[OpenAFS] is YFS a "derived work"?

[Steve Simmons]

On Oct 2, 2012, at 12:53 AM, Troy Benjegerdes wrote:

> Let's look at this another way...
>=20
> 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.
>=20
> And then, in that case, if there were an issue, there would be =
sufficient=20
> 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=3DHeadlines 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.

Steve=