Open Virtualization Alliance Announced

The Open Vitualization Alliance was announced last week, promoted by IBM, Hewlett-Packard, Intel, Novell, BMC, and Eucalyptus Systems´╗┐.  The Alliance was formed to promote an open source virtualization stack built on the KVM hypervisor.  KVM is currently part of the mainstream Linux kernel projectIt is built into Red Hat Enterprise Linux 5.4, supplanting Xen, the open-source hypervisor stewarded by CitrixThe alliance was perceived as a shot across the bow of VMWare, which is the market leader in virtualization.  

Penrose Trademark Lawsuit Filed

A complaint was filed against Red Hat in the Northern District of California on May 6, 2011, alleging various claims, including a request to cancel a trademark registration.

According to the complaint, the facts are as follows.  Alex Karasulu, founder of the Apache Directory Server Project, set up a domain at to provide an ecosystem for open source software components related to directory and security infrastructure.  Karasulu was approached by Jim Yang about the development of open source virtual directory software and Karasulu offered to develop the software as a project for Safehaus.  Karasulu used the name “Penrose”  for the virtual directory software project.  The initial version of the Penrose software was released on May 23, 2005. 

On March 13, 2008, Yang filed an application to register the trademark Penrose for software through a company he owned called Identyx, Inc. Yang subsequently sold Indentyx to Red Hat.  The complaint alleges that in the trademark application, Yang misrepresented the facts underlying the first use of the mark and failed to acknowledge prior use and ownership by Safehaus, and that Red Hat knew statements made in the trademark application by Identyx were false because of information received by Red Hat in the due diligence process for the acquisition

Based on the above allegations, the complaint alleges various claims and asks the court to declare the trademark registration invalid.


Patent Award against Google

The ED Texas strikes again.   A jury verdict was handed up awarding $5 million in patent infringement damages by Google to Bedrock Computer, a patent troll that had sued Google and many other defendants relating to the Linux kernel.  The patent (U.S. patent 5,893,120) covers a “garbage collection” hashing method allowing outdated records to be removed on the fly from search results.  Bedrock originally sued not only Google but Yahoo!,, PayPal, AOL,, and (thrown in for good measure with the bigger defendants, probably for venue) Softlayer.  Google had separated its case from the other defendants.   Meanwhile Red Hat had filed a declaratory judgment action against Bedrock to have the patent declared invalid, but Red Hat was not allowed to intervene in Bedrock’s case. Most commentators appear to think the patent vulnerable to prior art claims.  The ruling against Google can be appealed in the ordinary course.

As one commentator quipped, “if I were a Linux detractor, I definitely wouldn’t get too excited: if somehow proven valid, the methods described in patent 5,893,120 are found in nearly every operating system. Look out Windows and OS X users, you’ll be next.”

DOJ Modifies Novell/Attachmate/CTPS Deal

The DOJ issued a press release about the modification of the Novell sale, previously reported in this blog.  The sale had theatened to divorce ownership of Novell’s patent portfolio from the company that succeeded to its Linux business.  The DOJ required Microsoft to “sell back to Attachmate all of the Novell patents that Microsoft would have otherwise acquired,” leaving Microsoft only with a license, and unwound the sale to EMC of 33 patents and patent applications related to virtualization.  The DOJ’s press release said, “All of the Novell patents will be acquired subject to the GNU General Public License, Version 2…and the Open Invention Network (OIN) License.”  It is unclear exactly what the release meant by the GPL reference, given GPLv2 has no express patent grant (perhaps referring to an implied license, perhaps merely a misstatement?) but the statement clarifies that the  patents will remain subject to OIN license terms.  (This seemed likely in any case, as previously reported in this blog.)  The DOJ also said, “CPTN does not have the right to limit which of the patents, if any, are available under the OIN license,” suggesting that the limiting elections possible under the OIN license Cannot be made in the short term by CPTN.  The full documents do not appear yet to be public, but should be available when the settlement is filed with the Court as a part of the the Tunney Act approval process.  The Tunney Act is a US antitrust law that, among other things, requires that the government and an antitrust defendant disclose  communications related to the settlement process.

CPTRS — Training regarding Copyright, Patent, Trademark,Restrictions, trade-Secret, and ComPuTeRS


Bruce Perens, a true expert and pioneer in both software and open source licensing, is giving an Open Source Compliance class, in Dayton, Ohio this May.  For those of you with CLE requirements, it qualifies for 6 CLE hours for Ohio attorneys.   There is more information at  (The price is very reasonable, and includes refreshments!)

Open Source and the Chicken Dance

As if the world of open source licensing were not weird enough, a new license has been submitted to OSI for approval, the Chicken Dance License v0.1 (“CDL”).   It’s basically BSD, but binary only redistributions require:

  • For every thousand (1000) units distributed, at least half of the employees or persons affiliated with the product must listen to the “Der Ententanz” (AKA “The Chicken Dance”) as composed by Werner Thomas for no less than two (2) minutes
  • For every twenty-thousand (20000) units distributed, two (2) or more persons affiliated with the entity must be recorded performing the full Chicken Dance, in an original video at the entity’s own expense, and a video encoded in OGG Theora format, at least  three (3) minutes in length, must be submitted to <OWNER>, provided <OWNER>’s contact information.  The dance must be based upon the instructions on  how to do the Chicken Dance that you should have received with this software. If you have not received instructions on how to do the Chicken Dance, then the dance must be chicken-like in nature.
  • Any employee or person affiliated with the product must be prohibited from saying the word “plinth” in public at all times, as long as distribution of the product continues.

I don’t know what the author has against a plinth, except maybe that it contains insufficient vowels.

You probably think you don’t know the chicken dance song, but you do.  You may not know the dance, which is possibly the only one sillier than the Macarena.

And no, I did not make this up.   The Register reported this, and it’s not April 1 yet.  I do admire the fine points of drafting here, though.  Anyone who uses a phrase like “no less than” in a provision about chicken dances can’t be all bad.