Getting “Feisty?” ARIN claims ownership of IP address registration data

The Whois database shows which organizations have been assigned which Internet address blocks. Maintaining that registration data is the Regional Internet Registries’ most important function. For many years, ARIN has made all of its Whois data available in “bulk” form for “Internet operational or technical research purposes.” Now, suddenly, without any bottom-up policy change, ARIN has unilaterally changed the terms of the Bulk Whois contract. As they said in a July 11 email to current users of bulk Whois,

 …a new Bulk Whois Terms of Use (ToU) agreement that replaces the existing Acceptable Use Policy (AUP). …In order to retain your access to the Bulk Whois service, ARIN kindly requests that you sign and submit the new ToU and return it to ARIN within 30 days of receiving this email.

The new ToU can be found here. In those new terms of use, ARIN requires users to

…acknowledge and agree that ARIN has been and shall continue to be the sole and exclusive owner of: (i) the Bulk Whois Database; (ii) the Bulk Whois Data…

This sudden claim of ownership is doubly ironic. First, ARIN’s staff and board have insisted repeatedly that users of IP addresses have no property rights in the address assets their networks depend on. But apparently, it is OK for ARIN to claim ownership of the data that users submit to them as part of their IP address registrations. Second, the change was made unilaterally by ARIN staff and without any policy making process. Given ARIN’s claim that its decisions are all legitimated by “the community” and its bottom up policy development process, this change is interesting. Note that only 9 years ago, ARIN did hold an open policy making process on Whois Acceptable Use and Bulk Access. So apparently, what was a policy issue in 2003 is no longer a policy issue.

Why is this happening? The hidden agenda is apparent to anyone following the debates on ARIN’s public policy mailing list (PPML). ARIN has been trying to discourage or even punish legacy holders from selling or transferring address resources outside of its own controlled system, as Microsoft and Nortel did last year. Because ARIN has no contractual authority over legacy holders, the only form of influence or power it has is the Whois database. By unilaterally asserting property rights over the Whois database, ARIN probably hopes to bolster its attempt to shut out market transactions that go outside its own transfer mechanisms.

Critics of the new terms of service say that ARIN cannot have a copyright in the Whois database. They cite the precedent-setting U.S. Supreme Court decision  Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991), in which a telephone company tried to assert ownership of the information in a telephone directory. The Supreme Court told the company that you cannot copyright facts, and that directory listings were facts. Legal critics also protest ARIN’s use of a contract to unilaterally change the applicable law.

It is likely that this event is related to ARIN’s denial of bulk access rights to address brokerage and potential competitor Depository, Inc. Depository appealed that decision to ICANN. And yet, neither ICANN nor the U.S. Commerce Department have given any indication that they even understand what these issues are about and how high the stakes are, much less know what to do about them.

 

4 comments

  1. jcurranarin

    Milton – 
     
    Again, you’ve sprinkled unfounded accusations throughout your blog entry, including making this change without consulting the community and a hidden agenda.
     
    You apparently missed the call for community consultation specifically on this matter – https://www.arin.net/announcements/2012/20120326_consult.html
    which called for the changes proposed and specifically asked for community feedback.
     
    Note that ARIN changed the Bulk Whois terms and conditions so that we can better administer the policies set by the community for Bulk access to this data.  Realization of this need came out of deployment of Whowas service which was requested by the community, and in fact, the revised terms and conditions are now identical between these two services.
     
    Thanks!
    /John
     
    John Curran
    President and CEO
    ARIN

    • Milton Mueller

       @jcurranarin 
      John, a call for comments is not a policy development process. Even so, no comments were received in response to your call, according to your archive. Moreover, you are evading the point: this is a policy change is it not? And if so, why weren’t these changes run through the formal policy development process (PDP)? If ARIN staff can pick and choose what policies go through the PDP and which do not, then it can consign things that it doesn’t want to happen to PDP-hell, and ram through anything else through these faux-consultations.

      • jcurranarin

         @Milton Mueller  @jcurranarin 
         
        Milton – You are indeed correct, in that a call for comments is not a policy development process.   There are many items of an operational nature which ARIN seeks input through the public consultation process, and this includes soliciting feedback on revisions to service agreements and terms of service.  Remember that ARIN is membership organization, and the members elect the Board of Trustees to provide guidance and oversight on the performance of our mission.  We view the consultation process as an additional way of engaging the community on specific decisions that would otherwise be decided in the routine course of business.  Note that some of these consultations receive a much higher level of response than others and we take feedback received quite seriously.
         
        Thanks for your interest!
        /John
         
        John Curran
        President and CEO
        ARIN