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Subject: Re: [office] List Proposal Vote Deadline on Wednesday
On 5/4/07, Thomas Zander <zander@kde.org> wrote: > Marbux (/ Paul M.) Putting my first name and initial in public where it can be associated with my email address is a pretty cheap shot, Thomas. I explained to you at the outset of our correspondence with each other why I don't put my real name out there on the Web. You also know I don't conceal it from people in private emails. Let's see. Michael requests I put my real name on the list; David does the same; and you put my real first name and my initial on the list. Is this some kind of strategy you, Michael, and David have worked out? Hoping the threat of disclosing my name where the whole world can associate it with my contact information will make me cringe in fear and back off? No biggy, though. I've got spam filters and an unlisted telephone number. Anyone who really wanted to find me always could. I'm not hiding from the law or anything like that, so the threat of me having to ignore a few extra emails isn't enough to back me down. Sorry. I enjoy my privacy but protecting it is much more a hobby than something I spend time worrying about. But wow. I mean you have some nerve lecturing me about manners. > > above you make a lot of accusations about a lot of people, without any > proof. > I could go for (multiple) slander of name, but as you so nicely pointed > out that your public reputation is 'on the line' I think you just gave us > all we need to make clear to the public that you are just being very > childish and insulting everyone that does not share your world view. > Michael was the one who raised the issue of trust when he asked me to trust him. I do not trust him. Telling him anything else would have been an evasion of his request or a lie. I also extended him the courtesy of telling him why I do not trust him. If I was wrong on any reason I stated, he can correct my error and if satisfied I did err I will have no problems with apologizing to the extent of my error. I would actually prefer to be wrong about how untrustworthy I believe Michael is. But he and I can have an open and honest relationship now. He knows I do not trust him and why. What I am not going to do is fall for Michael's classic "just trust the experts" tactic to persuade me me to shut up. It was transparent, as old and familiar to me as the hills around my home that I gaze upon every day, and was a demeaning thing for him to say. Guess what every citizen hears when they they object to a government decision that a megacorp stands to profit from? Yeah. "Just trust the experts." It's meant to belittle an opponent, to make him feel incompetent to object, and to assert the infallibility of the decision's protagonists. It's a tactic aimed at disempowerment and disenfranchisement. It's a "your opinion doesn't count" message. It's a "don't listen to the ignoramuses" message to the decision-maker. And if it was a valid argument, there would be no basis for democratic principles like equal voting rights. It certainly has no valid place in a body that held itself out as acting on principles of consensus, until the list amendment vote. It was also an ignoratio elenchi argument, a logical fallacy. Not everyone on this TC has expertise relevant to the list proposal. Among those who do, there are degrees of expertise and expertise in different aspects of the problem. For example, I have expertise in the legal aspects of the problem and you do not, while you have more expertise than me in coding. Michael addressed his point as though there were experts (of apparently uniform expertise) on the TC and me. Implicit in his argument was a premise that I lacked sufficient knowledge to contribute meaningfully to resolution of the dispute. Surprise! Trial lawyers do little other than work on dispute resolution. I've got decades of experience in the field. So Michael's "just trust the experts" argument was irrelevant to the issue he addressed; whether the TC should move on from the list amendment issue. It was fallacious because it was not even relevant to his point. And it was an insult not only to me but also to to Florian and Gary, who surely satisfy even Michael's definition of an expert, because his linguistic construct necessarily implied that everyone who disagreed with the decision was not an expert. You obviously have no idea of what an actionable slander is and what the defenses to such a suit are. I am highly sensitized by training and experience to make no statement I am not prepared to prove and made no such error in this instance. I have your admission that there is no way to get from list triples to list tuples as well as your "if our nifty new feature breaks interop with MS Office that's Microsoft's problem" statement. If I wasn't certain I could persuade a court that those statements -- coupled with your telling evasions of the substantive issues involved -- prove intentional breaking of interoperability with MIcrosoft Office, So bring on your slander action. I'd start by moving for dismissal on grounds that slander applies only to verbal statements, not to written. That would force you to refile your lawsuit alleging a cause of action that applies to written statements such as libel. And your case would founder on my assertion of truth as my primary affirmative defense. Not to mention the fact that my lawyer would get to take your deposition under oath and thereby use the judicial process to force you to answer my questions that you have been ignoring from the outset. So go ahead and sue me if you want; but I can't promise you an enjoyable experience. I suppose I'd also have to throw in a countersuit for your actionable libel of me when you referred to me as paranoid. Paranoia is a psychosis. At least in the U.S., to publish a statement that someone has a mental illness is "defamation per se." All I would have to do is to prove that you made the publication, and then the burden shifts to you to prove the truth of your accusation. If you can't prove the truth of the accusation, I win damages. So maybe you'd like to share the factual basis for your diagnosis or retract the accusation? (The presence of a prompt retraction when requested eliminates general damages and limits me to the special damages I can prove, at least under Oregon law.) As to what I can prove in regard to what I said, let's just say that your putting my name out there in public is going to make it easier for Microsoft's lawyers to find me and take my deposition on the topic of what I know about what's been going on this TC and the associated backroom dealings like Sun's complaint to the OASIS membership staff. That isn't a huge problem for me because I firmly believe that the only sane way to go through a deposition or other court testimony is to tell the truth. I've been on the other end watching lots of witnesses as I dismantled their lies and mined their inconsistent statements (on the latter, in my considered opinion you've got some issues you are going to be very uncomfortable with if Microsoft compels your testimony in the DG Competition proceedings). And I knew when I made those statements that I might be compelled to prove them so I confined myself to what I can prove. Thomas, believe it or not, but I did not insult anyone. All I've done is to play back what people have done and said and described the reasonable inferences that can be drawn from that evidence. People who find themselves accused of acting improperly commonly react by feeling insulted. But what's usually really happening is purely emotional reaction to the surprise of being called to account for their actions. It's kind of a "I've done some things I shouldn't have but it is utterly wrong for someone to accuse me in public because I'm a good person; therefore the person accusing me is a bad person who is maligning my character" kind of thought process. Illogical, but who said emotions were logical? It's a normal psychological reaction. I have not maligned anyone's character. I have described behaviors, quoted statements, described demonstrable motives, and related the behaviors to recognized norms of behavior, such as the law. I was careful to delineate between what I can prove and what I suspect. What I have labeled as mere suspicions are for the vast majority inferences from demonstrable facts that a court would instruct a jury can properly be considered as evidence establishing the truth of the inferred facts, but that can be disregarded if they find a different reasonable inference more likely. I have approached the subject from a technical standpoint, as lawyers understand the term, meaning that I have applied principles of legal analysis to the facts as opposed to just making wild accusations as you suggest. (I will confess, however, that I couldn't pass up a bit of sarcasm when I encountered a few arguments that were simply too preposterous to deserve serious response, such as Michael's "just trust the experts" number.) It is discomfiting to be called to account for our actions. We didn't like it as children and we don't like it as adults. It's human nature. But one of the things I learned from my children -- and the practice of law -- is that there is a huge difference between challenging human behaviors and challenging people's characters. I think people on this TC have made mistakes. I do not think any less of them as persons. But I would be remiss in my ethical obligations to the millions of software users affected if I did not attempt to right was I perceive as wrong for their interests. I will remind that this TC does not act in a legal vacuum. It is preparing a standard intended for adoption as an International Standard in the sense of the Agreement on Technical Barriers to Trade. That treaty requires in Article 2 section 2.2 that national bodies "ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade." Reducing the agreed meaning of that phrase to its relevant essentials, the provision forbids the preparation, adoption, or application of standards that tilt the competitive playing field in the favor of any vendor. Maneuvering for competitive advantages in the design of the ODF standard is unlawful. Moreover, the treaty is concerned not only with improper motives but also with effects. Its plain language forbids standards that merely have "the effect of" tilting the competitive playing field. That is an objective standard. So we need not reach the issue of whether TC participants motives are improper. We simply need to determine whether the list amendment has a discriminatory **effect.*** I think the answer to that question is plain. The list amendment has the effect of preventing full fidelity interoperability with Microsoft Office being implemented by the Foundation. That effect means that Sun Microsystems will maintain its monopoly position in the market for ODF applications, unthreatened by the Foundation's plugin. And we have the word of Sun's agent, ECIS on the effects of non-interoperability on competition: >>> "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." http://www.e-c-i-s.org/inter/index.html <<< A compelling argument can be made that the list amendment has created an unnecessary obstacle to trade in the sense of the treaty. It breaks interoperability with MS Office via the Foundation's plug-in and thereby restrains competition. So as the situation stands, ODF 1.2 will be vulnerable to legal challenge at ISO, at the Word Trade Organization, and in every situation in which signatory governments consider adopting its as a technical regulation or -- per Article VI section 1 of the Agreement on Government Procurement -- as a government software procurement specification. So let's put people's motives on the back burner for the moment, but with an awareness that they could become relevant in any legal challenge in the WTO or in a multitude of proceedings in individual nations. Lets do as the Agreement on Technical Barriers to Trade requires and have a dialogue about the effects of the lists amendment on competition. And keep in mind that technical aspects are of secondary importance under that treaty. It is the effects on competition that the treaty commands us to use as our guiding light. Put another way, welcome to the world where diplomats, lawyers, economists, and market analysts play. (How many experts in those fields do we have on this TC, Michael? ;-) ) > So, I kindly suggest you stop your efforts and accept the majority vote. You're still wasting keystrokes and your valuable time instead of addressing the substantive issues I've raised. It would cost you a lot less time to just address those issues instead and we might begin to make some progress toward resolution. But keep building that record of evasions, Thomas. I can see the headline now: "KDE Developer Refuses to Discuss Whether His Proposal Adopted by the OASIS OpenDocument TC Will Break OOo, KWord Interoperability with Microsoft Office." Or maybe, "KDE, Sun Handed Victory to Microsoft in European Antitrust Proceeding." Think about how much more time and keystrokes those headlines would cost you. A good faith negotiation with me, Gary, and Florian would take far less of your time, I think. Nothing personal. Just cleaning up the the aftermath of your proposal. Best regards, Marbux
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