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?"

Comments

Dear Slashdot,

[Anonymous Coward]

Copying the first paragraph of TFA, verbatim, does not make a helpful summary.

Re:Dear Slashdot,

[Zero__Kelvin]

"Copying the first paragraph of TFA, verbatim, does not make a helpful summary."

It does if the person writing the article knows how to write. Indeed, a summary of the article is exactly what the first paragraph in a properly written article is supposed to be. The rest of the article should elaborate on the ideas, concepts, and assertions made in the first paragraph. This is basic article writing 101.

Re:Dear Slashdot,

[CannonballHead]

Not necessarily... the point of the first paragraph in an article seems to be to get you to read the rest of the article. The point of the slashdot summary seems to be so you don't have to read the article.

Re:Dear Slashdot,

[afabbro]

"Copying the first paragraph of TFA, verbatim, does not make a helpful summary."

It does if the person writing the article knows how to write. Indeed, a summary of the article is exactly what the first paragraph in a properly written article is supposed to be. The rest of the article should elaborate on the ideas, concepts, and assertions made in the first paragraph. This is basic article writing 101.

Perhaps that's how they make you write your book reports in middle school, but plenty of newspapers, magazines, etc. use the pyramid lead, the feature-style lead, etc. The inverted pyramid lead (which you are somewhat describing) is not Holy Writ From The God of Journalism.

Re:Oops! Another Java "thing"

[Monkeedude1212]

Black holes huh...

And this whole Java thing started happening right about the time the LHC actually started working...

I think you may be onto something... Let me get my crossbow...

East Texas and IP...

[cobrausn]

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.

Re:East Texas and IP...

[Anonymous Coward]

Either that, or only the bad decisions get posted on /.

Re:East Texas and IP...

[Anonymous Coward]

Can decisions be labeled as bad if the majority of the public believes them to be bad? Such can be argued for this E. Texas Court.

Define "majority of the public". "Majority of the programmer crowd", maybe. "Majority of the country", not a chance. Not when most people don't honestly care about this situation and the real consequences from it are shielded in the form of a slight rate increase to some service or product they use (an increase which they're all used to anyway by now).

This is pure speculation on the author's part

[Byzantine]

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.

Re:This is pure speculation on the author's part

[countertrolling]

We shouldn't allow this kind of secrecy. If it takes FUD to pry open the case, then I'm all for it. Sometimes it takes a sledgehammer to "tear down that wall".

Re:This is pure speculation on the author's part

[Anonymous Coward]

I agree. Secret agreements shouldn't be allowed ever. The only legitimate reason an agreement must be kept secret is to cover illegal activity, and that's stretching the meaning of legitimate, isn't it? For any contract to be enforceable (perhaps over some dollar amount or people involved?) it should have to be filed and on record, for anyone to find with a simple search. I say this a programmer who mostly works under contract with publicly held corporations. Maybe contracts under $10000 in value, or between 2 individuals (as long as neither is acting on behalf of another person, group, or corporation) could be exempt I suppose. Note I'm not saying the government should be approving these, just keeping them on file as proof they exist, and what the agreed upon terms were. This would have a few drawbacks, but also many benefits, especially when something fishy is attempted (dealt with that!) and I think it would outweigh the overall benefits of the current system.

Re:This is pure speculation on the author's part

[Anthony Mouse]

The only legitimate reason an agreement must be kept secret is to cover illegal activity

No it isn't. It allows parties to negotiate a deal which is more favorable to one of them than the other usually gives to most people, without causing everyone who the second party negotiates with in the future to demand the same deal.

Re:This is pure speculation on the author's part

[jmcvetta]

The only legitimate reason an agreement must be kept secret is to cover illegal activity

No it isn't. It allows parties to negotiate a deal which is more favorable to one of them than the other usually gives to most people, without causing everyone who the second party negotiates with in the future to demand the same deal.

If we were talking about a business deal, this would be fine. Citizens have no right to a fair price. However, when we're talking about a "deal" to settle a lawsuit, it's a whole different game. Secret legal settlements are anathema to the basic principal of equal treatment before the law -- since the main purpose of secret settlements seems to be covering up gross inequalities in application of the law.

Re:This is pure speculation on the author's part

[Jenming]

The most likely reason they settled is because the law was clear and both parties knew what would happen if they went to trial.
The most likely reason they did not release the details is that releasing the details hinders the parties ability to deal with 3rd parties.
The most likely reason everyone else gets upset about this is because they are the 3rd party and want whatever advantage the 2 settling parties are holding by keeping it secret.

Its possible only one party benefits directly from the secret, but in that case they certainly paid the other party in the settlement agreement or it would not be secret.

Re:This is pure speculation on the author's part

[jmcvetta]

What difference does it make if the agreement is made before or after they file the lawsuit?

Before a lawsuit is filed, we have two parties talking nicely trying to work out their differences. By filing suit, one of the parties is bringing the State into the dispute. They are asking that the State use force, or threat thereof, to resolve the dispute according to their wishes.

This is a necessary and useful service, since not all disputes can be resolved amicably. However, the dispute is no longer a private matter between two parties - it has become a public matter. Citizens have a compelling interest in seeing that all operations of the State are conducted as transparently as possible. Allowing a public matter to be settled in secret is the very opposite of transparency.

Re:This is pure speculation on the author's part

[jmcvetta]

The most likely reason they settled is because the law was clear and both parties knew what would happen if they went to trial.

Probably true. That they settled, is not the issue. The secrecy of the settlement is.

The most likely reason they did not release the details is that releasing the details hinders the parties ability to bilk 3rd parties.

FTFY.

The most likely reason everyone else gets upset about this is because they are the 3rd party and want whatever advantage the 2 settling parties are holding by keeping it secret.

People are upset, because whatever benefit the parties may hold, comes at the cost of making the law more opaque and uneven in its application. The legal system is a public disgrace, and a millstone around the neck of the economy, when it conducts its business in secret in order to secure the private benefit of a lucky few.

Its possible only one party benefits directly from the secret, but in that case they certainly paid the other party in the settlement agreement or it would not be secret.

Yup, most likely someone somewhere got paid off.

sealed case

[Anon-Admin]

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.

Re:sealed case

[PerfectionLost]

this is the equivalent of the company having a ruling/ agreement but being bard from informing the developer staff.

LMFTFY.

this is the equivalent of the company having a ruling/agreement against bards informing the developer staff.

We need more bards in our development staff.

Re:sealed case

[Byzantine]

This might be more difficult than you think: can you think of a rhyme for "patent infringement"?

Re:sealed case

[Anonymous Coward]

lawsuit-contingent!

Re:sealed case

[sumdumass]

Flattened impingement.

There was an old lady that lived in a shoe,
she used open source software but got sued.
When she told the judge she couldn't afford the settlement for patent infringement,
He said you have a house, your defense has a flattened impingement.
She said take everything I own,
it won't be enough,
you can kiss my ass for the rest,
if you don't like it, that's just tough.

Re:Information wants to be free

[UnknownSoldier]

Post your Bank Account & PIN and find out ... ;-)

There should be tons of prior art on this

[arivanov]

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.

Re:Don't ask don't tell

[morgan_greywolf]

Quite right. The patent claims to own the concept of representing a database record with a class instance (object instance). The more interesting question is why Red Hat didn't challenge this patent based on originality or obviousness: I personally have prior art going back to the mid-90s, and I'm pretty sure that others right here on this site do as well; some may have prior art going back further.

Where's the beef?

[blair1q]

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.

Not necessarily a licensing deal

[Grond]

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:

Perhaps this will come as a wake-up call to an open-source community that has been historically complacent about the elephant in its living room: Patent holders can shut down open source at any time, simply by bringing claims against individual developers and small companies that can not afford to defend themselves.

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.

Re:Information wants to be free

[Demonantis]

Post your Bank Account & PIN and find out ... ;-)

I think he is referring to the difficulty of maintaining control. You are misdirecting the argument to focus on the wording, "want" and "free". Any person that hesitates at posting their account and pin proving the op's point. They don't know how the information is going to be used and distributed. There is a huge number of anti fraud laws and people still get taken for a trip everyday. I would say that makes it hard to lock up information. It gets worse for people that want to sell the information as the more people that know the more likely it is to get distributed. It is like a spontaneous entropic process that is irreversible. Distribution and reuse is going to happen, you are fighting an uphill battle if you want to control it, and it is never going to be like before when the information didn't exist.

Translation:

[jovius]

Copying the first paragraph does not helpful summary make, mmm.

Wrong on so many levels

[Anonymous Coward]

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.

Re:Don't ask don't tell

[icebike]

I think maybe (parts of) the community might not want to know.

You too, Brutus?

Exactly, and the Judge enforcing a huge NDA over the discussion has probably abrogated the rights of some third party to discover violations of their IP or leave them twisting in the wind waiting to be sued by patent trolls for an infringement that they are totally unaware of.

Did Red Hat essentially win the case, but can't tell anyone so that the patent trolls can continue to collect royalties on invalid patents?

Did Red Hat lose the case and thereby violate the GPL and be at risk of losing their entire business?

Maybe we need Judicial Impact statements in this country. Especially when the subject at hand affects the rights of non participants.

Re:Don't ask don't tell

[ghjm]

Also, "I have some code on my machine that I worked on in 1979" is never prior art because there is no proof you didn't write it yesterday and backdate it. It has to be published or findable in a library or otherwise dateable. It's sometimes pretty hard to find prior art even for obvious things, because people don't usually write and store documents on obvious things.

No, it's well-reasoned because of a precedent

[FlorianMueller]

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.