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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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    Most Recent Comments
    Jean Marc 06/01/04 05:49:57 PM EDT

    "Sun will soon have a proprietary linux compatible OS that is enhanced with all sorts of Microsoft technology. That's going to be hard to compete against."

    LOL, and you think that people will actually use that stuff? Of course not, they will (rightly) avoid it like a deadly disease... Commercial sharks still do not understand the phylosophy of Open Source. It's FREE as in FREEDOM, not as in GRATIS... The commercial sharks are just plain dead meat, their reign is over. They have to accept it and get on with their lives.

    JM.

    daniel wallace 04/30/04 12:15:37 PM EDT

    The intellectual property lawyers at Sun, Oracle, IBM,
    Microsoft and every other proprietary software company are
    probably rolling around on the floor in laughter right now.
    An unenforceable, preempted copyright license that's not
    unconstitutional. That's a major victory for sure!

    Every IP lawyer worth his salt is intimately familiar with
    the two prong "extra element" test for preemption under sec.
    301 of the Copyright Act. In order to avoid preemption, a
    contract such as the GPL must contain an "extra element"
    claim that complains about something distinct from one of
    the exclusive rights granted in the Copyright Act. See for
    example: Wrench LLC v. Taco Bell Corp. 256 F.3d 446.

    The courts have at times found it difficult to discern
    whether there exists an "extra element" but in the case of
    the GPL Richard Stallman made it crystal clear. The GPL
    boldly claims:

    "Activities other than copying, distribution and
    modification are not covered by this License; they are
    outside its scope."

    The first prong of the preemption test asks: does the subject matter concern copyrights? I believe everyone will concede the GPL covers copyrights enumerated in sec. 106 of the copyright act.

    The second prong asks: is there a claim other than violation
    of copyright involved? The GPL boldly states there is not.

    Presto! Instant preemption. All that beautiful GPL'd code
    permission out there waiting to be claimed through
    promissory estoppel claims.

    In case your wondering why those proprietary companies don't
    just file for promissory estoppel permissions, that's easy
    to see. Promissory estoppel requires good "faith reliance"
    upon the GPL. If you admit it's broken then you couldn't
    have relied upon it in good faith could you?

    That's why the FSF has so far convinced potential defendants
    the GPL is valid... defendants desire the code more than
    they desire to break the GPL.

    That's where SCO or some other proxy comes in. SCO is dead
    meat. They have nothing to lose by claiming (rightly) that
    the GPL is void. Once the GPL is ruled broken everyone
    claims promissory estoppel.

    Sun will soon have a proprietary linux compatible OS that is
    enhanced with all sorts of Microsoft technology. That's
    going to be hard to compete against.

    Fecal Extrusion 04/30/04 09:31:46 AM EDT

    >> Daaaaarl commented on 30 April 2004:
    >> * How can SCO keep this up?

    Daaaaarl, let me tell you... You can thank a stupid Canadian
    bank called RBC (Royal Bank of Canada). They gave even MORE money to SCO's war-chest than BayStar (Microsoft "PROXY").

    I'm going to laugh watching the slowly dissolving entity
    called SCO piss away all that RBC money. Poor RBC customers
    who will inevitably make up for the loss in additional
    service charges.

    I hope a lot of Linux friendly businesses and investment
    firms boycot RBC.

    Fecal Extrusion 04/30/04 09:19:16 AM EDT

    David Boies (SCO lawyer) must be like a moth drawn to a flame.
    How he could continue to be willing to represent such an
    attack-and-retreat, slander-and-retract @$$hole like
    Darl McBride, is unimaginable.

    If I were David Boies, I'd be embarrassed and hiding.
    (Oh well, he's pretty much retiring anyways, too bad he
    chose to go out in a ball of flames.)

    SCOwhat? 04/30/04 06:25:08 AM EDT

    Thanks for the url, FollowThe$$$$ - I see SCOX is still far above where they were in 2002.

    actuaLLy 04/30/04 06:21:51 AM EDT

    I don't think that Darl McBride sold any stock yet, though lots of the SCO officers have been (legally) selling SCOX stock regularly.

    FollowThe$$$$$ 04/30/04 06:20:38 AM EDT

    The entire SCO/Linux fiasco is a perfect insider stock scheme. Someone has put options on SCO and is laughing his head off: yesterday SCOX hit its new low for the year.

    Daaaaarl 04/30/04 06:16:06 AM EDT

    How can SCO keep this up? With all this idiocy, it would seem SCO are doomed. How could any company maintain with this much erosion to their credibility?

    iabervon 04/30/04 06:14:13 AM EDT

    They can just drop claims from the IBM lawsuit without consequences in it. However, they'll have to answer for it in the Red Hat lawsuit. I bet Red Hat will jump on this as a reason to restart that lawsuit, since SCO made a claim that damaged Red Hat's business and that they no longer intend to support. The judge had put the case on hold because SCO was going to try to prove their claims in the IBM case; now they don't seem interested in doing so, so they've essentially lost the bit of the IBM case relevant to the Red Hat case.

    For that matter, that was supposed to be an affirmative defense against IBM's copyright infringement countersuit. If they can't come up with some other justification for their massive piracy of IBM's work, IBM is in the position to demand the SCO either GPL its putative IP or pay all of its assets in damages.

    I Agree 04/30/04 06:12:11 AM EDT

    How can they make claims and drop them like that? No consequences??

    There are corporations that weren't choosing linux or were delaying programs because of this .. there were real losses. It's just wrong that you can make risk-free arbitrary claims and accusations as scare and/or FUD to try to advance your agenda .. without worry of consequences.

    For the Record 04/30/04 06:09:16 AM EDT

    Darl has claimed to own AIX and IBM code many times:

    "SCO is in the enviable position of owning the UNIX operating system," said Darl McBride, president and CEO, SCO, in an interview with eWeek Thursday. "It is clear from our stand point that we have an extremely compelling case against IBM. SCO has more than 30,000 contracts with UNIX licensees and upholding these contracts is as important today as the day they were signed."

    [...] "IBM has been happily giving part of the AIX code away to the Linux community, but the problem is that they don't own the AIX code," he said. "And so it's a huge problem for us. We have been talking to IBM in this regard since early December and have reached an impasse. This was thus the only way forward for us."

    Darl McBride, 2003-03-06

    "Yesterday I had a request from a $28 billion company, an IBM customer, who sent us a request asking to see the AIX source code and the derivative work that came out of that. It is crystal clear to us here that certain parts of IBM are regularly reinforcing that we do have pretty strong ownership of the AIX code base,"

    Darl McBride, 2003-03-07

    Darl McBride, SCO's CEO since June, said in an interview this morning that the lawsuit was inspired by public comments made recently by IBM executives who have allegedly said they're moving features from IBM's AIX Unix into Linux to benefit enterprise customers as part of IBM's Linux strategy. The problem with that, McBride said, is IBM doesn't own AIX, but licenses it through SCO.

    "It goes to the heart of confidentiality agreements in AIX contracts," he said. "IBM has been publicly saying that they're OK putting AIX into open source, that it's not a problem for them," he said. "When you take our valuable intellectual property and say you're going to move it into open source, then we have a major problem."

    [...] "This case is about IBM making commitments to us and honoring them."

    Darl McBride, 2003-03-07

    At one of their conventions this year, an IBM executive stood in front of an audience and said that IBM was going to destroy the value of Unix and move it all over to Linux. They were going to take the know-how, the people, the methods they developed over the years around AIX--which is our licensed version of Unix--and they were going to transport all that in a wholesale fashion over to Linux. Those statements alone caused us alarm. When we dug deeper, we found they, in fact, had been doing that and they were going to do more.

    Darl McBride, 2003-06-16

    wepprop 04/30/04 05:59:11 AM EDT

    I see some people, here and elsewhere, making a leap of faith from the fact that SCOX has dropped their unconstitutionality claim from this matter, to concluding
    that SCOX has thereby admitted that the GPL is constitutional.

    Actually, a cynic like myself would argue, removing that claim from these proceedings prevents that question from being definitively decided against them and thus gives them the opportunity to introduce that very same claim in other
    matters and proceedings, with the intent to further prolong the fear, uncertainty, doubt, confusion, and delay.

    This would be, furthermore, consistent with the methodology of the "Big Lie," which says that the more times people hear a lie, the more often they are to believe it.

    jfabermit 04/30/04 05:57:46 AM EDT

    Assuming that some court finally rules that SCOX lacks the copyrights to UNIX or that Linux is clean anyway, and the rest of their court cases begin to crumble, how long will it be until SCOX sues Tarantella claiming that during the great Unix Licensing and name swap that OldSCO misinformed NewSCO about what exactly they were buying?

    I wish I was kidding about this, but as SCO lawsuits go, it wouldn't really even be the most bizarre...

    AffirmativeSchmaffirmative 04/30/04 05:54:48 AM EDT

    This truly is the text book example of how to mess up your own case by becoming befuddled from your own attempt to befuddle others. Some hapless fools, actually no, some hapless criminals they turned out to be.

    dmscvc123 04/30/04 05:53:38 AM EDT

    They'll file a 3rd amended complaint and this time they'll claim that Linux violates Article 17 of the UN's Universal Declaration of Human Rights. Then if that doesn't work, Darl will call Linux a WMD.

    Just Remember 04/30/04 05:46:30 AM EDT

    Darl smokes crack. Linus Torvalds said so it must be true :-)

    anonymOus 04/30/04 05:42:44 AM EDT

    A legal question: Can someone make a claim in a lawsuit, then drop that claim later on, even though the defendant has made responses/counter-claims to it?

    Can you really say "Oops, please ignore what we said before, here is what we really mean?" without sanction?

    sjgibbs 04/30/04 05:40:37 AM EDT

    I think the FSF could cure this issue by issuing a press release to the effect
    of "For your information, the people claiming the template licence called the GPL was unconstitutional just dropped the claim. You may find this reassuring if creating/using GPL software so we thought you should know."

    OTOH that would be stating a negative and could make matters worse.... Ho hum...

    SCO is easy to defeat but the damage will be difficult to reconstruct afterwards. We just need to stick at it untill the job is done...

    taitbb 04/30/04 05:38:51 AM EDT

    For SCO, it looks better to remove them now, than have them shot down in october or whenever by a judge. It won't look like a loss that way.

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