Apple isn't much of a player in the server space. Linux is MS's only serious competitor in a market they don't already own outright.
Linux could conceivably develop a server dominance that could endanger MS's client side dominance. MS is trying to parley it's client dominance into server dominance.
Apple has neither position, as it's a minor player in both clients and servers.
Not intended as an insult, I LOVE Apple products (just wish I could afford them), but in reality, the market IS x86 clients and servers.
"Wait a minute, would that be called a Legal DDoS? Same idea right? Yep. It worked for the $cientologists. It could work for Linux too. I wonder if legal DDoSing is a patentable business model..."
The USPTO seems to grant you a patent for ANYTHING if you add "using the internet" to it...
"As a logical extension of what you wrote, why not have all Linux contributors file a class action suit against SCO? There are tens of thousands of people out there who own a piece of Linux in the sense that they contributed their code, beta testing efforts, documentation, etc. Split these people into groups of about 1000 and file dozens or hundreds of suits against SCO for theft, defamation of character, whatever. They will have to pay lawyers to respond to each query, motion, response, challenge, request for documents, deposition, etc. Now that's a way to drain their legal fund."
To do that you don't want to do a class action. You want dozens of INDIVIDUAL suits filed in dozens of states and locales.
File for declaratory judgement, similar to what Redhat is doing.
I pretty much believe that ENCOURAGING this is exactly what the $1 million legal defense fund Redhat started is for...
"Eventually, one way or another, linux will be declared some corporations property. It's guaranteed. The more valuable it becomes, the harder people will fight and the more tricks they will use to make sure it does not remain free."
THAT is exactly what SCO is trying to accomplish here.
And it's why they aren't making copyright claims IN COURT, as they'd eventually have to identify WHAT it is they own the copyright on that Linux is infringing on.
Which they don't want to do.
This attack is an end run on the GPL, something no doubt Ransome Love (who HATED the GPL) helped cook up, whereby the code remains "free" but to use it free of FEAR, you have to buy SCO's license...
"This won't take much money anyway. SCO with a weak case/no case wants to stay as far from a court room as possible. Their battles to raise money are coming from media hype surrounding threats to go to court. They can't actually go to court on this stuff and win, they know this"
And your point is illustrated by the fact that SCO has not asked for a preliminary injunction barring IBM from selling AIX, or against the Linux kernel.
Their goal is to stay AWAY from court as long as possible, keep the FUD cranked as long as possible, to force someone to buy them at an overinflated price to shut them up before Linux becomes fatally damaged in the corporate marketplace.
Red Hat is forcing their hand, and, incidentally ARE asking for a preliminary injunction. SCO will have to either show evidence or else, ALLOW the injunction to go through.
NEITHER outcome is good for them. And this hearing will take place in a matter of weeks-couple of months, not years...
Multiply that by 5-10-50-100 MORE countersuits filed by other Linux vendors, users, coders, and SCO starts to bleed to death...
"Not me. I hope they kick their asses swiftly and without mercy. It is more decisive that way. Let SCO wallow in the appeals process. The longer this is in the courts, the worse it is for Linux in general."
The more suits, the faster this ends. For one thing, someone will get to discovery quicker than the federal court will. Secondly, it drains money from SCO. Contingency lawyers largely work for PLANTIFFS, not defendants...
The sooner SCO's money pot is drained, the faster this ends. They will either be: Defeated, because someone got to to disprove the "evidence", forced to capitulate, or lose their case(s) by default because they won't be able to afford to continue to fight.
Sadly, that is the truth of the US legal system. It just so happens that in this case we can use it to the advantage of the "good guys".
"SCO can't profit from it's own negligence, whether it be their lack of knowledge of what they were selling, their lack of understanding of the GPL, or anything else that the court deems they should have known"
The most they could do is ask for it to be removed. They aren't doing that. They don't WANT it removed so they can CONTINUE to profit off their own negligence in the future.
"With its unsubstantiated claims, SCO is hurting competitors, intimidating Linux customers, and inflicting damage on the reputation of Linux as an open platform, said LinuxTag spokesman Andreas Gebhard. "We told SCO flat out they must stop claiming that the standard Linux kernel violates its copyrights if they can't prove it."
Guess which route SCO took in Germany. Of course they didn't elect to prove anything. This should tell everyone how much FUD their current "campaign" really is."
Actually, what it most likely proved is that SCO lacks the cash to fight wars on all fronts simultaneously. Not that I think they can prove ANYTHING except they are crooked and the US legal system sucks in that it protects crooks...
All the more reasons to see them sued in every county in every US state, and in 50 other countries...
SCO will seek to drag all this out as long as they can. Their value to their partners (MS, Sun) rests in how long they can keep the FUD machine going.
SCO little in the way of revenue except by license extortion. So, they are running on "life support" so to speak. Countersuits will keep pushing their head blow water, forcing them to keep breathing reserve oxygen... From a tank they can't refill because they don't actually have A GOING BUSINESS CONCERN to draw cash from...
Ratcheting up the pressure DECREASES the likelyhood of more people cowing to their license demands. And MS/Sun can't contribute any more, as they CAN get away with the "we bought a license because we didn't want to get sued" line once, but twice will turn the public against them...
Not to mention, MS/Sun COULD end up being THEMSELVES LIABLE for damages, defamation, etc if they blatantly pump cash into what very well may be a completely baseless suit.
"I can't see SCO not having any evidence on their side (no matter how tenuous) - my guess would be that there is disputed code, that it's not terribly impressive, and that SCO know full well that the moment it's made public, it will be out of the kernel and replaced with something better."
I honestly think they literally have NOTHING. The code in question is probably related to JFS (the major IBM contribution). SCO is arguing that IBM code once intermingled with AIX can't then be put into Linux. So much for the viral nature of the GPL...
The same GPL that SCO STILL consents to, given that they are STILL distributing GPL'ed Linux code.. For the GPL to not be enforceable in this respect, ALL SHRINKWRAP EULAs would have to be void...
Of course they don't want it revealed... Because, at the LEAST, what they have isn't enough to justify the insane damages they are asking for, plus, they don't WANT the Linux kernel to be cleaned of anything they can claim against.
Companies like SCO can only make money on scarcity and expense. Keeping Unix scarce and expensive lets them make bank. Linux makes it potentially impossible for ANY Unix vendor not based on the Linux business model (make money from services, hardware, support, etc) to make profit.
"You think MS can't find a few more bucks under their well-padded mattress to throw at SCO to fund the lawsuit? Hell, MS could *buy* SCO and pursue the suit themselves. Certainly the Feds won't stop them from doing that!"
I don't think they COULD get away with that. MS got off light as it is. If they were to blatantly do such a thing, they could get sued again.
Right now, MS's only competition is Linux. For them to take such action would be an abuse of their monopoly.
"If I were cynical, I might suggest that SCO's desperate attempts to make sure that nobody can actually find out what parts of the code are in question represent a transparent attempt to make sure this doesn't happen."
It's either that or the code doesn't exist in the first place.
SCO wants this outcome:
1. Extort lots of money 2. Never reveal the code so that Linux can't ever be "cleaned" 3. Get defacto ownership of Linux and turn it into proprietary Unix. 4. Profit
"Something on the order of an entire chorus of Unixware developers willing to testify in court that this is the case."
Considering that there are many more EX UnixWare developers today than UnixWare developers (likely outnumbered by lawyers and PR flacks on the payroll 10-1 or more), I don't think that would be so hard...
But, I'm sure they are under some kind of NDA. But a NDA can't prevent someone from testifying in a court of law... The problem is getting the evidence to support a case so you can get to discovery and start collecting evidence...
An hopefully Linus, GNU, Mandrake, SuSE, Novell, and thousands of Linux contributors, users, etc start filing suit against SCO in every conceivable country, state, and locale...
""In any such meeting, we will provide example after example of infringement of our intellectual property found in Linux. Of course, any such demonstration must be pursuant to an acceptable confidentiality agreement and must be intended to further good faith discussions about resolving the differences between us.........If you seek information for the purpose of informal discovery intended to benefit IBM in the pending litigation, or for the purpose of devising your own litigation plans against SCO related to Linux, we must respectfully decline your request." - Robert Bench, CFO, SCO Group "
THAT is the biggest load of BS in the whole stack... IF Redhat can get to trial before IBM, Yes, they will get SCO's "evidence" first. Yes, it could help IBM...
BUT ONLY IF THERE IS NO EVIDENCE! Facts, evidence, don't change because they are revealed. Lies, however, do...
"I'm not saying that Red Hat made the wrong decision - they were injured and are suing - but I think the more Linux players SCO can get involved with litigation, the happier they will be - if they can drag out the proceedings. Imagine the boost to the "Linux has IP problems" line if all the major Linux players are tied up in litigation over IP issues."
The more players that sue SCO, the more resources SCO has to devote to their litigation (lawyers are whores, but they ain't cheap), the LESS time left on their life support clock...
Linux is a multibillion dollar industry now. There are players who make money (Redhat), some make LOTS of money (IBM, HP), and others who have a dog in the fight (Linus, RMS).
SCO's market cap is tiny compared even to Redhat's... They are outnumbered, and the more suits get targeted at THEM, most preferably in a LOT of different locales (state courts where the case won't take years to get to trial), the faster this is brought to an END.
A lion can be brought down by a pack of hyenas. It's all the more easy when SCO isn't a lion, but a jackass... And tigers are pursuing them...
SCO already has taken money from MS and Sun. For MS and Sun to pump more into them would speak BLATANTLY of conspiracy. In MS's case, it could be a violation of their anti trust settmelent...
Conspiracy is a word SCO should use lightly... Considering that the company that MOST benefits from anti-Linux FUD (and most definately from spreading doubts as to it's legality) propped them up to the tune of buying a "license" they didn't need...
I'm of course speaking of Microsoft...
How could Redhat conspire with ANYONE?! Did they conspire with IBM to SCO to sue?
Certainly Redhat and IBM will work together in their own defenses (and offenses). They are partners with common interests.
Just as SCO works with (and takes money from) Microsoft and Sun, the two companies with the MOST to lose from Linux...
"A subpoena is a demand for information prior to going to court. It's trivially easy to obtain one (they're not vetted by judges) but failing to comply with a properly filed subpoena is an offence in itself. "
Sure, but it's issued in reference to a LAWSUIT. The DMCA allows the RIAA to issue them without going through the expense (and delay) of filing a suit to get to discovery.
"Yes and no. Why get broadband at all if I can't use the bandwidth? ISPs aren't stupid. They know one of the main drivers of Joe Blow getting broadband is p2p. If you remove that driver, then why should the average consumer buy broadband?"
When I signed up for Adelphia PowerLink, they ADVERTISED fast music downloads...
The ISP almost HAS to stick up for their clients, at least show some resistance. They could face class action suits based on their advertisements.
P2P is the "killer" app that sells broadband at home as something Joe Blow wants...
Otherwise, broadband customers would mostly be techies like us, who love being able to apt-get quickly...
Until the DMCA has been ruled on by the US Supreme Court, it's Constitutionality is still open for question.
So far, no DMCA case has made it past the low levels of the Federal court system.
Now, don't be TOO optimistic... This court upheld the Sonny Bono Perpetual Copyright Act. BUT, that perpetual copyright coupled with the insane powers the DMCA grats a copyright holder may sway them...
IMHO, I wouldn't have that big a problem with the DMCA if copyright terms were short (say 10-20 years). The way I see it, the LONGER they extend the terms, the more liberal the terms would have to be in order to meet the Constitution's requirement for limits on copyrights...
One method of attack here would be a "due process" argument, that the DMCA's subpoena power violates the Constitution's prohibition of search and seizure, without "due process".
If the RIAA had to file actual lawsuits to get to discovery, before they could subpoena, that would stop this thing cold, as it would increase the hassle and expense 1,000x.
AFAIK, the DMCA has to be the only, if not one of very VERY few laws that allows a PRIVATE entity to curcumvent the requirement to go through courts in a lawsuit to get subpoenas... I don't think the Constitution allows for this.
Subpoena power is very scary. It should be supervised by a court.
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Apple isn't much of a player in the server space. Linux is MS's only serious competitor in a market they don't already own outright.
Linux could conceivably develop a server dominance that could endanger MS's client side dominance. MS is trying to parley it's client dominance into server dominance.
Apple has neither position, as it's a minor player in both clients and servers.
Not intended as an insult, I LOVE Apple products (just wish I could afford them), but in reality, the market IS x86 clients and servers.
"Wait a minute, would that be called a Legal DDoS? Same idea right?
Yep. It worked for the $cientologists. It could work for Linux too. I wonder if legal DDoSing is a patentable business model..."
The USPTO seems to grant you a patent for ANYTHING if you add "using the internet" to it...
Also to our good buddy Daryl and his Ransome Love:
Fuck you, fuck the whore who is your mother, and fuck the father you never knew because he didn't pay!
"n other words:
'Please help us bankroll our lawsuit against you'"
Yep. Because Redhat's suit opens the floodgates. I expect DOZENS of additional suits, in several countries, in several states to hit them soon.
And they can't get a lawyer to work on a contingency fee bais as a DEFENDANT. Redhat is now draining the MS/Sun cash pile...
The 2.4 kernel I use is the one I donloaded from ftp.sco.com? ;)
In response to your "offer", I decline.
IF you win your lawsuits with IBM, Redhat, and the rest of the free world, get back to me.
Until then, you can chill out, and have a nice cup of shut the fuck up.
"As a logical extension of what you wrote, why not have all Linux contributors file a class action suit against SCO? There are tens of thousands of people out there who own a piece of Linux in the sense that they contributed their code, beta testing efforts, documentation, etc. Split these people into groups of about 1000 and file dozens or hundreds of suits against SCO for theft, defamation of character, whatever. They will have to pay lawyers to respond to each query, motion, response, challenge, request for documents, deposition, etc. Now that's a way to drain their legal fund."
To do that you don't want to do a class action. You want dozens of INDIVIDUAL suits filed in dozens of states and locales.
File for declaratory judgement, similar to what Redhat is doing.
I pretty much believe that ENCOURAGING this is exactly what the $1 million legal defense fund Redhat started is for...
"Eventually, one way or another, linux will be declared some corporations property. It's guaranteed. The more valuable it becomes, the harder people will fight and the more tricks they will use to make sure it does not remain free."
THAT is exactly what SCO is trying to accomplish here.
And it's why they aren't making copyright claims IN COURT, as they'd eventually have to identify WHAT it is they own the copyright on that Linux is infringing on.
Which they don't want to do.
This attack is an end run on the GPL, something no doubt Ransome Love (who HATED the GPL) helped cook up, whereby the code remains "free" but to use it free of FEAR, you have to buy SCO's license...
"This won't take much money anyway. SCO with a weak case/no case wants to stay as far from a court room as possible. Their battles to raise money are coming from media hype surrounding threats to go to court. They can't actually go to court on this stuff and win, they know this"
And your point is illustrated by the fact that SCO has not asked for a preliminary injunction barring IBM from selling AIX, or against the Linux kernel.
Their goal is to stay AWAY from court as long as possible, keep the FUD cranked as long as possible, to force someone to buy them at an overinflated price to shut them up before Linux becomes fatally damaged in the corporate marketplace.
Red Hat is forcing their hand, and, incidentally ARE asking for a preliminary injunction. SCO will have to either show evidence or else, ALLOW the injunction to go through.
NEITHER outcome is good for them. And this hearing will take place in a matter of weeks-couple of months, not years...
Multiply that by 5-10-50-100 MORE countersuits filed by other Linux vendors, users, coders, and SCO starts to bleed to death...
"Not me. I hope they kick their asses swiftly and without mercy. It is more decisive that way. Let SCO wallow in the appeals process. The longer this is in the courts, the worse it is for Linux in general."
The more suits, the faster this ends. For one thing, someone will get to discovery quicker than the federal court will. Secondly, it drains money from SCO. Contingency lawyers largely work for PLANTIFFS, not defendants...
The sooner SCO's money pot is drained, the faster this ends. They will either be: Defeated, because someone got to to disprove the "evidence", forced to capitulate, or lose their case(s) by default because they won't be able to afford to continue to fight.
Sadly, that is the truth of the US legal system. It just so happens that in this case we can use it to the advantage of the "good guys".
"SCO can't profit from it's own negligence, whether it be their lack of knowledge of what they were selling, their lack of understanding of the GPL, or anything else that the court deems they should have known"
The most they could do is ask for it to be removed. They aren't doing that. They don't WANT it removed so they can CONTINUE to profit off their own negligence in the future.
"I am also disappointed that you have chosen litigation rather than good faith discussions with SCO about the problems inherent in Linux."
"Good faith!" You keep using that word. I don't think it means what you think it means.
"With its unsubstantiated claims, SCO is hurting competitors, intimidating Linux customers, and inflicting damage on the reputation of Linux as an open platform, said LinuxTag spokesman Andreas Gebhard. "We told SCO flat out they must stop claiming that the standard Linux kernel violates its copyrights if they can't prove it."
Guess which route SCO took in Germany. Of course they didn't elect to prove anything. This should tell everyone how much FUD their current "campaign" really is."
Actually, what it most likely proved is that SCO lacks the cash to fight wars on all fronts simultaneously. Not that I think they can prove ANYTHING except they are crooked and the US legal system sucks in that it protects crooks...
All the more reasons to see them sued in every county in every US state, and in 50 other countries...
SCO will seek to drag all this out as long as they can. Their value to their partners (MS, Sun) rests in how long they can keep the FUD machine going.
SCO little in the way of revenue except by license extortion. So, they are running on "life support" so to speak. Countersuits will keep pushing their head blow water, forcing them to keep breathing reserve oxygen... From a tank they can't refill because they don't actually have A GOING BUSINESS CONCERN to draw cash from...
Ratcheting up the pressure DECREASES the likelyhood of more people cowing to their license demands. And MS/Sun can't contribute any more, as they CAN get away with the "we bought a license because we didn't want to get sued" line once, but twice will turn the public against them...
Not to mention, MS/Sun COULD end up being THEMSELVES LIABLE for damages, defamation, etc if they blatantly pump cash into what very well may be a completely baseless suit.
"I can't see SCO not having any evidence on their side (no matter how tenuous) - my guess would be that there is disputed code, that it's not terribly impressive, and that SCO know full well that the moment it's made public, it will be out of the kernel and replaced with something better."
I honestly think they literally have NOTHING. The code in question is probably related to JFS (the major IBM contribution). SCO is arguing that IBM code once intermingled with AIX can't then be put into Linux. So much for the viral nature of the GPL...
The same GPL that SCO STILL consents to, given that they are STILL distributing GPL'ed Linux code.. For the GPL to not be enforceable in this respect, ALL SHRINKWRAP EULAs would have to be void...
Of course they don't want it revealed... Because, at the LEAST, what they have isn't enough to justify the insane damages they are asking for, plus, they don't WANT the Linux kernel to be cleaned of anything they can claim against.
Companies like SCO can only make money on scarcity and expense. Keeping Unix scarce and expensive lets them make bank. Linux makes it potentially impossible for ANY Unix vendor not based on the Linux business model (make money from services, hardware, support, etc) to make profit.
That is essentially what SCO is trying to do... DOS Linux.
Now that they are trying to extort "fees" not owed from EVERY user of Linux 2.4, everyone who uses Linux has grounds to sue...
The more suits, in more locations, the better. SCO doesn't have the resources to be everywhere at once.
"You think MS can't find a few more bucks under their well-padded mattress to throw at SCO to fund the lawsuit? Hell, MS could *buy* SCO and pursue the suit themselves. Certainly the Feds won't stop them from doing that!"
I don't think they COULD get away with that. MS got off light as it is. If they were to blatantly do such a thing, they could get sued again.
Right now, MS's only competition is Linux. For them to take such action would be an abuse of their monopoly.
"If I were cynical, I might suggest that SCO's desperate attempts to make sure that nobody can actually find out what parts of the code are in question represent a transparent attempt to make sure this doesn't happen."
It's either that or the code doesn't exist in the first place.
SCO wants this outcome:
1. Extort lots of money
2. Never reveal the code so that Linux can't ever be "cleaned"
3. Get defacto ownership of Linux and turn it into proprietary Unix.
4. Profit
"Something on the order of an entire chorus of Unixware developers willing to testify in court that this is the case."
Considering that there are many more EX UnixWare developers today than UnixWare developers (likely outnumbered by lawyers and PR flacks on the payroll 10-1 or more), I don't think that would be so hard...
But, I'm sure they are under some kind of NDA. But a NDA can't prevent someone from testifying in a court of law... The problem is getting the evidence to support a case so you can get to discovery and start collecting evidence...
Which means a brave whistleblower is needed...
An hopefully Linus, GNU, Mandrake, SuSE, Novell, and thousands of Linux contributors, users, etc start filing suit against SCO in every conceivable country, state, and locale...
That MS money won't last them forever...
""In any such meeting, we will provide example after example of infringement of our intellectual property found in Linux. Of course, any such demonstration must be pursuant to an acceptable confidentiality agreement and must be intended to further good faith discussions about resolving the differences between us.........If you seek information for the purpose of informal discovery intended to benefit IBM in the pending litigation, or for the purpose of devising your own litigation plans against SCO related to Linux, we must respectfully decline your request."
- Robert Bench, CFO, SCO Group "
THAT is the biggest load of BS in the whole stack... IF Redhat can get to trial before IBM, Yes, they will get SCO's "evidence" first. Yes, it could help IBM...
BUT ONLY IF THERE IS NO EVIDENCE! Facts, evidence, don't change because they are revealed. Lies, however, do...
"I'm not saying that Red Hat made the wrong decision - they were injured and are suing - but I think the more Linux players SCO can get involved with litigation, the happier they will be - if they can drag out the proceedings. Imagine the boost to the "Linux has IP problems" line if all the major Linux players are tied up in litigation over IP issues."
The more players that sue SCO, the more resources SCO has to devote to their litigation (lawyers are whores, but they ain't cheap), the LESS time left on their life support clock...
Linux is a multibillion dollar industry now. There are players who make money (Redhat), some make LOTS of money (IBM, HP), and others who have a dog in the fight (Linus, RMS).
SCO's market cap is tiny compared even to Redhat's... They are outnumbered, and the more suits get targeted at THEM, most preferably in a LOT of different locales (state courts where the case won't take years to get to trial), the faster this is brought to an END.
A lion can be brought down by a pack of hyenas. It's all the more easy when SCO isn't a lion, but a jackass... And tigers are pursuing them...
SCO already has taken money from MS and Sun. For MS and Sun to pump more into them would speak BLATANTLY of conspiracy. In MS's case, it could be a violation of their anti trust settmelent...
Conspiracy is a word SCO should use lightly... Considering that the company that MOST benefits from anti-Linux FUD (and most definately from spreading doubts as to it's legality) propped them up to the tune of buying a "license" they didn't need...
I'm of course speaking of Microsoft...
How could Redhat conspire with ANYONE?! Did they conspire with IBM to SCO to sue?
Certainly Redhat and IBM will work together in their own defenses (and offenses). They are partners with common interests.
Just as SCO works with (and takes money from) Microsoft and Sun, the two companies with the MOST to lose from Linux...
"A subpoena is a demand for information prior to going to court. It's trivially easy to obtain one (they're not vetted by judges) but failing to comply with a properly filed subpoena is an offence in itself. "
Sure, but it's issued in reference to a LAWSUIT. The DMCA allows the RIAA to issue them without going through the expense (and delay) of filing a suit to get to discovery.
"Yes and no. Why get broadband at all if I can't use the bandwidth? ISPs aren't stupid. They know one of the main drivers of Joe Blow getting broadband is p2p. If you remove that driver, then why should the average consumer buy broadband?"
When I signed up for Adelphia PowerLink, they ADVERTISED fast music downloads...
The ISP almost HAS to stick up for their clients, at least show some resistance. They could face class action suits based on their advertisements.
P2P is the "killer" app that sells broadband at home as something Joe Blow wants...
Otherwise, broadband customers would mostly be techies like us, who love being able to apt-get quickly...
GREAT points.
Until the DMCA has been ruled on by the US Supreme Court, it's Constitutionality is still open for question.
So far, no DMCA case has made it past the low levels of the Federal court system.
Now, don't be TOO optimistic... This court upheld the Sonny Bono Perpetual Copyright Act. BUT, that perpetual copyright coupled with the insane powers the DMCA grats a copyright holder may sway them...
IMHO, I wouldn't have that big a problem with the DMCA if copyright terms were short (say 10-20 years). The way I see it, the LONGER they extend the terms, the more liberal the terms would have to be in order to meet the Constitution's requirement for limits on copyrights...
One method of attack here would be a "due process" argument, that the DMCA's subpoena power violates the Constitution's prohibition of search and seizure, without "due process".
If the RIAA had to file actual lawsuits to get to discovery, before they could subpoena, that would stop this thing cold, as it would increase the hassle and expense 1,000x.
AFAIK, the DMCA has to be the only, if not one of very VERY few laws that allows a PRIVATE entity to curcumvent the requirement to go through courts in a lawsuit to get subpoenas... I don't think the Constitution allows for this.
Subpoena power is very scary. It should be supervised by a court.