It's all over the news right now that SCO has responded to IBM's Amended Counterclaims in the Great Linux Kernel Copyright Battle, and that SCO's answer includes a claim that the GPL somehow violates the U.S. Constitution.
Most lawyers - and most non-lawyers as well - are scratching their heads, wondering what possible constitutional violation they could be alleging. Since none of the news reports appeared to have been written by anyone who knew a whit about the law, and most of them merely paraphrased the claim without anything more, I decided to find the court papers and try to figure out what was up. Fortunately, GrokLaw put a copy online for public review. The actual paper is both more and less illuminating than I had hoped.
First, here's the entire claim regarding constitutionality:
EIGHTH AFFIRMATIVE DEFENSE: 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.
SCO's answer does not go into the reasons for their claim, but just makes the claim. in that respect, it is less illuminating than I had hoped. (I thought there might be a brief on the matter setting forth the claim in detail).
The significant part of the claim is the first three words: "Eighth Affirmative Defense." An affirmative defense is a claim made by a defendant, which, if true, serves as a total or partial defense to the claims made against that defendant. An important feature of an affirmative defense is that the defendant must state it in his answer to the claims, and if he fails to do so, he usually waives the defense. Rule 8(c), Federal Rules of Civil Procedure.
Because of the waiver of any affirmative defenses not raised, it is common for defendants to include everything they might possibly argue at any time during the case. That seems to be what SCO's lawyers are doing here. Even though it seems unlikely that a constitutional defense might exist, if they might argue it later, they have to raise it now. And so they have.
The constituional argument seems to be a big stretch in any event, but the fact that they lumped it in with copyright, antitrust, and export control laws seems to suggest that they might argue that the GPL violates those laws and by implication violates Congress's constittuional authority to pass those laws.
Does that sound like a reach to you? Me too. But at the outset of litigation like this, you can never tell which rabbit hole the trail will duck into, and it's best to be prepared for all.
Some other sources of information and discussion:
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Posted by wasylik at November 1, 2003 01:16 PM | TrackBack