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SCO's Subpoena to the FSF Is Now Online
Wednesday, May 19 2004 @ 12:30 PM EDT

The FSF has placed the subpoena they received from SCO late last year online on this page and you can download it as a PDF from there. It's an unbelievably broad subpoena, asking in effect for every document relating to the GPL since 1999, among other things.

Obviously, the FSF will protest some of the requests, asserting no doubt that the subpoena is overly broad and that some of the requests are for privileged communications, just as IBM successfully argued that SCO's request for all versions of AIX since the beginning of the world was overly broad. I note also that some requests may no longer be relevant, since SCO has dropped some of its original claims. And number 7 asks for all communications between The Free Trade Software Foundation and various individuals, and there is, so far as I can find, no such entity. And it's Open Source Development Labs, not Open Software Development Labs. Larry, Curly and Moe send a subpoena.

SCO has asked them to produce the following:

1. All documents concerning any communication between the Free Software Foundation and IBM relating to UNIX, AIX, DYNIX, LINUX, or any other UNIX based operating system.

2. All documents concerning any communication between The Free Software Foundation and IBM relating to The SCO Group.

3. All documents and communications concerning alleged, potential or actual violations of the GPL asserted or known by The Free Software Foundation against any entity or person since January 1, 1999.

4. All guidelines, policies, procedures, documents, memoranda, notes and/or manuals relating to the enforcement and enforceability of the GPL.

5. All documents sufficient to identify all assignments of software to The Free Software Foundation, the assignor of all the software assignments to The Free Software Foundation, and the date and the terms of all such assignments of software to The Free Software Foundation.

6. All guidelines, policies, procedures, and/or manuals concerning the process of reviewing or vetting source code for copyright, patent and/or trade secret violations in open source/free software development processes.

7. All documents and communications between and amongst The Free Trade Software Foundation, Richard Stallman, Eben Moglen and/or Linus Torvalds concerning:

a. enforcement of the GPL

b. procedures or methods for avoiding infringement or infringement claims in open source software development.

8. All contracts or agreements with:

a. IBM

b. Open Software Development Labs

c. Red Hat

d. SuSE

e. Any other Linux distributor or company

f. Linus Torvalds

g. Richard Stallman

h. Eben Moglen

i. Alan Cox

j. Andrew Morton

Now do you see why some companies might prefer insurance or indemnification to the annoyance of a lawsuit, even one you are quite sure you will win? Imagine the costs to a small nonprofit organization of trying to comply with such a list. It's like a BSA audit on steroids.

The FSF's Bradley Kuhn says this on the web site:

"Late last year, we were subpoenaed by SCO as part of the ongoing dispute between SCO and IBM. Today, we made that subpoena available on our website. This is a broad subpoena that effectively asks for every single document about the GPL and enforcement of the GPL since 1999. They also demand every document and email that we have exchanged with Linus Torvalds, IBM, and other players in the community. In many cases, they are asking for information that is confidential communication between us and our lawyers, or between us and our contributors.

"As the SCO lawsuit drags on, we will have to make some tough decisions about how to answer this subpoena. We are certain that we will not produce all the material requested; we will not betray our legally protected confidences, particularly when they relate to our work upholding the integrity of the GPL. However, regardless of whether we dispute the whole subpoena in court, or provide those documents which we are able to determine are reasonable and relevant to produce, there is much work for FSF. If we fight the subpoena, it means substantial legal fees associated with litigation. If we produce materials, it means substantial effort to gather the relevant documents. Even though we'll be reimbursed for the direct costs, the indirect costs in staff time will be ours to bear."

SCO is trying to prove its humorous thesis that the FSF is the only one allowed to enforce the GPL, I gather, and then to prove that it has done so inconsistently. I suspect someone also wants to know a lot of details about the FSF for purposes outside the scope of this case. Kuhn calls SCO "a blip -- a precursor to the challenges the Free Software will face" and so they have just begun a project "to document and codify our process, so that it can be disseminated in the form of a policy manual and accompanying software, to all other Free Software projects who wish to solidify their legal assembly process."

That makes sense. They have to do all the research anyway, to respond to the subpoena, so why not have something very good come out of it? Typical FOSS creativity on display.

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