Sun vs NetApp - Good Hippies Don't Divorce, Do They?

2007-10-24

Funnily enough it was only today that I was recounting a tale to goodman David, about a formative experience I had a few years ago when two hippy friends of mine decided to divorce. It took me a while to reconcile this - after all, I thought, if hippies were so laid back and peace loving, surely they'd just get on?

And so it is when I see people like Dave Hitz and Jonathan Schwarz in a spat. Admittedly I've never met Jonathan, but from what I've heard about him he's a regular guy, who just happens to run a rather big IT company - and he sports a pony tail. I've met Dave on a couple of occasions through the years, and he's come across as a regular guy as well. As in a divorce situation, I know I have to be grown up and recognise that (a) books shouldn't be judged by their covers, and (b) there's probably an element of truth on both sides.

The story seems to have unfolded something like this:

- many years ago, NetApp decided to build a storage box based on available technologies, and stick some clever IP into the I/O layer while leaving the processing layer as a reliable, if back ward overseer - I seem to remember the expression "trailing edge" technology being banded about, not in a negative sense but as opposed to "bleeding edge" - including such stalwarts as the NFS protocol.

- a couple of years ago, StorageTek was miffed about something NetApp had done, but the sides never reached any particular resolution. STK was then bought by Sun Microsystems, who then continued bickering with NetApp. However, as storage wasn't seen as particularly strategic at the time, its still didn't come to anything.

- quite recently and indeed laudably, Sun decided to treat storage more strategically, at the same time as reaching a level of corporate psychological resolution about the relationship between its own software and open source. All admirable stuff, with the result that Sun decided to do some more stuff with storage - including releasing the ZFS file system to the open source community.

- unfortunately, NetApp saw this and wept, in the belief (now to be proven in a court of law) that Sun was riding roughshod over some of the "clever layer" intellectual property, indeed, patents that Dave Hitz himself had filed all them years ago (and suddenly, its personal). This may or may not have been ill-thought-out but unintentional on the part of Sun, or indeed, it may have been deliberate, anti-competitive move, a bit like "accidentally" leaving Coca-Cola's ingredients list on Howard Stern's desk. We'll find out - but right now, we know that it led to NetApp taking out a lawsuit on Sun.

- of course, the dot in dot-com was not going to take this lying down. After (no doubt) that quick call to determine whether some amicable resolution could be reached, Sun assessed its options and today has decided to countersue, not just about ZFS but calling into question the very, "trailing edge" foundation that NetApp had adopted, at the very inception of the company.

Nasty. Commenters have quite rightly compared this to the SCO vs Novell case, and indeed raised questions about whether IP can be open sourced, or indeed closed back up if it does infringe on patents. To me, this also echoes the rather dodgy ground Microsoft finds itself standing upon whenever it reiterates its patents issues against Linux (I'm still not sure if Steely Neelie Kroes has put this one to bed).

I'm also rather fascinated at how the battle lines are being drawn up in the blogs. Mr Schwartz has always been an advocate of the openness of CEO blogs, but of course when the fecal matter hits the fan, one cannot stop being declarative even if one wants to. This is where it's like my hippy friends - bloggers are supposed to argue, sure, but when it comes to them acting like good ol' boy CEO types, what happens then? things sure as heck don't get decided by the number of diggs assigned to the counter-arguments, or consider adverse comments as a form of cross-examination.

I confess I have a nasty feeling about this. Court battles are just that - battles - and fighting dirty is acceptable as long as it happens within the confines of the law. Already we have seen Dave Hitz branded a liar and a troll, and while Dave H has not used the terms, he has called into question Jonathan S's records of events. NetApp has (as illustrated in that same blog post) started from a position of, "let's get along, but use the courts, that's what they are there for," but it doesn't appear that Sun isn't going to keep the gloves on. Call me old fashioned but Jonathan's statement, "we are requesting a permanent injunction to remove all of their filer products from the marketplace" doesn't appear to be wanting to meet anyone half way.

Where will it all end up? Messily, certainly. We now have two court cases, one of which may find it correct to say Sun shouldn't have released NetApp's IP into the open community - it's difficult to know what the outcome would be from there, other than requesting people to kindly switch it off. Or it may find Sun in the clear, in which case NetApp will look a bit foolish, and perhaps in trouble as the patents in question are reputed to be a mainstay of the company's offering.

Meanwhile, Sun's own case, if it succeeds, could bring NetApp to its knees. If it fails, Sun will look a bit silly but can revert to the counter-sue argument, so nothing lost other than a bunch of legal fees. Hopefully this second case exists purely as a counterpoint, and the situation will be judged on the technical merits of the claims rather than obscure interpretations of patent law.

What do I feel about it all, besides just wishing naively that everybody could just get on? The only recommendation I would make to both sides, is that the behaviours exhibited during the process can be as damaging to a company as the topics under discussion, so - play nice, guys. Meanwhile, while I'm not sure I'd want to rush off and install ZFS across the entire organisation until I was sure I could keep it, I wouldn't be switching off my NetApp filers just yet.