There is a Netapp lawsuit against Sun for IP infringement that has just erupted into near open marketing warfare.

NetApp has told Sun it wants ZFS withdrawn from storage devices, according to Sun CEO Jonathan Schwartz, and retracted from the free software market. Sun says it can't do this and is going to sue NetApp for patent infringement too, using its arsenal of 14000 patents.

Schwartz says that he talked to NetApp CEO Dan Warmenhoven to discuss Netapp concerns about Sun's ZFS use and the two requests above were revealed.

To require that ZFS be allowed for computer use but prevented from use in storage devices seems to show a near-complete failure by NetApp to understand Sun's storage systems technology.

Schwartz says that Sun will respond to NetApp's lawsuit but will also open one of its own against NetApp in an aggressive raising of the temperature. Sun will file a suit attacking NetApp's use of the Network File System, NFS, and requesting withdawal of all NetApp filer products from the market.

Ouch!

To rub in salt, Sun will pursue sizeable damages and donate half of any proceeds to free software causes. It's not after the money in other words.

Also, to calm customer concerns, Sun indemnifies all ZFS customers against financial fallout from the NetApp suit. This extends to Apple.

In many people's minds there is no way Network Appliance can emerge from this reciprocal pair of lawsuits as the good guys. NetApp started it. People urged talk at the CEO level to prevent a damaging effect on both companies. Schwartz initiated this and Warmenhoven has made unacceptable demands.

Is NetApp constitutionally averse to negotiation and compromise? Does it have a secret interest in funnelling money to lawyers? Does it fear ZFS so very, very much that it sees itself being squeezed unbearably between ZFS-spreading Sun, a rampant EMC, and myriad NAS and iSCSI minnows snapping at its heels?

If any one of these questions has a 'yes' answer then there is something deeply wrong inside a company that many in the storage industry have a deep respect for.

While the lawsuits are going on, Sun will have its ZFS market profile raised massively and have the opportunity to shift a boatload of ZFS-using Sun storage gear. Schwartz sees this as a win-win situation. He, Sun, cannot back down from NetApp's initial lawsuit and he's going to ride the wild surf of the free software movement to help wash away what he and Sun perceive to be NetApp's castle built on sand.

NetApp on the other hand will be under attack. Competitors will comprehensively rubbish its position and sow fear, uncertainty and doubt among its customers using the questions above and others. What can it do?

To concede now will be an admission of weakness. To win its lawsuit but face a protracted counter-suit from Sun, indemnifying ZFS-using NetApp competitors, will potentially cause a large increase in competitive, low-cost product pressure against its products. To lose its lawsuit would be a horrible defeat, since it started it. At that point Warmenhoven's future would have severe doubts raised against it.

What someone needs to do, perhaps, is to look Dan Warmenhoven in the eye, someone whom Warmenhoven respects absolutely, and say: "Discretion sir, discretion is the better part of valour. This engagement against Sun is one you cannot, in any real business sense, win."

Read Jonathan Schwartz' blog for more details.