Re: EASTERBROOK's "quick look" on the GPL and Wallace's claim

[Alexander Terekhov]

> --------------------
> In the
> United States Court of Appeals
> For the Seventh Circuit
> ____________
> No. 06-2454
> DANIEL WALLACE,
> Plaintiff-Appellant,
> v.
> INTERNATIONAL BUSINESS MACHINES
> CORPORATION; RED HAT, INC.; and
> NOVELL, INC.,
> Defendants-Appellees.
> ____________
> Appeal from the United States District Court for the
> Southern District of Indiana, Indianapolis Division.
> No. 1:05-cv-678 RLY-VSS—Richard L. Young, Judge.
> ____________
> SUBMITTED OCTOBER 26, 2006—DECIDED NOVEMBER 9, 2006
> ____________
> Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
> EASTERBROOK, Circuit Judge. Does the provision of

Easterbrook, Predatory Strategies and Counterstrategies, 1981:

"If there is any room in antitrust law for rules of per se legality, one 
should be created to encompass predatory conduct. The antitrust offense 
of predation should be forgotten"

That's in the context of section 2, I gather. He condemned price fixing 
(section 1 offense) back then.

"although a given price reduction or addition to plant could be predatory, 
it almost certainly is not. Similarly, price fixing or territorial 
allocation could be beneficial, but they almost certainly are not."

So, since he doesn't believe in predation, "could be beneficial" is meant 
to cover price fixing at predatory (below cost) level... and hence his 
amazingly absurd reasoning ("maximum" with no way to go lower, "donations 
of time" to cover costs etc. etc.) in Wallace case. How more silly could 
one get?

Oh, BTW, EASTERBROOK on Value of Freedom:

http://appellatedecisions.blogspot.com/

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This Seventh Circuit appeal involves a defendant who fled rather than 
face a five-year sentence for securities fraud. Fifteen years later, 
the FBI found defendant Alfred Elliott living in Arizona under an 
assumed identity. Although Elliott insisted that he was not the man 
that the FBI was seeking, the agents were not at all dissuaded from 
taking him into custody, and Elliott was sentenced to 21 months to be 
served after his original sentence.

On appeal, the Court affirms his conviction but vacates his sentence.
Writing for the Court, Judge Easterbrook accepts Elliott’s argument that
the district court erred in finding that his lies to the FBI merited an
enhancement for obstruction, since the agents were not fooled by his
ruse. Indeed, Elliott’s "lies had no more effect than if he had started
yodeling, hoping that the agents would leave to avoid the assault on
their aesthetic sensibilities."

But Elliott will likely rue this victory, because Judge Easterbrook
urges the district court to give Elliott a higher sentence on remand. He
argues that 21 months is too small a price to pay for the fifteen years
of freedom that Elliott enjoyed prior to his recapture. In an analysis
that could only have come from the federal courts’ most diehard law and
economics scholar, Judge Easterbrook reasons,

"Time served in future years must be discounted to present value. As a
deterrent, a 50% chance of serving five years starting 15 years from now
must have less than 25% the punch of five years, with certainty,
starting right now. This represents only a modest discount (about 5% per
annum); many people discount the future even more steeply."

Following this line of argument, Judge Easterbrook concludes that a 21
month sentence will actually encourage rather than deter would-be
fugitives:

"[T]he expected value of the additional sentence—21 months starting in
20 years, but only if caught—must be discounted even more steeply than
the 75% we calculated for the principal sentence. Make it an 80%
discount: a 50% probability of serving an extra 21 months, starting 20
years from now, has the same disutility as a threat of 4 months with
certainty starting now. The net effect is that, by taking flight,
Elliott cut the cost of his 60-month sentence to the (1989) equivalent
of 15 months, at the price of a (1989) equivalent of 4 extra months. 
Who wouldn’t trade a 60-month sentence for a 19-month sentence (15 + 4
months in 1989-equivalent terms)? No wonder Elliott absconded."

Sorry, Mr. Elliott. You definitely drew the wrong panel for your
sentencing appeal.
-------

He he.

regards,
alexander.