From: Sylvia Caras <[EMAIL PROTECTED]> The US Seventh Circuit, known for jurists steeped in theories of law and economics, has weighed in definitively against antitrust liability for open source software.
http://technology.findlaw.com/articles/00006/010425.html Open Source Software Survives Antitrust Challenge FindLaw By Kevin Fayle, Does giving something away violate the Sherman Act's prohibition on predatory pricing? Does encouraging a price of zero constitute price-fixing? No on both counts, according to a recent Seventh Circuit decision in an antitrust suit against companies distributing software under the GNU Public License (GPL). The suit, filed by an independent software developer against IBM, Red Hat and Novell, alleged that the GPL constitutes a conspiracy to drive out potential competitors of the Linux operating system. By fixing the price at zero, he argued, the companies conspired to drive out competition in the software market by distributing Linux at a price other developers couldn't beat - free. Well, not exactly free . . . but "free." The GPL was created by the Free Software Foundation (FSF) with the aim of making quality software whose source code was open to future developers so that they could make improvements to the software, or even derivative products. The only catch was that any improvements or new products had to be distributed under the GPL, with open source code. The FSF calls this take on free software "free as in speech" rather than "free as in beer." Software developers can charge for their particular distribution of the "free" software, along with support and other services, but the fact that the source code is freely available acts to keep the prices that companies charge for these goods and services low. Perhaps an example will help: Budweiser sells a lot of beer, and they don't just freely hand out the exact recipe for their flagship lager. In software jargon, their beer is closed source. Thus, even if someone decided to give away Budweiser without charging for it, it would not be "free" in the open source sense. An open source beer would be one whose recipe was freely distributed, and open to all to brew and improve upon. Even if the resulting product was sold for a profit, the beer would still be "free" according to the FSF. (Lest you laugh at this example, check out this site, where a group of students at the IT-University in Copenhagen actually did establish an open source beer!) The lawsuit argued that the defendants, by distributing Linux under the GPL, had engaged in predatory pricing, formed a conspiracy to further a restraint on trade, and fixed the price for software at zero. Chief Judge Easterbrook, writing for the court, dismissed these arguments and reassured free software advocates that "[t]he GPL and open-source software have nothing to fear from the antitrust laws." The first to fall was plaintiff's predatory pricing argument. Predatory pricing typically involves three stages from the point of view of American antitrust law: first, there is a period of artificially low prices; next, producers who cannot make a profit competing with these low prices drop out of the market; finally, a monopoly ensues, and prices rise to monopoly levels. If monopoly does not occur, low prices remain, and vice versa. Using antitrust law to raise prices, as the plaintiff essentially asked the court to do, would "turn the Sherman Act on its head," according to Judge Easterbrook. Since the GPL precludes the reduction in output and increase in price that would injure consumers, there is no role for antitrust law to play. The GPL actually results in increased output and the lowest possible prices, thus antitrust law has no interest in breaking up the GPL's "conspiracy," Judge Easterbrook held. Indeed, the plaintiff was mistaken to suggest that the GPL and the companies putting out software under the license constitute a conspiracy. Antitrust law prohibits conspiracies that have restraints on trade as their purpose. Yet, the GPL does not restrain trade. Instead, Easterbrook states, the GPL acts as a cooperative agreement that facilitates the production of new software, and, as such, is perfectly lawful. Finally, the Chief Judge dismissed the plaintiff's price-fixing argument. The GPL does fix the maximum price for the software (the source code, not the actual physical distribution) at zero, but maximum prices are generally beneficial for consumers and courts therefore analyze them under the Rule of Reason. This rule states, basically, that a restraint on trade will only violate antitrust law if it is unreasonable. Copyright law, Judge Easterbrook writes, gives creators the right (but not the obligation) to charge for their works in order to recover their fixed costs. In the open source community, where fixed costs are covered by donations of time by volunteer coders, it would be inefficient and detrimental to consumers to force developers to charge for the software. Thus, the maximum price that the GPL sets for software satisfies the Rule of Reason. With that, the Seventh Circuit affirmed the dismissal of plaintiff's lawsuit for failure to state an antitrust claim. This decision will have profound importance in the future as Microsoft moves into the open-source world through its agreement with Novell to share its patents and increase interoperability between Windows and Novell's Suse Linux. It also means that major players who decide to release previously proprietary software, such as Sun's Java, under the GPL won't have to fear antitrust lawsuits from angry software developers. At least not in the Seventh Circuit. As open source software continues to grow in importance, this type of lawsuit might spring up in other jurisdictions. In the unlikely event that another circuit comes out with a different interpretation of antitrust law and free software, the Supreme Court would have to weigh in before the issue is truly resolved. Since the Seventh Circuit, known for jurists steeped in theories of law and economics, has weighed in so definitively against antitrust liability for open source software, however, it's take on the matter is likely to travel to other jurisdictions and govern any future lawsuits. _______________________________________________ Lista de discussão da MetaReciclagem Envie mensagens para [email protected] http://lista.metareciclagem.org
