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Subject: Re: [oiic-formation-discuss] MARBUX POINT OF ORDER, OBJECTION, AND SUGGESTIONS No. 1
On Sat, Jun 14, 2008 at 9:33 PM, Pamela Jones <pj2@groklaw.net> wrote: > I sent it first only to you. Then when you answered, I saw no one else saw > it, so I resent, with you removed as CC, since it was clear you had it > already. > Ah, so the first one was the problem. This list server is set backwards so that replies go to the sender of the post you respond to by default rather than to the list. I regret that I did not notice that you had accidentally sent it only to me or I would not have bothered to respond. > Let me guess. I am now subject to antitrust sanctions. I will give you a serious answer, and with full knowledge that public accusations of serious criminal misconduct are fully actionable under defamation law, with truth the major relevant affirmative defense. I am a retired lawyer as you well know and I do not say what I am about to say lightly. In my well-studied opinion, you have for some time had both both criminal and civil liability exposure for repeated violations of Section 1 of the Sherman Act. I have a very tall stack of evidence that you conspired with IBM and Sun to lock the world into the OOo code base, knowing that ODF could not interoperably be implemented by any other code base. There is an emerging appearance that the same conspirators are now attempting to delay bringing ODF into compliance with the competition law governing interoperability, a sub-conspiracy if you will, by creating an appeal to ignorance, the illusion that someone is actually doing serious work to achieve interoperability of ODF implementations. But the entire premise of this effort is misdirected. The law requires that the information necessary to achieve interoperability be specified in the ODF standard itself, at the time it was first issued as an OASIS standard. Other than the proposed but undefined profile work, this proposed TC thus far contemplates nothing but application-level interoperability work and Rob Weir has arbitrarily shot down every serious proposal for doing something effective about the ODF interoperability mess situation before Hell freezes over, while disclaiming in this thread any power of supervision of this meeting, despite having been identified in the TC formation notice as the meeting's leader. All it takes to make you as liable as Sun and IBM for the same amount of damages suffered by virtually anyone as a result of the conspiracy identified above is a solitary overt act in furtherance of the conspiracy's goal. You have committed a multitude of overt acts in furtherance of that unlawful goal. Conspiracy law is vicious. There is no de minimus exception and even otherwise lawful overt acts become actionable when the goal of the conspiracy is unlawful. Liability is joint and several under the Clayton Act, which means that each individual co-conspirator is individually liable for all of damages inflicted by all co-conspirators. (The Clayton Act makes violations of the Sherman Act actionable in civil cases.) On both the civil and criminal sides (Section 1 of the Sherman Act itself is a criminal conspiracy statute), it is no defense that the overt act one conspirator commits was otherwise lawful. As a simple example from a branch of criminal conspiracy law with which you may be more familiar, it makes no difference that the driver of the get-away car only engaged in behavior that was otherwise lawful; when one of the co-conspirators shot the bank teller who was reaching for the silent alarm, all co-conspirators can be convicted of aggravated murder because each shared the common goal of robbing the bank and the goal of the conspiracy was unlawful. People go to prison every day for otherwise lawful acts in furtherance of an unlawful goal. Antitrust law was a major factor in our decision to end our participation on the ODF TC. Once we became aware that the ODF TC was being being misused for anti-competitive ends to create and maintain interoperability barriers, the only thing left to decide was whether we were willing to bank on the unlikelihood of us being named as co-conspirators. We decided that respect for the law was the wiser course, since none of us were willing to play the "do what you think you can get away with" game. See e.g., TVA v. Hill, 437 U.S. 153, 195-196 (1978), <http://laws.findlaw.com/us/437/153.html>: "Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not [ sit as a committee of review, nor are we vested with the power of veto. The lines ascribed to Sir Thomas More by Robert Bolt are not without relevance here: 'The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal. . . . I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. . . . What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? . . . This country's planted thick with laws from coast to coast - Man's laws, not God's - and if you cut them down . . . d'you really think you could stand upright in the winds that would blow them? . . . Yes, I'd give the Devil benefit of law, for my own safety's sake." R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed. 1967).' We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with "common sense and the public weal." Our Constitution vests such responsibilities in the political branches. In other words, if you do not like the law, Miss Jones, your remedy is to get it changed, not to ignore it. Or put in context, tearing down down the monopoly is no intellectually sound justification for violating the law yourself. It is also not an affirmative defense to an antitrust case of the kind under discussion. The choice of evils defense applies only when the harm to be avoided by engaging in unlawful behavior is severe, irreparable, and the threat immediate, as well as there being an an inability to to avoid the harm by lawful means. I've never heard of the defense raised successfully on grounds that you could not afford to litigate. If you want to continue to help IBM and Sun lock the world into the OOo code base, you really should consult with legal counsel before you go any further. The law of conspiracy does not require proof that co-conspirators actually have entered into an agreement. A shared common goal that is unlawful is enough, plus a single overt act in aid of that goal. I suggest that you also ask counsel about your duty to mitigate the harm you have contributed to. That is why we tried to alert the world and endorsed CDF instead when we discovered that we had unwittingly aided an unlawful conspiracy. Your false, libelous, and successful attempt to destroy our credibility and our message was an overt act in aid of the conspiracy. Your failure to retract upon learning of my debunking of your libel is simply proof that destroying our credibility and message was intentional. You're in this thing up to your neck, Miss Jones, and what you did today was simply one more of a multitude of overt acts you have committed in furtherance of the goal of the conspiracy. And by the way, I did not make any threat to sue Rob Weir as you falsely allege and I note that you have made the same false allegation against me in the past in regard to other people I was warning that their behavior was actionable. I have no intent to sue Rob Weir and did not say that I did. I simply alerted him to my beliief that his handling of my proposals was so far out of line that it was an actionable antitrust violation. That was a courtesy, not a threat, intended to give him pause enough to consult with counsel, as urged by the OASIS Antitrust Guidelines. I urge you to do the same. You are not an innocent, Miss Jones. You have legal training and experience. You operate what is the most popular law blog on the planet and deal with legal subjects daily. But you routinely abuse the trust of your readers in aid of an unlawful goal. Ignorance of the law is no defense to an antitrust action in any event. And I have more than enough evidence that you were aware of facts sufficient to put you on inquiry notice creating a legal duty for you to investigate both the facts and the applicable law. You do not come to this meeting with clean hands. I have no intent of suing you either. But I am far past standing silent when you engage in your ad hominem attacks on me, as you well know. Your innuendo suggesting that I have ulterior motives and seek delay only for the sake of delay was just the latest in a long series of your attempts to destroy my credibility and personal reputation. One difference between us, Miss Jones, is that I strive to play by the rules and I promptly retract any error brought to my attention and apologize. You just play down and dirty with me. I hope this sufficiently answers your question insofar as my own opinion. But only your own attorney can give you legal advice and only you can determine what you believe to be ethical conduct. We obviously have differing ethical values. Best regards, Paul E. Merrell, J.D. (Marbux) -- Universal Interoperability Council <http:www.universal-interop-council.org>
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