Hello, Not sure if anyone at Sun can comment on this, but I thought it might be of interest to the list:> This morning, NetApp filed an IP (intellectual property) lawsuit > against Sun. It has two parts. The first is a ?declaratory > judgment?, asking the court to decide whether we infringe a set of > patents that Sun claims we do. The second says that Sun infringes > several of our patents with its ZFS technology.http://blogs.netapp.com/dave/2007/09/netapp-sues-sun.html He goes on to explain some of the logic behind NetApp''s reaction. Regards, David
More here http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9034496 On 9/5/07, David Magda <dmagda at ee.ryerson.ca> wrote:> Hello, > > Not sure if anyone at Sun can comment on this, but I thought it might > be of interest to the list: > > > This morning, NetApp filed an IP (intellectual property) lawsuit > > against Sun. It has two parts. The first is a "declaratory > > judgment", asking the court to decide whether we infringe a set of > > patents that Sun claims we do. The second says that Sun infringes > > several of our patents with its ZFS technology. > > http://blogs.netapp.com/dave/2007/09/netapp-sues-sun.html > > He goes on to explain some of the logic behind NetApp''s reaction. > > Regards, > David > _______________________________________________ > zfs-discuss mailing list > zfs-discuss at opensolaris.org > http://mail.opensolaris.org/mailman/listinfo/zfs-discuss >-- Paul Kraus
This is my personal opinion and all, but even knowing that Sun encourages open conversations on these mailing lists and blogs it seems to falter common sense for people from @sun.com to be commenting on this topic. It seems like something users should be aware of, but if I were working at Sun I would feel a very strong urge to clear any public conversation about the topic with management. As always, I do appreciate the frank insight given from the sun folks -- I am just worried that you may be doing yourself a disservice talking about it. -Wade
> This is my personal opinion and all, but even knowing that Sun >encourages open conversations on these mailing lists and blogs it seems to >falter common sense for people from @sun.com to be commenting on this >topic. It seems like something users should be aware of, but if I were >working at Sun I would feel a very strong urge to clear any public >conversation about the topic with management. As always, I do appreciate >the frank insight given from the sun folks -- I am just worried that you >may be doing yourself a disservice talking about it.Quite; it seems to all be done with blogs. After Netapp''s blog, we now see Sun''s CEO enter into the fray: http://blogs.sun.com/jonathan/entry/on_patent_trolling And no, I won''t comment. Casper
At 09:33 AM 9/6/2007, Wade.Stuart at fallon.com wrote:> This is my personal opinion and all, but even knowing that Sun >encourages open conversations on these mailing lists and blogs it seems to >falter common sense for people from @sun.com to be commenting on this >topic. It seems like something users should be aware of, but if I were >working at Sun I would feel a very strong urge to clear any public >conversation about the topic with management. As always, I do appreciate >the frank insight given from the sun folks -- I am just worried that you >may be doing yourself a disservice talking about it."The wicked flee when none pursue, but the righteous are bold as a lion." (Proverbs 28:1) Legally dangerous today, but I entirely understand the attitude. And this case will be fought as much in the court of public opinion as anywhere else; for Sun to get so lawyered up they silence their people while NetApp''s CEO is playing a restrained version of the McBride game ... not a good idea, I think. E.g. what am I to think about taking the last steps to get OpenSolaris and ZFS running on my just built home file server? NetApp''s assurances they aren''t going to go after non-commercial and individual users is entirely worthless (can be withdrawn in a moment), and of course silly WRT the long term viability of ZFS. I, for one, do not welcome our new storage overlords, I don''t want to add a $$$ NVRAM RAID-6 host adaptor to my system and switch to Linux (ugh) since it is unlikely to have OpenSolaris support.... - Harold
On Thu, 6 Sep 2007, Harold Ancell wrote:> At 09:33 AM 9/6/2007, Wade.Stuart at fallon.com wrote: > >> This is my personal opinion and all, but even knowing that Sun >> encourages open conversations on these mailing lists and blogs it seems to >> falter common sense for people from @sun.com to be commenting on this >> topic. It seems like something users should be aware of, but if I were >> working at Sun I would feel a very strong urge to clear any public >> conversation about the topic with management. As always, I do appreciate >> the frank insight given from the sun folks -- I am just worried that you >> may be doing yourself a disservice talking about it. > > "The wicked flee when none pursue, but the righteous are bold as a lion." > > (Proverbs 28:1) > > Legally dangerous today, but I entirely understand the attitude. And > this case will be fought as much in the court of public opinion as > anywhere else; for Sun to get so lawyered up they silence their > people while NetApp''s CEO is playing a restrained version of the > McBride game ... not a good idea, I think. > > E.g. what am I to think about taking the last steps to get OpenSolaris > and ZFS running on my just built home file server? NetApp''s assurances > they aren''t going to go after non-commercial and individual users is > entirely worthless (can be withdrawn in a moment), and of course silly > WRT the long term viability of ZFS. I, for one, do not welcome our new > storage overlords, I don''t want to add a $$$ NVRAM RAID-6 host adaptor > to my system and switch to Linux (ugh) since it is unlikely to have > OpenSolaris support.... >Playing with patent portfolios is the modern equivalent to playing the "mutually assured destruction" game with nuclear missiles. Yes we all appreciate how dangereous this game is and how high the stakes are. But ... notice that a live/armed ballistic missile has never been fired at a "target". So back to patent portfolios: yes there will be (public and private) posturing; yes there will be negotiations; and, ultimately, there will be a resolution. All of this won''t affect ZFS or anyone running ZFS. Just like nuclear ballistic missiles don''t affect computer users either! What does all this mean to current ZFS users? Absolutely nothing. In the meantime, enjoy the show. :) Sun has all the resources necessary to play this (patent) game to its logical conclusion. Now ... back to our regularly scheduled ZFS technical discussions. PS: If there was a _real_ issue with WAFL/Netapp patent infringement - it would have been brought up way before ZFS was released and open sourced. Regards, Al Hopper Logical Approach Inc, Plano, TX. al at logical-approach.com Voice: 972.379.2133 Fax: 972.379.2134 Timezone: US CDT OpenSolaris Governing Board (OGB) Member - Apr 2005 to Mar 2007 http://www.opensolaris.org/os/community/ogb/ogb_2005-2007/
>Playing with patent portfolios is the modern equivalent to playing the >"mutually assured destruction" game with nuclear missiles. Yes we all >appreciate how dangereous this game is and how high the stakes are. >But ... notice that a live/armed ballistic missile has never been >fired at a "target".Now that you mention Nuclear weapons, am I really the only one who is amused by the uproar about a B52 with nukes flying over the US? Until the Minuteman missiles came online, we had B52s in Europe''s airspace 24/7 full with nukes (and some did crash and non exploded). (That they were accidently loaded is, of course, another matter; it reminds me of the nuclear plant which was sold for scrapmetal and nearly exported) I''m somewhat surprised that people feel that Sun employees should speak out on this matter. Both Netapp and Sun seem to leave that to their CEOs (apart from the lawyers who fling documents at one another). I''m guessing that Linus is now really happy about having said this: "I suspect we''d be better off talking to NetApp, and seeing if they are interested in releasing WAFL for Linux" Casper
Nicolas Williams
2007-Sep-06 17:19 UTC
[zfs-discuss] Nuke accidents (Re: ZFS/WAFL lawsuit)
On Thu, Sep 06, 2007 at 06:20:55PM +0200, Casper.Dik at Sun.COM wrote:> Now that you mention Nuclear weapons, am I really the only one who > is amused by the uproar about a B52 with nukes flying over the US?Europe does not have the anti-nuke opinion set market cornered, ya know?> Until the Minuteman missiles came online, we had B52s in Europe''s > airspace 24/7 full with nukes (and some did crash and non exploded). > > (That they were accidently loaded is, of course, another matter;*That* is the issue. If a nuke is/is going where it wasn''t supposed to be, well, that just plain sucks.> it reminds me of the nuclear plant which was sold for scrapmetal > and nearly exported)It''s a good way to export^Wget rid of the radioactivity ;)
At 11:06 AM 9/6/2007, Al Hopper wrote:>On Thu, 6 Sep 2007, Harold Ancell wrote: > >>At 09:33 AM 9/6/2007, Wade.Stuart at fallon.com wrote: >> >>> This is my personal opinion and all, but even knowing that Sun >>>encourages open conversations on these mailing lists and blogs it seems to >>>falter common sense for people from @sun.com to be commenting on this >>>topic. It seems like something users should be aware of, but if I were >>>working at Sun I would feel a very strong urge to clear any public >>>conversation about the topic with management. As always, I do appreciate >>>the frank insight given from the sun folks -- I am just worried that you >>>may be doing yourself a disservice talking about it. >> >>"The wicked flee when none pursue, but the righteous are bold as a lion." >> >>(Proverbs 28:1) >> >>Legally dangerous today, but I entirely understand the attitude. And >>this case will be fought as much in the court of public opinion as >>anywhere else; for Sun to get so lawyered up they silence their >>people while NetApp''s CEO is playing a restrained version of the >>McBride game ... not a good idea, I think. >> >>E.g. what am I to think about taking the last steps to get OpenSolaris >>and ZFS running on my just built home file server? NetApp''s assurances >>they aren''t going to go after non-commercial and individual users is >>entirely worthless (can be withdrawn in a moment), and of course silly >>WRT the long term viability of ZFS. I, for one, do not welcome our new >>storage overlords, I don''t want to add a $$$ NVRAM RAID-6 host adaptor >>to my system and switch to Linux (ugh) since it is unlikely to have >>OpenSolaris support....>Playing with patent portfolios is the modern equivalent to playing the "mutually assured destruction" game with nuclear missiles. Yes we all appreciate how dangereous this game is and how high the stakes are. But ... notice that a live/armed ballistic missile has never been fired at a "target".Ummm, unless NetApp is lying, one such "ballistic missile" has been fired from a Texas courthouse and targeted at ZFS.>So back to patent portfolios: yes there will be (public and private) posturing; yes there will be negotiations;You go to the courts when you feel you have nothing to gain by negotiations---by definition, a lawsuit is not a negotiation, it''s an attempt by one party to get the government to coerce action out of the other party. And like a missile, you cannot call one back after it is launched. Suppose this is just "posturing": If NetApp and Sun were to settle today, there is no way would such an agreement not include dismissal of the suit "with prejudice" so that it could not be filed again. NetApp would not want such a possibility in case they later wanted to sue "for real".>and, ultimately, there will be a resolution.Indeed: my vote is for NetApp by the middle of the next decade being staked out on a bleached desert plain next to SCO, another stark object lesson to those who are tempted to compete in the courtroom instead of the marketplace.>All of this won''t affect ZFS or anyone running ZFS. Just like nuclear ballistic missiles don''t affect computer users either!While it proceeded the development of the modern ICBM or computers as we know then, I suggest you ask one of the survivors of the nuclear bombings of Japan if they weren''t affected by the Little Boy or Fat Man. To suggest that the existence of thousands of ceni-kiloton warheads atop delivery systems have no real meaningful existence (I hope I''m not misinterpreting your words) leaves me at a loss for further comment....>What does all this mean to current ZFS users? Absolutely nothing.Today, it means nothing. Tomorrow, if Sun is enjoined from developing ZFS, rather a lot. If that extends to other commercial users of it (directly, or if they decide they need more support than the community can provide), even more. Would the former kill off ZFS---*maybe* not. The latter? Almost certainly, except as a curiosity.>PS: If there was a _real_ issue with WAFL/Netapp patent infringement - it would have been brought up way before ZFS was released and open sourced.It only takes one to make a war---how could Sun possibly constrain the future behavior of a competitor (assuming for the moment that Sun''s account of the timeline is true and that the lawsuit is meritless)? While I''m not suggesting that people panic (certainly not for the next few days :-), ignoring a clear existential threat to ZFS would be silly. Perhaps discussing it is beyond what should be the scope of this list, in which case surely someone could set another one up---there is much to be said for segregating the discussions especially when they don''t hinge so much on the technology per se---but to ignore this? I think not. - Harold
> > >Playing with patent portfolios is the modern equivalent to playing > the "mutually assured destruction" game with nuclear missiles. Yes > we all appreciate how dangereous this game is and how high the > stakes are. But ... notice that a live/armed ballistic missile has > never been fired at a "target". > > Ummm, unless NetApp is lying, one such "ballistic missile" has been > fired from a Texas courthouse and targeted at ZFS. > > >So back to patent portfolios: yes there will be (public and > private) posturing; yes there will be negotiations; > > You go to the courts when you feel you have nothing to gain by > negotiations---by definition, a lawsuit is not a negotiation, it''s > an attempt by one party to get the government to coerce action > out of the other party. And like a missile, you cannot call one > back after it is launched. Suppose this is just "posturing": > > If NetApp and Sun were to settle today, there is no way would such > an agreement not include dismissal of the suit "with prejudice" so > that it could not be filed again. NetApp would not want such a > possibility in case they later wanted to sue "for real".Or to force more posturing pressure for negotiations -- many of these cases end up settled out of court. In fact it seems to be a very complex game of chess -- currently patents are most useful for cross licensing deals (to hold players out of the market, expand into markets or to collapse markets). Bringing patents into court can have the unwanted and expensive side effect of negating the patents enforcibility (prior art, failed measuring stick etc). Much of a patents value is perception. I think this is why the first case put forward by NetApp is to rule on if they infringe on Sun''s patents (and to try to negate them). Sun''s first move will most likely be to engage on the second part of the suit -- to lock NetApp into a battle where they must endanger their own patents (no safe retreat), thus weakening netapps position.> > >and, ultimately, there will be a resolution. > > Indeed: my vote is for NetApp by the middle of the next decade being > staked out on a bleached desert plain next to SCO, another stark > object lesson to those who are tempted to compete in the courtroom > instead of the marketplace. > > >All of this won''t affect ZFS or anyone running ZFS. Just like > nuclear ballistic missiles don''t affect computer users either! > > While it proceeded the development of the modern ICBM or computers > as we know then, I suggest you ask one of the survivors of the nuclear > bombings of Japan if they weren''t affected by the Little Boy or Fat Man. > > To suggest that the existence of thousands of ceni-kiloton warheads > atop delivery systems have no real meaningful existence (I hope I''m not > misinterpreting your words) leaves me at a loss for further comment.... >While a colorful analogy, mutually assured destruction is not really a good fit at all for these issues. It is chess (be it a game with a wager).> >What does all this mean to current ZFS users? Absolutely nothing. > > Today, it means nothing. > > Tomorrow, if Sun is enjoined from developing ZFS, rather a lot. If > that extends to other commercial users of it (directly, or if they > decide they need more support than the community can provide), even > more. Would the former kill off ZFS---*maybe* not. The latter? > Almost certainly, except as a curiosity. > > >PS: If there was a _real_ issue with WAFL/Netapp patent > infringement - it would have been brought up way before ZFS was > released and open sourced. > > It only takes one to make a war---how could Sun possibly constrain the > future behavior of a competitor (assuming for the moment that Sun''saccount> of the timeline is true and that the lawsuit is meritless)? > > While I''m not suggesting that people panic (certainly not for the nextfew> days :-), ignoring a clear existential threat to ZFS would be silly.Perhaps> discussing it is beyond what should be the scope of this list, in which > case surely someone could set another one up---there is much to be saidfor> segregating the discussions especially when they don''t hinge so much onthe> technology per se---but to ignore this? I think not. > > - HaroldIt really is a shot in the dark at this point, you really never know what will happen in court (take the example of the recent court decision that all data in RAM be held for discovery ?!WHAT, HEAD HURTS!?). But at the end of the day, if you waited for a sure bet on any technology or potential patent disputes you would not implement anything, ever.
>It really is a shot in the dark at this point, you really never know what >will happen in court (take the example of the recent court decision that >all data in RAM be held for discovery ?!WHAT, HEAD HURTS!?). But at the >end of the day, if you waited for a sure bet on any technology or >potential patent disputes you would not implement anything, ever.Do you have a reference for "all data in RAM most be held". I guess we need to build COW RAM as well. Casper
zfs-discuss-bounces at opensolaris.org wrote on 09/06/2007 01:14:56 PM:> > > >It really is a shot in the dark at this point, you really never knowwhat> >will happen in court (take the example of the recent court decision that > >all data in RAM be held for discovery ?!WHAT, HEAD HURTS!?). But at the > >end of the day, if you waited for a sure bet on any technology or > >potential patent disputes you would not implement anything, ever. > > > Do you have a reference for "all data in RAM most be held". I guess we > need to build COW RAM as well.It is only a magistrate ruling so far -- but I think it is expected to be upheld. http://www.law.com/jsp/article.jsp?id=1181639142254
It''s Columbia Pictures vs. Bunnell: http://www.eff.org/legal/cases/torrentspy/columbia_v_bunnell_magistrate_order.pdf The Register syndicated a Security Focus article that summarizes the potential impact of the court decision: http://www.theregister.co.uk/2007/08/08/litigation_data_retention/ -j On Thu, Sep 06, 2007 at 08:14:56PM +0200, Casper.Dik at sun.com wrote:> > > >It really is a shot in the dark at this point, you really never know what > >will happen in court (take the example of the recent court decision that > >all data in RAM be held for discovery ?!WHAT, HEAD HURTS!?). But at the > >end of the day, if you waited for a sure bet on any technology or > >potential patent disputes you would not implement anything, ever. > > > Do you have a reference for "all data in RAM most be held". I guess we > need to build COW RAM as well. > > Casper > > _______________________________________________ > zfs-discuss mailing list > zfs-discuss at opensolaris.org > http://mail.opensolaris.org/mailman/listinfo/zfs-discuss
On Thu, Sep 06, 2007 at 01:18:27PM -0500, Wade.Stuart at fallon.com wrote:> zfs-discuss-bounces at opensolaris.org wrote on 09/06/2007 01:14:56 PM: > > >It really is a shot in the dark at this point, you really never know > what > > >will happen in court (take the example of the recent court decision that > > >all data in RAM be held for discovery ?!WHAT, HEAD HURTS!?). But at the > > >end of the day, if you waited for a sure bet on any technology or > > >potential patent disputes you would not implement anything, ever. > > > > > > Do you have a reference for "all data in RAM most be held". I guess we > > need to build COW RAM as well. > > It is only a magistrate ruling so far -- but I think it is expected to be > upheld. > > http://www.law.com/jsp/article.jsp?id=1181639142254It sounds like the issue is that discoverable data (access logs) isn''t being kept on disk. Demanding that such data be kept persistently is not the same as demanding that RAM be retained for discovery. Woo. Big deal. Not. If that''s the correct reading of the story then the story is very badly written. Or am I misreading the story?
On Thu, Sep 06, 2007 at 01:25:32PM -0500, Nicolas Williams wrote:> On Thu, Sep 06, 2007 at 01:18:27PM -0500, Wade.Stuart at fallon.com wrote: > > zfs-discuss-bounces at opensolaris.org wrote on 09/06/2007 01:14:56 PM: > > > >It really is a shot in the dark at this point, you really never know > > what > > > >will happen in court (take the example of the recent court decision that > > > >all data in RAM be held for discovery ?!WHAT, HEAD HURTS!?). But at the > > > >end of the day, if you waited for a sure bet on any technology or > > > >potential patent disputes you would not implement anything, ever. > > > > > > > > > Do you have a reference for "all data in RAM most be held". I guess we > > > need to build COW RAM as well. > > > > It is only a magistrate ruling so far -- but I think it is expected to be > > upheld. > > > > http://www.law.com/jsp/article.jsp?id=1181639142254 > > It sounds like the issue is that discoverable data (access logs) isn''t > being kept on disk. Demanding that such data be kept persistently is > not the same as demanding that RAM be retained for discovery. Woo. Big > deal. Not. > > If that''s the correct reading of the story then the story is very badly > written. Or am I misreading the story?Hmmm, the order itself goes on and on about RAM. I think the judge should have been clearer that the issue is the specific data, as opposed to generic RAM contents.
> > > > If that''s the correct reading of the story then the story is very badly > > written. Or am I misreading the story? > > Hmmm, the order itself goes on and on about RAM. I think the judge > should have been clearer that the issue is the specific data, as opposed > to generic RAM contents.Exactly the articles point -- rulings have consiquences outside of the original case. The intent may have been to store logs for web server access (logical and prudent request) but the ruling states that RAM albeit working memory is no different then other storage and must be kept for discovery. This is generalized because (as I understand) the defense was arguing "logs are not turned on -- they do not exist" and that was met with "of course the running program has this information in RAM and you are disposing of it" ad nauseam. The only saving grace for the ruling is that it is not a higher court.
On Thu, Sep 06, 2007 at 01:38:22PM -0500, Wade.Stuart at fallon.com wrote:> > > If that''s the correct reading of the story then the story is very badly > > > written. Or am I misreading the story? > > > > Hmmm, the order itself goes on and on about RAM. I think the judge > > should have been clearer that the issue is the specific data, as opposed > > to generic RAM contents. > > Exactly the articles point -- rulings have consiquences outside of the > original case. The intent may have been to store logs for web server > access (logical and prudent request) but the ruling states that RAM albeit > working memory is no different then other storage and must be kept for > discovery. This is generalized because (as I understand) the defense was > arguing "logs are not turned on -- they do not exist" and that was met > with "of course the running program has this information in RAM and you are > disposing of it" ad nauseam. The only saving grace for the ruling is that > it is not a higher court.Allowing for technical illiteracy in judges I think the obvious interpretation is that discoverable data should be retained and that "but it exists only in RAM" is not a defense, and rightly so. Further, the implication for computer and software engineers is that operating systems and applications must allow for persisting discoverable data. That is generally the case, by the way. I don''t see the implication that every write to a location in RAM must result in persistent logging, say, nor would all the lawyering in the world make that economically feasible. At the end of the day this order cannot have any significant impact on the industry. Of course, IANAL. Nico --
On 9/6/07, Wade.Stuart at fallon.com <Wade.Stuart at fallon.com> wrote:> This is my personal opinion and all, but even knowing that Sun > encourages open conversations on these mailing lists and blogs it seems to > falter common sense for people from @sun.com to be commenting on this > topic. It seems like something users should be aware of, but if I were > working at Sun I would feel a very strong urge to clear any public > conversation about the topic with management. As always, I do appreciate > the frank insight given from the sun folks -- I am just worried that you > may be doing yourself a disservice talking about it.i completely disagree. i work for a fortune 50 company and we have a hell of a time with the legal department or other people who refuse to think it''s okay to speak frankly about things in their company. obviously trade secrets and other things aside, i think it is ultimately beneficial and helps a company feel more accountable when it allows direct public exchange with employees and not through spin-educated marketeers or public relation folk. i don''t expect anyone from sun on the zfs list would tell us anything other than their personal opinion. i appreciate it too. from reading forums and mailing lists, to having sun volunteer 6? people to help memcached continue to flourish, i think sun is a role model for a company who continues to profit but has figured out that certain things can be free and ultimately they are helping make more mature products and encourage innovation. they also would get the bonus of having things like memcached run better on their platforms then too :)
On Sep 6, 2007, at 14:48, Nicolas Williams wrote:>> Exactly the articles point -- rulings have consequences outside of >> the >> original case. The intent may have been to store logs for web server >> access (logical and prudent request) but the ruling states that >> RAM albeit >> working memory is no different then other storage and must be kept >> for >> discovery. This is generalized because (as I understand) the >> defense was >> arguing "logs are not turned on -- they do not exist" and that >> was met >> with "of course the running program has this information in RAM >> and you are >> disposing of it" ad nauseam. The only saving grace for the ruling >> is that >> it is not a higher court. > > Allowing for technical illiteracy in judges I think the obvious > interpretation is that discoverable data should be retained and that > "but it exists only in RAM" is not a defense, and rightly so.hang on .. let me take it out and give it to you .. I''m thinking this seems to get into v-chip territory, or otherwise providing a means for agencies to track information that might have passed through a system .. err, for the safety of our children and such :P
On Thu, Sep 06, 2007 at 04:16:50PM -0400, Jonathan Edwards wrote:> On Sep 6, 2007, at 14:48, Nicolas Williams wrote: > >Allowing for technical illiteracy in judges I think the obvious > >interpretation is that discoverable data should be retained and that > >"but it exists only in RAM" is not a defense, and rightly so. > > hang on .. let me take it out and give it to you .. > > I''m thinking this seems to get into v-chip territory, or otherwise > providing a means for agencies to track information that might have > passed through a system .. err, for the safety of our children and > such :PThat "but it existed only in RAM in my servers" should not be a defense for failing to retain discoverable evidence is distinct from the issue of what constitutes discoverable evidence. Should web site access logs be retained? That seems like a political issue to me, but if some statute says that they must be retained then "but a power outage ate my RAM''s contents" shouldn''t cut it as a defense. Isn''t that obvious? Or must one be a lawyer to understand that down is up?
>That "but it existed only in RAM in my servers" should not be a defense >for failing to retain discoverable evidence is distinct from the issue >of what constitutes discoverable evidence.But only if you were told you needed to retain the data in the first place. How can you be faulted for not keeping data you did not have a use for and nobody told you should be kept.>Should web site access logs be retained?If you have them (note that with a load balancer front-end, it is unclear whether such logs do actually exist) The loadbalancer may know who accesses the data but only the backend may know which data is accessed. Casper
On Thu, Sep 06, 2007 at 10:45:01PM +0200, Casper.Dik at Sun.COM wrote:> >That "but it existed only in RAM in my servers" should not be a defense > >for failing to retain discoverable evidence is distinct from the issue > >of what constitutes discoverable evidence. > > But only if you were told you needed to retain the data in the > first place. How can you be faulted for not keeping data you > did not have a use for and nobody told you should be kept.That''s the "whether web site access logs be retained is a political (statutory) issue" part. Not knowing the law isn''t a defense either. The order quite clearly refers to the log data in question as "relevant" (e.g., page 11) -- presumably it is because some law said so and the defendant should have known it. Or perhaps the judge isn''t merely technically illiterate.> >Should web site access logs be retained? > > If you have them (note that with a load balancer front-end, it is > unclear whether such logs do actually exist) The loadbalancer may > know who accesses the data but only the backend may know which > data is accessed.If the law says you should have them and this is implementable at reasonable cost, then you should.
Casper,> Do you have a reference for "all data in RAM most be held". I guess we > need to build COW RAM as well.Is that one of those genetic hybrids? Regards... Sean. BTW: I remember the days when only RAS and CAS kept your data in memory "intact" ;-)
On Sep 6, 2007, at 10:41, Casper.Dik at Sun.COM wrote:> Quite; it seems to all be done with blogs. > > After Netapp''s blog, we now see Sun''s CEO enter into the fray: > > http://blogs.sun.com/jonathan/entry/on_patent_trollingAnd now NetApp''s response: http://blogs.netapp.com/dave/2007/09/litigoperation-.html
>http://blogs.netapp.com/dave/2007/09/netapp-sues-sun.htmlCuriously, I posted to the blog comments last night discussing some of the prior art, going back to some of the "disks could do this too" discussions by early tree structured binary data structures inventions, mentioning other copy-on-write structure ideas floating around in the late 80s and early 90s, etc. And it went away. There''s only a very generic fake post with my name on it there this morning. Either they have a bug, or they slimed their own comments section. -george william herbert gherbert at retro.com / gherbert at taos.com
George William Herbert wrote:>> http://blogs.netapp.com/dave/2007/09/netapp-sues-sun.html > > Curiously, I posted to the blog comments last night discussing some > of the prior art, going back to some of the "disks could do this too" > discussions by early tree structured binary data structures inventions, > mentioning other copy-on-write structure ideas floating around in the > late 80s and early 90s, etc. > > And it went away. There''s only a very generic fake post with my name > on it there this morning. > > Either they have a bug, or they slimed their own comments section.My comment, which I posted to both Hitz'' and Schwartz'' blogs, was also censored only on the latter. Here it is: ---- As others have pointed out, the main ideas behind copy-on-write and always-consistent-on-disk filesystems, such as WOFS, LSF, and Tux2, clearly predate both WAFL and ZFS. The "Prim?re Superblock" in WOFS, for example, plays the same role as the "root node" in WAFL or the "?berblock" in ZFS. Most of the other claims described in the patents are trivial applications of general-purpose data structures to filesystems. So none of the 10 patents involved in this dispute should ever have been granted. (Even to the minority of the technical community who think that software patents should be reformed rather than scrapped entirely, these particular patents are not defensible.) Both companies are trying to spin the history of this patent dispute in their favour, as you''d perhaps expect. But if you dig a bit deeper, it''s worse than that -- there are inconsistencies in each story indicating that one or both must be untruthful, and my impression is that it''s both. In NetApp''s case, they make a cynical attempt to claim opposition to software patents despite having form in using them offensively (e.g. against BlueArc). In Sun''s case, trying to extort ~$36.5M out of NetApp for the StorageTek patents (see http://www.netapp.com/go/Sun%20Lawyer%20Email.pdf) is very far from "not demanding anything". Neither company comes out with any credit, and regardless of the legal outcomes, both deserve to lose from this affair in the court of public opinion. ---- (And yes, I do mean "extort". The whole patent system has degenerated into legalized extortion.) -- David Hopwood <david.hopwood at industrial-designers.co.uk>
Darren.Reed at Sun.COM
2007-Sep-08 01:12 UTC
[zfs-discuss] Data retention (Re: ZFS/WAFL lawsuit)
This changed subject long ago... Casper.Dik at Sun.COM wrote:> > >>That "but it existed only in RAM in my servers" should not be a defense >>for failing to retain discoverable evidence is distinct from the issue >>of what constitutes discoverable evidence. >> >> > >But only if you were told you needed to retain the data in the >first place. How can you be faulted for not keeping data you >did not have a use for and nobody told you should be kept. > > > >>Should web site access logs be retained? >> >> > >If you have them (note that with a load balancer front-end, it is >unclear whether such logs do actually exist) The loadbalancer may >know who accesses the data but only the backend may know which >data is accessed. > >Or use a NAT device (that doesn''t keep logs) to translate all of the external addresses to network 10 addresses, which your web server logs in due course... Darren
> Curiously, I posted to the blog comments last night > discussing some > of the prior art, going back to some of the "disks > could do this too" > discussions by early tree structured binary data > structures inventions, > mentioning other copy-on-write structure ideas > floating around in the > late 80s and early 90s, etc. > > -george william herbert > gherbert at retro.com / gherbert at taos.com > > _______________________________________________Could you re-post your prior art comment here or make it available somewhere? Thanks. The most important ammo in a patent war is always the prior art; they can either invalidate a patent or substantially limit the application of the doctrine of equivalents. This message posted from opensolaris.org
Al Hopper wrote:> So back to patent portfolios: yes there will be (public and private) > posturing; yes there will be negotiations; and, ultimately, there will > be a resolution. All of this won''t affect ZFS or anyone running ZFS.It matters a great deal what the resolution is. The best outcome, for everyone wanting to use any COW and/or always-consistent-on-disk filesystem (including btrfs and others), would be for the invalidation part of NetApp''s lawsuit to succeed, and the infringement part to fail. A cross-licensing deal or other out-of-court settlement would be much less helpful. -- David Hopwood <david.hopwood at industrial-designers.co.uk>
David Hopwood <david.hopwood at industrial-designers.co.uk> wrote:> Al Hopper wrote: > > So back to patent portfolios: yes there will be (public and private) > > posturing; yes there will be negotiations; and, ultimately, there will > > be a resolution. All of this won''t affect ZFS or anyone running ZFS. > > It matters a great deal what the resolution is. The best outcome, for > everyone wanting to use any COW and/or always-consistent-on-disk filesystem > (including btrfs and others), would be for the invalidation part of > NetApp''s lawsuit to succeed, and the infringement part to fail. > A cross-licensing deal or other out-of-court settlement would be much > less helpful.Invalidating COW filesystem patents would of course be the best. Unfortunately those lawsuits are usually not handled in the open and in order to understand everything you would need to know about the background ionterests of both parties. J?rg -- EMail:joerg at schily.isdn.cs.tu-berlin.de (home) J?rg Schilling D-13353 Berlin js at cs.tu-berlin.de (uni) schilling at fokus.fraunhofer.de (work) Blog: http://schily.blogspot.com/ URL: http://cdrecord.berlios.de/old/private/ ftp://ftp.berlios.de/pub/schily
Joerg Schilling wrote:> David Hopwood <david.hopwood at industrial-designers.co.uk> wrote: > >> Al Hopper wrote: >>> So back to patent portfolios: yes there will be (public and private) >>> posturing; yes there will be negotiations; and, ultimately, there will >>> be a resolution. All of this won''t affect ZFS or anyone running ZFS. >> It matters a great deal what the resolution is. The best outcome, for >> everyone wanting to use any COW and/or always-consistent-on-disk filesystem >> (including btrfs and others), would be for the invalidation part of >> NetApp''s lawsuit to succeed, and the infringement part to fail. >> A cross-licensing deal or other out-of-court settlement would be much >> less helpful. > > Invalidating COW filesystem patents would of course be the best. > Unfortunately those lawsuits are usually not handled in the open and in order > to understand everything you would need to know about the background interests > of both parties.IANAL, but I was under the impression that it was possible to file an "amicus brief" or "amicus curiae", which in this case would detail known prior art -- whether or not it is prior art that benefits either party in the case. <http://en.wikipedia.org/wiki/Amicus_curiae> The EFF does this quite often, and it has a "patent busting project" which is described at <http://www.eff.org/patent/>. (The EFF "wanted list" does not currently include the WAFL and ZFS patents, but it''s only been a few days since the NetApp suit was announced.) It is true that, as the WP article says, "The decision whether to admit the information lies with the court." But surely, even in East Texas, it would be difficult to completely dismiss prior art on COW and always-consistent- on-disk filesystems, no matter how submitted. Or am I being too naive? -- David Hopwood <david.hopwood at industrial-designers.co.uk>
> > Invalidating COW filesystem patents would of course be the best. > > Unfortunately those lawsuits are usually not handled in the open > and in order > > to understand everything you would need to know about the > background interests > > of both parties. > > IANAL, but I was under the impression that it was possible to file an > "amicus brief" or "amicus curiae", which in this case would detail known > prior art -- whether or not it is prior art that benefits either party in > the case. > > <http://en.wikipedia.org/wiki/Amicus_curiae> > > The EFF does this quite often, and it has a "patent busting project"which> is described at <http://www.eff.org/patent/>. (The EFF "wanted list" does > not currently include the WAFL and ZFS patents, but it''s only been a few > days since the NetApp suit was announced.) > > It is true that, as the WP article says, "The decision whether to admitthe> information lies with the court." But surely, even in East Texas, itwould> be difficult to completely dismiss prior art on COW andalways-consistent-> on-disk filesystems, no matter how submitted. Or am I being too naive?David, From what I gather about the East Texas venue they tend to repeatedly dismiss very competent technical testimony (prior art/non-infringement) -- instead relying more on the lawyer''s arguments, lay conjecture and soft fact. This seems to be why the venue is so valued by patent sharks holding potentially unsupportable patents (they face little risk of losing enforceability of the patent and better odds of winning). -Wade
Wade.Stuart at fallon.com wrote:> From what I gather about the East Texas venue they tend to repeatedly > dismiss very competent technical testimony (prior art/non-infringement) -- > instead relying more on the lawyer''s arguments, lay conjecture and soft > fact. This seems to be why the venue is so valued by patent sharks holding > potentially unsupportable patents (they face little risk of losing > enforceability of the patent and better odds of winning).Well, another way I''ve heard it is "East Texas courts are much more pro-IP." What you describe above are the means to be pro-IP. ;) Rob++ -- Internet: windsor at warthog.com __o Life: Rob at Carrollton.Texas.USA.Earth _`\<,_ (_)/ (_) "They couldn''t hit an elephant at this distance." -- Major General John Sedgwick