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

[Brad Biddle <[e-mail]>]

I'm writing to address the concerns raised by Christian [1][2], Mark [3]
and Pete [4] about Section 4.2 of the draft, which recommends that
participants "Use Caution ... [when] [s]eeking clarifications about IPR
disclosures, in a context when any such clarifications could be reasonably
perceived as entering into group negotiations of IPR terms." Christian said
this "looks like an admonishment for WG to not do" things like "modif[ing]
standards to avoid [patent] claims, or structur[ing] standards in ways that
allow for negotiation of either the encumbered option or a free
alternative." 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."

First, Section 4.2 is NOT an admonishment to not engage in any particular
behavior. Section 4.2 expressly acknowledges that the behaviors described
there can be relevant for standards setting, and simply suggests that
participants "use caution" when engaging in them. It suggests what one
approach to caution might look like: "IETF participants who require
informal advice on these issues have a number of options open to them,
including speaking to relevant Area Directors, raising the matter with the
community on a mailing list, or contacting IETF counsel directly." I don't
think there's any reasonable reading of Section 4.2 that could conclude
that it is prohibiting the kinds of activities Christian identifies
(particularly given the emphasis in the document on the importance of our
existing policies, which would include Section 7 of BCP 79 [5]). The idea
is simply that participants should be aware, as an educational matter, that
certain kinds of IPR-related discussions can be more fraught with antitrust
risk than one might expect, and that appropriate cautions--which could be
as simple as following established IETF norms, in a straightforward
circumstance--are warranted.

Second, 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.

So: I'm inclined to leave 4.2 as-is. I don't think it creates the problem
that Christian identifies, and I think the 'high-levelness' of the current
language is a feature, not a bug. My sense is that perhaps some of the
criticism is coming from a place of either assuming the document is trying
to do something more than what it is currently doing, which in my view is
to simply summarize long-standing policies and practices and to provide
some pretty generic educational ideas.

--Brad
(IETF counsel)

[1]
https://mailarchive.ietf.org/arch/msg/antitrust-policy/Uo1si3u-3eqVpXX9qwSN-JGtqNA/
[2]
https://mailarchive.ietf.org/arch/msg/gendispatch/jMijzjOBDyt9E_3wXW2tB7XEJKw/
[3]
https://mailarchive.ietf.org/arch/msg/gendispatch/Ywq1S7nxBo_PsqjaMZMGT_78w0Y/
[4]
https://mailarchive.ietf.org/arch/msg/antitrust-policy/rLoncSq8K2U1jcj0k-BIE70XyIk/
[5] https://www.rfc-editor.org/rfc/rfc8179.txt



On Thu, Feb 23, 2023 at 2:40 PM Pete Resnick <resnick=
[e-mail]> wrote:

> On 22 Feb 2023, at 7:46, Joel Halpern 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
>
> I agree with Mirja and Christian's concerns. Two other bits, almost
> entirely editorial:
>
> First, in 4.1: "employee compensation or benefits among potentially
> competitive employers". I'm pretty sure what you're referring to here
> are things like wage-fixing and anti-poaching agreements, but this
> sounds like I can't talk to you about my salary, which I don't think is
> what you mean. Seems like throughout these sections, speaking in terms
> of specific examples instead of trying to be broad would clarify things
> greatly.
>
> Second, and this is completely a matter of style: There are places where
> the use of the term "antitrust" is a bit counter-intuitive if you don't
> already know what's meant. For instance, in 2.3, it talks about
> engagement in "problematic antitrust behavior". The funny thing about
> that phrase is that, given the the literal meaning, you want behavior
> that is not engaging in trusts; "antitrust behavior" is the good thing
> and "trust behavior" would be the bad thing. And I do understand that
> the word is now a term of art and refers to the name used in US
> competitiveness laws, but I think it may sound weird to non-experts. If
> you instead used "competitive", "anti-competitive", and "competition"
> throughout, I think the document might be clearer to non-experts (or
> even non-native English speakers). But again, this is a purely stylistic
> comment and the current language is fine if you decide not to change it.
>
> Cheers,
>
> pr
> --
> Pete Resnick https://www.episteme.net/
> All connections to the world are tenuous at best
>
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