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

Seth Johnson seth.p.johnson at gmail.com
Thu Jun 4 17:42:45 EDT 2015

Even today, you don't find the term "intellectual property" in our
copyright statutes.  It's in a few footnotes to things that are named
that way.  But the law is just what it is: statutory exclusive rights.
In a tricky area, to be sure: how do we have exclusive rights in
original expression, but not facts and ideas?  But it always returns,
because the truth of it is ineffable.

The same applies in other areas of the law as well.

This is Enlightenment thought:

Declaring that all policy is best "privatized and deregulated" doesn't
make it so.  Maybe in many or perhaps even most areas, but have a clue
about where it's nonsense.  :-)


On Thu, Jun 4, 2015 at 5:33 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> Yeah, there's been no lack of "theory" since the 80's trying to
> concoct this bizarre notion of owning pure abstraction.
> The courts have long engaged specifically on the question of how to
> distinguish the non-ownability of information from the subject matter
> of information-related areas in which rights are accorded and
> recognized.  It's just basic post-Enlightenment thought and law.  Some
> are "propertarian" and try hard to make the law work that way.  But
> you can't eliminate the most basic foundations of our civil order
> (often manifest in common law reasoning) just by wishing them away --
> thankfully.  The legacy of law doesn't disappear, even after 30-odd
> years of broad-reaching efforts throughout our institutions to subvert
> it.  Especially in common law.  Judges there have to try to deal in
> reality.  If they try to act like you can own pure information, they
> rapidly run aground.  So, it just doesn't happen.  Perhaps the biggest
> institutional register of this more recent trend to attempt to apply
> radical privatization even to pure information has been the DC
> Circuit.  But it's running aground, too, at long last.  But it's been
> everywhere, and for quite some time.  I believe we're finally starting
> to see the plain light of reason return though.
> Seth
> On Thu, Jun 4, 2015 at 11:48 AM, John Curran <jcurran at arin.net> wrote:
>> 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
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