The question of whether IPv4 numbers qualify as property has been the subject of much discussion over the years.
It was also a recent hot topic on ARIN’s Public Policy Mailing List – with some commenters insistent that IPv4 number registrants currently have legally enforceable rights in the numbers registered to them and others disputing that any such interest exists. ARIN’s RSA and LRSA, meanwhile, specifically state that “number resources are not property” and that the holder “does not and will not have or acquire any property rights in or to any number resources for any reason . . .”
As lawyers working within this domain, the principals of Avenue4 have researched the subject extensively. Although the answer is not as crisp as many would like, after balancing the conflicting considerations, we believe the common law supports finding property rights in IPv4 numbers.
When a resource is considered part of the commons, allocation and access are governed by the community. When a resource is considered “private property,” the law vests the owners with rights of control and access. The courts in the U.S. have found that a resource rises to the level of “private property” where the holder of that resource has the right to possess, the right to use, and the right to dispose of the resource, and the right to exclude others from enjoying these other rights. Scarcity of the resource and its commercial value are key catalysts to moving a resource along the spectrum from commons to private property.
So where do IPv4 number resources fall on the spectrum? The best example of a category of property newly recognized in the modern era is domain names. In 2003, domain names attained the legal status of property in the Ninth Circuit case, Kremen v. Cohen, a decision that has been followed by numerous courts. In concluding that domain names were intangible property, the Ninth Circuit found that a property interest must satisfy three conditions: (1) it must be “an interest capable of precise definition,” (2) the interest must be “capable of exclusive possession or control,” and (3) “the putative owner must have established a legitimate claim to exclusivity.”
A court asked to decide on the property status of IPv4 numbers would, by operation of judicial precedents, apply this property law test as it is readily extendable to IPv4 numbers. We would also expect that, applying this test, the court would reach the same conclusion the Ninth Circuit did with respect to domain names: (1) IP number registrants have sole authority to decide how their numbers will be used within the Internet; (2) registrants have the right and authority to use IPv4 numbers exclusively for routing over the public Internet; and (3) like domain names, registrants are reflected in an authorized Internet registry, which “informs others that the [IPv4 number] is the registrant’s and no one else’s.”
IPv4 numbers, like domain names, are now considered a valuable asset, and like domain names, they possess all of the requisite ingredients of private property.
