<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
<HTML><HEAD>
<META content="text/html; charset=utf-8" http-equiv=Content-Type>
<META name=GENERATOR content="MSHTML 8.00.6001.23644">
<STYLE></STYLE>
</HEAD>
<BODY>
<DIV><FONT size=2 face=Arial>Appropos to this turn of the
discussion:</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>I have heard from a lawyer that the ARIN RSA would
have difficulty being enforced as a contract due to issues related to ARIN's
Virginia non-profit status and also due to the fact that one side of the
contract reserves the unilateral rights to change the contract. That's not like
any contract I'm familiar with. One side is bound to contract terms and the
other is bound to ....nothing. Seems like nearly coercive power is required
to get a contract like that. </FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>Take it for what it's worth, I am not a lawyer
myself, but there are some other issues with the legal standing of the RSA
and <EM>pace</EM> Mr. Curran I don't believe ARIN is anxious to try things in
court.</FONT></DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>After all, the RSA allowed for revokation for lack
of utilization for years. Can anybody show me where ARIN utilized this RSA power
in court?</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></FONT> </DIV>
<DIV><FONT size=2 face=Arial></FONT> </DIV>
<DIV><FONT size=2 face=Arial>----- Original Message ----- </FONT>
<DIV><FONT size=2 face=Arial>From: "Mike Winters" <</FONT><A
href="mailto:mwinters@edwardrose.com"><FONT size=2
face=Arial>mwinters@edwardrose.com</FONT></A><FONT size=2
face=Arial>></FONT></DIV>
<DIV><FONT size=2 face=Arial>To: <</FONT><A
href="mailto:arin-ppml@arin.net"><FONT size=2
face=Arial>arin-ppml@arin.net</FONT></A><FONT size=2
face=Arial>></FONT></DIV>
<DIV><FONT size=2 face=Arial>Sent: Wednesday, June 03, 2015 5:19 PM</FONT></DIV>
<DIV><FONT size=2 face=Arial>Subject: Re: [arin-ppml] On USG 'granting of
rights' (was: ARIN-PPML 2015-2)</FONT></DIV></DIV>
<DIV><FONT face=Arial><BR><FONT size=2></FONT></FONT></DIV><FONT size=2
face=Arial>> It has been interesting. Trying at times, but
interesting.<BR>> <BR>>>-----Original Message-----<BR>>>From:
William Herrin [mailto:bill@herrin.us] <BR>>>Sent: Wednesday, June 03,
2015 4:15 PM<BR>>>To: Mike Winters<BR>>>Cc: </FONT><A
href="mailto:arin-ppml@arin.net"><FONT size=2
face=Arial>arin-ppml@arin.net</FONT></A><FONT size=2 face=Arial>
List<BR>>>Subject: Re: [arin-ppml] On USG 'granting of rights' (was:
ARIN-PPML 2015-2)<BR>> <BR>>>> So if someone is using addresses that
are unassigned or assigned by <BR>>>> ARIN (but not used) then the
unregistered party would own them. Which <BR>>>> means ARIN and
the “registered user” would be the ones subject to a <BR>>>> tortious
interference claim.<BR>>><BR>>>There's an argument to be made there,
at least with respect to the bogons (use of unassigned addresses). With
never-registered addresses I'm not sure how you'd establish that your use was
more legitimate than >anyone else's. It's not tortious interference for me to
camp in an open spot in a national park that you promised to your clients. Not
my fault that you made a baseless promise. You'd have to express some
>demonstrable reason that you expected to have consistent exclusive use of
the address block. If not registration then what?<BR>> <BR>> Again, this
is just an interesting possibility.<BR>> Demonstrable reason: I have
been using the addresses for 10 years and now ARIN gives them to someone else
causing my business to stop working unexpectedly.<BR>> Registration or
Deed/Title, it is well established that if someone uses your property for long
enough, for example they park a truck on it daily or move into a house
with or without the owner's permission, they can claim it is theirs and they
will usually win. <BR>> <BR>> <BR>>>> Also, your “natural
conclusion” has a major problem, you would have to <BR>>>> completely
overlook paragraph 7 of the RSA which clearly states that <BR>>>> there
are no property rights.<BR>>><BR>>>Very true. I suspect this is the
most significant hurdle the registrant would have to
overcome.<BR>>><BR>>>The strongest point in the registrant's favor
is this: standing in a courtroom, it's not enough for ARIN's council to say what
IP addresses aren't. They must, without appearing to the judge to be blithering
idiots, explain >what IP addresses in fact are and why anyone would pay such
sums as they do to obtain them if they are nothing more than integers in a
database.<BR>> <BR>>>The registrant's counsel need only respond that
ARIN's wacky and complicated explanation is, in fact, an elaborate lie meant to
conceal that IP addresses are exactly what they appear to be: an intangible
property >with trivially determined dollar value, bought and sold like any
other, and a critical component in the operation of a multi-billion dollar
industry. And oh-by-the-way, that was a contract of adhesion (courts hate
>contracts of adhesion) where ARIN had monopoly powers (courts disapprove of
monopolies too) to deny addresses if the registrant failed to feign
consent.<BR>> <BR>>>It's a civil case, so the standard is
"preponderance of the evidence."<BR>>>Paraphrased, that means: which
evidence is more convincing. ARIN presents the RSA, the MOAs and maybe an RFC or
two. Seats an expert or two to talk about the IETF, and so on. The registrant
objects to the >MOAs. Presents newspaper reports of sales, economic analyses
of the Internet industry and ARIN's fee schedule. Seats an expert or two to talk
about the linchpin role IP addresses play in the Internet business, >without
which the Internet is impossible. Which explanation of what an IP address is do
you figure will make more sense to a judge?<BR>> <BR>>
<BR>>>Finally: Legacy Registrations. Legacy registrations are not hampered
by an ARIN contract - they don't have one. This means a legacy registrant would
not have to overcome anything written in the RSA.<BR>>>Should a judge
first determine that someone's legacy addresses are intangible property, it
becomes a much harder to determine that the rest of the IP addresses
aren't.<BR>> <BR>> <BR>>>> It additionally says that the
holder may not attempt to obtain or <BR>>>> assert any rights over the
number resources, so by going to court and <BR>>>> asserting such, you
would be in breach of the RSA.<BR>> <BR>>>I've seen less enforceable
provisions that RSA 7c. Short version: this line is pure intimidation. Expect it
to have no force in law whatsoever. In contractual terms, it would be "severed"
for being "contrary to public >policy" because it "seeks to interfere with
the administration of justice." In fact, expect ARIN to be sanctioned if they
make a serious attempt to push it.<BR>> <BR>>>Besides, does it not
strike you as odd that a registrant would need to be prohibited from seeking
property rights if addresses are clearly not property? It all but stipulates
that ARIN understands addresses as property >to be in open dispute, not the
long-settled matter they'd like to present to the judge.<BR>>
<BR>>>ARIN counsel knows this, of course, and will never go beyond
rattling sabers.<BR>> <BR>> <BR>> Actually, the LRSA has a similar
paragraph (8) that says basically the same thing.<BR>> <BR>> Also, ARIN
does not say they are not property, only that they are not the property of the
holder.<BR>> <BR>> If it was determined that they were property, that
paragraph would mean that ARIN would maintain ownership, not the holder or any
other entity.<BR>> It would then probably be determined that it is in the
best interest of the public that ownership of the RN's should be maintained by
ARIN so that they can effectively manage the assignments, recover address space,
etc. If ownership were to transfer, then how would you handle (among
other things) businesses that shut down but did not sell the resource?
That block could become unavailable forever - or at least until someone realized
what they inherited. While that would not be in the public interest, it
could make for an interesting episode of "Antiques Roadshow". Hey
mom! Look what I found in the attic! :)<BR>> <BR>>
<BR>>>Regards,<BR>>>Bill Herrin<BR>> <BR>> Mike<BR>>
<BR>> <BR>> --<BR>> William Herrin ................ </FONT><A
href="mailto:herrin@dirtside.com"><FONT size=2
face=Arial>herrin@dirtside.com</FONT></A><FONT size=2 face=Arial>
</FONT><A href="mailto:bill@herrin.us"><FONT size=2
face=Arial>bill@herrin.us</FONT></A><FONT size=2 face=Arial> Owner, Dirtside
Systems ......... Web: <</FONT><A href="http://www.dirtside.com/"><FONT
size=2 face=Arial>http://www.dirtside.com/</FONT></A><FONT size=2
face=Arial>><BR>> _______________________________________________<BR>>
PPML<BR>> You are receiving this message because you are subscribed
to<BR>> the ARIN Public Policy Mailing List (</FONT><A
href="mailto:ARIN-PPML@arin.net"><FONT size=2
face=Arial>ARIN-PPML@arin.net</FONT></A><FONT size=2 face=Arial>).<BR>>
Unsubscribe or manage your mailing list subscription at:<BR>> </FONT><A
href="http://lists.arin.net/mailman/listinfo/arin-ppml"><FONT size=2
face=Arial>http://lists.arin.net/mailman/listinfo/arin-ppml</FONT></A><BR><FONT
size=2 face=Arial>> Please contact </FONT><A
href="mailto:info@arin.net"><FONT size=2
face=Arial>info@arin.net</FONT></A><FONT size=2 face=Arial> if you experience
any issues.</FONT></BODY></HTML>