[odf-discuss] India to vote NO

[marbux]

On 8/23/07, Lars Noodén <lars at umich.edu> wrote:
>
> The summary says Malaysia, Denmark and Switzerland voted for MOOX?
>
> Can the summary be correct?  I thought that Malaysia, for example, was
> strong on open standards.


That was before the entire Malaysian national body was abolished by the
federal agency that administered it in response to Microsoft's complaint.


I also thought Denmark at least had a policy
> for open standards that a "yes" vote would violate.


The Denmark national government is officially on record as saying it will
implement both ODF and Ecma 376 during a one-year trial.


The summary also points out that the US is abstaining.


I haven't seen an announcement to that effect, although I recall a
preliminary position was to have been announced by the INCITS board of
directors on August 15, reportedly to allow time for discussion before the
ballot deadline. But the decision has been removed from the technical
committee itself, which voted about 2/3 yes and 1/3 no with comments. The
key divisive issue is whether some 400 comments that the TC never got to
will be reflected in the final position taken by the U.S.


I though the
> result was a "no" there too.


No. At the TC level, there was insufficient consensus on a "yes" position
but the majority were for a "yes" position. That reflects the packing of the
TC by recent new members favorable to Microsoft's position. Had the new
members been excluded, the U.S. would have taken a "no with comments
position, according to Rob Weir, IIRC.


  From what I gather, Finland abstained also.
>
> Are abstentions as useful as "no" votes?


Nope. They don't affect the outcome.


Norway's vote is coming up and there's a choice of supporting "king and
> country" by backing national policy and voting "no" or knuckling under
> and voting "yes".  I expect that like in most countries, MS has during
> the last weeks been able to fill the voting seats on the committees with
> Party members.
>

Yes, but proving it is the difficulty. In the U.S., it is an antitrust
violation to pack a standardization body's decision process for an
anti-competitive purpose. Allied Tube & Conduit v. Indian Head, Inc., 486
U.S. 492 (1998), <http://laws.findlaw.com/us/486/492.html> (company that had
conspired with others to reject pro-competitive proposal was liable under
the Sherman Act for treble damages; upholding jury verdict):

The relevant context is thus the standard-setting process of a private
> > association. Typically, private standard-setting associations, like the
> > Association in this case, include members having horizontal and vertical
> > business relations. See generally 7 P. Areeda, Antitrust Law  1477, p. 343
> > (1986) (trade and standard-setting associations routinely treated as
> > continuing conspiracies of their members). There is no doubt that the
> > members of such associations often have economic incentives to restrain
> > competition and that the product standards set by such associations have a
> > serious potential for anticompetitive harm. 5
> > <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=486&invol=492#f5>See American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456
> > U.S. 556, 571
> > <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=456&invol=556#571>(1982). Agreement on a product standard is, after all, implicitly an
> > agreement not to manufacture, distribute, or purchase certain types of
> > products. Accordingly, private standard-setting associations have
> > traditionally been objects of antitrust scrutiny. See, e. g., ibid.; Radiant
> > Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656
> > <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=364&invol=656>(1961) (per curiam). See also FTC v. Indiana Federation of Dentists, [486
> > U.S. 492, 501]   476 U.S. 447
> > <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=476&invol=447>(1986).
> >
>   ...
>
> ... The antitrust validity of these efforts is not established, without
> more, by petitioner's literal compliance with the rules of the Association,
> for the hope of procompetitive benefits depends upon the existence of
> safeguards sufficient to prevent the standard-setting process from being
> biased by members with economic interests in restraining competition. An
> association cannot validate the anticompetitive activities of its members
> simply by adopting rules that fail to provide such safeguards. 12
> <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=486&invol=492#f12>The issue of immunity in this case thus collapses into the issue of
> antitrust liability. Although we do not here set forth the rules of
> antitrust liability governing the private standard-setting process, we hold
> that at least where, as here, an economically interested party exercises
> decisionmaking authority in formulating a product standard for a private
> association that comprises market participants, that [486 U.S. 492, 510]
> party enjoys no Noerr immunity from any antitrust liability flowing from
> the effect the standard has of its own force in the marketplace.
>
> Support for the international applicability of the same principle can also
be found in the treaty governing the ISO ballot process, the Agreement on
Technical Barriers to Trade, section 2.2, <
http://www.wto.org/english/res_e/booksp_e/analytic_index_e/tbt_01_e.htm#article2
>:

> Members shall ensure that technical regulations are not prepared, adoptedor applied with a view to or with the effect of creating unnecessary
> > obstacles to international trade.
>
> The "Members" referred to here are the national governments (plus the
regional European Community) that are signatory to the treaty.

I trust that I don't have to explain on this particular list how Ecma 376
functions as an "unnecessary obstacle[] to international trade" or in the
U.S. antitrust arena, as a "restraint on competition." :-)

Best regards,
Marbux
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