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

["Joel M. Halpern" <[e-mail]>]

Once we get a venue to discus this, clearly folks can propose dropping 
parts (or adding parts, or rewording, etc.)

I find many of the policies from other bodies to be much less than 
helpful to understand what to avoid.

Yours,
Joel

On 11/7/2021 2:13 PM, Phillip Hallam-Baker wrote:
> CABForum has an anti-trust statement that is considerably narrower than 
> the one proposed and that has been subject to a lot of lawyering.
> 
> The big concerns for anti-trust are price fixing and use (or threatening 
> use) of market power to prevent a product being offered.
> 
> CABForum has in fact negotiated mandates to cease use of crypto 
> algorithms. In fact it is the only organization that can enforce a 
> mandate to stop use of an algorithm.
> 
> Dropping SHA-1 did not pose a concern because the ultimate rights owner 
> was NIST and they were hardly likely to complain. Things might have been 
> a bit different if there were royalties involved. Which probably makes 
> it important to get the right to deprecate an algorithm agreed before 
> accepting any encumbered algorithm.
> 
> 
> 
> 
> On Sun, Nov 7, 2021 at 11:23 AM Joel M. Halpern <[e-mail] 
> <mailto:[e-mail]>> wrote:
> 
>     Folks can act both as individuals and employees at the same time.  Even
>     in the same action.
> 
>     The point of these guidelines is to provide advice to participants
>     about
>     things which, if they do them, could create risk for them, their fellow
>     participants, and the IETF as a whole.
> 
>     As far as I can tell, none of the policies you consider sufficient are
>     clear about any of these behaviors.  (That is why as part of our
>     revision we went through and made sure we were not getting into general
>     behavior, but only giving guidance on things related to antitrust.)
> 
>     I am not expecting rigid rules.  I don't think the community would want
>     that.  I doubt they would serve us well.  And legal matters are always
>     nuanced.
> 
>     Separately, I have many times watched competitors compromise.  While it
>     is always couched as :I can't live with that", it is clearly often
>     driven by product, plans, etc.  EKR even pointed to folks negotiating
>     when an interop test would make sense, and what features should be
>     tested.  This is driven by a lot more folks than the individuals in the
>     room.  The example of folks speaking in ways that are grounded in their
>     employer are myriad.  Most of them are fine, even though one could
>     argue
>     that they contravene the letter of the policy.  The guidelines are to
>     point out when it is not fine.
> 
>     It sure seems to me we need a venue to work out what we as a community
>     can live with.  I would not be surprised if we discover that there are
>     one or two things we do routinely that are actually bad ideas from an
>     antitrust perspective.  We will then have to decide what we as a
>     community want to recommend (not require) about that.
> 
>     It was suggested at one point that the Note Well advice could be just
>     "obey the law".  My problem with that is that it does not give people
>     any advice about widely agreed pitfalls that should be avoided.
> 
>     Yours,
>     Joel
> 
> 
>     On 11/6/2021 11:48 PM, Brian E Carpenter wrote:
>      > 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/
>     <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]>
>      >>>>> <mailto:[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]> <mailto:[e-mail]
>     <mailto:[e-mail]>>
>      >>>>>       Reply-To: [e-mail]
>     <mailto:[e-mail]>
>      >>>>> <mailto:[e-mail]
>     <mailto:[e-mail]>>
>      >>>>>       To: [e-mail]
>     <mailto:[e-mail]> <mailto:[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/>
>      >>>>>
>     <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>
> 
>      >>>>>
>      >>>>>
>      >>>>>
>     <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>
> 
>      >>>>>
>      >>>>>
>     <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/>
>      >>>>>       <ftp://ftp.ietf.org/internet-drafts/
>     <ftp://ftp.ietf.org/internet-drafts/>>
>      >>>>>
>      >>>>>
>      >>>>>       _______________________________________________
>      >>>>>       I-D-Announce mailing list
>      >>>>> [e-mail] <mailto:[e-mail]>
>     <mailto:[e-mail] <mailto:[e-mail]>>
>      >>>>> https://www.ietf.org/mailman/listinfo/i-d-announce
>     <https://www.ietf.org/mailman/listinfo/i-d-announce>
>      >>>>>       <https://www.ietf.org/mailman/listinfo/i-d-announce
>     <https://www.ietf.org/mailman/listinfo/i-d-announce>>
>      >>>>>       Internet-Draft directories:
>     http://www.ietf.org/shadow.html <http://www.ietf.org/shadow.html>
>      >>>>>       <http://www.ietf.org/shadow.html
>     <http://www.ietf.org/shadow.html>>
>      >>>>>       or ftp://ftp.ietf.org/ietf/1shadow-sites.txt
>     <ftp://ftp.ietf.org/ietf/1shadow-sites.txt>
>      >>>>>       <ftp://ftp.ietf.org/ietf/1shadow-sites.txt
>     <ftp://ftp.ietf.org/ietf/1shadow-sites.txt>>
>      >>>>>
>      >>>>>       --
>      >>>>>       Gendispatch mailing list
>      >>>>> [e-mail] <mailto:[e-mail]>
>     <mailto:[e-mail] <mailto:[e-mail]>>
>      >>>>> https://www.ietf.org/mailman/listinfo/gendispatch
>     <https://www.ietf.org/mailman/listinfo/gendispatch>
>      >>>>>       <https://www.ietf.org/mailman/listinfo/gendispatch
>     <https://www.ietf.org/mailman/listinfo/gendispatch>>
>      >>>>>
>      >>>>
>      >>>
>      >
> 
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