GPL: a very interesting decision

Justice Easterbrook, him of the seventh circuit court of appeals in the US (notable for his interest/focus on economics, as well as for the “cyberlaw/law of the horse” argument), wrote a very interesting decision for that court last week. I only had a chance to read it properly (it’s nice and short!) this weekend.

The case was taken by one Daniel Wallace, who argued that the GPL (General Public License) for software, and the actions taken by various companies such as IBM and Red Hat, with the help of the obviously evil Free Software Foundationwere in violation of antitrust law. He lost. Here’s the decision (PDF).

Easterbrook got a little muddled at the start over the ‘free’ issue (to quote the simple explanation of the ‘free’ in free software, it’s “free as in speech, not free as in beer”). But not in too bad a way, and other sections demonstrated some understanding of free software issues. Another (slight) criticism is a little muddling between the GPL and the broader term of ‘open source’ software.

However, his holding was clear; he explained how the ‘market’ for free software (including charging for manuals/support and so on) worked in practice, and dismissed out of hand the idea that software without charge, and in particular the restriction on charging for derivative works, is a conspiracy to rig the market.

Two quotes that struck me as very interesting, and capable of broader application, are as follows:

Copyright and patent laws give authors a right to charge more, so that they can recover their fixed costs (and thus promote innovation), but they do not require authors to charge more.

And in the context of a discussion of open source (and without mentioning it, open access) in general terms:

Likewise there is a flourishing market in legal treatises and other materials, plus reference databases such as LEXIS and Westlaw, even though courts give away their work (this opinion, for example, is not covered by copyright and may be downloaded from the court’s web site and copied without charge)

This is an important decision, and a further piece of evidence that the GPL is properly drafted and capable of enforcement. Especially coming from someone like Easterbrook.


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