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Subject: Re: [oiic-formation-discuss] Proposed Use case -- Interoperability in vertical and horizontal ODF markets
On Sun, Jun 29, 2008 at 11:47 PM, <Andrew.Updegrove@gesmer.com> wrote: >> I note your attempt to change the subject of this thread with only an >> appeal to ignorance. I decline your flame bait. Do you have anything >> to offer to the discussion of the technical or legal merits of my >> proposed use case regarding interoperability in vertical and >> horizontal ODF markets? > > Paul, it was a last attempt to try to see whether your place in the > community could be salvaged, intended in friendship. This listserv has a > purpose defined by consensus, and not by a single participant. No one has > an obligation to respond to everything, or even anything, you say, if they > don't think it is within scope, or has already been adequately addressed, or > is without merit. > > If that is flamebait, then I think that our ability to communicate is over. > > Goodbye, Paul. It was nice knowing you, up to a point. I note that you respond only with another excuse for not addressing the merits of my proposal, including an implicit mischaracterization of the law reqarding the consensus process that must be observed. The Supreme Court disagreed in some detail with your characterization of "consensus" in the Indian Head decision. The consensus to be achieved at this meeting must be: "based on the *merits* of objective expert judgments and through procedures that prevent the standard-setting process from being biased by members with economic interests in stifling product competition." Allied Tube & Conduit v. Indian Head, Inc., 486 U.S. 492 (1988), <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=486&invol=492> (reinstating jury award of treble damages under the Sherman Act) (footnote omitted) (emphasis added). You have contributed nothing going to the merits of my proposal in this thread and you ignore the complete absence at this meeting of "procedures that prevent the standard-setting process from being biased by members with economic interests in stifling product competition." You skip past the merits of my proposal, all due process components of consensus, and the fact that the scope of the charter remains to be determined merely to impugn my character and reputation by suggesting that my "place in the [unidentified] community" is in need of "salvage," a consistent theme of a host of attacks on my character and reputation you have made without factual or legal basis, both on this list and on your blog. Please notice: [i] the title of this thread, a use case regarding "interoperability in vertical and horizontal markets;" and [ii] the Court's concern about agreements among competitors in vertical and horizontal markets with anti-competive effects in the Indian Head decision, supra: "Typically, private standard-setting associations, like the Association in this case, include members having horizontal and vertical business relations. See generally 7 P. Areeda, Antitrust Law ยง 1477, p. 343 (1986) (trade and standard-setting associations routinely treated as continuing conspiracies of their members). There is no doubt that the members of such associations often have economic incentives to restrain competition and that the product standards set by such associations have a serious potential for anticompetitive harm." (".My use case is carefully tailored to expose interoperability issues that *must* as a matter of law be addressed in the OIIC TC's interoperability work. My use case is based on the present state of the ODF standard, prior statements by IBM officials as to the types of interoperability they deem necessary to fulfill market requirements in the market for office productivity software, and the body of U.S. antitrust law governing mergers of and agreements among competitors in vertical and horizontal markets, the body of law of which antitrust law applicable to voluntary standards organizations is only a art. . In this thread your only apparent role has been to further the cause of "stifling product competition" in both horizontal and vertical ODF markets. by those with "economic interests in stifling product competition" though your diversions from a discussion of the merits of my proposal. You have no excuse of ignorance of that law; you head a team of nine lawyers in your firm who specialize in the law governing consortiums of competitors. Look down, Mr. Updegrove. That thin ODF legal ice you were skating on broke long ago. You took your first full plunge into a Sherman Act section 1 conspiracy in restraint of trade the first time you committed a single overt act in furtherance of the unlawful goal. You know the law in this area, despite your continuing efforts to mischaracterize it in your many appeals to ignorance sprinkled across the record of this meeting. I privately directed your attention to the Indian Head decision many months ago in regard to OASIS and the ODF TC and well before that a summary of that decision was posted on your Standards <meta> Library. Moreover, in your first attack on my reputation and character at this meeting, you stated that you lacked the technical training to participate on this list. With an admitted lack of technical knowledge necessary for participation, you have scant basis at best for pronouncing the applicable law. In principled legal analysis, one necessarily determines what the relevant facts are before deciding what result the law commands. You, sir, admittedly participate without knowledge of the facts and your opinions as to the controlling law are without an informed factual basis. That you mischaracterize the law you speak of only further detracts from the weight your opinion deserves.. Please desist from further attempts to divert attention from the merit of this or any other proposal I have made or make. You merely deepen the plunge you have already taken into unlawful conspiracy in restraint of trade. Best regards, Paul E. Merrell, J.D. (Marbux) -- Universal Interoperability Council <http:www.universal-interop-council.org>
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