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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

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

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),

"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

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