The GPL and the Constitution
Whenever I talk with intellectual property attorneys who aren’t familiar with the particulars of the SCO v. IBM case, I mention SCO’s claim that the GPL is unconstitutional:
SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the U.S. copyright and patent laws.
This is a marvelous tidbit to have, because it signals the absurdity of SCO’s case. If SCO seriously intends to make this claim in court, anyone who practices copyright law understands immediately how desperate their case must be.
Larry explains quite clearly why the GPL can’t be unconstitutional. It boils down to two points:
- No state action. The constitution restricts the federal government, and the states (primarily through the Fourteenth Amendment), but says nothing about what private parties can do. Although some people think the world might be a better place if people had constitutional rights against private entities (e.g., free speech rights in the private workplace), this certainly isn’t how the constitution has been interpretted.
- In rare cases, the Court has held judicial enforcement of private contracts to constitute state action for constitutional purposes; e.g., racially restrictive covenants on property were held to be unenforceable in Shelley v. Kraemer, 334 U.S. 1, a 1948 Supreme Court case. But this reasoning is quite rare outside of that particular context (another salient exception is the application of the First Amendment as a limitation on civil libel suits as in New York Times v. Sullivan, 376 U.S. 254 (1964)), and certainly has never been applied to the enforcement of copyright licensing agreements.
If you’re ever trying to explain why SCO has little chance of winning to someone with intellectual property expertise, mention that SCO has argued that the GPL is unconstitutional. It should clarify things immediately.