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Re: Wallace's reply brief

From: Alexander Terekhov
Subject: Re: Wallace's reply brief
Date: Fri, 04 Aug 2006 10:12:35 +0200

Ferd Burfel wrote:
> Ah, so we finally hit upon your disagreement with the GPL:  It doesn't allow
> people to take the work of others (that they obtained for no charge) and
> turn around and make a commerical product out of it.  And I suppose you


> think that if Wallace is somehow successful in his endeavor, the GPL will
> somehow be magically nulled and voided, and those that wish will be free to
> profit from the exGPL code.  As if the copyrights on that code are somehow
> dissolved as well.

Sort of.

> But you know....the GPL is used voluntarily, not just by IBM, Redhat and
> Novell, but by many other companies and individuals.  No one forces them to
> license their code under it, they might just as well license it under the
> CPL/EPL/BSD, etc.  But they don't, and Wallace will have a hard time suing
> everyone that ever used the GPL.

He doesn't have to.

> Which brings us back to "non-parties" and such:  (IBM Brief, Footnote 7)"The
> existence of so many distributors of GPL software other than the three
> defendants named here also raises serious questions whether the injunction
> plaintiff seeks could be effective in preventing the use of the Linux
> operating system, as those NOT A PARTY to this case would clearly not be
> bound by any such injunction."  (emphasis added) So any injunction against
> IBM would not apply to, say Debian, Ubuntu, etc.  Wallace would have
> to sue all of them as well.

Not really. It appears that defendants are beginning to realize that the 
[L]GPL code base is going to stay in quasi public domain (penalty for IPR 
misuse until misuse is purged) for quite some time, if not forever (until 
IPR expiration and entrance into real public domain). 

> Oh, and I "get it", I undertand what Wallace wants, or at least what he says
> he wants.  He wants nasty old IBM, Redhat, and Novell to stop releasing
> software under the GPL because it "prevents Plaintiff Daniel Wallace from
> marketing his own computer operating system as a competitor".  The problem
> with that argument, as has been pointed out to Wallace, by a real live judge
> is that "as alleged, the GPL in no way forecloses other operating
> systems from entering the market. Instead, it merely acts as a means by
> which certain software may be copied, modified and redistributed without
> violating the software's copyright protection. As such, the GPL encourages,
> rather than discourages, free competition and the distribution of computer
> operating systems, the benefits of which directly pass to consumers."
> (Wallace v. FSF, Entry Granting Reasserted Motion to Dismiss (Docket No. 34)
> Page 6).  And after reading the CPL/EPL, the main difference I see is the
> commerical clause, so I can only guess that Wallace really wants the same
> thing  you want, to be able to plunder and pillage the work of others for
> your own profit.  Is there really and truly no CPL/EPL/BSD software that can
> compare to that which is GPLed?  Surely the GPL doesn't have a monopoly on
> talented programmers.
> And I'll save some time for both of us.  You will no doubt wish to counter
> with something like: "The court understands Mr. Wallace's argument that the
> GPL may be preventing him from marketing his own operating system, and, for
> the purposes of the instant motion, accepts that allegation as true.",
> (Wallace v. FSF, Entry Granting Reasserted Motion to Dismiss (Docket No. 34)
> Page 6), you will no doubt "accidently" neglect to add "However, while this
> may be significant enough from Mr. Wallace's perspective, a plaintiff must
> prove not only an injury to him or herself, but to the market as well, which
> Mr. Wallace has failed to do."

Yeah, and he even managed to tell the Congress to replace copyright with
copyleft (based on VP-at-coconspirator-MontVista's article hailing the GPL). 

Drunken Tinder.

> Now, Redhat/Novell's brief is quite compelling as well, wherein they assert
> that since Wallace lost (even after 4 amended complaints) basically the same
> case against FSF, his case against IBM is dead as well.  I agree.

Ah that. Silly "estoppel".

There was a plenty of time to raise "estoppel" BEFORE the Final Judgment was 
entered in the IBM et al. case (same as with respect to submission of Final 
Judgment from Tinder -- which they did after their "last" brief).

>From what I gather, in a pre-trial conference the parties (in both cases) 
decided not to join the two cases and agreed to let the FSF case live or die 
on its own merits. If it (the FSF case) lived they would join the two suits 
and if it died Wallace would not appeal FSF and they would proceed on the 
merits of IBM et al. (One injunction is as good as a thousand).

Because they did not want to mention the agreement, the sneaky bastards did 
not even mention "estoppel" to the district court in IBM et al. concerning 
the FSF case.

Instead they waited until time ran out to appeal the FSF case and then raised 
"estoppel" on appeal for the first time. (Where obviously the Appeals Court 
was unaware of the agreement.)

"Typically, we do not reach the merits of arguments raised for the first time 
on appeal, e.g., Perry v. Sullivan, 207 F.3d 379, 383 (7th Cir. 2000), and we 
discern no special circumstances that would counsel in favor of us doing so 
here."; Wilkinson, Mark v. Cowan, Roger D. Docket Num. 99-1220, (7th Cir. 2000)

Apart from that...


Under the doctrine of collateral estoppel, the final judgment in the FSF
Action precludes the relitigation of the issue of antitrust injury here.2 [O]nce
an issue is actually and necessarily determined by a court of COMPETENT
JURISDICTION, that determination is conclusive in subsequent suits based on a
different cause of action involving a party to the prior litigation. Montana v.
United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979);
see also Cohen v. Bucci, 905 F.2d 1111, 1112 (7th Cir.1990) (holding that
collateral estoppel, based on bankruptcy court s prior judgment, barred
subsequent action because [i]ssue preclusion applies to a question that has
been actually litigated and determined by a VALID and final judgment,


The final judgment in Wallace v. Free Software Foundation, Inc.
constitutes a VOID judgment under Seventh Circuit precedent. Judge
Tinder granted dismissal [Red Hat and Novell’s Supp. App. at 12]
pursuant to F.R.Civ.P. Rule 12(b)(6) for failure to state a claim upon
which relief can be granted although the reason given was lack of
“antitrust injury” (lack of standing). In the Seventh Circuit, since the
decision in Frederiksen v. City of Lockport, 384 F.3d 437 at 438 (7th Cir.
2004), issues of standing are required to be dismissed pursuant to
F.R.Civ.P. Rule 12(b)(1) for lack of subject matter-JURISDICTION.

Got it now, Burfel?


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