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Subject: Re: [oiic-formation-discuss] MARBUX POINT OF ORDER, OBJECTION, AND SUGGESTIONS No. 1

On Sun, Jun 15, 2008 at 2:59 AM, Shawn <sgrover@open2space.com> wrote:
> marbux wrote:
> Didn't say you were not being polite.  Only intended to state that we should
> all try to be civil in our discussions.  And realize that the typed word is
> completely different than the spoken word.  Care needs to be given to
> hopefully avoid issues that body language or tone would normally have taken
> care of.

Having spent decades writing legal briefs designed to persuade judges,
I am very much aware of the tone I used. I was not speaking to people
who do not understand precisely the information II was conveying or
they would have already asked me to explain in more detail. I was
speaking to Rob and Miss Jones and to to the record of this meeting,
for example, and not to you when I raised the legal issues. I am not
here to be loved. I am advocating a position on interoperability with
every sign that it will be ignored in favor of an unlawful outcome.
When a lawer is in that procedural position, one builds a record that
the guy or gal who made the decision was put on notice of the issues,
had a timely  opportunity to correct the error and decides later what
to do about it, such as taking issues to a court of law or (my favored
forum these days) the court of public opinion.

> Difference of opinion.  For me, telling someone they are acting illegally,
> in the manner you have, is akin to saying "do it my way, or I will have you
> charged".  Which is a threat.  Which is counter productive to a healthy
> discussion.  However, making the statement "this act is illegal" is slightly
> different and doesn't seem to threaten as much. But admittedly I have not
> had the luxury (or need) to deal with lawyers often.

Lawyers do things differently. I retired and no longer have a legal
practice, and I am no longer licensed to practice law. But that does
not mean that I do not still have a lawyer's sensibilities about when
to persuade and when to object. I also happen to be intimately
familiar with the law in this area and with just how far outside the
law the OpenDocument "standard" and the processes being used in this
meeting are.

I investigated and wrote the article for Groklaw that turned the ODF
v. Microsoft XML article into a global issue, sparkplugged and
co-edited the EOOXML Objections document published on Groklaw that
turned the OOXML issue at ISO/IEC/JTC 1 into a battle, and I have been
worked with with markup languages since the days when the original
markup language was still hand-written, during my prior career as a
journeyman newspaper typographer. I was there and working with it when
the computer industry embraced and extended the first digital language
that included code for presentation purposes, the Teletypesetter
telegraphy standard first introduced in 1928. I've watched the
resulting vendor lock-in game ever since.

I have been intensively studying the law governing interoperability
and the failings of ODF and OOXML in that regard for several years and
I have deeply investigated what needs to happen to turn both of them
into real standards designed for interoperability. You may have fallen
victim to the myth that ODF is designed for interoperability. So did
I, at the beginning of my investigation. But Rob and Miss Jones are
both well aware of the depth of knowledge behind my words. The issues
I raise have previously been raised and extensively discussed with my
part of the discussion fully referenced and linked. I am not speaking
about things Rob and Miss Jones are not aware of.

> I'll leave the interpretation of the law to you then.  But might I say that
> YOUR laws are not necessarily MY laws.  I believe you and I live in
> different nations.  There may be similarities and international law is still
> in the picture somewhere, but I'll refer to local lawyers if/when needed.  I
> can agree with some of your points above.  But we're only here to discuss
> drafting a charter.  I believe your issues belong in the next phase of this
> group's life - if it proceeds that far.

I'm in the U.S., in Oregon. But this is a standardization activity
being undertaken within an organization based in the U.S., so U.S. law
applies. If you are in the European Union, the counterpart to the law
I discuss is Article 81 of the Treaty Establishing the European Union.
It carries no criminal penalties that I know of, but its treatment of
"agreements among undertakings" is very similar to case law decided
under the U.S. Sherman Act.

As to the international law, the Agreement on Technical Barriers to
Trade is the applicable law and it also applies to all standards
activities within the territories of member nations, both governmental
and non-governmental. Its prohibition against preparation, adoption,
or implementation of standards and technical regulations with a view
to or with the effect of creating unnecessary obstacles to
international trade is a synthesis of Sherman Act section 1 case law
governing restraints on trade and Article 81 of the European Treaty
mentioned above.

If you would like to read a compact restatement of the applicable
international law in regard to interoperability my draft Universally
Accessible and Interoperable Specification is intended to become a
candidate successor to the various definitions of an "open standard"
out and about that have conflicts with international law. It is
heavily footnoted with commentary and citations. I caution, however,
that it is still a draft.

> Again, this can be interpreted as threatening behavior/statements.  And kind
> of meaningless.  This is a public list isn't it? Unmoderated, right?  Every
> single one of us has a full archive of the messages posted to this list.
>  Not to mention the public list archives.

I have made it clear that my pursuit of the issues will be in the
court of public opinion, not in a court of law. I apologize for
throwing in a bit of legal jargon that led you to misunderstand
something I  said. "Building a record" is legal slang for the
*process* of making a record that issues were discussed and decided.
The "record" referred to originally was the record of a court case but
has since been extended to less formal proceedings. Lawyers must
always be concerned not only with what the judge or jury believes, but
also with ensuring that a clear record is available for review by an
appellate court. So "building a record" refers to the process of
creating a record for a subsequent proceeding, if one occurs. A
roughly equivalent term is "building a file." Lawyers on opposing
sides of the case sometimes refer to "building a file together." We
are paper-chasers. A trustworthy record of what a lawyer did is
fundamental to the practice of law.

> The mess came about because because there is more than one way to do things.
>  And there was nothing wrong with that.

Wrong. We speak of two "standards" that are standards in name only.
Interoperability is a threshold legal (and market) requirement in IT
standards work. It is illegal under the Agreement on Technical
Barriers to Trade for technical standards to be prepared, adopted, or
implemented if all product characteristics are not specified in
mandatory terms and conforming products must be substitutable in the
market. In the case of file formats in the IT sector, substitutability
requires interoperability. The fact that *different* IT systems cannot
interoperate using OOXML means it is not a legal standard. The fact
that *different* IT systems cannot interoperate using ODF means it is
not a legal standard. Both create "unnecessary obstacles to
international trade" within the meaning of the Agreement on Technical
Barriers to Trade.

And neither of those standards comply with the JTC 1 Directives
requirement that international standards must "clearly and
unambiguously specify the conformity requirements essential to achieve
the interoperability."
see also <http://isotc.iso.org/livelink/livelink.exe/fetch/2000/2489/186491/186605/Chapter1.html#1.1>
(requiring the consent of the Secretaries-General to deviate from
requirements and identifying interoperability, portability, and
cultural and linguistic adaptability as "Core Common Characteristics"
of international standards.

ODF and OOXML are both interoperability messes because big vendors
abused the standards development process and ignored both the law and
the Directives for unlawful competitive advantage.

 This list is supposed to be focused
> on ODF.  We don't care what OOXML or other protocols are doing, other than
> making sure they have access to the information for ODF when needed.

A Zip file containing the ODF XML name space and all other content
marked up in OOXML is a conformant ODF document. Moreover, Microsoft
just joined the ODF TC to work on ODF v. 1.2. If you are not concerned
with the OOXML standard, you have your eyes closed because DG
Competition has been cracking its whip to persuade Microsoft to
implement ODF, but ODF was designed to be incompatible with Microsoft
Office.  The odds that both ODF and OOXML will not be changed
substantially to enable conversions are about zilch.

My concern is whether anyone other than the big vendors gets their
interop needs fulfilled.

> this is still fair, because anyone can freely read the ODF standards, and
> any output from this group, and choose to implement it or not.

Sure. But no one can create an implementation of ODF capable of
interoperating with another without cloning an existing
implementation. ODF even bestows conformant status on app-specific
extensions to the standard and OOo 2.x alone generates some 150
app-specific extensions whose functionality is documented nowhere in
public. For example, see
lines 169-211 (OpenOffice.org source code app-specific document
setting extensions to ODF for compatibility with the StarOffice/OOo
legacy word processing format.)  Do you want to spend enough time with
the OOo source code to figure out the functionality invoked by those
extensions so you can add the same features to your app and then use
the same markup?

By the way, the granting of conformant status to app-specific
extensions is a blatant violation of the Agreement on Technical
Barriers to Trade. But absolutely essential to folks who want to play
vendor lock-in and embrace and extend games while still claiming

Nobody is
> colluding to force a market position. We (all of us on this list) are
> colluding to define how to determine if an application implements ODF
> properly or not.  Other protocols are a) out of scope, and b) out of our
> control anyways.  And with that in mind, this whole thread is pretty much
> off topic. :)

Wrong. Like I said above, one line of ODF markup in a Zip file and the
rest of the file contents marked up in ODF is a conformant ODF
document. What are you going to test for conformance? The only other
conformance requirement of note is the requirement that documents
validate against the ODF schema *after* all app-specific extensions
are removed. Just about every other cotton-picking requirement in the
spec is negated by this sentence from the conformance section:

"There are no rules regarding the elements and attributes that
actually have to be supported by conforming applications, except that
applications *should* not use foreign elements and attributes
[app-specific extensions] for features defined in the OpenDocument

(Under the relevant definitions incorporporated by reference into the
ODF standard, "should" is not a conformance requirement, merely a
recommendation. An app can use app-specific extensions for features
defined in the standard and still be conformant.)

You simply have no concept of just how bad the interop mess is. And
Rob has already rejected the only proposal offered so far that I am
aware of to require that this TC actually achieve interoperability of
ODF implementations. You are talking about your feelings, not reality.

> I suspected there would be sharks in the water when I joined up.  I think
> I'm getting a feel for who the sharks are.  :)  hehe.. But perhaps that was
> a poor choice of words?  Isn't the shark normally associated with lawyers?
>  :) Sorry, couldn't resist the humor. :)

:-) I love lawyer jokes myself. Contact me off list if you want to
hear my favorite. I can't repeat it in polite company. But never
believe for a moment that there aren't more sharks in these waters.

Best regards,

Paul E. Merrell, J.D. (Marbux)

Universal Interoperability Council

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