Re: [antitrust-policy] Fwd: New Version Notification for draft-halpern-gendispatch-antitrust-06.txt

Hi,
I had a quick look.  Many of my previous concerns are adequately addressed, thank you.  The strict avoidance of 2119 terms lead to somewhat clumsy language, but that’s something I can live with.

My preference is still to move the second bullet of section 4.2 “Entering into group negotiations of IPR terms.” into section 4.1.  Any reason why you left it in 4.2?

I’m still at loss about the detailed market data.  As I argued before: I (and also counsel I consulted) see nothing wrong with the use of *published* detailed market data in evaluating technical alternatives through cost analysis.  The demarcation line ought to be the use of published vs. unpublished data, not the use of detailed market data at all.  Was this a conscious non-change, and if so, why?  Have I missed discussions that indicated I’m in the rough on this one?

Thanks,
Stephan

From: antitrust-policy <antitrust-policy-bounces@ietf.org> on behalf of Jay Daley <exec-director@ietf.org>
Date: Monday, July 10, 2023 at 20:04
To: antitrust-policy@ietf.org <antitrust-policy@ietf.org>
Cc: Brad Biddle <brad@biddle.law>
Subject: [antitrust-policy] Fwd: New Version Notification for draft-halpern-gendispatch-antitrust-06.txt
Hi All

A new version of the I-D is now available - sorry this took so long to produce.

The changes between this version and the last version are as follows.  These are all in response to feedback identified on list

1.  Feedback: Add a reference to relevant EU law/regulator
This was a new sentence added in the middle of section 2.2

2.  Feedback: Prevent weaponisation
We have not added a specific anti-weaponisation clause due to concerns that such a clause would itself be weaponised.  Instead we have removed all usage of the words "must", "should" and "may" except where they appear in the boilerplate, which we believe makes it very hard to misuse a quote from this document, and removed anything else we think could be misused.  The changes here are

- Changed last sentence of 4.1 from  "Participants must ensure that their conduct does not violate any antitrust laws or regulations." to  "Participants are responsible for ensuring that their conduct does not violate any antitrust laws or regulations."

- In 2.3 replaced the two instances of "must not" with "cannot"

- Changed 6 from "This document may be considered to document means to avoid risks to the IETF and IETF participants related to antitrust. One may consider those to be security considerations. Other than that, this document introduces no known security aspects to the IETF or IETF participants." to  "This document introduces no known security aspects to the IETF or IETF participants."

3.  Feedback: Clarify the issue of people participating as individuals and the legal risk thereof
Replaced the first sentence of 4.1 with  "While individuals are expected to participate as individuals, their actions could 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."

4.  Feedback: Correctly describe the narrow issue with IPR disclosures
Changed bullet 2 of 4.2 from "Seeking clarifications about IPR disclosures, in a context when any such clarifications could be reasonably perceived as entering into group negotiations of IPR terms"
to "Entering into group negotiations of IPR terms"

5.  Feedback: Limit the role of the IETF (and IETF counsel) following an escalation.
This resulted in two changes:

- Replaced 4.4 with  "Participants can report potential antitrust issues in the context of IETF activities by contacting IETF legal counsel (legal@ietf.org) or via the IETF LLC whistleblower service. Note that reports will only be assessed for their impact upon the IETF; participants directly impacted by an antitrust issue are responsible for obtaining their own legal advice."

- Deleted the last sentence of 4.3  "IETF participants should consult with their own counsel when antitrust or competition law-related questions arise." because the new 4.4 covers the same ground.

Finally, there was one element of feedback that we intentionally did not address:

- The additional bullet recommended by Mark for 4.2 (topics requiring caution) that talked about abuse of a dominant position, is not included.  This is because it is not strongly supported by case law involving SDOs as the other two bullets are, and because it is too easily weaponised.  We note that we have added EU specific text to 2.2.

Further feedback is most welcome.

Jay

>
> A new version of I-D, draft-halpern-gendispatch-antitrust-06.txt
> has been successfully submitted by Joel M. Halpern and posted to the
> IETF repository.
>
> Name: draft-halpern-gendispatch-antitrust
> Revision: 06
> Title: Antitrust Guidelines for IETF Participants
> Document date: 2023-07-10
> Group: Individual Submission
> Pages: 8
> URL:            https://www.ietf.org/archive/id/draft-halpern-gendispatch-antitrust-06.txt
> Status:         https://datatracker.ietf.org/doc/draft-halpern-gendispatch-antitrust/
> Html:           https://www.ietf.org/archive/id/draft-halpern-gendispatch-antitrust-06.html
> Htmlized:       https://datatracker.ietf.org/doc/html/draft-halpern-gendispatch-antitrust
> Diff:           https://author-tools.ietf.org/iddiff?url2=draft-halpern-gendispatch-antitrust-06
>
> 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 Secretariat
>
>

--
Jay Daley
IETF Executive Director
exec-director@ietf.org

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