[antitrust-policy] Fwd: [Gendispatch] Draft GENAREA minutes - please review

[Jay Daley <[e-mail]>]

Extracted minutes that are relevant to this list:

> Begin forwarded message:
> 
> From: Lars Eggert <[e-mail]>
> Subject: [Gendispatch] Draft GENAREA minutes - please review
> Date: 27 November 2023 at 11:37:53 GMT
> To: [e-mail]
> 
> Hi,
> 
> below are the minutes from the IETF 118 GENAREA session. Please review and send corrections where needed.
> 
> THANK YOU Emily Heron for saving my bacon by proactively taking minutes!
> 
> Lars
> 
> -- 
> 
> # GENAREA @ IETF 118 (Nov 8, 2023)
> 
> Note Taker: Emily Heron

> ## Topic 2: draft-halpern-gendispatch-antitrust-06
> 
> Background: concerns raised by ISOC in 2020 about IETF legal exposure
> to antitrust issues.
> 
> Results of legal advice:
> 
> - Current policy set provides strong mitigation of antitrust.
> - No requirement for new policy.
> - Helpful to have an info doc that summarizes our position and
> provides guidance No IETF doc can provide legal advice to
> participants.
> 
> Current Status:
> 
> - Current policy has rough consensus
> - Small/format changes to be made
> 
> Meta considerations: How these points might be weaponized by IETF participants
> 
> ### Sticking points and proposed solutions
> 
> Current: Using *detailed* market data to evaluate ...implementation
> costs of *two technical alternatives* to decide ...
> 
> Proposed: Using *unpublished*  market data... implementation costs
> of *alternative technical proposals* ...
> 
> Martin Duke: If we consider market data as mailing list or minutes
> doesn't that make it published?
> 
> Ted Hardie: Believe market data remains undefined, could mean
> anything. Would prefer if we are going to use market data we should
> define it clearly.
> 
> Jay Daley: Lawyers state that market data is the appropriate phrase to
> use without citation.May be better to tackle this by being explicitly
> clear that what you are talking about (internal processes) is not
> market data.
> 
> General Point: Understand weaponization threat: using alternative
> English.
> 
> Mark Nottingham: Engineers expect clear rules and guidelines, lawyers
> see that this is complex and contextual. Best we can do is give
> general guidelines. Mismatch may be leading to the discomfort here
> 
> Jay Daley: If we were to give policy stuff, the lawyers would want
> that to be at a level of clarity Mark: Please avoid making a decision
> about competition law.
> 
> Jay Daley: Yes, avoided.
> 
> ### Sticking Points and Proposed Solutions (2)
> 
> 4.2 Topics Requiring Caution
> 
> Current: Entering into group negotiations of IPR terms
> 
> Proposed: Entering into *private or potentially discriminatory*, group
> negotiations of IPR terms.
> 
> Stephan Wenger: Main issue is that the IETF should not be in the
> business if advising of things that happen outside of official IETF
> meetings.
> 
> Jay Daley: Difficult in terms of differing views. Anti-trust law in
> corridors. Understand point of view, will discuss with authors.
> 
> Lars Eggert (Chair): Is this a sticking point or can we carry forward
> with the rest of the doc?
> 
> Stephan: I don't like to be in the rough but this is a sticking point.
> Issue I have with this point is weaponization - it is very easy to
> weaponize discussion. Organization that makes money out of patent
> licensing considers discriminatory is different from what another org
> may consider discriminatory.
> 
> Jay Daley: "Discriminatory" was meant to state who can be involved in
> the conversation.
> 
> Cullen Jennings: Agree with Stephan - things that happen outside of of
> IETF. That is not what private means here. There are many things that
> happen in IETF that are not public. This refers to private IETF
> meetings. The private here refers to meeting for discussions that are
> within the IETF process but are not public.
> 
> Jay Daley: Something like a design team?
> 
> Cullen Jennings: Design team is a good example of this.
> 
> Stephan Wenger: OK with a definition like this.
> 
> Jay Daley: Like this and will go back and discuss with co-authors
> 
> Phillip Hallam-Baker: Raised specific IPR antitrust issues - two
> separate issues. One is protecting IETF, 2nd is protecting the
> process. "If you provide that service to other parties, we will
> destroy you." Had to talk to management of company making threat.
> Need to have statement somewhere that says threats like this cannot
> be made in the first place against IETF.
> 
> Jay Daley: Already covered in existing set.
> 
> Ted Hardie: Agree with Stephan and Cullen: Doc should state that this
> behavior must be avoided to avoid antitrust issues. What is not
> clear - when IETF provides a facility that is then used for something
> that does not follow these rules. Side meeting rooms. What is the
> risk to us? Remind people that the use of IETF facilities does not
> mean that IETF endorses activities.
> 
> Jay Daley: All side meetings and rooms made available must be public.
> Risk to us as facilitator is sufficiently close to zero that we do
> not need to worry.
> 
> Simon Hicks: No IPR discussions connected with meetings in his work.
> This limits litigation potential. Should consider stating that no IPR
> discussions should take place at IETF.
> 
> Jay Daley: These discussions are a necessary part of IETF. Lawyers
> looked at these specific cases, not a concern. Cannot go back to undo
> IPR rules.
> 
> Mark Nottingham: Should start thinking about our role in non IPR abuse
> of dominance.
> 
> Jay Daley: Cannot do that through this process. That would have to
> relate to current safeguards in place to prevent capture.
> 
> Stephan Wenger: Recent decision on European committee not to pursue
> particular cases does not mean they will not in the future... We
> should address this point here first before we go into something
> broader ad more difficult.
> 
> Mark: Misunderstood what I said, not important.
> 
> Lars Eggert (Chair): We are close but we will get a revision based on
> discussion - will take discussion to antitrust policy list at
> [e-mail]. Get agreement on where we should take to
> next call.

-- 
Jay Daley
IETF Executive Director
[e-mail]