[OpenAFS] is YFS a "derived work"?

Troy Benjegerdes hozer@hozed.org
Tue, 2 Oct 2012 19:39:55 -0500

On Tue, Oct 02, 2012 at 11:09:36AM -0400, Steve Simmons wrote:
> On Oct 2, 2012, at 12:53 AM, Troy Benjegerdes wrote:
> > Let's look at this another way...
> > 
> > If someone actually bothers to file an IP lawsuit of any sort regarding AFS,
> > then I think this would be the most credible sign of success I could possibly
> > imagine.
> > 
> > And then, in that case, if there were an issue, there would be sufficient 
> > community resources to re-write offending code, or re-purpose/extend things
> > like Arla, or the linux kernel kafs client.
> I am not a lawyer, but do follow such issues fairly closely. Please take my opinions strictly as opinions; arguing with them will quickly devolve to me responding with 'go ask a lawyer.' That said, here's my opinion.
> Troy writes " . . . in that case, if there were an issue, there would be sufficient community resources to re-write offending code . . . "
> Unfortunately this is far from the only thing that would result in case of such an issue. A detailed reading of the goings-on in the SCO trials shows some of the perils here. (For detail, see http://www.groklaw.net/staticpages/index.php?page=Headlines and start with the 'SCO Overview' link at the top of the page. I know of no good summary, and IMHO no summary would show the detailed needed at this level.) In brief, if some company felt it had patents which are violated by AFS, they would be most effective by suing the providers for restitution (YFS, SineNomine, etc) and obtaining injunctions against the distribution by others.
> Defending against such suits is expensive. Very very expensive. Community resources on rewriting offending code don't help at all, because what's required is big money to hire good lawyers. Further, you will never get a clean statement from the plaintiff saying whether your planned changes now avoid the patent claims. Nor will you get a clean statement saying that whatever you convert to does not violate another patent. What's needed is to win the suit by either invalidating the patent or proving in court that the implementation does not violate the patent. And that takes big, big bucks and lots of time. Again citing SCO vs the world as example, it took eight years and still isn't quite dead.
> For small companies, odds are good the cost of defense will bankrupt them. For individual, there is no choice at all: you can either stop distributing, or you can go straight to the poorhouse. Nor will institutions like universities or CERN defend against such suits. Cases like ATT vs. BSDI where U. C. Berkeley finally was dragged in and delivered the coup de grace are the exception rather than the rule. And that was simply a copyright case, not a patent case.
> Further, anyone who built from source would be a potential target of such a suit. Morgan Stanley has very deep pockets and would be an attractive target. Any university with a large endowment would be attractive - eg, Stanford, Harvard, University of Michigan, probably others. Those universities are risk-averse, and would likely 'settle' by ceasing to use AFS.
> These sorts of cases were never feasible in the TransArc/IBM days because IBM had a patent portfolio second to none and the risk of countersuit was too high. Right now there's no benefit to the plaintiff because there are few or no deep pockets to go after and there is no significant commercial activity in AFS. If either of those change, I expect the patent trolls (or maybe Oracle) to come out of the walls like rats. The result will not be pretty, and would likely be the end of AFS.

My opinion is anyone filing suit against a 'derivative work' of AFS would 
pretty much guarantee the end of the company filing suite. It might be 
IBM's lawyers, defending the IPL, it might be Red Hat lawyers, defending
kAFS, or it might be the free software foundation, defending some GPLv2/GPLv3
code that implements afs-compatible wire protocols.


If any sort of injunction is ever issued against distributing AFS code, 
I'll be ordering some T-shirts excercising my first amendment right to
free speech.