Twin Peaks and the GPL

By Eben Moglen | September 17, 2012

Twin Peaks Software, Inc., which makes proprietary data replication and cloud storage software, sued Red Hat and its subsidiary Gluster for patent infringement back in February. Last week, Red Hat filed a counterclaim in that litigation, alleging copyright infringement by Twin Peaks in misappropriating GPL’d software.

Red Hat’s counterclaim asserts that Twin Peaks has copied GPL’d code, from mount, into their proprietary mount.mfs utility, which is distributed to licensees of their data replication products. Red Hat holds copyright on most of the code in the relevant version of mount, which is part of the util-linux package.

The facts supporting Red Hat’s counterclaim have not yet been proven; they are merely allegations. The legal form in which Red Hat has made its counterclaim is the standard one pioneered by the clients I have worked with over the years. Red Hat points out that their code in mount is only licensed under GPLv2, and can only be redistributed, in modified or unmodified form, by Twin Peaks or anyone else, under the terms of GPLv2. If distributed inside a proprietary program, the code is plainly not being used according to the terms of GPLv2. So if Red Hat is correct that Twin Peaks has put code from mount inside mount.mfs, it has no license for that use of the code, and is infringing Red Hat copyright. Indeed, if the allegation is correct, Twin Peaks has lost any rights to distribute mount in any form under the automatic termination provision of GPLv2.

Red Hat’s counterclaim should survive a motion to dismiss in the trial court, because it states a claim on which, if the facts are true, Red Hat is entitled to relief. We shall see in due course whether Red Hat can prove the facts it has alleged.

In the meantime, the allegations raised by Red Hat are very grave. Not only has Twin Peaks initiated patent aggression against members of the FOSS community, it is apparently making use in its business of the very FOSS produced by the community member it is suing. And not only is it making use of that FOSS, it is allegedly doing so in gross disrespect of the rights of the parties who have made the valuable software they are using. First, if Red Hat is correct, they take our software without playing by our rules, and then they attack the community using their doubtful patent.

Such betrayal of the community while making use of its software is a particularly severe offense. If Twin Peaks is in fact ripping off the community while also suing one of our leading commercial redistributors, serious consequences should follow.

Red Hat has been a significant supporter of SFLC since I founded it. But in this as in all similar situations, SFLC’s primary concern is protection of the rights and interests of our clients, non-profit makers and distributors of FOSS. SFLC will now begin an investigation of Twin Peaks’ products, to ascertain whether any of our clients’ rights are being infringed through the violation of FOSS licenses. We hope that other organizations around the world, including and the Software Freedom Conservancy will do likewise. Community defense is the crucial guarantor of a level playing field for businesses, as it is the heart of protecting freedom for developers. We need to know the truth about Twin Peaks’ practices, and we must take whatever steps are appropriate when the truth is known.

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