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Re: Tom Tom and Microsofts Linux patent lock-down ..


From: Rjack
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Sun, 05 Apr 2009 17:55:50 -0400
User-agent: Thunderbird 2.0.0.21 (Windows/20090302)

Rahul Dhesi wrote:
Rjack <address@hidden> writes:

I wrote:

Did you all notice this major shift in Rjack's position?

Previously, he was content to claim that the GPL is merely unenforceable... So now, according to Rjack, suddenly, the GPL contains illegal terms!

Rjack now does a little backpedalling:

I believe we addressed the backpedalling already. Short memory?

1) The licensing fees in the GPL are price fixed a no charge to all third parties.

Are we talking antitrust here?

Uh... WTF are you talking about?

The GPL states:

"b) 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."

This fixes the price of licensing fees for software purportedly
licensed under the GPL at no charge. I haven't the slightest idea
where you got the notion that antitrust law was being discussed.
I believe I was discussing the fact that the Artistic License contains
no such price-fixing term. This changes the theories concerning
potential recoverable economic damages under the Artistic License.

The GPL already won in a recent case. See Wallace v. International Business Machines Corp. et al. You can find a summary with references in the Wikipedia. You can read the opinion at http://www.internetlibrary.com/pdf/Wallace-IBM-7th-Cir.pdf .


Uh... I've already read that opinion. That's where the renowned
intellectual property expert Judge Frank Easterbrook opined:

"The number of proprietary operating systems is growing, not
shrinking, so competition in this market continues quite apart from
the fact that the GPL ensures the future availability of Linux and
other Unix offshoots."

This language provides marvelous cover for Micro$oft when competitors
wish to claim that Micro$oft is a predatory monopolist. You and I and
the dog down the street know that Judge Easterbrook was thinking
correctly in that decision, since we can simply walk into our local
software outlet and see the growing number of proprietary operating
systems on the shelves. The choices are so numerous as to be simply
overwhelming to the average consumer. Thank God we need not fear the
D.O.J. prosecuting Micro$oft for antitrust violations. He. He.

But even if you could prove an antitrust violation (and you are not
even close to doing so), that would not make any of the GPL's terms illegal, only unenforceable.

Do you have the slightest idea what you are talking about?
Do you understand what the word "illegal" means?

Before you could persuasively claim that the terms were illegal, you would have to get a court to agree with you. The legal theories
 that you have posted so far don't seem to be any better than those
 of Wallace.  Wallace filed his complaint multiple times, but after
repeated amendments, could not make it viable, losing each time. And then he lost again on appeal.

Simply repeating that the GPL is unenforceable not only do not make
 it so, but it also doesn't make any of the GPL's terms illegal.

Simply repeating that the GPL is enforceable does not make it so and
it also doesn't make any of the GPL's terms legal.

Sincerely,
Rjack :)


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