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Publication Title

Washington University Law Review

Abstract

The creation of the Internet ushered in an era of unprecedented legal challenges as jurists and legislators struggled to keep up with rapidly evolving technology.1 Chief among these issues is whether certain types of intangible data, specifically Internet Protocol addresses2 (IP addresses), can be owned and treated as intangible property. The world has nearly exhausted its supply of unique IPv4 addresses and the property rights of individuals utilizing IPv4 addresses are poorly defined. This area of law has not been subject to robust examination by the US court system. A few recent bankruptcy cases have tangentially reached the issue of whether IP addresses may be owned by private corporations instead of the Regional Internet Registries (RIRs) that administer and maintain the vast amounts of IP numbers.3 The apparent tension is between those RIRs that wish to maintain their exclusive property rights in all IP addresses, and large companies, universities, and other institutions that were assigned IP addresses with very few, if any, contractual limitations and wish to exercise their own property rights in these IP addresses. This Note will seek to explore the modern issues associated with IP address ownership, evaluate the relative merit of all stakeholders’ property claims vis-à-vis IP addresses, and recommend possible solutions from other areas of property law, while keeping one eye on future developments and market continuity.

This Note will begin by recounting a concise history of the development of IP addresses, taking time to specifically flag changes in concepts of address ownership and providing basic information on subjects such as RIRs, the Internet Corporation for Assigned Names and Numbers (ICANN). Part I will outline the differences between legacy and non-legacy IP addresses, while noting how those differences potentially affect the property rights bound up in the respective categories. Part I will also explore how different stakeholders view property rights in IP addresses. IPv4 address administration is currently organized as a multi-stakeholder model, and as such, this Note is organized by the views of each major stakeholder in IPv4 technology: the American Registry for Internet Numbers’ (ARIN) view, the US Government’s view, and the free market view. Part II will discuss the major cases that have shaped the current state of property rights in IP addresses and similar devices such as domain names. Part III will compare the views of the major stakeholders in IP addresses. Part IV will survey the major theories of property law that underlie the current views on IP address property rights. It will explore how different social values—such as transparency, openness, and fairness—impact whether property rights ought to be recognized in IPv4 addresses. Finally, part V will identify and evaluate potential solutions to this complex legal issue. The most likely of the solutions is a judicial recognition of the existing extra-judicial status quo struck between ARIN and IPv4 address traders.

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