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Subject: RE: [opendocument-users] New question (2): Reference implementation?

Thanks, Paul.  That helps me better understand your reasoning.  Thanks especially for the citations, and for taking the time to respond in detail.   I'm not a decision-maker, just a lawyer, always looking for knowledge to better advise my client.  I was just asking for personal understanding.  Thanks, John


John C. Cody, Associate Counsel
Office of the NYS Chief Information Officer/NYS Office for Technology
[The statements expressed herein are my own and do not necessarily reflect the policies, practices or opinions of my employer or anyone else.  Nothing herein constitutes legal advice - if you need legal advice, please consult your own attorney.]

-----Original Message-----
From: marbux [mailto:marbux@gmail.com]
Sent: Monday, May 18, 2009 9:39 PM
To: Cody, John (OFT)
Cc: opendocument-users@lists.oasis-open.org
Subject: Re: [opendocument-users] New question (2): Reference implementation?

On Mon, May 18, 2009 at 9:12 AM, Cody, John (OFT) <John.Cody@oft.state.ny.us> wrote:
> Paul:
> Let's try this:
> 1.  You said you are not aware of a legal definition of "reference implementation."  Then how can "governing law" forbid them, as you say, if it doesn't even define them?

That's because without a legal definition of the term, the canons of statutory construction teach us to use the common and ordinary meanings of terms unless to do so would create a conflict with other provisions of the relevant law or produce an absurd result. In this instance, what constitutes a "reference implementation" is fairly well understood. I refer you to Rick Jelliffe's excellent post and to section 3.2.2 on this Gessmer & Updegrove page.

Perhaps I unintentionally erected a straw man here, but considering your position and employment, I presumed that your reason for asking was that you were considering the incorporation by reference of OpenOffice.org as part of a formal or informal rulemaking procedure, i.e., in a state SOA technical regulation or a procurement technical specification.. Did I get that wrong?

> 2.  You base your international trade legal argument on portions of the ATBT discussing "technical regulations."  But "technical regulation" is a defined term, and it is defined as something that is *mandatory.*  So it would seem to have no applicability to for example an appreciation of OO.org as a de facto reference implementation for all practical purposes.

I suspect that you missed the significance of the fact that the same specification must concurrently serve under the ATBT as both an international standard and a technical regulation, and under the AGP as a government procurement technical specification. The legal effect of the document, e.g., its mandatory or voluntary nature, may vary in those three contexts, but the specification itself must perforce be identical in all three contexts.

Therefore, the relevant requirements for technical regulations and procurement technical specifications provide definition for the term, "international standard" *as to such a document's content.* So the Asbestos Panel's ruling reads directly on what content must appear in an international standard and how it must be phrased.

On "an appreciation of OO.org as a de facto reference implementation for all practical purposes," I am unsure of what you mean. E.g., if you had in mind specifying in a procurement tender that the implementations of ODF you seek bids on must be OpenOffice.org or implementations with equivalent support for ODF, then you collide with the AGP requirements I discussed in my last post. If you had in mind specifying OOo or implementations with equivalent ODF support as part of New York State's SOA, then you collide with the requirements for technical regulations discussed in my last post.

Kind of the bottom line here, I think, is that de facto standards and de jure standards don't mix legally. If one wants a de facto standard to become a de jure standard, then it must go through the de jure standardization process and must fulfill the requirements for a de jure standard.

I realize that you used the term "de facto reference implementation"
rather than "de facto standards."  But you also coupled that term with "for all practical purposes," which leaves me wondering whether you intended thereby to encompass New York State's procurement tenders and technical regulations with the latter term.

> 3.  Finally, using a missing definition to a term which is applicable, and an existent definition to a term which isn't, you draw conclusions as to the illegality of ODF as an international standard.
> - Are there any analyses which review these issues and come to the same conclusion you do, Paul, that you can point me to?
> - Are there any analyses which review these issues and come to a different conclusion you do, Paul, that you can point me to?

None that I can point you to. When I've raised such issues in the past in regard to ODF, all I've encountered are arguments that evade rather than addressing the merits of the legal analyses. I could point you to any number of articles that challenge OOXML on grounds of being
vendor- and application-specific, which is very similar to the OOo reference implementation issue.  See e.g., <http://www.sutor.com/newsite/blog-open/?p=1145> and <http://www.sutor.com/newsite/blog-open/?p=1260>, the latter of which is a compressed "grandmother's" view of the legal arguments IBM is making through ECIS in the pending antitrust investigation of Microsoft Office in the E.U. The linked articles are compressed dissertations on the relevant antitrust law sans citations.

But IBM et al have been decidedly uninterested in applying the same legal principles to ODF and OpenOffice.org, even uninterested in discussing the subject.

The ATBT and AGP have been far more ignored than paid heed, particularly in the IT sector. At the same time, one can't do a really thorough job of researching international law without traveling to New York City and Washington, D.C. My traveling days are done. I've been very thorough as to the materials publicly available on the internet and the University of Oregon Law Library. But I could point you to any number of related data gaps.

> - Are there any legal decisions squarely on all fours, e.g. determining use of a "reference implementation" to have rendered a standard illegal, that you can point me to?

Nope. Thus far we have precisely two pronouncements on the ATBT by the WTO Appellate Panel. Neither is on all fours with the issue you raised unless you contemplate incorporating OOo by reference into a NYS technical regulation. In that context, the Asbestos Panel's ruling couldn't be reconciled with the action contemplated. And because of the requirements that international standards be concurrently used both as as technical regulations and government procurement specifications, I'd argue that the same Panel decision is very nearly on all fours in regard to procurement specifications.

> I'm not saying you're wrong (I don't have enough experience with international trade law or standards law to say definitively).  All I am saying is the legal conclusion you thus far have provided while presented by you as rock-solid reads to me, with my skeptical lawyer's eye, to be based on an incredibly attenuated string of support much of which at first blush doesn't even seem relevant to the question I asked.

It might help to realize that the relevant treaties are largely competition law, with implementation and enforcement delegated to the Member nations except when disputes arise between member nations.  And if you look at ATBT Article 15 section 15.2, you'll see that Member nations can implement via existing laws, new laws, or combinations thereof. (You'll probably find an equivalent provision in the AGP but I haven't looked.)

In that regard, the prohibitions against standards that create unnecessary obstacles to international trade are largely a restatement of antitrust law in the U.S. and E.U. that regulate industry standards development consortia like OASIS and its members. In the U.S., such bodies are primarily regulated under section 1 of the Sherman Act, which prohibits unreasonable conspiracies in restraint of trade, in combination with provisions of the Clayton Act that provide DoJ with civil enforcement authority and private parties with a right of action. See e.g., Allied Tube & Conduit v. Indian Head, Inc. 486 U.S.
492 (1988), <http://laws.findlaw.com/us/486/492.html> ("trade and standard-setting associations routinely treated as continuing conspiracies of their members"). This leads into a rather enormous body of antitrust case law dealing with collaborations among competitors in horizontal and vertical markets.

So while the connection between the ATBT and antitrust law might appear at first blush to be attenuated, it isn't. The U.S. fulfills many of its ATBT obligations under antitrust law. And I suspect your grandmother might miss that even if explained. :-)

I'm sensitive to how daunting and confusing it can be to wade into new areas of the law. Been there and done that many times over. :-) But it would help me to be less diffuse if you're in a position to disclose what specific hypothesized action you are researching in regard to OOo.

> I'm curious what the IBM standards lawyers, Sun standards lawyers, Adobe standards lawyers etc. (surely they have them) Gesmer standards law firm, etc. think of this?

Haven't seen anything by any of the above on the particular subject at hand that cites any legal authority but I read far less than everything they write. You might try Updegrove's site search engine.
<http://consortiuminfo.org/essentialguide/>. His clients include IBM, Sun, and OASIS.

Can't say I endorse any of them as a source of reliable information on related subjects. You'll undoubtedly learn that the opinion is mutual if you talk with them. My relationship with them has been largely adversarial and I've had issues with their choice of particular tactics.

Best regards,

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

Universal Interoperability Council

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