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

[Brad Biddle <[e-mail]>]

Hi  Mirja -- I know you addressed your questions to joel, but let me offer
a few thoughts:

On Wed, Feb 22, 2023 at 6:43 AM Mirja Kuehlewind <[e-mail]>
wrote:

> Hi Joel,
>
> Thanks, the document looks pretty good to me. I have three questions:
>
> 1) In section 4.2, you have this point which is to be honest not fully
> clear to me:
>
> "Using detailed market data to evaluate the relative implementation
>       costs of two technical alternatives to decide whether one is
>       significantly more feasible in the market and thus a better
>       candidate for standardization."
>
>
> I would think this is only a problem if that would lead to disadvantage to certain competitors or something like that…? To me this point is currently unclear and seem overly broad, so as participant I wouldn’t be really sure what to do about this advice.
>
>
>
Discussion of "relative cost" of different implementations can be fraught,
for a number of complex reasons (largely because it can start to look like
a group discussion about prices), as suggested (for example) in Section 2
and Example 1 of the IEEE's antitrust document [1] or in this presentation
IEEE counsel gave years ago [2]. The idea here was just to flag that
potential complexity at a high level, and to invite discussion about it
if/when those sorts of circumstances arose in an IETF WG.

[1]
https://standards-dev21.ieee.org/wp-content/uploads/import/documents/other/antitrust.pdf
[2] https://ieee802.org/3/100GNGOPTX/public/may12/lindsay_01_0512_optx.pdf


> 2) Then at the end of the section the draft says:
>
>
> “… or contacting IETF counsel directly.”
>
>
> But the next section actually says
>
>
> “The IETF does not provide legal advice to participants”
>
>
> Isn’t that contracting?
>
>

I think "no" (not a contradiction) in the sense that contacting IETF
counsel could definitely be the right thing to do in some circumstances
(e.g., if a participant thought an IETF representative was engaged in some
antitrust violation, or that an IETF forum was being used to facilitate an
antitrust violation), but in other circumstances a question to IETF counsel
could result in a response along the lines of "we're not your lawyer, you
should talk to your own counsel."


>
> 2) And finally not sure if that’s the right advice in section 4.4 about reporting. I would think an employee should report something rather to their own company. Or do you mean the case where an independent third person would observe something? However, what would the IETF do with this information?
>
>
Similar to the point above, we'd definitely want reporting of any perceived
antitrust violations by IETF representatives or happening in IETF forums,
and we'd respond appropriately to the particular circumstances. We could
respond that we suggest that a participant also report to their own
employer, if and when appropriate. Note that the US Dept. of Justice
strongly emphasizes the importance of reporting in an analogous context:
"Did the antitrust compliance program detect and facilitate prompt
reporting of the violation?" [3] I suggest keeping this reporting section
as-is.

[3] https://www.justice.gov/atr/page/file/1182001/download

Thanks!

--Brad



>
>
> Mirja
>
>
>
>
> On 22. Feb 2023, at 14:46, Joel Halpern <[e-mail]> 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
>
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Brad Biddle | [e-mail] | +1.503.502.1259 (mobile) | http://biddle.law