[arin-ppml] 2015-2

[Owen DeLong]

> On Jun 4, 2015, at 11:41 PM, Matthew Kaufman <matthew at matthew.at> wrote:
> 
> On 6/4/2015 9:31 AM, John Curran wrote:
>> 
>> Matthew - 
>> 
>> Bingo!  What exactly was transferred by that contract,
> 
> The exclusive right to use those addresses on the global Internet.

Please explain the origin of this right and the chain of custody for that right from the origin to the resource holder.

Further, please explain your definition of “the global internet” as there are many possible definitions and no such precise definition exists as yet in policy, the ARIN RSA, or any RFC or other internet document I have been able to find. There are many possible definitions, some more inclusive than others and depending on the scope you ascribe to this definition, it may or may not impinge several existing cases of overlapping address usage that have continued for many years.

>> and how did the original party have the
>> “rights” that they claimed to sell to Mike?  
> 
> Depends on how the original party obtained the address allocation. Might be legacy, might be from ARIN, might be from another source.

I don’t think this answers the question. If you feel that there are different rights cases, please explain each of them as requested above. The origin of that right in question (who is the initial creator and by what process were they able to have such control, the mechanism by which they granted the rights, and at least the general cases of the chain of custody of those rights).

I would argue that there is no entity which can truly be defined to be “the global internet”. Further, the right to put numbers into a router belongs exclusively to the administrative owner of said router. The right to accept or decline the announcement of numbers from a neighboring router likewise belongs solely to the administrative owner of said router. “The global internet” as a body to which exclusive rights can be conveyed is a convenient fiction which can be generally accepted until one subjects it to any level of detailed analysis. “The global internet’ is, in reality, a term bandied about for convenience to describe a multitude of different ideas all of which roughly resemble some level of widely connected independently operated networks each of which is under the exclusive control of their respective operators and not subject to any control by the IETF, RIRs, IAB, ICANN, IANA, or any other organization other than to the extent voluntarily agreed to in agreements signed with those organizations.

As such, if $PEERA and $PEERB want to use numbers issued to you by an RIR on their network and refuse to peer with your network or accept any announcements of your autonomous system to their network, they are free to do so. If their customers complain, so be it. They are free to become customers of a different provider.

Are you really making the argument that you can force $PEERA and $PEERB to peer with you and accept your route(s) or somehow compel them to accept your routes via other means?

If not, even though they are “on the global internet”, and are using “your addresses” in violation of your “exclusive right to use”, it’s hard to see what sort of claim you could make absent that use creating some form of conflict for your users. You might be able to argue the inability of their customers to reach your users, but even if they stopped using your addresses, that situation would persist, so I’m not sure how that argument holds absent the ability to also compel them to make your network reachable through peering or some other mechanism.

> 
>> If it’s rights in the registry, we know those only transfer
>> per the policies of the community.
> 
> We know that the right to be listed in the registry only transfers per the policy, but maybe that's not the most important right (see below)

It may not be the most important right, but so far, it’s the only one which clearly exists.

>>  If it’s something else, where do those rights originate and 
>> what exactly are the rights being sold?
>> 
>> We’ve got many transfers of address blocks being done where the contract says “transfer of 
>> the rights to use and be associated with the IP address entry in the Internet number registry”
>> For such transfers, the original party can show the RSA or LRSA as proof that they have the
>> rights to which they speak, or can point to the Whois and ask ARIN (as the registry admin) to 
>> confirm such if they do not happen to have an L/RSA.  In such cases, the recipient receives 
>> the same rights.   All of this is fairly clear, and makes a lot of sense to judges (at least from 
>> my decade or so dealing with it.)
> 
> Makes sense.
> 
> And yet those transfer contracts are almost certainly *still legally binding contracts on the seller and buyer* even if after you do your thing, you decide not to change the registration (say, because you decide the need test isn't met). If the contract calls for reversion in that case, then great. If it doesn't, then the legal contract still holds.

Sure, but they aren’t binding on the RIR or any other third party. Nobody else has to accept advertisement of those prefixes from either the buyer or the seller. Nobody else has to forward any traffic to either of them. There’s nothing that compels the rest of the internet to in any way respect that contract or even the original registry.

> This is no different than what happens if I sell my house to you, and sign the bill of sale after you give me the money, and then you decide that you'd rather not take that down to the county recorder's office. Who owns the house? You. Who has the right you occupy the house? You. Who is taking some additional risk by having an unrecorded transfer of title? You again (and me, a little, to the extent the tax collector uses those records to bill me). But it is most certainly not the case that a failure to record a sale means "that it didn't happen". When you say that "a transfer didn't happen because it wasn't recorded in the ARIN database", that is what it sounds like you're saying, and where I think you're wrong.

There’s a huge difference. Your house is well documented real estate. There are a number of statutes and regulations around its sale which have the full force of law and the government behind them. The registrar of the transfer in that case is an agency of the government, not an NGO. Further, the transfer of your house doesn’t require recognition by anyone else that the address now belongs to the other party.

You cannot likely win a lawsuit against $RANDOM_PERSON who has no business relationship to you because they continue to attempt to reach you at the address of the house you sold. Further, the recipient of such mail is also unlikely to have a case unless it rises to the level of harassment. If someone else puts that address into a web form at random because they needed an address and they happened to make that one up, there’s also no violation of any exclusive right in question.

Further, the government can move the address from that house to a different house at any time it chooses and the house will have a new address. The rights to the address are not transferred in the sale of a house, merely the rights to the real property.

If you sell your network, nobody is questioning that. OTOH, if you sell the address to your house without selling the house, I’m betting that wouldn’t be allowed or recorded by the registrar.

So even in the case you bring up, your transfer of part of the assets in violation of the regulations set by the community (in this case, the government) is not accepted.

>> In the alternative formulation, someone sold Mike (as you put it) the "the right to use those
>> integers as addresses on the global Internet”…  
> 
> Might be what the contract said, might be what you said. Not sure.
> 
> But certainly someone could, if they had a unique address assignment, sell him the right to use those uniquely-assigned integers (and the seller would be losing whatever rights they had sold)

Sure, but all the third parties in the world that aren’t party to that transaction remain free to do whatever they like in terms of putting numbers on the equipment that they own and operate on their own networks. If those networks happen to be part of whatever concept you think is defined by the words “the global internet”, then either they are somehow violating your right and you have a cause of action (which I doubt exists if they don’t interfere with your use of the addresses outside of their network to such an extent that it rises to tortious interference), or there is no such right in the first place.

>> It is not at all clear how someone ever 
>> obtained that right so that it could be sold, or even how that right is enforceable since “the 
>> global Internet” would imply the entities that operate the global routing table.   
> 
> Maybe that would be poor wording. But Mike could still keep the seller from asserting whatever rights they had sold to Mike.

Let’s talk about what Mike could keep others from doing because that’s the essence of any sort of “exclusive right to use”. In this case, I find it hard to believe that the seller had “an exclusive right to use” in the first place, so arguing about the nature of that right after the transfer ignores the core question of whether said right existed in order to be transferred.

>> Do you believe that ARIN issues " "the right to use those integers as addresses on the global
>> Internet” with our IPv4 and IPv6 blocks that we assign out today? 
> 
> No. I believe that ARIN provides some assurance of uniqueness and a convenient centralized place for registration records.

But that assurance of uniqueness is limited to the scope of the cooperating RIR system and those external agencies which choose to cooperate with said RIR system. Organizations which choose not to cooperate are free to do as they wish.

This has already happened to some extent in DNS with the alternate root businesses. Mostly, they are harmlessly ignored by the majority of the internet. I remember one of them serving as a level of comedic relief at one of the AfriNIC meetings I attended.

>> I know that legally we have no way of stating we are giving someone “the right to use those
>> integers as addresses on the global Internet” - at best, we can say that we provide them 
>> exclusive association and use in the Internet numbers registry system, including the right 
>> to transfer in accordance with policy.  
> 
> The right to "transfer the registration in your database" in accordance with policy. They have lots of other rights, and many are exercising them. Like the right to let someone else temporarily use them. And, I would argue (perhaps especially for addresses not encumbered by the RSA or LRSA) the right to actually "transfer" the rights to use them to another party *whether or not* ARIN policy is followed.

It’s not clear that these rights exist or need to exist. The right to use integers is, IMHO, a natural right. What is at issue here is the right to exclude others from using them in some particular way in some particular context. You are arguing that such a right somehow exists and is somehow related to the contents of the RIR database, but you have yet to make it clear how or why such a right exists or where it originates.

Absent the ability to exclude others from using integers, then transfers not recorded in the registry seem to lack substance in that everyone already has the right to use those numbers and really all that is being transferred is an agreement not to interfere with the second parties use of numbers registered to the first party.

>> (Mind you, we could actually say “the exclusive right to use in the global Internet routing table 
>> as maintained by ARIN’s registry users” but doing that would require that ARIN’s registry users
>> be obligated to only route blocks on behalf of the parties listed in the registry… does anyone 
>> really want this obligation with the Internet numbers registry system?
> 
> One could argue that the backers of the RPKI want exactly this. The legal challenges should be interesting.

Nothing in RPKI establishes the RIRs or ICANN as the only possible trust anchor and the choice of anchors which you trust on your network is entirely up to you.

> In this country, people can assert rights and sue pretty much whenever they want, and have those enforced (or not) in court. Whether or not laws are passed or more policies are created.

Sure, but absent anything on which to base such a claim, the courts will usually dismiss the case with prejudice. So, I ask again, what is your basis for such a claim of a right to “exclusive use” on “the global internet”.

Owen