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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Twin Peaks v Red Hat - Look Both Ways Before Crossing ~mw
Authored by: JimDiGriz on Friday, September 14 2012 @ 07:58 AM EDT
More importantly, how does the coffee taste?

JdG

[ Reply to This | # ]

corrections thread
Authored by: designerfx on Friday, September 14 2012 @ 08:08 AM EDT
please post corrections here

[ Reply to This | # ]

newspicks thread
Authored by: designerfx on Friday, September 14 2012 @ 08:12 AM EDT
newspicks discussion here

[ Reply to This | # ]

off topic thread
Authored by: designerfx on Friday, September 14 2012 @ 08:13 AM EDT
off topic comments here

[ Reply to This | # ]

Twin Peaks is in SUCH a world of hurt
Authored by: OmniGeek on Friday, September 14 2012 @ 08:32 AM EDT
I was thinking about the probable course of events in this action, and it
naturally occurred to me that if Twin Peaks management have any sense, they're
already in settlement talks with Red Hat. On what terms might Red Hat settle, I
wondered? My first thought was something like:

- Drop the action with prejudice,
- Turn over the patents-in-suit to Red Hat with a license-back,
- Pay RedHat a wheelbarrow full of cash,
- Covenant to never sue RedHat or the other GPL authors, and
- Expensively license Red Hat's GPL'ed IP as an alternative to GPL'ing all their
code.

Then it hit me: Things are far, far worse than that for Twin Peaks. Red Hat
*could* license their own GPL'ed code to these scoundrels in exchange for
dropping copyright violation claims, but they CANNOT do that for code written by
the OTHER authors they mention (but don't name).

No matter what Red Hat does now, Twin Peaks remains exposed to copyright
violation claims for GPLed code written by those authors (doubtless including
the FSF as copyright assignee), and it's a safe bet some of them will hold out
for maximum penalties "pour encourager les autres." Red Hat cannot
stop this process even should they want to. Indeed, if this case gets as far as
discovery, that in itself will in all probability make things easier for those
other GPL authors to pursue their own actions against Twin Peaks; all Red Hat
(or a court-appointed third-party engaged to examine Twin Peaks' proprietary
source code for violation of Red Hat's copyrights) need do is tell the judge,
"We've found evidence of pervasive violation of other folks' copyrights
here, including the following authors..."

Twin Peaks has started an avalanche here, and they WILL be buried by it.

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | # ]

Twin Peaks v Red Hat - Look Both Ways Before Crossing ~mw
Authored by: jez_f on Friday, September 14 2012 @ 09:08 AM EDT
The same lesson should be learned by companies that make software but choose to assert their patent(s) against others. Any time you make a claim of patent infringement and you are a producer you face the possibility of counterclaims …
Best argument for patent trolling shell companies I have heard.

[ Reply to This | # ]

  • The Case? - Authored by: Anonymous on Friday, September 14 2012 @ 10:11 AM EDT
A little OT, but almost topical for "look both ways"
Authored by: SirHumphrey on Friday, September 14 2012 @ 09:13 AM EDT
A rather nasty truck and train crash in Australia clicky

My thoughts go out to the drivers

http://www.couriermail.com.au/news/queensland/radio-message-from-ban yo-train-station-to-queensland-rails-control-room-key-to-investigation-of-train- and-truck-crash/story-e6freoof-1226474471803

[ Reply to This | # ]

Would a judge award high damages for misuse of a free product?
Authored by: Anonymous on Friday, September 14 2012 @ 10:30 AM EDT
I'd like to find I'm wrong, but I suspect that because mount
is financially free to use, no court will award high damages
for using it out of license.

Of course the value of mount is considerable, and I'll be
happy if the broken license and the value of the technology
is considered more than the cost.

[ Reply to This | # ]

How would a permanent injunction work?
Authored by: Anonymous on Friday, September 14 2012 @ 11:22 AM EDT
Quoth Mark: "And it doesn't stop there. Red Hat is not
merely asking that Twin Peaks come into compliance with the
GPL. Red Hat is seeking damages for copyright infringement
and a permanent injunction against those Twin Peaks
products."

I don't get what the mechanism would be here since the code
is distributed under the GPL. If Twin Peaks came into
compliance with the GPL terms, wouldn't they then have a
license to the code?

A major key point of the GPL is that it does NOT require
direct negotiation of terms between parties. Given Red Hat
has released their code under the GPL, my understanding is
they can't later add "it's available under the GPL, except
for this guy" rider.

Or does the GPL provide a mechanism where "if you've
violated the GPL, you can't ever rely on it again"?

[ Reply to This | # ]

Twin Peaks v Red Hat - Look Both Ways Before Crossing ~mw
Authored by: albert on Friday, September 14 2012 @ 11:43 AM EDT
Is there anything novel and unique about this patent?

[ Reply to This | # ]

Red Hat imposes troll toll
Authored by: kawabago on Friday, September 14 2012 @ 01:08 PM EDT
I can't help but snicker a little at this even though it may
mean the ruining of several peoples lives. They pulled out a
loaded gun and shot themselves in the foot.

[ Reply to This | # ]

How does RedHat know this?
Authored by: Anonymous on Friday, September 14 2012 @ 01:22 PM EDT
TwinPeaks isn't making the source code public, obviously, and we're nowhere near
discovery. So, how was RedHat able to spot this copying?

[ Reply to This | # ]

Peak one to Peak two: "It IS viral and we is sick!"
Authored by: webster on Friday, September 14 2012 @ 02:24 PM EDT
.

What a delightful read after the Apple verdict. How does the TP Exec who hatched
this Red Hat suit idea feel in their boardroom today? Imagine how Red Hat feels.
"Sue us if you dare but be sure of your code."

1. Red Hat should consider a page from the SCO FUD-Book and send a little letter
to TP's Fortune 1,000 customers allowing them to use their 'mount file' for a
few weeks until they replace it. They could suggest a "pure" GPL
replacement lest this sort of thing happen again with some other proprietary
software.

2. This should settle quickly with TP paying attorneys' fees and making a very
public apology. Red Hat could extract many appropriate promises in lieu of
payment, but payment is good too.

3. TP has to be afraid that there are more copied files in their code. Red Hat
might know more that they could rat out to other code owners.

~webster~

.

[ Reply to This | # ]

"Look Both Ways" - defendant counterclaims
Authored by: Anonymous on Friday, September 14 2012 @ 05:26 PM EDT
So I have a basic question. PJ states: "Twin Peaks forgot to look both
ways, i.e., Twin Peaks forgot that there is no limit to what a defendant can
allege in a counterclaim once a lawsuit has commenced..."

Does this really mean what I think it is saying? That a defendant can file as
many counterclaims as it thinks it can? And this should be done before the trial
starts, is that right?

Does that mean in Oracle-Google and Apple-Samsung, Google and Apple could have
filed as many counterclaims as they wanted? If so, why didn't they do so?

[ Reply to This | # ]

Don't forget - mount is trivial.
Authored by: jesse on Friday, September 14 2012 @ 05:50 PM EDT
The real issue is going to be that the VFS interface in the Linux kernel is NOT
providing a separation between the kernel and proprietary filesystem modules.

To my knowledge, there are no filesystem modules that are proprietary. Those
that MAY be are not in the kernel, but use fuse to interface with. Mounts for
fuse based filesystems are different than those for the normal filesystems.

The diagrams shown (as best I can see) imply that all are inside the kernel...
and that would bring it into non-compliance with the other code that RH has with
all their (rather extensive) work on the VFS. And THAT may be the rest of the
improperly copied code.

The mount utility itself is just a wrapper for the mount system call. It
validates/completes the parameters, and then makes the system call - or farms it
to a filesystem specific mount which eventually invokes the mount system call.

[ Reply to This | # ]

I'm not sure that the mount issue is that deadly
Authored by: Anonymous on Friday, September 14 2012 @ 07:57 PM EDT
To avoid an business-killing injunction, Twin Peaks needs to replace their mount
command with a proprietary one. It's not like the mount command is an integral
part of their filesystem. It is work, but not rocket science.

It's also possible that redownloading the GPL code issues a new license, and by
putting the mount command under the GPL, that the injunction would be avoided. I
don't believe this theory has been tested in the US, but it has certainly been
postulated as one way of escaping GPL.

As for damages, I doubt this would be more than statutory rates, although its
probably on the higher side as a corporation than an individual's damage for
copying a song.

But, what I really would have like to have seen, is a counterpoint that software
has never been deemed as copyrightable, and certainly, this patent does not
attach itself to a particular machine, and can be run on any general purpose
machines on a network which have storage.

[ Reply to This | # ]

What about Twin Peaks' customers?
Authored by: Alan(UK) on Sunday, September 16 2012 @ 07:35 AM EDT
Twin Peaks has no contractual relationship with Red Hat and no licence to
distribute their software.

Twin Peaks' customers do have a contractual relationship with Twin Peaks - one
that they paid money for. No doubt the contract would forbid everything the GPL
stands for; including, looking at it and fixing it.

Their customers have also got a licence (free, gratis, and for nothing) from Red
Hat under the terms of the GPL. Interestingly, they received the licence, not
directly from Red Hat but because the actual code that Twin Peaks sold had the
GPL irrevocably attached even if Twin Peaks had stripped off the actual words
before distributing it.

Where does this leave the customers? They seem to get to keep both halves of a
broken contract. Twin Peaks have charged them money for software that they did
not own. Twin Peaks probably cannot legally maintain that software. Twin Peaks
supplied a licence to use certain patents; that presumably still stands. On the
other hand, they have a licence to use, distribute, etc. Red Hat's code before
it was co-mingled with Twin Peaks'. But that licence came with the software, if
Twin Peaks knowingly incorporated that licence in their product, what terms can
be applied to the product as a whole? Is the patent licence, for instance, now
freely transferable?

Their customers certainly have a grievance and standing to sue. Twin Peaks could
be finding themselves facing court cases on two fronts. It is a case of looking
both ways as well as behind and ahead.



---
Microsoft is nailing up its own coffin from the inside.

[ Reply to This | # ]

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