One more proof that the chicken top management at Red Hat is a shame for the open source movement
One month ago, I was furious about Red Hat settling with Firestar outside the court: Settling is Not Winning! Indeed, from the moral standpoint this is an abjection, to accept the extortion, when you are claiming you're persuaded the truth and the justice are on your side — and when you also have enough money for the attorneys.
LWN has a too hasty title to express an excellent news: Sun invalidates the Firestar patent. Actually, they should have said: "Sun fights to invalidate the Firestar patent, with solid chances to win sooner than expected".
Here's the Friday, July 11 blog post from Mike Dillon, Executive Vice President, General Counsel and Corporate Secretary at Sun Microsystems Inc.: Firestar.
Excerpts: «In 2006, Red Hat was sued by Firestar Software, Inc. in the Eastern District Federal Court in Texas. Firestar alleged that Red Hat's then recently acquired JBoss technology infringed one of it's patents. [...] Given the breadth of the Firestar patent and the likelihood that it would be asserted against others in the community, we decided to invest the time and resources in a prior art. We also let our friends at Red Hat know early in the litigation of our activities, that we had filed a request with the PTO for reexamination of the patent, and shared copies of the prior art for Red Hat to possibly use it in its defense. [...] Last week, we received a response from the PTO in the form of an office action rejecting all of the claims in the patent based on the prior art submitted by Sun. [...] Firestar has two months to overcome this rejection, but given what we presented to the PTO, we believe it will be a challenge for them. Unfortunately, the PTO's response comes a little over two weeks after Red Hat entered into a settlement with Firestar. Although the recent U.S. Supreme Court decision in Quanta Computers v. LG Electronics protects downstream Red Hat licensees [...] it doesn't insulate others in the open source community from future actions by Firestar. It's our hope that the rejection of the patent through the reexamination process will become final in August eliminating this threat for all members of the open source world.»
In other words: if you know you can win — because the truth is on your side and you can afford good lawyers —, just bloody fight for justice is made! Use your little gray cells and then fight! Don't bloody be a stupid whore who settles for money (as Red Hat did), tacitly acknowledging that there must be some substance in Firestar's patent claims (as the Red Hat settlement implies)! Don't bend to the idiotic standpoint that "whatever can be done faster and it appears to be cheaper is the best choice for us" (as Red Hat did).
Unfortunately, I was right one month ago. Software patent claims can be overcome if you really use your brains (and money), but obviously you need the willingness to do do. I hope the stupid assholes at Red Hat Inc. do realize that this is a dark day for their stupid shitheads. At least the CEO should resign if they had any sense of honor — but... honor in the United States?!
I don't like attorneys and I don't like corporations. Nevertheless, today I admire Sun Microsystems Inc., and I would buy SUNW JAVA stock, should I have the money to do it, and should I believe in stock markets (which I don't).
It's not that Sun has better lawyers than Red Hat. It's that Sun has better top management than Red Hat! The #1 Linux company gave the wrong message to the community, going for petty deals and thinking "wow, we're great because we did better than Novell!". Red Hat is a shame, period. They were simply feeding the trolls — it's the same as when you simply pay the protection tax to the Mafia instead of calling the police and trying to fight with the evildoers.
Plus, the stupid Red Hat management was so willing to come with a triumphant message (triumphant? maybe for the whores), that they couldn't wait: they were informed by Sun about their actions; if only had Red Hat waited a little longer, they could have benefited without settling. But no, Red Hat has just proven that they're managed worse than you might think.
I have several proofs that Red Hat is a bunch of lazy people. I no longer recommend anyone to buy their Enterprise Linux, nor to use the free rebuilds of it. They're so lazy that they broke "on purpose" the internal web browser component of Eclipse in RHEL 5.2, because libswt3-gtk2 doesn't have a xulrunner-based replacement, and RHEL 5.2 stopped shipping libgtkmozembed due to the upgrade from FF 1.5 to FF 3. Just how idiots could they be? Are they Red Hat or Microsoft? Ironically, there is a very simple workaround, but Red Hat is to lazy to be willing to fix things they break with a customary update of their flagship product...
The only problem with Sun is that OpenSolaris and Solaris Express are far, far away from the point where they would be suitable for everyone's desktop or laptop, and derivatives such as Nexenta are not there yet either.
Still, today we should congratulate Sun for they were successful to prove that nobody should do what Red Hat is doing. Nobody.
UPDATE, July 15: It's even worse for those who still believed that Red Hat's settlement was a light issue. Today, they have officially issued A Reader’s Guide to the Firestar Settlement (by Rob Tiller, Vice President and Assistant General Counsel, IP). They have also made available a scan of the actual document, with the financial figures removed from Section 3, as required by section 7.1, "Confidentiality Obligation".
What matters is that the agreement:
(1) is about "Licensed Patents", therefore Red Hat implicitly accepts the validity of the respective patents;
(2) Section 3, "Payment", is confidential, as it's customary with unethical contracts (Red Hat is ashamed to admit how much they have paid, while DataTerm/FireStar and Amphion don't want other patent trolls to know for how little they have licensed those 3 patents that are still valid);
(3) typically American (yes, Max!), Section 9.9 "No Admission" is a LIE IN FULL and an oxymoron: «No Party admits any wrongdoing whatsoever. [...] Red Hat makes no admission regarding the Licensed Patents, including the admission that any Licensed Patent is infringed, valid or enforceable.»
Simply put, this is an insult to EVERYBODY, and I don't care this is common practice in the United States! Only a completely idiot would find the two parts of the settlement simultaneously valid: (1) One part Licenses some patents, and Red Hat pays something for that; (2) Red Hat does not admit that any of the Licensed Patents are valid and enforceable! (If they're not valid, what exactly are they paying for? It's not even "extortion", because the document reads "Licensed Patents"!)
Are we all considered stupid? When Linux depends of this kind of corporate lawyerspeak (LIES, LIES and LIES again), I suppose that anything else would be better. Just anything, from Windows to FreeBSD to whatever better you can find (other BSD flavors, Solaris flavors, you name them).
RE-UPDATE, July 16: I am sorry I have to use a "subscriber free link", but I've really enjoyed Jonathan's analysis, and so should you: What Red Hat and Firestar agreed to. «So one might well wonder why Red Hat chose to pay the troll in this particular case. And, incidentally, Red Hat did pay. Naturally enough, the specific payment terms have been removed from the agreement, but a payment was a part of the deal. [...] The settlement itself reads somewhat like a Pascal program; one must start toward the bottom and read it in reverse. Following that analogy, the main program can be found in section 5.2.»
A good deal of analysis is made to identify who or what is actually protected by Red Hat's patent settlement: «Who, exactly, is a Red Hat Community Member?» Also, what is "a Red Hat Product", what is a "Red Hat Derivative Product", and what is "any predecessor version"? «What this section is saying is that, if a derived product contains infringing code, that infringing code must have been part of the covered Red Hat product as well. [...] one must first convince Red Hat to distribute that software at least once.»
A practical statement: «So, even if Sun is ultimately successful in its challenge (as seems likely), Red Hat will not be getting its money back under the terms of this agreement.»
And an ethical one: «Red Hat's initial press release claimed that this settlement demonstrated the company's commitment to standing up for the community in the face of patent trolls, and stated that it would discourage any future such cases. At this point it seems fairly evident that Sun has made a better show of standing up for the community and discouraging future cases. What Red Hat has done, though, is to show us how future patent problems could be resolved in the absence of obvious prior art. If one must pay the troll, one would do well to come out with an agreement like this one and, at least, keep the troll away from the rest of the community.»
18 commentsYou, know I've read your blog for a while now, and when you complain about technical decisions made in either Fedora or RHEL, sometimes I agree with you, sometimes I point other co-workers at your arguments, etc.
As far as I'm concerned, you could write every single one of your posts about all the things that are broken in Fedora, or RHEL, or how disagree with technical decisions that we make, or legal decisions that were made, or whatever. And I would read it, and I would never take offense. It's just business.
But really annoys me when you say things like "but... honor in the United States?!" because that is a nasty generalization to make, and you ought to know better. It's sloppy writing, and makes people inclined to just ignore you wholesale rather than bother to actually think about the points you are making.
Max,
You're right, that _was_ a nasty generalization.
However, you must be aware that all the honor system in the US is hypocritical. A few samples:
(1) It's not all BS when you see in the movies that almost anyone who would not happily collaborate or offer information for nothing will gladly do so when tipped with something like $10-20 or whatever it takes.
(2) Honor in the US Army? When the US Army invaded countries like Iraq, and have acted their in the purest Nazi style? (It's much, much more than Abu Ghraib.)
(3) In the whole society, the #1 value is MONEY (or PROFIT), not any human value. A country that claims to be one of the most religious among the developed countries is the most egoistical and inhuman of all!
(4) Life in US prisons _can_ kill you easier than in other developed countries.
(5) The health care in the US is the most expensive in the known Universe.
(6) The US society is maybe the most violent one from the G7 countries.
(7) The US is the most important world penitentiary, with more than 0.7% of the population behind bars -- there are more inmates in the US than in China!
Yet, the priests, the rabbis, etc. etc. are telling the Americans to care about people, to be correct, and whatever the religion is supposed to tell people.
I personally believe that the US population is *not* having more *real* values than people in other countries. The exaggerate US national pride is more of a brainwash -- the way it used to be in the USSR or the way it still is in China.
I use US-made products, I appreciate a good deal of US-born or US-living people, but the US as a country is the Hell on Earth. That's my opinion -- at least until China will f-- us all (but what's happening in Asia is also the suicidal fruit of the US greed).
Honor is an obsolete concept in this century. It died on this planet before the middle of the 20th century...
...and I am not sure it ever existed in the US! Think for instance at what you did to the Native Americans: after you signed agreements with them, you eventually disregarded all the signed papers, you stole the lands from them, and you pretty much exterminated them!
Now tell me again about honor. I'll tell you of all the Latin American dictators sponsored by the CIA for a half-century (and the democratic leaders killed with the support of the CIA), while your country was claiming "no, we're not as evil as the USSR, and we're not dictating what other countries should do!"
Kissinger, on Salvador Allende's election in Chile, and prior to Augusto Pinochet's coup: "I don't see why we need to stand by and watch a country go communist due to the irresponsibility of its people. The issues are much too important for the Chilean voters to be left to decide for themselves."
Now tell me again about honor *and* the United States. 'Cause I could go on with the examples of American hypocrisy...
"Don't bloody be a stupid whore who settles for money (as Red Hat did)"
Red Hat never paid anybody anything. They just got a very broad patent license and both the parties agreed to drop the suit.
http://lwn.net/Articles/289786/
You once again are making claims which you have no clue about.
> Red Hat never paid anybody anything.
Neo, you are again a stupid asshole -- I don't even know why am I approving your idiot comment, because your brain will never understand anything!
YES, THE FUCKING RED HAT HAS PAID FOR A FINANCIAL SETTLEMENT WITH FIRESTAR, YOU MORON!
(1) Reuters, June 11, http://www.reuters.com/article/technologyNews/idUSN1035078820080611 ("Red Hat settles 2 patent lawsuits filed against it"): «Financial terms of the settlements were not disclosed.» Which obviously means there were money paid, it's just we dunno how much.
(2) Red Hat Press Release, June 11, http://www.redhat.com/about/news/prarchive/2008/patent.html and http://www.press.redhat.com/2008/06/11/red-hat-puts-patent-issue-to-rest/ ("Red Hat Puts Patent Issue to Rest"): «Red Hat denied the infringement claims and in time drove a settlement that not only ended the particular claims against it, but also provided for extensive protections for its customers and the larger open source community that Red Hat relies upon.» NO patent was invalidated, and Firestar did NOT drop any claim, but you, Neo, you are expecting this settlement to be made for no money???
(3) http://walkingwithelephants.blogspot.com/2008/06/no-longer-quiet-red-hat-and-patent.html : «Red Hat disposed of the claims in a fiscally responsible manner given the cost of patent litigation.» --> Which means that this settlement was CHEAPER than a litigation (at least, this is what Red Hat thought), but NOT FREE!
EVERYBODY KNOWS THAT RED HAT HAS PAID! Only the idiot talibans claim they don't understand that...
Does anyone know that Redhat has already paid them or the cheque is still in the drawer ?
Béranger,
"However, you must be aware that all the honor system in the US is hypocritical."
Maybe you don't think that the elected officials in the US have honor, and that is an opinion that you are entitled to. But the answer to *that* doesn't have any impact on whether or not individual people have honor, regardless of their location. And I take very seriously my own personal sense of honor.
That's all I am trying to say.
Maybe some day I will run for office and try to fix things, but I don't think I'd get elected, unfortunately.
Red Hat's CEO is newly arrived from Delta Air Lines; depending on how long this settlement has been in the works (not that long, I suppose) I wonder if it's just a (hopefully temporary) mismatch between traditional views on litigation and the world of intellectual property.
Regarding ABI breakage, I must say that, in the end, "ugly" Debian-style package naming convention (of suffixing the ABI part of the version number) pays off when it comes to shipping older libraries. Fedora users can expect backward-incompatible changes but when that happens in the enterprise product, I must say it's a bad decision made easier by a bad default.
Max,
Why are you taking it so personally? It was a about a CULTURAL model and about a SOCIETY -- the North American one. Particular individuals still behave differently than the general pattern, but I was trying to say that in a society where "Money > Honor", no CEO would resign on "matters of honor".
The world is full of clichés: the Romanians are thieves; the Greeks are lazy; the Britons are pompous asses with no sense of gastronomy; the French are lazy pompous asses who believe they're great lovers, but at least they know what gastronomy is about; the Germans are the best technical engineers (which is not true), when they don't stuff themselves with beer and wurst; etc. etc. There are also popular sayings common to several people: for instance, there is a saying "take 2 Romanians and you'll get 3 opinions", but I also heard it as "take 2 Jews and you'll get 3 opinions". Either way, there is no reason to get mad on such quick generalizations.
To me, the American society/culture/system is the most hypocritical of all, because it's based in theory on the "best democratic ingredients", but the results are really lame (e.g. except for South Africa, the US was the last country where "colored people" had less rights than the "Caucasians", and this was not only because of the legal system, it was also about the criminally abject mentality in the South).
Honor is in theory valued in America (the general solidarity on and immediately after 9/11 was an expression of it), but in the long run, nobody really cared about the "collateral victims" of 9/11 (e.g. the firemen, see "Sicko"), and the Homeland Security framework was set in the purest Stalinist style. Moreover, national pride, solidarity and honor end up when comes to money: people are still mostly buying what's cheaper, not what's American, and the economy is not doing so well.
"Honor in America" was mostly targeted to the business effects. Unless you are the real Red Hat CEO, you don't have to worry, it wasn't targeted at you :-)
As for "running for the Office", I'm afraid this would be useless anyway. Right now, if Obama gets elected, NOTHING will really change, except for small details. This Establishment can't allow radically different people to get up to the top. And even if such a thing would happen, a single man can't change such a tentacular system. Stop believing in a broken system, Max!
Michel,
"traditional views on litigation and the world of intellectual property", you say?
It's not "traditional", it's "American".
Before having the American MONEY-THINKING screwing it, the "traditional" view was that, step by step:
1. Someone accuses you of something and claims reparation.
2. The two parts can't agree, so they went to court, usually at the complaint of the part who is accusing.
3. TO HAVE YOUR HONOR CLEANED, you need to fight until a final court judgment says you're INNOCENT.
4. Alternatively, you can HAVE YOUR HONOR CLEANED if the plaintiff agrees to WITHDRAW the cause, so the lawsuit is dismissed. You can still risk to be charged one more time in the future as long as there was no court judgment, so you might want to make a settlement with the other part not to sue you in the future. Your weapon is the threat that YOU will sue them for defamation (slander/libel), because your honor was not cleared in court, and your image and your business may suffer! As a result of *such* an off-court settlement, YOU'RE NOT SUPPOSED TO PAY! It might be even the other part who pays for your attorney's fees, should it want you not to sue them! The advantage for the plaintiff is that there is no judge to have said them: "you were wrong and/or you were lying".
Today, the "American view of litigation" is that, if the defendant "believes" the trial to be long and expensive, it tries to reach a FINANCIAL OFF-COURT SETTLEMENT with the plaintiff. This way, there is no court decision to blame any of them, *and* the dispute is settled *faster* and... "cheaper". However, NOBODY can tell who is on the part of the TRUTH in this case! As in almost all the cases the financial terms are CONFIDENTIAL, no one could tell "how much guilt have the parts agreed that the defendant is having", as long as you don't know how much was the pay. But it was definitely LOGICALLY EQUIVALENT TO A (PARTIAL) RECOGNITION OF THE ACCUSATION, OTHERWISE WHY PAYING?
Of course, John Doe might agree to pay when sued by the RIAA or the MPAA. He can't afford lengthy trials. It's a matter of surviving out of jail, after all: what do you do if, because of having a cheap lawyer, the court orders you to may $millions, and you don't have those $millions? You simply go to jail.
But Red Hat COULD afford long trials with the no-name company who sued them! When, in such conditions, you make an out-of-court financial settlement with confidential financial terms, there are only 2 explanations:
1. You don't believe that justice can be made in the United States, even with the truth on your side, and even with the best lawyers money can buy.
2. You don't know if you have actually infringed those patents, and you accept that the patents "might" be "relatively valid", so you accept "some degree of guilt", hence you settle with the plaintiff.
If this is not an insult to the US Judicial system, then it's an ENDORSEMENT of the respective patents!
Feeding the patent trolls, in other words, by agreeing to pay an "extortion tax", being it moderate or "a good deal".
This is anything but honor. Centuries ago, people were ready to die to defend their honor.
Now, they can't even admit they were wrong...
It's even worse, now that Red Hat has published their Firestar settlement...
Oh, a stupid individual claims the following: «Red Hat didn't pay anything. In fact Red Hat got paid because the prior art submitted by them which would have made Firestar lose its patents.»
There is no proof for that. Is it customary to License something TO someone, then to pay TO that someone for that?
If Red Hat knew that the patent could have been invalidated so easily (see Sun's approach), then they have did EVEN WORSE by making the settlement that LICENSES those patents! No matter their settlement protects the downstream too, with no restrictions (unlike Novell's patent covenant with Microsoft), as long as Red Hat DID NOT followed the full path to the invalidation of those patents, they were irresponsible! For instance, Firestar claims can still be made against other operating systems!
Now, I don't think Red Hat was paid by those patent trolls. Going forward to invalidate the patents would still have entitled Red Hat to ask for damages, and the public image of Red Hat would have been even better: hey, software patents can be invalidated, and here's Red Hat doing it!
But, IF Red Hat was indeed paid to shut up, THEN this is even criminal! It's like making profits on the expenses of other operating systems (the BSDs, Solaris, whatever) not covered by this settlement!
In the meantime, Sun's approach, although not animated by altruism, has effect ON EVERYBODY, once it will be final, and those patents will be invalidated for good.
>>> But, IF Red Hat was indeed paid to shut up, THEN this is even criminal! It's like making profits on the expenses of other operating systems (the BSDs, Solaris, whatever) not covered by this settlement!
Tsk tsk. Novell. Also SCO (Microsoft and Sun licensed from them after the suit).
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http://linux.slashdot.org/linux/08/07/20/1457250.shtml
Regarding honour in the United States:
Many years ago I was amazed at reading the American saying from the 19th century, apparently a father advising his son:
"There's a sucker born every minute, who is only waiting for you to help him part with his money."
- amazed, because I thought what kind of morality is that?!?
So your comment regarding the lack of honour in the U.S. is only wrong in the timing - honour had died already in the 19th century, possibly much earlier - if there ever was any to begin with.
Do you know about Mark Twain's suggestion for the American flag (white skulls on black, and black and white stripes) from around 1900, regarding the U.S. policy in the Philippines?
Ciol,
That's correct. I recently discovered I enjoy LinuxHater, and obviously this is not for any love of Windows or something.
Ned,
In some regards, the United States is one of the most important failed projects: it had all the ingredients to be a great nation, but everyone can see what a fraud it is.
Samuel Clements was a brilliant guy, but even him would have been surprised to see what happened next to the Philippine-American War, when the order was "KILL EVERYONE OVER TEN" -- they had no Abu Ghraib and no Guantanamo at the time, right?
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Great news! That's the way to go!