Internet DRAFT - draft-halpern-gendispatch-antitrust
draft-halpern-gendispatch-antitrust
Network Working Group J. M. Halpern, Ed.
Internet-Draft Ericsson
Intended status: Informational B. Biddle
Expires: 10 September 2023 Biddle Law PC
J. Daley
IETF Administration LLC
9 March 2023
Antitrust Guidelines for IETF Participants
draft-halpern-gendispatch-antitrust-05
Abstract
This document provides education and guidance for IETF participants
on compliance with antitrust laws and how to reduce antitrust risks
in connection with IETF activities.
Status of This Memo
This Internet-Draft is submitted in full conformance with the
provisions of BCP 78 and BCP 79.
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This Internet-Draft will expire on 10 September 2023.
Copyright Notice
Copyright (c) 2023 IETF Trust and the persons identified as the
document authors. All rights reserved.
This document is subject to BCP 78 and the IETF Trust's Legal
Provisions Relating to IETF Documents (https://trustee.ietf.org/
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Please review these documents carefully, as they describe your rights
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Table of Contents
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Background . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1. A Note About Terminology . . . . . . . . . . . . . . . . 2
2.2. Purpose of Antitrust or Competition law . . . . . . . . . 3
2.3. Overlapping Areas of Concern . . . . . . . . . . . . . . 3
3. Existing IETF Antitrust Compliance Strategy . . . . . . . . . 3
4. Additional Recommendations . . . . . . . . . . . . . . . . . 4
4.1. Topics to Avoid . . . . . . . . . . . . . . . . . . . . . 4
4.2. Topics Requiring Caution . . . . . . . . . . . . . . . . 5
4.3. Obtain Independent Legal Advice . . . . . . . . . . . . . 5
4.4. Escalate Antitrust-Related Concerns . . . . . . . . . . . 5
5. IANA Considerations . . . . . . . . . . . . . . . . . . . . . 6
6. Security Considerations . . . . . . . . . . . . . . . . . . . 6
7. Normative References . . . . . . . . . . . . . . . . . . . . 6
8. Informative References . . . . . . . . . . . . . . . . . . . 7
Authors' Addresses . . . . . . . . . . . . . . . . . . . . . . . 7
1. Introduction
Standards development frequently requires collaboration between
competitors. Cooperation among competitors can spark concerns about
antitrust law or competition law violations. This document is
intended to educate IETF participants about how to reduce antitrust
risks in connection with IETF activities. Nothing in this document
is intended to change existing IETF policies or to prohibit lawful
behavior that falls within those policies by IETF participants.
2. Background
2.1. A Note About Terminology
"Antitrust law" and "competition law" are used synonymously in this
document. “Antitrust” is the word that is used in the US and in
several other jurisdictions; “competition law” is the terminology
used in Europe and in many other jurisdictions. There can be some
nuanced differences between how different jurisdictions address these
kinds of legal issues, and sometimes people use the terminology
differently to highlight these nuances, but here they are being used
as synonyms.
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2.2. Purpose of Antitrust or Competition law
The U.S. Department of Justice says [DOJ] that “the goal of the
antitrust laws is to protect economic freedom and opportunity by
promoting free and fair competition in the marketplace. Competition
in a free market benefits consumers through lower prices, better
quality and greater choice. Competition provides businesses the
opportunity to compete on price and quality, in an open market and on
a level playing field, unhampered by anticompetitive restraints.”
Fundamentally, antitrust or competition laws are designed to
facilitate open, fair, robust competition, ultimately to benefit
consumers.
2.3. Overlapping Areas of Concern
There are two overlapping areas of concern the IETF has in connection
with antitrust compliance:
* Most acutely, the IETF must not have anyone who is officially
representing the IETF, in any capacity, engage in problematic
antitrust behavior and create liability for the IETF.
* Additionally, the IETF must not be a forum where participants
engage in problematic antitrust behavior, even if direct liability
for that behavior falls on those participants and not the IETF, to
avoid reputational harm to the IETF.
3. Existing IETF Antitrust Compliance Strategy
Compliance with the BCPs and other relevant policies that document
the established rules and norms of the IETF facilitates compliance
with antitrust law, as the IETF structure and processes are designed
to mitigate antitrust risks. As a reminder, participants are
required to comply with the following policies:
* The Internet Standards Process as described in BCP 9 [BCP9] ,
which is designed to "provide a fair, open, and objective basis
for developing, evaluating, and adopting Internet Standards," and
provides robust procedural rules, including an appeals process.
* The Working Group Guidelines and Procedures described in BCP 25
[BCP25] , which emphasize requirements for "open and fair
participation and for thorough consideration of technical
alternatives," and describe IETF's consensus-based decision-making
processes.
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* The IETF framework that participants engage in their individual
capacity, not as company representatives (see [BCP9] and [TAO]),
and "use their best engineering judgment to find the best solution
for the whole Internet, not just the best solution for any
particular network, technology, vendor, or user," as described in
BCP 54 [BCP54] .
* The IETF's intellectual property rights policies as set forth in
BCP 78 [BCP78] and BCP 79 [BCP79] ; these policies are carefully
designed to "benefit the Internet community and the public at
large, while respecting the legitimate rights of others."
* The established conflict of interest policies, such as the IESG
Conflict of Interest Policy, the IAB Conflict of Interest Policy
or the IETF LLC Conflict of Interest Policy, if and when
applicable.
4. Additional Recommendations
The most important recommendation is for IETF participants to
rigorously follow all applicable IETF policies as set out in section
3 above.
This section provides more information about:
* Certain topics that are generally inappropriate for discussion in
a standards setting environment
* Certain topics that can be relevant at times in a standard setting
context but that can potentially raise competition law risks when
engaged in collaboratively
* The importance of participants obtaining independent legal advice,
as appropriate
* Paths to escalate antitrust-related concerns
4.1. Topics to Avoid
Some topics are generally inappropriate for discussion in a standards
setting environment where representatives from competitors are likely
to be present. These topics include: discussion about product
pricing or profit margins among potential competitors, the details of
business relationships between specific vendors and customers,
details about the supply chains of specific companies, discussions
about market opportunities for specific companies, or employee
compensation or benefits among potentially competitive employers.
While not all discussions of these topics would necessarily be
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antitrust violations, and recognizing that analysis of antitrust
considerations will be different for differently-positioned
participants, prudence suggests that avoiding these specific topics
in the context of the collaborative IETF process best mitigates
antitrust risks for the IETF and its participants.
Note that antitrust law reaches beyond these topics, however. For
example, any behavior that amounts to an agreement to restrain
marketplace competition, or that facilitates monopolization of
particular markets, raises potential antitrust risks. Participants
must ensure that their conduct does not violate any antitrust laws or
regulations.
4.2. Topics Requiring Caution
Two topics that can be relevant at times in a standard setting
context but that can also raise some competition law risks when
engaged in collaboratively are:
* Using detailed market data to evaluate the relative implementation
costs of two technical alternatives to decide whether one is
significantly more feasible in the market and thus a better
candidate for standardization.
* Seeking clarifications about IPR disclosures, in a context when
any such clarifications could be reasonably perceived as entering
into group negotiations of IPR terms.
IETF participants who require informal advice on these issues have a
number of options open to them, including speaking to relevant Area
Directors, raising the matter with the community on a mailing list,
or contacting IETF counsel directly.
4.3. Obtain Independent Legal Advice
All IETF participants are expected to behave lawfully when engaged in
IETF activities, including by following applicable antitrust law.
The IETF does not provide legal advice to participants, and instead
recommends that participants obtain independent legal advice as
needed. IETF participants should consult with their own counsel when
antitrust or competition law-related questions arise.
4.4. Escalate Antitrust-Related Concerns
Participants should report potential antitrust concerns in the
context of IETF activities to IETF legal counsel (legal@ietf.org), or
via the IETF LLC whistleblower service.
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5. IANA Considerations
No values are assigned in this document, no registries are created,
and there is no action assigned to the IANA by this document.
6. Security Considerations
This document may be considered to document means to avoid risks to
the IETF and IETF participants related to antitrust. One may
consider those to be security considerations. Other than that, this
document introduces no known security aspects to the IETF or IETF
participants.
7. Normative References
[BCP9] Bradner, S., "The Internet Standards Process -- Revision
3", BCP 9, RFC 2026, October 1996.
Dusseault, L. and R. Sparks, "Guidance on Interoperation
and Implementation Reports for Advancement to Draft
Standard", BCP 9, RFC 5657, September 2009.
Housley, R., Crocker, D., and E. Burger, "Reducing the
Standards Track to Two Maturity Levels", BCP 9, RFC 6410,
October 2011.
Resnick, P., "Retirement of the "Internet Official
Protocol Standards" Summary Document", BCP 9, RFC 7100,
December 2013.
Kolkman, O., Bradner, S., and S. Turner, "Characterization
of Proposed Standards", BCP 9, RFC 7127, January 2014.
Dawkins, S., "Increasing the Number of Area Directors in
an IETF Area", BCP 9, RFC 7475, March 2015.
Halpern, J., Ed. and E. Rescorla, Ed., "IETF Stream
Documents Require IETF Rough Consensus", BCP 9, RFC 8789,
June 2020.
<https://www.rfc-editor.org/info/bcp9>
[BCP25] Bradner, S., "IETF Working Group Guidelines and
Procedures", BCP 25, RFC 2418, September 1998.
Wasserman, M., "Updates to RFC 2418 Regarding the
Management of IETF Mailing Lists", BCP 25, RFC 3934,
October 2004.
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Resnick, P. and A. Farrel, "IETF Anti-Harassment
Procedures", BCP 25, RFC 7776, March 2016.
Resnick, P. and A. Farrel, "Update to the IETF Anti-
Harassment Procedures for the Replacement of the IETF
Administrative Oversight Committee (IAOC) with the IETF
Administration LLC", BCP 25, RFC 8716, February 2020.
<https://www.rfc-editor.org/info/bcp25>
[BCP54] Moonesamy, S., Ed., "IETF Guidelines for Conduct", BCP 54,
RFC 7154, March 2014.
<https://www.rfc-editor.org/info/bcp54>
[BCP78] Bradner, S., Ed. and J. Contreras, Ed., "Rights
Contributors Provide to the IETF Trust", BCP 78, RFC 5378,
November 2008.
<https://www.rfc-editor.org/info/bcp78>
[BCP79] Bradner, S. and J. Contreras, "Intellectual Property
Rights in IETF Technology", BCP 79, RFC 8179, May 2017.
<https://www.rfc-editor.org/info/bcp79>
8. Informative References
[TAO] "The Tao of the IETF",
<https://www.ietf.org/about/participate/tao/>.
[DOJ] "The mission of the Antitrust Division",
<https://www.justice.gov/atr/mission>.
Authors' Addresses
Joel M. Halpern (editor)
Ericsson
P. O. Box 6049
Leesburg, VA 20178
United States of America
Email: joel.halpern@ericsson.com
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Brad Biddle
Biddle Law PC
650 NE Holladay Street, Suite 1600
Portland, OR 97232
United States of America
Email: brad@biddle.law
Jay Daley
IETF Administration LLC
1000 N. West Street, Suite 1200
Wilimington, DE 19801
United States of America
Email: jay@staff.ietf.org
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