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Re: GPL v3 Draft

Barnes & Thornburg LLP on conspiracy.

Finally, the Response confirms that there is no alleged "conspiracy,"
as the GPL is allegedly "public" by its nature with "hundreds" and
potentially an "unlimited" number of programmers using the program.
(Response at 3.) The allegations support no more than a unilateral
decision by each of the Defendants, and the "hundreds" of others,
to "use" the GPL for distribution of software. (Second Am. Compl. at
2.) The Second Amended Complaint must therefore be dismissed under
Rule 12(b)(6) for failure to state a claim upon which relief can be

Well, well, well.

(The U.S. Declares Hollywood Guilty of Antitrust Conspiracy)


The District Court found that the defendants in the licenses they
issued fixed minimum admission prices which the exhibitors agreed
to charge, whether the rental of the film was a flat amount or a
percentage of the receipts. It found that substantially uniform
minimum prices had been established in the licenses of all
defendans. Minimum prices were established in master agreements or
franchises which were made between various defendants as
distributors and various defendants as exhibitors and in joint
operating agreements made by the five majors with each other [334
U.S. 131 , 142]   and with independent theatre owners covering the
operation of certain theatres. 4 By these later contracts minimum
admission prices were often fixed for dozens of theatres owned by
a particular defendant in a given area of the United States.
Minimum prices were fixed in licenses of each of the five major
defendants. The other three defendants made the same requirement
in licenses granted to the exhibitor-defendants. We do not stop
to elaborate on these findings. They are adequately detailed by
the District Court in its opinion. See 66 F.Supp. 334-339.

The District Court found that two price-fixing conspiracies
existed-a horizontal one between all the defendants, a vertical
one between each distributor-defendant and its licensees. The
latter was based on express agreements and was plainly established.
The former was inferred from the pattern of price-fixing disclosed
in the record. We think there was adequate foundation for it too.
It is not necessary to find an express agreement in order to find
a conspiracy. It is enough that a concert of action is contemplated
and that the defendants conformed to the arrangement. Interstate
Circuit v. United States, 306 U.S. 208 , 226, 227, 474; United
States v. Masonite Corp., 316 U.S. 265, 275 , 1076. That was shown


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