As presumably many have seen, NetApp is suing Sun over ZFS. I was particularly disturbed to read Dave Hitz’s account, whereby we supposedly contacted NetApp 18 months ago requesting that they pay us “lots of money” (his words) for infringing our patents. Now, as a Sun patent holder, reading this was quite a shock: I’m not enamored with the US patent system, but I have been willing to contribute to Sun’s patent portfolio because we have always used them defensively. Had we somehow lost our collective way?
Now, I should say that there was something that smelled fishy about Dave’s account from the start: I have always said that a major advantage of working for or doing business with Sun is that we’re too disorganized to be evil. Being disorganized causes lots of problems, but actively doing evil isn’t among them; approaching NetApp to extract gobs of money shows, if nothing else, a level of organization that we as a company are rarely able to summon. So if Dave’s account were true, we had silently effected two changes at once: we had somehow become organized and evil!
Given this, I wasn’t too surprised to learn that Dave’s account isn’t true. As Jonathan explains, NetApp first approached STK through a third party intermediary (boy, are they ever organized!) seeking to buy the STK patents. When we bought STK, we also bought the ongoing negotiations, which obviously, um, broke down.
Beyond clarifying how this went down, I think two other facts merit note: one is that NetApp has filed suit in East Texas, the infamous den of patent trolls. If you’ll excuse my frankness for a moment, WTF? I mean, I’m not a lawyer, but we’re both headquartered in California — let’s duke this out in California like grown-ups.
The second fact is that this is not the first time that NetApp has engaged in this kind of behavior: in 2003, shortly after buying the patents from bankrupt Auspex, NetApp went after BlueArc for infringing three of the patents that they had just bought. Importantly, NetApp lost on all counts — even after an appeal. To me, the misrepresentation of how the suit came to be, coupled with the choice of venue and history show that NetApp — despite their claptrap to the contrary — would prefer to meet their competition in a court of law than in the marketplace.
In the spirit of offering constructive alternatives, how about porting DTrace to ONTAP? As I offered to IBM, we’ll help you do it — and thanks to the CDDL, you could do it without fear of infringing anyone’s patents. After all, everyone deserves DTrace — even patent trolls. 😉
11 Responses
To their credit, they haven’t removed negative comments from the blog posting, including mine, where I point out that STK had virtual disk and snapshot capability shipping as a product, 4 years before the patent in question was granted.
NetApp have presumably laid themselves open to the 60-day warning clause in paragraph 6.2 of CDDL 1.0, so they may not rush into a port, I guess.
NetApp’s ONTAP is based on FreeBSD (see http://www.unixville.com/node/213 ), so there is the basis of a DTrace port for it already. 🙂
For the record, NetApp is a strong supporter of FreeBSD and one which was quite keen to encourage me to create a BSD licensed port of DTrace for FreeBSD.
It was a legal opinion from within NetApp that influenced the attitude that the BSD community has toward Sun’s CDDL.
My response to them was that, provided the hooks to support DTrace in FreeBSD were BSD licensed, they could avoid loading the DTrace modules and then they wouldn’t be subject to the CDDL.
But they _want_ to use DTrace. Just not under the CDDL.
I see now why they took that stance. They wanted to retain their right to sue Sun.
How guiling would it have been if they had incorporated (a BSD licensed) DTrace in their product and then turned around and sued Sun anyway?
As I write this, FreeBSD 7.0 is being prepared for release. It won’t contain DTrace because of the CDDL. But it *will* have ZFS. So, the very technology that NetApp is suing Sun over will be in the operating system on which they base their product.
I can’t tell which account of history is accurate – Sun’s or NetApp’s. I hope karma gets the one that is being economical with the truth.
John,
Yes, that was the thought that I had shortly after this went down: that this explains their (irrational) resistance to the CDDL. Their argument doesn’t make sense taken on its face, but when you understand that they were about to become a plantiff in a galactic IP case, their paranoia (however ill founded) makes much more sense. Do FreeBSD folks now understand that they’ve been denied DTrace by a company that had an entirely orthogonal axe to grind with Sun? I have maintained for quite some time that NetApp has been playing the FreeBSD community for their own cynical interests; hopefully that much is clearer now…
John, I understand what you’re saying and I’ll send a note to core about it, because that’s pretty outrageous.
I think that the FreeBSD community will take a different view of this. The NetApp law suit will reinforce their desire to have only BSD licensed code in the GENERIC kernel (so as to avoid passing on patent encumberances).
FWIW, NetApp is the *only* company to donate more than US$50K to the FreeBSD Foundation this year. The FreeBSD project developer infrastructure runs on one of their filers. We’d be lost without that.
By contrast, Sun has only helped a few developers out with hardware. When the project wanted to add a couple of T1 machines, the Foundation had to buy them. And to get a Java port that could be distributed in binary form, the Foundation had to pay Sun and a contractor to jump through all Sun’s compliance hoops.
So, in the FreeBSD world, NetApp is seen very much as the good guys and Sun, whilst not seen as bad, is at least seen as not very helpful or generous.
I know you will take issue with me using the word "generous" when Sun provides a lot of valuable open source software, but from the FreeBSD perspective, the need to have to raise money to get access to some Sun technologies wears a bit thin when Sun is actually supporting Linux in-house.
Even if I hadn’t exchanged emails with NetApp last year, that wouldn’t put me in a different position now. I am still faced with the problem of not being allowed to degrade the license on FreeBSD kernel header files.
I have just taken delivery of a shiny new AMD64 Athlon machine that I will now use as my development machine. I needed a dual processor machine with HPET. The porting work I did on DTrace last year had to ignore multi-cpu and high speed timers… two things which DTrace handles well.
I am going to re-do the port from scratch. This time the DTrace kernel hooks won’t be optional. Where I find I have to add things to existing BSD licensed headers or snippets of code to existing BSD licensed functions, I’ll just ignore the CDDL and imagine that I read about those things in a doc somewhere (that I will then forget since my memory isn’t all that good). The guts of DTrace in the kernel modules will remain under the CDDL.
I just won’t distribute the binaries via the FreeBSD project. This is a bit like the crypto stuff was handled for many years until that patent wore off. There will be a place in another part of the world where FreeBSD people will be able to pick up the modifications that break the CDDL.
John,
I understand where that perspective is coming from; hopefully you understand where I’m coming from. (That is, that I’m frustrated that one company’s interests have so implicitly hijacked the common good.) And I’m all for your current plan, for whatever that’s worth…
Does anyone remember what Sun did to Azul? Was Sun’s behaviour any different… here, except perhaps NetApp has sharper teeth?
Max, I don’t see much analogy with the Azul case. There are plenty of major differences (for example, in the Azul case, it was Azul that was first to seek legal action, though Sun did ultimately sue for patent infringement), but the biggest difference to me is actually one that might seem to be a small detail: the choice of venue. Both of the Sun/Azul court actions (Azul’s against Sun’s and Sun’s counteraction against Azul) were in the US District Court in good ‘ole San Jose, California. To me, the fact that neither company tried to game the venue lends a seriousness to the dispute — and indeed, given that the case settled and that both companies were reportedly happy with the settlement, it’s reasonable to assume that both sides came to respect the other’s position as the case developed.
All of this is in stark contrast to NetApp’s decision to sue Sun in East Texas, a district in which neither company has particularly significant operations, but one that is known to favor plantiffs in otherwise ill-founded patent cases. This decision of NetApp’s speaks volumes about the case, if not of NetApp itself — and it doesn’t speak highly of either.
Hi Bryan,
The smaller competitor was the first to seek action in both cases; ironically, Azul filed in SJ because they were afraid Sun *would* file in East Texas.
Both cases were started because Sun’s threats of legal action regarding it’s patent portfolio and demands for patent licensing agreements/fees from smaller competitors. The whole Azul case unfortunately takes some thunder out of Jonathan’s statement that we’re focused on innovation, rather than litigation.
I think a certain amount of chutzpah is on display from Sun: If you go around trying to extort money from your smaller competitors, you really have no right to complain about the venue when said competitor calls your bluff.
Do you think Sun’s behavior against Azul and Netapp (Same MO on display in both instances) speaks highly for Sun?
Max,
I’m afraid that your facts on Azul are just wrong. I recommend that you carefully read Mike Dillon’s blog entry on the subject:
http://blogs.sun.com/dillon/entry/on_litigation_azul
In particular, Mike says: " I think it’s likely that Azul had a change of heart about the case once they viewed some particularly damaging evidence that was provided in discovery." Remember, this is Sun’s General Counsel talking. GCs are conservative by nature, and this is a pretty provocative statement; why would a GC say something about this if it had no foundation in fact? (And yes, it’s a shame that the terms of the settlement are confidential.)
To answer your question: yes, I think the Azul case actually does speak highly for Sun. There is plenty that Sun does that I disagree with (as anyone who knows me knows, I don’t hesitate to voice my opinion, and I feel no moral obligation to defend Sun), but I feel that our behavior in both the Azul case and the NetApp case has been both ethical and honorable. And frankly, in neither case can I say that about our adversaries…