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GNU is Not Unix

Wallace's Second Anti-GPL Suit Loses 303

Enterprise OpenSource Magazine is reporting that Daniel Wallace's second Anti-GPL lawsuit has gone down in flames. From the (short) article: "The judge wrote that 'Antitrust laws are for 'the protection of competition, not competitors.' 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. 'When the plaintiff is a poor champion of consumers, a court must be especially careful not to grant relief that may undercut the proper function of antitrust.' Because he has not identified an anticompetitive effect, Wallace has failed to allege a cognizable antitrust injury.'"
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Wallace's Second Anti-GPL Suit Loses

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  • by PingXao ( 153057 ) on Sunday May 21, 2006 @01:18PM (#15376386)
    "If you can't find a lawyer willing to represent you, it usually means you don't have a case."

    That may be true for this case, but more often than not it means you can't afford the lawyer's fees whether you've got a case or not. Justice and the legal process are things that are for sale in the United States these days. If you've got a small business there are any number of silly lawsuits your enemies can bring against you that will bleed you dry in legal fees alone. And that's for DEFENDING yourself against a bogus complaint, never mind prosecuting a case where you know you're in the right.
  • stupid (Score:4, Insightful)

    by joe 155 ( 937621 ) on Sunday May 21, 2006 @01:19PM (#15376388) Journal
    this suit was manifestly stupid. What he was claiming was that because someone is cheeper they are damaging the market. Is this not exactly the same as all companies - they are as cheep as they can afford to be in order to gain business from other companies? did he want to stop that - because it would have. Further, if the case went through and won it would mean that nothing could be given away for free, and possibly that the internet is illegal because it takes away from the market for books on the subject.
    If this had won it would have literally killed the economy and taken it back to the dark-ages.
  • Re:What? (Score:5, Insightful)

    by Anonymous Coward on Sunday May 21, 2006 @01:31PM (#15376438)
    Dumping at a value less than the cost of production (if you think coders' time is free, you're not much of a coder) isn't anticompetitive?

    That's right, like us "dumping" our opinions on the market instead of charging for them like professional opinion writers. Or people singing for the fun of it and letting others listen. Not to mention those evil people who don't charge for sex. They should all be in prison.
  • Re:What? (Score:5, Insightful)

    by Qzukk ( 229616 ) on Sunday May 21, 2006 @01:33PM (#15376442) Journal
    (if you think coders' time is free, you're not much of a coder)

    Next thing you know, Dockers will be suing women for sewing for free. After that, the association of starving artists will be suing preschoolers for giving their parents free drawings to hang on their refrigerator.

    If you think crayons and fingerpaints are free, you're not much of an artist.
  • Re:Competitors. (Score:3, Insightful)

    by kfg ( 145172 ) on Sunday May 21, 2006 @01:44PM (#15376485)
    That would be "nothing."

    The real issue in the Microsoft case was leveraging monopoly powers in a criminally coercive manner, with hints of fraud (as per the DR DOS case), not the mere bundling of the browser with the OS for "free."

    Unfair competition, not the perfectly legitimate competition of offering something cheaper/free.

    KFG
  • Re:What? (Score:5, Insightful)

    by Kjella ( 173770 ) on Sunday May 21, 2006 @01:47PM (#15376498) Homepage
    Dumping at a value less than the cost of production (if you think coders' time is free, you're not much of a coder) isn't anticompetitive?

    Nope. The list is too long to even mention but I think you can start with:
    Local theater group doing show without pay (professional actors)
    Volunteers at a soup kitchen (the local cafe)
    Laywers taking cases pro bono (other lawyers)
    Doctors providing free medical aid (other doctors)
    Any number of arts and crafts that people sell at less than real cost on fairs and the like
    Every local band who can't make a living out of it but plays anyway
    Every sort of artist who doesn't make a living out of it, but does it anyway
    Every sort of "scratch-an-itch" programmer who doesn't make a living out of it, but does it anyway

    Anti-trust requires that there has to be sort of monopolizing intent - that you want to pressure the competitors out of the market, then raise the prices afterwards. In fact, it typically has to go beyond pure pricing (e.g. Wal-Mart killing local shops, McDonalds killing local burger shop) and more on to discrimination and misuse of market power. How can you do that with the GPL? You can't, because there's noone who has that power, not even Linus himself. He couldn't turn around and say "Haha suckers! Now that Linux is the only OS in existance, I'll close it up and become the new Microsoft."
  • by DAldredge ( 2353 ) <SlashdotEmail@GMail.Com> on Sunday May 21, 2006 @01:50PM (#15376505) Journal
    I am owed a few thousand dollars by an out of state client that refuses to pay. I have a case, documents and phone calls to give me an iron clad case yet I can not afford to take it to trial as the lawyers fees would be more than the settlement.

    Small claims is out due to the amount owed.
  • Re:What? (Score:5, Insightful)

    by Aim Here ( 765712 ) on Sunday May 21, 2006 @01:58PM (#15376526)
    How wrong can you be, let me count the ways.

    "Dumping"

    Dumping implies that the costs can be recouped later by raising prices. In the case of GPL'ed software, the GPL implies the distributor has no monopoly on the distribution so he can't raise his own prices after he 'destroys' the competition and expect the market to let him recoup the costs that way. His competitors can just keep dishing out the same GPL'ed code at the old price.

    "at a value less than the cost of production"

    The cost of production of someone else's GPLed software is next to nothing. The marginal cost of software distributed on the internet, even the stuff you yourself write, is next to nothing (and marginal cost, or similar measures of cost is generally the measure used for antitrust claims). At least three of the defendants in his lawsuits will happily sell their GPLed code to you for way above the cost of burning their CDs or whathaveyou.

    "if you think coders' time is free, you're not much of a coder"

    Danny wasn't alleging that the price of the code itself was fixed. He couldn't because the GPL explicitly says otherwise. You can charge money for writing GPLed code, and for copying or distributing the code.

    The only thing you can't charge for is *permission* to use the code. How much money does it cost you to give one person permission to use the code? One measure would be the cost of typing 'cp /usr/share/common-licenses/GPL-2 .' just before you burn the iso or pack up the tarball divided by the number of people who then receive the code?

    "This judge"

    These two judges

    "may have just vacated a couple of hundred trade laws..."

    The judges didn't have to look at the trade laws because Danny was unable to write down exactly what damage it was that the GPL did to the software market, after about six or seven attempts in two courtrooms.

    For such a small post you have managed to be completely wrong in quite a few different ways. I'm impressed. Is your name Danny Wallace by any chance?
  • by Alphager ( 957739 ) on Sunday May 21, 2006 @02:06PM (#15376551) Homepage Journal
    Source for this one, please ? I'm in the Fellowship of the Free Software Foundation Europe; i can't believe the FSF set something up.
  • Re:What? (Score:3, Insightful)

    by blair1q ( 305137 ) on Sunday May 21, 2006 @02:29PM (#15376628) Journal
    loss leaders are not illegal, and not necessarily anticompetitive.

    That depends on the goal of the loss-leader. If it's to induce collateral purchases and thus still gain a net profit on the gross total, then the effect is not a loss to corner a market.

    But unless you're new to "Free Software" you know that the whole point is to compete with and hopefully end un-free software.

    And Linus Torvalds has been employed by someone for most of his Linux-kernel-writing career. The true fact is that there is an enormous value input to the body of "free software" and as nobody is attempting to recoup that value, it's being dumped. Not disposed of, because it intends to continue production. The only real question is, who do you sue for that? The person who's giving away the copy that competes with your product. It's up to them to sue the person who gave it to them. Eventually, it gets back to the person who paid for the labor and gave the product away for free.
  • Who Cares? (Score:4, Insightful)

    by twitter ( 104583 ) on Sunday May 21, 2006 @02:33PM (#15376641) Homepage Journal
    The wikipedia article [wikipedia.org] had everything I wanted. If you follow the references you find out that Wallace is someone a layman who challenged the GPL himself because he could not find a lawyer to represent him. [groklaw.net] Do you really care who he is, other than someone who decided to test the GPL and failed utterly?

    What's important here is that the GPL was recognized as legal and beneficial. The judge ruled 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.

  • Re:What? (Score:5, Insightful)

    by Qzukk ( 229616 ) on Sunday May 21, 2006 @02:37PM (#15376658) Journal
    One woman sewing will not compete on the scale of Dockers.

    So? How many does it take? How many grandmas have to knit little mittens for their grandchildren before baby-clothes manufacturers feel the competition? How many people must cook dinner for their families before McDonalds starts feeling the pressure? How many kids must run lemonade stands at rates far below market costs before Minute Maid goes out of business?

    How many programmers must work on GPLd code before Microsoft does more than twitch?

    Giving your code away for free is stealing from your own retirement.

    Explain.
  • Re:What? (Score:3, Insightful)

    by honkycat ( 249849 ) on Sunday May 21, 2006 @02:58PM (#15376731) Homepage Journal
    I think you're missing the point. This is clearly not illegally anticompetitive. I am free to do anything I want and give it away or sell it for any price I want to set. It doesn't matter what it cost me -- if I want to lose money on the transaction, I am free to do so. No one can tell me my price is too low. If I'm "stealing from my own retirement," that's my own business.

    As the judge points out, laws against price fixing are in place to protect the consumer from artificially high prices due to the absence of competition. They aren't there to ensure that competitors can make money.

    Furthermore, I think you'd be hard pressed to show that it's truly anticompetitive in any sense of the word, not just legally. As the non-free OS vendors like to point out, an OS ends up costing a lot more than the price of its license. Making that license free lowers the cost, but does not make it zero. There is still business opportunity.

    Don't believe me? Then just ask how there are Linux companies still in business? Yeah, they're giving away their OS license for free, but they're still generating revenue. Further, the fact that they're giving it away for free is not pricing anyone out of the market -- Windows and OSX seem to be selling just fine.
  • I think that you'll find most judges get the GPL. These are guys that have been lawyers for 20 years, and are generally able to understand insanely complex contracts and licenses that would twist our brains. The GPL must be a breath of fresh air to them, a license that not only doesn't even try to screw the people who accept it over, but that is the equivalent of a well-commented hundred line program. I expect that most judges are able to look at the GPL and think of things in minutes that you or I didn't see after knowing the GPL for years, and imagine how refreshing it must be to see those concepts in print and being used.

  • Re:What? (Score:3, Insightful)

    by khallow ( 566160 ) on Sunday May 21, 2006 @03:27PM (#15376830)
    So what's the problem? Volunteer programmers aren't dumping code in the market in order to establish a monopoly with monopoly pricing. The dumping laws just don't apply to them. Further, if a company cannot compete with open source products, then it is a crucial weakness of that company not some unfair advantage of people coding for free. We shouldn't coddle failures like that. It's better that they go out of business so that their resources can be used by strong businesses that can compete.

    Giving your code away for free is stealing from your own retirement.

    You have no understanding of the market incentives for writing open source code. For example, if a software product costs $500 per installation, then for ten users, that is $5000 that they can save by writing their own open source equivalent. That's 50-100 hours of a good profession or 1000 or more hours of an undergraduate in college. Over thousands of users, that's a huge value returned to those users.

    Second, working on such projects generates several relatively intangible benefits. It builds experience and enhances your reputation. It's also a fun activity for many programmers. So the combination of all this drives down the actual opportunity cost of programming. Ie, perhaps you can claim that someone's time (even a salaried person) is worth so many dollars an hour. Then add in all the benefits you ignore. Suddenly that cost is an overall benefit. Then that means that claims that they are producing code below cost are incorrect. The open source and free as in beer programming is several decades old. If it really were a "below cost" operation, then they would have given it up by now.

    So who is right? One slashdot poster or thousands of smart programmers who understand the economics of programming and saving up for retirement?

  • by jadavis ( 473492 ) on Sunday May 21, 2006 @03:31PM (#15376841)
    How about "Judge stands up for the law"?

    Or maybe even "Law supports consumers, judge stands up for the law"?

    The last thing this country needs is judges who stand up for consumers or any other group. Judges are not elected, and appointed for life. Don't give me this "benevolent dictator" stuff. Judges should strictly interpret the law. If it's unclear, rule on the side of caution and wait 'til Congress or the state clarifies it.
  • by Loonacy ( 459630 ) on Sunday May 21, 2006 @04:04PM (#15376933)
    No, the Microsoft ruling supported competition, not competitors... And competition is good for consumers.
    In this case, he had failed to show any anti-competitive behavior. His main complaint was that people were giving away software for free, and he couldn't compete with that, so they must be anti-competitive. The judge ruled that simply giving away software was not anti-competitive, it's just giving the consumers what they want.
  • by tfried ( 911873 ) on Sunday May 21, 2006 @04:26PM (#15377011)
    If the intention had been to create a judical precendent for the GPL, he would have had to do better. As is, the case failed at a much too basic level. Basically the court told him, he was not in a position to sue, no less and not much more. The judge did not even have to consider the GPL itself, hence no chanceof creating a real precedent IMO. If at all, what's been ruled on, is that it's not per se illegal to give something away for free. Big deal.

    We'll have to wait until somebody else dumb enough to try to disprove the GPL in court, and smart enough to actually get the formal basics right, shows up. Daniel Wallace wasn't the one.
  • by mrchaotica ( 681592 ) * on Sunday May 21, 2006 @06:03PM (#15377304)
    There are a lot of potential legal problems with the GPL, and I don't know that its all that clear how some parts of it would stand up in a contract dispute.
    But the great thing about it is, if some parts are invalidated, the situation just reverts back to plain copyright law and whoever was breaking the GPL has even less permission than they did before.
  • by jadavis ( 473492 ) on Sunday May 21, 2006 @07:24PM (#15377506)
    We don't live in a democracy, we live in a republic.

    One of the primary principles is the Rule of Law. That means that an informed person usually knows what side of the law they are on before trial. That is only true if judges strictly interpret the law rather than do what they personally think is right.

    The Rule of Law is part of the structure, but I see it as an important aspect of our society. The alternative is the Rule of Man, and, historically, that leads to worse outcomes. A law is something anyone can see, or can at least ask a lawyer about in advance. Society is more stable and predictable that way.
  • by reub2000 ( 705806 ) on Monday May 22, 2006 @12:11AM (#15378263)
    We don't. We keep him on a lower court so he can throw cases out before they get a chance to get to the supreme court.
  • IANAL.

    I am confused here. You're saying it's "low" to countersue you if you (theoretically, as is this entire discussion) get parts of the GPL invalidated.

    Luckily, the GPL has a section suited directly for this legal quandary:
    7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

    If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.

    It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice.

    This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License.
    In effect, you'd either have to get that specific section invalidated as well (good luck), or get the entire GPL ruled unconscionable (in which case the agreement with you and all others for distribution is null and void as a whole, and you'd have to negotiate a new agreement with the copyright holder to continue to be able to distribute).

    A judge simply isn't going to "substitute in" a different license if the GPL is invalidated.
  • by Anonymous Coward on Monday May 22, 2006 @12:35AM (#15378333)
    Nope, its a democratic republic. Where do people get the idea that it isn't both?
  • Re:Rule of law. (Score:3, Insightful)

    by jadavis ( 473492 ) on Monday May 22, 2006 @01:58AM (#15378529)
    Sometimes the law is ambiguous or conflicting. In that case, the judge should be as conservative as possible, by which I mean the judge should avoid any decisions that change the status quo. He should then issue in his opinion a criticism of the conflicting laws, and suggest that they be clarified.

    Of course, if one law supercedes another, the greater law holds.

  • by jadavis ( 473492 ) on Monday May 22, 2006 @02:12AM (#15378562)
    Our "Democratic Republic" is a republic, and not a democracy. The post I responded to suggested that democracy was the most important aspect of this country, more so than the structure of the laws. That is the antithesis of a republic.

    A republic has certain important restrictions on the power of the majority. For instance, many actions require a supermajority. A democratic republic brings some of the benefits of democracy, but the restrictions are designed to prevent problems that have existed in ancient democracies. Democracy is not a new concept.

    Our particular republic is unique because of the types of restrictions on the democracy, like preventing the majority from censoring the minority. "Democratic Republic" is merely the name we like to give to our particular republic because it employs some principles of democracy, like electing representatives in government, and a chance to indirectly elect the president. But clearly it rejects the overall democratic philosophy that the majority is right. The most obvious examples that our republic rejects democracy is that judges are not democratically elected, and the accused are not democratically convicted.
  • by cduffy ( 652 ) <charles+slashdot@dyfis.net> on Monday May 22, 2006 @04:52AM (#15378838)
    Do licenses try to screw those who accept it over? Licenses mostly screw people who violate it over.

    Commercial software licenses typically disallow a substantial range of actions which would otherwise be permitted by law (copyright and otherwise). Some people would describe this as screwing over the acceptee -- and in several cases (such as licenses in which the licensor is given permission to arbitrarily modify the licensee's computer, to pick an extreme but increasingly common case), it's hard to argue that they're incorrect.

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