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

[Jai Hyuk]

Bill Todd,

You forgot to mention Hitler and pedophiles in your rant.

Dave Hitz,

The thing that get people 'frustrated with patent litigation' is when companies initiate patent litigation. RIM vs NTP, anyone?

[Anon.]

"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."

Yes, in the US patent courts, it did go out of fashion for a while. They started approving illegal patents left and right, and forcing the Patent Office to do so as well.

Under US law, it's pretty damn clear that nearly all, if not all, pure software patents are invalid: they're attempts to patent pure mathematics (which is specifically excluded), they routinely patent problems rather than solutions, they are not written to allow people to implement them (so they don't really provide the disclosure legally required), most of them are obvious to a person skilled in the art, and on top of that the vast majority were anticipated by prior art. The courts devoted to patent cases just got coopted by patent attorneys (whose interest is usually in maximizing number of patents) and allowed this junk to issue. The Supreme Court has been pushing back lately.

The asserted NetApp patents in particular have some especially obviously invalid claims, for which there is prior art, which claim problems rather than solutions, and which were patently obvious to anyone in the field.

Oh -- it's also very, very suspicious that you're filing suit in the infamous "patent troll court".

Good luck to you killing Sun's invalid patents. Good luck to Sun killing your invalid patents. Best thing that could happen would be if all the involved patents were thrown out.

[Fran Taylor]

Oh please. You guys are two heartbeats away from losing your business to Samba. This is a hail mary pass worthy of Doug Flutie. You build your product around Free Software and then you turn around and attack it. You should learn from SCO. Free Software will defend itself en masse, your patents will be torn to shreds, and you won't even have your reputation left when it's done.

[TommyB]

I find the fact that Netapp filed suit first very telling. Dave can talk about cookie recipes all he wants but to me it sounds like Dave is just trying to keep other companies from baking a better (and less costly) cookie.

This sounds like the beginning of the end for Netapp. And not due to the Sun lawsuit. The act of filing his initial law suit is the act of a desperate CEO.

[Private]

Actually, most of us believe in living within the law.

The law says there are a lot of patents. The law says you can choose whether or not to file suit. And finally, the law is going to determine the "winner" of this lawsuit.

Why is it that the companies actually innovating are rarely suing... oh right, because they are innovating.

Trying to explain this rationally to the analytically inclined is pretty much doomed :) I'm reminded of all the speeches are dear politician's gave for invading Iraq. That was a "preemptive" war as well.

NetApp is going to find it's preemptive war is about as successful. And the open source has heard Bill's communist type allegations before. Believe it or not, the open source community is well versed in various forms of code ownership and law, the very same open source code NetApp used to get started.

Be interesting to see how NetApp's stock's going to trade since their announcement. I suppose that if they actually had a strong case and would win big their stock would go up.

I don't see anything in this complaint that is going to "hang sun out to dry". Huh? This is about ZFS I believe. Even if Sun loses, you don't think they can adopt their management tools to some other file system? Please. I love the talk about teaching lesson's and hanging people out to dry.

[Private]

I have no idea about the merits of this case. Maybe SUN is right, or maybe not. But regardless of who's right or wrong, this just spells confusion and trouble for both SUN & NetApp customers until the case is resolved. I'll bet that EMC, HP, HDS, and other vendors must be rubbing their hands in glee at this opportunity. And of course the lawyers.

By the way, it just seems like SUN has been getting increasingly involved in several patent as well as other lawsuits in recent years. From big company (Microsoft -- http://www.news.com/2100-1001-856678.html) to startup (Azul -- http://www.eweek.com/article2/0,1759,1957359,00.asp) to the Government (US DOJ -- http://www.infoworld.com/article/07/04/19/HNdojjoinshpsunlawsuit_1.html). Maybe they just have a lot of good lawyers and find reasons to keep them busy.

[Peter C]

I think people here are looking at the problem from the wrong angle.
AFAK the entire issue started with Sun's claim against NTAP for using technology they claimed was the IP from StorageTek. Then this went from bad to worse.
Please understand that NetApp is NOT procecuting the open source community by any means. I fully agree with the fact that not Sun but Netapp should have given the filesystem to the community since they "owned" the IP. Sun made a great move here : creating a filesystem that is almost WAFL, then give it to the Open Source community so that further development on the filesystem is almost free for them, and then competing against NetApp by selling a cheap solution with OS technology. Wops...
NetApp has spent a lot of money on R&D on WAFL, so I think it is just normal NetApp gets paid for that. ZFS for the Open Source community is free, but is it that weird that for commercial use of ZFS NetApp asks to be compensated? They were the ones that have spent money and time on making and enhancing a great filesystem. Grabbing that research and then use it yourself for free is not a noble thing. Sun made stealing acceptable by giving it to the Open Source community. They would have been a kind of Robin Hood if they would not have used it for their own commercial benefit.

This is not like the beginning of the end for NetApp at all, and I am sure NetApp is not desperate at all. I am told that this childish way of filing law suits against each other is the "normal" way companies are talking to each other. There are enough examples you can find. But this is not like the SCO law suit at all! Stick to the facts here. NTAP is not fighting the Open Source community in any way. SCO did. This is only a legal battle between two major companies.

[Mark]

Max,

In all my years of following the computer industry, I have noticed that innovative companies compete by building better products that customers want to buy.

When the management can't figure out how to innovate anymore, they start suing people for patent violations.

Regardless of the merits of your lawsuit, you're sending a signal to everyone that says "We've run out of new ideas and can't think of a way to make money by building products people will buy. We'll keep the money coming in by suing people instead."

Good luck with that.

[Mikel Manitius]

Software patent? LOL!

And who created NFS?

[Anonymous]

Most of us live within the law, just like most of us drive the speed limit. Individuals tend to do what is best for themselves as long as they don't believe it's hurting anyone else. Companies tend to do anything that they think they can get away with. As for stealing, doesn't that require that you deprive the victim of something.... making a copy does not deprive anyone of the original.

[BongHit4Jesus]

Patenting thought as that's what software is, i.e. process, method, mathmatics, language, is patently stupid!

One of several issues in this country that makes one wonder about the sanity of the people running it!

[Dalibor Topic]

It seems you've successfully managed to tag NTAP as the next SCOX. Congratulations.

[Vexorian]

You know, if patent litigations are so frustrating, you should avoid to behave like a patent troll...

And BTW, do you really think requiring javascript prevents bot attacks? It has just annoyed me, a non-bot commenter rather than prevented any attack. A bot developer can add a javascript interpreter, you know...

[Vexorian]

Yes, that sun blog seemed desperate to make the open source community join the issue.

But regardless of that, this page: http://www.sun.com/lawsuit/zfs/ seems to have convinced me that your claims are not good to approve, and that it would be terrible if you won.

Law is one thing but I think that claiming you own IP over that stuff is just crazy... I guess I am now able to understand how senseless software patents are...

[private]

This one is a must read and almost sounds like something out of Ripley's Believe It or Not:

"IBM patents making money from patents"

http://www.theregister.co.uk/2007/10/24/ibm_patents_patents/

Where does the world go from here?

[Eduardo]

Hey Dave, here's a question for you. What do you think of Microsoft's tactic of claiming that Linux violates it's patents, but without disclosing specifically what patents and what parts of Linux? Do you think it is a legitimate strategy?

[NoMorePatentTrolls]

Here's the kicker for James in regards to *Software Patents*. See, even in the U.S.A., there's no such thing as a software patent. There are *device* patents that discuss how the *device* uses methods and ideas to implement some *thing*. If the patent is worded to specifically state *software*, it's automatically rejected.

[DrFrost]

Like a lot of people in this industry, I think software patents are a bad idea. And we're now reaping the "fruit" of this fundamentally flawed process.

The entire idea behind patents was to protect innovation, and now large companies with large patent portfolios are using it to stifle innovation.

Unfortunately the system is horribly broken at present and most of the patents granted are entirely too obvious to ANYONE reasonably skilled in the art. It's ridiculous.

[Dr Whizzit]

"Jonathan’s Patented Cookies™

In an attempt to make some analagy aboput patents, it looks like you have accedentally misplaced it with everything but. The act of stealing the recipe would have to do with industry espionage and trade secrets.

So instead of educating us about IP, you have only managed to demonstrate your own confusion about intellectual property in general. Patents, copyrights, and trademarks , and trade secrets have very different laws governing them. If you want to make analogies, better stick to one. One can say Jonathan made a similar mistake, since software is most often an issue of copyright, and it is how copyrights are granted that makes open software different from proprietary software.

I must however allow myself the prediction that your patent suit will fail spectacularly, and that you are risking your company's survival on an ill-advised sucker bet. And even if you were to win in litigation, your company stands to lose even more in goodwill.

Especially after that the country's top court has made it much easier to challenge bad patents. So not only do you now risk losing the patents that you hold. You increase the risk of being patent-attacked by other storage vendors, since you will have fewer defensive patents in your arsenal.

I have also seen the claim that Sun started this whole thing. However, the story I hear the most is that once upon a time, Netapp approached via strawmen STK to purchase a patent. STK declined, but figured Netapp probably was violating the patent, and started demanding royalties. Netapp never paid up or reached an agreement on reasonable terms, and finally, now Netapp has brought this to court as a patent suit.

Bad idea. Do you have any idea what lawyers cost these days? Read Bleak house, and ponder the folly of those who think the legal system is a good way to resolve conflicts. Also read any biography on Mark Twain (Samuel Clemens), who had a naive faith in the ability of courts to put things right for him. He was quite the suing machine. Pun intended.

I don't think Netapp are evil. I just think they are confused about IP, and naive about law.

AND IANAL of course.

[A.B.]

Very well put. My first thought was "hmm, Sun standing up to some IP lobbyist-types". Your response leaves me with a vastly improved feeling about your own reasons, and frankly about you personally. Jonathan appears to be on a smokescreen mission, while you are simply giving a measured and rational explanation of the state of play. Kudos to you.

I'll be intrigued to see how the whole affair plays out.