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

[Joel Halpern <[e-mail]>]

In the examples that have been explained to me, the line between 
"discussing product pricing" and "discussing price fixing" was often a 
very blurry line.  Such that even if the participants did not intend to 
be discussing price fixing, investigating authorities could decide that 
is what is happening.  I believe that many of the points being raised 
here have the same problem. Even if the participants are not intending 
to be engaging in anti-competitive activity they could easily venture 
over that line, or venture over a line that enforcement authorities 
could draw.  We are trying to help folks keep clear of that, because the 
consequences can be expensive and painful for the IETF and the 
participants.  (And we are, as the community requested, staying clear of 
setting policy.)

In one example I heard of, I am quite sure the SDO did not think that 
the discussions (related to product cost) were a problem.  As far as I 
know, after several million dollars were spent on lawyers, it is still 
not clear i there is a massive legal problem for the SDO.

Yours,

Joel

On 2/28/2023 10:37 PM, Pete Resnick wrote:
> [Trimming down to a couple of particular bits...]
>
> On 24 Feb 2023, at 19:33, Brad Biddle wrote:
>
>> Mark suggests that this part of 4.2 is too broad and could be
>> narrowed to focus on the scenario when "such a discussion results in
>> something that's open to all but advantages some party through the
>> structure of the agreement." Pete conveyed general support for these
>> concerns, and noted generally that "speaking in terms of specific 
>> examples
>> instead of trying to be broad would clarify things greatly."
>> [...]
>> the kinds of risks that Section 4.2 points to are potentially both
>> broader and more nuanced than the scenario Mark describes, and I 
>> think that
>> trying to address the issues at the level of specificity that Mark (and
>> perhaps Pete) suggests would require a document that would start to look
>> like a legal treatise on antitrust law. I think the best we can do in 
>> this
>> style of document is a general (yellow/caution) flag-waving around a
>> category of risk, coupled with a suggestion to obtain advice as needed.
>
> The example I gave (discussing "employee compensation or benefits") 
> and the examples Stephen gave ("product pricing" and "supply chains") 
> come from section 4.1, not 4.2, but they suffer the same problem of 
> the unqualified use of the term "collective bargaining" in 4.2: By 
> using non-specific terminology, you are unintentionally including 
> things that are perfectly permissible in IETF discussions and would 
> not incur anti-competition risk. If instead you used more specific 
> terms like "wage-fixing and anti-poaching agreements" instead of 
> "employee compensation or benefits", or "product price fixing" and 
> "bid-rigging" instead of "product pricing" and "supply chain", or as 
> Mark pointed out "exclusive negotiations" instead of "group 
> negotiations", that would avoid the ambiguity and the kind of chilling 
> effect that Alissa is concerned with. That's not a legal treatise on 
> antitrust law; it's just being a bit more specific instead of using 
> overly general terminology.
>
> pr