[RFC] Wallace case FAQ for dummies v1.5 -> v1.6

[Alexander Terekhov]

Thinking of adding one more Q (and A). Right after

Alexander Terekhov wrote:
> 
> (This is regular posting. Acknowledgments: aim_here2002, Linonut.)
> 
> Q: Bzzzzt. What the fuck ... !?
> 
> A: The context is property. Intangible intellectual property (rights
> granted under IP license). IP goods. Property in short.
> 
> Q: Bzzzzt, but according to RMS, "intellectual property... is a mirage,
> which appears to have a coherent existence only because the term
> suggests it does." So bzzzzt, what the fuck ... !?
> 
> A: Well, well, well. But according to one FTC commissioner (and an
> antitrust attorney), it is not quite a mirage. "One fundamental question
> in this area is whether intellectual property is like other property for
> purposes of antitrust analysis. In considering this question, it seems
> to me that we should keep in mind some obvious principles. First,
> intellectual property is property, that is to say, it belongs to someone
> who has the right to exclude others from using it without his or her
> consent. Second, intellectual property has attributes that distinguish
> it from personal property and real property -- that is why we have a
> different word for it. For example, the enforcement of an owner's
> exclusive right to use physical property may be accomplished more
> easily, as a practical matter, than enforcement of an exclusive
> intellectual property right. Antitrust enforcers should certainly remain
> open to considering new ideas about how the rights associated with
> intellectual property can and should be distinguished from the ownership
> of tangible property in the analysis of antitrust liability. But for
> now, it seems fair to say that for antitrust purposes, intellectual
> property is generally treated like other forms of property."

Q: Bzzzzt. No, RMS says that "All intellectual property rights are just 
licenses granted by society because it was thought, rightly or wrongly, 
that society as a whole would benefit by granting them. But in any 
particular situation, we have to ask: are we really better off granting 
such license? What kind of act are we licensing a person to do?"

A: Lunatic RMS is simply confusing this reality with his dreams of the 
GNU Republic. Both in the GNU Manifesto (quoted above) and in the GNU 
GPL he's talking about legal regime in his wonderful GNU Republic (in a 
nearby alternative universe, his moronic dreams aside for a moment) 
where First Sale is nonexistent, IP is not property (it belongs to 
state), and where distributing software under any "license" other than 
the GPL (which is akin to a lottery or any other permit from state, and 
hence it is, of course, not a contract or a property right), or "GPL 
compatible" license (but that's for extra regulation fee, I gather), 
is a felony under GNU law. But in this reality, intellectual property 
is property (see Stewart v. Abend, 495 U.S. 207, 219 (1990), 
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), etc.), and IP 
licences are contracts (see citations in Wallace's brief, the link is 
below).

Whatta ya think?

Hey dak, ams, and mini-RMS, collaborate! Any thoughts? TIA.

> 
> Q: What price restrictions?
> 
> A: Property price restrictions.
> 
> Q: What 'price'? Define 'price'.
> 
> A: Cost to obtain EXISTING property on buyer's side. Price is fixed
> at zero in the case of property locked in the GNU GPL pool (e.g.
> Guh-NÜ-slash-Linux, the GPL part of it).
> 
> Q: Bzzzzt, but "marginal cost" ... so what the fuck ... !?
> 
> A: The good being distributed under the GPL is Intellectual Property
> (rights under copyright and patent laws). The cost of creation of that
> good is not zero. As for "marginal cost"... "Professor John Duffy of GW
> Law School has published "The Marginal Cost Controversy in Intellectual
> Property" in the Winter 2004 issue of the University of Chicago Law
> Review. (Available through WestLaw with a credit card.) It is a useful
> piece. A common refrain of the copyleft is that the marginal cost of a
> digital copy of an intellectual product is zero, so, therefore,
> "economics teaches us" that it should be priced at zero. This is a
> fallacy, as discussed in Marginalized, akin to the logic of the ancient
> paradox that proves that Achilles can never catch the tortoise." (Go
> google it.)
> 
> Q: A GPL coder is not compensated?
> 
> A: That plus administration overhead, etc. Cost required to create NEW
> property (GPL derivative works, additions to GPL collective works) on
> seller's side. The GPL fixes the price below cost. Wallace is claiming
> antitrust injury from predatory pricing (pricing below cost) and says
> that the whole scheme is in violation of Sherman Act 1.
> 
> Q: Okay, but how about explaining who Wallace is, who he's suing, what
> gives him the right to sue? (question from aim_here2002)
> 
> A: Please visit <www.terekhov.de/Wallace-case.htm>. This is "de novo"
> review.
> 
> Q: What if Wallace loses on appeal as well?
> 
> A: Then you might enjoy Wallace Reloaded (so to speak) featuring
> Schwarzenegger, I suppose. "The California Unfair Practices Act, Bus. &
> Prof. Code § 17043, prohibits selling a product below its cost for the
> purpose of injuring competitors or destroying competition. Bus. & Prof.
> Code § 17044 prohibits selling products as "loss leaders," which § 17030
> defines as selling below cost for the purpose of inducing the purchase
> of other merchandise, misleading or deceiving purchasers, or diverting
> business from competitors. Cost is statutorily defined for production as
> including "the cost of raw materials, labor and all overhead expenses of
> the producer." Bus. & Prof. § 17026." This might enlighten you: "GNU
> will remove operating system software from the realm of competition. You
> will not be able to get an edge in this area, but neither will your
> competitors be able to get an edge over you. You and they will compete
> in other areas, while benefiting mutually in this one. If your business
> is selling an operating system, you will not like GNU, but that's tough
> on you. If your business is something else, GNU can save you from being
> pushed into the expensive business of selling operating systems."
> (www.gnu.org/gnu/manifesto.html)
> 
> Q: Okay, what if the GPL falls as Wallace claims?
> 
> A: Uh oh. To begin with, it will set the [L]GPL'd code free (will make
> it available for appropriation by Microsoft, etc.). Certain types of
> unlawful licensing arrangements (such as antitrust violations) are
> deemed misuse and render rights under patent and/or copyright
> unenforceable in court of law until the misuse is purged (and since it's
> pretty much impossible to purge the [L]GPL'd stuff from the net... you
> got it). Another rather interesting aspect is that if the GPL falls as
> Wallace claims, everyone (because of the Pinkerton Doctrine) who
> contributed GPL'd code that was used in commerce against a proprietary
> competitor will be subject to 15 USC 15: "(a) Amount of recovery;
> prejudgment interest  Except as provided in subsection (b) of this
> section, any person who shall be injured in his business or property by
> reason of anything forbidden in the antitrust laws may sue therefor in
> any district court of the United States in the district in which the
> defendant resides or is found or has an agent, without respect to the
> amount in controversy, and shall recover threefold the damages by him
> sustained, and the cost of suit, including a reasonable attorney’s fee.
> The court may award under this section, pursuant to a motion by such
> person promptly made, simple interest on actual damages for the period
> beginning on the date of service of such person’s pleading setting forth
> a claim under the antitrust laws and ending on the date of judgment, or
> for any shorter period therein, if the court finds that the award of
> such interest for such period is just in the circumstances. In
> determining whether an award of interest under this section for any
> period is just in the circumstances, the court shall ...". The GPL is a
> price-fixing (not monopolizing) claim. IBM, Red Hat etc. will owe
> Microsoft (for the last four years) for treble damages for the server
> market share that GNU/Linux has held (as Windows substitute... as for
> proprietary Unices... recall that "GNU is Not Unix"... <chuckles>). So
> it appears that, unfortunately, making money wise, Gates & Co. have
> been one step ahead of IBM ever since MS-DOS.
 
regards,
alexander.