Re: [antitrust-policy] An Antitrust Policy for the IETF

Hi Jorge,

I'm one of those not having any trouble with ex ante disclosures of
licensing terms, as a uni-lateral statement of a right holder of the
monetary terms it expects to get from licensing essential claims.  However,
Joel wrote about "negotiating licensing terms", which, I believe, most or
all SDOs (even those specifically allowing ex ante disclosures) have
explicitly prohibited in their policies.  Let me quote from ETSI's antitrust
policy 
http://www.etsi.org/WebSite/document/Legal/ETSI_Guidelines_for_Antitrust_Com
pliance.pdf  (which, IMO and at present, is the most well developed
antitrust policy of any major SDO):
1. C.4.2  Voluntary, unilateral, public, ex ante disclosures of licensing
terms by licensors of essential IPRs, for the sole purpose of assisting
members in making informed (unilateral and independent) decisions in
relation to whether solutions best meet the technical objectives, are not
prohibited under ETSI Directives. It is therefore not prohibited for members
of an ETSI Technical Body to inform the Technical Body of the availability
of such licensing terms in compliance with Section 4.1 of the ETSI Guide on
IPRs. Where any such disclosures are made, any discussion and/or negotiation
of any licensing terms, including any price term, shall not be conducted in
ETSI. 

Or
> D.2 Please do not:
> 1. 
> 2. D.2.1  Engage in activities intended to restrain competition or harm
> consumers. 
> 3. 
> 4. D.2.2  Attempt to set or control price or terms of product, service or
> license fees in the course of any ETSI activity.
> 5. 
> 6. D.2.3  Discuss any disclosure of licensing price or terms, product or
> service price or terms, pricing methods, profits, profit margins, cost data,
> production plans, market share or territories in the course of any ETSI
> activity. 

Emphasis by me.

Best regards,
Stephan

From:  Jorge Contreras <cntreras@gmail.com>
Date:  Sun, 15 Jan 2012 16:32:38 -0600
To:  "Joel M. Halpern" <jmh@joelhalpern.com>
Cc:  <antitrust-policy@ietf.org>, Russ Housley <housley@vigilsec.com>
Subject:  Re: [antitrust-policy] An Antitrust Policy for the IETF

> The other piece that I have been told is important, that is missing from the
> prohibited lists is that the IETF MUST NOT engage in negotiating licensing
> terms.  The lawyers have told us repeatedly that such would be dangerous
> behavior.
> 
> Yours,
> Joel

Joel -- the law in this area is evolving and lawyers' stated positions
sometimes vary based on their companies' business strategies and their
clients wishes.  I have advised the IAOC that (1) the IETF, per se, should
not engage in licensing negotiations (meaning that the IESG, IAOC and other
bodies that are collectively representing the IETF community), but that (2)
individual companies MAY disclose and discuss licensing terms in the context
of IETF activities.  Not all lawyers will agree with point (2), and some
will disagree with vehemence.  However, you should know that the US Dept. of
Justice and Federal Trade Commission have both viewed required "ex ante"
disclosures of licensing terms in SDOs with favor (or, at least, without
disfavor).  I would be happy to discuss in greater detail with you, and also
invite any interested lawyers to the discussion.

Regards,
Jorge

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