"The GPL violates the US Constitution, together with copyright, antitrust and export control laws," SCO Group said in an answer filed late on Friday to an IBM court filing. In addition, SCO asserted that the GPL is unenforceable.
The assertions direct even more attention to the licence, which already was at the centre of many of IBM's arguments against SCO in August.
"The GPL has never been tested before. This is raising the stakes on that," said David Byer, an intellectual-property attorney and partner at law firm Testa Hurwitz & Thibeault law firm. If a ruling comes out declaring the GPL void, "a lot of people are going to be potentially in a pickle."
The Free Software Foundation (FSF), charged to promote the GPL's philosophy and tackle potential violations in court, strongly disputed SCO's assertions.
"It's just rubbish," said attorney and Columbia Law School professor Eben Moglen. "There's nothing about giving permission to copy, modify or redistribute that violates the US Constitution or any other law of the United States."
SCO offered no details in its court filing, but it said in a statement, "Article 1 Section 8 of the US copyright law says that Congress can regulate copyrights, not the FSF or any other organisation."
IBM appeared unfazed. "IBM strongly believes in its counterclaims and looks forward to trying its case in the court of law," where IBM will address SCO's specific claims, such as the GPL issue, spokesman Mike Darcy said.
Numerous open-source projects besides the core, or kernel, of Linux employ the GPL, including the OpenOffice desktop software suite, the MySQL database, the Gaim instant-messenger software and the Snort intrusion detection program.
Richard Stallman created the GPL in the 1980s to govern the Gnu's Not Unix (GNU) software project to clone Unix. The licence permits anyone to see, modify and distribute a program's underlying source code, as long as the author of the modifications publishes them when distributing the modified version.
And SCO itself is no stranger to the GPL. Until May, it sold its own version of Linux, and to this day it includes GPL-covered software in its two Unix products, UnixWare and OpenServer.
If the GPL is declared void, SCO could be among those damaged, Byer said. "The software under the GPL is copyrighted. Absent the GPL, the licensee has no right to use the copyrighted subject matter," Byer said.
SCO shook the computing world when it began its legal action against IBM in March. The lawsuit pits the company, owner of key Unix copyrights, against both the largest computing company and the most prominent corporate advocate of the Linux operating system.
SCO seeks at least $3bn (£1.77bn) from IBM, claiming IBM moved Unix technology to Linux in violation of its Unix contract with SCO. Meanwhile, Linux seller Red Hat initiated a lawsuit of its own against SCO in August, and SCO is now seeking direct payments from Linux users.
Though the GPL figures prominently in the SCO-IBM case, Red Hat believes the license itself might remain on the sidelines, said Bryan Sims, associate legal counsel at Red Hat. "I think the issues associated with the GPL may not even be reached, because the main issue is a contractual issue," he said.
Lawyers and businesspeople could welcome a GPL test, though. "Right now there's uncertainty, which is always difficult for business people to deal with," Byer said.
Part of the reason SCO attacked the GPL is likely to be procedural, so that it doesn't lose the ability to make the argument later, Byer added. "If you don't raise every possible claim you think of, you waive it."
By the same token, SCO rebutted IBM's claims that SCO violated four patents in multiple ways, including declaring the patents invalid.
SCO still ships GPL software
Though SCO questions the legal underpinnings of the GPL, the company has continuing ties to software covered by it.
Most prominently, SCO itself shipped Linux up until May, when it said concerns about intellectual-property infringement required the company to stop shipping it. It still has Linux source code available for download.
In addition, the company continues to ship the GPL-covered Samba software, which lets Unix or Linux systems share files on Windows networks, as part of its UnixWare and OpenServer products.
SCO spokesman Blake Stowell said SCO doesn't offer indemnification, or legal protection, for use of Samba. As a hypothetical example, if Microsoft were to decide Samba violated its file system intellectual property and start suing companies that use the software, SCO would stop including Samba but wouldn't offer customers using the software legal protection, Stowell said.
"I'd be confident if we had any reservations that misappropriated code had gone into Samba, we ourselves would stop shipping it, and we would recommend to our users they stop using it," Stowell said. But of assuming responsibility for a Samba lawsuit, he said, "I don't think we could."
SCO's Web site states unambiguously that it's not possible to offer indemnification on GPL software: "Some customers have asked their Linux distributors to indemnify them against intellectual property infringement claims in Linux. The Linux distributors are unable to do so because of the terms and conditions in the General Public Licence," a page describing SCO's Unix licence said.
SCO has been suggesting that IBM should indemnify its Linux customers. "If IBM is so confident that Linux is free and clear, why don't they indemnify their users against any lawsuit SCO could bring against them?" Stowell said.
Byer seemed bemused by the whole situation.
"There are some high ironies that IBM, one of the largest obtainers of patents in the world, ends up being the defender of the GPL, which is derived from the Free Software Foundation and the open-source community, which is generally sceptical and worried about overly broad patent protection," Byer said.
Talkback
In the beginning SCO's claims seemed reasonable but I'm afraid they are scrapping the bottom of the barrel here and they are destroying (whatever is left of) their integrity.
How reasonable is it for a leading IT company of the stature of SCO to distribute software under a license that they deem unconstitutional and that they believe cannot be enforced?
The bottom line in most complex legal proceedings is the so-called reasonability test. Any judge using this yardstick should dismiss these claims with contempt and along with that evaluate all other SCO claims in the light of their latest exploit.
Excuse me? "leading IT company of the stature of SCO"? It is to laugh! Have you ever used OpenLINUX? What a piece of pre-primordial slime!
How pathetic. SCO are shooting themselves in teh foot, if not the head, every time they open their corporate mouth. Some of their statements make me question their sanity. Suggesting that the GPL is about controlling copyright, for example. Copyright EXISTS, or not, as decided by the author of something. It is ENFORCED by the courts. The laws governing it are SET by governments. The word CONTROL does not apply anywhere, not have the FSF or anyone else tried to control anything. They have in fact LICENSED the use of COPYRIGHT software under certain SPECIFIED conditions, which is all any licence agreement does. The GPL is not a COPYRIGHT (that is what is stated in the source code, for example, by the named authors), ibut rather it is a LICENCE AGREEMENT (and a good one IMHO). So nowhere does the FSF or anyone else who supports the GPL have in the proper meaning of the word, any way to CONTROL COPYRIGHT. Nor does any government anywhere, although they may be able to control COPYRIGHT LAW, not the same thing at all.
They clearly have no understanding at all of what it is all about. They should drop this and beg forgivness of IBM, Red Hat and everyone else, before it destroys them.
Of course as others have speculated elsewhere, there may be more sinister motives concerning a mediocre software company in Redmond, or stock manipulation aka fraud, or....... They have no case where the apparent issue is concerned, and will lose. Meanwhile the annoyance and damage caused to the innocent is out of all proportion to the importance of SCO to the human race. Sadly the US legal system (like any other?) seems to have no way of killing off this stupid and irrelevant case. maybe they should give Darl McBride his own TV comedy show, he might get 2 or 3 viewers.
This is utter rubbish from SCO. Basically, because they cannot compete in the marketplace, they want to compete in the courts.
This can only hurt the UNIX/Linux community. I say IBM should just buy them out and shut them up for good.
Boycott all SCO products until they get the message.
"SCO shook the computing world when it began its legal action against IBM in March."
It seems more accurate to say they shook newsrooms filled by people lacking any clue about merits of SCO's increasingly weird "legal" arguments -- among those most odd the assertion that the GPL conflicts with the Constitution. Please pass the bong.
If there were a real case here, Microsoft would be buying out SCO at virtually any price to create Fear, Uncertainty, and Doubt with respect to Linux. They have not, and SCO has instead sold position to its own lawyers.
Proprietory UNIX code now offers little more than nuisance value, having long since passed its sell-by date.
SCO's gullible management, conned into believing it has a "case", has eagerly swallowed the hook in hopes of salvaging value where none actually exists.
In the end, lawyers hired by SCO will sell off its assets at a fat profit to themselves in legal fees. As Mrs. Marple said, "Things are not always what they appear."