[Date Prev] | [Thread Prev] | [Thread Next] | [Date Next] -- [Date Index] | [Thread Index] | [List Home]
Subject: Re: [oiic-formation-discuss] Level of detail needed in a TC Charter
On Fri, Jun 13, 2008 at 9:17 AM, <robert_weir@us.ibm.com> wrote: > > "Dave Pawson" <dave.pawson@gmail.com> wrote on 06/13/2008 11:07:44 AM: > >> 2008/6/13 <robert_weir@us.ibm.com>: > > I'm sorry Dave, I'm afraid I can't do that. The definition given ("the > anticipated audience or users of the work") is what OASIS gives us. We have > no ability to change that. I'm suggesting an interpretation that seems > obvious enough to me. > > It might help to take a look at some of the dozens of existing and approved > TC charters for the many succesful OASIS TC's > (http://www.oasis-open.org/committees/committees.php). They do not have > elaborate definition chapters. In fact most of the charters can fit on one > side of a post card. What's been done before is not a particularly helpful guide because OASIS is awash with standards that violate the law. What folks have done before is no defense to an antitrust prosecution, just as the fact that some murders go unpunished is no defense to a charge of murder. It might help to realize that we're engaged in a process that is mandated by antitrust law. In the U.S., voluntary standards organizations are routinely treated by the courts as Sherman Act section 1 conspiracies in restraint of trade if they engage in anti-competitive behavior. The law is very cautious about the idea of competitors sitting around the table and working out the future of a market. The guiding light is whether such interactions are aimed at pro-competitive or anti-competitive results. It often happens that procedures get set up intially by lawyers but get implemented by people who have no idea what the law is and the results violate the law. There are two U.S. statutes that allow standards bodies to limit the liability of standards bodies and that of those who serve as TC officials, reducing the otherwise required treble damages to actual damages. They require that the standards bodies adopt meaningful safeguards against anti-competitive behavior on their technical committees and to certify to the U.S. Justice Department that they have done so. But OASIS and Ecma are among the voluntary standards organizations that have never done so. Awareness of the relevant law is understandably very weak at OASIS and Ecma. But the bottom line is that *everyone* involved in standards work, including the voluntary standards organizations themselves, are individually liable for treble the entire amount of amount of damages inflicted by all co-conspirators. The antitrust lawyer may seek the same amount of damages from all co-conspirators or from any of them. They can pick and choose who they sue and it is no defense to antitrust or murder charges that "I only drove the get-away car; the other guy shot the bank teller" so to speak. Everyone involved is individually liable for the acts of all co-conspirators. In lawyer-speak, the liability is both joint and several. A common lawyer tactic is to sue everyone involved, extract ruinous settlements from the little guys early, and use that money to really go after the folks with deep pockets. The law of conspiracy is vicious. Co-conspirator liability for the damages inflicted by all co-conspirators extends to anyone who shares the goal of the conspiracy and commits a solitary overt act in furtherance of the conspiracy's goal. There is no requirement that an actual agreement have been formed, and the sharing of the goal is almost always proved from circumstantial evidence that a party was aware of the goal and committed a single overt act in furtherance of that goal. But things like TC Charters and resulting standards are treated as goal agreements under the Sherman Act, leaving only the question of whether the agreement is pro-competive or anti-competitive. There's a nice home page for a standards-specialist firm's web site's sub-collection of resources that collects the relevant law and regulations, with short human readable annotations, and listing of organizations that have made their certifications to DoJ here. <http://www.gtwassociates.com/answers/Antitrust.html>. The notice of of a TC's formation is to comply with antitrust rulings that require that all potential players get the best early notice that can be achieved of a standard's proposed development so they can participate in defining what the standard will address. The charter requirement responds to antitrust rulings saying that a work on a standard must be confined to the mission statement. The OASIS rule that a TC has to either formally amend its Charter through another scoping process or form a new TC likewise responds to must be confined to the Charter unless the Charter goes through a formal amendment process responds to antitrust rulings The Agreement on Technical Barriers to Trade is largely drawn from antitrust law governing standards bodies in Europe and the U.S. The prohibition against the preparation, adoption, or implementation of standards with a view to or with the effect of creating unnecessary obstacles to international trade in particular is nothing but a restatement of antitrust law. Off-hand, I don't think that OASIS procedures have to be read as being inconsistent with the law, but it would be a very good thing to keep an eye on the predictable effects on competition when drafting the Charter. Standards must be responsive to market requirements -- as opposed to vendor requirements -- and must not disadvantage any competitor. Interoperability is not a pie in the sky goal; it is the very basis of competition in the IT industry. E.g., DG Competition Commissioner Neelie Kroes said Tuesday: "Standards are clearly more important than ever. They often facilitate economies of scale but their real impact on technology markets is with interoperability. "The development of electronic communications networks has seen a rise in the importance of interoperability between equipment used, between services provided, and between data exchanged. Interoperability encourages competition on the merits between technologies from different companies, and helps prevent lock-in. "Standards are the foundation of interoperability." She also signaled that DG Competition is keeping an eye on what the big vendors do in regard to the ODF v. OOXML resolution. I really suggest reading her short speech. <http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/08/317&format=HTML&aged=0&language=EN&guiLanguage=en>. Best regards, Paul -- Universal Interoperability Council <http:www.universal-interop-council.org>
[Date Prev] | [Thread Prev] | [Thread Next] | [Date Next] -- [Date Index] | [Thread Index] | [List Home]