[copyleft-next] copyleft-next patent commons?

Gervase Markham gerv at mozilla.org
Mon Feb 25 16:02:58 UTC 2013


On 25/02/13 14:42, Pamela Chestek wrote:
> I prefer the Federal Trade Commission's definition of group boycott,
> since they're the ones who enforce the law. 

Fair enough :-)

It seems to me that their definition has a strong component of the
effect on prices. Given that all this software is offered for free, are
the FTC going to mind?

I think there are several things about this which take it away from the
scenario the FTC envisages:

- The "collaborating" group are not collaborating to choose firms to
boycott. The firms "choose" themselves by taking an action.

- The action is not 'selling (or not selling) to a particular person or
at a particular price', it is engaging in hostile litigation.

- All such firms are boycotted, without the possibility of exception. So
there's no chance of "we'll give you the software back if..." blackmail.

- The "collaborating" group may well not have power in any particular
market, as each of their bits of software may well do something
different. Only if all or most of the available software to do a
particular task is involved would there be a potential issue.

- There is no setting of prices, or intent to raise prices. The software
itself usually has no price, either before or after the boycott. If the
prices set by the litigating firm rise, that is a result of the costs
associated with their replacing some of their software.

> significant business effect. Competitors acting in concert in ways that
> are intended to adversely affect another's business are in group boycott
> territory, and that's what you're suggesting.

It would be hard to prove that the intent was to affect another's
business, because firms entering into litigation lose their rights to
the software whether they use it or not. Those deciding to license their
software under copyleft-next-patentpool would not even know which
businesses might be affected by their choosing to litigate, let alone
the level of effect it would have on them - which would depend on how
much copyleft-next software they used.

But again, I'm not a lawyer.

Gerv


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