Re: [antitrust-policy] New Version Notification for draft-halpern-gendispatch-antitrust-08.txt

[Stephan Wenger <[e-mail]>]

Hi,
Given the amount of discussion we had, should we perhaps leave such obviously difficult points for an updated version and go forward with what could pass a consensus call?  To put initial stakes into the ground?  It seems to me that, here, the perfect may be the enemy of the good.
Stephan

From: antitrust-policy <[e-mail]> on behalf of Black, David <David.Black=[e-mail]>
Date: Wednesday, March 6, 2024 at 08:56
To: Jay Daley <[e-mail]>
Cc: [e-mail] <[e-mail]>, Lars Eggert <[e-mail]>, Black, David <[e-mail]>
Subject: Re: [antitrust-policy] New Version Notification for draft-halpern-gendispatch-antitrust-08.txt
> "IPR (licensing) terms" has exactly the same problems - there are times when it is not an antitrust risk and so even this mentioning
> it leads to confusion and mis-interpretation around the boundaries of what is acceptable and what is not.

This is not about stating or implying what is acceptable vs. what is not – that should be left to legal counsel.  The goal is to strongly suggest obtaining legal advice (e.g., on what is acceptable vs. what is not) before engaging in any activities in this area.  I think that sort of strong suggestion is highly appropriate for "IPR (licensing) terms" discussions, and I also think that it's fine for participants to steer further clear of discussions in this area than is strictly necessary.

Thanks, --David

From: Jay Daley <[e-mail]>
Sent: Wednesday, March 6, 2024 9:40 AM
To: Black, David <[e-mail]>
Cc: [e-mail]; Lars Eggert <[e-mail]>
Subject: Re: [antitrust-policy] New Version Notification for draft-halpern-gendispatch-antitrust-08.txt


[EXTERNAL EMAIL]
Hi David

On 6 Mar 2024, at 03:56, Black, David <[e-mail]<mailto:[e-mail]>> wrote:

Hi Jay,

E.g., in a new paragraph at the end of Section 4.2 (Obtaining Independent Legal Advice):

 Participants are specifically encouraged to obtain independent legal advice before engaging in activities that involve complex and subtle areas
 of antitrust law and regulations, e.g., use of unpublished market data to inform decisions and discussion of IPR licensing terms and conditions with IPR owners.

That would provide a useful warning to participants without getting into the details of exactly which activities are ok vs. not ok.
I've deliberately generalized both topics in the above "e.g." list, and additional topics could be added.

This is basically what that section was aiming to say - watch out with these areas.  Unfortunately, it has not been possible to identify
*any* agreed text that can be used for this purpose.  For example, the text I used and that you reproduced "unpublished market data"
is considered by some to be completely missing the point and therefore more harmful than helpful.

Then drop the "unpublished market data" example.  I think it would still be helpful if "discussion of IPR licensing terms and conditions with IPR owners" is used by itself an example where consulting with counsel is encouraged.

"IPR (licensing) terms" has exactly the same problems - there are times when it is not an antitrust risk and so even this mentioning it leads to confusion and mis-interpretation around the boundaries of what is acceptable and what is not.

Jay


Thanks, --David

-----Original Message-----
From: Jay Daley <[e-mail]<mailto:[e-mail]>>
Sent: Tuesday, March 5, 2024 4:10 AM
To: Black, David <[e-mail]<mailto:[e-mail]>>
Cc: [e-mail]<mailto:[e-mail]>; Lars Eggert <[e-mail]<mailto:[e-mail]>>
Subject: Re: [antitrust-policy] New Version Notification for draft-halpern-gendispatch-antitrust-08.txt


[EXTERNAL EMAIL]

Hi David

Thanks for that - response below:

On 4 Mar 2024, at 16:13, Black, David <[e-mail]<mailto:[e-mail]>> wrote:

Jay,

The only substantive change is that the previous section "Topics requiring caution" has now been deleted.
In the previous version of this I-D, this section covered two areas:
the first began "Using unpublished market data to evaluate the
relative implementation costs" and the second was "Entering into potentially discriminatory, group negotiations of IPR terms".
These are both complex areas where some behaviours are an antitrust
risk and some are not, but it has become clear that explaining where
the difference lies is not possible and all attempts so far have confused people and led to mis-interpretation.

We understand that some on this list wanted this explained, while others wanted this whole section deleted, but after much discussion we concluded that deletion was our only option.

Would it be reasonable to recognize the complexity and subtlety of those topics by mentioning them (or generalized versions of them) as specific areas in which independent legal advice is recommended?  That would send people with doubts/questions about them to the experts (e.g., anti-trust lawyers), which is what I think we'd like to see happen.  E.g., in a new paragraph at the end of Section 4.2 (Obtaining Independent Legal Advice):

 Participants are specifically encouraged to obtain independent legal advice before engaging in activities that involve complex and subtle areas
 of antitrust law and regulations, e.g., use of unpublished market data to inform decisions and discussion of IPR licensing terms and conditions with IPR owners.

That would provide a useful warning to participants without getting into the details of exactly which activities are ok vs. not ok.  I've deliberately generalized both topics in the above "e.g." list, and additional topics could be added.

This is basically what that section was aiming to say - watch out with these areas.  Unfortunately, it has not been possible to identify *any* agreed text that can be used for this purpose.  For example, the text I used and that you reproduced "unpublished market data" is considered by some to be completely missing the point and therefore more harmful than helpful.

cheers
Jay

--
Jay Daley
IETF Executive Director
[e-mail]<mailto:[e-mail]>

--
Jay Daley
IETF Executive Director
[e-mail]<mailto:[e-mail]>