To NetApp Employees and Customers on Sun’s Lawsuit

[Note: This is an e-mail that I sent internally to our employees, with the expectation that they might also share it with customers. Some of it repeats previous posts, but other parts are different. In the spirit of openness, I decided to post here as well.]

To: everyone-at-netapp
Subject: Sun's Lawsuit Against NetApp

This morning, Sun filed suit seeking a “permanent injunction against NetApp” to remove almost all of our products from the market place. That’s some pretty scary language! It seems designed to make NetApp employees wonder, Do I still have a job? And customers to wonder, Is it safe to buy NetApp products?

I’d like to reassure you. Your job is safe. Our products are all still for sale.

Can you ever remember a Fortune 1000 company being shut down by patents? It just doesn’t happen! Even for the RIM/Blackberry case, which is the closest I can think of to a big company being shut down, it took years and years to get to that point, and was still averted in the end. I think it’s safe to say the odds of Sun fulfilling their threat are near zero.

If you are a customer, you can be confident buying NetApp products.

If you are an employee, just keep doing your job! Even if your job is to partner with Sun, keep doing your job. Here’s a ironic story. When James and I received the IEEE Storage Systems Award for our work in WAFL and appliances “which has revolutionized storage”, it was a Sun employee who organized the session where the award was presented. He was friendly, we were friendly, and we didn’t talk about the lawsuit. You can do it too. The first minute or two might feel odd, but then you’ll get over it. We have many joint customers to take care of.

If you are a salesman with concerned customers, feel free to show them this note, and maybe also point them at a couple of my blog posts (here and here). But don’t waste too much time before getting back to how we can work with them to solve their storage and data management problems.

I am frustrated with Sun and with Jonathan, as I describe in this blog entry. We have tried to be very open, detailed and specific about how Sun is infringing our intellectual property. We’ve tried to set a higher standard in how companies conduct patent litigation. It’s frustrating that Sun would just do a two-barreled blast, threatening to shut down our company. Frustrating and silly, to be honest, because it’s just so unlikely for a patent case to shut down a major corporation.

The other thing that’s frustrating is the way Jonathan wraps himself in the open source flag. We aren’t against open source, and we aren’t even against non-commercial use of ZFS. The number one rule of open source is that you should only give away stuff that belongs to you. That is what this suit is about, and everything else is just fluff.

Comments

[Anonymous]

That's just stupid what NetApp is doing...

[Benjamin Henrion]

"The number one rule of open source is that you should only give away stuff that belongs to you."

Can you explain a bit more what you want to explain here?

[Jai Hyuk]

You try to make out that the 'infringement of IP' necessitates the decision to sue Sun. This is garbage. These days, everyone infringes everybody else's patents, whether they know it or not. You can always play nice, cross license, whatever. Or you can get mixed up in this kind of thing.

What's 'Frustrating and silly' is that you feel that waving a somewhat weak set of patents in the air demonstrates that you 'tried to set a higher standard'. Actually, scratch that - it's beyond silly. it's just laughable.

I hope you're convincing yourself, because you're not convincing anyone else.

[Dalibor Topic]

It seems that the only thing that stands between open source software like ZFS potentially infringing on your patents and you are your patents.

Why don't you grant an irrevocable permission for open source software to use whatever patents NTAP has, like IBM, Sun, Microsoft, etc. have done for some of their pools?

Open source is not just for non-commercial use, these days. Adapt.

[Michael H.G. Schmidt]

NetApp products are using NFS which was invented by SUN. You want to make me believe that using NFS without paying is better than that what SUN does thes days ?

Are you kidding ?

[TM]

I read the comments in this thread (and the other related posts) and just shake my head. It's the same old story time and time again. You open source folks just go on one emotional, illogical rant after another. What planet do you people come from? You think "free" trumps "legal" - but it doesn't, and hiding behind this “open source” smoke screen in order to rally your hippie band of brothers doesn’t make it right.

I'll bet you have hundreds of illegally obtained (stolen) songs on your iPod - and that you find it outrageous that musicians actually try to charge for the music. Damn those musicians for trying to make a living! - is that how it goes? What's mine is mine and what's yours is mine too, is that the program? You need an explanation of what "you should only give away stuff that belongs to you" means? What part of you can't take something that I own without my permission (a.k.a. "stealing") don't you understand? OK – let’s reduce it to the ridiculous: Stealing is a bad thing to do. Is that more clear for you?

You scream to make your point because your argument is based on fluff and emotion – not facts or common sense – and you’ve little choice but use rhetoric, brute force, threats and intimidation. "Oh, big bad naughty NetApp…shame on you….we'll show you...we'll never buy another filer!" Right. A thousand bucks says you've never bought one before this.

Guess what? We all like free stuff. I think paying my mortgage sucks. They have government-provided, free housing in Cuba - and I guess I could move there if I'm sufficiently disturbed about writing my check to the bank every month. Revenue and profits are not obscene words. Companies need them in order to give people like you jobs and benefits. Does your company give its products/services away for free? Does it have any intellectual property? Has it ever had to litigate to protect itself? Thought as much...

News flash: This country has a thing called a legal system. It's there for a reason. And this “legal system” thing will strip out all of the emotion that's got your sort all fired up (which will suck for you as when all the b.s. is stripped away, there won’t be much of anything left…) – and it will make a decision based on things called facts and rule of law.

I would imagine most NetApp customers are business people who understand these sorts of blitheringly obvious concepts - despite how alien they seem to you folks in the open source community.

[jv]

Hey there TM,

I think you are getting WAY ahead of yourself with your mighty indignation. Nobody has proven that anyone "stole" anything at this point.

Also, you do yourself no favors by trying the age old tactic of branding all people you don't agree with as open source hippie commies.

NetApp has decided on a very dangerous course of action, when I think most sane folks would agree that there were better alternatives.

[Yet another Anon]

Despite Bill Todd's and TM's rational discussion here, it's quite clear this comment forum (as with practically all others related to this matter) have become areas for pompous, self-righteous anonymous cowards to vent their empotional and irrelevant "free love and software" rants.

To expect anything more than free entertainment from these comments is both sad and incredibly naive.

I'm just happy to tip the scales of anonymous posters somewhat towards the balance of reason - and of course to be amused by all of this mindless blathering.

[max]

The funny thing is that the people ranting aren't "real" free software types.

Sun strong arms other companies with their patent portfolio all the time (see Azul). The best defense is to have one of your own.

I'm certain NTAP would have never gone down this road if STK/Sun would put their own patents where their mouth is and cross licensed without demanding $36 Million from NetAppzzz (sorry, was channeling Schwartz's inability to spell.) NTAP can't *SAY* that for legal reasons, but I'm pretty sure that would have been the case.

I digress. This isn't about Open Source, I don't really consider CDDL "Free" and neither do most other folks.

Oh, and BTW, Sun's implementation of NFS always kind of mediocre. A lot more people (, esp. NetApp worked hard to make it what it is today. Mostly while Sun was riffing employees.

I would also note, yet again, that Sun does *not* have a long history of Storage innovation. UFS was the best they'd offer for a file system by default, and they sell other vendors gear at the high end. Having the "magic" ZFS file system appear out of the blue has always been fishy to me.

I doubt any of your Open Source types were cheering when MS released IE for "free" in order to cripple Netscape, FWIW.

Letter to net app employees

Get a new job. Don't work for this idiot.

[Jai Hyuk]

In my country there is problem,
And that problem is open source,
They take all of your IP,
They never give it back.

Throw open source down the well,
So my country can be free!
You must grab him by his code
then we have a big party!

chenquieh.

[DevNull Pointer]

I can't help but wonder who Dave is really posturing for when you read the open letter to all employees. Do you really think it helps employee morale to remind them more than once that a patent lawsuit will not hurt your business ? Or maybe if you repeat the defensive posturing enough people might believe it. I really think its a cheap stunt to appeal to the court of public opinion outside of the company since Netapp monitors its employees email traffic and folks who know better will remain mute until the judicial system sorts the facts and decides the case. When you miss the paradigm shift its one thing to acknowledge, adapt and move on but its another when you plead ignorance and ask for judicial mercy. The latter is a recipe for your customer base to look elsewhere for their data management needs.

[Bin-LInux]

Yeah,

bloddy netapp Sued themself and been now target for Cut of market by theire own !

Cool !

Thanks netapp.

[Private]

What's weird about TM and Bill's posts is that they demonstrate a real ignorance of the open source community. I'd suggest that the open source community has a better grasp of legal code rights then most.

The point people are making is not to "break the law" or free trumps legal. It is simply this. This NetApp Lawsuit is bad for NetApp, it's employees and customers strategy wise, assuming the law is APPLIED.

What the smarter employees should be doing is saying, will I have fun working at a patent troll, or would it be more fun to team up with a bunch of great coders and create a filesystem that everyone would use.

IBM, Oracle, RedHat all would probably jump at the chance to develop towards a common open source file system.

The other thing this patent is doing (have seen it already) is making people think about the open source alternatives to NetApp's filers. It legitimizes the competition.

[Bill Todd]

Au contraire, 'Private' (funny how so many of you 'freedom fighters' don't have the stones to publish under your real names): TM and I apparently know you better than you know (or at least are willing to acknowledge) yourselves.

Anyone with an ounce of objectivity can see that what you're spouting here is not kindly concern for NetApp's welfare but what you feel to be righteous indignation - and the latter is clearly only justifiable if one indeed holds to the belief that free trumps legal. Any sane assessment of NetApp's fiduciary responsibilities to its shareholders and for that matter to its customers (who enjoy some degree of competitive advantage due to the superiority of NetApp's products) dictates that if NetApp had not decided on its own that open-sourcing its IP was in its best interests then allowing that to be done by Sun would constitute negligence.

Unless, of course, one holds to the belief that a disruptively-vocal minority should be allowed to hold one's business hostage - which I'm glad to see that NetApp apparently doesn't.

Your own choice of language betrays you, you know: look up 'patent troll' and you'll see that NetApp meets *none* of the conventional criteria justifying that characterization - but Sun does, at least in the aspect of having attempted to extort money from NetApp. This kind of blatant misapplication of pejorative terms is a prime indicator of someone with an agenda rather than a legitimate argument (and one of the more disgusting aspects of American politicians these days - hope you like the company you're keeping).

Not that you have all that many good things to say about Sun, of course: your agenda is clearly abolition of software patents in general. I even happen to agree with that agenda, but that doesn't mean I'll give you an inch if you pursue it via inappropriate means.

Flaying NetApp for its behavior here is indeed inappropriate: the only issues are whether its patents should have been granted and actually apply, and if NetApp believes both then its pursuit of this is an absolutely legitimate and honorable course for it to take. You've been rather cavalier about suggesting that the patents should not be held to be enforceable, but awfully light on the excruciating detail required to support that assertion - again, typical behavior of someone on a mission who isn't about to let facts stand in his way.

That being said, you've been less off-the-wall than some of the other zealots here, who do things like confuse patents with copyrights. You might even have a chance at viewing this more objectively if you were willing to get off your high horse, take a deep breath, and try to see the other side of the debate.

Are you up to that?

- bill

NetApp = SCO..
congratulations Dave.

[Jai Hyuk]

From Bill:
'...only justifiable if one indeed holds to the belief that free trumps legal'

There's another possibility: that one has less confidence than you do that the patents in question ARE, in fact, valid and legally enforcable.

What is 'legal' will be decided by the courts. It may be that 'legal', to everyone's delight, trumps 'patent litigation foolishness'.

[Max-fan]

@max

You've just got to love "max" - all these unsubstantiated claims - Sun's NFS being mediocre.
If I didn't know better, I'd think he was part of the deadwood that Sun threw off.

Sounds a bit bitter and unobjective really.

Fishy? Perhaps if you'd bothered to check, ZFS has been on the engineering desks for a good number of years - mentioned in many blogs and mailing lists. Just because you've not heard of it doesn't mean it doesn't exist. Despite what your mother said, the world does NOT actually revolve around you.

And just because you obviously don't know Sun's portfolio, doesn't mean that the innovations aren't there. You really should check your facts so that you don't end up looking like a "retard" - a term I've seen you use on a number of occasions.

It's a pity you can't channel anyone's ability to bring a cohesive argument to the table.

[Kevin Hutchinson]

I really think you'd do best to call off the patent war, and just claim that WAFL is the best option for customers and that's why you charge $$$ for it. It would be an honorable climb-down. By pursuing ZFS, you're giving Sun a great excuse to drop a bucket of FUD over your company and customer relationships, and they appear to be the victim at the same time. For Sun it's a win-win. I'm just calling it as I see it - no particular interests here, apart from a few JAVA shares.