Wallace alleged in his MSJ:
" In aggregate, tens of millions of lines of computer program code using the F.S.F.'s GPL are distributed for free. Computer programs licensed �at no charge� among potential competitors that bind �all third parties� are impossible to compete with using an intellectual property model that lawfully charges for the value of an author's intellectual property.
I'll bet he had this Supreme Court decision in mind:
"The Sherman Act, 26 Stat. 209, enacted in 1890, the Clayton Act, 38 Stat. 730, enacted in 1914, and the Robinson-Patman Act, which amended the Clayton Act in 1936, all serve the purpose of protecting competition. Because they have a common goal, the statutes are similar in many respects. All three prohibit the predatory practice of deliberately selling below cost to discipline a competitor, either to drive the competitor out of business or to raise prices to a level that will enable the predator to recover its losses and, in the long run, earn additional profits. Sales below cost and anticompetitive intent are elements of the violation of all three statutes."; BROOKE GROUP LTD. v. BROWN & WILLIAMSON TOBACCO CORP., 509 U.S. 209 (1993).
I suspect the GPL term "licensed at no charge to all third parties" qualifies as "below cost".
>> I suspect the GPL term "licensed at no charge to all third parties" qualifies as "below cost". <<
It's come to my attention that day5done has been licensing his messages to Yahoo for redistribution at zero license fee. I strongly suspect that this is below his cost to generate and submit them considering that his computer and internet access cost something no to mention his time. Furthermore, his conspiracy with Yahoo! to destroy the free market in incoherent ravings constitutes antitrust injury as I have been trying to break into the profession of net.kook and I can't get anyone to pay me to rave incoherently.
He should expect to hear from my pro se attorney.
I just saw a guy smash his thumb with a rock while hooking up a trailer to his tractor.
Now I *know* the Navy has paid $600 for claw hammers, so I'm off to file suit against the local rock quarry for selling a thumb-smashing device BELOW COST. I will NEVER be able to fulfill my dream of selling $600 hammers to farmers if this is allowed to continue.
I KNOW MY RIGHTS!
"Below cost" for what?
I pay for free software, its always been obvioius that it's worth it, but there is no restriction on the people whom I pay to forego seeking payment to cover the cost of their work in the production, packaging, and distribution of the product they derive from the source code that they are licensed "at no cost" and sublicense to me "at no cost".
Do you need a license to read? Do you have a UNIX license? If you don't then you can't read its source code (according to some).
You're supporting and arguing for some very strange things. Soon you'll be arguing that "Source Code Product" is what might be distributed to you by the licensors of UNIX until you improve, expand or increase its value in any way, and then "Source Code Product" becomes what you wrote by your own efforts and owned by the licensor, not you.
<<I suspect the GPL term "licensed at no charge to all third parties" qualifies as "below cost". >>
The light dawns. Amazing. Now if only the brief actually made the allegation clear. In particular, what exactly is the cost, and what exactly is the price? The contributions of the volunteers don't cost the alleged conspirators anything, and the volunteers aren't parties to the action, so their costs aren't at issue. Using the evil GPL to rope them in won't work. You have to show that the conspirators are supplying software below their own costs individually or collectively in a particular market.
Then you need case law that says that using predatory pricing in one market to make a profit in a related market is a violation even without monopoly market power (or allege and show the power). This will be hard, since the companies do make a profit overall, and the customers benefit from low prices that are unlikely to increase.
In fact, the impossibility of increasing prices may be a bar to the pricing being predatory. I can't tell from my sources. You need a real antitrust lawyer for that sort of issue.
I think the predatory pricing claim will fail, but I'd like it to fail on the merits and establish a principle, not lose on procedural grounds and have somebody else try this again next year.
"The contributions of the volunteers don't cost the alleged conspirators anything, and the volunteers aren't parties to the action,"
They are co-conspiritors because they used the conspiritorial GPL agreement when they pooled their code and need not be named as a party on the face of the complaint. In the criminal law they are "un-indicted co-conspiritors", in civil actions "uncharged co-conspiritors".
Their acts are attributable to the charged defendants and their out of court statements are often admissable as an exemption from the the hearsay rule, see Federal Rule of Evidence 801(d)(2)(E).
"And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that 'an overt act of one partner may be the act of all without [328 U.S. 640, 647] any new agreement specifically directed to that act.' United States v. Kissel, 218 U.S. 601, 608 , 31 S.Ct. 124, 126. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657 , 658 S., 16 S.Ct. 1127, 1137, 1197."; PINKERTON v. U. S., 328 U.S. 640 (1946).
This is famously known as the "Pinkerton Doctrine". The result is that even a "bit player" in a conspiricy gets the same punishment as a kingpin.
This is why Judge Learned Hand called the federal conspiracy law "the prosecutor's darling".
Lights dawn, but your bulb remains burned out.
Who is to dictate to an author, a "natural" monopoly holder that he must charge above or below some specific ammount for his works? Do we march into a court or stand before some legeslature to make this judgement or statute?
How many copyrights are assigned for a pittance to corporate holders who produce instances of the covered work to reap fortunes? Do you wast your valuable time railing against such a practice? How many "proprietary" software vendors incorporate misappropriated copyright open and closed source materials into their closed code bases?
(( In aggregate, tens of millions of lines of computer program code using the F.S.F.'s GPL are distributed for free. Computer programs licensed �at no charge� among potential competitors that bind �all third parties� are impossible to compete with using an intellectual property model that lawfully charges for the value of an author's intellectual property. ))
So I take it you've hocked everything you own and shorted Microsoft, right?
So to you, Dann..er Day5, "charge" MUST (AND CAN ONLY) equate with money, moola, scratch, cheddar, benjamins, coin, mmmm?
I suppose the concept of renumeration in the form of further improvements to the code as code is just so foreign a concept to you that arguing/debating/discussing this whole thing is simply an exercise in futility.
"The term 'financial gain' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.' "