Stuff it Kirby!!

Discussion in 'Laser Class Politics' started by gouvernail, Oct 29, 2011.

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Are you one of the 122 or the 1017?

Poll closed Jan 27, 2012.
  1. I voted NO

    71.4%
  2. I voted for the rule change

    28.6%
  1. AlanD

    AlanD Former ISAF Laser Measurer

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    You are aware that virtually all boats are illegally rigged or have some piece of illegal equipment on them. Does this mean we give a life time ban all the fleet. I can just see my world championship cube on the shelf.
     
  2. jeffers

    jeffers Active Member

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    Well put Alan, you beat me to that and I am no measurer!

    Perhaps a ban for those told to change thier boats and are then caught with the same modification at the same event (subsequent events would be impossible to police given the current resources).
     
  3. Deimos

    Deimos Member

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    Whilst I cannot see any change happening, I think it is a question of degree. Somebody who has e.g. incorrectly knotted the end of their mainsheet is very different from somebody using e.g. an illegal sail. Questions of intent and advantage come in. If you broke a rule deliberately to gain an advantage then it becomes worthy of stiffer penalty than accidentally breaking a rule that gave you no advantage. So you could implement a judgement based penalty system, small time penalty for the trivial with no advantage to points penalties for more serious violations. But in practice, those organising open meetings (regattas) have more than enough work already so to introduce a sliding scale of measurement failure penalty, with a right of appeal, etc. - would it really enhance the sport ?

    For years I rigged my Cunningham/kicker illegally (I used fast-pins/push-pins to attach as it made rigging much easier and faster and gained me no performance advantage - legal now but I was doing it long before the rule change). Although I knowingly broke the rules, would such a transgression really warrant a ban for life ?

    I appreciate that some sailing events now have on the water judges, but I've never been to one and I suspect most events most people go to rely on the sport being self policing and an occasional protest hearing.

    Ian
     
  4. jeffers

    jeffers Active Member

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    I fully agree with you Ian. The intent must be the over-riding factor. In my mind it is clear. If a competitor is instructed to change their boat because it does not comply, they change it for measurement then change it back after that is a blatant disregard for the rules and some kind of sanction should be available. Whether it be them getting thrown out of the event or something more.

    I am sure that had you gone to a nationals/euros/worlds event you would not have used this setup.
     
  5. Mrs. P

    Mrs. P Member

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  6. torrid

    torrid Just sailing

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    Some clarification on your next-to-last paragraph. Bruce Kirby actually sold his rights/trade secrets to Global Sailing, which seems to be a parent company of the Australian manufacturer. A few days before the voting deadline on the rule change, there was a press release stating Bruce Kirby had bough the rights back from Global Sailing.

    I think it was all rather pointless, because LP had already passed the "tipping point" you mention in your blog post. They weren't going to pay royalties to anyone.
     
  7. Old Dude

    Old Dude Member

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    Mrs P,

    I think I have to disagree, or wonder at least...

    The argument you make is that that Kirby or his asignees still hold "design right" and/or "trade secrets." It can be implied that these are in part the contents of the builders manual which appears to be at the heart of the disputed contracts. I am with you so far but here is where we may part company.

    All the rest in my uninformed opinion...

    The term design rights is confusing. There are patents, copyrights, and trademarks,but you say and we agree they either expired or are not the issue here. So what design rights? There is such a thing as a trade secret and I agree they are likely at the heart of this but lets think that all ther way through and speculate as best we can base on what is in the public domain.

    For a contract to be valid there has to be consideration. If the consideration is the trade secret... is has to be secret for it to have value and be the consideration! Problem is, there are no secrets left in building a Laser. None. Zero, zilch, nada, nothing! We all know the materials, the weights, the dimensions... we know everything. In fact, most any skilled in the art - even marginally so - without ever looking at or seeing the builders manual could manufacture an exact copy of the Laser and meet every single class requirement of the Laser, and even sell the boat - LEGALLY - just so long as they do not call it a Laser or put the Laser symbol on it. You could not tell the copy from the original and that copy could be made based on information in the public domain.

    Should you doubt this can happen, I offer for consideration that it does. In our industry. You need look no further than the Opti!

    I am guessing here - and I have no dog in this hunt - that what Kirby calls a contract, LPE might be calling blackmail, claiming that Kirby has nothing of value to sell. I am guessing they are right. The Laser class lawyers may have seen this as well and realized the only hold-up was an old outdated class rule for a builders contract that no longer had any basis since the party they had to contract with no longer had anything of value to sell. So the class lawyer may have concluded: Take that out-dated class rule away and the whole problem goes away.

    Of course then ILCA step in and sees they make less money if this happens (how big is the Laser class again) and that they can stonewall and stop the class fix from happening and here we are today!

    All in my uninformed wild speculation opinion!

    The post about the Olympic boats is interesting if true and certainly fits the facts that we all know and agree.

    Anyway, just the idle ramblings of an,

    Old Dude
     
  8. Old Dude

    Old Dude Member

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    Correction: Had typed ILCA when I was referencing ISAF - fixed below!

    Mrs P,

    I think I have to disagree, or wonder at least...

    The argument you make is that that Kirby or his asignees still hold "design right" and/or "trade secrets." It can be implied that these are in part the contents of the builders manual which appears to be at the heart of the disputed contracts. I am with you so far but here is where we may part company.

    All the rest in my uninformed opinion...

    The term design rights is confusing. There are patents, copyrights, and trademarks,but you say and we agree they either expired or are not the issue here. So what design rights? There is such a thing as a trade secret and I agree they are likely at the heart of this but lets think that all ther way through and speculate as best we can base on what is in the public domain.

    For a contract to be valid there has to be consideration. If the consideration is the trade secret... is has to be secret for it to have value and be the consideration! Problem is, there are no secrets left in building a Laser. None. Zero, zilch, nada, nothing! We all know the materials, the weights, the dimensions... we know everything. In fact, most any skilled in the art - even marginally so - without ever looking at or seeing the builders manual could manufacture an exact copy of the Laser and meet every single class requirement of the Laser, and even sell the boat - LEGALLY - just so long as they do not call it a Laser or put the Laser symbol on it. You could not tell the copy from the original and that copy could be made based on information in the public domain.

    Should you doubt this can happen, I offer for consideration that it does. In our industry. You need look no further than the Opti!

    I am guessing here - and I have no dog in this hunt - that what Kirby calls a contract, LPE might be calling blackmail, claiming that Kirby has nothing of value to sell. I am guessing they are right. The Laser class lawyers may have seen this as well and realized the only hold-up was an old outdated class rule for a builders contract that no longer had any basis since the party they had to contract with no longer had anything of value to sell. So the class lawyer may have concluded: Take that out-dated class rule away and the whole problem goes away.

    Of course then ISAF (NOT ILCA) step in and sees they make less money if this happens (how big is the Laser class again) and that they can stonewall and stop the class fix from happening and here we are today!

    All in my uninformed wild speculation opinion!

    The post about the Olympic boats is interesting if true and certainly fits the facts that we all know and agree.

    Anyway, just the idle ramblings of an,

    Old Dude
     
  9. Mrs. P

    Mrs. P Member

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    Old Dude,

    I’m afraid I cannot disagree with your disagreement. My thoughts actually went where yours went but, admittedly, out of respect and admiration for the man that designed such a remarkable boat, I chose to look for support that somehow, Kirby’s attorneys had drafted a contract that protected his rights. I’m still hoping that is the case.

    Regardless, I realize now that my post started in one direction (information) and then went another (opinion) and I’ve decided to re-write it. It’s my blog and I control it (with Mr. P, our course) and can call do-over if I feel like it and just wipe the slate clean and try to make a more objective attempt. Look for the re-write soon.

    The re-write will be with one purpose ... publicly available information without attempting to draw a conclusion about any of the parties but to simply show that a vote was taken without enough information being made available to those casting the votes and a demonstration that there is enough evidence now to prompt a do-over. Hopefully, the World Council and/or the ISAF will agree and toss the existing vote and allow the class to vote again and this time let us hear from the ILCA, Kirby, LPE, and GS so that we can make an educated decision.
     
  10. Old Dude

    Old Dude Member

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    Mrs. P,

    I am sorry but alas I must continue to offer a contrary opinion.

    Again, just my opinion...

    If we agree the facts available and are of a similar opinion of where they lead as you note, then I should stress I think it is Mr Kirby that is at fault here.

    Mr Kirby designed a great boat that we all enjoy and in part for this he made a considerable sum of money by all accounts in the press. But rights eventually expire and that is a good thing for society. Without such a concept there would be no generic drugs for example and half our population could not afford medication!

    Whatever IP existed has since expired and he reaped benefit from same. His trademark he sold and reaped benefit from same. And now it seems he wants to sell a secret that is not a secret and is using an out-dated class rule to force people to pay for what legally they likely don't have to pay... in my best guess and opinion. Further since he had sold all rights - and would not be bound in terms oof what he could communicate in public as our class officers are - he was best positioned to make a clear and fact based case in the press about how he was being ripped off. He could have filed legal action. But he did none of this. His comments were in my opinion wildely misleading, noting IP or patents if I recall that everyone seems to agree don't exist.

    I may be wrong and can only guess at what this is like the rest of us but for sure I support our class officers. Kirby has not made a case and clearly seems to want to make money off me (the sailors). It is us that ultimately pay afterall. Based on what I can tell from what is in the press, I prefer Kirby to get his hand ourt of my pocket and off my wallet, want to ISAF to stop stalling and explain themselves because they too appear to want to keep their hand in my pocket, and applaud our class ILCA officers for doing what they can to stop the insanity.

    I absolutely agree and wish ILCA would say more but equally recognize that they are privy to confidential information that directly or indirectly is in dispute between two parties and if they say much of anything they risk having themselves or the class dragged into a libel suit and court action from one or the other party and that is not a good use of class dues!

    The good news is that this does not touch the club level sailor. From the posts on your blog, I wonder if it however sadly will touch the Olympic level sailors.

    Regards from a hopefully still somewhat sane,

    Old Dude
     
  11. Tillerman

    Tillerman Member

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    I am sorry Old Dude but I cannot offer a contrary opinion to most of your contrary opinion. But I have to disagree with your accusation that Bruce Kirby made comments that were "wildly misleading, noting IP or patents if I recall that everyone seems to agree don't exist."

    Bruce was the one who corrected the ILCA assertion that patents were part of the issue here. In this interview with Sail-World in September 2011, he said,

     
  12. Mrs. P

    Mrs. P Member

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    Old Dude, I agree with Tillerman's disagreement above and would add a clarification that the public trademark records show Kirby never owned the trademark rights to the word LASER; therefore, he could never have sold the rights or reaped benefit from them. The builders have always owned the trademark rights and that is easily verified with the US Trademark Office and there are similar findings in other countries:
    http://assignments.uspto.gov/assignments/q?db=tm&qt=sno&reel=&frame=&sno=73024301 (you can also click on the Serial Number to see the TM record).

    Further, as torrid clarified for me, Kirby had sold his rights to Global Sailing two years prior and Kirby wasn't involved in the original dispute that prompted the ILCA to step in. When Kirby was asked for comment, he said 'Now it would appear that Laser Performance Europe doesn’t want to recognize the fact that this transfer has taken place. It is really weird because they paid the royalties to Global Sailing for two years as they were supposed to do, and then all of a sudden they stopped doing that. That action has caused issues between LPE and Global Sailing and they will have to sort it out.' I could be wrong but it sounds like, at 80+ years of age, having sold his rights, he was enjoying his retirement and staying out of it. His re-engagement came toward the end of the voting period when the parties remained deadlocked and he decided to re-acquire his rights from GS and put things back to the way they were before there was a dispute. So, I can't fault Kirby for his inaction/action because it makes perfect sense given the circumstances.
     
  13. Old Dude

    Old Dude Member

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    Dear Mr. T and Mrs. P,

    You may well be correct and thank you for noting it. I recall in very early stuff from Kirby that he referenced IP in some form or the other but could be wrong and more than anything I was frustrated that the one person who likely knew the whole story gave and still gives an incomplete story.

    Mrs. P's noting that Kirby sold his rights to GS is well established as is the fact that Kirby reacquired those rights. I have always assumed those rights were the builders manual with secrets (since evryone seems to agree there is nothing else) that were notsecret and wondered if the way this went down was GS trying to squeeze more from LPE, LPE then looked at it and said "but there is no basis for this contract at all (other than the ILCA class rules that says so)" and stopped paying. The odd thing is rather than GS taking LPE to court for breach - or Kirby doing samed after he reacquired said rights from GS - they did nothing other than point fingers.

    I can only speculate from that, that both GS and Kirby concluded their case was weak, there was little or no basis in law for the contract and could even speculate that Kirby was forced to buy the "rights" back from GS when/of GS concluded there was no value in what Kirby sold them.

    Anyway, all opinion and best guesses from the,

    Old Dude
     
  14. Tillerman

    Tillerman Member

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    Dear Old Dude,

    You may well be correct in your speculation that one of the reasons that Kirby was forced to buy back the "rights" (actually the company Bruce Kirby Inc. that apparently owns whatever "rights" may or may not exist) was that "GS concluded there was no value in what Kirby sold them."

    But according to Tracy Usher, North American Class President, in the The Laser Sailor magazine Spring 2012 issue, "During the voting period (for the rule change) it was also realized that permission from ISAF and ILCA was required for the sale of Bruce Kirby Inc. to Global Sailing and it had not been requested, with the end result of Bruce Kirby and Global Sailing agreeing that Bruce Kirby would reassume his company."

    As Tracy puts it, in more polite language than I would be tempted to use, "The situation remains complicated and, obviously, unresolved."
     
  15. Mrs. P

    Mrs. P Member

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    Old Dude, your opinions and guesses are most interesting. Another angle to ponder. I will say that I recall reading that GS did take action against LPE and terminated the contract and, as was commented on my blog, LPE hasn't been building new boats and the supply is limited or gone. I certainly didn't hear about any further legal action taken by GS or Kirby.

    It does beg the question of whether LPE's alleged default was a financial can't or won't issue (or both).
    And as you pointed out, was the return of rights to Kirby because of an unenforceable contract issue or was it some type of cleverly drafted buy back clause.

    Answers would certainly be nice. I believe you are saying, yes, you'd like more answers but you also understand the need for confidentiality and trust that the ILCA is more informed and making good decisions.

    I wish I had that same trust but I do wonder about the ILCA. While in Brisbane for the Laser Master Worlds, Jeff Martin, who I understand is always at the Worlds, was not there. I heard that he had been made "redundant" and was either on his way out of the ILCA or would soon be out. Mr. P and I mentioned the this several people, and before we left, we received a message that Jeff Martin "had survived". I've seen absolutely nothing disclosed about this going and returning. Now, Eric Faust has been named General Manager and Tillerman has been asking, so what will Jeff Martin do? Without speculating as to what that all means, it makes me wonder what's happening inside the ILCA. More transparency would certainly be nice. Somehow, I'm expecting Eric Faust to restore my confidence in the ILCA.
     
  16. Tillerman

    Tillerman Member

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    Mrs. P, your opinions and guesses are most interesting...

    Personally I'm not surprised that nothing has been said officially by ILCA about the issue related to the employment of a long-serving senior employee. If there really is, or has been, some discussions or negotiations about the ending of ILCA's relationship with that individual, then one would expect them to be held strictly confidential until something has been decided or agreed, or never publicly announced at all if the employee stays with ILCA.
     
  17. Merrily

    Merrily Administrator Staff Member

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    Employee? I thought our leaders were volunteers.
     
  18. Merrily

    Merrily Administrator Staff Member

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    Employee? I thought our leaders were volunteers.
     
  19. Old Dude

    Old Dude Member

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    Indeed, indeed, I can certainly agree your and Mr. T's comments above.

    There has been a lot more than this issue revolving around ILCA with limited or no communication. It is frustrating and does not bode well for the long term health of the class association as many have noted this as an issue. Fairly so.

    In my opinion and if I recall correctly, I absolutely agree there was some comments about GS terminating theLPE contract but they also had clearly said that LPE had stopped paying on the contract. In so many words, over and over again, both Kirby and GS seem to have claimed that LPE did not abide by the contract. But at the same time they have not initiated any court or legal action - have not sued them for breach of contract!! Huh?! Why?? The only thing I can piece together from what is public is that either LPE did not breach (but this does not seem possible given the only thing that all parties agree is that LPE stopped paying!), or that both GS and Kirby know the contract is weak and runs a risk of being declared invalid if they did try to enforce it. That also aligns with ILCA's recommended vote but of course they could not dare state in public that they think there is no legal basis for a contract they are not party to (a sure way for the class to be sued I gather) which would explain the communication (lack thereof).

    But all I can do is guess like everyone else and hope it does not impact the Olympics.

    For now everyone seems to be playing a big game of chicken. Kirby and/or GS (previously) have not truely terminated LPE and named another distributer for the territory. LPE has maybe stopped making boats, maybe putting the Olympics at some(??) risk?? ISAF has managed to do absolutely nothing with a class rules changed they alone hold the keys to... which is maybe the most disgusting aspect of this all. Heck, like it or not at least ILCA tried to find a path out of this.

    But you, I, and all Laser sailors sit here, still stuck in the middle.

    It is all very odd to the...

    Old Dude
     
  20. Tillerman

    Tillerman Member

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    I was speaking of the Executive Secretary of the ILCA. Excuse me if I am wrong and that is a volunteer position. I always understood that the holder of that role was a salaried employee of the ILCA.
     

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