Antitrust Guidelines for IETF Participants
draft-halpern-gendispatch-antitrust-05

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

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   This Internet-Draft will expire on 10 September 2023.

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   Copyright (c) 2023 IETF Trust and the persons identified as the
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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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