More chickens, returning home to roost

I referred to the roosting chickens theme earlier today as to Oracle, and did not expect to be back to that topic for a while.  But the news does not wait
One of my long time concerns as a Cassandra, is that FOSS geeks firmly believe that  ignorance and  unworldly innocence, and a native sense of protection that 'just conduct' while participating in FOSS matters, will somehow insulate the 'good folks' from the world
To my experience, it does not work that way.  One needs to clearly disassociate from risky conduct.  A person needs to read EULAs and look for traps, like indemnification clauses
I see in the overnight news that RackSpace and Github face some hot water.  Drilling down, as to how this is likely to play out, I am aware that Github has an EULA, that provides in part:

Section F 3
You shall defend GitHub against any claim, demand, suit or proceeding made or brought against GitHub by a third party alleging that Your Content, or Your use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify GitHub for any damages finally awarded against, and for reasonable attorney’s fees incurred by, GitHub in connection with any such claim, demand, suit or proceeding; provided, that GitHub (a) promptly gives You written notice of the claim, demand, suit or proceeding; (b) gives You sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that You may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases GitHub of all liability); and (c) provides to You all reasonable assistance, at Your expense.

Guess who is going to be added as a Defendant in that lawsuit next; guess who's pocketbook will ultimately be looked to, to pay for Github 'lawyering up.'  Github and RackSpace have every incentive in the world to 'point out' the poster of claimed infringing content to the Plaintiff and its lawyers, and so demonstrate 'good faith', a lack of intent to infringe, and their desire to mitigate any asserted damages

Chickens, coming home to roost

I see in the overnight news that the trades have picked up on the fact that Oracle (now owner of the former Sun's intellectual property in relevant part) has filed suit, on patent grounds against Google

Big Deal, right? Doesn't affect me, right?

Wrong

Two years ago, the Linux Standards Base was talking about requiring Java functionalities in a 'conformant to the LSB standard' distribution. I spoke strongly against this as did Alan Cox, but as I am just one person; and Red Hat is largely uninterested in the LSB other than to conform to it to satisfy the 'checkbox' on an evaluation matrix, a 'trial use' of Java appeared in LSB 4.0

I asked the question and noted my response:

So, exposing people to an NDA, and potentially unlimited liability, and defense costs, in order to be be able to test and demonstrate their distribution is LSB complaint is fine?

I think not. I think the LSB cannot in good conscience place
distributions in the line of fire, until and unless the
testing tool is not a 'spring gun'.

The pain comes in part from this:

(f) you agree to defend and indemnify Sun and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from

(i) the use or distribution of your Operating
System, or any part thereof, in any manner

... and it did not take a rocket scientist to see that patent threats were in the minefield:

LSB needs to decide how much and what kinds of risk [contractual NDA, contractual indemnification, trademark infringement, patent, copyright, more?] it is willing to ask distributions to expose themselves to, to become 'LSB compliant'.

The rubber has just hit the road; the chickens are on the glide path, coming home to roost. The hypotheticals just got instantiated, and the danger is real

Promoting ignorance

There is a good reason lawyers should not give, and are really uncomfortable having a client publicly discuss advice they have given in a public forum

This crossed a mailing list today:

Subject: fedora-d-rh] Re: question about patent

Without reading or looking at the patent at all, it is almost always really bad to discuss patents in public, especially on email.

Patents & patent trolls are so pervasive that you can help feed patent trolls by bringing up the possibility of infringement in these forums (even when they are marginal claims).

I have always been given guidance that engineers should never, ever do patent searches and never discuss the specifics of IP issues in email.

Amazing takeaway. The poster missed the obvious extension that really NOTHING in the way of litigation awareness and preparations should be discussed

A quick Google search using: willful ignorance of a patent yields this in a pull quote:

Courts have used terms such as *intentional blindness,[15] *blind disregard of the peril it faced[16] and *willful ignorance[17] to describe the accused infringer who did not conduct a search prior to adopting a mark

[later] ... With the ease of accessing information, it is likely that courts will increasingly find that an accused infringer's failure to conduct an appropriate search before adopting its proposed mark is a clear indicator of bad faith.

The article's author 'threads the needle' nicely, between providing general information, and not giving express advice. But he DOES assume the reader recipient will CONSIDER the implications of what is being said. Silly lawyer

Down at the bottom of that information article, we find:

The information contained in this alert is provided for informational purposes only and does not represent legal advice. Neither the APLF nor the author intends to create an attorney client relationship by providing this information to you through this message.

Time to stretch the legs, and walk down to Stauff's for a coffee