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.'"
Interesting take at Groklaw (Score:5, Insightful)
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)
If this had won it would have literally killed the economy and taken it back to the dark-ages.
Re:What? (Score:5, Insightful)
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)
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)
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)
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."
Re:Interesting take at Groklaw (Score:2, Insightful)
Small claims is out due to the amount owed.
Re:What? (Score:5, Insightful)
"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
"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?
Re:Who is Wallace and why did he sue? (Score:2, Insightful)
Re:What? (Score:3, Insightful)
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)
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)
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)
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.
Re:Judge, not only made correct decision, but gets (Score:5, Insightful)
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)
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?
Re:Wallace was wearing the wrong trousers... (Score:1, Insightful)
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.
Re:Wallace was wearing the wrong trousers... (Score:2, Insightful)
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.
Re:Who is Wallace and why did he sue? (Score:5, Insightful)
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.
Re:Who is Wallace and why did he sue? (Score:4, Insightful)
Re:How about this then. (Score:5, Insightful)
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.
Re:Wallace was wearing the wrong trousers... (Score:2, Insightful)
Re:Who is Wallace and why did he sue? (Score:4, Insightful)
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:
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.
Re:How about this then. (Score:1, Insightful)
Re:Rule of law. (Score:3, Insightful)
Of course, if one law supercedes another, the greater law holds.
Re:How about this then. (Score:5, Insightful)
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.
Re:it isn't the accepting... (Score:5, Insightful)
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.