Re: [Gendispatch] Fwd: I-D Action: draft-halpern-gendispatch-antitrust-01.txt

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

On 07-Nov-21 15:19, Joel M. Halpern wrote:
> Brian, the fact that we say people participate as individuals does not
> suddenly make them no longer employees of their company.  And if they
> act in ways that are anti-competitive on behalf of those employers, 

That is why our rules say what they say. The draft IMHO confuses the issue.
It talks about how participants might infringe competition law *if* they
break the IETF rules by not acting as individual contributors.

Introduction, sentence 1, says "Standards development frequently requires
collaboration between competitors." That's simply not what the IETF does.
It would apply to SDOs that are membership organisations whose members
are competing companies. On reflection, the whole document is written from
the wrong premise.

Section 5 starts "As the IETF is a standards development environment where
representatives from competitors are highly likely to be present..."
Wrong. By definition, there are *no* representatatives present.

[I believe the original legal advice came at least partly from Geoff Stewart,
and the IBM corporate standards people, who knew a lot about antitrust
because of the big antitrust suits against IBM, were also giving advice
in those days.]

I think the whole draft needs a rewrite on the basis that anyone who
acts for their employer in an IETF forum is in breach of the IETF's rules.
That should be the starting point, not the two sentences quoted above.

I do agree that WG Chairs and ADs should be advised to shut down any such
behaviour. And a description of what might be incorrect behaviour is
useful. But the original sin here is acting as a company rep, in direct
violation of RFC 2026 and its predecessors.

Regards
     Brian

> it
> can place the IETF as a whole, and other participants in the IETF, at
> risk.  particularly if they are from a company that is considered to
> have a dominant position in the market.
> 
> So I am looking for the IETF to give participants advice to help avoid
> these risks.  I do not know who wrote the advice 30 years ago, or what
> assumptions they made.


> I know that about 15 years ago our lawyer
> thought it would be helpful to clarify these things, but we chose not to.
> 
> Put differently, if we thought there was no effect from employers on
> people's actions here, we would not have the rules that each company may
> have no more than 2 members on the nomcom.  or the expectation that when
> there is more than one chair of a working group they will be from
> different companies.  or that we expect that ADs in a given area will
> come from different companies.  Or that the nomcom almost never appoints
> more than two ADs to the IESG from the same company.   We do understand
> that affiliation affects thing.
> 
> Yours,
> Joel
> 
> On 11/6/2021 9:53 PM, Brian E Carpenter wrote:
>> Joel,
>> On 07-Nov-21 14:30, Joel M. Halpern wrote:
>>> Finding the right balance on the wording of this issue is something I
>>> expect the discussion once dispatched will need to do.
>>>
>>>    From what the lawyers tell me, I believe this kind of discussion does
>>> head towards incurring significant risks.  So having guidelines that
>>> help us stay on the right side of that seems desirable to me.
>>
>> Help us understand. Since the IETF's motto is rough consensus and
>> running code, and our participants are individuals not company
>> representatives (and who therefore simply *cannot* make agreements about
>> companyy products), how can discussing and agreeing to implement certain
>> features and test interoperability *before* reaching rough consensus
>> conceivably breach competition law?
>>
>> That the IETF is not a venue for companies to make agreements with each
>> other has been established, if not since 1986, then certainly since 1992
>> (RFC1310): "Participation is by individual technical contributors,
>> rather than formal representatives of organizations."
>>
>> I do not understand why the legal advice given in 1992, 102 years after
>> the USA's Sherman Act, needs revisiting.
>>
>> The same goes for the other new doctrine that I queried in
>> https://mailarchive.ietf.org/arch/msg/gendispatch/VTxH4Rx_NJPgBeY9FHphdYJZYAw/
>> .
>>
>> I'm having second thoughts about whether this should be dispatched at
>> all. Since the formalisation of the standards process almost 30 years
>> ago was done with clear awareness of US and EU competition law, I'm far
>> from convinced that it's the IETF's job to give people advice in this
>> area. Participants who are employees should get such advice from their
>> employers. We certainly shouldn't be publishing advice that has a
>> chilling effect on rough consensus and running code.
>>
>>      Brian
>>
>>>
>>> Yours,
>>> Joel
>>>
>>> On 11/6/2021 9:07 PM, Eric Rescorla wrote:
>>>>
>>>> Hi Joel,
>>>>
>>>> This paragraph stood out to me in this document.
>>>>
>>>>       There should be no agreement among participants 
to implement or to
>>>>       adhere to IETF standards, or any discussions as 
to when
>> participants
>>>>       will begin to offer products conforming to IETF 
standards.
>>>>
>>>> In groups I am in, WG participants pretty routinely discuss shipping
>>>> timelines and often try to coordinate changes so that they happen
>>>> at similar times (e.g., disabling SHA-1, rolling out new code that
>>>> can interop).
>>>>
>>>> -Ekr
>>>>
>>>> On Wed, Nov 3, 2021 at 8:37 AM Joel M. Halpern <[e-mail]
>>>> <mailto:[e-mail]>> wrote:
>>>>
>>>>       This is a significant revision of the draft on IETF antitrust
>>>>       guidelines.  We tried to address what 
we heard in the previous
>>>>       feedback,
>>>>       and tightened the language related to legal issues.
>>>>
>>>>       Chairs, if it is possible I would like to present this for
>>>> dispatching
>>>>       at the upcoming session.
>>>>
>>>>       Thank you,
>>>>       Joel
>>>>
>>>>
>>>>       -------- Forwarded Message --------
>>>>       Subject: I-D Action: draft-halpern-gendispatch-antitrust-01.txt
>>>>       Date: Wed, 03 Nov 2021 08:15:16 -0700
>>>>       From: [e-mail] <mailto:[e-mail]>
>>>>       Reply-To: [e-mail]
>>>> <mailto:[e-mail]>
>>>>       To: [e-mail] <mailto:[e-mail]>
>>>>
>>>>
>>>>       A New Internet-Draft is available from the 
on-line Internet-Drafts
>>>>       directories.
>>>>
>>>>
>>>>                 Title
>>      : Antitrust Guidelines for IETF Particiants
>>>>                 Authors         : Joel M. Halpern
>>>>                                   Brad Biddle
>>>>                                   Jay Daley
>>>>                Filename        :
>>>> draft-halpern-gendispatch-antitrust-01.txt
>>>>                Pages           : 8
>>>>                Date
>>     : 2021-11-03
>>>>
>>>>       Abstract:
>>>>            This document provides 
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 draft is:
>>>>       
>>>> https://datatracker.ietf.org/doc/draft-halpern-gendispatch-antitrust/
>>>> <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-01.html
>>>>
>>>>       
>>>> <https://www.ietf.org/archive/id/draft-halpern-gendispatch-antitrust-01.html>
>>>>
>>>>
>>>>       A diff from the previous version is available at:
>>>>       
>>>> https://www.ietf.org/rfcdiff?url2=draft-halpern-gendispatch-antitrust-01
>>>>       
>>>> <https://www.ietf.org/rfcdiff?url2=draft-halpern-gendispatch-antitrust-01>
>>>>
>>>>
>>>>
>>>>       Internet-Drafts are also available by anonymous FTP at:
>>>>       ftp://ftp.ietf.org/internet-drafts/
>>>>       <ftp://ftp.ietf.org/internet-drafts/>
>>>>
>>>>
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>>>>
>>>>       --
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>>>>
>>>
>>