Re: [antitrust-policy] Further feedback on draft-halpern-gendispatch-antitrust

[Mark Nottingham <[e-mail]>]

Hi Joel,

Responses below.

> On 3 Apr 2023, at 1:29 pm, Joel Halpern <[e-mail]> wrote:
> 
> Top lining what I find confusing in this (and several other emails I have tried to respond to), and then in lining the rest of my responses.
> 
> The primary concern if I am reading this right seems to be a claim that because this gives advice, it is not strictly educational material.   I think we have all taken a LOT of training.  It tends to give examples and advice, as well as information about the policies of whomever is providing the training.  If this did not include advice, I do not understand how it could be useful education.  And I do not see how providing advice that is explicitly marked as non-binding and not IETF policy violates the goal that the document is informational advice.  (It is lay advice, as we all understand that if you want legal advice you have to ask a lawyer with whom you have a relationship.)
> 
> Put a little differently, I do not understand how your suggested rewording would help the concern.  I am happy to make your first suggested change, and does seem to strengthen the "not poliocy" message.  But I do not see how it address the comment from you and others that it "isn't educational material."

Speaking only for myself - the concern is not whether it is or is not 'educational material' -- the concern is that some will consider it authoritative, or will cite it as backing their position in a particular decision. If it is to be published (and I believe many think that this issue alone should sink it), it should be purged of any hint that could support these interpretations.


> Further in line marked <jmh> ... </.jmh> because different mailers mangle writer marking in different ways..

It is indeed a sad state of affairs.


>> 2.2 Purpose of Antitrust or Competition Law
>> 
>> The purpose of competition law is, to put it mildly, contested. We shouldn't unintentionally take a position; this section should be removed.
> <jmh>The section is a quote from the US DoJ, and aligns with what many otehr governments say on the subject.  It does not claim this is the IETF agreement on the purpose.  It says this is waht someone else says it is for.  It seems to me very helpful, in understanding how we interact with these laws, if we understand where the enforcement authorities start from in looking at parties actions. </jmh>

Even staying inside the US, you're likely to get a somewhat different view from the 'New Brandeisians', including the current chair of the FTC. The Europeans are also about more than just consumer welfare these days.

The point is that alone, this quote is very narrow, and could age badly. If it's going to stay, it should be contextualised in time, and other sources (preferably at least one European) should be added.


>> 2.3. Overlapping Areas of Concern
>> 
>> Given the positioning of this document, 'must not' (x2) is not appropriate here, even in lowercase.
> 
> <jmh>Are you really asking that we say it might be sometimes okay for IETF leadership / staff to engage in legally problematic activities?  I would hope not.  Are you really asking that the IETF endorse problematic activities by participants within the IETF?  That would subject the IETF itself to significant legal liabilities.  I suppose you could argue that we should say these things, but in some other document that is actually a policy document.  But the community does not want a policy document.  So we used lower case must to note that this is an observation about external forces, not a statement of IETF policy.

Ignoring the rhetorical questions there, the lowercase 'must' has a history of being misinterpreted in the IETF -- we have a whole RFC clarifying it. 'must' -- even in lowercase -- implies that it's a requirement, which implies this is a policy document. 


> My fundamental concern is that if we can not even say this, we leave the IETF at significant risk of violating antitrust expectations governments have of SDOs.  That has been demonstrated to result, even with good intentions, in millions of dollars in cost and significant disruption in operation for other SDOs.
> 
> I suspect, but have not confirmed, that my co-authors do not consider these to be policy-setting statements.  But they can speak for themselves.</jmh>

Frankly, it doesn't matter what they think -- it matters what readers think.

It's easy to restate these without an explicit requirement; e.g.,

> Most acutely, the IETF needs to avoid having anyone who is officially representing the IETF -- in any capacity -- engaging in problematic antitrust behavior and creating liability for the IETF.

('antitrust behaviour' is really weird here; it's screaming out to be 'anticompetitive behaviour')

... although even with this change, I suspect most readers will assume that this document has a policy flavour -- it's very difficult to say 'we've got to avoid this, and here are the things that are problematic' without people assuming that it's a policy.

>> 4.2 Topics Requiring Caution
>> 
>>>     • Seeking clarifications about IPR disclosures, in a context when any such clarifications could be reasonably perceived as entering into group negotiations of IPR terms.
>> This text's use of 'group negotiations', while appropriate in the context of competition law, can be read as 'open or public negotiations' in an IETF context. Because normal IPR discussions in the IETF are about non-discriminatory licensing, which poses no competitive risk by its nature, I suggest that something like this would be much more helpful to participants:
>> 
>>> • Discussion or Negotiation of IPR licensing terms that are (or could be perceived as) discriminating for or against a particular group.
> 
> <jmh>As I understand it (and lawyers can clarify better), there are more concerns than overt discrimination.  The consistent advice we have received from IETF lawyers for the last 35 years is to never engage in negotiation of license terms (we are allowed to say no, we won't work on thsi document because of terms).  They have consistently told us that engaging in such negotiation brings a significant risk of governmental antitrust intervention.

I'd love to dive into this -- could they give summaries, or ideally, citations? The most straightforward thing to do here is to add language that covers whatever these additional concerns are, but we need to know what they are first.

Cheers,


> I am looking for better wording to balance the importance of this with the fact taht we are not trying to set IETF policy, and therefore can not tell people what the MUST NOT do.  We already moved it to the caution section, and reworded it to moderate.  We may not have gotten far enough, and are looking at suggestions that have been made (as well as happy to see any that will be made) to achieve this balance.  Given how important the lawyers have said this is, I am loathe to remove the second bullet of 4.2 entirely. </jmh>
> 
>> 4.2 Topics Requiring Caution
>> 
>> Some activity at IETF116 made me think that we need to say more about abuse of dominance as it relates to our decision-making procedures.
>> 
>> For example, if someone employed by an implementer that has overwhelming market share gets up to the mic and states that their implementation will not support a proposal under any condition, that could be perceived as an abuse of dominance by a regulator or judge.
>> 
>> If the Working Group were to assign undue weight to such statements, or even the perception of a dominant undertaking's preferences, that could be seen as facilitating such abuse.
>> 
>> Of course, our consensus procedures are a defence against this. However, Chairs and participants are also pragmatic -- if a party that controls 80% of the market (for example) doesn't want to do something, it's probably not going to fly. That *doesn't* mean that the WG should always give in, however; sometimes, you publish a document and see if it gets deployment when helped by other forces (e.g., customer demand).
>> 
>> So, we need a reminder; something like this under 4.2:
>> 
>>> • Statements that could be perceived as unduly using market share to influence consensus outcomes, when made by participants who are associated with companies that might be considered as dominant in a relevant market.
> <jmhThat seems an useful thing to add to section 4.2, but I will defer to Brad on this.</jmh>
>> 
>> 4.4. Escalate Antitrust-Related Concerns
>> 
>> The title of this section implies that the legal counsel will 'do something' regarding the concern raised, and therefore takes responsibility. That likely isn't the case; counsel will assess whether there are any legal implications *for the IETF*, but not for the person who raised it. Absent regulator or court action, it's unlikely we'll actually do anything based upon a random complaint.
>> 
>> As a result, this section should probably be changed to something like:
>> 
>>> 4.4 Inform the IETF of Antitrust-Related Issues
>>> 
>>> 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; should you be directly impacted by a antitrust issue, you should obtain specific legal advice.
> <jmh>I rather like your wording, but will again defer to Brad.</jmh>

--
Mark Nottingham   https://www.mnot.net/