SCO Still Contends GPL Is Unconstitutional

Putting all of these together, Stowell said, adds up to SCO still claiming that the GPL is unconstitutional. This explicit claim, however, has been removed from SCOs legal filings.

Tom Carey, a partner and chairman of the business practice group at Bromberg & Sunstein LLP, a Boston intellectual property law firm, said he doesnt see this adding up to SCO continuing to argue that the GPL is unconstitutional.

"I think theyre backing off on the constitutional issue, but what I see is that theyre not backing off the argument that the GPL is pre-empted by the copyright act."

Carey added, "I hardly know where to begin with SCOs second argument. It is based on factual and legal assertions that are incorrect. The Free Software Foundation [FSF] does everything within their resources to enforce the GPL.

"Im unaware of the FSF turning a blind eye to violations of the GPL. In any case, though, the licensor is not under any obligation to enforce every license."

As for SCOs point that IBMs claims are barred by U.S. law, Carey said he sees this "as SCO restating the argument that the GPL is pre-empted by the copyright act."

In any case, Carey said, "Attacks on the GPL are far-fetched and a little bit desperate."

Stacey Quandt, principal analyst at Quandt Analytics, remarked, "SCOs prior claim that the GPL was unconstitutional was equivalent to Microsofts claims about open source being un-American—totally ridiculous."

Thus, while the GPLs legality clearly remains a focus for SCOs attempts to win its legal war with IBM over Linux, it is not clear to outside observers that the constitutionality of the GPL is really still on the table, despite SCOs claims to the contrary.

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