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Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)

From: Alexander Terekhov
Subject: Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Date: Tue, 21 Mar 2006 13:49:27 +0100

< added >

David Kastrup wrote:
> appealing this dismissal is not going to be too easy, ...

Oh really? Judge Tinder just made a dull point that "... 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. Prof’l Sports Ltd. P’ship v. Nat’l Basketball 
Assoc., 961 F.2d 667, 669 (7th Cir. 1992). And “whenever the 
plaintiff and consumers have divergent rather than congruent 
interests, there is a potential problem in finding ‘antitrust 
injury’. . . . 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 Mem’l Hosp., Inc. 
v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1334 (7th Cir. 1986). 
Mr. Wallace has not alleged that anyone interfered with his 
freedom to compete in computer software market by creating his 
own operating system, one perhaps with features different from, 
or in addition to, that of the GNU/Linux operating system. Indeed, 
Mr. Wallace has that ability, regardless of whether the GPL is in 
force or not." and failed to address Wallace's arguments on proper 
antitrust injury.

I suggest you go read

"This article deals with the ... doctrine of antitrust injury, a 
concept that the lower courts have often found difficult to 
understand and apply."

I don't think that Judge Tinder has understood and applied it 
properly in Wallace's case given that Wallace has alleged 
predatory pricing to begin with.

"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)."


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