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GPL Price-Fixing Lawsuit Dismissed 154

Posted by CowboyNeal
from the mostly-without-merit dept.
ansak writes "The case of Wallace vs. the Free Software Foundation has been dismissed. It wasn't entirely on the merits of the case. From PJ's analysis, 'despite the judge clearly telling him where his previous complaint was lacking, he didn't fix it.... In this case, he had five tries.' Nevertheless, the judge did make a strong statement that the GPL 'encourages, rather than discourages, free competition' and ordered Wallace to pay court costs: 'Judges do that when they'd like you to learn a good lesson. It's a signal you shouldn't have brought the case in the first place.'"
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GPL Price-Fixing Lawsuit Dismissed

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  • by Enigma_Man (756516) on Tuesday March 21, 2006 @11:17AM (#14964103) Homepage

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

    -Jesse
    • by Anonymous Coward
      Depends, most expensive I've seen was about a million, though the cheapest you can get is merely a photograph of a slightly compromising position. Depends on the judge really.
    • Depends on the length of the trial.
      Since I pled guilty and my trial (traffic) lasted ~10 min and my court costs were $340 or so here are some assumptions:
      $340 total traffic court costs (the fine was an additional $600 BTW)
      -$100 filing fee
      -$100 bogus crap not charged per hour
      =$140/hr for court costs.
      Figure if he had 5 tries as TFS said to get it right and each try was half a day of mucking about in the courtroom:
      20hrs * 140 = $2800 (+ the filing fees and such).

      Since I'm talking out my ass on this one I'm goi
      • Don't worry about accuracy. Your breakdown was probably more accurate than a Slashdot Poll

      • =$140/hr for court costs.


        But the trial only lasted 10 minutes, so that's $140 / 10 min, or $840/hr!

        20hrs * 840 = $16800 (+ the filing fees and such).

        Painful lesson, if the numbers are right.

    • I don't know how much the court costs run, but I imagine it's nominal compared to the sixty grand a year it'll cost the tax payers if the trial produces a guilty verdict. Think about that.
    • [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

      Having your case dismissed while simultaneously strengthening the GPL.... priceless.
    • by Ibix (600618) on Tuesday March 21, 2006 @12:58PM (#14964863)

      Courtesy of a post [groklaw.net] on Groklaw, court costs [law.com] don't include attorney fees (although they can be imposed, too). Another post [groklaw.net] in the Groklaw thread suggested a figure of about $2k (for the FSF's costs...), but PJ said [groklaw.net] probably lower. I understand Wallace has similar cases pending against RedHat, Novell, and IBM. He probably has similar chances of success. It's going to add up if he pushes...

      I

  • I love irony (Score:4, Interesting)

    by hey! (33014) on Tuesday March 21, 2006 @11:20AM (#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 @11:24AM (#14964150)
      More or less: pro se = "for yourself".

      • 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 AT aq DOT org> on Tuesday March 21, 2006 @12:08PM (#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. :-)
          • No it is defined in it's legal terms with in the court system it is used, Litigant Filing Without Counsel http://www.id.uscourts.gov/pro-se.htm [uscourts.gov], any other definition would be out of context.
    • Re:I love irony (Score:5, Informative)

      by slavemowgli (585321) on Tuesday March 21, 2006 @11:33AM (#14964217) Homepage
      "pro se" means "for himself" - in other words, he's arguing for himself, rather than having a lawyer argue for him.
    • Re:I love irony (Score:4, Interesting)

      by rewinn (647614) on Tuesday March 21, 2006 @11:34AM (#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!

      • 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 have when reading legal contracts and the like, as a software developer, is trying to avoid glaring at the enormous holes and more subtle flaws that pepper them. You'd think that such pedantic people would use tighter language, but apparently their feeble la
        • "...is trying to avoid glaring at the enormous holes and more subtle flaws that pepper them."

          Which only goes to show the fallacy of people thinking they can pick up a new language in a few hours, days, or even weeks. Without knowing the language, syntax, common assumptions, definitions, and design patterns, the standard functions, and the underlying framework that supports it, your understanding of what a given piece of code (contract) is going to do when executed is going to be, shall we say... less than

          • > the fallacy of people thinking they can pick up a new language in a few hours, days, or even week

            While I agree that part of the problem with trying to understand any technical document, whether engineering or legal, is the need for serious study of the relevant discipline's language, in my experience in the legal profession the prior poster is also correct that bad logic, holes, loose language and so forth is also very common in legal documents.

            Part of the problem is that law is, unlike engineering

    • 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/herself in court.
      http://clerkofcourt.maricopa.gov/glossary.asp [maricopa.gov]

      * To act on one's own behalf; appearing for oneself; representing oneself; to represent oneself in a court action without a

    • 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 cover charge. At least for those with the skills to represent themselves well.

      Gotta love our justice system: by the lawyers, for the lawyers.

  • by Bug-Y2K (126658) on Tuesday March 21, 2006 @11:25AM (#14964162) Homepage
    Bring on the talking heads to rile about "Activist Judges Out Of Control!"

    • Flamebait? I don't think so. I detected a strong hint of whisky and weaponry there (rye and iron, er..., wry irony... oh never mind, my meds are starting to kick in).

      cheers...ank
    • by Pharmboy (216950) on Tuesday March 21, 2006 @01:01PM (#14964894) 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.
      • um... I was joking Pharmboy.

        The problem with lawyers is their lack of a sense of humor. I should know I'm the son of a lawyer, and the husband of another.

        • Well, you've been here longer than I have, so you know there are plenty of people who would have said exactly that, but meant it sincerely. Perhap the Flamebait (the only mod when I posted) threw me a bit as well, my own fault. Posting while taking a break from a crappy day at work didn't help as well.

          Oh well, at least I didn't break into a Flame and tried to answer intellegently and thoughtfully. I've been modded Troll a couple times lately, guess the job is really getting on my nerves. My bad.
      • 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. The judge ruled that Mr. Wallace had shown sufficient personal harm to defeat a motion to dismiss (simply by alleging that his ability to market his own OS had been harmed--the burden of proof is all on the defense in motion to dismiss). but failed to show h
    • This isn't judicial activism. The judge did not legislate from the bench. He did not create any new laws or regulations. Hell, he didn't even twist the wording of the law or cite foreign precedence. All he did was rule yeah or nay.

      An activist judge would have abolished copyright, or mandated the use of GPL in software, or something like that.
  • 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 the prosecution may or may not try to try again.

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

      by AlterTick (665659) on Tuesday March 21, 2006 @11:58AM (#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.

      • 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 aquittal. So you can have a "second prosecution" after conviction.

        Many countries in Europe don't consider let both sides appeal a ruling, moving to higher courts. That is why DVD-Jon was aquitted twice. Those uninformed enough to think US law applies abroad
        • Re:the system (Score:2, Informative)

          Umm no. You can appeal your conviction in the US system, but the prosecution can not appeal an aquittal. So you can have a "second prosecution" after conviction.

          You don't seem to understand what an appeal is. There has to be grounds for an appeal, and when in appellate court there is no second trial. There is no jury. There is no prosecution. Guilt has been decided and the convicted must appeal that decision by proving the trial was unfair in some manner, or by showing that it was impossible for the con

        • 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 opinion framed by a quote from a famous patriot that he would rather let 100 guilty men go free than falsely convict an innocent one).

          Also, appeals in the US (and I would hope probably most places) only consider matters of law, not of fact. Trying the fac

          • Wow... Someone thinks that a 90% probability of guilt is sufficient to convict someone... I hope I never move to his country.

            When you're done misinterpreting what I said, it is because it was too tedious to deal with 99.99+/-0.01% to get the point across, and it'd serve no purpose. I think if you could put it in numbers like that, you would already have reasonable doubt. The difference in logic seems to be there though.

            Also, appeals in the US (and I would hope probably most places) only consider matters of
        • "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 aquittal. So you can have a "second prosecution" after conviction.

          Umm yes. A successful appeal results in the first ruling (or some portion thereof) being overturned. The first trial is essentially declared invalid. The "second prosecution" is a retri

    • 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.
  • by dildo (250211) on Tuesday March 21, 2006 @11:37AM (#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.
  • by EzInKy (115248) on Tuesday March 21, 2006 @11:52AM (#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.

    • by jd (1658)
      Although I seriously doubt Microsoft is going to alter their campaign to fit, there is now a legal ruling to quote from. IANAL, but I believe that past rulings ("case law") shape all future rulings, which would suggest that future attacks on the GPL based on competitiveness have a higher chance of failing. This is a Good Thing.

      My only concern is that it might inflame the Linux vs. Gnu/Linux wars, given that the judge implied that Gnu/Linux was indeed the correct form. It would not look good if a breakaway L

    • Yes, that is what the GPL does. But that doesn't mean that the GPL can't be used as an anticompetitive tool. If Microsoft and IBM had gotten together and agreed to give away OS/2 and Windows, Apple would have sued them. I think that is essentially what Wallace thinks is happening. His deficiency is not that the software in question was sold under the GPL, but that the alleged agreement is the GPL itself. If IBM and Red Hat had collusively agreed to release their software under the GPL, he might actuall

      • If Judge Tinder were really that astute, he would have made this more clear in his order, and left out the dicta about the GPL.


        No the Judge was correct, The GPL has nothing to do with price fixing because it does not prevent you from charging someone for software that you create.
        • Releasing something under the GPL drives the retail price to essentially zero. Yes, someone else could come along and charge for it, but your argument is similar to GM and Ford agreeing to fix the prices at which they sell cars to dealers in order to freeze out Honda. Yeah, the dealers could turn around and charge whatever retail price they choose, but that doesn't change the fact that GM and Ford are probably guilty of prce fixing.
          • "Yes, someone else could come along and charge for it"

            Just to be clear, you can charge for a copy of a piece of GPLed software. You cannot charge for a license to use, copy, or distribute GPLed software.

      • 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.

        The purpose of anti-trust law isn't to preserve competition in order to benefit competitors, it's to preserve competition in order to benefit consumers. "Dumping", selling below cost, is generally anti-competitive because its effect is to drive out compe

  • He should have gone after Microsoft, a company that has already been convicted under Sherman Anit-Trust. Even then he should have gone after them AFTER trying to market a viable product.

  • Daniel Wallace's crackpot Anti-GPL arguments were repeatedly [sys-con.com] and utterly refuted [sys-con.com] back in Febuary 2004.

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