[AFRINIC-rpd] New Policy Proposal: Inter RIR IPv4 Address Transfers (AFPUB-2013-V4-001-DRAFT-01)

[Andrew Alston]

Hi Owen,

> I don't think that is quite accurate. As I understand it, there's no real legal control of use of space by the RIRs. The RIRs only guarantee that they won't register the same resources to more than one party at the same time.
> RIRs don't run routers and don't have legal authority to control people that run routers. If a company or group of companies want to establish their own independent internet, they are free to have their own registry (or no 
> registry at all) and reuse all the same numbers with no legal consequences.

Just had to respond to what is found above, because it's potentially an *extremely* slippery slope we go down if we accept that.  Let me explore a hypothetical, and again, I am not a lawyer, but this is interesting...

As you rightfully pointed out earlier when we were discussing the legalities around legacy space and existent cases, if you look at the case of Kremen v. Cohen, the court used an interesting justification in the appeals process when they upheld certain things.  One of those things was the was how the court made a judgment on property rights (and if we accept that ANY body on the internet, be they an RIR, IANA or anyone has legal right to control  or assign IP space, we may extrapolate that it is property, in the same way domain names were found to be property by the courts).  The courts in the US stated they used a three part test to determine property.  The test used was first defined it would seem in another 1992 case.  The criteria though are as follows:

" First, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control;[12] and third, the putative owner must have established a legitimate claim to exclusivity."

In my hypothetical layman brain, I would say that if we argue that RIR's, IANA and others are incapable of control or exclusive possession of address space, the space itself ceases to meet the criteria established above... at that point... well, we're in a complete free for all with zero legal recourse on anything...  Let's be a little careful in our arguments :)

Like I say, just an interesting one, would be very curious to hear a lawyers take on this.

Andrew