Re: [antitrust-policy] Key takeaways from genarea session at IETF 118

[Eric Rescorla <[e-mail]>]

On Wed, Jan 10, 2024 at 2:23 PM Joel Halpern <[e-mail]> wrote:

> EKR, I am trying and failing to parse your comment.  A little more below,
> after trimming Jay's text.
>
> Yours,
>
> Joel
> On 1/10/2024 12:47 PM, Eric Rescorla wrote:
>
>
>
> On Wed, Jan 10, 2024 at 7:49 AM Jay Daley <[e-mail]> wrote:
>
>> Following up on this on behalf of the authors:
>>
>>
>> 2.  There was another proposal under "4.2 Topics Requiring Caution" to
>> replace
>>
>> "Entering into group negotiations of IPR terms."
>>
>> with
>>
>> "Entering into private or potentially discriminatory, group negotiations
>> of IPR terms."
>>
>> After discussion, general agreement appeared to be reached that rather
>> than "private or potentially discriminatory", the emphasis should be on
>> avoiding group negotiations of IPR within parts of the IETF process that
>> are not fully open and transparent, such as within the iESG or in Design
>> Teams. New text is still needed to capture that.
>>
>>
>> We’ve had advice that the focus on something taking place in private is
>> mistaken because a cartel can form entirely in the open and still be an
>> illegal cartel.  The important point here is the "potentially
>> discriminatory", which we believe is clear enough as is and so we’re
>> proposing to move forward with
>>
>> "Entering into potentially discriminatory, group negotiations of IPR
>> terms."
>>
>> If anyone has concerns with this, then please let us know.
>>
>
> I don't know how to evaluate "potentially discriminatory" in this context.
> Given the obvious difficulty with this text, I think it should be struck
> entirely.
>
> -Ekr
>
> A WG creating a general policy that applies equally to all IPR
> declarations (subject to all sorts of other constraints unrelated to
> antitrust) is not discriminatory.  A set of people from a set of companies
> deciding to oppose IPR from one participant (even if they make that
> opposition public) appears to me to be discriminatory and from what I
> understand poses significant risk of running afoul of antitrust /
> competition regulation.
>
As a practical matter, decisions about IPR often come down to judgement
calls about the properties of the license and the importance of the IPR to
the protocol. So, I could easily see accusations about discriminatoriness
being slung around even in cases you or I might find reasonable.


> We are trying to warn people of the difference.   If you have better
> wording to propose, that would be good to see.  removing the wording
> entirely would be, from my perspective as an author trying to do the right
> thing for the community, very bad.
>
I'm not sure I agree. Stepping back, it's not clear to me that this
document is necessary at all, given that (1) we've survived this far
without it and (2) ultimately people need to rely on their own legal
counsel. For these reasons, I think it is best that this document contain
only text that is uncontroversial, even if that doesn't go as far as some
might prefer.

-Ekr



Yours,
>
> Joel
>
>