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Re: license issue: calling a GPLv2 library

From: Alexander Terekhov
Subject: Re: license issue: calling a GPLv2 library
Date: Wed, 21 Jun 2006 15:58:43 +0200

Oh dear dak...

David Kastrup wrote:
> Alexander Terekhov <> writes:
> > David Kastrup wrote:
> > [...]
> >> The GPL does not demand _anything_ as long as you are not using
> >> _others'_ property licensed under the GPL.  And then _their_ property
> >> rights chip in, and they are perfectly allowed to give you license
> >
> > Except that the GPL blatantly misstates the scope of property rights
> > under copyright. It pretends that both 17 USC 109 and 117 are simply
> > nonexistent (true in the GNU Republic). Then comes the issue of price
> > fixing at predatory ("no charge") level of pooled IP in derivative
> > and collective works.
> You are babbling.  This sort of babbling constitutes so little in way
> of a coherent argument that it has already been thrown out of court
> (remember Wallace?) in spite of your gleeful appreciation of it.

I'm in good company.

And as for Wallace (his other case is under appeal now), to quote 


There has been some mention in this newsgroup in the past about the
antitrust suit in Indiana regarding the GPL (Daniel Wallace v. Free
Software Foundation, Inc.).

On November 28, 2005, Judge Tinder of the United States District
Court for the Southern District of Indiana dismissed the suit,
because Wallace did not show a recognized antitrust injury.

Wallace has twenty days from the entry of the order to file an
amended complaint alleging an antitrust injury, or the dismissal
will be with prejudice.  (That means it can't be filed again.)

But 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.

The decision is at: 

The judge recognized that "Plaintiff’s Third Amended Complaint States 
a Claim Upon Which Relief can be Granted" and that "Plaintiff’s 
Allegations Sufficiently Set Forth a Violation of the Rule of Reason",
but was fooled to believe that "Plaintiff Has Not Alleged Antitrust 

The district court's error in failure to recognize that allegation
of predatory pricing does establish antitrust injury (and hence 
gives standing to sue***) will be corrected on appeal. I'm sure.

Wallace didn't appeal the FSF case. He waited for Judge Young.

***) The FSF argued:

"... absence of an allegation of harm to consumers is fatal to the 
Complaint. Moreover, even if it were possible for Plaintiff to allege 
some harm to competition in the abstract, Plaintiff has not alleged 
antitrust injury to himself, and thus lacks standing."

And Judge Tinder was simply fooled by that "Moreover" part.

But given the governing law re standing and res judicata, I'd expect 
Wallace to either amend his complaint after appeal and include the 
FSF as new defendant or sue the FSF once again in a separate action.

Media’s principal argument on appeal is that, in entering summary 
judgment on the basis of claim preclusion, the district court erred 
in concluding that the dismissal of Telepresence’s prior action was 
a final adjudication on the merits.  It contends that a dismissal 
for lack of standing is equivalent to a dismissal for lack of 
subject matter jurisdiction, and that a court cannot reach the 
merits of a case if a plaintiff does not have standing to invoke 
the court’s jurisdiction over the matter.  Upper Deck, on the 
other hand, places great weight on the district court’s conclusion 
that the dismissal of Telepresence’s action with prejudice for lack 
of standing was a final adjudication on the merits because a 
dismissal with prejudice creates not only the right to appeal, but 
also the obligation to succeed on appeal to preserve the cause of 
action.  It also contends that Media’s appeal is an improper 
collateral attack on the judgment of the Telepresence action 
because Telepresence did not appeal the earlier judgment.

To be given preclusive effect, a judgment must be a final 
adjudication of the rights of the parties and must dispose of the 
litigation on the merits.  See 18A C. Wright, A. Miller & E. Cooper, 
Federal Practice & Procedure § 4427, at 4-5 (2d ed. 2002).  The 
Ninth Circuit, in common with other federal courts, recognizes that 
standing is a threshold question that must be resolved before 
proceeding to the merits of a case.  L. A. County Bar Ass’n v. Eu, 
979 F.2d 697, 700 (9th Cir. 1992); see also Warth v. Seldin, 422 
U.S. 490, 517-18 (1975) ( “The rules of standing, . . . are 
threshold determinants of the propriety of judicial intervention.”). 
The doctrine of standing limits federal judicial power and has both 
constitutional and prudential components.  See United Food & 
Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 
544, 551 (1996).  Article III standing, like other bases of 
jurisdiction, must be present at the inception of the lawsuit.  
Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5 (1992) 
(plurality opinion) (“[S]tanding is to be determined as of the 
commencement of suit.”); see also Arizonans for Official English v. 
Arizona, 520 U.S. 43, 64, 67 (1997) (holding that standing is an 
aspect of the case or controversy requirement, which must be 
satisfied “at all stages of review”); Keene Corp. v. United States, 
508 U.S. 200, 207 (1993)  (“[T]he jurisdiction of the Court depends 
upon the state of things at the time of the action brought.”).  
Pursuant to Article III, “standing . . . is jurisdictional and not 
subject to waiver.”  Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996).

Because standing is jurisdictional, lack of standing precludes a 
ruling on the merits.  Thus, the district court erred in giving 
preclusive effect to the Telepresence judgment because its dismissal 
of Telepresence’s complaint for lack of standing was not a final 
adjudication of the merits.  Scott v. Pasadena Unified Sch. Dist., 
306 F.3d 646, 653-54 (9th Cir. 2002) (stating that “[w]e must 
establish jurisdiction before proceeding to the merits of the case”); 
Bird v. Lewis & Clark Coll., 303 F.3d 1015, 1019 (9th Cir. 2002) 
(recognizing that before reaching the merits of the case, the court 
must determine the threshold issue of standing); accord H.R. Techs. 
v. Astechnologies, Inc., 275 F.3d 1378, 1384 (Fed. Cir. 2002) 
(“Because lack of standing is not an issue that goes to the merits 
of the underlying patent issues, a dismissal of a complaint for 
lack of standing would not normally be expected to be made with 


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