SCO: 'the GPL violates the U.S. Constitution'

By Matt Whipp

Posted on 28 Oct 2003 at 14:03

SCO filed a response to the allegations contained in IBM's countersuit on Friday, claiming that the GPL licence under which Linux is distributed is unenforceable and 'violates the U.S. Constitution'.

The filing comes as a response to IBM's counter suit, brought last month, in which Big Blue alleges that SCO has infringed copyrights and alleges patent infringement, breach of licence and loss of business from SCO's actions.

In it, SCO says that although both itself, IBM and others have contributed copyright code to Linux under the GNU Public Licence (GPL) as well as distributed Linux products, the licence itself is neither applicable, nor enforceable, as the only body that can enforce it is the owner (the Free Software Foundation) and it only does this 'selectively'.

IBM's countersuit says that in SCO's attempt to enforce its copyright code, contributed under the GPL, it is breaking that licence and therefore infringing other patents and copyrights, including those of IBM.

When IBM first brought the countersuit, SCO responded that it: 'believes that the GPL - created by the Free Software Foundation to supplant current U.S. copyright laws - is a shaky foundation on which to build a legal case... The GPL has never faced a full legal test, and SCO believes that it will not stand up in court.'

Perversely, then if SCO does manage to do away with the GPL, IBM would still be able to pursue SCO for those infringements. Presumably, at that point, all copyright contributions will be enforceable.

The company described Linux as 'a "free" version of UNIX designed to destroy proprietary operating system software.' Yet in the same breath it admits that IBM 'has established its business around Linux and that IBM has received a significant amount of revenue and profit related to Linux'. SCO, conversely, has yet to turn its Linux into profit, even though it went to IPO as a Linux company.

Additionally, SCO maintains that it 'IBM secretly and improperly failed to disclose to SCO such Linux-related investments and its intentions with respect to Linux before and during Project Monterey'.

Project Monterey - the joint venture between SCO, IBM and Sequent (now owned by IBM) to produce a version of Unix that ran on Intel server chips, but which never saw the light of day - is the basis of SCO's original suit that alleges IBM misappropriated technologies developed during this period into it's contribution to the Linux operating system.