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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: Thu, 22 Jun 2006 14:52:26 +0200

David Kastrup wrote:
> And when cross-licensing or pooling arrangements are not mechanisms to
> accomplish naked price fixing or market division, they aren't.  There
> is no naked price fixing going on, since the various Linux
> contributors sell distributions at a wide variety of price tags.

You either mean that various violators of the GPL simply fail to 
adhere to the GPL "no charge" price-fixing restriction, or, most 
likely, once again attempt to conflate price fixing in IP rights 
with "variety of price tags" in services, physical copies, and 
whatnot which is all besides the point (apart from proving "a 
dangerous probability" that GPL conspirators will "recoup[ ] its 
investment in below-cost prices" (Brooke Group, 509 U.S. at 224) 
in IP).

> > Another possible anticompetitive effect of pooling arrangements may
> > occur if the arrangement deters or discourages participants from
> > engaging in research and development, thus retarding innovation. For
> > example, a pooling arrangement that requires members to grant
> > licenses to each other for current and future technology at minimal
> > cost may reduce the incentives of its members to engage in research
> > and development because members of the pool have to share their
> > successful research and development and each of the members can free
> > ride on the accomplishments of other pool members.
> But there is nothing which forces members to share their successful
> research and development unless they _deliberately_ decide to use it
> in the context of GPLed software.

The defendants claim an uncoordinated and unrelated unilateral use of
the GPL agreement. The Supreme Court has addressed this disingenuous
type of claim:

“As this Court stated in the Interstate Circuit case (page 227 of 306
U.S., page 474 of 59 S.Ct.): 'It is elementary that an unlawful
conspiracy may be and often is formed without simultaneous action or
agreement on the part of the conspirators. ... Acceptance by
competitors, without previous agreement, of an invitation to participate
in a plan, the necessary consequence of which, if carried out, is
restraint of interstate commerce, is sufficient to establish an unlawful
conspiracy under the Sherman Act.' And as respects statements of various
appellees that they did not intend to join a combination or to fix
prices, we need only say that they 'must be held to have intended the
necessary and direct consequences of their acts, and cannot be heard to
say the contrary.' United States v. Patten, 226 U.S. 525, 543, 33 S.Ct.
316 U.S. 265 (1942) 


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