Can a customer take IP's with them?
Should a customer be allowed to force a carrier to allow them to announce non-portable IP space as they see fit to any other carriers of their choosing when they are no longer buying service from the original carrier [that the space is assigned to]? According to ARIN regulations, the space does not "belong" to us but we have the right to assign or revoke the space to our customers as we see fit. In addition ARIN regulations specifically prohibit us from transferring or selling the IP space to another customer (even if we want to). NAC has a customer who is leaving NAC. As part of normal procedure (and also because the space provided to us by ARIN is non portable), the customer has been informed that the IP space used by the customer will not be available to be used by the customer subsequent to them leaving us. It should be mentioned that the following facts exist, and cannot be disputed: a) customer has obtained space directly from ARIN over a year ago, but has chosen not to renumber from space allocated from us. This was solely their choice, and we did not restrict this in any way. b) customer is exercising the right not to renew the business agreement, and is leaving NAC voluntarily. Thus, they are attempting to file for and obtain a temporary restraining order (TRO), and ask for the following: -- start -- "NAC shall permit CUSTOMER to continue utilization through any carrier or carriers of CUSTOMER's choice of any IP addresses that were utilized by, through or on behalf of CUSTOMER under the current agreement during the term thereof (the "Prior CUSTOMER Addresses") and shall not interfere in any way with the use of the Prior CUSTOMER Addresses, including, but not limited to: (i) by reassignment of IP address space to any customer; aggregation and/or BGP announcement modifications (ii) by directly or indirectly causing the occurrence of superseding or conflicting BGP Global Routing Table entries; filters and/or access lists, and/or (iii) by directly or indirectly causing reduced prioritization of access to and/or from the Prior CUSTOMER Addresses. NAC shall provide CUSTOMER with a LOA within 7 days of CUSTOMERS's written request for sale, NAC shall permit announcement of the Prior CUSTOMER Address to ANY carrier, IP transit, or IP peering network." -- end -- In other words, customer is asking a court to rule whether or not IP space should be portable, when an industry-supported organization (ARIN) has made policy that the space is in fact not portable. It can be further argued that the court could impose a TRO that would potentially negatively affect the operation of my network. NAC does not want to be forced to rely on a customer's ability to properly make complex routing updates that if done improperly could disrupt the entire NAC network. We believe there is a great danger to NAC that their routing mistakes could take down some or all of our network infrastructure. Another VERY important issue to bring up: If customer is granted the legal right to continue to use IP space that is registered to NAC by ARIN, NAC runs into the very serious problem of being liable for all of the Spam that could be generated by the customer and all of the RBLs that the carrier may be added to [that of course will effect all of NAC's customers] with no ability to revoke the IP space to protect itself. This has to potential to effect the NAC network in a catastrophic manner. I'd love any comments from anyone.
In other words, customer is asking a court to rule whether or not IP space should be portable, when an industry-supported organization (ARIN) has made policy that the space is in fact not portable. It can be further argued that the court could impose a TRO that would potentially negatively affect the operation of my network.
A court will likely decide this based upon the terms of your contract and what the court thinks is fair. They will likely give very little consideration to common practice or ARIN's rules.
Another VERY important issue to bring up: If customer is granted the legal right to continue to use IP space that is registered to NAC by ARIN, NAC runs into the very serious problem of being liable for all of the Spam that could be generated by the customer and all of the RBLs that the carrier may be added to [that of course will effect all of NAC's customers] with no ability to revoke the IP space to protect itself. This has to potential to effect the NAC network in a catastrophic manner.
You'll just have to explain to people that the traffic didn't originate on, terminate on, or transit your network and therefore there is no justification for holding you responsible. When arguing against the TRO in court, make sure to point out that this TRO would make you responsible for behavior over which you have no control. However, the court will likely find that failure to grant the TRO puts a greater hardship on your soon-to-be-former customer than granting the TRO puts on you. Courts do not look well on artificial attempts to penalize a customer for changing providers. Lock in is considered anti-competitive. They will likely see your revocation of the IP addresses (or failure to offer them separately for a reasonable fee) as a case of lock in. Standard industry practice, AFAIK, is to allow customers to keep their IP addresses for a reasonable amount of time unless you have always had a policy of not allowing customers to advertise any of your IP space through any other providers ever. IANAL, seek competent legal advice from a lawyer with experience in this area. I'm sure you can work out some sort of compromise where you let them keep using their IP space for a reasonable period of time (3 months? 6 months?) and they renumber in that time. I'm fairly sure they don't expect to keep your IPs forever and I'm fairly sure you don't need them back immediately. DS
On Jun 22, 2004, at 10:40 PM, David Schwartz wrote:
IANAL, seek competent legal advice from a lawyer with experience in this area. I'm sure you can work out some sort of compromise where you let them keep using their IP space for a reasonable period of time (3 months? 6 months?) and they renumber in that time. I'm fairly sure they don't expect to keep your IPs forever and I'm fairly sure you don't need them back immediately.
Then what was the whole year they had ARIN assigned IP space for? 12 months is plenty of time to renumber for most size organizations. I wonder if their ARIN application says anything about planning to renumber their existing space from NAC into the newly assigned space... -davidu ---------------------------------------------------- David A. Ulevitch - Founder, EveryDNS.Net http://david.ulevitch.com -- http://everydns.net ----------------------------------------------------
David, Isn't renumbering an obligation?
I wonder if their ARIN application says anything about planning to renumber their existing space from NAC into the newly assigned space...
-davidu
---------------------------------------------------- David A. Ulevitch - Founder, EveryDNS.Net http://david.ulevitch.com -- http://everydns.net ----------------------------------------------------
David,
Isn't renumbering an obligation?
I wonder if their ARIN application says anything about planning to renumber their existing space from NAC into the newly assigned space...
-davidu
It's hard to see how his customer failing to meet obligations to ARIN is going to be considered relevant to his relationship to his customer. ARIN isn't a party to the dispute, and the ARIN renumbering requirements aren't directly intended to benefit the ISP. In fact, one could argue that a customer renumbering is to the detriment of their ISP because it reduces lock in. A court is going to look very specifically at three things: 1) What is the hardship to the customer if the TRO is not granted. 2) What is the hardship to the ISP if the TRO is granted. 3) Is the customer likely to prevail in whatever is the actual claim that gave rose to the TRO (which we have no clue). I think it doesn't impose a significant hardship on the ISP for the court to grant the customer the right to continue using the IPs and advertise them from another provider for some reasonable amount of time. How much of a hardship forcing the customer to renumber immediately is, I don't know. And what the real claim is, I don't know either. The tack I would take is to use the kettle defense -- to attack all the prongs. First, I'd argue that there is no hardship to the customer in forcing them to renumber immediately, spreading the pain out over time doesn't lessen it. I'd further add that the TRO's false urgency was created by the customer -- they already had plenty of time to renumber, so if losing the IPs was such a hardship, it's only because they failed to mitigate it by acting diligently. Second, I'd argue that letting them keep the IPs is a significant hardship on me, because it makes me responsible for resources over which I have no control whatsoever. A security problem might require immediate filtering to protect my other customers, and I won't be able to do that. Third, I'd argue that the customer always knew that the ISP's were his only so long as he continued to buy my service, and so he is asking for something to which he knows he has no entitlement. All of this assumes that you didn't disconnect him for a bad reason and were reasonable in negotiations with him. You weren't really trying to lock him in and using his IPs and his difficulty with renumbering to blackmail him for more money, were you? DS
On Jun 22, 2004, at 11:10 PM, Christopher J. Wolff wrote:
David,
Isn't renumbering an obligation?
I am not sure however RFC 2071 Touches on this subject in section 4.2.3 but is ambiguous as to the nature of when the renumber should take place. 4.2.3 Change of Internet Service Provider As mentioned previously in Section 2, it is increasingly becoming current practice for organizations to have their IP addresses allocated by their upstream ISP. Also, with the advent of Classless Inter Domain Routing (CIDR) [11], and the considerable growth in the size of the global Internet table, Internet Service Providers are becoming more and more reluctant to allow customers to continue using addresses which were allocated by the ISP, when the customer terminates service and moves to another ISP. [SNIP] For obvious reasons, this practice is highly discouraged by ISP's with CIDR blocks, and some ISP's are making this a contractual issue, so that customers understand that addresses allocated by the ISP are non-portable. [SNIP] It should also be noted that (contrary to opinions sometimes voiced) this form of renumbering is a technically necessary consequence of changing ISP's, rather than a commercial or political mandate. In my opinion, which counts for nothing in this case, I would hope that 12 months was enough time for the company to renumber. Unless this decision to terminate services with NAC was 'just made' I think that space from ARIN 12 months ago was a heads up that their non-portable space should be eliminated from their network. Just my $.02 with some RFCs tossed in, davidu ---------------------------------------------------- David A. Ulevitch - Founder, EveryDNS.Net http://david.ulevitch.com -- http://everydns.net ----------------------------------------------------
Christopher J. Wolff wrote:
Isn't renumbering an obligation?
It depends on what day you talk to ARIN. Or perhaps it depends on what most benefits ARIN when you talk to them, I'm not sure. I had an allocation from ARIN that wasn't big enough to renumber into (after telling them that I planned to do exactly that), and was told that I didn't need to, and wasn't expected to. Then when I came back for another allocation later, I was told I didn't qualify for a larger space (again, this second allocation still wouldn't be enough for me even to renumber into from the space I had the first time I went to them for an allocation). I was told that I didn't qualify because I hadn't renumbered after the first allocation.
I wonder if their ARIN application says anything about planning to renumber their existing space from NAC into the newly assigned space... -- Jeff McAdams "He who laughs last, thinks slowest." -- anonymous
On Tue, 22 Jun 2004, David Schwartz wrote:
In other words, customer is asking a court to rule whether or not IP space should be portable, when an industry-supported organization (ARIN) has made policy that the space is in fact not portable. It can be further argued that the court could impose a TRO that would potentially negatively affect the operation of my network.
A court will likely decide this based upon the terms of your contract and what the court thinks is fair. They will likely give very little consideration to common practice or ARIN's rules.
Actually, I don't think that's the case. ARIN still owns the numbers, NAC is just leasing them. Therefore, ARINs rules supercede anything contractual between NAC and the customer. For instance, if what you say were true, all an ISP would have to do in order to "sell" their IP space is to create a contract stating that they are doing so. Contracts are rarely as binding as people think they are. Of course, I'm no lawyer, I just hate paying them. Andy --- Andy Dills Xecunet, Inc. www.xecu.net 301-682-9972 ---
On Wed, 23 Jun 2004, Andy Dills wrote:
Actually, I don't think that's the case. ARIN still owns the numbers, NAC is just leasing them. Therefore, ARINs rules supercede anything contractual between NAC and the customer.
I may be missing the point here, but the address space in question is probably of a PA status as opposed to PI - hence they are deemed non-portable in the first instance. Given that the customer has had an alternative block and been given more than reasonable time to renumber I would say that the ball is firmly in Alex's court - not his fault if they can't get their sh*t together. Just thinking, the easiest way forward might be to simply to refuse to deaggregate on the basis of "the good of the Internet" - ignoring any multihomers that NAC may have out of their aggregates, for the sake of argument. Additionally according to the size of the block and filtering, 8001 will probably up transiting the traffic anyway with no commercial agreement in place, which is obviously unacceptable. I'd dig out initial contract(s) with the customer, as if there was no clause there specifically outlining ownership of address space (yes, I know the concept is a fallacy) then you could go with whatever ARIN recommendation was in force at the time. I had some space from way back when which I think was previous to these sort of issues with regard to portability ('94-95), culminating in a letter from the RIR involved saying words to the effect of "you should return the address space for aggregation reasons, but legally you don't have to" Regards, Jess. -- Jess Kitchen ^ burstfire.net[works] _25492$ | www.burstfire.net.uk
Since this customer has it's own space now, and as long as it is as large as the NAC space, they can do a simple 1-to-1 NAT at the border. This should minimise the hardship to them drastically. K On Wed, 23 Jun 2004, Jess Kitchen wrote:
On Wed, 23 Jun 2004, Andy Dills wrote:
Actually, I don't think that's the case. ARIN still owns the numbers, NAC is just leasing them. Therefore, ARINs rules supercede anything contractual between NAC and the customer.
I may be missing the point here, but the address space in question is probably of a PA status as opposed to PI - hence they are deemed non-portable in the first instance.
Given that the customer has had an alternative block and been given more than reasonable time to renumber I would say that the ball is firmly in Alex's court - not his fault if they can't get their sh*t together.
Just thinking, the easiest way forward might be to simply to refuse to deaggregate on the basis of "the good of the Internet" - ignoring any multihomers that NAC may have out of their aggregates, for the sake of argument.
Additionally according to the size of the block and filtering, 8001 will probably up transiting the traffic anyway with no commercial agreement in place, which is obviously unacceptable.
I'd dig out initial contract(s) with the customer, as if there was no clause there specifically outlining ownership of address space (yes, I know the concept is a fallacy) then you could go with whatever ARIN recommendation was in force at the time.
I had some space from way back when which I think was previous to these sort of issues with regard to portability ('94-95), culminating in a letter from the RIR involved saying words to the effect of "you should return the address space for aggregation reasons, but legally you don't have to"
Regards, Jess.
-- Jess Kitchen ^ burstfire.net[works] _25492$ | www.burstfire.net.uk
On Wed, 23 Jun 2004 11:53:27 -0400 (EDT) Krzysztof Adamski <k@adamski.org> wrote:
Since this customer has it's own space now, and as long as it is as large as the NAC space, they can do a simple 1-to-1 NAT at the border. This should minimise the hardship to them drastically.
er, right. as long as the customer in question never needs to talk to whoever NAC reassigns the space to. i had a customer once who had, for no reason they could ever clearly explain, arbitrarily used ericson's IP space for their own internal network. as long as they didn't need to talk to ericson they were ok (yes, they used NAT at the border, but we needed to see their internal IP address space, which made for some serious annoyance.) richard -- Richard Welty rwelty@averillpark.net Averill Park Networking 518-573-7592 Java, PHP, PostgreSQL, Unix, Linux, IP Network Engineering, Security
RW> Date: Wed, 23 Jun 2004 13:35:06 -0400 (EDT) RW> From: Richard Welty RW> i had a customer once who had, for no reason they could RW> ever clearly explain, arbitrarily used ericson's IP space for RW> their own internal network. Only one customer? There are a couple "consulting" firms in particular around here that use arbitrary space on internal networks. Sometimes a currently-dark IP block is configured, so "it works for us". It gets annoying after a while. Eddy -- EverQuick Internet - http://www.everquick.net/ A division of Brotsman & Dreger, Inc. - http://www.brotsman.com/ Bandwidth, consulting, e-commerce, hosting, and network building Phone: +1 785 865 5885 Lawrence and [inter]national Phone: +1 316 794 8922 Wichita _________________________________________________________________ DO NOT send mail to the following addresses: davidc@brics.com -*- jfconmaapaq@intc.net -*- sam@everquick.net Sending mail to spambait addresses is a great way to get blocked.
On Jun 23, 2004, at 3:06 PM, Edward B. Dreger wrote:
RW> Date: Wed, 23 Jun 2004 13:35:06 -0400 (EDT) RW> From: Richard Welty
RW> i had a customer once who had, for no reason they could RW> ever clearly explain, arbitrarily used ericson's IP space for RW> their own internal network.
Only one customer? There are a couple "consulting" firms in particular around here that use arbitrary space on internal networks. Sometimes a currently-dark IP block is configured, so "it works for us". It gets annoying after a while.
Reverse NAT the Ericsson space to RFC1918 space, and hax0r the NS to give out 10-dot addresses for Ericsson hostnames. :) -- TTFN, patrick
On Wed, 23 Jun 2004 19:06:54 +0000 (GMT) "Edward B. Dreger" <eddy+public+spam@noc.everquick.net> wrote:
RW> Date: Wed, 23 Jun 2004 13:35:06 -0400 (EDT) RW> From: Richard Welty
RW> i had a customer once who had, for no reason they could RW> ever clearly explain, arbitrarily used ericson's IP space for RW> their own internal network.
Only one customer?
we were a small outsourced network monitoring/management business (since bought by someone else, several years ago now.) another way to look at it is that at one point in time, 25% of our customer base was using "improper" ip address space (not our fault, we knew better. legacy is a bitch.)
It gets annoying after a while.
when you're trying to do SNMP, it gets beyond annoying, it seriously cramps your network engineering style. richard -- Richard Welty rwelty@averillpark.net Averill Park Networking 518-573-7592 Java, PHP, PostgreSQL, Unix, Linux, IP Network Engineering, Security
Only one customer? There are a couple "consulting" firms in particular around here that use arbitrary space on internal networks. Sometimes a currently-dark IP block is configured, so "it works for us". It gets annoying after a while.
The worst one I've seen so far is Ticketmaster... last month. If you want to sell tickets through them and connect via the network, they require you to have a private, backend connection to them and then require you to route 29.2.0.0/15, 29.4.0.0/15, and 29.6.0.0/16 via that connection. I could be wrong, but somehow, I don't think that they are also known as or have received addresses from: OrgName: DoD Network Information Center OrgID: DNIC Address: 7990 Science Applications Ct Address: M/S CV 50 City: Vienna StateProv: VA PostalCode: 22183-7000 Country: US NetRange: 29.0.0.0 - 29.255.255.255 CIDR: 29.0.0.0/8 NetName: MILX25-TEMP NetHandle: NET-29-0-0-0-1 Parent: NetType: Direct Allocation Comment: Defense Information Systems Agency Comment: Washington, DC 20305-2000 US RegDate: Updated: 2002-10-07 The argument of "what if one of the DoD research groups on campus is trying to connect to this space for classified work?" didn't work... especially given that the blocks aren't in our BGP tables. Alas, my protests failed against the might of our self-funding sports program. Eric :)
At 3:29 PM -0400 6/25/04, Eric Gauthier wrote:
Only one customer? There are a couple "consulting" firms in particular around here that use arbitrary space on internal networks. Sometimes a currently-dark IP block is configured, so "it works for us". It gets annoying after a while.
The worst one I've seen so far is Ticketmaster... last month. If you want to sell tickets through them and connect via the network, they require you to have a private, backend connection to them and then require you to route 29.2.0.0/15, 29.4.0.0/15, and 29.6.0.0/16 via that connection.
Several third-party health payors, as well as a few HMOs and the like, do exactly this sort of thing with medical service providers. It makes hospital addressing, at times, rather interesting. Some of them used the rationalization that if the space wasn't in the Internet routing table, it was more secure. To make it worse, a couple further expected you to address some of your hosts with their bogus address space, and then run transport-mode IPSec to them. If you have never had a good sized hospital decide you are their new ISP (or network manager), it's good to find someone that will write prescriptions for legal drugs. On your first site visit, when you start discovering some of their addressing oddities, you will want to go to the pharmacy and get the scripts filled, to help you get through the day. While newer applications, if anything, go overboard for security, some earlier medical applications, especially laboratory instrumentation, just send all their data to 255.255.255.255. I asked one of the programmers why they did that, and he said they didn't know if somebody might plug in a device that needed the data, so they didn't want to be bothered putting in support for it. You will find there are now an assortment of security and privacy laws that the hospital has to support, HIPAA being the best known, but also 21CFR11 for clinical trials, DEA electronic prescribing of controlled substances, and COPPA for pediatric data. Unfortunately, no one has ever decided to harmonize the security requirements for the different mandates. If it helps put things in perspective, the legislation enabling recent extensive modifications and additions to HIPAA was titled the HIPAA Administrative Simplification Act. George Orwell would have loved it.
On Tue, 22 Jun 2004, David Schwartz wrote:
In other words, customer is asking a court to rule whether or not IP space should be portable, when an industry-supported organization (ARIN) has made policy that the space is in fact not portable. It can be further argued that the court could impose a TRO that would potentially negatively affect the operation of my network.
A court will likely decide this based upon the terms of your contract and what the court thinks is fair. They will likely give very little consideration to common practice or ARIN's rules.
Actually, I don't think that's the case. ARIN still owns the numbers, NAC is just leasing them. Therefore, ARINs rules supercede anything contractual between NAC and the customer.
Yes, but the court won't care about that. They'll simply enjoin the ISP from interfering with the customer's use of those IP addresses. ARIN can do whatever they want about it, but that would be a totally separate issue.
For instance, if what you say were true, all an ISP would have to do in order to "sell" their IP space is to create a contract stating that they are doing so.
Exactly. If they did that, a court would likely enjoin them from making any action to interfere with the customer's use of those IP addresses. A court would likely find the contract binding upon the parties that entered into it.
Contracts are rarely as binding as people think they are. Of course, I'm no lawyer, I just hate paying them.
Let me try to give you a hypothetical to show you why ARIN is irrelevent. Suppose I am a member of the Longshoreman's assocation and you have a contract to buy shrimp for $8/pound provided you only resell it to members of the LA. You then enter into a contract with me to sell me shrimp for $10/pound. But then I leave the LA. Ooops, now you can no longer resell me the shrimp. So you break our contract and I sue you. Does your contract with your shrimp provider matter? If you continue to sell me shrimp even though I'm not in the LA, who does your shrimp supplier sue? You or me? DS
On Wed, 23 Jun 2004 14:36:56 -0700 David Schwartz <davids@webmaster.com> wrote:
For instance, if what you say were true, all an ISP would have to do in order to "sell" their IP space is to create a contract stating that they are doing so.
Exactly. If they did that, a court would likely enjoin them from making any action to interfere with the customer's use of those IP addresses. A court would likely find the contract binding upon the parties that entered into it.
there's a word for selling something that you don't own. richard (i've got that bridge around here some where, anyone want to buy it?) -- Richard Welty rwelty@averillpark.net Averill Park Networking 518-573-7592 Java, PHP, PostgreSQL, Unix, Linux, IP Network Engineering, Security
On Wed, 23 Jun 2004, David Schwartz wrote:
Contracts are rarely as binding as people think they are. Of course, I'm no lawyer, I just hate paying them.
Let me try to give you a hypothetical to show you why ARIN is irrelevent. Suppose I am a member of the Longshoreman's assocation and you have a contract to buy shrimp for $8/pound provided you only resell it to members of the LA. You then enter into a contract with me to sell me shrimp for $10/pound. But then I leave the LA. Ooops, now you can no longer resell me the shrimp. So you break our contract and I sue you. Does your contract with your shrimp provider matter? If you continue to sell me shrimp even though I'm not in the LA, who does your shrimp supplier sue? You or me?
That's not a valid analogy. There are property rights conveyed properly at every step of the way; the distributor who is contractually bound to sell shrimp to you at $10 would be required, by your contract with him, to acquire shrimp from an alternate source, one that didn't involve violating contractual obligations, or else the shrimp distributor runs the risk of being sued by you. Basically, there are other sources of shrimp. If the distributor contracted himself into a corner where he's losing money because he didn't have an "out" in the contract with you in the event you leave LA, then he needs a new lawyer. So instead, let me give you a valid analogy. If you ran a museum, and you contracted for the use and display of an artifact, and then somehow entered into a contract to sell somebody else that artifact (even though you had no property rights), the original contract supercedes the second contract. Additionally, because there is no alternate source for the item in question (being an artifact and all), the museum can't be forced to acquire the same item (potentially at a loss) to complete the second contract; they would just have to return the money. Basically, you cannot grant rights contractually that you do not have in the first place. This is one of the easiest ways to have a contact or part of a contract rendered void. I'm no lawyer, but that doesn't mean I'm wrong ;) Andy --- Andy Dills Xecunet, Inc. www.xecu.net 301-682-9972 ---
If you ran a museum, and you contracted for the use and display of an artifact, and then somehow entered into a contract to sell somebody else that artifact (even though you had no property rights), the original contract supercedes the second contract. Additionally, because there is no alternate source for the item in question (being an artifact and all), the museum can't be forced to acquire the same item (potentially at a loss) to complete the second contract; they would just have to return the money.
Your analogy is valid, it just doesn't show what you think it shows. A court could certainly order the museum to provide the buyer the artifact to the extent that they were able to do so. That's all the TRO is asking for. The TRO doesn't say anything about property rights, it just asks to prevent the ISP from interfering in their use of those IPs. DS
Not directed at anyone specifically, but has anyone noticed that on these lists, people tend to focus on whether or not people's analogies are correct, rather than trying to answer the original question? On Wed, 23 Jun 2004 15:57:25 -0700, David Schwartz <davids@webmaster.com> wrote:
If you ran a museum, and you contracted for the use and display of an artifact, and then somehow entered into a contract to sell somebody else that artifact (even though you had no property rights), the original contract supercedes the second contract. Additionally, because there is no alternate source for the item in question (being an artifact and all), the museum can't be forced to acquire the same item (potentially at a loss) to complete the second contract; they would just have to return the money.
Your analogy is valid, it just doesn't show what you think it shows. A court could certainly order the museum to provide the buyer the artifact to the extent that they were able to do so. That's all the TRO is asking for. The TRO doesn't say anything about property rights, it just asks to prevent the ISP from interfering in their use of those IPs.
DS
Not directed at anyone specifically, but has anyone noticed that on these lists, people tend to focus on whether or not people's analogies are correct, rather than trying to answer the original question?
So long as you continue to focus on the analogy as it relates to the original question, rather than picking at aspects of the analogy that have nothing to do with the original question, you're fine. Unfortunately, it's very common to attack the analogy rather than show why the analogy doesn't apply. In cases where we're dealing with things that have not been dealt with before, analogy is a powerful tool of persusasion. I'm sure arguments like "IP addresses are just like telephone numbers" has been used and will continue to be used to argue that IP addresses must be portable to preserve competition. In this case, it's perfectly reasonable to argue that they're not alike because they are routed in very different ways but totally unreasonable to argue that they are not alike because they differ in length. Analogy is formalized in law in the form of precedent. Lawyers will argue that their case is exactly like some other case that was ruled in favor of the litigant they analogize their client to. It's critical to be able to distinguish your case from apparently similar cases when the ruling in the apparently similar case isn't the one you want. This particular case isn't about ownership at all. It's about whether or not the ISP can or cannot continue to allow the customer to use those IP addresses. It's about what hardship will be placed on the customer if they are not allowed to continue to use them against what hardship will be placed on the ISP if they do. To get a TRO, you need to show two things. One is that the balance of the hardships favors you. That is, that you will be more seriously hurt if you don't get the TRO than the other side will be if you do. Unfortunately, it will be hard to argue that in this case. It really doesn't hurt the ISP too much if they allow their customer to continue using the IPs for, say, 6 months. At least, unless there's something very unusual about this case that we don't know. Courts are not impressed usually with theoretical harm. The ARIN arguments are just that. Theoretically, if everyone ported their IP space, we'd all be harmed. However, there is no real harm in compelling the ISP to continue to allow their customer to advertise the IP space for a few months. The customer will argue that forcing them to renumber in less time will cause them real harm. (This may or may not be true and a court may or may not find the argument impressive. I'm just saying that trying to argue theoretical harm due to principles will likely not work.) The court will likely look at the harm imposed on the ISP for this one block. However, you also must always show that it is more likely that you will prevail in your main claim than that you will not. No matter how much the balance of hardships tips in your favor, you will not get a TRO if you cannot show the court that you are quite likely to be found entitled to the relief the TRO asks for if there were a full trial to determine such. We don't know anything about the actual issues in dispute in this case, so we can only speculate on this. I think courts will in general follow the contract between the ISP and the customer. If the contract doesn't say, industry practice is (at least IMO and experience) to allow the customer a reasonable period to renumber (3 months? 6 months?) unless the customer terminated the contract for no reason at all. (If the ISP raised the price, then the renumbering period would likely apply. If the customer just decided to end the contract when the ISP would extend it at the same price, then no renumbering period applies since the customer can continue to buy service through the renumbering period at terms they already found reasonable.) Harder cases include when the ISP terminates the customer for cause or when external situations change the ability of the customer to continue to use the ISP's services. IANAL. It certainly wouldn't hurt to clearly state your expectations in this regard in your contracts though. Don't rely on your contracts and policies with ARIN to be enforceable against third parties. DS
On Wed, 23 Jun 2004, David Schwartz wrote:
If you ran a museum, and you contracted for the use and display of an artifact, and then somehow entered into a contract to sell somebody else that artifact (even though you had no property rights), the original contract supercedes the second contract. Additionally, because there is no alternate source for the item in question (being an artifact and all), the museum can't be forced to acquire the same item (potentially at a loss) to complete the second contract; they would just have to return the money.
Your analogy is valid, it just doesn't show what you think it shows. A court could certainly order the museum to provide the buyer the artifact to the extent that they were able to do so. That's all the TRO is asking for. The TRO doesn't say anything about property rights, it just asks to prevent the ISP from interfering in their use of those IPs.
Not that we've been arguing this point, but why should a judge feel compelled to issue the TRO? All NAC has to do is put forth an accepted industry solution for dealing with emergency renumbering: 1-to-1 NAT. Offer a price to set this up, just to demonstrate that the customer is quibbling over a very small amount of money. Then, if possible, show how they can cause NAC irreperable harm if they are allowed to announce part of your space. Then, when NACs lawyers point out the ARIN policies (both regarding property rights and regarding the customers obligations and requirements under the contract signed when they accepted their PI space), there's really no logical argument that can be seized upon by the judge to demonstrate irreparable harm to the customer by being forced to give up their IPs. One thing that will definitely impact this particular case significantly: the judge is going to seize upon the fact that the customer had plenty of opportunity (1 year) to move from non-portable IP space to provider independant IP space. That was the customer's express purpose of acquiring the IP space from ARIN, as their request form will inherently attest to. They were negligent to not implement a solution in that year, and since the "irreparable harm" can be completely eliminated with an inexpensive technical solution, there's no case (from where I sit). Andy --- Andy Dills Xecunet, Inc. www.xecu.net 301-682-9972 ---
David Schwartz wrote:
On Tue, 22 Jun 2004, David Schwartz wrote:
[snip]
For instance, if what you say were true, all an ISP would have to do in order to "sell" their IP space is to create a contract stating that they are doing so.
Exactly. If they did that, a court would likely enjoin them from making any action to interfere with the customer's use of those IP addresses. A court would likely find the contract binding upon the parties that entered into it.
Hey, I've got a bridge I'd like to sell you. -- Crist J. Clark crist.clark@globalstar.com Globalstar Communications (408) 933-4387
On Wed, 23 Jun 2004, Alex Rubenstein wrote:
Should a customer be allowed to force a carrier to allow them to announce non-portable IP space as they see fit to any other carriers of their choosing when they are no longer buying service from the original carrier [that the space is assigned to]?
"NAC shall permit CUSTOMER to continue utilization through any carrier or carriers of CUSTOMER's choice of any IP addresses that were utilized by, through or on behalf of CUSTOMER under the current agreement during the term thereof (the "Prior CUSTOMER Addresses") and shall not interfere in any way with the use of the Prior CUSTOMER Addresses, including, but not limited to:
I don't even see a time limit mentioned here. Are they planning to snatch the IPs away from NAC indefinitely? Which part of non-portable did they not understand? You're paying ARIN a yearly maintenance fee on those IPs. If you end up in court, that should be pointed out. If the ex-customer is no longer paying you for service, then they have no right to continue to use your IP space. If you wanted to be "really nice", you might allow them some grace period (days, weeks?) in which to renumber into either their own IP space or their next provider's. AFAIK, common practice when switching carriers and renumbering is to have overlapping service with the old and new providers while you renumber. At the very least, you should get an IP rental fee out of them if they want the space indefinitely. If this case goes badly, it'll have some pretty serious implications wrt current ARIN policies. i.e. All address space becomes portable...who pays the fees if ARIN says it's your space but a customer has "stolen" it from you in court?. I suggest you contact ARIN and see if they're aware of any legal precedents that would be helpful or if they have counsel that might be helpful to you in upholding ARIN policy in court. BTW...who's the customer? I think this is someone most providers would want to avoid dealing with. This has also served as an example suggesting that if it's not already in there, all customer contracts should specifically say that any IP space assigned by the provider to the customer will be revoked if/when the customer's service is terminated. I'll have to see if ours have anything about that. ---------------------------------------------------------------------- Jon Lewis | I route Senior Network Engineer | therefore you are Atlantic Net | _________ http://www.lewis.org/~jlewis/pgp for PGP public key_________
This has to potential to effect the NAC network in a catastrophic manner.
I'd love any comments from anyone.
Legal comments should be solved by legal means. 1. Ask ARIN if their legal counsel would be willing to file a "friend of the court" brief to help the judge understand that this customer has no legal right to those addresses. 2. If the TRO is already in place, then ask the court to order your customer to cease and desist any current and future spamming or network abuse activities. And ask the court for permission to take appropriate action to protect your network in the event that any such activities are reported to you. At least that way there will be some limits.
On Wed, Jun 23, 2004 at 01:15:14AM -0400, Alex Rubenstein wrote:
Should a customer be allowed to force a carrier to allow them to announce non-portable IP space as they see fit to any other carriers of their choosing when they are no longer buying service from the original carrier [that the space is assigned to]?
Non-portable is non-portable. Historically, a sane renumbering window is provided. According to some stories, enforcement of renumbering windows has occasionally taken place by re-use of to-be-revoked space, or its reannouncement to peers in smaller chunks. Of course, the new provider should be able to vet the space, see the 'non-portable' note and tell the customer about multioming-vs-moving, their renumbering guides, contact NAC, etc. It would be an irresponsible provider that would announce another provider's NON- portable spacewithout the customer clearly multihoming and without clearance from the originating provider.
In other words, customer is asking a court to rule whether or not IP space should be portable, when an industry-supported organization (ARIN) has made policy that the space is in fact not portable. It can be further argued that the court could impose a TRO that would potentially negatively affect the operation of my network.
Portable space is available from the registry. That is their recourse. -- RSUC / GweepNet / Spunk / FnB / Usenix / SAGE
I would have to say no. However, we will typically send an email to the customer and their new provider giving them 60 days to renumber their network. After that time it is fair game to reallocate to another customer or blackhole or whatever. The new provider will typically push the customer to renumber once they get the email. [Wed, Jun 23, 2004 at 01:15:14AM -0400] Alex Rubenstein Inscribed these words...
Should a customer be allowed to force a carrier to allow them to announce non-portable IP space as they see fit to any other carriers of their choosing when they are no longer buying service from the original carrier [that the space is assigned to]?
According to ARIN regulations, the space does not "belong" to us but we have the right to assign or revoke the space to our customers as we see fit. In addition ARIN regulations specifically prohibit us from transferring or selling the IP space to another customer (even if we want to).
NAC has a customer who is leaving NAC. As part of normal procedure (and also because the space provided to us by ARIN is non portable), the customer has been informed that the IP space used by the customer will not be available to be used by the customer subsequent to them leaving us.
It should be mentioned that the following facts exist, and cannot be disputed:
a) customer has obtained space directly from ARIN over a year ago, but has chosen not to renumber from space allocated from us. This was solely their choice, and we did not restrict this in any way.
b) customer is exercising the right not to renew the business agreement, and is leaving NAC voluntarily.
Thus, they are attempting to file for and obtain a temporary restraining order (TRO), and ask for the following:
-- start --
"NAC shall permit CUSTOMER to continue utilization through any carrier or carriers of CUSTOMER's choice of any IP addresses that were utilized by, through or on behalf of CUSTOMER under the current agreement during the term thereof (the "Prior CUSTOMER Addresses") and shall not interfere in any way with the use of the Prior CUSTOMER Addresses, including, but not limited to:
(i) by reassignment of IP address space to any customer; aggregation and/or BGP announcement modifications
(ii) by directly or indirectly causing the occurrence of superseding or conflicting BGP Global Routing Table entries; filters and/or access lists, and/or
(iii) by directly or indirectly causing reduced prioritization of access to and/or from the Prior CUSTOMER Addresses.
NAC shall provide CUSTOMER with a LOA within 7 days of CUSTOMERS's written request for sale,
NAC shall permit announcement of the Prior CUSTOMER Address to ANY carrier, IP transit, or IP peering network."
-- end --
In other words, customer is asking a court to rule whether or not IP space should be portable, when an industry-supported organization (ARIN) has made policy that the space is in fact not portable. It can be further argued that the court could impose a TRO that would potentially negatively affect the operation of my network.
NAC does not want to be forced to rely on a customer's ability to properly make complex routing updates that if done improperly could disrupt the entire NAC network. We believe there is a great danger to NAC that their routing mistakes could take down some or all of our network infrastructure.
Another VERY important issue to bring up: If customer is granted the legal right to continue to use IP space that is registered to NAC by ARIN, NAC runs into the very serious problem of being liable for all of the Spam that could be generated by the customer and all of the RBLs that the carrier may be added to [that of course will effect all of NAC's customers] with no ability to revoke the IP space to protect itself. This has to potential to effect the NAC network in a catastrophic manner.
I'd love any comments from anyone.
-- Stephen (routerg) irc.dks.ca
participants (19)
-
Alex Rubenstein -
Andy Dills -
Brett -
Christopher J. Wolff -
Crist Clark -
David A.Ulevitch -
David Schwartz -
Edward B. Dreger -
Eric Gauthier -
Howard C. Berkowitz -
Jeff McAdams -
Jess Kitchen -
Joe Provo -
Jon Lewis -
Krzysztof Adamski -
Michael.Dillon＠radianz.com -
Patrick W Gilmore -
Richard Welty -
Stephen Perciballi