The SCO Subpoena of FSF

by Bradley M. Kuhn

Tuesday 18 May 2004

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.

Meanwhile, the leaked SCO documents have confirmed what we long believed: Microsoft, having found that the smear campaign against GPL was not succeeding, has instead bought their FUD at a bargain price from a third party. The “license” that Microsoft bought for SCO's “technology” was, more than anything else, a fee for the service of attacking the free software movement and its lowest-level program, the kernel named Linux. Now that there has once been a “SCO,” there will always be some “SCO” to come and attack our movement and our work.

Even though we believe that SCO has no basis to make the claims they make, that does not mean our community should assume it has nothing to learn from these events. Early in the lawsuit, we at FSF were unsure if SCO would attack only the kernel Linux, or the entire GNU/Linux operating system. As copyright holder on most major components of the GNU/Linux system, we of course feared that even while our copyright assignment process is the best and most diligent in the whole free software world, we would still be required to expend great effort in showing a judge how exactly we did this job. We are grateful for SCO's tactical error of attacking one of the deepest pockets on earth, IBM, who has the checkbook needed to efficiently fight such a nuisance lawsuit.

However, this does not mean FSF's work is done. In addition to answering and/or disputing the subpoena, we must also educate the community about why it is that Linux was attacked and GNU was not. For more than a decade, FSF has urged projects to build a process whereby the legal assembly of the software is as sound as the software development itself. Many free software developers saw the copyright assignment process used for most GNU components as a nuisance, but we arduously designed and redesigned the process to remove the onerousness. Now the SCO fiasco has shown the community the resilience and complete certainty that a good legal assembly process can create. (SCO, after all, eventually dropped their claims against GNU as a whole and focused on the Linux project which, for all its wonderful technical achievements, has a rather loose legal assembly process.) We have just begun a project here at FSF 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. Distilling nearly two decades of organizational know-how into easy-to-understand software and documentation is no easy task, and we will rely greatly on your financial support to aid us in carrying out this momentous task.

As always, we at FSF look to the long-term future. SCO is a blip—a precursor to the challenges free software will face. We strive to be ahead of that curve and lead the way for a legally certain future for free software.

We need your support to continue this work. We ask that if you are not yet an associate member of FSF, that you join now. If you join before 15 June 2004, you will receive a complimentary print copy of Lawrence Lessig's new book, Free Culture. We are happy to celebrate the addition of Professor Lessig to our board of directors by sharing his latest written work with you as we continue our work.

If you are already an associate member, please encourage a friend to join!