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

[Rob Sayre <[e-mail]>]

On Mon, Sep 6, 2021 at 6:57 PM Mark Nottingham <[e-mail]> wrote:

> Great. BTW for the dispatch question, I agree that AD-sponsored is the way
> to go here.
>

I think Mark's interpretation makes sense, from my perspective.

Jay, thanks for taking the time to work through these issues.

thanks,
Rob



>
>
> > On 7 Sep 2021, at 11:55 am, Jay Daley <[e-mail]> wrote:
> >
> > 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 <[e-mail]> wrote:
> >>
> >> Hi Jay,
> >>
> >>> On 7 Sep 2021, at 8:05 am, Jay Daley <[e-mail]> 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/
> >>
> >> --
> >> Gendispatch mailing list
> >> [e-mail]
> >> https://www.ietf.org/mailman/listinfo/gendispatch
> >
> > --
> > Jay Daley
> > IETF Executive Director
> > [e-mail]
> >
>
> --
> Mark Nottingham   https://www.mnot.net/
>
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