Re: [antitrust-policy] I-D Action: draft-halpern-gendispatch-antitrust-05.txt

Hi Stephan

A couple of questions:

> On 10 Mar 2023, at 02:02, Stephan Wenger <stewe@stewe.org> wrote:
> 
> Hi Joel, all,
>  Thanks for the update.  I see improvement in the presentation, but not in some parts of the substance I care about.
>  I continue to fear that this document, if approved, will be used by ill-informed, or over-zealous, or perhaps corporate agenda-driven participants in attempts to shut down discussions that are allowed by agreed policy, are within their personal risk tolerance on antitrust matters (that may well be based on advice of their antitrust counsel), and could lead to better standards.  My main concern is again with section 4.2., but I see now also a need for non-editorial changes in 4.1.  Here are my suggestions.   Some rationale was provided before https://mailarchive.ietf.org/arch/msg/antitrust-policy/G2XjDJYA0Rln_oczKVsIyx1dhpE/, and is not repeated here.
>  
>     • In the first bullet of section 4.2, add “unpublished” to “detailed market data”.  If you disagree, please explain why.
>  
>     • Remove the second bullet of section 4.2.
> The second bullet here has IMO the potential to shift the practices of the IETF in a direction appreciated primarily by those offering technical alternatives under terms that are less commercially attractive than other technical alternatives, and secondarily by those with comparatively bigger antitrust exposure.  Those changes would potentially disfavor organizations not interested in monetarizing their IP, smaller entities, academics, and individuals.  Upon reflection and re-reading posts of others also addressing this bullet, I have come around to suggest you remove this bullet in its entirety, as it may constitute a policy change in practice, despite what the (appreciated) clarifications in the doc declare.  
> I believe—and I think you would concur—that nothing is wrong per se with “Seeking clarifications about IPR disclosures”.  Doing so may well be beneficial for the operation of the IETF; see my example in my previous post, cited above.  Pointing out the content of disclosures, including words like RAND or RAND-Z, should be fine.  Even justifying one’s support of one technology over another based on disclosure content should be fine.  I think the line is crossed when people (presumably being affiliated with competitors) start ganging up using their power to force a supplier towards below market prices, independent on whether the supplier supplies IP or something else.  That’s not something that happens through mere clarification questions on IPR disclosures though, and it may well happen in other contexts.  Such group negotiation is a red flag (yes, I like that term and wish we wouldn’t have removed it :-) and should be covered under 4.1.

So if this was replace with a bullet about "group negotiations" in 4.1 that gave an example related to IPR terms, would that in principle be acceptable to you (recognising that depends on the actual text)?

> 
>     • Section 4.1, add buyer/licensee collusion.
> I leave the wordsmithing to folks with more experience, but I think something like “discussion about supplier’s pricing (including IP royalties)” needs to be added.  Perhaps with a clarification like “it’s a cornerstone of the IETF’s IPR regime that individuals make their own decisions regarding the monetary or other price they are willing to pay for a technology, but that price, especially when expressed in dollar values, must not be discussed in an IETF setting.  Don’t ask, don’t tell.”. 
>  
>     • Section 4.1, “representatives from competitors”. 
> As it is pointed out elsewhere in the doc, in the IETF, we participate specifically NOT as representatives of our employers but in an individual capacity only.  Insofar, logic suggests that the paragraph as written does not apply to IETF participation but rather states a general observation from which the IETF is safely isolated due to its rather uncommon policy of individual participation.  I think that this is a misperception that needs to be addressed.

Do you mean something like "While individuals are expected to participate as individuals, their actions can still be construed as representing their employer, whatever their role.  Therefore, participants should be aware that some topics are generally inappropriate for discussion in a standards setting environment where representatives from competitors to their employer are likely to be present."?

Jay

>  
>     • Section 4.1, structure as a bullet list as the para, as written, is close to unreadable?  If not, why not?
> Rationale was previously provided.
>  Thanks,
> Stephan
>   From: antitrust-policy <antitrust-policy-bounces@ietf.org> on behalf of Joel Halpern <jmh@joelhalpern.com>
> Date: Thursday, March 9, 2023 at 06:50
> To: antitrust-policy@ietf.org <antitrust-policy@ietf.org>
> Cc: gendispatch@ietf.org <gendispatch@ietf.org>
> Subject: [antitrust-policy] Fwd: I-D Action: draft-halpern-gendispatch-antitrust-05.txt
> antitrust-policy:      As noted below, the authors have posted a new version of the antitrust draft.  We have tried to make more clear that it is educational and informational material, and does not change IETF policy.  As per suggestions, we have replaced the red-flag / yellow flag descriptions with what we hope are clearer descriptions of the categories.  Please read and comment on the antitrust-policy list. 
> Gendispatch:
>     We have been asked to provide a 10 minute presentation at IETF 116 to discuss the dispatching of this draft.  Content discussion, as per the announcements, is still on antitrust-policy.  The slides will review the table of contents of the draft, and then state the dispatch decision for any further discussion by the WG.
> Thank you,
> Joel (and Brad and Jay)
> 
> 
> -------- Forwarded Message -------- Subject: I-D Action: draft-halpern-gendispatch-antitrust-05.txt
> Date: Thu, 09 Mar 2023 06:46:06 -0800
> From: internet-drafts@ietf.org
> Reply-To: internet-drafts@ietf.org
> To: i-d-announce@ietf.org
> 
> 
> 
> A New Internet-Draft is available from the on-line Internet-Drafts directories.
> 
> 
> Title : Antitrust Guidelines for IETF Participants
> Authors : Joel M. Halpern
> Brad Biddle
> Jay Daley
> Filename : draft-halpern-gendispatch-antitrust-05.txt
> Pages : 8
> Date : 2023-03-09
> 
> Abstract:
> This document provides education and guidance for IETF participants
> on compliance with antitrust laws and how to reduce antitrust risks
> in connection with IETF activities.
> 
> 
> The IETF datatracker status page for this Internet-Draft is:
> https://datatracker.ietf.org/doc/draft-halpern-gendispatch-antitrust/
> 
> There is also an HTML version available at:
> https://www.ietf.org/archive/id/draft-halpern-gendispatch-antitrust-05.html
> 
> A diff from the previous version is available at:
> https://author-tools.ietf.org/iddiff?url2=draft-halpern-gendispatch-antitrust-05
> 
> 
> Internet-Drafts are also available by rsync at rsync.ietf.org::internet-drafts
> 
> 
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-- 
Jay Daley
IETF Executive Director
exec-director@ietf.org