decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Wallace v. FSF - Wallace Loses, Must Pay Costs
Monday, March 20 2006 @ 09:26 PM EST

I thought you'd be interested in knowing that the Wallace v. FSF case has been dismissed, with Mr. Wallace ordered to pay the Free Software Foundation's costs. Mr. Wallace's fourth Amended Complaint was dismissed and the Free Software Foundation's Motion to Dismiss was granted. It's the Order that tells Wallace to pay the Free Software Foundation's 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.

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.

When you read the judge's decisions, you will be able to count all the mistakes the plaintiff made. I won't itemize, because I decided from the beginning not to educate Mr. Wallace and it feels kind of cruel, but the judge highlights a couple of them -- that despite the judge clearly telling him where his previous complaint was lacking, he didn't fix it. As the judge explains, if you are granted an opportunity to fix a complaint and you fail to do so, the court isn't under any obligation to let you try, try again. In this case, he had five tries.

When you have no legal training, you are bound to make mistakes. People think that because the law is in English, that they get it. I keep explaining that it's English up to a point, but it's really code -- words in the law don't always have exactly the same meaning as the same word in normal use. Then there are all the procedural rules that you won't know. Like not attaching the GPL to your proposed complaint, unless you want the give the judge the opportunity to consider it when making his ruling, thus handing him an easy way to toss your case.

Do you know how hard it is to get a complaint tossed out? The judge himself explains the standard of review:

When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the factual allegations contained in the complaint, as well as the inferences reasonably drawn therefrom. A dismissal is appropriate only if the plaintiff can establish no set of facts, even if hypothesized, consistent with the allegations of the complaint that would entitle him or her to relief.... Moreover, the court must examine only the complaint, and not the merits of the lawsuit.

And he still got thrown out, with everything weighted on his side. Not only thrown out, he's not allowed to amend again. Here are the reasons you can be told you can't amend: "a court may deny leave to amend for undue delay, bad faith, dilatory motive, prejudice, or futility." Take your pick as to which one applies. They're all awful. But the judge cites futility. The lesson? It's one thing to write "legal" nonsense on a message board; it's entirely different to present that nonsense in a court of law. Nothing stops you if you just must, but you'll end up losing and probably paying costs to boot. Costs are not the same thing as lawyers' fees, by the way. If you really make a judge mad, you may end up paying those too.

So, the end result is, the GPL went to court, and the judge not only upheld it, he said this:

[T]he 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.

I'm sure that was not Mr. Wallace's intention, to strenghten the GPL. But he did.

So, what do you think? Will we still have to listen to nonsense about the GPL not being a real license? That it's never been tested in court? That it undermines the marketplace? That it's unfair competition?

All that SCO FUD was answered in a little courtroom in Indiana today.

***************************

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

_____________________

DANIEL WALLACE,

Plaintiff,

v.

FREE SOFTWARE FOUNDATION, INC.,

Defendant.

___________________

1:05-cv-0618-JDT-TAB

ENTRY GRANTING REASSERTED MOTION TO DISMISS (Docket No. 34)1

___________________

On November 30, 2005, Plaintiff Daniel Wallace filed pro se his Fourth Amended Complaint, in which he seeks injunctive relief to remedy alleged violations of Section 1 of the Sherman Act, 15 U.S.C. § 1. Two days earlier, in its Entry Granting Motion to Dismiss the Complaint (“Entry”), the court had dismissed the previous iteration of Mr. Wallace’s complaint, and granted him leave to amend the complaint to cure its deficiencies. The Fourth Amended Complaint purportedly cures those deficiencies, and again seeks to enjoin “the restraint of trade by way of a licensing scheme to fix the prices of computer software products” allegedly perpetuated by Defendant Free Software Foundation, Inc. (“FSF”). (Fourth Am. Compl. 1.)

On December 29, 2005, FSF moved to dismiss the Fourth Amended Complaint, arguing that it fails to state a claim upon which relief can be granted under Federal Rule

of Civil Procedure 12(b)(6). Mr. Wallace responded to the motion on January 3, 2006, with a reply brief being filed on January 24, 2006. The motion to dismiss therefore is fully briefed and ripe for determination.

I. PLAINTIFF’S FOURTH AMENDED COMPLAINT

The allegations raised for the first time in the Fourth Amended Complaint are set forth below. Rather than repeat its previous summation of the remaining allegations, the court instead refers the parties to its November 28, 2005 Entry.

Mr. Wallace now contends that FSF has conspired with International Business Machines Corporation, Red Hat Inc., Novell Inc. and other individuals to “pool and cross license their copyrighted intellectual property in a predatory price fixing scheme.” (Fourth Am. Compl. 2-3.) He contends that the scheme is carried out through a “predatory price fixing agreement . . . to pool and cross license . . . intellectual property with others” (id. 3) known as the GNU General Public License (“GPL”).

Mr. Wallace adds a section in the Fourth Amended Complaint entitled “INJURY,” in which he states that the predatory price fixing scheme is “foreclosing competition in the market for computer operating systems.” (Id.) Specifically, it “prevents Plaintiff Daniel Wallace from marketing his own computer operating system as a competitor.” (Id.)

2

II. MOTION TO DISMISS

In its Reasserted Motion to Dismiss, FSF requests that the court dismiss the Fourth Amended Complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). FSF contends that the complaint fails to address the deficiencies identified by the court in its November 28, 2005 Entry, including that the “injury allegedly suffered by Plaintiff is not one that the antitrust laws were meant to address.” (Mot. Dismiss 5.) Furthermore, FSF argues that Mr. Wallace lacks standing to bring the Fourth Amended Complaint because he does not allege “any facts to show that in fact he is prepared to enter the market for providing computer operating systems.” (Id. (citations omitted).) FSF requests not only that the court dismiss the Fourth Amended Complaint, but also that it deny Mr. Wallace leave to further amend the complaint.

Mr. Wallace responds that his Fourth Amended Complaint adequately sets forth the three material elements of his claim under § 1 the Sherman Act. He states that he has alleged 1) that the GPL constitutes a “contract, combination or conspiracy” (Resp. 2); 2) that the GPL creates an unreasonable restraint of trade (id. 6); and 3) that the GPL has caused him injury (id.10). As a result, Mr. Wallace contends that he has “directly or inferentially alleged that the defendant has used an express contractual agreement to conspire with named co-conspirators and engage in an unreasonable restraint of trade by fixing prices at predatory levels.” (Id. 13-14.)

3

A. Standard of Review

When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the factual allegations contained in the complaint, as well as the inferences reasonably drawn therefrom. Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000); Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 730 (7th Cir. 1994). A dismissal is appropriate only if the plaintiff can establish no set of facts, even if hypothesized, consistent with the allegations of the complaint that would entitle him or her to relief. See Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994). Moreover, the court must examine only the complaint, and not the merits of the lawsuit. See Autry v. Nw. Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998).

B. The Plaintiff Again Has Not Alleged An Antitrust Injury.

In its November 28, 2005 Entry, the court pointed to a fatal flaw in Mr. Wallace’s Third Amended Complaint — he did not allege an antitrust injury upon which his claim under Section 1 of the Sherman Act could move forward. (Entry 11.) The court noted that in order to assert a Section 1 claim, a plaintiff must allege that he or she suffered “injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ act unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 486 (1977). This generally means an anticompetitive effect. Id. at 489. The court found that Mr. Wallace’s purported injury, that he was “threaten[ed] from entering into the market with his own computer operating system” (Third Am. Compl. 3),

4

was not of the sort that antitrust laws were intended to prevent, and dismissed his complaint with leave to amend. (Entry 11.)

Mr. Wallace has amended the complaint to add more detailed allegations relating to his injury. He now asserts that the GPL is “foreclosing competition in the market for computer operating systems.” (Fourth Am. Compl. 3.) Specifically, it “prevents Plaintiff Daniel Wallace from marketing his own computer operating system as a competitor.” (Id.) Mr. Wallace argues that this amendment saves his complaint from dismissal. The court disagrees. The injury set forth in the Fourth Amended Complaint, which the court acknowledges is subtly different than that alleged in the previous complaint, still suffers from the same infirmity identified in the court’s November 28, 2005 Entry — it does not state an injury cognizable under antitrust laws.

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

5

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. See Jason B. Wacha, Taking the Case: Is the GPL Enforceable, 21 Santa Clara Computer & High Tech L.J. 451, 487 (2005). And the Sherman Act “was enacted to assure customers the benefits of price competition, and . . . prior cases have emphasized the controlling interest in protecting the economic freedom of participants in the relevant market.” Assoc.’d Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S. 519, 528 (1983). Therefore, the court finds that the Fourth Amended Complaint does not adequately set forth an injury to competition as a whole.

The allegation in the Fourth Amended Complaint that the GPL is foreclosing Mr. Wallace from entering into the market for operating systems also is not a cognizable antitrust injury. The court understands Mr. Wallace’s argument that the GPL may be preventing him from marketing his own operating system, and, for the purposes of the instant motion, accepts that allegation as true. However, while this may be significant enough from Mr. Wallace’s perspective, a plaintiff must prove not only an injury to him or herself, but to the market as well, Martin v. Am. Kennel Club, Inc., 697 F. Supp. 997, 1003 (N.D. Ill. 1988), which Mr. Wallace has failed to do. As the court stated in its

6

November 28, 2005 Entry, reduced opportunity as a competitor does not necessarily equate to an antitrust injury as recognized by the courts. Brunswick, 429 U.S. at 488. Indeed, injury in fact is “a different beast” than antitrust injury. Prof’l Sports Ltd. P’ship v. Nat’l Basketball Assoc., 961 F.2d 667, 669 (7th Cir. 1992). And “whenever the plaintiff and consumers have divergent rather than congruent interests, there is a potential problem in finding ‘antitrust injury’. . . . When the plaintiff is a poor champion of consumers, a court must be especially careful not to grant relief that may undercut the proper functions of antitrust.” Ball Mem’l Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1334 (7th Cir. 1986).

Mr. Wallace has not alleged that anyone interfered with his freedom to compete in computer software market by creating his own operating system, one perhaps with features different from, or in addition to, that of the GNU/Linux operating system. Indeed, Mr. Wallace has that ability, regardless of whether the GPL is in force or not.

For these reasons, the court finds that Mr. Wallace’s Fourth Amended Complaint does not adequately allege an antitrust injury upon which his Section 1 claim may move forward. 3 The complaint therefore must be dismissed.

7

C. The Plaintiff is Denied Leave to Further Amend the Complaint.

FSF requests that the court deny Mr. Wallace leave to further amend his complaint, arguing that any fifth or subsequent amendment would be futile, particularly given Mr. Wallace’s failure to state a claim thus far. Even though Federal Rule of Civil Procedure 15(a) provides that “leave shall be freely given when justice so requires,” a court may deny leave to amend for undue delay, bad faith, dilatory motive, prejudice, or futility. See Foman v. Davis, 371 U.S. 178, 182 (1962); Arazie v. Mullane, 2 F.3d 1456, 1464 (7th Cir. 1993). The opportunity to amend a complaint is futile if “the complaint, as amended, would fail to state a claim upon which relief could be granted.” Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)). This standard is the same standard of legal sufficiency that applies under Rule 12(b)(6). Id at 623.

In this case, Mr. Wallace has had five opportunities to state a claim under Rule 12(b)(6). And the court twice has determined that he failed to do so. The court’s November 28, 2005 Entry even specifically highlighted Mr. Wallace’s failure to allege an antitrust injury, but Mr. Wallace’s subsequent complaint did not adequately address that failure. In such a situation, where Mr. Wallace has failed to remedy a deficiency expressly noted by the court, he should not, and will not, be granted leave to further amend his complaint. See Shanahan v. Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (a district court need not permit a plaintiff to amend a complaint if the amended complaint suffers from the same defects as the original complaint).

8

III. CONCLUSION

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.

An appropriate judgment will be entered.

ALL OF WHICH IS ENTERED this 20th day of March 2006.

___[signature]____
John Daniel Tinder, Judge
United States District Court

Electronic copies to:

Curtis W. McCauley
Ice Miller
[email]

Philip A. Whistler
Ice Miller
[email]

Copy mailed to:

Daniel Wallace
[address]


1 This Entry is a matter of public record and will be made available on the court’s web site. However, the discussion contained herein is not sufficiently novel to justify commercial publication.

2 The court may refer to the GPL in deciding the motion to dismiss because Mr. Wallace referred to it in his Fourth Amended Complaint. See Venture Assoc’s. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993).

3 FSF also argues that Mr. Wallace has not alleged that he is actually prepared to enter computer operating systems market. In light of the court’s ruling on the antitrust injury issue, it is unnecessary to address whether this contention is correct.

9

***************************

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

_____________________

DANIEL WALLACE,

Plaintiff,

v.

FREE SOFTWARE FOUNDATION, INC.,

Defendant.

___________________

1:05-cv-0618-JDT-TAB

JUDGMENT

___________________

The court, having decided that the Reasserted Motion to Dismiss should be granted, now therefore ORDERS, ADJUDGES AND DECREES that the Fourth Amended Complaint is DISMISSED and that judgment is entered in favor of the Defendant and against the Plaintiff. Costs shall be allowed the Defendant.

ALL OF WHICH IS ORDERED this 20th day of March 2006.

_________________
John Daniel Tinder, Judge
United States District Court

Laura A. Briggs, Clerk
By Evelyn A. Hollins, Deputy Clerk
United States District Court

Electronic copies to:

Curtis W. McCauley
Ice Miller
[email]

Philip A. Whistler
Ice Miller
[email]

Copy mailed to:

Daniel Wallace
[address]


  


Wallace v. FSF - Wallace Loses, Must Pay Costs | 324 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Correction
Authored by: Anonymous on Monday, March 20 2006 @ 09:34 PM EST
His application to file a <B>5th</B> amended complaint (i.e. his
sixth iteration) was denied.

His 4th amended complaint (i.e. his 5th iteration) was the one that was
dismissed

[ Reply to This | # ]

Off Topic
Authored by: Maciarc on Monday, March 20 2006 @ 09:43 PM EST
Notice the red text and make them clickety!

---
IANAL and I don't play one on TV, this is just an "anti-SCO Philippic."

[ Reply to This | # ]

Corrections here
Authored by: jbb on Monday, March 20 2006 @ 09:45 PM EST
... if needed.

---
Anyone who has the power to make you believe absurdities has the power to make
you commit injustices.

[ Reply to This | # ]

Bwahahahaaa
Authored by: inode_buddha on Monday, March 20 2006 @ 09:48 PM EST
That would be the ultimate llort - to bring such a case simply to prove the GPL
in a US court.

Naahh, just messing with your mind.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

Thank You Dan Wallace
Authored by: Anonymous on Monday, March 20 2006 @ 09:58 PM EST
You have single handedly made life easier on all of those that embrace the GPL.

Despite your attempts to do the opposite.

Freedom is infectious....

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: Yossarian on Monday, March 20 2006 @ 10:00 PM EST
> When you have no legal training, you are
> bound to make mistakes.

A couple of questions:
1) Considering the price of a failed complaint, had not
it been cheaper, for Wallace, had he consulted with a
lawyer first? (I consulted with lawyers three time in
life. In two of them the lawyer told me "don't do it.")

2) Will Wallace be stupid enough to try again and/or go to
an appeal court?

3) Why did not Wallace just copy Linux and added his additions? According to
GPL he would have to ship the
changes only to paying customers, not to Linus. I mean,
the problem of somebody else, following GPL, copying his
changes would be a problem only if he would have a paying
customer base. Not a big problem for an one man operation.

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: Kaemaril on Monday, March 20 2006 @ 10:06 PM EST
http://www.groklaw.net/pdf/WallaceOrder.pdf (second link) appears to be missing.

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: The Mad Hatter r on Monday, March 20 2006 @ 10:19 PM EST


What I love about Groklaw is how much I've learned about the law. Really. I
always knew it was important, but now I have a far better understanding not only
of why it's important, but how it works.

Which doesn't make me a lawyer - but as I've said before I now wish I'd taken
law after high school.


---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

zing!
Authored by: grouch on Monday, March 20 2006 @ 10:26 PM EST
PJ said:
All that SCO FUD was answered in a little courtroom in Indiana today.

Now THAT is a zinger! I have grown so dead-tired of all the silly "not tested" FUD over the years (pre-dating SCO by a considerable amount, too). Somebody should tell the Judge what ripples of relief and satisfaction his simple proclamation will give.

Have to read the whole thing now. :)

---
-- grouch

http://edge-op.org/links1.html

[ Reply to This | # ]

Taking the Case: Is the GPL Enforceable
Authored by: stevem on Monday, March 20 2006 @ 11:08 PM EST
As referenced in the decision is available online here:
http://www.open-bar.org/papers.html
About halfway down the page - PDF.

- SteveM

[ Reply to This | # ]

What does "costs" actually mean?
Authored by: Anonymous on Monday, March 20 2006 @ 11:11 PM EST
PJ, you mentioned in your analysis that costs is not the same thing as legal
fees. What does it comprise exactly? Is it the various filing fees? A fixed
cost per motion set by some fee schedule that partially compensates the
defendant's legal fees? Something else?

b

[ Reply to This | # ]

Costs in the SCO case?
Authored by: kawabago on Monday, March 20 2006 @ 11:41 PM EST
What would costs in the SCO case amount to? I hope IBM manages to shed light on
the money pipeline from Microsoft to SCO so they can follow it back for costs!

I just had a flash image in my mind of thousands of small OSS entities sucking
money out of the bloated corpse of Microsoft. Too bad I'm not psychic.

[ Reply to This | # ]

Thanks, PJ -- This news just made my day!
Authored by: Anonymous on Monday, March 20 2006 @ 11:45 PM EST

[ Reply to This | # ]

What does Footnote 1 mean?
Authored by: penfold on Monday, March 20 2006 @ 11:56 PM EST
This Entry is a matter of public record and will be made available on the court’s web site. However, the discussion contained herein is not sufficiently novel to justify commercial publication.
Is this the judge's way of saying, "Move along, nothing to see here."

I just thought it was a very odd way to begin an entry.

---
The worth of man is determined by the battle between good and evil in the mans subconcious.The Evil within is so strong that the way to win is to deny it battle

[ Reply to This | # ]

Thank you Mr. Wallace
Authored by: Anonymous on Tuesday, March 21 2006 @ 02:35 AM EST
Just one question, does this court decision make a precedent?
Is it useful in future GPL appearances in court?
If yes, we must thank Mr. Wallace that he sponsored the trial of GPL in law from
his own pocket.
Everyone, except Microsoft will be grateful.

[ Reply to This | # ]

Hey, that's interesting -- a law journal article on the GPL.
Authored by: Anonymous on Tuesday, March 21 2006 @ 04:20 AM EST
The judge in this ruling cites "Jason B. Wacha, Taking the Case: Is the GPL Enforceable, 21 Santa Clara Computer & High Tech L.J. 451, 487 (2005)." Expanding that, that's the Santa Clara Computer and High Tech Law Journal, volume 21 (published in 2005), starting at page 451. It looks like copies are available from my university library connection; it may be possible to find a copy at a large public library as well.

Anyhow, since I've got access to a copy, I'll write out some stream-of-consciousness notes as I read through it....

Briefly, Mr. Wacha is the General Counsel for MontaVista Software, which does embedded Linux stuff. He starts out by noting that much of the legal analysis of the GPL that's available starts out with the acronym "IANAL", and ranges from "completely off the mark to well-informed solid arguments." I find that sort of amusing, given how frequently the acronym shows up here!

He also notes a court case, MontaVista vs. Lineo, in which a part of the question was whether Lineo had violated the terms of the GPL. (Apparently both parties agreed that the GPL was valid, so that was not in question; Mr. Wacha says that this is typical for court cases involving the GPL. I wonder what that does to the "The GPL has not been tested in court" claims!) Much reference is made to the SCO case, and the relatively novel claim of SCO that the GPL is unenforcable.

Mr. Wacha claims that, because the GPL imposes obligations on the licensee, which they accept by distributing or modifying the licensed software, it is effectively a contract, and should be treated as such. (He also notes that a "conditional license" -- that is, one which can be revoked based on certain conditions -- is in general effectively a contract.)

The bulk of the article is a set of 11 challenges to the GPL, and discussions of these challenges with rebuttals. The one ranked most ludicrous is "The GPL violates the U.S. Constitution," which Mr. Wacha dismisses with a flat "No, it does not," before going on to explain in detail, including some explanations of flaws in SCO's pleadings.

Again with the "The GPL has never been tested in court," Mr. Wacha cites Computer Associates v. Quest Software as an indirect test in U.S. courts, which concluded that (to quote Mr. Wacha's summary), "use of software subject to the GPL in the development of ... software programs did not render the resulting software subject to the GPL." (I presume this is rejecting the "If you compile your code with GCC, you must release it under the GPL" FUD, or something close to it.)

Back to the "Is the GPL a valid contract?" question, he notes that there is legal precedent for the idea that contracts can be accepted by one's actions, and that exchange of "something of value" does not only mean money, and can almost certainly include the licensee's promise to abide by the terms of the GPL. (In addition, the distinction between license and contract is apparently something of some peculiarity to U.S. law; German law, for instance, does not have such a distinction, and the GPL was considered to be a contract in Welte v. Sitecom.)

One of the two challenges that Mr. Wacha finds potentially meaningful is the challenge that the GPL does not adequately define "derived work". This he dismisses, though admitting that the GPL is vague on this point, with a claim that it is not so vague that a court would invalidate it on those grounds -- and, in particular, that it can probably be clarified by reference to the specific facts of any given case that might be brought. (I presume there might be a basis for some argument at the edges, such as where SCO is making its "methods and concepts" argument.)

The other most-meaningful challenge, in Mr. Wacha's estimation, is the claim that the GPL does not meet the requirements for a valid click-through or shrink-wrap "license" contract. One particular question is whether it can be assured that the licensee has recieved and accepted a copy of the GPL prior to accepting it by copying or distributing the software in question. He concludes that, in some cases, this could be a valid argument -- but that, in many cases, a court is likely to be able to determine that the licensee was aware that the GPL covered the software in question. This is probably something worth paying attention to, though!

Overall, this seems like a quite well-written article, and something that I think PJ would find rewarding to follow up on -- both on the article itself, and the court cases I mentioned. (I also would note that, unlike most scientific journals, the authors in law reviews retain copyright to their articles; perhaps Mr. Wacha would consent to having his article republished here?)

- Brooks

(Disclaimer: I am not a paralegal. For a proper summary, consult one!)

[ Reply to This | # ]

GPL not upheld though judge says nice things.
Authored by: dinotrac on Tuesday, March 21 2006 @ 04:26 AM EST
The Court did not uphold the GPL, much as we might wish
that were true.

The court dismissed Wallace's case and said some nice
things about the GPL in the process.

The difference matters. As you point out in the article,
a dismissal doesn't go to merits. Rather, it goes to
whether the pleadings even state a case. Wallace never
made a case. Period.

The dismissal has no precedential value of any kind. It
means nothing other than some expense for the loser and
an official "Get out of my hair" from the judge.



---
The truth sucks, but it beats the alternatives

[ Reply to This | # ]

Get this judge a job in WIPO
Authored by: Anonymous on Tuesday, March 21 2006 @ 04:57 AM EST
<i>[T]he 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.</i>

That's strange... How can that be, when the WIPO has told us that:
<i>"Open-source software runs counter to the mission of Wipo, which
is to promote intellectual-property rights."</i>

Does that mean that the WIPO is not about more innovation?

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: tredman on Tuesday, March 21 2006 @ 08:05 AM EST
"The motion to dismiss therefore is fully briefed and ripe for
determination."

Boy, is it ever.

Though I agree with his reasoning, I didn't get the impression that the judge
fully understands the scope and application of the GPL. The way he describes
it, it's almost like he's exclusively linking the GPL and Linux, or the GPL and
operating systems. I don't think that he demonstrates knowledge of the grandeur
of software applications that are available under the GPL and similar licenses.

But still, considering that the sum total of the suit resulted in the judge
swatting DW like a fly, not a bad way to start the day.

---
Tim
"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

GNU/Linux?
Authored by: Aim Here on Tuesday, March 21 2006 @ 08:28 AM EST
While smacking down Daniel's $(umpteen-1)th complaint, the judge referred to
Linux rather neutrally as 'the Linux (or GNU/Linux) operating system', before
using the term 'Linux' throughout.
When thowing the last iteration in the bin, he exclusively uses the term
'GNU/Linux'.

Looks like Danny's persuasion skills have turned Judge Tinder into a full-on
Stallmanite! Way to go Dan! Keep up the good work!

[ Reply to This | # ]

Re: FUD
Authored by: jplatt39 on Tuesday, March 21 2006 @ 08:51 AM EST
"So, what do you think? Will we still have to listen to nonsense about the
GPL not being a real license? That it's never been tested in court? That it
undermines the marketplace? That it's unfair competition?"

Pardon my saying so but these are True Believers. I don't think anything will
convince them that the GPL is an attempt to bring capitalism into the modern
world.

[ Reply to This | # ]

How much of a precedent is this case?
Authored by: Anonymous on Tuesday, March 21 2006 @ 09:02 AM EST
PJ -

Suppose you have to do research for a GPL-related lawsuit (consider Sveasoft
suing/being sued by/ somebody, for example). How significant this Wallace thing
would be, what would you flag for your lawyer, what was and wasn't established
by court (as opposed to just said by the judge).

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: Anonymous on Tuesday, March 21 2006 @ 09:04 AM EST
Interesting enough that Groklaw is on their list of links. Groklaw

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: Anonymous on Tuesday, March 21 2006 @ 09:52 AM EST
> If you can't find a lawyer willing to represent you,
> it usually means you don't have a case.

Unfortunately, there are people out there who think that if you *can* find a
lawyer willing to represent you, you *do* have a case ...

[ Reply to This | # ]

Give the Judge a medal.
Authored by: rsteinmetz70112 on Tuesday, March 21 2006 @ 10:09 AM EST
For the Judge to sit through this sillinesses when he undoubtedly has a docket
full of real cases and give into the temptation to make an example of Wallace is
an example of Judicial Temperament which I admire.

Since this case was decided and costs awarded, can FSF apply for or sue for
attorneys fees?

---
Rsteinmetz - IANAL therefore my opinions are illegal.

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

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: Anonymous on Tuesday, March 21 2006 @ 10:45 AM EST
Dear Mr. Wallace:
The results of your law suit efforts appear to be best categorised as
"auribus teneo lupum."

[ Reply to This | # ]

Wallace v. FSF - Daylight on Puppet Strings?
Authored by: Anonymous on Tuesday, March 21 2006 @ 10:57 AM EST

Just curious... it is implied in this article that this guy had help, support, something from SCO. Also, that the discovery process would possibly bring this to light.

So? Did this guy have help? Was he a pro se "lone gunmen" as was alleged? I haven't been following this closely and was just wondering what happened with that?

[ Reply to This | # ]

Why wasn't Grommit in the suite as well?
Authored by: kawabago on Tuesday, March 21 2006 @ 11:25 AM EST
They work so well together.

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: jsusanka on Tuesday, March 21 2006 @ 11:37 AM EST
"[T]he 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."

all I can say is sweeeeeeeeeeeeeeet!!!!

linux should use this as an advertising slogan or
something. just to "get the facts" out about what open
source is about.

at least this judge gets it.

[ Reply to This | # ]

"Unenforcable"
Authored by: scott_R on Tuesday, March 21 2006 @ 02:26 PM EST
Maybe it's just me, but the whole concept of the GPL being unenforcable seems
alien to me. Every agreement is enforcable. My understanding of the reason the
law/courts exist is to make sure that "enforcement" doesn't get out of
hand, aka the Wild West.

Not that I think we should ever go THAT far, but it's somewhat amusing to me
that we are conditioned to view the subject from the opposite perspective, that
agreements are unenforcable UNTIL a court approves them. I think that's part of
the reason folks like the Professor and our buddies at SCO live in the skewed
worlds they do. They don't seem to realize that the laws, even ones that work
against their desires, are there to protect them as much as the parties they
attack.

[ Reply to This | # ]

A double irony
Authored by: ExcludedMiddle on Tuesday, March 21 2006 @ 02:38 PM EST
It goes to show: The courts are just part of the game, you really need to see
the whole picture if you're going to take actions. Not that anyone has ever
accused Mr. Wallace's of clear thinking. But his goal, ostensively, was to try
to get the courts to ban the GPL on anti-trust grounds. The overall effect is
twofold:

1. He got the judge to make comments that support the GPL.

2. He's going to be personally financially supporting the FSF's lawyers.

Playing the game, you don't take actions like these unless you feel that you can
win. Beucase if you make a poor choice, you can end up supporting your opponents
goals instead. You really have to play to win, and Mr. Wallace has done the
opposite. Why anyone would make such a big case on a Pro-se basis is really
beyond my capability to understand.

The SCO case has some interesting parallels. It's already done good by spreading
the word about Linux. And, further, when SCO loses, it will likely put to rest a
number of issues things that Microsoft would probably rather leave unanswered,
such as the provenance of Linux and the legality of the GPL. Something that the
communities in support of open source could never have settled on their own.

I wish that they wouldn't keep pushing back the deadline for Dispositive
motions. Really, this part is boring. Mostly because we can't see what's really
happening. Both sides have already gotten a lot of meaty material. All of those
lovely depositions, and we never get to see any of it. The only glances we've
had at the substance of this case has been what we've read in motions. And so,
unfortunately, we just have to bide our time until August.

That, and they've stopped making all of these loud outrageous claims that were
so entertaining to dismantle. They really aren't much fun anymore, are they?

[ Reply to This | # ]

Why do they write the law in code?
Authored by: Anonymous on Tuesday, March 21 2006 @ 03:07 PM EST
PJ Wrote: People think that because the law is in English, that they get it. I keep explaining that it's English up to a point, but it's really code -- words in the law don't always have exactly the same meaning as the same word in normal use.

This bothers me. Why can't they either write the law in real english, or create new words rather than misuse existing words by assigning them their own different meanings?

(If I recall, don't software folk use the phrase embrace-and-extend for this behavior)

[ Reply to This | # ]

What a great one-sentence summary
Authored by: Anonymous on Tuesday, March 21 2006 @ 03:35 PM EST
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."
Wow. That just wraps up the entire situation so perfectly. I'm impressed... It isn't often you get a chance to read a dry statement in judge's ruling and go "BURN!".

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: Anonymous on Tuesday, March 21 2006 @ 03:51 PM EST
>>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.

"Usually" is the key word here, I think. Has anyone heard of the
right all who are accused of a crime have, to an attorney at government expense
if they can't afford an attorney?

That was a pro se case, filed directly with the US Supreme Court in pencil. But,
it changed treatment of criminals forever (or people with Arabian connections
until 9/11 anyway, sarcasm intended.) And, the guy who filed it was released
from prison after a government funded attorney proved he was innocent of the
crime charged.

Pro se is like overhauling a car motor. It really isn't that hard, but there are
people who can't handle it. In my legal research for a father's rights group in
the 80's, we saw a number of men going pro se and overall they tended to do
better than those with attorneys -- IF they did their homework.

In this case, there were some complex issues, and the plaintiff clearly did not
first learn the basics of court filings. We saw plenty of attorneys in the 80's
who also did not first learn the basics of court filings. There is no magic in
having a license to practice law.

[ Reply to This | # ]

"Color" of the article
Authored by: Quila on Tuesday, March 21 2006 @ 04:23 PM EST
With a browser set to a certain width, "Free Software Foundation" can
show three times in a row, each perfectly on top of each other, creating a
strange "color" or general look of the text of the article. I suggest
not using the long name so many times in an article, "FSF" will
suffice in places after the first mention.

Yes, I used to do typography, and yes I was very anal about it.

[ Reply to This | # ]

"Pro se cases tend to be disasters"
Authored by: Anonymous on Tuesday, March 21 2006 @ 09:14 PM EST
PJ, I'm sure that must be right, 99.99% of the time.

In the UK though, we did get to enjoy the McLibel Trial :-)

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: Anonymous on Wednesday, March 22 2006 @ 04:26 AM EST
This decision didn't test the validity of the GPL. It simply notes that the
GPL-ed operating systems do not have monopoly power in the context of the
Sherman Act. The validity of the license itself is a different issue which was
neither brought up by the plaintiff nor addressed by the court.

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: Steve Martin on Wednesday, March 22 2006 @ 07:31 PM EST

Red Hat and Novell are jumping on this like a duck on a june bug. PACER Docket # 58:

"Defendants, Red Hat, Inc. ("Red Hat"), and Novell, Inc. ("Novell"), submit the attached Entry Granting Reasserted Motion to Dismiss, entered in Wallace v. Free Software Foundation, Inc., Cause No. 1:05-cv-0618-JDT-TAB (S.D. Ind. Mar. 20, 2006), attached as Exhibit 1, as supplemental authority in support of their pending Reasserted Motion to Dismiss in this action."

English translation: "Look, Your Honor, Wallace has already been ruled against for almost the same claim. Hint Hint..."

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Lawyer worth his salt...
Authored by: Anonymous on Thursday, March 23 2006 @ 11:15 PM EST

Remember when Wallace was telling us that any lawyer worth his salt will spit on the GPL before you can say "invalid". Well, this judge obviously isn't worth his salt:

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.

What, no mention of contracts? And what's this copyright thing all about?

You gotta love Danny - he tries really hard ;-)

[ Reply to This | # ]

Wallace v. FSF - Wallace Loses, Must Pay Costs
Authored by: Anonymous on Wednesday, March 29 2006 @ 03:23 PM EST
I just wonder why hadn't Wallace hire Grommit as his lawyer in the first place
:)

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )