Network Appliance sues Sun over ZFS patent infringement - what this means for open source

Network Appliance just announced that it is suing Sun Microsystems for patent infringement related to Sun's ZFS technology. Dave Hitz, co-founder and executive vice president of NetApp, pinged me to notify me of the suit and referenced his blog. I'll be following up with Sun's position on the suit as soon as it becomes clear.

From Dave:

About 18 months ago, Sun's lawyers contacted NetApp with a list of patents they say we infringe, and requested that we pay them lots of money. We responded in two ways. First, we closely examined their list of patents. Second, we identified the patents in our portfolio that we believe Sun infringes.

With respect to Sun's patent claims, our lawsuit explains that we do not infringe, and - in fact - that they are not even valid. As a result, we don't think we should be paying Sun millions of dollars.

On the flip side, our suit points out that Sun's ZFS appears to infringe several of NetApp's WAFL patents. It looks like ZFS was a conscious reimplementation of our WAFL filesystem, with little regard to intellectual property rights.

I hate intellectual property infringement lawsuits. I generally believe they are a waste of resources and imply that a company can't effectively sell to customers on the basis of its products, so it turns to IP to try to wring cash out of (would-be) competitors.

However, in this instance, the suit has implications for open source, because Sun has released ZFS as open source. Dave writes:

It is admirable to contribute to open source. I have done it personally, although it was a long time ago that I was writing code, and NetApp has also contributed as a company. But it doesn't help the open source movement to give away code that is encumbered with someone else's patent rights. The sooner we determine the true status of ZFS, the better it will be for everyone. NetApp certainly doesn't believe that we can somehow erase every copy of ZFS that has been downloaded. (Impossible!) This lawsuit isn?t about downloads for personal or non-commercial use; it is about what Sun is doing.

Fine, but where was NetApp when Sun was releasing ZFS? That's one of the benefits of open source: it's transparent. If NetApp knew that ZFS was an infringement of its IP, why did it wait until Sun's lawyers (allegedly) started calling NetApp, asking for money?

This would be less serious of a question if Sun were shipping the code as part of its product, but when it elected to open source the code, NetApp should have been all over it given the implications for its own business. If there is credible evidence supporting NetApp's claim, how could it stand by while one of its competitors allegedly released some of its core technology as open source?

Dave hints that NetApp's desire is to work with Sun (in court or in arbitration, as the case may be) to resolve the issue. In the meantime, ZFS is open source. What is NetApp going to do about that?

Regardless of all of the above, people need to keep in mind that, as Dave notes, this isn't truly an open source issue. It's an alleged IP infringement issue between two companies that respect IP. People shouldn't misread this suit to imply that open source is more prone to IP infringement. If anything, it shows how much more safe open source is, because having access to the source code makes it easy to discover infringements.