shlep: the Self-Help Law ExPress

Frankly, I’ve known quite a few antitrust lawyers who don’t fully understand antitrust law — especially its treatment of concepts such as injury, conspiracy, price-fixing and predatory pricing. It’s no surprise at all, then, that yet another court has rejected pro se plaintiff Daniel Wallace‘s faulty antitrust allegations against the GNU free operating system and the General Public License (GPL) for its copyrighted software. (see Wallace v. IBM, et al, 7th Circuit, No. 06-2454, issued Nov. 9, 2006; Enterprise Open Source Magazine, “Wallace Loses Appeal – GPL is Legal,” Nov. 18, 2006; Antitrust Review weblog, Nov. 9, 2006)

In his district court loss against the Free Software Foundation in March of this year, Wallace was allowed to amend his complaint four times, in the hope that he might come up with an allegation that (if proven) amounted to an antitrust violation. He failed and Judge John Daniel Tinder correctly dismissed the suit and ordered Wallace to pay FSF’s costs.

Wallace wanted to compete against the Linux system but complained that he could not, because the General Public License allowed the software to be distributed for free. Judge Tinder pointed out that injury to Wallace was not the same as injury to the marketplace and consumers:

“[T]he GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation.”

Last week, writing for a unanimous three-judge panel of the federal 7th Circuit appellate court, the often-acerbic Judge Frank H. Easterbrook confirmed the dismissal of Wallace’s claims. Easterbrook took Wallace’s misinterpretations of antitrust law apart issue by issue. The 6-page opinion ends with the sentence: “The GPL and open-source software have nothing to fear from the antitrust laws.”

In May 2005, the Groklaw weblog speculated that Wallace might himself be part of a conspiracy — acting as a stand-in for companies that would like to see Linux and GPL fail. That seems a bit farfetched to me, however, because such companies surely would have made sure that Wallace got competent antitrust advice (and maybe ghostwriting assistance) when drafting his complaints. For me, the case is a reminder that — despite what many members of the general public and the legal profession appear to believe — weaving fanciful theories of liability by ignoring the special definitions that words and concepts are given in a particular body of law, is not good lawyering and not good advocacy. When a pro se litigant does it, he or she deserves to be politely told to get it together or get lost.