Re: Legal concern: Are we getting to close ot a "division of markets" conversation?

[Simon Phipps <si...@webmink.com>]

On Mon, Jun 6, 2011 at 2:08 AM, <ro...@us.ibm.com> wrote:

> Simon Phipps <si...@webmink.com> wrote on 06/05/2011 08:38:08 PM:
> >
> > >
> > > The people who will only contribute to a copyleft license (and I know
> a few
> > > OO contributors like that) will not come over this world .. so to that
> > > extent this is a community fork and we cannot do brand sharing as
> that'll
> > > confuse end-users.
> > >
> >
> > I still think that's open for discussion. To my eyes it still makes a
> lot of
> > sense to have Apache host the parts IBM (and maybe others, although
> their
> > existence is exaggerated) need for their proprietary products, and then
> have
> > TDF maintain a consumer end-user deliverable downstream as well.
> >
>
> I think it would be great for TDF have an end-user downstream deliverable.
>  It would be great if anyone open source project wants to do that.  It
> would be great if a private company does this.  It would be good of a
> government wants to do this.  It would be great if multiple parties wanted
> to do this together.  It would be great it multiple parties wanted to do
> this separately.
>
> But I am very very very concerned that this conversation is starting to
> cross over into a "division of market" conversation, which has stiff
> penalties under US and international competition law.  Open source work,
> like standards, is work done voluntarily among competitors in the market.
> There are some things we must not talk about, especially things where
> competitors may be seen as arranging to reduce competition.  We need to
> steer the conversation far from this.
>
> http://en.wikipedia.org/wiki/Dividing_territories
>
>
We are discussing how the OpenOffice.org community (which as has been
explained has two different open source projects in addition to a variety of
downstream commercial consumers of the open source code) could structure its
operations.

S.

Re: Legal concern: Are we getting to close ot a "division of markets" conversation?

[Phillip Rhodes <mo...@gmail.com>]

IANAL, but since neither the ASF nor the TDF have any authority to compel
their
members to behave in any certain way, and since the ASF is technically made
up
exclusively of individuals (as I understand it) this seems way off base to
me.  This
isn't IBM and Novell discussing dividing up a market, unless the respective
employees
of IBM / Oracle / Novell / Whoever are speaking in some official capacity
for their
respective employers here.   This is a discussion of two groups, made up of
a
potentially overlapping set of volunteer members, discussing how best to use
available resources to do what's best for the community.

If that's illegal, the system has a problem and should be scrapped.


Phil

On Sun, Jun 5, 2011 at 9:56 PM, <ro...@us.ibm.com> wrote:

> Simon Phipps <si...@webmink.com> wrote on 06/05/2011 09:42:14 PM:
>
> > From: Simon Phipps <si...@webmink.com>
> > To: general@incubator.apache.org
> > Date: 06/05/2011 09:43 PM
> > Subject: Re: Legal concern: Are we getting to close ot a "division
> > of markets" conversation?
> >
> > On Mon, Jun 6, 2011 at 2:29 AM, <ro...@us.ibm.com> wrote:
> >
> > > > >
> > > > > But I am very very very concerned that this conversation is
> starting
> > > to
> > > > > cross over into a "division of market" conversation, which has
> stiff
> > > > > penalties under US and international competition law.  Open source
> > > work,
> > > > > like standards, is work done voluntarily among competitors in the
> > > market.
> > > > > There are some things we must not talk about, especially things
> where
> > > > > competitors may be seen as arranging to reduce competition.  We
> need
> > > to
> > > > > steer the conversation far from this.
> > > > >
> > > > > http://en.wikipedia.org/wiki/Dividing_territories
> > > > >
> > > > >
> > > > We are discussing how the OpenOffice.org community (which as has
> been
> > > > explained has two different open source projects in addition to a
> > > variety of
> > > > downstream commercial consumers of the open source code) could
> structure
> > > its
> > > > operations.
> > > >
> > >
> > > Simon, in several posts I heard you suggest what sounded to me like a
> > > compromise that would reserve end user supported versions for TDF/LO,
> > > while Apache would exclude itself from that market and pursue other
> > > options.  You put that into the wiki at one point, using the workd
> > > "complementary" to describe the division. You've suggested that Apache
> not
> > > try to get involved in end-user software, especially where it would
> > > compete with TDF/LO.   If I misunderstood you, I apologize.  But if
> you
> > > are suggesting anything like that, I think that is crossing the line.
> > >
> > >
> > "Exclude itself from the market" is extraordinary language to use Rob.
> You
> > seem to view LibreOffice as a "competitor", as if this were competition
> > between IBM and Novell or something. It is not - it is the
> OpenOffice.Org
> > community in exile, a stakeholder in the future of the project, a
> resource
> > within the community.
> >
> > The "art of the possible" here is about exploring ways to make things
> work
> > for the open source community, nothing to do with competitors in
> markets.
> > This is not a standards community, nor is it a 501(c)6 like Eclipse.
> >
> > By the way, I don't work for Sun any more.
> >
> > S.
>
> Simon, you wrote recently in an article called "Open Source Critical To
> Competition Say Regulators", about the FTC/DOJ patent review of the Novell
> acquisition:
>
> "open source is a crucial market force, ensuring strong competition, and
> as such deserves regulatory recognition and protection"
>
>
> http://blogs.computerworlduk.com/simon-says/2011/04/open-source-critical-to-competition/index.htm
>
> That cuts both ways.  Open source is part of the competition.   Briefs in
> that case as well as the decision support that view.  There are limits to
> what competitors can do to divide markets among themselves.  IANL, of
> course, but this smells very bad, and I suggest we don't broach the topic
> again, unless cleared by ASF Legal Affairs.  I myself will withdraw from
> this list if the topic comes up again, pending review by IBM Legal.
>
> -Rob
>
>
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>

Re: Legal concern: Are we getting to close ot a "division of markets" conversation?

[Andreas Kuckartz <A....@ping.de>]

Am 06.06.2011 03:56, schrieb robert_weir@us.ibm.com:
> There are limits to what competitors can do to divide markets among
themselves.  IANL, of
> course, but this smells very bad, and I suggest we don't broach the topic
> again, unless cleared by ASF Legal Affairs.  I myself will withdraw from
> this list if the topic comes up again, pending review by IBM Legal.

In that case maybe it would be a good idea to ask IBM Legal now and let
those know about the result who will vote about the incubation proposal,
because your mail suggests that people working for IBM will potentially
sabotage reasonable collaboration with TDF / LO during incubation.

Cheers,
Andreas


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Re: Legal concern: Are we getting to close ot a "division of markets" conversation?

[ro...@us.ibm.com]

Simon Phipps <si...@webmink.com> wrote on 06/05/2011 09:42:14 PM:

> From: Simon Phipps <si...@webmink.com>
> To: general@incubator.apache.org
> Date: 06/05/2011 09:43 PM
> Subject: Re: Legal concern: Are we getting to close ot a "division 
> of markets" conversation?
> 
> On Mon, Jun 6, 2011 at 2:29 AM, <ro...@us.ibm.com> wrote:
> 
> > > >
> > > > But I am very very very concerned that this conversation is 
starting
> > to
> > > > cross over into a "division of market" conversation, which has 
stiff
> > > > penalties under US and international competition law.  Open source
> > work,
> > > > like standards, is work done voluntarily among competitors in the
> > market.
> > > > There are some things we must not talk about, especially things 
where
> > > > competitors may be seen as arranging to reduce competition.  We 
need
> > to
> > > > steer the conversation far from this.
> > > >
> > > > http://en.wikipedia.org/wiki/Dividing_territories
> > > >
> > > >
> > > We are discussing how the OpenOffice.org community (which as has 
been
> > > explained has two different open source projects in addition to a
> > variety of
> > > downstream commercial consumers of the open source code) could 
structure
> > its
> > > operations.
> > >
> >
> > Simon, in several posts I heard you suggest what sounded to me like a
> > compromise that would reserve end user supported versions for TDF/LO,
> > while Apache would exclude itself from that market and pursue other
> > options.  You put that into the wiki at one point, using the workd
> > "complementary" to describe the division. You've suggested that Apache 
not
> > try to get involved in end-user software, especially where it would
> > compete with TDF/LO.   If I misunderstood you, I apologize.  But if 
you
> > are suggesting anything like that, I think that is crossing the line.
> >
> >
> "Exclude itself from the market" is extraordinary language to use Rob. 
You
> seem to view LibreOffice as a "competitor", as if this were competition
> between IBM and Novell or something. It is not - it is the 
OpenOffice.Org
> community in exile, a stakeholder in the future of the project, a 
resource
> within the community.
> 
> The "art of the possible" here is about exploring ways to make things 
work
> for the open source community, nothing to do with competitors in 
markets.
> This is not a standards community, nor is it a 501(c)6 like Eclipse.
> 
> By the way, I don't work for Sun any more.
> 
> S.

Simon, you wrote recently in an article called "Open Source Critical To 
Competition Say Regulators", about the FTC/DOJ patent review of the Novell 
acquisition:

"open source is a crucial market force, ensuring strong competition, and 
as such deserves regulatory recognition and protection"

http://blogs.computerworlduk.com/simon-says/2011/04/open-source-critical-to-competition/index.htm

That cuts both ways.  Open source is part of the competition.   Briefs in 
that case as well as the decision support that view.  There are limits to 
what competitors can do to divide markets among themselves.  IANL, of 
course, but this smells very bad, and I suggest we don't broach the topic 
again, unless cleared by ASF Legal Affairs.  I myself will withdraw from 
this list if the topic comes up again, pending review by IBM Legal.

-Rob


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Re: Legal concern: Are we getting to close ot a "division of markets" conversation?

[Simon Phipps <si...@webmink.com>]

On Mon, Jun 6, 2011 at 2:29 AM, <ro...@us.ibm.com> wrote:

> Simon Phipps <si...@webmink.com> wrote on 06/05/2011 09:13:24 PM:
>
> > >
> > > I think it would be great for TDF have an end-user downstream
> deliverable.
> > >  It would be great if anyone open source project wants to do that.  It
> > > would be great if a private company does this.  It would be good of a
> > > government wants to do this.  It would be great if multiple parties
> wanted
> > > to do this together.  It would be great it multiple parties wanted to
> do
> > > this separately.
> > >
> > > But I am very very very concerned that this conversation is starting
> to
> > > cross over into a "division of market" conversation, which has stiff
> > > penalties under US and international competition law.  Open source
> work,
> > > like standards, is work done voluntarily among competitors in the
> market.
> > > There are some things we must not talk about, especially things where
> > > competitors may be seen as arranging to reduce competition.  We need
> to
> > > steer the conversation far from this.
> > >
> > > http://en.wikipedia.org/wiki/Dividing_territories
> > >
> > >
> > We are discussing how the OpenOffice.org community (which as has been
> > explained has two different open source projects in addition to a
> variety of
> > downstream commercial consumers of the open source code) could structure
> its
> > operations.
> >
>
> Simon, in several posts I heard you suggest what sounded to me like a
> compromise that would reserve end user supported versions for TDF/LO,
> while Apache would exclude itself from that market and pursue other
> options.  You put that into the wiki at one point, using the workd
> "complementary" to describe the division. You've suggested that Apache not
> try to get involved in end-user software, especially where it would
> compete with TDF/LO.   If I misunderstood you, I apologize.  But if you
> are suggesting anything like that, I think that is crossing the line.
>
>
"Exclude itself from the market" is extraordinary language to use Rob. You
seem to view LibreOffice as a "competitor", as if this were competition
between IBM and Novell or something. It is not - it is the OpenOffice.Org
community in exile, a stakeholder in the future of the project, a resource
within the community.

The "art of the possible" here is about exploring ways to make things work
for the open source community, nothing to do with competitors in markets.
This is not a standards community, nor is it a 501(c)6 like Eclipse.

By the way, I don't work for Sun any more.

S.

Re: Legal concern: Are we getting to close ot a "division of markets" conversation?

[ro...@us.ibm.com]

Simon Phipps <si...@webmink.com> wrote on 06/05/2011 09:13:24 PM:

> >
> > I think it would be great for TDF have an end-user downstream 
deliverable.
> >  It would be great if anyone open source project wants to do that.  It
> > would be great if a private company does this.  It would be good of a
> > government wants to do this.  It would be great if multiple parties 
wanted
> > to do this together.  It would be great it multiple parties wanted to 
do
> > this separately.
> >
> > But I am very very very concerned that this conversation is starting 
to
> > cross over into a "division of market" conversation, which has stiff
> > penalties under US and international competition law.  Open source 
work,
> > like standards, is work done voluntarily among competitors in the 
market.
> > There are some things we must not talk about, especially things where
> > competitors may be seen as arranging to reduce competition.  We need 
to
> > steer the conversation far from this.
> >
> > http://en.wikipedia.org/wiki/Dividing_territories
> >
> >
> We are discussing how the OpenOffice.org community (which as has been
> explained has two different open source projects in addition to a 
variety of
> downstream commercial consumers of the open source code) could structure 
its
> operations.
> 

Simon, in several posts I heard you suggest what sounded to me like a 
compromise that would reserve end user supported versions for TDF/LO, 
while Apache would exclude itself from that market and pursue other 
options.  You put that into the wiki at one point, using the workd 
"complementary" to describe the division. You've suggested that Apache not 
try to get involved in end-user software, especially where it would 
compete with TDF/LO.   If I misunderstood you, I apologize.  But if you 
are suggesting anything like that, I think that is crossing the line.

-Rob


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