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STAR6.TXT
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1992-08-14
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BRIGHT STAR, DARK STAR:
Why STAR is a "Trade Association",
and What That Means About What STAR Can and Can't Do
By Charles B. Kramer,
Attorney
Throughout history, tradesman have gathered to grumble,
hob nob and share information. So in gathering in STAR, the
shareware community has something in common with medieval
guilds, 19th century societies of accountants, and modern
associations of magicians, engineers, and dry cleaners. Each
is a trade association: a gathering of related businesses to
discuss and solve their similar problems and to advance the
success of their trade.
When members of a trade gather, lots of good can result.
The time-line boundaries of the United States, for instance,
are a legacy of cooperation among competing railroads who
needed to coordinate their train schedules. Similarly, the
rules governing checks are a direct descendant of payment
systems devised by merchants centuries ago.
But the gathering of a trade creates -- power! -- that can
also easily go wrong. The same power that can pool resources
for educational advertising campaigns can also -- quite
innocently -- be used to make the business of the trade less
free in ways that are improper.
èBRIGHT STAR
The proper functions of trade associations consist
principally of education, information sharing, and standard
setting, in each case with the purpose of furthering the
interests of the trade as a whole. Standard setting can take
the form of "seals of approval" meant to influence purchasing
decisions, or "ethical standards", like a rule that "members
will endeavor to advertise accurately".
Speaking in 1980, Mortimer B. Doyle described some of the
proper functions of trade associations this way:
Ä [1] [Trade Associations] work to create a favorable
Ä attitude toward their industry or profession. This effort
Ä includes the media, the general public, consumers....
Ä [2] They keep abreast of change. They advise their
Ä members what is happening, and what is likely to
Ä happen....
Ä [3] They work to maintain high ethical standards in their
Ä industry or profession....
Ä [4] Associations work with and challenge government when
Ä necessary. Government, particularly the legislative
Ä branch, needs and requests the assistance of voluntary
Ä associations on virtually every bill that is drafted.....
Ä [5] In addition, they are national and international in
Ä outlook.... as members realize that their concerns and
Ä their opportunities are worldwide in scope.
STAR, of course, not need do all of these things. STAR
may choose principally to educate by starting a newsletter, and
by making periodic mass mailings to CIO's informing them of the
benefits of shareware. STAR could alternatively choose
principally to share information by collecting statistics on
the success of different types of registration schemes for
different types of shareware. And -- no doubt! -- other parts
of STARgazer will amply discuss the merits and demerits of STAR
choosing to set ethical or other standards.
But, while education, information sharing, and standard
setting are the things trade associations do best, they can
also be where trade associations go wrong, for each of these
has a dark side.
èDARK STAR
The dark side derives from the fact that trade
associations are organization of competitors. In STAR's case,
vendors compete with vendors, authors compete with authors (at
least to the limited extent their programs perform
interchangeable functions), and BBSs compete with BBSs (at
least to the limited extent they provide the same sorts of
services, and draw their membership from the same geographical
area).
The law regards any agreement among competitors with
suspicion. For that matter, the law regards even regular
meetings among competitors with suspicion, and with good
reason. The more competitors meet, the more they will be
tempted to make arrangements that intentionally reduce
competition among them. Since STAR plans to structure itself
in a way that will preserve the voice of all elements of the
shareware community, it may defuse these temptations, but they
will remain.
The bigger danger of the dark side of trade associations
is how easy it is for them to unintentionally reduce
competition. For instance:
è[1] "PRICE"
Competitors can't agree to the minimum (or maximum) price
they'll charge for their products. This may seem obvious, but
STAR could cause such an agreement without realizing it.
Shareware authors for instance, sometimes limit the price
vendors charge for their disks so customers will be less likely
to believe they've bought the program that's on it. Such a
limit, which would be improper absent the author's copyright,
is proper when imposed by authors individually. But STAR might
be found to be improperly price fixing if it recommended use of
a standard form of VENDOR.DOC that contains such a term,
because authors could be seen as *agreeing* to charge the same
price.
Similarly, while "information sharing" is one of the
proper functions of trade associations, the regular sharing of
price information has sometimes been found improper. The thing
to remember is trade associations and prices don't mix: any
STAR practice that involves or could effect prices is
potentially improper.
è[2] BOYCOTT
"Boycotts" occur when a group of businesses decide they
will not deal with another business or class of businesses. A
boycott might be found, for instance, if STAR decided "STAR
authors will only deal with STAR vendors", or if it decided
"since shareware is cheapened by advertising it in comic books,
no STAR vendor shall advertise in them". The thing to remember
is that STAR should be cautious about making a rule that limits
who its members should deal with.
è[2] STANDARD SETTING
If standard setting has been one of the greatest strengths
of trade associations, it has also been the way they most often
go wrong.
To be proper, standards should have an objective basis and
a reasonable health, safety or utilitarian purpose. Equally
importantly, the trade association should provide a fair
procedure for determining whether and when one of its members
has violated a standard, and should even-handedly impose
reasonable penalties. Fines, suspension from the trade
association, expulsion, and denial of a right to use the
association's "seal of approval" may or may not reasonable in
particular circumstances. A thing to remember is, the more the
penalty interferes with a member's power to do business in the
trade, the greater danger it could be found improper.
Here's an excerpt from an "advisory opinion" by the
Federal Trade Commission, that lists factors it considers when
determining whether a trade association's standards are proper:
Ä [1] Standardization and certification programs must not
Ä have the effect of boycotting or excluding competitors.
Ä [2] Where certification is involved, no applicant for
Ä certification may be denied certification for any of the
Ä following reasons: (a) that he is a non-member of any
Ä association or organization; (b) that he is a foreign
Ä competitor; or (c) that he is unable to pay the fee or
Ä cost of certification.
Ä [3] Membership in groups or organizations sponsoring,
Ä promulgating or administering standardization or
Ä certification programs must be open to all competitors,
Ä domestic or foreign.
Ä [4] Due process must be accorded all parties in or
Ä affected by a standardization or certification program....
Ä Due process includes... the conduct of timely hearings
Ä with prompt decisions on claims respecting standards or
Ä the denial of certification.
Ä [5] Standards and certification programs, unless
Ä otherwise clearly required by considerations of safety,
Ä may not be used to reduce, restrict or limit in any
Ä manner, the kinds, quantities, sizes, styles or qualities
Ä of products.
Ä [6] All standards must be voluntary.
None of this is intended to discourage any of the free
thinking, sometimes rambunctious process of self-creation that
STAR has entered. Probably one of the most exciting things
about STAR is the number of useful, new and sometimes
contradictory ideas this process has created. But as STAR
settles into some sort of shape, it will need to reflect on
whether it is a bright STAR, or a STAR that has fallen to one
of the dark temptations that comes from being a trade
association.