Re: Great

On Thu, 2005-04-14 at 13:11, Josh Berkus wrote:
> Robert,
>
> > I don't know if they have ever done that before, but other companies
> > have done things like that. Had we contacted them privately it would
> > have given them the chance to address this case, even if only off the
> > record.
>
> The problem is that, unless you personally have a friend on IBM's legal staff,
> there was *no way* for us to contact IBM lawyers quietly, off the record.
> Any contact we made would be official and start the IBM legal machinery
> moving.
>

I find it hard to believe that no one in the community has the resources
to pull this off. Heck I know a couple of people who know people at IBM
that probably could have pointed me in the right direction.  Barring
that I think some googling on IBM Patents for FLOSS announcements
probably would have turned up a name. As long as it was just one person
associated with the project contacting someone at IBM and not "our
lawyers" sending a letter to "their lawyers" them it certainly does not
have to require an official response from them.

> And, let me remind you, that while IBM's senior management has been a great
> friend to Open Source and our project, their DB2 divsion has been allowed to
> conduct a FUD campaign against PostgreSQL in an effort to encourage
> migrations.    If we inquired at the wrong office based on our lack of
> information about IBM internal politics, the consequences could have been
> pretty bad.
>
> At the time Tom created the 2Q code, we didn't know when the IBM patent would
> be granted.   It could have been any day, or even already granted and the
> public records' hadn't caught up.   Without IBM contact, we would still have
> a "grace period" until IBM discovered our use of ARC and sent us a
> license-or-quit letter, which they would be unlikely to do quickly (if at
> all).   If we contacted them and they decided *not* to license us the patent,
> or to license it under the GPL, then they would be bound to serve us
> *immediately* on patent grant.  And then we would be scrambling to replace
> ARC and get our users to upgrade in a few days.
>

You forgot the part about them suing everyone who ever submitted a patch
to postgresql... several people pointed out that any overly aggressive
move against this community would have certainly generated ample bad
press that this strategy would have been foolhardy at best. There are
certainly a lot of different courses of action that can be taken without
jumping immediately to the endgame scenario.

> Core spent several weeks discussing this and obtained legal advice (not named
> here because it was not formally retained) who agreed that replacing the
> algorithm was the only "risk-free" course.

As I said, I stand by core's decision since avoiding the problem is
certainly a safer course. I think you're lawyer is flat-out wrong though
if they said what we have done is "risk-free", it's just "risk-reduced".


Robert Treat
--
Build A Brighter Lamp :: Linux Apache {middleware} PostgreSQL