Hey Terekhov: Wallace lost. Who'd guess.... ;)

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Rui Miguel Silva Seabra

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Mar 21, 2006, 4:31:16 AM3/21/06
to gnu-misc...@gnu.org
One of Lex Terekhov's favorite "heroes" looses his "cause":

http://www.groklaw.net/article.php?story=20060320201540127

Mr. Wallace's fourth Amended Complaint was dismissed and the
Free Software Foundation's Motion to Dismiss was granted. It's
the Order that tells Wallace to pay the Free Software
Foundation's costs. Judges do that when they'd like you to learn
a good lesson. It's a signal you shouldn't have brought the case
in the first place.

Honestly, pro se lawsuits tend to be disasters. If you can't
find a lawyer willing to represent you, it usually means you
don't have a case.

Regards.

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David Kastrup

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Mar 21, 2006, 4:56:14 AM3/21/06
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Rui Miguel Silva Seabra <r...@1407.org> writes:

> One of Lex Terekhov's favorite "heroes" loses his "cause":
>
> http://www.groklaw.net/article.php?story=20060320201540127

It won't keep Mr Terekhov from citing various nonsense from Wallace's
hand-ins as legal gospel on occasion. He has been doing that in the
past even after they were dismissed, he'll continue doing so even now
that the whole case is dismissed with a vengeance.

--
David Kastrup, Kriemhildstr. 15, 44793 Bochum

Alexander Terekhov

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Mar 21, 2006, 6:11:40 AM3/21/06
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First off, I'm surprised. I hope Wallace will appeal. As for "costs"...

------
The award of costs is not a penalty but is a method used to reimburse
an innocent party for the expenses of litigation. Costs include the
payment of court fees for the commencement of the litigation; the
submission of pleadings or other documents; or the service of process
or other papers by a public officer. The appointment by a court of a
referee to hear extremely technical testimony, or a receiver to retain
and preserve the defendant's funds or property during litigation, is
included in costs. Costs entail expenditures made in interviewing
parties or witnesses prior to trial and the fees that are properly
paid to witnesses who testify. Printing expenses for maps or necessary
documents are also included.

Costs do not include the compensation of an attorney. Expenditures in
terms of the adversary nature of the proceedings, however, are included.
Only when specifically authorized by law may attorney's fees be awarded
in addition to costs.
------

regards,
alexander.

Alexander Terekhov

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Mar 21, 2006, 6:54:29 AM3/21/06
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David Kastrup

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Mar 21, 2006, 7:15:22 AM3/21/06
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Alexander Terekhov <tere...@web.de> writes:

> First off, I'm surprised.

That's Terekhov world.

> I hope Wallace will appeal.

Offer him to pay all the expenses this might entail. Anyway,
appealing this dismissal is not going to be too easy, short of
procedural mistakes, and there does not seem to be much leeway for
that. It would appear that the court granted Wallace plenty of rope
to hang himself before drawing the line.

Alexander Terekhov

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Mar 21, 2006, 7:49:27 AM3/21/06
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< misc.int-property added >

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

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Mar 21, 2006, 7:52:12 AM3/21/06
to
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.

David Kastrup

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Mar 21, 2006, 7:58:30 AM3/21/06
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David Kastrup <d...@gnu.org> writes:

> 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

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Mar 21, 2006, 8:34:42 AM3/21/06
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"We decline the invitation. As the foregoing discussion makes plain,
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

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Mar 21, 2006, 8:39:27 AM3/21/06
to
Alexander Terekhov <tere...@web.de> writes:

[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.

Rui Miguel Silva Seabra

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Mar 21, 2006, 2:23:38 PM3/21/06
to gnu-misc...@gnu.org

More self quotes. yawn.

You seem to forget the court dismissed the case for futility, so I find
it hard to believe any appeal won't wonder _why_ they considered it
futility...

As many have pointed that out to you in ways that only a fool couldn't
see, futility is the main gist of Wallace's "5 times amended" complaint.

Rui

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Rui Miguel Silva Seabra

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Mar 21, 2006, 2:28:46 PM3/21/06
to gnu-misc...@gnu.org
On Tue, 2006-03-21 at 14:34 +0100, Alexander Terekhov wrote:
> 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 court found out otherwise, Lex:

[T]he 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.

Or do you consider this judge is also drunk?

http://lists.gnu.org/archive/html/gnu-misc-discuss/2004-07/msg00238.html

Rui

PS: learn with me, will ya? quote somebody else, preferably not a close
ally, rather than yourself ;)

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Alexander Terekhov

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Mar 21, 2006, 8:22:28 PM3/21/06
to

Rui Miguel Silva Seabra wrote:
[...]

> [T]he GPL encourages, rather than discourages, free competition

Yeah, right.

http://en.wikipedia.org/wiki/Daniel_Wallace_(plaintiff)

Poor Dan Tinger.

regards,
alexander.

David Kastrup

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Mar 22, 2006, 4:09:47 AM3/22/06
to
Alexander Terekhov <tere...@web.de> writes:

> Rui Miguel Silva Seabra wrote:
> [...]
>> [T]he GPL encourages, rather than discourages, free competition
>
> Yeah, right.
>
> http://en.wikipedia.org/wiki/Daniel_Wallace_(plaintiff)

Uh, the case has been closed. Get over it.

> Poor Dan Tinger.

How many competing distributions of GNU/Linux do you know? How many
competing distributions of MS Windows do you know? What does that
tell you?

Really, you are living entirely in Lala land with your non-acceptment
of either facts or judicial rulings.

Alexander Terekhov

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Mar 22, 2006, 8:20:22 AM3/22/06
to

David Kastrup wrote:
[...]

> > http://en.wikipedia.org/wiki/Daniel_Wallace_(plaintiff)
>
> Uh, the case has been closed. Get over it.

Not so fast, dear. IIUC Wallace has 30 days to appeal (possible Rule
60 Motion aside for a moment).

>
> > Poor Dan Tinger.
>
> How many competing ...

Yeah, right. "Competing."

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."

regards,
alexander.

David Kastrup

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Mar 22, 2006, 8:24:25 AM3/22/06
to
Alexander Terekhov <tere...@web.de> writes:

> David Kastrup wrote:
> [...]
>> > http://en.wikipedia.org/wiki/Daniel_Wallace_(plaintiff)
>>
>> Uh, the case has been closed. Get over it.
>
> Not so fast, dear. IIUC Wallace has 30 days to appeal (possible Rule
> 60 Motion aside for a moment).
>
>>
>> > Poor Dan Tinger.
>>
>> How many competing ...
>
> Yeah, right. "Competing."

You did not answer the question.

Alexander Terekhov

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Mar 24, 2006, 8:09:37 AM3/24/06
to

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...

David Kastrup

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Mar 24, 2006, 8:20:24 AM3/24/06
to
Alexander Terekhov <tere...@web.de> writes:

> 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

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Mar 24, 2006, 8:44:52 AM3/24/06
to

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

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Mar 24, 2006, 8:59:55 AM3/24/06
to
Alexander Terekhov <tere...@web.de> writes:

> 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

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Mar 24, 2006, 12:59:39 PM3/24/06
to

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

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Mar 24, 2006, 1:19:15 PM3/24/06
to
Alexander Terekhov <tere...@web.de> writes:

> 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

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Mar 24, 2006, 1:36:18 PM3/24/06
to

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:

http://www.actonline.org/iptechsummit/Documents/Panel%201/Open%20Source%20Software%20and%20Innovation/GPL%20and%20Innovation%20-%20Maskus%20Report.pdf

"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

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Mar 24, 2006, 1:43:08 PM3/24/06
to
Alexander Terekhov <tere...@web.de> writes:

> 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

unread,
Mar 24, 2006, 1:57:43 PM3/24/06
to

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

unread,
Mar 24, 2006, 2:11:28 PM3/24/06
to
Alexander Terekhov <tere...@web.de> writes:

> 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

unread,
Mar 24, 2006, 2:49:06 PM3/24/06
to

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

unread,
Mar 24, 2006, 2:59:52 PM3/24/06
to
Alexander Terekhov <tere...@web.de> writes:

> 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

unread,
Mar 24, 2006, 3:21:02 PM3/24/06
to

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

unread,
Mar 24, 2006, 4:35:53 PM3/24/06
to
On 2006-03-24, Alexander Terekhov <tere...@web.de> wrote:
> "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

unread,
Mar 24, 2006, 4:42:13 PM3/24/06
to

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

unread,
Mar 24, 2006, 4:53:12 PM3/24/06
to

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

unread,
Mar 24, 2006, 5:00:23 PM3/24/06
to
On 2006-03-24, Alexander Terekhov <tere...@web.de> wrote:
> Merijn de Weerd wrote:
> [...]
>> 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

unread,
Mar 24, 2006, 5:16:34 PM3/24/06
to

Merijn de Weerd wrote:
[...]
> 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
Judge didn't explain why he did it. To me, it appears that he is less
versed in antitrust than Wallace.

regards,
alexander.

John Hasler

unread,
Mar 24, 2006, 5:04:20 PM3/24/06
to
Merijn writes:
> You have yet to show that setting a price at zero is predatory
> pricing. Just selling below cost is not by definition predatory.

A copyright license has no marginal cost.
--
John Hasler
jo...@dhh.gt.org
Dancing Horse Hill
Elmwood, WI USA

David Kastrup

unread,
Mar 24, 2006, 5:37:05 PM3/24/06
to
Alexander Terekhov <tere...@web.de> writes:

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

unread,
Mar 25, 2006, 3:53:58 AM3/25/06
to
On 2006-03-24, Alexander Terekhov <tere...@web.de> wrote:
> Merijn de Weerd wrote:
> [...]
>> 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

unread,
Mar 25, 2006, 5:10:54 AM3/25/06
to
Alexander Terekhov <tere...@web.de> wrote on Fri, 24 Mar 2006 22:42:13 +0100:

> 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

unread,
Mar 25, 2006, 4:24:56 AM3/25/06
to
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.

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

unread,
Mar 25, 2006, 11:27:10 AM3/25/06
to

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

unread,
Mar 25, 2006, 11:50:49 AM3/25/06
to

Merijn de Weerd wrote:

[... BSDs ...]

http://www.danwal.com/

regards,
alexander.

Alexander Terekhov

unread,
Mar 25, 2006, 12:01:29 PM3/25/06
to

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

unread,
Mar 25, 2006, 1:19:08 PM3/25/06
to
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?

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.

Alfred M. Szmidt

unread,
Mar 25, 2006, 1:18:41 PM3/25/06
to Merijn de Weerd, gnu-misc...@gnu.org
> "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.

He also has to show that the GPL actually sets a fixed price of zero
(or anything else for that matter) for a work.


Alexander Terekhov

unread,
Mar 25, 2006, 1:36:59 PM3/25/06
to

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.

Alexander Terekhov

unread,
Mar 25, 2006, 2:59:14 PM3/25/06
to

Hey paragon of intellect, please read the GPL 2 b). Oh, Ah, BTW, just
in case***, I'll give you ninety-five percent of profits if you drop
me a link to negatively priced GPL'd stuff.

regards,
alexander.

***) "There is no indication that in the unlikely event a licensor
wished to license modifications to the GPL at a price below zero (i.e.,
an effective negative price by paying the licensee to take the license),
such would in any way violate the GPL. To the extent the GPL is
analogous to any type of price restraint, it would be no more than a
maximum vertical restrain subject to the rule of reason."

-- Barnes & Thornburg LLP, (Wallace's) case 1:05-cv-00678-RLY-VSS

David Kastrup

unread,
Mar 25, 2006, 3:13:02 PM3/25/06
to
Alexander Terekhov <tere...@web.de> writes:

> "Alfred M. Szmidt" wrote:
>>
>> > "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.
>>
>> He also has to show that the GPL actually sets a fixed price of zero
>> (or anything else for that matter) for a work.
>
> Hey paragon of intellect, please read the GPL 2 b).

That's not "for a work" but for the act of licensing under the GPL.
You can charge whatever you want for a work, but the GPL license (and
the source code) must not cost extra.

You really should be more careful with dishing out insults. It makes
yourself look even more ridiculous.

Alexander Terekhov

unread,
Mar 25, 2006, 3:30:34 PM3/25/06
to

David Kastrup wrote:
[...]

> You really should be more careful with dishing out insults. It makes
> yourself look even more ridiculous.

One doesn't need a license to create and use private derivative
works (adaptations) of GPL'd software. 17 USC 117. So what is
your (and your fellow comrade GNUtian ams) point?

"The conversion of a program from one higher-level language to
another to facilitate use would fall within this right, as
would the right to add features to the program that were not
present at the time of rightful acquisition. These rights would
necessarily be more private in nature than the right to load a
program by copying it and could only be exercised so long as
they did not harm the interests of the copyright proprietor.
Unlike the exact copies authorized as described above, this
right of adaptation could not be conveyed to others along with
the licensed or owned program without the express authorization
of the owner of the copyright in the original work. "

-- http://digital-law-online.info/CONTU/contu6.html

regards,
alexander.

David Kastrup

unread,
Mar 25, 2006, 3:42:27 PM3/25/06
to
Alexander Terekhov <tere...@web.de> writes:

> David Kastrup wrote:
> [...]
>> You really should be more careful with dishing out insults. It makes
>> yourself look even more ridiculous.
>
> One doesn't need a license to create and use private derivative
> works (adaptations) of GPL'd software.

But that's not what that GPL section is talking about, Mr smokescreen:

2b) You must cause any work that you 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.

What about "distribute or publish" don't you understand?

> 17 USC 117. So what is your (and your fellow comrade GNUtian ams)
> point?

Think really hard.

[Another irrelevant quote deleted]

Alexander Terekhov

unread,
Mar 25, 2006, 4:09:32 PM3/25/06
to

David Kastrup wrote:
[...]

> 2b) You must cause any work that you 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.
>
> What about "distribute or publish" don't you understand?

Wallace:

"The present case concerns a pooling agreement among individual
copyright holders for naked price fixing of computer programs
involving rights under 17 USC 106(1), 106(2) and 106(3)."

Judge Tinder:

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."

Can you read "prohibiting licensees from charging a fee" and
"price fixing"?

And, BTW, before his blackout regarding antitrust injury on the
grounds of predatory pricing, Judge Tinder actually performed not
that bad.

"B. Plaintiff’s Third Amended Complaint States a Claim Upon Which
Relief can be Granted.

...

2. Plaintiff’s Allegations Sufficiently Set Forth a Violation of
the Rule of Reason.

...

The GPL allows free access to software programs, subject to some
limitations. This does not mean that the GPL necessarily aids
competition as contemplated by the Sherman Act, as FSF contends.
Instead, it could be argued that by making software available to
consumers free of charge through a licensing agreement, the GPL
results in “reduction in output . . . [and] deterioration in
quality,” United States v. Brown Univ., 5 F.3d 658, 668 (3d Cir.
1993), which could be harmful to consumers. By making certain
software programs available to users at no charge, the GPL may be
discouraging developers from creating new and better programs
because they will not receive compensation for their work, thereby
reducing the number of quality programs available to users. This
may be considered anticompetitive effect, and it certainly can be
inferred from what Mr. Wallace alleges in his Third Amended
Complaint. Therefore, this court finds that the Third Amended
Complaint states a claim for violation of Section 1 of the
Sherman Act, under the rule of reason doctrine."

regards,
alexander.

David Kastrup

unread,
Mar 25, 2006, 4:15:23 PM3/25/06
to
Alexander Terekhov <tere...@web.de> writes:

> David Kastrup wrote:
> [...]
>> 2b) You must cause any work that you 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.
>>
>> What about "distribute or publish" don't you understand?
>
> Wallace:

[...]

> Judge Tinder:

[...]

Completely irrelevant to your previous line of reasoning which you
snipped out again. Really, your smokescreen and quote birdshot
weazeling is most tiresome. You can't cure a wrong argument by
snipping everything away and cranking up another, entirely unrelated
argument.

Alexander Terekhov

unread,
Mar 25, 2006, 4:26:22 PM3/25/06
to

David Kastrup wrote:
[...]
> Completely irrelevant to your previous line of reasoning which you
> snipped out again. Really, your smokescreen and quote birdshot
> weazeling is most tiresome. You can't cure a wrong argument by

What "wrong argument" are you talking about? Your fellow GNUtian
ams' non sequitur regarding "work"? Oh. It reminds me of Moglen's
"a work"...

http://lwn.net/Articles/147070/

-----
LWN: So, if the kernel is covered solely by the GPL, you would see
proprietary modules as an infringement?

Eben: Yes. I think we would all accept that. I think that the
degree of interpenetration between kernel modules and the remainder
of the kernel is very great, I think it's clear that a kernel with
some modules loaded is a "a work" and because any module that is
dynamically loaded could be statically linked into the kernel, and
because I'm sure that the mere method of linkage is not what
determines what violates the GPL, I think it would be very clear
analytically that non-GPL loadable kernel modules would violate the
license if it's pure GPL.
-----

Any comments, dak?

regards,
alexander.

Alfred M. Szmidt

unread,
Mar 25, 2006, 4:29:29 PM3/25/06
to tere...@web.de, gnu-misc...@gnu.org
> He also has to show that the GPL actually sets a fixed price of
> zero (or anything else for that matter) for a work.

[...] please read the GPL 2 b).

Yes, lets.

"You must cause any work that you distribute or publish", since the
work hasn't been distributed to you yet, so I am quite free to charge
you a bazillion zorkmoids to actually distribute it to you, Section 1:
"You may charge a fee for the physical act of transferring a copy, and
you may at your option offer warranty protection in exchange for a
fee.".

I could go on about this specific paragraph, but this suffices to
prove that the GPL does not set the price to zero, or anything else
for a work which is licensed under the GNU GPL.

Oh, Ah, BTW, just in case***, I'll give you ninety-five percent of
profits if you drop me a link to negatively priced GPL'd stuff.

I have no clue what you are talking about.


Alexander Terekhov

unread,
Mar 25, 2006, 5:38:42 PM3/25/06
to

"Alfred M. Szmidt" wrote:
[...]

> "You must cause any work that you distribute or publish", since the
> work hasn't been distributed to you yet, so I am quite free to charge
> you a bazillion zorkmoids to actually distribute it to you, Section 1:
> "You may charge a fee for the physical act of transferring a copy, and
> you may at your option offer warranty protection in exchange for a
> fee.".

And Wallace said that "the defendants attempt to conflate...".

But given that you just can't grok the concept of "intellectual
property" (being a property/bundle of rights which just like
ownership rights to material objects in which work is fixed can
also be sold/licensed (but not under 17 USC 109 which covers the
right to distribute lawfully made material objects in which work
is fixed), don't bother to reply.

regards,
alexander.

Alfred M. Szmidt

unread,
Mar 25, 2006, 5:47:19 PM3/25/06
to tere...@web.de, gnu-misc...@gnu.org
And Wallace said that "the defendants attempt to conflate...".

Wallace lost.

But given that you just can't grok the concept of "intellectual
property"

Now you are conflating, Intellectual Property has no legal meaning, it
can mean anything and everything.


Graham Murray

unread,
Mar 26, 2006, 5:13:16 AM3/26/06
to
Alexander Terekhov <tere...@web.de> writes:

> 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'.

Rui Miguel Silva Seabra

unread,
Mar 25, 2006, 6:02:47 PM3/25/06
to gnu-misc...@gnu.org
On Fri, 2006-03-24 at 18:59 +0100, Alexander Terekhov wrote:
> David Kastrup wrote:
> [...]
> > So you feel unable to face the facts.
>
> The fact is that the GPL price-fixes IP at zero.

Really?

Global File System: 2200 USD. GPL'ed.

https://www.redhat.com/apps/commerce/rha/gfs/

Rui

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David Kastrup

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Mar 26, 2006, 4:19:53 PM3/26/06