The Free Software Foundation, which created the software
licence that governs Linux, says that it will not produce all of
the material requested in a subpoena it received from The SCO
Group, as part of SCO's multibillion-dollar lawsuit against
IBM.
"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]," said Bradley Kuhn, the
executive director of the non-profit organisation.
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.
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 subpoena because it believed it might uncover
evidence that could help it in its case against IBM, said SCO
spokesman Blake Stowell. "If IBM is using the GPL as a defence 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."
SCO's subpoena "effectively asks for every single document about
the GPL and enforcement of the GPL since 1999", said Kuhn.
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.
If the FSF had entered into a "joint defence agreement" with IBM
to share information relating to SCO's lawsuit, that information
too could be privileged, Norman added.
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. 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 chief executive officer Stuart Cohen, Transmeta
vice president, general counsel and secretary John Horsley, as well
as Novell and Digeo.
Neither IBM nor the FSF would comment further.
Robert McMillan writes for IDG News
Service