Re: [antitrust-policy] https://datatracker.ietf.org/doc/draft-halpern-gendispatch-antitrust/

[Jay Daley <[e-mail]>]

Hi Alissa

Sorry, the late reply is down to me here.  

> On 28 Feb 2023, at 08:20, Alissa Cooper <[e-mail]> wrote:
> 
> Hi Joel,
> 
>> On Feb 25, 2023, at 5:43 PM, Joel Halpern <[e-mail]> wrote:
>> 
>> Russ, I have to fundamentally disagree with you.
>> If we were trying to publish this as an IETF RFC without community consensus, your argument (and the more recent RFC about IESG approval of documents) would prevent that.
>> 
>> But the IETF is allowed to choose what mechanism it uses to revisit questions.  In this case, it is not even revisiting a question in a published document, but rather the conclusion about what was reasonable to do from an earlier BoF.  You are free to raise the issue of suitable international scope which you allude to in your email but do not elaborate on at enough length for us to disucss.  
>> 
>> But the conclusion of an earlier BoF to not do something does not lead to a requirement to have a BoF to publish an Informational RFC on this topic.  Further, we actually asked the community first how they would like to handle the document, and hte rough consensus of gendispatch, which exists for this purpose, was that AD sponsored with a discussion venue was suitable.  If you want to argue that gendispatch is not allowed to do that, I suggest you take it up with the current IETF chair, not with the selected venue.
>> 
>> I believe there is also training material being developed, but that is a separate question from this document which aims to get better information to the community at large.
>> 
> Will the training material not be made available to the community at large? 

Yes it will but it is possible that go a bit further for WG Chairs/IESG and take the base material and turn it into an interactive session that would be limited in access.

Jay

> 
> Thanks,
> Alissa
> 
>> 
>> Yours,
>> 
>> Joel
>> 
>> 
>> On 2/25/2023 10:11 AM, Russ Housley wrote:
>> > This document seems to be going in a different direction than
>> > recommended by the community at the antitrust BOF at IETF 83.  My
>> > memory is that the BOF concluded that educational material should be
>> > developed so that IETF participants are aware of the various laws.
>> > This is actually not easy because the laws are quite different in
>> > various parts of the world.  Without holding a new BOF that shows a
>> > change in the community perspective, a document with recommendations
>> > should not move forward.
>> > 
>> > Russ
>> > 
>> > 
>> >> On Feb 24, 2023, at 8:33 PM, Brad Biddle <[e-mail]
>> > <mailto:[e-mail]>> <mailto:[e-mail]> <mailto:[e-mail]>> wrote:
>> >> 
>> >> I'm writing to address the concerns raised by Christian [1][2],
>> >> Mark [3] and Pete [4] about Section 4.2 of the draft, which
>> >> recommends that participants "Use Caution ... [when] [s]eeking
>> >> clarifications about IPR disclosures, in a context when any such
>> >> clarifications could be reasonably perceived as entering into group
>> >> negotiations of IPR terms." Christian said this "looks like an
>> >> admonishment for WG to not do" things like "modif[ing] standards to
>> >> avoid [patent] claims, or structur[ing] standards in ways that
>> >> allow for negotiation of either the encumbered option or a free
>> >> alternative." Mark suggests that this part of 4.2 is too broad and
>> >> could be narrowed to focus on the scenario when "such a discussion
>> >> results in something that's open to all but advantages some party
>> >> through the structure of the agreement." Pete conveyed general
>> >> support for these concerns, and noted generally that "speaking in
>> >> terms of specific examples instead of trying to be broad would
>> >> clarify things greatly."
>> >> 
>> >> First, Section 4.2 is NOT an admonishment to not engage in any
>> >> particular behavior. Section 4.2 expressly acknowledges that the
>> >> behaviors described there can be relevant for standards setting,
>> >> and simply suggests that participants "use caution" when engaging
>> >> in them. It suggests what one approach to caution might look like:
>> >> "IETF participants who require informal advice on these issues have
>> >> a number of options open to them, including speaking to relevant
>> >> Area Directors, raising the matter with the community on a mailing
>> >> list, or contacting IETF counsel directly." I don't think there's
>> >> any reasonable reading of Section 4.2 that could conclude that it
>> >> is prohibiting the kinds of activities Christian identifies
>> >> (particularly given the emphasis in the document on the importance
>> >> of our existing policies, which would include Section 7 of BCP 79
>> >> [5]). The idea is simply that participants should be aware, as an
>> >> educational matter, that certain kinds of IPR-related discussions
>> >> can be more fraught with antitrust risk than one might expect, and
>> >> that appropriate cautions--which could be as simple as following
>> >> established IETF norms, in a straightforward circumstance--are
>> >> warranted.
>> >> 
>> >> Second, the kinds of risks that Section 4.2 points to are
>> >> potentially both broader and more nuanced than the scenario Mark
>> >> describes, and I think that trying to address the issues at the
>> >> level of specificity that Mark (and perhaps Pete) suggests would
>> >> require a document that would start to look like a legal treatise
>> >> on antitrust law. I think the best we can do in this style of
>> >> document is a general (yellow/caution) flag-waving around a
>> >> category of risk, coupled with a suggestion to obtain advice as
>> >> needed.
>> >> 
>> >> So: I'm inclined to leave 4.2 as-is. I don't think it creates the
>> >> problem that Christian identifies, and I think the 'high-levelness'
>> >> of the current language is a feature, not a bug. My sense is that
>> >> perhaps some of the criticism is coming from a place of either
>> >> assuming the document is trying to do something more than what it
>> >> is currently doing, which in my view is to simply summarize
>> >> long-standing policies and practices and to provide some pretty
>> >> generic educational ideas.
>> >> 
>> >> --Brad (IETF counsel)
>> >> 
>> >> [1]
>> >> https://mailarchive.ietf.org/arch/msg/antitrust-policy/Uo1si3u-3eqVpXX9qwSN-JGtqNA/
>> >> <https://mailarchive.ietf.org/arch/msg/antitrust-policy/Uo1si3u-3eqVpXX9qwSN-JGtqNA/> <https://mailarchive.ietf.org/arch/msg/antitrust-policy/Uo1si3u-3eqVpXX9qwSN-JGtqNA/>
>> >>
>> >> 
>> [2] https://mailarchive.ietf.org/arch/msg/gendispatch/jMijzjOBDyt9E_3wXW2tB7XEJKw/ <https://mailarchive.ietf.org/arch/msg/gendispatch/jMijzjOBDyt9E_3wXW2tB7XEJKw/> <https://mailarchive.ietf.org/arch/msg/gendispatch/jMijzjOBDyt9E_3wXW2tB7XEJKw/>
>> >> [3]
>> >> https://mailarchive.ietf.org/arch/msg/gendispatch/Ywq1S7nxBo_PsqjaMZMGT_78w0Y/
>> >> <https://mailarchive.ietf.org/arch/msg/gendispatch/Ywq1S7nxBo_PsqjaMZMGT_78w0Y/> <https://mailarchive.ietf.org/arch/msg/gendispatch/Ywq1S7nxBo_PsqjaMZMGT_78w0Y/>
>> >>
>> >> 
>> [4] https://mailarchive.ietf.org/arch/msg/antitrust-policy/rLoncSq8K2U1jcj0k-BIE70XyIk/ <https://mailarchive.ietf.org/arch/msg/antitrust-policy/rLoncSq8K2U1jcj0k-BIE70XyIk/> <https://mailarchive.ietf.org/arch/msg/antitrust-policy/rLoncSq8K2U1jcj0k-BIE70XyIk/>
>> >> [5] https://www.rfc-editor.org/rfc/rfc8179.txt
>> >> <https://www.rfc-editor.org/rfc/rfc8179.txt> <https://www.rfc-editor.org/rfc/rfc8179.txt>
>> >> 
>> > 
>> > 
>> > _______________________________________________ antitrust-policy
>> > mailing list [e-mail] <mailto:[e-mail]> 
>> > https://www.ietf.org/mailman/listinfo/antitrust-policy
>> 
>> _______________________________________________
>> antitrust-policy mailing list
>> [e-mail]
>> https://www.ietf.org/mailman/listinfo/antitrust-policy
> 
> _______________________________________________
> antitrust-policy mailing list
> [e-mail] <mailto:[e-mail]>
> https://www.ietf.org/mailman/listinfo/antitrust-policy

-- 
Jay Daley
IETF Executive Director
[e-mail]