Re: [Gendispatch] I-D Action: draft-halpern-gendispatch-antitrust-00.txt

Great thanks.  Incorporating your comments and Stephen’s, my new list is:

1.  Rob wants section 5 rephrased from recommending the avoidance of certain discussions, to warning people about certain discussions.  Mark makes a similar suggestion but with some items remaining as avoidance recommended and some rephrased to warnings.

2.  Lloyd points out that he would be unable to voluntarily share his compensation and benefits details (this possibly wraps into 1. above)

3.  S. Moonesamy points out that "dominant position" should be better explained as relating to participants whose employer maybe in a dominant market position.

4.  Rob wants to hear from an actual lawyer (in case there’s any doubt - I am not a lawyer) that the phrase "This document does not contain legal advice" is a meaningful legal phrase, while Brian recommends the alternative "This document does not constitute formal legal advice".

Have I got it correct this time?

Jay

> On 7/09/2021, at 1:26 PM, Mark Nottingham <mnot@mnot.net> wrote:
> 
> Hi Jay,
> 
>> On 7 Sep 2021, at 8:05 am, Jay Daley <exec-director@ietf.org> wrote:
>> 
>> If I could summarise the issues I’ve heard here:
>> 
>> 1.  Rob wants section 5 rephrased from recommending the avoidance of certain discussions, to warning people about certain discussions.  Mark makes a similar suggestion in order to avoid any recommendations being weaponised to prevent legitimate discussions.
> 
> Correct, but this could be dealt with in a number of ways. Note that this is entirely an issue of how IETF people might misread (and perhaps misuse) the document's contents (the former already being evidenced in discussion). 
> 
> Going a bit further - there are some sorts of things that we need to prohibit in the IETF, because they're very clearly anti-competitive (mostly cartel behaviour) and if the IETF countenances them, the organisation will be legally answerable. Others are behaviours that participants need to be aware might have competition law consequences upon them (or more often, their employer), but aren't things we should outright prohibit, because a court needs to make the judgment, not us. The document would be improved if it distinguished between them.
> 
>> 2.  Lloyd points out that he would be unable to voluntarily share his compensation and benefits details
>> 
>> 3.  Mark points out (I think) that preventing all discussion of compensation and benefits could be akin to imposing a "no poaching of competitors staff" policy for the IETF
> 
> No; I was merely responding to some folks who were expressing skepticism that discussion of compensation and benefits could be an antitrust issue, by pointing out a case where it had been.
> 
>> 4.  S. Moonesamy points out that "dominant position" should be better explained as relating to participants whose employer maybe in a dominant market position.
>> 
>> 5.  Rob wants to hear from an actual lawyer (in case there’s any doubt - I am not a lawyer) that the phrase "This document does not contain legal advice" is a meaningful legal phrase, while Brian recommends the alternative "This document does not constitute formal legal advice".
>> 
>> 6.  Mark is concerned that dealing with the possible abuse of a dominant position is unnecessary given there have been no cases brought to suggest that regulators are concerned with this
> 
> Not exactly; I very much anticipate it becoming an issue, and regulators are actively discussing it and processing complaints about it. However, regulators aren't courts. What I'm concerned about is our pre-empting the law by prohibiting 'behavior that may be considered abuse of a dominant position' when the definition of that phrase is still very much disputed in the legal world (both in the US and EU, among other places).
> 
> For internal purposes, the same resolution as #1 applies; don't make it a prohibition, make it advisory, so we don't have a situation where someone accuses someone in IETF leadership of abusing dominance and the IETF having no practical way to weigh that claim, or (more importantly) authority to do so.  
> 
> There is also an external dimension to the considerations here. Standards bodies might have a role to play in curtailing abuse of dominance, and personally I think that the Internet would be a better place if we did. More relevantly, if we don't competition authorities will start to do it for standards-controlled technologies in addition to proprietary ones.
> 
> However, if we're going to do that, it needs to be through an established policy that can be applied by the IETF based upon shared technical principles, not a one-line 'don't do it' admonishment.
> 
>> 7.  Stephen points out that he would be unable to discuss the FLOSS business model in relation to specific supply chains.
> 
> 
> Cheers,
> 
> --
> Mark Nottingham   https://www.mnot.net/
> 
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-- 
Jay Daley
IETF Executive Director
exec-director@ietf.org