Yahoo! News – SCO Backs Off GPL Claims
‘Many lawyers, such as Tom Carey, a partner at Bromberg & Sunstein LLP, a Boston intellectual property law firm, have said they found SCO’s assertion that the GPL is unconstitutional to be “rubbish.”‘
Indeed. They’re argument, in a nutshell, is that the Constitution in Article I, Section 8 empowered Congress to enact laws to protect intellectual property. (copyright, patent, etc.). SCO made (and has now retracted) the ridiculous argument that the open source community, a group of private actors, was encroaching on Congress constitutional prerogatives. This is comparable to claiming that Clear Channel is violating Howard Stern’s right to free speech by taking his program off the air. Private actors can’t violate the Constitution, as a general rule. The only limitation on privte individual action in the Constitution is the section regarding treason and even that is essentially a limitation on government power as it doesn’t actually prohibit treason, but merely sets a minimum threshold for proving it.
Now, perhaps SCO might have a point in arguing enforceability of the GPL. I think the argument would be shaky, but it’s certainly feasible that they could assert that the license lacks legal purpose based on the theory that intellectual property is governed by federal law. The flaw in that would be that such an argument would not only invalidate the GPL but also the ‘shrink wrap’ licenses imposed by software companies like SCO.
SCO’s explanation of their position is here: http://www.sco.com/copyright/
An excellent response from the author of Code and Other Laws of Cyberspace is here: