Red Hat's new patent troll weapon: GPL violation

An elegant flip may have infringement plaintiff on the run

Red Hat has taken a unique step in defending itself from a patent infringement claim from Twin Peaks Software: a counterclaim that Twin Peaks is in copyright violation on mount, the file management app that is licensed under the GPLv2. Not only is Red Hat seeking GPL compliance, it's also going after Twin Peaks for damages and is seeking an injunction on Twin Peaks' own product sales.

The counterclaim comes six months after Twin Peaks filed its original patent infringement lawsuit against Red Hat and its new subsidiary Gluster on Feb. 23, 2012. In the suit, Twin Peaks alleges that Red Hat and Gluster were infringing on U.S. Patent 7,418,439, known as the Mirror File System patent.

Curiously, the storage technology that Twin Peaks is claiming as infringed was originally developed by Gluster… but it wasn't until Red Hat acquired Gluster in October 2011 that Twin Peaks got around to suing Gluster and its new owner.

Initially, Red Hat filed the usual sort of counterclaim, the legal equivalent to "nuh-uh!" But yesterday someone pointed me to some new documents in the case filed by Red Hat… and they were a much more interesting twist on the case.

In its amended counterclaims, Red Hat explains to the court about one particular utility within its distribution: util-linux, which "includes numerous tools that provide critical basic functionality within the Linux operating system, such as making files on disks available to the user of a computer system on which Linux is running. One such tool is a program called 'mount.'"

mount, the document goes on to emphasize is licensed under the GPLv2, and can be freely used and distributed as long as the terms of the GPL are met - specifically, if you make a change to mount's code and distribute those changes, you have to make those changes freely available under the GPL so others can take advantage of the innovation.

Red Hat has been the copyright holder of Mount - 2.10m beginning in May 2000 and of Mount 2.12a since March of 2004.

Red Hat alleges that two of Twin Peaks' products, the same two covered by the '439 patent, TPS Replication Plus and TPS My Mirror, also include a program called mount.mfs. And here's what Red Hat has to say about that:

"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."

Since both of Twin Peaks' products are released under a proprietary license, there was no source code of any changes it made to mount released, which is a violation of the GPLv2.

To sum up, while denying the patent infringement of the '439 patent, Red Hat is countering with a copyright infringement claim on a free software application. And by asking for an injunction, it just dropped an avalanche on Twin Peaks.

Granted, this is not a perfect tactic; for one thing, Red Hat will have to prove that Twin Peaks did use mount. It seems obvious, but right now it's just an allegation. Still, if this works, this is a very powerful counter to a lot of potential patent trolling cases.

Since free software is so pervasive these days, it might not be very hard to find something within a company's product portfolio that depends greatly on free or open source software. Once discovered, all it takes is a claim of license violation like this one to shut down that software.

Red Hat's legal-fu is massive, because it's using the fact that there is still a lot of non-compliance of the GPL out there to its clear advantage. And, as Groklaw reported this morning, the risk to Twin Peaks is far greater now.

"In other words, the exposure to Red Hat and Gluster is not that substantial when considering Red Hat's overall income and assets. On the other hand, Twin Peaks now faces the potential loss of half its product offerings and potentially its entire business if Red Hat were to be successful in establishing copyright infringement and obtaining a permanent injunction," the legal blog wrote.

A representative of Red Hat was reached for comment, but would only reply, "as a matter of policy, Red Hat does not comment on pending litigation."

This case is far from over, but the precedence it could set might make a lot of litigious companies think twice about their own free and open source license compliance before lobbing lawsuits.

Read more of Brian Proffitt's Open for Discussion blog and follow the latest IT news at ITworld. Drop Brian a line or follow Brian on Twitter at @TheTechScribe. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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