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

Seth Johnson seth.p.johnson at gmail.com
Thu Jun 4 18:47:31 EDT 2015

On Thu, Jun 4, 2015 at 5:42 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> 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.

. . . And, inconceivable! I might add.  :-)

My thesaurus says "ineluctible" is the word I need for what I was
trying to convey here.


> The same applies in other areas of the law as well.
> This is Enlightenment thought:
> http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html
> 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.  :-)
> Seth
> 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
>>> ARIN
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