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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

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

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


"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."



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,


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