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
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.