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Re: [Wallace v. FSF/GPL] Civil Complaint No. 1:05-cv-0618-JDT-TAB
From: |
Alexander Terekhov |
Subject: |
Re: [Wallace v. FSF/GPL] Civil Complaint No. 1:05-cv-0618-JDT-TAB |
Date: |
Tue, 03 May 2005 00:55:45 +0200 |
Rui Miguel Seabra wrote:
[... *BONK* ... *BONK*BONK* ...]
Well,
<quote author=Anonymous> // Yet another Groklaw gadfly, so to speak
Wallace is just repeating what SCO claimed about IBM's Eight
Counterclaim:
2. The GPL Should Not Be Read to Allow a Competitor to Regulate What
May Be Charged for an Intellectual Property License
By arguing that SCO breached the GPL by collecting "royalties and
licensing fees in excess of the fees permitted by the GPL," IBM Mem.
at 14, IBM seeks in essence an interpretation that the GPL fixes
limits on the amounts that may be charged for unmodified works, even
though the parties to the agreement are competitors. Agreements
between competitors that fix a maximum price that may be charged for
products are per se illegal under antitrust law. NYNEX Corp. v.
Discon, Inc., 525 U.S. 128, 133 (1998); United States v. Socony-
Vacuum Oil Co., 310 U.S. 150, 218 (1940).
While SCO has shown above that section 2 of the GPL (the only GPL
provision requiring licensing "at no charge") is inapplicable here,
because this motion does not involve modified works, this provision
is illegal and unenforceable. The general counsel for the Open
Source Initiative acknowledges in his recent treatise: "There is
also a problem that may prevent enforcement of the GPL's at no
charge provision. It may be an illegal restraint of trade in some
countries. Ordinarily, companies are allowed to set their own prices,
and it is improper for a GPL licensor to restrain that in anyway."
L. Rosen, Open Source Licensing 132 (2004), available at
http://www.phptr.com/content/images/0131487876_ch06.pdf.
</quote>
Note that under FSF's copyright theory, Section 2 is applicable
not only to modifications, but also to all "combinations"
http://web.novalis.org/talks/compliance-for-developers/slide-6.html
http://web.novalis.org/talks/compliance-for-developers/slide-75.html
that are not legal
http://web.novalis.org/talks/compliance-for-developers/slide-54.html
in the GNU Republic.
regards,
alexander.