Re: Lightly used IP addresses

[Brett Frankenberger <rbf+nanog () panix com>]

On Sun, Aug 15, 2010 at 11:44:18AM -0400, Owen DeLong wrote:
> You and Randy operate from the assumption that these less certain
> rights somehow exist at all. I believe them to be fictitious in
> nature and contrary to the intent of number stewardship all the way
> back to Postel's original notebook. Postel himself is on record
> stating that disused addresses should be returned.

A non-trivial number of people likely believe they have property rights
in their legacy address space (or, more precisely, in the entry in the
ARIN database that corresponds to their legacy address space) and that
those property rights are much more extensive than the rights they have
under the LRSA.

John points out that the LRSA gives legacy address holders a degree of
certainty that they don't otherwise have.  That's almost certainly
true; I doubt any legancy address holders are in possession of legal
advice to the effect of "you absolutely have property rights in that
allocation; there's absoutely no chance you'd lose should you attempt
to assert those rights in court".  (On the other hand, no one really
knows that ARIN has the authority to make the guarantees it's making
under the LRSA.  The LRSA only binds ARIN ... there's nothing to say
the us Government won't step in an and assert its own authority over
legacy space.  So, while the LRSA confers a degree of certainty, it
doesn't confer absolute certainty, or anything close to it.)

But John doesn't seem to want to acknowledge, at least directly, the
possibility that that thsoe property rights might be reasonably
believed by some to exist.  I suspect some entities are in possession
of legal advice to the effect of "you probably have property rights and
probably can do whatever you want with your space and probably get
court orders as needed to force ARIN to respond accordingly".  If one
has gotten such advice from one's lawyers, and one has discussed with
those lawyers just how probable "probably" is, it might well be that
signing the LRSA is legitimately perceived as giving up rights.

> > Because that's intended to be part of the price, Randy. In exchange
> > for gaining enforceable rights with respect to ARIN's provision of
> > services, you quit any claim to your legacy addresses as property,
>
> I would say you acknowledge the lack of such a claim in the first
> place rather than quit claim. Thus you are not giving up anything and
> the only actual price is $100 per year with very limited possible
> increases over future years.

The reality is that *no one knows* whether or not there are property
rights.  The difference between "quit claim any rights you have" and
"acknowledge you never had any rights" isn't really relevant.  Either
way, you go from having whatever property rights you originally had
(and no one knows for sure what those rights are) to probably not
having any such rights.

With either language, if you never had any such rights, you aren't
giving up anything.  If you did previously have such rights, you
probably are giving up something.  Whether the language is written
presupposing the existance of such rights, or presupposing the
non-existance of such rights, has no real effect.

OF course ARIN's position is that that clause merely clarifies a
situation that already exists.  But the fact that ARIN feels it needs
clarifying illustrates the ambiguity.

> Any belief that non-signatories enjoy rights not present in the RSA
> is speculative at best.

I suspect some people are in possession of legal advice to the
contrary.  (Well, sure, technically, it is speculative.  But I'd
imagine that some people have a pretty high degree of confidence in
their speculation.)

Let's put it this way:  (This is a hypothetical point; I'm not actually
making an offer here.) Say I'm willing to buy, for $10 per /24, any
property rights that anyone with legacy space has in their legacy
allocation, provided they have not signed an RSA or LRSA with respect
to that space, and provided that they agree to never sign any such
agreement, or nay similar agreement, with respect to that space.

If there's no property rights, that's a free $10 per /24.  On the other
hand, if there are property rights, then that's a pretty low price for
giving me the authority to direct a transfer of the space whenever I
feel like it.

How many people do you think would rationally take me up on this offer? 
Would you advise an ISP with a legacy allocation that is temporarily
short on cash to engage in such a transaction?  If so, are you
confident enough in your position that you'd agree to personally
indemnify them against any loss they might incur if it turns out that
there are property rights and now I hold them?

And that's really the crux of this argument.  One side assumes there
are no property rights and argues from that premise, the other side
assumes there are and argues from that premise.  But sides' arguments
are logically sound (more or less), but they start from different
premises, and starting there isn't going to do anything to convince the
other side that its premise is wrong.  People will just keep talking
past each other if they decline to address the underlying difference in
premise.

     -- Brett