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Wallace's Second Anti-GPL Suit Loses
Posted by
ScuttleMonkey
on Sun May 21, 2006 11:57 AM
from the e-for-effort dept.
from the e-for-effort dept.
Enterprise OpenSource Magazine is reporting that Daniel Wallace's second Anti-GPL lawsuit has gone down in flames. From the (short) article: "The judge wrote that 'Antitrust laws are for 'the protection of competition, not competitors.' In this case, the GPL benefits consumers by allowing for the distribution of software at no cost, other than the cost of the media on which the software is distributed. 'When the plaintiff is a poor champion of consumers, a court must be especially careful not to grant relief that may undercut the proper function of antitrust.' Because he has not identified an anticompetitive effect, Wallace has failed to allege a cognizable antitrust injury.'"
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News: Lawsuit Says GPL is a Price-Fixing Scheme 850 comments
Soko writes "Yes, it's real. The crack team of Daniel Wallace and Maureen O'Gara have ganged up once again to protect their version of "The American Dream," he by filing a lawsuit in Indiana court saying the GPL is nothing more than a price fixing scheme designed to drive software vendors out of business, she by parroting the proprietary vendors' "The GPL kills business" mantra (as well as a few well placed insults at the free software community). I found the story on Groklaw - no links to Ms. O'Gara or Mr. Wallace from me. I'm still kind of dumbfounded at the audacity of Mr. Wallace, but wonder if he has an angle that might have a slim chance of prevailing." This Google search reveals some of Daniel Wallace's views on the GPL.
[+]
News: GPL Price-Fixing Lawsuit Dismissed 154 comments
ansak writes "The case of Wallace vs. the Free Software Foundation has been dismissed. It wasn't entirely on the merits of the case. From PJ's analysis, 'despite the judge clearly telling him where his previous complaint was lacking, he didn't fix it.... In this case, he had five tries.' Nevertheless, the judge did make a strong statement that the GPL 'encourages, rather than discourages, free competition' and ordered Wallace to pay court costs: 'Judges do that when they'd like you to learn a good lesson. It's a signal you shouldn't have brought the case in the first place.'"
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Wallace was wearing the wrong trousers... (Score:5, Funny)
Read all about it!
Re:Wallace was wearing the wrong trousers... (Score:3, Funny)
Re:How about this then. (Score:5, Insightful)
One of the primary principles is the Rule of Law. That means that an informed person usually knows what side of the law they are on before trial. That is only true if judges strictly interpret the law rather than do what they personally think is right.
The Rule of Law is part of the structure, but I see it as an important aspect of our society. The alternative is the Rule of Man, and, historically, that leads to worse outcomes. A law is something anyone can see, or can at least ask a lawyer about in advance. Society is more stable and predictable that way.
Parent
Re:How about this then. (Score:5, Insightful)
A republic has certain important restrictions on the power of the majority. For instance, many actions require a supermajority. A democratic republic brings some of the benefits of democracy, but the restrictions are designed to prevent problems that have existed in ancient democracies. Democracy is not a new concept.
Our particular republic is unique because of the types of restrictions on the democracy, like preventing the majority from censoring the minority. "Democratic Republic" is merely the name we like to give to our particular republic because it employs some principles of democracy, like electing representatives in government, and a chance to indirectly elect the president. But clearly it rejects the overall democratic philosophy that the majority is right. The most obvious examples that our republic rejects democracy is that judges are not democratically elected, and the accused are not democratically convicted.
Parent
Crap link in submission... (Score:5, Informative)
http://en.wikipedia.org/wiki/Daniel_Wallace_(plai
http://www.groklaw.net/article.php?story=20060320
Re:Who is Wallace and why did he sue? (Score:5, Informative)
The Wiki and other articles is very uninformative of who this guy is and his motivations and why he would even go out of his way to this. It is like the man spontaneously came into existence just to sue.
Although people have sued other over less...
Parent
Re:Who is Wallace and why did he sue? (Score:5, Funny)
"Oooh, look, I can take this, change some strings in it so it says 'WallaceOS' and sell it as a green screen command line OS for shitloads of money per copy, distributing it under a licence so my suckers...er customers can't redistrubite it, and so I don't have to give out the source code."
"WTF... nobody's buying my really cool WallaceOS? WTF there's this thing called Linux that is soooo much better under a licence called the GPL that keeps people from doing what I'm trying to do with BSD? That's anticompetative!!! "
"I must sue the Free Software Foundation and remove this evil thing called Linux and the GPL. It doesn't seem to matter that the FSF has nothing to do with the Linux kernel... only the GNU part of the OS, but who cares.... with the GPL gone, people will buy my l33t WallaceOS for whatever money I want to charge and I'll beeeee riiiiich!!!! I just hope they never hear about FreeBSD!"
Parent
Re:Who is Wallace and why did he sue? (Score:5, Interesting)
He had lost 2 lawsuits already and has been ordered to pay costs on at least one.
The average lawsuit costs in the US this will bankrupt a maker of WallaceOS right away so he has to have some bigger sponsorship to be still alive.
Who is paying this guy's costs?
Parent
Re:Who is Wallace and why did he sue? (Score:5, Interesting)
Parent
Re:Who is Wallace and why did he sue? (Score:5, Insightful)
We'll have to wait until somebody else dumb enough to try to disprove the GPL in court, and smart enough to actually get the formal basics right, shows up. Daniel Wallace wasn't the one.
Parent
Re:Who is Wallace and why did he sue? (Score:5, Interesting)
long ago.
The last few years he has been in any board he could get into trying to prove the GPL wouldn't have a chance in a court of law and, basically, being laughed at.
He probably couldn't take the laughs any more and he tried to prove he was right.
Parent
Re:Who is Wallace and why did he sue? (Score:3, Funny)
Re:Who is Wallace and why did he sue? (Score:4, Insightful)
Parent
Re:Who is Wallace and why did he sue? (Score:3, Interesting)
I give you permission to redistribute/modify my code if you pay me X dollars.
You don't pay me X dollars.
The GPL is:
I give you permission to redistribute/modify my code, as long as any derivative works from it are GPL.
You don't do so.
It's the same thing. Why would the judge take a dim view?
Re:Who is Wallace and why did he sue? (Score:4, Insightful)
I am confused here. You're saying it's "low" to countersue you if you (theoretically, as is this entire discussion) get parts of the GPL invalidated.
Luckily, the GPL has a section suited directly for this legal quandary:
In effect, you'd either have to get that specific section invalidated as well (good luck), or get the entire GPL ruled unconscionable (in which case the agreement with you and all others for distribution is null and void as a whole, and you'd have to negotiate a new agreement with the copyright holder to continue to be able to distribute).
A judge simply isn't going to "substitute in" a different license if the GPL is invalidated.
Parent
Re:Who is Wallace and why did he sue? (Score:3, Interesting)
Here's another possibility. Maybe he wanted to lose so that the decision would make it onto the books, thereby strengthening the position of the GPL via existing case law. I'm not a
Re:Who is Wallace and why did he sue? (Score:3, Informative)
Re:Who is Wallace and why did he sue? (Score:3, Informative)
It's been a while since I read about the details of his suit, but as I recall Wallace is not actually in the business of selling software and hasn't written anything that he has tried to sell. He just says that he would like to be, and that the GPL makes it impossible for him.
Poor Guy (Score:5, Funny)
Interesting take at Groklaw (Score:5, Insightful)
That may be true for this case, but more often than not it means you can't afford the lawyer's fees whether you've got a case or not. Justice and the legal process are things that are for sale in the United States these days. If you've got a small business there are any number of silly lawsuits your enemies can bring against you that will bleed you dry in legal fees alone. And that's for DEFENDING yourself against a bogus complaint, never mind prosecuting a case where you know you're in the right.
Re:Interesting take at Groklaw (Score:5, Interesting)
If your case is crap, it's unlikely that you will find such a lawyer. You might not think your case is crap, but trust me on this, if you can't find a lawyer to represent you on contingency, it's crap.
If the stakes are not high enough to interest a lawyer, there's this other thing called Small Claims Court. In Small Claims, there is a level playing field, because the other side is not allowed to hire a lawyer to represent them in court. Similarly, you are not allowed to use a lawyer to sue in small claims.
Anyway, what alternatives would you suggest to fix these perceived issues with the justice system? The system is not perfect, but I have yet to see a proposal that isn't worse than the problem it purports to address.
Parent
OT: Small Claims (Score:3, Interesting)
IAmNotALawyer, but that part is somewhere on the spectrum between inaccurate, misleading, and just plain wrong.
Exact rules on Small Claims Court vary from state to state. It is uniformly true that a
stupid (Score:4, Insightful)
If this had won it would have literally killed the economy and taken it back to the dark-ages.
Judge, not only made correct decision, but gets it (Score:5, Interesting)
Re:Judge, not only made correct decision, but gets (Score:5, Insightful)
I think that you'll find most judges get the GPL. These are guys that have been lawyers for 20 years, and are generally able to understand insanely complex contracts and licenses that would twist our brains. The GPL must be a breath of fresh air to them, a license that not only doesn't even try to screw the people who accept it over, but that is the equivalent of a well-commented hundred line program. I expect that most judges are able to look at the GPL and think of things in minutes that you or I didn't see after knowing the GPL for years, and imagine how refreshing it must be to see those concepts in print and being used.
Parent
Re:it isn't the accepting... (Score:5, Insightful)
Commercial software licenses typically disallow a substantial range of actions which would otherwise be permitted by law (copyright and otherwise). Some people would describe this as screwing over the acceptee -- and in several cases (such as licenses in which the licensor is given permission to arbitrarily modify the licensee's computer, to pick an extreme but increasingly common case), it's hard to argue that they're incorrect.
Parent
Re:Judge, not only made correct decision, but gets (Score:4, Informative)
It was reported on groklaw, that Wallace made the tactical mistake to attach a copy of the GPL to his claims. Why was that a mistake? At the very first stage of a court case, the judge must only decide whether a valid claim was made. He is not allowed to look at any evidence, that comes later. So normally, the judge would not have looked at the GPL or wouldn't even have been allowed to look at it, and without looking at it, it _might_ be possible that the GPL forces anti-competitive behavior. But since the GPL was attached to the claims and therefore part of the claims, the judge was not only allowed to, but required to read it and to decide whether it is anti-competitive. And I think the contents of the GPL is absolutely crystal clear to any judge. It is a purely legal paper and very easy to understand for any lawyer or judge.
Also, Wallace has mixed up everyday language and legal language quite badly. If A has a Formula I car, and B has a bicycle, and they decide to race each other, B might say "I cannot compete, because A has a Formula I car and I only have a bicycle". In the legal language, B is wrong. He can compete. He loses badly every time they race, and he has not the slightest chance to win, but there is nothing stopping him from competing. Or if you sell a widget for $100 each, and I figure out that it costs me $110 alone to produce it, I might claim that I cannot compete. In legal language, I can compete by selling my widgets for $150. Nobody will buy them, and I will go bankrupt doing it, but nothing stops me from competing. (Better ways of competing would be to find a way to build the widget for $50, or painting it in fashionable colors so people buy it at the higher price etc.)
Parent
Reprinted by SYS-CON Media from Client Server News (Score:3, Interesting)
As for Wallace, he is a fucking crackpot and now everyone in the IT industry knows it.
Who is Daniel Wallace? (Score:4, Interesting)
Who Cares? (Score:4, Insightful)
What's important here is that the GPL was recognized as legal and beneficial. The judge ruled the GPL:
encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation.
Parent
SysCon sucks... (Score:5, Informative)
They said they wouldn't print any more Maurene O'Gara articles after she went crazy stalking Pamela Jones and making fun of her religion. So now they're printing MoG's articles but without any attribution.
As always with MoG, the article is misleading. The judge didn't accept the facts as true. To dismiss a lawsuit the judge has to say: "If these were all true, should the case go forward?" In this case the answer is no. The "if" is important.
Anyway here is the original article [slashdot.org] where the Daniel Wallace stupidness started. The actual syscon link is offline because syscon took all MoG's stuff offline.
Daniel Wallace is a net kook. I wouldn't be surprised if he created a slashdot login to respond anonymously to this article. He always posts about how the GPL is a contract not a license. He is not a legal genius but he is funny.
Maurene O'Gara is evil. She lies constantly. I've never seen anyone who is as sick and twisted as she is. I despise her.
Re:SysCon sucks... (Score:4, Informative)
Parent
Asshat sues RedHat, Judge laughs (Score:3, Funny)
For those interested in his "information" antics (Score:3, Informative)
Re:What? (Score:3, Informative)
Oh cool! You're on your way to a "+5 Troll". I haven't seen one in a Looonng time!
Also, it's not "dumping" unless it's:
Coming from another country.
And, the industry that's "victimized" has a shit load of political clout - Agriculture, Auto and Steel as examples.
Re:What? (Score:3, Informative)
> However, check recent stories about Citgo giving heating oil away for reduced prices in northeast towns this past winter.
> They did it to embarass the Bush administration, but their competitors started crying that they were dumping.
Yea, and 'they' is Hugo Chavez, a sworn foreign enemy of the US. Citgo is a foreign company dude, try buying a clue somewhere other than DailyKos next ti
Sir, are you an idiot? (Score:5, Funny)
Parent
Re:What? (Score:5, Insightful)
That's right, like us "dumping" our opinions on the market instead of charging for them like professional opinion writers. Or people singing for the fun of it and letting others listen. Not to mention those evil people who don't charge for sex. They should all be in prison.
Parent
Re:What? (Score:5, Insightful)
Next thing you know, Dockers will be suing women for sewing for free. After that, the association of starving artists will be suing preschoolers for giving their parents free drawings to hang on their refrigerator.
If you think crayons and fingerpaints are free, you're not much of an artist.
Parent
Re:What? (Score:5, Insightful)
So? How many does it take? How many grandmas have to knit little mittens for their grandchildren before baby-clothes manufacturers feel the competition? How many people must cook dinner for their families before McDonalds starts feeling the pressure? How many kids must run lemonade stands at rates far below market costs before Minute Maid goes out of business?
How many programmers must work on GPLd code before Microsoft does more than twitch?
Giving your code away for free is stealing from your own retirement.
Explain.
Parent
Re:What? (Score:3, Insightful)
As the judge points out, laws against price fixing are in place to protect the consumer from artificially high prices due to the ab
Re:What? (Score:3, Insightful)
Giving your co
Re:What? (Score:5, Insightful)
Nope. The list is too long to even mention but I think you can start with:
Local theater group doing show without pay (professional actors)
Volunteers at a soup kitchen (the local cafe)
Laywers taking cases pro bono (other lawyers)
Doctors providing free medical aid (other doctors)
Any number of arts and crafts that people sell at less than real cost on fairs and the like
Every local band who can't make a living out of it but plays anyway
Every sort of artist who doesn't make a living out of it, but does it anyway
Every sort of "scratch-an-itch" programmer who doesn't make a living out of it, but does it anyway
Anti-trust requires that there has to be sort of monopolizing intent - that you want to pressure the competitors out of the market, then raise the prices afterwards. In fact, it typically has to go beyond pure pricing (e.g. Wal-Mart killing local shops, McDonalds killing local burger shop) and more on to discrimination and misuse of market power. How can you do that with the GPL? You can't, because there's noone who has that power, not even Linus himself. He couldn't turn around and say "Haha suckers! Now that Linux is the only OS in existance, I'll close it up and become the new Microsoft."
Parent
Re:What? (Score:5, Insightful)
"Dumping"
Dumping implies that the costs can be recouped later by raising prices. In the case of GPL'ed software, the GPL implies the distributor has no monopoly on the distribution so he can't raise his own prices after he 'destroys' the competition and expect the market to let him recoup the costs that way. His competitors can just keep dishing out the same GPL'ed code at the old price.
"at a value less than the cost of production"
The cost of production of someone else's GPLed software is next to nothing. The marginal cost of software distributed on the internet, even the stuff you yourself write, is next to nothing (and marginal cost, or similar measures of cost is generally the measure used for antitrust claims). At least three of the defendants in his lawsuits will happily sell their GPLed code to you for way above the cost of burning their CDs or whathaveyou.
"if you think coders' time is free, you're not much of a coder"
Danny wasn't alleging that the price of the code itself was fixed. He couldn't because the GPL explicitly says otherwise. You can charge money for writing GPLed code, and for copying or distributing the code.
The only thing you can't charge for is *permission* to use the code. How much money does it cost you to give one person permission to use the code? One measure would be the cost of typing 'cp
"This judge"
These two judges
"may have just vacated a couple of hundred trade laws..."
The judges didn't have to look at the trade laws because Danny was unable to write down exactly what damage it was that the GPL did to the software market, after about six or seven attempts in two courtrooms.
For such a small post you have managed to be completely wrong in quite a few different ways. I'm impressed. Is your name Danny Wallace by any chance?
Parent
Re:What? (Score:3, Interesting)
The way this happens is inclusion of propetiary binary drivers into the kernel, or thin wrappers around binary blobs (NVIDIA, for instance, or Intel to use wireless network cards). Then we have the NDIS wrapper so that Windows drivers might be u
Re:What? (Score:3, Insightful)
That depends on the goal of the loss-leader. If it's to induce collateral purchases and thus still gain a net profit on the gross total, then the effect is not a loss to corner a market.
But unless you're new to "Free Software" you know that the whole point is to compete with and hopefully end un-free software.
And Linus Torvalds has been employed by someone for most of his Linux-kernel-writing career. The true fact is that there is an enormo
Re:What? (Score:3, Interesting)
I am not new to Free Software, and while that may be the aim of RMS and the GPL, (I said may, so as not to have to argue that point) that is hardly the aim of every individual Free Software program.
Now, as to the distributors, who contends that all of the linux distributors are giving their distros away for free to corner the market.? I am not sure that even makes sense...
Yay, a hun
Re:Competitors. (Score:3, Insightful)
The real issue in the Microsoft case was leveraging monopoly powers in a criminally coercive manner, with hints of fraud (as per the DR DOS case), not the mere bundling of the browser with the OS for "free."
Unfair competition, not the perfectly legitimate competition of offering something cheaper/free.
KFG
Nothing, really (Score:5, Informative)
So what does that say about the Microsoft antitrust case brought up by the likes of Netscape and others?"
IANAL, but AFAIK, it doesn't say anything was wrong, really. They too had to prove in court that not only MS is hurting competition, but also that it hurts the consumer.
I.e., in a nutshell the gist of it is that you can't go and say "I can't compete with company X. Make them raise their prices, so I have a chance." What you have to prove is that first and foremost this has hurt the consumers (e.g., company X is in a position to shamelessly gouge its customers, or companies X and Y aggreed to fix their prices high, or it has some other effect that consumers obviously don't want) and in which way are they creating an artifficial barrier, i.e., other than for example price or brand name, that keeps others from competing.
So in that MS antitrust case, yes, they had to argue that:
A) MS's monopoly is hurting the consumers (e.g., that the cost of a MS OS has been steadily rising in the same time interval where the cost of the computer itself has been steadily dropping. And since at the time it was just short of impossible to buy a computer without Windows, that was an ever-increasing burden upon consumers as a whole.) and
B) that there is an artifficial barrier in the way of anyone trying to compete with MS. The keyword being "anyone", not "me". As was said, those laws are to protect competition, not one or two competitors. That's why for example MS was able to use Linux as an example of "but we still have competitors in the OS arena", although it wasn't the product of Netscape and the other.
You may notice that the same applies to this lawsuit too. See the other quote in the summary, about the GPL allowing people to get programs extremely cheaply. It's not part of the same "protecting the competition" reasoning, but addressing the other (more important) point: then it hasn't hurt the consumer. Without that, you don't really have an anti-trust case.
Parent
Re:Competitors. (Score:3, Informative)
Microsoft's actions were directly intended to reduce competition and choice for the consumer.
Offering Explorer as a free browser was not the problem, tying it in with Windows in the way that they did was the problem.