Re: [antitrust-policy] New Version Notification for draft-halpern-gendispatch-antitrust-06.txt

[Joel Halpern <[e-mail]>]

I would prefer not to add "detailed" to the second bullet of 4.2.  I can 
live with keeping it 4.2 rather than moving it to 4.1 (although I could 
live with moving it to 4.1 as well.)  I would be strongly opposed to 
removing either all of section 4.2 or that second bullet in particular.  
That is the primary piece of advice we have been given as an 
organization by lawyers over the years.

Yours,
Joel

On 7/26/2023 5:11 PM, Alissa Cooper wrote:
>> On Jul 26, 2023, at 1:09 PM, Jay Daley <[e-mail]> wrote:
>>
>> Thanks Alissa.  One question:
>>
>>> On 26 Jul 2023, at 06:41, Alissa Cooper <[e-mail]> wrote:
>>>
>>> Hi Jay,
>>>
>>> Thanks for the update. This mostly addresses my previous concerns. A couple of suggestions:
>>>
>>> 1. In 4.1, it would be good to list the topics as bullet points to match the style of 4.2.
>>>
>>> 2. In 4.2, first bullet, it might be better to say “multiple technical alternatives” rather than “two."
>>>
>>> 2. In 4.2, second bullet, I would suggest “Entering into group negotiations of detailed IPR terms.”
>> What do you think of Stephan’s suggestion that this bullet is moved to 4.1 ?
> It makes me nervous because “group” and “negotiations” could be interpreted in a variety of ways. I think it’s important to retain the ability for WGs to make decisions about whether and how to take action based on participants’ understanding of the relevant IPR environment. This is not a set of topics to avoid. Whether any given party interprets that sort of discussion as a “group negotiation” will be hard to predict. So if you were going to make a change, my preference is still to remove section 4.2, or failing that, to remove this bullet from 4.2.
>
> Alissa
>
>> Jay
>>
>>> Thanks,
>>> Alissa
>>>
>>>> On Jul 10, 2023, at 11:04 AM, Jay Daley <[e-mail]> wrote:
>>>>
>>>> Hi All
>>>>
>>>> A new version of the I-D is now available - sorry this took so long to produce.
>>>>
>>>> The changes between this version and the last version are as follows.  These are all in response to feedback identified on list
>>>>
>>>> 1.  Feedback: Add a reference to relevant EU law/regulator
>>>> This was a new sentence added in the middle of section 2.2
>>>>
>>>> 2.  Feedback: Prevent weaponisation
>>>> We have not added a specific anti-weaponisation clause due to concerns that such a clause would itself be weaponised.  Instead we have removed all usage of the words "must", "should" and "may" except where they appear in the boilerplate, which we believe makes it very hard to misuse a quote from this document, and removed anything else we think could be misused.  The changes here are
>>>>
>>>> - Changed last sentence of 4.1 from  "Participants must ensure that their conduct does not violate any antitrust laws or regulations." to  "Participants are responsible for ensuring that their conduct does not violate any antitrust laws or regulations."
>>>>
>>>> - In 2.3 replaced the two instances of "must not" with "cannot"
>>>>
>>>> - Changed 6 from "This document may be considered to document means to avoid risks to the IETF and IETF participants related to antitrust. One may consider those to be security considerations. Other than that, this document introduces no known security aspects to the IETF or IETF participants." to  "This document introduces no known security aspects to the IETF or IETF participants."
>>>>
>>>> 3.  Feedback: Clarify the issue of people participating as individuals and the legal risk thereof
>>>> Replaced the first sentence of 4.1 with  "While individuals are expected to participate as individuals, their actions could still be construed as representing their employer, whatever their role.  Therefore, participants should be aware that some topics are generally inappropriate for discussion in a standards setting environment where representatives from competitors to their employer are likely to be present."
>>>>
>>>> 4.  Feedback: Correctly describe the narrow issue with IPR disclosures
>>>> Changed bullet 2 of 4.2 from "Seeking clarifications about IPR disclosures, in a context when any such clarifications could be reasonably perceived as entering into group negotiations of IPR terms"
>>>> to "Entering into group negotiations of IPR terms"
>>>>
>>>> 5.  Feedback: Limit the role of the IETF (and IETF counsel) following an escalation.
>>>> This resulted in two changes:
>>>>
>>>> - Replaced 4.4 with  "Participants can report potential antitrust issues in the context of IETF activities by contacting IETF legal counsel ([e-mail]) or via the IETF LLC whistleblower service. Note that reports will only be assessed for their impact upon the IETF; participants directly impacted by an antitrust issue are responsible for obtaining their own legal advice."
>>>>
>>>> - Deleted the last sentence of 4.3  "IETF participants should consult with their own counsel when antitrust or competition law-related questions arise." because the new 4.4 covers the same ground.
>>>>
>>>>
>>>> Finally, there was one element of feedback that we intentionally did not address:
>>>>
>>>> - The additional bullet recommended by Mark for 4.2 (topics requiring caution) that talked about abuse of a dominant position, is not included.  This is because it is not strongly supported by case law involving SDOs as the other two bullets are, and because it is too easily weaponised.  We note that we have added EU specific text to 2.2.
>>>>
>>>>
>>>> Further feedback is most welcome.
>>>>
>>>> Jay
>>>>
>>>>
>>>>> A new version of I-D, draft-halpern-gendispatch-antitrust-06.txt
>>>>> has been successfully submitted by Joel M. Halpern and posted to the
>>>>> IETF repository.
>>>>>
>>>>> Name: draft-halpern-gendispatch-antitrust
>>>>> Revision: 06
>>>>> Title: Antitrust Guidelines for IETF Participants
>>>>> Document date: 2023-07-10
>>>>> Group: Individual Submission
>>>>> Pages: 8
>>>>> URL:            https://www.ietf.org/archive/id/draft-halpern-gendispatch-antitrust-06.txt
>>>>> Status:         https://datatracker.ietf.org/doc/draft-halpern-gendispatch-antitrust/
>>>>> Html:           https://www.ietf.org/archive/id/draft-halpern-gendispatch-antitrust-06.html
>>>>> Htmlized:       https://datatracker.ietf.org/doc/html/draft-halpern-gendispatch-antitrust
>>>>> Diff:           https://author-tools.ietf.org/iddiff?url2=draft-halpern-gendispatch-antitrust-06
>>>>>
>>>>> Abstract:
>>>>> This document provides education and guidance for IETF participants
>>>>> on compliance with antitrust laws and how to reduce antitrust risks
>>>>> in connection with IETF activities.
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> The IETF Secretariat
>>>>>
>>>>>
>>>> -- 
>>>> Jay Daley
>>>> IETF Executive Director
>>>> [e-mail]
>>>>
>>>> _______________________________________________
>>>> antitrust-policy mailing list
>>>> [e-mail]
>>>> https://www.ietf.org/mailman/listinfo/antitrust-policy
>> -- 
>> Jay Daley
>> IETF Executive Director
>> [e-mail]
>>
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