When Network Appliance announced its patent infringement charges against Sun in September the company went out of its way to try and ensure that it was not seen as the next SCO Group.

Founder and EVP Dave Hitz took to his blog to explain the background and attempt to reassure the the open source ZFS community that “this lawsuit isn’t about downloads for personal or non-commercial use; it is about what Sun is doing.”

Sun’s president and CEO, Jonathan Schwartz, responded and negotiations began. It now appears that they have not been successful, however, and Schwartz has announced that Sun has filed its counterclaims, including a request for a permanent injunction that will remove all of NetApp’s filer products from the market.

What interests me about this case so far is not the merits of the legal claims on each side (and let me state here and now that none of the following comments should be construed as a judgment on the merits of either claim) but the tactics used by both companies to attempt to keep the open source community onside.

Hitz started it off with his reassurance that “NetApp certainly doesn’t believe that we can somehow erase every copy of ZFS that has been downloaded” and that the company did not intend to go after the ZFS community.

Schwartz responded with a different background story and (staying on topic), the suggestion that an attack on Sun was an attack on open source. “The rise of the open source community cannot be stifled by proprietary vendors. I guess not everyone’s learned that lesson,” he wrote.

Schwartz repeated the suggestion this week, only with a lot more force. “Their objectives were clear - number one, they’d like us to unfree ZFS, to retract it from the free software community. Which reflects a common misconception among proprietary companies - that you can unfree, free. You cannot,” he wrote.

In response Hitz maintained that there is a difference between unfreeing ZFS and the principle that some of it should not have been free in the first place. “If protected information does leak into open source, it will probably live forever in the web, but that isn’t the issue. To me, the issue is that large corporations should stop making a profit on protected information that doesn’t belong to them,” he wrote.

“The other thing that’s frustrating is the way Jonathan wraps himself in the open source flag. We aren’t against open source, and we aren’t even against non-commercial use of ZFS. The number one rule of open source is that you should only give away stuff that belongs to you. That is what this suit is about, and everything else is just fluff,” he later added.

That probably will not be enough to convince the open source faithful, and Schwartz played his joker with the announcement that Sun will donate half of any monetary damages won to the Software Freedom Law Center and the Peer to Patent initiative.

In terms of winning over the open source community that’s very much advantage Sun, not least since it prompted this seal of approval from Eben Moglen:

“NetApp, in bringing this litigation, has announced that it wishes to prevent Sun from sharing ZFS with the community. This conduct is a misuse of questionable patents to prevent the spread of valuable technology. Using patent threats and litigation against free software and open source communities is an abuse of the public interest the law is supposed to serve.”

Meanwhile PJ has announced that Groklaw is officially following the case and she has a few questions she’d like to ask NetApp.

So it would appear that NetApp is now the next SCO in the eyes of many, whether is wants to be or not. Is there anything the company could do to avoid such a fate?

Sun has said what it would do if it emerged victorious - some explanation from NetApp as to how it would deal with ZFS and the open source community if it were to get a decision in its favor might help.