Re: [oiic-formation-discuss] Level of detail needed in a TC Charter

[marbux <marbux@gmail.com>]

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>