ARIN Lawsuit - Comments anyone?
chris_jester at suavemente.net
Thu Nov 16 21:47:36 UTC 2006
Im wondering how people feel about the response by Mr Ryan, ARIN's legal
arsenal. I was forwarded this and would love to know how the networks out
there feel about it. Is a long read, but certainly a worthwile one
considering the outcome of the case may change IP's as we know them today.
I am leaning
toward ARINS point of view on the matter, however there are always changes
I would hope they make to the way they do things. At the same time, I do
there has to be an ARIN keeping things in order for the rest of us. So my
vote is 60% with RYAN and ARIN. Yours? Vote please in the court of
MR. RYAN: So why is your lawyer talking to you? Let me tell you that
there's been a development that we wanted to share with you. As we were
leaving Montreal at the last meeting, on the evening that we were flying
home, ARIN was sued in California, and we wanted to share some of the
information about that with you. This has been the first time literally
that we could do so in a meeting capacity; and so as part of our open and
transparent processes, we thought we'd let you know that we had been sued
in a major way. And let me talk briefly about what has occurred and what
we're doing about that. The story is actually a little bit convoluted. It
begins in 1998. There was a man named Richard Kremen who is a cyber
squatter who had squatted on a name called Sex.com, among other things
that he owned. His Sex.com domain name was stolen according to him by a
man named Cohen. Mr. Cohen hijacked that and disappeared to Israel and
other places in the world, and a lawsuit between these two gentlemen
ensued. Mr. Kremen was the person aggrieved. In 2001, unknown to ARIN and
without any notice to us, on a day in the course of this lawsuit, the
United States District Court in San Jose issued an order, ordering ARIN to
turn over certain IP resources that Cohen or people that Mr. Kremen and
the court believed were associated with Cohen had obtained from ARIN. No
one has ever said that ARIN acted improperly in issuing resources, but
what they were, in essence, saying in the court order is that Cohen used
money that had been Kremen's to obtain the resources, and in lieu of the
money, we were to transfer the resources to Mr. Kremen. So if you've got
that, Cohen is the bad guy, according to the court. The court issues an
order without ARIN being there. A court order tells you to do something.
Well, in 2003, in December of 2003, I had been General Counsel for you
about 30 days at that point. We received the order approximately two years
after it had been issued. It was provided to us in a formal way, and Mr.
Kremen asked us to obey the order. That is, to revoke the IP resources
that were held by Mr. Cohen and transfer them to Mr. Kremen. We agreed to
do so, so long as Mr. Kremen would do what all of you have done since ARIN
began in 1998, which is apply for the resources and sign the normal RSA.
Mr. Kremen refused to do that and has refused to the current date. His
theory is that he doesn't have to do that because he has a court order,
and our theory is that we have a certain set of rules and requirements,
and that you have to obey the rules and requirements of the community, and
we don't read the court order as giving Mr. Kremen a permanent pass from
the rules that all of you obey. We've tried to be very cordial with Mr.
Kremen. We believe that Mr. Kremen may have been badly treated by Mr.
Cohen, but he certainly has never been badly treated by us. During the
time that we've been negotiating with him, we agreed to what was called a
standstill order, that there would be no court activity while we
negotiated. We turned over thousands of pages of documents within ARIN's
control to help him find assets that Mr. Cohen might have had. We revoked
resources that were held by Mr. Cohen or his associates that were covered
by the 2001 order when they were not paid for. In other words, by our own
processes, we were very aggressively trying to recover these resources so
that they weren't out there. On the other hand, we ultimately could not
reach a conclusion with Mr. Cohen -- pardon me -- with Mr. Kremen because
he refused to sign the paperwork even if we filled it out for him. What
happened in 2006 is that Mr. Cohen was arrested and extradited to the
United States, and we had hoped that by that extradition, that this matter
-- that the tension over the matter would go away. We were wrong about
that. In April, ARIN was sued by Mr. Kremen, and Mr. Kremen's fundamental
issues are not just that we didn't turn over the resources to him. His
theory is that this room is an unnecessary and -- unnecessary place to be.
He's never been to this room to talk about policy, but his argument is
that IP resources are actually property. They're like domain names.
They're like a Ford LTD. They're like this computer screen that's sitting
next to me. They are a piece of property that can be owned. And, of
course, that's not consistent with the entire theory by which the internet
community governs IP resources. Fundamentally, he wants to create a market
and argue that if you hold IP resources, you are the owner of property,
just like a Ford LTD, rather than that those IP resources belong to the
internet community, that they are issued by an RIR, like ARIN, to you, but
that they can be revoked if you use them improperly or if you don't pay
for them, and then they can be reissued to another person who is in need
of them. So he's fundamentally attacking the process that we have in his
lawsuit. He's claiming that we are an anti-competitive conspiracy that
offends Federal Antitrust Law and that offends California Fair Trade Act,
and so we are involved in a major piece of litigation with him. The status
of that litigation is as follows: He filed a complaint against us in
April. ARIN has aggressively responded to this. Where we had been cordial
and respectful for the past three years in negotiating and seeking a
solution, now that we've been attacked, and we believe improperly, we are
defending that lawsuit vigorously, and that was a decision that the Board
made. With regard to that defense, we have two issues that we have raised.
First, we've gone back to the court and said that the court in its 2001
order ought to consider modifying the order to make it clear that Mr.
Kremen, like everyone else, has to sign an RSA and has to pay for the
resources in the future. Second, we filed a motion to dismiss his lawsuit.
Now, a motion to dismiss a lawsuit is a motion that is disfavored in law.
The way that the court is required to look at a motion to dismiss a
lawsuit it has to presume, the judge has to presume, that everything that
the plaintiff said is true. Even if, for example, it's not. So, for
example, Mr. Kremen has claimed that IP resources are property, the court
has to accept it as true simply because he said it. Notwithstanding that,
we filed a motion to dismiss, and we are awaiting oral argument. I will be
arguing this case on October 23rd, a week from Monday, in United States
District Court in San Jose. And for those of you -- there's no reason why
you would know me, but I've been an Assistant U.S. attorney. I grew up in
courthouses. This is what I do. And so I'm going to argue the case myself.
I happen to be a litigator, and I'll be arguing that with a team of
lawyers. It's a very complex case. I would say that the pleadings in this
case now would be about this high. We've spent hundreds of thousands of
dollars responding to this over time and dealing with Mr. Kremen. So those
two aspects, the change in the 2001 order and the motion to dismiss, will
both be argued on the same day. So I really want to say a couple of things
from the heart to you. One is that Mr. Kremen is a legacy address holder.
He has legacy address blocks. He understands the game of IP resources very
well. He's never participated, to our knowledge, in this process of coming
here and saying that anything about the ARIN community is proper or
improper or arguing that we should have a different policy process. In
effect, his lawsuit invites the United States court to substitute a legal
process for what you do. Second, right now, you know, Mr. Kremen is a man
who has very, very significant resources. He has investigators. He has a
team of lawyers that, frankly, are very talented. You know, you can get
very good lawyers if you have money, and we are involved in very serious
litigation. So what I'd like to do is to suggest that I'm here now to
answer your questions. I'll be glad to answer them on the record in the
room. I'm glad to have you catch me in the corridor, but I need you to
understand that we are under legal attack, and just the very fact that we
would do this in an open forum, I think, talks about the values that we
have in this room that we try and deal with one another as adults, we try
and work out the issues of the future of policy in this room. This is a
fundamental attack on the policy process. That's -- you know, you should
not misunderstand what this is about. It's fundamentally asking that the
current rules that we've developed for the community from RFC processes at
the IETF to all of the things that you do will not be the way that we go
forward. I need you to be thoughtful about what's happening on public
policy lists during this period. Some of the threads of public policy
lists emanating from this lawsuit will likely end up in court. So be
thoughtful about what you say and what you do on lists as you address
these things. Everyone, of course, should continue to express how you feel
about the public policy process. The public policy process in this meeting
will go forward, notwithstanding that there's a lawsuit addressing
fundamentally these issues. So we wanted you to know this. I really
appreciate the Board and Ray suggesting that we take this head-on and tell
you about it. I think some of you had seen a list activity related to
this. If you have any questions or if the Board has any comments, I'd be
glad to take them right now and, you know, answer them as best we can.
MR. CURRAN: Microphones are open. I see Ole.
MR. RYAN: While you're coming to the microphone, let me just say, we will
keep you updated about this. I want to be very clear about this. I don't
know if the court will rule from the bench. When we say rule from the
bench, that the court will make a decision on October 23rd. If the court
does, whether that decision is good or bad from my perspective, we'll
certainly share with you any of the court's decision and our commentary on
that. It may well be that the court will take the matter under advisement
and think about it, and I now have grown hairless thinking about when
judges will decide things. I have one case that's now pending for 21
months since I've argued it. I obviously confused the judge that day
because's he's not quite sure what to do with it. But I can't tell you a
timetable of when the next milestone will occur other than the oral
argument on the 23rd. Sir.
MR. CURRAN: Name and affiliation.
MR. JACOBSEN: Good morning, Counsel. I'm Ole Jacobsen with Cisco. I was
just wondering if the information about the thing in San Jose would be
posted somewhere since I assume a fair number of the people in this room
are kind of sort of in that area. Are we allowed to come listen?
MR. RYAN: Yes. The court is open. It's before a Judge Ware, W-A-R-E, in
his courtroom in the San Jose courthouse at 9:00 a.m. on Monday, October
23rd, and I'd be delighted, by the way, if, for example, Cisco's legal
officer, you know, sent a lawyer, if people in the Valley -- you know, I
think it's very useful for you to actually observe these things, and,
frankly, for the people who are engineers, it might be very interesting to
see how the legal system addresses fundamental issues which you understand
but which will be new to the judge.
MR. JACOBSEN: So it's not like sausage-making?
MR. RYAN: Well, as an officer of the court, I'm not going to answer that
MR. CURRAN: Any other questions?
MR. RYAN: There's one other issue. We have every reason to believe that
because Mr. Kremen is a very colorful individual and his fight with Mr.
Cohen has been this is the sort of stuff that you write interesting
articles about, that there will be press interest in this issue, both
because of the colorfulness of the people that are involved and also
because of the fundamental IP issues to the extent that the press
understands the second issue. It will probably be the former issue that
generates press coverage. If you find out that reporters are calling
around on this, I'd be very interested in knowing that. We obviously have
our own views on what we would like to say to the press that may be not
unlike what I told you this morning. So if you could let ARIN staff know
if the press is contacting you on this, it will be so that we can call
them affirmatively and let them know our views on the subject. You know,
you might get called by the press, you know, as they're doing a story on
this as they're trying to understand what the IP issues are.
MR. CURRAN: Okay. Steve, thank you for your time. Oh, Sam.
MR. WEILER: Sam Weiler, SPARTA. I'm not quite sure what to make of your
request that we be thoughtful in our mailing list postings. I'm wondering
if you can be a little more concrete. Is there anything you'd like to see
the community do, say in our public policy process, to help ARIN -- to
help the community defend this process.
MR. RYAN: Well, look. I'm not here to coach you on how you feel about the
public policy process, any of you. You know what I mean? I think by your
very presence in this room, you say that this process is a valuable one.
That process is under attack. You can make your own conclusion about how
you want to address that. And let me say this. We live in a grown-up world
now. Okay. When I go home at night, I may be -- I go home to my family,
and they know my good points and my bad points. We're family. We know ARIN
has good points and bad points. When you're fundamentally attacked, you
have to decide whether, you know, it's time to focus on big picture
points. Is the public policy process an important thing? Is the way we
govern the internet something valuable? Do we want a market in IPv4 and
IPv6 where people sell it on EBay as opposed to distributing it based on
requirements that the community sets. In this sense, Sam, you know, if you
want to -- if anyone wants to support or criticize ARIN, I just ask them
to be aware that there's a lawsuit on that fundamentally attacks us, but,
you know, we're not thin-skinned. You can still say things that are
critical of us, if that's how you feel. This is a democracy, and this is a
fundamentally democratic process in this room. If you believe that you
want to defend that when you're responding, be my guest. I hope -- Sam,
thank you for the -- frankly, I appreciate being asked that question, and
I hope that that is helpful in answering it.
MR. CURRAN: Any other questions for Counsel? Okay. Thank you very much,
MR. PLZAK: All right. As a reminder, Steve said he would be available for
the next two days if you want to engage him in a conversation in the
hallways or whenever. And so if you had some questions and you didn't want
to express them here this morning, he would be still glad to meet with you
and discuss these matters with you. So on with the meeting.
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