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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: Fri, 24 Mar 2006 14:44:52 +0100

David Kastrup wrote:
> How do you suppose the GPL leads to less competition

"We construct a protected commons, in which by a trick, an irony, the 
 phenomena of commons are adduced through the phenomena of copyright, 
 restricted ownership is employed to create non-restricted, self-
 protected commons. The GPL ..."

"So, we now find ourselves, if you will permit me, projected 
 approximately twenty-five to thirty years into the future. Software 
 is a service, a public utility, being produced primarily by people we 
 presently call ``students,'' doing something we presently call 
 ``learning.'' The primary services being sold in the Capitalist 
 economy with respect to software are project management, 
 indemnification [aha ha ha], distributional customization, and 
 tailoring, piece by piece, to the individual needs of consumers."

"Now we have forty percent of the server market. We're going to have 
 a hundred percent of the appliance market within five years. That's 
 a trivial economic deduction ..."

Or do you disagree with the your fellow GNUtian Number Two and coauthor 
of the GPL v3, dak?

Well, we'll see how the Judge Young will deal with the GPL and Wallace's

If Judge Young in the IBM case reads and considers Wallace's 2nd Answer 
Brief I am confident that the Motion to Dismiss will be denied.

If the Judge refuses to even read the plaintiff's Answer Brief as Judge 
Tinder obviusly did then it's probably over.

There is an interesting 2003 case in which Judge Young was appealed to 
the Seventh Circuit. In that case, the Seventh Circuit noted that a 
predatory pricing allegation constitutes an allegation of antitrust 

"An underlying question regarding this tying claim is whether the 
plaintiffs have suffered an antitrust injurym as a result. Suits cannot 
be brought under § 4 of the Clayton Act unless “a private party is 
adversely affected by an anticompetitive aspect of the defendant’s 
conduct.” Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 339 
(1990) (citing Brunswick, 429 U.S. at 487) (emphasis in original). 
Neither plaintiff claims that the prices that ProLiance charged for 
the gas itself or its transportation were predatory, or that ProLiance 
somehow injured its customers by charging excessive prices for either 
gas transportation or gas.

. . . That the plaintiffs’ losses stem from this behavior and not 
behavior that is anticompetitive, e.g., predatory pricing, means that 
they cannot make a tying claim against ProLiance that can withstand a 
motion to dismiss, since “the antitrust laws do not require the courts 
to protect small businesses from the loss of profits due to continued 
competition, but only against the loss of profits from practices 
forbidden by the antitrust laws.” Cargill, 479 U.S. at 116; see also 
Atl. Richfield, 495 U.S. at 340-41; Jefferson Parish, 466 U.S. at 14. "; 
Midwest Gas Services, Inc. v. Indiana Gas Co., 317 F.3d 703 (7th Cir.), 
cert. denied, 540 U.S. 817 (2003)"

If I were Wallace I'd add "GPL incompatible" boycott scheme to the 
mix right from the beginning... and file together with some victim 
(there are many).

Summit Health concerned the allegations by ophthalmologist/eye 
physician Pinhas that Summit Health, Midway Hospital Medical Center, 
its medical staff and others had entered into a conspiracy to drive 
Pinhas out of business so that other ophthalmologists and eye 
physicians, including four of the defendants, will have a greater 
share of the eye care and ophthalmic surgery in Los Angeles.

The Supreme Court held that "[Plaintiff] Pinhas' allegations satisfy 
the Act's jurisdictional requirements. To be successful, Pinhas need 
not allege an actual effect on interstate commerce. Because the 
essence of any Section 1 violation is the illegal agreement itself, 
the proper analysis focuses upon the potential harm that would ensure 
if the conspiracy were successful, not upon actual consequences. And 
if the conspiracy alleged in the complaint is successful, as a matter 
of practical economics there will be a reduction in the provision of 
ophthalmological services in the Los Angeles market. Thus, petitioners 
[i.e., defendants] erroneously content that a boycott of a single 
surgeon, unlike a conspiracy to destroy a hospital department or a 
hospital, has no effect on interstate commerce because there remains 
an adequate supply of others to perform services for his patients. 
This case involves an alleged restraint on the practice of 
ophthalmological services accomplished by an alleged misuse of a 
congressionally regulated peer review process, which has been 
characterized as the gateway controlling access to the market for 
Pinhas' services. When the competitive significance of respondent's 
exclusion from the market is measured, not by a particularized 
evaluation of his practice, but by a general evaluation of the 
restraint's impact on other participants and potential participants 
in that market, the restraint is covered by the Act. Pp. 328-333."


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