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

[Brian E Carpenter <[e-mail]>]

Vittorio,

On 07-Sep-21 20:45, Vittorio Bertola wrote:
> 
> 
>> Il 06/09/2021 21:12 John Levine <[e-mail]> ha scritto:
>>
>> In general it is illegal for competitors to coordinate the way they do
>> business. Stanrdards development has a carveout because there there
>> is a widely understood benefit to the public for competing products
>> to interoperate.  That isn't limited to software; it's why the lightbulbs
>> you buy at the hardware store fit into the sockets in the desk lamps you
>> bought at the office supply store.
> 
> On this, there is one very important aspect that the draft IMHO fails to address, which is any lack of inclusiveness (voluntary or involuntary) in the participants set.

I think it isn't covered because it's out scope for the guidance that is lacking in the IETF. Here's something I wrote during one of the previous discussions of this topic in 2012:

>>> I think the point is that when drafting RFC 2026 (and later RFC 2418), those
>>> involved (including Jorge's predecessor as pro bono counsel) were very much
>>> aware of anti-trust rules, and it was certainly in their minds that following
>>> the RFC 2026 process would largely avoid anti-trust issues, without the need
>>> to say so explicitly. Indeed BCP 9 describes what we *should* do (focus on
>>> technical aspects, ensure openness and fairness, disclose IPR) but not what
>>> we shouldn't do. Anti-trust advice tends to describe what we shouldn't do.
>>> That's what the FAQ adds.

IANAL, but as I understood it at the time, the fact that the IETF is open to all was adopted partly because of antitrust concerns. The issue is not so much inclusiveness as avoiding exclusiveness. But that's taken care of by the IETF's basic rules. What we are lacking is specific advice to participants about what *not* to do.

(What FAQ, I hear you ask? It was a draft, at http://www.ietf.org/playground/antitrust-faq.html, but it's 404 and the Internet Archive doesn't seem to have a copy of it.)

Regards
    Brian

> 
> Standards development is not considered anticompetitive as long as all those whose businesses are impacted by the new standard have a voice in the process or can at least exploit the standard on fair terms. If a group of companies agree to design and adopt a standard that makes it harder for companies outside of that subset to compete with them, then this is potentially (I'd say definitely) an antitrust issue.
> 
> I am not a lawyer, so I cannot say, for example, whether the current IETF policies for participation (open door, no fees etc.) are in themselves sufficient to avoid that risk, or whether specific care should be taken to involve all potentially affected industry sectors before finalizing a standard that would impact market and product opportunities. I'd still recommend that the point is addressed in the draft.
>