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GPL Price-Fixing Lawsuit Dismissed

Posted by CowboyNeal on Tue Mar 21, 2006 10:13 AM
from the mostly-without-merit dept.
The Courts GNU is Not Unix
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.'"

Related Stories

[+] 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.
[+] Wallace's Second Anti-GPL Suit Loses 303 comments
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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  • How much do "court costs" usually run? (Score:3, Interesting)

    by Enigma_Man (756516) on Tuesday March 21 2006, @10:17AM (#14964103) Homepage

    Just curious if anybody has any knowledge of the average court-cost payment?

    -Jesse

  • I love irony (Score:4, Interesting)

    by hey! (33014) on Tuesday March 21 2006, @10:20AM (#14964133) Homepage Journal
    Honestly, pro se lawsuits tend to be disasters. If you can't find a lawyer willing to represent you, it usually means you don't have a case. Quoth TFA.

    I didn't know what the term pro se in TFA meant, so I went to answers.com, which helpfully corrected my "misspelling":

    Prose

    Ordinary language people use in speaking or writing...


    I guess that lawsuits based on ordinary language would be a disaster. By the way, "pro se" apparently refers to self-representation, the proverbial provence of lawyers with fools for customers.

    • Re:I love irony (Score:4, Informative)

      by Snorpus (566772) on Tuesday March 21 2006, @10:24AM (#14964150)
      More or less: pro se = "for yourself".

      [ Parent ]

      • Re:I love irony (Score:2, Interesting)

        by h4rr4r (612664)
        It literally means "for himself" it is a latin phrase, and as latin is a dead language you cannot change the definition with the times,even if it may offend some people.

        • Re:I love irony (Score:5, Informative)

          by Beowabbit (306889) <js@[ ]org ['aq.' in gap]> on Tuesday March 21 2006, @11:08AM (#14964444) Homepage
          No, it means "for himself, herself, itself, or oneself. In Latin, the reflexive pronoun "se" does not vary for gender, so it's every bit as accurate to translate it as "for herself" as "for himself". Completely off-topic, but the language geek in me couldnt let it go. :-)
          [ Parent ]

    • Re:I love irony (Score:5, Informative)

      by slavemowgli (585321) on Tuesday March 21 2006, @10:33AM (#14964217) Homepage
      "pro se" means "for himself" - in other words, he's arguing for himself, rather than having a lawyer argue for him.
      [ Parent ]

    • Re:I love irony (Score:4, Interesting)

      by rewinn (647614) on Tuesday March 21 2006, @10:34AM (#14964228) Homepage

      >I guess that lawsuits based on ordinary language would be a disaster

      ...for much the same reason that software written in natural language [aaai.org] can have difficulties.

      Documents that describe how something should work out and the reasons for it, whether in the legal or the engineering realms, necessarily require technical jargon and precise structure, if they are to have predictable results. The legal "programming language suffers the grave disadvantage of having been crafted over centuries by thousands of people. Some of them were dickering in court, who were often interested in dealing with their particular case, and others were working in legislatures, who are often interested in something else entirely. The result is a language with the clarity of Assembler and the efficiency of COBOL.

      All this effort, and the results may still not be substantively just, but after all engineers too can have difficulty making clear specs conform to what the customer wants. What can ya do?

      P.S. your "pro se/prose" observation was delightful!

      [ Parent ]
      • Documents that describe how something should work out and the reasons for it, whether in the legal or the engineering realms, necessarily require technical jargon and precise structure, if they are to have predictable results.

        The biggest problem that I hav
        • Considering the number of malloc and syntax errors I throw every time I read legal documents, I assumed they already were.

          Too bad lawyers haven't learned to comment their code (and no, thousands of footnotes don't count!).

    • Re:I love irony (Score:2, Informative)

      by Milalwi (134223)


      I didn't know what the term pro se in TFA meant...


      I know you're trying to be funny, but Google is your friend:

      Query:

      define:pro se

      Definitions of pro se on the Web:

      * A person who does not hire a lawyer and appears for himself/h
    • Honestly, pro se lawsuits tend to be disasters. If you can't find a lawyer willing to represent you, it usually means you don't have a case.

      Funny. I always thought that pro se was a good option for people who felt that justice shouldn't have an obscene

      • Re:I love irony (Score:3, Insightful)

        by Main Gauche (881147)
        "The law is only hard to understand because lawyers and paralegals puff themselves up by using legalisms like pro se when writing for a lay audience. PJ could have just written, "Lawsuits where the plaintff represents himself." "

        Perhaps irony is when someo

  • Time for Fox News to... (Score:3, Funny)

    by Bug-Y2K (126658) on Tuesday March 21 2006, @10:25AM (#14964162) Homepage
    Bring on the talking heads to rile about "Activist Judges Out Of Control!"

    • Re:Time for Fox News to... (Score:5, Insightful)

      by Pharmboy (216950) on Tuesday March 21 2006, @12:01PM (#14964894) Homepage Journal
      Bring on the talking heads to rile about "Activist Judges Out Of Control!"

      Not Applicable. In this case, the judge certainly didn't behave as an Activist for either party. In spite of all the rumors and misinterpretations on both slashdot and groklaw, the judge said "A dismissal is appropriate only if the plaintiff can establish no set of facts", and dismissed accordingly. Facts had nothing to do with it, and the judge didn't consider any facts in his dismissal.

      The judge made no actual ruling in the case, except to dismiss it. People are saying that the judge "upheld the GNU/GPL" but actually it never went on trial. The opinion that "The GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers....." is not a ruling, it is an opinion that is no more than a side comment and not a precident. The dismissal was not based on this opinion, but rather on Mr. Wallace's inability to articulate a claim.

      "For the reasons stated above, the court finds that Mr. Wallace has failed to allege an antitrust injury such that his claim under Section 1 of the Sherman Act may move forward. The court therefore GRANTS the Reasserted Motion to Dismiss (Docket No. 34), filed December 29, 2005. Mr. Wallace is DENIED leave to further amend his complaint."

      It would appear that the GPL didn't "win", but rather, Mr. Wallace failed. Nothing was decided except the fact that Mr. Wallace had a bad lawyer: himself. What you find in this that would smack of "Activism" by the judge, I have no idea.
      [ Parent ]

      • agree in part, disagree in part (Score:3, Interesting)

        by Xtifr (1323)
        It's true that this is not the grand vindication of the GPL that some may have hoped for. Nevertheless, it is (slightly) more vindication than you suggest. To file claims under the Sherman Act, one must show both personal harm and harm to the market. Th
  • Did the guy really expect to win?

    Free, as in, you can charge whatever the bloody hell you want for this software!
  • Do not assume they can try again and appeal. A higher court may only hear a case if there are any apparent Constitutional violations in the lower court's proceedings.

    Parenthetically, double jeopardy only applies when a mistrial is declared at which point

    • Re:the system (Score:4, Informative)

      by AlterTick (665659) on Tuesday March 21 2006, @10:58AM (#14964375)
      Parenthetically, double jeopardy only applies when a mistrial is declared at which point the prosecution may or may not try to try again.

      No, "double jeopardy" is when one is subjected to a second prosecution for the same offense after acquittal or conviction (which is generally unconstitutional). A mistrial ends the trial before an acquittal or conviction, so a retrial after a mistrial is not double jeopardy, it's just a retrial.

      [ Parent ]

      • Re:the system (Score:3, Interesting)

        by Kjella (173770)
        No, "double jeopardy" is when one is subjected to a second prosecution for the same offense after acquittal or conviction (which is generally unconstitutional).

        Umm no. You can appeal your conviction in the US system, but the prosecution can not appeal an a

        • Re:the system (Score:3, Insightful)

          by hacksoncode (239847)
          Wow... Someone thinks that a 90% probability of guilt is sufficient to convict someone... I hope I never move to his country. Generally speaking in wild generalities, the US system sets that threshold at about 99% (based not on any law, but on a cultural o
    • Do not assume they can try again and appeal. A higher court may only hear a case if there are any apparent Constitutional violations in the lower court's proceedings.

      That's not correct.

  • I love it! A crackpot fine! (Score:4, Funny)

    by dildo (250211) on Tuesday March 21 2006, @10:37AM (#14964244)
    I wish I could fine every crackpot that's wasted my time.

    "Dear Sir. Your letter claiming the invention of a (perpetual motion machine/ proof of the trisection of the angle with compass and straight edge/ stock-picking program/ time cube harvester) was a complete waste of my time due to its impossibility and utter implausibility, as demonstrated by (reputable mathematics/ laws of thermodynamics/ support of your theory by George Gilder or Wired magazine, implying that it is categorically false).

    "By my estimation, it required 2 minutes of my time to read your letter and throw it in the shredder and one minute to send out this form letter invoice. At my going rate of $100 per hour, this means you owe me exactly $5 U.S., payable by check, gold bullion, or paypal. Failure to pay this sum will result in a call from my attorney. Sincerely,"

    I bet I could make a plush living on commissions if I were to handle the crank mail at a place like MIT or CalTech.

  • Ruling Is On The Money (Score:5, Insightful)

    by EzInKy (115248) on Tuesday March 21 2006, @10:52AM (#14964339)
    Excerpt:

    "First, while Mr. Wallace contends that the GPL is "foreclosing competition in the market for computer operating systems" (id.), his problem appears to be that GPL generates too much competition, free of charge. The court's understanding from the GPL itself2 is that it is a software licensing agreement through which the GNU/Linux operating system may be licensed and distributed to individual users so long as those users "cause any work that [they] distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License." (GPL 3.) The GPL purportedly functions to "guarantee [users'] freedom to share and change free software." (GPL Preamble.) As alleged, the GPL in no way forecloses other operating systems from entering the market. Instead, it merely acts as a means by which certain software may be copied, modified and redistributed without violating the software's copyright protection. As such, 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."

    This Judge Tinder is an amazingly astute jurist. He just summed up what people have been trying to explain to the anti-GPL crowd for ages now.

      • Re:Ruling Is On The Money (Score:3, Insightful)

        by swillden (191260)

        If Microsoft and IBM had gotten together and agreed to give away OS/2 and Windows, Apple would have sued them.

        If Microsoft and IBM had given away OS/2 and Windows in a manner that guaranteed the OSes would always be free, Apple would lose that lawsuit.

          • No point is being missed. The ruling correctly states the GPL fosters, not hinders, competition and innovation contrary to the claim of the plaintiff. Microsoft and IBM can not possibly use it to freeze out other operating systems because nothing in the GP
          • "Let's say the two largest OS makers in the market are Microsoft and IBM. If Microsoft and IBM collude to fix the price of their operating systems in order to freeze out competition, that is price-fixing and it is illegal."

            There are several points that m

            • "First, the GPL sets a maximum price."

              No it doesn't. I could offer to sell a copy of Fedora for a billion dollars if I wanted. Nothing the copyright holder(s) could do about it under the GPL, even if I found someone stupid enough to pay me. Even if I do

    • Re:Poor Wallace... (Score:2, Informative)

      by 'nother poster (700681)
      No worry mate. Grommit will simply build him another rocket so he can go to the moon for all of that free cheese. This time they'll take a cheese grater so that they can make "snow".
    • More or less - Wallace [wikipedia.org] is the guy who filed lawsuits against the FSF, IBM, Red Hat and Novell because, according to him, the GPL is tantamount to price-fixing and deprives him of his dog-given right to part fools and their money.

      In a way, I actually feel

    • Re:WallaceOS (Score:5, Informative)

      by schon (31600) on Tuesday March 21 2006, @11:16AM (#14964498) Homepage
      What was the WallaceOS

      It was basically FreeBSD with all of the non-BSD licensed software removed, and no source.

      So no X, no gcc, etc.

      No, I'm not kidding.
      [ Parent ]

    • Re:WallaceOS (Score:3, Funny)

      by mav[LAG] (31387)
      What was the WallaceOS that he claimed he was unable to market due to the market abuse of the Linux-conglomerate?

      Full of great - if slightly whacky - ideas that look promising but it almost always needs the GromitOS to get it out of trouble.

    • Re:but (Score:2)

      by schon (31600)
      what will Alexander Terekhov troll usenet about now?

      Oh, he's still trolling. He showed up on Y!SCOX this morning talking about how day5dumbass would have won on the merits.

      You wouldn't expect a little thing like reality to deter these guys, would you?
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