Slashdot Mirror
Lawsuit Says GPL is a Price-Fixing Scheme
Soko writes "Yes, it's real. The crack team of Daniel Wallace and Maureen O'Gara have ganged up once again to protect their version of "The American Dream," he by filing a lawsuit in Indiana court saying the GPL is nothing more than a price fixing scheme designed to drive software vendors out of business, she by parroting the proprietary vendors' "The GPL kills business" mantra (as well as a few well placed insults at the free software community). I found the story on Groklaw - no links to Ms. O'Gara or Mr. Wallace from me. I'm still kind of dumbfounded at the audacity of Mr. Wallace, but wonder if he has an angle that might have a slim chance of prevailing." This Google search reveals some of Daniel Wallace's views on the GPL.
What will they say next? Using FOSS contributes to global terrorism? That everytime you download FOSS, the drug cartels profit? That FOSS consitiutes violates RICO laws?
Price fixing my foot!
"I'd rather be a lightning rod than a seismometer." -Ken Kesey
This is also the question in my mind. Why cannot the author of a piece of software impose any restrictions upon its use that she likes? How is this keeping anyone else from selling their work? This is like Denny's suing a soup kitchen.
The truth is an offense, but not a sin.------R. N. Marley
I always thought that the idea of a price-fixing scheme was to drive prices *up*. What they have said makes absolutely no sense. Free software is causing prices to go up? I think not...
If anything, free software drives prices down (remember when IE was released for free, while Netscape was still selling for $30?). Oh, the commercial software industry is dying too. Then why is Windows still the most popular operating system in existance?
It's an absurd lawsuit brought by a nutter.
/. is because it pertains to the GPL and we all need a good laugh on a monday.
This is nothing new. Happens all the time. Only reason it's on
Hey, where's the foot icon?
Mod me down with all of your hatred and your journey towards the dark side will be complete!
It has nothing to do with reason.
It has nothing to do with justice.
It has nothing to do with quality and or merits.
It has nothing to do with "who deserves to win".
If not SCO, then someone else will win. It will be the stupidest ruling in the history of law, no doubt, but somehow it will win. IBM on our side or not. I am not a troll, though it should be obvious I'm far from being an optimist.
I hope I am wrong.
All that said, does it suprise you that with SCO being an embarrassment, that Microsoft would start up a few other legal experiments? They no doubt have people whose sole job is to dream up possible litigation, and we can expect 1-3 of these things per year, until one succeeds or they run out of money. Guess which one will happen first.
Really now, how does the GPL fix prices when it allows anyone to charge any amount of money for GPL software?
Take off every sig. For great justice.
but wonder if he has an angle that might have a slim chance of prevailing
Put any issue like this in a court, especially in front of a jury, especially in America, and literally anything can happen, regardless of the lawyers or facts on either side.
Juries will do what they think is justice based upon what they think they understand.
Saying that SCO's case is lost, or this one would not stand a chance is simply not legitimate. Many experienced legal commentators seem to tend to give either side in just about any major case a 50-50 chance of winning. That is why the smartest thing you can do is to figure out how to stay out of court, unless you are evil and rich and like injustice. Over the long haul it may get corrected, but the courtroom is a roll of the dice.
That is also probably why jury-tried issues carry little if any weight as legal precedence. While it would be very incorrect to say that the facts are irrelevant, it would also be very incorrect to say that they will carry the day or that this or any other issue could not be won in court, especially before a jury.
I think there issue is more with Open Source than with any particular Open Source license.
When a company such as M$ has a stranglehold on the industry. The most effective way to compete with them is with technology which cannot be assimilated by M$. M$ has killed many competitors by either pricing them out of the market, acquiring the technology or by hiring away the key developers.
In my mind, the Open Source movement was a natural response to the strongarm tactics of M$.
-b
Yes, and last I checked, giving away "property" that belongs to you is perfectly legal. :)
Apple makes a good case study for the massive negative impact of GPLd software. You can see how their profits have been plummeting since they (partially) embraced the Open Source model.
Trust me. This is an inactive account. Regardless of what the
No, don't do that, otherwise, you'll be spreading the image of free software advocates as harrassing nutcases. What would this accomplish? Do you think that your comment will be the one that changes his mind, the one that causes him to turn from the dark side? Your time would be better spent advocating free software instead of attacking people who don't.
Also, is it so hard to imagine that you would be sued by this guy for harassment?
I'm surprised that Slashdot actually posted this drivel on the front page
As was I, believe it or not - I thought maybe Slashback would be a good place for it. I also avoided the war of words that seems to be going on between PJ and Andrew Orlowski - it's extraneous to the discussion at hand, a little sad to see, and has been covered yesterday. Guess PJs a little miffed at El Reg - 'Hell hath no fury like a paralegal who has her facts questioned' to borrow a phrase. Whatever - I'm still trying to fathom the unmitigated gall of Mr. Wallace. Human stupidity is an amazing thing at times.
(well actually the real surprise was the lack of spelling errors!)
From my submission:
Mr. O'Gara or Ms. Wallace
That was a typo. Honest.
Soko
"Depression is merely anger without enthusiasm." - Anonymous
You realize, sarcasm apart, that this "price fixing" or "unfair competition" is exactly what all of the TelCo's and the Wireless carriers are claiming about municipal WiFi efforts...
It's sad that corporations think that they deserve special favors, or believe that they will receive them for the right price...
oh wait, they believe it because it happens...
Not very much.
When everybody has a compiler, what is your bland piece of software worth?
Not very much.
Without entering into whether or not it's right, the GPL definitely raises the bar on what makes a marketable piece of software. I think the everybody-owns-the-factory analogy is pretty appropriate.
Once upon a time, people made a living by delivering ice to your home. Now we have freezers and make our own ice. What kind of money can you make delivering ice?
Not very much.
Does that mean you should attack the freezer manufacturers or does it mean you should find a better way of doing business?
Apparently, the answer to that question will be decided in a court of law rather than the court of common sense.
Strike 3: clueless or sycophant judge
Ignorance is curable, stupid is forever.
"It's like giving away sugar, but then saying that anything cooked with it must be given away free too. And that you can never sell the bowl you mix the ingredients in."
But you're not under any obligation to use that brand of sugar. You can continue buying "proprietary" sugar and selling the result, and nobody's going to stop you.
Actually, a metaphor like that is basically fallacious in the first place. The GPL doesn't put any restrictions on buying or selling. You're free to sell GPL software, whether or not you made it, whether or not you modified it, as long as you give the source to any buyer, if they ask. The GPL is about copying and modifying, which don't really apply to physical goods. (You can't copy sugar, to use your example. Whether or not you get it for free, obtaining it means someone else loses it.)
"Legit" software manufacturers don't have to use GPL components either. If they don't want to be required to divulge their source code and allow their customers to share and modify their programs, then they don't have to include GPLed code, and nobody is put out of business.
Now, with the supposed "viralness" of the GPL out of the way: of course companies can go out of business if there's FOSS alternative(s) that are functionally equivalent or superior, because people are less likely to buy something if they can get a better thing for free. But surely nobody would suggest that people should be *required* to charge money for the distribution of software. That would be, for lack of a better word, idiotic. If people are willing to donate their time, effort, and code to FOSS projects, then big business (and small business, admittedly) will have to cope. Maybe they could try innovating.
Signature.
If you're a developer, and you release a useful project under the GPL, chances are you'll get patches back that'll teach you a think or two.
Happened to me today, in fact.
tasks(723) drafts(105) languages(484) examples(29106)
You know what gets me...
Is that companies who back these kind of ideas are the same ones who will outsource your job to save a buck. In a SECOND.
So they cry when anybody taps their market (be it VOIP, FOSS, or whatnot), and they lobby for laws to *protect* their business. Yet they have no problems doing this to PEOPLE.
Companies HAVE a responsibility to their customers, and the cities/towns/COUNTRIES they do business it. They should be MADE to give back instead of just taking taking taking.
I'm tired of hearing stuff about "well it's their coumpany and they can do what they want." This way of thinking is really wrong, IMHO, and is just a symptom of how they have brainwashed everyone. Morality doesn't seem to exist in the corporate world, everything is for the blind pursuit of profit... generally by crawling up the backs of hard working people, then kicking them down when they reach the summit.
Pure capitalism is faulty, somebody needs to reign these greedy people in. It'd be nice if someone could pull the wool back up, from over the general public's eyes.
this all makes me so bloody angry.
If I can't smoke and swear I'm fucked.
No, it's volunteerism. It would be communism if you forced others to use GPL'd code. But they don't have to.
It's like giving away a cake with its recipe, but then saying that if anyone else wanted to sell the cake, they had to give away the recipe with the cake.
As you can surely recall, the first cookbooks swiftly destroyed the restaurant and food service industries.
Simple Machines in Higher Dimensions
Free software isn't free until it's been written. Charge for your labor and you don't need to exert control over users afterward. Doctors and plumbers don't expect to do their job just once and then kick back and cash checks for the rest of their lives.
Your main point has been answered to ad nauseam. No one is placing a limit on being paid for the writing or maintenance of private code. The OS and basic software needed for the average box does not need to be private and in fact is probably better if it is not as we apply common standards to common purposes.
How many instances of something like "Office" do we need? If just one, then it might as well be based on open standards.
- nobody is forced to work on gpl'd software
- nobody is forcing anyone to try to make a living directly from gpl code
- people don't necessarily write code and release it under the gpl to make money
- some people WILL "do the right thing", by giving something of value back to the author
If you read the law suit, you'd have seen that the guy is complaining that he can't make a living programming because he can't compete with the price of free software, that the gpl is a "price restraint scheme".part of the "deal" behind using gpl code in your product, instead of developing it from scratch, is the value of you not having to develop it from scratch
there are other ways to add value. Or you can work with proprietary code - oh, no you can't - you don't have the source.
perhaps they are using the code in-house, and see the benefit of getting the "many eyes" of others working on it, saving their company money in the process
this can be code improvements, bug reports, etc. Its not always about money
This is utter bs. There is nothing preventing him from writing closed software. Of course, he'll have to have licenses for any libraries he uses/buys, etc., (or is he going to complain that requiring a license for closed-source libraries *also* prevents him from competing, since the copyright holder of closed-source libraries can charge any price they want ...)
Strange how all these attacks on the gpl, groklaw, etc., come just as LongHorn totally fails to wow everyone. Coincidence? Probably not.
That's called DUMPING, and it's against the law. He also claims, also correctly, that the FSF engages in price fixing by getting multiple vendors to agree to give their products away for free. The is anti-competitive, because it prevents other vendors who don't want to give their products away for free from entering the market.
Can you please cite statutes?
The only ones mentioned in the case are a jurisdictional one and one about remedies (15 USC 25 I think). None of the sections the latter mentions as applicable has anything that I can tell these people are violating...
It is good for business because ALL THE OTHER BUSINESSES BESIDES THE PRODUCING INDUSTRY BENEFIT. With virtually free gasoline practically every product you buy will cost less. Software is a little like gasoline to many industries. Free software is a free public good that is non-scarce and infinitely divisible.
Is it good for the programmer job market? No. Tough titties, it's good for everybody else. Yours isn't the first industry to be decimated by progress.
I find it weird that Americans are so "anti-communism" as if its an evil thing. It's not that bad at all! Of course, I personally don't think it would be the best way to solve the problem of unlimited wants and needs with limited resources. Software is a bit different because it can be duplicated an unlimited number of times for next to no cost.
Anyway, lets look at it:
-OSS: Its communism because everyone works on it for nothing! ner ner.
-Proprietary: Its communism because its all designed from the middle and given to the masses even though they may not like it and have no control of it. ner ner...
I am Australian but I have lived in the US for 6 months and I discovered that the US is unbelievably capitalist with a huge FEAR of anything socialist. Here in Oz, we have a mixed economy that is predominately market but has some socialist aspects such as unlimited welfare (the dole) and free health care (medicare). It think its a good balance.
Anyway, my point is that we should have a BALANCE of OSS and proprietary software.
Can your karma go above being Excellent?
*shrug*.
The GPL itself says what it relies upon. "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License."
This comment is explanatory. It is also the truth, and why it is that those who attempt to litigate against the GPL inevitably end up turning into ass monkeys.
C//
Why shouldn't municipal governments provide wi-fi? Internet access has become an important service, and is there some part of the US, Canadian or any other Constitution that I'm unaware of which guarantees "profit and unending dividends for all [businesses]"? The economy should serve society, not the other way around. Cities don't just decide to offer these services without a mandate from their residents, and if residents of a city want municipal wi-fi, some telco should certainly not be able to over-rule that just because their profits are at risk!
It's not the "nanny-state", it's democracy. What it damn well shouldn't be is corporatocracy.
Freedom: "I won't!"
In what nanny-state, commie pipe dream is it the government's responsibility to provide internet access to people who can almost certainly get it cheapy from commercial ISPs?
You got it backwards. When a town votes and decides to turn certain services like Internet access over to a public utility, that's called "democracy". Perhaps you have heard of it.
When the state government comes in and negates the will of the voters in some corrupt scheme to help commercial campaign contributors to make more money, that's "real communism" (i.e., corrupt, centralized government).
Honestly, you don't see any difference between a company found to be an abusive monopoly and a licence? None at all? Really?
./ers having trouble with rationality, my friend.
It's ain't the
Anyone who loves or hates any language, platform, or manufacturer, doesn't know what they're talking about.
What's particularly entertaining about the OSS community is they use examples like this to push the idea that OSS avoids duplicating work and reinventing the wheel...
...Yet 90%+ of the OSS software out there is nothing more than a duplication of other OSS software.
Nobody's fixed the price of OpenOffice.org at $0. That's the price Sun charges for downloads from their website. But there are plenty of people willing to sell you a copy for a wide variety of prices.
You are not alone. This is not normal. None of this is normal.
It would be communism if you forced others to use GPL'd code.
Communism != totalitarianism
http://en.wikipedia.org/wiki/Communism
http://en.wikipedia.org/wiki/Totalitarism
Hi, communism is the revolutionary theory of marxism. Marxism is a rather complicated theory involving a notion called dialectical materialism. This has fuck all to do with the GPL. The GPL is one thing, and one thing only: sharing. Nothing to do with communism or marxism. But then again, this is Slashdot, where you can equate apples with oranges and get bananas, and that is 'insightful'.
?-|||-----x<*))))><
No, it seems to your ignorant legal eye that you'd give away someone else's property without abiding by the license they set as the terms for you to use their software.
In other words, if you take my work, which I released freely under the GPL, make changes and additions to it, then attempt to charge a fee for the entire product that includes code belonging to both of us, or release it under another license other than the GPL, you're in violation of the GPL, full of shit and should die from a horrid disease.
If you decide to create your own software, you're as free as ever to have it interact with my software, and can license the resulting code that you wrote under any license you wish, *as long as it does not contain my original code*. You can charge whatever the market will bear for your own original code. No one is forcing you to do anything, except *to not use my free software as the basis for your business*.
Really, with these hardheaded types, you have to explain it to them like they were 4-year-olds. It's like playing, "Daddy, what's that?" all over again.
" I find it weird that Americans are so "anti-communism" as if its an evil thing. It's not that bad at all!"
You need to read up on history. Nothing like the cold war to bring back some bad memories.
the GPL is nothing more than a price fixing scheme
Actually, it's not the GPL which is a price fixing scheme, but copyright. As in copyright allows the author to set any price they want to license their work. Somehow I don't think Wallace, O'Gara, and countless others quite understand this simple fact (or are not willing to admit it, as this pseudo-monopolistic characteristic of copyright seems to fly in the face of other free market ideals).
The GPL actually removes this restriction by allowing a copyrighted work to be licensed for any amount of money desired by any party with a copy of the work. Zero just happens to be the most typical number, for the practical reason that it is difficult to get customers to pay exorbitant sums for what is usually available elsewhere for free.
Heh, maybe we should just abolish copyright and remove this restraint of trade in all cases. This way anyone could license any work created by anyone else for however much they thought they could get, though this probably isn't the type of "solution" the software industry has in mind.
The ultimate plays for Madden 2006
when communism becomes evil is when it is compulsory. A point you seem to have missed widely.
No one gives a shit what you CHOOSE to do for a hobby, who you CHOOSE give the results to, or if you CHOOSE to run off and live on a commune with River Moonchild and a bunch of other random hippies.
It's when you demand under threat of violence (usually via government) that I do these things that we have a very, very big problem.
Alcohol, Tobacco and Firearms should be the name of a store, not a government agency.
ya, i think they call that "competition". even when software is free, competition fosters improvement.
Your post is off-topic. They're arguing whether or not GPL is communism. So even if you're right -- and i'm not saying you are right -- to say that communism leads to totalitarianism, you fail to acknowledge some factors, which i won't bother mention, that makes GPL an example of a large scale communism without a chance to be a totalitarianism. Unless of course you consider the license itself as "a powerful overhead authority." In which case, it fails to show the ability to give direct reward to people.
Truth is like a shining mirror that's been shattered.
I'm not against the Libre software movement, but I genuinely believe that the 'gratis' software movement is screwing things up for all of us.
Um, the former implies the latter. And your main point is just spectacularly wrong. Imagine a world where Apache, Linux, Java, Perl, Python, MySQL and all similar "gratis" software never came into being. If you want to run a web site, you have to pay thousands of dollars for the software just to get started. Will the demand for programmers be more or less than in our world? Hint: not more.
And even if free software somehow were harmful to programmers, opposing it on that basis alone is profoundly immoral, as it's an unquestionable benefit to everyone else. It would be the equivalent of candlemakers sabotaging light bulb factories to keep their jobs
How to solve most of our problems: 1.Lots of nuclear plants. 2.Cure aging.
Section 2B of the GPL:
b) You must cause any work that you 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.
Seems to my inexperienced legal eye that the GPL does, in fact, force me to give away my software for free.
You're suffering from BSA brainwashing, I think. You see, the GPL only deals with copyright as defined by law, and there is nothing in copyright law that supports the concept of a "license to use". The ONLY kind of license copyright law, and the GPL, deals with is a license to copy and distribute (aka publishing).
You can sell GPLed software for any price you like (within the bounds of law, anyway, so no "first-born" or "female virgin sex-slaves"), even if you didn't write it. What that clause means is that IF you find someone willing to pay your price you may not CHARGE EXTRA for the rights to republish said GPLed software.
Your mistake is in thinking that EULAs have any basis in copyright law. Again, there is no such thing in copyright law as an "end user license".
Under capitalism man exploits man. Under communism it's the other way around.
Get this: Being open means nothing if people don't care about it anyway (If I was given the design for a table from a carpenter who was being "open" but I don't like carpentry then what good is that going to do me?). Open Source only benefits people who actually know how to program and work outside the industry at the same time, the future looks bright with no specialist software engineers with all development being done by unqualified developers who have no incentive to do it properly.
AFAIK, neither of these are price fixing. Price fixing is a form of collusion between two nominally competing parties, in order to set prices above the market value. If MS and Netscape had collued to set the price of a browser at $50, that would be price fixing.
Selling something below cost can be an anti-trust violation (for example, predatory pricing: sell it cheap now, so you can raise the price when the competition goes under), but I don't believe it can be applied to GPL software, since it can't be effectively used to make or maintain a monopoly above the market price. In fact, free software (of some sorts, at least) work to increase market efficiency by lowering the barriers to entry for competition. This actually works to prevent the formation of monopolies.
"Actually, Communism is evil. Not evil in the trying to kill you way, evil in the I know what's right better than you way."
:-)
So if a country invades other countries and brings them democracy because it is better for them... they are communists?
GPL was created outside the idea of a "market", and its original focus was on individuals, and there right to code as a form of "libre" speech and expression - not as a product made by partnerships, proprietorships or corporations.
"Flyin' in just a sweet place,
Never been known to fail..."
This is a little offtopick but I to talk about a link in the blurb:
Daniel Wallace's views on the GPL..
The first page contained the search term in following sentance: "Do a google search on Daniel Wallace and GPL". This underlines one side of the problem of linking to the Google: it spams the search results. The other problem is that the Google rates pages based on the links to them. If this habbit of linking to the Google queries grows to de facto standard of linking, Google will die, because it will be unable to compare qualities of pages.
So, please, at least at such a popular pages like slashdot front page, quit linking to google queries.
Wait a second... *reads various EULA from Microsoft and other software manufacturers*...yup, guess what, it is in there too!!! What a surprise, there is apearantly no implied warranty of merchantability for those either.
So if a country invades other countries and brings them democracy because it is better for them... they are communists? :-)
No. That would be "I know you know what's right better than your government."
Which would you rather??
No, it's volunteerism. It would be communism if you forced others to use GPL'd code. But they don't have to.
Actually, the GPL does count as a form of communism: "a system in which goods are owned in common and are available to all as needed".
The problem here involves the typical American perception of communism - It does not mean "bad" or "evil" or "Stalinist". It just means that no one "owns" the product of that work, and no one can monopolize its use.
In some cases, communism works very, very well. For material goods, it tends to fail due to greed. As a system of government, it fails quite spectacularly (again, mostly due to human greed). But for intangibles, in which category falls software, music, movies, thoughts, algorithms, and all the topics we so often argue about here on Slashdot under the broad category of "IP" - communism works amazingly well. Everyone can contribute, and everyone can share the results equally. In fact, it takes quite extreme laws and enforcement effort to avoid IP naturally falling into a more-or-less communistic state of existence.
As an aside, I find it almost scary that people would defend against an accusation of communism by calling something volunteerism. In a perfect world, with no one going hungry or unsheltered or lacking basic medical treatment, volunteerism seems like a good, noble philosophy. In the real world, operating under a basically capitalistic economy, volunteerism actively does no less evil than put people out of a job. For every hour someone works for no pay, they have deprived someone of the possibility of working that same hour for the purpose of feeding, clothing, and sheltering themselves. In a very real way, someone who don't need that hour's pay (or they wouldn't have worked it for free) has managed to take it away from someone who does.
As the one exception to this, court-ordered community service seems reasonable, in that it allows a person to "pay" the community back for their crimes by spending time rather than dollars. For someone without extensive financial resources, this means a fine that doesn't unduely burden them. For someone with money to burn, it causes them to spend something more valuable to them than a mere monetary fine. A win/win situation both ways.
Is it good for the programmer job market? No. Tough titties, it's good for everybody else. Yours isn't the first industry to be decimated by progress.
But it is good for the programmer job market. In fact, it's great for the programmer market. It's just not good for the boxed software market.
Most programmers don't work for proprietary software companies--they work for banks, manufacturers, governments, all kinds of non-software companies, companies that need software that you can't buy off the shelf.
With the rise of open source software and a plethora of projects to start with, all it does is bring custom software into the financial reach of the millions of small businesses that otherwise are stuck with boxed software.
Do you smell the opportunity?
Open Source Solutions for Small Business Problems
Freelock Computing
Actually, the GPL does count as a form of communism: "a system in which goods are owned in common and are available to all as needed".
Except that it's not.
Software that is licensed still has an owner: the licensor. For example, the licensor is the only party who can redistribute the software under a _different_ license (a la MySQL and Qt).
I am a lawyer, but this is not legal advice. If you need legal advice, contact an attorney licensed in your jurisdiction.
You've caught the point where it may indeed be possible to use open source to violate antitrust law.
*If* a company has a monopoly, or even significant market power, and that company releases or backs an open source product to distribute for zero price, and there is a competing "complete solution" for which part of the price is in software that gets replaced by the OSS, then the OSS could indeed be an antitrust violation.
Note, though, that the key here is that the OSS project is being used as a weapon to support or advance monopoly power in another product.
There's nothing really shocking there--it would take some sort of special exemption in antitrust law to allow the fact that something is OSS to be a defense to otherwise legal behavior.
A free-standing OSS project would be another issue--it's just another competitor in the market.
The grey case that will take lots of litigation is a monopolist supporting an existing project, yet not becoming dominant, in order to damage a competitor to its own product. My initial guess (though it's quite possible I could be convinced otherwise) is that there could be liability for the company, but not for the project (unless it actively conspired with the monopolist to hurt the competitor).
hawk