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Subject: Re: [oiic-formation-discuss] Standards and Antitrust

--- On Mon, 6/23/08, Andrew.Updegrove@gesmer.com <Andrew.Updegrove@gesmer.com> wrote:

> From: Andrew.Updegrove@gesmer.com <Andrew.Updegrove@gesmer.com>
> Subject: Re: [oiic-formation-discuss] Standards and Antitrust
> To: "Robert Weir" <robert_weir@us.ibm.com>, "oiic-formation-discuss" <oiic-formation-discuss@lists.oasis-open.org>
> Date: Monday, June 23, 2008, 8:55 AM
> This time I am speaking as OASIS's lawyer, and Rob is
> 100 percent right here.  Just as there are restrictions on
> creating a monopoly, there are restrictions on creating
> boycotts.  The Allied Tube case that Paul likes to cite is
> a leading case in this category.  In that case, the
> traditional metallic tube vendors sought to keep plastic
> tubing out of their standards, in order to maintain their
> dominence.
> Paul has overstated many things about antitrust laws, but
> here is one that you should take to heart:  Thou Shalt Not
> Create Any Standard (or other Deliverable) that is targeted
> to exclude a single vendor (whether it be Microsoft, or Red
> Hat, or IBM, or whoever).  Compete with a standard one of
> them is promoting, yes - that's competition.  Exclude
> them, no.
> The best way to stay on the right side of the law is never
> to advise any action against any single vendor, or allied
> vendors, by name.  Suggestions should always be justifiable
> by being the right decision for the marketplace, in general
> and directly.  "Increasing competition on the
> desktop" is fine, in contrast to "Tucking it to
> Microsoft.". It's important to understand the
> difference.
> Andy
> Sent by PDA
> ----- Original Message -----
> From: robert_weir
> Sent: 06/23/2008 08:25 AM AST
> To: oiic-formation-discuss@lists.oasis-open.org
> Subject: [oiic-formation-discuss] Standards and Antitrust
> We need to be very careful here.
> Quick background from a non lawyer.
> Adam Smith in his 1776  "The Wealth of Nations"
> has the memorable line:
> "People of the same trade seldom meet together, even
> for merriment and
> diversion, but the conversation ends in a conspiracy
> against the public,
> or in some contrivance to raise prices."
> That is the essence of  cartels and other anti-competitive
> business
> arrangements.  Various laws have been developed over the
> years to prevent
> and/or eliminate such practices.
> However, in order to form standards, which generally are
> pro-competitive
> and are to the public's benefit, competitors meet
> together and cooperate,
> within the limited sphere.  We will compete strongly in the
> implementations, but we cooperate (while at the same time
> representing as
> well our own business's interests) in creating the
> standards.  But the
> restriction is that we cannot discuss things like prices,
> market
> allocations, or other similar topics.  In particular I must
> call "foul"
> whenever anyone discusses the competitive position of a
> particular company
> and suggests that this list or the proposed TC take any
> action based on
> that competitive position.  We can't do that.  We
> can't even discuss that.
> Everyone should familiarize themselves with the following
> applicable OASIS
> policy:  http://www.oasis-open.org/who/antitrust-policy.php
> Thanks,
> -Rob
> jose lorenzo <hozelda@yahoo.com> wrote on 06/21/2008
> 02:14:10 PM:
> .
> .
> .
> >
> > I have no problem with you trying to tighten the
> language on ODF as
> > is and add whatever necessary fillers [ignoring all
> the details
> > about where would that take place, this TC, elsewhere,
> etc]. The
> > problem is in trying to change too many things, many
> of which are
> > nitpicks when you consider the big picture, that OO.o
> is open source
> > and that MSOffice is still an opaque monster and owns
> the market.
> >
> > That is a very serious problem. I believe, for
> establishing a
> > competitive market, anything that works against
> cutting Monopolysoft
> > down in size is aiding and abetting Monopolysoft and
> would be
> > illegal according to US antitrust law.
> >

I will try to be careful in any discussion. I should point out that ODF does not speak out against any vendor. Neither does Openoffice nor its generally available license(s) like the GPL.

The line Rob quoted DID go too far. I am glad I was called on it. If I had meant exactly what I wrote, I'd be advocating all sorts of nonsense like that Monopolysoft or their products be specifically mentioned in the standard in a negative sense.

It WAS sloppy writing and miscommunication on my part, for all I was trying to contrast were (a) actions that advanced a standard in a way that makes it difficult for Monopolysoft to exploit it (ie, makes it difficult for a monopolist to illegally leverage their dominant position) vs. putting forth a standard that is easy for Monopolysoft to use to their exclusive advantage based on the leveraging their existing market share. I was only speaking out against ILLEGAL actions that might be taken by Monopolysoft. 

[Why Monopolysoft, exclusively? They are in a unique position, so statements about a company in this unique position do not at this time apply to anyone else. This is one reason why I use the word Monopolysoft. Clearly Microsoft (or anyone else) cannot be Monopolysoft if they are not a monopoly. I consider the Monopolist's position to be the greatest obstacle to competition. Antitrust laws recognize that monopolists must be treated differently than other players. Marbux, attacking IBM and Sun using various language (with a former lawyer's care and understanding in most cases) with hardly a word mentioned about the real challenger to competition, seemed to me to be an unwise distraction.]

Marbux is correct that we need to tighten the language. At some point in time, any player, including Monopolysoft, can use the loopholes to have their apps define the standard de facto.. [..as is the case now with Monopolysoft's closed formats, which I still can't believe are still closed and have not been forced open by antitrust authorities as a precondition to them maintaining the ability to continue to sell their products -- we need some serious source code from Monopolysoft in order to interoperate with their existing documents fully; they should be following the example of Openoffice.org or at least approach it somewhat.]

Where I believe marbux is incorrect is in his insistence to give ODF a black eye by continually making accusations against ODF that would equally apply to many other standards, in particular, against young standards. The accusations against the main corporate backers of ODF also work to hurt ODF adoption. These action then help Monopolysoft maintain its hold on the market. [If anyone rereads the line Rob quoted, this is what I meant, for introduction of genuine competition has the inevitable effect of "cutting" any market controlling player "at the knees" so that they lose their monopoly status.]

Marbux may be completely sincere in his efforts. I just think he should be engaging the community more with technical arguments and be motivating them to follow the path he advocates.. perhaps leading to out of scope work (from pov of the to be formed TC) getting done outside a TC but in parallel to any work to be done by this or the main TC. This way multiple approaches move forward at once in a somewhat open manner. OASIS would be foolish to ignore any work that was of top quality. And if OASIS would ignore it, certainly there would be others that would be interested (eg, antitrust authorities, other standards orgs, FOSS projects...).

And just to be a little specific about what I think we should do, I advocate a "profiles" approach with many of the profiles relying on very tight constraints. Many users want their apps to aggressively filter out anything that might be an extension/lock-in. In the future, WHEN THEY CHOOSE TO UPGRADE, they can do so to another profile that is similarly aggressive but is a superset of the current one or at least knows how to map the old elements to the new ones. .. Other profiles that are not nearly as constraining are obviously desired by other users who will want to work at the cutting edge at all times.

If I am still out of line with the discussion carried on in this specific email, please point it out once again. Sometimes it takes a few swings of the bat to learn how to do something appropriately.


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