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

[Christian Huitema <[e-mail]>]

My problem is largely perception. I think the confusion exists and that 
it could be exploited, for example by parties interested in having their 
patented technology included in a protocol specification. I would much 
prefer if after the bullets the draft explicitly said that nothing in 
the text changes the recommendations made in section 7 of RFC 8179, 
"Evaluating Alternative Technologies in IETF Working Groups".

-- Christian Huitema

On 2/24/2023 5:33 PM, Brad Biddle 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/>
> [2] 
> 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/>
> [4] 
> 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>
> 
> 
> 
> On Thu, Feb 23, 2023 at 2:40 PM Pete Resnick 
> <resnick=[e-mail] 
> <mailto:[e-mail]>> wrote:
> 
>     On 22 Feb 2023, at 7:46, Joel Halpern wrote:
> 
>      > When this was dispatched, I said I would poke folks again.
>      >
>      > The authors would very much appreciate comments, opinions, and
>     better
>      > discussion of, this draft.  We would like to be able to submit a
>      > revision addressing concerns by the cutoff, to align with the ADs
>      > goal.
>      >
>      > Thank you,
>      >
>      > Joel
> 
>     I agree with Mirja and Christian's concerns. Two other bits, almost
>     entirely editorial:
> 
>     First, in 4.1: "employee compensation or benefits among potentially
>     competitive employers". I'm pretty sure what you're referring to here
>     are things like wage-fixing and anti-poaching agreements, but this
>     sounds like I can't talk to you about my salary, which I don't think is
>     what you mean. Seems like throughout these sections, speaking in terms
>     of specific examples instead of trying to be broad would clarify things
>     greatly.
> 
>     Second, and this is completely a matter of style: There are places
>     where
>     the use of the term "antitrust" is a bit counter-intuitive if you don't
>     already know what's meant. For instance, in 2.3, it talks about
>     engagement in "problematic antitrust behavior". The funny thing about
>     that phrase is that, given the the literal meaning, you want behavior
>     that is not engaging in trusts; "antitrust behavior" is the good thing
>     and "trust behavior" would be the bad thing. And I do understand that
>     the word is now a term of art and refers to the name used in US
>     competitiveness laws, but I think it may sound weird to non-experts. If
>     you instead used "competitive", "anti-competitive", and "competition"
>     throughout, I think the document might be clearer to non-experts (or
>     even non-native English speakers). But again, this is a purely
>     stylistic
>     comment and the current language is fine if you decide not to change it.
> 
>     Cheers,
> 
>     pr
>     -- 
>     Pete Resnick https://www.episteme.net/ <https://www.episteme.net/>
>     All connections to the world are tenuous at best
> 
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> 
> -- 
> Brad Biddle | [e-mail] | +1.503.502.1259 (mobile) | 
> http://biddle.law <http://biddle.law>
> 
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