(UPDATE) Can a Customer take their IP's with them? (Court says yes!)

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1

* Alex Yuriev wrote:

  Judge grants the TRO.
  Defendant waves arms on nanog-l.

Moral -

  When a legal system is involved, use the legal system, not the
  nanog-l. The former provides provides ample of opportunities to
  deal with the issues, while the later only provides ample of
  opportunities to do hand waving.

I would like to make a few comments on this and other posts that have been
made in response to my original post last night.

First of all, there is no question that there is a contractual dispute
between NAC and the Customer. There is a lengthy complaint filed by the
Customer against NAC, alleging a variety of things.

Next, the more important issue. While there is a dispute between NAC and
the Customer, as mentioned above, I am *NOT LOOKING FOR COMMENTS ON THE
ACTUAL LAWSUIT* from nanog-l. I am not waving my arms about the lawsuit,
as Alex implies above.

What I AM looking for is a commentary from the internet community,
strictly relating to the fact that a judge has issued a TRO that forces an
ISP (NAC) to allow a third-party, who WILL NOT be a Customer of NAC, to be
able to use IP Space allocated to NAC. In other words, I am asking people
to if they agree with my position, lawsuit or not, that non-portable IP's
should not be portable between parties, especially by a state superior
court ordered TRO.

This issue has been misunderstood, in that there is belief by some that
the Customer should be allowed some period of grace for renumbering. I
want to remind people that this Customer has had ARIN allocations for over
15 months. Also, recall that Customer has terminated service with us, and
we would still allow them to be a Customer of ours if they so choose. This
fact is undisputed as evidenced by the filing of certain public documents.

With the above being said, I solicit comments on the following
certification:

Those would like to make a certification on behalf of their business:

  http://www.nac.net/cert.pdf

Those would like to make a certification on behalf of themselves:

  http://www.nac.net/pcert.pdf

Forgetting the facts of the case, for the moment, I think we all agree
with the terms of this certification. The above does not ask for anyone to
form an opinion about the case. It asks Internet Operators, as a
community, if portability of non portable space is bad. If you agree, I
ask you to execute this certification as an amicus brief, and fax it to us
at 973-590-5080.

Thank you for your time on this matter, it is truly appreciated. Please do
not take the above that I do not appreciate all the commentary. As I say
above, my point is that I am not trying to have a trial in a public forum,
but, more importantly, I am verifying that our opinion regarding IP
portability is one that the community as a whole shares.

-- Alex Rubenstein, AR97, K2AHR, alex@nac.net, latency, Al Reuben --
-- Net Access Corporation, 800-NET-ME-36, http://www.nac.net --

2

I think we all agree that without aggregation, there'd be no internet. We can also all agree that the state of aggregation isn't quite as good as it could be. So apparently there is some wiggle room between theory and practice.

But aren't we jumping the gun by reacting to a temporary restraining order? I'm not a lawyer and I don't play one on tv, but the way I understand it is that those are issued in order to make certain that the verdict won't be moot because the damage is already done. So a TRO doesn't have any bearing on the merits of the case. And even if the court orders that the addresses must be portable, there may be reasons why this is appropriate in this specific case rather than that the court takes the position that all address space should be portable.

3

As I read that TRO, for the period of time the customer continues to use
the IP space they will also be a customer of NAC (i.e. they will continue
to pay you money for IP transit and colocation services at existing
contract amounts and existing contract rates, which happen to be
significantly above current market rates).

I don't see a disconnection between the two. This is a completely
different situation from the one you describe, which is a customer who has
completed an orderly termination without an ongoing legal dispute and
simply wishes to continue using their IPs for an indefinite periods of
time, without paying you for it or buying any other services from you. It
seems that they are only asking for the orderly continuation of services
so that they can migrate their assets (both physical and virtual, servers
and IPs) to new resources without disruption of their business.

There are many instances in the business world where a court prohibits you
from disconnecting services to a customer so that their business can
continue to operate, such as during chapter 11 bankruptcy proceedings. You
should really be *glad* that they ARE paying you, and especially at the
rates mentioned in their affidavit, for that much longer. Or perhaps you
are seeing something in this that I am not?

4

Alex Rubenstein wrote:

What I AM looking for is a commentary from the internet community,
strictly relating to the fact that a judge has issued a TRO that forces an
ISP (NAC) to allow a third-party, who WILL NOT be a Customer of NAC, to be
able to use IP Space allocated to NAC. In other words, I am asking people
to if they agree with my position, lawsuit or not, that non-portable IP's
should not be portable between parties, especially by a state superior
court ordered TRO.

Is that really what you are asking?

This issue has been misunderstood, in that there is belief by some that
the Customer should be allowed some period of grace for renumbering. I
want to remind people that this Customer has had ARIN allocations for over
15 months. Also, recall that Customer has terminated service with us, and
we would still allow them to be a Customer of ours if they so choose.

So if you are really asking, "lawsuit or not, that non-portable IP's
should not be portable between parties," who terminated service with
who cannot make a difference.

Can anyone think of circumstances where if an ISP were to use "IP
lock-in" as a weapon against customers that an TRO would be in order?
Then your "lawsuit or not" clause would seem to say that there are times
that non-portable IPs should be portable.

Also can one think of other circumstances where non-portable IPs should
become portable without reallocation through ARIN? Say, *poof*, ISP
goes out of business _very_ suddenly with no one buying up its assets
and taking over its operations quickly. There is no way to expect all of
the customers to renumber in time. Do they have to wait for ARIN to
reallocate the defunct ISP's space? And once it does, if the space gets
reallocated to ISP-X, do all of the customers _have to_ sign up with
this ISP to hold onto their numbers for a while? Or do customers have
some time to take the numbers with them to another ISP while things get
ironed out?

Actually, I would expect the latter has happened. What has been done?

Making non-portable numbers portable would be a Bad Thing. But I've
been in the position of IP lock-in too. It's not a good feeling.
The non-portable/portable designation is purely an administrative
boundary. The justice system is all about administrative boundaries.
There is no technical reason it cannot be done.

5

What I AM looking for is a commentary from the internet community,
strictly relating to the fact that a judge has issued a TRO that forces an
ISP (NAC) to allow a third-party, who WILL NOT be a Customer of NAC, to be
able to use IP Space allocated to NAC. In other words, I am asking people
to if they agree with my position, lawsuit or not, that non-portable IP's
should not be portable between parties, especially by a state superior
court ordered TRO.

  It is at least my opinion that this is a ludicrous argument. While this
would certainly cause problems if everyone did it and it isn't the norm,
it's ridiculous to argue that there could never exist a situation where this
might not be the best temporary solution to a legitimate dispute between
parties.

  Consider, for example, if I'm a large customer single-homed to one ISP.
They go out of business and can't continue to provide me with service with
four hours notice. They want to return their block to ARIN immediately and
force me to renumber in a day. So you're saying it's unreasonable for a
court to order them to delay the sale for 30 days and allow me to continue
using those IPs through another provider? Why?!

  You can't argue this in the total abstract without the context of the
actual dispute between the parties and the actual effects of allowing or not
allowing this on each party. If you think the judge is out of his mind, then
bluntly, you are out of yours.

  Yes, it would be bad if everyone did this. But if we really believe that IP
addresse are non-portable for purely technical reasons and not as a weapon
to use against customers, then we should be very agreeable to cases where a
customer wants a reasonable time to continue using the IPs. IMO, 99.9% of
the time, they should also be continuing to get service from the provider,
but it would be really silly to say there could never exist an exception.

  DS

6

:
:
:> What I AM looking for is a commentary from the internet community,
:> strictly relating to the fact that a judge has issued a TRO that forces an
:> ISP (NAC) to allow a third-party, who WILL NOT be a Customer of NAC, to be
:> able to use IP Space allocated to NAC. In other words, I am asking people
:> to if they agree with my position, lawsuit or not, that non-portable IP's
:> should not be portable between parties, especially by a state superior
:> court ordered TRO.
:
: It is at least my opinion that this is a ludicrous argument. While this
:would certainly cause problems if everyone did it and it isn't the norm,
:it's ridiculous to argue that there could never exist a situation where this
:might not be the best temporary solution to a legitimate dispute between
:parties.
:
: Consider, for example, if I'm a large customer single-homed to one ISP.
:They go out of business and can't continue to provide me with service with
:four hours notice.

Consider Randy's ealier recollection, which many should also recall. In
the context of the currently publicly available documents, any further
discussion is less than operationally relevant.

cheers,
brian

7

Not an ARIN example but when KPNQwest went out of business, the situation
was as you desribe and it would have been difficult to everybody to quickly
renumber so their PA assigned customer ip blocks with assistance of RIPE
became PI blocks (at least this is how I understood it, people in europe
can correct me if this is not right). So the precidents do exist, but
they involve having RIR take over the block.

8

One comment: the moment the KPNQwest network was turned off was a long time coming. (And a side note: KPNQ customers made some final, fairly big payments for the express purpose of keeping the network running (this money was supposed to go to the power company, AFAIK), but the banks just intercepted this money and kept it. The court didn't think anything wrong with this.)

9

Hi,

There are many instances in the business world where a court prohibits you
from disconnecting services to a customer so that their business can
continue to operate, such as during chapter 11 bankruptcy proceedings. You
should really be *glad* that they ARE paying you, and especially at the
rates mentioned in their affidavit, for that much longer. Or perhaps you
are seeing something in this that I am not?

This is more than the court prohibiting NAC from terminating this
customer (on their request!)..

The TRO says:

(f) NAC shall permit UCI to continue utilization through any carrier or
carriers of UCI's choice of any IP addresses that were utilized by,
through or on behalf of UCI under the April 2003 Agreement during the
therm thereof (the "Prior UCI Addresses) and shall not interfere in any
way with the use of the Prior UCI Addresses.

I don't know about you, but I read this as a court converting non-portable
address space to portable address space, without looking at the
consequenses for ARIN, NAC and network operators around the world who
need to utilize more RAM in their routers to store additional routes
simply because they are to ignorant to follow the technical guidelines
and policies of ARIN. And I find this situation highly undesirable,
regardless of any of the other facts mentioned in the legal documents
(which I have read, thanks for those).

And then I'm not even taking into account the fact that the UCI/Pegasus
is a well-known spammer (http://www.spews.org/html/S2649.html).

10

I imagine NAC is pretty tired of being RBL'd. Can't blame them for being
eager to rid themselves of this pest.

The next provider who ends up with pegasus is going to regret it.

-Dan

11

> And then I'm not even taking into account the fact that the UCI/Pegasus
> is a well-known spammer (http://www.spews.org/html/S2649.html).

I imagine NAC is pretty tired of being RBL'd. Can't blame them for being
eager to rid themselves of this pest.

I do not see it that way, from what is known so far, NAC for some time
has been trying to either buy pegasus or force them to sign long term
agreement with terms that would be very beneficial to NAC financially.
Pegasus refused and decided (on its own) to get out but both NAC and
pegasus were still until recently negotiating on NAC continuing to provide
transit to them under new agreement. Current situation seems to be result
of the breakdown of those negotiations. So it seems the parties were not
eager to terminate the connectivity and transit relationship.

Also knowing internal opinion of some NAC employees and principals on
spews and other rbls, I doubt spews listing would have played significant
role as to the current dispute, although possibly NAC did try to go after
some smaller spamming customers who were probably also not paying their
bills too well.

The next provider who ends up with pegasus is going to regret it.

It seems the problem pegasus has is that they tried to grow too fast and
they did not have good business sence on doing certain necessary work
for their network (like not relying on just one upstream so much and
having renumbering done ahead of planned move). In line with that would be
that they did not setup necessary process to screen and check new customers
and do not have good policies on terminating spam-supporting existing ones.

So perhaps rather then immediatly screem at their next upstream who will
likely have gigabit traffic from them and would not be likely to terminate
such lucrative contract, it would be better to first try to educate as
to what are good abuse policies and how they should be enforced.

12

As more and more of the "facts" come to light, it appears that NAC has brought
much of this on themselves, and will need to dedicate the legal resources to
counter the claims of Pegasus, in fact their own survival may well depend on
it. I have to admit I have little sympathy for them or any provider who hosts
spam operations.

Historically, NAC.net has received spam reports by the tens of thousands, and
have consistently did not much more than pass out rhetoric. Their contract
with pegasus, as well as their publically published Terms of Service were
rarely, if at all, enforced, which appears to have come home to bite them.

Pegasus applied for and wants to have direct access via direct allocations,
probably for the simple reason of allowing themselves to become a bullet-proof
spam host operation. Obviously spamming is very profitable, and they wish to
stay on the cash train awhile longer. NAC likewise did nothing to interrupt
their own revenue source despite the number of complaints.

Any new carrier that picks them up is going to bring upon themselves a "bucket
of hot water" given the history of this operation.

Whle they may not enter into evidence the multiple violations of AUP and TOS
they would have to show that they attempted to enforce the contracts, which
they simply did not do. I doubt there is a judge anywhere who would not
recognize and understand the term "spam" and its effects on the carrier's
operations.

Hopefully this whole affair will be a wake-up call to providers who put revenue
ahead of sound policy enforcement, assuming they have enforceable policies in
effect.

13

Europeans have been nitpicking above info to me privately. I'll summarize
what was said to me:

KPNQwest blocks were dealt with differently depending what country this
was for. In some cases, the blocks were converted to PI by RIPE. In some
cases other companies bought KPNQwest operations for particular country
and became responsible LIR. Those LIRs did not mind about other ISPs
announcing parts of those ip blocks separately although RIPE is as of
late been trying to get them to clean up that space and things may change.
Additionally there were some early blocks from KPN to begin with where it
is not entirely clear if they were supposed to have been PI or PA and
those were resolved to PI. Also notable is that former KPN techs and ip
admins after the company was gone, on their own time and without getting
any compensation worked with RIPE to try to resolve the issues as much as
possible and to help their former customers.

Additionally with permission I'm reposting the email on how the issue of
customer with PA space changing ISPs is dealt with:

14

Question:
What would be the practical effects of a court decision if a 3rd party ISP:
1) buys NAC;
2) inherit the PA space;
3) and *operating* from abroad (non-US), anounces the same portion of PA
space the court said belongs to the customer.

15

As more and more of the "facts" come to light, it appears that NAC
has brought much of this on themselves, and will need to dedicate
the legal resources to counter the claims of Pegasus, in fact their
own survival may well depend on it. I have to admit I have little
sympathy for them or any provider who hosts spam operations.

[...]

Obviously spamming is very profitable, and they wish to stay on the
cash train awhile longer. NAC likewise did nothing to interrupt
their own revenue source despite the number of complaints.

This is where I think you're confused.

If you'd take a moment to verify your "facts" prior to posting, you'd
realize that UCI/Pegasus/DedicatedNow is anything but the spam house
you speak of. To the contrary, they're a web hosting company, who
sold a good volume of budget-priced dedicated servers a year or two
back.

If you've got any knowledge of the low-end "dedicated server" market,
you'd realize an overwhelming majority of its customers are
inexperienced armchair sysadmins, many of whom operate vulnerable
formmail CGI's, open relays, irresponsible mass-mailing campaigns,
affiliate/reseller programs with *their* customers participating in
the above, and all sorts of things which generate complaints (and
rightfully so). And of course, when you're dealing with 1000's of
servers deployed, there's only so much policing the provider can do on
a *proactive* basis.

I know firsthand that Pegasus employs full-time folk who actively deal
with abuse/AUP enforcement, including the termination of spammers on
their network. I'd even go out on a limb and say they're more
responsible than many of their competitors in this regard. It's not
like they're making a conscious effort to hold on to a couple of
very-low-profit-margin dedicated server customers to extract every
last penny out of them, thus getting their IP space blackholed and
hurting overall customer satisfaction/retention metrics in the
process. :slight_smile:

Whether or not you approve of their recent legal actions (wrt TRO and
IP address space portability), try not to let that obscure the simple
facts of the matter...

-a

16

I also have little sympathy for a provider who hosts spammers, but I know the NAC people and they ain't spammer or spam friendly.

Secondly, why would NAC have to do ANYTHING to survive. They can just go "okay", let the space slip out of their hands, ignore any complaints / whatever that come through on it, and go their merry way.

The TRO of and by itself is ... troublesome, but not a threat to the Internet. If this becomes common practice, we are all in trouble.

Guess we will all just have to wait and see.

17

I'm just wondering how that differs from ANY OTHER NETWORK on the Internet? Do you have a lot of providers coming to you offering terms which are not financially beneficial to them? Have you never had someone ask to buy you out?

These are not material to the discussion at hand, IMHO. Just 'cause I want to buy your biz and/or want to charge you lots of money does not mean you should get to keep your IP space. NAC honored the contract in place until it expired - and was not renewed _at the customer's request_. Why does what NAC wants to charge after the current contract expired matter?

18

What I AM looking for is a commentary from the internet community,
strictly relating to the fact that a judge has issued a TRO that forces an
ISP (NAC) to allow a third-party, who WILL NOT be a Customer of NAC, to be
able to use IP Space allocated to NAC. In other words, I am asking people
to if they agree with my position, lawsuit or not, that non-portable IP's
should not be portable between parties, especially by a state superior
court ordered TRO.

What the initial mail you send didnt contain however was two vital pieces
of information:

1) NAC made (and contractually can make) changes to a customer contract
   with only a 45 day notice. Normal business practise is in the order of
   three months (90 days)
2) According to the ex-customer, they are working on migrating to their own
   IP range, but cannot finish this in 45 days.

You suggested that the customer was "too lazy to renumber", which was
as far as I read the online court documents was not what they wrote.
They wanted more time to migrate.

form an opinion about the case. It asks Internet Operators, as a
community, if portability of non portable space is bad.

"to give ex-customer an extra numbers of days to migrate away"

but, more importantly, I am verifying that our opinion regarding IP
portability is one that the community as a whole shares.

I believe this is a cornercase well handled by the courts. It is not
about permanently breaking ICANN/ARIN policies, but about a
temporary situation between two parties in conflict.

Paul

19

As more and more of the "facts" come to light, please do some research before
you accuse an ASN a SpamBone just by looking at spamhaus & Co. lists.

They are a budget-fitting dedicated server + colocation service provider with
over 1500 servers on the network premise. They've lacked certain planning that
was necessary to actively identify and defeat spammers in the initial time. They
did institute plans and remedies to resolve spam issues and they've canned many
number of spam-hosting customers in the recent months -- that's a fact. Most of
their spam-prone customers are from 1-2 years ago, signed up when they've lacked
resources to deal with such an abuse, which since then they've been working on
correcting their problems.

Just how do you clean up your whole 1500-server network to have zero-spammers
overnight? Kick out your customer whenever you see ^H^H^H^Hspamreport sent to
abuse@ without taking any time to investigate the cause and who committed it?
   Remember, most of dedicated server providers (i.e. ThePlanet, ServePath,
Managed.com, ev1servers, etc), have majority of their customer base being
web hosting companies, who also provide end-user services to their own
customers.

I would be quite pissed if I run a dedicated-server based web hosting company
and my provider just shuts off my box after receiving an abuse, without even
giving me a week to identify which one of my hundreds of web site hosted clients
have committed abuse.

Believe me, if Pegasus was active spamming-friendly company, NAC would've kicked
them out the door a long time ago. NAC *does* have full time and responsible
abuse department.

-J