Copyright, Antitrust and the GNU General Public License
Earlier today, the seventh circuit released its opinion in Wallace v. IBM, et. al (via How Appealing). The opinion from Judge Easterbrook begins:
Does the provision of copyrighted software under the GNU General Public License (“GPL”) violate the federal antitrust laws? Authors who distribute their works under this license, devised by the Free Software Foundation, Inc., authorize not only copying but also the creation of derivative works—and the license prohibits charging for the derivative work. People may make and distribute derivative works if and only if they come under the same license terms as the original work. Thus the GPL propagates from user to user and revision to revision: neither the original author, nor any creator of a revised or improved version, may charge for the software or allow any successor to charge.
And the opinion concludes (emphasis added):
Wallace does not contend that Linux has such a large market share, or poses such a threat to consumers’ welfare in the long run, that evaluation under the Rule of Reason could lead to condemnation. A “quick look” is all that’s needed to reject Wallace’s claim. See, e.g., California Dental Association v. FTC, 526 U.S. 756 (1999); National Collegiate Athletic Ass’n v. University of Oklahoma, 468 U.S. 85 (1984); Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325 (7th Cir. 1986) (unless a firm with market power can increase its profits by curtailing output, the practice is lawful under the Rule of Reason). The GPL and open-source software have nothing to fear from the antitrust laws.
Update: David Giacalone, editor of shlep – the Self-Help Law ExPress – also comments on the case, which was brought by a pro se plaintiff:
For me, the case is a reminder that — despite what many members of the general public and the legal profession appear to believe — weaving fanciful theories of liability by ignoring the special definitions that words and concepts are given in a particular body of law, is not good lawyering and not good advocacy. When a pro se litigant does it, he or she deserves to be politely told to get it together or get lost.
UPDATE (Hanno, 11/23/06): Here is a useful, brief summary of the case.
Technorati Tags: antitrust, GPL, open source
RSS Feed
November 18th, 2006 at 10:39 pm
[...] Frankly, I’ve known quite a few antitrust lawyers who don’t fully understand antitrust law — especially its treatment of concepts such as injury, conspiracy, price-fixing and predatory pricing. It’s no surprise at all, then, that yet another court has rejected pro se plaintiff Daniel Wallace’s faulty antitrust allegations against the GNU free operating system and the General Public License (GPL) for its copyrighted software. (see Wallace v. IBM, et al, 7th Circuit, No. 06-2454, issued Nov. 9, 2006; Enterprise Open Source Magazine, “Wallace Loses Appeal – GPL is Legal,” Nov. 18, 2006; Antitrust Review weblog, Nov. 9, 2006) [...]