Re: [office] List Proposal Vote Deadline on Wednesday

[marbux <marbux@gmail.com>]

On 5/4/07, Michael Brauer - Sun Germany - ham02 - Hamburg
<Michael.Brauer@sun.com> wrote:
> Marbux,
>
> this is the discussion list of the OASIS OpenDocument TC. We should
> treat ourselves with respect on this mailing list and should trust
> our TC colleagues. We further should abstain from putting pressure on
> other TC members and should be careful with accusations.

Oh, should that trust of our TC colleagues extend to the reps of
companies who secretly complain to OASIS about the OpenDocument
Foundation having too many participants on the TC? Or to TC colleagues
who use their position as TC chairman to ensure that no new features
get added to the ODF specification that their company isn't willing to
support? Or to TC colleagues willing to break their competitors' app
by ramming their proposal through without consensus, despite this TC
never before having done so before?  Or to TC colleagues so hell-bent
on breaking interoperability with the software -- used (by various
estimates) by between 72 and 90 per cent of the office productivity
software users on this planet -l- that they're willing to leave their
potential customers with no choice but to violate the law if they
adopt their software?

Of course I should unwaverlingly trust everyone on the TC, with my
very life if need be. You are absolutely right, Michael. I'm the only
one on this TC who has been playing hardball. Everyone else is acting
purely in the spirit of collegiality. I am so sorry that I even
suspected Sun might be concerned about MS Office acquiring the ability
to read and write ODF natively. Please forgive me for suspecting that
your company has a vested interest in remaining the dominant supplier
of ODF-based software and that your company's vote on the list
proposal that breaks Microsoft Office interoperability with ODF might
have been tainted by the slightest bit of self-interest. Thank you for
the rebuke. I deserved it and you've caused me to realize that there
isn't a software company on this planet that would attempt to subvert
the standardization process to gain a competitive advantage. Suddenly,
the paranoia that has clouded my judgment throughout my legal career
and my retirement has lifted. Now I realize that all of those poor
corporate folk I sued in my life were totally innocent of any ill
motive whatsoever. How can I possibly atone for all those punitive
damage awards that I obtained with what in retrospect was entirely
spurious evidence that I slipped past a host of judges? I am so
grateful that you have awoken me from my detached sense of reality.
How can I possibly repay you for your invaluable lesson on proper
manners.  Hey, how about we start a Manners Subcommittee with you as
the chairman? You have such a gift for teaching this subject! I'd be
glad to help in any way I can, maybe doing testimonials for you great
your moral leadership has been.

Not.

> As for list: We have discussed this topic for a very long time, and
> anyone had the chance to bring up her or his arguments and opinions. But
> at some stage, we had to make a decision. I strongly believe that all TC
> members have casted their vote solely based on their technical
> understanding of the matter x--snip--x

Wrong as a matter of logic and common sense. Thomas's decision to
break interoperability with MS Office, while implemented through
technical means, was a non-technical value judgment. You've made
repeated statements that I have quoted back to you where you made it
clear that you saw compatibility issues as a trade-off with other
technical issues. Such tradeoffs are value judgments, not technical in
nature. Are you now suggesting  otherwise or just being careless with
your choice of words?

Since we had two concurring proposals, it was further
> clear that only one can get the majority of votes. We should accept that
> result, and should move on now, caring about the other topics we have
> for ODF 1.2. There still is a lot of work in front of us.
>
How about the fact that this TC has never before moved on when there
was a single dissenting vote? What is your justification for departing
from that historical practice now? Is consensus now a principle this
TC will abandon so long as the injured party has less clout in the
OASIS power structure? Did I miss the vote on changing that practice?

In a day and age when the public is beginning to realize that they
have a stake in what standardization bodies do, the exclusive cartel
of very large companies that dominate OASIS -- assiduously eschewing
self interest in the same way OPEC members regulate the price of oil
worldwide -- have recently acted to restrict OASIS participation
through changes in the membership rules rather than embracing more
public participation. Your company is one of them. Your company --
which is actually comprised of real human beings like you rather than
the legal fiction of a corporate entity -- used the change in the
membership rules for non-profits to clamp down on the OpenDocument
Foundation to restrict its participation in this and other TCs. The
human beings in your company did that without advising the Foundation
that your company was the one who registered the complaint with OASIS.
In the judicial system, talking to the judge outside the other side's
presence is very dirty pool, excusable only when there is a compelling
reason for doing so. It's a violation of disciplinary rules in every
state and court in the U.S., for both lawyers and judges.

By your company's sneak attack, you challenged the future
participation of many people on this TC who participate through the
Foundation's auspices. That includes active TC members such as myself,
Thomas, Patrick, and Bruce. As it happens in the present circumstance,
the Foundation is the *only* voting member that has facilitated public
participation on this TC and made it possible for developers who draw
no financial gain from their applications to participate. But of
course your company has been glad to profit from our volunteer
contributions. But no more, if you have your way with your OASIS
complaint.

Now that this TC has departed from consensus decision-making, I guess
Sun is completing its power grab on the TC and eliminating the threat
of Microsoft Office becoming a competitor that supports ODF natively
via the Foundation's plugin. To heck with Gary and Sam Hiser's many
years of volunteer work on OpenOffice.org and OpenDocument. It's
obviously more important that they be stopped from enabling full
fidelity interoperability with MS Office. Let there be no doubt that
OpenDocument is Sun Microsystem's file format and no one else can say
no unless they can find enough votes to constitute a majority. And
those TC members who don't have a vote? Ignore them. They're ants.

Talk to me about your company's real agenda,  Michael, before you ask
me to trust you.

What is it about your role in that sneak attack that should have
earned my trust, Michael? Did you check with your lawyers about
antitrust issues before that complaint was made? Your company does
have a monopoly position in the market for ODF apps, after all. And
gee, now your company has just rammed through the TC an amendment that
just happens to break the application that has the potential to break
your company's monopoly position in ODF apps by turning Microsoft
Office into an ODF application.

At all relevant times, of course, an organization called the European
Committee for Interoperable Systems has been prosecuting an antitrust
complaint against Microsoft in no small part because of its refusal to
support OpenDocument. Gee, I wonder what companies interests are being
represented by ECIS?

Oh, right, here it is: "ECIS' members include large and smaller
information and communications technology hardware and software
providers Adobe Systems, Corel, IBM, Linspire, Nokia, Opera, Oracle,
RealNetworks, Red Hat, and Sun Microsystems."
<http://www.e-c-i-s.org/about/membership.html>. Oh, my. Both IBM and
Sun voted for the proposal that broke the Foundation's plugin that was
going to add full-fidelity native ODF file support to Microsoft
Office. So it's sounding to me like at least two of the TC members who
voted for the Sun/KOffice proposal didn't check in with the ECIS
lawyer before they broke interoperability with Microsoft Office.

Do you think Microsoft won't use this evidence in the DG Competition
antitrust proceeding, Michael? Let's see, you guys are prosecuting
Microsoft for not supporting ODF in Microsoft Office while you block
Microsoft Office from supporting ODF. Yeah, I think DG Competition is
going to hear about this one from Microsoft. They'll probably hear
about what you said about compatibility being a trade off too. Oh,
yeah. Microsoft's lawyers are going to love this. Look at the ECIS
public statement about interoperability's importance. Just click the
"Interoperability" tab on their web site's navigation bar:

>>>

 	 Interoperability is a cornerstone of the ICT industry. In today's
networked ICT environments, devices do not function purely on their
own, but must interact with other programs and devices. A device that
cannot interoperate with the other products with which consumers
expect it to interoperate is essentially worthless. It is
interoperability that drives competition on the merits and innovation.
The ability of different computer products to interoperate allows
consumers to choose among them. Because consumers can choose among
them, interoperable products must compete with one another, and it is
this competition that has driven innovation in the software industry.

<<<

If I were writing Microsoft's next major brief to DG Competition,
based on what I know now, I think I'd lead by contrasting what you
have done and said with what ECIS has said about the importance of
interoperability and its effects on competition. You just allowed
Microsoft do argue that that DG Competition complaint about Microsoft
not supporting ODF is spurious because Sun and IBM are simultaneously
breaking interoperability with Microsoft Office. Which keeps Sun its
monopoly interest in the OpenDocument application market. I can
imagine Microsoft's lawyers argument now: "It would have been futile
for Microsoft to implement ODF natively because IBM and Sun would have
manipulated the ODF specification to break interoperability with
Microsoft Office anyway. They don't really want Microsoft to support
ODF. Look at what IBM and Sun just did and said on the OASIS
OpenDocument Technical Committee."

And I wonder how your screw-up is going to affect relationships with
the other member companies in ECIS? Gee, they are going to be really
pleased with you, aren't they, Michael? They agreed to crawl out on
that limb with Sun and let's see, who was the guy who sawed off that
limb? Uh-oh ...

And who was the guy who just handed the Foundation an antitrust claim
for damages against Sun? Uh-oh.

Better briskly scurry off to the Sun legal department, Michael. In my
considered opinion, you just stuck your foot in it big time. Your name
is all over this little maneuver. It's damage control time for Sun and
your best shot at saving your job is to copy this entire thread for
the lawyers, ask them to read it, and start preparing for hard
questions and stern advice. This isn't your issue anymore. It's the
legal department's. They're the ones who have to clean up your mess.
And the longer you delay letting the lawyers know about what you've
done and said, my guess is that the worse it will be for you within
the Sun management circle.

I resigned my Bar memberships when I retired and can't lawfully give
legal advice any more. But I will give you this caution: don't start
destroying emails in documents before you consult with the lawyers
about doing so. It's a big no-no to destroy relevant evidence once
you're on notice that a subject may wind up in litigation. It's
something that standing by itself can create liability in many
jurisdictions. It's called spoliation of evidence. Microsoft got in
some really serious legal trouble fairly recently in the Burst v.
Microsoft case for destroying corporate emails after it was on notice
that the issues might wind up in litigation. Microsoft's lawyers now
know about the law on this subject. And while you're preserving the
internal emails, you might as well post copies to the list because
Microsoft's lawyers are going to get them anyway. You might reduce the
litigation expense by just coughing them up. But check with the Sun
lawyers first.

Oh, Michael. You are in such deep doo-doo that you probably won't
enjoy the repercussions. Welcome to the land where lawyers play, as
they say. :-)

> Having that said: It at any time may happen that a TC revisits a
> proposal after it has been agreed if it gets aware of technical issues
> that have not been found before the vote. For lists, nothing technical
> has been said after the ballot closed. Everything technical that has
> been posted could have been considered by the TC members than casting
> their vote, so everyone had a chance to make up her or his own mind
> whether the proposals contain technical issues or not. I therefore think
> there is no justification to continue this discussion unless new
> technical details or arguments are brought up.

Can you cite a relevant rule that says we must drop the issue or is
this just the decree of King Michael?

By technical arguments I
> mean arguments that precisely and technically describe an issue, based
> on the text of the specification, and backed by examples or similar
> material that helps to understand the issue. Without such a precise
> description of an issue, I fear we won't come to any conclusion in a
> discussion.

And the rule that requires me to follow this guidance is where? I
would consider it a courtesy if you would identify what aspect of the
issue I have raised that has left you confused? If it is the law I've
been citing applicable to interoperability in the use cases I've
raised, you'll have to consult your own lawyer. I am no longer allowed
to dispense legal advice and never was allowed to do so for
non-clients. Were I to be cute, I'd point out that Thomas is now
claiming that the interoperability issue with Microsoft Office was
never raised before the vote. But I'm not in the mood for clowning
around tonight.

>
> One last note: I assume "Marbux" is not your real name. I would
> appreciate it if TC members show up in the TC with their real name, and
> also reveal their affiliation.
>

What possible reason do you have for raising that issue other than
implying that I'm somehow being underhanded by showing up using a
"nym," as is common practice on the Internet? How is my real name
relevant to the merits of what I have said? How do I know you are
using your real name on this list? I would appreciate it if you would
post JPGs of certified copies of *your* birth certificate and
passport. Sheesh! Ask Simon Phipps who I am. He and his staff
consulted with me on a couple of drafts of the CDDL before it was
released and the relevant emails and telephone notes with my real name
are undoubtedly stashed away in Sun's archives somewhere.

Nonetheless, despite your innuendo and lack of respect for my privacy,
I'll humor you somewhat and suggest another way for you to find out
more about me. But please understand that I retired from public life
when I retired from the practice of law. I had a degree of celebrity
during my legal career, I am no longer a public person, and I don't
make it easy for former clients and citizens with concerns in the
subjects I dealt with before retiring to find me. That means I don't
make a practice of leaving my real name on the Web where it is
associated with any of my contact information.

Those days are done. The major achievement of my retirement is no
longer having to answer my telephone, which for far too many decades
ruled far too much of my life and now sports an unlisted number. That
said, my real identity and my pre-retirement background are no secret
and many people on this TC know both. You can as well if you send me a
private email and agree not to publish that information on the Web.

As to my relevant affiliations, I am an uncompensated volunteer member
of this TC, the OpenDocument Foundation, and the OpenDocument
Fellowship. As nearly as I can recall, I have not been a member of any
other formal organizations for at least four years. I do play a
sparkplug and coordinator role for a FOSS project to develop software
for the law office market in English-speaking countries, a project
which has not yet been announced.

I am surprised you did not know of my affiliations because I don't
know anyone who has been a more active or public advocate for ODF for
the last several years and I'm well acquainted with all of the major
players in the ODF advocacy community. I am beholden only to myself,
my family, my friends, and the human race. I live on a fixed
retirement income and I receive no other remuneration from anyone. My
full-time retirement "hobby" is championing the interests of software
users generally in interoperability. I also do more occasional
education and advocacy work around other issues affecting the FOSS
community such as software patent law. On this TC, I represent the
interests of no one but myself and the software user community at
large. I fancy myself as one of many voices for the software user
community and have considerable experience in that role.

Most of my legal career was devoted to public interest environmental
law involving toxic substances, mainly toilet training big corporate
polluters by taking the profit out of pollution through lawsuits for
money damages, representing victims of chemical poisoning. I am also
the co-author of three major treatises in that area of the law. I'm
the proud father of four children and the grandfather of two, so far.

Prior to my legal career, I worked in the newspaper industry for some
20 years. During 27 months of military service in Viet Nam, I worked
as the leader of a combat psychological warfare team. I consider
myself an expert in effective, goal-oriented communications.

Representative published examples of my ODF-related work are as follows:

"The case for a valid contradiction of Microsoft Office Open XML at
ISO has not been rebutted"
<http://opendocument.xml.org/node/238>

"EOOXML objections"
<http://www.grokdoc.net/index.php/EOOXML_objections> (I was co-primary
editor and sparkplugged that project, as several on the TC who
participated can attest. I also wrote the legal analysis sections of
that document.)

 "The Great Massachusetts Legal Donnybrook"
<http://www.groklaw.net/article.php?story=20050330133833843&query=donnybrook>
(My in-depth article that turned the ODF-Microsoft file format war into a
burning public issue.)

"The Microsoft Covenant Not to Sue - Sending a Mixed Message"
<http://www.groklaw.net/article.php?story=20051129101457378&query=donnybrook#Contents>
(legal analysis of the Microsoft covenant not to sue relating to the
Office 2003 XML Reference Schemas).

If you want to know anything else about me, drop me an email.

Best regards,

Marbux