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

[Christian Huitema <[e-mail]>]

On 3/6/2024 9:47 AM, Jay Daley wrote:
> Hi David
> 
>> On 6 Mar 2024, at 16:56, Black, David <[e-mail]> wrote:
>>
>>> "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.
> 
> Let me try and explain this better: To put it in concrete terms, with very basic advice of the form you suggest, we had questions of the kind  "so does that mean I can’t do X unless I check it with a lawyer first?", and "does this mean I can’t do X any more because I don’t have access to lawyers to advise me", and "if someone else does X do I need to get legal advice before I respond",  where the X they have specified is something entirely acceptable and in some cases not actually about this subject.
> 
> It was trying to respond to those questions that then led us down the path of trying to provide guidance on where the boundaries lay because leaving it with these questions unanswered appeared to be doing more harm than good, but that is not where we started and it was not going down that path that created the confusion.
> 
>> 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.
> 
> The authors would like to have seen this sort of guidance in this document - we are not withdrawing it because disagree with it but because we could not develop any wording to express this, even in the most minimal form, that does not create more problems than it aims to solve.

As someone who complained about the previous wording, let me support Jay 
and the other authors here. The goal is to provide non-controversial 
guidance in a way that does not change IETF processes. There is 
conundrum there, because the IETF processes do include a preference for 
unencumbered solutions, while simple legalistic texts could be used to 
argue against that preference as an antitrust issue. IMHO, not saying 
anything at all about the issue preserves the status quo, and that's good.

-- Christian Huitema





> Jay
> 
>>   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]> 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]>
>> Sent: Tuesday, March 5, 2024 4:10 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
>>
>> Thanks for that - response below:
>>
>>
>> On 4 Mar 2024, at 16:13, Black, David <[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]
>>   --
>> Jay Daley
>> IETF Executive Director
>> [e-mail]
> 
>