Re: RPKI adoption (was: Re: Corporate Identity Theft: Azuki, LLC -- AS13389, 216.179.128.0/17)

[John Curran <jcurran () arin net>]

On 14 Aug 2019, at 1:01 AM, William Herrin <bill () herrin us> wrote: 
> ...
> >  I would observe that continued use at that point has been held
> > to indicate agreement on your part [ref: Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004)]
>
> In which Verio admitted to the court that they knew they were abusing Register's computers but figured Register's 
> contract with ICANN gave them the right. The court would have reached the same decision regardless of Register's 
> notice: You're abusing computers that aren't yours. Stop it.

BIll - 

The particular finding from Register v. Verio that is relevant was that a user made aware of applicable terms with each 
query (even at the end) is sufficient for contractual binding after continued use.  

> Specht v. Netscape Communications Corp, on the other hand, found that, "plaintiffs neither received reasonable notice 
> of the existence of the license terms nor manifested unambiguous assent" to the contract Netscape offered for the use 
> of their software at download-time, including assent to settle disputes through arbitration.

Register v. Verio was after Specht v Netscape, and distinguished the situation where the user received terms at the end 
of each response from those cases where a user couldn’t reasonably determine that there were any applicable terms and 
conditions. 

> I'll take any bet you care to offer that the latter precedent applies to casual consumer use of ARIN's whois.

That bet is available to you at any time by violating the terms the ARIN’s Whois service, so the question to ask 
yourself is: "do you feel lucky?”

Thanks,
/John

John Curran
President and CEO
American Registry for Internet Numbers