SCO shakes the foundations of open source

In its lawsuit against IBM, the SCO Group has begun a direct challenge to the General Public Licence - the very legal foundation for Linux

SCO's argument is based on claims that the GPL is unconstitutional.

SCO said in an answer filed late Friday to an IBM court filing: "The GPL violates the US Constitution, together with copyright, antitrust and export control laws." In addition, SCO asserted that the GPL is unenforceable.

The assertions direct even more attention to the licence, which was already at the centre of many of IBM's arguments against SCO in August.

David Byer, an intellectual-property attorney and partner at law firm Testa Hurwitz & Thibeault, said: "The GPL has never been tested before. This is raising the stakes on that."

If a ruling comes out declaring the GPL void, "a lot of people are going to be potentially in a pickle," added Byer.

The Free Software Foundation (FSF), charged to promote the GPL's philosophy and tackle potential violations in court, strongly disputed SCO's assertions.

Attorney and Columbia Law School professor Eben Moglen, said: "It's just rubbish. 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. A spokesman said: "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.

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.

Stephen Shankland writes for News.com