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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: Wed, 17 May 2006 22:18:32 +0200

David Kastrup wrote:
[...]
> > Wallace brought forth the GPL. The GPL is his evidence.
> 
> Yes.  No facts compatible with his claim of predatory pricing.

And how do you know? Neither Judge Tinder nor Judge Young addressed
his claim of predatory pricing.
 
>                                                                IBM is
> supposed to be guilty of heeding a license?  And the judge is supposed
> to admit that as a case?

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=495&invol=328

"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."

Now go read what Judge Tinder had to say about the GPL and Wallace's 
claims here:

http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-30.pdf

Pay attention to "vertical maximum price fixing". 

The Judge ruled that PlaintiffÂ’s Third Amended Complaint States a Claim 
Upon Which Relief can be Granted and that PlaintiffÂ’s Allegations 
Sufficiently Set Forth a Violation of the Rule of Reason, but Plaintiff 
Has Not Alleged Antitrust Injury.

And then Wallace has added the claim of predatory pricing to his 
complaint. 

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=495&invol=328

"Although a vertical, maximum-price-fixing agreement is unlawful under 1 
of the Sherman Act, it does not cause a competitor antitrust injury unless 
it results in predatory pricing. 8 Antitrust injury does not arise for 
purposes of 4 of the Clayton Act, see n. 1, supra, until a private party 
is adversely affected by an anticompetitive aspect of the defendant's 
conduct, see Brunswick, 429 U.S., at 487 ; in the context of pricing 
practices, only predatory pricing has the requisite anticompetitive 
effect. 9 See Areeda & Turner, Predatory Pricing and Related [495 U.S. 
328, 340] Practices Under Section 2 of the Sherman Act, 88 Harv. L. Rev. 
697, 697-699 (1975); McGee, Predatory Pricing Revisited, 23 J. Law & Econ. 
289, 292-294 (1980). Low prices benefit consumers regardless of how those 
prices are set, and so long as they are above predatory levels, they do not 
threaten competition."

> There is no case here.

See above.

regards,
alexander.


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