Re: German-GPL victorious in Frankfurt district court

[Alexander Terekhov]

Merijn de Weerd wrote:
[...]
> Therefore under German law, once I accept the GPL terms, I have
> a right to redistribute GPL-licensed software. However, I can
> protest unreasonable or illegal terms in the contract 

Not according to Welte's friends at ifross/jbb (Jaeger & Co. gang). 
Because, they explain, it would amount to "expropriation of the 
author" and that "is not a lawful option"!!! Oh poor moronized 
district court in Frankfurt.

http://www.cebit.de/newsanzeige_e.html?news=26474

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D-Link, which already back in 2004 had had a run-in about a router 
with gpl-violations.org, argued that the GPL violated antitrust law 
because it featured a price fixing provision and imposed upon the 
licensee conditions affecting his/her/its contracts with third 
parties. These arguments the judges found to be irrelevant: If the 
GPL as a whole violated antitrust law, they observed, then any right 
of use to GPL-protected software would be null and void. Thus in 
plain English: Availing oneself of the rights granted by the GPL 
license while failing to recognize the duties attendant thereon – a 
state of affairs that Mr. Jaeger called the "expropriation of the 
author" – is not a lawful option.
-------

Now visit

http://digital-law-online.info/lpdi1.0/treatise15.html
(II.K. Misuse Of Copyright)
       ^^^^^^^^^^^^^^^^^^^

Here's more

http://www.techlawjournal.com/topstories/2003/20030826.asp
(3rd Circuit Breaks New Ground on Copyright Misuse)

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Holding in Video Pipeline. The Court noted that misuse "exists where 
the patent or copyright holder has engaged in some form of anti-
competitive behavior." But, it went on to state that "More on point, 
however, is the underlying policy rationale for the misuse doctrine 
set out in the Constitution's Copyright and Patent Clause ... Put 
simply, our Constitution emphasizes the purpose and value of 
copyrights and patents. Harm caused by their misuse undermines their 
usefulness."

The Court reasoned that the underlying Constitutional purpose can be 
undermined, not only by anticompetitive licensing terms ... 

With respect to competition, the Court wrote that "Anti-competitive 
licensing agreements may conflict with the purpose behind a 
copyright's protection by depriving the public of the would-be 
competitor's creativity." ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
^^^^^^^^^^^^^^^^^^^^^^^

[...]

The Court also made some other significant statements about the 
defense of misuse. It wrote that "Misuse is not cause to invalidate 
the copyright or patent, but instead ``precludes its enforcement 
during the period of misuse.''" (Citing Practice Management.) 
Moreover, the Court wrote that "To defend on misuse grounds, the 
alleged infringer need not be subject to the purported misuse."
-------

And now here's what judge Tinder held in Wallace v. FSF (that was 
before he got GPL-moronized and dismissed the case on 
standing/jurisdictional ground with atterly moronic dicta quoting 
from "Heil GPL!" (so to speak) whitepaper from another GPL co-
conspirator at MontaVista). Tinder found that "Plaintiff's Third 
Amended Complaint States a Claim Upon Which Relief" can be Granted 
and that "Plaintiff's Allegations Sufficiently Set Forth a 
Violation of the Rule of Reason". He ruled: "To establish a 
Section 1 claim under the rule of reason test, a plaintiff must 
prove that "(1) that the defendants contracted, combined, or 
conspired among each other; (2) that the combination or conspiracy 
produced adverse, anti-competitive effects within relevant product 
and geographic markets; (3) that the objects of and the conduct 
pursuant to that contract or conspiracy were illegal; and (4) that 
the plaintiffs were injured as a proximate result of that 
conspiracy." Tunis Bros. Co. v. Ford Motor Co., 952 F.2d 715, 722 
(3d Cir. 1991). In this case, it appears that Mr. Wallace has made 
the necessary allegations of FSF's unlawful contract and conduct. 
In his Third Amended Complaint, he specifically alleges that FSF 
conspired with others, including International Business Machines 
Corporation, Red Hat Inc. and Novell Inc., to control the price of 
available software within a defined market through the GPL. 
Primarily at issue in FSF's motion is whether Mr. Wallace has 
adequately alleged that the GPL had a resulting anticompetitive 
effect.

[... reduction in IP output under GPL price-dumping conspiracy ...]

This may be considered anticompetitive effect, and it certainly can 
be inferred from what Mr. Wallace alleges in his Third Amended 
Complaint. Therefore, this court finds that the Third Amended 
Complaint states a claim for violation of Section 1 of the Sherman 
Act, under the rule of reason doctrine."

regards,
alexander.