Re: [antitrust-policy] Key takeaways from genarea session at IETF 118

On Wed, Jan 10, 2024 at 7:49 AM Jay Daley <exec-director@ietf.org> wrote:

> Following up on this on behalf of the authors:
>
> 1.  There was a proposal under "4.2 Topics Requiring Caution" to replace
>
> "Using detailed market data to evaluate the relative implementation costs
> of two technical alternatives to decide whether one is significantly more
> feasible in the market and thus a better candidate for standardization."
>
> with
>
> "Using unpublished market data to evaluate the relative implementation
> costs of alternative technical proposals to decide …"
>
> This change appeared to have agreement, but it became clear that there is
> no clear common understanding of what is meant by "market data" and a
> number of questions along the lines "does it include X?", and to a lesser
> degree what is meant by "unpublished".  One person in particular asked if
> it was a term of art in competition law and so we are consulting on lawyers
> about that.  It is likely some additional text is required to help explain
> this term.
>
>
> "market data" is not a term of art and as this is where there is real
> difficulty in interpretation, we are looking at new wording for this that
> helps people understand it better.  The "unpublished", while not entirely
> clear to some, we think is clear enough to progress with for now.
>
>
> 2.  There was another proposal under "4.2 Topics Requiring Caution" to
> replace
>
> "Entering into group negotiations of IPR terms."
>
> with
>
> "Entering into private or potentially discriminatory, group negotiations
> of IPR terms."
>
> After discussion, general agreement appeared to be reached that rather
> than "private or potentially discriminatory", the emphasis should be on
> avoiding group negotiations of IPR within parts of the IETF process that
> are not fully open and transparent, such as within the iESG or in Design
> Teams. New text is still needed to capture that.
>
>
> We’ve had advice that the focus on something taking place in private is
> mistaken because a cartel can form entirely in the open and still be an
> illegal cartel.  The important point here is the "potentially
> discriminatory", which we believe is clear enough as is and so we’re
> proposing to move forward with
>
> "Entering into potentially discriminatory, group negotiations of IPR
> terms."
>
> If anyone has concerns with this, then please let us know.
>

I don't know how to evaluate "potentially discriminatory" in this context.
Given the obvious difficulty with this text, I think it should be struck
entirely.

-Ekr

> A new version of the I-D will be published shortly with these changes and
> with one reference fixed.  This new version will also see Brad Biddle, IETF
> counsel, drop from the list of authors as he is on extended leave and
> unable to participate as an author.
>
> cheers
> Jay
>
> --
> Jay Daley
> IETF Executive Director
> exec-director@ietf.org
>
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