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

[Toerless Eckert <[e-mail]>]

On Mon, Nov 15, 2021 at 12:42:11PM +1300, Jay Daley wrote:
> There’s a crucial point here that keeps getting missed - the *only* way that the IETF can be put into a tricky legal position is by the behaviour of participations and therefore the *only* ways that the IETF can 'defend' itself are by distancing/disowning the behaviour of participants, and/or by regulating the behaviour of participants.  If we assume for a moment that distancing/disowning is insufficient (noting that some feel it is sufficient) then we cannot separate out your a) and b) as you propose.

I was primarily thinking of "foreign country" lasws (aka: not USA and
not host-country), applicable only to participants even when overseas.

> I understand that you do not see the linkage between each behaviour the draft recommends avoiding and antitrust law, 

I don't think i said that.

> but do you really think you need to understand that or is it not sufficient that one or more lawyers agree that these are the behaviours to be avoided?

I do not need to understand these rules if our lawyers agree this is necessary
and sufficient to indemnify IETF from actions of its participants.

BUT: if we want to go beyond doing that and really help participant interpret
how each of their actions does or does not meet the description, then more
explicit examples/explanations would be helpful.

For example and as i asked in another mail: Do i stop being an IETF participant
for the purpose of indemnifying IETF when i go to dinner with other people who also happened
to be at the IETF ? 

>  In other words, do you need to be educated to the level of an antitrust lawyer by this draft?

See above: no.

>  Also, for the draft to explain this linkage it has to go into the very same level of detail that you argue against elsewhere.  

Hopefully not. And as i said, the explanations may not need to be formal or
in the same draft.

> Rather than looking at this draft from the 'input' side where we get into all the complexities of different laws in different regimes etc, it’s likely more productive to look at it from 'output' side, i.e. how does each of these recommendations affect participation in the IETF?

Of course. But to be sufficient for lawyers to be happy to protect the IETF,
the draft will still be quite "abstract", e.g. no definition of exactly
when i am or am not an IETF participant. I'd call this output explanation,
but input explanation.

Cheers
    Toerless
> 
> Jay
> 
> > 
> >> Yours,
> >> Joel
> >> 
> >> On 11/13/2021 11:55 PM, Toerless Eckert wrote:
> >>> On Sun, Nov 07, 2021 at 04:40:13PM -0500, Joel M. Halpern wrote:
> >>>> I agree with some of your proposals, and disagree with others.
> >>>> But I do not see any of the actual proposals as substantive enough to affect
> >>>> the dispatching concern.  They all seem things we can fairly discuss once
> >>>> dispatching has taken place.
> >>> 
> >>> Does that mean the authors will drop and forget input her from the list that
> >>> is not marked as "unless this issue is resolve, i will not recommend for this
> >>> document to be dispatched" ?
> >>> 
> >>> To repeat here on the list what i said during the WG meeting:
> >>> 
> >>> I do not recommend for this document to be dispatched until it is
> >>> clearer written down agreed to, what actually the goal is. And i see two potentially
> >>>  even conflicting possible goals:
> >>> 
> >>> a) To put into writing sufficient 'Cover My Behind' statements to protect
> >>> the IETF from legal action in case participants partake in anti-trust
> >>> behavior. This is not mentioned as a goal in the draft, but i have the
> >>> strong believ that this must have played a role on writing this document.
> >>> And i do support such a document, but it should explicitly state that
> >>> purpose.
> >>> 
> >>> b) A document that is really intended to help participants to understand
> >>> how to not get into anti-trust law issues. This is what the document claims
> >>> it wants to achieve, but quite frankly i do not even understand the most
> >>> basic connection between this goal and being an "IETF participant".
> >>> 
> >>> E.g.: what legal differences does it make for my compliance (or lack thereof) with
> >>> anti-trust laws if my actions are performed at the IETF or at any other
> >>> place ? Lets say when i am getting together "privately for dinner" at an evening
> >>> of an IETF week with a bunch of folks i know who happen to also attend the
> >>> IETF, and discuss exactly the same stuff there ? Unless there are really
> >>> strange laws (which i would be curious to learn about), i'd say the only
> >>> difference is (a), aka.: possible implication of the IETF into legal
> >>> actions caused by its participants ("sponsoring anti-trust behavior").
> >>> 
> >>> I also think that for (a), we do not necessary need to add more explanatory
> >>> text (however unfortunate i would think that is), but if the goal is (b),
> >>> and someone like me is supposed to understand the guidance, then i'd certainly
> >>> be asking for more explanatory text to be put into the document.
> >>> 
> >>> So, i really can't see how we can dispatch a document without being clearer
> >>> about this goal. And if it is just me being confused here, great, please
> >>> unconfuse me.
> >>> 
> >>> Cheers
> >>>     Toerless
> >>> 
> > 
> > -- 
> > ---
> > [e-mail] <mailto:[e-mail]>
> -- 
> Jay Daley
> IETF Executive Director
> [e-mail]
> 

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