Sun Sues NetApp: Says “You Cannot Unfree What Is Free”

Sun is seeking a “permanent injunction against NetApp” to remove almost all of our products from the market place. This is exactly the sort of broad but vague threat that gets people so frustrated with patent litigation. (The timing is no surprise: their deadline for responding to our complaint was this Friday.)

I have tried very hard in my blog to be unusually open – very detailed and specific – about how Sun is infringing our intellectual property. I’ve been trying to set a higher standard in how companies conduct patent litigation, and I’m disappointed in Jonathan for not doing better than this. This sounds like Sun’s broad threats when they sued Azul, but in the end, Sun didn’t put Azul out of business or even stop them from shipping products. I’m quite confident that two years from now – or however long it takes this suit to reach court – NetApp will be doing just fine. (For details on how this whole mess started, see my blog post, Jonathan’s response, and my response to him. I won’t revisit those arguments, so if you have comments about who is evil or not, please put them in those posts.)

But from a philosophical perspective, I found one part of Jonathan’s post especially interesting:

NetApp’s objectives were clear - they'd like us to unfree ZFS, to retract it from the free software community. Which reflects a common misconception among proprietary companies - that you can unfree, free. You cannot.

Jonathan seems to be arguing that once something has been put into open source, it is beyond the law. I disagree completely! To get us away from the details of Sun and NetApp’s particular case, let me make an analogy.

Suppose that I steal and then open-source Jonathan’s patented recipe for chocolate chip cookies. The recipe will probably live forever in the web. There is no getting those bytes back, and if it’s a good recipe, there is no stopping individuals from baking those cookies.

On the other hand, if I start a company to sell Jonathan’s Patented Cookies™, then it’s perfectly reasonable for him to ask me to stop. (Let’s just assume, for the sake of the analogy, that he’s got a valid patent.) Or if Nabisco starts selling Jonathan’s Patented Cookies™, it’s perfectly reasonable for Jonathan to ask them to stop. It isn’t a question of trying to unfree what’s free, or retracting the recipe from the free recipe community. It’s a question of whether corporations must obey the law.

Jonathan’s claim that “you cannot unfree what is free” sets a very dangerous precedent. It says that you can steal anything, as long as you open source it afterwards. That can’t be right! I do understand that many open source proponents argue there should be no legal protection at all for information. “Information wants to be free.” But even if Jonathan believes that, he ought to wait until the law changes before taking Sun down that path.

One of the most important rules of open source is that you must only give away things that belong to you. If protected information does leak into open source, it will probably live forever in the web, but that isn't the issue. To me, the issue is that large corporations should stop making a profit on protected information that doesn't belong to them. That's what we're asking here.

Comments

[inomiad]

"It says that you can steal anything, as long as you open source it afterwards. That can’t be right!"

"One of the most important rules of open source is that you must only give away things that belong to you."

Please. ZFS doesn't include a single line of code by you. You don't own *any* copyrights to *any* ZFS code.

Gladly, *and for good reason*, software patents don't apply here in EU. They're just absurd.

[retiarius]

Aside from looking like a kettle calling the pot black,
did NTAP read the infamous Gary Reback story about
the IBM/Sun patent shakedown before filing the patent suit?

http://members.forbes.com/asap/2002/0624/044.html

These are no win situations.

-- retiarius

--------------------------------------------------------------
The Forbes article was a great read. It described exactly how it felt when Sun came to us demanding payment. The irony is that in the Forbes article, it was IBM going after Sun, but in our case, it was Sun that sent the team of lawyers requesting payment.

-- Dave Hitz

[webster]

You presume that "steal" part.

Organizing and backing up documents is a sound business method and practice.

If you think of a good way to tell a computer to do this in a particular language, you should do something to protect that particular method. Copyright would be good.

If someone uses different language and instructions to do the same thing, they can protect their method the same.

That's two ways of doing the same thing. Where does the "stealing" come in?

There is nothing unheard of in prescribing a file format and then manipulating it to write and copy on interconnected hardware devices.

Your language or code is unique and innovative, organizing files is not.

When you claim a patent on a method, you can claim "theft" by anyone that performs the same method in a totally different language and way, even when that other person has never seen your specific langauge. He may not even speak it.

So when you scream "theft", you are really claiming that your patent blocks anyone else that tries to do the same method with whatever language.

Your motives are suspect. You're permitted to exist and operate on the Monopoly OS. Get out of Court and back to work. There is a new system coming that will out-perform ZFS and NetAPP someday. Do you plan for your patents to cover that? Don't miss out.

[Raja]

You say "Suppose that I steal and then open-source Jonathan’s patented recipe for chocolate chip cookies. The recipe will probably live forever in the web. There is no getting those bytes back, and if it’s a good recipe, there is no stopping individuals from baking those cookies."

I am not a lawyer, but does this not go against the Open Source principles? Since the recipe is available for everyone, but the Copyright rests with Jonathan, can he not claim that you stole it from him and hit you with theft of the IP under the existing Copyright laws?

Just curious...

[Private]

Despite all the rhetoric, you are the plaintiff in this lawsuit, and began this lawsuit.

If you'd taken 10 seconds to check with any engineer at almost any company, they could have told you this simple fact. Almost all computer software and operations infringe an enormous number of patents.

What did you expect sun to do after you filed suit? Sit around? Please. And you claims that you simply seek declaratory judgment of non-infringement is transparently false, as anyone who reads you actual complaint will see.

SUN has hasn't picked up a lot of open source traction, perhaps because they are using the CDDL rather then dual licensing with the GPL (they have some bogus "we give you more" excuse for that, when it's clear the community would like a version with less).

But this is clearly going to a test. Will the company that files patent litigation over relatively common computer methods prevail. Or will they be hoisted on their own petard.

If I was a NetAPP customer I'd hold off any major NetApp investment. These things never end well for anyone. I wouldn't be surprised if we see others come out of the woodwork with more patent litigation for netapp, a la the NTP patent mess.

[Joe]

Stating Sun is "stealing" cookie recipes or anything else is really a stretch. It is one thing to say someone is infringing your patents, but quite another to accuse them of stealing.

But what is even more curious to me, after reading Sun's lawsuit filed today, is that NetApp was accused of stealing the trade secrets and technology of another company before filing for the patents, settled that lawsuit by paying big bucks, and never told the patent office about it, which could mean trouble.

See:
In July 1994, The Whipsaw Group joint venture and its
Case 9:07-cv-00206-RHC Document 25 Filed 10/25/2007 Page 34 of 64

-35-
individual members filed a lawsuit against NetApp, Michael Malcom and other defendants. Mr.
Malcom is named inventor on the ’292, ’211 and ’352 patents. The lawsuit alleged, among other
claims, misappropriation of trade secrets. On August 14, 1996, NetApp and its insurers agreed
to pay $4,400,000 to settle the litigation. The subject matter of the litigation concerned the
origin, inventorship and ownership of file storage technology, including technology substantially
similar to that disclosed and claimed in the asserted ’292 patent. Upon information and belief,
information highly material to the patentability of one or more claims of the ’292 patent was
received and known by NetApp and Mr. Malcom leading up to and during the course of the
litigation. NetApp and Mr. Malcom did not disclose this highly material information to the
USPTO during the prosecution of the ’292 patent. Nor did they disclose the existence and nature
of the lawsuit to the USPTO during the prosecution of ’292. The ’211 and ’352 patents are
related to the ’292 patent, and NetApp and Mr. Malcom also failed to disclose this highly
material information during the prosecution of those patents. On information and belief, NetApp
and Mr. Malcom withheld this highly material information from the USPTO with the intent to
deceive the USPTO.

So what say you Dave? What's with all these "stealing" claims? Perhaps you should think twice before hurling such accusations.

[Private]

One additional comments

Actual legal docs here it seems:

http://blogs.sun.com/dillon/resource/SunAnswer.pdf

Should be interesting to watch this!

[max]

webster,

You stated:

When you claim a patent on a method, you can claim "theft" by anyone that performs the same method in a totally different language and way, even when that other person has never seen your specific langauge. He may not even speak it.

Did you know that Matt Ahrens (one of the core ZFS developers) worked or at least was an intern at netapp in the File System group?

Isn't it weird that ZFS pops up out of Sun, a company who never wrote a file system (in fact, they'd rent out VxFS) and it looks, smells and feels exactly like WAFL?

Silicon valley is an incestuous place work wise, but I think it's a bit odd that ZFS is closer to a WAFL implementation than say a traditional VxFS setup?

[Trent Black]

anybody, that files a lawsuit, and is taking on sun and groklaw, and open source, to protect, basically, math, is crazy.

you will soon be a house hold name, of one of the bad guys. do you really want that?

do you want to be the next SCO? do you really want to go against a whole community to try and protect a business, that you should be innovating instead of trying to enforce math on something that most view as something that would be invented one day anyway?

[Private]

Max,

An interesting post actually. Sun is not an open source golden child yet. I think IBM has built a lot more cred, they actually use Linux / GPL things, and pushed for the Java openness against a very reluctant sun.

It remains to be seen if Sun gets deeply into the open source community, because they currently play on the edge with CDDL lockout.

But the bottom line is they open source a file system, and the community does usually think of alogs and code as basic math, and so is not a big fan of litigation around it.

That said, I suspect we'll discover a fair bit of dirt from both companies through this.

While these guys litigate though, someone is going to be putting together a nice open source file system (btfs from oracle, somewhere else) and when it gains currency someone and then soon everyone will be packaging and shipping the open source SAN solution.

[Stooxie]

For all you people whining about why Sun doesn't use GPL, that was explained here:

http://blogs.sun.com/jonathan/entry/one_plus_one_is_fifty

"Now despite what you suggest, we love where the FSF's GPL3 is headed. For a variety of mechanical reasons, GPL2 is harder for us with OpenSolaris - but not impossible, or even out of the question. This has nothing to do with being afraid of the community (if it was, we wouldn't be so interested in seeing ZFS everywhere, including Linux, with full patent indemnity). Why does open sourcing take so long? Because we're starting from products that exist, in which a diversity of contributors and licensors/licensees have rights we have to negotiate. Indulge me when I say It's different than starting from scratch. I would love to go faster, and we are all doing everything under our control to accelerate progress. (Remember, we can't even pick GPL3 yet - it doesn't officially exist.) It's also a delicate dance to manage this transition while growing a corporation."

In otherwords, because Sun is a commercial entity that is releasing its already-commercially-licensed products in to the community, it ain't so cut and dry.

It's ok, let all the arm-chair commandos tell Sun how to run its business. We've kept our sh*t clean for over 20 years now. How many other companies can claim that?? We've had some legal scuffles but not a single one has had a lasting negative impact. People thought the suit against Microsoft was sour grapes until we walked away with 2 billion bucks and an agreement to work together.

Sun is stronger than ever and its because of iron clad ethics and relentless innovation.

Where exactly would NetApp be without NFS? Every penny NetApps makes is thanks to Sun.

[Kevin Graham]

What licenses are it that Sun's threatening to revisit? I had thought OnTAP was derived from NetBSD, which would've picked up the NFS implementation from Sun's contributions back into 4.3-Reno and 4.4-Lite, where they very unambiguously would've relinquished rights.

I don't know enough IETF history to know where these older RFC's fall under IETF's license stance, but its not clear what else is left encumbering OnTAP?

[James]

You write "I’ve been trying to set a higher standard in how companies conduct patent litigation".

Tricky; most, though not all, software patents are against the interests of society. Litigating over any but the most innovative is particularly harmful as it adds to the general atmosphere of fear of patents which restricts most innovators. If you want higher standards, you'll litigate less and innovate a *lot* more instead. Competition from OSS might force NetApp to do so.

Filesystem design has moved on a lot in the last 10 years. Journaling, snapshots and other robustness features have gone from being research items (before NetApp used them, I suspect) to being ubiquitous. SO far as I've seen, NetApp's successes have largely come from its business model, not from technological innovation.

[Private]

Stooxie,

"For a variety of reasons" is one of the most general answers I have ever seen. Having actually read other posts about the GPL and how the CDDL gives folks "more" I'd simply suggest looking at GPLv3 and GPLv2, and then dual licensing ZFS into one of those. Overnight, you'll have greater adoption. Do you remember the Java "ethics". I certainly do, and all the folks who had to reinvent wheels because Sun kept on changing it's position and breaking its promises.

[Private]

Stooxie,

"For a variety of reasons" is one of the most general answers I have ever seen. Having actually read other posts about the GPL and how the CDDL gives folks "more" I'd simply suggest looking at GPLv3 and GPLv2, and then dual licensing ZFS into one of those. Overnight, you'll have greater adoption. Do you remember the Java "ethics". I certainly do, and all the folks who had to reinvent wheels because Sun kept on changing it's position and breaking its promises.

[Private]

Stooxie,

"For a variety of reasons" is one of the most general answers I have ever seen. Having actually read other posts about the GPL and how the CDDL gives folks "more" I'd simply suggest looking at GPLv3 and GPLv2, and then dual licensing ZFS into one of those. Overnight, you'll have greater adoption. Do you remember the Java "ethics". I certainly do, and all the folks who had to reinvent wheels because Sun kept on changing it's position and breaking its promises.

[Jimbo]

Just because Azul didn't go out of business, doesn't mean you won't. Sun can live without ZFS, but can you without all of your products? Remember, Sun has a *huge* patent portfolio...

Nice job in attempting to distort facts Dave, as if you know anything about the Azul settlement. Perhaps this is why Azul is not out of business:
http://www.theregister.co.uk/2007/06/20/sun_azul_stock/

Your blatent attempt to distort facts, and cherry pick your press links to support the ridiculous path NetApp has embarked upon is frighting because of its pure stupidity

[The People]

The court of public opinion hereby judges you and NetApp guilty of patent trolling. Immediate punishment shall be lost mind and market share for NetApp for an indefinite number of years to come. Congratulations.

[Bill Todd]

Too bad, Dave: trying to explain this rationally to the analytically-impaired seems to be about as effective as trying to explain to the Great Unwashed a few years ago why invading Iraq was a very bad idea. The New American Way is apparently to substitute prejudice for fact and greed for rights: people here seem to be as convinced that they have a 'right' to free technology (regardless of who actually owns the rights to it) as music pirates are of their 'right' to free (copyrighted) music (and consumers are of their 'right' to cheap oil regardless of whose sand it happens to reside beneath), and anyone who dares to point out that the law says otherwise is accused of being anti-social.

I guess the idea that one should live within the law until one actually succeeds in getting the law changed has gone completely out of fashion. If one is convinced that software patents are "against the interests of society", then that appears sufficient to condemn any who seek to enforce such patents (except Sun, of course, since their attempt had not reached an actual courtroom proceeding but was only the implicit threat of one, so that's all right then). Observing that some people feel that *all* private ownership is "against the interests of society" would probably go right over their heads, of course.

I had hoped that you and Sun would manage to work out a sensible agreement in this matter, but am now beginning to think that (assuming that your basis for legal action is as sound as I suspect it is) it might be better to hold your ground and hang Sun (and its supporting zealots) out to dry. Somebody needs to learn a significant lesson here, and better now than later.

- bill