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Re: license issue: calling a GPLv2 library
From: |
Alexander Terekhov |
Subject: |
Re: license issue: calling a GPLv2 library |
Date: |
Wed, 21 Jun 2006 15:58:43 +0200 |
Oh dear dak...
David Kastrup wrote:
>
> Alexander Terekhov <terekhov@web.de> writes:
>
> > David Kastrup wrote:
> > [...]
> >> The GPL does not demand _anything_ as long as you are not using
> >> _others'_ property licensed under the GPL. And then _their_ property
> >> rights chip in, and they are perfectly allowed to give you license
> >
> > Except that the GPL blatantly misstates the scope of property rights
> > under copyright. It pretends that both 17 USC 109 and 117 are simply
> > nonexistent (true in the GNU Republic). Then comes the issue of price
> > fixing at predatory ("no charge") level of pooled IP in derivative
> > and collective works.
>
> You are babbling. This sort of babbling constitutes so little in way
> of a coherent argument that it has already been thrown out of court
> (remember Wallace?) in spite of your gleeful appreciation of it.
I'm in good company. http://digital-law-online.info/lpdi1.0/treatise2.html
http://groups.google.com/group/gnu.misc.discuss/msg/a3f76440df6b36c1
http://groups.google.com/group/misc.int-property/msg/4d2438aa5d80f803
And as for Wallace (his other case is under appeal now), to quote
Hollaar:
(http://groups.google.com/group/misc.int-property/msg/4d2438aa5d80f803)
------
There has been some mention in this newsgroup in the past about the
antitrust suit in Indiana regarding the GPL (Daniel Wallace v. Free
Software Foundation, Inc.).
On November 28, 2005, Judge Tinder of the United States District
Court for the Southern District of Indiana dismissed the suit,
because Wallace did not show a recognized antitrust injury.
Wallace has twenty days from the entry of the order to file an
amended complaint alleging an antitrust injury, or the dismissal
will be with prejudice. (That means it can't be filed again.)
But the judge rejected a number of the arguments of the Free Software
Foundation, including that the nature of the GPL providing free
access to software programs, subject to some limitations, necessarily
aids competition.
The decision is at:
http://www.internetcases.com/library/cases/2005-11-28_wallace_v_fsf.pdf
-------
The judge recognized that "Plaintiffs Third Amended Complaint States
a Claim Upon Which Relief can be Granted" and that "Plaintiffs
Allegations Sufficiently Set Forth a Violation of the Rule of Reason",
but was fooled to believe that "Plaintiff Has Not Alleged Antitrust
Injury".
The district court's error in failure to recognize that allegation
of predatory pricing does establish antitrust injury (and hence
gives standing to sue***) will be corrected on appeal. I'm sure.
Wallace didn't appeal the FSF case. He waited for Judge Young.
***) The FSF argued:
"... absence of an allegation of harm to consumers is fatal to the
Complaint. Moreover, even if it were possible for Plaintiff to allege
some harm to competition in the abstract, Plaintiff has not alleged
antitrust injury to himself, and thus lacks standing."
http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-17.pdf
And Judge Tinder was simply fooled by that "Moreover" part.
But given the governing law re standing and res judicata, I'd expect
Wallace to either amend his complaint after appeal and include the
FSF as new defendant or sue the FSF once again in a separate action.
http://www.ll.georgetown.edu/FEDERAL/judicial/fed/opinions/02opinions/02-1555.html
-------
Medias principal argument on appeal is that, in entering summary
judgment on the basis of claim preclusion, the district court erred
in concluding that the dismissal of Telepresences prior action was
a final adjudication on the merits. It contends that a dismissal
for lack of standing is equivalent to a dismissal for lack of
subject matter jurisdiction, and that a court cannot reach the
merits of a case if a plaintiff does not have standing to invoke
the courts jurisdiction over the matter. Upper Deck, on the
other hand, places great weight on the district courts conclusion
that the dismissal of Telepresences action with prejudice for lack
of standing was a final adjudication on the merits because a
dismissal with prejudice creates not only the right to appeal, but
also the obligation to succeed on appeal to preserve the cause of
action. It also contends that Medias appeal is an improper
collateral attack on the judgment of the Telepresence action
because Telepresence did not appeal the earlier judgment.
To be given preclusive effect, a judgment must be a final
adjudication of the rights of the parties and must dispose of the
litigation on the merits. See 18A C. Wright, A. Miller & E. Cooper,
Federal Practice & Procedure § 4427, at 4-5 (2d ed. 2002). The
Ninth Circuit, in common with other federal courts, recognizes that
standing is a threshold question that must be resolved before
proceeding to the merits of a case. L. A. County Bar Assn v. Eu,
979 F.2d 697, 700 (9th Cir. 1992); see also Warth v. Seldin, 422
U.S. 490, 517-18 (1975) ( The rules of standing, . . . are
threshold determinants of the propriety of judicial intervention.).
The doctrine of standing limits federal judicial power and has both
constitutional and prudential components. See United Food &
Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S.
544, 551 (1996). Article III standing, like other bases of
jurisdiction, must be present at the inception of the lawsuit.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5 (1992)
(plurality opinion) ([S]tanding is to be determined as of the
commencement of suit.); see also Arizonans for Official English v.
Arizona, 520 U.S. 43, 64, 67 (1997) (holding that standing is an
aspect of the case or controversy requirement, which must be
satisfied at all stages of review); Keene Corp. v. United States,
508 U.S. 200, 207 (1993) ([T]he jurisdiction of the Court depends
upon the state of things at the time of the action brought.).
Pursuant to Article III, standing . . . is jurisdictional and not
subject to waiver. Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996).
Because standing is jurisdictional, lack of standing precludes a
ruling on the merits. Thus, the district court erred in giving
preclusive effect to the Telepresence judgment because its dismissal
of Telepresences complaint for lack of standing was not a final
adjudication of the merits. Scott v. Pasadena Unified Sch. Dist.,
306 F.3d 646, 653-54 (9th Cir. 2002) (stating that [w]e must
establish jurisdiction before proceeding to the merits of the case);
Bird v. Lewis & Clark Coll., 303 F.3d 1015, 1019 (9th Cir. 2002)
(recognizing that before reaching the merits of the case, the court
must determine the threshold issue of standing); accord H.R. Techs.
v. Astechnologies, Inc., 275 F.3d 1378, 1384 (Fed. Cir. 2002)
(Because lack of standing is not an issue that goes to the merits
of the underlying patent issues, a dismissal of a complaint for
lack of standing would not normally be expected to be made with
prejudice.).
-------
regards,
alexander.
- Re: license issue: calling a GPLv2 library, (continued)
- Re: license issue: calling a GPLv2 library, Gottfried, 2006/06/21
- Re: license issue: calling a GPLv2 library, Wei Mingzhi, 2006/06/21
- Message not available
- Re: license issue: calling a GPLv2 library, Alexander Terekhov, 2006/06/21
- Re: license issue: calling a GPLv2 library, David Kastrup, 2006/06/21
- Re: license issue: calling a GPLv2 library, Alexander Terekhov, 2006/06/21
- Re: license issue: calling a GPLv2 library, Alexander Terekhov, 2006/06/21
- Re: license issue: calling a GPLv2 library, David Kastrup, 2006/06/21
- Re: license issue: calling a GPLv2 library, Alexander Terekhov, 2006/06/21
- Re: license issue: calling a GPLv2 library, David Kastrup, 2006/06/21
- Re: license issue: calling a GPLv2 library,
Alexander Terekhov <=
- Re: license issue: calling a GPLv2 library, David Kastrup, 2006/06/21
- Re: license issue: calling a GPLv2 library, Alexander Terekhov, 2006/06/21
- Re: license issue: calling a GPLv2 library, David Kastrup, 2006/06/21
- Re: license issue: calling a GPLv2 library, Alexander Terekhov, 2006/06/21
- Re: license issue: calling a GPLv2 library, Alexander Terekhov, 2006/06/21
- Re: license issue: calling a GPLv2 library, Alexander Terekhov, 2006/06/21
- Re: license issue: calling a GPLv2 library, Rui Miguel Silva Seabra, 2006/06/21
- Message not available
- Re: license issue: calling a GPLv2 library, David Kastrup, 2006/06/21
- Message not available
- Re: license issue: calling a GPLv2 library, Alexander Terekhov, 2006/06/21
- Re: license issue: calling a GPLv2 library, David Kastrup, 2006/06/21