Jan Wildeboer jan.wildeboer@gmx.de schrieb/wrote:
Interesting - Free software can violate antitrust laws? Can you construct a theoretical example? Just curious :-)
Consider this: Apache changes the licence to GPL. As Apache has a large market share, 3rd party vendors for WWW server solutions would have to make their products compatible with Apache.
However, taken the GPL literally, they could not, for example, write a plugin like mod_fancy_shopping_solution and release that under a proprietary licence.
So proprietary software vendors could not access that market, giving an competive advantage to Open Source software vendors.
Claus
On Wed, 2002-03-20 at 13:57, Claus Färber wrote:
Jan Wildeboer jan.wildeboer@gmx.de schrieb/wrote:
Interesting - Free software can violate antitrust laws? Can you construct a theoretical example? Just curious :-)
Consider this: Apache changes the licence to GPL. As Apache has a large market share, 3rd party vendors for WWW server solutions would have to make their products compatible with Apache. However, taken the GPL literally, they could not, for example, write a plugin like mod_fancy_shopping_solution and release that under a proprietary licence. So proprietary software vendors could not access that market, giving an competive advantage to Open Source software vendors.
Not true. They can use/fork a prior version of Apache, or stop being proprietary, so this is not a potential violation of any antitrust law I can think of.
Hugs, rui
Il mer, 2002-03-20 alle 14:57, Claus Färber ha scritto:
Jan Wildeboer jan.wildeboer@gmx.de schrieb/wrote:
Interesting - Free software can violate antitrust laws? Can you construct a theoretical example? Just curious :-)
Consider this: Apache changes the licence to GPL. As Apache has a large market share, 3rd party vendors for WWW server solutions would have to make their products compatible with Apache.
However, taken the GPL literally, they could not, for example, write a plugin like mod_fancy_shopping_solution and release that under a proprietary licence.
So proprietary software vendors could not access that market, giving an competive advantage to Open Source software vendors.
They could use a proprietary web server, it's their choice.
Is this a joke?
Ciao.
On Wed, Mar 20, 2002 at 06:10:15PM +0100, Giovanni Biscuolo wrote:
Il mer, 2002-03-20 alle 14:57, Claus F?rber ha scritto:
Jan Wildeboer jan.wildeboer@gmx.de schrieb/wrote:
Interesting - Free software can violate antitrust laws? Can you construct a theoretical example? Just curious :-)
Consider this: Apache changes the licence to GPL. As Apache has a large market share, 3rd party vendors for WWW server solutions would have to make their products compatible with Apache.
However, taken the GPL literally, they could not, for example, write a plugin like mod_fancy_shopping_solution and release that under a proprietary licence.
So proprietary software vendors could not access that market, giving an competive advantage to Open Source software vendors.
They could use a proprietary web server, it's their choice.
Is this a joke?
Ciao.
No, this isn't a joke. Antitrust law applies to anyone who is dominant on a market, where dominant="more than 40% marketshare" in Poland (It's not defined in US law). So in Poland Apache Group would be quite restricted in what they can do, because of their "dominant position on HTTP servers market". In particular it would be illegal to "restrict competition in other markets by abusing their dominant position on this market", that is restricting competition on modules to webserves market because they have dominant position on webservers market. In particular aplicability of GPL would be limited by antitrust law. They might be forced by court to allow some kind of extensions.
I don't know about situation is countries other than PL and US, but I suppose it's quite similar.
Also I don't think anybody is going to use antitrust law against some free software, as antitrust law differs so much from country to country that they would be limited only to a few countries anyway. They would almost certainly prefer to use some proprietary package.
Hi,
On Wed, 20 Mar 2002, Tomasz Wegrzanowski kindly wrote:
--snip--
No, this isn't a joke. Antitrust law applies to anyone who is dominant I don't know about situation is countries other than PL and US, but I suppose it's quite similar.
No. Austria is very different from both and as far as I know Germany, too. I think this applies to most other european countries. Poland, after the fall of communism has - after reciving intense pressure (and money) from the US modelled their law after the US.
Georg Jakob writes:
Hi,
On Wed, 20 Mar 2002, Tomasz Wegrzanowski kindly wrote:
--snip--
No, this isn't a joke. Antitrust law applies to anyone who is dominant I don't know about situation is countries other than PL and US, but I suppose it's quite similar.
No. Austria is very different from both and as far as I know Germany, too. I think this applies to most other european countries. Poland, after the fall of communism has - after reciving intense pressure (and money) from the US modelled their law after the US.
As Poland - along with a major bunch of other states from the former domain of USSR impact - applied for EU membership, will they have to adapt their laws to the prevailing standards in the EU as well?
Klaus Schilling
On Wed, Mar 20, 2002 at 08:59:03PM +0100, klaus schilling wrote:
No. Austria is very different from both and as far as I know Germany, too. I think this applies to most other european countries. Poland, after the fall of communism has - after reciving intense pressure (and money) from the US modelled their law after the US.
As Poland - along with a major bunch of other states from the former domain of USSR impact - applied for EU membership, will they have to adapt their laws to the prevailing standards in the EU as well?
Klaus Schilling
This law is quite recent, so I seriously doubt that it might be incompatible with EU laws in any significant manner.
What are these "EU standards" you are talking about ?
On Wed, 2002-03-20 at 17:16, Tomasz Wegrzanowski wrote:
No, this isn't a joke.
Then it is out of this reality :)
Antitrust law applies to anyone who is dominant on a market, where dominant="more than 40% marketshare" in Poland (It's not defined in US law). So in Poland Apache Group would be quite restricted in what they can do, because of their "dominant position on HTTP servers market". In particular it would be illegal to "restrict competition in other markets by abusing their dominant position on this market",
If the ASF changed the httpd to GPL, other companies either have to compete with a derived version of the apache httpd they use, make their derived work GPL, or turn to proprietary httpds.
It does not in anyway restrict competition. I think it even fosters competition.
Hugs, rui
Rui Miguel Silva Seabra writes:
If the ASF changed the httpd to GPL, other companies either have to compete with a derived version of the apache httpd they use, make their derived work GPL, or turn to proprietary httpds.
It does not in anyway restrict competition. I think it even fosters competition.
How easily may the ASF change Apache's license? Wouldn't it require the consense of a terrible lot of contributors, some of them possibly being directly involved in existing proprietary extensions?
Klaus Schilling
On Wed, 2002-03-20 at 20:02, klaus schilling wrote:
Rui Miguel Silva Seabra writes:
If the ASF changed the httpd to GPL, other companies either have to compete with a derived version of the apache httpd they use, make their derived work GPL, or turn to proprietary httpds. It does not in anyway restrict competition. I think it even fosters competition.
How easily may the ASF change Apache's license? Wouldn't it require the consense of a terrible lot of contributors, some of them possibly being directly involved in existing proprietary extensions?
Klaus,
this was an hipothetical situation that was posed as a way to argue that GPL could be a target of antitrust law. I doubpt very much the ASF would ever do such a thing.
Hugs, rui
Il mer, 2002-03-20 alle 18:16, Tomasz Wegrzanowski ha scritto:
On Wed, Mar 20, 2002 at 06:10:15PM +0100, Giovanni Biscuolo wrote:
Il mer, 2002-03-20 alle 14:57, Claus F?rber ha scritto:
Jan Wildeboer jan.wildeboer@gmx.de schrieb/wrote:
Interesting - Free software can violate antitrust laws? Can you construct a theoretical example? Just curious :-)
Consider this: Apache changes the licence to GPL. As Apache has a large market share, 3rd party vendors for WWW server solutions would have to make their products compatible with Apache.
However, taken the GPL literally, they could not, for example, write a plugin like mod_fancy_shopping_solution and release that under a proprietary licence.
So proprietary software vendors could not access that market, giving an competive advantage to Open Source software vendors.
They could use a proprietary web server, it's their choice.
Is this a joke?
Ciao.
No, this isn't a joke.
Oh, so I hoped.
Antitrust law applies to anyone who is dominant on a market,
[...]
Antitrust laws applies to companies, not to software.
In the above example Apache web server is free software available to anyone under the Apache Software License, Version 1.1. Firthermore, The Apache Software Foundation exists to provide organizational, legal, and financial support for the Apache open-source software projects. The Apache Software Foundation is a membership-based, non-profit corporation.
The very same is for all free software, since it is available to *anyone* (even to competitors) under the terms of a free software license.
... yes, it *was* a joke ;-)
Ciao.
Il gio, 2002-03-21 alle 10:19, Giovanni Biscuolo ha scritto:
Il mer, 2002-03-20 alle 18:16, Tomasz Wegrzanowski ha scritto:
[...]
Antitrust law applies to anyone who is dominant on a market,
[...]
Antitrust laws applies to companies, not to software.
Also, it is *very* unlikely that free software companies gains a dominant position on any software market, as far as they completely miss all usual tactics leading to a dominant position (see Microsoft antitrust lawsuit).
[...]
Little joke: Free Software is a prerequisite to antitrust ;-)
Ciao.
Hi,
On 20 Mar 2002, Claus Färber kindly wrote:
Jan Wildeboer jan.wildeboer@gmx.de schrieb/wrote:
Interesting - Free software can violate antitrust laws? Can you construct a theoretical example? Just curious :-)
Consider this: Apache changes the licence to GPL. As Apache has a large market share, 3rd party vendors for WWW server solutions would have to make their products compatible with Apache.
However, taken the GPL literally, they could not, for example, write a plugin like mod_fancy_shopping_solution and release that under a proprietary licence.
So proprietary software vendors could not access that market, giving an competive advantage to Open Source software vendors.
*ROFL* Go and tell that Microsoft.
But let's get serious:
1.) Having a monopoly is perfectly legal. Using this monopoly for your own good is perfectly legal, too. But: It is not legal to use a monoploy in illegal way (this principle is true for Europe and the US, even if the law is differing a lot). 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.
2.) Acting for profit on a market is an essential precondition for Antitrust Law to be applied. In the case of the Apache Group, I strongly doubt if they can be seen as a company. (Besides that you can't even sue them. Legally, the Apache Group doesn't exist.)
3.) Changing the license from one version to another is perfectly legal (if the License itself is not illegal, but that's another story). It is a general principle in all western Civil Laws that you can choose the conditions under which you agree to a contract. It is called Economic Autonomy of the Individual (Privatautonomie).
4.) The License of programs already published can not be changed (well, in some countries yes, but only under *very* limited circumstances). So, as it already has been pointed out correctly, prior versions will be still avail- and distributable as before. No need to sue anybody.
So: Please stop the FUD or provide more substantial legal reasoning. And beware: IAAL. ;-)
Georg Jakob jack@unix.sbg.ac.at schrieb/wrote:
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.)
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.
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).
2.) Acting for profit on a market is an essential precondition for Antitrust Law to be applied.
Clearly no. To quote the European Court of Justice:
| 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)
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.
Please note that this does not necessarily apply to the Apache Foundation, which does write the software, but merely supports the authors of Apache. It does apply to the Apache authors as a group, however. Writing Open Soruce software does not excuse you from competing with other (non-Open Source) software vendors in a fair manner.
If the definition of derieved works in the GPL was wider than what copyright laws consider a derieved work, the must-be-GPL clause would no longer be covered by copyright and become anti- competitive. Fortunately, the GPL does not try to define it. If it did, it would be a ticking time bomb.
Claus
=?ISO-8859-1?Q?Claus_F=E4rber?= list-fsf-eu-discussion@faerber.muc.de wrote:
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).
But they are still a single organisation.
[...]
Please note that this does not necessarily apply to the Apache Foundation, which does write the software, but merely supports the authors of Apache. It does apply to the Apache authors as a group, however. Writing Open Soruce software does not excuse you from competing with other (non-Open Source) software vendors in a fair manner.
Does being an informal alliance of competing vendors not prevent antitrust action against them? How can you make an antitrust case against an entire industry sector? I think it's like saying that orange sellers have the market for oranges sewn up because they won't allow the apple sellers to call their fruit oranges...
On Fri, Mar 22, 2002 at 01:05:43PM +0000, MJ Ray wrote:
Does being an informal alliance of competing vendors not prevent antitrust action against them?
No, this is called a cartel and has been done in the past.
How can you make an antitrust case against an entire industry sector?
If they have agreed on measures to exclude entrance of other competition, it is a cartel and illegal.
I think it's like saying that orange sellers have the market for oranges sewn up because they won't allow the apple sellers to call their fruit oranges...
Yes, but they will if they refuse to sell orange tree seeds to anyone but existing orange producers.
Lionel Elie Mamane lionel@mamane.lu wrote:
How can you make an antitrust case against an entire industry sector?
If they have agreed on measures to exclude entrance of other competition, it is a cartel and illegal.
But in the presented scenario, there is no artificial barrier to entry and so it cannot be a cartel.
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?