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


From: Alexander Terekhov
Subject: Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Date: Fri, 24 Mar 2006 14:09:37 +0100

David Kastrup wrote:
[...]
> You did not answer the question.

Really? Oh dear. How about this:

http://www.fsf.org/news/wallace-vs-fsf

-----
The GPL tested in US courts - Wallace Vs FSF.

    * Send this page to somebody
    * Print this page

The GNU General Public License stands firm.
On Monday March 20, 2006 US Federal Judge John Daniel Tinder, dismissed
the Sherman Act antitrust claims brought against the Free Software
Foundation. The claims made by Plaintiff Daniel Wallace included: that
the General Public License (GPL) constituted a contract, combination or
conspiracy; that it created an unreasonable restraint of trade; and that
the FSF conspired with IBM, Red Hat Inc., Novell and other individuals
to pool and cross-license their copyrighted intellectual property in a
predatory price fixing scheme.

Peter Brown, FSF Executive Director, responded to the news, "As the
author of the GPL and copyright holder on the largest body of GPL'd
covered free software, the FSF hears many theories of potential legal
claims and challenges to the GPL. We hear the fear, uncertainty and
doubt (FUD) expressed, that the GPL has never been tested in court, and
that somehow that is a sign of its weakness. Nothing could be further
from the truth of course. Put quite simply, if you don't accept the
terms of the GPL, then you have no rights to the copyrighted works it
covers. What is there left to test? The GPL is a software license, it is
not a contract. It gives permissions from the copyright holder. You
don't want to accept those permissions? End of discussion."

On Monday, a US Federal Court Judge dismissed Daniel Wallace's case
saying "[The GPL] acts as a means by which certain software may be
copied, modified and redistributed without violating the software's
copyright protection. As such, 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."

Brown continued, "Let us all stop and consider the consequences of what
this US Federal Judge has said. On being presented with the facts
surrounding the GPL, he was able to define a range of benefits available
to those that value the freedoms delivered by the GPL. The question we
are all left with is, why would anyone put up with the inferred
consequences of proprietary software?", and, "If you care about lower
prices, better access to software, or more innovation, then GPL'd
software is for you. Or as the Free Software would describe that, you
value freedom".

Having dismissed the case, and finding in favor of the FSF and against
Wallace, the Judge also allowed FSF costs against Wallace. Wallace now
has thirty days to appeal the decision, but the FSF expects no further
meaningful news on the matter.


About the Free Software Foundation
The Free Software Foundation, founded in 1985, is dedicated to promoting
computer users' right to use, study, copy, modify, and redistribute
computer programs. The FSF promotes the development and use of free (as
in freedom) software - particularly the GNU operating system and its
GNU/Linux variants - and free documentation for free software. The FSF
also helps to spread awareness of the ethical and political issues of
freedom in the use of software. Their Web site, located at www.fsf.org ,
is an important source of information about GNU/Linux. Donations to
support their work can be made at http://donate.fsf.org. Their
headquarters are in Boston, MA, USA.
-----

Oh poor Judge Tinger.

Now, in the mean time... on pacer:

-----
Case 1:05-cv-00678-RLY-VSS Document 58-1 Filed 03/22/2006 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DANIEL WALLACE,

Plaintiff,

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION, RED HAT, INC., and NOVELL,
INC.,

Defendants.

Cause No. 1:05-cv-678-SEB-VSS

SUBMISSION OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF REASSERTED MOTION TO
DISMISS

Defendants, Red Hat, Inc. ("Red Hat"), and Novell, Inc. ("Novell"),
submit the attached Entry Granting Reasserted Motion to Dismiss, entered
in Wallace v. Free Software Foundation, Inc., Cause No.
1:05-cv-0618-JDT-TAB (S.D. Ind. Mar. 20, 2006), attached as Exhibit 1,
as supplemental authority in support of their pending Reasserted Motion
to Dismiss in this action.

Respectfully submitted,

Philip A. Whistler (#1205-49)
Curtis W. McCauley (#16456-49)

Attorneys for Defendants Red Hat, Inc., and Novell, Inc.

ICE MILLER
One American Square Box 82001
Indianapolis, IN 46282-0002
317.236.2100

Case 1:05-cv-00678-RLY-VSS Document 58-1 Filed 03/22/2006 Page 2 of 2

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 22d day of March 2006, a
copy of the foregoing was filed electronically. Notice of this filing
will be sent to the following parties by operation of the Court's
electronic filing system. Parties may access this filing through the
Court's system.

Michael Gottschlich
BARNES & THORNBURG
address@hidden

Kendall H. Millard
BARNES & THORNBURG
address@hidden

The undersigned hereby certifies that on the 22d day of March 2006, a
copy of the foregoing has been deposited in the U.S. mail, first class
postage prepaid, addressed to:

Daniel Wallace
P.O. Box 572
New Palestine, IN 46163

Curtis W. McCauley
ICE MILLER
One American Square Box 82001
Indianapolis, IN 46282-0002
317.236.2100
-----

If I were Wallace I'd probably submit this press release 

http://www.fsf.org/news/wallace-vs-fsf

as kinda counter supplemental "authority" in opposition to motion to 
dismiss to Judge Young. ;-)

Would be fun regarding Barnes & Thornburg LLP's thoughts on contract 
status of the GPL (vs FSF's/Moglen's idiotic theory reiterated in the 
press release) to begin with.

Oh, and I'd probably include the GNU Manifesto as well...

www.gnu.org/gnu/manifesto.html

"GNU will remove operating system software from the realm of
competition. You will not be able to get an edge in this area,
but neither will your competitors be able to get an edge over
you. You and they will compete in other areas, while benefiting
mutually in this one. If your business is selling an operating
system, you will not like GNU, but that's tough on you. If your
business is something else, GNU can save you from being pushed
into the expensive business of selling operating systems."

regards,
alexander.


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