(OT) - Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Wed Aug 29 20:22:19 UTC 2007

On 8/29/07, Matthew Flaschen <matthew.flaschen at gatech.edu> wrote:
> > Yeah, Wallace v. FSF was real fun.
> Sure, if you like pointless diversions.

It wasn't entirely pointless. Judge Tinder went on record with this:

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.)


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.


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