdly leaving it out as I said in this message.

I'm not sure what I would say beyond a general doubt that a judge
would easily take the kind of collaborative context in which the
registries are maintained, and in which numbers are understood as
arbitrary signifiers with less semantic significance than domain
names, and let it become a private propertied domain, based on those
principles.  Excludability seems to me to be affected by the arbitrary
nature of numeric addresses, and you seem to key the move to
exclusivity based on the value of scarce IPv4 addresses.  If they are
scarce, they don't seem distinctive as domain names are.  And I am
dubious of how correct or well-applied your claim actually is, that
the common law would accord control and access or exclusivity to
registrants in line with a private property conclusion, on the basis
of scarcity and value in the way you suggest.


Seth


On Thu, Jun 4, 2015 at 6:48 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> Apparently for you, the principal reason to "consider the issue more
> closely from a policy perspective" is to try to present a theory of
> property in information (and to do so here, in this venue, at this
> time for whatever reason).  If you were really pursuing a reasonable
> line of reasoning and presentation, you'd at least offer a variety of
> theories, relating the claim of harm to areas one can hang one's hat
> on better, maybe theories about how one can reasonably expect to be
> treated in terms of expected practices.  Trying to make out a claim
> that one owns pure information without talking about other ways one
> could ground a try-able charge (and save court costs in attempting a
> case that's easily identified as tendentious) is just weird.  Have a
> proper discussion of the harms involved and how they could be tried in
> some more grounded ways, if you're really concerned about "risks."  Or
> if you're left with a simply claim of property in pure information by
> some process of elimination, tell us how you get there, how any other
> approach fails.  Otherwise you're just looking strange to me.
>
>
> Seth
>
> On Thu, Jun 4, 2015 at 5:48 PM, Marc Lindsey <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).
>>
>>
>>
>> With respect to the property question, under your scenario (with trial plus
>> appeal), winning such a case would be long and expensive for the harmed
>> party.  And only worth doing if a less expensive and reasonable resolution
>> were not otherwise available.  Until very recently, ARIN could avoid any
>> material harm caused by wrongfully dispossessing a registrant of its numbers
>> by just issuing the affected entity additional numbers.   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.
>>
>>
>>
>> But this isn’t the principle reason to consider the issue more closely from
>> a policy perspective.   ARIN could easily mitigate its risk.  And in the
>> post-exhaustion / transfer market context, whatever risk there is for ARIN
>> in operating under a property regime is outweighed by the benefits to IPv4
>> registrants.  With legally recognized property rights, current registrants
>> and transfer recipients will have well established legal remedies to enforce
>> the uniqueness of their address space and, for transferees, to protect their
>> purchases.
>>
>>
>>
>> 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).
>>
>>
>>
>> Marc Lindsey
>> Avenue4 LLC
>> 2001 L Street, N.W.
>> Suite 900
>> Washington, D.C. 20036
>> Direct: (202) 741-9521
>>
>> Mobile: (202) 491-3230
>>
>> www.Avenue4LLC.com
>>
>>
>>
>>
>> From: John Curran [mailto:jcurran at arin.net]
>> Sent: Thursday, June 04, 2015 11:48 AM
>> To: Marc Lindsey
>> Cc: arin-ppml at arin.net
>> Subject: Re: [arin-ppml] On USG 'granting of rights'
>>
>>
>>
>> On Jun 4, 2015, at 11:12 AM, Marc Lindsey <MLindsey at avenue4llc.com> wrote:
>>
>>
>>
>> A court asked to decide on the property status of IPv4 numbers would, by
>> operation of judicial precedents, apply this property law test because it is
>> readily extendable to IPv4 numbers.  We  would also expect that, applying
>> this test, the court would reach the same conclusion the Ninth Circuit did
>> with respect to domain names: (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; and (3) like domain names, registrants are
>> reflected in an authorized Internet registry, which "informs others that the
>> [IPv4 number] is the registrant's and no one else's."  IPv4 numbers, like
>> domain names, are now considered a valuable asset, and like domain names,
>> they possess all of the requisite ingredients of private property.
>>
>>
>>
>> If your supposition is correct, then it should be a trivial matter for any
>> party
>>
>> which feels their alleged “property rights” have been abridged to seek legal
>>
>> relief, so as to obtain an order directing ARIN to update the registry
>> contrary
>>
>> to policy.   This has not occurred to date - instead, we have a string of
>> results
>>
>> which have ARIN updating the registry in compliance with its community
>> policy.
>>
>>
>>
>> The Kremen v. Cohen case also sheds some light on why ARIN firmly (and
>> rationally) advocates the position that IP addresses are not property. The
>> Kremen court found that the domain name registry at the time, Network
>> Solutions, could be held liable for wrongfully converting another's property
>> where it failed to observe an appropriate duty of care in maintaining and
>> updating its registry records.
>>
>>
>>
>> Actually, my principle concern is that the community currently maintains an
>>
>> expectation regarding the application of registry policies in processing of
>>
>> transfers, and this would be become difficult under a “IP property address”
>>
>> regime.   Additionally, it is unclear if any party has the authority to
>> recognize
>>
>> the transfers of US Government property or whether we at the registry are
>>
>> supposed to be simply recording the present party to whom these have been
>>
>> issued.
>>
>>
>>
>> Thanks,
>>
>> /John
>>
>>
>>
>> John Curran
>>
>> President and CEO
>>
>> ARIN
>>
>>
>>
>>
>>
>>
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