In the latest twist in SCO's closely watched US$5 billion lawsuit against IBM, the Free Software Foundation has said it does not plan to turn over certain internal documents and communications with key open-source proponents, as SCO had asked in a subpoena.
"I'm not going to permit a fishing expedition at the Free Software Foundation from a party that has shown a great deal of hostility to the Free Software Foundation and its community," FSF general counsel Eben Moglen said on Thursday. "We will not produce material that is the subject of attorney-client privilege, and I don't think anybody expects us to."
SCO sent the eight-page subpoena last November, but it was on hold for procedural reasons until April, and the FSF did not publish it on the Web until this week. It asks the nonprofit group for information about e-mail and records of conversations between its staff, FSF founder Richard Stallman and Linux kernel creator Linus Torvalds, about the enforcement of free software licenses and the vetting of source code to ensure it's not intellectual property. The subpoena also requests copies of any contracts or agreements the foundation might have with IBM, Red Hat, SuSE and any other "Linux distributor or company."
Moglen said that he was negotiating with SCO's lawyers and hoped to persuade them to narrow their request. "I will fight if compelled," he said. "I do not expect, at present, not to be able to reach an agreement. But I always expect to be able to reach an agreement with people acting in good faith."
SCO is taking a wait-and-see approach. "We believe their materials have some relevancy to our case. They mention, for example, that they have confidential documents relating to Unix, and we would be really interested in that," SCO spokesman Marc Modersitzki said. He noted, however, that until SCO reviews what the open-source group divulges, it's difficult to predict what role the information might have in its lawsuit against IBM.
SCO rattled the computing world in March 2003 when it filed a lawsuit against IBM, a case that has expanded to target AutoZone and DaimlerChrysler as well. SCO, based in Lindon, Utah, claims ownership of key Unix copyrights and alleges IBM moved Unix technology to Linux, thus violating its Unix contract with SCO. The company has since gone on to seek licensing fees from other Linux users.
IBM, however, says it believes it has a perpetual and irrevocable right to use Unix. Founded in 1985, the FSF is dedicated to promoting free software--meaning software that is distributed in an open-source manner under a license that means it must stay open--and is the coordinator of the GNU project. The operating system known as Linux relies on a wealth of GNU components.
"This is a broad subpoena that effectively asks for every single document about the (General Public License) and enforcement of GPL since 1999. They also demand every document and e-mail that we have exchanged with Linus Torvalds, IBM, and other players in the community," Bradley Kuhn, FSF's executive director, said in a letter written Tuesday and published on the organisation's Web site. "In many cases, they are asking for information that is confidential communication between us and our lawyers, or between us and our contributors."
The FSF's Kuhn added that as SCO's lawsuit against IBM drags on for more than a year, his organisation will have to make some tough decisions on how to answer the SCO subpoena and the potential costs involved if his group fights it. The foundation receives the bulk of its funding in contributions from individuals.
Stephen Shankland contributed to this report.
