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Re: [Wallace v. FSF/GPL] Civil Complaint No. 1:05-cv-0618-JDT-TAB

From: Alexander Terekhov
Subject: Re: [Wallace v. FSF/GPL] Civil Complaint No. 1:05-cv-0618-JDT-TAB
Date: Tue, 03 May 2005 00:55:45 +0200

Rui Miguel Seabra wrote:

[... *BONK* ... *BONK*BONK* ...]


<quote author=Anonymous> // Yet another Groklaw gadfly, so to speak

Wallace is just repeating what SCO claimed about IBM's Eight 

2. The GPL Should Not Be Read to Allow a Competitor to Regulate What 
May Be Charged for an Intellectual Property License

By arguing that SCO breached the GPL by collecting "royalties and 
licensing fees in excess of the fees permitted by the GPL," IBM Mem. 
at 14, IBM seeks in essence an interpretation that the GPL fixes 
limits on the amounts that may be charged for unmodified works, even 
though the parties to the agreement are competitors. Agreements 
between competitors that fix a maximum price that may be charged for 
products are per se illegal under antitrust law. NYNEX Corp. v.
Discon, Inc., 525 U.S. 128, 133 (1998); United States v. Socony-
Vacuum Oil Co., 310 U.S. 150, 218 (1940).

While SCO has shown above that section 2 of the GPL (the only GPL 
provision requiring licensing "at no charge") is inapplicable here, 
because this motion does not involve modified works, this provision 
is illegal and unenforceable. The general counsel for the Open 
Source Initiative acknowledges in his recent treatise: "There is 
also a problem that may prevent enforcement of the GPL's at no 
charge provision. It may be an illegal restraint of trade in some 
countries. Ordinarily, companies are allowed to set their own prices, 
and it is improper for a GPL licensor to restrain that in anyway." 
L. Rosen, Open Source Licensing 132 (2004), available at


Note that under FSF's copyright theory, Section 2 is applicable
not only to modifications, but also to all "combinations"

that are not legal

in the GNU Republic.


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