<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
<HTML><HEAD>
<META content="text/html; charset=iso-8859-1" http-equiv=Content-Type>
<META name=GENERATOR content="MSHTML 8.00.6001.19046">
<STYLE></STYLE>
</HEAD>
<BODY
style="WORD-WRAP: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space"
bgColor=#ffffff>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>Hi Owen,</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>Forgive the topposting,but we are on the
merry-go-round again.</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>I am basing my interpretation of the law on the
words of the head of ARIN, which you seem to dismiss, even though he made those
statements under oath to a judge.</FONT></DIV>
<DIV><FONT size=2 face=Arial>And on my reading of the MS/Nortel deal, in which I
see an exclusive right to transfer, which plainly means ARIN cannot affect that
transfer right.</FONT></DIV>
<DIV><FONT size=2 face=Arial>Your interpretation has become hoary with age, it
was the same thing you were writing years ago.</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>You continue to believe that ARIN will charge into
the fray on its white horse and reclaim these legacy addresses.</FONT></DIV>
<DIV><FONT size=2 face=Arial>Why?</FONT></DIV>
<DIV><FONT size=2 face=Arial>When have they ever done this?</FONT></DIV>
<DIV><FONT size=2 face=Arial>I wouldn't be relying on section 12, it is poorly
written and does not give ARIN the right to review and revoke for utilization,
and ARIN policies do not apply to legacy holders who got their addresses before
ARIN came into existence. </FONT><FONT size=2 face=Arial>The real power lies in
section 8 of the RSA, which legacy holders for the most part have not signed,
and thus ARIN has no legal rights.</FONT></DIV>
<DIV><FONT size=2 face=Arial>Sure, they control Whois registration, and that is
what I have heard John Curran say.</FONT></DIV>
<DIV><FONT size=2 face=Arial>And sure, if you define a transfer as a WHois
update, then ARIN controls transfers.</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>But ARIN cannot legally stop a sale of legacy
addresses to another party, if you believe that, then just keep watching as that
continues to never happen, and as these legal transactions continue to the
detriment of WHois.</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>Neither you nor I am a lawyer, so it is fair
to discount our interpretations, but in the article I mentioned, a real lawyer
was quoted as agreeing with my interpretation.</FONT></DIV>
<DIV><FONT size=2 face=Arial>Do you have any lawyer who holds with your
interpretation?</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>Regards,</FONT></DIV>
<DIV><FONT size=2 face=Arial>Mike</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>PS THanks for the info on the prior discussion, I
will snoop around the archives for 2008 to see if anything there is
enlightening.</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<BLOCKQUOTE
style="BORDER-LEFT: #000000 2px solid; PADDING-LEFT: 5px; PADDING-RIGHT: 0px; MARGIN-LEFT: 5px; MARGIN-RIGHT: 0px">
<DIV style="FONT: 10pt arial">----- Original Message ----- </DIV>
<DIV
style="FONT: 10pt arial; BACKGROUND: #e4e4e4; font-color: black"><B>From:</B>
<A title=owen@delong.com href="mailto:owen@delong.com">Owen DeLong</A> </DIV>
<DIV style="FONT: 10pt arial"><B>To:</B> <A title=mike@nationwideinc.com
href="mailto:mike@nationwideinc.com">Mike Burns</A> </DIV>
<DIV style="FONT: 10pt arial"><B>Cc:</B> <A title=tvest@eyeconomics.com
href="mailto:tvest@eyeconomics.com">Tom Vest</A> ; <A title=cengel@conxeo.com
href="mailto:cengel@conxeo.com">Chris Engel</A> ; <A title=arin-ppml@arin.net
href="mailto:arin-ppml@arin.net">arin-ppml@arin.net</A> </DIV>
<DIV style="FONT: 10pt arial"><STRONG></STRONG><BR> </DIV>
<DIV>No, this is an incorrect understanding of the ruling. The Plzak
declaration is also</DIV>
<DIV>not the final word on the subject. The exclusive right to transfer means
that nobody</DIV>
<DIV>else has the right to transfer them. It does not mean that they can be
transfered</DIV>
<DIV>regardless of policy or that ARIN must recognize a transfer outside of
policy in the</DIV>
<DIV>ARIN database.</DIV>
<DIV> </DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV>Legacy addresses were issued to a particular party for a particular
purpose. Upon the end</DIV>
<DIV>of that purpose or that party, they should be returned and are no longer
legacy addresses.</DIV>
<DIV>In the case of a transfer to a successor in interest through acquisition
or merger, in some</DIV>
<DIV>cases, the legacy status has been preserved, but, this is rare. In most
cases, the receiving</DIV>
<DIV>organization has been required to sign an ARIN standard RSA.</DIV>
<DIV><BR></DIV>
<DIV>It works this way... Legacy status is the intersection of the holder and
the resources which</DIV>
<DIV>were registered together by a registry preceding the RIR system. Once
either of those</DIV>
<DIV>conditions ceases, the resources are no longer in legacy status (in most
cases).</DIV>
<DIV><BR></DIV>
<DIV>ARIN has an obligation to continue providing services to records with
legacy status so long</DIV>
<DIV>as that legacy status remains under the original terms of issue.</DIV>
<DIV><BR></DIV>
<DIV>ARIN has the right to reclaim addresses from defunct legacy
organizations.</DIV>
<DIV> </DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><BR></DIV>
<DIV>
<BLOCKQUOTE type="cite">
<DIV>Given this, legal legacy transfers can occur where the purchased amount
may not meet ARIN's need requirement.<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>Not true. At least not if they want to be recognized by ARIN
and have the transfer registered</DIV>
<DIV>in whois.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>If the buyer cannot meet the requirement, he will not register the
addresses, although I have argued he will likely want the addresses
registered to reflect his ownership of their rights.<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>The unregistered addresses become subject to reclamation since
they are no longer in</DIV>
<DIV>use by the original organization under the original terms of issue.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>But if there is no needs requirement, the disincentive is removed, the
registration takes place, and the buyer signs an RSA.<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>Ah, so you are once again confusing incentive with removal of
disincentive. I can see how, to a limited extent, this</DIV>
<DIV>might provide less of a disincentive for the recipient of a transfer from
a legacy holder to register the transfer, but,</DIV>
<DIV>I don't see how this is anything other than redundant to your point
1.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>My proposal also reduces the disincentive to sign the RSA, as it
removes the utilization requirement and frees the buyer to resell the
addresses to anybody, with or without need. (Unless that buyer already has
transferred a /12 equivalent).<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>Yes, by neutering the RSA, you have removed some disincentives
to sign it. However, I don't see neutering the RSA</DIV>
<DIV>as a net positive in that regard. The community put section 12 into
policy for a reason.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>So I believe the net effect of the proposal is to make the RSA more
attractive, and reduce the disincentive for registration of legacy transfers
which do not meet the needs test.<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>There is no such thing as a legacy transfer. There is a
transfer of resources from a legacy holder, but, absent an</DIV>
<DIV>awkward situation involving litigation these will almost always result in
the space being handled as non-legacy</DIV>
<DIV>if the transfer is recognized by ARIN.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV><BR>Remember, these are the intentions of the proposal, although I know
you disagree with my legal interpretation, and thus the
effect.<BR><BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>Yes... Your legal interpretation being contrary to statements
made by ARIN counsel and John Curran, I</DIV>
<DIV>am inclined to believe that it is not correct and therefore the effect of
your proposal differs from your</DIV>
<DIV>claimed effects.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV><BR>
<BLOCKQUOTE type="cite">3. Provides for explicit protections against
review audits for RSA holders after one year, bringing RSA rights more in
accord with LRSA rights.<BR></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">Uh, yeah, I don't see that as a good thing. Quite
the opposite. However, I do agree that it is an intended<BR></BLOCKQUOTE>
<BLOCKQUOTE type="cite">consequence of the proposal.<BR></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">4. Reduces transaction costs for
transferers<BR></BLOCKQUOTE></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">I believe it will actually increase
them.<BR></BLOCKQUOTE><BR>The intent of the proposal is that transactional
costs related to the needs analysis can be avoided. These may be large or
small. I suppose you mean the prices will be higher due to speculation,
though.<BR><BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>Yes, I believe that the net price of the transaction will
increase substantially. Further, the cost of</DIV>
<DIV>needs analysis is built into the ARIN transfer fee which I do not think
will change significantly</DIV>
<DIV>as a result of this proposal. So, no price reduction and likely price
increase. Doesn't look like</DIV>
<DIV>a savings to me.</DIV>
<DIV><BR></DIV>
<DIV>
<BLOCKQUOTE type="cite">
<DIV>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">5. Reduces ARIN costs for needs
analyses<BR></BLOCKQUOTE></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">Agreed, but, not necessarily something I see as a
beneficial aspect.<BR></BLOCKQUOTE><BR><BR>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">6. Aligns ARIN policy with most possible
interpretations of the legal rights of legacy
holders<BR></BLOCKQUOTE></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">No, aligns ARIN policy with one possible
interpretation of the legal rights of legacy holders.<BR></BLOCKQUOTE>
<BLOCKQUOTE type="cite">IMHO, not even the most probable
one.<BR></BLOCKQUOTE><BR>See "exclusive right to transfer" and the Plzak
declaration that ARIN has no authority over legacy addresses.<BR>Would it be
fair to say "Aligns ARIN policy with legal interpretation most friendly to
legacy holders?"<BR>My point being this alignment presents the lowest risk
toARIN of being sued for tortious interference in a
contract.<BR><BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>You have already been told multiple times that your
interpretation of the words "exclusive right to transfer"</DIV>
<DIV>is not correct. The Plzack declaration was substantially modified by
later rulings in the Kremen case.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">7. Imposes a yearly limit on needs-free
transactions intended to prevent
cornering.<BR></BLOCKQUOTE></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">Yes, but, this limit is effectively a no-op
because anyone can create multiple entities needed<BR></BLOCKQUOTE>
<BLOCKQUOTE type="cite">to accomplish enough /12 transfers to meet their
desires.<BR></BLOCKQUOTE><BR>I trust ARIN staff to detect these with the
same diligence applied to needs tests and section 12
reviews.<BR><BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>It doesn't matter. If they are different organizations, ARIN
can't claim that they aren't different organizations</DIV>
<DIV>for policy purpose just because it's clear that they were created for the
purpose of doing an end-run on</DIV>
<DIV>the policy. ARIN must interpret the policy as written, even if that
interpretation appears absurd, as in</DIV>
<DIV>the case of the single aggregate clause in the transfer policy.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>
<BLOCKQUOTE type="cite"><BR></BLOCKQUOTE>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">And likewise we have fairly addressed these
issues.<BR></BLOCKQUOTE></BLOCKQUOTE>
<BLOCKQUOTE type="cite"><BR></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">To some extent.<BR></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">Without considering (any more) the merits of
those prior discussions, I would like to invite the consideration of any
other potential benefits or consequences which we have not
discussed.<BR></BLOCKQUOTE></BLOCKQUOTE>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">I am cognizant that this is proposal is a
significant departure, and that the discussion of similar policy in
APNIC consumed several years.<BR></BLOCKQUOTE></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">As it did here prior to being rejected here and
accepted there.<BR></BLOCKQUOTE><BR>I didn't know there had also been prior
discussion here about this (or fairly similar) policy. Do you rember about
when so I can search the archives?<BR><BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>In the early stages of 2008-2, there was discussion of a
transfer policy without needs basis, at least among the AC before</DIV>
<DIV>we formulated 2008-2. I believe it was rejected by the community pretty
much out of hand fairly early in the discussion</DIV>
<DIV>either at open policy hours and/or at the public policy meetings, but, it
may have just been within the AC. After three</DIV>
<DIV>years and a whole lot of policy work, I have to admit my memory on
exactly when and where a given discussion took</DIV>
<DIV>place is somewhat fuzzy.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">I think we have covered pretty much all the
bases in our relatively short but active discussion period, but I agree
with Tom that we really should stretch our minds to consider all the
potential pitfalls.<BR></BLOCKQUOTE></BLOCKQUOTE>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">So did we miss anything, or is there anything
left to be said on the topics arrayed above? Any large loopholes or
gotchas? Risks or threats we haven't
considered?<BR></BLOCKQUOTE></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">One I think worth exploring is that given the
recent staff interpretation of the term RSA in policy,<BR></BLOCKQUOTE>
<BLOCKQUOTE type="cite">the requirement for RSA in the proposal may be
insufficiently specific to express community<BR></BLOCKQUOTE>
<BLOCKQUOTE type="cite">intent.<BR></BLOCKQUOTE><BR>I agree, though my
intention was that it was the RSA, not an LRSA, but the RSA modified by my
proposal.<BR><BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>Understood, but, staff has made it quite clear that they will
not interpret the policy as</DIV>
<DIV>written in that manner.</DIV>
<DIV><BR></DIV>
<DIV>Unfortunately, I am not sure that we can actually influence the choice of
RSA through policy.</DIV>
<DIV>I'm hoping that a public clarification of this issue will be forthcoming
soon.</DIV>
<DIV><BR></DIV>
<DIV>
<BLOCKQUOTE type="cite">
<DIV>
<BLOCKQUOTE type="cite">
<BLOCKQUOTE type="cite">Maybe the increased/decreased exposure of ARIN
to lawsuits?<BR></BLOCKQUOTE></BLOCKQUOTE><BR>
<BLOCKQUOTE type="cite">I think this would not significantly impact the
legal exposure. We are as likely to get sued<BR></BLOCKQUOTE>
<BLOCKQUOTE type="cite">by someone unable to obtain resources in the
market on the basis that we failed to properly<BR></BLOCKQUOTE>
<BLOCKQUOTE type="cite">regulate need in the market as we are to get sued
by someone opposed to our attempts<BR></BLOCKQUOTE>
<BLOCKQUOTE type="cite">to regulate need, IMHO.<BR></BLOCKQUOTE><BR>I can't
see any legal right to sue ARIN if the community decides to drop the needs
policy, but I am not a lawyer.<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>This is the united States. Anyone can sue anyone for just about
anything.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>I wonder if anybody has sued APNIC on that basis?<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>Entirely different legal system(s).</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>Maybe the ARIN legal staff can comment on that.<BR>But I can sure see
somebody suing ARIN if ARIN re-issues their address to another
allocant.<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>ARIN wouldn't do that. What ARIN might do is issue addresses
they have been hijacking to</DIV>
<DIV>another registrant, but, the point of policy is that it does not protect
hijackers from this. If you</DIV>
<DIV>want the protections of guaranteed uniqueness, you have to play by the
rules. If you do</DIV>
<DIV>an unregistered transfer, then, you aren't a registrant, you are a
squatter at best and a</DIV>
<DIV>hijacker at worst.</DIV>
<DIV><BR>
<BLOCKQUOTE type="cite">
<DIV>If ARIN's legal interpretation is that they can revoke legacy addresses
if they are not utilized, for example, that leads to their reissuance, and
legal trouble.<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>If they are still held by the original organization, generally
ARIN will not do this. If they are being used</DIV>
<DIV>by an unregistered organization for an unregistered purpose, ARIN will
probably first try to contact</DIV>
<DIV>the original organization to verify the intent. If a transfer was
intended, ARIN would probably first attempt to work</DIV>
<DIV>with that organization to see if an 8.2 or 8.3 transfer could be made to
fit the situation somehow. If they</DIV>
<DIV>cannot, or, the party using the addresses is unwilling to cooperate in
that process, then, I have no</DIV>
<DIV>problem with ARIN reclaiming the addresses and I think that is the
correct course of action.</DIV>
<DIV><BR></DIV>
<DIV>
<BLOCKQUOTE type="cite">
<DIV>If ARIN's legal interpretation is that legacy addresses are outside its
authority, that risk is minimalized.<BR></DIV></BLOCKQUOTE>
<DIV><BR></DIV>So long as they are held by the original legacy registrant or
their successor in interest, I believe ARIN</DIV>
<DIV>will continue to provide registration services to them. There is a
difference between not reclaiming them</DIV>
<DIV>and believing that they are outside of ARIN authority, however.</DIV>
<DIV>
<BLOCKQUOTE type="cite">
<DIV><FONT class=Apple-style-span color=#000000><BR></FONT></DIV></BLOCKQUOTE>
<DIV>
<DIV><FONT class=Apple-style-span color=#000000><BR></FONT></DIV></DIV>
<DIV><FONT class=Apple-style-span color=#000000>Owen</FONT></DIV>
<DIV><FONT class=Apple-style-span
color=#000000><BR></FONT></DIV></DIV><BR></BLOCKQUOTE></BODY></HTML>