Subject: Re: Text of SCO's complaint
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Sat, 08 Mar 2003 15:00:17 +0900

>>>>> "Brian" == Brian Behlendorf <brian@collab.net> writes:

    Brian> the second because it's too esoteric (unless they're lucky
    Brian> and get a good lawyer and a gullible jury).

Not at all esoteric.  We know where to get those lawyers and juries.

But they would have to file a completely different suit to make that
fly, one based on anti-trust law.  It probably could be done (not that
you'd want to go up against IBM et el, even the Justice Department
would quail at that).  However, almost certainly the case would go in
IBM's favor.  Making a predation case stick requires showing that that
the defendent profits directly from the predation by _monopolizing
that market_.  Setting price to zero to drive out competition is
predation, open-and-shut---except that releasing under a FOSS license
would seem to be very close to a prima facie defense.

One thing that U.S. v. IBM legally demonstrated is that "harm to
competitors" is not prima facie "harm to competition".  Things are
swinging back now, but they depend not on invalidating that precendent
(no judge would do that), but on finding different ways to show "harm
to competition" derived from "harm to competitors".

You could probably win a predation case if (for example) IBM retained
patent in a technology essential to the "category-killer" FS released,
and the threat of that was used to keep others from releasing their
applications on top of an improved version of the FS.

However, I doubt that "an evil proprietary encryption protocol"
running on top of Apache would be enough for Microsoft to win a suit
alleging the bottom dropped out of the ISS market because Apache is so
much better.  The judge would look at the smoking gun in Gates's hand
and the smoking hole in his foot, bang the gavel, and call "Case
dismissed; MSFT's unwillingness to adopt Apache technology is not
damage caused by members of the Apache Foundation."

I speculate that it is exactly this property of free software as a
(legally) risk-free competitive weapon that has IBM and others
strategically interested in it now.

-- 
Institute of Policy and Planning Sciences     http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
               Ask not how you can "do" free software business;
              ask what your business can "do for" free software.