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Re: An Antitrust Policy for the IETF
2011-12-02 12:20:01
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" <huitema(_at_)microsoft(_dot_)com>
To: "Joel jaeggli" <joelja(_at_)bogus(_dot_)com>; "Jorge Contreras"
<cntreras(_at_)gmail(_dot_)com>
Cc: "Ted Hardie" <ted(_dot_)ietf(_at_)gmail(_dot_)com>; "IETF Chair" <chair(_at_)ietf(_dot_)org>; "IETF"
<ietf(_at_)ietf(_dot_)org>; "IESG" <iesg(_at_)ietf(_dot_)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(_dot_)hoffman(_at_)vpnc(_dot_)org>
To: "Marshall Eubanks" <marshall(_dot_)eubanks(_at_)gmail(_dot_)com>
Cc: "IETF Discussion" <ietf(_at_)ietf(_dot_)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 <johnl(_at_)iecc(_dot_)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
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