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

[Russ Housley <[e-mail]>]

This document seems to be going in a different direction than recommended by the community at the antitrust BOF at IETF 83.  My memory is that the BOF concluded that educational material should be developed so that IETF participants are aware of the various laws.  This is actually not easy because the laws are quite different in various parts of the world.  Without holding a new BOF that shows a change in the community perspective, a document with recommendations should not move forward.

Russ


> On Feb 24, 2023, at 8:33 PM, Brad Biddle <[e-mail]> wrote:
> 
> 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/ <https://mailarchive.ietf.org/arch/msg/antitrust-policy/Uo1si3u-3eqVpXX9qwSN-JGtqNA/>
> [2] https://mailarchive.ietf.org/arch/msg/gendispatch/jMijzjOBDyt9E_3wXW2tB7XEJKw/ <https://mailarchive.ietf.org/arch/msg/gendispatch/jMijzjOBDyt9E_3wXW2tB7XEJKw/>
> [3] https://mailarchive.ietf.org/arch/msg/gendispatch/Ywq1S7nxBo_PsqjaMZMGT_78w0Y/ <https://mailarchive.ietf.org/arch/msg/gendispatch/Ywq1S7nxBo_PsqjaMZMGT_78w0Y/>
> [4] https://mailarchive.ietf.org/arch/msg/antitrust-policy/rLoncSq8K2U1jcj0k-BIE70XyIk/ <https://mailarchive.ietf.org/arch/msg/antitrust-policy/rLoncSq8K2U1jcj0k-BIE70XyIk/>
> [5] https://www.rfc-editor.org/rfc/rfc8179.txt <https://www.rfc-editor.org/rfc/rfc8179.txt>
>