The Free Software Foundation is back asking the district court in Indianapolis to dismiss Daniel Wallace's pro se antitrust suit against it and the GPL on the ground that it still fails to state a claim on which relief can be granted.

FSF's lawyers want the judge to dismiss it, albeit without prejudice, but also "without leave to amend" it any more. They claim that "At some point - and FSF would submit that point is now - it becomes fundamentally unfair to require a defendant to suffer the expense of responding to one baseless complaint after another."

Wallace's third amended complaint was dismissed without prejudice last month for failing to allege the proper kind of antitrust injury. The judge, who found that Wallace did indeed state a claim on which relief can be granted, gave Wallace 20 days to fix the deficiencies.

The judge found that the GPL is a vertical arrangement, not a horizontal one like Wallace contended, and so that finding changed the legal measuring stick from the per se rule that Wallace was using to the rule of reason. On that basis Wallace should have alleged that he was damaged as a consumer or that the whole software market was injured, not that the GPL prevented him from entering the market with his own operating system, the judge told him.

Wallace filed a terse new complaint two days later, but reiterated that he was prevented from marketing his own OS "as a competitor."

Wallace claims that the viral nature of the GPL - in binding future third parties to license their work under the GPL and distribute it for free - is an "egregious misuse of copyright that rises to the level of an antitrust violation," not to say a "contractual impossibility." A contract can't bind a third party.

He also calls the GPL a "predatory price-fixing agreement" that the parties have used to "pool and cross-license their intellectual property with others to develop, distribute and leverage the Linux operating system." He says the Supreme Court declared pooling of IP per se illegal under the Sherman Act in 1942.

(This is a highly abridged version of a story that appeared originally at www.clientservernews.com)