Software organization rebuffs SCO subpoena

The Free Software Foundation won't produce everything SCO is seeking

The nonprofit organization that created the software license that governs Linux won't produce all of the material requested in a November subpoena from The SCO Group Inc., as part of theSCO multibillion-dollar lawsuit against IBM.

"We are certain that we will not produce all the material requested," wrote Bradley Kuhn, the executive director of the Free Software Foundation, in a statement published Tuesday on the FSF's Web site. "We will not betray our legally protected confidences, particularly when they relate to our work upholding the integrity of the GPL."

The legal enforceability of the GPL, or GNU General Public License, has been questioned by SCO, which claimed that "the GPL is selectively enforced by the Free Software Foundation," in recent court filings.

IBM has filed a counterclaim against SCO, which until last year sold the Linux operating system, charging that SCO has violated the GPL by illegally seeking fees for use of Linux.

SCO issued the FSF subpoena because it believes that it might uncover evidence that could help its case against IBM, said Blake Stowell, a SCO spokesman. "If IBM is using the GPL as a defense in their case, and there is any kind of collaboration going on between IBM and the FSF, we'd like to know what that is," he said.

SCO's subpoena "effectively asks for every single document about the GPL and enforcement of the GPL since 1999," wrote Kuhn, who published a copy of SCO's subpoena, along with an appeal for donations to the FSF, alongside his letter.

Kuhn didn't explain what "legally protected confidences" he was referring to in his letter, but communication between the FSF and its general counsel, Eben Moglen, who is named in SCO's subpoena, would be privileged and subject to legal protection, according to Jeff Norman, an intellectual property partner at the Chicago law firm Kirkland Ellis LLP.

If the FSF had entered into a "joint defense agreement" with IBM to share information relating to SCO's lawsuit, that information, too, could be privileged, Norman said.

The contents of SCO's subpoena, which at one point appears to refer to the FSF as the "Free Trade Software Foundation," contained no surprises, Norman said. "It actually is very predictable," he said. "This could have been generated by artificial intelligence."

SCO has issued subpoenas to a number of open-source stakeholders, including Linux creator Linus Torvalds, Open Source Development Labs Inc. CEO Stuart Cohen, Transmeta Corp. vice president, general counsel and secretary John Horsley, as well as Novell Inc. and Digeo Inc.

Neither IBM nor the FSF responded to requests for comment on this story.


Copyright © 2004 IDG Communications, Inc.

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