Is the GNU GPL unconstitutional?

Lawrence Lessig

January 22, 2004

In my last [ ] commentary on Darl McBride’s musings about constitutional law, I did not address one issue that continues to echo in SCO’s FUD. I didn’t address it before because it is so absolutely absurd. But because it continues to bounce about in the nevernever land of SCO world, here’s a couple paragraphs to make it absolutely plain just why the claim is crazy.

As the December 4th [ ] letter asserts (but does not defend), "SCO assets that the GPL ... violates the United States Constitution." McBride makes the same claim less directly in his January 8th [ ] letter to Congress ("the GPL ... is in direct contradiction to .. the recent Supreme Court decision in Eldred.") And thus, it follows, that the US Congress, and US government, should do what they can to assure that the GPL "not be allowed to continue to undermine" US copyright industries.

But this argument makes a category mistake. The US Constitution is a restriction on governments, not individuals (except perhaps the 13th Amendment which seems to apply directly to individuals.) If McBride, for example, were to lock RMS up and forbid him from talking, he wouldn't be violating RMS's "free speech" rights. Only a government (or someone acting under government authority) can violate "free speech" rights. Likewise, if McBride were to take RMS's computer, that wouldn't be a "taking" in violation of the 5th Amendment. It would be theft, but every theft is not a constitutional violation.

Likewise with the GNU GPL. The GNU GPL is a copyright license. It is the creation not of a government, but an individual. There is no way that an individual can violate the constitution merely by writing a contract. And the argument that he can reveals that the author has no understanding of the way constitutional law functions.

It might be that McBride is saying that it would be unconstitutional to enforce the GNU GPL, because any copyright law that would "free" content would be inconsistent with the Copyright Clause. That, unlike the former claim, would at least be a coherent constitutional claim. Coherent, but false. It would constitute a radical departure from the historical interpretation of copyright law, for the Copyright Clause has always been understood to give Congress the right define the property right that copyright is however it wants. If Congress allows people to waive copyrights, that's fine under the Constitution. SCO's claim against this tradition would be that Congress acted unconstitutionally in when it wrote a Copyright Act that allows copyright owners to waive some of their rights.

This is, again, a silly interpretation of constitutional law. And more importantly, it is a totally baseless interpretation of the Supreme Court's decision in Eldred. If Eldred means anything, it means that Congress has a broad discretion to balance the rights of copyright as it deems best -- within the express limits of the clause. There is no express limit in the copyright clause that mandates proprietary production.

SCO is flailing, and failing. If this is all it has, then it will soon be forgotten.

3:43 PM

Copyright 2004 / -