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Wallace Files Opposition to FSF Motion to Dismiss
Friday, June 24 2005 @ 03:41 PM EDT

Daniel Wallace has filed an opposition to FSF's Motion to Dismiss, a mere day after they filed their motion, so we may safely assume he anticipated such a motion. He should have taken more time to think.

I said yesterday that I wouldn't give an opinion about the outcome, because I have no practical experience in antitrust law. After reading this responsive filing, though, I feel that, even leaving antitrust law out of the mix, he has made such a serious mistake in the law that a dismissal is very likely, unless the judge stands on his head and then leaps tall buildings in a single bound on Mr. Wallace's behalf.

Now, I've seen that happen with pro se parties, if a judge is trying to make up for their lack of legal knowledge, but in this case, it would be, I think, improper, simply because the mistake Mr. Wallace makes isn't just procedural; it's fact-based and so fundamental, it's impossible to fix without... well, without Mr. Wallace fabricating new facts. His chance to fix it has come and now gone, even if he were willing to fabricate, unless I am missing something, which is always possible.

Let me explain what I think I see, so you can consider it. First, here is his Answer to Motion to Stay Briefing on Plaintiff's Motion for Summary Judgment [PDF], which isn't what you should call it or even a necessary filing, but the judge probably won't care about that. And here is his Answer to Defendant's Motion to Dismiss the Complaint [PDF], also oddly named and unnecessary, but not fatal. And here is the Plaintiff's Answer Brief to Defendant's Motion to Dismiss [PDF], which is also mistitled but at least pertinent.

What I think Wallace has failed to respond to adequately is the FSF's argument that he lacks standing to bring the complaint. Standing basically means that you have the right to complain about the defendant's actions, that it affects you personally. Here's the explanation from the book, "Law Dictionary, Second Edition," by Steven H. Gifis:

STANDING, the legal right of a person or group to challenge in a judicial forum the conduct of another, especially with respect to governmental conduct. In the federal system, litigants must satisfy constitutional standing requirements in order to create a legitimate case or controversy within the meaning of Article III of the federal Constitution. A taxpayer will have standing to challenge governmental conduct if the taxpayer can establish (1) "a logical link between that status and the type of legislative enactment attacked," and (2) "a nexus between that status and the precise nature of the constitutional infringement alleged." 392 U.S. 83, 102. "The gist of the question of standing, is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to insure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'" 418 U.S. 208, 237 citing 369 U.S. 186, 204.

To clarify further, here's a snip from a judgment in a case [PDF], where the judge discusses and defines standing:

Standing has three constitutional elements. A plaintiff seeking to invoke a federal court's jurisdiction must show:

(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

If you go to Google and search for "lacks standing", you will find many more cases where this was the issue. This highlights a fundamental difference between message boards and the courts. Theoretical discussions belong on message boards. The courts deal with real life. They want to know how you have been hurt or will be immediately, not theoretically, if the defendant is allowed to do whatever it is you are complaining about. The fact that others might really be harmed by the conduct, even an entire industry, has no relevance to your case, unless you are directly impacted. That doesn't mean someone else couldn't sue the defendant for the same thing you are complaining about, but if you are not personally affected, you lack standing to talk to the court about it.

There are, in short, no Don Quixote plaintiffs in courts of law. You can only fight for the right, so to speak, if you are the victim yourself. Maybe the court would let you enter an amicus brief, if you see something important and want to make sure the court sees it too, but you can't be a party unless you have a complaint personally against the defendant.

Here's what FSF wrote in its Motion:

The allegations of the Complaint also show that Plaintiff lacks standing to sue because he has suffered no "antitrust injury." This lack of standing and lack of antitrust injury is a separate, and independently sufficient, basis on which to dismiss the Complaint. The Supreme Court first articulated in the case of Brunswick Corp. vs. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977), the requirement that a plaintiff suing under the Clayton Act establish "antitrust injury." In Brunswick, the plaintiffs were independent bowling alley operators who alleged that they had been injured by the defendant's unlawful acquisition of failing bowling centers in their neighborhoods. Plaintiffs alleged that if the centers had been allowed to fail, or had been acquired by a less well-financed competitor, the plaintiffs would have been subject to less competition, and would therefore have made greater profits. The Supreme Court, in reversing a judgment in favor of the plaintiffs and ordering judgment NOV on their antitrust claims, explained that a plaintiff who alleges injury by reason of a violation of the Sherman Act must allege more than mere "but for" causation. Such a plaintiff must allege injury that flows directly from the anticompetitive aspect of the challenged activity. The Court reiterated that because the antitrust laws were created for the protection of competition, not individual competitors, a plaintiff does not state a claim under the Sherman Act when he merely complains that increased marketplace competition has diminished his profits.

The Supreme Court has reaffirmed and extended the holding ofBrunswick in subsequent cases that are dispositive here.

First, in Atlantic Richfield Co. vs. USA Petroleum Co., 495 U.S. 328 (1990), the Court held that a competitor who alleged that he had lost sales and profits due to his competitor's vertical maximum price fixing scheme lacked standing to sue under the antitrust laws. That is precisely the situation presented by this Complaint. Atlantic Richfield establishes that Plaintiff has no standing to bring this Complaint, even if the alleged vertical maximum price fixing agreement were per se unlawful, which after State Oil vs. Khan it plainly is not.

Wallace, in my view, misunderstood that and failed to address it, arguing instead that it's a per se violation and that he doesn't need a quantifiable injury. That is not the question he needs to talk about. The question is, does he have standing? He cites a case that he thinks establishes that he doesn't need to quantify the injury, but actually it doesn't help him, because while the party in the case didn't need to quantify its injury, it had already established that there was injury, that it would be injured personally and that it had standing. Here's what Wallace argued:

Even if the Defendant's naked price-fixing scheme were not facially condemned, the Plaintiff has claimed a plausible future antitrust injury:

"The rapid adoption of the GNU GENERAL PUBLIC LICENSE in schemes to deflate or eliminate the free market valuation of computer programs threatens to diminish or destroy the ability of the Plaintiff to earn future revenues in the career field of computer programming."; Plaintiff's Complaint

The Defendant misstates the law of the Seventh Circuit. The Plaintiff needs show no quantifiable injury to obtain standing for injunctive relief:

"Blue Cross is clearly right with regard to the injunction. We held when this case was last before us that the jury's finding on liability for dividing up the market with its competitors must be upheld and that Blue Cross was entitled to an injunction against that practice. This holding established the law of the case, binding the district judge on remand and us on this subsequent appeal unless we have good reasons to depart from the previous decision. . . . We don't. Even though, as we shall see, the district judge was correct that Blue Cross has failed to come up with evidence that would authorize an award for damages for the division of markets, this does not justify withholding an injunction -- rather the contrary. Inadequacy of a plaintiff's remedy at law, that is, his damages remedy, is normally . . . a prerequisite to the entry of an injunction. . . . And a common reason why the damages remedy is inadequate is that the plaintiff is unable to quantify the harm that the defendant's practice has inflicted or will inflict on him."

Constitutional requirements are not variable by district, for starters. And Blue Cross had already established that it had standing to sue. It had already established liability, just not in money terms that could be established by the evidence and so required an injunction to prevent the damage already established. Wallace is trying to prove oranges using apples. First you have to prove that you have sustained, or imminently will directly sustain, an antitrust injury. Then you talk about a remedy.

And Wallace is retired now. He retired from a job that was not a computer programming job, as I understand it. He tells us all he is a physicist because he got a BS in physics, but he doesn't tell us his employment history. He did write, he says, some computer programs on the side in the past. But he doesn't argue that these programs are being harmed by the GPL. All he has argued is that he may in the future be unable to make money from computer programs he may write someday. I don't believe that is sufficient to reach the constitutional bar for standing.

And because standing is such a basic concept in the law, I now wonder if he has any competent legal help behind the scenes helping him write his briefs. That doesn't mean he doesn't have a lawyer whispering in his ear or sending him templates or some such, because you can obviously see the difference between these documents and the earlier filings. Maybe he has a lawyer pal who doesn't normally do antitrust cases. Or maybe he isn't paying close enough attention. Who knows?

If you recall, I said that I believed the complaint was deliberately amateurish to hide what I guessed was a hidden lawyer in the wings, and I predicted as we went along, if I was correct, the work would show improvement, and so we do see that improvement. Misnaming the documents seems deliberate, when you consider you can look in any legal form book or just look at Groklaw's Legal Docs page or the Timeline pages to find out what you should call a response to a motion to dismiss. So that seems like a deliberate ploy to get the courts to view him as a bumbling lay person who should be given all the breaks.

But whether there is a lawyer behind the scenes or not, it appears a mistake has been made that I think ought to prove fatal to this case. At any rate, if I was researching this for my boss, that's what I'd tell him or her in my memo. I think I see a hole in the case big enough to drive a truck through. Lawsuits are tricky things, though, and that is why you should never go to court if you can help it, because what should happen and what does happen don't always match up. For that reason, plus my lack of experience in antitrust matters, I still won't predict the outcome here, only what I now think it ought to be.


  


Wallace Files Opposition to FSF Motion to Dismiss | 442 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here, Please
Authored by: overshoot on Friday, June 24 2005 @ 03:53 PM EDT
As usual, it's nice to post links as clickable HTML and preview before posting.

[ Reply to This | # ]

Is it possible...
Authored by: RedBarchetta on Friday, June 24 2005 @ 03:56 PM EDT
Is it possible that Mr. Wallace is sloppily rushing through the motions just to
get the issue in front of an appelate court, in the hopes of a dramatic
overturn?

I am not a lawyer, so I'm not sure if new arguments can be introduced into an
appeal. Some input from a genuine lawyer-type would sure be nice...

;-)



---
Collaborative efforts synergise.

[ Reply to This | # ]

Legal standing, and of course SCO...
Authored by: dyfet on Friday, June 24 2005 @ 04:01 PM EDT
If legal standing were so critical, I would have though the original SCO complaint would have been dismissed "years ago" based on that alone, for they have, as far as I have seen, to this very day, failed to demonstrate how they have standing to sue IBM either for breach of contact, having failed to show any paperwork demonstrating how they really are the legal successor of interest in the Monteray contracts, say rather than Torantula, or over copyright, having failed to demonstrate they even have legal copyright over what they claim rather than Novell and/or other parties through clearly documented actions of various predicessors.

[ Reply to This | # ]

Predictions Anyone?
Authored by: rsteinmetz70112 on Friday, June 24 2005 @ 04:17 PM EDT
Summary Judgment DENIED
That one is easy it keeps the case going.

Dismissal GRANTED
This is harder to predict.

I think there will likely be a hearing to argue the motions so the Judge can
possibly ask Mr. Wallace some questions to be sure who he's dealing with.

---
Rsteinmetz

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Wallace Files Opposition to FSF Motion to Dismiss
Authored by: heretic on Friday, June 24 2005 @ 04:21 PM EDT
It is, as always, a pleasure to read your analysis PJ :)

heretic

[ Reply to This | # ]

Wallace Files Opposition to FSF Motion to Dismiss
Authored by: perpetual_newbie on Friday, June 24 2005 @ 04:26 PM EDT
One dumb question here.

Wallace requests (1) denial of dismissal and (2) denial for FSF's motion for
Summary Judgement.

What motion for Summary Judgement? I didn't see that - all I saw was a request
for stay on Wallace's motion for Summary Judgement.

Did I miss something?

[ Reply to This | # ]

Corrections here
Authored by: gumnos on Friday, June 24 2005 @ 04:40 PM EDT

To kick off ye olde corrections thread:

holding ofBrunswick

should have a space after the "of"

-gumnos



[ Reply to This | # ]

Monetary damages v. equitable relief
Authored by: Anonymous on Friday, June 24 2005 @ 04:43 PM EDT
I think PJ misunderstands "equitable relief".
Wallace is *not* asking for money damages.
There is a big difference between "tort relief"
and "equitable relief".

Read more of Wallace's case he cited (Google for it):

"What is true and misled the district judge is the principle that there is
no tort without an injury. E.g., Janmark, Inc. v. Reidy, 132 F.3d 1200, 1202
(7th Cir. 1997); Rozenfeld v. Medical Protective Co., 73 F.3d 154, 156 (7th Cir.
1996). A private suit under the antitrust laws is a suit seeking relief against
a statutory tort, and the principle that there is no tort without an injury is
applicable to it. See Clayton Act, sec. 4, 15 U.S.C. sec. 15(a). But all that
this implies, so far as equitable relief is concerned, is that a plaintiff has
to prove that he is likely to be harmed by the defendant's wrongful conduct
unless that conduct is enjoined. This is clear from the text of the Clayton Act,
which, evoking traditional principles of equity, Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U.S. 100, 130 (1969), requires proof only of
"threatened loss or damage." Clayton Act, sec. 16, 15 U.S.C. sec. 26
(emphasis added); see California v. American Stores Co., 495 U.S. 271, 282 n. 8
(1990); Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 844 (7th Cir.
1978)."

According to Wallace's affidavit he is qualified to write computer programs in
several languages and has owned and operated a computer business. It is
"plausable" that he will have little future market for programs at the
present rate of GPL'd software grow.

You can't "prove" future damages will or will not occur.
You can only "plausably show" that future damages may occur.

If someone had to show "future" damage before he had standing to sue,
then 15 USC sec. 26 would be meaningless
because he could never gain standing.

I know I'll get flamed but I agree with Wallace on this one point about
standing.

[ Reply to This | # ]

Do I have Standing?
Authored by: Anonymous on Friday, June 24 2005 @ 05:11 PM EDT
I used to run a profit selling and configuring SCO Linux servers. Not a lot,
but enough to make ends meet while I am in school. SCO "dropped?" the
linux line and caused me a loss of income. Can I sue?

I have no intention of begrudging IBM a single penny of SCO's cash. It just
happened to be a stray thought about standing. My income was directly harmed by
SCO's stupidity. It hurt.

-- Alma

[ Reply to This | # ]

Wallace Files Opposition to FSF Motion to Dismiss
Authored by: geoff lane on Friday, June 24 2005 @ 05:25 PM EDT
I just have to ask, what is Gromit doing why Wallace is bothering the US federal
courts?


---
I'm not a Windows user, consequently I'm not
afraid of receiving email from total strangers.

[ Reply to This | # ]

Daisy Dunce copied my Homework
Authored by: stats_for_all on Friday, June 24 2005 @ 05:33 PM EDT
Mr. Daniel Wallaces reply brief has a sense of deja-vu when compared to messages posted to the Y! SCOX message board by nym "day5done".

For the record, the Mr. Wallace's brief has 4 case law citations. All four exerpts can be found in Ms. Daisy's Y! board postings. I've helpfully extracted message numbers for others wanting to verify the unusual perspicatcity of Ms. Daisy.

    msg 271625 - Kirksey v. RJ Reynolds - Page 1
    msg 275766 - Wright and Miller 12E rule - Page 2
    msg 275042 - Arizona v. Maricopa - Page 3
    msg 275418 - Blue Cross V. MARSHFIELD CLINIC - Page 4

I noted earlier that "day5done" first (March 2005) messages shared a very unually 55 character line break and a blank character indented quote spacing with messages signed by Daniel Wallace on other forums. This characteristic changed after I brought it to day5done's attention.

Beyond troll identification, the close correlation between day5done earlier posting and Mr. Wallace's court brief means an opposing counsel seeking to understand the pleading could consult the full opus of "day5done" to understand likely further arguments. Yahoeuvre is an indispensible tool, that permits searching by nym of poster.

[ Reply to This | # ]

Wallace Files Opposition to FSF Motion to Dismiss
Authored by: Anonymous on Friday, June 24 2005 @ 05:41 PM EDT

The only support for Wallace's future harm is his claim that he *might*
*someday* write a program and sell it. That clearly falls under the category of
hypothetical.

He offers no claim of harm already done.

He offers no facts to support imminent harm.

He does not even detail a scenario in which he is harmed, other then a vague, ‘I
might sell a program that does something and the market may be able to buy it
cheaper from someone who releases it under the GPL, causing me to lose money.’


Based on this hypothetical loss of unspecified wages for programming he might
someday do, he is asking that the most widely used copyright distribution
license in existence by invalidated.

I'm thinking he's gonna need more then that to get a case going.

[ Reply to This | # ]

Distinguishing Arizona v. Maricopa Medical Association
Authored by: overshoot on Friday, June 24 2005 @ 05:45 PM EDT
To help in distinguishing this case from Arizona v. Maricopa Medical Association, here is the background:

Motorola [1], in an effort to keep its employee insurance costs down, arranged with the Maricopa Medical Association to set "usual and customary" prices for medical services, usually (perversely) at or around the lowest rates generally charged in Maricopa County.

Now, it's true that insurance companies do similar things but they don't arrange for the docs themselves to set the prices. The State of Arizona Attorney General saw that there was, in effect, a cartel setting medical rates and filed suit.

Initial distinctions:

  • The AG has statutory standing to enforce antitrust law.
  • This was a patent case of horizontal monopoly, since all practitioners in the area belonged to the Maricopa Medical Association [1], and they had all gotten together to set prices.

[1] At the time the State's largest employer, nearly all in Maricopa County.
[2] Arizona counties are huge. It's a good-sized State with only 15 counties. Maricopa County covers more area than some States.

[ Reply to This | # ]

  • Oops - Authored by: overshoot on Friday, June 24 2005 @ 05:54 PM EDT
Hiden legal adviser found???
Authored by: Anonymous on Friday, June 24 2005 @ 05:50 PM EDT
Here is a posting on the Yahoo SCOX finance board by Stats_for_all pointing out that the cases cited by Wallace are precisely those mentioned in a series of postings about supposed problems with the GPL posted by someone with the nym day5done.

Perhaps the hidden adviser is day5done. Or (more likely) perhaps there is no hidden adviser and Wallace is simply reading postings critical of the GPL on the internet made by people with some legal knowledge. This might explain how he could miss such a basic element as lack of standing which wouldn't normally be something talked about in such a discussion.

[ Reply to This | # ]

Vertical vs Horizontal
Authored by: Anonymous on Friday, June 24 2005 @ 05:50 PM EDT
From what little bit of Googling I've done vertical price fixing can be allowed
under antitrust law. One of the elements is that a maximum price is
established. It seems to be the case wherein FSF software is incorporated into
other software according to the terms of the GPL. The maximum price is set at
$0.

Wallace is arguing that a naked horizontal price fixing agreement exists. My
take from limited understanding of antirust law is that horizontal agreements
are agreements among competitors. Only in this answer does Wallace allege a
horizontal price fixing scheme, yet he does not identify any competitor with
whom FSF has established this agreement.

Anyone deriving and distributing software product from FSF copyrighted software
falls under the umbrella of distributor/wholesaler/retailer and would be part of
a vertical agreement.

Anyone developing their own code from scratch and adopting the GPL as a license
for distribution is according to Wallace engaging in naked horizontal price
fixing. Does someone who adopts the GPL automatically establish an agreement
with FSF? That seems like a stretch.

I'm betting that the vertical argument will completely gut Wallace's complaint,
and that he'd love to establish the horizontal price fixing. Does anyone think
he did that with this answer?

Anyhoo, I think the whole antitrust argument is just the mechanism Wallace is
using to argue that the GPL is a contract. He certainly states that clearly in
his original complaint. The Clayton Act is the only possible hook he would have
to establish standing, and he does that so poorly I doubt it will survive the
dismissal motion.

-Chugiak

[ Reply to This | # ]

Does the US have the legal concepts of "a reasonable person" and "perverse result"?
Authored by: Anonymous on Friday, June 24 2005 @ 06:27 PM EDT
Reading about Merkey's doomed case made me think of a couple of concepts that
don't appear to feature in the usual SCO v IBM docs or discussions.

IANAL - but I'm aware that, in the UK, judges often make use of the above
concepts to ensure that a putative judgement is not "perverse". Which
means that it would not seem, say, outlandish to a "reasonable person"
(which is an actual legal term).

In other words, if an absolute strict reading of the law would produce a result
that the average man in the street would say of it "that's absolutely
crazy" then they'll interpret the law in a way necessary to produce a
"reasonable" outcome.

Is it the same in the US? Just curious.


[ Reply to This | # ]

Courts bending over backwards
Authored by: josmith42 on Friday, June 24 2005 @ 06:56 PM EDT

Since Wallace failed to counter the FSF's argument that he lacks standing, will the court bend over backwards and tell him he needs to argue that, or else the court will dismiss the case? If the court really wants to bend over backwards for a pro se litigant, it seems to me they will tell Wallace what he needs to argue to keep the case alive.

---
This comment was typed using the Dvorak keyboard layout. :-)

[ Reply to This | # ]

Stayed pending SCO-IBM outcome
Authored by: Anonymous on Friday, June 24 2005 @ 07:25 PM EDT

Why not? Merkey, too.

File a hundred lawsuits against Linux. Stay them all until SCO-IBM is over. Then
you can point to how many lawsuits there are against Linux, and that Linux
hasn't won any of them.

[ Reply to This | # ]

Horizontal vs. vertical price fixing
Authored by: sk43 on Friday, June 24 2005 @ 07:29 PM EDT
According to Wallace:
The Plaintiff has unequivocally alleged a conspiracy among commercial competitors and the present Defendant to fix the price for computer programs. This is a classic per se horizontal restraint of trade.
There is a big problem with this assessment: the FSF is a non-commercial organization, and Wallace does not (and cannot) allege that the FSF is in competition with the commercial companies, as would be necessary for there to be horizontal price fixing. Indeed, as the FSF pointed out in their motion to dismiss, if one construed all the facts alleged by Wallace as price fixing, it would be a case of vertical price fixing. Wallace is trying to shoe-horn a square peg into a round hole.

[ Reply to This | # ]

PJ's mistakes
Authored by: Anonymous on Friday, June 24 2005 @ 07:44 PM EDT
With all due respect to PJ (I appreciate Groklaw), she is
wrong on two counts:

1) The courts are riddled with Don Quixote plaintifs. The
two I can name off the top of my head are:

a) Daniel Wallace
b) The SCO Group

2) Constitutional principles <b>do</b> vary by
jurisdiction. They're not supposed to, but they do.
Here's an example:

Many years ago, the Michigan Supreme Court ruled that
private property (land, houses, etc.) could be seized by
local governments and given to corporations under the
guise of Imminent Domain (an abuse of the 5th amendment).

Last year (2004, for historical record), the Michigan
Supreme Court reversed itself saying that the decision was
an awful abuse of Constitutional principles. See
http://www.americandaily.com/article/4626 for details.

This year, the United States Supreme Court ruled that
private property could indeed be confiscated and given to
corporations with no more than an informal promise of
development. If the corporation decides to not develop,
it gets to keep the private property anyway.

Sorry, PJ, but you are viewing the courts through rose
colored glasses on this one.

[ Reply to This | # ]

Sanctions
Authored by: Anonymous on Friday, June 24 2005 @ 07:52 PM EDT
The Motion to Dismiss was a total waste of time and Wallace knew it.

"Given the Federal Rules simplified standard for pleading, '[a] court may
dismiss a complaint only if it is clear that no relief could be granted under
any set of facts that could be proved consistent with the allegations.' Hishon
v. King & Spalding, 467 U. S. 69, 73 (1984)."; Swierkiewicz v. Sorema
(534 U.S. 506).

1) How does anyone (i.e. F.S.F.) know the "any set of facts that could be
proved" before discovery even begins?

2) Does Wallace have a right to present evidence to the Court at trial?

3) Does he have to prove his case on the face of his Complaint?

The F.S.F. attorney should be sanctioned for this nonsense.


[ Reply to This | # ]

So, why GPL?
Authored by: Jude on Friday, June 24 2005 @ 08:19 PM EDT
I find it curious that Wallace doesn't say what kind of program(s) he might try
to sell in the future, but he nonetheless seems sure that the hypothetical
unfair competition he might face would be a GPL-licensed program. There are
plenty (some have said there are too many) FOSS licenses to chose from, yet
Wallace specifically targets GPL in his request for court intervention.

I would liken the situation to one in which a plaintiff seeks to have a
particular brand of automobile banned from the roads, but gives only reasons
that would apply equally well to any automobile.

I'm curious to know if there is a proper legal term for this kind of seemingly
arbitrary discrimination, and whether or not it is a weakness in Wallace's
case.

[ Reply to This | # ]

Wallace Files Opposition to FSF Motion to Dismiss
Authored by: Anonymous on Friday, June 24 2005 @ 11:44 PM EDT
Well, of course not. He hasn't filed any discovery motions yet.

[ Reply to This | # ]

More interesting than the content of the Wallace filing
Authored by: Anonymous on Saturday, June 25 2005 @ 12:46 AM EDT
Maureen O'Gara's article on Linuxgram extensively citing Wallace's latest
filing, appeared virtually simultaneously if not BEFORE, Wallace's filing
appeared in Pacer.

How did that happen?

[ Reply to This | # ]

Is it smart to feed Wallace's ego this way?
Authored by: Anonymous on Saturday, June 25 2005 @ 01:48 AM EDT
The man is obviously a lunatic so why devote so much space to his ravings on an
otherwise credible website. Even demonstrating that he is "connected"
just feeds his ego and suggests that his claims need to be taken seriously. Why
not wait until a judge decides he has a case before investing any more effort
into covering his arguments?

[ Reply to This | # ]

Wallace PDFs do not work in Preview (MacOS X 10.3.9)
Authored by: Anonymous on Saturday, June 25 2005 @ 03:31 AM EDT
That they appear to contain no text but a blue header on each of several
otherwise blank pages.

[ Reply to This | # ]

Wallace Files Opposition to FSF Motion to Dismiss
Authored by: blacklight on Saturday, June 25 2005 @ 06:21 AM EDT
Daniel Wallace won't be harmed by the competition provided by the GPL if he can
write proprietary software that is superior to GPL'ed software, and can convince
his potential clients that his proprietary software is worth paying for - In
other words, Daniel Wallace won't be harmed if he can compete effectively. The
fact that Daniel Wallace is suing is that he lacks have the confidence to
perform either task, and perhaps his lack of confidence in his technical
abilities and his ability to run a business are well founded - He knows himself
best.

My blunt reply is that no one of us in the Open Source community owes him a
living, and inherently within his right to be as stupid as he wants to be is his
right to die of starvation from his stupidity. His competitors have the right to
licence their own copyrighted code anyway they want to, and he certainly has no
right or standing to tell them how to dispose of their own property.

It is undeniably true that the fostering of competition in a market does have a
restricting effect on the entry of born losers into that market, but this
restricting effect is an intended side effect of the fostering of competition -
winners are supposed to win, and losers are supposed to lose. Period.

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If I were a judge...
Authored by: Bas Burger on Saturday, June 25 2005 @ 11:27 AM EDT
I would have no trouble dismissing if I were judge.

Nobody has a right to make money persé, It is not up to a court to decide who
has right to make money because it implies that all other people should lack
that right.

Didn't we let the market decide who has a right to make money? If Wallace can't
compete for whatever reason except fighting a monopoly or cartel, he should find
him another job which can make him some money, like any other person normally
does.

I think this should cost him for disrupting the courts for some frivolous case.

Bas.


---
DIRECTUS ELATUS PERTINAX

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A Thought Experiment
Authored by: rsteinmetz70112 on Saturday, June 25 2005 @ 01:19 PM EDT
Einstein is famous for his thought experiments. Since Wallace claims to be a physicist I though it might be interesting to apply that technique here concerning Wallace's suit.

Here is the experiment:
Under what set of possible facts can the GPL cause antitrust damage to a software developer?
In order to understand his claims I have been trying to come up with something which might actually happen. Everything comes back to the fact the the individual copyright holders have a barely limited legal monopoly to do whatever they want with their creations, including defining how someone else may incorporate them into derivative works.

Anyone else want to try?

---
Rsteinmetz

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

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Very nice legal and economic analysis
Authored by: Anonymous on Saturday, June 25 2005 @ 05:08 PM EDT
This is a PDF paper (~150 pages) from Princeton and is a *very* nice summary of the legal and economic background to predatory pricing.

In particular the authors' suggest the use of 'the long run average incremantal cost' for intellectual property on pages 42-44 of the PDF for the analysis of predatory pricing. Strangely enough this is exactly what the GPL recommends also.

There is enough material in this paper to throw any suggestion of predatory pricing by the FSF out of a US (and possibly any another) court.

In spite of the paper's lenght I recommend reading it all.

PDF

--

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Wallace Files Opposition to FSF Motion to Dismiss
Authored by: gtall on Saturday, June 25 2005 @ 06:59 PM EDT
"If you recall, I said that I believed the complaint was deliberately
amateurish to hide what I guessed was a hidden lawyer in the wings, and I
predicted as we went along, if I was correct, the work would show improvement,
and so we do see that improvement."

Errrr...as a logician, I find this bit of...what...reasoning to be specious. One
cannot argue that because one stated that if something were to happen because of
X, that if something did happen, then it was because of X. Example: I predicted
the moon was made of rock because my two Siamese house weasels performed the
Siamese Rock Charm. Expeditions to the moon have confirmed it was made of rocks,
therefore it was so because those two Siamese house weasels performed their
charm.

Actually, I buy your (PJ's) intuition about scenario actually is, but it I think
it to be intuition, not logical reasoning.

Gerry

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