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

[Alissa Cooper <[e-mail]>]

Brad, all,

As this document has been developed, I’ve had concerns about the chilling effects of Section 4.2 on discussions that are routine in the IETF and, IMO, not problematic from a competition or antitrust law perspective. While the language in 4.2 has improved over time to reduce the potential for chilling effects, I still find it problematic. Reading this thread as well as the comments from Stephan has reinforced this concern. Stephan’s example very capably illustrates how the first bullet could be used problematically to shut down necessary discussions that do not create significant risk of antitrust violations. And the use of the vague term “group negotiations” in the second bullet creates a similar risk.

I agree with you that trying to specify Section 4.2 more surgically could lead to a treatise-style treatment of “yellow flag” cases, which would be counterproductive. I also do not see what the community gains from having Section 4.2 documented in an RFC — it does not provide any concrete, actionable instructions to IETF participants. The bullets themselves point to vague, wishy-washy circumstances in cases where participants may want to “use caution” (how does one use caution other than to not raise an issue for discussion, thereby suffering the chilling effect?). And the recommendation about whom to speak with is the same recommendation that could be made about numerous other questions of process or substance in the IETF — talk to an AD, or ask on a mailing list. In other words, it’s so obvious that it need not be stated. Lastly, I think if there were to be an actionable recommendation here, it should be for the participant to consult with their own legal counsel (if they have one), not the IETF counsel. My understanding is that the IETF counsel is not there to adjudicate differences of opinion about how to interpret whether cautionary language in an informational RFC constrains particular discussions or not. And if we do put the IETF counsel in that position, we could be creating some serious roadblocks in the standardization process. Obtaining independent advice is already covered in Section 4.3.

All of this is to say, I see significant downsides to keeping Section 4.2 in the document, and not any upsides.

Best,
Alissa

> On Feb 25, 2023, at 2:33 AM, Brad Biddle <[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/
> [2] https://mailarchive.ietf.org/arch/msg/gendispatch/jMijzjOBDyt9E_3wXW2tB7XEJKw/
> [3] https://mailarchive.ietf.org/arch/msg/gendispatch/Ywq1S7nxBo_PsqjaMZMGT_78w0Y/
> [4] https://mailarchive.ietf.org/arch/msg/antitrust-policy/rLoncSq8K2U1jcj0k-BIE70XyIk/
> [5] 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/
>> 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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