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Antitrust Guidelines for IETF Participants
draft-halpern-gendispatch-antitrust-07

Document Type Active Internet-Draft (individual)
Authors Joel M. Halpern , Jay Daley
Last updated 2024-01-10
RFC stream Internet Engineering Task Force (IETF)
Intended RFC status Informational
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IESG IESG state AD is watching
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Responsible AD Lars Eggert
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draft-halpern-gendispatch-antitrust-07
Network Working Group                                 J. M. Halpern, Ed.
Internet-Draft                                                  Ericsson
Intended status: Informational                                  J. Daley
Expires: 13 July 2024                            IETF Administration LLC
                                                         10 January 2024

               Antitrust Guidelines for IETF Participants
                 draft-halpern-gendispatch-antitrust-07

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.

   Internet-Drafts are working documents of the Internet Engineering
   Task Force (IETF).  Note that other groups may also distribute
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   Internet-Drafts are draft documents valid for a maximum of six months
   and may be updated, replaced, or obsoleted by other documents at any
   time.  It is inappropriate to use Internet-Drafts as reference
   material or to cite them other than as "work in progress."

   This Internet-Draft will expire on 13 July 2024.

Copyright Notice

   Copyright (c) 2024 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/
   license-info) in effect on the date of publication of this document.
   Please review these documents carefully, as they describe your rights
   and restrictions with respect to this document.  Code Components
   extracted from this document must include Revised BSD License text as
   described in Section 4.e of the Trust Legal Provisions and are
   provided without warranty as described in the Revised BSD License.

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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 . . . . . . . . . . . . . . . . . . . . .   5
     4.2.  Topics Requiring Caution  . . . . . . . . . . . . . . . .   5
     4.3.  Obtain Independent Legal Advice . . . . . . . . . . . . .   6
     4.4.  Escalate Antitrust-Related Concerns . . . . . . . . . . .   6
   5.  IANA Considerations . . . . . . . . . . . . . . . . . . . . .   6
   6.  Security Considerations . . . . . . . . . . . . . . . . . . .   6
   7.  Normative References  . . . . . . . . . . . . . . . . . . . .   6
   8.  Informative References  . . . . . . . . . . . . . . . . . . .   7
   Authors' Addresses  . . . . . . . . . . . . . . . . . . . . . . .   8

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.”
   Similarly, the European Commission [EC] states that the purpose of
   its competition law rules is "to make EU markets work better, by
   ensuring that all companies compete equally and fairly on their
   merits" which "benefits consumers, businesses and the European
   economy as a whole."  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 cannot 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 cannot 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.

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   *  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.

   *  The IETF framework that participants engage in their individual
      capacity, not as company representatives (see [BCP9] and [LLC]),
      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

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4.1.  Topics to Avoid

   While IETF participants are expected to participate as individuals,
   their actions could still be construed as representing their
   employer, whatever their role.  Therefore, participants should be
   aware that some topics are generally inappropriate for discussion in
   a standards setting environment where representatives from
   competitors to their employer 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 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
   are responsible for ensuring 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 unpublished 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.

   *  Entering into potentially discriminatory, 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.

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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.

4.4.  Escalate Antitrust-Related Concerns

   Participants can report potential antitrust issues in the context of
   IETF activities by contacting IETF legal counsel (legal@ietf.org) or
   via the IETF LLC whistleblower service.  Note that reports will only
   be assessed for their impact upon the IETF; participants directly
   impacted by an antitrust issue are responsible for obtaining their
   own legal advice.

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 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.

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              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.

              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

   [LLC]      "IETF Administration LLC Statement on Competition Law
              Issues", <https://www.ietf.org/blog/ietf-llc-statement-
              competition-law-issues/>.

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   [DOJ]      "The mission of the Antitrust Division",
              <https://www.justice.gov/atr/mission>.

   [EC]       "Competition", <https://commission.europa.eu/about-
              european-commission/departments-and-executive-agencies/
              competition_en>.

Authors' Addresses

   Joel M. Halpern (editor)
   Ericsson
   P. O. Box 6049
   Leesburg, VA 20178
   United States of America
   Email: joel.halpern@ericsson.com

   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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