Sun Files Countersuit in NetApp File System IP Dispute

"Their objectives were clear—number one, they'd like us to unfree ZFS, to retract it from the free software community, which reflects a common misconception among proprietary companies—that you can unfree, free. You cannot.

"Second, they want us to limit ZFS's allowable field of use to computers—and to forbid its use in storage devices. Which is quizzical to say the least; in our view, computers are storage devices, and vice versa. So that, too, is an impractical solution," Schwartz wrote.

Read more here about Sun changing its Wall Street ticker name.

Schwartz said Sun, based Santa Clara, Calif.,will use its "defensive portfolio to respond to Network Appliance, filing a comprehensive reciprocal suit. As a part of this suit, we are requesting a permanent injunction to remove all of their filer products from the marketplace, and are examining the original NFS license—on which Network Appliance was started. By opting to litigate vs. innovate, they are disrupting their customers and employees across the world," he said.

In addition to seeking the removal of their products from the marketplace, Sun will seek "sizable monetary damages," Schwartz wrote, although he did not specify an amount. "And I am committing that Sun will donate half of those proceeds to the leading institutions promoting free software and patent reform (in specific, The Software Freedom Law Center and the Peer to Patent initiative), and to the legal defense of free software innovators."

NetApp co-founder and executive vice president Dave Hitz wasted no time in stating his point of view in his own blog on Oct. 25.

"Sun is seeking a permanent injunction against NetApp to remove almost all of our products from the market place. This is exactly the sort of broad but vague threat that gets people so frustrated with patent litigation," Hitz wrote.

"Jonathan seems to be arguing that once something has been put into open source, it is beyond the law. I disagree completely! To get us away from the details of Sun and NetApp's particular case, let me make an analogy:

"Suppose that I steal and then open-source Jonathan's patented recipe for chocolate chip cookies. The recipe will probably live forever in the web. There is no getting those bytes back, and if it's a good recipe, there is no stopping individuals from baking those cookies. On the other hand, if I start a company to sell Jonathan's Patented Cookies, then it's perfectly reasonable for him to ask me to stop," Hitz wrote.

One of the most important rules of open source is that you must only give away things that belong to you, Hitz wrote.

"If protected information does leak into open source, it will probably live forever in the web, but that isn't the issue. To me, the issue is that large corporations should stop making a profit on protected information that doesn't belong to them. Thats what we're asking here," Hitz wrote.

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