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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: Mon, 27 Mar 2006 09:36:39 +0200

Graham Murray wrote:
> 
> Alexander Terekhov <address@hidden> writes:
> 
> > The fact is that the GPL price-fixes IP at zero. The fact is that
> > zero is below cost of IP creation and hence is predatory. As for the
> > rest,
> 
> The GPL does not fix the price of anything. It gives freedoms in the
> sense of a 'free man' not in the sense of 'free of charge'.

It gives "freedom" as in the GNU Republic where software belongs to 
state (and hence it is regulated by state permits akin to lottery or 
gun dealership which are neither contracts nor property rights), and 
both 17 USC 109 and 17 USC 117 are simply nonexistent. Then comes the 
doctrine of copyright misuse... GPL violation of which has raised to 
the level of antitrust violation according to Wallace (note that 2nd
Wallace's case is still pending before Judge Young... and I just can't 
imagine that Judge Tinder's blackout regarding below cost pricing
conspiracy causing antitrust injury could possibly withstand an appeal) 
and according to Prof. Nadan it doesn't even have to raise to the level 
of antitrust violation because linking claims alone are sufficient to 
put the entire GPL'd code base into quasi public domain (the penalty 
for copyright misuse). So pick your choice, GNUtians. 

regards,
alexander.

P.S. "Standard antitrust analysis applies to intellectual property

      The Agencies apply the same general antitrust principles to 
conduct involving intellectual property that they apply to conduct 
involving any other form of tangible or intangible property. That is 
not to say that intellectual property is in all respects the same as 
any other form of property. Intellectual property has important 
characteristics, such as ease of misappropriation, that distinguish 
it from many other forms of property. These characteristics can be 
taken into account by standard antitrust analysis, however, and do 
not require the application of fundamentally different principles.(9)

      Although there are clear and important differences in the 
purpose, extent, and duration of protection provided under the 
intellectual property regimes of patent, copyright, and trade secret, 
the governing antitrust principles are the same. Antitrust analysis 
takes differences among these forms of intellectual property into 
account in evaluating the specific market circumstances in which 
transactions occur, just as it does with other particular market 
circumstances.

      Intellectual property law bestows on the owners of intellectual 
property certain rights to exclude others. These rights help the 
owners to profit from the use of their property. An intellectual 
property owner's rights to exclude are similar to the rights enjoyed 
by owners of other forms of private property. As with other forms of 
private property, certain types of conduct with respect to 
intellectual property may have anticompetitive effects against which 
the antitrust laws can and do protect. Intellectual property is thus 
neither particularly free from scrutiny under the antitrust laws, nor 
particularly suspect under them."

  -- Antitrust Guidelines for the Licensing of Intellectual Property


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