1. Introduction. The Nordix Foundation (“Foundation”) was formed to involve interested companies and individuals in a collaborative effort to support the development of certain open source technologies. Because some of the participants (“Members”) will include competitors, these activities are subject to antitrust laws. While coordination among competitors to achieve pro-competitive goals and efficiencies is perfectly legal under the antitrust laws, it is important to identify conduct that raises concerns under the antitrust laws and be sure that antitrust risks are avoided.
It is the express policy of Foundation to require that all activities of Foundation, and any committees organized under its auspices, be conducted strictly in accordance with U.S. federal and state antitrust laws and foreign antitrust laws. Foundation will not become involved in the competitive business decisions of its Members nor will it take or support any action that would tend to restrain competition in violation of antitrust laws.
2. Membership and Participation Policies. The requirements for Membership and participation should be reasonable and nondiscriminatory, and those requirements should be applied in an impartial manner.
- Qualifications for Membership and participation should be objective and easily verifiable.
- Decisions about allowing particular entities to join or participate should not be based, in whole or in part, on the competitive or commercial interests of other actual or potential Members. The commercial interests of the Members should never be part of any discussion of actual or potential Membership or participation by other firms.
- Fees for Membership should be set at a level reasonably related to the costs they are meant to cover. Fees or other requirements for Membership and participation should not tend to exclude certain firms (for example, because of their size or their payment terms).
- Membership and participation should not be conditioned on past or future competitive commercial behavior by the prospective Member or participant.
- Any denial of a right to join or participate by any person or entity should be subject to a formal appeal process to the full Board of Directors of Foundation.
3. Meetings and Communications. Members should avoid activities or communications that are extraneous to the group’s purposes. These guidelines apply equally to formal meetings and social gatherings.
- Members should avoid discussions of their wholesale or retail market prices, terms or conditions of sale, distribution, production, customers, credit terms or marketing practices as these topics pertain to particular companies.
- There should be no communications regarding individual company dealings with suppliers or customers.
- The group should not act to restrict any entity from gaining access to a market or customer or from freely purchasing or selling products or services, nor should it discuss any such actions.
- Meetings should be governed by a formal agenda, approved in advance by counsel. Any discussions that may deviate from the formal agenda should be reviewed by counsel before they occur.
- Discussions among Members of business or competitive issues in social groups or otherwise outside the meeting itself should be avoided.
- Notes of Members’ meetings should be subject to review by counsel, and procedures for the preparation of formal minutes should be discussed with counsel.
4. Provision of Services. Members should generally refrain from considering, discussing or implementing any market allocation program or agreements that would result in discriminatory treatment of actual or potential Members or anticompetitive effects visited upon consumers.
- Members and their representatives should not engage in discussion, communications or other exchanges regarding prices, pricing methods, production quotas or other limitations on production or sale, including any actual or proposed allocation of territories or customers.
- Members should not engage in any activity or communication that prevents or impedes any person or business entity from obtaining a supply of goods or services or otherwise purchasing products or services freely in the market.
- Members should avoid side deals or cross-licenses between or among participants based on such participation that appear to give them an advantage over non-participating companies.
5. Quasi-standard Setting Activities. To the extent that Members develop and implement standards (recommended protocols, solutions, methods, configurations of products, etc.), the antitrust laws will consider the extent to which such standards are commercially nondiscriminatory and compliance is voluntary.
- Members should not be compelled, directed or coerced to refrain from innovation (either inside or outside of any agreed upon standards) by Foundation or its committees.
- Any standards or specifications developed or approved by the Members should be based solely and exclusively upon technical considerations and the merits of objective expert judgments and thorough evaluation procedures. Such standards or specifications should in no way be based upon any effort, intention, or purpose of any Member or combination of Members to reduce or eliminate competition in the sale, supply or furnishing of products or services.
- Neither Foundation nor any combination of its Members should impose any special sanctions for the violation of standards or specifications developed, promulgated, recognized, or approved by Members.
Once again, these are general guidelines, and this is a complex, evolving area of the law. Each Member should consult with its own counsel on issues related to participation, license development and/or licensing, IP rights, and other competitively sensitive issues raised by its membership in Foundation.
6. Competition. Nothing contained in this policy should be construed to prohibit or limit a Member from making, using, selling, marketing, or promoting products that do not embody or make use of Foundation technology. Members are not required to exclusively use, announce, or promote Foundation tools or specifications. Members are free to design, develop, manufacture, acquire, or market their respective products in any lawful way.
7. Permitted Member Conduct. In addition to other legally permissible activities, Members may engage in the following conduct:
- Members may design, develop, manufacture, acquire or market competitive specifications, products and services.
- Members may join or participate in any other associations, including competitive open source organizations.
- Members may decide whether or not to utilize Foundation developments in their business operations and to what extent.
- Members should adhere to prepared agendas for all Foundation meetings.
- Members should insist that meeting minutes be prepared and made available to all participants and object whenever meeting minutes do not accurately reflect the matters that transpired.
- Members should report any violations of this Policy concerning Foundation activities to the Board of Directors.
This Policy is not intended to be legal advice. In some cases, out of an abundance of caution, these guidelines may go beyond the requirements of the antitrust laws and the fact that certain conduct may be prohibited should not be viewed as indicating that such conduct would violate the law. Members assume responsibility to provide appropriate legal counsel to their representatives regarding compliance with this policy.
If you have a question regarding these matters, contact your own counsel or the Foundation’s legal counsel.