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Re: Psystar's legal reply brief in response to Apple

From: Alexander Terekhov
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:57:11 -0000

Hyman Rosen wrote:
> Daniel Wallace has has a notable lack of success "explaining"

Take that, Hyman.

"In another relevant paper about the concept of fair use Professor Bell
stated that generally nobody can claim an infringement unless there is a
market that was harmed [Bell1998]

In American Geophysical, eighty-three publishers of scientific and
technical journals joined in a class action copyright infringement suit
against Texaco, alleging that the defendant had made unauthorized
photocopies of individual articles from their [p. 567/p. 568]
publications.[45] Among other defenses, Texaco cited fair use.[46] It
lost in the district court,[47] appealed to the Second Circuit, and lost
yet again.[48]

The outcome of the case turned on the crucial fourth factor of the fair
use defense,[49] which requires a court to consider "the effect of the
use upon the potential market for or value of the copyrighted work."[50]
Citing the district court's findings of fact, the court of appeals held
that the publishers had, with the help of the Copyright Clearance
Center, created "a workable market for institutional users to obtain
licenses for the right to produce their own copies of individual
articles via photocopying."[51] This made it difficult for Texaco to
claim that its unauthorized copying had no impact on revenue the
plaintiffs might have earned from their copyrights. As the court of
appeals explained, "the right to seek payment for a particular use tends
to become legally cognizable under the fourth fair use factor when the
means for paying for such a use is made easier."[52]

Because he disputed whether the plaintiffs had created a workable market
for licensing copies of individual articles, Judge Jacobs dissented.
Absent such a market, he opined, the majority's reasoning ran in
circles: "[T]he market will not crystallize unless courts reject the
fair use argument that Texaco presents; but, under [p. 568/p. 569] the
statutory test, we cannot declare a use to be an infringement unless
(assuming other factors also weigh in favor of the secondary user) there
is a market to be harmed."[53]

The proposed test of "the effect of the use upon the potential market
for or value of the copyrighted work." might be applicable to the case
of any GPL infringement: if the license explicitly denies the
possibility of the creation of a market by allowing free replication and
further redistribution of a product at zero cost, it is impossible to
harm it. 

Paradoxically the same test opens GPL to lawsuits like Daniel Wallace
price fixing lawsuit. He accused FSF of dumping and claims that FSF
engages in price fixing by getting multiple vendors to agree to give
their products away for free. This is anti-competitive, because it
prevents other vendors who don't want to give their products away for
free from entering the market. [EOSM2005]

In it he says the GPL is "slowly destroying the market for independent
software applications" and that the FSF is out "to destroy the
intellectual property value in computer software," drawing the agency's
attention to such FSF-produced collateral as the provocatively titled
"dotCommunist Manifesto."

Wallace told the regulator that the obvious target of the open source
business model is Microsoft and Windows.

"Unfortunately," he says, "it is not Microsoft who suffers. The result
of this predatory pricing at 'no charge' for intellectual property under
the GPL license is causing the foreclosure of any remaining intellectual
property market for the individual software developer and small business
entrepreneur dealing in POSIX operating systems and various applications
for the desktop and enterprise markets. The license is a per se
violation of the antitrust laws."

Taking his argument a step further, he says, "Removing the profit
incentive in intellectual software property creation is even suppressing
the enrollment of new students training for careers in the computer
sciences here in the United States."  "


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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