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SCO's McBride Backs Down On "GPL is Unconstitutional" Claim

SCO's McBride Backs Down On "GPL is Unconstitutional" Claim

  • Read McBride's December 2003 Open Letter
  • Read Pamela Jones on SCO vs Red Hat
  • Read Darl McBride's 5 Reasons Why SCO Can *Still* Win vs IBM
  • Read SCO's GPL Position is "Just Invalid" Says Professor


    "The adoption and use of the GPL by significant parts of the software industry," wrote Darl McBride to the world early in December of last year, "was a mistake."

    "These corporations," he continued, "will ultimately reverse support for the GPL and will pursue a more responsible direction."

    Now it appears that the only one who was mistaken was Darl McBride himself, because in SCO's latest U.S. District Court filing in the ongoing SCO vs IBM saga, SCO has dropped its "affirmative defense" that the GNU General Public License (GPL) is unconstitutional.

    The ever-reliable Groklaw.net site notes that in this filing, SCO Group has dropped this and four other of its earlier allegations. Pamela Jones, Groklaw founder and editor, lists them as follows:

  • DROPPED: "The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM's claims based thereon, or related thereto, are barred."
  • DROPPED: "IBM lacks standing to assert these claims."
  • DROPPED: "IBM's purported copyright registrations are invalid and/or IBM has violated copyright laws in respect to its claims alleged and the claims based on, or related to, copyrights are barred."
  • DROPPED: "IBM is not, or may not be, the owner of the '746, '211, '209, or '785 Patents at issue."
  • DROPPED: "IBM has failed to join one or more parties needed for just adjudication of the counterclaims, including but not limited to the Free Software Foundation and contributors to the Linux 2.4 and 2.5 kernels."
  • It isn't known whether the Honorable Dale A. Kimball, the judge in charge of the case, is a Groklaw reader, but there seems little doubt that a change of heart this significant will not go unnoticed in a hurry. As Jones notes, SCO no longer suggests that the GPL violates the export laws or copyright law or antitrust law, either.

    The SCO vs IBM case has generated more newsprint and Web commentary than any other Linux issue in the past 12 months. Earlier this month McBride was still advancing various reasons why he felt SCO could still win its case, but it may be that with the recent announcement by BayStar Capital that it wants its investment back - news that caused a 50% drop in the SCOX share price - SCO Group's McBride will need to re-think more than just his "unconstitutional" claim.

    Some members of the community are going so far as to suggest that it is a shame that the GPL will now not be tested in court. By dropping its claim before it got as far as getting ruled on, one worry is that this might clear the way for SCO to continue pushing the "GPL-is-unconstitutional" line in speeches, letters to Congress, their other lawsuits and the like.

    in a February interview with LinuxWorld Magazine editor-in-chief Kevin Bedell asked Eben Moglen, Professor of Law at Columbia University and General Counsel of the Free Software Foundation about his opinion of SCO's statements regrding the validity of the GNU General Public License, or GPL.

    Here was Moglen's response, now completely vindicated by SCO's about-turn: 

    "As to the actual substance of any claim that the GPL is an invalid copyright permission, it's foolish.

    The GPL is not some contractual example of what these days is called a license in the IP world. The GPL is an example of a permission, what we used to call a license . If you take an ordinary first-year property class in law school, which I have sometimes taught, the word license is used in a particular way to describe permission to use real property.

    The traditional example of the license is my invitation to you to come to dinner at my house. If I invite you to dinner and the minute you walk over my threshold I sue you for trespassing, you go to the judge and you say "Judge, I wasn't trespassing, I had a license to be there. He invited me to dinner." That's license - the unilateral permission to be on, or use, or possess, or do something about property.

    That's what copyright license used to mean before the late 20th century - a unilateral permission. The GPL is a unilateral permission. It says, we as copyright holders have the exclusive rights under the law to copy, modify, and distribute this work. But we permit you, the licensee, to do any of those things. Please note that your right to redistribute extends only to redistribution, whether of modified or unmodified versions of this work, under this license.

    That's all. It says: You're permitted to do these things. And if you want to redistribute, you're permitted to redistribute so long as you use this license and this license only.

    There is no promise on the other side, no contract. There's nothing to be invalid in this story. We're simply giving permission.

    And there's nothing in the copyright law, or for that matter, as SCO has even more wildly suggested, in the Constitution of the United States, which prevents us from giving permission to people to perform acts which would otherwise be unperformable under copyright law.

    People give permission for use of copyrighted material every day, of all sorts, and there is no case anywhere that suggests that the giving of broad permission to use, copy, modify, and distribute copyrighted material can somehow fall afoul of the copyright act or the U.S. Constitution."

    SCO's arguments, if they are to be dignified by the word argument, concerning the invalidity of the GPL are just invalid. They're meant to scare people."

    Moglen, it seems, was spot-on.
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