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Subject: Re: [oiic-formation-discuss] Which is definitive odf?

Before I continue, I'd like to draw attention to

--- On Tue, 6/17/08, marbux <marbux@gmail.com> wrote:

> From: marbux <marbux@gmail.com>
> Subject: Re: [oiic-formation-discuss] Which is definitive odf?
> To: "Shawn" <sgrover@open2space.com>
> Cc: oiic-formation-discuss@lists.oasis-open.org
> Date: Tuesday, June 17, 2008, 5:40 AM
> On Mon, Jun 16, 2008 at 12:26 PM, Shawn
> <sgrover@open2space.com> wrote:
> > I see a few problems with this statement.
> > - you are introducing legal speak into a primarily
> technical discussion
> > again.
> Standardization activities at OASIS are substantially
> constrained by the law.


> No. Law constrains what information can be exchanged on
> this list as
> well as what gets into the charter. Moreover, if the goal
> is not a
> legal draft Charter, then much work will be wasted.

Law governs everything. I think everyone or most everyone on this list will agree.

> ...At the present time, ODF is
> not a
> lawful standard.

What is ODF? Which laws are being violated? How?

> It is grossly under-specified both
> technically and
> legally.

You are being very vague here. To which document are you referring? How is it technically under-specified? How is it legally under-specified?

> The pertinent question is whether this proposed
> TC's work
> will be lawful.

I sure hope so. OASIS has lawyers that will look after it so that the finished products are up to spec so to speak. Or so I hope. If not, I'm sure the work accomplished will still be very useful under other contexts. I'm sure I'll find the work useful.

BTW, marbux, if you ever find this discussion or anything else illegal, I hope you take appropriate action as you see fit and not engage in illegal acts yourself.

Since my understanding of the many laws that may apply is extremely microscopic, I will rely on common sense. I'd like to think I could trust what you are saying, but I have to say that I do question your motives. Please refer to the links at the top of this email.

> Then consult with competent legal counsel first. To reduce
> legal fees,
> I recommend calling to your attorney's attention the
> case WTDS 135 EC
> - Asbestos (March 12, 2001)
> <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds135_e.htm>
> paragraphs 66-70 (in the HTML version, which has numbered
> paragraphs
> but lacks text attributes included in the DOC version,
> which includes
> no paragraph numbers) (The same law applies to standards
> work at
> OASIS, through other sections of the Agreement on Technical
> Barriers
> to Trade. There is no version of the ODF specification that
> has
> reached the threshold requirements of legality.

What "threshold requirements of legality" are you talking about?

I read paragraphs 66-70 [click on Appellate Body Report; you'll get one entry, WT/DS135/AB/R, then click on the html preview and look for "66."]

That section describes "technical regulation". Could you please explain what that term has to do with this discussion? Could you please describe what "Annex 1.1 of the TBT Agreement" has to do with this discussion?

> No. I am insisting that the choices made by this formation
> meeting
> must be lawful.

I think we would all like to follow the law as much as possible. Doing so generally makes our lives and the lives of others better off long term.

> One of the many applicable legal
> requirement is that
> standards work must be responsive to market requirements.

Are you accusing me of violating the law? Are you accusing anyone in particular of violating the law? Whom and which and how precisely?

I think insofar as I am engaging in standards work, that I am being responsive to market requirements. That is why I find it extremely important to try and close loopholes that can be used to subvert any standard that may in part arise out of this discussion.

It's for this reason that I think you should hold back on your CDRF proposals, as that makes it easy for the current dominant market player in what I consider to be a very important market to take advantage of what may arise out of the work we are doing here in order to more easily violate various antitrust laws.

Not having significant legal experience unlike what you have stated wrt yourself, I must say that, for the sorts of things I write here, I am relying on my common sense and what I have been able to reason from the various material I have come across (or at least my recollection of them). This was a mini-disclaimer so that you realize that virtually everything I say should be taken as nothing more than my opinion. And I do use colorful or less than completely precise language frequently enough.

> There is a
> market requirement for implementations of ODF profiles that
> governments may lawfully use. For that market, only
> profiles of the
> ISO/IEC:26300 international standard may be used lawfully
> but
> non-profiled implementations of the ISO/IEC:26300 standard
> are
> unlawful.

How could you call ODF illegal and then say ISO/IEC:26300 is lawful? If you are playing word games with us, I really hope you stop or anything useful you might say becomes more likely to be ignored without being given much consideration by most who might normally be paying attention.

Not only do I not like to waste time if it's avoidable, but I have only moderate patience to engage individuals who are purposely attempting to waste my time.

I'd now like to once again remind anyone reading of the two links posted at the top of this email.

> Ergo, responsiveness to market requirements in the market
> for
> government use of ODF implementations forces the choice of
> profiling
> ISO/IEC:26300 to respond to market requirements in that
> market. Any
> profile and conformance test development work on any other
> version of
> ODF responds only to the market requirements of
> non-governmental
> entities.
> Given that the government market is the largest definable
> market for
> ODF implementations and that government choices of
> standards drive
> other markets to standardize around government standards,
> this TC's
> work is most responsive to market requirements if it
> chooses
> ISO/IEC:26300 as the defining standard for its work.

Now it's not about illegality or a failure to respond to market requirements, but simply that in your opinion this work we might be doing might not be the "most responsive" to market requirements because currently it only applies to the private sector.

Well, I am glad you have come around to mostly accepting our discussions. Perhaps you will feel better if you wait a bit since in time I think our discussions here will in fact help improve standards that will be legally usable by governments. I say this in anticipation of greater versions than version 1.0 of ODF being accepted by ISO. In any case, targeting ODF 1.1 and 1.2 will be useful should things not go as planned and we have to port to version 1.0.

> This is only one example of how law often simplifies
> technical
> choices.

Thanks, but I think most people were already thinking of targeting 1.0, 1.1., or 1.2 instead of version 4.8 which is not due for over a decade.

For anyone planning on targeting version 4.8 of ODF, please consider marbux' arguments. Your efforts might not be sensitive to market needs and hence some might say you would be engaging in illegal actions.

> The IT
> industry is still a very young industry as these things go
> and is just
> beginning to realize that there are legal constraints on
> its behavior.

Do you seriously believe that "the IT industry is ... just beginning to realize that there are legal constraints on its behavior?"

I think it's fair to say that you have, like the rest of us do many times, exaggerated on this mailing list. Since not technically accurate. Some would say you have been lying.

I won't call it lying because I know that trying to communicate the best possible sometimes leads to us taking some risks in which words we use and in what we otherwise do. If we didn't take these risks, then we would REALLY be failing the market.

> Standards are for
> markets that
> have stabilized enough that there is a need for an agreed
> standard
> that ends feature wars.

Is this an opinion or are you trying to pass something else off as a fact when in fact it is not? If you think it is, please start by defining "stabilized" "need" "agreed" "standard" "feature wars" and the end of one such feature war. Go ahead and define "markets" if you want and then explain how you came to this conclusion.

If you are just giving an opinion, I would suggest that you make it clear when you are giving an opinion vs. what you think would be considered a fact by a court of law. This makes it easier for us to know what portions of what you are saying to take in what context. Normally, I don't ask this of people, but constant references to legal statute and legal consequences make me a little nervous to read your emails.

> Standards are about stability, not about innovation. They
> allow market
> participants to realign R&D investments to the means of
> lower
> production costs and competition within a market defined by
> the
> standard. Competition law allows voluntary standards only
> because
> customers benefit from lower prices and the
> substitutability of
> products.

See earlier comment.

> The major reason ODF and OOXML are unlawful standards is
> that they do
> not define all characteristics of an identifable product in
> mandatory
> terms. Both standards are so outside that law that they
> grant
> conformant status to custom application-specific extensions
> to the
> specifications, the waging of feature wars within the
> context of a
> standards that are standards in name only.  In the  context
> of
> document format standards, the mandatory substitutability
> of
> conforming goods translates into a requirement of
> specifying all
> conformance requirements essential to achieve
> interoperability.
> Interoperability is not a mere feature of a standard; it is
> the
> threshold legal requirement for a lawful standard..

marbux, have you considered that maybe the laws you think apply to software do not in fact apply to software or not in the same way as they apply to tangible products.

Are you aware of efforts to sue ISO for having passed 26300?

I do appreciate honest opinions not meant to delay. The issue here is that while I may agree with some of what you may say, your efforts seem mostly counter-productive. [I could be wrong, of course.] You could be wrong in any number of ways. Instead of having people waste time arguing with you or leave on account of incorrect information you provide, don't you think it might be best if you take up these issues with OASIS and not with "staff"? I think there are other mailing lists and means of communicating with OASIS' lawyers directly that will be more effective than through this list.

I also think that your efforts will be most valuable further on in this process. I hardly think that the sorts of discussions we are having would be had in any much more efficient matter if we took to heart what you are saying. A greater risk is that we will get less accomplished if we listen too closely. Are you simply suggesting that we should stop communicating on ways to help improve ODF if we disagree with you? [Yes, I know, consult a lawyer.]

I don't think you have the best interests of the majority of the market to get something most useful to them and legal passed.

You seem to be of the opinion that 26300 is legal but "ODF" is illegal. You then appear to think that the situation is hopeless because the market has not stabilized.

What do you suggest we do as developers to maximize our ability to contribute? I would be interested to know what your honest opinion is to this last question.

> The driving legal force is market requirements, not
> developer requirements.

So why are you talking to developers?

Let me close by again reminding the reader to consider taking a peek at the two links at the top.


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