Re: EU antitrust is also cool (was: A new practical problem...)
On 2/19/06, olive [EMAIL PROTECTED] wrote: [...] http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf There is no judgement at all in this document which is resume only the arguments of D. Wallace. This court has dismissed D. Wallace on the basis of similar arguments in the documents I have pointed. The basis for dismissal was the judgement that Wallace didn't allege proper antitrust injury. It has really nothing to do with his arguments on price-fixing, etc. In his later filings, Wallace is just pressing the argument of predatory pricing which is consistent with 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 339–40. 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). What I am looking for is an actual judgement; not only arguments that please you. Oh you should really look at the actual judgement. The judge already ruled that Plaintiff's Third Amended Complaint States a Claim Upon Which Relief can be Granted and Wallace expands on that finding of vertical agreement in his Alternative Vertical Analysis. All judgements I know have been up to now in favour of the GPL. That previous ENTRY GRANTING MOTION TO DISMISS THE COMPLAINT was not quite in favour of the GPL. If you can show me the contrary, please do it, Just read it. I mean bits like The GPL allows free access to software programs, subject to some limitations. This does not mean that the GPL necessarily aids competition as contemplated by the Sherman Act, as FSF contends. regards, alexander.
Re: EU antitrust is also cool (was: A new practical problem...)
Alexander Terekhov wrote: On 2/18/06, olive [EMAIL PROTECTED] wrote: I think the following links might interest you. Yeah. All complain about the GPL are dismissed one after the other. http://hearsay.com/wp-hdcarchives/cases/wallace_v_fsf-28nov2005.pdf Here the judge rejected a number of the arguments of the Free Software Foundation, including that the nature of the GPL providing free access to software programs, subject to some limitations, necessarily aids competition. Wallace filed amended complaint, and the briefing is under way. AFAICS, in his responses to the FSF and Red Hat+Novell (that's another case) Wallace totally devastated ICE MILLER. http://opensource.sys-con.com/read/168985.htm What?I You're referring to Groklaw PJ's enemy #1 O'Gara? He he. Well. The latest Wallace's filing is this: http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf There is no judgement at all in this document which is resume only the arguments of D. Wallace. This court has dismissed D. Wallace on the basis of similar arguments in the documents I have pointed. What I am looking for is an actual judgement; not only arguments that please you. All judgements I know have been up to now in favour of the GPL. If you can show me the contrary, please do it, Olive -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: EU antitrust is also cool (was: A new practical problem...)
On 2/14/06, Nathanael Nerode [EMAIL PROTECTED] wrote: Alexander Terekhov [EMAIL PROTECTED]wrote: What is your educated opinion regarding the GPL being in trouble re http://europa.eu.int/comm/competition/legislation/treaties/ec/art81_en.html? First of all, the GPL clearly qualifies for the paragraph 3 exception, because is promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, etc. Nice try. But you conveniently ignore the preconditions for that exception. ... which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. regards, alexander.
Re: EU antitrust is also cool (was: A new practical problem...)
On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] Assuming you mean the FSF and/or GNU project, with whom are they entering onto agreement? Mmmmh? I mean the GPL license. Also, please have a look at 81 § 3. I did it. Now you please take a look at http://europa.eu.int/scadplus/leg/en/lvb/l26108.htm - Licensing agreements that restrict competition are prohibited by the Community competition rules, and in particular Article 81 of the EC Treaty. In most cases, however, these agreements also have positive effects that outweigh their restrictive effects on competition. The new provisions, which comprise a block exemption regulation and guidelines, create an area of certainty for most licensing agreements. [...] These exemptions are granted on condition that the agreements do not contain certain restrictions that have serious anti-competitive effects. - And at http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf Now please tell me where and why Wallace goes wrong regarding serious anti-competitive effects of the GPL license when used by a cartel of competitors to pool and cross license predatory price fixed intellectual property with the sole objective to eliminate free market competition. quote author=Stallman In the GNU Project, discrimination against proprietary software is not just a policy -- it's the principle and the purpose. Proprietary software is fundamentally unjust and wrong, so when we have the opportunity to place it at a disadvantage, that is a good thing. /quote TIA. regards, alexander.
Re: EU antitrust is also cool (was: A new practical problem...)
clip Dr. Mikko Välimäki has a quite nice article on the topic: Mikko Välimäki: Copyleft Licensing and EC Competition Law, forthcoming in European Competition Law Review 3/2006 http://www.valimaki.com/org/open_source_competition.pdf Greets, Ville Oksanen Researcher, Helsinki University of Technology OSSI-project - www.coss.fi/ossi/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: EU antitrust is also cool (was: A new practical problem...)
On Wed, Feb 15, 2006 at 11:28:22AM +0100, Alexander Terekhov wrote: On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] Assuming you mean the FSF and/or GNU project, with whom are they entering onto agreement? Mmmmh? I mean the GPL license. The GPL is a text, not an undertaking you can sue under art. 81. Which are the undertakings entering an unlawful agreement? Also, please have a look at 81 § 3. I did it. Now you please take a look at http://europa.eu.int/scadplus/leg/en/lvb/l26108.htm - Licensing agreements that restrict competition are prohibited by the Community competition rules, and in particular Article 81 of the EC Treaty. In most cases, however, these agreements also have positive effects that outweigh their restrictive effects on competition. The new provisions, which comprise a block exemption regulation and guidelines, create an area of certainty for most licensing agreements. [...] These exemptions are granted on condition that the agreements do not contain certain restrictions that have serious anti-competitive effects. - The problem is that the GPL does not restrict competition, but rather enhances it. See, among others, the very good article Ville sent you. See also the very simple fact that GNU/Linux is the first serious competitor to MS Windows to emerge in quite some time. This in and of itself demonstrates a heightening in competition, not a restriction. And at http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf Now please tell me where and why Wallace goes wrong regarding serious anti-competitive effects of the GPL license when used by a cartel of competitors to pool and cross license predatory price fixed intellectual property with the sole objective to eliminate free market competition. The central fact is very simple: there is no price-fixing in the GPL. The conflation between the copyright assets and the physical media is not, in this specific case, illegitimate. Since any distributor can fix any price for the distribution of the software, no price is fixed for the *distribution* of the software. And what competition law cares about is the price fixing of the *distribution*. It does not matter much if a price is fixed on one specific legal act if the price of the economic transactions involved are still completely free. Nobody can require Red Hat to give out RHEL for free because it entered a GPL agreement. This proves RH fixes it's own prices, and is not bound by a price-fixing agreement. On a sidenote, I am highly amused to see that RH and Novell have a marxist-leninist agenda. quote author=Stallman In the GNU Project, discrimination against proprietary software is not just a policy -- it's the principle and the purpose. Proprietary software is fundamentally unjust and wrong, so when we have the opportunity to place it at a disadvantage, that is a good thing. /quote That is what competition is about. When MS can place free software at a disadvantage, it tries to do so to. That's the magic of competition. It is not illegal per se. Also, please stop CCing people. I am subscribed to the list and don't need your answers twice. signature.asc Description: Digital signature
Re: EU antitrust is also cool (was: A new practical problem...)
On 2/15/06, Yorick Cool [EMAIL PROTECTED] wrote: On Wed, Feb 15, 2006 at 11:28:22AM +0100, Alexander Terekhov wrote: On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] Assuming you mean the FSF and/or GNU project, with whom are they entering onto agreement? Mmmmh? I mean the GPL license. The GPL is a text, not an undertaking you can sue under art. 81. Which are the undertakings entering an unlawful agreement? Next stupid question, please. Are you really educated in (some) law? [...] The problem is that the GPL does not restrict competition, but rather enhances it. See, among others, the very good article Ville sent you. Not entirely bad article, I agree. I just don't find his argumentation convincing. See also the very simple fact that GNU/Linux is the first serious competitor to MS Windows to emerge in quite some time. This in and of itself demonstrates a heightening in competition, not a restriction. Fighting competition by employing unlawful means is illegal. Wallace didn't sue Apple and Darwin folk for foreclosing competition using predatory price fixing of pooled and cross-licensed IP with the BSD. Because the BSD doesn't price fix IP, I gather. [...] The central fact is very simple: there is no price-fixing in the GPL. Mikko Välimäki seems to disagree. The conflation between the copyright assets and the physical media is not, in this specific case, illegitimate. ... Well, we'll see. Also, please stop CCing people. I am subscribed to the list and don't need your answers twice. Please learn how to set up followup-to if it bothers you. regards, alexander.
Re: EU antitrust is also cool (was: A new practical problem...)
On 2/15/06, Ville Oksanen [EMAIL PROTECTED] wrote: clip Dr. Mikko Välimäki has a quite nice article on the topic: Mikko Välimäki: Copyleft Licensing and EC Competition Law, forthcoming in European Competition Law Review 3/2006 http://www.valimaki.com/org/open_source_competition.pdf day5done (some folks believe that he is Wallace) commented: -- It appears Dr. Välimäki is as objective and unbiased in Europe as Eben Moglen is in the United States. Ever see anyone author and sell a book on open source licensing that didn't fervently believe in the self-promoting assumptions surrounding open source software? Order a print copy from Amazon or directly from us by filling in an order form or emailing your name, address and the number of copies wanted. We will process the order within 48 hrs and send the book with payment instructions. Direct order is preferred for European customers. The price of one copy is 39 EUR plus shipping charges (5 EUR for one copy to Europe). http://pub.turre.com/ bio: Mikko Välimäki, LL.M., Ph.D, is a research fellow at Swedish School of Economics and Business Administration, Helsinki. He also teaches technology and intellectual property law at the Helsinki University of Technology. Mr. Välimäki has consulted especially software companies and is the author of a book on open source licensing (available at http://pub.turre.com/). Previously, Mr. Välimäki has been a visiting scholar at the University of California, Berkeley. He is a co-founder and former chairman of Electronic Frontier Finland. The open source community and its proponents are one giant, homogeneous, self-promoting hairball. -- regards, alexander.
Re: EU antitrust is also cool (was: A new practical problem...)
On 2/15/06, Ville Oksanen [EMAIL PROTECTED] wrote: clip Dr. Mikko Välimäki has a quite nice article on the topic: Mikko Välimäki: Copyleft Licensing and EC Competition Law, forthcoming in European Competition Law Review 3/2006 http://www.valimaki.com/org/open_source_competition.pdf Thanks. So far, there is no evidence that open source licensors would use these obligations with malicious intention trying to turn all software into open source. Oh really? http://groups.google.com/group/misc.int-property/msg/ea7b34ddbe4f175a - GPL Hollaaring by: walter_oak_night01/27/06 03:04 pm ICE on automatic aggregation of software copyrights In fact, the GPL itself rejects any automatic aggregation of software copyrights under the GPL simply because one program licensed under the GPL is distributed together with another program that is not licensed under the GPL: In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License. Linux kernel v. application And as the copyright notice in the kernel sources says, user applications are not subject to the GPL. Supported by Hollaar: With dynamically-linked libraries, the application program being distributed is no longer a compilation that includes the library. Because the library is not being distributed with the application program, no permission is needed from the copyright owner of the library for the distribution to users. Users must, of course, be authorized to use the library, but if they are owners of a copy of the library, under Section 117 they can make any adaptations of the library necessary to use it with the application program. FSF GPL FAQ I'd like to modify GPL-covered programs and link them with the portability libraries from Money Guzzler Inc. I cannot distribute the source code for these libraries, so any user who wanted to change these versions would have to obtained those libraries separately. Why doesn't the GPL permit this? …. http://www.gnu.org/licenses/gpl-faq.html#MoneyGuzzlerInc FAQ as Fact In 2002, a company named Global Technologies Ltd (now defunct) had ported some 4.5M lines of GPL/BSD and other open source code to Windows using ATT Uwin. They claimed less than 500 lines had to be changed and all changes went back to original authors. The binaries were distributed from their web site, but one day disappeared. My $50.00 check for a CD distribution of the binaries and source, which indicated $25 gift to FSF, was returned with a letter explaining Moglan threatened legal action for violating the GPL because the code was linked with ATT uwin's proprietary posix.dll that provided the POSIX interface on windows. Hollaar disagress Some have claimed that an application program that needs a library for its operation is a derivative work of that library. They take that position because the application program is based on the library because it was written to use the subroutines and other aspects of the library. Such a position is misplaced No other conclusion makes sense. If it were not the case, then any program using the applications program interfaces (APIs) of an operating system could be considered a derivative work of that operating system. And, under the exclusive right to prepare derivative works, the copyright owner of an operating system such as Microsoft Windows could control who was allowed to write programs for that operating system. What was that automatic rejection again? - - Re: GPL Hollaaring FAQ or Fiction by: walter_oak_night01/27/06 03:56 pm Moglen got on the phone, resulting in both of the attorneys backing out of publicly discussing a moot court argument involving a scenario wherein a company used GPL software with a dynamically linked library, and wherein an issue would have been whether the DLL was then subsumed under the GPL. Darn. Would have been interesting. Beyond the Basics: Advanced Legal Topics in Open Source and Collaborative Development in the Global Marketplace When: Tuesday, March 21, 2006, 8:30 a.m. - 5:30 p.m. http://www.law.washington.edu/lct/Events/FOSS/ Appellate Argument Moot: The Scope of Derivative Works under an Open Source Software License Respected FOSS experts will argue the proper scope of a derivative work under U.S. copyright law, as applied to reuse of software source code, before a distinguished panel of federal appeals court judges: * Honorable William C. Bryson, U.S. Court of Appeals for the Federal Circuit * Honorable Haldane Robert Mayer, U.S. Court of Appeals for the Federal Circuit * Honorable Margaret McKeown, U.S. Court of Appeals for the Ninth Circuit This simulated appellate argument will permit some of the most difficult issues facing practitioners to be debated fully and vigorously. The oral argument will be preceded by an optional one-hour analysis of the legal and
Re: EU antitrust is also cool (was: A new practical problem...)
Alexander Terekhov wrote: On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] First off, hello. Hello Yorick. What is your educated opinion regarding the GPL being in trouble re http://europa.eu.int/comm/competition/legislation/treaties/ec/art81_en.html? Germany (which part of the EU) has declared the GPL legal. See http://lwn.net/Articles/73848/ what would you like more? P.S. You know this article since I read a comment of you about it. You were saying that the juge was wrong. I wonder what is right for you... Olive -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: EU antitrust is also cool (was: A new practical problem...)
On Wed, Feb 15, 2006 at 03:23:33PM +0100, Alexander Terekhov wrote: On 2/15/06, Yorick Cool [EMAIL PROTECTED] wrote: On Wed, Feb 15, 2006 at 11:28:22AM +0100, Alexander Terekhov wrote: On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] Assuming you mean the FSF and/or GNU project, with whom are they entering onto agreement? Mmmmh? I mean the GPL license. The GPL is a text, not an undertaking you can sue under art. 81. Which are the undertakings entering an unlawful agreement? Next stupid question, please. Are you really educated in (some) law? Check for yourself. http://www.fundp.ac.be/universite/personnes/page_view/01005395/ Sorry it's in french (the website has just been revamped), but I guess you'll get the gist of it. A hint: logiciels libres means free software. It is far from being a stupid question. Before saying the GPL is tantamount to price-fixing, you have to at least state who concluded the price-fixing agreement you consider the GPL to be. I'll concede to you it is elementary, (competition law, day one), but you are the one who hasn't done it, not me. [...] The problem is that the GPL does not restrict competition, but rather enhances it. See, among others, the very good article Ville sent you. Not entirely bad article, I agree. I just don't find his argumentation convincing. Just like I don't find Wallace's argument convincing. See also the very simple fact that GNU/Linux is the first serious competitor to MS Windows to emerge in quite some time. This in and of itself demonstrates a heightening in competition, not a restriction. Fighting competition by employing unlawful means is illegal. Wallace didn't sue Apple and Darwin folk for foreclosing competition using predatory price fixing of pooled and cross-licensed IP with the BSD. Because the BSD doesn't price fix IP, I gather. When a certain practice actually heightens competition (and fills other criteria I have stated elsewhere), it is not unlawful. That is my whole point. [...] The central fact is very simple: there is no price-fixing in the GPL. Mikko Välimäki seems to disagree. You forgot to read the end of his reasoning. After having accepted the idea that one might argue that the GPL might be seen as price-fixing because of the zero royalties, he states -- just like I do -- that fixing zero royalties is not the same thing as fixing a zero price A royalty-free requirement does not imply that the price of the software must be zero. Software can be priced through other means than copyright royalties as well. The conflation between the copyright assets and the physical media is not, in this specific case, illegitimate. ... Well, we'll see. Yep. Also, please stop CCing people. I am subscribed to the list and don't need your answers twice. Please learn how to set up followup-to if it bothers you. Nah, I'll just invoke the code of conduct, which allows me not to bother. Code of conduct When using the Debian mailing lists, please follow these rules: (...) * When replying to messages on the mailing list, do not send a carbon copy (CC) to the original poster unless they explicitly request to be copied. Yorick signature.asc Description: Digital signature
Re: EU antitrust is also cool (was: A new practical problem...)
On 2/15/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] Are you really educated in (some) law? Check for yourself. http://www.fundp.ac.be/universite/personnes/page_view/01005395/ Sorry it's in french (the website has just been revamped), but I guess you'll get the gist of it. A hint: logiciels libres means free software. Cool. Let me guess: Master in Free Software Law? [...] You forgot to read the end of his reasoning. After having accepted the idea that one might argue that the GPL might be seen as price-fixing because of the zero royalties, he states ... http://groups.google.com/group/gnu.misc.discuss/msg/77958a74761c9565 regards, alexander.
Re: EU antitrust is also cool (was: A new practical problem...)
Alexander Terekhov [EMAIL PROTECTED]wrote: What is your educated opinion regarding the GPL being in trouble re http://europa.eu.int/comm/competition/legislation/treaties/ec/art81_en.html? First of all, the GPL clearly qualifies for the paragraph 3 exception, because is promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, etc. It almost certainly doesn't fall under paragraph 1 anyway, because it doesn't have as their object or effect the prevention, restriction or distortion of competition within the common market. I'm not even sure if it falls in the category of agreements between undertakings, decisions by associations of undertakings and concerted practices. It quite clearly doesn't fall under clauses 1(b,c,d,e); and there's substantial evidence from the commercial companies selling GPL software that it doesn't fall under 1a directly or indirectly fix purchase or selling prices or any other trading conditions. So, uh, was that a troll or what? -- Nathanael Nerode [EMAIL PROTECTED] [Insert famous quote here] -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: EU antitrust is also cool (was: A new practical problem...)
On Tue, Feb 14, 2006 at 05:17:25PM +0100, Alexander Terekhov wrote: On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] First off, hello. Hello Yorick. What is your educated opinion regarding the GPL being in trouble re http://europa.eu.int/comm/competition/legislation/treaties/ec/art81_en.html? I promised myself not to feed trolls, but just out of curiosity, which are the undertakings entering into illicit agreements under art. 81? Assuming you mean the FSF and/or GNU project, with whom are they entering onto agreement? Mmmmh? Also, please have a look at 81 § 3. I'll also let you know that you have to demonstrate a negative effect on the european market to win a case on art. 81 §1. Good luck with that. My educated opinion is hence that art. 81 is not a problem with regard to art. 81. The GPL is a contract between a producer and a buyer of goods, not between producers, and is not in any regard price-fixing. Funnily enough, I have just been asked to write upon the subject, but have declined to a career change I'm considering. signature.asc Description: Digital signature
