Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov wrote: [...] Both courts ruled (and erred) on the issue of injury (standing). It's the same legal situation as with a case asserting patent infringement (for example) filed by someone not owning enforceable rights. Try reading http://www.ll.georgetown.edu/FEDERAL/judicial/fed/opinions/02opinions/02-1555.html RedHat and Novell filed reply brief in Wallace appeal action. It's exciting! Can't believe it!!! (quoting CONCLUSION) - the District Court's dismissal of Plaintiffs claims should be affirmed on the grounds that relitigation of the issue of antitrust injury is barred by collateral estoppel based on the final judgment entered by the District Court in the FSF Action. - AND THAT'S IT! No other argument(s) from RedHat and Novell. Seems they forgot to mention a couple of things in their collateral estoppel claim: The collateral estoppel doctrine bars the relitigation of an issue of law or fact that was litigated and decided in a prior case between the same parties or their privies. See Havoco of Am., Ltd. v. Freeman, Atkins Coleman, Ltd., 58 F.3d 303, 307-08 (7th Cir. 1995); Kraushaar v. Flanigan, 45 F.3d 1040, 1050 (7th Cir. 1995). As the Supreme Court of the United States has stated: Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153 (1979). A suit dismissed for lack of jurisdiction cannot also be dismissed 'with prejudice'; that's a disposition on the merits, which only a court with jurisdiction may render. Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) This rule has deep common law roots, and is preserved now in Fed. R. Civ. P. 41(b). See Costello v. United States, 365 U.S. 265, 285-86 (1961). Rule 41(b) provides as follows: (b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. (emphasis added). Brereton v. Bountiful City Corp., -- F.3d --, No. 05-4067, 2006 WL 182063, at *2 (10th Cir. 2006) regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov wrote: Alexander Terekhov wrote: [...] Both courts ruled (and erred) on the issue of injury (standing). It's the same legal situation as with a case asserting patent infringement (for example) filed by someone not owning enforceable rights. Try reading http://www.ll.georgetown.edu/FEDERAL/judicial/fed/opinions/02opinions/02-1555.html RedHat and Novell filed reply brief in Wallace appeal action. IBM's reply: pdftotext -layout -htmlmeta 06-2454_001.pdf - html head meta name=Producer content=1-Step RoboPDF /head body pre No. 06-2454 In the United States Court of Appeals for the Seventh Circuit DANIEL WALLACE, Plaintiff-Appellant v. INTERNATIONAL BUSINESS MACHINES CORPORATION, RED HAT, INC., AND NOVELL, INC., Defendants-Appellees Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division Case No. 1:05-cv-00678-RLY-VSS The Honorable Judge Richard L. Young RESPONSE BRIEF OF DEFENDANT-APPELLEE INTERNATIONAL BUSINESS MACHINES CORPORATION Michael Gottschlich (#22668-49) Kendall Millard (#25430-49) BARNES THORNBURG LLP 11 South Meridian Street Indianapolis, Indiana 46204 Tel: (317) 236-1313 Fax: (317) 231-7433 Attorneys for Defendant International Business Machines Corporation CIRCUIT RULE 26.1 DISCLOSURE STATEMENT 06-2454 Appellate Court No: Daniel Wallace v. International Business Machines Corp., et al. Short Caption: To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement stating the following information in compliance with Circuit Rule 26.1. The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): International Business Machines Corporation (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Barnes Thornburg LLP (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and None ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: None Attorney's Signature: s/Michael Gottschlich Date: July 17, 2006 Attorney's Printed Name: Michael Gottschlich* Address: 11 South Meridian Street Indianapolis, Indiana 46204 Phone Number: (317) 231-7834 Fax Number: (317) 231-7433 [EMAIL PROTECTED] E-Mail Address: Attorney's Signature: s/Kendall Millard Date: July 17, 2006 Attorney's Printed Name: Kendall Millard Address: same as above Phone Number: (317) 231-7461 Fax Number:(317) 231-7433 [EMAIL PROTECTED] E-Mail Address: * Counsel of Record for the above listed party pursuant to Circuit Rule 3(d). ii TABLE OF CONTENTS Page JURISDICTIONAL STATEMENT ... 1 STATEMENT OF THE ISSUES 1 STATEMENT OF THE
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Qua, 2006-06-21 às 23:41 +0200, Alexander Terekhov escreveu: Rui Miguel Silva Seabra wrote: Qua, 2006-06-21 Ã s 22:24 +0200, Alexander Terekhov escreveu: Try explaining what's wrong with Wallace's argument on injury. Can you? Where's WallaceOS? Where can I buy it? Where can I download it? Do I have to take a significant ammount of LSD to get it? Try danwal.com. Drop him an email. Give a call. It seems there's no OS to buy there. The name suggests a personal web site. The content suggests a BSD based command line system (so many came up every day). Why doesn't Daniel attack OpenBSD? Or Dragonfly BSD? Or FreeBSD? Anyway, there's nothing there of use, the site manager rejects all robots and web.archive.org (as a well behaved robot) doesn't store anything. telnet www.danwal.com 80 Trying 72.41.57.74... Connected to www.danwal.com. Escape character is '^]'. HEAD / HTTP/1.0 Host: www.danwal.com However, that magnificent site isn't even althered ever since late 2005: HTTP/1.1 200 OK Date: Thu, 22 Jun 2006 06:49:35 GMT Server: Apache/1.3.31 (Unix) PHP/4.3.11 mod_ssl/2.8.18 OpenSSL/0.9.6b FrontPage/5.0.2.2635 mod_throttle/3.1.2 Last-Modified: Tue, 13 Dec 2005 01:41:39 GMT ETag: 28901cb-249-439e26d3 Accept-Ranges: bytes Content-Length: 585 Connection: close Content-Type: text/html Nothing to see there, move along, just as about all about Daniel Wallace... signature.asc Description: Esta é uma parte de mensagem assinada digitalmente ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Qui, 2006-06-22 às 07:54 +0100, Rui Miguel Silva Seabra escreveu: Qua, 2006-06-21 às 23:41 +0200, Alexander Terekhov escreveu: Rui Miguel Silva Seabra wrote: Qua, 2006-06-21 Ã s 22:24 +0200, Alexander Terekhov escreveu: Try explaining what's wrong with Wallace's argument on injury. Can you? Where's WallaceOS? Where can I buy it? Where can I download it? Do I have to take a significant ammount of LSD to get it? Try danwal.com. Drop him an email. Give a call. Anyway, there's nothing there of use, the site manager rejects all robots and web.archive.org (as a well behaved robot) doesn't store anything. telnet www.danwal.com 80 Trying 72.41.57.74... Connected to www.danwal.com. Escape character is '^]'. HEAD / HTTP/1.0 Host: www.danwal.com However, that magnificent site isn't even althered ever since late 2005: (...) Nothing to see there, move along, just as about all about Daniel Wallace... And it seems hardly anyone even links to it... http://www.google.com/search?q=link:DQY9np3ND0YJ:www.danwal.com/ signature.asc Description: Esta é uma parte de mensagem assinada digitalmente ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Then there is no predatory pricing since RedHat is not selling below cost at all. RedHat sells support, delivery, and maintenance contracts on annual subscription bases. RedHat's GPL'd IP in pooled derivative and collective works is price-fixed at no charge and is available gratis. How can one talk about price-fixed at no charge in the same paragraph with sells delivery contracts? The price obviously is not fixed but variable, and people make use of the variation. Uh. Ok, once again: RedHat's IP is price-fixed at no charge and is available gratis. Nothing variable. I don't see anything like RedHat IP -- $0 listed on their page. In fact, they retain their IP and don't give their copyright away. They provide, however, downloads for $0, so they price a particular form of _copies_ at no charge. They also price other copy forms at larger charges. It is like a free art catalogue: you are free to cut and paste and frame stuff from the catalogue for your home, but they make their money with people buying the pieces advertised in that manner. Ancillary service that they supply is priced far above costs of providing the service (above predatory levels) and it is used to recoup loses from GPL conspiracy and turn a profit. Got it now? It is called advertising. People recoup losses from the advertising conspiracy (there are even whole billboards and gazettes for the sole purpose of advertising) and turn a profit. This sort of conspiracy is pretty common nowadays. In fact, almost every business does it. Got it now? I think that you have omitted invectives and expletives from this thread for too long now. People will think you are an imposter if you don't correct this oversight soon. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Rui Miguel Silva Seabra wrote: [...] Why doesn't Daniel attack OpenBSD? Or Dragonfly BSD? Or FreeBSD? He doesn't attack the BSD because the BSD license terms don't contain any price-fixing provisions. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: Rui Miguel Silva Seabra wrote: [...] telnet www.danwal.com 80 Now try telephone. This is so going to convince a court that Wallace actually attempts to sell something. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] I don't see anything like RedHat IP -- $0 listed on their page. In You can't find the GPL (IP -- $0) and all sort of GPL'd stuff on their page? Very interesting. fact, they retain their IP and don't give their copyright away. They Outright transfers of title in IP is not what Wallace's case is about. Wallace case is about GPL licensing agreement (pooling the copyright and patent rights in derivative and collective works under the GPL), not some copyright assignment agreements (something a la copyright assignment forms issued by the FSF for their official branch of the GNU project in which the title in IP belongs to the FSF and only the FSF). provide, however, downloads for $0, so they price a particular form of _copies_ at no charge. And once again you attempt to misinterpret Wallace's case. Wallace case is not about copies (material objects). It's about licensing of exclusive rights established by copyright and patent laws. They also price other copy forms at larger charges. RedHat's media kits are optional and gratis. It is like a free art catalogue: you are free to cut and paste and frame stuff from the catalogue for your home, but they make their money with people buying the pieces advertised in that manner. RedHat doesn't sell GPL'd IP to public. GPL'd IP (apart from outright transfer of title) is price-fixed at no charge and is available gratis (pursuant to the GPL). Ancillary service that they supply is priced far above costs of providing the service (above predatory levels) and it is used to recoup loses from GPL conspiracy and turn a profit. Got it now? It is called advertising. You're hallucinating. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: Rui Miguel Silva Seabra wrote: [...] Why doesn't Daniel attack OpenBSD? Or Dragonfly BSD? Or FreeBSD? He doesn't attack the BSD because the BSD license terms don't contain any price-fixing provisions. But they still ruin his business prospects, And how do you know? Hint: he didn't sue Apple (BSD based Mac OS X which is marketed to consumers at a positive price). Anyway, it's not the probability of being ruined that is relevant to the Wallace's case. Competition is about grabbing as much of the market as possible and ruining (employing lawful means) competitors in the process. Wallace appears to believe that the BSD is lawful and that the GPL is unlawful. And you just keep misinterpreting his case and persistently fail to address his arguments. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alfred M. Szmidt wrote: Why doesn't Daniel attack OpenBSD? Or Dragonfly BSD? Or FreeBSD? He doesn't attack the BSD because the BSD license terms don't contain any price-fixing provisions. Neither does the GNU GPL; infact, it contains terms that protect the right to charge a fee. From Section 1: You may charge a fee for the physical act of transferring a copy, - Here, the defendants attempt to conflate the definition of intangible copyright assets with the physical media in which a work is embodied: Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. ..;17 USC sec. 202. The present claim is for price fixing in the relevant market of intangible intellectual property assets in computer programs (the Linux operating system) and not an action concerning tangible media or physical acts involving the distribution of tangible media in which a copyrighted work may be fixed. - regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] I don't see anything like RedHat IP -- $0 listed on their page. In You can't find the GPL (IP -- $0) and all sort of GPL'd stuff on their page? Very interesting. fact, they retain their IP and don't give their copyright away. They Outright transfers of title in IP is not what Wallace's case is about. Wallace case is about GPL licensing agreement (pooling the copyright and patent rights in derivative and collective works under the GPL), not some copyright assignment agreements (something a la copyright assignment forms issued by the FSF for their official branch of the GNU project in which the title in IP belongs to the FSF and only the FSF). Congratulations, you get it. RedHat is not selling its IP for $0. It is offering _one_ way of obtaining a licensed copy for $0 (if you consider downloading expenses non-existent). It is also offering other ways for other prices. So they are not selling their IP, and there is no fixed price for licensed copies of it, either. provide, however, downloads for $0, so they price a particular form of _copies_ at no charge. And once again you attempt to misinterpret Wallace's case. Well, he _has_ no case, remember? That's what the court finally rules after giving him lots of leeway to actually state a case. Thus every interpretation of his case has to be a misinterpretation. Wallace case is not about copies (material objects). It's about licensing of exclusive rights established by copyright and patent laws. But licenses are bound to particular physical copies. This is the reason why Wallace case is not a case at all. IP implies the right to pick the license for your work. And RedHat does not give that right away. As a consequence, the only party that has standing to sue for breach of RedHat's copyright is RedHat itself. They also price other copy forms at larger charges. RedHat's media kits are optional and gratis. It is like a free art catalogue: you are free to cut and paste and frame stuff from the catalogue for your home, but they make their money with people buying the pieces advertised in that manner. RedHat doesn't sell GPL'd IP to public. GPL'd IP (apart from outright transfer of title) is price-fixed at no charge and is available gratis (pursuant to the GPL). Nonsense. They retain their copyright and don't sell it. Licensing is concerned with physical copies. This difference is crucial for making a case, and conflating it like you and Wallace is not going to fly in court. Ancillary service that they supply is priced far above costs of providing the service (above predatory levels) and it is used to recoup loses from GPL conspiracy and turn a profit. Got it now? It is called advertising. You're hallucinating. Good to hear. You have refrained from insults for so long that I had almost been afraid you did not realize you were with the back to the wall with your legal arguments. Thanks for setting the record straight again. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: Rui Miguel Silva Seabra wrote: [...] Why doesn't Daniel attack OpenBSD? Or Dragonfly BSD? Or FreeBSD? He doesn't attack the BSD because the BSD license terms don't contain any price-fixing provisions. But they still ruin his business prospects, And how do you know? Hint: he didn't sue Apple (BSD based Mac OS X which is marketed to consumers at a positive price). Anyway, it's not the probability of being ruined that is relevant to the Wallace's case. Competition is about grabbing as much of the market as possible and ruining (employing lawful means) competitors in the process. Wallace appears to believe that the BSD is lawful and that the GPL is unlawful. And you just keep misinterpreting his case and persistently fail to address his arguments. I am in good company, as the court does just the same. The problem is that Wallace's case needs different laws in order to actually be a case. So you _have_ to misinterpret his case if you try matching it to the _actual_ laws. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] And once again you attempt to misinterpret Wallace's case. Well, he _has_ no case, remember? That's what the court finally rules Both courts ruled (and erred) on the issue of injury (standing). It's the same legal situation as with a case asserting patent infringement (for example) filed by someone not owning enforceable rights. Try reading http://www.ll.georgetown.edu/FEDERAL/judicial/fed/opinions/02opinions/02-1555.html might help. - The district court determined that Telepresence held no enforceable rights in the 501 patent at the time it filed suit because the assignment of the 501 patent from Gluck to LNCJ, Ltd., licensor of the 501 patent to Telepresence, was ineffective. Therefore it lacked the cognizable injury necessary to assert standing under Article III of the Constitution. Accordingly, the court dismissed Telepresences infringement action [...] To be given preclusive effect, a judgment must be a final adjudication of the rights of the parties and must dispose of the litigation on the merits. See 18A C. Wright, A. Miller E. Cooper, Federal Practice Procedure § 4427, at 4-5 (2d ed. 2002). The Ninth Circuit, in common with other federal courts, recognizes that standing is a threshold question that must be resolved before proceeding to the merits of a case. L. A. County Bar Assn v. Eu, 979 F.2d 697, 700 (9th Cir. 1992); see also Warth v. Seldin, 422 U.S. 490, 517-18 (1975) ( The rules of standing, . . . are threshold determinants of the propriety of judicial intervention.). The doctrine of standing limits federal judicial power and has both constitutional and prudential components. See United Food Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551 (1996). Article III standing, like other bases of jurisdiction, must be present at the inception of the lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5 (1992) (plurality opinion) ([S]tanding is to be determined as of the commencement of suit.); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 67 (1997) (holding that standing is an aspect of the case or controversy requirement, which must be satisfied at all stages of review); Keene Corp. v. United States, 508 U.S. 200, 207 (1993) ([T]he jurisdiction of the Court depends upon the state of things at the time of the action brought.). Pursuant to Article III, standing . . . is jurisdictional and not subject to waiver. Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996). Because standing is jurisdictional, lack of standing precludes a ruling on the merits. Thus, the district court erred in giving preclusive effect to the Telepresence judgment because its dismissal of Telepresences complaint for lack of standing was not a final adjudication of the merits. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 653-54 (9th Cir. 2002) (stating that [w]e must establish jurisdiction before proceeding to the merits of the case); Bird v. Lewis Clark Coll., 303 F.3d 1015, 1019 (9th Cir. 2002) (recognizing that before reaching the merits of the case, the court must determine the threshold issue of standing); accord H.R. Techs. v. Astechnologies, Inc., 275 F.3d 1378, 1384 (Fed. Cir. 2002) (Because lack of standing is not an issue that goes to the merits of the underlying patent issues, a dismissal of a complaint for lack of standing would not normally be expected to be made with prejudice.). - [...] But licenses are bound to particular physical copies. This is the The GPL license is bound to intangible WORK, not particular physical copies. Stupid. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] And once again you attempt to misinterpret Wallace's case. Well, he _has_ no case, remember? That's what the court finally rules Both courts ruled (and erred) on the issue of injury (standing). Of course, everyone except you errs in legal matters. Since it is not you setting the verdict, you should get a better hang of just _how_ the court is going to err before giving legal advice. [...] But licenses are bound to particular physical copies. This is the The GPL license is bound to intangible WORK, not particular physical copies. Stupid. Oh, back against the wall so soon again? I am afraid you are wrong here. If you weren't, there could be no such thing as relicensing an identical work under different conditions. Also there would be no need for fair use laws, since a license would grant you access to the WORK and thus would entitle you to unlimited copying. The GPL _effectively_ gives you the possibility to behave _as_ _if_ it were bound to a particular WORK (once you acquire a particular physical copy of it). That is its purpose: to give the recipient a large set of freedoms together with any copy, including the freedom for replication, freedoms normally associated with being the copyright owner rather than a licensor. That's what the P in General Public License stands for. But the legal means by which this happens is the traditional one: by a license covering each particular copy. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] But RedHat does not sell its copyright, it merely licenses copies of RedHat licenses IP rights in (GPL'd) WORKS. RedHat doesn't licenses copies (of GPL'd works). the copyrighted material. The intangible intellectual property assets remain in the possession of RedHat. You're either genuinely retarded or just purport to be. The title to GPL'd IP (apart from stuff they regularly assign to the FSF) does remain in the possession of RedHat. But the case is about licensing. http://www.usdoj.gov/atr/public/guidelines/0558.htm#t55 -- 5.5 Cross-licensing and pooling arrangements Cross-licensing and pooling arrangements are agreements of two or more owners of different items of intellectual property to license one another or third parties. [Wallace: ... third parties ... The stated purpose of the GPL license is to pool intellectual property. ([t]he distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.) (Ex A (GPL) at 3)).] [...] Cross-licensing and pooling arrangements can have anticompetitive effects ... When cross-licensing or pooling arrangements are mechanisms to accomplish naked price fixing or market division, they are subject to challenge under the per se rule. See United States v. New Wrinkle, Inc., 342 U.S. 371 (1952) (price fixing). [...] Another possible anticompetitive effect of pooling arrangements may occur if the arrangement deters or discourages participants from engaging in research and development, thus retarding innovation. For example, a pooling arrangement that requires members to grant licenses to each other for current and future technology at minimal cost may reduce the incentives of its members to engage in research ^^ [See Judge Tinders ruling before he got drunk (in a sense) -- the one about anticompetitive effect he reasonably inferred from by Wallace's complaint and allegations] and development because members of the pool have to share their successful research and development and each of the members can free ride on the accomplishments of other pool members. -- regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] But licenses are bound to particular physical copies. This is the The GPL license is bound to intangible WORK, not particular physical copies. Stupid. Oh, back against the wall so soon again? I am afraid you are wrong here. If you weren't, there could be no such thing as relicensing an identical work under different conditions. It's many-to-one bound, retard. One can offer different licenses with different terms for the same intangible work. It has really nothing to do with your idiotic claim that (IP) licenses are bound to particular physical copies. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] But RedHat does not sell its copyright, it merely licenses copies of RedHat licenses IP rights in (GPL'd) WORKS. RedHat doesn't licenses copies (of GPL'd works). the copyrighted material. The intangible intellectual property assets remain in the possession of RedHat. You're either genuinely retarded or just purport to be. And that just because of quoting you... The title to GPL'd IP (apart from stuff they regularly assign to the FSF) does remain in the possession of RedHat. But the case is about licensing. http://www.usdoj.gov/atr/public/guidelines/0558.htm#t55 -- 5.5 Cross-licensing and pooling arrangements Cross-licensing and pooling arrangements are agreements of two or more owners of different items of intellectual property to license one another or third parties. [Wallace: ... third parties ... The stated purpose of the GPL license is to pool intellectual property. (“[t]he distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.”) (Ex A (GPL) at 3)).] [...] Cross-licensing and pooling arrangements can have anticompetitive effects ... When cross-licensing or pooling arrangements are mechanisms to accomplish naked price fixing or market division, they are subject to challenge under the per se rule. See United States v. New Wrinkle, Inc., 342 U.S. 371 (1952) (price fixing). And when cross-licensing or pooling arrangements are not mechanisms to accomplish naked price fixing or market division, they aren't. There is no naked price fixing going on, since the various Linux contributors sell distributions at a wide variety of price tags. Another possible anticompetitive effect of pooling arrangements may occur if the arrangement deters or discourages participants from engaging in research and development, thus retarding innovation. For example, a pooling arrangement that requires members to grant licenses to each other for current and future technology at minimal cost may reduce the incentives of its members to engage in research and development because members of the pool have to share their successful research and development and each of the members can free ride on the accomplishments of other pool members. But there is nothing which forces members to share their successful research and development unless they _deliberately_ decide to use it in the context of GPLed software. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alfred M. Szmidt wrote: And you just keep misinterpreting his case and persistently fail to address his arguments. We all are misinterpreting his case, including the judges. Judges can err. Well, Judge Tinder actually performed not entirely bad before he got drunk. As for you, stupid ams, I'm still waiting for the chapter and verse from the copyright act about copyright licenses not being contracts. In the mean time, take this: -- An intellectual property license is a contract. In re: Aimster Copyright Litigation, 334 F.3d 643, 644 (7th Cir. 2003) (If a breach of contract (and a copyright license is just a type of contract) . . . ); see also McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 920 (Fed. Cir. 1995) (Whether express or implied, a license is a contract governed by ordinary principles of state contract law .) An industry-wide license such as the GPL may establish a prima facie case of conspiracy in violation of the Sherman Act §1. See U. S. v. U. S. Gypsum Co. 333 U.S. 364, 389 (1948). -- regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: Rui Miguel Silva Seabra wrote: [...] telnet www.danwal.com 80 Now try telephone. This is so going to convince a court that Wallace actually attempts to sell something. Defendants in the Wallace's case have all the rights to challenge Wallace status as a competitor. That's what discovery stage in a lawsuit is all about. Don't hope that Wallace is unprepared for discovery stage to establish (and defend) the facts he pleaded. You're exhibiting total ignorance once again. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: Rui Miguel Silva Seabra wrote: [...] telnet www.danwal.com 80 Now try telephone. This is so going to convince a court that Wallace actually attempts to sell something. Defendants in the Wallace's case have all the rights to challenge Wallace status as a competitor. That's what discovery stage in a lawsuit is all about. Don't hope that Wallace is unprepared for discovery stage to establish (and defend) the facts he pleaded. One does not plead facts. Anyway, first Wallace needs to establish a case before it makes sense checking the veracity of the purported underlying facts. You're exhibiting total ignorance once again. I assure you that I would not want to tread on your territory. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] One does not plead facts. Uh. Try googling plead facts. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] One does not plead facts. Uh. Try googling plead facts. Try googling GPL FAQ. And what's your point? The phrase plead facts is used by courts. It's legal concept. The GPL FAQ is nothing but Stallman's and Moglen's fantasies. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] One does not plead facts. Uh. Try googling plead facts. Try googling GPL FAQ. And what's your point? The phrase plead facts is used by courts. It's legal concept. Not really. Facts are hard unchanging things. I can't plead them. I can claim them, or I can plead for consequences or a particular interpretation of their legal significance. The GPL FAQ is nothing but Stallman's and Moglen's fantasies. Well, where violations have been brought to court, the court pretty much ruled in favor of those fantasies. Whereas your track record in predicting jurisdiction is pretty awful. Hardly surprising, since you are not a professor of law. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] One does not plead facts. Uh. Try googling plead facts. Try googling GPL FAQ. And what's your point? The phrase plead facts is used by courts. It's legal concept. Not really. Uh. You're in fact making yourself look like an idiot. http://www.google.com/search?q=%22plead+facts%22 regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Got no answer or comment from GNUtians on gnu.misc.discuss (license issue: calling a GPLv2 library thread in which GNUtians try to scare OP into joining the GPL predarory price-fixing pooling conspiracy with his computer program which calls a GPLv2 library). It's fun. Judge Young dismissed because according to him, Wallace has not identified an anticompetitive effect. http://groups.google.com/group/gnu.misc.discuss/msg/b81437831e209017 And yet his colleague Judge Tinder had no problems with Wallace's identification of anticompetitive effect (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). http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-30.pdf So one of them must have been drunk (in the sense of having somewhat distorted view of reality). No? regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: It appears that both Judges were totally drunk at some point. Occam's razor makes it more likely that it is just you who doesn't get it, whether due to being drunken or just dull. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
dak replied... Alexander Terekhov wrote: Got no answer or comment from GNUtians on gnu.misc.discuss (license issue: calling a GPLv2 library thread in which GNUtians try to scare OP into joining the GPL predarory price-fixing pooling conspiracy with his computer program which calls a GPLv2 library). It's fun. Judge Young dismissed because according to him, Wallace has not identified an anticompetitive effect. http://groups.google.com/group/gnu.misc.discuss/msg/b81437831e209017 And yet his colleague Judge Tinder had no problems with Wallace's identification of anticompetitive effect (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). http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-30.pdf So one of them must have been drunk (in the sense of having somewhat distorted view of reality). No? David Kastrup wrote: No. It's been explained to you a few times, but you might have been drunk. Judge Tinder tried reading a sensible interpretation into Wallace's ramblings (if you don't have a lawyer representing you, turning your gibberish into something comprehensible is largely the duty of the judge) and constructed something which was most likely to be the _legal_ essence of Wallace's complaint. The result described in more appropriate terms what Wallace was supposed to be complaining about _if_ one did not want to assume that he was babbling nonsense in the first place. This refined wording of Wallace's alleged complaint was then matched to the respective laws and it was found that even when a judge tried making the best case from the mess Wallace presented, the results simply were not sufficient for making enough of a complaint that pursuing the case would have made any sense. That is pretty unexciting when the court is responsible for making Wallace's case. The court tried to make his case as good as a lawyer would have made it, sort of if there is any angle to the case, it must have been this. Then it took a look at the results, and guess what: they still did not meet the requirements for proceeding, even when interpreted in the most favorable way. That's all. That's all bullshit. The FSF simply managed to fool Judge Tinder that Wallace lacks standing. Tinder recorgnized that Plaintiffs Third Amended Complaint States a Claim Upon Which Relief can be Granted and that Plaintiffs Allegations Sufficiently Set Forth a Violation of the Rule of Reason, but he was fooled by FSF's even if it were possible for Plaintiff to allege some harm to competition in the abstract, Plaintiff has not alleged antitrust injury to himself, and thus lacks standing. Now go google standing. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: No. It's been explained to you a few times, but you might have been drunk. Judge Tinder tried reading a sensible interpretation into Wallace's ramblings (if you don't have a lawyer representing you, turning your gibberish into something comprehensible is largely the duty of the judge) and constructed something which was most likely to be the _legal_ essence of Wallace's complaint. The result described in more appropriate terms what Wallace was supposed to be complaining about _if_ one did not want to assume that he was babbling nonsense in the first place. This refined wording of Wallace's alleged complaint was then matched to the respective laws and it was found that even when a judge tried making the best case from the mess Wallace presented, the results simply were not sufficient for making enough of a complaint that pursuing the case would have made any sense. That is pretty unexciting when the court is responsible for making Wallace's case. The court tried to make his case as good as a lawyer would have made it, sort of if there is any angle to the case, it must have been this. Then it took a look at the results, and guess what: they still did not meet the requirements for proceeding, even when interpreted in the most favorable way. That's all. That's all bullshit. The FSF simply managed to fool Judge Tinder that Wallace lacks standing. Tinder recorgnized that Plaintiff’s Third Amended Complaint States a Claim Upon Which Relief can be Granted and that Plaintiff’s Allegations Sufficiently Set Forth a Violation of the Rule of Reason, but he was fooled by FSF's even if it were possible for Plaintiff to allege some harm to competition in the abstract, Plaintiff has not alleged antitrust injury to himself, and thus lacks standing. You have an interesting notion of fooled. You'll find that every court can be fooled by substantial arguments, regardless of how many tantrums you throw. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] That's all bullshit. The FSF simply managed to fool Judge Tinder that Wallace lacks standing. Tinder recorgnized that Plaintiffâs Third Amended Complaint States a Claim Upon Which Relief can be Granted and that Plaintiffâs Allegations Sufficiently Set Forth a Violation of the Rule of Reason, but he was fooled by FSF's even if it were possible for Plaintiff to allege some harm to competition in the abstract, Plaintiff has not alleged antitrust injury to himself, and thus lacks standing. You have an interesting notion of fooled. - Accompanying Injury Supreme Court case law holds that predatory pricing may inflict antitrust injury on competitors (Predatory pricing . . . is a practice that harms both competitors and competition.) (Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 118 (1986)); ([i]n the context of pricing practices, only predatory pricing has the requisite anticompetitive effect) (Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 339 (1990)). The district court ruled, Antitrust laws are for the protection of competition, not competitors. Brunswick Corp. v. Pueblo Bowl-o-Mat, Inc., 429 U.S. 477, 488 (1977) (ENTRY ON DEFENDANTS MOTIONS TO DISMISS 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 competition. 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)). The leading Supreme Court case on predatory pricing under §1 of the Sherman Act is Matsushita Elec. Industrial Co. v. Zenith Radio, 475 US 574 (1986). (This is a Sherman Act 1 case . . .) (fn 8). Predatory pricing was defined in Matsushita. ([(i)] pricing below the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost.) (fn 9). Judge Richard Posner has acknowledged the heavy fixed costs involved with the production of intellectual property: Intellectual property is characterized by heavy fixed costs relative to marginal costs. It is often very expensive to create, but once it is created the cost of making additional copies is low, dramatically so in the case of software, where it is only a slight overstatement to speak of marginal cost as zero. Antitrust in the New Economy, (Nov. 2000) U. Chicago Law Economics, 1, 3, The Seventh Circuit examined a host of cost measures and found pricing below long run incremental cost (LRIC) as one appropriate indicator of predatory pricing. MCI Communications v. ATT, 708 F.2d 1081, fn 59 (7th Cir. 1983). Regardless of whether the measure of cost is LRIC or some other appropriate formula, a final price of no charge leads to the absurd conclusion that the heavy fixed costs for developing intellectual property in computer programs are non-existent. The Supreme Court held that it might be that only direct evidence (Matsushita at fn 9) is sufficient to demonstrate below-cost pricing. A contract term fixing licensing fees at no charge is certainly direct evidence of pricing below long run incremental cost. Wallace in his Second Amended Complaint alleged: The Defendants' pooling and cross licensing of intellectual property with the described predatory price fixing scheme is foreclosing competition in the market for computer operating systems. Said predatory price-fixing scheme prevents Plaintiff Daniel Wallace from marketing his own computer operating system as a competitor. Wallace has certainly alleged an injury of the type the antitrust laws were designed to prevent and that flows from that which makes defendants acts unlawful. - regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] That's all bullshit. The FSF simply managed to fool Judge Tinder that Wallace lacks standing. Tinder recorgnized that Plaintiff’s Third Amended Complaint States a Claim Upon Which Relief can be Granted and that Plaintiff’s Allegations Sufficiently Set Forth a Violation of the Rule of Reason, but he was fooled by FSF's even if it were possible for Plaintiff to allege some harm to competition in the abstract, Plaintiff has not alleged antitrust injury to himself, and thus lacks standing. You have an interesting notion of fooled. - Accompanying Injury [...] You are fond of your quotation bubbles, but they don't amount to the results you want. You don't want to hear it when we explain it to you, and you don't want to hear it when the court explains it to the involved parties. Tough. Of course you are free to entertain your own legal standards in your imagination. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] That's all bullshit. The FSF simply managed to fool Judge Tinder that Wallace lacks standing. Tinder recorgnized that Plaintiffââ¬â¢s Third Amended Complaint States a Claim Upon Which Relief can be Granted and that Plaintiffââ¬â¢s Allegations Sufficiently Set Forth a Violation of the Rule of Reason, but he was fooled by FSF's even if it were possible for Plaintiff to allege some harm to competition in the abstract, Plaintiff has not alleged antitrust injury to himself, and thus lacks standing. You have an interesting notion of fooled. - Accompanying Injury [...] You are fond of your quotation bubbles, but they don't amount to the They amount to substantial arguments explaining to the appelate court why the district court erred. results you want. You don't want to hear it when we explain it to Try explaining what's wrong with Wallace's argument on injury. Can you? regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Qua, 2006-06-21 às 22:24 +0200, Alexander Terekhov escreveu: Try explaining what's wrong with Wallace's argument on injury. Can you? Where's WallaceOS? Where can I buy it? Where can I download it? Do I have to take a significant ammount of LSD to get it? *giggle* signature.asc Description: Esta é uma parte de mensagem assinada digitalmente ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] That's all bullshit. The FSF simply managed to fool Judge Tinder that Wallace lacks standing. Tinder recorgnized that Plaintiff’s Third Amended Complaint States a Claim Upon Which Relief can be Granted and that Plaintiff’s Allegations Sufficiently Set Forth a Violation of the Rule of Reason, but he was fooled by FSF's even if it were possible for Plaintiff to allege some harm to competition in the abstract, Plaintiff has not alleged antitrust injury to himself, and thus lacks standing. You have an interesting notion of fooled. - Accompanying Injury [...] You are fond of your quotation bubbles, but they don't amount to the They amount to substantial arguments explaining to the appelate court why the district court erred. Given your track record so far, I prefer waiting for the appellate court itself to state its findings. results you want. You don't want to hear it when we explain it to Try explaining what's wrong with Wallace's argument on injury. Can you? There are so many things wrong that one does not know where to begin. Wallace purports to want to compete with some BSD-derived operating system offering. But there are free and reputable competitors in that market segment already without the GPL needing to price-fix anything. His offering is dead on arrival regardless of the GPL. Then there is no predatory pricing since RedHat is not selling below cost at all. They are turning a profit. And the reason they are turning a profit is exactly because they went with free software: that's what got them their customer base. It is an integral part of their business plan. They have the best value proposition, and that's what continues to give them _paying_ customers. The only way to argue that they have to split their purported business models and turn a profit in each of the _dependent_ market segments independently, is when they have monopoly power in one market segment and use that to compensate losses in an other segment in order to stifle competition. But RedHat has no monopoly power in operating systems, neither in general, nor of the Unixy type, nor of the Linux family. You won't, of course, accept this kind of reasoning from me and will try to smother it in heaps of non-relevant quotations. And you won't accept the findings of the appellate court ultimately. Instead you will update your quotation base with a few select out-of-context quotes which indicate to nobody but yourself that everything has gone wrong. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Then there is no predatory pricing since RedHat is not selling below cost at all. RedHat sells support, delivery, and maintenance contracts on annual subscription bases. RedHat's GPL'd IP in pooled derivative and collective works is price-fixed at no charge and is available gratis. How can one talk about price-fixed at no charge in the same paragraph with sells delivery contracts? The price obviously is not fixed but variable, and people make use of the variation. Uh. Ok, once again: RedHat's IP is price-fixed at no charge and is available gratis. Nothing variable. Ancillary service that they supply is priced far above costs of providing the service (above predatory levels) and it is used to recoup loses from GPL conspiracy and turn a profit. Got it now? regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
And in the mean time, in the other Circuits... -- The Sixth Circuit agreed with the district court's determination that 'because [plaintiff] is a competitor and its complaint is about pricing practices, . . . [plaintiff] must allege that [defendant] engaged in predatory pricing in order to demonstrate antitrust injury.' Plaintiff contended that it did not need to allege predatory pricing to satisfy the antitrust injury requirement, since [defendant's] conduct independently violated Michigan's liquor distribution laws. The Sixth Circuit rejected plaintiff's contention explaining that [w]hen a private plaintiff complains about a defendant's prices, 'only predatory pricing has the requisite anticompetitive effect' to establish antitrust injury. This is because [l]ow prices benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition. Plaintiff's claim alleges nothing more than an inability to compete with the low prices offered by [defendant] to dual suppliers through the rebates and sharing of cost savings. Accordingly, plaintiff's failure to allege that [defendant's] prices were set at anticompetitive levels requires dismissal even under the Ninth Circuit's somewhat unique theory of above-cost predatory pricing for situations in which a competitor charges prices that are above its costs yet below the rates established by a price or tariff schedule. N.W.S. Michigan, Inc. v. General Wine Liquor Co., Inc., 2003 WL 264731 (6th Cir. Feb. 6, 2003). -- 11th Circuit (Covad Communications Co. v. Bellsouth Corp., 374 F.3d 1044 (11th Cir. 2004): -- ... allegations suggest that BellSouth is compensating for deliberately reduced profits on the retail end of its operations with correspondingly greater profits on the wholesale side, in order to stifle competition from firms such as Covad that are both wholesale customers and retail rivals. We find that these allegations are sufficient to allege a dangerous probability that BellSouth will recoup[ ] its investment in below-cost prices. Brooke Group, 509 U.S. at 224. Whether the facts contained in Covad's complaint and in the record will bear out the recoupment allegation against BellSouth is also a matter for the district court to determine at a later stage, not on the basis of a motion to dismiss for failure to state a claim. Taken together, Covad's price predation allegations meet the exceedingly low threshold of sufficiency that a complaint must meet to survive a 12(b)(6) motion. Quality Foods, 711 F.2d at 94495 (finding that we must accept the facts pleaded as true and construe them in a light favorable to plaintiffs). -- regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] [Appeal claim] This is going to be cute. The problem with an appeal is that Wallace does not merely have to get it right this time: he has to prove that he got it right last time around, and the court just failed to notice. It would take considerable skill to make a case that has a chance to even survive into trial. But proving that the previous attempt already was sufficient would seem like an impossibly hard problem even for somebody with a legal clue. - IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT DANIEL WALLACE, Appeal from the United Plaintiff-Appellant, States District Court for the Southern District No. 06-2454 v. of Indiana, Indianapolis Division INTERNATIONAL BUSINESS MACHINES CORPORATION, RED HAT INC, and No. 05 C 678 NOVELL, INC., Defendants-Appellees. Richard L. Young, Judge SUBMISSION Plaintiff-appellant Daniel Wallace appears pro se and pursuant to Fed. R. App. P. 31 and Cir. R. 31. submits fifteen bound copies [H.I.] of the BRIEF AND REQUIRED SHORT APPENDIX OF PLAINTIFFAPPELLANT and one digital version on CD-ROM. ___ Dated: June 14, 2006 Daniel Wallace, pro se P.O. Box 572 New Palestine, IN 46163 (317) 861 6415 CERTIFICATE OF SERVICE The undersigned plaintiff-appellant Daniel Wallace, pro se, hereby certifies that I caused two copies of the foregoing opening brief with included required short appendix and one digital copy to be served by first-class certified mail, postage prepaid, on each of the following counsel: Michael H. Gottschlich BARNES THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 (317) 231-7834 Curtis W. McCauley ICE MILLER LLP One American Square Suite 3100 Indianapolis, IN 46282 (317) 236-2388 ___ Dated: June 14, 2006 Daniel Wallace, pro se P.O. Box 572 New Palestine, IN 46163 (317) 861 6415 - - No. 06-2454 __ UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ___ DANIEL WALLACE, Plaintiff-Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, RED HAT INC., and NOVELL, INC., Defendants-Appellees. __ Appeal From The United States District Court For The Southern District of Indiana, Indianapolis Division Case No. 05-C-0678 The Honorable Judge Richard L. Young __ BRIEF AND REQUIRED SHORT APPENDIX OF PLAINTIFF-APPELLANT, DANIEL WALLACE __ Daniel Wallace, Pro Se P.O. Box 572 New Palestine, IN 46163 (317) 861-6415 i TABLE OF CONTENTS TABLE OF CONTENTS .. i TABLE OF AUTHORITIES . ii JURISDICTIONAL STATEMENT 1 STATEMENT OF THE ISSUES .. 1 STATEMENT OF THE CASE . 1 STATEMENT OF FACTS ... 2 SUMMARY OF THE ARGUMENT ... 4 STANDARD OF REVIEW ... 4 ARGUMENT . 5 Elements of the Claim . 5 I. Contract, Combination or Conspiracy . 6 II. Unreasonable Restraint of Trade in a Relevant Market ... 7 III. Accompanying Injury 8 CONCLUSION 11 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) 12 ii TABLE OF CONTENTS (continued) CIRCUIT RULE 31(e)(1) CERTIFICATION . 13 PROOF OF SERVICE .. 14 CIRCUIT RULE 30(d) STATEMENT .. 15 REQUIRED SHORT APPENDIX ... 16 TABLE OF AUTHORITIES Cases American Ad Management, Inc. v. General Telephone Co. of California, 190 F.3d 1051 (9th Cir.1999) . 10 Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328 (1990) 9 Brunswick Corp. v. Pueblo Bowl-O -Mat, Inc., 429 U.S. 477 (1977) . 9 Cargill Inc. v. Monfort of Colorado, Inc., 479 U.S. 104 (1986) .. 5, 9 Cler v. Ill. Educ. Assn, 423 F.3d 726 (7th Cir. 2005) . 5 Denny's Marina, Inc. v. Renfro Prods., Inc., 8 F.3d 1217 (7th Cir. 1993)
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [EMAIL PROTECTED] (Richard Tobin) writes: In article [EMAIL PROTECTED], Alexander Terekhov [EMAIL PROTECTED] wrote: Red Hat recoups losses from GPL conspiracy (with other co-conspirators in predatory priced IP that is meant to kill competition) by higher prices of their subscription service contracts. A plaintiff must prove (1) that the prices complained of are below an appropriate measure of its rival's costs Red Hat's competitors can, like Red Hat, obtain the GNU and Linux software at no cost, so it's hard to see in what way their prices are below their rivals' costs. It is also somewhat hard to see what meaning the term co-conspirators is supposed to carry if anybody can join the conspiracy without previous notice while the conspiracy is entirely in the open. Google antitrust conspiracy. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] IP is not a legal term. Yeah. http://www.fsfeurope.org/projects/ms-vs-eu/article-20060421.en.html quote For one thing, intellectual property is not a legal term that exists, as such, anywhere in the world. /quote How come that http://user.cs.tu-berlin.de/~tron/opensource/node5.html says Would you claim that this is the wording of a law? -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: You're arguing against a caricature of his case, and not his case itself. Yes, that's exactly what I say. But that caricature is of your own making. Wallace has 30 days to appeal. I hope he will. We'll see. Offer to pay all his legal expenses, for a small share in the sure-fire recompensation he is about to get on appeal. I am sure this will motivate him. He seems to be motivated enough without any offers from me. [Appeal claim] This is going to be cute. The problem with an appeal is that Wallace does not merely have to get it right this time: he has to prove that he got it right last time around, and the court just failed to notice. It would take considerable skill to make a case that has a chance to even survive into trial. But proving that the previous attempt already was sufficient would seem like an impossibly hard problem even for somebody with a legal clue. The downside, of course, is that Wallace's doomed attempts don't actually say anything about the legal implications of the GPL either which way. They merely tell something about Wallace himself. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: You're arguing against a caricature of his case, and not his case itself. Yes, that's exactly what I say. But that caricature is of your own making. Wallace has 30 days to appeal. I hope he will. We'll see. Offer to pay all his legal expenses, for a small share in the sure-fire recompensation he is about to get on appeal. I am sure this will motivate him. He seems to be motivated enough without any offers from me. --- DOCKETING STATEMENT United States District Court for the Southern District of Indiana, Indianapolis Division File Number 1:05-cv-0678-RLY-VSS Daniel Wallace, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORPORATION; RED HAT INC; NOVELL, INC., Defendants. Pursuant to F.R.A.P. 3 and Circuit Rule 3 plaintiff-appellant Daniel Wallace appears and states the following: 1.) The District Court had jurisdiction over plaintiffs antitrust claim pursuant to 15 U.S.C. § 26 and 28 U.S.C. §1331. 2.) The Circuit Court has jurisdiction over plaintiff-appellants claim pursuant to 28 U.S.C. § 1291. 3.) The District Court entered final judgment on plaintiffs claim on May 16, 2006 by granting a Motion to Dismiss pursuant to F.R.C.P. Rule 12(b)(6). 4.) Plaintiffs notice of appeal was timely filed on May 19, 2006. __ Daniel Wallace, plaintiff-appellant pro se 3874 S. Redbird Trail New Palestine, IN 46163 317-861-6415 --- regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] This is going to be cute. The problem with an appeal is that Wallace does not merely have to get it right this time: he has to prove that he got it right last time around, and the court just failed to notice. Appellate court will review district court's grant of motion to dismiss de novo, accepting all the allegations in Wallace's complaint as true and drawing all reasonable inferences in favor of Wallace. I'm pretty sure that dismissal based on failure to allege an anticompetitive effect will be reversed because predatory pricing has the requisite anticompetitive effect (ARCO). regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] This is going to be cute. The problem with an appeal is that Wallace does not merely have to get it right this time: he has to prove that he got it right last time around, and the court just failed to notice. Appellate court will review district court's grant of motion to dismiss de novo, accepting all the allegations in Wallace's complaint as true and drawing all reasonable inferences in favor of Wallace. I'm pretty sure that dismissal based on failure to allege an anticompetitive effect will be reversed because predatory pricing has the requisite anticompetitive effect (ARCO). Well, first predatory pricing _as_ _defined_ would have to be shown. One fallacy here is that predatory pricing requires pricing in the first place, and the parties _participating_ in GPLed software development are not free to set the price for intellectual property: this is fixed by the upstream license. Adhering to license terms is not prohibited and does not form a conspiracy, or all law-abiding citizens would be in a conspiracy. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] This is going to be cute. The problem with an appeal is that Wallace does not merely have to get it right this time: he has to prove that he got it right last time around, and the court just failed to notice. Appellate court will review district court's grant of motion to dismiss de novo, accepting all the allegations in Wallace's complaint as true and drawing all reasonable inferences in favor of Wallace. I'm pretty sure that dismissal based on failure to allege an anticompetitive effect will be reversed because predatory pricing has the requisite anticompetitive effect (ARCO). Well, first predatory pricing _as_ _defined_ would have to be shown. ... Your views re merits of Wallace's allegations are beside the point under 12(b)(6) standard. As for proof, A plaintiff must prove (1) that the prices complained of are below an appropriate measure of its rival's costs and (2) that the competitor had a reasonable prospect of recouping its investment in below cost prices. And Wallace already addressed both elements in his reply brief. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov writes: As for proof, A plaintiff must prove (1) that the prices complained of are below an appropriate measure of its rival's costs The marginal cost of production of copies of Linux is at most the cost of pressing a DVD. The marginal cost of granting a GPL license is zero. and (2) that the competitor had a reasonable prospect of recouping its investment in below cost prices. David Kastrup wrote: Basically, the standard demands proving that the prices must be both below cost as well as profitable. What they mean is that the plaintiff must prove that if the defendant succeeded in driving him out of business with predatory pricing he would subsequently be able to recoup the money he lost selling below cost by selling at the elevated price he would be able to demand as a result of having disposed of his competitor. Of course, this is irrelevant because Linux vendors are not selling below cost by any measure, nor are they competing with Wallace. On Groklaw there was some speculation that Wallace had a legal advisor. Perhaps we have found him. -- John Hasler [EMAIL PROTECTED] Dancing Horse Hill Elmwood, WI USA ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] http://groups.google.com/group/gnu.misc.discuss/msg/b81437831e209017 (not the merits) Terekhov quoting Terekhov quoting Terekhov. I'm not the author of not the merits. Go visit http://groups.google.com/group/sci.med.vision might help. [...] Basically, the standard demands proving that the prices must be both below cost as well as profitable. Bzzt. GNU logic. Since you conveniently cut out (1), you apparently realize that you need to butcher the premise in order to make fun of the conclusion. So you agree and just don't want to be seen admitting it. Bzzt. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
John Hasler wrote: Alexander Terekhov writes: As for proof, A plaintiff must prove (1) that the prices complained of are below an appropriate measure of its rival's costs The marginal cost of production of copies of Linux is at most the cost of pressing a DVD. The marginal cost of granting a GPL license is zero. Wallace's case is not about copies (material objects). His case is about predatory fix pricing of Intellectual Property in violation of § 1 of the Sherman Act. and (2) that the competitor had a reasonable prospect of recouping its investment in below cost prices. David Kastrup wrote: Basically, the standard demands proving that the prices must be both below cost as well as profitable. What they mean is that the plaintiff must prove that if the defendant succeeded in driving him out of business with predatory pricing he would subsequently be able to recoup the money he lost selling below cost by selling at the elevated price he would be able to demand as a result of having disposed of his competitor. This is indeed one example of recoupment. But ancillary revenues can also be used to recoup losses. Proof that a profit-maximizing firm took predatory action should suffice to demonstrate the threat of substantial exclusionary effect; to hold otherwise would be to ascribe irrational behavior to the defendant. Moreover, predatory conduct, by definition as well as by nature, lacks procompetitive business motivation. See Aspen Skiing, 472 U.S. at 610-11 (evidence indicating that defendant's conduct was motivated entirely by a decision to avoid providing any benefits to a rival supported the inference that defendant's conduct was not motivated by efficiency concerns). In other words, predatory behavior is patently anticompetitive. ... Microsoft has no intention of ever charging for licenses to use or distribute its browser. Id. ¶¶ 137-38. Moreover, neither the desire to bolster demand for Windows nor the prospect of ancillary revenues from Internet Explorer can explain the lengths to which Microsoft has gone. In fact, Microsoft has expended wealth and foresworn opportunities to realize more in a manner and to an extent that can only represent a rational investment if its purpose was to perpetuate the applications barrier to entry. Id. ¶¶ 136, 139-42. Because Microsoft's business practices would not be considered profit maximizing except for the expectation that . . . the entry of potential rivals into the market for Intel-compatible PC operating systems will be blocked or delayed, Neumann v. Reinforced Earth Co., 786 F.2d 424, 427 (D.C. Cir. 1986), Microsoft's campaign must be termed predatory. Since the Court has already found that Microsoft possesses monopoly power, see supra, § I.A.1, the predatory nature of the firm's conduct compels the Court to hold Microsoft liable under § 2 of the Sherman Act. Note that Wallace's case is an action under § 1 of the Sherman Act. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
John Hasler [EMAIL PROTECTED] writes: Alexander Terekhov writes: As for proof, A plaintiff must prove (1) that the prices complained of are below an appropriate measure of its rival's costs The marginal cost of production of copies of Linux is at most the cost of pressing a DVD. The marginal cost of granting a GPL license is zero. and (2) that the competitor had a reasonable prospect of recouping its investment in below cost prices. David Kastrup wrote: Basically, the standard demands proving that the prices must be both below cost as well as profitable. What they mean is that the plaintiff must prove that if the defendant succeeded in driving him out of business with predatory pricing he would subsequently be able to recoup the money he lost selling below cost by selling at the elevated price he would be able to demand as a result of having disposed of his competitor. That is not the only option for profiting from a crashing market. You can buy out your competitor at cheap prices, for example. You can get rid of him in another market segment where he is providing too much competition. And the investment need not be large: you can do this by announcing vaporware and thus freeze the customers' willingness to pay current market prices. The problem is that the FSF is a registered charity and not even able to turn a profit. Another is that it is not operating at a loss even though it does nothing except distributing and organizing free software. And RedHat turns profits in its core business of selling operating system copies, with their developers' intellectual property on them. Of course, this is irrelevant because Linux vendors are not selling below cost by any measure, nor are they competing with Wallace. Oh, one could argue that they are competing with Wallace's purported business plan. If that were the only requirement, Wallace would have a reasonable chance to make it to trial. On Groklaw there was some speculation that Wallace had a legal advisor. Perhaps we have found him. It would certainly explain why Terekhov is fawning over rather pointless or downright stupid passages in Wallace's ramblings. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: John Hasler wrote: Alexander Terekhov writes: As for proof, A plaintiff must prove (1) that the prices complained of are below an appropriate measure of its rival's costs The marginal cost of production of copies of Linux is at most the cost of pressing a DVD. The marginal cost of granting a GPL license is zero. Wallace's case is not about copies (material objects). His case is about predatory fix pricing of Intellectual Property in violation of § 1 of the Sherman Act. You can't sell intellectual property, only access to it, by way of licenses and media. Note that Wallace's case is an action under § 1 of the Sherman Act. It purports to be such, but fails to meet the requirements. That is why the case has been thrown out. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] You are the author of Message-ID: [EMAIL PROTECTED] which you quoted in Message-Id: [EMAIL PROTECTED] which you quoted in Message-ID: [EMAIL PROTECTED] That's how one blogs on usenet. ;-) regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
John Hasler [EMAIL PROTECTED] writes: I wrote: What they mean is that the plaintiff must prove that if the defendant succeeded in driving him out of business with predatory pricing he would subsequently be able to recoup the money he lost selling below cost by selling at the elevated price he would be able to demand as a result of having disposed of his competitor. David Kastrup writes: That is not the only option for profiting from a crashing market. You can buy out your competitor at cheap prices, for example. You can get rid of him in another market segment where he is providing too much competition. And the investment need not be large: you can do this by announcing vaporware and thus freeze the customers' willingness to pay current market prices. You still must show that he could get back what he lost selling below cost by selling above what would otherwise have been the market price. That is what is meant by recouping its investment in below cost prices. I don't see that they specify the manner of recouping, and I'd consider this too narrow for a reasonably effective definition of predatory pricing. David Kastrup writes: Oh, one could argue that they are competing with Wallace's purported business plan. If that were the only requirement, Wallace would have a reasonable chance to make it to trial. As far as I know Wallace has never actually offered anything for sale. US courts do not deal in hypotheticals. Well, nobody claimed that Wallace's suit attempts failed in only one respect. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Why would I need to? Up to now they appear perfectly capable of reading the law. Oh really? The District Court ruled (emphasis added): Wallace ALLEGES that the Defendants’ “PREDATORY PRICE-fixing scheme prevents [him] from marketing his own computer operating system as a competitor.” His complaint fails because it FAILS TO ALLEGE ANTICOMPETITIVE EFFECTS in an identifiable market. Well, they are perfectly capable of reading, as opposed to you. Wallace can allege all he wants to, but he fails to allege anticompetitive effects in an identifiable market. There is no identifiable market. That's one of the main problems. I pointed out already to you that if he is out for selling his copyright, the defendants are the wrong people to sue since they don't even sell their copyright. And if he is out for licensing copies, there are no anticompetitive effects going on, since the defendants are turning profits in those markets, and thus are competitive. So what in your opinion is the identifiable market? -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup writes: I don't see that they specify the manner of recouping, and I'd consider this too narrow for a reasonably effective definition of predatory pricing. If the defendant would not be likely to raise prices to above what would otherwise have been the market price, where is the harm to competition? Well, nobody claimed that Wallace's suit attempts failed in only one respect. This was discussed extensively on Groklaw. The complete list is large. -- John Hasler [EMAIL PROTECTED] Dancing Horse Hill Elmwood, WI USA ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
John Hasler [EMAIL PROTECTED] writes: David Kastrup writes: I don't see that they specify the manner of recouping, and I'd consider this too narrow for a reasonably effective definition of predatory pricing. If the defendant would not be likely to raise prices to above what would otherwise have been the market price, where is the harm to competition? If the goal is to eliminate a competitor, the damage can also occur in other markets. And with regard to vaporware, killing off the market altogether is also damaging. IIRC, there have been occasions where vaporware killed a product and the market segment ended up empty altogether. I'd consider that still eligible for this sort of suit, since I find it sufficiently similar in spirit. Of course, the precise interpretation lies with the judges, and the precise intent with the lawmakers. With regard to Wallace's suit attempts, it is pretty much the same, as he fails thoroughly without needing to look at such details. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] There is no identifiable market. That's not what the Judge said. There is no identifiable market where the defendants would damage Wallace by allegedly predatory pricing, because all markets in question here are either not served by the defendants, not served by Wallace, or are served in a profitable manner. Wallace has failed to identify a market where he would even _allege_ the required conditions (never mind whether his allegations are wrong or right). And that's exactly why Wallace's case has been thrown out. Please specify which market you think this is supposed to be. Up to now you have only vaguely paraded intellectual property around. Please specify _exactly_ what Wallace is supposed to be selling in the presumed market. Yeah, of course, to GNUtians, there's no market in Wallace's case. Well, if you think there _is_ an identifiable market in Wallace's case, be free to actually specify it. Whining is no substitute. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Sáb, 2006-05-20 às 19:08 +0200, Alexander Terekhov escreveu: David Kastrup wrote: [...] There is no identifiable market. That's not what the Judge said. Yeah, of course, to GNUtians, there's no market in Wallace's case. http://www.gnu.org/philosophy/words-to-avoid.html#Market Here you lie again, by hoping people add the last part of the URL with your words, and intuitively think another thing entirely. And thus lies about Free Software propagate. Following the link one reads: Market It is misleading to describe the users of free software, or the software users in general, as a ``market''. NOTE 1: so the FSF is referring to USERS and not to OPERATING SYSTEMS This is not to say we're against markets. If you have a free software support business, then you have clients, and you trade with them in a market. As long as you respect their freedom, we wish you success in your market. NOTE 2: so the FSF wishes success on business made on a market whilst respecting users' freedom. But the free software movement is a social movement, not a business, and the success it aims for is not a market success. We are trying to serve the public by giving it freedom--not NOTE 3: competing to take them away from a rival. To equate this NOTE 4: ^^ campaign for freedom to a business' campaign for mere success is to diminish the significance of freedom. As usual, Therekov's argumentation strategy lies on hoping people won't notice: a) how he self quotes himself (even three levels deep!) b) how he hopes people won't actually read the contents but instead trust him because he provides links. c) how he makes a fool of himself Rui signature.asc Description: Esta é uma parte de mensagem assinada digitalmente ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Please specify which market you think this is supposed to be. Up to now you have only vaguely paraded intellectual property around. Please specify _exactly_ what Wallace is supposed to be selling in the presumed market. Operating system software. I'll make it simple for you. Suppose that all GPL'd software evaporates tomorrow. People will need software in place of it. That's the market. So you are talking about selling licenses and media. Fine. RedHat is operating profitably in that business, so no predatory pricing. And hundreds of other companies have entered this business with GNU/Linux offerings as well, so it would not appear like there is an anticompetitive effect. Rather the contrary: much more competition than Wallace would like. If that's the supposed market, it does not meet the criteria. Because competition has increased, and because the defendants are operating profitably. And Wallace does not even claim anything different. Got it now? I got nothing that would stand a chance of meeting the criteria of predatory pricing. But anyway, you'll likely weazle around and be meaning entirely different things in a moment, things that work out equally bad. And, BTW, what the Judge said is Because he [Wallace] has not identified an anticompetitive effect, Wallace has failed to allege a cognizable antitrust injury. and he dismissed for that reason. Well, that's pretty much the same as failing to allege a market where an anticompetitive effect would be visible. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Please specify which market you think this is supposed to be. Up to now you have only vaguely paraded intellectual property around. Please specify _exactly_ what Wallace is supposed to be selling in the presumed market. Operating system software. I'll make it simple for you. Suppose that all GPL'd software evaporates tomorrow. People will need software in place of it. That's the market. So you are talking about selling licenses and media. Fine. RedHat is operating profitably in that business, so no predatory pricing. Red Hat recoups losses from GPL conspiracy (with other co-conspirators in predatory priced IP that is meant to kill competition) by higher prices of their subscription service contracts. Reality check. URL:http://www.redhat.com/info/earnings/earnings_4q2006_tables.html By far the largest revenue comes from subscriptions to software. Training and services, in contrast, are dwarved by a factor of about 4. There are no losses from GPL conspiracy. RedHat sells its media at a profit. Whether the sales channel is most profitable on subscriptions or on individual sales, is pretty irrelevant. For your information, loss in an identifiable market segment means cost minus profits. And Wallace, like you, has failed to specify a defined market segment where RedHat would be making losses, let alone permanent losses. Apart from that, RedHat does not _set_ the price for licensing, anyway. It just follows the license conditions and has no choice there where conspiracy code, namely that copyrighted by independent parties, is involved. Where they _do_ have a choice is when they are putting together compilations where parts are (C) RedHat. And RedHat has a history of routing out non-free components drastically (GNOME instead of KDE/Qt at a time when the latter was non-free still was one of the more drastic measures) and of putting technology like the RPM stuff under the GPL. And guess what, this is what made people turn to RedHat to such a degree that RedHat made the profits it does now. The customers are seemingly actively involved in this conspiracy, too. Does not seem to be very secret. And RedHat fails to make losses with its predatory pricing that it would need to recoup elsewhere. A plaintiff must prove (1) that the prices complained of are below an appropriate measure of its rival's costs and (2) that the competitor had a reasonable prospect of recouping its investment in below cost prices. Wallace is a sure winner on the merits as well, AFAICS. As sure as the sky is pink. And as far as you can see is not particularly impressive as long as you keep digging yourself into holes. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] There are no losses from GPL conspiracy. RedHat sells its media at a profit. dak. dak. dak. Why don't you go to https://www.redhat.com/apps/commerce/ and check yourself what they are selling. IIRC, media kits are optional and free (as in free beer, not GNU freedom). They sell only contracts and, pursuant to the GPL, they don't charge anything for GPL'd IP. Look, you need to decide what the market is. One moment you decide that it's operating system images (more or less), the next moment you are again back at GPL'd IP, and IP would be the copyright, not the software. If even a legal eagle like you gets confused all the time, you can't blame the judges not to be able to follow this kind of reasoning. QED. Uh, why don't you check that page yourself? Service contracts cost _extra_. The cheapest version you can get ($179) has only - 30 Days Installation and Basic Configuration Phone Support That's pretty standard for operating system sales. You can have your products shipped, or you can download them. That's pretty standard for software sales, too. So the problem you seem to be having is that _some_ kind of images can be downloaded without support. This is not valuing the _IP_ at zero (since you can't get the copyright transferred in that manner), but is valuing the media at zero. And this downloadability makes the sales profitable in the _same_ market segment, namely operating system images. So there is no recouping going on. If it were, any kind of advertising would be priced predatorily, since it carries associated costs which are then recouped in the market. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup writes: Apart from that, RedHat does not _set_ the price for licensing, anyway. Red Hat does not even _do_ the licensing, except for the small fraction of Linux to which they own the copyrights. -- John Hasler [EMAIL PROTECTED] Dancing Horse Hill Elmwood, WI USA ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] IP value based business model is waffling about things. Just what does he want to sell to whom? Suppose he wants to become an Apple (but without music and hardware business) and compete with other operating systems (not only on Macs). Anyway, so he finds that thereis already a market of operating systems where hundreds of people compete by virtue of a cooperative business Bzzt. model, and he wants to have both cooperation and competition outlawed Thus far, he wants to have only the GPL outlawed and that would put the GPL'd code into quasi public domain (the penalty for copyright misuse) at least in Indiana. in order to have a chance of marketing an inferior product which does not yet exist? And how do you know that his product is inferior or that it doesn't exist? Why should the court feel they have to accommodate his wishes for anticompetitive measures? What anticompetitive measures? The court should just apply the antitrust law to GPL predatory price fixing conspiracy. [...] So he wants to capitalize on the work of others without contributing back Not necessarily without contributing back. and sues against people who don't allow their work to get accosted in that manner. He's against contributing back under unlawful copyleft terms. So it is not his own IP he wants to sell, but that of others which is freely available to him, Not only to him. The same IP is available to others as well. and he wants to prohibit people making stuff freely available to others since this ruins his market. He doesn't want to prohibit people making stuff freely available to others under lawful non-copyleft terms. Really, it takes a Terekhov to make an even more outrageously stupid case than Wallace tried doing himself. dak, dak, dak. You're arguing against a caricature of his case, and not his case itself. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] IP value based business model is waffling about things. Just what does he want to sell to whom? Suppose he wants to become an Apple (but without music and hardware business) and compete with other operating systems (not only on Macs). So what stops him from doing so? Anyway, so he finds that thereis already a market of operating systems where hundreds of people compete by virtue of a cooperative business Bzzt. model, and he wants to have both cooperation and competition outlawed Thus far, he wants to have only the GPL outlawed and that would put the GPL'd code into quasi public domain (the penalty for copyright misuse) at least in Indiana. Uh what? You mean, if there are terms in Microsoft's EULA to be found which don't jibe with the law, then XP is in the public domain? I find that implausible. Apart from which, there are no terms in the GPL that are against the law. in order to have a chance of marketing an inferior product which does not yet exist? And how do you know that his product is inferior or that it doesn't exist? If it wasn't inferior, he would not need the better stuff banned. And if it existed, he could point to it. Why should the court feel they have to accommodate his wishes for anticompetitive measures? What anticompetitive measures? The court should just apply the antitrust law to GPL predatory price fixing conspiracy. There is no conspiracy here. A conspiracy is a collusive agreement between parties. The GPL is out in the open, and everybody is free to join the conspiracy or not, at his own choice. With your terminology, every free market is a conspiracy of those who choose to participate. [...] So he wants to capitalize on the work of others without contributing back Not necessarily without contributing back. Without contributing back. Or else he would not have a problem with the difference between BSD license and GPL. and sues against people who don't allow their work to get accosted in that manner. He's against contributing back under unlawful copyleft terms. He is free to ignore the extra rights granted to him by copyleft. So it is not his own IP he wants to sell, but that of others which is freely available to him, Not only to him. The same IP is available to others as well. And your point was? and he wants to prohibit people making stuff freely available to others since this ruins his market. He doesn't want to prohibit people making stuff freely available to others under lawful non-copyleft terms. Since copyleft forms an additional permission, not a restriction with relation to the standard provisions of copyright law, it can't be unlawful. Really, it takes a Terekhov to make an even more outrageously stupid case than Wallace tried doing himself. dak, dak, dak. You're arguing against a caricature of his case, and not his case itself. Yes, that's exactly what I say. It takes a Terekhov to make an even more outrageously stupid case than Wallace tried doing himself. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] Uh what? You mean, if there are terms in Microsoft's EULA to be found which don't jibe with the law, then XP is in the public domain? I find that implausible. http://interactionlaw.com/id12.html (Microsoft Risks Copyright Impotence) [...] if it existed, he could point to it. http://www.danwal.com/ (Please be patient. Please be patient.) [...] You're arguing against a caricature of his case, and not his case itself. Yes, that's exactly what I say. But that caricature is of your own making. Wallace has 30 days to appeal. I hope he will. We'll see. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: You're arguing against a caricature of his case, and not his case itself. Yes, that's exactly what I say. But that caricature is of your own making. Wallace has 30 days to appeal. I hope he will. We'll see. Offer to pay all his legal expenses, for a small share in the sure-fire recompensation he is about to get on appeal. I am sure this will motivate him. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Wallace brought forth the GPL. The GPL is his evidence. Yes. No facts compatible with his claim of predatory pricing. And how do you know? By virtue of having a brain. Here's an exercise for your brain. First, I'll address your remark in reply to mini-RMS: | But of course, in Therekovian there's only one incentive for life: | getting money. | | Last time I looked, RedHat was getting money. This fact is compatible with Wallace's claim of predatory pricing conspiracy pursuant to the GPL. Those ancillary revenues from no charge GPL'd code can NOT explain the lengths to which Microsoft^H^H^H^H^H^H^H^HRed Hat has gone (see below). It could have been BSD and alike licensed code in its entirety which Red Hat could have used to produce those ancillary revenues, and Wallace doesn't have any problems with RedHat's use of BSD and alike licensed code which doesn't price-fix IP at predatory level. The Judge in Microsoft antitrust case ruled: Proof that a profit-maximizing firm took predatory action should suffice to demonstrate the threat of substantial exclusionary effect; to hold otherwise would be to ascribe irrational behavior to the defendant. Moreover, predatory conduct, by definition as well as by nature, lacks procompetitive business motivation. See Aspen Skiing, 472 U.S. at 610-11 (evidence indicating that defendant's conduct was motivated entirely by a decision to avoid providing any benefits to a rival supported the inference that defendant's conduct was not motivated by efficiency concerns). In other words, predatory behavior is patently anticompetitive. ... Microsoft has no intention of ever charging for licenses to use or distribute its browser. Id. ¶¶ 137-38. Moreover, neither the desire to bolster demand for Windows nor the prospect of ancillary revenues from Internet Explorer can explain the lengths to which Microsoft has gone. In fact, Microsoft has expended wealth and foresworn opportunities to realize more in a manner and to an extent that can only represent a rational investment if its purpose was to perpetuate the applications barrier to entry. Id. ¶¶ 136, 139-42. Because Microsoft's business practices would not be considered profit maximizing except for the expectation that . . . the entry of potential rivals into the market for Intel-compatible PC operating systems will be blocked or delayed, Neumann v. Reinforced Earth Co., 786 F.2d 424, 427 (D.C. Cir. 1986), Microsoft's campaign must be termed predatory. Since the Court has already found that Microsoft possesses monopoly power, see supra, § I.A.1, the predatory nature of the firm's conduct compels the Court to hold Microsoft liable under § 2 of the Sherman Act. Note that Wallace's case is an action under § 1 of the Sherman Act. The anticompetitive nature of the GNU GPL is no-brainer. The GNU project was designed to be anticompetitive. Go read the GNU Manifesto. http://www.gnu.org/gnu/manifesto.html GNU will remove operating system software from the realm of competition. You will not be able to get an edge in this area, but neither will your competitors be able to get an edge over you. You and they will compete in other areas, while benefiting mutually in this one. If your business is selling an operating system, you will not like GNU, but that's tough on you. If your business is something else, GNU can save you from being pushed into the expensive business of selling operating systems. So once again, please tell me what's wrong with Wallace's claim of predatory pricing as explained below. --- Predatory pricing The GPL establishes a predatory pricing scheme. Setting the maximum price of intellectual property at no charge removes all motive to compete. The Supreme Court has analyzed predatory pricing in a Sherman Act § 1 civil action: [T]his is a Sherman Act 1 case. For purposes of this case, it is enough to note that respondents have not suffered an antitrust injury unless petitioners conspired to drive respondents out of the relevant markets by (i) pricing below the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost. MATSUSHITA ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574 (1986) [fn8]. If we exam case (i) pricing below the level necessary to sell their products the obvious result of the GPL is the destruction of interbrand competition (see State Oil Co. v. Khan, supra) when the maximum price of intellectual property is set at zero (no charge). New developers and vendors of intellectual property cannot enter a market for which there is no reward or incentive. Not only competitors are harmed by the GPL scheme. Consumers lose because a lack of competition removes not just product choice but without competitive reward the incentive to improve product quality disappears. When we analyze case (ii) pricing
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Wallace brought forth the GPL. The GPL is his evidence. Yes. No facts compatible with his claim of predatory pricing. And how do you know? By virtue of having a brain. Here's an exercise for your brain. First, I'll address your remark in reply to mini-RMS: | But of course, in Therekovian there's only one incentive for life: | getting money. | | Last time I looked, RedHat was getting money. This fact is compatible with Wallace's claim of predatory pricing conspiracy pursuant to the GPL. Those ancillary revenues from no charge GPL'd code can NOT explain the lengths to which Microsoft^H^H^H^H^H^H^H^HRed Hat has gone (see below). It could have been BSD and alike licensed code in its entirety which Red Hat could have used to produce those ancillary revenues, and Wallace doesn't have any problems with RedHat's use of BSD and alike licensed code which doesn't price-fix IP at predatory level. Reality check: bundling BSD and alike licensed code is, for example, the business model of Theo de Raadt. His earnings are utterly peanuts compared to those of RedHat. The Judge in Microsoft antitrust case ruled: Proof that a profit-maximizing firm took predatory action should suffice to demonstrate the threat of substantial exclusionary effect; to hold otherwise would be to ascribe irrational behavior to the defendant. Moreover, predatory conduct, by definition as well as by nature, lacks procompetitive business motivation. But you are glossing over the fact that there is hardly a more competitive market than the Linux market. It has hundreds of participants and a very low barrier of entry. Note that Wallace's case is an action under § 1 of the Sherman Act. purports to be rather than is. The anticompetitive nature of the GNU GPL is no-brainer. That must explain why there is _lots_ of competition in the Linux market. The GNU project was designed to be anticompetitive. Go read the GNU Manifesto. It does not say anything like that. Here are a few quotes: Complete system sources will be available to everyone. As a result, a user who needs changes in the system will always be free to make them himself, or hire any available programmer or company to make them for him. Users will no longer be at the mercy of one programmer or company which owns the sources and is in sole position to make changes. Releasing the dependence on a particular programmer or company creates rather than curbs competition. We must distinguish between support in the form of real programming work and mere handholding. The former is something one cannot rely on from a software vendor. If your problem is not shared by enough people, the vendor will tell you to get lost. Where is competition if a vendor can tell you to get lost? If your business needs to be able to rely on support, the only way is to have all the necessary sources and tools. Then you can hire any available person to fix your problem; you are not at the mercy of any individual. Where is not being at the mercy of a single provider anticompetitive? Such services could be provided by companies that sell just hand-holding and repair service. If it is true that users would rather spend money and get a product with service, they will also be willing to buy the service having got the product free. The service companies will compete in quality and price; users will not be tied to any particular one. Meanwhile, those of us who don't need the service should be able to use the program without paying for the service. Here Stallman actually talks about compete. http://www.gnu.org/gnu/manifesto.html GNU will remove operating system software from the realm of competition. You will not be able to get an edge in this area, but neither will your competitors be able to get an edge over you. You and they will compete in other areas, while benefiting mutually in this one. If your business is selling an operating system, you will not like GNU, but that's tough on you. If your business is something else, GNU can save you from being pushed into the expensive business of selling operating systems. Looks like Stallman was wrong about that one: while one can't _secure_ an edge over competitors, _getting_ an edge is what the distributions are all about. So once again, please tell me what's wrong with Wallace's claim of predatory pricing as explained below. It clashes with the fact that there is lot of competition going on in the Linux market, and that RedHat _turns_ a profit in the operating system business and is not operating at a loss. Not only competitors are harmed by the GPL scheme. Consumers lose because a lack of competition removes not just product choice but without
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] | Last time I looked, RedHat was getting money. This fact is compatible with Wallace's claim of predatory pricing conspiracy pursuant to the GPL. Those ancillary revenues from no charge GPL'd code can NOT explain the lengths to which Microsoft^H^H^H^H^H^H^H^HRed Hat has gone (see below). It could have been BSD and alike licensed code in its entirety which Red Hat could have used to produce those ancillary revenues, and Wallace doesn't have any problems with RedHat's use of BSD and alike licensed code which doesn't price-fix IP at predatory level. Reality check: bundling BSD and alike licensed code is, for example, the business model of Theo de Raadt. His earnings are utterly peanuts compared to those of RedHat. Bundling BSD and alike licensed code is, for example, the business model of Apple Computer, Inc. (OS X and Darwin). The Judge in Microsoft antitrust case ruled: Proof that a profit-maximizing firm took predatory action should suffice to demonstrate the threat of substantial exclusionary effect; to hold otherwise would be to ascribe irrational behavior to the defendant. Moreover, predatory conduct, by definition as well as by nature, lacks procompetitive business motivation. But you are glossing over the fact that there is hardly a more competitive market than the Linux market. It has hundreds of participants and a very low barrier of entry. What you call the Linux market (packaging, patches delivery, etc.) are ancillary markets to the market Wallace's case is about. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] | Last time I looked, RedHat was getting money. This fact is compatible with Wallace's claim of predatory pricing conspiracy pursuant to the GPL. Those ancillary revenues from no charge GPL'd code can NOT explain the lengths to which Microsoft^H^H^H^H^H^H^H^HRed Hat has gone (see below). It could have been BSD and alike licensed code in its entirety which Red Hat could have used to produce those ancillary revenues, and Wallace doesn't have any problems with RedHat's use of BSD and alike licensed code which doesn't price-fix IP at predatory level. Reality check: bundling BSD and alike licensed code is, for example, the business model of Theo de Raadt. His earnings are utterly peanuts compared to those of RedHat. Bundling BSD and alike licensed code is, for example, the business model of Apple Computer, Inc. (OS X and Darwin). No. It is a resource of Apple computer, not a business model. OS X never has been licensed under a free software license. You are again being in fantasy land. The only thing that ever has been free was Darwin, and Apple has just clamped down on Darwin on the x86 platform: no more source available. The business model of Apple is selling proprietary software. A more interesting case would be Opensolaris (which is BSD-derived, after all). One will have to see how this pans out. But it does not appear like the market is too eager for non-copylefted free software. The Judge in Microsoft antitrust case ruled: Proof that a profit-maximizing firm took predatory action should suffice to demonstrate the threat of substantial exclusionary effect; to hold otherwise would be to ascribe irrational behavior to the defendant. Moreover, predatory conduct, by definition as well as by nature, lacks procompetitive business motivation. But you are glossing over the fact that there is hardly a more competitive market than the Linux market. It has hundreds of participants and a very low barrier of entry. What you call the Linux market (packaging, patches delivery, etc.) are ancillary markets to the market Wallace's case is about. Hardly. Wallace is complaining that he can't sell the intellectual property he would like to sell because nobody is buying. But the ancillary markets are the one paying for development. You don't make money off an operating system without it being employed anywhere. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] Bundling BSD and alike licensed code is, for example, the business model of Apple Computer, Inc. (OS X and Darwin). No. http://www.apple.com/macosx/features/x11/ http://darwinsource.opendarwin.org/10.4.6.x86/ regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Bundling BSD and alike licensed code is, for example, the business model of Apple Computer, Inc. (OS X and Darwin). No. http://www.apple.com/macosx/features/x11/ http://darwinsource.opendarwin.org/10.4.6.x86/ Again: the BSD stuff is not their business model, but a resource. They don't contribute to the development of said software upstream. And they sell hardware as their main business, not software. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup [EMAIL PROTECTED] writes: Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Bundling BSD and alike licensed code is, for example, the business model of Apple Computer, Inc. (OS X and Darwin). No. http://www.apple.com/macosx/features/x11/ http://darwinsource.opendarwin.org/10.4.6.x86/ Again: the BSD stuff is not their business model, but a resource. They don't contribute to the development of said software upstream. And they sell hardware as their main business, not software. Well, strike that last sentence. While they don't sell the software separately, the software _is_ what mainly constitutes Apple, and the hardware is basically used as a fat and stylish dongle. But the particular software that constitutes what Apple is all about is not and never has been made open by them. The BSD licensed stuff is not their business model. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
[EMAIL PROTECTED] (Richard Tobin) writes: In article [EMAIL PROTECTED], David Kastrup [EMAIL PROTECTED] wrote: The anticompetitive nature of the GNU GPL is no-brainer. That must explain why there is _lots_ of competition in the Linux market. Surely the claim must be that it is damaging to competition in the market for operating systems as a whole, rather than within the Linux market itself? But the Linux market is not separate from the operating systems market. Linux is damaging to _competitors_ in the market for operating systems, because it opens wide the possibilities for _competition_. But if those competitors find that the presence of Linux makes their own products less attractive, they are free to revert to selling Linux themselves and continue competing. And indeed, it appears that Sun is going that route right now. HP did this earlier on. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [EMAIL PROTECTED] (Richard Tobin) writes: In article [EMAIL PROTECTED], David Kastrup [EMAIL PROTECTED] wrote: The anticompetitive nature of the GNU GPL is no-brainer. That must explain why there is _lots_ of competition in the Linux market. Surely the claim must be that it is damaging to competition in the market for operating systems as a whole, rather than within the Linux market itself? But the Linux market is not separate from the operating systems market. Linux is damaging to _competitors_ in the market for operating systems, because it opens wide the possibilities for _competition_. And once again you conflate the market under attack by the copyleft conspiracy with its ancillary markets. Is it really that hard to grasp that those ancillary markets will function in exactly the same way (if not better) when copyleft is outlawed and Linux becomes non- copyleft free software? But if those competitors find that the presence of Linux makes their own products less attractive, they are free to revert to selling Linux themselves Yeah, and In time, due to its recursive nature, the GPLs pool of price fixed intellectual property can grow to utterly destroy a targeted market. True. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [EMAIL PROTECTED] (Richard Tobin) writes: In article [EMAIL PROTECTED], David Kastrup [EMAIL PROTECTED] wrote: The anticompetitive nature of the GNU GPL is no-brainer. That must explain why there is _lots_ of competition in the Linux market. Surely the claim must be that it is damaging to competition in the market for operating systems as a whole, rather than within the Linux market itself? But the Linux market is not separate from the operating systems market. Linux is damaging to _competitors_ in the market for operating systems, because it opens wide the possibilities for _competition_. And once again you conflate the market under attack by the copyleft conspiracy with its ancillary markets. Nothing but the ancillary market is relevant here. We are talking about the business of selling operating systems, not of selling labor. Wallace is free to sell his labor to whatever operating system vendor wants to buy it. But that's not what he wants. He purports to want to sell operating system copies himself, and exactly that is what you call ancillary market. Is it really that hard to grasp that those ancillary markets will function in exactly the same way (if not better) when copyleft is outlawed and Linux becomes non- copyleft free software? You can't outlaw copyleft since it is simply a normal use of a creator's copyright. And those ancillary markets work better with copyleft: exactly that is the problem for Wallace: he can't sell his personal reinvention of the wheel because the market already has the means to supply better ones on a sustainable basis. But if those competitors find that the presence of Linux makes their own products less attractive, they are free to revert to selling Linux themselves Yeah, and In time, due to its recursive nature, the GPL’s pool of price fixed intellectual property can grow to utterly destroy a targeted market. True. Nonsense. The market is thriving with hundreds of competitors and everybody free to join. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: I just can't see how Wallace could possibly lose on appeal. Before losing he actually has to get a case open. His last attempt was thrown out of court, remember? And you could not see how he could _lose_ then, either. Let alone have his case thrown out. You should offer to pay all his legal fees for a cut in the spoils you are so sure he is about to receive. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: I just can't see how Wallace could possibly lose on appeal. Before losing he actually has to get a case open. His last attempt was thrown out of court, remember? And you could not see how he could _lose_ then, either. Let alone have his case thrown out. Yes, I remember. Both rulings are at odds with Supreme Court dictum on predatory pricing causing antitrust injury. Both Judges simply pulled rabbits out of their hats. To quote the author of www.rdantitrustlaw.info/shaky.pdf (More generally, competitors may never be heard to complain of artificially low prices unless they are predatory, because it is only predatorily low prices that threaten injury to competition.94 94) Id. at 33940. The Court's discussion was consistent with the Brunswick dictum on predatory pricing. See Brunswick, 429 U.S. at 489 n.14 (where there is true predation (not just uncomfortably aggressive price cutting), a competitor's lost profits do count as antitrust injury, even though the predatory practice temporarily benefits consumers).): Antitrust injury has been confused with many other things. Notably, it is not a rabbit for the judge to pull out of his hat when the complaint alleges a violation but the court wants to dismiss the case anyway, but cannot think of a good reason to dismiss it. You should offer to pay all his legal fees for a cut in the spoils you are so sure he is about to receive. I've been told that appeal fee is $250. I don't think that Wallace needs any financial help from me. www.gnu.org/gnu/manifesto.html GNU will remove operating system software from the realm of competition. You will not be able to get an edge in this area, but neither will your competitors be able to get an edge over you. You and they will compete in other areas, while benefiting mutually in this one. If your business is selling an operating system, you will not like GNU, but that's tough on you. If your business is something else, GNU can save you from being pushed into the expensive business of selling operating systems. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: I just can't see how Wallace could possibly lose on appeal. Before losing he actually has to get a case open. His last attempt was thrown out of court, remember? And you could not see how he could _lose_ then, either. Let alone have his case thrown out. Yes, I remember. Both rulings are at odds with Supreme Court dictum on predatory pricing causing antitrust injury. Both Judges simply pulled rabbits out of their hats. They won't be the last rabbits you imagine seeing. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] They won't be the last rabbits you imagine seeing. What part in predatory pricing has the requisite anticompetitive effect (ARCO) don't you understand, dear GNUtian dak? Sorry, I just can't understand. Help me please. The judge admits that Wallace alleges predatory pricing and yet dismisses based on failure to allege an anticompetitive effect. I don't follow. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] They won't be the last rabbits you imagine seeing. What part in predatory pricing has the requisite anticompetitive effect (ARCO) don't you understand, dear GNUtian dak? It depends on _what_ you price in _what_ market in competition to _what_, dear legal fuzzhead. IBM does not even sell Linux operating systems, so they can hardly be accused of predatory pricing them. If you want to call them on predatory pricing anything, it is the work of their developers on Linux. So Wallace would have needed to claim that he wants to work for pay as a developer on Linux in the areas that IBM is working on, and that IBM provides this sort of work for dumping prices so that nobody else can get a foot in the market. But that is not what Wallace complains about. He complains about Linux competing with imaginary products of his, and IBM does offer any such competing products. Sorry, I just can't understand. Help me please. The judge admits that Wallace alleges predatory pricing and yet dismisses based on failure to allege an anticompetitive effect. I don't follow. You wouldn't. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Qua, 2006-05-17 às 14:17 +0200, Alexander Terekhov escreveu: I've been told that appeal fee is $250. I don't think that Wallace needs any financial help from me. www.gnu.org/gnu/manifesto.html GNU will remove operating system software from the realm of competition. You will not be able to get an edge in this area, but neither will your competitors be able to get an edge over you. You and they will compete in other areas, while benefiting mutually in this one. If your business is selling an operating system, you will not like GNU, but that's tough on you. If your business is something else, GNU can save you from being pushed into the expensive business of selling operating systems. Of course not, the court decided as such because anti-monopoly laws exist to benefit _consumers_ and not companies that make business. If someone can have a (arguably for some) better operating system at a very competitive cost (zero for some GNU/Linux distributions, but not all since it's frequently found at a price on commercial exploitations such as Red Hat Enterprise and Suse Enterprise), if said software even fosters a cooperation environment that facilitates innovations, then the consumer did benefit. Wallace further failed to prove cause for complaint... hence dismissed for futility. Rui signature.asc Description: Esta é uma parte de mensagem assinada digitalmente ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: Let's try once again, dak. The judge admits that Wallace alleges predatory pricing and yet dismisses based on failure to allege an anticompetitive effect. Now, under 12(b)(6) standard, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. But there is no substance to be found to support an allegation. For example, I can allege a person to be a rapist, but if there is no purported victim, I can't make a case from that. Just waving some term around does not mean that there is a legal base for waving the term around. Inference of requisite anticompetitive effect from the allegations in the complaint is no rocket science -- predatory pricing has the requisite anticompetitive effect (ARCO). Where am I wrong, dak? Where is the anticompetitive effect? -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: Let's try once again, dak. The judge admits that Wallace alleges predatory pricing and yet dismisses based on failure to allege an anticompetitive effect. Now, under 12(b)(6) standard, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. But there is no substance to be found to support an allegation. When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court examines the sufficiency of the complaint, not the merits of the lawsuit. Fed. R. Civ. P. 12(b)(6); United States v. Clark County, Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court will dismiss a complaint for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In making its determination, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245, 1248 (7th Cir. 1997); Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996). For example, I can allege a person to be a rapist, but if there is no purported victim, I can't make a case from that. Alleged victim is Wallace. To quote Judge Tinder, The allegation in the Fourth Amended Complaint that the GPL is foreclosing Mr.Wallace from entering into the market for operating systems also is not a cognizable antitrust injury. The court understands Mr. Wallaces argument that the GPL may be preventing him from marketing his own operating system, and, for the purposes of the instant motion, accepts that allegation as true. However, while this may be significant enough from Mr. Wallaces perspective, a plaintiff must prove not only an injury to him or herself, but to the market as well, Martin v. Am. Kennel Club, Inc., 697 F. Supp. 997, 1003 (N.D. Ill. 1988), which Mr. Wallace has failed to do. As the court stated in its November 28, 2005 Entry, reduced opportunity as a competitor does not necessarily equate to an antitrust injury as recognized by the courts. Brunswick, 429 U.S. at 488. Indeed, injury in fact is a different beast than antitrust injury. So there's injury and it flows from the alleged predatory pricing (the allegation which Judge Tinder simply ignores in his analysis). That makes it antitrust injury because predatory pricing has the requisite anticompetitive effect (ARCO). Just waving some term around does not mean that there is a legal base for waving the term around. Inference of requisite anticompetitive effect from the allegations in the complaint is no rocket science -- predatory pricing has the requisite anticompetitive effect (ARCO). Where am I wrong, dak? Where is the anticompetitive effect? In alleged predatory pricing. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: Alexander Terekhov [EMAIL PROTECTED] writes: Let's try once again, dak. The judge admits that Wallace alleges predatory pricing and yet dismisses based on failure to allege an anticompetitive effect. Now, under 12(b)(6) standard, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. But there is no substance to be found to support an allegation. When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court examines the sufficiency of the complaint, not the merits of the lawsuit. Yes. And there has been no sufficiency. The purported facts that Wallace put forward don't fit the complaint. That makes the complaint insufficient. Once the claims would support the complaint, the merit of the claims gets examined. But Wallace never got there. Fed. R. Civ. P. 12(b)(6); United States v. Clark County, Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court will dismiss a complaint for failure to state a claim only if it “‘appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” So what did you not understand in that? For example, I can allege a person to be a rapist, but if there is no purported victim, I can't make a case from that. Alleged victim is Wallace. I did not state that the absence of an alleged victim was the deficiency in Wallace's claim. This was just a general example for an unsupportable claim. So there's injury and it flows from the alleged predatory pricing (the allegation which Judge Tinder simply ignores in his analysis). But there is no predatory pricing since IBM does not sell Linux operating systems and does not price them. Instead, IBM sells AIX and other operating systems. And RedHat can't be accused of predatory pricing since they make a sustainable _business_ from selling Linux operating system copies. Predatory pricing means selling under cost, and RedHat runs a profitable business. That makes it antitrust injury because predatory pricing has the requisite anticompetitive effect (ARCO). Well, Wallace did not even put forward any plausible business of his that would be suffering. You can't sue preemptively for being damaged in case you wanted to enter some market. His complaint really is oozing nonsense out of every pore. Just waving some term around does not mean that there is a legal base for waving the term around. Inference of requisite anticompetitive effect from the allegations in the complaint is no rocket science -- predatory pricing has the requisite anticompetitive effect (ARCO). Where am I wrong, dak? Where is the anticompetitive effect? In alleged predatory pricing. You are confusing purported cause and effect. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] Fed. R. Civ. P. 12(b)(6); United States v. Clark County, Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court will dismiss a complaint for failure to state a claim only if it ââappears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.ââ So what did you not understand in that? I understand it fully, I believe. Why did you snip out the part on determination? In making its determination, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. Wallace alleged predatory pricing. For example, I can allege a person to be a rapist, but if there is no purported victim, I can't make a case from that. Alleged victim is Wallace. I did not state that the absence of an alleged victim was the deficiency in Wallace's claim. This was just a general example for an unsupportable claim. So there's injury and it flows from the alleged predatory pricing (the allegation which Judge Tinder simply ignores in his analysis). But there is no predatory pricing since ... Whatever. But under 12(b)(6) standard, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. Why are you trying to disprove Wallace's allegations when I'm talking about dismissal based on failure to allege an anticompetitive effect. Wallace alleged predatory pricing and predatory pricing has the requisite anticompetitive effect (ARCO). Do you follow me, dak? regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Fed. R. Civ. P. 12(b)(6); United States v. Clark County, Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court will dismiss a complaint for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. So what did you not understand in that? I understand it fully, I believe. Well, so it appears beyond doubt that Wallace can prove no set of facts in support of his claim which would entitle him to relief. Why did you snip out the part on determination? Irrelevant. In making its determination, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. Wallace alleged predatory pricing. But he brought forth no set of facts in support of his claim. Whatever. But under 12(b)(6) standard, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. Sure. The court accepted that Wallace did not misstate any _facts_. It is just that the facts he stated can't be construed to constitute predatory pricing. Wallace alleged predatory pricing and predatory pricing has the requisite anticompetitive effect (ARCO). Do you follow me, dak? But Wallace brought forth no facts whatsoever compatible with his claim of predatory pricing as defined by the requisite laws. So there is no case. It's like suing somebody for rape because he has been drying his underwear on a clothesline in public sight. The judge can perfectly well accept that indeed there were underwear on the clothesline, but that still does not meet the legal definition of rape, and there is no point in calling witnesses in that could describe the exact state and location of the clothesline in question. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] But Wallace brought forth no facts whatsoever compatible with his claim of predatory pricing as defined by the requisite laws. Wallace brought forth the GPL. The GPL is his evidence. --- Predatory pricing The GPL establishes a predatory pricing scheme. Setting the maximum price of intellectual property at no charge removes all motive to compete. The Supreme Court has analyzed predatory pricing in a Sherman Act § 1 civil action: [T]his is a Sherman Act 1 case. For purposes of this case, it is enough to note that respondents have not suffered an antitrust injury unless petitioners conspired to drive respondents out of the relevant markets by (i) pricing below the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost. MATSUSHITA ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574 (1986) [fn8]. If we exam case (i) pricing below the level necessary to sell their products the obvious result of the GPL is the destruction of interbrand competition (see State Oil Co. v. Khan, supra) when the maximum price of intellectual property is set at zero (no charge). New developers and vendors of intellectual property cannot enter a market for which there is no reward or incentive. Not only competitors are harmed by the GPL scheme. Consumers lose because a lack of competition removes not just product choice but without competitive reward the incentive to improve product quality disappears. When we analyze case (ii) pricing below some appropriate measure of cost we see that a maximum price of zero for the intellectual property in computer programs leads to an absurd result. In addition to the intrinsic value ordained by Art. I, §8, cl. 8 of the Constitution, the cost of creation of intellectual property in computer programs entails the development costs of skilled programmers, new computer hardware, communications costs and administrative overhead. Commercial computer programs are not developed in a zero cost vacuum -- that is an absurd proposition. A maximum price of zero is below any reasonable definition of appropriate measure of cost concerning development and innovation of intellectual property assets. The only economic motive for using GPL licensed intellectual property in a competitive market for computer operating systems is to destroy a competitor who is striving to create positive value based in intellectual property. The Supreme Court has addressed the practical evidentiary burden for a predatory pricing claim: As a practical matter, it may be that only direct evidence of below-cost pricing is sufficient to overcome the strong inference that rational businesses would not enter into conspiracies such as this one; MATSUSHITA ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574 (1986)[fn9]. The GPLs term 2(b) is without question direct evidence of a below-cost pricing scheme. Commercial distributors of GPL licensed products conspire to give away their assets in intellectual property and then recoup losses by leveraging ancillary markets such as computer hardware sales (computer hardware obviously requires an operating system), software consulting fees, employee training programs and computer maintenance services. (One uncharged co-conspirator, INTERNATIONAL BUSINESS MACHINES CORPORATION, is the Worlds largest computer hardware and computing services corporation.) The effect of the GPL license is to create a Marxist-Leninist model for computer programs, where a vast pool of intellectual property is collectively price fixed at no charge and thus removed from commercial exploitation. In time, due to its recursive nature, the GPLs pool of price fixed intellectual property can grow to utterly destroy a targeted market. It is not consumers that the GPL intends to benefit -- the goal is the destruction of competition in the free market. The GPL license renders U. S. Const., Art. I, §8, cl. 8 meaningless in the context of computer programs containing copyrights and patents. The defendants assert: The GPL expressly allows Defendants, and any other licensee, to charge a fee to recover the variable or incremental costs associated with distributing software licensed under the GPL: You may charge a fee for the physical act of transferring a copy.. Defendants Brief at 5. Here, the defendants attempt to conflate the definition of intangible copyright assets with the physical media in which a work is embodied: Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. ..;17 USC sec. 202. The present claim is for price fixing in the relevant market of intangible intellectual property assets in computer programs (the Linux operating system) and not an action concerning tangible media or physical acts involving the distribution of tangible media in which a copyrighted work may be fixed. --- He he, Marxist-Leninist.
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Qua, 2006-05-17 às 21:17 +0200, Alexander Terekhov escreveu: Wallace brought forth the GPL. The GPL is his evidence. --- Predatory pricing The GPL establishes a predatory pricing scheme. Setting the maximum price of intellectual property at “no charge” removes all motive to compete. The Supreme Court has analyzed predatory pricing in a Sherman Act § 1 civil action: Let's search for instances of charge: In the Preamble: (...) Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), (...) In Section 1: (...) You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee. In Section 2, which is about distributing _DERIVATIVES_: 2. _You_may_modify_ your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and _copy_and_distribute_ _such_modifications_ or work _under_the_terms_of_Section_1_ above, provided that you also meet all of these conditions: So this is direct: you can charge for giving out a copy! But you must at no extra cost license the new copies under the same terms: b) You must cause any work that you 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. If you want to distribute binaries then one of the ways you can do it is to... b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or, So no, you're wrong again (as the judge also concluded). What you can't charge for, is for distributing under the GPL. But you can demand a payment for the work of making that copy. But of course, in Therekovian there's only one incentive for life: getting money. Go traffic drugs, it's easier. Rui signature.asc Description: Esta é uma parte de mensagem assinada digitalmente ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] But Wallace brought forth no facts whatsoever compatible with his claim of predatory pricing as defined by the requisite laws. Wallace brought forth the GPL. The GPL is his evidence. Yes. No facts compatible with his claim of predatory pricing. IBM is supposed to be guilty of heeding a license? And the judge is supposed to admit that as a case? Predatory pricing The GPL establishes a predatory pricing scheme. Setting the maximum price of intellectual property at “no charge” removes all motive to compete. The Supreme Court has analyzed predatory pricing in a Sherman Act § 1 civil action: “…[T]his is a Sherman Act 1 case. For purposes of this case, it is enough to note that respondents have not suffered an antitrust injury unless petitioners conspired to drive respondents out of the relevant markets by (i) pricing below the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost.” MATSUSHITA ELEC. INDUSTRIAL CO. v. ZENITH RADIO, 475 U.S. 574 (1986) [fn8]. But Redhat is not pricing below the level necessary to sell their product, they are turning a profit. And IBM is not selling Linux. And there are dozens of companies competing by offering Linux distributions, while there is just one company offering Windows. The facts don't match the claims. There is no case here. [Further Wallace rubbish elided] He he, Marxist-Leninist. Well, whether you like the prose of Wallace or not for whatever reason, it does not constitute a valid legal argument. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] Wallace brought forth the GPL. The GPL is his evidence. Yes. No facts compatible with his claim of predatory pricing. And how do you know? Neither Judge Tinder nor Judge Young addressed his claim of predatory pricing. IBM is supposed to be guilty of heeding a license? And the judge is supposed to admit that as a case? http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=usvol=495invol=328 Held: 1. Actionable antitrust injury is an injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful. Injury, although causally related to an antitrust violation, will not qualify unless it is attributable to an anticompetitive aspect of the practice under scrutiny, since it is inimical to the antitrust laws to award damages for losses stemming from continued competition. Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 109 -110. P. 334 2. A vertical, maximum-price-fixing conspiracy in violation of 1 of the Sherman Act must result in predatory pricing to cause a competitor antitrust injury. Pp. 335-341. Now go read what Judge Tinder had to say about the GPL and Wallace's claims here: http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-30.pdf Pay attention to vertical maximum price fixing. The Judge ruled that Plaintiffs Third Amended Complaint States a Claim Upon Which Relief can be Granted and that Plaintiffs Allegations Sufficiently Set Forth a Violation of the Rule of Reason, but Plaintiff Has Not Alleged Antitrust Injury. And then Wallace has added the claim of predatory pricing to his complaint. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=usvol=495invol=328 Although a vertical, maximum-price-fixing agreement is unlawful under 1 of the Sherman Act, it does not cause a competitor antitrust injury unless it results in predatory pricing. 8 Antitrust injury does not arise for purposes of 4 of the Clayton Act, see n. 1, supra, until a private party is adversely affected by an anticompetitive aspect of the defendant's conduct, see Brunswick, 429 U.S., at 487 ; in the context of pricing practices, only predatory pricing has the requisite anticompetitive effect. 9 See Areeda Turner, Predatory Pricing and Related [495 U.S. 328, 340] Practices Under Section 2 of the Sherman Act, 88 Harv. L. Rev. 697, 697-699 (1975); McGee, Predatory Pricing Revisited, 23 J. Law Econ. 289, 292-294 (1980). Low prices benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition. There is no case here. See above. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: David Kastrup wrote: [...] Wallace brought forth the GPL. The GPL is his evidence. Yes. No facts compatible with his claim of predatory pricing. And how do you know? By virtue of having a brain. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Rui Miguel Silva Seabra [EMAIL PROTECTED] writes: Qua, 2006-05-17 às 21:17 +0200, Alexander Terekhov escreveu: So no, you're wrong again (as the judge also concluded). What you can't charge for, is for distributing under the GPL. But you can demand a payment for the work of making that copy. But of course, in Therekovian there's only one incentive for life: getting money. Last time I looked, RedHat was getting money. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov wrote: [...] See STANDING ON SHAKY GROUND: THE STRANGELY ELUSIVE DOCTRINE OF ANTITRUST INJURY: http://www.rdantitrustlaw.info/shaky.pdf More generally, competitors may never be heard to complain of artificially low prices unless they are predatory, because it is only predatorily low prices that threaten injury to competition.94 94) Id. at 33940. The Court's discussion was consistent with the Brunswick dictum on predatory pricing. See Brunswick, 429 U.S. at 489 n.14 (where there is true predation (not just uncomfortably aggressive price cutting), a competitor's lost profits do count as antitrust injury, even though the predatory practice temporarily benefits consumers). http://www.justia.us/us/495/328/case.html Although a vertical, maximum-price-fixing agreement is unlawful under 1 of the Sherman Act, it does not cause a competitor antitrust injury unless it results in predatory pricing. -- U.S. Supreme Court And Judge Tinder clearly erred. Hopefully Judge Young will do better. Judge Young also erred. - UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION DANIEL WALLACE, Plaintiff, vs. INTERNATIONAL BUSINESS MACHINES CORPORATION; RED HAT, INC.; and NOVELL, INC., Defendants. ))) ) 1:05-cv-678 RLY-VSS ) ENTRY ON DEFENDANTS MOTIONS TO DISMISS In his Second Amended Complaint, Plaintiff Daniel Wallace (Wallace) brings a claim against International Business Machines Corporation, Red Hat, Inc., and Novell, Inc. (collectively, Defendants) for restraint of trade by way of a licensing scheme to fix the prices of computer software. (See Second Amended Complaint at 1). This matter is before the court on Defendant International Business Machines Corporations Motion to Dismiss, in which Defendants Red Hat and Novell join, and on Defendants Red Hat and Novells joint Motion to Dismiss. I. Background Wallace accuses Defendants of conspiring with Free Software Foundation, Inc.,1 [1 Wallaces claims against Free Software Foundation, Inc. were dismissed in a separate cause of action, Wallace v. Free Software Foundation, Inc., 1:05-cv-0618-JDT-TAB (S.D.Ind. 2006) (Tinder, J.).] and others, to pool and cross license their copyrighted intellectual property in computer programs that are collectively known as the Linux (or GNU/Linux) operating system. (Second Amended Complaint at 2). The result of this conspiracy, according to Wallace, is the foreclosure of competition in the market for computer operating systems and the prevention of Wallace from marketing his own computer operating system. (Id. at 2-3). Wallace brings his action pursuant to 15 U.S.C. § 26 (§ 16 of the Clayton Act).2 [2 In his Response to Red Hat and Novells Motion to Dismiss, Wallace also claims to bring his action under 15 U.S.C. § 1 (§ 1 of the Sherman Act).] The General Public License, or GPL, that is the subject of Wallaces complaint is part of the framework commonly known as open source software. (Brief in Support of Red Hat and Novells Motion to Dismiss at 2). Licensees of computer programs that are licensed pursuant to the GPL are not charged for the license, but are required to license any derivative works that they create using the licensed software under the same terms and conditions . . . . (Id.; see also Ex A (GPL)). Wallace argues that the GPL fixes the price of all derivative works at zero, or free, and he claims that this amounts to predatory price fixing. (Response to Red Hat and Novells Motion to Dismiss at 5). II. Motion to Dismiss Standard When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court examines the sufficiency of the complaint, not the merits of the lawsuit. Fed. R. Civ. P. 12(b)(6); United States v. Clark County, Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court will dismiss a complaint for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In making its determination, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245, 1248 (7th Cir. 1997); Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996). The court will also consider facts presented in exhibits attached to the complaint. See, Zinermon v. Burch, 494 U.S. 113. III. Analysis Wallace alleges that the Defendants predatory price-fixing scheme prevents [him] from marketing his own computer operating system as a competitor. His complaint fails because it fails to allege anticompetitive effects in an identifiable market. Car Carriers, Inc. v. Ford Motor Company, 745 F.2d 1101 (7th Cir. 1984) (affirming dismissal
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov wrote: [...] III. Analysis Wallace alleges that the Defendants predatory price-fixing scheme ^ prevents [him] from marketing his own computer operating system as a competitor. His complaint fails because it fails to allege anticompetitive effects in an identifiable market. Car Carriers, Inc. v. Ford Motor Company, 745 F.2d 1101 (7th Cir. 1984) (affirming dismissal based on failure to allege an anticompetitive effect). Antitrust laws are for the protection of competition, not competitors. Brunswick Corp. v. Pueblo Bowl-o-Mat, Inc., 429 U.S. 477, 488 (1977). In this case, the GPL benefits consumers by allowing for the distribution of software at no cost, other than the cost of the media on which the software is distributed. (Ex. A at ¶ 1). When the plaintiff is a poor champion of consumers, a court must be especially careful not to grant relief that may undercut the proper functions of antitrust. Ball Meml Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1334 (7th Cir. 1986). Because he has not identified an anticompetitive effect, Wallace has failed to allege a cognizable antitrust injury. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=usvol=495invol=328 Although a vertical, maximum-price-fixing agreement is unlawful under 1 of the Sherman Act, it does not cause a competitor antitrust injury unless it results in predatory pricing. 8 Antitrust injury does not arise for purposes of 4 of the Clayton Act, see n. 1, supra, until a private party is adversely affected by an anticompetitive aspect of the defendant's conduct, see Brunswick, 429 U.S., at 487 ; in the context of pricing practices, only predatory pricing has the requisite anticompetitive effect. 9 See Areeda Turner, Predatory Pricing and Related [495 U.S. 328, 340] Practices Under Section 2 of the Sherman Act, 88 Harv. L. Rev. 697, 697-699 (1975); McGee, Predatory Pricing Revisited, 23 J. Law Econ. 289, 292-294 (1980). Low prices benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition. Go figure. regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
wow, this really has you freaking out Terekhov... -miles -- `Suppose Korea goes to the World Cup final against Japan and wins,' Moon said. `All the past could be forgiven.' [NYT] ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
On Tue, 2006-04-04 at 17:10 +0200, Alexander Terekhov wrote: Time to address this little bit of silly propaganda. Rui Miguel Silva Seabra wrote: One of Lex Terekhov's favorite heroes looses his cause: http://www.groklaw.net/article.php?story=20060320201540127 Mr. Wallace's fourth Amended Complaint was dismissed and the Free Software Foundation's Motion to Dismiss was granted. It's the Order that tells Wallace to pay the Free Software Foundation's costs. Judges do that when they'd like you to learn a good lesson. It's a signal you shouldn't have brought the case in the first place. That seems to be at odds with what it says in FRCivP 54(d): ... costs other than attorneys' fees shall be allowed as of course to the prevailing party ... Interestingly enough, the FSF has not filed a bill of costs. And it appears that the 14-day deadline for doing so has 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. The FSF doesn't seek every penny out of a lunatic... The horror... the horror... News at 11pm Rui signature.asc Description: This is a digitally signed message part ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Rui Miguel Silva Seabra wrote: [...] The FSF doesn't seek every penny out of a lunatic... The horror... the horror... So was it way too pretty penny or just not worth filing a bill? I'm genuinely interested. After all it will add to FSF's Expenses... horror... horror... FSF is inefficient... http://www.charitynavigator.org/index.cfm/bay/search.summary/orgid/8557.htm Only one star. regards, alexander. P.S. And paid CEO around 7 percent of revenue in 2004. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
First off, I'm surprised. I hope Wallace will appeal. As for costs... -- The award of costs is not a penalty but is a method used to reimburse an innocent party for the expenses of litigation. Costs include the payment of court fees for the commencement of the litigation; the submission of pleadings or other documents; or the service of process or other papers by a public officer. The appointment by a court of a referee to hear extremely technical testimony, or a receiver to retain and preserve the defendant's funds or property during litigation, is included in costs. Costs entail expenditures made in interviewing parties or witnesses prior to trial and the fees that are properly paid to witnesses who testify. Printing expenses for maps or necessary documents are also included. Costs do not include the compensation of an attorney. Expenditures in terms of the adversary nature of the proceedings, however, are included. Only when specifically authorized by law may attorney's fees be awarded in addition to costs. -- regards, alexander. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
On Tue, 2006-03-21 at 12:54 +0100, Alexander Terekhov wrote: http://finance.messages.yahoo.com/bbs?.mm=FNaction=mboard=1600684464tid=caldsid=1600684464mid=355346 http://finance.messages.yahoo.com/bbs?.mm=FNaction=mboard=1600684464tid=caldsid=1600684464mid=355344 http://finance.messages.yahoo.com/bbs?.mm=FNaction=mboard=1600684464tid=caldsid=1600684464mid=355342 More self quotes. yawn. You seem to forget the court dismissed the case for futility, so I find it hard to believe any appeal won't wonder _why_ they considered it futility... As many have pointed that out to you in ways that only a fool couldn't see, futility is the main gist of Wallace's 5 times amended complaint. Rui signature.asc Description: This is a digitally signed message part ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] wrote on Fri, 24 Mar 2006 22:42:13 +0100: Merijn de Weerd wrote: [...] You have yet to show that setting a price at zero is predatory pricing. Wallace on predatory pricing: --- Predatory pricing The GPL establishes a predatory pricing scheme. Setting the maximum price of intellectual property It's like Richard Stallman says - if you start using the vague, woolly, almost meaningless abstraction intellectual property as though it had some concrete meaning, you will confuse your listeners, and eventually confuse yourself. Your confuson here is that computer users don't buy intellectual property, and the pertinent market isn't one for intellectual property - it's for computers, programs, operating systems, support services, whatever, and it is these that users buy. The GPL doesn't fix any price for these things, and the FSF's philosopy explicitly states you are free to sell a GPL'd program for any price you can get. Companies can, and do, sell GPL licensed programs at a non-zero price and they make a good profit doing so. [ ] Not only competitors are harmed by the GPL scheme. Consumers lose because a lack of competition removes not just product choice but without competitive reward the incentive to improve product quality disappears. This is specious argumentation based on unfounded assumptions. Or, in plain English, a load of bollocks. What is important is that product quality improves, and in the case of major GPL'd products (like the Linux kernel) it is clearly happening. Partly, this is because Linux is in competition with MS-Windows, which is also spurred to improvement by the competition. But it is also clear that competitive reward is not the only incentive to improve the quality of a computer program. [ ] alexander -- Alan Mackenzie (Munich, Germany) Email: [EMAIL PROTECTED]; to decode, wherever there is a repeated letter (like aa), remove half of them (leaving, say, a). ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
David Kastrup wrote: [...] Completely irrelevant to your previous line of reasoning which you snipped out again. Really, your smokescreen and quote birdshot weazeling is most tiresome. You can't cure a wrong argument by What wrong argument are you talking about? Your fellow GNUtian ams' non sequitur regarding work? Oh. It reminds me of Moglen's a work... http://lwn.net/Articles/147070/ - LWN: So, if the kernel is covered solely by the GPL, you would see proprietary modules as an infringement? Eben: Yes. I think we would all accept that. I think that the degree of interpenetration between kernel modules and the remainder of the kernel is very great, I think it's clear that a kernel with some modules loaded is a a work and because any module that is dynamically loaded could be statically linked into the kernel, and because I'm sure that the mere method of linkage is not what determines what violates the GPL, I think it would be very clear analytically that non-GPL loadable kernel modules would violate the license if it's pure GPL. - Any comments, dak? regards, alexander. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Alexander Terekhov [EMAIL PROTECTED] writes: Merijn de Weerd wrote: [...] Wallace got dismissed because he could not show injury. Judge Tinder silently ignored Wallace's argument regarding predatory pricing which is central to antitrust injury in Wallace's case. The Judge didn't explain why he did it. To me, it appears that he is less versed in antitrust than Wallace. To you a lot of things appear. Legal competence necessitates a certain correlation to what things appear to judges. And they apparently have not been raised in Terekhov land. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
