Re: [antitrust-policy] I-D Action: draft-halpern-gendispatch-antitrust-05.txt

[Eric Rescorla <[e-mail]>]

On Fri, Mar 10, 2023 at 5:46 PM Joel Halpern <[e-mail]> wrote:

> The draft explicitly says that it does not change IETF policy.
>
> Further, the text in question says that what has to be avoided is
>
>    - Seeking clarifications about IPR disclosures, in a context when any
>    such clarifications could be reasonably perceived as entering into group
>    negotiations of IPR terms."
>
> That is, what other RFCs already say, we MUST NOT enter into group
> negotiations about IPR terms.
>
Can you point me to the specific RFC language you are relying on here?

-Ekr

This does not change the permission for WGs to decide to accept or reject
> an I-D based on the IPR terms.  Which is also spelled out in existing RFCs.
>
> I am left confused as to what is the substance of the objection to the
> text?
>
> Yours,
>
> Joel
> On 3/10/2023 6:09 PM, Eric Rescorla wrote:
>
>
>
> On Fri, Mar 10, 2023 at 3:05 PM Stephan Wenger <[e-mail]> wrote:
>
>> Hi Jay,
>>
>> Inline.
>>
>> S.
>>
>>
>>
>> *From: *Jay Daley <[e-mail]>
>> *Date: *Friday, March 10, 2023 at 01:33
>> *To: *Stephan Wenger <[e-mail]>
>> *Cc: *[e-mail] <[e-mail]>
>> *Subject: *Re: [antitrust-policy] I-D Action:
>> draft-halpern-gendispatch-antitrust-05.txt
>>
>> Hi Stephan
>>
>> A couple of questions:
>>
>> > On 10 Mar 2023, at 02:02, Stephan Wenger <[e-mail]> wrote:
>> >
>> […]
>> >
>> >     • Remove the second bullet of section 4.2.
>> > The second bullet here has IMO the potential to shift the practices of
>> the IETF in a direction appreciated primarily by those offering technical
>> alternatives under terms that are less commercially attractive than other
>> technical alternatives, and secondarily by those with comparatively bigger
>> antitrust exposure.  Those changes would potentially disfavor organizations
>> not interested in monetarizing their IP, smaller entities, academics, and
>> individuals.  Upon reflection and re-reading posts of others also
>> addressing this bullet, I have come around to suggest you remove this
>> bullet in its entirety, as it may constitute a policy change in practice,
>> despite what the (appreciated) clarifications in the doc declare.
>> > I believe—and I think you would concur—that nothing is wrong per se
>> with “Seeking clarifications about IPR disclosures”.  Doing so may well be
>> beneficial for the operation of the IETF; see my example in my previous
>> post, cited above.  Pointing out the content of disclosures, including
>> words like RAND or RAND-Z, should be fine.  Even justifying one’s support
>> of one technology over another based on disclosure content should be fine.
>> I think the line is crossed when people (presumably being affiliated with
>> competitors) start ganging up using their power to force a supplier towards
>> below market prices, independent on whether the supplier supplies IP or
>> something else.  That’s not something that happens through mere
>> clarification questions on IPR disclosures though, and it may well happen
>> in other contexts.  Such group negotiation is a red flag (yes, I like that
>> term and wish we wouldn’t have removed it :-) and should be covered under
>> 4.1.
>>
>> So if this was replace with a bullet about "group negotiations" in 4.1
>> that gave an example related to IPR terms, would that in principle be
>> acceptable to you (recognising that depends on the actual text)?
>>
>> Yes, with this caveat: the example has to be narrow enough not to
>> discourage IPR related discussions in general.  I’m fine with drawing a
>> line when any of these factors come into play: a) discussions about
>> monetary terms (with the exception of distinguishing between zero and
>> non-zero, which I think is ok); or b) group pressure requesting different
>> terms (“I do not support your tech unless you change to RAND-Z”, “me, too”,
>> “+1”).
>>
> I share Stephan's concern here. WGs absolutely should be able to decide
> not to
> use technologies based on specific IPR terms. RANDZ is one such example,
> but
> it's not the only one.
>
> Taking a step back, I would ask whether this is something that needs
> fixing. Do we
> have cases of improper behavior taking place in this area? If not, then I
> think this
> text would probably be better removed.
>
> -Ekr
>
>
>>
>> >
>> >     • Section 4.1, add buyer/licensee collusion.
>> > I leave the wordsmithing to folks with more experience, but I think
>> something like “discussion about supplier’s pricing (including IP
>> royalties)” needs to be added.  Perhaps with a clarification like “it’s a
>> cornerstone of the IETF’s IPR regime that individuals make their own
>> decisions regarding the monetary or other price they are willing to pay for
>> a technology, but that price, especially when expressed in dollar values,
>> must not be discussed in an IETF setting.  Don’t ask, don’t tell.”.
>> >
>> >     • Section 4.1, “representatives from competitors”.
>> > As it is pointed out elsewhere in the doc, in the IETF, we participate
>> specifically NOT as representatives of our employers but in an individual
>> capacity only.  Insofar, logic suggests that the paragraph as written does
>> not apply to IETF participation but rather states a general observation
>> from which the IETF is safely isolated due to its rather uncommon policy of
>> individual participation.  I think that this is a misperception that needs
>> to be addressed.
>>
>> Do you mean something like "While individuals are expected to participate
>> as individuals, their actions can still be construed as representing their
>> employer, whatever their role.  Therefore, participants should be aware
>> that some topics are generally inappropriate for discussion in a standards
>> setting environment where representatives from competitors to their
>> employer are likely to be present."?
>>
>> Yes.  Good text, thank you.
>>
>>
>> Jay
>>
>> >
>> >     • Section 4.1, structure as a bullet list as the para, as written,
>> is close to unreadable?  If not, why not?
>> > Rationale was previously provided.
>> >  Thanks,
>> > Stephan
>> >   From: antitrust-policy <[e-mail]> on behalf
>> of Joel Halpern <[e-mail]>
>> > Date: Thursday, March 9, 2023 at 06:50
>> > To: [e-mail] <[e-mail]>
>> > Cc: [e-mail] <[e-mail]>
>> > Subject: [antitrust-policy] Fwd: I-D Action:
>> draft-halpern-gendispatch-antitrust-05.txt
>> > antitrust-policy:      As noted below, the authors have posted a new
>> version of the antitrust draft.  We have tried to make more clear that it
>> is educational and informational material, and does not change IETF
>> policy.  As per suggestions, we have replaced the red-flag / yellow flag
>> descriptions with what we hope are clearer descriptions of the categories.
>> Please read and comment on the antitrust-policy list.
>> > Gendispatch:
>> >     We have been asked to provide a 10 minute presentation at IETF 116
>> to discuss the dispatching of this draft.  Content discussion, as per the
>> announcements, is still on antitrust-policy.  The slides will review the
>> table of contents of the draft, and then state the dispatch decision for
>> any further discussion by the WG.
>> > Thank you,
>> > Joel (and Brad and Jay)
>> >
>> >
>> > -------- Forwarded Message -------- Subject: I-D Action:
>> draft-halpern-gendispatch-antitrust-05.txt
>> > Date: Thu, 09 Mar 2023 06:46:06 -0800
>> > From: [e-mail]
>> > Reply-To: [e-mail]
>> > To: [e-mail]
>> >
>> >
>> >
>> > A New Internet-Draft is available from the on-line Internet-Drafts
>> directories.
>> >
>> >
>> > Title : Antitrust Guidelines for IETF Participants
>> > Authors : Joel M. Halpern
>> > Brad Biddle
>> > Jay Daley
>> > Filename : draft-halpern-gendispatch-antitrust-05.txt
>> > Pages : 8
>> > Date : 2023-03-09
>> >
>> > Abstract:
>> > This document provides education and guidance for IETF participants
>> > on compliance with antitrust laws and how to reduce antitrust risks
>> > in connection with IETF activities.
>> >
>> >
>> > The IETF datatracker status page for this Internet-Draft is:
>> > https://datatracker.ietf.org/doc/draft-halpern-gendispatch-antitrust/
>> >
>> > There is also an HTML version available at:
>> >
>> https://www.ietf.org/archive/id/draft-halpern-gendispatch-antitrust-05.html
>> >
>> > A diff from the previous version is available at:
>> >
>> https://author-tools.ietf.org/iddiff?url2=draft-halpern-gendispatch-antitrust-05
>> >
>> >
>> > Internet-Drafts are also available by rsync at rsync.ietf.org:
>> :internet-drafts
>> >
>> >
>> > _______________________________________________
>> > I-D-Announce mailing list
>> > [e-mail]
>> > https://www.ietf.org/mailman/listinfo/i-d-announce
>> > Internet-Draft directories: http://www.ietf.org/shadow.html
>> > or ftp://ftp.ietf.org/ietf/1shadow-sites.txt
>> > _______________________________________________
>> > antitrust-policy mailing list
>> > [e-mail]
>> > https://www.ietf.org/mailman/listinfo/antitrust-policy
>>
>>
>> --
>> Jay Daley
>> IETF Executive Director
>> [e-mail]
>> _______________________________________________
>> antitrust-policy mailing list
>> [e-mail]
>> https://www.ietf.org/mailman/listinfo/antitrust-policy
>>
>
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