(OT) - Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Wed Aug 29 16:39:53 UTC 2007

On 8/29/07, Matthew Flaschen <matthew.flaschen at gatech.edu> wrote:
> Alexander Terekhov wrote:
> > http://web.archive.org/web/20040803222641/http://web.novalis.org/talks/lsm-talk-2004/slide-31.html
> >
> > <quote copyright=Free Software Foundation>
> >
> > Don't go to court
> Good advice for everyone, for most situations.
> > FSF hasn't.
> Sure they have.  As I recall, one of your acquaintances, the plaintiff
> Daniel Wallace, lost the case.

Yeah, Wallace v. FSF was real fun.

Judge Tinder ruled that "To establish a Section 1 claim under the
rule of reason test, a plaintiff must prove that "(1) that the defendants
contracted, combined, or conspired among each other; (2) that the
combination or conspiracy produced adverse, anti-competitive effects
within relevant product and geographic markets; (3) that the objects of
and the conduct pursuant to that contract or conspiracy were illegal; and
(4) that the plaintiffs were injured as a proximate result of that
conspiracy." Tunis Bros. Co. v. Ford Motor Co., 952 F.2d 715, 722 (3d
Cir. 1991). In this case, it appears that Mr. Wallace has made the
necessary allegations of FSF's unlawful contract and conduct. In his
Third Amended Complaint, he specifically alleges that FSF conspired with
others, including International Business Machines Corporation, Red Hat
Inc. and Novell Inc., to control the price of available software within
a defined market through the GPL. Primarily at issue in FSF's motion is
whether Mr. Wallace has adequately alleged that the GPL had a resulting
anticompetitive effect.

[... reduction in IP output under GPL price-dumping conspiracy ...]

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."

and yet later dismissed for lack of standing.

Wallace later told to the Circuit Court:

"The final judgment in Wallace v. Free Software Foundation, Inc.
constitutes a void judgment under Seventh Circuit precedent. Judge
Tinder granted dismissal [Red Hat and Novell's Supp. App. at 12]
pursuant to F.R.Civ.P. Rule 12(b)(6) for failure to state a claim upon
which relief can be granted although the reason given was lack of
"antitrust injury" (lack of standing). In the Seventh Circuit, since the
decision in Frederiksen v. City of Lockport, 384 F.3d 437 at 438 (7th Cir.
2004), issues of standing are required to be dismissed pursuant to
F.R.Civ.P. Rule 12(b)(1) for lack of subject matter-jurisdiction."

> > Court is expensive
> Very much so.  Although in that case, the expenses for both parties were
> borne by Mr. Wallace.

You mean court costs. That's far less than total expenses. It doesn't
include attorneys' fees, etc. Pursuant to Federal Rule of Civil
Procedure 54(d)(1),  "costs other than attorneys' fees shall be
allowed as of course to the prevailing party".

See also


"The district court generally must award costs unless equity demands
otherwise due to some impropriety on the part of the prevailing party
during the course of the litigation."

Interestingly enough, the FSF has not filed a bill of costs. And the
14-day deadline for doing so has long expired.

"Failure to file such bill or motion or to obtain leave of Court for
extensions of time within which to file shall be deemed a waiver of
the right to recover taxable costs or attorney fees."

So much about big news that "Wallace Loses, Must Pay Costs"


from the GPL girl.


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