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Thursday, November 09, 2006

Ind. Decisions - 7th Circuit issues two Indiana decisions today

In Wallace, Daniel v. Int'l Business Machines (SD Ind., Richard L. Young, Judge), a 7-page opinion, Judge Easterbrook writes:

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. Copyright law, usually the basis of limiting reproduction in order to collect a fee, ensures that open-source software remains free: any attempt to sell a derivative work will violate the copyright laws, even if the improver has not accepted the GPL. The Free Software Foundation calls the result “copyleft.” * * *

Daniel Wallace would like to compete with Linux—either by offering a derivative work or by writing an operating system from scratch—but maintains that this is impossible as long as Linux and its derivatives are available for free. He contends that IBM, Red Hat, and Novell have conspired among themselves and with others (including the Free Software Foundation) to eliminate competition in the operating system market by making Linux available at an unbeatable price. Under the GPL, which passes from user to improver to user, Linux and all software that incorporates any of its source code will be free forever, and nothing could be a more effective deterrent to competition, Wallace maintains. The GPL is the conspiracy as Wallace sees things; it is a joint undertaking among users and creators of derivative works to undercut the price of any potential rival. But the district judge dismissed the complaint, ruling that Wallace does not suffer antitrust injury, see Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977), because he is a would-be producer rather than a consumer.

The GPL and open-source software have nothing to fear from the antitrust laws.

In Hall, Merrill E. v. Norfolk Southern (ND Ind., Rudy Lozano and Philip P. Simon, Judges), a 16-page opinion, Judge Stykes begins:
This case requires us to consider what constitutes a “mistake concerning the identity of the proper party” that will permit an amended pleading to relate back to the date of the original complaint under Federal Rule of Civil Procedure 15(c)(3). Also at issue is the scope of the statutory liability exemption in 49 U.S.C. § 11321 for railroads that participate in consolidation transactions approved by the Surface Transportation Board (“STB”).

Posted by Marcia Oddi on November 9, 2006 12:22 PM
Posted to Ind. (7th Cir.) Decisions