2011 Rule Changes - Fundamental Rule

Discussion in 'Laser Class Politics' started by 154537, Mar 28, 2011.

  1. Der_Dude

    Der_Dude Member

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    What SFBayLaser said makes a lot of sense to me. The problem is: his reasons are based on conjecture it seems. It's really annoying to be asked to vote when it's apparent that our information is at best incomplete and one sided.

    However: to those of you thinking the rule change could devalue Global Sailing's rights to the boat. Legally that should only be possbile if GS and LPE agreed on a royalty contract that refers to the ILCA rules. Because in most industrialized countries contracts between two parties cannot be legally binding for third parties, i.e. whatever we GS and LPW agreed upon at some point should not limit our right to define our class rules and whateber we as class members agree upon for our class rules should not alter their contract.

    The rule change might alter the economical background for the GS-LPE contract or their contractual dispute. So do your everyday decisions as a consumer, whether or not to buy a boat, parts, whatever. That is the risk any entrepreneur takes in a free market economy. Why should we let that influence our decision about what is best for our interests?
     
  2. jeffers

    jeffers Active Member

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    LPE were a UK based company last time I looked therefore their contracts will probably need to satisfy UK contract laws (as well as contract law for where Bruce Kirby Inc were based and now contracts law for Australia).... It is a minefield and may be the reason behind why LPE stopped paying.

    As has already been said a lot of this on the agreements is pure speculation as none of us know what is in them! It is just another angle that people may not have considered.

    From what I have heard (from the UK side at least) LPE seem to be getting their act together and the supply of new parts and new boats is now getting back to what it should be. Whether this ia good sign in the wider scheme of things is another matter....
     
  3. whitfit

    whitfit Member

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    "IP rights versus trademarks"

    This is why I am so confused about this conversation - people keep on throwing around the term "IP rights" without clearly defining their terms. Trademarks, industrial design rights, patents and copyright are all examples of IP rights, but IP rights on its own is not something meaningful, but rather a description of a class of rights that are contained in legislation, and in common law jurisdictions, in judge made law.

    What I am struggling with is, what is the right that Bruce Kirby Inc. had to the design of the Laser, or the molds, or other associated rights in the actual boat? I haven't seen that articulated.

    If the rights are contractual, only companies or people that are party to the contract are bound by those rights. If the contractual rights are somehow attached to the licensing of the trademark, or other actual specific IP rights (again, which have not really been defined except for the trademark) then they might be enforceable as part of the trademark licensing, but otherwise, only bind the parties to the agreements.

    The example of the broadcasting rights is very different from the current situation - there are copyright and contractual rights which are clearly different from what is being considered in this case.

    I don't mean to be a jerk, but I have not seen anything here that approaches real analysis or understanding of the underlying rights involved. Now, I am not an IP lawyer, but am a lawyer, and know that there must be some actual arguments about specific IP rights that have not been publicly disclosed or described, and that is why it is so difficult to make an informed judgment about what is actually going on here. As many others have said, it is hard to understand without more transparency.

    Unfortunately, this is also a good example of the difficulties of splitting up the ownership of rights that are each required to create one product. It works when the incentives are aligned, and everyone is cooperating. But, when that isn't happening, you get a standoff (look at RIM, other patent disputes that end up being holdup problems or can destroy value because of standoffs). As long as Bruce Kirby had those rights and was being cooperative, it worked.

    Here's to hoping that this is all resolved productively, and we can keep doing what we love - sailing our boats.
     
  4. tim.platt

    tim.platt New Member

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    I think you are having the same trouble the ILCA now finds itself in. From the reamble to the suggested rule change: "The ILCA is not a party to any of these “Kirby” agreements.".

    I seem to remember Tracy saying that the ILCA has no idea what's in these "Kirby" agreements - I assume that's because the ILCA is not one of the entities tied by them.

    Would I also be correct in assuming, therefore, that ILCA cannot be referred to in such agreements? And that because the ILCA is not a party to any of these agreements it isn't allowed to see what they contain, unless all the parties that are, allow them to do so?.

    I have to say that it doesnt seem right, to me, that our club rules should make a requirement of someone elses commercial agreement, when we have no idea what it requires someone to do, or not do.

    As you say, whilst these agreements were owned by Bruce Kirby there wasn't a problem, but now it appears he has sold them to an organisation that has common ownership with one of the builders, this seems to have 'stirred things up' a bit.

    My understanding is that the name 'Laser' is a registered trade mark, separate to the design of the boat, which could in theory be applied to any boat/product the trade mark owner chose to do so (in the geographical regions that they own it).

    The whole building rights; design rights; trade mark ownership all sounds a bit of a mess. It reminds me of the classic directions joke - "If I was going there, I wouldn't have started from here".

     
  5. torrid

    torrid Just sailing

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    I think you are correct. In this aspect, the proposed rule change would allow the class association to exclude some random boat from a former manufacturer that has the name "Laser", but isn't up to class specs. It is one thing which is making me lean in favor of voting yes.

    The inability of the manufacturers to settle this among themselves is also leaning me to vote yes. Again it would protect the interest of class members, even if it favors one of the manufacturers. All the more reason for them to work out a settlement of some kind.
     
  6. gouvernail

    gouvernail Active Member

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    but the real truth is...

    we are all so sick of the entire mess we will accept whatever happens and we will continue to do whatever it takes to be allowed to race in whatever regattas we believe sufficient numbers of our friends will attend to make the effort of attendance worthwhile.

    See you on the water sometime
     
  7. gouvernail

    gouvernail Active Member

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  8. whitfit

    whitfit Member

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    Interesting to read this advocacy piece, but it seems very ill-informed from a legal perspective.

    Before opining on precedents and "setting aside commercial rights" it helps to have at least talked to someone with some knowledge about what that actually means.

    It seems to me that this author is taken in by what is admittedly an appealing story: Bruce Kirby has certain rights to the design, and he chose to sell those rights to a (family owned) company that he believes will do a good job for the class, and now the class association is trying to take away those rights. All very warm and fuzzy to side with Bruce Kirby and his chosen purchaser.

    That story might be based in part on the story so far, but the real story is almost certainly more nuanced than that.

    First off, it was a big mistake to separate the design rights from the trademark - that is likely to lead to a disaster in the long run, and most certainly never would have been a decision that would or should have been made by someone that wanted to ensure the best interests of the class in the long term. [as an aside, I know that it happened as part of a receivership, and might not have been fully intentional - I am not concerned about why it was done, but in the end, it was a bad thing to have happened to the class, and almost certainly could be predicted to lead to difficulty down the road.]

    The second issue here is the claim that what the class is doing is "setting aside commercial rights". First off, what are those rights? If the rights are derived solely from the reference in the class association rules to a "building agreement from Bruce Kirby or Bruce Kirby Inc." and the class has no corresponding agreement with Bruce Kirby or Bruce Kirby Inc. that obliges the class to maintain that rule, then there is no legal constraint to setting aside that rule and maintaining the class as is (using the same boat design and trademark that is in use now). I have not heard any reference to any other rights. People have vaguely referred to "IP Rights", but that is a general category of rights, and without a reference to anything more specific contained in an actual legal code - ie, copyright, industrial design rights, patent etc... - there is no actual IP rights to be discussed, except for the trademark to Laser and the Laser symbol, which is owned by the class.

    The third issue with the article is that it says near the end, and quoting Kirby, that this would be problematic for designers of classes that have international ambitions. I don't see this. The problem arose in part from splitting the design and trademark rights, and how these rights were dealt with. This is a lesson to designers who want to maintain control of their designs: don't split the rights and try to parcel them out, don't do deals with financially unstable companies unless you can maintain your design and trademark rights after they go under, and don't sell rights that you have only because of a rule in a class association that they have no obligation to maintain. The article might imply that what is happening now might dissuade future designers. It seems to me that Bruce Kirby has done okay by the Laser. It was a booming success, helped launch his career, and he has presumably been making money on it for 40 years, even if that income stream stops now (and maybe he already got the value of the income stream by selling it to the Australian outfit, and it is their problem now). That doesn't seem to me to be a story that will warn others off of making similar efforts.

    Finally, whatever Bruce Kirby says, and I appreciate all that he has done for the class, from designing the boat that we all love to sail, to promoting it, and I am sure doing what he believes is in the best interest of the class to keep it stable and growing, this is not about him anymore. Bruce Kirby lost control when he had given up some of his rights to a company that ended up being in receivership. Bruce Kirby traded absolute control of the class for a widely produced, widely sailed class with a strong association. That probably helped him because without those things, it might not have been the runaway success it was, and he might have been less famous and made less money along the way. Part of the cost of that tradeoff was giving up a measure of control.

    Now, this is in the hands of the class and the sailors. It is about the long term success of a worldwide, Olympic, widely raced sailboat class. That success requires stability. That decision needs to be made without reference to what is good for Bruce Kirby or his builder of choice, unless those preferences actually help to maintain the class.

    The other thing that could happen, though, which might really kill the class, is that the change gets made and then there are protracted lawsuits. That would really be a pity.
     
  9. gouvernail

    gouvernail Active Member

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    Since 1972 it has been the rule of the ILCA, "You cannot bring a boat out to the course unless you have paid your royalties to the man who owns the design."

    In my opinion, the day that rule is lifted, anyone can build a boat and bring it to our sailing contests. You will be allowed to race your toy that is in every way just like one who follows the builders manual would create .

    Use of the term Laser and the sail insignia is only restricted to copyright holders for commercial use. I can call anything I build for myself a Coca Cola NFL Rolex Laser and so can anybody else.

    Copyright law only steps in when you start selling your homebuilt by the ILCA builders manual sailing toy and representing it as a Mercedes Benz...or Laser.

    My totally uninformed guess is, if the current owners of the Laser logo and name quit absolutely associating themselves by contract with the design itself, their copyrights will become quite vulnerable to a suit asking the court to release the logo and name to the public domain.

    In fact, we could all help that process along by encouraging evrerybody to call every singlehanded boat a laser.

    Or

    by encouraging those who would like to profit by manufactuiring boats just like Kirby's Laser to pay those chosen by Kirby to oversee his design for rights to manufacture boats of Kirby's design.

    I know my position on this one.

    If you bring a boat to a Laser regatta, I expect you to bring one with a traceable record proving Bruce Kirby or his assignees were paid for overseeing the design and manufacture of your boat.
     
  10. AlanD

    AlanD Former ISAF Laser Measurer

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    Which company has gone into receivership?
     
  11. LooserLu

    LooserLu LooserLu

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    To dispute the conclusions of this text above: The ISAF nominated "Laser" and "Laser Radial" to be the Olympic "Mens/Women's One Person Dinghy" also for the "2016"-Games. The ISAF did the decision in early May 2011.
    http://www.sailing.org/35891.php
    We all know: ILCA's Executive Sec. is member of the board of the ISAF! So, no one can say , that the ISAF didn't knew about the issue between PSA and LP.

    Till now, there havn't been any new official informations.... :(

    LooserLu
    P.S.: Directly Mr. Wesley W. Whitmyer, Jr. of St. Onge Steward Johnson & Reens, LLC, I 'm not afraid of YOU (and your here secretly viewing staff)... never!! Greetings of Europe, hahaha!!
     
  12. whitfit

    whitfit Member

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    Gouvernail - thank you for the reply. For a bit of context, and in answer to your first couple of questions, I am a lawyer in Canada, so have some knowledge of the issues of commercial agreements and intellectual property rights. With respect to what is my motivation and relationship to the issue? I have no professional interest in this case, and in fact don't work on this type of law at all, so am far from an expert at the intellectual property rights aspects. I have no financial interest, direct or indirect professional interest or other connection to this case or the people involved except for the fact that I sail a Laser. I do have an interest in sailing my Laser, and in having a strong class. I am also interested in learning about what the facts are (ie, what the legal rights are that are in play).

    Frankly, the level of information that is out there - both from the article that you linked to, and from the Laser class association, and from all the public documents available that I have seen, is very much lacking. For the record, I don't think I know what the right decision is, or who should have rights to what. All I know is that I have almost no basis from which to make that decision, and the article made me frustrated because it made an argument based on a few biased facts, and no consideration or analysis of the legal rights that are in play.

    To get to your specifics:

    ( so fill us in: What do you do for a living and to whom might you owe allegiance?)

    I am a lawyer, and owe my allegiance to nobody involved in the case (in fact, I didn't even know about it until I got back into sailing my Laser regularly a couple of months ago).

    ( Talking TO somebody doesn't do squat. With whom have you conversed on this subject? Do you have sufficient knowledge to make comments and why should we believe you?)

    Talking to somebody who has knowledge of a subject area (in this case, legal rights) does help in understanding the issues. I would hope that somebody would talk to an expert on fiberglass repairs before writing an article about the relative merits of one approach to making a repair versus another, if it is clear they have no personal experience (I am, to use a (para)phrase referenced below "almost certain" the author does not have a great deal of knowledge of legal rights). That doesn't mean they talk to someone who has an interest in the case, but hopefully a third party that can help them to understand the issues. As for the second part, I only have sufficient knowledge to understand that this article doesn't answer any questions that I have about the issue in a meaningful way (specifically, what are the actual legal rights at play).

    In terms of my knowledge, I have sufficient knowledge to offer a critique of what the author said, but don’t have any knowledge of the actual case because those facts have not been shared. You shouldn’t believe me, but you should consider the critiques – I think this kind of inquiry is helpful to understanding the issues at play.

    ( Why do you believe this is warm and fuzzy? Cite your evidence please.)

    I am a strong believer in evidence. But in this case, I'm not sure my claim about a story being warm and fuzzy requires evidence. What I was really implying, and I didn't state it well, was that this article, and many of the arguments made in this forum and elsewhere, are based on little more than a narrative that supports one party or the other, with little in the way of any facts about the actual contractual or IP rights that are at issue. I find that frustrating because I like facts and evidence.

    ( and you have sufficient understanding to use the word certainly for what reason?)

    I don't, really. I didn't phrase that point very well. Really, I was just trying to say that the article is missing a lot, and I am sure that the real facts and issues are more complex than those presented.

    (So what? Why is this relevent?)

    To me, this is actually the core of what is at issue. This is relevant because we are talking about what legal obligation the class (and the holder of the trademark of "Laser") has to not change that rule, and to not continue to pay a fee for the design rights. If it is an obligation only because the class says it is, the class cannot be forced to maintain that part of the rule. I am not making a judgment on what is best for the class, I am asking a question about what the legal obligations are. I haven't heard any reference to any IP right or contractual obligation of the class that Bruce Kirby actually still maintains, and if there is one, I would be curious to hear about what it is.

    (Really? He is saying the control of the design by the designer or his assignees is critical to the motivation of potential designers. If classes allow any old schmuck to build the designer's boat without paying the designer, designers don't have much reason to design toys for those classes..Sorry you missed that. I thought Kirby was quite clear.)

    Absolutely agree, and I understand the point that Bruce Kirby is making – perhaps more than most, as I did a masters thesis on the economics of IP protection and the theoretical justifications, and detriments of restrictive IP policies – I’ve heard and considered the arguments about incentives to innovate that is the basis for the argument that he is making and that you claim I don’t understand.

    My point is that Bruce Kirby may have had an opportunity to reap those benefits. IP rights have limits - patents are in force for a certain number of years, copyright for many more, and trademarks for as long as they are kept active, and other rights for other things. But, those rights aren't unlimited. My point is, that if we are going to stand around and say "Edison would have never invented the lightbulb because now anybody can make it without paying his heirs a fee, so why should he do it?" that is missing the point. Edison got paid plenty of money for his inventions, protected by patent rights that eventually ran out. There is a balance in those rights, and sometimes those rights are lost to the inventor/designer due to time, contract or otherwise. You might think that those rights should be more robust, or harder to lose, or longer or whatever. There is lots that has been written and argued on those issues. Lots more will be written. But the bottom line is that the argument does not give a slam dunk for extending those rights for the innovator or designer in all cases. Bruce Kirby may want/argue that they should be in his case, and if I were in his shoes I would make the same argument. He was quite clear. I just don't agree that the point ends the discussion.

    ( Tradeoff?? "Screw the designer and his assignees. We aren't helping with the leverage for collecting design fees anymore." is the proposal on the table. Tradeoff vs what?? That some lawyers stole the name Laser from Kirby is one hunk of BS that never should have been allowed. Now you are OK with also stealing the design itself?? Tradeoff?? What tradeoff. Cutting off the designer fees requirement is more like the finalization of the rape.)

    I have to be careful here - I am a lawyer, so will be viewed with suspicion ;)

    The tradeoff I am referring to is making the rights of the designer stronger than they need to be to create the incentive to design and develop sailboats. I would be suspicious of the claim that it is sufficiently robust IP rights that are holding designers back from designing more and better boats – and perhaps more importantly, developing the class (which, I would argue in the case of the Laser is actually a more important aspect of its success than the design, which although a good one, is not the sole reason is so successful).

    You might be right, that the name Laser was stolen from Kirby. I don't have any familiarity with the case. This is an honest question - where can I find out more about it? It is possible that Bruce Kirby sold his rights without intending to give up as much as he did. He may have been taken to the cleaners by slick lawyers. But, I don't know what happened. It may have been a commercial transaction that he later regretted when the Laser became wildly popular. He may have thought - $x for this design is great - it took me 5 minutes to design it on the back of a cocktail napkin. I am being a bit facetious, but the point is, that I don't know that background, and I don’t know where to find it – perhaps a journalist who knows something about these issues would have asked him those questions and written a more illuminating article? Maybe he would tell someone asking those questions to take a hike? Maybe you know the story and can help us to understand it?

    To look at another part of this, you say that it is a "hunk of BS that never should have been allowed" - well, if that was his contract, I don't feel too bad for him. You are the one from Texas - what about freedom to make contracts? If you later regret it, should you be able to reneg? But, he may also have been screwed. That is why I am curious about what actually happened in that case, and what Bruce Kirby agreed to.

    With respect to stealing a design, again, design rights, under whatever IP category are rights that are granted by law in order to create an incentive for more innovation. When the rights are up, they are up. Using that design is not stealing. Reprinting public domain books is not stealing. Neither is using a design that is public domain.

    (Which is what Kirby hoped for when he carefully considered the options for our game and then sold his design rights to Global Sailing. If the ILCA votes to abandon it's designer and his assignees, one fewer carefully chosen caring entity will be there to care about the long term success of the game we play.)

    You might be right. I don't have any disagreement with this without knowing more. They might be the best caretakers of the class. But, they also need to make that argument to the class, and so far I have heard nothing substantive.

    ( but the change is alleged to be a perfect method to avoid those lawsuits. So, are you writing that it is not? That's certainly curious.)

    I am suggesting, from no direct knowledge, that if the class makes this rule change, that there is at least a chance of lawsuits. Again, with no direct knowledge of the facts, I would wager that it will result in lawsuits. I think making this rule change in this way is risky, and seems to me to be only reasonable if it is a last ditch effort. The only way to avoid lawsuits, in my experience is to reach a settlement. The parties here aren’t willing to make a deal. That means that, whatever the approach is, the class is vulnerable. It seems to me to have arrived at this point is the result of some unfortunate or bad decisions, though I don’t know who made those decisions, again, because there are almost zero relevant facts that have been presented.

    “Since 1972 it has been the rule of the ILCA, "You cannot bring a boat out to the course unless you have paid your royalties to the man who owns the design."

    In my opinion, the day that rule is lifted, anyone can build a boat and bring it to our sailing contests. You will be allowed to race your toy that is in every way just like one who follows the builders manual would create.”

    The question is, does the man actually own the design in a legal sense. Ownership of an intangible depends mostly on the rights attached to it by law - and in this case by contractual obligation. This doesn’t help if Mr. Kirby doesn’t maintain any actual legal rights to the design. One might argue that Bruce Kirby should have more rights, or less rights, or whatever, but I still haven’t learned what specific legal rights he has.

    Use of the termLaserand the sail insignia is only restricted to copyright holders for commercial use. I can call anything I build for myself a Coca Cola NFL Rolex Laser and so can anybody else.

    Copyright law only steps in when you start selling your homebuilt by the ILCA builders manual sailing toy and representing it as a Mercedes Benz...orLaser.

    Agreed, but I don’t see why this is relevant.

    My totally uninformed guess is, if the current owners of theLaserlogo and name quit absolutely associating themselves by contract with the design itself, their copyrights will become quite vulnerable to a suit asking the court to release the logo and name to the public domain.

    In fact, we could all help that process along by encouraging everybody to call every singlehanded boat a laser.

    You might be right, but a trademark (not copyright) does not have to be associated with an otherwise protected design in order to be effective. It can be associated with something that other people make in exactly the same way, and still be valid. You are right that it can be lost if it becomes generic. Note that the ILCA and the ISAF can still require that only certain boats made by certain makers can be used in events sanctioned by those bodies.

    Or

    by encouraging those who would like to profit by manufacturing boats just like Kirby'sLaserto pay those chosen by Kirby to oversee his design for rights to manufacture boats of Kirby's design.

    People can do so. BUT, they might not have a legal obligation to do so in order to build a boat like the Laser. You might have an argument that they have a moral right, but that is a different story – and I already know your position on the gap between the law and morals ;)

    The bottom line for me is that I want to know more. I want to know what the actual legal rights are, and what path they have taken from their inception. This is not information that I have been able to learn from reading various articles and discussions on the internet about this issue. And, I think that is the critical issue at play. This is about the use of design rights, and the contracts that have been made about those rights. My view is that the rest is window dressing.

    I don’t know what the best choice is on this subject, but I do worry that, unless the central parties come to a reasonable agreement, that it could be detrimental to the class.
     
  13. whitfit

    whitfit Member

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    I was referring to the receivership of the builder that led to Bruce Kirby losing ownership/control of the Laser trademark (I believe sometime in the 1980s).
     
  14. gouvernail

    gouvernail Active Member

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    Wwo. Mr Whitfit certainly gave a wonderful and patiently written answer to my rant.

    It is way more than I deserved but...wow I sure do think your response tells us all a lot of stuff we may not have considered. Thanks for being so patient and thorough ...

    especially in response to something I did not write very nicely.

    Kudos to you for being a really patient guy!!!

    Makes me wonder if I can get a Beer gift certificate for your favorite local bar???
     
  15. whitfit

    whitfit Member

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    Thanks, Gouvernail.

    I think that you have earned the right to get frustrated and short - and for all of your advice and help on this board and webpage have earned the right to at least my patience. The wealth of information, as well as your work for the class are worth more than a beer. And, I was able to repair a big shark bite out of my daggerboard this past weekend based on your webpage on the subject.

    Here's to hoping we either get the information that we need, or at least whatever the outcome, the class survives and thrives - whether we are sailing a "Laser" or a "Bruce Kirby One Design Single Handed Dinghy" or maybe a "TGIF".
     
  16. gouvernail

    gouvernail Active Member

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    welll...nobody really has an special right to be nasty and I was...so I still owe you a beer and a personal apology next time I see you.
    and I did have a plan to sail, in canada a couple weeks ago...
    I just left Austin a couple weeks ago on Tuesday afternoon, drove to Maine ,and tried my heart out to make the turn in time to get back to hamilton for the Masers regatta. I simply could not make more than about 500 miles a day with a J-80 behind me...too damn white knuckled and worried about dragging $50,000 of somebody else's stuff.

    So I ended up on a beautiful island eating lobster with the proud owner of the boat he had bought in San Antonio. My two fer ended up being meeting him and his friends instead of seeing old canadian Pals on lasers...but that's ok too!!.

    They are the antithesis of laser sailors. There is an annual "around the island" race. 300 people live there year round and more summer guests. The fleet last time was a Tornado, a Lightning, a catalina 27, an international 210 and I forget what else...no handicaps...just who makes it first.

    The place stopped in time somewhere around 1955.
     
  17. SFBayLaser

    SFBayLaser Member

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    The voting for the proposed rule change ends on September 23, just over 3 weeks from now, still a little bit of time to discuss for those still on the fence...
     
  18. sorosz

    sorosz Member

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    Is there any new info? I had sort of hoped that the parties involved would have sorted this out by now.
     
  19. SFBayLaser

    SFBayLaser Member

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    Did you attend the meeting at the Master Worlds with Heini Wellmann answering questions from the assembled masses? That would be all of the "newest" information.
     
  20. sorosz

    sorosz Member

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    I missed that. I had to go home and fix my cracked rudder blade. . . :-(
     

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