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Wallace case FAQ for dummies v1.3
Wallace case FAQ for dummies v1.3
Tue, 04 Jul 2006 13:05:36 +0200
(This is regular posting. Acknowledgments: aim_here2002)
Q: What the fuck ... !?
A: The context is property. Intangible intellectual property (rights
granted under IP license). IP goods. Property in short.
Q: Gack, but according to RMS, "intellectual property... is a mirage,
which appears to have a coherent existence only because the term
suggests it does." So what the fuck ... !?
A: Well, well, well. But according to one FTC commissioner (and an
antitrust attorney), it is not quite a mirage. "One fundamental
question in this area is whether intellectual property is like
other property for purposes of antitrust analysis. In considering
this question, it seems to me that we should keep in mind some
obvious principles. First, intellectual property is property,
that is to say, it belongs to someone who has the right to
exclude others from using it without his or her consent. Second,
intellectual property has attributes that distinguish it from
personal property and real property -- that is why we have a
different word for it. For example, the enforcement of an owner's
exclusive right to use physical property may be accomplished
more easily, as a practical matter, than enforcement of an
exclusive intellectual property right. Antitrust enforcers should
certainly remain open to considering new ideas about how the
rights associated with intellectual property can and should be
distinguished from the ownership of tangible property in the
analysis of antitrust liability. But for now, it seems fair to
say that for antitrust purposes, intellectual property is
generally treated like other forms of property. Let me add one
qualifier to this general principle, which I hope is not too
confusing. To the extent that intellectual property differs from
other property, such as the duration of the property right, that
difference is a fact that is considered along with all other
facts in an antitrust analysis."
Q: What price restrictions?
A: Property price restrictions.
Q: What 'price'? Define 'price'.
A: Cost to obtain EXISTING property on buyer's side. Price is fixed
at zero in the case of property locked in the GNU GPL pool (e.g. Guh-
NÜ-slash-Linux, the GPL part of it).
Q: A GPL coder is not compensated?
A: That plus administration overhead, etc. Cost required to create
NEW property (GPL derivative works, additions to GPL collective
works) on seller's side. The GPL fixes the price below cost.
Wallace is claiming antitrust injury from predatory pricing
(pricing below cost) and says that the whole scheme is in
violation of Sherman Act 1.
Q: Okay, but how about explaining who Wallace is, who he's suing,
what gives him the right to sue? (question from aim_here2002)
A: Please visit <www.terekhov.de/Wallace-case.htm>. This is "de
Q: What if Wallace loses on appeal as well?
A: Then you might enjoy Wallace Reloaded (so to speak) featuring
Schwarzenegger, I suppose. "The California Unfair Practices Act,
Bus. & Prof. Code § 17043, prohibits selling a product below its
cost for the purpose of injuring competitors or destroying
competition. Bus. & Prof. Code § 17044 prohibits selling
products as "loss leaders," which § 17030 defines as selling
below cost for the purpose of inducing the purchase of other
merchandise, misleading or deceiving purchasers, or diverting
business from competitors. Cost is statutorily defined for
production as including "the cost of raw materials, labor and
all overhead expenses of the producer." Bus. & Prof. § 17026."
"GNU will remove operating system software from the realm of
competition. You will not be able to get an edge in this area, but
neither will your competitors be able to get an edge over you. You
and they will compete in other areas, while benefiting mutually in
this one. If your business is selling an operating system, you
will not like GNU, but that's tough on you. If your business is
something else, GNU can save you from being pushed into the
expensive business of selling operating systems."
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