Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1538 Page 1 of 39
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`
`Randy K. Jones - SBN 141711
`rkjones@mintz.com
`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKY AND POPEO, P.C.
`3580 Carmel Mountain Road, Suite 300
`San Diego, California 92130
`Telephone: (858) 314-1510
`
`Attorney for Mark Manoogian
`
`
`Whitney Z. Bernstein - SBN 304917
`wbernstein@bmkattorneys.com
`Thomas H. Bienert, Jr. - SBN 135311
`tbienert@bmkattorneys.com
`James Riddet – SBN 39826
`jriddet@bmkattorneys.com
`BIENERT | KATZMAN PC
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`
`Attorneys for Mohammed Abdul Qayyum
`
`
`Gary S. Lincenberg - SBN 123058
` glincenberg@birdmarella.com
`Naeun Rim - SBN 263558
` nrim@birdmarella.com
`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW, P.C.
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
`
`Attorneys for Petr Pacas
`
`David W. Wiechert - SBN 94607
`dwiechert@aol.com
`Jessica C. Munk - SBN 238832
`jessica@wmgattorneys.com
`William J. Migler - SBN 318518
`william@wmgattorneys.com
`WIECHERT, MUNK & GOLDSTEIN,
`PC
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, California 92675
`Telephone: (949) 361-2822
`
`Attorneys for Jacob Bychak
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` CASE NO. 3:18-cr-04683-GPC
`
`DEFENDANTS’ JOINT REQUEST
`FOR JUDICIAL NOTICE
`
`Date: June 26, 2020
`Time: 2:30 p.m.
`Crtrm.:
`2D
`
`Assigned to Hon. Gonzalo P. Curiel
`
`Defendants.
`
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`vs.
`
`JACOB BYCHAK, MARK
`MANOOGIAN, MOHAMMED
`ABDUL QAYYUM, AND PETR
`PACAS,
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` 3650023.1
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`Case No. 3:18-cr-04683-GPC
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`DEFENDANTS’ JOINT REQUEST FOR JUDICIAL NOTICE
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`Defendants Jacob Bychak, Mark Manoogian, Mohammed Abdul Qayyum, and
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`Petr Pacas, (“Defendants”) respectfully request that the Court take judicial notice,
`pursuant to Federal Rules of Evidence (“Rule”) 201(b), of the following documents
`attached as exhibits A through I.
`1.
`Attached as Exhibit A is a true and correct copy of an excerpt of a Registry
`Service Agreement (“RSA”) template dated March 10, 2011, by American Registry for
`Internet Numbers, Ltd (“ARIN”), produced to Defendants by ARIN as Bates numbers
`ARIN-BYCHAK 0096, with emphasis added in yellow.
`2.
`Attached as Exhibit B is a true and correct copy of an excerpt of an RSA
`template dated June 18, 2004, produced to Defendants by ARIN as Bates numbers
`ARIN_BYCHAK_0053, with emphasis added in yellow.
`3.
`Attached as Exhibit C is a true and correct copy of an excerpt of an RSA
`template dated October 31, 2007, by ARIN and produced to Pacas as Bates numbers
`ARIN_BYCHAK_0120-123, with emphasis added in yellow.
`4.
`Attached as Exhibit D is a true and correct copy of an excerpt of a Federal
`Communications Commission (“FCC”) Staff Working Paper by Robert Cannon and
`produced to Defendants by ARIN as Bates numbers ARIN_BYCHAK_0280, with
`emphasis added in yellow.
`5.
`Attached as Exhibit E is a true and correct copy of an excerpt of an article
`entitled “Guidance from ARIN on Legal Aspects of the Transfer of Internet Protocol
`Numbers” published in Business Law Today and produced to Defendants by ARIN as
`Bates numbers ARIN_BYCHAK_0188-192, with emphasis added in yellow.
`6.
`Attached as Exhibit F is a true and correct copy of an excerpt of an article
`entitled “Internet Protocol Numbers and the American Registry for Internet
`Numbers...” published in Bloomberg BNA and produced to Defendants by ARIN as
`Bates numbers ARIN_BYCHAK_0193-197, with emphasis added in yellow.
`7.
`Attached as Exhibit G is a true and correct copy of an excerpt of a letter from
`the National Telecommunications and Information Administration and produced to
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`3650023.1
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`Defendants by ARIN as Bates numbers ARIN_BYCHAK_0001-02, with emphasis
`added in yellow.
`8.
`Attached as Exhibit H is a true and correct copy of an excerpt of a letter from
`Canada’s Department of Industry regarding Case No. 09-10138 (KG) and produced to
`Defendants by ARIN as Bates numbers ARIN_BYCHAK_0269-271, with emphasis
`added in yellow.
`9.
`Attached as Exhibit I is a true and correct copy of an excerpt from a Blackline
`Amended Purchase Agreement filed by the parties in In re Nortel Networks Inc., Case No.
`09-10138-CCS (Bankr. D. Del.) as Dkt. 5254-4.
`MEMORANDUM OF POINTS AND AUTHORITIES
`Pursuant to Federal Rule of Evidence 201(b), a court may notice an adjudicative
`fact if it is “not subject to reasonable dispute.” A fact is “not subject to reasonable
`dispute” if it is “generally known,” or “can be accurately and readily determined from
`sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2).
`See Stiefel v. Bechtel Corp., 497 F. Supp. 2d 1138, 1144 (S.D. Cal. 2007) (Facts are not
`“subject to reasonable dispute” when “they are generally known in the
`community….”). A court shall take judicial notice of a judicially noticeable fact “if
`requested by a party and supplied with the necessary information.” Fed. R. Evid.
`201(d). “A party is entitled upon timely request to an opportunity to be heard as to the
`propriety of taking judicial notice and the tenor of the matter noticed.” Fed. R. Evid.
`201(e).
`A Court may take judicial notice of items like public notices, decisions,
`government documents, and other materials of administrative agencies, including
`documents available from reliable sources on the internet. See Papai v. Harbor Tug &
`Barge Co., 67 F.3d 203, 207 n.5 (9th Cir.1995) (“Judicial notice is properly taken of
`orders and decisions made by other courts and administrative agencies.”), rev’d on other
`grounds, 520 U.S. 548 (1997); Barrera v. Comcast Holdings Corp., No. 14-cv-00343-THE,
`2014 WL 1942829, n.1 (N.D. Cal. May 12, 2014) (granting request for judicial notice of
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`3650023.1
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1541 Page 4 of 39
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`FCC docket materials indicating FCC sought public comment on petition);
`Robinson v. Mortgage Elec. Registration Sys., No. CV 19-2185 PSG (ASx), 2019 WL
`2491550, at *7 (C.D. Cal. June 14, 2019) (Court “can take judicial notice of ‘[p]ublic
`records and government documents available from reliable sources on the Internet.’”).
`In addition, Courts routinely take judicial notice on press release documents and
`published articles provided that the authenticity of the documents is not in dispute. See,
`e.g., Patel v. Parnes, 253 F.R.D. 531, 547 (C.D. Cal. 2008); In re American Funds Securities
`Litigation, 556 F. Supp. 2d 1100, 1107 (C.D. Cal. 2008); Lane v. Page, 649 F. Supp. 2d
`1256, 1300 (D.N.M. 2009).
`Here, meeting the test enunciated in Rule 201, each of the facts for which the
`Defendants request the Court take judicial notice are either generally known to the
`community or may be accurately and readily determined by sources whose accuracy
`cannot reasonably be questioned. For example, in regards to Exhibits A-C, Registry
`Service Agreements produced by ARIN, it is generally known, especially in the internet
`marketing community, that ARIN is the controlling authority when it comes to the
`administration of Internet Protocol addresses. Likewise, Exhibit E, an article entitled
`“Guidance from ARIN on Legal Aspects of the Transfer of Internet Protocol
`Numbers” published in Business Law Today, and Exhibit F, an article entitled “Internet
`Protocol Numbers and the American Registry for Internet Numbers...” published in
`Bloomberg BNA, are also articles written by ARIN in third-party publications regarding
`IP addresses. Indeed, courts have taken judicial notice of ARIN’s policies and
`statements regarding IP addresses before, including this Court. See United States v.
`Bychak, 18-CR-4683 GPC (Dkt. 154 at 3-4) (relying on an online version Exhibit E and
`excerpts from ARIN’s website); Global Naps, Inc. v. Verizon New Eng., Inc., No. 02-
`12489-RWZ, 2015 WL 12781223 at 16 n.1 (D. Mass. Mar. 10, 2015) (taking judicial
`notice of ARIN’s policy that “if a company goes out of business, regardless of the
`reason, the point of contact (POC) listed for the number resource does not have the
`authority to sell, transfer, assign, or give the number resource to any other person or
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`3650023.1
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`Case No. 3:18-cr-04683-GPC
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1542 Page 5 of 39
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`organization.”).
`In addition, Exhibit D, an FCC Staff Working Paper, and Exhibit G, a letter
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`from the National Telecommunications and Information Administration, are
`publications from federal agencies. Exhibit H is a letter from Canada’s Department of
`Industry regarding Canada’s position on whether IP addresses are property. These
`exhibits are subject to judicial notice because they contain facts that are accurately and
`readily determined from sources whose accuracy cannot reasonably be questioned. See
`Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999) (Public records and
`government documents are generally considered “not to be subject to reasonable
`dispute.”); Moore v. Verizon Commc’n Inc., No. C 09-1823 SBA, 2010 WL 361987 (N.D.
`Cal. Sept. 10, 2010) (taking judicial notice of decisions and policy statements of the
`Federal Communications Commission.); see also Pension Benefit Guar. Corp. v. White
`Consol. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993) (Courts have defined a public
`record to include letter decisions of government agencies, and published reports of
`administrative bodies).
`Finally, Exhibit I is an excerpt from a Blackline Amended Purchase Agreement
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`filed by the parties in In re Nortel Networks Inc., Case No. 09-10138-CCS (Bankr. D.
`Del.) as Dkt. 5254-4. This exhibit is subject to judicial notice because it is a matter of
`public record that was filed on PACER. United States v. Raygoza-Garcia, 902 F.3d 994,
`1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public
`record, which may include court records available through PACER”).
`/ / /
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`3650023.1
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`Case No. 3:18-cr-04683-GPC
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1543 Page 6 of 39
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`For the foregoing reasons, Defendants Jacob Bychak, Mark Manoogian,
`
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`Mohammed Abdul Qayyum, and Petr Pacas hereby requests that the Court take judicial
`notice of Exhibits A through I.
`
`DATED: May 18, 2020
`
`Gary S. Lincenberg
`Naeun Rim
`Bird, Marella, Boxer, Wolpert, Nessim,
`Drooks, Lincenberg & Rhow, P.C.
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`DATED: May 18, 2020
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`DATED: May 18, 2020
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`DATED: May 18, 2020
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`By:
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`s/ Naeun Rim
`Naeun Rim
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`Attorneys for Petr Pacas
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`David W. Wiechert
`Jessica C. Munk
`William J. Migler
`Wiechert, Munk & Goldstein, PC
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`By:
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`s/ David W. Wiechert
`David W. Wiechert
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`Attorneys for Jacob Bychak
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`Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`James Riddet
`BIENERT | KATZMAN PC
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`By:
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`s/ Whitney Z. Bernstein
`Whitney Z. Bernstein
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`Attorneys for Mohammed Abdul Qayyum
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`Randy K. Jones
`Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
`P.C.
`By:
`
`s/ Randy K. Jones
`Randy K. Jones
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`Attorney for Mark Manoogian
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`3650023.1
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`Case No. 3:18-cr-04683-GPC
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1544 Page 7 of 39
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`CERTIFICATE OF AUTHORIZATION
`TO SIGN ELECTRONIC SIGNATURE
`
`Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative Policies
`
`and Procedures of the United States District Court for the Southern District of
`California, I certify that the content of this document is acceptable to counsel for the
`Defendants and that I have obtained authorization from Randy K. Jones, David W.
`Wiechert, and Whitney Z. Bernstein to affix their electronic signatures to this
`document.
`
`
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`DATED: May 18, 2020
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`Respectfully submitted,
`
`Gary S. Lincenberg
`Naeun Rim
`Bird, Marella, Boxer, Wolpert, Nessim,
`Drooks, Lincenberg & Rhow, P.C.
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`By:
`
`s/ Naeun Rim
`Naeun Rim
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`Attorneys for Petr Pacas
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` 3650023.1
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`Case No. 3:18-cr-04683-GPC
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`DEFENDANTS’ JOINT REQUEST FOR JUDICIAL NOTICE
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`CERTIFICATE OF SERVICE
`Counsel for Defendants certify that the foregoing pleading has been
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`electronically served on the following parties by virtue of their registration with the
`CM/ECF system:
`
`Sabrina L. Feve
`Assistant U.S. Attorney
`sabrina.feve@usdoj.gov
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`Melanie K. Pierson
`Assistance U.S. Attorney
`melanie.pierson@usdoj.gov
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`DATED: May 18, 2020
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`Respectfully submitted,
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`Gary S. Lincenberg
`Naeun Rim
`Bird, Marella, Boxer, Wolpert, Nessim,
`Drooks, Lincenberg & Rhow, P.C.
`
`By:
`
`s/ Naeun Rim
`Naeun Rim
`
`Attorneys for Petr Pacas
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`3650023.1
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`Case No. 3:18-cr-04683-GPC
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`DEFENDANTS’ JOINT REQUEST FOR JUDICIAL NOTICE
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1546 Page 9 of 39
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`EXHIBIT A
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`9
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1547 Page 10 of 39
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`RSA: Version 10.2 (10 March 2011)
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`9. NO PROPERTY RIGHTS
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`Applicant acknowledges and agrees that the number resources are not property (real, personal,
`or intellectual) and that Applicant does not acquire any property rights in or to any number
`resources by virtue of this Agreement or otherwise. Applicant further agrees that it will not
`attempt, directly or indirectly, to obtain or assert any trademark, service mark, copyright, or any
`other form of property rights in any number resources in the United States or any other country.
`
`10. REPRESENTATIONS AND WARRANTIES
`
`(a) By Each Party. Each party represents and warrants to the other party that: (i) it has the full
`power and authority to enter into and perform its obligations under this Agreement; (ii) the assent
`to and performance by it of its obligations under this Agreement do not constitute a breach of or
`conflict with any other agreement or arrangement by which it is bound, or any applicable laws,
`regulations, or rules; and (iii) this Agreement constitutes a legal, valid, binding, and an executory
`obligation of the parties executing or assenting to this Agreement, enforceable in accordance with
`its terms and conditions.
`
`(b) By Applicant. Applicant hereby represents and warrants to ARIN that during the term of this
`Agreement: (i) it will not infringe the patent, copyright, trademark, trade secret, right of publicity, or
`other right of any third party in its use of the Services; and (ii) Applicant will comply with this
`Agreement, the Policies, and all applicable laws, rules, and regulations in its use of the Services.
`
`11. BANKRUPTCY
`
`If Applicant: (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (ii)
`becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to
`pay its debts as they become due; (iii) files any petition under any chapter of the Bankruptcy
`Code or other insolvency or bankruptcy law; (iv) has a petition filed against it under any
`insolvency or bankruptcy law; (v) makes a general assignment for the benefit of creditors, has a
`receiver appointed for it, or a trustee takes possession of all or substantially all of Applicant's
`assets; or (vi) ceases or affirmatively indicates its intent to cease its normal business operations
`(each of the foregoing, a "Bankruptcy Event"), Applicant will notify ARIN immediately. Upon such
`notice, or if ARIN otherwise learns of the occurrence of any of the foregoing events, ARIN may
`intervene in any such bankruptcy or insolvency proceeding or take other appropriate, lawful
`action to preserve its rights under this Agreement and the Policies, and its ability to provide the
`Services to its other users, including, without limitation: (i) revoking the number resources
`assigned to Applicant; and/or (ii) terminating this Agreement. Applicant agrees to consent to
`ARIN's intervening in any such bankruptcy court proceeding so that ARIN can protect its rights
`under this Agreement with respect to the Policies, number resources, and any other rights ARIN
`has under this Agreement. Applicant acknowledges and agrees that this Agreement is executory.
`Applicant acknowledges and agrees that it holds no title or property interest in the number
`resources and such number resources do not, and shall not, constitute property of the Applicant's
`bankruptcy estate within the meaning of Section 541 of Title 11 of the United States Code (the
`"Bankruptcy Code"). Applicant hereby acknowledges and agrees that, upon the occurrence of a
`Bankruptcy Event, such Bankruptcy Event or any other event of default under this Agreement
`shall constitute "cause" pursuant to Bankruptcy Code Section 362(d) for granting ARIN relief from
`the automatic stay or any other applicable injunction to exercise its rights and remedies under this
`Agreement, and Applicant shall, and hereby does, consent to such relief.
`
`12. INDEMNIFICATION
`
`- 4 -
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`ARIN BYCHAK 0096
`
`10
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`

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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1548 Page 11 of 39
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`EXHIBIT B
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`11
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1549 Page 12 of 39
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`RSA: Version 8 (06/18/2004)
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`6. FEES AND PAYMENTS.
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`(a) Fee Schedule. As a condition precedent to ARIN's duty to provide the Services,
`Applicant shall pay ARIN for providing the Services in accordance with ARIN's then-current fee schedule
`(the "Fee Schedule").
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`(b) No Refunds. All fees paid by Applicant to ARIN are non-refundable.
`
`(c) Registration Fees. Applicant shall pay ARIN the applicable "registration fee," as set
`(hyperlink], prior
`the Fee Schedule
`to ARIN providing Applicant with
`its requested
`in
`forth
`allocation/assignment of numbering resources. Applicant shall also pay ARIN the applicable "renewal
`registration fee," if any, as set forth in the Fee Schedule, at least five (5) days prior to each one-year
`anniversary of ARIN's first issuance of the Services to Applicant (e.g., ARIN's initial allocation/assignment of
`numbering resources to Applicant).
`If, for any reason, Applicant does not pay any applicable renewal
`registration fee, ARIN shall have the right to: (i) revoke the numbering resources previously allocated and/or
`previously assigned or (ii) terminate this Agreement.
`
`7. POLICIES. Because of the nature of ARIN's role in the operation and development of the
`Internet, ARIN maintains the Policies and may need to amend its existing Policies, implement new Policies,
`or make certain Policies obsolete. Applicant acknowledges and agrees it has read, understands and agrees
`to be bound by the Policies. Applicant shall fully comply with the Policies, including, without limitation, the IP
`Address Space Allocation and Assignment Policy, the IP Address Space Numbering Resources, Certificate
`Practice Statement, ASN Transfer Policies and Guidelines, and the IP Address Reassignment Policy. ARIN
`may, at any time in its sole and absolute discretion, amend the Policies or create new Policies and such
`amendments or new policies shall be binding upon Applicant thirty days after they are posted on ARI N's web
`site.
`
`8. REVIEW OF APPLICANT'S NUMBERING RESOURCES. ARIN may review, at any time,
`Applicant's use of the previously allocated numbering resources or other Services to determine if Applicant
`is complying with this Agreement, the Policies, and using the Services for their intended purposes. Without
`limiting the foregoing, if Applicant is an Internet Service Provider, Applicant agrees that it will use the
`numbering resources solely for uses consistent with its application, including, for example, its internal
`If ARIN determines that the numbering
`infrastructure or to provide Internet access to its customer base.
`resources or any other Services are not being used in compliance with this Agreement, the Policies, or for
`purposes for which they are intended, ARIN may: (i) revoke the numbering resources, {ii) cease providing
`the Services to Applicant, or (iii) terminate this Agreement.
`
`9. NO PROPERTY RIGHTS. Applicant acknowledges and agrees that the numbering resources
`are not property (real, personal or intellectual) and that Applicant shall not acquire any property rights in or to
`any numbering resources by virtue of this Agreement or otherwise. Applicant further agrees that it will not
`attempt, directly or indirectly, to obtain or assert any trademark, service mark, copyright or any other form of
`property rights in any numbering resources in the United States or any other country.
`
`10. REPRESENTATIONS AND WARRANTIES.
`
`(a) By Each Party. Each party represents and warrants to the other party that: (i) it
`has the full power and authority to enter into and perform its obligations under this Agreement, (ii) the assent
`to and performance by it of its obligations under this Agreement do not constitute a breach of or conflict with
`any other agreement or arrangement by which it is bound, or any applicable laws, regulations or rules, and
`(iii) this Agreement constitutes a legal, valid, binding and an executory obligation of the parties executing or
`assenting to this Agreement, enforceable in accordance with its terms and conditions.
`
`(b) By Applicant. Applicant hereby represents and warrants to ARIN that during the term
`of this Agreement that: (i) it will not infringe the patent, copyright, trademark, trade secret, right of publicity
`or other right of any third party in its use of the Services, and (ii) Applicant will comply with all applicable
`laws, rules and regulations in its use of the Services, including this Agreement and the Policies.
`
`3
`ARIN BYCHAK 0053
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1550 Page 13 of 39
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`EXHIBIT C
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`13
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1551 Page 14 of 39
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`Legacy LSA Version 1.1 (10/31/07)
`
`AMERICAN REGISTRY FOR INTERNET NUMBERS, LTD.
`LEGACY SERVICE AGREEMENT
`
`This LEGACY SERVICE AGREEMENT ("Legacy Agreement") is made by and between the AMERICAN
`REGISTRY FOR
`INTERNET NUMBERS, LTD.
`("ARIN"), a Virginia nonprofit corporation, and
`__________ , ("Legacy Applicant"), which holds the following specifically enumerated
`number resources: __ , __ , __ ("Included Number Resources"). This Legacy Agreement only
`covers the Included Number Resources; any other number resources held by the Legacy Applicant
`pursuant to an existing RSA or not described here are not covered by the terms of this Legacy
`Agreement.
`
`1. INTRODUCTION
`
`ARIN is a Regional Internet Registry serving Canada, many Caribbean and North Atlantic islands, and
`the United States, since 1997, is responsible for the registration, administration, and stewardship of
`Internet number resources in these geographic areas. To complete the process for the regularization
`of the Included Number Resources and the provision of certain Services (as defined herein below),
`Legacy Applicant must comply with the provisions of this Agreement by submitting an application, an
`executed Legacy Agreement and provide any requested accompanying information to ARIN. For
`purposes of this Legacy Agreement, the term "Services" may include, without limitation, the inclusion
`of the legacy IP address space, and/or Autonomous System numbers ("ASNs") previously issued to
`Legacy Applicant in the ARIN "WHOIS" database, inverse addressing on network blocks, maintenance
`of network records, and administration of IP address space related to number resources issued prior
`to ARIN's inception on December 22, 1997 in its service area.
`IP address space and ASNs shall be
`defined as "number resources.")
`
`2. APPLICATION
`
`located at
`Legacy Applicant must complete a legacy application found on ARIN's website,
`"http://www.arin.net" (the "Website"). Legacy Applicant must: (a) provide ARIN with accurate, up-to(cid:173)
`date and complete application information, (b) promptly notify ARIN if any of its information changes
`during the term of this Legacy Agreement, and (c) promptly, accurately, and completely respond to
`any inquiry made to Legacy Applicant by ARIN or its designee during the term of this Legacy
`Agreement. Legacy Applicant agrees that in applying to receive or use the Services and in using the
`Services, it must comply with ARI N's Number Resource Policy Manual, Certificate Practice Statement,
`Guidelines, and Procedures ("Policies"), as published on the Website, as long as the terms of the
`Policies are not inconsistent with this Legacy Agreement. In the event of any inconsistency between
`the Policies and this Legacy Agreement, the terms of this Legacy Agreement will prevail, including but
`If Legacy Applicant
`not limited to those Policies adopted after this Legacy Agreement is executed.
`fails to comply with the terms of this Legacy Agreement, ARIN may terminate this Legacy Agreement
`and refuse to provide the Services to Legacy Applicant.
`
`3. EVALUATION AND ACCEPTANCE
`
`Following Legacy Applicant's completion of the online application process, ARIN will promptly evaluate
`Legacy Applicant's request for the Services. Evaluation may require Legacy Applicant's submission of
`additional documentation to support its application such as, but not limited to, state registration, Dun &
`Bradstreet and/or taxpayer information, and/or registration under the province or country in which the
`entity is registered for verification purposes. If ARIN, in its sole and exclusive discretion, applying its
`published Policies and internal verification process, determines that it can provide the Services to
`Legacy Applicant, ARIN shall provide written notice to Legacy Applicant of its willingness to do so, and
`ARIN will promptly commence providing the Services to Legacy Applicant in accordance with the
`terms and conditions of this Legacy Agreement. If ARIN, in its sole and exclusive discretion, applying
`
`ARIN BYCHAK 0120
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1552 Page 15 of 39
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`policies (which once implemented, will be considered Policies), or make certain Policies obsolete.
`Such amendments or new Policies shall be binding upon Legacy Applicant immediately after they are
`posted on the Website. Legacy Applicant acknowledges and agrees it has read, understands, and
`agrees to be bound by and comply with the Policies, as amended, except to the extent those Policies
`may conflict with the rights and duties provided Legacy Applicant in this Legacy Agreement.
`
`8. REVIEW OF LEGACY APPLICANT'S NUMBER RESOURCES
`
`ARIN may, no more other than annually, or whenever a transfer or additional IP address space is
`requested, review Legacy Applicant's utilization of previously allocated or assigned number resources
`and/or other Services received from ARIN to determine if Legacy Applicant is complying with this
`Legacy Agreement and the Policies.
`
`9. NO PROPERTY RIGHTS
`
`Legacy Applicant acknowledges and agrees that the number resources are not property (real,
`personal, or intellectual) and that Legacy Applicant does not have any property rights in or to the
`Included Number Resources, including but not limited by this Legacy Agreement or the prior issuance
`of these resources to it. Legacy Applicant further agrees that it will not attempt, directly or indirectly, to
`obtain or assert any trademark, service mark, copyright, or any other form of property rights in any
`included number resources in the United States or any other country.
`
`10. VOLUNTARY RETURN OF INCLUDED NUMBER RESOURCES
`
`(a) ARIN requests that Legacy Applicant conform to RFC 2050 and RFC 2008 and voluntarily return
`to ARIN the portion of all Included Number Resources that it is unlikely to need over the next 1 O
`years. A Legacy Applicant that returns no less than 25% of the Included Number Resources will be
`eligible for a series of benefits, including partial or permanent reduction in ARIN fees, membership
`and meeting costs as the Board of Trustees may from time-to-time prescribe. These benefits will
`increase as the percentage of Included Number Resources returned increases to 50% and again at
`75%. ARIN will accept the return of any 1Pv4 address block with a prefix size of a /24 or shorter.
`
`(b) ARIN will take no action to reduce the services provided for Included Number Resources that are
`not currently being utilized by the Legacy Applicant.
`
`11. REPRESENTATIONS AND WARRANTIES
`
`(a) By Each Party. Each party represents and warrants to the other party that: (i) it has the full power
`and authority to enter into and perform its obligations under this Legacy Agreement, (ii) the assent to
`and performance by it of its obligations under this Legacy Agreement do not constitute a breach of or
`conflict with any other agreement or arrangement by which it is bound, or any applicable laws,
`regulations, or rules, and (iii) this Legacy Agreement constitutes a legal, valid, binding, and an
`executory obligation of the parties executing or assenting to this Legacy Agreement, enforceable in
`accordance with its terms and conditions.
`
`(b) By Legacy Applicant. Legacy Applicant hereby represents and warrants to ARIN that during the
`term of this Legacy Agreement: that Legacy Applicant will comply with all applicable laws, rules, and
`regulations in its use of the Services, including this Legacy Agreement and the Policies.
`
`12. BANKRUPTCY
`
`If Legacy Applicant: (a) files any petition under any chapter of the Bankruptcy Code or other
`insolvency or bankruptcy law; or (b) has a petition filed against it under any insolvency or bankruptcy
`law; or (c) makes a general assignment for the benefit of creditors, has a receiver appointed for it, or
`a trustee takes possession of all or substantially all of Legacy Applicant's assets; or (d) ceases or
`
`4
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`ARIN BYCHAK 0123
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1553 Page 16 of 39
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`EXHIBIT D
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`16
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`Case 3:18-cr-04683-GPC Document 164-3 Filed 05/18/20 PageID.1554 Page 17 of 39
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`he RIRs assign address blocks to Local Internet Registrie (LIRs) or networ within their
`territorie pur uant to each RIR 'own policie .21 Those network , in tum, can as ign blocks of
`addresses to maller networks, or individual numbers to individual subscriber .
`
`z
`z
`<:(
`0
`
`/; Afri NIC
`
`Figure 2: IP Address Allocation
`
`;,,,,,,
`
`APNIC
`
`RIPE
`NCC
`
`End
`User
`
`ISP
`
`UR
`
`End
`User
`
`North America
`
`ISP
`
`End
`User
`
`RIRs manage IP numbers as a public resource. When a regi h·y allocates a nutnber to an
`entity, it is giving that entity the ability to use that number; no property right is conferred to the
`recipient. IP numbers are allocated on a needs-basis pur uant to RIR policie ; recipients pay fees
`which upport the operation of the registrie . 22
`
`The IANA allocates IPv4 addres e to RIRs in large blocks of 16,777,216 addresses each
`(r fe1Ted to as "/8" addre blocks). ·within the total 1Pv4 addre s space, there are 256 /8 addr ss
`blocks. Approximately thirty-six of these addre s blocks are held in