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

[Alexander Terekhov]

Lewis A. Mettler, Esq.:

http://www.lamlaw.com/

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November 10, 2006 - Friday

7:34 AM PST - Open Source holds up in court (InfoWorld)

While this decision is welcome, it may not mean what the headline
suggests.

The U.S. District Court for the Southern District of Indiana dismissed
the case, finding the plaintiff had suffered no antitrust injury. And
then the Seventh Circuit affirmed.

That suggests to me that the problem was with the plaintiff and the
specific complaint rather than some kind of decision on the merits of
the defense.

Frankly I find it very difficult to see a scenario where open source is
going to present anything close to a monopoly or even monopoly power.
GPL may tend to keep some prices low or even at zero leaving companies
with a business plan to charge for support. But that is not a monopoly.
And it does not reduce or restrict output in any way.  Quiet clearly it
does the opposite. It empowers just about anyone to re-distribute
themselves and/or offer additional or substitute support services.  That
is a far cry from the proprietary you have to pay and do without support
model.

What may not be too clear from this article or the case if you have been
following it is that the plaintiff does have to show how he has been
harmed by the defendants.  And that is very hard to show when none of
them addressed any of their activities toward him.  Rather it would
appear that Wallace wanted to appoint himself as a representative of
many others and simply attack the form of competition that open source
can bring.  The DOJ might be able to do that.  And the various Attorney
Generals might be able to do that. But, private citizens (and companies)
can only only represent themselves.  If Wallace could show how he was
harmed because of something the defendants did, that might be a
different story. But, of course, IBM, Red Hat and Novell (the defendants
in this case) did not even know who Wallace was and did not care
either.  And when that is the situation it is hard to prove that somehow
their acts caused him harm. His case would be no stronger if he had sued
Microsoft.  Actually, it would have been much better.  At least
Microsoft has engaged in illegal acts.  And certainly Mr. Wallace could
argue that he is unable to develop a browser and bring it to market
because of those acts.

Simply put, it does not make a case just because you do not like what
someone else is doing.  Or, that many others are doing it too.  Or, that
they are not charging a high enough price for you to compete profitably.
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Esq.? LOL.

regards,
alexander.