Hi again,
Think I like this discussion... ;-)
On 22 Mar 2002, Claus Färber kindly wrote:
--snip--
1.) Having a monopoly is perfectly legal. So: Changing a license is OK, telling Apple you only will continue support your Office- Suite for their OS when they change their default Internet Browser (which MS did) is not.
And what about telling software vendors that their plug-ins have to have a special license to run on your platform? (Note that Microsoft reportedly tries to do that with .NET.)
You *exactly* understood the most important point. Are you allowed to request in you license that your licensee has to use a certain license for his software or third party software? And what if you have a monopoly in your field?
I think we can agree upon the fact that having a monopoly is not illegal per se. Neither is a licence requesting certain duties - that's just the idea of a contract. The important question is: Why would somebody use such clauses?
Microsoft does this to secure its monoply and to (quite explicitly by calling it "viral" in the license you mentioned) fight the GPL. So Microsoft uses its monopoly to force its customers into a contract, which leads to further extension of their monopoly. This is clearly unjust and illegal under various national and international Antitrust and Unfair Competition Laws.
But the GPL doesn't work that way. It is an offer saying: "I will give you not only the right to use my software as you like, I also give you the right to change the source and distribute it. But for that, I want to have the same rights on your canges and derived works."
The GPL is a *fair* offer, even when used by a monopolist. afair offer is not illegal.
Changing the licence was only to get an example. If you prefer, you can just hypothetically assume that Apache was under the GPL from the beginning.
No it wouldn't be the same, because in the beginning, there was no dominat position for apache. Netscape dominated the server market those days.
I could not take Linux as an example because everyone seems to agree that writing proprietary software for a GPL-OS is ok (although I don't see the difference between that and a plug-in for a web-server, for example).
Not everyone, but Linus and other authors explicitly tolerate it, because in their opinion, a proprietary driver is better than none. RMS doesn't seem to agree with that - but he's not the author.
2.) Acting for profit on a market is an essential precondition for Antitrust Law to be applied.
OK, my wording here was to strong and to general, you are right. But the economic aspect has to be taken into consideration.
Clearly no. To quote the European Court of Justice:
I wouldn't say clearly. We have to distinguish a) national and european law and b) Antitrust Law (Kartellrecht) and Unfair Competition Law (Wettbewerbsrecht).
| 67. It will be recalled that for the purposes of Community | competition law the concept of undertaking encompasses every | entity engaged in an economic activity regardless of the legal | status of the entity and the way it is financed. The basic test | is whether the entity in question is engaged in an activity | which consists in offering goods and services on a given market | and which could, at least in principle, be carried out by a | private actor in order to make profits. (C-475/99)
I would doubt if that can be fully applied to cases where you give away things that *theoretically* could be sold. To me it means actually collecting a fee or another economic benefit but done by a non-profit organisation.
In the example mentioned, the Court applied anti-trust rules to the Deutsches Rote Kreuz (German Red Cross), which clearly is a non-profit organisation (at least approved by the tax office).
All that matters is wheter distributing software is an activity which could be carried out in order to make profit.
See above. But I'd have to read the case - could you cite it, please?