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

[Alexander Terekhov]

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.