[antitrust-policy] Further feedback on draft-halpern-gendispatch-antitrust

[Mark Nottingham <[e-mail]>]

Reading -05, a few more issues are apparent. Please CC me on responses, as I'm not subscribed to the list.


1. Introduction

> This document is intended to educate IETF participants about how to reduce antitrust risks in connection with IETF activities.

"educate... how to reduce antitrust risks" could be read as "advice", or even "legal advice." And, as others have noted, it really isn't educational material. I suggest:

> This document is intended to briefly introduce IETF participants to some of the antitrust issues that are connected with IETF activities. It is not legal advice, and is not complete; those with concerns about antitrust issues should obtain legal advice.


2.2 Purpose of Antitrust or Competition Law

The purpose of competition law is, to put it mildly, contested. We shouldn't unintentionally take a position; this section should be removed.


2.3. Overlapping Areas of Concern

Given the positioning of this document, 'must not' (x2) is not appropriate here, even in lowercase.


4.2 Topics Requiring Caution

>     • Seeking clarifications about IPR disclosures, in a context when any such clarifications could be reasonably perceived as entering into group negotiations of IPR terms.

This text's use of 'group negotiations', while appropriate in the context of competition law, can be read as 'open or public negotiations' in an IETF context. Because normal IPR discussions in the IETF are about non-discriminatory licensing, which poses no competitive risk by its nature, I suggest that something like this would be much more helpful to participants:

> • Discussion or Negotiation of IPR licensing terms that are (or could be perceived as) discriminating for or against a particular group.


4.2 Topics Requiring Caution

Some activity at IETF116 made me think that we need to say more about abuse of dominance as it relates to our decision-making procedures. 

For example, if someone employed by an implementer that has overwhelming market share gets up to the mic and states that their implementation will not support a proposal under any condition, that could be perceived as an abuse of dominance by a regulator or judge.

If the Working Group were to assign undue weight to such statements, or even the perception of a dominant undertaking's preferences, that could be seen as facilitating such abuse.

Of course, our consensus procedures are a defence against this. However, Chairs and participants are also pragmatic -- if a party that controls 80% of the market (for example) doesn't want to do something, it's probably not going to fly. That *doesn't* mean that the WG should always give in, however; sometimes, you publish a document and see if it gets deployment when helped by other forces (e.g., customer demand).

So, we need a reminder; something like this under 4.2:

> • Statements that could be perceived as unduly using market share to influence consensus outcomes, when made by participants who are associated with companies that might be considered as dominant in a relevant market.


4.4. Escalate Antitrust-Related Concerns

The title of this section implies that the legal counsel will 'do something' regarding the concern raised, and therefore takes responsibility. That likely isn't the case; counsel will assess whether there are any legal implications *for the IETF*, but not for the person who raised it. Absent regulator or court action, it's unlikely we'll actually do anything based upon a random complaint.

As a result, this section should probably be changed to something like:

> 4.4 Inform the IETF of Antitrust-Related Issues
>
> Participants can report potential antitrust issues in the context of IETF activities by contacting IETF legal counsel ([e-mail]) or via the IETF LLC whistleblower service. Note that reports will only be assessed for their impact upon the IETF; should you be directly impacted by a antitrust issue, you should obtain specific legal advice.


Cheers,

--
Mark Nottingham   https://www.mnot.net/