Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov
David Kastrup wrote:
[...]
> appealing this dismissal is not going to be too easy, ...
Oh really? Judge Tinder just made a dull point that "... reduced
opportunity as a competitor does not necessarily equate to an
antitrust injury as recognized by the courts. Brunswick, 429 U.S.
at 488. Indeed, injury in fact is “a different beast” than
antitrust injury. Prof’l Sports Ltd. P’ship v. Nat’l Basketball
Assoc., 961 F.2d 667, 669 (7th Cir. 1992). And “whenever the
plaintiff and consumers have divergent rather than congruent
interests, there is a potential problem in finding ‘antitrust
injury’. . . . When the plaintiff is a poor champion of consumers,
a court must be especially careful not to grant relief that may
undercut the proper functions of antitrust.” Ball Mem’l Hosp., Inc.
v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1334 (7th Cir. 1986).
Mr. Wallace has not alleged that anyone interfered with his
freedom to compete in computer software market by creating his
own operating system, one perhaps with features different from,
or in addition to, that of the GNU/Linux operating system. Indeed,
Mr. Wallace has that ability, regardless of whether the GPL is in
force or not." and failed to address Wallace's arguments on proper
antitrust injury.
I suggest you go read
http://www.rdantitrustlaw.info/shaky.pdf
"This article deals with the ... doctrine of antitrust injury, a
concept that the lower courts have often found difficult to
understand and apply."
I don't think that Judge Tinder has understood and applied it
properly in Wallace's case given that Wallace has alleged
predatory pricing to begin with.
"More generally, competitors may never be heard to complain of
artificially low prices unless they are predatory, because it is
only predatorily low prices that threaten injury to competition.94
94) Id. at 339–40. The Court’s discussion was consistent with the
Brunswick dictum on predatory pricing. See Brunswick, 429 U.S. at
489 n.14 (where there is true predation (not just uncomfortably
aggressive price cutting), a competitor’s lost profits do count as
antitrust injury, even though the predatory practice temporarily
benefits consumers)."
regards,
alexander.
David Kastrup
> < misc.int-property added >
>
> David Kastrup wrote:
> [...]
>> appealing this dismissal is not going to be too easy, ...
>
> Oh really?
Offer Wallace to lay out the money for the appeal, for a share in the
winnings.
--
David Kastrup, Kriemhildstr. 15, 44793 Bochum
David Kastrup
> Alexander Terekhov <tere...@web.de> writes:
>
>> < misc.int-property added >
>>
>> David Kastrup wrote:
>> [...]
>>> appealing this dismissal is not going to be too easy, ...
>>
>> Oh really?
>
> Offer Wallace to lay out the money for the appeal, for a share in the
> winnings.
Actually, no need to. Just start a similarly hare-brained case
yourself. Since Wallace's has been thrown out because of a failure
stating a case, it won't be legal precedence for a case done by yours
truly.
And of course, since the law is quite on your side, and you are so
very versed in it, it should be a safe way to make some money and put
a dent into those pesky Free Software advocates.
Why don't you just follow your own advice and pretensions?
Alexander Terekhov
supra, at 117-118, predatory pricing is an anticompetitive practice
forbidden by the antitrust laws. While firms may engage in the practice
only infrequently, there is ample evidence suggesting that the practice
does occur. 16 It would be novel indeed for a court to deny standing
to a party seeking an injunction against threatened injury merely
because such injuries rarely occur. 17 In any case, nothing in [479
U.S. 104, 122] the language or legislative history of the Clayton Act
suggests that Congress intended this Court to ignore injuries caused by
such anticompetitive practices as predatory pricing."; CARGILL, INC. v.
MONFORT OF COLORADO, INC., 479 U.S. 104 (1986)
"Whether viewed as a result of a per se pooling agreement as in New
Wrinkle Inc, supra, or as a result of a vertical agreement analyzed
under a rule of reason as in State Oil Co. v. Khan, supra, predatory
pricing results in antitrust injury -- it is "inimical to the purposes
of [the antitrust] laws," see Brunswick, 429 U.S., at 488, and ”harms
both competitors and competition”, CARGILL, INC, 479 U.S., at 118.
The plaintiff has alleged future personal injury because of elimination
of market opportunity -- an injury that flows directly from the
threatened market foreclosure:
“… Said predatory price fixing scheme prevents Plaintiff Daniel Wallace
from marketing his own computer operating system as a competitor.”;
Plaintiff’s Fourth Amended Complaint
In the course of vending his competing operating system, the plaintiff
has experienced firsthand the deleterious market effect of the GPL
license when used by a cartel of competitors to distribute the Linux
operating system.
The plaintiff’s complaint has certainly met the pleading requirements
expressed in PEGRAM. ET AL., and Denny's Marina, supra, by directly or
inferentially alleging the element of “an accompanying injury”. "
See also http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf (this
case is still "pending").
regards,
alexander.
David Kastrup
[the usual unrelated pseudoquotes]
Just get over it. The law, as practiced in the courts, is not what
you want it to be. You should really move on and pick a different
hero to worship. The longer you cling to praising the Wallace
nonsense, the more ridiculous you'll look in the end.
Not that this has ever been a consideration of yours.
Alexander Terekhov
David Kastrup wrote:
[...]
> You did not answer the question.
Really? Oh dear. How about this:
http://www.fsf.org/news/wallace-vs-fsf
-----
The GPL tested in US courts - Wallace Vs FSF.
* Send this page to somebody
* Print this page
The GNU General Public License stands firm.
On Monday March 20, 2006 US Federal Judge John Daniel Tinder, dismissed
the Sherman Act antitrust claims brought against the Free Software
Foundation. The claims made by Plaintiff Daniel Wallace included: that
the General Public License (GPL) constituted a contract, combination or
conspiracy; that it created an unreasonable restraint of trade; and that
the FSF conspired with IBM, Red Hat Inc., Novell and other individuals
to pool and cross-license their copyrighted intellectual property in a
predatory price fixing scheme.
Peter Brown, FSF Executive Director, responded to the news, "As the
author of the GPL and copyright holder on the largest body of GPL'd
covered free software, the FSF hears many theories of potential legal
claims and challenges to the GPL. We hear the fear, uncertainty and
doubt (FUD) expressed, that the GPL has never been tested in court, and
that somehow that is a sign of its weakness. Nothing could be further
from the truth of course. Put quite simply, if you don't accept the
terms of the GPL, then you have no rights to the copyrighted works it
covers. What is there left to test? The GPL is a software license, it is
not a contract. It gives permissions from the copyright holder. You
don't want to accept those permissions? End of discussion."
On Monday, a US Federal Court Judge dismissed Daniel Wallace's case
saying "[The GPL] acts as a means by which certain software may be
copied, modified and redistributed without violating the software's
copyright protection. As such, the GPL encourages, rather than
discourages, free competition and the distribution of computer operating
systems, the benefits of which directly pass to consumers. These
benefits include lower prices, better access and more innovation."
Brown continued, "Let us all stop and consider the consequences of what
this US Federal Judge has said. On being presented with the facts
surrounding the GPL, he was able to define a range of benefits available
to those that value the freedoms delivered by the GPL. The question we
are all left with is, why would anyone put up with the inferred
consequences of proprietary software?", and, "If you care about lower
prices, better access to software, or more innovation, then GPL'd
software is for you. Or as the Free Software would describe that, you
value freedom".
Having dismissed the case, and finding in favor of the FSF and against
Wallace, the Judge also allowed FSF costs against Wallace. Wallace now
has thirty days to appeal the decision, but the FSF expects no further
meaningful news on the matter.
About the Free Software Foundation
The Free Software Foundation, founded in 1985, is dedicated to promoting
computer users' right to use, study, copy, modify, and redistribute
computer programs. The FSF promotes the development and use of free (as
in freedom) software - particularly the GNU operating system and its
GNU/Linux variants - and free documentation for free software. The FSF
also helps to spread awareness of the ethical and political issues of
freedom in the use of software. Their Web site, located at www.fsf.org ,
is an important source of information about GNU/Linux. Donations to
support their work can be made at http://donate.fsf.org. Their
headquarters are in Boston, MA, USA.
-----
Oh poor Judge Tinger.
Now, in the mean time... on pacer:
-----
Case 1:05-cv-00678-RLY-VSS Document 58-1 Filed 03/22/2006 Page 1 of 2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DANIEL WALLACE,
Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, RED HAT, INC., and NOVELL,
INC.,
Defendants.
Cause No. 1:05-cv-678-SEB-VSS
SUBMISSION OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF REASSERTED MOTION TO
DISMISS
Defendants, Red Hat, Inc. ("Red Hat"), and Novell, Inc. ("Novell"),
submit the attached Entry Granting Reasserted Motion to Dismiss, entered
in Wallace v. Free Software Foundation, Inc., Cause No.
1:05-cv-0618-JDT-TAB (S.D. Ind. Mar. 20, 2006), attached as Exhibit 1,
as supplemental authority in support of their pending Reasserted Motion
to Dismiss in this action.
Respectfully submitted,
Philip A. Whistler (#1205-49)
Curtis W. McCauley (#16456-49)
Attorneys for Defendants Red Hat, Inc., and Novell, Inc.
ICE MILLER
One American Square Box 82001
Indianapolis, IN 46282-0002
317.236.2100
Case 1:05-cv-00678-RLY-VSS Document 58-1 Filed 03/22/2006 Page 2 of 2
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 22d day of March 2006, a
copy of the foregoing was filed electronically. Notice of this filing
will be sent to the following parties by operation of the Court's
electronic filing system. Parties may access this filing through the
Court's system.
Michael Gottschlich
BARNES & THORNBURG
mgot...@btlaw.com
Kendall H. Millard
BARNES & THORNBURG
kmil...@btlaw.com
The undersigned hereby certifies that on the 22d day of March 2006, a
copy of the foregoing has been deposited in the U.S. mail, first class
postage prepaid, addressed to:
Daniel Wallace
P.O. Box 572
New Palestine, IN 46163
Curtis W. McCauley
ICE MILLER
One American Square Box 82001
Indianapolis, IN 46282-0002
317.236.2100
-----
If I were Wallace I'd probably submit this press release
http://www.fsf.org/news/wallace-vs-fsf
as kinda counter supplemental "authority" in opposition to motion to
dismiss to Judge Young. ;-)
Would be fun regarding Barnes & Thornburg LLP's thoughts on contract
status of the GPL (vs FSF's/Moglen's idiotic theory reiterated in the
press release) to begin with.
Oh, and I'd probably include the GNU Manifesto as well...
www.gnu.org/gnu/manifesto.html
"GNU will remove operating system software from the realm of
competition. You will not be able to get an edge in this area,
but neither will your competitors be able to get an edge over
you. You and they will compete in other areas, while benefiting
mutually in this one. If your business is selling an operating
system, you will not like GNU, but that's tough on you. If your
business is something else, GNU can save you from being pushed
into the expensive business of selling operating systems."
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> You did not answer the question.
>
> Really? Oh dear. How about this:
You still have not answered the question. And all your posting of
irrelavant quotes does not change that. You are weaseling as usual.
How do you suppose the GPL leads to less competition when we have
dozens of competing commercial vendors and versions of GNU/Linux, and
a single vendor for Windows, with a strictly vendor controlled minimal
choice among versions?
Alexander Terekhov
David Kastrup wrote:
[...]
> How do you suppose the GPL leads to less competition
moglen.law.columbia.edu/publications/maine-speech.html
"We construct a protected commons, in which by a trick, an irony, the
phenomena of commons are adduced through the phenomena of copyright,
restricted ownership is employed to create non-restricted, self-
protected commons. The GPL ..."
"So, we now find ourselves, if you will permit me, projected
approximately twenty-five to thirty years into the future. Software
is a service, a public utility, being produced primarily by people we
presently call ``students,'' doing something we presently call
``learning.'' The primary services being sold in the Capitalist
economy with respect to software are project management,
indemnification [aha ha ha], distributional customization, and
tailoring, piece by piece, to the individual needs of consumers."
"Now we have forty percent of the server market. We're going to have
a hundred percent of the appliance market within five years. That's
a trivial economic deduction ..."
Or do you disagree with the your fellow GNUtian Number Two and coauthor
of the GPL v3, dak?
Well, we'll see how the Judge Young will deal with the GPL and Wallace's
allegations.
If Judge Young in the IBM case reads and considers Wallace's 2nd Answer
Brief I am confident that the Motion to Dismiss will be denied.
If the Judge refuses to even read the plaintiff's Answer Brief as Judge
Tinder obviusly did then it's probably over.
There is an interesting 2003 case in which Judge Young was appealed to
the Seventh Circuit. In that case, the Seventh Circuit noted that a
predatory pricing allegation constitutes an allegation of antitrust
injury:
"An underlying question regarding this tying claim is whether the
plaintiffs have suffered an antitrust injurym as a result. Suits cannot
be brought under § 4 of the Clayton Act unless “a private party is
adversely affected by an anticompetitive aspect of the defendant’s
conduct.” Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 339
(1990) (citing Brunswick, 429 U.S. at 487) (emphasis in original).
Neither plaintiff claims that the prices that ProLiance charged for
the gas itself or its transportation were predatory, or that ProLiance
somehow injured its customers by charging excessive prices for either
gas transportation or gas.
. . . That the plaintiffs’ losses stem from this behavior and not
behavior that is anticompetitive, e.g., predatory pricing, means that
they cannot make a tying claim against ProLiance that can withstand a
motion to dismiss, since “the antitrust laws do not require the courts
to protect small businesses from the loss of profits due to continued
competition, but only against the loss of profits from practices
forbidden by the antitrust laws.” Cargill, 479 U.S. at 116; see also
Atl. Richfield, 495 U.S. at 340-41; Jefferson Parish, 466 U.S. at 14. ";
Midwest Gas Services, Inc. v. Indiana Gas Co., 317 F.3d 703 (7th Cir.),
cert. denied, 540 U.S. 817 (2003)"
If I were Wallace I'd add "GPL incompatible" boycott scheme to the
mix right from the beginning... and file together with some victim
(there are many).
----
Summit Health concerned the allegations by ophthalmologist/eye
physician Pinhas that Summit Health, Midway Hospital Medical Center,
its medical staff and others had entered into a conspiracy to drive
Pinhas out of business so that other ophthalmologists and eye
physicians, including four of the defendants, will have a greater
share of the eye care and ophthalmic surgery in Los Angeles.
The Supreme Court held that "[Plaintiff] Pinhas' allegations satisfy
the Act's jurisdictional requirements. To be successful, Pinhas need
not allege an actual effect on interstate commerce. Because the
essence of any Section 1 violation is the illegal agreement itself,
the proper analysis focuses upon the potential harm that would ensure
if the conspiracy were successful, not upon actual consequences. And
if the conspiracy alleged in the complaint is successful, as a matter
of practical economics there will be a reduction in the provision of
ophthalmological services in the Los Angeles market. Thus, petitioners
[i.e., defendants] erroneously content that a boycott of a single
surgeon, unlike a conspiracy to destroy a hospital department or a
hospital, has no effect on interstate commerce because there remains
an adequate supply of others to perform services for his patients.
This case involves an alleged restraint on the practice of
ophthalmological services accomplished by an alleged misuse of a
congressionally regulated peer review process, which has been
characterized as the gateway controlling access to the market for
Pinhas' services. When the competitive significance of respondent's
exclusion from the market is measured, not by a particularized
evaluation of his practice, but by a general evaluation of the
restraint's impact on other participants and potential participants
in that market, the restraint is covered by the Act. Pp. 328-333."
----
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> How do you suppose the GPL leads to less competition
[Other irrelevant quotings snipped]
So you feel unable to face the facts. Thanks for making this obvious.
You shouldn't complain, however, that the judge in this case has _not_
like you ignored the plain facts.
The court has to decide about facts, not buzzwords. And the fact is
that there is much more competition going on for GNU/Linux system
producers than for proprietary vendors. People are tied down with one
vendor once they pick a proprietary system, because all of the vendors
defend their own incompatibilities in order to avoid and harm
competition.
And this incompetitiveness at the harm of the customer is not present
with GNU/Linux. You can transfer your software among platforms of
different vendors. Yes, there are problems, but they are not
insurmountable, and not cloaked, and not willful.
And irrelevant quotes of yours do not change that.
Alexander Terekhov
David Kastrup wrote:
[...]
> So you feel unable to face the facts.
The fact is that the GPL price-fixes IP at zero. The fact is that
zero is below cost of IP creation and hence is predatory. As for the
rest,
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=495&invol=328
"Held:
1. Actionable "antitrust injury" is an injury of the type the
antitrust laws were intended to prevent and that flows from that which
makes defendants' acts unlawful. Injury, although causally related to
an antitrust violation, will not qualify unless it is attributable to
an anticompetitive aspect of the practice under scrutiny, since it is
inimical to the antitrust laws to award damages for losses stemming
from continued competition. Cargill, Inc. v. Monfort of Colorado, Inc.,
479 U.S. 104, 109 -110. P. 334
2. A vertical, maximum-price-fixing conspiracy in violation of 1
of the Sherman Act must result in predatory pricing to cause a competitor
antitrust injury. Pp. 335-341."
> Thanks for making this obvious.
> You shouldn't complain, however, that the judge in this case has _not_
> like you ignored the plain facts.
Judge Tinder clearly erred.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> So you feel unable to face the facts.
>
> The fact is
The fact is that there is a lot of competition between GNU/Linux
vendors and very little between proprietary operating system vendors
because they all create incompatible environments for the purpose of
locking in the customer, to his detriment.
And all your weazeling around the facts and quoting of irrelevant
material and creative snippage does not change that Judge Tinder got
this quite right.
Alexander Terekhov
David Kastrup wrote:
[...]
> Judge Tinder got
nothing quite right. He even said that price-fixing IP at zero results
in "more innovation." Very interesting. Perhaps Wallace should submit
(as his supplemental authority) to Judge Young the following paper by
a bunch of PhDs:
"We emphasize that our results come from simulation of the model and
parameters chosen. However, the findings do suggest, over a wide range
of parameters, that a relatively small share of software development
by a sector operating under the GPL is sufficient to diminish overall
innovation. Given the importance of new computer programs in reducing
the costs of producing consumer goods, there would be an additional
deleterious impact on productivity growth in the wider economy."
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> Judge Tinder got
>
> nothing quite right. He even said that price-fixing IP at zero results
> in "more innovation."
He said nothing of that sort AFAICT, and anyway, if you want to post
something completely irrelevant to what I have posted before, feel
free to start a new thread for it. No need to quote three words and
come up with something completely irrelevant.
If you are unable to counter something, don't fake around it. It does
not fool anybody.
Alexander Terekhov
David Kastrup wrote:
[...]
> > in "more innovation."
>
> He said nothing of that sort AFAICT,
Fire a search for "more innovation" in
http://www.groklaw.net/pdf/WallaceFSFGrantingDismiss.pdf
It's right before "See Jason B. Wacha, Taking the Case: Is the GPL
Enforceable, 21 Santa Clara Computer & High Tech L.J. 451, 487
(2005)" by Vice President, corporate affairs and General Counsel of
MontaVista Software, which is one of the un-named co-conspirators...
just perfect authority to rely upon for an unbiased court.
"MontaVista provides a commercial-grade Linux-based operating system
and universal development platform." http://www.mvista.com/
Nothing like an unbiased court is there? Pretty sad.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> > in "more innovation."
>>
>> He said nothing of that sort AFAICT,
>
> Fire a search for "more innovation" in
>
> http://www.groklaw.net/pdf/WallaceFSFGrantingDismiss.pdf
So your pseudo-quote about "price-fixing at zero" was a plain lie.
Thanks for proving my point. He indeed said nothing of that sort.
> It's right before "See Jason B. Wacha, Taking the Case: Is the GPL
> Enforceable, 21 Santa Clara Computer & High Tech L.J. 451, 487
> (2005)" by Vice President, corporate affairs and General Counsel of
> MontaVista Software, which is one of the un-named co-conspirators...
> just perfect authority to rely upon for an unbiased court.
Stop, they are mostly downstream, so according to your theory they
would be prevalently victims of the GPL as it pertains to Linux, not
co-conspirators. Who better to rely on than the purportedly harmed
party?
> "MontaVista provides a commercial-grade Linux-based operating system
> and universal development platform." http://www.mvista.com/
Well, you post with a GPLed Usenet reader on a GNU/Linux-run server,
so you are obviously also biased.
Alexander Terekhov
David Kastrup wrote:
[...]
> So your pseudo-quote about "price-fixing at zero" was a plain lie.
Oh dear.
http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-17.pdf
"A. Vertical maximum price restraints are not per se unlawful.
The essence of Plaintiff's Complaint appears to be directed at
Section 2(b) of the GPL, which requires licensees of GPL’d software
to license any derivative works they create at no charge. Assuming
for the sake of argument that Plaintiff has standing to bring this
Complaint, this agreement could be analogized to a vertical maximum
price restraint, i.e., a requirement by the licensor that the
licensee charge no more than X amount upon relicense."
-- FSF
Can you read "price restraint" and "no more than X" (X == zero)?
http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-30.pdf
"In the provision relevant here, the GPL directs users to “cause
any work that [they] distribute or publish, that in whole or in
part contains or is derived from the Program or any part thereof,
to be licensed as a whole at no charge to all third parties under
the terms of this License.” (GPL 3.) This language indicates that
the GPL is typically entered into between licensees and licensors,
with the intent of prohibiting licensees from charging a fee for
use of certain computer software programs. This scheme, which
involves an agreement among different levels of users within the
same chain of distribution, is a vertical agreement. And as a
vertical agreement, the GPL alone cannot form the basis of a per
se violation of Section 1 of the Sherman Act. See State Oil Co.
v. Khan, 522 U.S. 3, 22 (1997) (“vertical maximum price fixing,
like the majority of commercial arrangements subject to antitrust
laws, should be evaluated under the rule of reason.”). Therefore,
the court must turn to whether Mr. Wallace has adequately alleged
that the GPL violates the rule of reason."
-- Judge Tinder
Can you read "prohibiting licensees from charging a fee" and "price
fixing"?
regards,
alexander.
P.S. "Held:
1. Actionable "antitrust injury" is an injury of the type the
antitrust laws were intended to prevent and that flows from that
which makes defendants' acts unlawful. Injury, although causally
related to an antitrust violation, will not qualify unless it is
attributable to an anticompetitive aspect of the practice under
scrutiny, since it is inimical to the antitrust laws to award
damages for losses stemming from continued competition. Cargill,
Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 109 -110. P. 334
2. A vertical, maximum-price-fixing conspiracy in violation
of 1 of the Sherman Act must result in predatory pricing to cause
a competitor antitrust injury. Pp. 335-341."
-- Supreme Court of the United States
P.P.S. "Mr. Wallace adds a section in the Fourth Amended Complaint
entitled “INJURY,” in which he states that the predatory price
fixing scheme ... the court finds that Mr. Wallace’s Fourth Amended
Complaint does not adequately allege an antitrust injury upon which
his Section 1 claim may move forward. The complaint therefore must
be dismissed."
-- Judge Tinder, erred
David Kastrup
> David Kastrup wrote:
> [...]
>> So your pseudo-quote about "price-fixing at zero" was a plain lie.
>
> Oh dear.
>
> http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-17.pdf
>
> "A. Vertical maximum price restraints are not per se unlawful.
>
> The essence of Plaintiff's Complaint appears to be directed at
> Section 2(b) of the GPL, which requires licensees of GPL'd software
> to license any derivative works they create at no charge. Assuming
> for the sake of argument that Plaintiff has standing to bring this
> Complaint, this agreement could be analogized to a vertical maximum
> price restraint, i.e., a requirement by the licensor that the
> licensee charge no more than X amount upon relicense."
>
> -- FSF
>
> Can you read "price restraint" and "no more than X" (X == zero)?
Can you read "assuming for the sake of argument"? Can you read
"relicense"? There is no "price fixing" for the intellectual property
of anybody except the original licensor, and of course he can set the
price for his own stuff.
Alexander Terekhov
David Kastrup wrote:
[...]
> > "A. Vertical maximum price restraints are not per se unlawful.
> >
> > The essence of Plaintiff's Complaint appears to be directed at
> > Section 2(b) of the GPL, which requires licensees of GPL'd software
> > to license any derivative works they create at no charge. Assuming
> > for the sake of argument that Plaintiff has standing to bring this
> > Complaint, this agreement could be analogized to a vertical maximum
> > price restraint, i.e., a requirement by the licensor that the
> > licensee charge no more than X amount upon relicense."
> >
> > -- FSF
> >
> > Can you read "price restraint" and "no more than X" (X == zero)?
>
> Can you read "assuming for the sake of argument"?
Oh dear, I have no problem to assume that Wallace has standing. :-)
See "STANDING ON SHAKY GROUND: THE STRANGELY ELUSIVE DOCTRINE OF
ANTITRUST INJURY":
http://www.rdantitrustlaw.info/shaky.pdf "More generally, competitors
may never be heard to complain of artificially low prices unless they
are predatory, because it is only predatorily low prices that threaten
injury to competition.94 94) Id. at 339–40. The Court's discussion was
consistent with the Brunswick dictum on predatory pricing. See
Brunswick, 429 U.S. at 489 n.14 (where there is true predation (not
just uncomfortably aggressive price cutting), a competitor's lost
profits do count as antitrust injury, even though the predatory
practice temporarily benefits consumers)."
http://www.justia.us/us/495/328/case.html
"Although a vertical, maximum-price-fixing agreement is unlawful under
1 of the Sherman Act, it does not cause a competitor antitrust injury
unless it results in predatory pricing." -- U.S. Supreme Court
And Judge Tinder clearly erred.
Hopefully Judge Young will do better.
regards,
alexander.
Merijn de Weerd
> "Although a vertical, maximum-price-fixing agreement is unlawful under
> 1 of the Sherman Act, it does not cause a competitor antitrust injury
> unless it results in predatory pricing." -- U.S. Supreme Court
You have yet to show that setting a price at zero is predatory
pricing. Just selling below cost is not by definition predatory.
Merijn
--
Remove +nospam to reply
Alexander Terekhov
Merijn de Weerd wrote:
[...]
> You have yet to show that setting a price at zero is predatory
> pricing.
Wallace on predatory pricing:
-------
Predatory pricing
The GPL establishes a predatory pricing scheme. Setting the maximum
price of intellectual property at “no charge” removes all motive to
compete. The Supreme Court has analyzed predatory pricing in a Sherman
Act § 1 civil action:
“…[T]his is a Sherman Act 1 case. For purposes of this case, it is
enough to note that respondents have not suffered an antitrust injury
unless petitioners conspired to drive respondents out of the relevant
markets by (i) pricing below the level necessary to sell their products,
or (ii) pricing below some appropriate measure of cost.” MATSUSHITA
ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574 (1986) [fn8].
If we exam case (i) “pricing below the level necessary to sell their
products” the obvious result of the GPL is the destruction of interbrand
competition (see State Oil Co. v. Khan, supra) when the maximum price of
intellectual property is set at zero (“no charge”). New developers and
vendors of intellectual property cannot enter a market for which there
is no reward or incentive.
Not only competitors are harmed by the GPL scheme. Consumers lose
because a lack of competition removes not just product choice but
without competitive reward the incentive to improve product quality
disappears.
When we analyze case (ii) “pricing below some appropriate measure of
cost” we see that a maximum price of zero for the intellectual property
in computer programs leads to an absurd result. In addition to the
intrinsic value ordained by Art. I, §8, cl. 8 of the Constitution, the
cost of creation of intellectual property in computer programs entails
the development costs of skilled programmers, new computer hardware,
communications costs and administrative overhead. Commercial computer
programs are not developed in a zero cost vacuum -- that is an absurd
proposition. A maximum price of zero is below any reasonable definition
of “appropriate measure of cost” concerning development and innovation
of intellectual property assets.
The only economic motive for using GPL licensed intellectual property in
a competitive market for computer operating systems is to destroy a
competitor who is striving to create positive value based in
intellectual property. The Supreme Court has addressed the practical
evidentiary burden for a predatory pricing claim:
“As a practical matter, it may be that only direct evidence of
below-cost pricing is sufficient to overcome the strong inference that
rational businesses would not enter into conspiracies such as this one”;
MATSUSHITA ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574
(1986)[fn9].
The GPL’s term 2(b) is without question direct evidence of a below-cost
pricing scheme. Commercial distributors of GPL licensed products
conspire to give away their assets in intellectual property and then
recoup losses by leveraging ancillary markets such as computer hardware
sales (computer hardware obviously requires an operating system),
software consulting fees, employee training programs and computer
maintenance services. (One uncharged co-conspirator, INTERNATIONAL
BUSINESS MACHINES CORPORATION, is the World’s largest computer hardware
and computing services corporation.)
The effect of the GPL license is to create a Marxist-Leninist model for
computer programs, where a vast pool of intellectual property is
collectively price fixed at “no charge” and thus removed from commercial
exploitation. In time, due to its recursive nature, the GPL’s pool of
price fixed intellectual property can grow to utterly destroy a targeted
market.
It is not consumers that the GPL intends to benefit -- the goal is the
destruction of competition in the free market. The GPL license renders
U. S. Const., Art. I, §8, cl. 8 meaningless in the context of computer
programs containing copyrights and patents.
The defendants assert:
“The GPL expressly allows Defendants, and any other licensee, to charge
a fee to recover the variable or incremental costs associated with
distributing software licensed under the GPL: You may charge a fee for
the physical act of transferring a copy..”
Defendants Brief at 5.
Here, the defendants attempt to conflate the definition of intangible
copyright assets with the physical media in which a work is embodied:
“Ownership of a copyright, or of any of the exclusive rights under a
copyright, is distinct from ownership of any material object in which
the work is embodied. ..”;17 USC sec. 202.
The present claim is for price fixing in the relevant market of
intangible intellectual property assets in computer programs (the Linux
operating system) and not an action concerning tangible media or
“physical acts” involving the distribution of tangible media in which a
copyrighted work may be fixed.
The plaintiff’s complaint has certainly met the pleading requirements
expressed in PEGRAM. ET AL., and Denny's Marina, supra, by directly or
inferentially alleging the element of “an resultant unreasonable
restraint of trade in the relevant market”.
-------
regards,
alexander.
David Kastrup
A "scheme" can be so in this context. Too bad there is no scheme.
The GPL just applies to software licensed by the copyright bearer.
People choosing to contribute in this project don't do this because of
a pricing scheme they fix behind the backs of their competitors. They
do it by heeding the license. And all of their competitors are free
to do the same, if they wanted to. If they don't want to, they are
free to license their own stuff differently.
It is not a "price fixing scheme" if independent Windows users all
heed the EULA.
So why would it be one if independent GPLed software users all heeded
the GPL?
Merijn de Weerd
> [...]
>> You have yet to show that setting a price at zero is predatory
>> pricing.
>
> Wallace on predatory pricing:
Wallace got dismissed because he could not show injury.
Without injury there is no antitrust violation. So why
are you quoting someone who could not show an antitrust
violation to support an allegation of antitrust violation?
Please try to write your own response this time, instead
of pick-and-choose quotes from losers' briefs.
Alexander Terekhov
Merijn de Weerd wrote:
[...]
Judge Tinder silently ignored Wallace's argument regarding predatory
pricing which is central to antitrust injury in Wallace's case. The
Judge didn't explain why he did it. To me, it appears that he is less
versed in antitrust than Wallace.
regards,
alexander.
David Kastrup
To you a lot of things appear. Legal competence necessitates a
certain correlation to what things appear to judges. And they
apparently have not been raised in Terekhov land.
Merijn de Weerd
> [...]
>> Wallace got dismissed because he could not show injury.
>
> Judge Tinder silently ignored Wallace's argument regarding predatory
> pricing which is central to antitrust injury in Wallace's case. The
The argument was "GPL makes prices for operating systems drop, so
I can't sell my (hypothetical) OS anymore". That's not enough
to prove predatory pricing. It hurts Wallace, but it doesn't
hurt the market. People are selling the BSDs, MacOS, Windows
and other operating systems. That shows the market is working.
Alan Mackenzie
> Merijn de Weerd wrote:
> [...]
>> You have yet to show that setting a price at zero is predatory
>> pricing.
> Wallace on predatory pricing:
> -------
> Predatory pricing
> The GPL establishes a predatory pricing scheme. Setting the maximum
> price of intellectual property ....
It's like Richard Stallman says - if you start using the vague, woolly,
almost meaningless abstraction "intellectual property" as though it had
some concrete meaning, you will confuse your listeners, and eventually
confuse yourself.
Your confuson here is that computer users don't buy "intellectual
property", and the pertinent market isn't one for "intellectual property"
- it's for computers, programs, operating systems, support services,
whatever, and it is these that users buy. The GPL doesn't fix any
price for these things, and the FSF's philosopy explicitly states you are
free to sell a GPL'd program for any price you can get. Companies can,
and do, sell GPL licensed programs at a non-zero price and they make a
good profit doing so.
[ .... ]
> Not only competitors are harmed by the GPL scheme. Consumers lose
> because a lack of competition removes not just product choice but
> without competitive reward the incentive to improve product quality
> disappears.
This is specious argumentation based on unfounded assumptions. Or, in
plain English, a load of bollocks. What is important is that product
quality improves, and in the case of major GPL'd products (like the Linux
kernel) it is clearly happening. Partly, this is because Linux is in
competition with MS-Windows, which is also spurred to improvement by the
competition.
But it is also clear that competitive reward is not the only incentive to
improve the quality of a computer program.
[ .... ]
> alexander
--
Alan Mackenzie (Munich, Germany)
Email: aa...@muuc.dee; to decode, wherever there is a repeated letter
(like "aa"), remove half of them (leaving, say, "a").
Alan Mackenzie
> David Kastrup wrote:
> [...]
>> So you feel unable to face the facts.
> The fact is that the GPL price-fixes IP at zero. The fact is that zero is
> below cost of IP creation and hence is predatory. As for the rest,
Whatever "IP" might mean.
The fact is, I can go out and buy SuSE Linux, but it'll cost me about 70
Euros. I believe Red Hat Linux costs about the same. Last summer, I
bought Debian Sarge GNU/Linux for 9 Euros. It was cheaper because it was
just two DVDs, had no paper documentation and came without support. I
could also have downloaded a perfectly good Linux "for nothing", if I had
a high enough capacity internet connection.
It would appear that this "price fixing" supposedly practiced by IBM and
co is ineffective, since SuSE (Novell), Red Hat and so on are prospering.
How come this price fixing hasn't driven them out of business?
I think you've misunderstood the term "predatory", as in predatory
pricing. "Predator" is a zoological term, describing an animal that
hunts and kills another so as to eat it. By analogy, "predatory pricing"
is that done specifically to destroy another company. This isn't the aim
of GPL software, and since GPL software is (in effect) sold at a fair
price (e.g. 70 Euros for a set), it's not its effect either.
> Judge Tinder clearly erred.
Unlikely. He's a judge, after all, and thus an acknowledeged expert on
the law. I think it's far more likely that you have erred.
> alexander.
Alexander Terekhov
Alan Mackenzie wrote:
>
> Alexander Terekhov <tere...@web.de> wrote on Fri, 24 Mar 2006 18:59:39 +0100:
>
> > David Kastrup wrote:
> > [...]
> >> So you feel unable to face the facts.
>
> > The fact is that the GPL price-fixes IP at zero. The fact is that zero is
> > below cost of IP creation and hence is predatory. As for the rest,
>
> Whatever "IP" might mean.
In the context of Wallace's case, "IP" means (licensing of) copyrights
and ("software") patents.
FSF:
http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-17.pdf
"courts recognized that the unique attributes of intellectual property
licenses made per se treatment of vertical price restraints in software
licenses inappropriate. See LucasArts Entertainment Company vs. Humongous
Entertainment Company, 870 F. Supp. 285 (N.D.Cal. 1993) (granting summary
judgment against licensee who claimed that license provision regulating
resale prices for derivative works violated the Sherman Act)."
Note that it was a summary summary judgment (not Rule 12(b)(6)
dismissal) and it didn't involve predatory pricing.
Now, here's more on that case cited by the FSF.
----
In the intellectual property context, however, one federal court held
that the Cartwright Act did not prohibit, under the per se rule or
otherwise, a provision in a software licensing agreement which
prohibited the licensee from selling the licensed program at less than
a certain price to anyone other than the licensor. LucasArts
Entertainment Co. v. Humongous Entertainment Co., 870 F. Supp. 285
(N.D. Cal. 1993). The court relied on a federal decision, United
States v. General Electric, 272 U.S. 476 (1926), which held that
patent owners had the power to restrict prices at which licensees
sold. Although the General Electric case has not been overruled, its
continuing validity is questionable, as the United States Supreme
Court has twice split four to four on whether to overrule it and the
federal enforcement authorities decline to follow it.
----
And
----
The GE ruling on price-fixing has been heavily qualified but never
overruled. Any deviation from the GE-Westinghouse single-
manufacturing-licensee paradigm is virtually certain to be held
an antitrust violation (and therefore misuse as well). Thus, cross-
licenses with price restrictions are illegal. So, too, are licenses to
more than one licensee, which, in effect, put together a price-fixing
combination among licensees. The Supreme Court has twice divided 4-4
on whether to overrule GE. United States v. Line Material Co., 333
U.S. 287 (1948); United States v. Huck Mfg. Co., 382 U.S. 197 (1965).
The Antitrust Division has for years searched for a vehicle to
overturn GE but has never succeeded in getting a candidate to hold
still long enough to grab it. See ABA, Antitrust Law Developments
3d 822 & nn. 167-68.
----
>
> The fact is, I can go out and buy SuSE Linux, but it'll cost me about 70
> Euros. I believe Red Hat Linux costs about the same. Last summer, I
Wallace:
----
Here, the defendants attempt to conflate the definition of intangible
copyright assets with the physical media in which a work is embodied:
“Ownership of a copyright, or of any of the exclusive rights under a
copyright, is distinct from ownership of any material object in which
the work is embodied. ..”;17 USC sec. 202.
The present claim is for price fixing in the relevant market of
intangible intellectual property assets in computer programs (the Linux
operating system) and not an action concerning tangible media or
“physical acts” involving the distribution of tangible media in which a
copyrighted work may be fixed.
----
regards,
alexander.
Alexander Terekhov
Alexander Terekhov
Alexander Terekhov wrote:
>
> Merijn de Weerd wrote:
>
> [... BSDs ...]
>
> http://www.danwal.com/
Domain name: DANWAL.COM
Administrative Contact:
wallace, daniel danw...@insightbb.com
3874 S. Redbird Trail
New Palestine, IN 46163
US
317-861-6415
Technical Contact:
wallace, daniel danw...@insightbb.com
3874 S. Redbird Trail
New Palestine, IN 46163
US
317-861-6415
regards,
alexander.
Merijn de Weerd
> Alexander Terekhov wrote:
>> http://www.danwal.com/
>
> Domain name: DANWAL.COM
>
> Administrative Contact:
Do you enjoy posting other people's address information on
public fora?
Anyway, if you start posting whois output I guess you don't
even have cases to quote from, so that must mean we're done here.
Alexander Terekhov
Merijn de Weerd wrote:
>
> On 2006-03-25, Alexander Terekhov <tere...@web.de> wrote:
> > Alexander Terekhov wrote:
> >> http://www.danwal.com/
> >
> > Domain name: DANWAL.COM
> >
> > Administrative Contact:
> > wallace, daniel ...
>
> Do you enjoy posting other people's address information on
> public fora?
His address information is publicly available. Just like mine.
http://www.goyellow.de (satellite foto is a bit outdated ;-) )
So what's the problem?
>
> Anyway, if you start posting whois output I guess you don't
> even have cases to quote from, so that must mean we're done here.
It must? Well, come back soon.
regards,
alexander.
Graham Murray
> The fact is that the GPL price-fixes IP at zero. The fact is that
> zero is below cost of IP creation and hence is predatory. As for the
> rest,
The GPL does not fix the price of anything. It gives freedoms in the
sense of a 'free man' not in the sense of 'free of charge'.
Alexander Terekhov
It gives "freedom" as in the GNU Republic where software belongs to
state (and hence it is regulated by state permits akin to lottery or
gun dealership which are neither contracts nor property rights), and
both 17 USC 109 and 17 USC 117 are simply nonexistent. Then comes the
doctrine of copyright misuse... GPL violation of which has raised to
the level of antitrust violation according to Wallace (note that 2nd
Wallace's case is still pending before Judge Young... and I just can't
imagine that Judge Tinder's blackout regarding below cost pricing
conspiracy causing antitrust injury could possibly withstand an appeal)
and according to Prof. Nadan it doesn't even have to raise to the level
of antitrust violation because linking claims alone are sufficient to
put the entire GPL'd code base into quasi public domain (the penalty
for copyright misuse). So pick your choice, GNUtians.
regards,
alexander.
P.S. "Standard antitrust analysis applies to intellectual property
The Agencies apply the same general antitrust principles to
conduct involving intellectual property that they apply to conduct
involving any other form of tangible or intangible property. That is
not to say that intellectual property is in all respects the same as
any other form of property. Intellectual property has important
characteristics, such as ease of misappropriation, that distinguish
it from many other forms of property. These characteristics can be
taken into account by standard antitrust analysis, however, and do
not require the application of fundamentally different principles.(9)
Although there are clear and important differences in the
purpose, extent, and duration of protection provided under the
intellectual property regimes of patent, copyright, and trade secret,
the governing antitrust principles are the same. Antitrust analysis
takes differences among these forms of intellectual property into
account in evaluating the specific market circumstances in which
transactions occur, just as it does with other particular market
circumstances.
Intellectual property law bestows on the owners of intellectual
property certain rights to exclude others. These rights help the
owners to profit from the use of their property. An intellectual
property owner's rights to exclude are similar to the rights enjoyed
by owners of other forms of private property. As with other forms of
private property, certain types of conduct with respect to
intellectual property may have anticompetitive effects against which
the antitrust laws can and do protect. Intellectual property is thus
neither particularly free from scrutiny under the antitrust laws, nor
particularly suspect under them."
-- Antitrust Guidelines for the Licensing of Intellectual Property
Alexander Terekhov
http://gplv3.fsf.org/discussion-committees/D/logs/log20060321
Now, but this
http://gplv3.fsf.org/discussion-committees/D/logs/log20060228/
eposode is by far the best and deserves copy&paste.
Oh poor Java, PHP, and other "interpreters". ROFL.
Copyright © 2006 Free Software Foundation, Inc., 51 Franklin Street,
Fifth Floor, Boston, MA 02110-1301, USA. Verbatim copying and
distribution of this entire article are permitted worldwide, without
royalty, in any medium, provided this notice, and the copyright notice,
are preserved.
-----
Log of 2006/02/28 meeting
by novalis — last modified 2006-03-07 15:45
22:04 <@novalis_dt> Let's start with a roll call. Who's here?
22:04 <@novalis_dt> David Turner, FSF
22:04 <+MarkDoliner> Mark Doliner, Gaim
22:04 <+fontana> Richard Fontana, SFLC
22:04 <+scalesda> Daniel Scales, Choate, Hall & Stewart
22:04 <+dondelelcaro> Don Armstrong
22:05 <+dondelelcaro> let me get the gobby going too
22:05 <@novalis_dt> thanks, Don.
22:05 <@novalis_dt> jblack, I know I saw you earlier...
22:05 <+jblack> James Blackwell, Bazaar-NG
22:06 <+dondelelcaro> ok... gobby is working
22:07 <@novalis_dt> OK. First order of business: any volunteers to
coordinate, or shall I?
22:07 <@novalis_dt> OK, any objections to me coordinating?
22:07 <+tomislav_medak> hi, guys
22:08 <@novalis_dt> Great, passed by consensus.
22:08 <+tomislav_medak> novalis_dt: no objection, it seems to be your
eternal doom
22:08 <@novalis_dt> Welcome to Masayuki Hatta, new member.
22:08 <@novalis_dt> Remind me of the name of the other guy we were
voting on?
22:09 <@novalis_dt> sedwards?
22:09 <+dondelelcaro> sounds right
22:09 <@novalis_dt> oh, nevermind, I found it.
22:09 <@novalis_dt> Unfortunately, I don't seem to be configured to view
results on that one.
22:09 <@novalis_dt> I'll play with it later.
22:10 <@novalis_dt> Anyway, jblack, you had taken a couple of issues. Do
you want to discuss them?
22:10 <+jblack> Not at this point. Its been a busy week for me, so I
didn't have time for the FAQ. :(
22:11 <+Rickerby> Hi Sorry I'm late
22:11 <@novalis_dt> Rickerby, No worries.
22:11 <@novalis_dt> Oh, we should also approve last week's minutes.
22:11 <@novalis_dt>
ttp://gplv3.fsf.org/discussion-committees/D/minutes/minutes_20060221
22:11 <@novalis_dt> Any comments on them before we approve them?
22:12 <@novalis_dt> Any objections to approving them?
22:12 <+dondelelcaro> they look fine to me
22:12 <+jblack> look good to me
22:12 <@novalis_dt> OK, if there are no objections, approved by
consensus.
22:13 <@novalis_dt> Don, any progress on the API key issue?
22:14 <@novalis_dt> One of the other committees also discussed a related
issue of authentication codes for cell phone networks, for instance?
22:15 <@novalis_dt> Don was going to look at the CCSC provision and try
to draw up a list of required and non-required keys, which we could then
build rules from.
22:16 <@novalis_dt> (is this thing on?)
22:16 <+MarkDoliner> Yes :-)
22:17 <@novalis_dt> OK, don is probably AFK.
22:17 <@novalis_dt> We'll move on and see what progress obra has made.
22:17 <@novalis_dt> Jesse?
22:18 <@novalis_dt> OK, is mako here?
22:18 <@novalis_dt> Ok, since nobody who has outstanding issues is
prepared, is there any new business? Any comments that people are
interested in?
22:19 <@novalis_dt> I have an item or two myself, which I haven't yet
added as comments.
22:19 <@novalis_dt> OK, here's my theory, and we'll see if anyone thinks
it's worth discussing:
22:20 * jblack listens
22:20 <@novalis_dt> I think the major components/system library
exception should permit all interpreter bindings.
22:20 <@novalis_dt> Let me explain.
22:20 <@novalis_dt> Let's say there's some GPL library -- libfoo.
22:20 <@novalis_dt> People want to access libfoo from Java, from PHP,
and from all manner of proprietary and GPL-incompatibly-licensed
languages.
22:21 <@novalis_dt> Even though the interpreters for these languages are
non-free, free software can still be written in the languages.
22:21 <@novalis_dt> I propose that any GPL library ought to be allowed
to link against one of these interpreters to the extent necessary to
expose the library functionality in the language.
22:22 <@novalis_dt> Now, this isn't a general-purpose loophole, because
it won't allow just any linking. Only bindings. And when code uses the
library through the bindings, it will still have to be GPL.
22:22 <@novalis_dt> So, I don't think this weakens copyleft any.
22:22 <+fontana> novalis_dt: How is this being treated under GPLv2?
22:22 <@novalis_dt> fontana, it's not permitted, because these
interpreters are incompatible with the GPL.
22:23 <@novalis_dt> fontana, Is my proposal clear?
22:23 <+jblack> My gutshot reaction would be no. I wouldn't want to help
make proprietary software better.
22:23 <+fontana> Yes, I understand it.
22:23 <+MarkDoliner> I think I kind of agree with jblack
22:23 <@novalis_dt> jblack: I'm not convinced that it helps proprietary
software very much at all.
22:24 <@novalis_dt> It makes it easier to write free programs in
languages without free interpreters.
22:24 <@novalis_dt> But it doesn't make it any easier to write non-free
programs.
22:24 <+MarkDoliner> It takes away the incentive for the interpreters to
be GPL compatible
22:25 <+MarkDoliner> But then I guess it promotes free software for
programs without free interpreters, so it seems like a trade off
22:25 <@novalis_dt> MarkDoliner, that's true -- but I think most people
who write libraries tend to allow linking with non-GPL-but-free
interpreters anyway.
22:25 <@novalis_dt> I don't know of anyone saying, for instance, "no,
you can't make PHP bindings for my GPL library."
22:26 <@novalis_dt> It's possible that it's happened and I didn't hear
about it.
22:26 <@novalis_dt> MarkDoliner, does GAIM have a library form?
22:26 <@novalis_dt> Or is it just a desktop app?
22:26 <+MarkDoliner> Not officially. We're working towards having a
"libgaim," and Adium uses a version of libgaim that they maintain
22:27 <@novalis_dt> And would it be your project's inclination to permit
PHP bindings for this? (for instance, for a web <-> AIM gateway).
22:28 <+jblack> Here's the problem with that. That proprietary product
is probably competing with equivilant free software, right? If you give
proprietary software the same access as the free software, they've just
lost an important edge.
22:28 <@novalis_dt> jblack, So, we're not giving people any incentive to
write in Python as opposed to PHP?
22:29 <@novalis_dt> jblack, That's a very good point.
22:29 <+MarkDoliner> I can't speak for everyone else, but I think most
developers would be in favor of allowing PHP bindings for it (although,
from a technical standpoint I don't think it would work at all because
of the way libgaim is architected, but that's not really important for
this discussion)
22:29 <@novalis_dt> MarkDoliner, What about Java bindings (assuming that
they only worked with Sun's Java)?
22:30 <+jblack> MarkDoliner: There's certainly a distiction between
incompatible software and nonfree software. PHP would probably be fine.
Sun's java though?
22:30 <+MarkDoliner> Ok, I guess I see your point
22:31 <+MarkDoliner> Linux is to an ELF executable as a Sun JVM is to
Java bytecode
22:32 <+MarkDoliner> And when you think of it that way, the Sun JVM
should be included in the OS library exclusion thingy
22:32 <@novalis_dt> MarkDoliner, the Sun java.lang.* is in there, too.
22:32 <@novalis_dt> MarkDoliner, the issue is not with pure-Java apps,
but with apps which link against the JVM.
22:33 <@novalis_dt> (or libraries that do so).
22:33 <@novalis_dt> Ok, I think I'm convinced that the general case is
not a great idea.
22:34 <@novalis_dt> If anyone isn't convinced, speak up now, or submit a
comment.
22:34 <+MarkDoliner> Heh heh
22:34 <@novalis_dt> But I do think that PHP license compatibility would
be nice.
22:34 <+jblack> Yeah! I do think there's room for stuff thats free.
22:35 <+jblack> Do we have an official definition of qualifications for
free software?
22:35 <@novalis_dt> In the current draft, a lot of licenses are
compatible under section 7.
22:35 <@novalis_dt> PHP isn't.
22:35 <@novalis_dt> jblack, Metalanguage for "free softare" isn't likely
to happen.
22:35 <+jblack> Then I'm convinced too.
22:36 <@novalis_dt> jblack, We've tried hard to figure out a way to say,
"this is compatible with all 'free software' licenses".
22:36 <@novalis_dt> MySQL tried too -- they ended up listing them.
22:36 <@novalis_dt> I've seen drafts of other licenses which tried to do
this, and they also ended up unsatisfying.
22:37 <@novalis_dt> I'm not saying it's impossible, but I don't think
anyone is likely to come up with it in the next year.
22:37 <+Rickerby> To me, the question becomes how do you allow
"coopition." Sometimes the best path to competing is to cooperate. How
does the free software community decide when they will benefit from
allowing development on a non-free platform with sufficient market
penetration? Or does the ideology demand purity?
22:37 <@novalis_dt> So, section 7 has been written to instead refer to
specific types of restrictions that we've seen in real licenses.
22:38 <@novalis_dt> Rickerby, it is an interesting question to ask
whether the Free Software community benefits from all of the Free Java
software which runs only on Sun's JVM.
22:38 <@novalis_dt> Rickerby, because GNU Classpath is always improving
22:38 <+fontana> novalis_dt: what is specifically the problem with the
PHP license for compatibility under GPLv3?
22:39 <@novalis_dt> And as it improves, software that was free but
"trapped" becomes truly free.
22:39 <@novalis_dt> fontana, 1 sec, checking...
22:40 <terjebr> What if I want to make GPLed software in C# and
microsoft .Net and link in some GPLed library?
22:41 <@novalis_dt> fontana, Section 4 of the php license in 3.0 seems
to go beyond trademark law.
22:41 <+fontana> aha.
22:41 <@novalis_dt> Motion to admit terjebr to this meeting?
22:41 <+jblack> second
22:41 <@novalis_dt> Any objections?
22:41 <@novalis_dt> OK, passed by consensus.
22:42 <terjebr> Thank you
22:42 <@novalis_dt> terjebr, BTW, can you introduce yourself?
22:42 <terjebr> I am Terje Bråten from Norway
22:42 <@novalis_dt> terjebr, if that library has to link against
Microsoft's interpreter, then no go.
22:42 <terjebr> I am much interested in programming free software on my
spare time
22:43 <terjebr> I know, but your suggestion was that we should open up
for that?
22:43 <@novalis_dt> terjebr, Yes.
22:43 <terjebr> I second that
22:44 <@novalis_dt> terjebr, Hm, OK. Would you like to submit it as a
comment through the comment system, or should I?
22:44 <terjebr> Then many people that program in .net and C# can
contribute to free programware and use GPLed libraries in their programs
22:44 <@novalis_dt> terjebr, Shouldn't they just choose a free language,
or a free interpreter for .net such as Mono?
22:45 <terjebr> Since it was your idea, I think you should submit it
22:45 <@novalis_dt> OK, I'll do that (noting that I no longer agree with
it)
22:45 <terjebr> Many programmers use C# because the work with it dayly
22:46 <@novalis_dt> soufron, welcome.
22:46 <terjebr> Their employer give them no choice in what environment
to use
22:46 <@novalis_dt> terjebr, Ok, so why not just use the Mono
interpreter, which is free?
22:47 <@novalis_dt> BTW, just got the results. Mike Nordell is approved.
22:47 <+mako> i'm not going to be able to participate
22:48 <@novalis_dt> mako, today, or at all?
22:48 <+mako> today
22:48 <terjebr> Ok, then you can only use the program with mono then
22:48 <@novalis_dt> mako, OK, we'll catch you next week.
22:48 <+mako> there's been a death in my research group
22:48 <@novalis_dt> terjebr, this is fine, right?
22:48 <@novalis_dt> mako, Sorry to hear about that.
22:48 <+mako> i should be around next week
22:48 <@novalis_dt> Hope it wasn't your advisor!
22:48 <+mako> yes.. we just found out
22:48 <+mako> no
22:48 <+mako> it wasn't
22:49 <+mako> talk to you all next week
22:49 <terjebr> I guess I have to think more about this
22:49 <@novalis_dt> terjebr, Ok. Please do submit comments in reply to
my comment (which I'll post after this is done).
22:51 <terjebr> I will post my comments, yes
22:51 <+jblack> I will as will
22:52 <@novalis_dt> fontana, the Zend Engine license also has an
original-BSD style advertising clause.
22:52 <terjebr> But I have no strong feelings about this, as opposed to
the DRM case
22:52 <@novalis_dt> terjebr, We invite your comments on DRM via the
comment system.
22:52 <terjebr> You have read my comment 902?
22:53 <@novalis_dt> I think the reason we chose not to have
compatibility with advertising clauses -- that is, those which control
the content of printed advertisements, is straightforward.
22:54 <+fontana> Yes.
22:54 <@novalis_dt> Has anyone noticed any comments to the contrary? Or
does anyone wish to make any which we can discuss as a committee?
22:56 <@novalis_dt> OK, so the response to the PHP issue seems to be
that nobody minds allowing linking with PHP (and Zend)-- but everyone is
skeptical of allowing linking with code with advertising clauses.
22:57 <@novalis_dt> MarkDoliner, jblack, how do you resolve this seeming
inconsistency?
22:57 <+jblack> I've never understood why the advertising clause is a
bad thing.
22:57 <+MarkDoliner> I don't know, I don't really mind NOT linking with
PHP, either :-)
22:58 <@novalis_dt> jblack, Imagine trying to write an advertisement for
the Linux kernel. "Good scalability (thanks to HP, IBM, J. Random
Hacker, X. Other. Hacker,...)
22:59 <+jblack> Yeah, I know there's a bit of a long list problem there.
But otherwise... its credit for work
22:59 <@novalis_dt> jblack, the problem isn't so much having to have one
bit of fine print at the end of your ad -- but that everyone who adds
some code gets to add one.
23:00 <@novalis_dt> jblack, Imagine a superbowl ad -- at 200,000 dollars
per second, those names get expensive fast.
23:00 <+jblack> Sure, but this is within the context of linking.
23:00 <@novalis_dt> jblack, let's say it's a SSL library.
23:00 <+jblack> so perhaps I mispoke. I know that there's problems with
ad clauses. But that doesn't make software evil.
23:00 <@novalis_dt> jblack, Oh, I agree.
23:00 <@novalis_dt> It's still Free Software.
23:01 <@novalis_dt> The question is, should we allow it to be linked to
GPL software?
23:01 <+dondelelcaro> it's really a lesser evil because those clauses
are annoying
23:01 <+dondelelcaro> the only issue where it's even interesting is
openssl, and gnutls has pretty much made that issue moot
23:02 <@novalis_dt> dondelelcaro, there's not a lot of software that
still uses the ad clause, true.
23:02 <+jblack> I suppose that the ad clause can be evil in some cases.
I suppose a hacker in china could go to jail for contributing to Tor,
for example.
23:02 <@novalis_dt> dondelelcaro, but you would pretty quickly get into
an advert envy situation where everyone would want to have them.
23:03 <+jblack> within the context of 3rd party linking thouh, it seems
neutral. I wouldn't use an ad clause as a reason for restriction.
23:03 <@novalis_dt> jblack, "third party"?
23:03 <@novalis_dt> jblack, Anyone who adds a module to the code gets to
add any restriction in section D.
23:04 <+jblack> For allowing linking with code.
23:04 <@novalis_dt> jblack, Huh?
23:04 <@novalis_dt> BTW, I have to take a call in 30 minutes. Just to
give a time limit here.
23:04 <+jblack> huh huh?
23:04 <+jblack> We're talking about allowing third party linking,
correct? or have we moved entirely to the Ad clause
23:05 <@novalis_dt> jblack, We're talking about section 7, which
doesn't, IIRC, say anything about third parties.
23:05 <@novalis_dt> In other words, you could be linking in some module
you downloaded off of Freshmeat, or you could be linking in one you
wrote yourself.
23:05 <+jblack> pardon, I'm off in the previous conversation
23:06 <terjebr> So, the problem is that you want a wider range of
various licensed interpreters to be able to link in GPLed libraries,
than the range og free interpreters that can be compatible with the GPL
23:06 <+jblack> I agree that we don't want advertising as a additional
restriction.
23:08 <@novalis_dt> terjebr has a point tha the contradiction between
not wanting general ad clauses, and wanting PHP (Zend), can be resolved
by noting that the ad clause there will only screw things up for the PHP
bindings -- not for the library as a whole.
23:08 <@novalis_dt> (if that makes any sense)
23:09 <@novalis_dt> The question, I suppose, is whether it's worth doing
a whole exception to section 7 just for PHP.
23:09 <+dondelelcaro> FE, the s/DEFANGED_//; change should probably not
have been made unless krooger had okayed it...
23:09 <+dondelelcaro> ECHAN.
23:10 <@novalis_dt> OK, does anyone have any more comments on PHP
compatibility?
23:10 <+dondelelcaro> not really; PHP has a few other problems beyond
the ad clause.
23:10 <@novalis_dt> dondelelcaro, Really?
23:11 <@novalis_dt> dondelelcaro, I mean, other than the ad clause and
the overbroad trademark bit.
23:11 <+dondelelcaro> novalis_dt: yeah, the overbroad trademark bit is
the one that I'm talking about...
23:11 <@novalis_dt> dondelelcaro, do you think that section 7 ought to
permit that?
23:11 <+dondelelcaro> my favorite example is that you can't call your
work "Telegraphpole" even though it clearly has nothing to do with
php...
23:12 <+dondelelcaro> or graphpad...
23:12 <+dondelelcaro> novalis_dt: no... I think that trademark law is
the proper domain for trademarks; legislating trademarks through
copyright is fundamentally flawed IMO.
23:13 <@novalis_dt> dondelelcaro, sure, it's a badly drafted license.
23:13 <@novalis_dt> But should we be compatible with it anyway given
that it's popular?
23:13 <+fontana> Are there any free software licenses that make explicit
exceptions in trademark restriction clauses for trademark fair use?
23:14 <@novalis_dt> fontana, one standard term in BSD-like licenses says
that you can't use the names of contributors to "endorse or promote"
23:14 <@novalis_dt> fontana, which gets pretty close.
23:14 <+fontana> OK.
23:14 <+dondelelcaro> dunno; I don't find the popularity argument
particularly convincing especially given that I've argued that overbroad
trademark clauses are non-free...
23:14 <@novalis_dt> dondelelcaro, I certainly could imagine that a
clause so overbroad as to be non-free.
23:15 <+dondelelcaro> novalis_dt: yeah, but that's illegal (or likely to
be illegal) in most jurisdictions anyway...
23:15 <+dondelelcaro> novalis_dt: right...
23:16 <@novalis_dt> dondelelcaro, You mean the BSD thing? Precisely,
which is why we think it's compatible with v2.
23:16 <+dondelelcaro> novalis_dt: yeah; that's been my argument for its
compatibility too.. so I think we're in agreement there.
23:17 <@novalis_dt> dondelelcaro, I'm not particularly bothered by
"telegraphpole".
23:17 <+dondelelcaro> novalis_dt: well, it definetly poses a problem for
the DFSG freeness of a work; which is really the basis which I'm working
from.
23:17 * MarkDoliner runs off to another engagement
23:17 <@novalis_dt> dondelelcaro, that depends on your reading of DFSG.
:)
23:17 <+dondelelcaro> novalis_dt: sure...
23:18 <terjebr> What is DFSG?
23:18 <+dondelelcaro> terjebr: debian free software guidelines
23:18 <terjebr> Ok, thanks
23:19 <@novalis_dt> Does anyone want to do something about the PHP
thing?
23:19 <@novalis_dt> Or should we simply note in minutes that we
discussed it and decided to leave it as-is?
23:19 <+dondelelcaro> I should note too that there are qa few cases
where I think things are non-free which comply with the DFSG... just so
no one is surprised when you see me on -legal saying something is DFSG
free when I've complained about it's non-freeness. ;-)
23:20 <@novalis_dt> qa?
23:20 <soufron> hello
23:20 <@novalis_dt> hello, soufron
23:20 <+dondelelcaro> novalis_dt: started out as quite a few, and I
deleted most of the quite, but not all of it. ;-)
23:20 <soufron> I wanted to ask for someone else to be elected to the
committee
23:20 <soufron> but maybe that's not the right time
23:21 <@novalis_dt> soufron, Let's go ahead and just do the last few
additions right now.
23:21 <@novalis_dt> soufron, you have one, and I have one.
23:21 <@novalis_dt> soufron, Who is it?
23:22 <@novalis_dt> I propose Rowan Wilson.
23:22 <soufron> it's roberto di cosmo
23:23 <soufron> he's a professor of computer science at the university
of paris-VII
23:23 <soufron> and he is the director of the open source master
23:23 <@novalis_dt> soufron, OK, sounds good to me.
23:23 <soufron> even if I don't know how to call it
23:23 <soufron> basically I teach open source law in his master
23:23 <soufron> and he's good
23:23 <soufron> just google him
23:23 <@novalis_dt> Any objections to just doing a quick poll here on di
Cosmo?
23:23 <@novalis_dt> Or do we want to go through the whole process?
23:23 <+fontana> I myself have no objections, but can we consult with
Eben Moglen before officially adding new committee members?
23:24 <@novalis_dt> fontana, Sure.
23:24 <@novalis_dt> Rowan Wilson is with a UK Free Software group, and
he has been interested in attending for a while.
23:24 <soufron> still, I have to go now...
23:24 <soufron> I'll be back in a few 20 minutes
23:24 <soufron> ok ?
23:24 <@novalis_dt> soufron, We will be over then.
23:24 <@novalis_dt> soufron, So, see you next week.
23:25 <soufron> maybe we could vote on roberto before I go...
23:25 <soufron> he's a famous french free software proponent
23:25 <@novalis_dt> soufron, fontana wishes to discuss it with Eben
first.
23:25 <terjebr> Beware that this irc log will be public, and it may not
be a good idea to discuss such things in public
23:25 <soufron> I will see Eben next week
23:25 <@novalis_dt> terjebr, We know. There is a procedure.
23:25 <soufron> but anyway
23:25 <@novalis_dt> soufron, So, let's put this on hold until we have
that coversation.
23:25 <soufron> roberto cannot participate right now anyway
23:26 <soufron> no problem
23:26 <soufron> just keep his name in your minds
23:26 <soufron> ok ?
23:26 <@novalis_dt> Sounds good.
23:26 <soufron> see you later all
23:26 <@novalis_dt> My time is running out, so does anyone have any
comments before we adjourn?
23:26 <@novalis_dt> next week, we look forward to hearing from a subset
of [mako, jblack, don, obra].
23:26 <+jblack> No I.
23:27 <@novalis_dt> next week, we look forward to hearing from a subset
of [mako, jblack, don, obra].
23:27 <@novalis_dt> er
23:27 <@novalis_dt> OK, adjourned.
-----
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> doctrine of copyright misuse... GPL violation of which has raised to
> the level of antitrust violation according to Wallace (note that 2nd
> Wallace's case is still pending before Judge Young... and I just can't
> imagine that Judge Tinder's blackout regarding below cost pricing
> conspiracy causing antitrust injury could possibly withstand an appeal)
On 30/06/2006 Judge Yound ruled that Wallace has sufficiently alleged
an antitrust complaint under section 1 of the Sherman Act, and that
his claim may move forward. He denied Motion to Dismiss.
regards,
alexander.
Alexander Terekhov
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> See "STANDING ON SHAKY GROUND: THE STRANGELY ELUSIVE DOCTRINE OF
> ANTITRUST INJURY":
>
> http://www.rdantitrustlaw.info/shaky.pdf "More generally, competitors
> may never be heard to complain of artificially low prices unless they
> are predatory, because it is only predatorily low prices that threaten
> injury to competition.94 94) Id. at 339–40. The Court's discussion was
> consistent with the Brunswick dictum on predatory pricing. See
> Brunswick, 429 U.S. at 489 n.14 (where there is true predation (not
> just uncomfortably aggressive price cutting), a competitor's lost
> profits do count as antitrust injury, even though the predatory
> practice temporarily benefits consumers)."
>
> http://www.justia.us/us/495/328/case.html
>
> "Although a vertical, maximum-price-fixing agreement is unlawful under
> 1 of the Sherman Act, it does not cause a competitor antitrust injury
> unless it results in predatory pricing." -- U.S. Supreme Court
>
> And Judge Tinder clearly erred.
>
> Hopefully Judge Young will do better.
Judge Young also erred.
-----
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DANIEL WALLACE,
Plaintiff,
vs.
INTERNATIONAL BUSINESS
MACHINES CORPORATION; RED HAT,
INC.; and NOVELL, INC.,
Defendants.
)))
) 1:05-cv-678 RLY-VSS
)))))
ENTRY ON DEFENDANTS’ MOTIONS TO DISMISS
In his Second Amended Complaint, Plaintiff Daniel Wallace (“Wallace”)
brings a claim against International Business Machines Corporation, Red
Hat, Inc., and Novell, Inc. (collectively, “Defendants”) for “restraint
of trade by way of a licensing scheme to fix the prices of computer
software.” (See Second Amended Complaint at 1). This matter is before
the court on Defendant International Business Machines Corporation’s
Motion to Dismiss, in which Defendants Red Hat and Novell join, and on
Defendants Red Hat and Novell’s joint Motion to Dismiss.
I. Background
Wallace accuses Defendants of conspiring with Free Software Foundation,
Inc.,1 [1 Wallace’s claims against Free Software Foundation, Inc. were
dismissed in a separate cause of action, Wallace v. Free Software
Foundation, Inc., 1:05-cv-0618-JDT-TAB (S.D.Ind. 2006) (Tinder, J.).]
and others, “to pool and cross license their copyrighted intellectual
property in computer programs that are collectively known as the Linux
(or GNU/Linux) operating system.” (Second Amended Complaint at 2). The
result of this conspiracy, according to Wallace, is the foreclosure of
competition in the market for computer operating systems and the
prevention of Wallace from marketing his own computer operating system.
(Id. at 2-3). Wallace brings his action pursuant to 15 U.S.C. § 26 (§
16 of the Clayton Act).2 [2 In his Response to Red Hat and Novell’s
Motion to Dismiss, Wallace also claims to bring his action under 15
U.S.C. § 1 (§ 1 of the Sherman Act).] The General Public License, or
“GPL,” that is the subject of Wallace’s complaint is part of the
framework commonly known as “open source” software. (Brief in Support
of Red Hat and Novell’s Motion to Dismiss at 2). “Licensees of computer
programs that are licensed pursuant to the GPL are not charged for the
license, but are required to license any derivative works that they
create using the licensed software under the same terms and
conditions . . . .” (Id.; see also Ex A (GPL)). Wallace argues that
the GPL fixes the price of all derivative works at zero, or free, and
he claims that this amounts to predatory price fixing. (Response to Red
Hat and Novell’s Motion to Dismiss at 5).
II. Motion to Dismiss Standard
When considering a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court examines the sufficiency of the complaint,
not the merits of the lawsuit. Fed. R. Civ. P. 12(b)(6); United States v.
Clark County, Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court
will dismiss a complaint for failure to state a claim only if it
“‘appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’” Hamlin v.
Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996) (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957)). In making its determination, the court
accepts the allegations in the complaint as true, and it draws all
reasonable inferences in favor of the plaintiff. Mallett v. Wisconsin
Div. of Vocational Rehabilitation, 130 F.3d 1245, 1248 (7th Cir. 1997);
Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996). The court will
also consider facts presented in exhibits attached to the complaint.
See, Zinermon v. Burch, 494 U.S. 113.
III. Analysis
Wallace alleges that the Defendants’ “predatory price-fixing scheme
prevents [him] from marketing his own computer operating system as a
competitor.” His complaint fails because it fails to allege
anticompetitive effects in an identifiable market. Car Carriers, Inc.
v. Ford Motor Company, 745 F.2d 1101 (7th Cir. 1984) (affirming dismissal
based on failure to allege an anticompetitive effect).
Antitrust laws are for “the protection of competition, not competitors.”
Brunswick Corp. v. Pueblo Bowl-o-Mat, Inc., 429 U.S. 477, 488 (1977). In
this case, the GPL benefits consumers by allowing for the distribution of
software at no cost, other than the cost of the media on which the
software is distributed. (Ex. A at ¶ 1). “When the plaintiff is a poor
champion of consumers, a court must be especially careful not to grant
relief that may undercut the proper functions of antitrust.” Ball Mem’l
Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1334 (7th Cir.
1986). Because he has not identified an anticompetitive effect, Wallace
has failed to allege a cognizable antitrust injury.
Wallace has had two chances to amend his complaint, after Defendants
highlighted the deficiencies discussed herein. His continuing failure to
state an antitrust claim indicates that the complaint has “inherent
internal flaws.” Car Carriers, Ic, 745 F.2d at 1105. Wallace will not be
granted further leave to amend his complaint because the court finds
that such amendment would be futile. See Shanahan v. Chicago, 82 F.3d
776 (7th Cir. 1996).
IV. Conclusion
Defendant International Business Machines Corporation’s Motion to
Dismiss (Docket #51) and Defendants Red Hat, Inc. and Novell, Inc.’s
Motion to Dismiss (Docket #53) are granted. Wallace’s complaint is
hereby dismissed with prejudice.
Dated: May 16, 2006.
-----
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> III. Analysis
>
> Wallace alleges that the Defendants’ “predatory price-fixing scheme
> prevents [him] from marketing his own computer operating system as a
> competitor.” His complaint fails because it fails to allege
> anticompetitive effects in an identifiable market. Car Carriers, Inc.
> v. Ford Motor Company, 745 F.2d 1101 (7th Cir. 1984) (affirming dismissal
> based on failure to allege an anticompetitive effect).
>
> Antitrust laws are for “the protection of competition, not competitors.”
> Brunswick Corp. v. Pueblo Bowl-o-Mat, Inc., 429 U.S. 477, 488 (1977). In
> this case, the GPL benefits consumers by allowing for the distribution of
> software at no cost, other than the cost of the media on which the
> software is distributed. (Ex. A at ¶ 1). “When the plaintiff is a poor
> champion of consumers, a court must be especially careful not to grant
> relief that may undercut the proper functions of antitrust.” Ball Mem’l
> Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1334 (7th Cir.
> 1986). Because he has not identified an anticompetitive effect, Wallace
> has failed to allege a cognizable antitrust injury.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=495&invol=328
"Although a vertical, maximum-price-fixing agreement is unlawful under 1
of the Sherman Act, it does not cause a competitor antitrust injury unless
it results in predatory pricing. 8 Antitrust injury does not arise for
purposes of 4 of the Clayton Act, see n. 1, supra, until a private party
is adversely affected by an anticompetitive aspect of the defendant's
conduct, see Brunswick, 429 U.S., at 487 ; in the context of pricing
practices, only predatory pricing has the requisite anticompetitive
effect. 9 See Areeda & Turner, Predatory Pricing and Related [495 U.S.
328, 340] Practices Under Section 2 of the Sherman Act, 88 Harv. L. Rev.
697, 697-699 (1975); McGee, Predatory Pricing Revisited, 23 J. Law & Econ.
289, 292-294 (1980). Low prices benefit consumers regardless of how those
prices are set, and so long as they are above predatory levels, they do not
threaten competition."
Go figure.
regards,
alexander.
Alexander Terekhov
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/9th/9755679.html
"it is not the status as a consumer or competitor that confers antitrust
standing, but the relationship between the defendant's alleged
unlawful conduct and the resulting harm to the plaintiff. See
Amaral, 102 F.3d at 1508 ("Losses a competitor suffers as a
result of predatory pricing is a form of antitrust injury because
`predatory pricing has the requisite anticompetitive effect'
against competitors.") (quoting ARCO,
495 U.S. at 339
)).
[10] Having analyzed all the prerequisites of antitrust
injury, we conclude that American's showing is sufficient to
establish that the alleged injury it suffered was an antitrust
injury for purposes of antitrust standing."
I just can't see how Wallace could possibly lose on appeal.
regards,
alexander.
Miles Bader
-miles
--
`Suppose Korea goes to the World Cup final against Japan and wins,' Moon said.
`All the past could be forgiven.' [NYT]
David Kastrup
> I just can't see how Wallace could possibly lose on appeal.
Before "losing" he actually has to get a case open. His last attempt
was thrown out of court, remember? And you could not see how he could
_lose_ then, either. Let alone have his case thrown out.
You should offer to pay all his legal fees for a cut in the spoils you
are so sure he is about to receive.
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > I just can't see how Wallace could possibly lose on appeal.
>
> Before "losing" he actually has to get a case open. His last attempt
> was thrown out of court, remember? And you could not see how he could
> _lose_ then, either. Let alone have his case thrown out.
Yes, I remember. Both rulings are at odds with Supreme Court dictum
on predatory pricing causing antitrust injury. Both Judges simply
pulled rabbits out of their hats. To quote the author of
www.rdantitrustlaw.info/shaky.pdf ("More generally, competitors may
never be heard to complain of artificially low prices unless they
are predatory, because it is only predatorily low prices that
threaten injury to competition.94 94) Id. at 339–40. The Court's
discussion was consistent with the Brunswick dictum on predatory
pricing. See Brunswick, 429 U.S. at 489 n.14 (where there is true
predation (not just uncomfortably aggressive price cutting), a
competitor's lost profits do count as antitrust injury, even though
the predatory practice temporarily benefits consumers)."):
"Antitrust injury" has been confused with many other things. Notably,
it is not a rabbit for the judge to pull out of his hat when the
complaint alleges a violation but the court wants to dismiss the case
anyway, but cannot think of a good reason to dismiss it."
>
> You should offer to pay all his legal fees for a cut in the spoils you
> are so sure he is about to receive.
I've been told that appeal fee is $250. I don't think that Wallace
needs any financial help from me.
www.gnu.org/gnu/manifesto.html
"GNU will remove operating system software from the realm of
competition. You will not be able to get an edge in this area, but
neither will your competitors be able to get an edge over you. You
and they will compete in other areas, while benefiting mutually in
this one. If your business is selling an operating system, you will
not like GNU, but that's tough on you. If your business is
something else, GNU can save you from being pushed into the
expensive business of selling operating systems."
regards,
alexander.
David Kastrup
> David Kastrup wrote:
>>
>> Alexander Terekhov <tere...@web.de> writes:
>>
>> > I just can't see how Wallace could possibly lose on appeal.
>>
>> Before "losing" he actually has to get a case open. His last
>> attempt was thrown out of court, remember? And you could not see
>> how he could _lose_ then, either. Let alone have his case thrown
>> out.
>
> Yes, I remember. Both rulings are at odds with Supreme Court dictum
> on predatory pricing causing antitrust injury. Both Judges simply
> pulled rabbits out of their hats.
They won't be the last rabbits you imagine seeing.
Alexander Terekhov
David Kastrup wrote:
[...]
> They won't be the last rabbits you imagine seeing.
What part in "predatory pricing has the requisite anticompetitive
effect" (ARCO) don't you understand, dear GNUtian dak?
Sorry, I just can't understand. Help me please.
The judge admits that Wallace alleges predatory pricing and yet
dismisses "based on failure to allege an anticompetitive effect".
I don't follow.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> They won't be the last rabbits you imagine seeing.
>
> What part in "predatory pricing has the requisite anticompetitive
> effect" (ARCO) don't you understand, dear GNUtian dak?
It depends on _what_ you price in _what_ market in competition to
_what_, dear legal fuzzhead.
IBM does not even sell Linux operating systems, so they can hardly be
accused of "predatory pricing" them. If you want to call them on
predatory pricing anything, it is the work of their developers on
Linux.
So Wallace would have needed to claim that he wants to work for pay as
a developer on Linux in the areas that IBM is working on, and that IBM
provides this sort of work for dumping prices so that nobody else can
get a foot in the market.
But that is not what Wallace complains about. He complains about
Linux competing with imaginary products of his, and IBM does offer any
such competing products.
> Sorry, I just can't understand. Help me please.
>
> The judge admits that Wallace alleges predatory pricing and yet
> dismisses "based on failure to allege an anticompetitive effect".
>
> I don't follow.
You wouldn't.
Alexander Terekhov
The judge admits that Wallace alleges predatory pricing and yet
dismisses "based on failure to allege an anticompetitive effect".
Now, under 12(b)(6) standard, "the court accepts the allegations
in the complaint as true, and it draws all reasonable inferences
in favor of the plaintiff."
Inference of requisite anticompetitive effect from the allegations
in the complaint is no rocket science -- "predatory pricing has the
requisite anticompetitive effect" (ARCO).
Where am I wrong, dak?
regards,
alexander.
David Kastrup
> Let's try once again, dak.
>
> The judge admits that Wallace alleges predatory pricing and yet
> dismisses "based on failure to allege an anticompetitive effect".
>
> Now, under 12(b)(6) standard, "the court accepts the allegations
> in the complaint as true, and it draws all reasonable inferences
> in favor of the plaintiff."
But there is no substance to be found to support an allegation. For
example, I can allege a person to be a rapist, but if there is no
purported victim, I can't make a case from that.
Just waving some term around does not mean that there is a legal base
for waving the term around.
> Inference of requisite anticompetitive effect from the allegations
> in the complaint is no rocket science -- "predatory pricing has the
> requisite anticompetitive effect" (ARCO).
>
> Where am I wrong, dak?
Where is the anticompetitive effect?
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > Let's try once again, dak.
> >
> > The judge admits that Wallace alleges predatory pricing and yet
> > dismisses "based on failure to allege an anticompetitive effect".
> >
> > Now, under 12(b)(6) standard, "the court accepts the allegations
> > in the complaint as true, and it draws all reasonable inferences
> > in favor of the plaintiff."
>
> But there is no substance to be found to support an allegation.
"When considering a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court examines the sufficiency of the complaint,
not the merits of the lawsuit. Fed. R. Civ. P. 12(b)(6); United States v.
Clark County, Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court
will dismiss a complaint for failure to state a claim only if it
“‘appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’” Hamlin v.
Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996) (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957)). In making its determination, the court
accepts the allegations in the complaint as true, and it draws all
reasonable inferences in favor of the plaintiff. Mallett v. Wisconsin
Div. of Vocational Rehabilitation, 130 F.3d 1245, 1248 (7th Cir. 1997);
Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996)."
> For
> example, I can allege a person to be a rapist, but if there is no
> purported victim, I can't make a case from that.
Alleged victim is Wallace. To quote Judge Tinder,
"The allegation in the Fourth Amended Complaint that the GPL is
foreclosing Mr.Wallace from entering into the market for operating
systems also is not a cognizable antitrust injury. The court
understands Mr. Wallace’s argument that the GPL may be preventing
him from marketing his own operating system, and, for the purposes
of the instant motion, accepts that allegation as true. However,
while this may be significant enough from Mr. Wallace’s perspective,
a plaintiff must prove not only an injury to him or herself, but
to the market as well, Martin v. Am. Kennel Club, Inc., 697 F.
Supp. 997, 1003 (N.D. Ill. 1988), which Mr. Wallace has failed to
do. As the court stated in its November 28, 2005 Entry, reduced
opportunity as a competitor does not necessarily equate to an
antitrust injury as recognized by the courts. Brunswick, 429 U.S.
at 488. Indeed, injury in fact is “a different beast” than antitrust
injury."
So there's injury and it flows from the alleged predatory pricing
(the allegation which Judge Tinder simply ignores in his analysis).
That makes it antitrust injury because "predatory pricing has the
requisite anticompetitive effect" (ARCO).
>
> Just waving some term around does not mean that there is a legal base
> for waving the term around.
>
> > Inference of requisite anticompetitive effect from the allegations
> > in the complaint is no rocket science -- "predatory pricing has the
> > requisite anticompetitive effect" (ARCO).
> >
> > Where am I wrong, dak?
>
> Where is the anticompetitive effect?
In alleged predatory pricing.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
>>
>> Alexander Terekhov <tere...@web.de> writes:
>>
>> > Let's try once again, dak.
>> >
>> > The judge admits that Wallace alleges predatory pricing and yet
>> > dismisses "based on failure to allege an anticompetitive effect".
>> >
>> > Now, under 12(b)(6) standard, "the court accepts the allegations
>> > in the complaint as true, and it draws all reasonable inferences
>> > in favor of the plaintiff."
>>
>> But there is no substance to be found to support an allegation.
>
> "When considering a motion to dismiss pursuant to Federal Rule of
> Civil Procedure 12(b)(6), the court examines the sufficiency of the
> complaint, not the merits of the lawsuit.
Yes. And there has been no sufficiency. The purported facts that
Wallace put forward don't fit the complaint. That makes the complaint
insufficient. Once the claims would support the complaint, the merit
of the claims gets examined. But Wallace never got there.
> Fed. R. Civ. P. 12(b)(6); United States v. Clark County, Ind., 113
> F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court will dismiss a
> complaint for failure to state a claim only if it “‘appears beyond
> doubt that the plaintiff can prove no set of facts in support of his
> claim which would entitle him to relief.’”
So what did you not understand in that?
>> For example, I can allege a person to be a rapist, but if there is
>> no purported victim, I can't make a case from that.
>
> Alleged victim is Wallace.
I did not state that the absence of an alleged victim was the
deficiency in Wallace's claim. This was just a general example for an
unsupportable claim.
> So there's injury and it flows from the alleged predatory pricing
> (the allegation which Judge Tinder simply ignores in his analysis).
But there is no "predatory pricing" since IBM does not sell Linux
operating systems and does not price them. Instead, IBM sells AIX and
other operating systems. And RedHat can't be accused of "predatory
pricing" since they make a sustainable _business_ from selling Linux
operating system copies. Predatory pricing means selling under cost,
and RedHat runs a profitable business.
> That makes it antitrust injury because "predatory pricing has the
> requisite anticompetitive effect" (ARCO).
Well, Wallace did not even put forward any plausible business of his
that would be suffering. You can't sue preemptively for being damaged
in case you wanted to enter some market.
His complaint really is oozing nonsense out of every pore.
>> Just waving some term around does not mean that there is a legal base
>> for waving the term around.
>>
>> > Inference of requisite anticompetitive effect from the allegations
>> > in the complaint is no rocket science -- "predatory pricing has the
>> > requisite anticompetitive effect" (ARCO).
>> >
>> > Where am I wrong, dak?
>>
>> Where is the anticompetitive effect?
>
> In alleged predatory pricing.
You are confusing purported cause and effect.
Alexander Terekhov
David Kastrup wrote:
[...]
> > Fed. R. Civ. P. 12(b)(6); United States v. Clark County, Ind., 113
> > F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court will dismiss a
> > complaint for failure to state a claim only if it “‘appears beyond
> > doubt that the plaintiff can prove no set of facts in support of his
> > claim which would entitle him to relief.’”
>
> So what did you not understand in that?
I understand it fully, I believe. Why did you snip out the part on
determination?
"In making its determination, the court accepts the allegations
in the complaint as true, and it draws all reasonable inferences
in favor of the plaintiff."
Wallace alleged predatory pricing.
>
> >> For example, I can allege a person to be a rapist, but if there is
> >> no purported victim, I can't make a case from that.
> >
> > Alleged victim is Wallace.
>
> I did not state that the absence of an alleged victim was the
> deficiency in Wallace's claim. This was just a general example for an
> unsupportable claim.
>
> > So there's injury and it flows from the alleged predatory pricing
> > (the allegation which Judge Tinder simply ignores in his analysis).
>
> But there is no "predatory pricing" since ...
Whatever. But under 12(b)(6) standard, "the court accepts the
allegations in the complaint as true, and it draws all reasonable
inferences in favor of the plaintiff."
Why are you trying to disprove Wallace's allegations when I'm
talking about dismissal "based on failure to allege an
anticompetitive effect".
Wallace alleged predatory pricing and "predatory pricing has the
requisite anticompetitive effect" (ARCO).
Do you follow me, dak?
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> > Fed. R. Civ. P. 12(b)(6); United States v. Clark County, Ind., 113
>> > F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court will dismiss a
>> > complaint for failure to state a claim only if it "appears beyond
>> > doubt that the plaintiff can prove no set of facts in support of his
>> > claim which would entitle him to relief."
>>
>> So what did you not understand in that?
>
> I understand it fully, I believe.
Well, so it appears beyond doubt that Wallace can prove no set of
facts in support of his claim which would entitle him to relief.
> Why did you snip out the part on determination?
Irrelevant.
> "In making its determination, the court accepts the allegations in
> the complaint as true, and it draws all reasonable inferences in
> favor of the plaintiff."
>
> Wallace alleged predatory pricing.
But he brought forth no set of facts in support of his claim.
> Whatever. But under 12(b)(6) standard, "the court accepts the
> allegations in the complaint as true, and it draws all reasonable
> inferences in favor of the plaintiff."
Sure. The court accepted that Wallace did not misstate any _facts_.
It is just that the facts he stated can't be construed to constitute
predatory pricing.
> Wallace alleged predatory pricing and "predatory pricing has the
> requisite anticompetitive effect" (ARCO).
>
> Do you follow me, dak?
But Wallace brought forth no facts whatsoever compatible with his
claim of predatory pricing as defined by the requisite laws.
So there is no case. It's like suing somebody for rape because he has
been drying his underwear on a clothesline in public sight. The judge
can perfectly well accept that indeed there were underwear on the
clothesline, but that still does not meet the legal definition of
rape, and there is no point in calling witnesses in that could
describe the exact state and location of the clothesline in question.
Alexander Terekhov
David Kastrup wrote:
[...]
> But Wallace brought forth no facts whatsoever compatible with his
> claim of predatory pricing as defined by the requisite laws.
Wallace brought forth the GPL. The GPL is his evidence.
-------
Predatory pricing
The GPL establishes a predatory pricing scheme. Setting the maximum
price of intellectual property at “no charge” removes all motive to
compete. The Supreme Court has analyzed predatory pricing in a Sherman
Act § 1 civil action:
“…[T]his is a Sherman Act 1 case. For purposes of this case, it is
enough to note that respondents have not suffered an antitrust injury
unless petitioners conspired to drive respondents out of the relevant
markets by (i) pricing below the level necessary to sell their products,
or (ii) pricing below some appropriate measure of cost.” MATSUSHITA
ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574 (1986) [fn8].
If we exam case (i) “pricing below the level necessary to sell their
products” the obvious result of the GPL is the destruction of interbrand
competition (see State Oil Co. v. Khan, supra) when the maximum price of
intellectual property is set at zero (“no charge”). New developers and
vendors of intellectual property cannot enter a market for which there
is no reward or incentive.
Not only competitors are harmed by the GPL scheme. Consumers lose
because a lack of competition removes not just product choice but
without competitive reward the incentive to improve product quality
disappears.
When we analyze case (ii) “pricing below some appropriate measure of
cost” we see that a maximum price of zero for the intellectual property
in computer programs leads to an absurd result. In addition to the
intrinsic value ordained by Art. I, §8, cl. 8 of the Constitution, the
cost of creation of intellectual property in computer programs entails
the development costs of skilled programmers, new computer hardware,
communications costs and administrative overhead. Commercial computer
programs are not developed in a zero cost vacuum -- that is an absurd
proposition. A maximum price of zero is below any reasonable definition
of “appropriate measure of cost” concerning development and innovation
of intellectual property assets.
The only economic motive for using GPL licensed intellectual property in
a competitive market for computer operating systems is to destroy a
competitor who is striving to create positive value based in
intellectual property. The Supreme Court has addressed the practical
evidentiary burden for a predatory pricing claim:
“As a practical matter, it may be that only direct evidence of
below-cost pricing is sufficient to overcome the strong inference that
rational businesses would not enter into conspiracies such as this one”;
MATSUSHITA ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574
(1986)[fn9].
The GPL’s term 2(b) is without question direct evidence of a below-cost
pricing scheme. Commercial distributors of GPL licensed products
conspire to give away their assets in intellectual property and then
recoup losses by leveraging ancillary markets such as computer hardware
sales (computer hardware obviously requires an operating system),
software consulting fees, employee training programs and computer
maintenance services. (One uncharged co-conspirator, INTERNATIONAL
BUSINESS MACHINES CORPORATION, is the World’s largest computer hardware
and computing services corporation.)
The effect of the GPL license is to create a Marxist-Leninist model for
computer programs, where a vast pool of intellectual property is
collectively price fixed at “no charge” and thus removed from commercial
exploitation. In time, due to its recursive nature, the GPL’s pool of
price fixed intellectual property can grow to utterly destroy a targeted
market.
It is not consumers that the GPL intends to benefit -- the goal is the
destruction of competition in the free market. The GPL license renders
U. S. Const., Art. I, §8, cl. 8 meaningless in the context of computer
programs containing copyrights and patents.
The defendants assert:
“The GPL expressly allows Defendants, and any other licensee, to charge
a fee to recover the variable or incremental costs associated with
distributing software licensed under the GPL: You may charge a fee for
the physical act of transferring a copy..” Defendants Brief at 5.
Here, the defendants attempt to conflate the definition of intangible
copyright assets with the physical media in which a work is embodied:
“Ownership of a copyright, or of any of the exclusive rights under a
copyright, is distinct from ownership of any material object in which
the work is embodied. ..”;17 USC sec. 202.
The present claim is for price fixing in the relevant market of
intangible intellectual property assets in computer programs (the Linux
operating system) and not an action concerning tangible media or
“physical acts” involving the distribution of tangible media in which a
copyrighted work may be fixed.
-------
He he, Marxist-Leninist.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> But Wallace brought forth no facts whatsoever compatible with his
>> claim of predatory pricing as defined by the requisite laws.
>
> Wallace brought forth the GPL. The GPL is his evidence.
Yes. No facts compatible with his claim of predatory pricing. IBM is
supposed to be guilty of heeding a license? And the judge is supposed
to admit that as a case?
> Predatory pricing
>
> The GPL establishes a predatory pricing scheme. Setting the maximum
> price of intellectual property at “no charge” removes all motive to
> compete. The Supreme Court has analyzed predatory pricing in a Sherman
> Act § 1 civil action:
>
> “…[T]his is a Sherman Act 1 case. For purposes of this case, it is
> enough to note that respondents have not suffered an antitrust injury
> unless petitioners conspired to drive respondents out of the relevant
> markets by (i) pricing below the level necessary to sell their products,
> or (ii) pricing below some appropriate measure of cost.” MATSUSHITA
> ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574 (1986) [fn8].
But Redhat is not pricing below the level necessary to sell their
product, they are turning a profit. And IBM is not selling Linux.
And there are dozens of companies competing by offering Linux
distributions, while there is just one company offering Windows. The
facts don't match the claims.
There is no case here.
[Further Wallace rubbish elided]
> He he, Marxist-Leninist.
Well, whether you like the prose of Wallace or not for whatever
reason, it does not constitute a valid legal argument.
Alexander Terekhov
David Kastrup wrote:
[...]
> > Wallace brought forth the GPL. The GPL is his evidence.
>
> Yes. No facts compatible with his claim of predatory pricing.
And how do you know? Neither Judge Tinder nor Judge Young addressed
his claim of predatory pricing.
> IBM is
> supposed to be guilty of heeding a license? And the judge is supposed
> to admit that as a case?
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=495&invol=328
"Held:
1. Actionable "antitrust injury" is an injury of the type the
antitrust laws were intended to prevent and that flows from that
which makes defendants' acts unlawful. Injury, although causally
related to an antitrust violation, will not qualify unless it is
attributable to an anticompetitive aspect of the practice under
scrutiny, since it is inimical to the antitrust laws to award
damages for losses stemming from continued competition. Cargill,
Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 109 -110. P. 334
2. A vertical, maximum-price-fixing conspiracy in violation of 1
of the Sherman Act must result in predatory pricing to cause a
competitor antitrust injury. Pp. 335-341."
Now go read what Judge Tinder had to say about the GPL and Wallace's
claims here:
http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-30.pdf
Pay attention to "vertical maximum price fixing".
The Judge ruled that Plaintiff’s Third Amended Complaint States a Claim
Upon Which Relief can be Granted and that Plaintiff’s Allegations
Sufficiently Set Forth a Violation of the Rule of Reason, but Plaintiff
Has Not Alleged Antitrust Injury.
And then Wallace has added the claim of predatory pricing to his
complaint.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=495&invol=328
"Although a vertical, maximum-price-fixing agreement is unlawful under 1
of the Sherman Act, it does not cause a competitor antitrust injury unless
it results in predatory pricing. 8 Antitrust injury does not arise for
purposes of 4 of the Clayton Act, see n. 1, supra, until a private party
is adversely affected by an anticompetitive aspect of the defendant's
conduct, see Brunswick, 429 U.S., at 487 ; in the context of pricing
practices, only predatory pricing has the requisite anticompetitive
effect. 9 See Areeda & Turner, Predatory Pricing and Related [495 U.S.
328, 340] Practices Under Section 2 of the Sherman Act, 88 Harv. L. Rev.
697, 697-699 (1975); McGee, Predatory Pricing Revisited, 23 J. Law & Econ.
289, 292-294 (1980). Low prices benefit consumers regardless of how those
prices are set, and so long as they are above predatory levels, they do not
threaten competition."
> There is no case here.
See above.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> > Wallace brought forth the GPL. The GPL is his evidence.
>>
>> Yes. No facts compatible with his claim of predatory pricing.
>
> And how do you know?
By virtue of having a brain.
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > David Kastrup wrote:
> > [...]
> >> > Wallace brought forth the GPL. The GPL is his evidence.
> >>
> >> Yes. No facts compatible with his claim of predatory pricing.
> >
> > And how do you know?
>
> By virtue of having a brain.
Here's an exercise for your brain. First, I'll address your remark in
reply to mini-RMS:
| > But of course, in Therekovian there's only one incentive for "life":
| > getting money.
|
| Last time I looked, RedHat was getting money.
This fact is compatible with Wallace's claim of predatory pricing
conspiracy pursuant to the GPL. Those ancillary revenues from "no
charge" GPL'd code can NOT "explain the lengths to which"
Microsoft^H^H^H^H^H^H^H^HRed Hat "has gone" (see below). It could
have been BSD and alike licensed code in its entirety which Red Hat
could have used to produce those ancillary revenues, and Wallace
doesn't have any problems with RedHat's use of BSD and alike
licensed code which doesn't price-fix IP at predatory level. The
Judge in Microsoft antitrust case ruled:
"Proof that a profit-maximizing firm took predatory action should
suffice to demonstrate the threat of substantial exclusionary effect;
to hold otherwise would be to ascribe irrational behavior to the
defendant. Moreover, predatory conduct, by definition as well as by
nature, lacks procompetitive business motivation. See Aspen Skiing,
472 U.S. at 610-11 (evidence indicating that defendant's conduct was
"motivated entirely by a decision to avoid providing any benefits" to
a rival supported the inference that defendant's conduct "was not
motivated by efficiency concerns"). In other words, predatory behavior
is patently anticompetitive. ... Microsoft has no intention of ever
charging for licenses to use or distribute its browser. Id. ¶¶ 137-38.
Moreover, neither the desire to bolster demand for Windows nor the
prospect of ancillary revenues from Internet Explorer can explain the
lengths to which Microsoft has gone. In fact, Microsoft has expended
wealth and foresworn opportunities to realize more in a manner and to
an extent that can only represent a rational investment if its purpose
was to perpetuate the applications barrier to entry. Id. ¶¶ 136,
139-42. Because Microsoft's business practices "would not be
considered profit maximizing except for the expectation that . . .
the entry of potential rivals" into the market for Intel-compatible
PC operating systems will be "blocked or delayed," Neumann v.
Reinforced Earth Co., 786 F.2d 424, 427 (D.C. Cir. 1986), Microsoft's
campaign must be termed predatory. Since the Court has already found
that Microsoft possesses monopoly power, see supra, § I.A.1, the
predatory nature of the firm's conduct compels the Court to hold
Microsoft liable under § 2 of the Sherman Act."
Note that Wallace's case is an action under § 1 of the Sherman Act.
The anticompetitive nature of the GNU GPL is no-brainer. The GNU
project was designed to be anticompetitive. Go read the GNU Manifesto.
http://www.gnu.org/gnu/manifesto.html
"GNU will remove operating system software from the realm of
competition. You will not be able to get an edge in this area, but
neither will your competitors be able to get an edge over you. You
and they will compete in other areas, while benefiting mutually in
this one. If your business is selling an operating system, you
will not like GNU, but that's tough on you. If your business is
something else, GNU can save you from being pushed into the
expensive business of selling operating systems."
So once again, please tell me what's wrong with Wallace's claim of
predatory pricing as explained below.
-------
Predatory pricing
The GPL establishes a predatory pricing scheme. Setting the maximum
price of intellectual property at “no charge” removes all motive to
compete. The Supreme Court has analyzed predatory pricing in a Sherman
Act § 1 civil action:
“…[T]his is a Sherman Act 1 case. For purposes of this case, it is
enough to note that respondents have not suffered an antitrust injury
unless petitioners conspired to drive respondents out of the relevant
markets by (i) pricing below the level necessary to sell their products,
or (ii) pricing below some appropriate measure of cost.” MATSUSHITA
ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574 (1986) [fn8].
If we exam case (i) “pricing below the level necessary to sell their
MATSUSHITA ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574
(1986)[fn9].
The defendants assert:
regards,
alexander.
David Kastrup
> David Kastrup wrote:
>>
>> Alexander Terekhov <tere...@web.de> writes:
>>
>> > David Kastrup wrote:
>> > [...]
>> >> > Wallace brought forth the GPL. The GPL is his evidence.
>> >>
>> >> Yes. No facts compatible with his claim of predatory pricing.
>> >
>> > And how do you know?
>>
>> By virtue of having a brain.
>
> Here's an exercise for your brain. First, I'll address your remark in
> reply to mini-RMS:
>
> | > But of course, in Therekovian there's only one incentive for "life":
> | > getting money.
> |
> | Last time I looked, RedHat was getting money.
>
> This fact is compatible with Wallace's claim of predatory pricing
> conspiracy pursuant to the GPL. Those ancillary revenues from "no
> charge" GPL'd code can NOT "explain the lengths to which"
> Microsoft^H^H^H^H^H^H^H^HRed Hat "has gone" (see below). It could
> have been BSD and alike licensed code in its entirety which Red Hat
> could have used to produce those ancillary revenues, and Wallace
> doesn't have any problems with RedHat's use of BSD and alike
> licensed code which doesn't price-fix IP at predatory level.
Reality check: bundling BSD and alike licensed code is, for example,
the business model of Theo de Raadt. His earnings are utterly peanuts
compared to those of RedHat.
> The Judge in Microsoft antitrust case ruled:
>
> "Proof that a profit-maximizing firm took predatory action should
> suffice to demonstrate the threat of substantial exclusionary effect;
> to hold otherwise would be to ascribe irrational behavior to the
> defendant. Moreover, predatory conduct, by definition as well as by
> nature, lacks procompetitive business motivation.
But you are glossing over the fact that there is hardly a more
competitive market than the Linux market. It has hundreds of
participants and a very low barrier of entry.
> Note that Wallace's case is an action under § 1 of the Sherman Act.
"purports to be" rather than "is".
> The anticompetitive nature of the GNU GPL is no-brainer.
That must explain why there is _lots_ of competition in the Linux
market.
> The GNU project was designed to be anticompetitive. Go read the GNU
> Manifesto.
It does not say anything like that.
Here are a few quotes:
Complete system sources will be available to everyone. As a
result, a user who needs changes in the system will always be
free to make them himself, or hire any available programmer or
company to make them for him. Users will no longer be at the
mercy of one programmer or company which owns the sources and is
in sole position to make changes.
Releasing the dependence on a particular programmer or company creates
rather than curbs competition.
We must distinguish between support in the form of real
programming work and mere handholding. The former is something
one cannot rely on from a software vendor. If your problem is not
shared by enough people, the vendor will tell you to get lost.
Where is competition if a vendor can tell you to get lost?
If your business needs to be able to rely on support, the only way
is to have all the necessary sources and tools. Then you can hire
any available person to fix your problem; you are not at the mercy
of any individual.
Where is not being at the mercy of a single provider anticompetitive?
Such services could be provided by companies that sell just
hand-holding and repair service. If it is true that users would
rather spend money and get a product with service, they will also
be willing to buy the service having got the product free. The
service companies will compete in quality and price; users will
not be tied to any particular one. Meanwhile, those of us who
don't need the service should be able to use the program without
paying for the service.
Here Stallman actually talks about "compete".
> http://www.gnu.org/gnu/manifesto.html
>
> "GNU will remove operating system software from the realm of
> competition. You will not be able to get an edge in this area, but
> neither will your competitors be able to get an edge over you. You
> and they will compete in other areas, while benefiting mutually in
> this one. If your business is selling an operating system, you will
> not like GNU, but that's tough on you. If your business is something
> else, GNU can save you from being pushed into the expensive business
> of selling operating systems."
Looks like Stallman was wrong about that one: while one can't _secure_
an edge over competitors, _getting_ an edge is what the distributions
are all about.
> So once again, please tell me what's wrong with Wallace's claim of
> predatory pricing as explained below.
It clashes with the fact that there is lot of competition going on in
the Linux market, and that RedHat _turns_ a profit in the operating
system business and is not operating at a loss.
> Not only competitors are harmed by the GPL scheme. Consumers lose
> because a lack of competition removes not just product choice but
> without competitive reward the incentive to improve product quality
> disappears.
The problem is that you and Wallace are living in a fantasy world.
The competition is alive and kicking.
> When we analyze case (ii) “pricing below some appropriate measure of
> cost”
RedHat is profitable.
> The GPL’s term 2(b) is without question direct evidence of a
> below-cost pricing scheme.
No, since you are allowed to charge any amount you want for the
product. You are just restricted in your choice of license.
Alexander Terekhov
David Kastrup wrote:
[...]
> > | Last time I looked, RedHat was getting money.
> >
> > This fact is compatible with Wallace's claim of predatory pricing
> > conspiracy pursuant to the GPL. Those ancillary revenues from "no
> > charge" GPL'd code can NOT "explain the lengths to which"
> > Microsoft^H^H^H^H^H^H^H^HRed Hat "has gone" (see below). It could
> > have been BSD and alike licensed code in its entirety which Red Hat
> > could have used to produce those ancillary revenues, and Wallace
> > doesn't have any problems with RedHat's use of BSD and alike
> > licensed code which doesn't price-fix IP at predatory level.
>
> Reality check: bundling BSD and alike licensed code is, for example,
> the business model of Theo de Raadt. His earnings are utterly peanuts
> compared to those of RedHat.
Bundling BSD and alike licensed code is, for example, the business
model of Apple Computer, Inc. (OS X and Darwin).
>
> > The Judge in Microsoft antitrust case ruled:
> >
> > "Proof that a profit-maximizing firm took predatory action should
> > suffice to demonstrate the threat of substantial exclusionary effect;
> > to hold otherwise would be to ascribe irrational behavior to the
> > defendant. Moreover, predatory conduct, by definition as well as by
> > nature, lacks procompetitive business motivation.
>
> But you are glossing over the fact that there is hardly a more
> competitive market than the Linux market. It has hundreds of
> participants and a very low barrier of entry.
What you call "the Linux market" (packaging, patches delivery, etc.)
are ancillary markets to the market Wallace's case is about.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> > | Last time I looked, RedHat was getting money.
>> >
>> > This fact is compatible with Wallace's claim of predatory pricing
>> > conspiracy pursuant to the GPL. Those ancillary revenues from "no
>> > charge" GPL'd code can NOT "explain the lengths to which"
>> > Microsoft^H^H^H^H^H^H^H^HRed Hat "has gone" (see below). It could
>> > have been BSD and alike licensed code in its entirety which Red Hat
>> > could have used to produce those ancillary revenues, and Wallace
>> > doesn't have any problems with RedHat's use of BSD and alike
>> > licensed code which doesn't price-fix IP at predatory level.
>>
>> Reality check: bundling BSD and alike licensed code is, for example,
>> the business model of Theo de Raadt. His earnings are utterly peanuts
>> compared to those of RedHat.
>
> Bundling BSD and alike licensed code is, for example, the business
> model of Apple Computer, Inc. (OS X and Darwin).
No. It is a resource of Apple computer, not a business model. OS X
never has been licensed under a free software license. You are again
being in fantasy land. The only thing that ever has been free was
Darwin, and Apple has just clamped down on Darwin on the x86 platform:
no more source available. The business model of Apple is selling
proprietary software.
A more interesting case would be Opensolaris (which is BSD-derived,
after all). One will have to see how this pans out. But it does not
appear like the market is too eager for non-copylefted free software.
>> > The Judge in Microsoft antitrust case ruled:
>> >
>> > "Proof that a profit-maximizing firm took predatory action should
>> > suffice to demonstrate the threat of substantial exclusionary effect;
>> > to hold otherwise would be to ascribe irrational behavior to the
>> > defendant. Moreover, predatory conduct, by definition as well as by
>> > nature, lacks procompetitive business motivation.
>>
>> But you are glossing over the fact that there is hardly a more
>> competitive market than the Linux market. It has hundreds of
>> participants and a very low barrier of entry.
>
> What you call "the Linux market" (packaging, patches delivery, etc.)
> are ancillary markets to the market Wallace's case is about.
Hardly. Wallace is complaining that he can't sell the "intellectual
property" he would like to sell because nobody is buying. But the
"ancillary markets" are the one paying for development. You don't
make money off an operating system without it being employed anywhere.
Alexander Terekhov
David Kastrup wrote:
[...]
> > Bundling BSD and alike licensed code is, for example, the business
> > model of Apple Computer, Inc. (OS X and Darwin).
>
> No.
http://www.apple.com/macosx/features/x11/
http://darwinsource.opendarwin.org/10.4.6.x86/
regards,
alexander.
David Kastrup
Again: the BSD stuff is not their business model, but a resource.
They don't contribute to the development of said software upstream.
And they sell hardware as their main business, not software.
David Kastrup
Well, strike that last sentence. While they don't sell the software
separately, the software _is_ what mainly constitutes "Apple", and the
hardware is basically used as a fat and stylish dongle.
But the particular software that constitutes what "Apple" is all about
is not and never has been made open by them. The BSD licensed stuff
is not their business model.
Richard Tobin
>> The anticompetitive nature of the GNU GPL is no-brainer.
>That must explain why there is _lots_ of competition in the Linux
>market.
Surely the claim must be that it is damaging to competition in the
market for operating systems as a whole, rather than within the Linux
market itself?
-- Richard
David Kastrup
But the Linux market is not separate from the operating systems
market. Linux is damaging to _competitors_ in the market for
operating systems, because it opens wide the possibilities for
_competition_. But if those competitors find that the presence of
Linux makes their own products less attractive, they are free to
revert to selling Linux themselves and continue competing. And
indeed, it appears that Sun is going that route right now. HP did
this earlier on.
Alexander Terekhov
David Kastrup wrote:
>
> ric...@cogsci.ed.ac.uk (Richard Tobin) writes:
>
> > In article <85iro3l...@lola.goethe.zz>, David Kastrup
> > <d...@gnu.org> wrote:
> >
> >>> The anticompetitive nature of the GNU GPL is no-brainer.
> >
> >>That must explain why there is _lots_ of competition in the Linux
> >>market.
> >
> > Surely the claim must be that it is damaging to competition in the
> > market for operating systems as a whole, rather than within the
> > Linux market itself?
>
> But the Linux market is not separate from the operating systems
> market. Linux is damaging to _competitors_ in the market for
> operating systems, because it opens wide the possibilities for
> _competition_.
And once again you conflate the market under attack by the copyleft
conspiracy with its ancillary markets. Is it really that hard to
grasp that those ancillary markets will function in exactly the same
way (if not better) when copyleft is outlawed and Linux becomes non-
copyleft free software?
> But if those competitors find that the presence of
> Linux makes their own products less attractive, they are free to
> revert to selling Linux themselves
Yeah, and "In time, due to its recursive nature, the GPL’s pool of
price fixed intellectual property can grow to utterly destroy a
targeted market." True.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
>>
>> ric...@cogsci.ed.ac.uk (Richard Tobin) writes:
>>
>> > In article <85iro3l...@lola.goethe.zz>, David Kastrup
>> > <d...@gnu.org> wrote:
>> >
>> >>> The anticompetitive nature of the GNU GPL is no-brainer.
>> >
>> >>That must explain why there is _lots_ of competition in the Linux
>> >>market.
>> >
>> > Surely the claim must be that it is damaging to competition in the
>> > market for operating systems as a whole, rather than within the
>> > Linux market itself?
>>
>> But the Linux market is not separate from the operating systems
>> market. Linux is damaging to _competitors_ in the market for
>> operating systems, because it opens wide the possibilities for
>> _competition_.
>
> And once again you conflate the market under attack by the copyleft
> conspiracy with its ancillary markets.
Nothing but the "ancillary market" is relevant here. We are talking
about the business of selling operating systems, not of selling labor.
Wallace is free to sell his labor to whatever operating system vendor
wants to buy it. But that's not what he wants. He purports to want
to sell operating system copies himself, and exactly that is what you
call "ancillary market".
> Is it really that hard to grasp that those ancillary markets will
> function in exactly the same way (if not better) when copyleft is
> outlawed and Linux becomes non- copyleft free software?
You can't outlaw copyleft since it is simply a normal use of a
creator's copyright. And those ancillary markets work better with
copyleft: exactly that is the problem for Wallace: he can't sell his
personal reinvention of the wheel because the market already has the
means to supply better ones on a sustainable basis.
>> But if those competitors find that the presence of Linux makes
>> their own products less attractive, they are free to revert to
>> selling Linux themselves
>
> Yeah, and "In time, due to its recursive nature, the GPL’s pool of
> price fixed intellectual property can grow to utterly destroy a
> targeted market." True.
Nonsense. The market is thriving with hundreds of competitors and
everybody free to join.
Alexander Terekhov
David Kastrup wrote:
[...]
> > And once again you conflate the market under attack by the copyleft
> > conspiracy with its ancillary markets.
>
> Nothing but the "ancillary market" is relevant here.
Only to you and other GNUtians. Wallace's case is not about ancillary
markets.
> We are talking
> about the business of selling operating systems, not of selling labor.
Wallace is talking about selling Intellectual Property.
> Wallace is free to sell his labor to whatever operating system vendor
> wants to buy it.
Sure he is free. But he wants to become a vendor of his SciBSD
operating system and use some IP value based business model.
> But that's not what he wants. He purports to want
> to sell operating system copies himself, and exactly that is what you
> call "ancillary market".
You again attempt to conflate. Think of it this way: Red Hat doesn't
sell operating system copies. Go try to buy a used one (archaic
pre-"subscription model" copies don't count).
>
> > Is it really that hard to grasp that those ancillary markets will
> > function in exactly the same way (if not better) when copyleft is
> > outlawed and Linux becomes non- copyleft free software?
>
> You can't outlaw copyleft since it is simply a normal use of a
> creator's copyright.
It's far from normal.
> And those ancillary markets work better with
> copyleft: exactly that is the problem for Wallace: he can't sell his
> personal reinvention of the wheel because the market already has the
> means to supply better ones on a sustainable basis.
Nonsense. Wallace case is not about ancillary markets to begin with,
and his reuse of BSD and alike licensed code in SciBSD is hardly
reinvention.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> > And once again you conflate the market under attack by the copyleft
>> > conspiracy with its ancillary markets.
>>
>> Nothing but the "ancillary market" is relevant here.
>
> Only to you and other GNUtians. Wallace's case is not about ancillary
> markets.
>
>> We are talking
>> about the business of selling operating systems, not of selling labor.
>
> Wallace is talking about selling Intellectual Property.
>
>> Wallace is free to sell his labor to whatever operating system vendor
>> wants to buy it.
>
> Sure he is free. But he wants to become a vendor of his SciBSD
> operating system and use some IP value based business model.
"IP value based business model" is waffling about things. Just what
does he want to sell to whom?
Anyway, so he finds that thereis already a market of operating systems
where hundreds of people compete by virtue of a cooperative business
model, and he wants to have both cooperation and competition outlawed
in order to have a chance of marketing an inferior product which does
not yet exist?
Why should the court feel they have to accommodate his wishes for
anticompetitive measures?
>> But that's not what he wants. He purports to want to sell
>> operating system copies himself, and exactly that is what you call
>> "ancillary market".
>
> You again attempt to conflate. Think of it this way: Red Hat doesn't
> sell operating system copies.
Why should I? That's just what they do, and it is one of their main
sources of income. Then they have a number of kernel and compiler
developers in their portfolio producing "intellectual property", and
since that enables them to be a competent business partner, people buy
at RedHat. If they stop being a competent business partner, people
are free to go elsewhere for their business, both for operating system
copies and support. No vendor lockin.
That is being competitive. And Wallace wants to have competition
removed in order to be able to market an inferior product.
>> > Is it really that hard to grasp that those ancillary markets will
>> > function in exactly the same way (if not better) when copyleft is
>> > outlawed and Linux becomes non- copyleft free software?
>>
>> You can't outlaw copyleft since it is simply a normal use of a
>> creator's copyright.
>
> It's far from normal.
It is completely within the scope of the law. In fact, if you look at
a current Windows XP EULA where Microsoft reserves the right to
remotely destroy your computer without recompensation in the course of
making a mistake while crippling its software post-purchase (in order
to stop you from exercising your consumer rights with a legally
acquired copy of music or software, for example), then I call _that_
far from normal. Very, very far from normal.
A license permitting you sharing code under conditions is rather
ordinary. It is halfway between a permission to share without
conditions, and this (public domain) is the penultimate state of _all_
copyrightable material, even though the currently valid time durations
until this happens are ridiculous, particularly when concerning
software.
>> And those ancillary markets work better with copyleft: exactly that
>> is the problem for Wallace: he can't sell his personal reinvention
>> of the wheel because the market already has the means to supply
>> better ones on a sustainable basis.
>
> Nonsense. Wallace case is not about ancillary markets to begin with,
> and his reuse of BSD and alike licensed code in SciBSD is hardly
> reinvention.
So he wants to capitalize on the work of others without contributing
back and sues against people who don't allow their work to get
accosted in that manner.
So it is not his own IP he wants to sell, but that of others which is
freely available to him, and he wants to prohibit people making stuff
freely available to others since this ruins his market.
Really, it takes a Terekhov to make an even more outrageously stupid
case than Wallace tried doing himself.
Alexander Terekhov
David Kastrup wrote:
[...]
> "IP value based business model" is waffling about things. Just what
> does he want to sell to whom?
Suppose he wants to become an Apple (but without music and hardware
business) and compete with other operating systems (not only on Macs).
>
> Anyway, so he finds that thereis already a market of operating systems
> where hundreds of people compete by virtue of a cooperative business
Bzzt.
> model, and he wants to have both cooperation and competition outlawed
Thus far, he wants to have only the GPL outlawed and that would put
the GPL'd code into quasi public domain (the penalty for copyright
misuse) at least in Indiana.
> in order to have a chance of marketing an inferior product which does
> not yet exist?
And how do you know that his product is inferior or that it doesn't
exist?
>
> Why should the court feel they have to accommodate his wishes for
> anticompetitive measures?
What "anticompetitive measures"? The court should just apply the
antitrust law to GPL predatory price fixing conspiracy.
[...]
> So he wants to capitalize on the work of others without contributing
> back
Not necessarily without contributing back.
> and sues against people who don't allow their work to get
> accosted in that manner.
He's against "contributing back" under unlawful copyleft terms.
>
> So it is not his own IP he wants to sell, but that of others which is
> freely available to him,
Not only to him. The same IP is available to others as well.
> and he wants to prohibit people making stuff
> freely available to others since this ruins his market.
He doesn't want to prohibit people making stuff freely available
to others under lawful non-copyleft terms.
>
> Really, it takes a Terekhov to make an even more outrageously stupid
> case than Wallace tried doing himself.
dak, dak, dak.
You're arguing against a caricature of his case, and not his case itself.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> "IP value based business model" is waffling about things. Just
>> what does he want to sell to whom?
>
> Suppose he wants to become an Apple (but without music and hardware
> business) and compete with other operating systems (not only on
> Macs).
So what stops him from doing so?
>> Anyway, so he finds that thereis already a market of operating systems
>> where hundreds of people compete by virtue of a cooperative business
>
> Bzzt.
>
>> model, and he wants to have both cooperation and competition outlawed
>
> Thus far, he wants to have only the GPL outlawed and that would put
> the GPL'd code into quasi public domain (the penalty for copyright
> misuse) at least in Indiana.
Uh what? You mean, if there are terms in Microsoft's EULA to be found
which don't jibe with the law, then XP is in the public domain? I
find that implausible.
Apart from which, there are no terms in the GPL that are against the
law.
>> in order to have a chance of marketing an inferior product which
>> does not yet exist?
>
> And how do you know that his product is inferior or that it doesn't
> exist?
If it wasn't inferior, he would not need the better stuff banned. And
if it existed, he could point to it.
>> Why should the court feel they have to accommodate his wishes for
>> anticompetitive measures?
>
> What "anticompetitive measures"? The court should just apply the
> antitrust law to GPL predatory price fixing conspiracy.
There is no conspiracy here. A conspiracy is a collusive agreement
between parties. The GPL is out in the open, and everybody is free to
join the "conspiracy" or not, at his own choice.
With your terminology, every free market is a conspiracy of those who
choose to participate.
> [...]
>
>> So he wants to capitalize on the work of others without contributing
>> back
>
> Not necessarily without contributing back.
Without contributing back. Or else he would not have a problem with
the difference between BSD license and GPL.
>> and sues against people who don't allow their work to get accosted
>> in that manner.
>
> He's against "contributing back" under unlawful copyleft terms.
He is free to ignore the extra rights granted to him by copyleft.
>> So it is not his own IP he wants to sell, but that of others which
>> is freely available to him,
>
> Not only to him. The same IP is available to others as well.
And your point was?
>> and he wants to prohibit people making stuff freely available to
>> others since this ruins his market.
>
> He doesn't want to prohibit people making stuff freely available to
> others under lawful non-copyleft terms.
Since copyleft forms an additional permission, not a restriction with
relation to the standard provisions of copyright law, it can't be
unlawful.
>> Really, it takes a Terekhov to make an even more outrageously
>> stupid case than Wallace tried doing himself.
>
> dak, dak, dak.
>
> You're arguing against a caricature of his case, and not his case
> itself.
Yes, that's exactly what I say. It takes a Terekhov to make an even
more outrageously stupid case than Wallace tried doing himself.
--
Alexander Terekhov
David Kastrup wrote:
[...]
> Uh what? You mean, if there are terms in Microsoft's EULA to be found
> which don't jibe with the law, then XP is in the public domain? I
> find that implausible.
http://interactionlaw.com/id12.html
(Microsoft Risks Copyright Impotence)
[...]
> if it existed, he could point to it.
http://www.danwal.com/
(Please be patient. Please be patient.)
[...]
> > You're arguing against a caricature of his case, and not his case
> > itself.
>
> Yes, that's exactly what I say.
But that caricature is of your own making.
Wallace has 30 days to appeal. I hope he will. We'll see.
regards,
alexander.
David Kastrup
>> > You're arguing against a caricature of his case, and not his case
>> > itself.
>>
>> Yes, that's exactly what I say.
>
> But that caricature is of your own making.
>
> Wallace has 30 days to appeal. I hope he will. We'll see.
Offer to pay all his legal expenses, for a small share in the
sure-fire recompensation he is about to get on appeal. I am sure this
will motivate him.
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> >> > You're arguing against a caricature of his case, and not his case
> >> > itself.
> >>
> >> Yes, that's exactly what I say.
> >
> > But that caricature is of your own making.
> >
> > Wallace has 30 days to appeal. I hope he will. We'll see.
>
> Offer to pay all his legal expenses, for a small share in the
> sure-fire recompensation he is about to get on appeal. I am sure this
> will motivate him.
He seems to be motivated enough without any offers from me.
-------
DOCKETING STATEMENT
United States District Court for the Southern
District of Indiana, Indianapolis Division
File Number 1:05-cv-0678-RLY-VSS
Daniel Wallace,
Plaintiff,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION;
RED HAT INC;
NOVELL, INC.,
Defendants.
Pursuant to F.R.A.P. 3 and Circuit Rule 3 plaintiff-appellant
Daniel Wallace appears and states the following:
1.) The District Court had jurisdiction over plaintiff’s antitrust
claim pursuant to 15 U.S.C. § 26 and 28 U.S.C. §1331.
2.) The Circuit Court has jurisdiction over plaintiff-appellant’s
claim pursuant to 28 U.S.C. § 1291.
3.) The District Court entered final judgment on plaintiff’s claim
on May 16, 2006 by granting a Motion to Dismiss pursuant to F.R.C.P. Rule
12(b)(6).
4.) Plaintiff’s notice of appeal was timely filed on May 19, 2006.
__________________________________
Daniel Wallace, plaintiff-appellant pro se
3874 S. Redbird Trail
New Palestine, IN 46163
317-861-6415
-------
regards,
alexander.
David Kastrup
> David Kastrup wrote:
>>
>> Alexander Terekhov <tere...@web.de> writes:
>>
>> >> > You're arguing against a caricature of his case, and not his case
>> >> > itself.
>> >>
>> >> Yes, that's exactly what I say.
>> >
>> > But that caricature is of your own making.
>> >
>> > Wallace has 30 days to appeal. I hope he will. We'll see.
>>
>> Offer to pay all his legal expenses, for a small share in the
>> sure-fire recompensation he is about to get on appeal. I am sure this
>> will motivate him.
>
> He seems to be motivated enough without any offers from me.
[Appeal claim]
This is going to be cute. The problem with an appeal is that Wallace
does not merely have to get it right this time: he has to prove that
he got it right last time around, and the court just failed to notice.
It would take considerable skill to make a case that has a chance to
even survive into trial. But proving that the previous attempt
already was sufficient would seem like an impossibly hard problem even
for somebody with a legal clue.
The downside, of course, is that Wallace's doomed attempts don't
actually say anything about the legal implications of the GPL either
which way. They merely tell something about Wallace himself.
Alexander Terekhov
David Kastrup wrote:
[...]
> This is going to be cute. The problem with an appeal is that Wallace
> does not merely have to get it right this time: he has to prove that
> he got it right last time around, and the court just failed to notice.
Appellate court will review district court's grant of motion to dismiss
de novo, accepting all the allegations in Wallace's complaint as true
and drawing all reasonable inferences in favor of Wallace.
I'm pretty sure that dismissal "based on failure to allege an
anticompetitive effect" will be reversed because "predatory pricing
has the requisite anticompetitive effect" (ARCO).
regards,
alexander.
David Kastrup
Well, first predatory pricing _as_ _defined_ would have to be shown.
One fallacy here is that "predatory pricing" requires "pricing" in the
first place, and the parties _participating_ in GPLed software
development are not free to set the "price for intellectual property":
this is fixed by the upstream license. Adhering to license terms is
not prohibited and does not form a conspiracy, or all law-abiding
citizens would be in a conspiracy.
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > David Kastrup wrote:
> > [...]
> >> This is going to be cute. The problem with an appeal is that Wallace
> >> does not merely have to get it right this time: he has to prove that
> >> he got it right last time around, and the court just failed to notice.
> >
> > Appellate court will review district court's grant of motion to dismiss
> > de novo, accepting all the allegations in Wallace's complaint as true
> > and drawing all reasonable inferences in favor of Wallace.
> >
> > I'm pretty sure that dismissal "based on failure to allege an
> > anticompetitive effect" will be reversed because "predatory pricing
> > has the requisite anticompetitive effect" (ARCO).
>
Your views re merits of Wallace's allegations are beside the point under
12(b)(6) standard. As for proof, "A plaintiff must prove (1) that the
prices complained of are below an appropriate measure of its rival's
costs and (2) that the competitor had a reasonable prospect of recouping
its investment in below cost prices." And Wallace already addressed both
elements in his reply brief.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
>>
>> Alexander Terekhov <tere...@web.de> writes:
>>
>> > David Kastrup wrote:
>> > [...]
>> >> This is going to be cute. The problem with an appeal is that Wallace
>> >> does not merely have to get it right this time: he has to prove that
>> >> he got it right last time around, and the court just failed to notice.
>> >
>> > Appellate court will review district court's grant of motion to dismiss
>> > de novo, accepting all the allegations in Wallace's complaint as true
>> > and drawing all reasonable inferences in favor of Wallace.
>> >
>> > I'm pretty sure that dismissal "based on failure to allege an
>> > anticompetitive effect" will be reversed because "predatory pricing
>> > has the requisite anticompetitive effect" (ARCO).
>>
>> Well, first predatory pricing _as_ _defined_ would have to be shown. ...
>
> Your views re merits of Wallace's allegations are beside the point
> under 12(b)(6) standard.
Tell that to the judges.
> As for proof, "A plaintiff must prove (1) that the prices complained
> of are below an appropriate measure of its rival's costs
This will be hard to do, considering that RedHat is profitable in its
operating system business and IBM has recouped its investment into
Linux several times already.
> and (2) that the competitor had a reasonable prospect of recouping
> its investment in below cost prices."
Basically, the standard demands proving that the prices must be both
below cost as well as profitable. This could be tricky even for a
person less inept than Wallace.
> And Wallace already addressed both elements in his reply brief.
Tell that to the judges. Your fantasies don't fly in the courts.
Alexander Terekhov
David Kastrup wrote:
[...]
> > Your views re merits of Wallace's allegations are beside the point
> > under 12(b)(6) standard.
>
> Tell that to the judges.
Bzzt.
http://groups.google.com/group/gnu.misc.discuss/msg/b81437831e209017
("not the merits")
[...]
> > and (2) that the competitor had a reasonable prospect of recouping
> > its investment in below cost prices."
>
> Basically, the standard demands proving that the prices must be both
> below cost as well as profitable.
Bzzt. GNU logic.
regards,
alexander.
David Kastrup
> GNUtian dak is getting desperate.
Your smokescreen attempts would probably appear less ridiculous if you
bothered giving some reason for them, however stupid.
> David Kastrup wrote:
> [...]
>> > Your views re merits of Wallace's allegations are beside the point
>> > under 12(b)(6) standard.
>>
>> Tell that to the judges.
>
> Bzzt.
>
> http://groups.google.com/group/gnu.misc.discuss/msg/b81437831e209017
> ("not the merits")
Terekhov quoting Terekhov quoting Terekhov. The most amusing part in
this series of self-quotes is probably:
> And Judge Tinder clearly erred.
> Hopefully Judge Young will do better.
Judge Young also erred.
You'll be sure to augment this list in future.
> [...]
>> > and (2) that the competitor had a reasonable prospect of recouping
>> > its investment in below cost prices."
>>
>> Basically, the standard demands proving that the prices must be both
>> below cost as well as profitable.
>
> Bzzt. GNU logic.
Since you conveniently cut out (1), you apparently realize that you
need to butcher the premise in order to make fun of the conclusion.
So you agree and just don't want to be seen admitting it.
Alexander Terekhov
David Kastrup wrote:
[...]
> > http://groups.google.com/group/gnu.misc.discuss/msg/b81437831e209017
> > ("not the merits")
>
> Terekhov quoting Terekhov quoting Terekhov.
I'm not the author of "not the merits". Go visit
http://groups.google.com/group/sci.med.vision
might help.
[...]
> >> Basically, the standard demands proving that the prices must be both
> >> below cost as well as profitable.
> >
> > Bzzt. GNU logic.
>
> Since you conveniently cut out (1), you apparently realize that you
> need to butcher the premise in order to make fun of the conclusion.
> So you agree and just don't want to be seen admitting it.
Bzzt.
regards,
alexander.
Alexander Terekhov
John Hasler wrote:
>
> Alexander Terekhov writes:
> > As for proof, "A plaintiff must prove (1) that the prices complained
> > of are below an appropriate measure of its rival's costs
>
> pressing a DVD. The marginal cost of granting a GPL license is zero.
Wallace's case is not about copies (material objects). His case is about
predatory fix pricing of Intellectual Property in violation of § 1 of
the Sherman Act.
>
> > and (2) that the competitor had a reasonable prospect of recouping
> > its investment in below cost prices."
>
> David Kastrup wrote:
> > Basically, the standard demands proving that the prices must be both
> > below cost as well as profitable.
>
> What they mean is that the plaintiff must prove that if the defendant
> succeeded in driving him out of business with predatory pricing he would
> subsequently be able to recoup the money he lost selling below cost by
> selling at the elevated price he would be able to demand as a result of
> having disposed of his competitor.
This is indeed one example of recoupment. But ancillary revenues can
also be used to recoup losses.
"Proof that a profit-maximizing firm took predatory action should
suffice to demonstrate the threat of substantial exclusionary effect;
to hold otherwise would be to ascribe irrational behavior to the
defendant. Moreover, predatory conduct, by definition as well as by
nature, lacks procompetitive business motivation. See Aspen Skiing,
472 U.S. at 610-11 (evidence indicating that defendant's conduct was
"motivated entirely by a decision to avoid providing any benefits" to
a rival supported the inference that defendant's conduct "was not
motivated by efficiency concerns"). In other words, predatory behavior
is patently anticompetitive. ... Microsoft has no intention of ever
charging for licenses to use or distribute its browser. Id. śś 137-38.
Moreover, neither the desire to bolster demand for Windows nor the
prospect of ancillary revenues from Internet Explorer can explain the
lengths to which Microsoft has gone. In fact, Microsoft has expended
wealth and foresworn opportunities to realize more in a manner and to
an extent that can only represent a rational investment if its purpose
was to perpetuate the applications barrier to entry. Id. śś 136,
139-42. Because Microsoft's business practices "would not be
considered profit maximizing except for the expectation that . . .
the entry of potential rivals" into the market for Intel-compatible
PC operating systems will be "blocked or delayed," Neumann v.
Reinforced Earth Co., 786 F.2d 424, 427 (D.C. Cir. 1986), Microsoft's
campaign must be termed predatory. Since the Court has already found
that Microsoft possesses monopoly power, see supra, § I.A.1, the
predatory nature of the firm's conduct compels the Court to hold
Microsoft liable under § 2 of the Sherman Act."
Note that Wallace's case is an action under § 1 of the Sherman Act.
regards,
alexander.
David Kastrup
> John Hasler wrote:
>>
>> Alexander Terekhov writes:
>> > As for proof, "A plaintiff must prove (1) that the prices complained
>> > of are below an appropriate measure of its rival's costs
>>
>> The marginal cost of production of copies of Linux is at most the cost of
>> pressing a DVD. The marginal cost of granting a GPL license is zero.
>
> Wallace's case is not about copies (material objects). His case is
> about predatory fix pricing of Intellectual Property in violation of
> § 1 of the Sherman Act.
You can't sell "intellectual property", only access to it, by way of
licenses and media.
> Note that Wallace's case is an action under § 1 of the Sherman Act.
It purports to be such, but fails to meet the requirements. That is
why the case has been thrown out.
Alexander Terekhov
David Kastrup wrote:
[...]
> You can't sell "intellectual property"
Bzzt. Copyright (refs to patents in Wallace's case aside for a moment)
is a form of property which, like physical property, can be bought or
sold, inherited, licensed or otherwise transferred, wholly or in part.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> > http://groups.google.com/group/gnu.misc.discuss/msg/b81437831e209017
>> > ("not the merits")
>>
>> Terekhov quoting Terekhov quoting Terekhov.
>
> I'm not the author of "not the merits". Go visit
>
> http://groups.google.com/group/sci.med.vision
>
> might help.
You are the author of
Message-ID: <442454AE...@web.de>
which you quoted in
Message-Id: <446A37A1...@web.de>
which you quoted in
Message-ID: <446F124D...@web.de>
Terekhov quoting Terekhov quoting Terekhov, just like I said. That I
have not further followed all of your quoting forks (that would be
quite some task) does not change that.
So it appears like the person requiring medical help would be you.
Alexander Terekhov
David Kastrup wrote:
[...]
> You are the author of
> Message-ID: <442454AE...@web.de>
> which you quoted in
> Message-Id: <446A37A1...@web.de>
> which you quoted in
> Message-ID: <446F124D...@web.de>
That's how one blogs on usenet. ;-)
regards,
alexander.
David Kastrup
It can be transferred. Let us assume for the sake of argument that
this is what Wallace is talking about.
Then he needs to present a business plan where he is _selling_ his
copyright to somebody who wants it. Namely his plan has to include
being bought out by an investor. He did not present such a plan. And
apart from that, RedHat and IBM are not competing with him in selling
copyright: if you take a look at the contributions by RedHat, FSF and
IBM, you will notice that they _retain_ their copyright and don't give
it away. Read the copyright notices.
So if "selling intellectual property" is his business plan, the
defendants don't even compete in that business. Because they don't
sell their intellectual property, but license it.
So take your pick. Either the licensing business is, as you claim,
"ancillary", in which case the defendants are not in competition in
the alleged non-ancillary market of "selling intellectual property",
or it isn't, in which case they unfortunately happen to run a
profitable business in that area, defying the "predatory" angle.
In either case, Wallace's case falls apart because of not meeting the
basic criteria for his claims.
Alexander Terekhov
Hey I'm you fan dak.
ROFL once again.
Hey dak, fax an appellate amicus. "Tell that to the judges."
regards,
alexander. <ROFLing once again>
David Kastrup
> ROFL.
>
> Hey I'm you fan dak.
>
> ROFL once again.
>
> Hey dak, fax an appellate amicus. "Tell that to the judges."
Why would I need to? Up to now they appear perfectly capable of
reading the law.
> regards,
> alexander. <ROFLing once again>
Talk about getting desperate.
Alexander Terekhov
David Kastrup wrote:
[...]
> Why would I need to? Up to now they appear perfectly capable of
> reading the law.
Oh really?
The District Court ruled (emphasis added):
"Wallace ALLEGES that the Defendants’ “PREDATORY PRICE-fixing scheme
prevents [him] from marketing his own computer operating system as a
competitor.” His complaint fails because it FAILS TO ALLEGE
ANTICOMPETITIVE EFFECTS in an identifiable market. Car Carriers,
Inc. v. Ford Motor Company, 745 F.2d 1101 (7th Cir. 1984) (affirming
dismissal based on FAILURE TO ALLEGE AN ANTICOMPETITIVE EFFECT). . .
Because he has not identified an ANTICOMPETITIVE EFFECT, Wallace has
failed to allege a cognizable antitrust injury"
Yet the Supreme Court explicitly ruled:
"Antitrust injury does not arise for purposes of § 4 of the Clayton
Act until a private party is adversely affected by an anticompetitive
aspect of the defendant's conduct; in the context of pricing practices,
only PREDATORY PRICING HAS THE REQUISITE ANTICOMPETITIVE EFFECT";
ATLANTIC RICHFIELD CO. v. USA PETROLEUM CO., 495 U.S. 328 (1990)
This legal schizophrenia is kind of scary when you think of the
innocent people convicted by US legal system.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> Why would I need to? Up to now they appear perfectly capable of
>> reading the law.
>
> Oh really?
>
> The District Court ruled (emphasis added):
>
> "Wallace ALLEGES that the Defendants’ “PREDATORY PRICE-fixing scheme
> prevents [him] from marketing his own computer operating system as a
> competitor.” His complaint fails because it FAILS TO ALLEGE
> ANTICOMPETITIVE EFFECTS in an identifiable market.
Well, they are perfectly capable of reading, as opposed to you.
Wallace can allege all he wants to, but he fails to allege
anticompetitive effects in an identifiable market.
There is no identifiable market. That's one of the main problems. I
pointed out already to you that if he is out for selling his
copyright, the defendants are the wrong people to sue since they don't
even sell their copyright. And if he is out for licensing copies,
there are no anticompetitive effects going on, since the defendants
are turning profits in those markets, and thus are competitive.
So what in your opinion is the identifiable market?
Alexander Terekhov
David Kastrup wrote:
[...]
> There is no identifiable market.
That's not what the Judge said. Yeah, of course, to GNUtians, there's
no market in Wallace's case.
http://www.gnu.org/philosophy/words-to-avoid.html#Market
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> There is no identifiable market.
>
> That's not what the Judge said.
There is no identifiable market where the defendants would damage
Wallace by allegedly predatory pricing, because all markets in
question here are either not served by the defendants, not served by
Wallace, or are served in a profitable manner. Wallace has failed to
identify a market where he would even _allege_ the required conditions
(never mind whether his allegations are wrong or right). And that's
exactly why Wallace's case has been thrown out.
Please specify which market you think this is supposed to be. Up to
now you have only vaguely paraded "intellectual property" around.
Please specify _exactly_ what Wallace is supposed to be selling in the
presumed market.
> Yeah, of course, to GNUtians, there's no market in Wallace's case.
Well, if you think there _is_ an identifiable market in Wallace's
case, be free to actually specify it. Whining is no substitute.
Alexander Terekhov
David Kastrup wrote:
[...]
> Please specify which market you think this is supposed to be. Up to
> now you have only vaguely paraded "intellectual property" around.
> Please specify _exactly_ what Wallace is supposed to be selling in the
> presumed market.
Operating system software. I'll make it simple for you. Suppose
that all GPL'd software evaporates tomorrow. People will need
software in place of it. That's the market. Got it now? And, BTW,
what the Judge said is "Because he [Wallace] has not identified an
anticompetitive effect, Wallace has failed to allege a cognizable
antitrust injury." and he dismissed for that reason.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> Please specify which market you think this is supposed to be. Up to
>> now you have only vaguely paraded "intellectual property" around.
>> Please specify _exactly_ what Wallace is supposed to be selling in the
>> presumed market.
>
> Operating system software. I'll make it simple for you. Suppose
> that all GPL'd software evaporates tomorrow. People will need
> software in place of it. That's the market.
So you are talking about selling licenses and media. Fine. RedHat is
operating profitably in that business, so no predatory pricing. And
hundreds of other companies have entered this business with GNU/Linux
offerings as well, so it would not appear like there is an
anticompetitive effect. Rather the contrary: much more competition
than Wallace would like.
If that's the supposed market, it does not meet the criteria. Because
competition has increased, and because the defendants are operating
profitably. And Wallace does not even claim anything different.
> Got it now?
I got nothing that would stand a chance of meeting the criteria of
"predatory pricing". But anyway, you'll likely weazle around and be
meaning entirely different things in a moment, things that work out
equally bad.
> And, BTW, what the Judge said is "Because he [Wallace] has not
> identified an anticompetitive effect, Wallace has failed to allege a
> cognizable antitrust injury." and he dismissed for that reason.
Well, that's pretty much the same as failing to allege a market where
an anticompetitive effect would be visible.
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > David Kastrup wrote:
> > [...]
> >> Please specify which market you think this is supposed to be. Up to
> >> now you have only vaguely paraded "intellectual property" around.
> >> Please specify _exactly_ what Wallace is supposed to be selling in the
> >> presumed market.
> >
> > Operating system software. I'll make it simple for you. Suppose
> > that all GPL'd software evaporates tomorrow. People will need
> > software in place of it. That's the market.
>
> So you are talking about selling licenses and media. Fine. RedHat is
> operating profitably in that business, so no predatory pricing.
Red Hat recoups losses from GPL conspiracy (with other co-conspirators
in predatory priced IP that is meant to kill competition) by higher
prices of their subscription service contracts.
"A plaintiff must prove (1) that the prices complained of are below an
appropriate measure of its rival's costs and (2) that the competitor
had a reasonable prospect of recouping its investment in below cost
prices."
Wallace is a sure winner on the merits as well, AFAICS.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
>>
>> Alexander Terekhov <tere...@web.de> writes:
>>
>> > David Kastrup wrote:
>> > [...]
>> >> Please specify which market you think this is supposed to be. Up to
>> >> now you have only vaguely paraded "intellectual property" around.
>> >> Please specify _exactly_ what Wallace is supposed to be selling in the
>> >> presumed market.
>> >
>> > Operating system software. I'll make it simple for you. Suppose
>> > that all GPL'd software evaporates tomorrow. People will need
>> > software in place of it. That's the market.
>>
>> So you are talking about selling licenses and media. Fine. RedHat is
>> operating profitably in that business, so no predatory pricing.
>
> Red Hat recoups losses from GPL conspiracy (with other
> co-conspirators in predatory priced IP that is meant to kill
> competition) by higher prices of their subscription service
> contracts.
Reality check.
<URL:http://www.redhat.com/info/earnings/earnings_4q2006_tables.html>
By far the largest revenue comes from subscriptions to software.
Training and services, in contrast, are dwarved by a factor of about
4.
There are no "losses from GPL conspiracy". RedHat sells its media at
a profit. Whether the sales channel is most profitable on
subscriptions or on individual sales, is pretty irrelevant.
For your information, "loss" in an identifiable market segment means
"cost minus profits". And Wallace, like you, has failed to specify a
defined market segment where RedHat would be making losses, let alone
permanent losses.
Apart from that, RedHat does not _set_ the price for licensing,
anyway. It just follows the license conditions and has no choice
there where "conspiracy" code, namely that copyrighted by independent
parties, is involved.
Where they _do_ have a choice is when they are putting together
compilations where parts are (C) RedHat. And RedHat has a history of
routing out non-free components drastically (GNOME instead of KDE/Qt
at a time when the latter was non-free still was one of the more
drastic measures) and of putting technology like the RPM stuff under
the GPL. And guess what, this is what made people turn to RedHat to
such a degree that RedHat made the profits it does now.
The customers are seemingly actively involved in this "conspiracy",
too. Does not seem to be very secret. And RedHat fails to make
losses with its predatory pricing that it would need to recoup
elsewhere.
> "A plaintiff must prove (1) that the prices complained of are below
> an appropriate measure of its rival's costs and (2) that the
> competitor had a reasonable prospect of recouping its investment in
> below cost prices."
>
> Wallace is a sure winner on the merits as well, AFAICS.
As sure as the sky is pink. And "as far as you can see" is not
particularly impressive as long as you keep digging yourself into
holes.
Alexander Terekhov
David Kastrup wrote:
[...]
> There are no "losses from GPL conspiracy". RedHat sells its media at
> a profit.
dak. dak. dak.
Why don't you go to https://www.redhat.com/apps/commerce/ and check
yourself what they are selling. IIRC, media kits are optional and
free (as in free beer, not GNU "freedom"). They sell only contracts
and, pursuant to the GPL, they don't charge anything for GPL'd IP.
QED.
regards,
alexander.
David Kastrup
Look, you need to decide what the market is. One moment you decide
that it's "operating system images" (more or less), the next moment
you are again back at "GPL'd IP", and "IP" would be the copyright, not
the software.
If even a legal eagle like you gets confused all the time, you can't
blame the judges not to be able to follow this kind of reasoning.
> QED.
Uh, why don't you check that page yourself? Service contracts cost
_extra_. The cheapest version you can get ($179) has only
- 30 Days Installation and Basic Configuration Phone Support
That's pretty standard for operating system sales. You can have your
products shipped, or you can download them. That's pretty standard
for software sales, too.
So the problem you seem to be having is that _some_ kind of images can
be downloaded without support. This is not valuing the _IP_ at zero
(since you can't get the copyright transferred in that manner), but is
valuing the media at zero. And this downloadability makes the sales
profitable in the _same_ market segment, namely operating system
images. So there is no "recouping" going on. If it were, any kind of
advertising would be priced predatorily, since it carries associated
costs which are then "recouped" in the market.