(OT) - Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Wed Aug 29 23:18:40 UTC 2007

On 8/30/07, Matthew Flaschen <matthew.flaschen at gatech.edu> wrote:
> Alexander Terekhov wrote:
> > 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:
> > [snip]
> > 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.
> But as you know, the same ruling said:
> "This injury constitutes harm to Mr. Wallace as a competitor, not harm
> to consumers specifically, or harm to competition in general. This is
> exactly the type of injury Brunswick forecloses.   See Atlantic
> Richfield Co., 495 U.S. at 338 ("It is not enough for antitrust
> plaintiffs to show that the defendants' anticompetitive behavior injured
> them; they must also show that their injury stemmed from an injury to
> competition itself, as "the antitrust laws were enacted for 'the
> protection of competition, not competitors.'"). As a result, this court
> finds that Mr. Wallace's Third Amended Complaint does not adequately
> plead an antitrust injury upon which his Section 1 claim may move
> forward.3 The complaint must therefore be dismissed."

Wallace: (from his pleading to the Circuit Court)

The district court ruled, "Antitrust laws are for 'the protection of
competition, not competitors.' Brunswick Corp. v. Pueblo Bowl-o-Mat,
at 3) but the Supreme Court clarified the Brunswick language in
Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 353
(1990):The "antitrust laws were enacted for `the protection of
competition, not competitors.'" Ante, at 338 (quoting Brown Shoe Co.
v. United States,370 U.S. 294, 320 (1962)). This proposition - which
is often used as a test of whether a violation of law occurred -
cannot be read to deny all remedial actions by competitors. When
competitors are injured by illicit agreements among their rivals
rather than by the free play of market forces, the antitrust laws
protect competitors precisely for the purpose of protecting

The Ninth Circuit addressed competitor status in American Ad
Management, Inc. v. General Telephone Co. of California, 190 F.3d
1051,1058 (9th Cir.1999):Further, it is not the status as a consumer
or competitor that confers antitrust standing, but the relationship
between the defendant's alleged unlawful conduct and the resulting
harm to the plaintiff. See Amaral,102 F.3d at 1508 ("Losses a
competitor suffers as a result of predatory pricing is a form of
antitrust injury because `predatory pricing has the requisite
anticompetitive effect' against competitors.") (quoting ARCO,495 U.S.
at 339)).

Easterbrook to Wallace:

Although antitrust law serves the interests of consumers
rather than producers, the Supreme Court has permitted
producers to initiate predatory-pricing litigation. See
Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.,
509 U.S. 209 (1993); Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574 (1986). This does not
assist Williams, however, because his legal theory is
faulty substantively.

And then he began trashing Williams legal theory which has close to
nothing to do with Wallace pleading to the Circuit Court.


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