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Red Hat's Secret Patent Deal
Bruce Perens writes "When patent troll Acacia sued Red Hat in 2007, it ended with a bang: Acacia's patents were invalidated by the court, and all software developers, open-source or not, had one less legal risk to cope with. So, why is the outcome of Red Hat's next tangle with Acacia being kept secret, and how is a Texas court helping to keep it that way? Could the outcome have placed Red Hat in violation of the open-source licenses on its own product?"
Anyone else think as soon as a patent case is filed in the East Texas District, the courts should automatically reject it... especially when the plaintiff's HQ is in another state?
Copying the first paragraph of TFA, verbatim, does not make a helpful summary.
I think maybe (parts of) the community might not want to know.
You too, Brutus?
I'm not a lawyer, but I play one on the Internet. Blog
Anybody getting the hint yet? Patents and copyrights are nothing but black holes, sucking in all human creativity.
For justice, we must go to Don Corleone
My Operating Systems instructor (a die hard open source / linux guy) went to testify as an expert at a court case involving patent infringement with some pretty big names involved in this now famous East Texas District court. He was skeptical going out but came back with a different opinion; apparently that court district processes so many IP and software patent claims that the court district that they've become better at dealing with it than any other court. They process the claims faster and the judges are more knowledgeable on the subject than most and run a very tight ship. He said it's easy to see why they might have started those types of cases out there, but the reality now is far different than the picture painted.
How does it feel to be a liar with pants constantly on fire?
How can the truth hurt?
Mr. Perens has no idea what the terms of the settlement are. No one does, other than the parties and the judge. I don't know what his animus is against Red Hat, but the way this article is written is simply FUD.
What are the patent trolls going to do, exactly? Sue everyone who develops open source software? There is just not enough money to even justify that sort of action, and given the US government's interest in open source software, they would run the risk of getting software patents rendered invalid. If Red Hat is party to some sort of secret licensing deal, that is very unfortunate, but I really do not think that the patent trolls can actually destroy the entire movement.
Palm trees and 8
Sometimes in these cases, the defendant will come up with killer prior art, or some other killer evidence / legal maneuver that quashes the whole thing. Rather than go to trial, which costs all sorts of money regardless, the defendant comes to terms with the troll, like for $0. But they keep it quiet. So the troll can go onto other prey. You might think there was honor among software companies trying to defend themselves against trolls. There isn't. If they think a competitor is likely to get caught up in the web, with no prior art, the company would be happy to let him dangle there, regardless of any desire to see patent reform.
You'd think Redhat wouldn't work like this? Sure they would.
IANAL, however it seems that changing the LGPL to specificly deny sealed cases involving patent infringement settlements with out notification of all developers, to be a prudent response. If there is a settlement involving an LGPL'ed software then all developers need to know so that the infringing code can be change, removed, amended, or licensed.
When dealing with a commercial software house there is only one company that needs to license the code and only one set of developers who are aware of the licensing via the
corporate structure. This paradigm is quite different in the opensource community, this is the equivalent of the company having a ruling/ agreement but being bard from informing the developer staff.
It's being kept a secret because settlement agreements frequently are. Why on earth would a party agree to pay money (implicitly admitting wrongdoing) and NOT demand on a confidentiality clause? And Bruce, the "case" isn't being sealed, simply the terms of the agreement, and while a judge can enter an order prohibiting the parties from discussing the terms it's not typical. Usually the parties reach an agreement on their own and simply file a notice or motion that the case should be dismissed with prejudice. And no offense but I doubt very much that you are facing jail time if you talked about the settlement agreement in that unnamed case you say you can't talk about; that's generally not how things are done.
I have designed and implemented production systems using a direct SQL-field to accessor mapping and direct SQL-to-object mapping as far back as 2000. FFS at least 4 large-ish systems I have written for the last 10 years do that. It is a bleeding obvious approach and it should not be patentable in the first place. Anyone who knows _BOTH_ SQL and OO progamming and is using a dynamic language where you can generate database structures more or less on the fly like Perl would come up to this as an approach sooner or later.
In fact I can think of a prior art here off the top of my head. RT uses at least some of these paradigms and some of its code dates back to 1996. Someone needs to ask Jesse when did he start using the automated mapping, but I suspect it is before the Acacia patent filing date.
Baker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
Found it:
“Once Red Hat settles and pays for a license for the patent, any subsequent defendant will find it more difficult to convince a court that the patent should not be enforceable.”
In the limit as "more difficult" goes to "not".
Since the case is sealed, subsequent courts will never know exactly what Red Hat copped to, or why. It could be anything, from a total capitulation on the merits to a conflict of the trial date with a lawyer's daughter's wedding. Neither is likely, but neither is impossible, and the unknowability moots this as a precedent. In any subsequent case, plaintiff (Acacia) will have to agree with the defendants (h4xx0rz X, Y, and Z) to stipulate that the Red Hat case can have no bearing, unless Acacia wants to violate the order and tell the judge why it should have bearing.
And even if the settlement was unsealed, settlement precludes the case from being a precedent, so all Acacia could do, if anything, is repeat facts from it, not state that it is a legal validation of their patent.
What's the Acacia view on the LGPL and JBoss?
The settlement did not necessarily include a license. It probably did, but it's possible it did not.
Anyway, if the settlement agreement violates the LGPL then that will become apparent if Acacia sues another JBoss developer. In the event of such a suit it is likely that the terms of the settlement would be open to discovery. If the settlement doesn't contain a license, then no problem. If the settlement contains a broad license to all users and developers of JBoss, then the infringement suit will get tossed. If the settlement only offered a license to RedHat, in violation of the LGPL, then RedHat will suffer the consequences.
And of course Perens invokes the non-existent threat of the Open Source Patent Apocalypse:
Except, of course, that patent holders have never actually done so (certainly not in any significant way), despite 15 years or more of opportunity. Litigation is expensive even if the other side doesn't defend itself, and organizations like the FSF, the EFF, law clinics, and individual charity-minded patent attorneys would likely defend individual developers or small companies for a reduced fee or no fee. If the defendants put up even a modest defense, the expense to the patent holder would almost certainly outweigh the remotest possible benefit.
Perens brings up Jacobsen v. Katzer, but it's important to note that that it was the open source developer that sued for a declaration of patent invalidity as a (successful) way of getting leverage in the case. He was not sued for patent infringement, only copyright infringement. Not only that, the developer received a $100,000 settlement fee (net $68,357.62 after paying the defendant's attorney's fees because of a failed special motion to strike) and set some important precedents. Further, the other party was not a large corporation but an individual and the small company he owned. There was no particular need for legal aid in that case.
There is just no point in trying to sue individual open source developers or companies that don't have significant assets. Patentees can't use the courts to eliminate infringing open source software. New developers will step in, hosting will move to another country, and the multi-million dollar game of whack-a-mole will continue, all the while generating enormous negative PR. Non-practicing entities, which some call patent trolls, are even less likely to sue individuals or small companies. They don't make money from litigation, they make money from licensing, and you can't squeeze blood from a turnip.
So the patentees aren't going to get licensing fees from suing individual developers and small companies. What are they going to get? Customers to pay for their software instead of the open source version? I highly doubt that the open source community of developers and users would turn around and pay for software from the company that just sued them.
Patent infringement suits may be a problem for larger companies like RedHat, but such companies have the means to defend themselves.
Copying the first paragraph does not helpful summary make, mmm.
IAAL (in fact, IAAPL, I Am A Patent Litigator).
1) Bruce Perens knows nothing of the law. The case was not sealed. You know that because you can use PACER to go on the EDTX docket and look at the case (Civil Action No. 6:09-cv-00097-LED-JDL). If the case itself was sealed, you could not do that. Only really exceptional cases get sealed (i.e. national security cases, some mafia cases). Whether or not the case was sealed has nothing to do with whether the settlement will be publicly available. Nearly all patent cases end with a confidential settlement agreement. Generally, with limited exceptions (e.g. class action cases), there is no requirement to put a settlement of any civil case before the Court or to make it public. The parties simply file a stipulation to dismiss, as was done in this case. Furthermore, Mr. Perens confuses a protective order (which is often a permanant order by the Court not to disclose or use confidential material produced during discovery) with a confidential settlement agreement (which is a contract between the parties, typically enforced by a subsequent breach of contract lawsuit, rather than contempt).
2) The LGPL provision at issue (presumably LGPL 2.1 Paragraph 11) is HORRIBLY DRAFTED. In fact, it is not clear what at all it is meant to do. What does it mean that a judgment or "allegation of patent infringement" "contradict[s] the conditions of this License"? Whether or not RedHat takes a license, a patentee could sue another JBoss user for infringement. Just because the patentee could not sue RedHat again or sue RedHat's paying customers again does not seem to necessarily contradict the conditions of the license. RedHat could not guarantee before or after that 3rd parties would not be sued by the patentee. RedHat is not the one that is impinging on the downstream use of the LGPLed software, the patentee is, so how could RedHat be in breach of the license? The whole section is non-nonsensically meaningless and demonstrate a complete misunderstanding of how patent litigation and licenses work. Sure, if a patent license required Redhat to not distribute the source code to LGPL licensed materials, that would be a clear breach. But that's not how the license works. The license simply would not guarantee that the patentee wouldn't sue individuals who then took that source code and sold a product based on it. No "contradict[ion]" because RedHat is doing nothing to impinge the downstream re-sellers (the patentee is) and the downstream re-sellers are in no worse condition than before the agreement that RedHat entered into.
3) It does not appear from the JBoss documentation that JBoss mentions any particular version of the LGPL. Therefore, under the LGPL, you can choose any verison. LGPL v3 does not have the equivalent non-nonsensical provision.
“Once Red Hat settles and pays for a license for the patent, any subsequent defendant will find it more difficult to convince a court that the patent should not be enforceable.”
Not exactly. For the judge to consider the settlement, Acacia would first have to enter it in to evidence. If they tried to enter merely the fact of a settlement, the defendant would be entitled to the entire settlement agreement during discovery.
And when the judge finds out that Red Hat licensed the patent for a dollar and an agreement not to countersue, well, that doesn't bode well for Acacia.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
Seriously, this is the best opinion piece on open source and patents that I've read in a long long time. And as the founder and former director of the NoSoftwarePatents campaign and author of the FOSS Patents blog, I read (and write) a lot about that subject.
There's a precedent to this settlement in which Red Hat definitely paid royalties: when it settled the FireStar case. It published a misleading FAQ on its website trying desperately to divert attention from what really happened. The non-confidential part of that settlement was published and leaves no doubt that Red Hat entered into an obligation to pay (even Groklie arrived at that conclusion, a website that I very rarely agree with). That payment was probably not on a per-unit basis. They might have made a one-off payment, or a royalty on revenues/profits, or some combination of both.
Concerning Moglen's discouraging anti-software-patent lobbying, it's interesting that he gets away with it (other than Bruce Perens criticizing him for it now) while I get bashed all the time for calling on people to be pragmatic. The first time I met Eben Moglen (back in 2004 together with a MySQL VP), he told us not to lobby against software patents. Instead he wanted money for his patent-busting efforts, which failed miserably (Microsoft's FAT patents are still in force).
I tried very hard to fight against software patents (in the EU) at the legislative level. I said on my new blog several times that at some point (more than four years ago, in fact) I couldn't help but arrive at the conclusion that it's impossible. It won't happen simply because the collateral damage caused to other industries is huge (you either have to do away with the largest part of the patent system, or you have to live with software patents) and there simply isn't any serious, meaningful support for the anti-software-patent cause by businesses. On LWN I gave an example by quoting what a staffer of the conservative group in the European Parliament once said: unless you bring in those middle-aged closed-source entrepreneurs with beards, bellies and glasses talking about how they suffer from software patents and how they may have to lay off employees because of software patents, there's no way that a political majority will do what the FOSS community asks for.
While my focus is on how to deal with the most important threat (exclusionary strategic use of software patents), Moglen never talks about that because he's been loyal to IBM throughout his professional life and gets funded by them. Instead, he always talks about IBM's (and consequently, his) favorite bogeyman, which is the wrong focus.
You're a respected commentator on Free Software and its complex legal environment, and I've always admired that. Your consistent reputation has tended to increase the credibility of your ideas, in my eyes and in the eyes of many others.
But this article... in the interests of simple editorial transparency, you really should have predicated almost every assertion with "I have no factual insight into the specifics of the sealed settlement, but..."
Maybe a little bit of journalistic investigation might have been in order? Sealed terms leak quite often. Actually finding a legitimate basis for these concerns would have been doing the community a service. Raising potential and hypothetical concerns, explicitly as hypothetical and potential, would have also. Unfounded speculation and worst-case thinking do not.
FUD is as wrong in the hands of the Good Guys as it is in those of the Bad Guys.
Welcome to the Panopticon. Used to be a prison, now it's your home.
It's a common attorney tactic to say what will win the argument - and sometimes the truth suffers.
Whatever you call it, Red Hat has agreed to keep the settlement secret - and I discussed this with a really good attorney who had no problem with my referring to the settlement as sealed, and I discussed it with Red Hat. Their VP and General Counsel was in the loop - I wasn't supposed to know that, but he made a mistake with email.
All Free Software licenses of that age are of poor legal language. This has not kept us from enforcing the Artistic License 1.0, which I feel is the absolute worst of them. I was expert in that case too.
LGPL 2.1 paragraph 11 is written to apply to the distributor of the LGPL software. It may be that there are some forms of patent covenant that it would not catch, too bad we don't know what the actual covenant is.
If anything, the LGPL 3 language regarding patents is stronger.
Bruce Perens.
Now that everyone's jumping on the NPE bandwagon, being an NPE (or "patent troll") has almost become downright respectable lately. There is one reason that the NPE business model has become increasingly popular: it works. It is also legal, and often helps protect independent inventors and SMEs from exploitation of their intellectual property by larger, more powerful entities. Like it or not, NPEs are here to stay.