[Top][All Lists]

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: Competing Robin Hood Linux

From: Alexander Terekhov
Subject: Re: Competing Robin Hood Linux
Date: Mon, 06 Nov 2006 10:26:27 +0100

Merijn de Weerd wrote:
> On 2006-11-06, Alexander Terekhov <> wrote:
> > We still believe that we will be the dominant player in the Linux
> > market, because by that time there won't be any other Linux players.
> > ------
> >
> > Hm... is this an invitation for Wallace to file another action under
> > Sherman Act 2 monopolization (in addition to his current section 1

Section 2. Monopolizing trade a felony; penalty

Every person who shall monopolize, or attempt to monopolize, or 
combine or conspire with any other person or persons, to monopolize 
any part of the trade or commerce among the several States, or with 
foreign nations, shall be deemed guilty of a felony, and, on 
conviction thereof, shall be punished by fine not exceeding 
<very many millions> if a corporation, or, if any other person, 
<less>, or by imprisonment not exceeding <many years>, or by both 
said punishments, in the discretion of the court.

> > action)?
> This is stupid even for you. There's nothing illegal about
> having a dominant position in a market. 

Sure, if you don't break the law in the process (trying to obtain or
maintain a dominant position in a market). The essence of Wallace's 
complaint is that the GPL does break the law being an illegal predatory
IP price fixing restraint (let's put aside MS workaround to monetize 
MS patents while not contributing anything to the GPL pool and 
distributing only coupons for the Novell's distro to which they've 
attached a patent pledge for Novell's paying customers). Got it now?

Proof that a profit-maximizing firm took predatory action should
suffice to demonstrate the threat of substantial exclusionary effect;
to hold otherwise would be to ascribe irrational behavior to the
defendant. Moreover, predatory conduct, by definition as well as by
nature, lacks procompetitive business motivation. See Aspen Skiing,
472 U.S. at 610-11 (evidence indicating that defendant's conduct was
"motivated entirely by a decision to avoid providing any benefits" to
a rival supported the inference that defendant's conduct "was not
motivated by efficiency concerns"). In other words, predatory behavior
is patently anticompetitive. ... Microsoft has no intention of ever
charging for licenses to use or distribute its browser. Id. ¶¶ 137-38.
Moreover, neither the desire to bolster demand for Windows nor the
prospect of ancillary revenues from Internet Explorer can explain the
lengths to which Microsoft has gone. In fact, Microsoft has expended
wealth and foresworn opportunities to realize more in a manner and to
an extent that can only represent a rational investment if its purpose
was to perpetuate the applications barrier to entry. Id. ¶¶ 136,
139-42.  Because Microsoft's business practices "would not be
considered profit maximizing except for the expectation that . . .
the entry of potential rivals" into the market for Intel-compatible
PC operating systems will be "blocked or delayed," Neumann v.
Reinforced Earth Co., 786 F.2d 424, 427 (D.C. Cir. 1986), Microsoft's
campaign must be termed predatory. Since the Court has already found
that Microsoft possesses monopoly power, see supra, § I.A.1, the
predatory nature of the firm's conduct compels the Court to hold
Microsoft liable under § 2 of the Sherman Act.


reply via email to

[Prev in Thread] Current Thread [Next in Thread]