Monday, September 13, 2010

NetApp and Oracle have settled the ZFS patent lawsuit

I read today that NetApp and Oracle have settled the ZFS patent lawsuit.

If you'd forgotten about this lawsuit, it involved a dispute between Sun and NetApp regarding patent infringement.

It's always a bit strange when companies which spent years suing each other over patent infringement quietly settle the case; it's hard to understand what was really decided. But this particular lawsuit was interesting because it featured one of the more famous blog posts of the time, three years ago, when Jonathan Schwartz notably said "we didn't file an injunction to stop competition - instead, we joined the free software community and innovated". Schwartz's post was much-remarked upon, in particular, for how open he was about the real use of patent law in the software industry nowadays: "we've always protected our markets from trolls ... we file patents defensively ... we're going to use our defensive portfolio to respond".

At the time, Schwartz promised:

In addition to seeking the removal of their products from the marketplace, we will be going after sizable monetary damages. And I am committing that Sun will donate half of those proceeds to the leading institutions promoting free software and patent reform (in specific, The Software Freedom Law Center and the Peer to Patent initiative), and to the legal defense of free software innovators. We will continue to fund the aggressive reexamination of spurious patents used against the community (which we've been doing behind the scenes on behalf of several open source innovators). Whatever's left over will fuel a venture fund fostering innovation in the free software community.

No mention of that outcome in Friday's press release(s), however.

Meanwhile, it's interesting to see a lot of activity regarding patents and software licenses recently. For example, the Mozilla legal team have recently announced the latest draft of the new Mozilla Public License, noting that:

The highlight of this release is new patent language, modeled on Apache’s. We believe that this language should give better protection to MPL-using communities, make it possible for MPL-licensed projects to use Apache code, and be simpler to understand.

Also, and (I think) unrelated, Google announced last week that they are changing their policy about how they handle licensing on their Open Source project hosting site,, although they qualify the policy change with the observation that:

we felt then and still feel now that the excessive number of open source licenses presents a problem for open source developers and those that adopt that software

Of course, the confusion over the actual meaning of software licenses is not limited to Open Source software; people are equally confused about the meaning and implication of commercial software licenses. A major court case in this area was just resolved last week, when the 9th U.S. Circuit Court of Appeal issued its ruling in the case of Vernor vs Autodesk. Over at TechDirt, Mike Masnick has the full ruling, as well as a lot of discussion and analysis.

Not that I understand a bit of this (I'm much better with code and algorithms than I am with intellectual property law and public policy issues), but it would be premature to close this blog posting without noting the wild story in the New York Times this weekend regarding the Russian government's apparent use of software license infringement law as a technique for cracking down on politically-unpopular groups:

Across Russia, the security services have carried out dozens of similar raids against outspoken advocacy groups or opposition newspapers in recent years. Security officials say the inquiries reflect their concern about software piracy, which is rampant in Russia. Yet they rarely if ever carry out raids against advocacy groups or news organizations that back the government.

As the ploy grows common, the authorities are receiving key assistance from an unexpected partner: Microsoft itself. In politically tinged inquiries across Russia, lawyers retained by Microsoft have staunchly backed the police.

These are all hard, complex issues, and, to their credit, many important people appear to be thinking about them. Hopefully we are making progress in figuring out how to manage these problems. I guess I'll just try to keep reading and learning and trying to understand...

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