Re: New BK License Problem?

From: Larry McVoy <lm@bitmover.com>
To: Hans Reiser <reiser@namesys.com>
Cc: walt <wa1ter@hotmail.com>, linux-kernel@vger.kernel.org
Subject: Re: New BK License Problem?
Date: Sat, 5 Oct 2002 10:28:22 -0700	[thread overview]
Message-ID: <20021005102822.C835@work.bitmover.com> (raw)
In-Reply-To: <3D9F10EB.80207@namesys.com>; from reiser@namesys.com on Sat, Oct 05, 2002 at 08:18:51PM +0400

On Sat, Oct 05, 2002 at 08:18:51PM +0400, Hans Reiser wrote:
> >> Seems like a pretty straightforward violation of the anti-trust laws, 
> >> and a conspiracy to restrain trade...
> >
> > I Am Not A Lawyer, but AFAIK the anti-trust laws in no way obligate
> > a business to aid its own competitors.
> 
> Read about the essential facilities doctrine.

I'm not a lawyer either but I spend about 40% of my working hours on
legal issues, such as contracts and IP law.  So I'm not uninformed 
about the topic either.  

In order for the essential facilities doctrine to apply, we have to
have control of some "essential facility".  If anyone wants to bring
suit attempting to claim that we have control over such a facility, I
wish them luck.  I'm pretty sure that if I claimed BK was such a thing
you'd all fall over laughing and so would a judge.  That may change in
the future but for now, not a chance of a judge or a jury seeing it that
way, in my opinion.  Feel free to sue if you feel differently.

It would be interesting case law since the suit would be over something
that we give away for free.  Might not matter but then again it might.
I doubt the courts can compel a business to give away their products.
If we were a monopoly they could compel us to sell them but I really
don't see how a court could say "you have to give this away for free".

If anything, the courts seem to be going in the opposite direction.
There was an interesting case recently where the courts upheld that
it was illegal to take a competitor's product, play with it, and then
copy the features.  It was an old case, the decision just came down,
but if we went to court over this stuff, that would be the first thing
we'd hold up as case law which supports our position.

Unlike the slashdot kiddies, the courts seem to recognize that the real
work is in the initial creation of a product, not in the replication of
that product.  The courts are quite supportive of that point, as well 
they should be.  They tend to switch sides as one becomes a monopoly,
but as things stand to day, that is a problem that we'll worry about
if and when it happens.  I have a feeling I'll be retired before then
so you can argue with someone else about it.
-- 
---
Larry McVoy            	 lm at bitmover.com           http://www.bitmover.com/lm 