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07.16.08

Red Hat’s Legal Department Was ‘Closed-Source’

Posted in GNU/Linux, IBM, Law, Microsoft, Novell, Patents, Red Hat, SCO, SUN at 6:40 am by Dr. Roy Schestowitz

Transparency is needed at all levels

Yesterday we wrote very quickly about Red Hat's settlement and why it was a bad idea in retrospect. The argument made by Béranger is that they fed the trolls — the patent trolls. Further, he writes: “Now, I don’t think Red Hat was paid by those patent trolls. Going forward to invalidate the patents would still have entitled Red Hat to ask for damages, and the public image of Red Hat would have been even better: hey, software patents can be invalidated, and here’s Red Hat doing it! But, IF Red Hat was indeed paid to shut up, THEN this is even criminal! It’s like making profits on the expenses of other operating systems (the BSDs, Solaris, whatever) not covered by this settlement!”

“The word “settlement” is often an embellishment, a euphemism.”This surely brings back some memories of Novell, but a comparison would be totally invalid. Either way, it serves as an example and precedence to entice more patent trolls and give them just what they want. Settlement = extortion. The word “settlement” is often an embellishment, a euphemism.

SCO too had Microsoft and Sun license UNIX from them (it later turned out to be in vain) just after they had sued IBM and others. All can be done purely for legitimacy. Both Sun and Microsoft could benefit from it. In the case of Microsoft, it was not only an opportunity to inject money; Microsoft went further and arranged a BayStar investment in SCO.

It’s the same with Trend Micro, which cross-licensed quite recently... with IBM. Ironically enough, in response to this, Barracuda then had to buy patents from IBM, which probably cost a lot. Trend Micro used IBM for legitimacy, so in that sense, IBM was part of this messy business. Had they never dealt with software patents, perhaps none of this would come abound. Here is what Barracuda’s CEO, Dean Drako, said quite recently:

“I would much rather spend my time and money and energy finding ways to make the Internet safer and better than bickering over patents.”

The claims made above about Red Hat exposing Solaris and BSD seems to be contradicted by Groklaw:

Most of the agreement is typical language, but Tiller explains the parts that are specific to this agreement, which is groundbreaking. It’s living proof that the GPL can function as intended, and without compromise, while still dealing with US patent law.

[...]

Even such code distributed by Novell and Sun Microsystem is covered. Is that not refreshing? Note also that “Red Hat Product” includes “predecessor versions” of any Red Hat Products, including versions Red Hat or its employees had no involvement in developing. When you think about the Novell-Microsoft patent deal, what a contrast! That covered only Novell’s paying customers, and deliberately excluded the rest of the community. Red Hat, with a deeper understanding of the GPL and the community’s interests, in contrast responds with a very creative, GPL-compatible agreement that reflects how the community has always worked — competition on merit, not on exclusion or proprietary moves.

The press release contains this ugly bit.

Payment

Section 3 of the agreement is entitled “Payment,” but the material on this issue has been redacted here. This is because the parties agreed that this term must remain confidential.

What is this? BECTA and Microsoft? The equivalent of a Memorandum of Understanding [1, 2, 3, 4]? Novell too redacted the hell out of its formal agreement with Microsoft.

More analysis of this comes from Lisa Hoover, whose report ends with:

The 22-page document [PDF] contains affadavits and documents that outline the terms of the agreement, however specifics on any payments that changed hands have been redacted because “the parties agreed that this term must remain confidential.”

Sean Michael Kerner found some bits of this deal discomforting as well.

How can you be transparent about a settlement without discussing money? How much is a patent worth today? I certainly would want to know and I’d bet millions of others would too.

[...]

This is a fantastic thing. Now if Novell had been as community minded when it struck its patent covenant deal with Microsoft the biggest patent threat hovering over the Linux community as a whole IMHO would just go away.

From user ‘sandholm’ at Tux Machines:

Isn’t this moot?

Submitted by sandholm on Tue, 07/15/2008 – 11:17.

This is an interesting way for RedHat to try and “save some face”, after their “secret” payoff to Firestar on a patent that was dubious from the start.
Now that Sun has requested the Firestar patent be invalidated, and considering the response from the PTO:
http://lwn.net/Articles/289747/
I guess this is the only way that Redmond…Er…RedHat has figured to try and save some respect.

Linux Journal rightly gives credit to Sun.

Just over a month ago, we brought you the news that Red Hat had washed its hands of long-term patent litigation with Firestar Software over object-oriented software and relational databases. We now learn the deal came just a month too early, as last week the Patent and Trademark Office invalidated the patent in question — the result of a “brother-in-arms” effort by Red Hat competitor Sun Microsystems.

[...]

As for Sun and the Open Source community, it’s a victory for striking down one more prohibitive proprietary roadblock, as well as a protection for all from similar prosecution.

Jonathan Corbet has a good and comprehensive summary too.

Red Hat’s initial press release claimed that this settlement demonstrated the company’s commitment to standing up for the community in the face of patent trolls, and stated that it would discourage any future such cases. At this point it seems fairly evident that Sun has made a better show of standing up for the community and discouraging future cases. What Red Hat has done, though, is to show us how future patent problems could be resolved in the absence of obvious prior art. If one must pay the troll, one would do well to come out with an agreement like this one and, at least, keep the troll away from the rest of the community. Whether patent holders who actually have a legal leg to stand on will be willing to agree to such a settlement remains to be seen; the nature of the game is such that, unfortunately, we are likely to get an answer to that question sooner or later.

There are no easy answers here. For sure, what Sun managed to achieve was more valuable than what Red Hat had done. What Novell did was just selfish in every way.

It surely cost Sun some time and effort. Imperfect solutions seem necessary as long as the payment system is absolutely broken. The next post will discuss further perversion of the law by intellectual monopolies.

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4 Comments

  1. Victor Soliz said,

    July 16, 2008 at 7:37 am

    Gravatar

    You know, I don’t get why this is a bad image for red hat. If anything the evilness comes from Sun, Red Hat has just done a settlement where they thought there weren’t other choices and instead of doing it just for themselves they did for everyone else.

    Now the payment section is secret, I don’t really see the problem there it actually makes sense, if I was trolled I would push for the money I am paying not to be disclosed – that would just attract more trolls. I guess the problem is, some people are assuming that the payment section is undisclosed because it is firefly who payed Red Hat… we should try more non-sense accusations like that…

    You know what the real problem was? Sun let Red Hat do a settlement that was unnecessary, Sun failed to inform Red Hat they were able to make the patent invalid, Sun tricked Red Hat into paying money to Firefly and getting bad publicity, and who is the beneficiary here? Sun. So Sun’s disbandment of the lame patent sure was a victory and all, but their little trick is showing us that Sun, Like Novell, can be treacherous to other companies in the OS field.

  2. Saul Goode said,

    July 16, 2008 at 10:01 am

    Gravatar

    You know what the real problem was? Sun let Red Hat do a settlement that was unnecessary, Sun failed to inform Red Hat they were able to make the patent invalid, Sun tricked Red Hat …

    According to Mike Dillon, VP and General Counsel at Sun:

    “We also let our friends at Red Hat know early in the litigation of our activities, that we had filed a request with the PTO for reexamination of the patent, and shared copies of the prior art for Red Hat to possibly use it in its defense.” — http://blogs.sun.com/dillon/entry/firestar

  3. Victor Soliz said,

    July 16, 2008 at 5:24 pm

    Gravatar

    Groklaw says that Sun has not nullified the patent yet.

    PJ @ groklaw.net:

    What has happened isn’t quite like that, from what I know. What has happened is a first office action. A lot can happen, and while it’s good to be optimistic in one’s outlook, the end result is by no means certain. This patent has definitively NOT been invalidated yet. If you don’t believe me, look up what happened to Microsoft’s FAT patent. The first office action also rejected it, but in the end, two years later, it was upheld.]

    It’s certainly a good thing that Sun is trying to knock out any patents, though, and trying to help out the community. But note that the USPTO action Dillon writes about is is a first office action in a reexamination. The patent isn’t knocked out yet. Sometimes reexams work; sometimes they don’t; sometimes what happens is that there are some narrowing amendments, but the patents survives. So it’s a worthwhile effort, but there is a long way to go and an uncertain ending, patent law being as nutso as it currently is, which will explain why Red Hat made the decision to enter this agreement. It means everyone is protected immediately and forever and without any doubt.

  4. Roy Schestowitz said,

    July 16, 2008 at 11:04 pm

    Gravatar

    Thanks for pointing that out. I thought it was closer to being squashed.

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