Re: An Antitrust Policy for the IETF
Based on the length of this thread, it is clear to me that more discussion is needed, but I do not think that the IETF mail list is the place to have it. So, the antitrust-policy mail list has been set up to continue the discussion. It is clear to me that many people are questioning what would go in such a policy. I have been working on a strawman. It is short, but it answers the question about what topics would be covered. I will post that strawman to the antitrust-policy mail list for discussion from two perspectives. First, does the IETF want to adopt an antitrust policy. Second, the strawman will provide the basis for a conversation on the content of such a policy if the consensus is that the IETF wants to adopt one. I'll wait a few days so that people have time to join the antitrust-policy mail list before the discussion begins. Russ On Jan 10, 2012, at 3:51 PM, IETF Secretariat wrote: A new IETF non-working group email list has been created. List address: antitrust-pol...@ietf.org Archive: http://www.ietf.org/mail-archive/web/antitrust-policy/ To subscribe: https://www.ietf.org/mailman/listinfo/antitrust-policy Purpose: Discuss the need for an antitrust or competition policy for the IETF. If the consensus is to create one, then the content of that policy will be discussed as well. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
--On Saturday, December 03, 2011 08:43 +1300 Brian E Carpenter brian.e.carpen...@gmail.com wrote: ... We should ask a specific concrete question to a litigator who understands antitrust law: are there any significant gaps in the IETF process rules, including the formal Note Well warning given to all participants, that expose us (the IETF officers, the IETF Trust, the ISOC) to civil or criminal action in any jurisdiction? If the answer is no we're done. If yes, we'll know what to do. We amateur lawyers should shut up until we hear back from a professional. I'd like to agree, and do agree with the amateur part, but let me repeat an observation that others have made and suggest one other question. Observation: Just as we can almost always find a piece of a protocol description that can be tightened or clarified a bit, an experienced litigator can almost always find gaps that could be filled better if it were worth the trouble and one didn't care about the costs of filling them. An old adage comes to mind that one can make a computer 100% secure by isolating it from all power sources and external connections and then encasing it in a large block of concrete, opening or removing any covers before pouring the concrete. That makes your supposedly concrete (sic) and simple question hinge on significant and, as others have pointed out, attorneys (and anyone else good at their work) who are asked and paid to find potential problems will almost always do so. That other question: To the extent to which it is possible to conduct a meaningful conversation about antitrust-specific policies in the IETF (as distinct from other politics that may have useful or detrimental antitrust effects), is it possible to have that conversation in terms of our only individuals participate model, rather than doing so in terms of companies and other organizations who are expected to compete with each other. That is a harder question to ask and answer. But it seems to me to be crucial to, in your terms, knowing what to do. My own greatest concern about trying to develop an antitrust policy, or even to discuss whether one is needed, is that either the process or the results will lead us, backwards and unintentionally, into a membership model that is bound to companies, not individuals. john ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Nov 28, 2011, at 11:03 AM, Margaret Wasserman wrote: I don't know what an antitrust policy is... Could you explain? Is this something like a conflict of interest policy? Or is it a policy to avoid situations where we might be engaging in some sort of collusion? I'm not Russ, but I'll try. http://www.thefreedictionary.com/trusts: A combination of firms or corporations for the purpose of reducing competition and controlling prices throughout a business or an industry. http://www.thefreedictionary.com/antitrust: Opposing or intended to regulate business monopolies, such as trusts or cartels, especially in the interest of promoting competition While the EU doesn't use the word antitrust or trust - that is indeed US - it promotes competition. I would understand that the US and EU intent is largely similar, although it is stated from the opposite direction. In the IETF, I would expect that an antitrust policy would prevent individual companies or blocks of companies from controlling decisions or processes that might have the effect of preventing or discriminating against competition. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 12/3/2011 9:22 AM, Fred Baker wrote: In the IETF, I would expect that an antitrust policy would prevent individual companies or blocks of companies from controlling decisions or processes that might have the effect of preventing or discriminating against competition. That language looks pretty solid to me. Seems simple, clear, on point and reasonable. (I intend that as a hint to whoever winds up formulating IETF text on the topic, should that happen...) d/ -- Dave Crocker Brandenburg InternetWorking bbiw.net ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
+1 Bob On Dec 1, 2011, at 10:44 AM, Christian Huitema wrote: Note that the suit does not complain about the 3GPP and ETSI rules. It alleges instead that the rules were not enforced, and that the leadership of these organization failed to prevent the alleged anti-competitive behavior of some companies. I believe that our current rules are fine. They were specifically designed to prevent the kind of collusion described in the complaint. Yes, these rules were defined many years ago, but the Sherman Antitrust Act is even older -- it dates from 1890. We have an open decision process, explicit rules for intellectual property, and a well-defined appeals process. If the plaintiffs in the 3GPP/IETF lawsuit had been dissatisfied with an IETF working group, they could have use the IETF appeal process to raise the issue to the IESG, and the dispute would probably have been resolved after an open discussion. Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. -- Christian Huitema -Original Message- From: ietf-boun...@ietf.org [mailto:ietf-boun...@ietf.org] On Behalf Of Joel jaeggli Sent: Thursday, December 01, 2011 8:56 AM To: Jorge Contreras Cc: Ted Hardie; IETF Chair; IETF; IESG Subject: Re: An Antitrust Policy for the IETF On 11/28/11 12:58 , Jorge Contreras wrote: On Mon, Nov 28, 2011 at 2:35 PM, GTW g...@gtwassociates.com mailto:g...@gtwassociates.com wrote: __ Ted, I like your approach of enquiring what problem we are striving to solve and I like Russ's concise answer that it is Recent suits against other SDOs that is the source of the concern Russ, what are some of the Recent suits against other SDOs It would be good to pin down the problem we are addressing There is FTC and N-data matter from 2008 http://www.gtwassociates.com/alerts/Ndata1.htm George -- one recent example is the pending antitrust suit by True Position against ETSI, 3GPP and several of their members (who also employ some IETF participants, I believe). Here is some relevant language from the Complaint: When or if that suit is concluded you may be able to divine whether the antitrust policy of either SDO was of any value. 100. By their failures to monitor and enforce the SSO Rules, and to respond to TruePosition's specific complaints concerning violations of the SSO Rules, 3GPP and ETSI have acquiesced in, are responsible for, and complicit in, the abuse of authority and anticompetitive conduct by Ericsson, Qualcomm, and Alcatel-Lucent. These failures have resulted in the issuance of a Release 9 standard tainted by these unfair processes, and for the delay until Release 11, at the earliest, of a 3GPP standard for UTDOA positioning technology. By these failures, 3GPP and ETSI have authorized and ratified the anticompetitive conduct of Ericsson, Qualcomm, and Alcatel-Lucent and have joined in and become parties to their combination and conspiracy. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 1 Dec 2011, at 17:09, Worley, Dale R (Dale) wrote: Unfortunately, lawyers on the whole tend to suggest solutions to problems that create additional legal work. … such as, an antitrust policy for the IETF... ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Thu, Dec 1, 2011 at 10:24 PM, John Levine jo...@iecc.com wrote: Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. +1 This has the admirable advantage of waiting until there is an actual problem to address, rather than trying to guess what has not happened in the past 30 years but might happen in the future. R's, John I must admit that I don't understand that reasoning at all, assuming that this discussion is still about anti-Trust policy. Once there is an actual problem to address, it will be because we are enmeshed in a lawsuit, and it will be much too late to change our policies. Now, I realize that that does not prove that we have to change our policies (I regard that as the output of this exercise), but saying you want to wait until there is a problem to consider changes is IMO akin to saying you don't want to consider putting in fire extinguishers until there is a fire. Regards Marshall ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
RE: An Antitrust Policy for the IETF
On 1 Dec 2011, at 17:09, Worley, Dale R (Dale) wrote: Unfortunately, lawyers on the whole tend to suggest solutions to problems that create additional legal work. Not that other specialists are free of this problem... Programmer's Secret Understanding 1 It's more fun to write tools than programs. 2 Tools which generate complexity beget more tools. 3 Go to 1. -- Scott Guthery Dale ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 11/29/2011 7:24 AM, Andrew Sullivan wrote: Tue, Nov 29, 2011 at 08:37:09AM -0500, Donald Eastlake wrote: (c) The IETF does not have any members The governance of the I* is complicated but I don't think any court would have any trouble finding that, for some purposes, the membership of the IETF is those qualified to serve as voting noncom members. For the purposes to which an anti-competitive practices policy would need to be put, however, this qualification would be nonsense. I think Andrew is being too mild. I'll suggest that any discussion on this list which attempts to predict how a court will interpret something goes beyond nonsense, especially if there is any view that we should base our actions on that interpretation. On Dec 1, 2011, at 1:44 PM, Christian Huitema wrote: I believe that our current rules are fine. They were specifically designed to prevent the kind of collusion described in the complaint. Yes, these rules were defined many years ago, but the Sherman Antitrust Act is even older -- it dates from 1890. We have an open decision process, explicit rules for intellectual property, and a well-defined appeals process. ... 1. We have a very different participation demographic than we had 20 years ago. Folks who participate have very different models of obligations and they often make very different decisions about how to act. 2. We now have periodic, real problems with coordinated actions by companies that are attempting to orchestrate a particular outcome in the IETF. Some of those actions may well violate some set of anti-trust laws. At the least, we should make sure the IETF charts those boundaries and establishes an explicit policy against crossing them. 3. Rather than having one or another non-attorney offering legal opinions about the sufficiency of our processes, we should get a real attorney to do a basic evaluation and make whatever recommendations they deem appropriate. The proposal, here, is not for a large, open-ended effort. It's quite constrained. Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. This appears to be based on the view that an external legal process is amenable to the IETF's internal procedures. Of course, it isn't. Once there is a lawsuit, we are locked in to the procedures and authority of the courts and to the existing facts leading up to the lawsuit. Post-hoc efforts to evaluate whether we should have done something differently will be at the court's discretion, not the discretion of an IETF appeals group like the IAB or ISOC. However, the concern for excessive policy details to cover hypotheticals, does quite reasonably argue for simple, basic rules, as indeed others have already noted. d/ -- Dave Crocker Brandenburg InternetWorking bbiw.net ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Dec 2, 2011, at 9:12 AM, Marshall Eubanks wrote: On Thu, Dec 1, 2011 at 10:24 PM, John Levine jo...@iecc.com wrote: Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. +1 This has the admirable advantage of waiting until there is an actual problem to address, rather than trying to guess what has not happened in the past 30 years but might happen in the future. R's, John I must admit that I don't understand that reasoning at all, assuming that this discussion is still about anti-Trust policy. Once there is an actual problem to address, it will be because we are enmeshed in a lawsuit, and it will be much too late to change our policies. Just because we are enmeshed in a lawsuit doesn't mean that we need to change or create a policy. The lawsuit will be based on whatever they can hook us on, whether it is they have no policy and they should have, they had a policy but it was the wrong one, or they had a reasonable policy but were not enforcing it so we were harmed (the latter being the tone of the suit discussed earlier in this thread). Having a policy, even one that is enforced, does not necessarily prevent the damage of a lawsuit. In fact, it could make things worse. We just don't know. Now, I realize that that does not prove that we have to change our policies (I regard that as the output of this exercise), but saying you want to wait until there is a problem to consider changes is IMO akin to saying you don't want to consider putting in fire extinguishers until there is a fire. The message quoted above says nothing about wait until there is a problem to consider changes. It says that we don't know how to reduce our risks so we shouldn't flail around guessing. I would add because some of our guesses can make things worse than our current state. --Paul Hoffman ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Please see Christian's relevant post I have reposted here. I side with those who focus on solving real problems not hypothetical problems, thus my original post to the list what was the source of concern; to which was responded as far as I can ascertain so far a case in current litigation see at link to press http://www.cellular-news.com/story/50118.php It would be interesting to see what exactly has been alleged to be the misbehavior by 3GPP and ETSI. Christian's post is consistent and relevant to my experience. Do we have the text of the allegations? Additionally have there been any actual experiences at IETF of litigation that might inform this discussion? Specific cases are be a better measure of behavior which could be problematic. My experience is that is more often mis behavior by not following rules by leaders or participants than it is inadequacy of the rules that leads to practical problems. Here is a GTW website to a few SDO patent policies which often include antitrust language as well http://www.gtwassociates.com/answers/IPRpolicies.html From: Christian Huitema huit...@microsoft.com To: Joel jaeggli joe...@bogus.com; Jorge Contreras cntre...@gmail.com Cc: Ted Hardie ted.i...@gmail.com; IETF Chair ch...@ietf.org; IETF ietf@ietf.org; IESG i...@ietf.org Sent: Thursday, December 01, 2011 1:44 PM Subject: RE: An Antitrust Policy for the IETF Note that the suit does not complain about the 3GPP and ETSI rules. It alleges instead that the rules were not enforced, and that the leadership of these organization failed to prevent the alleged anti-competitive behavior of some companies. I believe that our current rules are fine. They were specifically designed to prevent the kind of collusion described in the complaint. Yes, these rules were defined many years ago, but the Sherman Antitrust Act is even older -- it dates from 1890. We have an open decision process, explicit rules for intellectual property, and a well-defined appeals process. If the plaintiffs in the 3GPP/IETF lawsuit had been dissatisfied with an IETF working group, they could have use the IETF appeal process to raise the issue to the IESG, and the dispute would probably have been resolved after an open discussion. Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. -- Christian Huitema Best Regards, George T. Willingmyre, P.E. President, GTW Associates 1012 Parrs Ridge Drive Spencerville, MD 20868 USA 1.301.421.4138 - Original Message - From: Paul Hoffman paul.hoff...@vpnc.org To: Marshall Eubanks marshall.euba...@gmail.com Cc: IETF Discussion ietf@ietf.org Sent: Friday, December 02, 2011 12:50 PM Subject: Re: An Antitrust Policy for the IETF On Dec 2, 2011, at 9:12 AM, Marshall Eubanks wrote: On Thu, Dec 1, 2011 at 10:24 PM, John Levine jo...@iecc.com wrote: Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. +1 This has the admirable advantage of waiting until there is an actual problem to address, rather than trying to guess what has not happened in the past 30 years but might happen in the future. R's, John I must admit that I don't understand that reasoning at all, assuming that this discussion is still about anti-Trust policy. Once there is an actual problem to address, it will be because we are enmeshed in a lawsuit, and it will be much too late to change our policies. Just because we are enmeshed in a lawsuit doesn't mean that we need to change or create a policy. The lawsuit will be based on whatever they can hook us on, whether it is they have no policy and they should have, they had a policy but it was the wrong one, or they had a reasonable policy but were not enforcing it so we were harmed (the latter being the tone of the suit discussed earlier in this thread). Having a policy, even one that is enforced, does not necessarily prevent the damage of a lawsuit. In fact, it could make things worse. We just don't know. Now, I realize that that does not prove that we have to change our policies (I regard that as the output of this exercise), but saying you want to wait until there is a problem to consider changes is IMO akin to saying you don't want to consider putting in fire extinguishers until there is a fire. The message quoted above says nothing about wait until there is a problem to consider changes. It says that we don't know how to reduce our risks so we shouldn't flail around guessing. I would add because some of our guesses can make things worse than our current state
Re: An Antitrust Policy for the IETF
I side with those who focus on solving real problems not hypothetical problems, Does this mean that those who have not had a car accident should not carry auto insurance? Should those who have not had their house suffer damage from wind, rain, flood or fire or had someone sue them after slipping on the sidewalk should not have homeowner's insurance? I do not understand this reference to theory -- apparently with the goal of deferring any action -- about something that is already known to be a legitimate danger in the real world of standards organizations. Concern for an overly broad scope for the effort is another matter. Maintaining narrow focus is good for any effort... d/ -- Dave Crocker Brandenburg InternetWorking bbiw.net ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
RE: An Antitrust Policy for the IETF
This appears to be based on the view that an external legal process is amenable to the IETF's internal procedures. Of course, it isn't. Once there is a lawsuit, we are locked in to the procedures and authority of the courts and to the existing facts leading up to the lawsuit. Post-hoc efforts to evaluate whether we should have done something differently will be at the court's discretion, not the discretion of an IETF appeals group like the IAB or ISOC. I did not suggest that the IETF leadership only takes action once a lawsuit is filed. I observed that the particular lawsuit alleged that the SSO did not follow their own process. The IETF does have a process for resolving such issues: the internal appeal process. That process will alert the IETF leadership in time to take corrective actions if needed. Of course, plaintiffs could sue at any time, but they would have a very hard time arguing in a court of law that the IETF did not follow its process if they themselves did not use the recourse afforded by the IETF process. The lawsuit against the SSO argues a failure to act by the leadership. We don't know yet whether the lawsuit will succeed, but we can point out many avenues of actions open to the area directors or the IESG. They can of course send the offending draft standard to the WG. They can refuse publication. They can change the WG leadership. They can even dissolve the WG. This is the point where advice is useful. -- Christian Huitema ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 2011-12-03 06:12, Marshall Eubanks wrote: On Thu, Dec 1, 2011 at 10:24 PM, John Levine jo...@iecc.com wrote: Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. +1 This has the admirable advantage of waiting until there is an actual problem to address, rather than trying to guess what has not happened in the past 30 years but might happen in the future. R's, John I must admit that I don't understand that reasoning at all, assuming that this discussion is still about anti-Trust policy. Once there is an actual problem to address, it will be because we are enmeshed in a lawsuit, and it will be much too late to change our policies. Now, I realize that that does not prove that we have to change our policies (I regard that as the output of this exercise), but saying you want to wait until there is a problem to consider changes is IMO akin to saying you don't want to consider putting in fire extinguishers until there is a fire. +1. We should ask a specific concrete question to a litigator who understands antitrust law: are there any significant gaps in the IETF process rules, including the formal Note Well warning given to all participants, that expose us (the IETF officers, the IETF Trust, the ISOC) to civil or criminal action in any jurisdiction? If the answer is no we're done. If yes, we'll know what to do. We amateur lawyers should shut up until we hear back from a professional. Brian ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Dave, if the nature of current automotive practice and house construction and outside environment is such that the risks and the risk protection measures are fairly well known, the analogy I am suggesting is there is no need for new types of auto and home insurance, there is just the need for the automotive user and home dweller to purchase that insurance and the provider of that insurance to deliver when an incident occurs. This is the problem of not buying the insurance or not delivering on the insurance previously bought. It is the problem of addressing some new until now not thought of technology or risk. The former problems are different than the latter If there are already procedures generally in place to address whatever antitrust risks might arise then problems arise when the participants dont follow existing rules or the overseers of the process do not see to that the existing rules are followed. As far as I have been able to discern these are the issues that have been alleged in the case that is cited to justify why we need an antitrust policy. It seems to me that the threat of litigation that IETF has not followed its existing procedures is the proper analogy to draw if any from the litigation cited. Have there been any instances of litigation regarding IETF in this regard? Best Regards, George T. Willingmyre, P.E. President, GTW Associates 1012 Parrs Ridge Drive Spencerville, MD 20868 USA 1.301.421.4138 - Original Message - From: Dave CROCKER d...@dcrocker.net To: IETF Discussion ietf@ietf.org Sent: Friday, December 02, 2011 1:54 PM Subject: Re: An Antitrust Policy for the IETF I side with those who focus on solving real problems not hypothetical problems, Does this mean that those who have not had a car accident should not carry auto insurance? Should those who have not had their house suffer damage from wind, rain, flood or fire or had someone sue them after slipping on the sidewalk should not have homeowner's insurance? I do not understand this reference to theory -- apparently with the goal of deferring any action -- about something that is already known to be a legitimate danger in the real world of standards organizations. Concern for an overly broad scope for the effort is another matter. Maintaining narrow focus is good for any effort... d/ -- Dave Crocker Brandenburg InternetWorking bbiw.net ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Does this mean that those who have not had a car accident should not carry auto insurance? Should those who have not had their house suffer damage from wind, rain, flood or fire or had someone sue them after slipping on the sidewalk should not have homeowner's insurance? What does insurance have to do with an antitrust policy? Insurance offers specific levels of indemnification for specified and reasonably well understood risks. An antitrust policy has nothing to do with indemnification, and if anything is clear from this discussion, it's that we don't have any idea what the risks actually are. I suppose the suggestion to ask an actual anti-trust litigator if there are risk mitigation steps we could take might be reasonable, but it also strikes me as not unlike asking an herbalist if we need any herbs. R's, John ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 11/28/11 12:58 , Jorge Contreras wrote: On Mon, Nov 28, 2011 at 2:35 PM, GTW g...@gtwassociates.com mailto:g...@gtwassociates.com wrote: __ Ted, I like your approach of enquiring what problem we are striving to solve and I like Russ's concise answer that it is Recent suits against other SDOs that is the source of the concern Russ, what are some of the Recent suits against other SDOs It would be good to pin down the problem we are addressing There is FTC and N-data matter from 2008 http://www.gtwassociates.com/alerts/Ndata1.htm George -- one recent example is the pending antitrust suit by True Position against ETSI, 3GPP and several of their members (who also employ some IETF participants, I believe). Here is some relevant language from the Complaint: When or if that suit is concluded you may be able to divine whether the antitrust policy of either SDO was of any value. 100. By their failures to monitor and enforce the SSO Rules, and to respond to TruePosition's specific complaints concerning violations of the SSO Rules, 3GPP and ETSI have acquiesced in, are responsible for, and complicit in, the abuse of authority and anticompetitive conduct by Ericsson, Qualcomm, and Alcatel-Lucent. These failures have resulted in the issuance of a Release 9 standard tainted by these unfair processes, and for the delay until Release 11, at the earliest, of a 3GPP standard for UTDOA positioning technology. By these failures, 3GPP and ETSI have authorized and ratified the anticompetitive conduct of Ericsson, Qualcomm, and Alcatel-Lucent and have joined in and become parties to their combination and conspiracy. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
RE: An Antitrust Policy for the IETF
From: IETF Chair [ch...@ietf.org] The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. My first observation is that the IETF legal counsel is a lawyer, so we have that covered. Then I thought about it and realized that the IETF counsel may not be the right type of lawyer. Then I thought about it some more and realized that the choice of lawyer might be *very* important. Ideally, an antitrust policy is to prevent future legal problems, especially lawsuits. Unfortunately, lawyers on the whole tend to suggest solutions to problems that create additional legal work. And the situation of the IETF creating an optimal antitrust policy is hardly routine. So we're going to want a lawyer with very good judgment who understands the complications of antitrust law in an international context. I have no idea how to go about it, but selecting a good lawyer for this job is an important and nontrivial task. Dale ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
RE: An Antitrust Policy for the IETF
Note that the suit does not complain about the 3GPP and ETSI rules. It alleges instead that the rules were not enforced, and that the leadership of these organization failed to prevent the alleged anti-competitive behavior of some companies. I believe that our current rules are fine. They were specifically designed to prevent the kind of collusion described in the complaint. Yes, these rules were defined many years ago, but the Sherman Antitrust Act is even older -- it dates from 1890. We have an open decision process, explicit rules for intellectual property, and a well-defined appeals process. If the plaintiffs in the 3GPP/IETF lawsuit had been dissatisfied with an IETF working group, they could have use the IETF appeal process to raise the issue to the IESG, and the dispute would probably have been resolved after an open discussion. Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. -- Christian Huitema -Original Message- From: ietf-boun...@ietf.org [mailto:ietf-boun...@ietf.org] On Behalf Of Joel jaeggli Sent: Thursday, December 01, 2011 8:56 AM To: Jorge Contreras Cc: Ted Hardie; IETF Chair; IETF; IESG Subject: Re: An Antitrust Policy for the IETF On 11/28/11 12:58 , Jorge Contreras wrote: On Mon, Nov 28, 2011 at 2:35 PM, GTW g...@gtwassociates.com mailto:g...@gtwassociates.com wrote: __ Ted, I like your approach of enquiring what problem we are striving to solve and I like Russ's concise answer that it is Recent suits against other SDOs that is the source of the concern Russ, what are some of the Recent suits against other SDOs It would be good to pin down the problem we are addressing There is FTC and N-data matter from 2008 http://www.gtwassociates.com/alerts/Ndata1.htm George -- one recent example is the pending antitrust suit by True Position against ETSI, 3GPP and several of their members (who also employ some IETF participants, I believe). Here is some relevant language from the Complaint: When or if that suit is concluded you may be able to divine whether the antitrust policy of either SDO was of any value. 100. By their failures to monitor and enforce the SSO Rules, and to respond to TruePosition's specific complaints concerning violations of the SSO Rules, 3GPP and ETSI have acquiesced in, are responsible for, and complicit in, the abuse of authority and anticompetitive conduct by Ericsson, Qualcomm, and Alcatel-Lucent. These failures have resulted in the issuance of a Release 9 standard tainted by these unfair processes, and for the delay until Release 11, at the earliest, of a 3GPP standard for UTDOA positioning technology. By these failures, 3GPP and ETSI have authorized and ratified the anticompetitive conduct of Ericsson, Qualcomm, and Alcatel-Lucent and have joined in and become parties to their combination and conspiracy. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
+1 On Dec 1, 2011, at 1:44 PM, Christian Huitema wrote: Note that the suit does not complain about the 3GPP and ETSI rules. It alleges instead that the rules were not enforced, and that the leadership of these organization failed to prevent the alleged anti-competitive behavior of some companies. I believe that our current rules are fine. They were specifically designed to prevent the kind of collusion described in the complaint. Yes, these rules were defined many years ago, but the Sherman Antitrust Act is even older -- it dates from 1890. We have an open decision process, explicit rules for intellectual property, and a well-defined appeals process. If the plaintiffs in the 3GPP/IETF lawsuit had been dissatisfied with an IETF working group, they could have use the IETF appeal process to raise the issue to the IESG, and the dispute would probably have been resolved after an open discussion. Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. -- Christian Huitema -Original Message- From: ietf-boun...@ietf.org [mailto:ietf-boun...@ietf.org] On Behalf Of Joel jaeggli Sent: Thursday, December 01, 2011 8:56 AM To: Jorge Contreras Cc: Ted Hardie; IETF Chair; IETF; IESG Subject: Re: An Antitrust Policy for the IETF On 11/28/11 12:58 , Jorge Contreras wrote: On Mon, Nov 28, 2011 at 2:35 PM, GTW g...@gtwassociates.com mailto:g...@gtwassociates.com wrote: __ Ted, I like your approach of enquiring what problem we are striving to solve and I like Russ's concise answer that it is Recent suits against other SDOs that is the source of the concern Russ, what are some of the Recent suits against other SDOs It would be good to pin down the problem we are addressing There is FTC and N-data matter from 2008 http://www.gtwassociates.com/alerts/Ndata1.htm George -- one recent example is the pending antitrust suit by True Position against ETSI, 3GPP and several of their members (who also employ some IETF participants, I believe). Here is some relevant language from the Complaint: When or if that suit is concluded you may be able to divine whether the antitrust policy of either SDO was of any value. 100. By their failures to monitor and enforce the SSO Rules, and to respond to TruePosition's specific complaints concerning violations of the SSO Rules, 3GPP and ETSI have acquiesced in, are responsible for, and complicit in, the abuse of authority and anticompetitive conduct by Ericsson, Qualcomm, and Alcatel-Lucent. These failures have resulted in the issuance of a Release 9 standard tainted by these unfair processes, and for the delay until Release 11, at the earliest, of a 3GPP standard for UTDOA positioning technology. By these failures, 3GPP and ETSI have authorized and ratified the anticompetitive conduct of Ericsson, Qualcomm, and Alcatel-Lucent and have joined in and become parties to their combination and conspiracy. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Rather than trying to set up rules that cover all hypothetical developments, I would suggest a practical approach. In our process, disputes are materialized by an appeal. Specific legal advice on the handling of a specific appeal is much more practical than abstract rulemaking. +1 This has the admirable advantage of waiting until there is an actual problem to address, rather than trying to guess what has not happened in the past 30 years but might happen in the future. R's, John ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
- Original Message - From: Brian E Carpenter brian.e.carpen...@gmail.com To: IETF Chair ch...@ietf.org Cc: Ted Hardie ted.i...@gmail.com; IETF ietf@ietf.org; IESG i...@ietf.org Sent: Monday, November 28, 2011 10:00 PM On 2011-11-29 08:10, IETF Chair wrote: Ted: I think we should be very careful before creating makework for a lawyer. In other words there are two initial questions that need to be answered: 1. What is the threat model? What type of exposure *of the IETF itself* (including its volunteer officers) exists? Of course, this is not just about US law. The EU has strong antitrust law, for example. I was about to say that this sounds like a USA issue, not knowing of antitrust anywhere else in the world. The EU has regulations to promote competition - it invoked them against Microsoft with the bundling of browser and operating system - but I think that the term 'antitrust' would not be recognised, would be seen as something purely American in its terminology and in its focus. Which raises the issue, is there any lawyer in the world competent in US antitrust, EU 'pro-competition' and their equivalents in, say, India? um. (When I saw this thread, I immediately connected it to a post on the MPLS list suggesting that a suit is being prepared over the MPLS-TP choice of technology, but that might be just FUD). Tom Petch 2. Are there any aspects of that threat model that are not already covered by the Note Well, the documents it refers to, and their chain of references? These two questions do need legal expertise. But if the answer to Q2 is no we can stop there. I think a separate list for this is appropriate. Brian Carpenter ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 28/11/2011 19:38, Marshall Eubanks wrote: Dear Sam; Wearing no hats. This is my own personal take on matters. Also, I am not a lawyer, and this is not legal advice. Please note that I, personally, do not think that this will be trivial or easy to come up with. On Mon, Nov 28, 2011 at 1:59 PM, Sam Hartmanhartmans-i...@mit.edu wrote: I support the general approach you outline in terms of process. However it would really help me if you could write a non-normative paragraph describing what you think is involved in an anti-trust policy? I think that this should be a work product here. However, here are some considerations. First, I should note that our counsel has advised us to do this. As you may know, SDO's have a certain protection against antitrust actions, but that is not absolute, and can be lost if the SDO behaves inappropriately. I think that at least a review of our policies and procedures with this in mind is called for. Note that the IEEE has an anti-Trust policy : http://standards.ieee.org/develop/policies/antitrust.pdf This paper provides some of their reasoning : http://ieeexplore.ieee.org/xpl/freeabs_all.jsp?arnumber=4292061 Note the following : the IEEE and other standard-setting organizations were afraid to demand advance notice from patentees of what the allegedly RAND terms would really be, lest the courts hold the organizations liable for engaging in a price-fixing cartel. We have a procedure in place to deal with this, but it would be IMO a good idea to consider whether it is adequate. Also, SDO protection against antitrust actions were extended in the Standards Development Organization Advancement Act of 2004 https://standards.nasa.gov/documents/AntitrustProtectionForStandardsDevelopers.pdf (which talks about pattern lawsuits including SDOs), see also http://www.venable.com/new-antitrust-protection-for-standards-development-organizations-09-01-2004/ The Act provides protection of SDOs against treble damages, if the SDO has filed notice with the US government : The notification provisions of the SDOAA are set out in Section 4305 of the Act, which provides that an SDO that wishes to claim the benefits of the de-trebling provision must submit notice of its planned activity to the FTC and DOJ The IETF has never done this. Whether or not it should do it, I think that that decision should go through legal and community review, and that in general we should review what we are doing against the 2004 Act. Finally, just for clarification please note that the IETF Trust is not really involved at all with this type of Antitrust, as the policy would not be concerned with protecting the IETF's Intellectual Property. Regards Marshall Marshall We presumably need to take a global perspective on this. There are 192 UN recognized countries, and I would assume that we need to consider the worst case across some large number of them. Stewart ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Hi, On Tue, Nov 29, 2011 at 1:38 AM, SM s...@resistor.net wrote: At 10:50 28-11-2011, IETF Chair wrote: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. There isn't any information about why an antitrust policy is needed except for a suggestion from an insurance agent. As far as I know: (a) The IETF is not a legal entity No matter now many times people repeat it, the above is just nonsense. At least in common law countries, unincorporated associations are legal entities. Furthermore, the IETF is enough of a separate entity to have legal interests defended by separate legal counsel. (b) The IETF Trust holds and manages rights on behalf of the IETF (c) The IETF does not have any members The governance of the I* is complicated but I don't think any court would have any trouble finding that, for some purposes, the membership of the IETF is those qualified to serve as voting noncom members. (d) People participate in the IETF as individuals (e) This Standard-Setting Organization (SSO) is open (f) The IETF does not vote Legally, I don't think there is much difference between many IETF decision procedures and the voice voting commonly used in various assemblies. Thanks, Donald = Donald E. Eastlake 3rd +1-508-333-2270 (cell) 155 Beaver Street, Milford, MA 01757 USA d3e...@gmail.com If decisions are taken by consensus and the decision-making is fair, there isn't a capturing party. Could more information be provided about: (i) Whether the antitrust policy should be applicable for the U.S. and the E.U. (ii) Which insurance triggered the discussion about having an antitrust policy (iii) Which body faces the risk of anti-competitive litigation Regards, -sm ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 11/28/2011 1:00 PM, Brian E Carpenter wrote: I think we should be very careful before creating makework for a lawyer. In other words there are two initial questions that need to be answered: 1. What is the threat model? What type of exposure*of the IETF itself* (including its volunteer officers) exists? Of course, this is not just about US law. The EU has strong antitrust law, for example. 2. Are there any aspects of that threat model that are not already covered by the Note Well, the documents it refers to, and their chain of references? These two questions do need legal expertise. But if the answer to Q2 is no we can stop there. +1, though I'm less worried about makework than I am of having clear statements of what needs to be done and why. This would be in line with some of what we typically require in a charter, to explain the precise problem space an effort is working within. d/ -- Dave Crocker Brandenburg InternetWorking bbiw.net ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
RE: An Antitrust Policy for the IETF
Tl;dr version: I think that there is value in having IETF legal counsel evaluate us against other SDOs specifically regarding considerations around membership (or lack thereof), voting (or lack thereof), and openness (or lack thereof). That would help us to determine if this is really something we need to pursue/be concerned about, because it would help to determine if IETF is just like the other SDOs who have an antitrust policy, or if they are materially different enough that it's probably not necessary. Responding to a couple of specific points inline below... Wes George -Original Message- From: ietf-boun...@ietf.org [mailto:ietf-boun...@ietf.org] On Behalf Of Donald Eastlake (c) The IETF does not have any members The governance of the I* is complicated but I don't think any court would have any trouble finding that, for some purposes, the membership of the IETF is those qualified to serve as voting noncom members. [WEG] Yes, but that is by definition not restricted other than to ensure that those involved have some familiarity with IETF by virtue of having paid registration for multiple meetings. Note the distinction here - while 3777 says attended it is not more specific on what can be considered attendance. One could easily register and skip every single meeting if it suited their purposes - we're not checking blue sheets here... Further, eligibility as a voting nomcom member affords no additional influence in the process of defining standards. It only provides influence if one is randomly selected (via a publicly published algorithm) to participate on nomcom, and even then, that is only to install leadership, not to dictate technical policy. Yes, there is a relationship between nominated leaders and technical standards, but that's a stretch IMO. (d) People participate in the IETF as individuals [WEG] this would be tough to defend. We say that, but we still allow people to place a company affiliation on their badge and on any drafts that they write, use company email addresses (including those who forcibly append stupid legal disclaimers at the end of every message :-/ ), and run afoul of company IPR, not to mention the fact that the vast majority of people attending meetings are funded by their company, both in time, travel costs, and registration fees. (f) The IETF does not vote Legally, I don't think there is much difference between many IETF decision procedures and the voice voting commonly used in various assemblies. [WEG] I disagree. Anyone can participate in the unofficial votes that the IETF holds in WG meetings and on mailing lists. The vote can be skewed by tourists in the WG meetings, people who hum particularly loudly, the acoustics of the room, people who join the WG mailing list simply to voice an opinion on a certain draft or issue, etc, etc. And the votes are untallied, non-binding, primarily serving as guidance to WG and IESG leadership. Many other SDOs have very defined requirements around what is considered a member and when you can vote (such as IEEE, which requires a certain amount of documented attendance before one can vote on technical proposals: http://ieee802.org/3/rules/member.html). Votes are also tallied and used as official decisions. This E-mail and any of its attachments may contain Time Warner Cable proprietary information, which is privileged, confidential, or subject to copyright belonging to Time Warner Cable. This E-mail is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this E-mail, you are hereby notified that any dissemination, distribution, copying, or action taken in relation to the contents of and attachments to this E-mail is strictly prohibited and may be unlawful. If you have received this E-mail in error, please notify the sender immediately and permanently delete the original and any copy of this E-mail and any printout. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Tue, Nov 29, 2011 at 08:37:09AM -0500, Donald Eastlake wrote: (c) The IETF does not have any members The governance of the I* is complicated but I don't think any court would have any trouble finding that, for some purposes, the membership of the IETF is those qualified to serve as voting noncom members. For the purposes to which an anti-competitive practices policy would need to be put, however, this qualification would be nonsense. Whether one qualifies as a nomcom member is irrelevant to whether one's arguments count during WG and IETF last calls. Such qualification is also not required to be a WG chair, and while it would be unusual that a WG chair not qualify for nomcom membership, if a WG were not regularly holding meetings co-incident with the general IETF meeting it is certainly possible. Since rough consensus as determined by WG chairs and then the IESG is the mechanism by which we decide to publish a standard, those are the key areas where membership would have to matter in any anti-competitive practices policy. To my everlasting regret, I am not a lawyer, but I don't think a court ruling the way you expect it to would be applying the right test. If we think that courts would in fact use that test (I'm not as confident as you, but I'll happily grant it's at least possible), then we have a pretty serious problem. It is one, however, that calls not for a policy on anti-competitive practices, but instead a general reconsideration of how we count people as participants (members, if you like) in the IETF and what the consequences of that are. That is not so much a rat-hole as a giant pit filled with every possible rodent of every size and description. -- Andrew Sullivan a...@anvilwalrusden.com ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
imiho, the issue is a balance between participants who are educated on dangerous behavior and a bunch of rules with which the well-known and new amateur nit pickers drive us crazy. randy ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Hi Russ, I don't know what an antitrust policy is... Could you explain? Is this something like a conflict of interest policy? Or is it a policy to avoid situations where we might be engaging in some sort of collusion? Your plan sounds fine to me, on general principles, but I'd like to know what we're asking a lawyer to write. Thanks, Margaret On Nov 28, 2011, at 1:50 PM, IETF Chair wrote: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. What do others think? I am open to suggestions for an alternative approach. Russ ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Nov 28, 2011, at 2:06 PM, Russ Housley wrote: I looked at the antitrust policies of other SDOs. They state the things that are prohibited from discussion at their meetings and on their mail lists. Oh, I've been involved in some industry SDOs that had something like this... Rules against discussing particular customers/deals, pricing, etc. Right? I agree that we shouldn't discuss those things at the IETF. I don't think I've ever heard anyone discuss anything like that during an IETF meeting, but I wouldn't object to having a formal policy that made everyone aware of what we should continue not discussing. :-) Margaret ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
--On Monday, November 28, 2011 14:10 -0500 IETF Chair ch...@ietf.org wrote: Ted: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then ... Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? ... Recent suits against other SDOs is the source of the concern. The idea is t make it clear which topics are off limits at IETF meetings and on IETF mail lists. In this way, if such discussions take place, the good name of the IETF can be kept clean. Russ, I haven't tracked the question of who is suing which SDOs and over what in recent years but my recollection from longer ago is that the antitrust (anticompetitiveness in other vocabularies) issues fell into three categories, all having to do with issues of conspiracies to do bad things: (i) what can be discussed under the umbrella of the SDO (ii) who can have a conversation with whom except under controlled circumstances (iii) who can do what to whom YOur note seems to address the first. Unless things have changed, it is almost pointless to do so without also addressing the other two. The document Sam and Dave suggested would help a lot here. But, before starting down this path, we should also be aware that the second and third issues tend to be expressed in terms of companies and industrial sectors. As an example of one such policy, participants from two companies in the same industrial sector cannot meet and have a discussionunless neutral third parties (also defined in industry sector terms) are present has been used, as have ones that divide participants up into industry, user/consumer, and government sectors and establish rules on that basis. Similarly, decision-making bodies in which participants from two or three companies in a particular industry are present but others are not are often considered suspect if not outright prohibited. So establishing an antitrust policy could easily take us away from the participation as individuals path and toward a participation as representatives of companies one, with all that implies. I'd encourage you, and the IAOC/Trust, to get legal advice as to whether initiating a public process to define such rules and then possibly deciding that they are inappropriate could not, itself, increase our vunerability. Modulo the above, I think your suggested procedure is reasonable. john ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Hi SM, On Nov 29, 2011, at 1:38 AM, SM wrote: There isn't any information about why an antitrust policy is needed except for a suggestion from an insurance agent. It was mentioned that the IETF counsel indicated that such a policy is needed. Addressing some of your point: As far as I know: (a) The IETF is not a legal entity Although the IETF is not, in itself, a legal entity, the IETF is an organized activity of the Internet Society (ISOC), which is a corporation. ISOC holds the insurance for the IETF, and can be sued. ISOC is also the major funding source for the IETF. While it might be possible for the IETF to reorganize under another parent organization if ISOC were sued out of existence, that would probably result in significant disruption to our work. (b) The IETF Trust holds and manages rights on behalf of the IETF This is true, but the IETF Trust isn't the most likely to be involved in an anti-competitive lawsuit. The IETF Trust would get involved if we were accused of violating someone else's copyright, but if we were accused of having policies (or a lack of policies, or a lack of following our own policies) that results in anti-competitive practices, then I believe that ISOC would be more likely to be named in a suit than the IETF Trust. Individuals can also be sued based on their roles in the IETF process -- the IETF chair, ADs, WG Chairs, etc. ISOC holds insurance to protect us if we are sued for something we do in one of our IETF roles. (c) The IETF does not have any members I am not sure why this matters... There are people (working for companies) that participate in meetings and standards-setting activities at the IETF. I suspect that most anti-competitive activities happen between two or three parties in a boardroom, or in a coffee shop -- you don't have to be official members of an organization to commit this sort of crime. (d) People participate in the IETF as individuals This is likely not true, from a legal perspective. Most people are sent by their companies to participate in the IETF, they are paid by their companies to do IETF work, and they put their company names on their IETF documents. There is some sense in which this is true -- we appoint individuals to positions, not companies, etc. But, I don't think it is true in a way that protects us from anti-competitive activity. (e) This Standard-Setting Organization (SSO) is open I've been told, when working in industry standards bodies, that there are a number of properties that you need to have in order to be the type of standards body that is protected, legally, from being considered an anti-competitive activity. If I understand correctly (and I am not a lawyer), being open to any company that wants to join is one of those properties, but it isn't the only one. Personally, I think we're probably already doing most of the things we ought to be doing to avoid anti-competitive practices. In cases where people have tried to talk about pricing, or business models (in the financial, not technical sense), I've seen WG chairs and other people shut down those conversations as not appropriate for the IETF. I've also seen us push back against situations where it appears that a small number of participants have reached a decision amongst themselves that they are trying to push through a WG. If we can get a policy that raises awareness of these things, by telling us what constitutes anti-competitive activity in a standards body, so we can be better informed in our attempts to avoid doing those things, that is fine. I would hate to see us have a policy that requires a lot more administrative overhead (such as a staff person in every WG meeting to ensure no anti-competitive activities happen), or significant changes to the way we do our work ( such as recorded votes), though. (f) The IETF does not vote If decisions are taken by consensus and the decision-making is fair, there isn't a capturing party. I don't think this is completely true, either in theory or practice... In many cases, there is one company that is driving a particular IETF work product. We've had cases where the preponderance of authors, WG chairs and the responsible ADs for a given work item are from a single company, and all consensus is matter of judgement by those people. Hopefully we have enough checks in the process that those situations can't be (and aren't) abused. I haven't, personally, seen a case in the IETF where I was concerned about anti-competitive practices, but I am not sure that our process _couldn't_ be used for anti-competitive purposes if someone was intent on doing so. I don't really think it is possible to write a policy that will close all opportunities for intentional abuse, though, and I don't think we should try. In other standards bodies I've been involved in, there have been more formal policies regarding anti-competive practices, as well as
Re: An Antitrust Policy for the IETF
fwiw - the last time I looked at this law 1/ the IETF did not qualify as a SDO under the law 2/ the law only protected employees of the SDO, not participants Scott On Nov 28, 2011, at 4:13 PM, Richard Shockey wrote: +1 It would be helpful in the non normative statement to the community to cite what suits were are involved, what was the cause of action and what if any decisions were rendered in these cases. US antitrust law, for instance has specific exemptions for SDO’s. http://en.wikisource.org/wiki/Public_Law_108-237/Title_I There are some requirements under this act that SDO’s need to file a statement of purpose. I don’t know if we ever did that. In general, however this sounds like a sound and valuable move. From: ietf-boun...@ietf.org [mailto:ietf-boun...@ietf.org] On Behalf Of Ted Hardie Sent: Monday, November 28, 2011 2:27 PM To: IETF Chair Cc: IETF; IESG Subject: Re: An Antitrust Policy for the IETF On Mon, Nov 28, 2011 at 11:10 AM, IETF Chair ch...@ietf.org wrote: Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? I hesitate to develop something that we have not needed in the past unless it is clear what benefit it gives us. In particular, if we develop one without some particular characteristic, do we lose the benefits of being where we are now? Recent suits against other SDOs is the source of the concern. The idea is t make it clear which topics are off limits at IETF meetings and on IETF mail lists. In this way, if such discussions take place, the good name of the IETF can be kept clean. Russ Hmm, I would characterize our previous policy as a quite public statement that no one is excluded from IETF discussion and decision making, along with with reminders that what we are deciding is the technical standard, not the resulting marketplace. What we can say beyond that without diving into national specifics is obscure to me. I agree with Dave that the first work product of an attorney should be a non-normative explanation to the community of how having such a policy helps and what it must say in order to get that benefit. (I have to say that my personal experience is that prophylactic measures against law suits tend to change the terms of the suits but not their existence. In this case, suing someone because they did not enforce the policy or the policy did not cover some specific jurisdiction's requirements perfectly, seems like the next step. Your mileage may vary.) regards, Ted ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
An Antitrust Policy for the IETF
The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. What do others think? I am open to suggestions for an alternative approach. Russ ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
I think that this is a very reasonable way to proceed. On Mon, Nov 28, 2011 at 1:50 PM, IETF Chair ch...@ietf.org wrote: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. While _a_ lawyer is certainly needed, I see no reason why thus shouldn't be the IETF counsel, assuming he is available for the extra work, of course. Regards Marshall As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. What do others think? I am open to suggestions for an alternative approach. Russ ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
I support the general approach you outline in terms of process. However it would really help me if you could write a non-normative paragraph describing what you think is involved in an anti-trust policy? ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
a) It would seem sensible to leave the selection of the specific lawyer to the IASA / IAOC. b) I would hope that they will select a lawyer with specific exposure to anti-trust issues. That may well turn out to be the existing IETF counsel. Yours, Joel On 11/28/2011 1:57 PM, Marshall Eubanks wrote: I think that this is a very reasonable way to proceed. On Mon, Nov 28, 2011 at 1:50 PM, IETF Chairch...@ietf.org wrote: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. While _a_ lawyer is certainly needed, I see no reason why thus shouldn't be the IETF counsel, assuming he is available for the extra work, of course. Regards Marshall As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. What do others think? I am open to suggestions for an alternative approach. Russ ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Mon, Nov 28, 2011 at 01:50:51PM -0500, IETF Chair wrote: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. Did they say what problem it is they're worried about? I can't respond to the merits without knowing why we might want to do this. A -- Andrew Sullivan a...@anvilwalrusden.com ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Mon, Nov 28, 2011 at 10:50 AM, IETF Chair ch...@ietf.org wrote: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. What do others think? I am open to suggestions for an alternative approach. Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? I hesitate to develop something that we have not needed in the past unless it is clear what benefit it gives us. In particular, if we develop one without some particular characteristic, do we lose the benefits of being where we are now? regards, Ted Russ ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Sam: I looked at the antitrust policies of other SDOs. They state the things that are prohibited from discussion at their meetings and on their mail lists. Russ On Nov 28, 2011, at 1:59 PM, Sam Hartman wrote: I support the general approach you outline in terms of process. However it would really help me if you could write a non-normative paragraph describing what you think is involved in an anti-trust policy? ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Ted: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. What do others think? I am open to suggestions for an alternative approach. Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? I hesitate to develop something that we have not needed in the past unless it is clear what benefit it gives us. In particular, if we develop one without some particular characteristic, do we lose the benefits of being where we are now? Recent suits against other SDOs is the source of the concern. The idea is t make it clear which topics are off limits at IETF meetings and on IETF mail lists. In this way, if such discussions take place, the good name of the IETF can be kept clean. Russ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 11/28/2011 10:59 AM, Sam Hartman wrote:. However it would really help me if you could write a non-normative paragraph describing what you think is involved in an anti-trust policy? I'll suggest that that be the first work product of the attorney. At the least, that will make sure that it is well aligned with the detailed document. d/ -- Dave Crocker Brandenburg InternetWorking bbiw.net ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Russ == Russ Housley hous...@vigilsec.com writes: Russ Sam: I looked at the antitrust policies of other SDOs. They Russ state the things that are prohibited from discussion at their Russ meetings and on their mail lists. OK, that sounds good. I definitely think we could use such a thing. And again, your process sounds like a reasonable way to go. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Mon, Nov 28, 2011 at 11:10 AM, IETF Chair ch...@ietf.org wrote: Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? I hesitate to develop something that we have not needed in the past unless it is clear what benefit it gives us. In particular, if we develop one without some particular characteristic, do we lose the benefits of being where we are now? Recent suits against other SDOs is the source of the concern. The idea is t make it clear which topics are off limits at IETF meetings and on IETF mail lists. In this way, if such discussions take place, the good name of the IETF can be kept clean. Russ Hmm, I would characterize our previous policy as a quite public statement that no one is excluded from IETF discussion and decision making, along with with reminders that what we are deciding is the technical standard, not the resulting marketplace. What we can say beyond that without diving into national specifics is obscure to me. I agree with Dave that the first work product of an attorney should be a non-normative explanation to the community of how having such a policy helps and what it must say in order to get that benefit. (I have to say that my personal experience is that prophylactic measures against law suits tend to change the terms of the suits but not their existence. In this case, suing someone because they did not enforce the policy or the policy did not cover some specific jurisdiction's requirements perfectly, seems like the next step. Your mileage may vary.) regards, Ted ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
In a different venue it was suggested to me that the group (a university-based research consortium) NOT have a detailed anti-trust policy. The university's law firm felt that we would be covered so long as we up front reminded the participants that they were adults and needed to follow the appropriate anti-trust laws appropriate to their circumstance and jurisdiction. Saying so once when they joined was thought to be more than sufficient. The IETF does not have members, so we do not have the luxury of distinguishing between members and the unwashed masses. So, if the anti-trust policy is a one sentence line in the NOTE WELL telling folks to remember to be law abiding, then I am all for it. If the anti-trust policy is a statement that must be read before every meeting, call, and email exchange, and that the IETF is responsible for monitoring mail lists to ensure that no anti-competitive behavior is occurring, and that the IETF is taking active measures to halt anti-competitive behavior, like removing emails from archives, monitoring Jabber sessions and terminating participants in real time, etc., then I am against it. On Nov 28, 2011, at 2:27 PM, Ted Hardie wrote: On Mon, Nov 28, 2011 at 11:10 AM, IETF Chair ch...@ietf.org wrote: Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? I hesitate to develop something that we have not needed in the past unless it is clear what benefit it gives us. In particular, if we develop one without some particular characteristic, do we lose the benefits of being where we are now? Recent suits against other SDOs is the source of the concern. The idea is t make it clear which topics are off limits at IETF meetings and on IETF mail lists. In this way, if such discussions take place, the good name of the IETF can be kept clean. Russ Hmm, I would characterize our previous policy as a quite public statement that no one is excluded from IETF discussion and decision making, along with with reminders that what we are deciding is the technical standard, not the resulting marketplace. What we can say beyond that without diving into national specifics is obscure to me. I agree with Dave that the first work product of an attorney should be a non-normative explanation to the community of how having such a policy helps and what it must say in order to get that benefit. (I have to say that my personal experience is that prophylactic measures against law suits tend to change the terms of the suits but not their existence. In this case, suing someone because they did not enforce the policy or the policy did not cover some specific jurisdiction's requirements perfectly, seems like the next step. Your mileage may vary.) regards, Ted ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf smime.p7s Description: S/MIME cryptographic signature ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Dear Sam; Wearing no hats. This is my own personal take on matters. Also, I am not a lawyer, and this is not legal advice. Please note that I, personally, do not think that this will be trivial or easy to come up with. On Mon, Nov 28, 2011 at 1:59 PM, Sam Hartman hartmans-i...@mit.edu wrote: I support the general approach you outline in terms of process. However it would really help me if you could write a non-normative paragraph describing what you think is involved in an anti-trust policy? I think that this should be a work product here. However, here are some considerations. First, I should note that our counsel has advised us to do this. As you may know, SDO's have a certain protection against antitrust actions, but that is not absolute, and can be lost if the SDO behaves inappropriately. I think that at least a review of our policies and procedures with this in mind is called for. Note that the IEEE has an anti-Trust policy : http://standards.ieee.org/develop/policies/antitrust.pdf This paper provides some of their reasoning : http://ieeexplore.ieee.org/xpl/freeabs_all.jsp?arnumber=4292061 Note the following : the IEEE and other standard-setting organizations were afraid to demand advance notice from patentees of what the allegedly RAND terms would really be, lest the courts hold the organizations liable for engaging in a price-fixing cartel. We have a procedure in place to deal with this, but it would be IMO a good idea to consider whether it is adequate. Also, SDO protection against antitrust actions were extended in the Standards Development Organization Advancement Act of 2004 https://standards.nasa.gov/documents/AntitrustProtectionForStandardsDevelopers.pdf (which talks about pattern lawsuits including SDOs), see also http://www.venable.com/new-antitrust-protection-for-standards-development-organizations-09-01-2004/ The Act provides protection of SDOs against treble damages, if the SDO has filed notice with the US government : The notification provisions of the SDOAA are set out in Section 4305 of the Act, which provides that an SDO that wishes to claim the benefits of the de-trebling provision must submit notice of its planned activity to the FTC and DOJ The IETF has never done this. Whether or not it should do it, I think that that decision should go through legal and community review, and that in general we should review what we are doing against the 2004 Act. Finally, just for clarification please note that the IETF Trust is not really involved at all with this type of Antitrust, as the policy would not be concerned with protecting the IETF's Intellectual Property. Regards Marshall ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Mon, 28 Nov 2011, Sam Hartman wrote: I support the general approach you outline in terms of process. However it would really help me if you could write a non-normative paragraph describing what you think is involved in an anti-trust policy? Yes, please! Also, why it would be a different lawyer. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF - why?
The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. I would be interested in a brief explanation of why we need one now, since we have gotten along without one for multiple decades. Having worked with a lot of lawyers, my experience is that few lawyers understand cost-benefit tradeoffs, and often recommend spending unreasonably large amounts of money to defend against very remote risks. Similarly, insurance agents will usually tell you to insure against anything. (This is why NDAs are 12 pages long, and the standard deductible on policies is usually an order of magnitude too small.) I don't know the particular lawyer and agent involved, and it's possible they're exceptions to the rule, but before spending much money, I would want to understand better what problem we are trying to solve and what the realistic risk is. Also keep in mind that the main effect of such a policy would be to shift whatever the risk is from the IETF onto participants. It might also be educational, here's things that might lead to personal legal risk if you talk about them, but we don't need a formal policy for that. I understand that some other SDOs have antitrust policies, but they generally have organizational members, and other differences from the IETF that make them only weakly analogous. R's, John ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Ted, I like your approach of enquiring what problem we are striving to solve and I like Russ's concise answer that it is Recent suits against other SDOs that is the source of the concern Russ, what are some of the Recent suits against other SDOs It would be good to pin down the problem we are addressing There is FTC and N-data matter from 2008 http://www.gtwassociates.com/alerts/Ndata1.htm But the solutions in discussion in various SDOs to the issues raised in that matter have to do with revisions to IP policies more than with antitrust policy. Best Regards, George T. Willingmyre, P.E. President, GTW Associates 1012 Parrs Ridge Drive Spencerville, MD 20868 USA 1.301.421.4138 - Original Message - From: IETF Chair To: Ted Hardie Cc: IETF ; IESG Sent: Monday, November 28, 2011 2:10 PM Subject: Re: An Antitrust Policy for the IETF Ted: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. What do others think? I am open to suggestions for an alternative approach. Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? I hesitate to develop something that we have not needed in the past unless it is clear what benefit it gives us. In particular, if we develop one without some particular characteristic, do we lose the benefits of being where we are now? Recent suits against other SDOs is the source of the concern. The idea is t make it clear which topics are off limits at IETF meetings and on IETF mail lists. In this way, if such discussions take place, the good name of the IETF can be kept clean. Russ -- ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On Mon, Nov 28, 2011 at 2:35 PM, GTW g...@gtwassociates.com wrote: ** Ted, I like your approach of enquiring what problem we are striving to solve and I like Russ's concise answer that it is Recent suits against other SDOs that is the source of the concern Russ, what are some of the Recent suits against other SDOs It would be good to pin down the problem we are addressing There is FTC and N-data matter from 2008 http://www.gtwassociates.com/alerts/Ndata1.htm George -- one recent example is the pending antitrust suit by True Position against ETSI, 3GPP and several of their members (who also employ some IETF participants, I believe). Here is some relevant language from the Complaint: 100. By their failures to monitor and enforce the SSO Rules, and to respond to TruePosition's specific complaints concerning violations of the SSO Rules, 3GPP and ETSI have acquiesced in, are responsible for, and complicit in, the abuse of authority and anticompetitive conduct by Ericsson, Qualcomm, and Alcatel-Lucent. These failures have resulted in the issuance of a Release 9 standard tainted by these unfair processes, and for the delay until Release 11, at the earliest, of a 3GPP standard for UTDOA positioning technology. By these failures, 3GPP and ETSI have authorized and ratified the anticompetitive conduct of Ericsson, Qualcomm, and Alcatel-Lucent and have joined in and become parties to their combination and conspiracy. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 2011-11-29 08:10, IETF Chair wrote: Ted: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. What do others think? I am open to suggestions for an alternative approach. Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? I hesitate to develop something that we have not needed in the past unless it is clear what benefit it gives us. In particular, if we develop one without some particular characteristic, do we lose the benefits of being where we are now? Recent suits against other SDOs is the source of the concern. The idea is t make it clear which topics are off limits at IETF meetings and on IETF mail lists. In this way, if such discussions take place, the good name of the IETF can be kept clean. I think we should be very careful before creating makework for a lawyer. In other words there are two initial questions that need to be answered: 1. What is the threat model? What type of exposure *of the IETF itself* (including its volunteer officers) exists? Of course, this is not just about US law. The EU has strong antitrust law, for example. 2. Are there any aspects of that threat model that are not already covered by the Note Well, the documents it refers to, and their chain of references? These two questions do need legal expertise. But if the answer to Q2 is no we can stop there. I think a separate list for this is appropriate. Brian Carpenter ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
RE: An Antitrust Policy for the IETF
+1 It would be helpful in the non normative statement to the community to cite what suits were are involved, what was the cause of action and what if any decisions were rendered in these cases. US antitrust law, for instance has specific exemptions for SDO's. http://en.wikisource.org/wiki/Public_Law_108-237/Title_I There are some requirements under this act that SDO's need to file a statement of purpose. I don't know if we ever did that. In general, however this sounds like a sound and valuable move. From: ietf-boun...@ietf.org [mailto:ietf-boun...@ietf.org] On Behalf Of Ted Hardie Sent: Monday, November 28, 2011 2:27 PM To: IETF Chair Cc: IETF; IESG Subject: Re: An Antitrust Policy for the IETF On Mon, Nov 28, 2011 at 11:10 AM, IETF Chair ch...@ietf.org wrote: Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? I hesitate to develop something that we have not needed in the past unless it is clear what benefit it gives us. In particular, if we develop one without some particular characteristic, do we lose the benefits of being where we are now? Recent suits against other SDOs is the source of the concern. The idea is t make it clear which topics are off limits at IETF meetings and on IETF mail lists. In this way, if such discussions take place, the good name of the IETF can be kept clean. Russ Hmm, I would characterize our previous policy as a quite public statement that no one is excluded from IETF discussion and decision making, along with with reminders that what we are deciding is the technical standard, not the resulting marketplace. What we can say beyond that without diving into national specifics is obscure to me. I agree with Dave that the first work product of an attorney should be a non-normative explanation to the community of how having such a policy helps and what it must say in order to get that benefit. (I have to say that my personal experience is that prophylactic measures against law suits tend to change the terms of the suits but not their existence. In this case, suing someone because they did not enforce the policy or the policy did not cover some specific jurisdiction's requirements perfectly, seems like the next step. Your mileage may vary.) regards, Ted ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF - why?
+1 to all of John's points here. Especially about the essential nature of lawyers - I've worked with plenty of them as well. Ned The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. I would be interested in a brief explanation of why we need one now, since we have gotten along without one for multiple decades. Having worked with a lot of lawyers, my experience is that few lawyers understand cost-benefit tradeoffs, and often recommend spending unreasonably large amounts of money to defend against very remote risks. Similarly, insurance agents will usually tell you to insure against anything. (This is why NDAs are 12 pages long, and the standard deductible on policies is usually an order of magnitude too small.) I don't know the particular lawyer and agent involved, and it's possible they're exceptions to the rule, but before spending much money, I would want to understand better what problem we are trying to solve and what the realistic risk is. Also keep in mind that the main effect of such a policy would be to shift whatever the risk is from the IETF onto participants. It might also be educational, here's things that might lead to personal legal risk if you talk about them, but we don't need a formal policy for that. I understand that some other SDOs have antitrust policies, but they generally have organizational members, and other differences from the IETF that make them only weakly analogous. R's, John ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
I'm still lost. What kind of things would the IETF have to prohibit discussion of, and specifically things that would involve anti-trust. Russ == Russ Housley hous...@vigilsec.com writes: Russ I looked at the antitrust policies of other SDOs. They state Russ the things that are prohibited from discussion at their Russ meetings and on their mail lists. Russ Russ Russ On Nov 28, 2011, at 1:59 PM, Sam Hartman wrote: I support the general approach you outline in terms of process. However it would really help me if you could write a non-normative paragraph describing what you think is involved in an anti-trust policy? Russ ___ Ietf mailing Russ list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Michael == Michael Richardson m...@sandelman.ca writes: Michael I'm still lost. Michael What kind of things would the IETF have to prohibit Michael discussion of, and specifically things that would involve Michael anti-trust. Cisco and Juniper folks form a design-team including a WG chair and excluding vendor x. There was a discussion of how licensing practices affect the availability of technology in KARP that was on the border of what's acceptable. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
RE: An Antitrust Policy for the IETF
Money for one discussions of product pricing and or costs for instance. -Original Message- From: ietf-boun...@ietf.org [mailto:ietf-boun...@ietf.org] On Behalf Of Michael Richardson Sent: Monday, November 28, 2011 5:12 PM To: Russ Housley Cc: Sam Hartman; IETF Subject: Re: An Antitrust Policy for the IETF I'm still lost. What kind of things would the IETF have to prohibit discussion of, and specifically things that would involve anti-trust. ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF - why?
On 11/28/2011 12:31 PM, John Levine wrote: I would be interested in a brief explanation of why we need one now, since we have gotten along without one for multiple decades. Having worked with a lot of lawyers, my experience is that few lawyers understand cost-benefit tradeoffs, and often recommend spending unreasonably large amounts of money to defend against very remote risks. Similarly, insurance agents will usually tell you to insure against anything. (This is why NDAs are 12 pages long, and the standard deductible on policies is usually an order of magnitude too small.) (speaking on own and without any IAOC/Trust background on this topic, and most certainly with little knowledge of legal issues in this realm. But 'little' is not 'none'.) The IETF is a very different place now, than it has been for the multiple decades preceding. Many participants have no sense of the original culture. They come in with whatever other cultures they've been exposed to, or with no background at all. Also, most participants in the IETF have no natural or trained sense of trust-violating boundaries. I also have some concern about increased company orchestration of some IETF work, which would seem to invite anti-trust concerns. That's a vague statement and is meant to be. But vague doesn't mean without foundation. IMO, that makes it reasonable to have at least a basic statement on the topic. I think it needs to be cast in IETF cultural terms and delivered in an IETF style. So, for example, having every participant sign a statement of awareness of the policy or having a multi-page policy would not make sense for the IETF. But something probably would. d/ -- Dave Crocker Brandenburg InternetWorking bbiw.net ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Here is one lawsuit that I noticed in the press this summer: http://www.cellular-news.com/story/50118.php On Nov 28, 2011, at 3:35 PM, GTW wrote: Ted, I like your approach of enquiring what problem we are striving to solve and I like Russ's concise answer that it is Recent suits against other SDOs that is the source of the concern Russ, what are some of the Recent suits against other SDOs It would be good to pin down the problem we are addressing There is FTC and N-data matter from 2008 http://www.gtwassociates.com/alerts/Ndata1.htm But the solutions in discussion in various SDOs to the issues raised in that matter have to do with revisions to IP policies more than with antitrust policy. Best Regards, George T. Willingmyre, P.E. President, GTW Associates 1012 Parrs Ridge Drive Spencerville, MD 20868 USA 1.301.421.4138 - Original Message - From: IETF Chair To: Ted Hardie Cc: IETF ; IESG Sent: Monday, November 28, 2011 2:10 PM Subject: Re: An Antitrust Policy for the IETF Ted: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. What do others think? I am open to suggestions for an alternative approach. Sorry, can you expand on the threat model here? Are we developing one in order to defend against some specific worry about our not having one? Because it has become best practice in other SDOs? Because the insurance agent wishes to see something in particular? I hesitate to develop something that we have not needed in the past unless it is clear what benefit it gives us. In particular, if we develop one without some particular characteristic, do we lose the benefits of being where we are now? Recent suits against other SDOs is the source of the concern. The idea is t make it clear which topics are off limits at IETF meetings and on IETF mail lists. In this way, if such discussions take place, the good name of the IETF can be kept clean. Russ ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
From: Marshall Eubanks marshall.euba...@gmail.com As you may know, SDO's have a certain protection against antitrust actions, but that is not absolute, and can be lost if the SDO behaves inappropriately. Ironically, it was concern about anti-trust suits which led to the creation of the ISOC, and the re-homing of the IETF under the ISOC, in the first place (back in the fall of 1989). The more things change :-) Noel ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
Here is some relevant language from the Complaint: 100. By their failures to monitor and enforce the SSO Rules, and to respond to TruePosition's specific complaints concerning violations of the SSO Rules, 3GPP and ETSI have acquiesced in, are responsible for, and complicit in, the abuse of authority and anticompetitive conduct ... As I read that, we'd be much better off having no antitrust policy at all. Any volunteers to monitor and enforce whatever policy our lawyer invents? R's, John ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
On 2011-11-29 14:51, John Levine wrote: Here is some relevant language from the Complaint: 100. By their failures to monitor and enforce the SSO Rules, and to respond to TruePosition's specific complaints concerning violations of the SSO Rules, 3GPP and ETSI have acquiesced in, are responsible for, and complicit in, the abuse of authority and anticompetitive conduct ... As I read that, we'd be much better off having no antitrust policy at all. Any volunteers to monitor and enforce whatever policy our lawyer invents? John, if they'd had no relevant rules, it would probably have read 100. By their failures to promulgate appropriate SSO Rules, and to respond to TruePosition's specific complaints concerning resultant violations of antitrust laws, 3GPP and ETSI have acquiesced in, are responsible for, and complicit in, the abuse of authority and anticompetitive conduct ... WG Chairs and ADs are already responsible for applying IETF process rules. Brian ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
As I read that, we'd be much better off having no antitrust policy at all. Any volunteers to monitor and enforce whatever policy our lawyer invents? John, if they'd had no relevant rules, it would probably have read 100. By their failures to promulgate appropriate SSO Rules, ... Quite possibly, although it seems to me that it's a much easier legal argument to say they didn't enforce the rules they had than, that they should have been prescient and known what sort of rules would have avoided a suit. I can't see that having a set of rules would do anything other than give potential litigants a stick to beat us with. R's, John ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
RE: An Antitrust Policy for the IETF
Ironically, it was concern about anti-trust suits which led to the creation of the ISOC, and the re-homing of the IETF under the ISOC, in the first place (back in the fall of 1989). Not only that. The current IETF rules were specifically designed with antitrust considerations in mind. The example at the time was not wireless positioning technologies, but a similar case involving boiler furnaces. The allegation was that a furnace maker somehow manipulated the standard process to exclude a competitor as non-compliant. A superficial reading of the two cases shows many similarities. -- Christian Huitema ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
Re: An Antitrust Policy for the IETF
At 10:50 28-11-2011, IETF Chair wrote: The IETF legal counsel and insurance agent suggest that the IETF ought to have an antitrust policy. To address this need, a lawyer is needed. As a way forward, I suggest that IASA pay a lawyer to come up with an initial draft, and then this draft be brought to the community for review and comment (and probably revision). I think a new mail list should be used for the discussion. Once the new mail list reaches rough consensus on the antitrust policy document, I suggest using the usual process for adopting the policy as an IETF BCP. There isn't any information about why an antitrust policy is needed except for a suggestion from an insurance agent. As far as I know: (a) The IETF is not a legal entity (b) The IETF Trust holds and manages rights on behalf of the IETF (c) The IETF does not have any members (d) People participate in the IETF as individuals (e) This Standard-Setting Organization (SSO) is open (f) The IETF does not vote If decisions are taken by consensus and the decision-making is fair, there isn't a capturing party. Could more information be provided about: (i) Whether the antitrust policy should be applicable for the U.S. and the E.U. (ii) Which insurance triggered the discussion about having an antitrust policy (iii) Which body faces the risk of anti-competitive litigation Regards, -sm ___ Ietf mailing list Ietf@ietf.org https://www.ietf.org/mailman/listinfo/ietf
