[arin-ppml] On USG 'granting of rights'
MLindsey at avenue4llc.com
Thu Jun 4 17:48:49 EDT 2015
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).
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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<mailto: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
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