Re: [Gendispatch] I-D Action: draft-halpern-gendispatch-antitrust-03.txt

Belatedly weighing in on this thread, let me note that I’ve noted the
feedback here and have received some thoughtful inputs offline. I think we
(the authors) have some useful inputs that we can fold into a revision.

One point that may be worth making explicit: our goal with this document
was not to create a new substantive policy, but rather to explain and
provide guidance around how application of our existing policies will
mitigate antitrust risks. From my perspective, key messages we are trying
to convey include: (1) our existing policies are carefully designed to
address antitrust concerns, and thus following them is important for
antitrust risk mitigation purposes, among many other reasons, and (2)
participants should understand, as an educational matter, that there are
some topics that are potentially more fraught with antitrust risks than
others, and that caution is warranted in connection with these topics
(caution may manifest as avoiding certain topics, getting counsel from
appropriate internal experts before addressing these topics, obtaining
independent legal advice when broaching these topics, etc. — and
appropriate caution may look different for different participants).

Looking forward to any discussion that may happen in today’s gendispatch
meeting (I’ll be there FTF) and in any case you can expect an update from
us soon.

—Brad
(IETF counsel)

On Mon, Oct 24, 2022 at 3:08 AM Joel Halpern <jmh@joelhalpern.com> wrote:

> Sorry, I should have read that line about asking WG chairs for advice
> more carefully.  Asking the chair for advice about IETF process is
> reasonable.  Asking chairs for legal advice would be a bad idea on
> multiple levels.  I should have worked with my co-authors to clarify
> what we mean there.  (I will leave it to Brad to propose clarification.)
>
> Yours,
>
> Joel
>
> On 10/23/2022 9:04 PM, Mark Nottingham wrote:
> >> On 24 Oct 2022, at 11:45 am, Brian E Carpenter <
> brian.e.carpenter@gmail.com> wrote:
> >>
> >>    IETF participants should consult with IETF sources such as working
> >>    group chairs, including IETF legal counsel as needed, to ensure
> >>    that an investigation of these topics follows IETF rules and best
> >>    practices.
> > As as WG chair, I do not want that responsibility -- and I have some
> amount of relevant legal training, unlike most. Competition law is highly
> contested, variable between jurisdictions, and ultimately only determined
> by a court.
> >
> > Concrete requirements and processes like this are a mistake, because in
> the reality of what we do, requiring consultation with Counsel will only
> result in this mechanism being used as a tactic to delay or stop work. The
> point of this document is to assure that we have a documented policy and
> have taken reasonable steps to prevent anti-competitive behaviour -- in
> particular, cartel behaviour -- in this venue. Our open processes and
> accountable decision-making are our best defence against any such
> accusations, and so the policy should be high-level. Compare with the W3C's:
> >    https://www.w3.org/Consortium/Legal/2017/antitrust-guidance
> >
> > Of course we shouldn't coordinate pricing of products or carve up
> territories between businesses --  those would be very odd discussions at
> the IETF, and prohibiting them is not onerous. Saying that we should
> involve Counsel every time we talk about what might be a new "market"
> (i.e., protocol or function) on the Internet is absurd on the face of it.
> >
> > Cheers,
> >
> > --
> > Mark Nottingham   https://www.mnot.net/
> >
>
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-- 
Brad Biddle | brad@biddle.law | +1.503.502.1259 (mobile) | http://biddle.law