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

[Joel Halpern <[e-mail]>]

EKR, I am trying and failing to parse your comment.  A little more 
below, after trimming Jay's text.

Yours,

Joel

On 1/10/2024 12:47 PM, Eric Rescorla wrote:
>
>
> On Wed, Jan 10, 2024 at 7:49 AM Jay Daley <[e-mail]> wrote:
>
>     Following up on this on behalf of the authors:
>>
>>     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 WG creating a general policy that applies equally to all IPR 
declarations (subject to all sorts of other constraints unrelated to 
antitrust) is not discriminatory.  A set of people from a set of 
companies deciding to oppose IPR from one participant (even if they make 
that opposition public) appears to me to be discriminatory and from what 
I understand poses significant risk of running afoul of antitrust / 
competition regulation.

We are trying to warn people of the difference.   If you have better 
wording to propose, that would be good to see.  removing the wording 
entirely would be, from my perspective as an author trying to do the 
right thing for the community, very bad.

Yours,

Joel