Twin Peaks v. Red Hat

Red Hat is no stranger to lawsuits, having grappled with the Firestar patent case in 2008 and dealt successfully with patent troll IP Innovations in 2010. But the company is now bringing a GPL compliance suit to court for the first time in its history. Red Hat filed the complaint in a countersuit against a patent infringement case that was launched in early 2012. If it goes to trial, it could bring several GPL-interpretation questions to the test.

The original litigant in the case is Twin Peaks Software (TPS), which makes proprietary network backup software. TPS sued Red Hat and Red Hat's recently-acquired subsidiary Gluster on February 23, 2012. TPS charges that the GlusterFS software violates TPS's US patent 7,418,439, which covers TPS's "Mirror File System" (MFS). GlusterFS is a network filesystem that aggregates multiple storage shares into a single volume. TPS's products include TPS Replication Plus, which automatically mirrors changes between two NFS filesystems over the network, and TPS Clustering Plus, which extends a similar feature set to larger clusters.

Red Hat initially responded to the patent infringement suit on August 2, both denying the infringement and asserting that the patent itself is invalid:

Had things stopped there, the case might have proceeded as a standard software patent infringement lawsuit. Red Hat's answer to the initial claim invoked numerous other counterarguments, such as denying that TPS has the right to ask for an injunction against the allegedly infringing Red Hat products, but it stuck to denying the claims of the initial suit. But Red Hat then followed up with a September 13 countersuit that charges TPS with a copyright violation claim, and asks for an injunction against the violating products. The products in question are TPS Replication Plus and TPS My Mirror, a freeware edition of Replication Plus. Red Hat claims that both products incorporate code from mount — specifically the 2.12a version from the util-linux package for which Red Hat is the registered copyright holder — and that TPS is in violation of the terms of the license by not providing or offering the corresponding source code.

At Groklaw, Mark Webbink argues that this action ups the stakes considerably, because even if TPS's suit against Red Hat were successful, Red Hat would experience only a small impact on its bottom line, due to the relatively minor role GlusterFS plays in Red Hat's core business. If Red Hat's countersuit were successful, however, TPS would lose the sales of 50% of its products — a hit few businesses could survive.

The countersuit is in most respects a standard GPL-violation charge, much like those brought against other proprietary software vendors by other enforcement entities. But it also brings to light some peculiarities of the free software licensing realm. Red Hat alleges that the mount code in question is under GPL version 2, specifically. Failure to comply with GPLv2's source code provisions automatically terminates the violator's rights to distribute the code (section 4). The most common interpretation of this section of GPLv2 was that only the copyright holder can reinstate the violator's right to distribute the copied software. In that case, if TPS is found to have copied mount code, Red Hat could effectively force TPS to rewrite its products by refusing to reinstate its rights under the GPLv2. But not everyone agrees with that interpretation; uncertainty over the meaning of that section was also one reason why GPLv3 added provisions for a violator to regain its right to distribute by coming into compliance with the license.

Another wrinkle to the copyright-violation issue is the possibility that there are portions of other GPL-licensed works inside TPS's products. The countersuit does not address this possibility, but it cannot rule it out, either. The difference between copying from one GPL-licensed work and copying from several could be great. In the event that there are multiple GPL violations of different copyrights, even if Red Hat agreed to reinstate TPS's right to distribute mount and all other Red Hat-copyrighted code, it cannot reinstate TPS's right to distribute software written by others. That problem is academic at the moment, but it may not remain so: Eben Moglen wrote on the Software Freedom Law Center (SFLC) blog that he is investigating whether TPS's products contain software that has been copied from SFLC clients.

Moglen also says that if a violation is proven in the TPS case, it would be "a particularly severe offense" because TPS has chosen to sue a member of the free software community. Consequently, it would be profiting from the work of free software developers while simultaneously suing them. In contrast, most GPL violations are reported to be unintentional; Bradley Kuhn estimated in 2011 that 98% of the violation incidents he had worked on were cases of negligence and not malice. "Malice" might be hard to pin down, but the fact that TPS actively initiated this legal battle certainly increases the chances that Red Hat will choose to fight it out rather than settle.

If Red Hat does pursue the suit, this will also be the first GPL violation case brought by a commercial Linux distribution. Many of the high-profile GPL compliance cases in years past have been fought by independent projects like BusyBox or non-commercial groups like gpl-violations.org. Fighting out the GPL violation charge also has a different feel in this case because most other GPL enforcement actions are taken in order to bring the offending party into compliance. That is not the goal here: Red Hat is using the charge to wage an injunction-versus-injunction battle. The highest-grossing Linux distributor pursuing a GPL violation charge may not have the David-versus-Goliath feel of the other cases, but it could still be an important day in court — both for Red Hat and for anyone else who builds a business on free software.