FSF Subpoenaed by SCO

An anonymous reader writes "Bradley M. Kuhn on the FSF website: 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."

Comments

In many cases,

[Threni]

> In many cases, they are asking for information that is confidential communication
> between us and our lawyers, or between us and our contributors."

See JYA at Cryptome for how to deal with this sort of thing.

Re:In many cases,

[jdreed1024]

or between us and our contributors.

Why is that special in the eyes of the law? (seriously - the blurb does not make it clear) Attorney-client confidentiality, sure. Medical professional confidentiality, fine. Developer-packager confidentiality? I don't think so. Unless these are confidential for some other reason. Stamping "confidential" on it, doesn't make it confidential. That's kind of the point of subpoenas.

Or am I missing something?

Re:In many cases,

[Rakshasa Taisab]

Suing someone doesn't give you automatic Big-Brother rights. Especially if the stuff doesn't even remotely affect the suit.

Re:In many cases,

[koehn]

Yes, you're missing something. I think they meant "people who have contributed money to us," not "prople who have contributed code to FSF." I'm not sure if FSF has to disclose the former (IANAL, but I think it depends on their charitable organization status), but maybe they do.

Re:In many cases,

[brennz]

The FSF *HAS* all-star lawyers

Lessig & Moglen

Re:In many cases,

[H4x0r Jim Duggan]

You hope FSF has good lawyers? huh? Will Eben Moglen, Larry Lessig, and Dan Ravicher do?

Re:In many cases,

[k12linux]

Considering that the FSF often deals with legal matters, it is quite likely that some of these items ARE attorney-client type issues. So, do you think they should have to pay for someone's time to dig through every bit if e-mail and decide what is privileged and what isn't? Just because SCO is searching desparately for some kind of evidence.

Re:In many cases,

[Brandybuck]

Suing someone doesn't give you automatic Big-Brother rights

No, but hiring a lawyer does. You just have to make sure you have more lawyers than the other side does.

Look on the bright side!

[DrEldarion]

At least they got a check for $30 out of it!

Re:Look on the bright side!

[yaroze32]

I don't think $30 is enough to make copies for what they need, more like $300 to $3000 would do it

St. Ignucius

[Chemicalscum]

Will RMS testify in his St. Ignucius costume.

Re:St. Ignucius

[jjeffries]

that's a costume?

I'm surprised?

[Tebriel]

Why didn't they ask for internet histories and newsgroup postings made as well? This sounds like they're grasping for straws when they don't even know what straw to look for. It sounds like harassment more than a subpoena.

Re:I'm surprised?

[happyfrogcow]

just print out every resulting page from a goodle search of GNU GPL Linux, including subsearches on images, groups, and froogle. also, print out any non english results by sending them through babelfish.

print all the results on 3x5 notecards, in 7 pt font. in binary. naw, binary would be too easy to scan and convert to digital with OCR. make it some crazy bubble letter font. any resulting images convert to ascii art. any froogle results, purchase them and have the sent Cost on Delivery to SCO Headquarters. Which by now is probably the backseat of a Pinto, about to blow up because they shut the door too hard.

Re:I'm surprised?

[mgpeter]

This sounds like they're grasping for straws when they don't even know what straw to look for.

Exactly, and everyone knows it too. Their stock price is just about the same level as when this whole thing got started.

I would bet the judge isn't too happy about all of this either, as his/her case load is probably heavy.

If I was a betting man, the more stunts SCO pulls like this, the better the chances of this getting thrown out with extreme predjudice.

Re:I'm surprised?

[drinkypoo]

You can't kill electrons, the worst thing you can do is send them on long trips in which they are not interested.

Overburden them

[eyeball]

I say you should download every mail list, usenet archive, and online discussion group, then print it all out on 10,000 pages. Throw in RFCs and source code to bulk it up a bit.

Re:Overburden them

[Progman3K]

>I say you should download every mail list, usenet archive, and online discussion group, then print it all out on 10,000 pages. Throw in RFCs and source code to bulk it up a bit.

DON'T.

First of all, we can win this without being as low as SCO, and
Second, they'll use the volume of information returned as a reason to stall the proceedings so they can have their legal team "go over the evidence"

Re:Overburden them

[nocomment]

then print it all out on 10,000 pages

Then on the way over there, drop it, so all the pages go flying and put them all back together out of order.

Re:Overburden them

[dprovine]

I understand from my attorney friends that giving people a zillion documents is known as `papering them over'. A prosecutor of my acquantance tells me that well-designed subpoenas try to avoid the situation where you end up with 23 pallet loads of paper.

What that says to me is that SCO's lawyers have specifically asked to be papered over, so as to have lots more billable hours for the time spent reading all the irrelevant paperwork.

It's possible, in fact, that they'll bill for 500 hours of reading these papers when they don't bother to read any of it at all; how would SCO prove that they didn't do it?

Re:Overburden them

[mfago]

In a related tactic, I recall that SCO complained that IBM provided them AIX source code on CD -- but concatenated as one 800MB file per disc. True? IBM seemed to be above that...

While SCO's lawyers may be looking to increase billable hours, methinks it's more of a delay tactic and fishing expedition.

Re:Overburden them

[McNally]

It's possible, in fact, that they'll bill for 500 hours of reading these papers when they don't bother to read any of it at all;
how would SCO prove that they didn't do it?

Based on prior behavior, I'm guessing that SCO would just claim to have super-duper extra-secret evidence proving their case against the lawyers and that the burden of proof was therefore on the law firm to discredit evidence no-one had seen. I mean, why mess with a so-far successful formula?

Re:Overburden them

[Bombcar]

Knowning SCO's complaints, it probably was: /mnt/cdrom/AIXSource.tar

and they couldn't figure it out. After all, a tarball is a concatenated file!

Re:Overburden them

[AsimovBesterClarke]

> how would SCO prove that they didn't do it?

Oh come on. I had this one figured out in what? 11th grade. Turned in an American History term paper with a footnote which read:

14. If you read this, check this box: [ ] and you will recieve a beverage (malt or otherwise) of your choice.

Needless to say, the box was not checked, and as the paper had been filled with sufficient BS to make it sail down the hall to the A pile [1], I recieved an A on said paper. On the other hand, since I wasn't on the basketball team, I only recieved a B for the class.

[1] time honored method for grading papers: Mark out the hall with sections for A, B, C, D, and E with A being farthest away, E being closest. Throw the papers down the hall (option: either all at once or individually). The ones which travel the farthest are A's, those closest recieve E's.

Non issue

[Jailbrekr]

So lawyers are petitioning for confidential information from other lawyers, knowing it is confidential?

Why, preytell, have there been no petitions to have SCOs lawyers disbarred yet?

Re:Non issue

[sphealey]

So lawyers are petitioning for confidential information from other lawyers, knowing it is confidential?

Why, preytell, have there been no petitions to have SCOs lawyers disbarred yet?

Oldest trick in the book is to stamp every document you create "confidential attorney-client work product" and claim all your documents are immune to subponea.

So, when subpoea'ing, you ask for every document the other guys has. Then your lawyer and his lawyer agree on what is confidential, or if they can't agree, the judge decides (I am told judges despise litigants who can't come to agreements on that sort of stuff).

sPh

Re:Non issue

[mule007]

Because with all the nonsense lawsuits these days, you would probably get sued for starting said petition. Or worse yet, someone holding a patent on filing petitions would crawl out of the woodwork, and demand $699 from everyone who signs.

Re:Non issue

[Prince Vegeta SSJ4]

About the only thing Lawyers actually ever get disbarred for is screwing with their clients money, i.e. escrow accounts and such.

Re:Non issue

[Oliver Wendell Jones]

I actually have a rubber stamp on my desk that stamps the phrase

THIS DOCUMENT OFFICIALLY
-------DOES NOT EXIST-------

See here for a scanned image of the impression.

I have yet to see it held up in court, but any time I print a document I don't want to have to worry about, I smack it with the stamp and put it in a file drawer.

I keep it right next to my What the *#*$# were you thinking? rubber stamp that I had custom made. That one seems to be getting an awful lot of use recently...

Re:Non issue

[SEWilco]

I actually have a rubber stamp on my desk that stamps the phrase

THIS DOCUMENT OFFICIALLY
-------DOES NOT EXIST-------

Thank you, now we know what to ask for.

Re:Non issue

[Oliver Wendell Jones]

I work in an R&D facility for a global leader in medical diagnostics.

My "What the *#*$ were you thinking?" stamp was purchased back when I was part of the management team that processes individual awards for superior performance. We used to get award applications stating things like "John Smith came to work *every* day this week and was *on time* every single day. I think he deserves a $1000 award for his stellar performance." That's really not much of an exageration, either. Now I use it when reviewing requirements documents and just stamp it anywhere that needs it before returning the document to the orginator.

The other rubber stamp was purchased when I was the project leader for a common cable that would link many of our various medical devices to a PC. We were suddenly hit with a patent lawsuit for a reagent chemistry that was similar to the one used in one of our devices and the lawyers started demanding every single sheet of paper that had the product name of the possibly infringing product on it (we won that battle, btw).

Since my cable project had ABSOLUTELY NOTHING to do with the chemistry formulation in question, but DID talk to the medical device that used the formulation in question, I was told by the attorneys that I would need to submit all documentation that contained that particular product's name anywhere in it.

That same day I got a copy of a catalog from NIC that specializes in selling badges and fake IDs (and I still don't know how I got on that particular mailing list) and they had these government surplus rubber stamps, including the one I bought.

I bought the rubber stamp, started stamping the cover page of all my documents and then scanned in the image of one page and e-mailed it to our attorneys and told them that all of my documents were thusly stamped and as such, no longer existed, so I would not bother to submit them.

I never heard back from the lawyers and never did have to submit my docs.

Oh, and have you seen my stapler?.... why, I oughta burn this place to the ground...

Legality, please?

[Khakionion]

IANAL, but is this legal? Don't they have to somehow prove that the documents they're asking for have some relevance to their argument?

Furthermore, what exactly is their argument? Is it still that Linux contains SCO code? How would documents about "enforcement of the GPL" prove existence of SCO code?

Re:Legality, please?

[Anonymous Coward]

IANAL, but is this legal?

<Darth McBride> I will make it legal. </Darth McBride>

Re:Legality, please?

[Tarantolato]

ANAL, but is this legal? Don't they have to somehow prove that the documents they're asking for have some relevance to their argument?

It's pretty common for requests like this to be super-broad. Plaintiff: give us everything. Subpoenee: we give you nothing. Plaintiff: okay, how bout half? Subpoenee: leave us alone and we'll give you 40%.

So to a certain extent, it's standard lawyerly practice. However, it's the kind of thing judges tire of quickly if taken too far: "fishing expedition" is what it's called.

Furthermore, what exactly is their argument? Is it still that Linux contains SCO code? How would documents about "enforcement of the GPL" prove existence of SCO code?

SCO must prove not only that their IP was infringed, but also that the infringement was malicious: i.e. harmful and intentional. What they'd like to get out of these documents is a picture of IBM plotting in dark rooms with dirty GNU hippies to destroy SCO's proprietary Unix business by stealing source code and selectively litigating with the GPL. (but IANAL either)

Re:Legality, please?

[iabervon]

Plaintiff: give us everything.
Subpoenee: we give you nothing.
Plaintiff: okay, how bout half?
Subpoenee: we'll give you everything RMS has said about software licensing.
Plaintiff: uh...
Subpoenee: and everything he's said to women at cons.
Plaintiff: got a court date, talk to you later. Subpoenee: and a recording of the song.
Subpoenee: Hello?

here's what to do...

[Anonymous Custard]

Assure them that you have the documents they, and also that you have undeniable proof of the documents. Refuse to provide them, on ground that it would violate agreements you have with certain parties (don't mention who these parties are).

If all else fails, claim that you cannot provide the documents because it is a matter of national security.

2003 was a very good year for learning new stonewalling techniques...

Re:here's what to do...

[Phillup]

Better yet...

Tell the JUDGE that you have been required because of an ongoing investigation that is SECRET because of the patriot act... that you can't fork over the data.

You can't actually tell him about the trial because it is SECRET.

And he can't find out if it really exists... because it is SECRET.

Get them caught in a big 'ol catch 22 re: the secrecy bs of the patriot act.

Past the deadline?

[sphealey]

5 months past the deadline and FSF is just posting this? Seems as if there is some agenda here...

sPh

Re:Past the deadline?

[happyfrogcow]

besides letting the free software/open source community know what SCO is stooping to? maybe the FSF lawyers told them not to release the contents of the subpoena until they were certain of any legal actions they had to take.

agendas maybe. not all agendas are bad.

New docs out.

[Anonymous Coward]

Related docs which could make the subpoena irrelevant: Defendant/Counterclaim Plaintoff IBM's Memorandum In Support of its Cross-Motion for Partial Summary Judgement on its claim for Declaratory Judgment of Non-Infringement (phew).

Re:Damn those people

[grub]

SCO is making a last grasp for anything.
The subpoena was filed last year. It's not a sudden "Hail Mary".

btw, fp!
At least you don't fail that.

Teaser.

[Anonymous Coward]

"SCO has advised the court that it has provided complete and detailed responses to the Court's orders. If that is true, then summary judgement is appropriate because SCO has no evidence of IBM's alledged infringement (as SCO has adduced none). If it is not true, then summary judgement is appropriate because SCO has not only defied two orders of the Court, but it has also falsely certified that it has provided complete, detailed and thorough answers to IBM's interrogatories and the Court's orders. Either way, the Court should forthwith enter summary judgment in favor of IBM."

SCO attempting to prove selective enforcement?

[Aumaden]

IANAL, but that's my take from reading the subpoena. It looks to me like Darl & company may be trying to assert that the GPL is void because it's not being enforced. And, its use against SCO is a special case.

Re:SCO attempting to prove selective enforcement?

[RAMMS EIN]

But that wouldn't work. It would be an argument if it was a trademark issue, but it has to do with copyright here. Not that SCO really seems to know what they are really after anymore. Was it breach of contract? Or copyright infringement? Or both?

Re:SCO attempting to prove selective enforcement?

[red floyd]

And what exactly does the FSF have to do with selective enforcement of the GPL on items they don't hold the copyright to?

Linus and the other kernel hackers have not assigned kernel copyrights to the FSF. Hence, they have no standing to enforce it one way or the other.

Someone on Groklaw put it something like this: I'm a landlord. I go into BusinessDepot and buy a stack of generic lease agreements. A tenant of mine is in a dispute with me, and blames BusinessDepot for "selectively" enforcing the generic lease agreement, and subpoenas them for all correspondence regarding that lease agreement.

Re:SCO attempting to prove selective enforcement?

[Short Circuit]

The way I read the situation, SCO thinks the FSF tracks the [lack of] enforcement of the GPL. If the FSF does track such things, it's likely that they wrote analysis essays on why, and what the effect on the overall public attitude towards the GPL is.

Re:SCO attempting to prove selective enforcement?

[Our Man In Redmond]

Trouble is, SCOG doesn't seem to understand that the FSF doesn't enforce the GPL, except in cases where they own the copyright to the product offered under the license (e.g. GNU software such as GNU Emacs and gcc). They seem to think the FSF is some kind of GPL Police, which is not the case. It's up to the individual copyright holder to enforce his/her/its copyright.

This, of course, being only one of the many things SCOG doesn't understand about the GPL.

Re:SCO attempting to prove selective enforcement?

[JGski]

Neo-cons (which I think Daryl, et al. easily qualify as) have a pathological blindspot that sees human behavior only occuring due to some Real Politik control. It's sort of a conspiracy theory of human sociological behavior. The concept of emergent systems and behaviors are impossible in their dogma. It's pathetically Newtonian in a way. "God" or "god" (as in human leader) as the one and only watchmaker.

You see it here. You also see it in US foreign policy - Bush, et al., seem to believe it's not possible that terrorism could simply occur out of a Heisenberg-like generation from the world soup of discontent; the fact is, it trivially can!

They mentioned a $30 check...

[trp642]

Its apparently for copies or something. They should ask for more. Perhaps they should ask for $699 to cover the licensing fees for the postal service.

Re:They mentioned a $30 check...

[nkh]

the licensing fees for the postal service.

I prefer the word stamps, it's shorter...

Obvious Tactic

[RickHunter]

Its pretty obvious what SCO's trying to do here. This had one of two objectives:

1. Bury the FSF in paperwork. To comply with the subpoena, they have to turn over so much material that its trivial for them to miss something. When they do, point it out as evidence of noncompliance and use that to drag them into court.
2. Look for evidence of other wrongdoing.

Confidential?

[MisterBad]

Why would communication between FSF and its contributors be confidential?

Re:Confidential?

[twofidyKidd]

If you are a linux user and you contributed to the FSF in the form of a donation, that's a communication, complete with any information you may have provided to the FSF including, but not limited to, your home address, phone number, age, name, etc. Do you want SCO to have that information? Wouldn't you consider that confidential?

Support the FSF!

[Henrik S. Hansen]

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.

Now is the time to support the FSF, so they can fight this thing. It'd be awful if they had to give out private emails and other communication.

Become a member of the FSF and support them financially. (I am already a member). You can also send anonymous donations, or buy something from GNU Press.

Re:Support the FSF!

[tricorn]

Why? Is it awful when Microsoft is required to turn over internal memos and e-mail describing how they're going to exploit their monopoly position? If someone at SCO sent e-mail to Bill Gates asking for money to "fight the Linux blight", do you think IBM should be able to compel Microsoft to disclose that e-mail?

From the wording in the subpoena, I don't see why staff time couldn't be charged to the SCO lawyers, as long as they were reasonable rates (i.e. NOT like lawyers charging $1000/hr, just their usual salary). If not, then challenge the subpoena as being too much of a burden. At least, that's what the subpoena says:

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction which may include, but is not limited to, lost earnings and reasonable attorney's fee.

It then goes on to say that you can object to it within 14 days, and in such a case the subpoena is blocked unless the court issues an order, and

such an order to comply production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

The court "shall quash or modify the subpoena if it ... subjects a person to undue burden". If they still really really want the information, the court will require that reasonable compensation be made. That doesn't include "just copying costs" (although I'd think that "copying costs" would reasonably include wear & tear on the machine (cost of copier divided by expected lifetime), ink/toner, paper, and salary of the person doing the copying).

For someone like the FSF, formally objecting to a subpoena should be pretty easy and inexpensive (couple hundred bucks). All you have to do is object, you don't have to lay out a big legal argument, just make "a written objection", and if you claim that the subpoena is unreasonable on the face of it, and the court agrees, you can get attorney's fees and lost earnings back.

Nothing to hide?

[Nordicfire]

I don't understand.

If FSF has nothing to hide, why don't they just bring out the evidence SCO asks for and then countersue the hell out of them?

Re:Nothing to hide?

[Phillup]

1) principle
2) cost

Re:Nothing to hide?

[Romeozulu]

For the same reason that you don't let the police seach your house for no reason. After all, you have nothing to hide, what's the danger.

Re:Nothing to hide?

[Nordicfire]

Uh. I would not, in fact, stop the local (Finnish) police from searching my apartment if they gave me a good reason for doing it and I had nothing to hide.

You don't think there's something wrong if you can't trust your police department to be fair anymore?

Re:Nothing to hide?

[SEWilco]

Uh. I would not, in fact, stop the local (Finnish) police from searching my apartment if they gave me a good reason for doing it and I had nothing to hide.

Can we search that computer for kiddie porn? You have nothing to hide, right? Call us in a month to see if our technicians are done searching, and where you can pick up your computer.

Have you ever been drunk? Can we take your liver so we can check?

Re:Nothing to hide?

[operagost]

You should never trust them, regardless. What's a "good reason" this week? Because you dress funny? Talk loud? Smell bad? Are a ?

Re:Nothing to hide?

[Mr Guy]

Good reason would be as defined by the home owner.

P:Excuse me sir, we have reason to believe an axe murderer has broken into your house, can we check your attic? There's something that appears to be blood dripping out of your awnings.

You: SCREW YOU PIGS GET A WARRENT OR BLOW ME

Re:Nothing to hide?

[Zathrus]

Can we search that computer for kiddie porn? You have nothing to hide, right?

Uh. Yes, sure. Why not?

Ok. Hope you don't mind being without a computer for an indefinite period of time. Don't worry -- we'll get to it shortly. The guys down at the lab say they're only 3 months behind in data analysis at the moment.

Oh, and we'd like to check your tax records for the past 7 years. Please provide all receipts that are applicable during that time period. If you donated any items to charity and claimed that as a deduction, you will need to provide proof of your cost basis as well as proof of value of the item at the time you donated it.

Oh, I'm sure you didn't do anything wrong. We just like to check from time to time. I do hope this doesn't inconvienece you. Of course, if you can't provide this information, then I'm afraid some penalties may apply...

Figured it out yet? It's not about having something to hide -- it's about wasting other people's time and money for no good reason.

In the case of police work, it's known as a fishing expedition -- you have no idea what the hell you're looking for, but everyone breaks the law sooner or later.

Re:Nothing to hide?

[Dinglenuts]

I would let the local cops search my place without a warrant, right after they remove the shotgun from my lifeless hands, of course.

Re:Nothing to hide?

[corvair2k1]

So... Using your disclaimer, if we reading this post think that you are talking about those reading this post, then we reading this post are wrong. But you also say that you isn't personal you... Does that mean "you" refers to Cowboy Neal? That's really confusing!

Re:Nothing to hide?

[sumdumass]

well obviously you have little respect for your own privacy.

If they have a reason, your aproval in the matter won't count. When they ask, they are either trying to get into your underware draw or trying to find a reason they don't yet have to get you introuble.

I have found that when I follow someone inn the car, given enough time they will do somethign that is questionably not legal. Stuff like not using your turn signal far enough away from your turn. And given enough time to look thru you stuff, I can find somethign there too. You have nothing to hide but I would take offense with someone (police or not) questioning my integrety over that. It is even worse when they have no reason to question it and want to because they are public servents and can.

Re:Nothing to hide?

[GSloop]

Or, the police plant or contrive evidence to show you did commit a crime and you go to prison.

No, at least here, some police are more worried about finding *someone* to pin the crime on, rather than finding the actual criminal.

In that vein, before you do anything, speak to my lawyer first. *PERIOD*

If it appears as though you mean no harm, then I'll think about co-operating. More likely, you'll get exactly what the constitution allows and absolutly nothing more.

There are many who are in prison innocently who had their crime pinned on them by police who simply wanted a conviction rather than a conviction of the *right* person. Refusing the be questioned without an attorney, refusing searches and siezures without a properly executed warrant etc are the first steps to protecting yourself against these problems.

Sure, you're right, it's probably not the most polite and best approach, but when my freedom and reputation are at stake and I'm not sure of the character of those on the other side, that is just the way it must be to afford me the protection I require.

Just by 0.02 cents.

Cheers,
Greg

Re:Nothing to hide?

[arcanumas]

Here in Greece it is illegal for the IRS (the Greek version obviously) to even *touch* your computer, let alone take it.
They alway tell someone "show us this" and "Show us that".
this is because you can claim that they tampered it, in an effort to harm/collect more/frame you/whatever.
I know this because both my sisters are acocuntants and they've been taught this at the University.
I do not know what the situation is with the police, however, but i assume that similar reasoning would apply.

Re:Nothing to hide?

[Dwonis]

BTW, I don't see why you're bringing up the American judicial system, as your nick would seem to identify you as a Norwegian.

Well, the American legal system seems to enjoy extending its power abroad, so it's only fair that the rest of us have some say.

Haha

[CaptainSuperBoy]

The law firm misspelled their own name in the subpoena: "Boise Schiller & Flexner".

Confidentiality

[VBJonC]

"In many cases, they are asking for information that is confidential communication between us and our lawyers, or between us and our contributors." Where subpeonas are concerned, you may have confidentiality with your attorney, but certainly not with your contributors.

Re:I just read this too!

[sovtekmidget]

If SCO is going after everything unix, why haven't they touched osX yet?

Scope of the subpoena

[secolactico]

Shoot, they nearly asked for everything but the birth certificates of FSF members.

They are essentially asking for *anything* that might be related to the GPL, the companies that use it, people that write under it, enforcement, etc, including written communications, memo, documentation, etc.

but

[mpost4]

according the doc, they don't have to give the docs over, if they send some one to the deposition. So they can just send some one, and now SCO has to ask questions to get the info they want and not just go on a fishing exposition.

IBM files for Summary Judgment!

[kuwan]

The documents are just getting posted, but IBM has just filed a "Cross-motion for partial summary judgment on claim for declaratory judgment of non-infringement." They are asking for summary judgment on IBM's "Tenth Counterclaim." This is the counterclaim in question:

IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO' s purported copyrights in UNIX are invalid and unenforceable.

The docs are just starting to get up but you can follow the discussion on the Yahoo SCOX message board.

Good Point

[99bottles]

Mr. Kuhn brings up a very good point. He notes, "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."
Why was SCO so foolish? Was it just raw arrogance, a chance at a single payout, good press/bad press/any press?

Save your time...

[Fnkmaster]

Here's a transcription of the subpoena:

Dear FSF,

All your documents are belong to us. Here's 30 bucks to cover your copying costs (in case you didn't get that this is a big "fuck you", let us clarify that for you - "FUCK YOU"). Toodle-oo!

Yours truly,

Your buddies at Dewey, Stickham and Howe

IBM filed for Summary judgement. yesterday

[bstadil]

The latest filings in this case if from Yesterday where IBM has filed for Summary judgement.

SCO is screwed by their own admission

Quote

SCO has advised the court that it has provided complete and detailed responses to the Court's orders. If that is true, then summary judgement is appropriate because SCO has no evidence of IBM's alledged infringement (as SCO has adduced none). If it is not true, then summary judgement is appropriate because SCO has not only defied two orders of the Court, but it has also falsely certified that it has provided complete, detailed and thorough answers to IBM's interrogatories and the Court's orders. Either way, the Court should forthwith enter summary judgment in favor of IBM.

Re:Enjoy the legal process

[johnnyb]

"lack of best practices in the Open Source community."

The ONLY organization who follows best practices as I can tell, proprietary or open-source, is GNU.

I mean, honestly, in how many businesses do you think lawyers review code written by internal employees to verify that the code they include is original. How might one validate that, anyway? If someone is copying from a private archive, it would be impossible to tell, because it's private.

Anyway, open-source in general is the best about this, because the source code is available for third-party examination. So, if you feel someone might be infringeing on you, no need for lawyers or subpeonas, just check the code from the website!

With proprietary software, if someone is infringing, you have to subpoena the source code just to verify it, and you wind up with significant amounts of egg on your face if you are wrong.

Harassment

[nuggz]

Can someone legally harrass a third party in this matter?

For many individuals and companies the cost of complying to such a demand is excessive, the threat of such might be enough to settle a case.

What does the FSF have to do with it?

[hak1du]

The FSF just published a license, which Linus just happened to adopt for Linux. What do they have to do with the SCO lawsuit?

Re:I just read this too!

[Tarantolato]

AFAIK, in the only legal case regarding BSD, the judge ruled that he thought it would be extremely unlikely that AT&T would be able to prove that they still owned the source code, after scientists had gone through and improved/rewritten much of it.

At the end of the case, there were like 2 or 3 BSD files that had to be rewritten. At the end (rumor has it), the case was settled in a hurry because the judge pointed out that there was more (unattributed) Berkeley-infringing code in AT&T Unix than AT&T-infringing code in Berkeley.

Re:subpeona law is fucked up

[sirgoran]

Sure.

Ignore it, refuse to comply, or not deliver everything that is stated in the document, you can simply go to jail.

Very easy!

But seriously, IANAL, but I've wanted to play one on TV...

You can however get your lawyers to get a judge to redefine the scope of what they are asking for. In this case, it might be possible to refuse sending them emails or letters between their lawyers based on client confidentuality.

Even then it can get sticky.

(lessons learned from a former employer)

-Goran

Re:Reference, please

[bstadil]

It is being transcribed as I type http://members.cox.net/bsm2003/scovsibm/152-4.png. txt Check with Groklaw in a while

it's interesting

[Anonymous Coward]

the first line baxically invalidates the entire thing.

It asks for documentation concering UNIX based systems. Isn't Linux a UNIX like system.

To whom it may concern...

[raider_red]

At the hearing: "Your honor, it was addressed to whom it may concern. None of us were particularly concerned, so we trashed it."

As an alternative, they could just send backup tapes of the hard drives off of every server which FSF earns, and let Boies and company figure out how to extract the data. Extra points for using an obscure/obsolete tape format.

Re:To whom it may concern...

[Just Some Guy]

Wow. You've finally found a use for "tar --swap-every-third-byte --emulate-vax-post-1993 --include-hurd-source-but-backward". I've always wondered what all of those weird extra GNU options were for.

Next headline....

[hopemafia]

Slashdot Subpoenaed by SCO

SCO demands that "all stories and discussions refering to SCO, Linux, the GPL, IBM, Redhat, SuSE, the FSF, or hot grits, including all information on all websites linked to in the aformentioned material" be turned over to Boies, Schiller & Flexner.

It's from last year!

[DarkMan]

Read the document, it's data November 2003

This is online as a historical document, not as a new summons. Complience with it is now a moot point (unless there was something really freaky going on that we're not aware of), given they were due by 21st Nov 2003.

SCO Funds FSF!

[Quila]

"...will reimburse you for all reasonable duplication costs."

Going off a standard schedule for copy costs and associated labor ("reasonable") would still be an awful lot of money since we're talking likely hundreds of thousands of documents here, but probably more money than FSF would actually need to produce the documents. If an accounting is required of billable hours for those getting the docs together, hire OSS programmers who could use some extra cash. Therefore, this could in the end be a large donation by SCO to the FSF and OSS programmers.

Re:Now That's A Good Question!

[Rorgg]

Bless me, Father, for I have GOTOed.

RTFM, STFW

[SharpFang]

Yeah, I guess it's the typical help forum approach.

SCO: PLEEZ SenD MEE a11 1Nf0 YOU HAvE ON C I waNT to HAXXOR
FSF: RTFM, STFW, FU, HAND.

I believe..

[fizban]

...the correct response is:

"These are not the documents you're looking for. Move along."

Too Much Data Might be what they want

[Linus Sixpack]

Given their delaying tactics they might love to be given too much data.

Aside from the question of who eventually will get that data ie invisible backers, they seem to be abusing the trial as a way to get press not justice.

Whatever intelligence they can collect for their backers is probably gravy, and if they can gain a delay based on its volume that must suit them fine.

Besides when you know there won't be proof you can use its easy to disregard stacks of paper.

Perhaps they could hire the Alexis de Tocqueville Institution to make grand pronouncements without the burden of the facts.

St. Ignucius of nigeria

[Anonymous Coward]

Dear SCO, I am respectfully contacting you confidentialy for your information assistence. My father, the late Prime Minister of Free Trade Software Foundation, was assinated and left me with 32,000,000 GPL related documents {THIRTY-TWO MILIONS). To get access to these documents I need access to a foreign company. For your assistance I will reimburse you 15% (FIVE MILIONS U.S. DOCUMENTS). If you are willing to help me, please sent me a supeena with your name, address, and contact on it. I hope this reaches you with respect, my sick mother needs the documents quickly before her illness takes her to heaven.

Yes.

[StarKruzr]

This is one of the things which separates Europeans from Americans.

I spent quite a bit of time in Ireland, for example. The reason why European countries tend to have fewer civil liberties is because their citizens honestly believe they don't need them. Americans were taught from the founding of their country to be suspicious of authority.

Re:Yes.

[Nordicfire]

The reason why European countries tend to have fewer civil liberties is because their citizens honestly believe they don't need them.

Fewer civil liberties?

Liberties must come with responsibility. I don't deem people in general responsible enough to carry loaded guns. I deem it civil responsibility to aid the police in solving the crimes. If it means that I'll let them search my apartment to eliminate me as a suspect, go ahead.

I for one have never quite understood your paranoia about the government.

Re:Yes.

[AK Marc]

Americans were taught from the founding of their country to be suspicious of authority.

And those that have been in power have reenforced that suspicion...

Re:Yes.

[matastas]

Again, it's very much a cultural thing. The US was formed very spectularly in a civil war against an oppressive govt. (or so the story goes). Authority figures overstepping their bounds is something that Americans are sensitive to. With a government that currently seems determined to remove civil liberties in the name of a serious, yet not-wholly-defined goal, by means not fully revealed to the citizenry? Well, you implied yourself that this is a two-way street, no?

And you meet a few of the wrong kind of police in the US, you won't let them within 100 ft. of your apartment without a warrant or your specific summons (i.e., emergency situation). Trust me on this one.

Re:Yes.

[Anonymous Coward]

I will kick in just a point or two more here! To be blunt, the reason the EU types have any civil liberties at all is about $7 Trillion in American Treasure about a Half Million American Lives and OH MY just a bit of that American Defiance and Suspicion of Authority. It is a small wonder that the Europeans don't value it very highly. It costs them almost nothing.

Sorry for the History Lesson but somebody over there needed it.

Sounds like you need a history lesson too, mister. Half a million American lives? That's nothing compared to the millions of lives lost by the Russians. It wasn't America who saved Europe from the Nazis, it was Stalin.

Plus, with all due respect, I'm British, and I seem to recall my country spending rather a long time holding out against an overwhelming foe before America finally stopped trying to profit out of the war and started fighting in it. Forgive me if I don't kiss your feet, you arrogant sod.

Re:Yes.

[southpolesammy]

It goes along the lines of the old corrupt cop routine...

Officer: Your headlight is broken. That's a $100 fine.
Motorist: No it's not! It's working perfectly fine!
[Officer smashes the left headlight]
Officer: Want to make it a $200 fine?

Now couple that with stories of cops pinning drugs on undesirables, police brutality, sending innocent people to jail for crimes they didn't commit, politicians serving their own interests, corrupt judges, etc, etc, etc.....yes, we have an inate distrust of government, why do you ask?

Re:Yes.

[timeOday]

I don't deem people in general responsible enough to carry loaded guns.

Cops are "people in general."

Those who trust government and distrust people have a serious problem... they don't realize government is just a bunch of regular people doing jobs - some well, some not so well, just like anywhere else.

Re:Yes.

[random_static]

I for one have never quite understood your paranoia about the government.

that's because you live under a government that can actually be trusted.

i didn't use to understand americans either, then i moved here. now i'm amazed they aren't even more paranoid and distrustful of the corrupt egomaniacal idiots they've got running the place. of course, their paranoia and fear don't actually do anything to help the situation, but at least i can understand the impulse.

Re:Yes.

[mcpkaaos]

I for one have never quite understood your paranoia about the government.

I, for one, have never quite understood why a person would blindly trust a faction of complete strangers who go to work every morning to make decisions on how you should live your life.

Re:Yes.

[HuguesT]

I've never seen blind trust in any form of government anywhere, it's more a question of degree of paranoia. In Europe a number of government services are actually well run, such as the education system in some countries, goverment funded research labs, universities, or utility distribution. In some countries a government job is actually prestigious and competent people compete for them in nationwide exams. It does make a difference to the end product.

On the other hand many goverment branches are distrusted such as the police, the army and the tax services, typically. You'll find that similar safeguards are in place in every western democracies that make sure none of these services outstep their bounds. I remember one instance of a police officer bashing a student during a demonstration against rising fees, and that was enough to have the interior minister dismissed and to topple the whole goverment.

In the US everything run by government is assumed corrupt, untrustworthy and inefficient, even such things as the postal service. Maybe there are some reason for it but maybe it's just badly run and it doesn't have to be that way.

Re:Yes.

[LarsWestergren]

This is one of the things which separates Europeans from Americans.

I spent quite a bit of time in Ireland, for example. The reason why European countries tend to have fewer civil liberties is because their citizens honestly believe they don't need them. Americans were taught from the founding of their country to be suspicious of authority.

Yes, yes, keep stroking that ego. I can't believe you are saying this with a straight face. Look how quickly and easily the PATRIOT act got through. For all your "don't tread on me" bluster, you Americans sure screamed and blubbered for less liberties and more temporary safety once you were exposed to the terrorism that the people of, say, Spain and England had been living under for decades.

You are living in a country that are arresting and detaining people (even juveniles) without charge or trial, without informing relatives, without a right to speak to a lawyer. This is against international law on human rights, not to mention basic human decency. It's fucking Gestapo tactics. Add to this reports by Amnesty that many have probably been treated the same way prisoners in Iraq have been. Your point again?

Stock price was $1 before SCO started lawsuit

[mec]

Their stock price is just about the same level as when this whole thing got started.

Well, maybe. Depends on how you look at it.

Here's a table of SCOX stock price, sampled once per month. It starts with Caldera (the former company name) going public during the height of the NASDAQ bubble in March 2000.

SCOX: Historical Prices for SCO Group, Inc.

Some key dates and prices:

2002-07 $1.04 Darl McBride joins SCO
2003-01 $1.35 SCO makes anti-Linux noises
2003-03 $2.88 SCO files lawsuit against IBM
2003-10 $22.29 SCOX hits high
2004-05 $4.78 SCOX right now, 2004-05-20

So SCOX is still up a bunch from when McBride started the anti-Linux strategy. I consider the base price to be $1.50, and SCOX is still trading at 300% of that base price.

In my opinion, the products-and-services side of SCO is worthless, and their only viable business is this lawsuit. And the lawsuit is getting less viable every month.

Re:Stock price was $1 before SCO started lawsuit

[mec]

Crud, I bungled the URL.

SCOX: Historical Prices for SCO Group Inc

If the FSF isn't worried

[Cecil]

Then neither am I. I had the priviledge of seeing Eben Moglen speak during OSConf at University of Toronto, and after that display, I feel it's safe to say that the FSF does not need any legal advice from the outside, much less IANALs from Slashdot getting the issue hopelessly confused.

Other lawyers who are ignorant of the law, seem to irritate him somewhat. I don't blame him. But given that tidbit of knowledge, just imagine how he feels about the garbage SCO is throwing around.

I am sure that if it has not done so already, the FSF will respond decisively in an ethical and legal manner, and certainly nothing substantial will ever come of SCO's whining.

OT Sig response...

[powerlord]

What if Neo took both pills?

Well ... thats easy.

If he took the Red pill AND the Blue pill it would be the equivalent of having taken the Purple pill.

The obvious effect would have been to alleviate symptoms of Acid Reflux for up to 24 hours, while helping to repair any damage to his esophagus.

Re:Also subpoened:

[hesiod]

> RMS's love letters from numerous female admirers

Isn't it illegal to ask for documents you know do not exist?

Privacy has value

[Anonymous Coward]

If FSF has nothing to hide

That mentality really pisses me off. Just because YOU don't value privacy, and just because YOU don't value the confidentiality of business communications, doesn't mean NOBODY does.

Should nudists pass laws requiring everyone to be naked when the weather is nice?

Laws protecting privacy were created to benefit those of us who DO value it. If you don't value privacy, you can post all your information on the web for all I care. But don't expect me to.

On the importance of GPL and FSF

[BinLadenMyHero]

My favorite part of the FSF letter:

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.)

Reply:In many cases, it is a fishing trip ...

[OldHawk777]

SCO has finally gone fishing nuts.

Just me, from when I started my archives in 1987, for email and personal/work files (with some whoops redundancy).... I have a little over 10G [lots of pictures, some text, a few corrupt files, and I know there must be a couple ancient MS-DOS and/or CP/M viruses entombed for posterity].

If they want everything from FSF/GNU/RMS/EmployeeA-z/ContactA-Z/.... They could be fishing for years, and catch a few interesting zip-null files for all their efforts. Those folks at SCO must be getting sustenance from a deep-pockets source for these fishing expeditions, because they are wasting everyone's time ... time ... time ... will the FSF Foundation ever get reimbursed for all the time spent from a company that will just file bankruptcy when needed.

Maybe that is it, they are trying to bankrupt the FSF foundation by having everyone working at the FSF for nothing and costing time and money ... over months and years. That guy at SCO he ain't smart enough for such tactical/strategic thought ... I wonder who the real software boss is?

I will continue to make ($20-$200) donations to FSF and others, but I will continue to keep it all hand2hand without receipts or tax benefits. I don't got time or money for SCO to get me or maybe the US software Gestapo that went after that nice Georgia Cracker lady that protects the USA Constitution, Democracy, and voting ....

I may be paranoid, but I can see it coming ... $30 for everything copied and shipped ... sounds like they may want to know exactly which trash-dump FSF's trash was tossed in for the past decade. Then, maybe, next year SCO will ask FSF and RMS to deliver the trash dump to SCO.

"Reality is a self-induced hallucination." [Anyone know who owns this line?]

OldHawk777

Support the FSF!

[H4x0r Jim Duggan]

If it makes you feel any better, FSF don't pay RMS and never have - he's a volunteer.

But...

[StarKruzr]

What if it doesn't eliminate you as a suspect? What if there is something that makes you even more suspicious - and yet, you are still completely unrelated to the crime - and you are taken to prison and, say, raped by an inmate?

We are paranoid about our government because it commands enormous resources that are under the purview of individuals that are sometimes not entirely trustworthy (compare to your concern about people being responsible enough to carry loaded guns). Our goverment hides and outright falsifies information about a myriad of things that could be enormously beneficial to its citizens and the world at large because it is beneficial to its somewhat shady, ill-defined, perhaps amoral goals.

Do you honestly believe any governmental system can be much different?

Federal Standard for Discovery

[David Hume]

Privilege isn't the only issue, unless it is somehow relevant to the case, it's still not something FSF has to give out willingly

This is correct, but the standard is very broad. This action is in Federal Court, and is therefore governed by the Federal Rules of Civil Procedure (FRCP). FRCP Rule 26(b)(1) provides:

(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).

FRCP Rule 26(b)(1) (emphasis added). The portion of FRCP 26(b)(1) emphasized above is very important. The requested information need not be admissible; it only has to be "reasonably calculated to lead to the discovery of admissible evidence."

Further, under Rule 401 of the Federal Rules of Evidence, "relevant evidence" is defined very broadly as follows:

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

FRE Rule 401 (emphasis added).

Relevance for AutoZone

[Anders Andersson]

This would reduce the case to whether or not IBM breached their contract by contributing to Linux (based on SCO's radical definition of "derivative works"). Everybody else would be OK and it would probably kill their lawsuits against AutoZone and DC.

Regardless of what kind of image SCO tried to paint in their press releases, the lawsuit against AutoZone appeared to be about AutoZone using other software actually belonging to SCO on a Linux host, not about AutoZone using Linux. If so, the outcome in the IBM case will have no effect on the AutoZone case, although SCO may decide to drop also the AutoZone lawsuit for other reasons (such as lack of sustained funding combined with losing the media campaign).

I think you're mostly mixing that up with...

[Kjella]

I spent quite a bit of time in Ireland, for example. The reason why European countries tend to have fewer civil liberties is because their citizens honestly believe they don't need them.

...being less anal in exercising them. The purpose of rights isn't to stop the police in solving crimes and being an ass, it's to stop harrasment and fishing expeditions. As long as I feel that they're doing their job, I don't mind cooperating above and beyond what I'm required by law. In the US, there seems to be an innate hostility towards authority. If it's not required by law, it's almost "forbidden" to accomodate them anyway. The world will not end, your rights will not cease to exist, 1984 will not become true if you do.

Besides, the Patriot Act and the whole Guantanamo Bay thing makes me doubt your rights are that good, should you try to exercise them. Of course, rights don't apply to people that we suspect the rights don't apply to. Try figuring that one out. And after seeing the recent events in Iraq, ths US should shut the fuck up about their civil liberties(*). Or maybe you really don't understand how that looks to the rest of the world?

(*) not applicable to Iraqis, foreigners in general, allies, non-US citizens, muslims, suspected terrorists et al. Any more you want to piss off?

In the Cold War, we needed the US. 9/11 could have brought us together. But I dare say that I don't think the US and Europe has ever stood further apart since WWII. On a political level, it hasn't come about yet. Ask the people.

Ask them about how they feel about the US, about going to war over WMDs that don't exist (The EU thought so too, but we didn't start a war over a belief). Ask the people of your allies if they're proud to have helped you conquer Iraq so you can torture your prisoners like Saddam did.

The US is coming across as a "holier than thou" nation, that in the end is just another thug (admittingly, like most other nations...) Keep it up, and you'll come off looking as the bitch in "Cruel Intentions". I haven't seen a fraction of the humility I'd expect after getting caught with your pants down.

Kjella

American suggests US govt - no better than Sadam's

[martintt]

Do you honestly believe any governmental system can be much different?

Do you honestly believe all governmental systems are the same?

So you are saying that all governmental systems are the same? So the US and its poodles have replaced one "shady", "perhaps amoral" government in IRAQ with another one, that's no better?

Next you'll be saying that the torture and rape perpetrated by Sadam's thugs is being continued by the US.

You'll be saying that the US govt is the same as the Nazis with it's concentration camp in Guantanamo Bay - come on get with it, concentration camps are so last century.- ok I'm making your point here.

BUT just because the US is run by xenophobic, oil funded, religious extremists, doesn't mean the whole world is.

There are better forms of government than the system that the US (+poodles) is trying to force on the rest of the world. Many European democracies are more democratic and less ruled by money than the Land of the Free. Our governments still lie and we do have the odd bent copper, but in general we live in far less of a police state than the US.

I've had several dealings with the police and they've always been very friendly and polite even when I've been unloading computers from the back of a car at 3am. This is in stark contrast to what I hear about the US police who seem to aggressively harass people for such subversive activities as walking. Jay walking, wtf is that? If I want to cross the street and it looks safe I cross, seriously I don't understand. I've even heard of several accounts of Europeans being harassed by US police for walking on pavements in residential areas - you need a permit or a car or something.

So yes I do believe governmental systems can be different and furthermore they should be different.