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Red Hat Fights Patent Troll With GPL 98

Posted by Soulskill
from the mightier-than-the-sword dept.
jfruh writes "Red Hat is in the middle of a patent lawsuit with Twin Peaks Software, which claims that a Red Hat subsidiary is abusing a Twin Peaks filesystem lawsuit. Now, Red Hat is launching an intriguing countermeasure: the company claims that Twin Peaks' own closed source software violates the GPL because it makes use of an open source disk utility that Red Hat holds the copyright on. Is this a smart move on Red Hat's part?"
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Red Hat Fights Patent Troll With GPL

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  • by awkScooby (741257) on Friday September 14, 2012 @03:10PM (#41338517)
    It's a patent RedHat is accused of "abusing".
  • by ZombieBraintrust (1685608) on Friday September 14, 2012 @03:16PM (#41338609)
    Doesn't seem to be a Patent Troll if the company has a product. Trolls are generally Non Practicing Entities. Are we going to start calling Apple, Google, and Microsoft patent trolls now?
    • by jedidiah (1196) on Friday September 14, 2012 @03:18PM (#41338635) Homepage

      Sure.

      A troll is a parasite extracting payment for something that isn't really his.

      • by ZombieBraintrust (1685608) on Friday September 14, 2012 @03:33PM (#41338801)
        No, Troll is not a generic name for an evil company. A Troll is a company whose primary source of income is patent lawsuits. This company doesn't fit that discription. It has another source of income that can be sued. You can't fight a patent Troll with GPL because a patent Troll doesn't have a product that uses GPL. A true patent Troll is just a P.O. Box and a lawyer.
        • Re: (Score:2, Troll)

          by jedidiah (1196)

          > No, Troll is not a generic name for an evil company.

          No. Troll is a metaphor. That part you conveniently ignored in your rush to defend your favorite corporation.

          • Yes it is a metaphor. The troll under the bridge. A threat that is unseen that only exists to attack. My favorite corporation is... Google, McDonnalds, or Sony depending on how I measure it.
            • Yes it is a metaphor. The troll under the bridge.

              Actually no. Troll as used in internet slang is a bastardisation of the word trawl, which means a large industrial scale net dragged along the sea bottom by a fishing vessel.

              On a forum like slashdot, a troll is a user who is fishing for predictable responses by other users. This is analogous to trawling because the troll is targeting everybody, usually with a controversial top level comment, and people get caught up in the resulting flamefest. Also like

        • by r1348 (2567295)

          Are you claiming that SCO wasn't a patent troll?

          • by canajin56 (660655) on Friday September 14, 2012 @04:06PM (#41339169)
            SCO wasn't a patent troll by any reasonable definition of the term. This is not because they had a product for sale, but because they didn't sue over patents.
            • by sribe (304414)

              I believe that at one point, SCO claimed they were going to sue over patents, but then, somehow, never got around to revealing which patents...

              • by sumdumass (711423)

                I think you might have confused Microsoft with SCO. I think they (SCO) even acknowledged MS patents that linux violated but didn't elaborate in an attempt to steer business their way. (Or nam I thinking of Novell?)

        • by sg_oneill (159032)

          I dont think thats a very useful definition. There are many lawfirms that merely act on the request of clients, and largely this is an honorable thing, even if the clients are scumbags (And as has been said, in a just society, even scumbags deserve a lawyer). I dont think such law firms are "trolls", but their primary source of income is patent legal shenanigans.

          I'd suggest a better definition.
          1) Does the IP originate with the litigant?
          if it doesnt
          2) Is it being used abusively.

          If 1 and 2 is true, then its a

          • in a just society, even scumbags deserve a lawyer

            I'm certain that you meant

            in a just society, not even scumbags deserve a lawyer

      • by recoiledsnake (879048) on Friday September 14, 2012 @03:44PM (#41338915)

        Traditionally speaking, a patent troll was an NPE. I HATE rephrasings of meanings, which lead to the exact same 100 comment threads about the following issues:

        1) Open Source vs. open source
        2) Free vs. free vs. libre vs. beer vs. freedom
        3) Stealing vs. Copyright infringement
        4) Patent Troll vs. patent troll

        • by Sigg3.net (886486)

          Some are homonymous, others are not. If you don't differentiate you will not be talking about reality.

    • by bwcbwc (601780) on Friday September 14, 2012 @03:27PM (#41338727)

      In selected cases where the patent is obvious or duplicated by prior art, yes a lawsuit is still trolling even if you actually make use of the invention..

  • RedHat must have known about this before they acquired Gluster ...

    It seems like patent lawsuits are a good marketing strategy these days to get press. Any press is good press I guess.

  • Doesn't matter (Score:5, Interesting)

    by Anonymous Coward on Friday September 14, 2012 @03:17PM (#41338615)

    This is brilliant! Just accuse them of a GPL violation and they'll be forced to prove their source code is different by revealing it.

    It's a wonder nobody has done this before.

    • Re:Doesn't matter (Score:5, Insightful)

      by gomiam (587421) on Friday September 14, 2012 @03:36PM (#41338833)
      I guess the judge would usually consent, in that case, to reveal the code to experts under condition of secrecy. That way, the experts would be able to check whether the copyright allegations have any base and the code, should it not be infringing, would still stay closed.

      Even if the code was considered infringing, it would only need to be revealed to those customers that asked for it before three years (since the ruling in this case?) have passed. Unless one of those customer asks for it and decides to publish it, the code would still be unavailable.

      • by bws111 (1216812)

        Correct. This is what was done in the SCO v IBM case. SCO asked the court to force IBM to turn over all the source to AIX. IBM agreed, but only on the condition that neither SCO nor SCO's counsel had access to it.

      • Re: (Score:3, Interesting)

        by draconx (1643235)

        Even if the code was considered infringing, it would only need to be
        revealed to those customers that asked for it before three years (since the
        ruling in this case?) have passed.

        IANAL, but I don't understand where this comes from. TFA says that code
        in question is licensed under the GPL, version 2. According to section 3
        of the license, distributing binaries requires you to do either:

        (a) "Accompany [the binary] with the ... source code ...."
        or
        (b) "Accompany [the binary] with a written offer, valid for at least three
        years, to give *any third party*, for a charge no more than your cost

        • (b) "Accompany [the binary] with a written offer, valid for at least three years, to give *any third party*, for a charge no more than your cost of physically performing source distribution ... the corresponding source code ..."

          Sounds like the best way to get out of source code distribution is only distribute it on hand carved stone tablets with the source engraved and charge the cost of physically performing source distribution. I'm surprised that MS hasn't tried that yet they could have there own linux distibution an no one would bed able to afford the free source code.

        • by gomiam (587421)

          ...to give *any third party*...

          I cannot understand how I have missed that text after reading the GPL many times over the years .

    • Re:Doesn't matter (Score:4, Informative)

      by gnasher719 (869701) on Friday September 14, 2012 @06:17PM (#41340939)

      This is brilliant! Just accuse them of a GPL violation and they'll be forced to prove their source code is different by revealing it.

      Nobody can force you to release any source code, GPL or not. However, copying source code against GPL rules when the GPL license is the only thing that gives you permission, is plain old copyright infringement. And since this company just badly upset the copyright holder, they will have to pay for this.

  • Prior Art? (Score:4, Interesting)

    by conspirator23 (207097) on Friday September 14, 2012 @03:17PM (#41338625)
    If the Twin Peaks patent is on GPL-violating code, then that would seem to me (IANAL) to be a clear and direct example of prior art. You'd have a case of an entity stealing work, then patenting it, and then attacking the people they stole from. That could be an incredibly embarassing thing for Twin Peaks. OTOH, if the GPL infringement is on unrelated code, then I would imagine that there could be seperate verdicts that each could be found guilty on. The question there would be: Are the damages comparable enough to force a settlement?
    • by bwcbwc (601780)

      In the first case: Not just prior art. Unclean hands and a few other "technicalities" come to mind. (IANAL)

      In the second case: offense can be defense. One way to force someone to the settlement table on the original suit is with counterclaims.

    • by mcrbids (148650)

      Next time, it might be nice to RTFA before commenting. It makes you look woefully uninformed...

    • Re: (Score:3, Informative)

      by sumdumass (711423)

      The GPL code in question is only to make the filesystem available to the operating system and is part of the code that constitutes the patented filesystem in question. It is basically mount instructions to put it as simply as possible. Twin Peaks could rewrite their own implementation of this avoiding the GPL problems if they have the expertise to do so.

      The real significance here might be that because the two are related but not the same, an award for one could be equal to an award for the other meaning eit

    • by wkcole (644783)

      If the Twin Peaks patent is on GPL-violating code,

      Thank you for playing, we have some nice parting gifts for you...

      A patent is not "on" a specific piece of code, but rather on a method of doing something useful. Specific code is covered by copyright. GPL is a copyright license, not a patent license.

    • by rgbrenner (317308)

      The patent suit brought by Twin Peaks is on the Mirror Filesystem.

      Twin Peaks provides an implementation of it that includes a mount utility.

      Red Hat is saying portions of Twin Peaks' mount utility was copied from mount, which RH owns the copyright to.

      Even if Red Hat wins their copyright claim, they could still lose on the patent infringement claim.

      • Keep in mind that a Willfull violation of Copyright in the United States can result Massive Punitive Damages. Simply put, RH could recieve a judgement as great as the recent Apple/Samsung Case exceeding a Billion Dollars.Well Played RH.

      • by exomondo (1725132)

        Even if Red Hat wins their copyright claim, they could still lose on the patent infringement claim.

        Of course, but RH losing the patent suit has relatively little impact on them compared to TP losing the counter-suit. The obvious course of action is for TP to drop their suit in exchange for RH dropping their counter-suit and the two can kiss and make up.

        • by rgbrenner (317308)

          glusterfs is used in red hat storage and other RH products. RH storage is exactly the same as glusterFS, and the entirety of glusterFS is what TP is claiming infringes their patent. RH earns actual revenue from it, and if found infringing, TP will have real damages, proven by the revenue of RH storage & other products.

          mount is a free utility, included in TPs implementation of mirrorFS. It has no revenue, is not sold separately, or even a primary feature of mirrorFS. RH makes no revenue or profits from i

          • by exomondo (1725132)
            Because there's obviously more to lawsuits than damages. If you'd read the article you'd see RH's case is for copyright infringement and they are requesting a permanent injunction...if that happens then a good 1/2 of TP's products will be off the market, even a temporary injunction would cause serious harm.
            • by rgbrenner (317308)

              it's mount. It's not a revolutionary app. They'll rewrite it in a day.. before the ink on the injunction is even dry.

  • Fight fire with fire.

    But in the end, the lawyers win.

  • It depends if they win or not.

    Normally with these patent cases both sides own patents and what normally ends up is an agreement to share each other patents. the GNU Forbids Patents, so copyright is the next best thing, perhaps it is even bigger then the patent because it is even more blatant misuse.

  • by Anonymous Coward on Friday September 14, 2012 @03:22PM (#41338671)

    Laugh all you want, but RMS keeps getting proved right over and over about Free Software.

    • by Anonymous Coward

      Laugh all you want, but RMS keeps getting proved right over and over about Free Software.

      Except for the part about people caring about whether their software is proprietary or open. Witness Android for instance. Nearly all Android users do not care about the Linux kernel being open.

      • by Galestar (1473827) on Friday September 14, 2012 @03:37PM (#41338845)

        Nearly all Android users do not care about the Linux kernel being open.

        Its not about the user caring, its about the handset manufacturers caring.

        • by Anonymous Coward

          Nearly all Android users do not care about the Linux kernel being open.

          Its not about the user caring, its about the handset manufacturers caring.

          Well they don't care either. Proprietary or open, Google would hand over source to handset manufacturers in either case if the manufacturer needed the code in order to get Android up and running on their device.

          Its only a few hobbyists who care that Android is mostly open.

      • by Anonymous Coward

        Laugh all you want, but RMS keeps getting proved right over and over about Free Software.

        Except for the part about people caring about whether their software is proprietary or open. Witness Android for instance. Nearly all Android users do not care about the Linux kernel being open.

        This is an extremely short-sighted view of things.

        Android is built on the Linux kernel precisely because it is open. That is, Google doesn't have to pay to develop it's own kernel from scratch and doesn't have pay per-copy royalties to anybody. On the consumer side, this means Android devices can be made cheaper than iOS or Windows Phone equivalents.

        Now tell me, do nearly all Android users care about saving money on their phones and tablets?

      • by nzac (1822298)

        Except for the part about people caring about whether their software is proprietary or open.

        That's the wrong question, the question should be:
        Has the consumer benefited from having an open-source kernel and operating system being available?

  • Are they intending to use clause 8 to then say that they are in violation? I read the IT World article but didn't really gether how they were intending to use the GPL to fight back other than just saying "you distribute a work based on the GPL and aren't in compliance." In which case (if indeed true) all they would have to do to settle that matter would be to release their source.

    8. If the [gnu.org] distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License.

    • by Anonymous Coward

      Clause 4 seems better:

      4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

      They simply remove the licence to the mount utility

    • Re:Clause 8? (Score:4, Insightful)

      by sjames (1099) on Friday September 14, 2012 @04:34PM (#41339477) Homepage

      It's a little more sticky for Twin Peaks than that. The geographic limitation would prevent them from distributing their software under GPL anywhere where they assert a patent right. So to comply they would have to grant a royalty free license to all (including Red Hat) OR just never sell the product again.

      They would at least have to review their codebase and carefully purge all signs of GPL code to get back in business, but would still have to settle the past infringement.

      Typically in GPL violations, the infringer is given the opportunity to cure the infringement without going to court, but then there isn't usually a patent suit in play.

  • May infringe (Score:3, Insightful)

    by Mordocai (1353301) on Friday September 14, 2012 @03:42PM (#41338895) Homepage
    Doing some VERY basic binary comparison between their mount.mfs binary and one of Redhat's mount binaries I would say there is nothing that says straight out one way or the other. There were definitely some differences (licensing crap all through twin peak's binary for instance, trying to catch if you run it and have no license) and some similarities, but it isn't enough for me personally to say for sure. I'd be going after looking at TwinPeak's source, but that's probably what they'll end up doing anyway.
    • by Anonymous Coward
      To get a clearer picture of exactly what the similarities are, we need to get a good look at the changelogs. Red Hat's logs will be in the open of course, easy to read. For Twin Peaks, we'll have to ask the Log Lady.
  • by Anonymous Coward

    Neither party in this lawsuit is a patent troll. RedHat couldn't go after Twin Peaks for a copyright violation if Twin Peaks didn't have products. In fact this is pretty much why patents held by product companies aren't as much of a threat to the economy as patents held by trolls. When a product company uses a patent offensively it always risks blowback. In this case it looks like Twin Peaks is did something pretty dumb in suing a company whose copyrights they had previously violated and had so far gotten a

  • by Anonymous Coward

    if you do not use or license your patents within the first year of aquiring a patent then the patent is no longer valid. PERIOD! Having worked in the patent office and see all the patent holding companies that just sit on patents to sue people, it is time we ended this. Call it the use it or lose it law.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      That is wrong on so many ways.

      - most of the time it takes years before the usefullness of an invention is appreciated
      - software being an exception but mosts inventions take more than one year to copy and bring to market
      - You can't license if nobody comes and wants to license your patent.
      - interested companies would just have to collude and hold still for one year to invalidate patents from small scale inventors who can't bring it to market alone

    • by jmv (93421)

      Create dummy company, license entire patent portfolio for $1, law worked around. These issues are not *that* simple.

    • by Desler (1608317)

      Which only benefits the megacorps.

    • How does that help anyone in this case. Twin Peaks uses their patent. Here's a link to the product on their website:
      http://twinpeaksoft.com/clustering%20plus.html [twinpeaksoft.com]

      Red Hat just wants to call them a patent troll to try to turn public opinion against them.

  • by Conficio (832978)

    IMHO, more sensation then fact
    [quote]"if Red Hat were to be successful in establishing copyright infringement and obtaining a permanent injunction," the legal blog wrote.[/quote]
    If the code in question is GPL 2 licensed, and Redhat holds the copyright, then RedHat has the right to pursue the Copyright infringement. However a permanent injunction can easily be avoided by coming in compliance with the GPL 2. And as the alleged code code is just the mount tool, that should be limited to GPL license of this pie

  • ... is a good offense.
  • Don't tell me who did it, I want to figure out who killed Laura Palmer all on my own!

  • Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye.

  • Could everyone just stop saying IANAL, we know that already.

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