Software organization rebuffs SCO subpoena

Free Software Foundation will not produce material requested for SCO's suit against IBM

The nonprofit organization that created the software license that governs Linux says that it will not produce all of the material requested in a November subpoena it received from The SCO Group Inc., as part of SCO's multi-billion dollar lawsuit against IBM Corp.

"We are certain that we will not produce all the material requested," wrote Bradley Kuhn, the executive director of the Free Software Foundation, (FSF) 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 (GNU General Public License)."

The legal enforceability of the GPL has been called into question by SCO, which claimed that "the GPL is selectively enforced by the Free Software Foundation," in recent court filings.

IBM has counter-claimed that SCO, which until last year sold the Linux operating system, 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 it in its case against IBM, said Blake Stowell, an 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 did not explain what "legally protected confidences" he was referring to in his lawyer, but communication between the FSF and its general counsel, Eben Moglen, who is named in SCO's subpoena would be privileged, and therefore subject to legal protection, according to Jeff Norman, an intellectual property partner with 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. Chief Executive Officer 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.

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