Twin Peaks Mysteries

Linux behemoth Red Hat is currently being sued over alleged patent infringement by Twin Peaks Software, vendors of the closed source ‘Mirror File System’ technology. It seems that the suit has been triggered by Red Hat’s acquisition of Gluster – an open source  file system project – last year. Twin Peaks hold a patent (US7418439) which covers the technology in their product and, they argue, technology embodied in Gluster. Now that someone with a bit of cash owns and is distributing Gluster, it is not surprising that Twin Peaks has decided it is time to enforce their patent rights.

So far so normal; Red Hat is sued for patent infringement all the time, and continues its progress seemingly regardless. Red Hat being sued has ceased to be headline news. In this case though, they made a novel and interesting response. It seems that Twin Peaks’ product may contain GPL-licensed code written by Red Hat, or so Red Hat are counter-claiming.

46. Red Hat, through its employee-developers, has made significant contributions to the tools in the util-linux package, and to its “mount” program in particular, in the form of improvements implemented in the source code.

53. Twin Peaks’ proprietary replication software products, namely, “TPS Replication Plus” and “TPS My Mirror,” include, inter alia, a program called “mount.mfs.” This program is essential to make Twin Peaks’ “replication solution” software usable.

54. On information and belief, rather than develop its own source code to create its proprietary software replication products, Twin Peaks copied substantial portions of open source code into those products, including source code originally authored by Red Hat. Among the code Twin Peaks improperly copied was that embodied in the “mount” program released in util-linux version 2.12a, which Twin Peaks copied into the source code for its own “mount.mfs” tool. Twin Peaks’ verbatim and near-verbatim copying of open source and Red Hat source code into its “mount.mfs” tool is pervasive and extensive.

So if Red Hat’s accusations are justified, then Twin Peaks have been infringing Red Hat’s (and probably others’) copyright by refusing to abide by the terms of the GPL v2. The traditional FOSS community response to GPL violation is to insist that the violators either comes into compliance or stops distributing their infringing software. However this case is a little different. Here are the relevant parts of Red Hat’s counterclaim, taken from the ‘Prayer for Relief’ section (where they say what they want to happen):

8. Granting a permanent injunction preventing Twin Peaks Software Inc. from copying, modifying, distributing, or making any other infringing use of Red Hat’s software;

9. Ordering Twin Peaks to pay Red Hat’s damages for Twin Peaks’ infringement of Red Hat’s copyright in its software;

10. Ordering Twin Peaks to pay Red Hat’s damages for Twin Peaks’ violation of the GPL;

11. Ordering Twin Peaks to account for and disgorge to Red Hat all profits derived from its unlawful acts; and

12. Awarding any other such relief as is just and proper.

Red Hat want money for this alleged infringement, and although it’s not in line with FOSS community norms, it’s also not that surprising here. The counter claim is intended to mitigate any losses Red Hat may suffer if the patent infringement case against it is successful. Getting Twin Peaks to stop distributing their product or come into compliance with the GPL might be a comforting moral victory, but it butters few parsnips.

In this context it was interesting to see one of the chief architects of the standard, measured community response to GPL violation, Eben Moglen, signalling in his law firm’s blog that this was a special case and might need especially serious treatment:

First, if Red Hat is correct, they take our software without playing by our rules, and then they attack the community using their doubtful patent.

Such betrayal of the community while making use of its software is a particularly severe offense. If Twin Peaks is in fact ripping off the community while also suing one of our leading commercial redistributors, serious consequences should follow.

Red Hat has been a significant supporter of SFLC since I founded it. But in this as in all similar situations, SFLC’s primary concern is protection of the rights and interests of our clients, non-profit makers and distributors of FOSS. SFLC will now begin an investigation of Twin Peaks’ products, to ascertain whether any of our clients’ rights are being infringed through the violation of FOSS licenses. We hope that other organizations around the world, including GPL-violations.org and the Software Freedom Conservancy will do likewise. Community defense is the crucial guarantor of a level playing field for businesses, as it is the heart of protecting freedom for developers. We need to know the truth about Twin Peaks’ practices, and we must take whatever steps are appropriate when the truth is known.

The latter part of that final paragraph immediately brought this famous moment from B-movie history to my mind (warning: very mild horror).

This Wednesday Twin Peaks responded (pdf link) to Red Hat’s counter claim, and in doing so stayed true to their mysterious TV namesake. It seems that to them little is certain. Red Hat, in its counterclaim, waxed discursive over the operation of the GPL and the nature of free and open source software. In responding to these sections, Twin Peaks almost universally says that it has insufficient information to assess whether the claims are true or not. In paragraph 42 of Red Hat’s counter claim we find this:

42. Furthermore, Section 4 of the GPLv2 states:

You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.

Twin Peaks respond, confusingly:

42. Twin Peaks admits that Section 4 of Exhibit A to Red Hat’s Counterclaims states:
You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.
Twin Peaks lacks sufficient information to admit or deny the remaining allegations in Paragraph 42 of the Counterclaims, and therefore denies them.

What remaining allegations? All they can be objecting to is the assertion that Red Hat’s pasting-in of the GPL v2 as Exhibit A is in fact the GPL v2, something that they are surely able to check using their reading skills. They do seem doubtful though:

37. Twin Peaks admits that Exhibit A to Red Hat’s Counterclaims appears to be a copy of version 2 of the GNU General Public License (the “GPLv2”).

(my italics). This approach has the disadvantage of (perhaps unintentionally) signalling to the wider FOSS community that the fairly uncontroversial statements Red Hat makes about FOSS and the operation of the GPL in these sections (for example: “The benefits of the FOSS development model are widely recognized”) are things Twin Peaks intends to deny in court. What may well be a canny legal tactic of keeping one’s arguments hidden at this early stage runs the risk of making Twin Peaks seem, to the FOSS community at large, like an attacker intent on undermining its values. With luminaries like Eben Moglen calling for the community to unite in investigating them, Twin Peaks might do well to think about community relations as much as legal manoeuvring.

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