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From Phillip Rhodes <motley.crue....@gmail.com>
Subject Re: Legal concern: Are we getting to close ot a "division of markets" conversation?
Date Mon, 06 Jun 2011 02:39:19 GMT
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, <robert_weir@us.ibm.com> wrote:

> Simon Phipps <simon@webmink.com> wrote on 06/05/2011 09:42:14 PM:
>
> > From: Simon Phipps <simon@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, <robert_weir@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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