In The SCO Group Inc.s latest U.S. District Court filing as it battles IBM over Linux, the company is no longer using the affirmative defense that the GNU General Public License (GPL) is unconstitutional.
SCO president and CEO Darl McBride took aim at the GNU General Public License, under which Linux is distributed, in a December open letter. He said the GPL violates the U.S. Constitution as well as U.S. copyright and patent laws.
Moreover, a subsequent letter sent to U.S. elected officials expanded on SCOs vision of the GPL. McBride declared that open-source software is a threat to the countrys IT industry, to national security and to the ability of the country to compete in the global economic market.
“I urge you to consider the other side because I believe that open source, as it is currently constituted, is a slippery slope,” McBride wrote to legislators in January. “It undermines our basic system of intellectual property rights, and it destroys the economic reason for innovation.
“By taking action, our company has become a target for sometimes vicious attacks—including online attacks that have repeatedly shut down our company Web site,” McBride continued in his letter to federal officials. “Despite this, we are determined to see these legal cases through to the end because we are firm in our belief that the unchecked spread of open-source software, under the GPL, is a much more serious threat to our capitalist system than U.S corporations realize.”
However, in this weeks filing, called SCOs Answer to IBMs Second Amended Counterclaims, here in PDF form, it appears that Lindon, Utah-based SCO is no longer stating in court that one reason why it should win is that “the GPL violates the U.S. Constitution, together with copyright, antitrust and export-control laws, and IBMs claims based thereon, or related thereto, are barred.”
SCOs earlier contention that the GPL is unconstitutional sparked controversy and brought cries of outrage from Linux and open-source supporters.
Many lawyers, such as Tom Carey, a partner at Bromberg & Sunstein LLP, a Boston intellectual property law firm, have said they found SCOs assertion that the GPL is unconstitutional to be “rubbish.”
Open-source advocates said they are delighted by the news. Bradley M. Kuhn, executive director of the Free Software Foundation, the organization behind the GPL, said, “We are, of course, glad that SCO has heard our answers to those questions and realized that they have no basis whatsoever to make those claims.”
Bruce Perens, an open-source leader and a director of Software in the Public Interest Inc., a nonprofit, open-source development organization, commented, “SCO is going where other attorneys who thought about fighting the GPL have gone after looking at it: away. They looked at the GPL and decided they would lose.
“Theyre removing a silly claim from their lawsuit and retreating to claims that they have a hope of making in court,” Perens said. “If they leave silly stuff in the case, theyre more likely to become a victim of a summary judgment and not get their side heard at all.”
Eric Raymond, president of the Open Source Initiative and one of open sources founding fathers, said he agrees with Perens. “Courts dont like claims that are obviously bogus—they tend to taint nearby claims that might not be,” Raymond said. “SCOs lawyers have decided that the odds of collateral damage are too high to keep pushing that one.”
SCO has not responded at this time to requests for comment.
Editors Note: This story was updated to include further information on SCOs past position on the GPL.
