SCO Still Contends GPL Is Unconstitutional

SCO says it still contends in its case with IBM that the GPL is unconstitutional. But analysts say they don't see it.

In an interview Friday, Blake Stowell, The SCO Group Inc.s communications director, said SCO is not backing off claims after all that the GNU General Public License (GPL) is unconstitutional in its case with IBM concerning the Unix source code.

/zimages/5/28571.gifClick here to read about SCOs removal of the explicit argument that the GPL is unconstitutional.

Stowell said the companys U.S. District Court filing this week, called SCOs Answer to IBMs Second Amended Counterclaims, here in PDF form, no longer explicitly states that the GPL is unconstitutional, but he said the Lindon, Utah-based company does maintain the following positions:

  • That "the GPL is unenforceable, void and/or voidable, and IBMs claims based thereon, or related thereto, are barred."
  • That "the GPL is selectively enforced by the Free Software Foundation such that enforcement of the GPL by IBM or others is waived, stopped or otherwise barred as a matter of equity."
  • And finally, that "IBMs claims are barred or pre-empted, in whole or in part, by the laws of the United States."

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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