Re: [antitrust-policy] An Antitrust Policy for the IETF

"Joel M. Halpern" <> Sun, 15 January 2012 22:37 UTC

Return-Path: <>
Received: from localhost (localhost []) by (Postfix) with ESMTP id A097521F84B9 for <>; Sun, 15 Jan 2012 14:37:12 -0800 (PST)
X-Virus-Scanned: amavisd-new at
X-Spam-Flag: NO
X-Spam-Score: -101.35
X-Spam-Status: No, score=-101.35 tagged_above=-999 required=5 tests=[AWL=-0.574, BAYES_05=-1.11, IP_NOT_FRIENDLY=0.334, USER_IN_WHITELIST=-100]
Received: from ([]) by localhost ( []) (amavisd-new, port 10024) with ESMTP id 6DJhgCsFpGIZ for <>; Sun, 15 Jan 2012 14:37:12 -0800 (PST)
Received: from ( []) by (Postfix) with ESMTP id 483D321F849C for <>; Sun, 15 Jan 2012 14:37:12 -0800 (PST)
Received: from ( []) by (Postfix) with ESMTP id 06A0FA3783 for <>; Sun, 15 Jan 2012 14:37:12 -0800 (PST)
Received: from localhost (localhost []) by (Postfix) with ESMTP id 5430FD407CA; Sun, 15 Jan 2012 14:37:11 -0800 (PST)
X-Virus-Scanned: Debian amavisd-new at
Received: from [] ( []) (using TLSv1 with cipher DHE-RSA-AES256-SHA (256/256 bits)) (No client certificate requested) by (Postfix) with ESMTPSA id 9306ED4069A; Sun, 15 Jan 2012 14:37:10 -0800 (PST)
Message-ID: <>
Date: Sun, 15 Jan 2012 17:37:08 -0500
From: "Joel M. Halpern" <>
User-Agent: Mozilla/5.0 (Windows NT 5.1; rv:9.0) Gecko/20111222 Thunderbird/9.0.1
MIME-Version: 1.0
To: Jorge Contreras <>
References: <> <> <> <> <>
In-Reply-To: <>
Content-Type: text/plain; charset="ISO-8859-1"; format="flowed"
Content-Transfer-Encoding: 7bit
Cc:, Russ Housley <>
Subject: Re: [antitrust-policy] An Antitrust Policy for the IETF
X-Mailman-Version: 2.1.12
Precedence: list
List-Id: "Discuss the need for an antitrust or competition policy for the IETF." <>
List-Unsubscribe: <>, <>
List-Archive: <>
List-Post: <>
List-Help: <>
List-Subscribe: <>, <>
X-List-Received-Date: Sun, 15 Jan 2012 22:37:12 -0000

I am glad to hear that company disclosures of terms are being looked at 
favorably.  But that was not the question I was trying to emphasis.

I have seen, repeatedly, companies state licensing terms for disclosed 
IPR, and WGs which are unhappy with those terms.  So far, so good.  that 
is reality.
What I have seen people get tempted to do is for the WG to attempt to 
persuade the company to change the licensing terms.  That, it seems to 
me, is a very different kettle of fish.  If the understanding of the law 
(probably due to judges) in that regard has changed, I would welcome 
being told taht.


On 1/15/2012 5:32 PM, Jorge Contreras wrote:
>     The other piece that I have been told is important, that is missing
>     from the prohibited lists is that the IETF MUST NOT engage in
>     negotiating licensing terms.  The lawyers have told us repeatedly
>     that such would be dangerous behavior.
>     Yours,
>     Joel
> Joel -- the law in this area is evolving and lawyers' stated positions
> sometimes vary based on their companies' business strategies and their
> clients wishes.  I have advised the IAOC that (1) the IETF, per se,
> should not engage in licensing negotiations (meaning that the IESG, IAOC
> and other bodies that are collectively representing the IETF community),
> but that (2) individual companies MAY disclose and discuss licensing
> terms in the context of IETF activities.  Not all lawyers will agree
> with point (2), and some will disagree with vehemence.  However, you
> should know that the US Dept. of Justice and Federal Trade Commission
> have both viewed required "ex ante" disclosures of licensing terms in
> SDOs with favor (or, at least, without disfavor).  I would be happy to
> discuss in greater detail with you, and also invite any interested
> lawyers to the discussion.
> Regards,
> Jorge