SCO says GPL unenforceable, unconstitutional and void

Gloves off

By Andrew Orlowski in San Francisco, 28th October 2003

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The SCO Group has described the General Public License, the cornerstone of much free software, as "unenforceable, void or voidable" in its latest court filing.

The document is a response to IBM's Amended Counter Claims; IBM is counter-suing the SCO Group, claiming that it violates the terms of the GPL. SCO's response, filed on Friday, argues that the case be dismissed with costs awarded against IBM, and makes twenty six counter-counter-claims.

"IBM’s claims are barred by fraud, illegality, collusion, conspiracy and/or lack of clean hands," claims SCO. The cornerstone of SCO's defense follows:

"The General Public License ("GPL") is unenforceable, void and/or voidable, and IBM’s claims based thereon, or related thereto, are barred… The GPL is selectively enforced by the Free Software Foundation such that enforcement of the GPL by IBM or others is waived, stopped or otherwise barred as a matter of equity." Elsewhere it denies the "applicability or enforceability of the GPL."

And to top it off, indulging in software libre is an un-American activity:

"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."

In the past, SCO has contributed code to GPL products, and continues to distribute them.

Elswhere, SCO says that four patents which IBM claims it infringed are "or may not be" valid. It also admits that UNIX™ was "originally developed by Bell Laboratories."

The GPL has never been tested in court and its first real test has caused concern. Eben Moglen, pro bono attorney for the FSF, told us he was confident that SCO's case would be thrown out. ®