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Re: An Antitrust Policy for the IETF

2011-11-28 13:38:49
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-ietf(_at_)mit(_dot_)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

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