Re: [antitrust-policy] Discussion of draft-halpern-gendispatch-antitrust

[Stephan Wenger <[e-mail]>]

Hi Joel and group,
I reviewed this doc and also ran it against my employer’s US and CN-based counsel.  Here are our comments.  It’s a bit long an email, but on a topic like this, what is to be expected?
Stephan


  1.  Notwithstanding the solid explanation in section 2.1, I find the mixing of “antitrust law” and “competition law” throughout the doc unnecessarily confusing.  After section 2.1, select one, and stick with it.  My preference is “competition law” as that seems to be the direction the US is moving to also, but I’m not picky.
  2.  Section 4.1., first paragraph:  Parsing this paragraph was taxiing to me, and I have some training on such matters.  Expand to a bullet list?
  3.  Section 4.1, second paragraph: I would put this catch-all para to the begin of section 4.1, followed by the detailed examples of the second para.
  4.  Section 4.2.  This whole section makes me somewhat uneasy, as it IMO has the potential to move IETF deliberations to a more restricted environment that may benefit those with large antitrust risk at the expense of those with smaller risk and hence more risk tolerance.  That would be a policy change that the document intentionally is not seeking.  Specifically:

     *   Regarding the first bullet, I fail to see, and have not heard differently from counsel, why the use of PUBLISHED market data, however detailed, in evaluating cost and market feasibility of technologies could have competition law risks.  Successful use of UNPUBLISHED market data, OTOH, could well be falling under the “red flag” category and probably should be listed there (though, in practice, use of such data is in my experience often, and rightly, called out as FUD, hence people rarely do that nowadays).
To make one example, I think it should be perfectly fine and beneficial to the IETF, the Internet, economies under competition law, and the world, to point out in an webrtc-like WG that 90% of all shipped phones this week support codec x in hardware, and less than 10% support codec y; then argue that x should be favored over y; and back up this proposal with as much detailed published market data as available.  Even if that published market data contains device prices and such.   Yet, I can see that people would attempt to shut down such a discussion based on the first bullet as written.
     *   I agree with the second bullet as written after a careful read.  However, I fear it could be easily misinterpreted, accidently or intentionally, by someone with perhaps a bit less exposure to these matters than the esteemed subscribers to this list.
I do not think that the legal term “group negotiation” is well enough defined to be understood by the laymen that are going to use these guidelines.  People with initial competition law exposure will know it’s a Bad Thing, but for your average honest engineer, isn’t group negotiation something good and useful?  Negotiation in a group?  We do that all the time…
That said, I’m not only looking at the clarification of the legal term.  Even if people working for competitors gang up in order to obtain more detailed (perhaps, but only perhaps, in contrast to more favorable) terms in the IPR disclosure, that should be fine in most cases.
I think we need to draw a line when people start arguing about relative dollar amounts for patent royalties requested for different technologies.  But short of that, I think clarification questions on ambiguous IPR disclosures should be fine.
Let me make an example here also: over the recent years, I have observed an increasing number of IPR disclosures where the disclosing entity checked “none of the above” (of the pre-defined options of our disclosure form, like RAND or RAND-Z), and does not include any additional details in free-form.  In almost any other SDO, such behavior would trigger a frantic search for unencumbered alternatives or the termination of the project, as the disclosure indicates no commitment to IP licensing whatsoever from the discloser and hence the natural reaction of a group interested in interoperable standards would be to avoid that technology.  Yet, in the IETF, in many WGs, people just move on, perhaps with a slightly uneasy feeling and perhaps with an occasional quiet complaint to the WG chair or AD or whatever.  That’s a scenario where, I would think, it’s entirely appropriate for so-inclined WG participants to pester the discloser for an update, and if no such update happens, then insist on a design around, publicly citing their attempts to obtain more detailed terms.  Even as a group.  And that’s also an example where I fear that the policy, as written and misinterpreted, could lead into well-wishing folks shutting up a discussion about IPR-related merits, or lack thereof, of technology alternatives.
  5.  Section 4.4: I would suggest a clear escalation path, rather than a laundry list of possible contacts.  I think the usual would suffice: WG-chair -> AD -> IETF chair.  Copy to counsel if so desired by participant.  Whistleblower is fine as an alternative.  I do not see a role for the LLC exec director here.
  6.  Should there be a clear statement that the IETF and its organs may or may not act publicly on a reported antitrust concern?
  7.  Is there a need for an appeals process?




From: antitrust-policy <[e-mail]> on behalf of Joel Halpern <[e-mail]>
Date: Tuesday, February 14, 2023 at 07:38
To: [e-mail] <[e-mail]>
Subject: [antitrust-policy] Discussion of draft-halpern-gendispatch-antitrust
As per the dispatch from gendispatch, this is now the venue for
discussing the above draft.

Given that the notice just went out, I will give it a few days for folks
to join this list, and then try to prompt for discussion. (If discussion
starts sooner, that's great.) Conclusions and management of the
discussion resides as I understand it with Lars.

Yours,

Joel

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