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December 20, 2006

The pot calling the kettle black and not all open is open source

I have been following the Sourefire IPO saga for some time now, literally since the Checkpoint deal was quashed and Team Marty announced they were going to IPO.  Like others here and here, I never thought that the IPO would actually happen.  I thought that someone would come in and snatch them up.  However, recently there has been some scuttlebutt about the potential liability from the Predator Watch/Net Clarity lawsuit hanging over the IPO.  Nick Selby over at the 451 Group wrote an article detailing the facts as they are known publicly here.  Then Dave Rosenberg questions how there can be IP questions when the source code is readily available for review.

I find Dave's comments frankly naive.  I don' t think the Predator Watch/Net Clarity law suit has anything to do with open source or a similarity in source code, but rather a similarity in functionality. Nor would a similarity in source code have anything definitively to do with the merits of the suit, unless the source code itself was copied, which is not the claim here I believe.  I think the claim is that the idea of how it works was what was allegedly divulged to Sourcefire. That being said though, I think Nick gives this suit more than its due. I think ultimately this suit amounts to little more than aneffort by a small business trying to cash in on someone else's success.  What is even more ironic about this particular tale is that the company doing the suing does not exactly have clean hands, as far as I can tell about using someone elses IP.  I think they still are using the Nessus scanner and NASL rule set in possible violation of the license for such as issued by Tenable Network Security.  There is a principle in law that a plaintiff should have "clean hands".  If that principle is applied here, Net Clarity's use of Nessus and NASL scripts could be construed as not having clean hands on the matter. Now they are calling in Checkpoint, to see if they found anything out about this in the due diligence for the aborted acquisition.  Sounds like a classic fishing trip to me and the court should stop this farce and waste of time and get to the facts of the case.

For a good look at a VC's view of this sort of issue, I know Brad Feld has written about why VC's don't sign non-disclosure agreements.  It is exactly for this type of situation.  I think the Predator Watch/Net Clarity people are going to find out that they are better off trying to build a business based on their products working better than the competition, than trying to beat them in the courtroom.

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