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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 20:49:06 +0100

David Kastrup wrote:
> So your pseudo-quote about "price-fixing at zero" was a plain lie.

Oh dear.

"A. Vertical maximum price restraints are not per se unlawful.

The essence of Plaintiff's Complaint appears to be directed at 
Section 2(b) of the GPL, which requires licensees of GPL’d software 
to license any derivative works they create at no charge. Assuming 
for the sake of argument that Plaintiff has standing to bring this 
Complaint, this agreement could be analogized to a vertical maximum 
price restraint, i.e., a requirement by the licensor that the 
licensee charge no more than X amount upon relicense."

                                -- FSF

Can you read "price restraint" and "no more than X" (X == zero)?

"In the provision relevant here, the GPL directs users to “cause 
any work that [they] 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.” (GPL 3.) This language indicates that 
the GPL is typically entered into between licensees and licensors, 
with the intent of prohibiting licensees from charging a fee for 
use of certain computer software programs. This scheme, which 
involves an agreement among different levels of users within the 
same chain of distribution, is a vertical agreement. And as a 
vertical agreement, the GPL alone cannot form the basis of a per 
se violation of Section 1 of the Sherman Act. See State Oil Co. 
v. Khan, 522 U.S. 3, 22 (1997) (“vertical maximum price fixing, 
like the majority of commercial arrangements subject to antitrust 
laws, should be evaluated under the rule of reason.”). Therefore, 
the court must turn to whether Mr. Wallace has adequately alleged 
that the GPL violates the rule of reason."

                                -- Judge Tinder

Can you read "prohibiting licensees from charging a fee" and "price 


P.S. "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."

                            -- Supreme Court of the United States

P.P.S. "Mr. Wallace adds a section in the Fourth Amended Complaint 
entitled “INJURY,” in which he states that the predatory price 
fixing scheme ... the court finds that Mr. Wallace’s Fourth Amended 
Complaint does not adequately allege an antitrust injury upon which 
his Section 1 claim may move forward. The complaint therefore must 
be dismissed."

                            -- Judge Tinder, erred

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