IBM Breaks Open Source Patent Pledge

Jay Maynard writes "IBM has broken the pledge it made in 2005 not to assert 500 patents against open source software. In a letter sent to Roger Bowler, president of TurboHercules SA, IBM's Mark Anzani, head of their mainframe business, claimed that the Hercules open-source emulator (disclaimer: I manage the open source project) infringes on at least 106 issued patents and 67 more applied for. Included in that list are two that it pledged not to assert in 2005. In a blog entry, the NoSoftwarePatents campaign's Florian Mueller said that 'IBM is using patent warfare in order to protect its highly lucrative mainframe monopoly against Free and Open Source Software.' I have to agree: from where I sit, IBM likes Open Source only as long as they don't have to compete with it."

Comments

Turnover

[Jurily]

Why would anyone at IBM still remember what they said in 2005? That's ancient history.

Re:Turnover

[mcgrew]

Why would anyone at IBM still remember what they said in 2005? That's ancient history.

Five years is ancient history? What grade are you in, son? IBM started business in 1885. THAT'S ancient history. Thinking like yous is what's wrong with business and politics today -- nobody thinks long-term.

Re:Turnover

[Jurily]

Thinking like yous is what's wrong with business and politics today -- nobody thinks long-term.

For me, a long term plan involves getting a better job, and if the people at IBM think the same, there's nobody left in that company you can blame for anything that happened in 2005.

Re:Turnover

[Anonymous Coward]

whooosh

Re:Turnover

[punit_r]

Why would anyone at IBM still remember what they said in 2005? That's ancient history.

Its strange that you find this acceptable. Please tell me that you were looking for sarcassm there.

TFA talks about at least two patents being asserted by IBM for which they have pledged not to assert as recently as in 2005. Now, as a matter of good faith I think it does not matter whether IBM said it in 2005 or 1905.

My advice to IBM would be --- "If you dont mean it... dont say it"

Re:Turnover

[Anonymous Coward]

I think he was being sarcastic...

Re:Turnover

[DrgnDancer]

I think your sarcasm detector might be faulty. Also those of at least 4 other people who modded you to +5. Might wanna get that looked at.

Re:Turnover

[m.ducharme]

Which is why we have the legal notion of corporate personhood.

Re:Turnover

[Anonymous Coward]

My advice is, if it's not a binding contract, plan a contingency for when the lawyers change their minds.

Re:Turnover

[mcgrew]

It doesn't matter if the GP was being sarcastic when people actually believe that five years ago is "ancient history". I believe they modded it up for the point I was making -- that there's no long term thinking these days, and that's a bug, not a feature.

Re:Turnover

[Anonymous Coward]

Why would anyone not remember this when reading the summary?

Re:Turnover

[blair1q]

Business does think long-term. At least at the top. But middle management, clawing at each other for raises, promotions, power, recognition, and whatever other forms of selfishness are inculcated into them at B-school, acts on every "opportunity" that is observable and, putatively, controllable. This is what they have the power to do, and they take the opportunity as their mandate.

So this isn't a lack of long-term vision. It's merely a lack of consideration for society. It's the inherent sociopathy of the corporation. Money is not thought, is not feeling, is not speech, but it is an attractor and driver of mindless action. And it is the only concrete thing that a business accounts for as when determining success or failure.

And any business that attempts to institute a policy of consideration for society will find that there is a competing business willing to forego that policy in order to take advantage of the short-sighted, opportunitistic, anti-social actions the policy would prohibit.

This is why we regulate business. Because businesses that regulate themselves are driven out of business by competition that does not regulate themselves. We create homogeneous rules so that heterogeneity does not kill those corporations that try to be fair to the rest of us.

Re:Turnover

[tbird20d]

But only people unable to detect sarcasm "actually believe that five years ago is ancient history". I guess that's the set you're addressing, but I think it's a small set. A joke doesn't support your assertion that there's no long term thinking these days.

Re:Turnover

[Anonymous Coward]

One legal system needs an abomination like corporate personhood to keep a legal entity accountable is a wicked one. My 2c.

Re:Turnover

[ClosedSource]

I apologize to anyone who is a fan of FUD.

Re:Turnover

[CorporateSuit]

Five years is ancient history? What grade are you in, son? IBM started business in 1885. THAT'S ancient history. Thinking like yous is what's wrong with business and politics today -- nobody thinks long-term.

By 5 years, most IBM execs have been eaten by the lion.

Re:Turnover

[m.ducharme]

Corporate personhood was developed to hold corporations accountable to [natural] people. That need still exists, despite the abomination that it has become.

Re:Turnover

[socceroos]

Yeah, Steve Ballmer modded you down. Apparently he thinks his company invented it first.

FLOSS to hurt competitors

[Anonymous Coward]

IBM likes Open Source only as long as they don't have to compete with it."

Or, it takes a chunk out of their competitor's pockets: MS, Oracle, etc...

Re:FLOSS to hurt competitors

[postbigbang]

It's like multiple personalities.

One side drives a lot of open source projects.

Another side has lots of IP, and says, gosh, we're gonna lose $$ if you use that mainframe emulator. (opens big box of patents) Now it's time to scare you off this mission of yours. Go home.(whilst waving the IP like it's a magic sword)

Look, IBM, you can't have it both ways. Wanna be a friend? Great. Want to wave your IP portfolio like the usual corporate hoodlum/troll? We'll walk.

Figure it out. Much is riding on whether we walk away from you.... or not. Microsoft's blustering is enough..... we can put you in the same boat-- where you were, years ago.

Re:FLOSS to hurt competitors

[poetmatt]

not multiple personalities, different departments.

PR and the legal department are always in contradiction. Upper Management is usually states agreement with PR but other management just follows the legal requirements only. Guess which one speaks out usually?

Re:FLOSS to hurt competitors

[Anonymous Coward]

FLOSS to hurt competitors

Headline: Gingivitis may merge with Plaque to retake control in Mouth area.

Re:FLOSS to hurt competitors

[postbigbang]

A shot across the bow is a bad thing, given their current position and that of people that respect FOSS. You'd think they'd have given this more thought.

Re:FLOSS to hurt competitors

[DJRumpy]

Has IBM responded to this? I can't imagine they don't recall what was said. I would be VERY interested in the response they come up with, and how they proceed once it's shown that they did indeed say wouldn't leverage those patents.

Re:FLOSS to hurt competitors

[ScrewMaster]

Has IBM responded to this? I can't imagine they don't recall what was said. I would be VERY interested in the response they come up with, and how they proceed once it's shown that they did indeed say wouldn't leverage those patents.

Believe me, the Nazgul remember everything. Whether or not they will admit to that is another story,

Re:FLOSS to hurt competitors

[hardwarefreak]

A shot across the bow is a bad thing, given their current position and that of people that respect FOSS. You'd think they'd have given this more thought.

Indeed. Big Blue has made far more $$ off Linux consolidation on zSeries than they can possibly lose due to the few customers who move off zSeries hardware to this emulation platform. Those who would do so will do it because they simply can't afford the IBM lock in pricing any longer. Those customers aren't typically buying or leasing new mainframes anyway. They limp along forever, putting off the inevitable switch to another platform, because IBM is always willing to offer an extended full covered service contract at a "just reasonable enough" price, no matter how old the mainframe hardware in question may be.

If this Hercules emulator is such a threat, why doesn't Big Blue pull the standard maneuver of "buying" the project, people, and Hercules the company, bring it all under the roof, and fully support it? THAT is smart business, not wasting money tying to kill the competition. This Hercules solution would pick off the weak and injured mainframe customers at most. It is not a threat to IBM's healthy mainframe customers as they usually need the advanced mainframe features not available in the emulator on x86 hardware solution.

I feel they're on the path to losing more money due to FOSS backlash than what they'd save by suing this "competition" into non existence.

Re:FLOSS to hurt competitors

[Jay Maynard]

They can't kill off Hercules by buying it. That's what makes this case different from the companies they have bought up.

They can certainly buy me (I do have my price - else I wouldn't have appeared in Microsoft's "I'm a PC" campaign), but that would merely inconvenience the project, and that not all that much. I'd be more than happy to go to work for IBM supporting Hercules. Somehow, though, I consider that as only slightly more likely than winning tonight's Powerball jackpot.

Re:FLOSS to hurt competitors

[hardwarefreak]

I didn't say buy and kill. I said "buy" (FSVO "buy") and then fully support the solution.

Who wants to emulate...

[anss123]

A crappy old green 720×348 graphic card?

Okay okay, I'm an idiot for even thinking it.

Re:Who wants to emulate...

[iggymanz]

depending on monitor, could be orange, yellow, white.....

Re:Who wants to emulate...

[BitterOak]

A crappy old green 720×348 graphic card?

Actually, it wasn't crappy at all, and was one of the best graphics cards for Microsoft Word for DOS, Lotus 1-2-3, and AutoCAD. I had a cheap Hercules compatible card and it worked great for the software I wanted to run. Better than the CGA or even EGA if you didn't need color or didn't want to spend money on a color monitor.

Durr

[The End Of Days]

from where I sit, IBM likes Open Source only as long as they don't have to compete with it.

That surprises me, who wouldn't like to invest time and money to create something, then have to turn around and compete against someone who basically just copies it and gives it away?

Re:Durr

[Nerdfest]

Open source has made IBM a lot of money. Now they want to have their cake and eat it too.

Re:Durr

[Jurily]

So you think 20 years is a reasonable time frame for software patents? The ZX Spectrum was still manufactured 20 years ago.

Re:Durr

[spikenerd]

...who wouldn't like to invest time and money to create something, then have to turn around and compete against someone who basically just copies it and gives it away?

When you say "copies it", do you mean "ctrl-c, ctrl-v" or "re-engineer from scratch"? If you mean the former, that's a serious accusation, and you need to back it up. What part of their work was electronically copied? If you mean the latter, then so what? Do you really mean to imply that people have the right to distribute ideas and yet still own them? Do you think the descendants of some cave-man should be getting royalties for every combustion engine that internally uses fire? Yes, we should like it when people improve on our ideas. And yes, doing something in open source is a significant improvement (perhaps sometimes even if it's not quite as good).

Re:Durr

[vlm]

That surprises me, who wouldn't like to invest time and money to create something, then have to turn around and compete against someone who basically just copies it and gives it away?

No time and money was invested in creating at least one of the patents. For example, look at one of the "infringed" patents, US Patent 7254698. The claims are merely a "shopping list" or "marketing glossy" of the peculiar feature of an ALU, which happens to be installed in a particular mainframe, that the Hercules guys would like to emulate:

Does multiply/add and multiply/subtract

Five deep pipeline, one result per cycle

binary or hex floating point format

Works on two different architecture formats.

It would take about a minute to make a spreadsheet in Excel that theoretically infringes on that patent, and probably an hour or so to make a perfect replica. Really all you need to do is implement mX+b=y with a five deep stack/array, given some peculiar input and output formats.

Now IBM will sell you a circuit board circa 2001-ish that will do this. They spent all their effort making an expensive machine that implements these simple math ideas in silicon. No one is stealing their physical hardware, or blueprints, or VHDL/Verilog, etc etc.

The emulator merely does the same calculations in C, and its free.

It boils down to IBM saying "no emulating our exact instruction set"

One ethical problem with patents like 7254698, aside from obvious ones like trying to patent basic linear algebra equations, is the supporting docs are all from 1999 to 2001 ish era. But its doing the submarine thing in that it was not issued until August 7 2007, "around a decade" after they were shipping silicon, more or less, sort of. And it won't expire until around 2023 which in the computer field is an absolute eternity.

I will give IBM credit, that unlike a patent troll, they actually built silicon to do something, not just patented an idea. But not much credit.

I have not looked into all hundred+ patents but they're probably all very similar to this one, but for other parts of the CPU instruction set.

Re:Durr

[Lunix Nutcase]

Duh? Did you really think that IBM was jumping on the Linux bandwagon out of anything other than to make money for themselves?

Re:Durr

[vlm]

So you think 20 years is a reasonable time frame for software patents? The ZX Spectrum was still manufactured 20 years ago.

Oh, that's not even the worst part.

As I see it, the worst part is the trade rags were flaunting the PR news releases for silicon that implemented the marketing goals listed in patent 7254698 back in 1999.

But the website I checked showed 7254698 wasn't issued until August 7 2007.

Using your example, it would be like not issuing the ZX Spectrum patent until say, 2010, attaching the emulator community, then waiting another 20 years until it expires.

Re:Durr

[Hooya]

Ah.. the ZX Spectrum. That was my first computer. The most fun I had programming... Oh "Harrier Attack" was the bees knees...

Good old days..

Re:Durr

[Anonymous Coward]

... while you're not arguing at all. Why don't you answer him with more than evasions?

Re:Durr

[The End Of Days]

Why bother? There is no value to simply reiterating my original post, and nothing I said was effectively rebutted.

Re:Durr

[DrgnDancer]

it wasn't so very long ago that reverse engineering patented stuff in a clean room environment was considered kosher. Hence the reason you're able to use a Dell, HP, or home grown PC instead of an "IBM PC IX, now with *two color* text display." (OK, so more likely you'd be using a Mac or Amiga, but it's really hard to be sure)

Re:Durr

[spikenerd]

Okay, I'll own up. Something inside me won't rest until I admit this. My post was intellectually sloppy. The truth is, I made it because I knew Slashdot would like it, and now I feel like a weenie that it worked so well. Even the most rabid software patent advocates would never suggest that they need a longer term, so my cave-man argument was just an attack against a straw-man designed to make a point that would get people with mod-points excited. That's pretty lame. The only point you make that I take issue with is the accusation about entitlement. Where did that come from? Are you suggesting that it is an attitude of entitlement for people to feel that they have a right to use ideas that they encounter, rather than to respect that those ideas belong to the person who originated them? That right seems very natural to me. I counter that it it is a much greater attitude of entitlement to feel that you have a right to all of the laws and infrastructure necessary to make ideas behave as matter. Is it not entitlement to expect that the world owes you these laws and enforcement mechanisms, such that you can distribute your ideas and still tell people what they're allowed to do with them? Why would anyone be entitled to that? I claim that IP laws are an outrageous form of entitlement. I believe entitlement is when you believe everyone else owes you something by virtue of your noble birth. I think IP laws are the perfect example of this. Those laws don't come for free. They come at the expense of tax money, lots of infrastructure, and limitations on freedom. Perhaps there was a time when it was worth all of that, but that era ended with the rise of the easy distribution facilitated by the Internet. IP laws are the most perfect example of entitlement of which I am aware. They are unnatural, and the only reasons people think they are entitled to them are based on historical precedent that is no longer relevant.

Re:Durr

[orgelspieler]

The patent wasn't filed until 2003 (thus expiring in 2023). If they were offering it for sale in 1999, then they would have had to file the patent by 2000. Something doesn't add up.

Re:Durr

[Orgasmatron]

I bet that the emulator doesn't have a pipeline.

Re:Durr

[elnyka]

from where I sit, IBM likes Open Source only as long as they don't have to compete with it.

That surprises me, who wouldn't like to invest time and money to create something, then have to turn around and compete against someone who basically just copies it and gives it away?

Depends on strategy. A company might want to commoditize/subsidize a previously charged (possibly expensive) product or service if it allows them expand their market or set a foothold on a new one. A hardware manufacturer forking into consulting (like IBM did) might find it beneficial to commoditize, subsidize or even give away hardware if that allows them to expand their consulting business.

Not that I'm saying that is exactly and precisely what is happening (or not happening) with the story, but it is completely possible for a company to go to the extend of letting others copy their work if they find it beneficial in expanding their customer base or services.

Re:Durr

[Anonymous Coward]

Nicely done.

Re:Durr

[VGPowerlord]

One ethical problem with patents like 7254698, aside from obvious ones like trying to patent basic linear algebra equations, is the supporting docs are all from 1999 to 2001 ish era. But its doing the submarine thing in that it was not issued until August 7 2007, "around a decade" after they were shipping silicon, more or less, sort of. And it won't expire until around 2023 which in the computer field is an absolute eternity.

In that case, prior art will be very easy to locate to get that patent overturned.

P.S. Didn't Symbol Technologies v. Lemelson make submarine patents unenforceable in the US?

Re:Durr

[Blakey Rat]

And Adobe gets a lot of good PR over PDF being an open standard, yet as soon as Microsoft wants to put a PDF writer into Office they bring out the lawyers. The PS3 got a lot of goodwill by being able to run Linux, until Sony decided they didn't care about it anymore, and now the feature's gone.

Face it: a lot of companies use open source/open standards as PR, and PR only. They don't give a crap about it otherwise. I'd say most companies.

Re:Durr

[ClosedSource]

I think Open source has mostly aided them in a PR capacity. They would probably have made just as much money supporting AIX as they have supporting Linux.

Re:Durr

[Anonymous Coward]

well said!

Re:Durr

[cheesybagel]

It is more than PR. It is often a business strategy. But strategy and tactics are different things, done by different people.

Re:Durr

[CAIMLAS]

They could have still made all that money off open source had they been non-committal about patents, or for that matter, if they'd remained openly hostile to all sorts of competition (barring their actual interests in OSS projects).

Re:Durr

[betterunixthanunix]

Yes, emulating a mainframe is the same as copying it and giving it away for free. Nevermind that using hercules still requires a valid z/VM license, a valid license for all the software that is run on top of z/VM, and that hercules cannot provide nearly the same level of performance and reliability that a mainframe provides.

Or did you think that emulating a mainframe was that same thing as actually having mainframe hardware available?

Re:Durr

[Anonymous Coward]

No time and money was invested in creating at least one of the patents

Have you ever actually filed a patent application? The process of investigation for prior art is a long one (multi-month), the legal costs in drafting are horrendous. I have three patents filed (not yet issued), each costing tens of thousands of dollars. To say that no time and money is invested is clearly ridiculous even for something incredibly simple.

I won't comment on the rest of your message since I'm not vested enough to actually care about this problem but I had to call you on that particular comment, sorry.

Re:Durr

[vlm]

I bet that the emulator doesn't have a pipeline.

Yeah, but like I said, the patent claims cover the ABI or marketing specs, not how it was done.

So, a faithful emulator will take 5 cycles from input to output, and because the patent says it should take 5 cycles, it is therefore infringing.

Now if the emulator took 1 emulated cycle, it would not infringe, but then again code compiled assuming it takes 5 cycles would not work right.

So, it can either be a cruddy emulator, or it can infringe.

I haven't investigated this peculiar feature, but I have used Hercules, and I would not be surprised, if it did indeed emulate a 5-deep pipeline.

Re:Durr

[Jay Maynard]

The IBM mainframes have always been defined so that details like that are not visible to programs, and programs that depend on timing like that are not only allowed, but expected, to break on other systems. Hercules makes no attempt at all to emulate the behavior of an IBM mainframe to that degree, and does not need to to fulfill its purpose.

I feel your pain

[SleazyRidr]

So, out of 173 possible patent infringements, 2 of them were supposedly pledged to not be enforced.

I can see why you feel hard done by.

Re:I feel your pain

[Anonymous Coward]

You're not thinking of the BIG PICTURE maaaaan!

Re:I feel your pain

[c 0xFF]

At least they listed the patents. That more than can be said about other companies (see also: Microsoft).

Re:I feel your pain

[Jazz-Masta]

I'll bet IBM will apologize for accidentally listing the 2 patents that it swore it would not.

This will leave the creator with 171 patent infringements and nothing to complain about to slashdot.

Re:I feel your pain

[Anonymous Coward]

clicking around TurboHercules web sight .. I do not see any mention of source or OSS. This is who the article claims the letter was sent to. Later links go to a QPL project.

IBM cant sell this software .. hmm fair?

Re:I feel your pain

[Anonymous Coward]

rule number 1 of slashdot: ANY thread can be twisted into a bash of microsoft. no exceptions.

Re:I feel your pain

[Trepidity]

They will probably do that anyway, because it needlessly complicates their case if they don't--- apart from the PR value, suing someone for patent infringement after you've openly pledged not to assert the patent against them will make enforcing the patent in court harder, since it can be argued to be an implied royalty-free license, or at least to trigger estoppel.

Re:I feel your pain

[Jay Maynard]

TurboHercules SA is a company formed to commercialize the Hercules open-source emulator. The accusations IBM made in its letter apply as much to Hercules as they do to TurboHercules, since the latter simply sells services and support for the emulator.

Yes, Hercules is open source. The QPL is an approved open source license, according to the Open Source Initiative.

Re:I feel your pain

[Anonymous Coward]

Shut up you Micro-turfer!

Re:I feel your pain

[bluefoxlucid]

Yes, poster is an idiot. "This is not fair, it's ... it's... (totally legitimate) ... help.... OH, OH I FOUND IT! YOU FORGOT TO DOT THIS 'i'! LOOK, LOOK!" Okay. Put the dot on the 'i'. Okay, now where were we?

Re:I feel your pain

[laing]

Yes but did IBM threaten the commercial version (Turbo Hercules) or the OSS version? Let's get our facts straight before we jump to the conclusion that IBM is threatening OSS.

Re:I feel your pain

[c 0xFF]

That's partly because Microsoft makes it so easy, partly because it's fun, and partly because it's an easy way to get modded up!

Re:I feel your pain

[harlows_monkeys]

If Microsoft ever gets to the point of threatening a suit over specific code, as opposed to vague "we think some large open source projects might be infringing some of our patents" noisemaking, they will list specific patents.

Re:I feel your pain

[mounthood]

I'll bet IBM will apologize for accidentally listing the 2 patents that it swore it would not.

This will leave the creator with 171 patent infringements and nothing to complain about to slashdot.

This will leave something Slashdot cares about: IBM is using patents to attack open source.

Re:I feel your pain

[hduff]

rule number 1 of slashdot: ANY thread can be twisted into a bash of microsoft. no exceptions.

Because Microsoft behaves they way they do.

Let's restate "Rule number 1 of Slashdot": ANY mention of any fact can be used to illustrate Microsoft's evil behavior because they routinely behave in some evil manner.

But if you point was "It's pointless to always bash Microsoft because they're always doing something worth bashing and they'll never change", then I agree. Good insight on your part.

Re:I feel your pain

[weicco]

Well, I don't think even Microsoft could sue someone over patent infringement without listing the actual patents that were supposedly infringed. Maybe SCO could though ;)

Re:I feel your pain

[Anonymous Coward]

[..] and they'll never change",

Hahahaha. I hope you too can see the humor in implicitly assuming that the most successful multi-billion dollar software company on the planet is going to be affected by comments on a blog.

Re:I feel your pain

[Jay Maynard]

There is no "commercial version". TurboHercules SA sells support and services around the Hercules open source project. The threat IBM made to TurboHercules was aimed squarely at the Hercules project.

Re:I feel your pain

[Hijacked Public]

No so easy for me, I'm using IE6 and it mangles comment nesting. Stupid Micorsoft.

Re:I feel your pain

[eabrek]

Regardless of who gets served the paperwork, it affects both. Any customers of the infringing products are liable. Witness the suits by patent trolls against Intel being applied to Dell and others.

Re:I feel your pain

[Anonymous Coward]

can you post the number or the two patents that IBM pledged to not be enforced.

I found it hard to compare the scanned page and the PDF from IBM.
http://www.ibm.com/ibm/licensing/patents/pledgedpatents.pdf

Re:I feel your pain

[bertoelcon]

No so easy for me, I'm using IE6 and it mangles comment nesting. Stupid Micorsoft.

You seem to have pulled it off well though.

Re:I feel your pain

[keeboo]

Uh... What ExxonMobil has to do with this?

Re:I feel your pain

[maxwell demon]

Since when is ExxonMobil a software company?

Re:I feel your pain

[GameboyRMH]

Hahaha, yeah if that were true they'd be bribing bloggers with free laptops loaded with their latest OS.

Oh wait...

Re:I feel your pain

[ClickOnThis]

rule number 1 of slashdot: ANY thread can be twisted into a bash of microsoft. no exceptions.

That's partly because Microsoft makes it so easy, partly because it's fun, and partly because it's an easy way to get modded up!

I think Godwin's Law just got a corollary...

Re:I feel your pain

[keeboo]

Sorry, my bad. Let me rephrase that:
"What IBM has to do with this?"

Re:I feel your pain

[Anonymous Coward]

estoppel makes me hard!

Re:I feel your pain

[maxwell demon]

Doesn't Hewlett-Packard also produce software? (Place 39, vs. place 47 for IBM)

Re:I feel your pain

[Sulphur]

Or the Gates Win law got a corollary.

Re:I feel your pain

[Anonymous Coward]

Did you ever think that the 2 patents are there by accident?

I mean, if this had been over 5 patents, someone may have looked at the list and said, "Take those two off, we don't worry about those."

But when there's 173 patents, and all but two are those that IBM will gladly enforce, do you really think someone's gonna take the time to say, "We just listed 173 patents they're violating. We're pretty sure at least 150 of them (out of how many does IBM have now?) aren't on the do-not-enforce list. Should we really take the hours to make sure that all of them aren't on a list of 500 patents we won't enforce?"

corepirate nazis have no conscience

[Anonymous Coward]

so their patentdead pledges mean.... 0.

you call this weather?

never a better time to consult with/trust in your creators.

Re:corepirate nazis have no conscience

[Anonymous Coward]

Yo dawg, we herd u like clever punz and playz on w0rdz, so we put a comment in ur thread so u can doosh while ur a doosh.

Re:corepirate nazis have no conscience

[Areyoukiddingme]

never a better time to consult with/trust in your creators.

What for? My parents aren't patent lawyers, either one. They don't know a whole lot about IBM, either.

Claiming infringement

[Anonymous Coward]

Claiming infringement on a patent is not the same thing as asserting it. Yet another story blown vastly out of proportion by poor editing.

Re:Claiming infringement

[axlrosen]

Your comment is not so helpful unless you explain the difference. They sound like synonyms to me.

Re:Claiming infringement

[tonycheese]

It seems to me IBM was notifying TurboHercules of all the infringements. If IBM decided to go to court, they could just as easily leave those two out of the lawsuit and still have 171 to sue over. No pledge broken here...

Re:Claiming infringement

[Ginger Unicorn]

It's "I'm sorry that your understanding of English is so poor".

You might not like them ...

[0racle]

... but software patents are legal in the US and many other countries. Surprisingly, doing things against the law is not the safest course of action. It sounds like the author of the software knew they were infringing and thought that IBM's position was 'oh no, go ahead and rip our stuff off.'

I'm finding it hard to feel bad for the project.

Re:You might not like them ...

[Monkeedude1212]

Check out their website. The quotes they've listed.

“ I have installed your absolutely fantastic /390 emulator. You won't believe what I felt when I saw the prompt. Congratulations, this is a terrific software. I really have not had such a fascinating and interesting time on my PC lately. ”
— IBM Large Systems Specialist

“ Such simulators have been available for a long time. One of the most complete (up to modern 64-bit z/Architecture) is hercules. ”
— Michel Hack, IBM Thomas J. Watson Research Center

  An apparently excellent emulator that allows those open source developers with an "itch to scratch", to come to the S/390 table and contribute. ”
— Mike MacIsaac, IBM

IBM -HAS- said "Go ahead and rip our stuff off, it helps us in the long run"
And now that its paid off, they're going for more money by killing it. Despicable.

Re:You might not like them ...

[Nerdfest]

And now that its paid off, they're going for more money by killing it. Despicable.

... especially with them pushing zLinux so people do not completely dump existing mainframe installations.

Re:You might not like them ...

[c 0xFF]

These are hardware patents, not software patents. What's interesting about this case is we have software violating a hardware patent, as it's emulating what the hardware does. A key word here is "emulating."

Now, I have a hard time thinking that all those patents are really being violated. I've worked with processor emulators before, and the way they actually work is very different from the actual hardware. Many of the patents seem to be hardware-specific, and not what you would actually implement in software. I won't speculate beyond that because I don't know much about the hardware and emulator involved in this case.

Re:You might not like them ...

[Anonymous Coward]

Just because it's legal doesn't mean it's ethical or good. Lots of states in the US still have laws on their books outlawing interracial marrage. Do you want to justify that?

Re:You might not like them ...

[Yvanhoe]

It is hard to do any computer work without infringing on a software patent you know. The safest course of action is to have a lawyer constantly checking that the obvious features you code are not patented. In fact, as this is close to impossible, most companies choose a less-safe way : they patent things of their own as defensive patents, ready to strike back if a competitor says that they infringe one patent, they'll have a counter-infringement to point at.

Everybody lives in fear of patent trolls who own a lot of patents but use none of them, only hoping to cash-out in court.

Linux itself is said to be infringing quite a lot of patents. In most cases, applying the law is a way to kill most of the OSS projects. I would say this is a law you have to disobey if you want to do anything. This is a law that must not be enforced if US doesn't want to go back into medieval IT era. And yeah, this is a bad law that will have to change sooner or later.

Remember that things like the ability to read DVDs under linux were originally illegal features. It is very unfortunate but today, we techies, have to take a political stand to do our job even in its most obvious tasks.

Re:You might not like them ...

[weicco]

IANAL (gods I hate that acronym!) but doesn't public statements like patent pledge create pretty effective estoppel? If yes, then there's no worry about the two patents in the pledge but I guess there's still 104 left to worry about and more to come...

Re:You might not like them ...

[Anonymous Coward]

IBM -HAS- said "Go ahead and rip our stuff off, it helps us in the long run"
And now that its paid off, they're going for more money by killing it. Despicable.

It would seem that creating a company to provide services to the open source emulator is what got this whole ball rolling. It is one thing for IBM to not sue a bunch of hobbyists that are doing something in their own time. It is another thing for IBM to not sue a company making money on services for emulating IBM hardware. After all, doesn't vmware also the emulation of a Hercules mainframe? Has anyone seen press releases that IBM is looking to sue vmware out of existence as well? (Or did I just let a cat out of a bag?)

Re:You might not like them ...

[Tanktalus]

I'm not sure if you've ever worked with a lawyer before.

First, you threaten with an oversized, spiked club. Then, if the defendant has an expensive enough lawyer, you start to peel back the ludicrous claims such that you end up with a "compromise" agreement.

Drives me up the wall to deal with the corporate lawyers.

Re:You might not like them ...

[DrgnDancer]

Remember that things like the ability to read DVDs under linux were originally illegal features. It is very unfortunate but today, we techies, have to take a political stand to do our job even in its most obvious tasks.

It technically still is if you use DeCSS or any of it's progeny. No one tries to enforce the patent, because the cat is so badly out of the bag that it's become pointless, but the software is still technically illegal. I think some of the commercial Linux vendors (Red Hat, Novell, etc) have paid for licenses to legally decrypt DVDs at this point and put them in the "non-free" repositories of their distros. This allows them to a) stay legal with regards to DeCSS and the like, b) keep their "base" distributions Free, and c) allow their users to watch DVDs through an officially supported channel if they want to deal with the "non-free" software.

Re:You might not like them ...

[GameboyRMH]

What's interesting about this case is we have software violating a hardware patent, as it's emulating what the hardware does.

If that works for IBM, Nintendo would be very interested...

Re:You might not like them ...

[Anonymous Coward]

IBM has NOT stated anything about the Open Source Hercules project, this is about the commercial Hercules product.

Re:You might not like them ...

[Jay Maynard]

There is no difference between the two. TurboHercules is selling software and support for the open source Hercules package.

Spam?

[headkase]

Besides cost, how difficult would it be to spam the software patent system? It doesn't seem to matter what it is that you are actually patenting so you could go for something like a triply-linked list. The doubly-linked one is already patented, never mind having existed since the 60s. Build up a communal "Open Source" patent list and at the very least if someone sued an open source project for patent infringement you'd have something to cross-license OR you could keep clogging the patent system and refusing closed source licenses while licensing the patents freely to open source projects. As long as the patents didn't find their way into any standards then you could avoid RAND (reasonable and non-discriminatory) forced licensing.

Re:Spam?

[Anonymous Coward]

build up a communal "opne source" patent list

you're welcome.

Wake up and smell the stock market people...

[Assmasher]

...ANY publicly traded company will do ANYTHING to ensure the continued success of the company because the management is entirely beholden to the stock holders. Google included (although for now a large amount of the stock is in the hands of people still involved in the day to day operations.)

Some day you will be reading a story about Google 'embracing/extending/extinguishing' some new darling technology and you will realize that as soon as a company 'goes public' they lose their soul FOREVER. I'm not against publicly traded companies, I'm against the ridiculous naivete that tries to act like Microsoft is 'evil' and Google is 'good', LOL. From such a simplistic point of view, Microsoft are evil, Apple are evil, Google are evil, IBM is evil, every public company is 'evil.'

Re:Wake up and smell the stock market people...

[bb5ch39t]

Every company which is in business to make a profit can turn "evil". Especially when they become "owned" by people who care only about money, with no sense of ethics. Good is defined as "anything which increases my store of money". Bad is defined as "anything which decreases my store of money". IOW, most people are simply greedy and selfish.

Re:Wake up and smell the stock market people...

[guruevi]

You will also notice that these 'pledges' don't do very much in the long run. IBM, Google, Microsoft, Novell, Red Hat and Apple all have 'pledged' some type of protection for their open source ancestors but those things are not legally binding no matter what they might say about it (I think it's MSFT that has such a claim).

That's also why you should avoid implementing any of their proprietary crap in your Open Source project (or any project that's being made public or sold in any shape or form) because if for any reason they want to leverage their arbitrary licenses on it, they can no matter what they have promised whether it's uncanny legal speak or so-called patent pools.

Re:Wake up and smell the stock market people...

[BigSlowTarget]

...ANY publicly traded company will do ANYTHING to ensure the continued success of the company because the management is entirely beholden to the stock holders.

Ha. You actually believe this? Sorry, senior managers can obscure financial results until well after they have collected their paycheck and left the company. Each level of a corporation is 'beholden' to the level above them that has hire/fire authority or who has influence with someone who does. At the top the Board of Directors cannot be fired by the stockholders (except under very extreme conditions) but who may be up for reelection at a general meeting once a year. In practice it is extremely unlikely that a board member will be removed unless a single very large stockholder (usually a corporate takeover type) or a group of large stockholders (pension funds or hedge funds) prepare and campaign with their own money before the meeting.

Board members and senior management choose the direction of companies with non-huge shareholders simply along for the ride until they decide to jump off. They can sell their shares, but they can't really change the company. If the corporation is blatantly steered toward the rocks then someone might interfere, but it is clear most business managers of recently failed companies (AIG, Lehman) were not being operated for the benefit of any shareholders.

Re:Wake up and smell the stock market people...

[kenp2002]

Profit is inheritly evil by definition. You have charged someone more for a good or service then it is actually worth. You can easily run a not-for-profit company or even a non-profit company. Net Profit is inheritly evil by the definition of charging someone more then something is worth. In that regard how much is enough? It's never enough once you go past the real value.

Widget A: Cost $30 dollars (labor, materials, overhead, etc.)

Sell A for $30 and you are honest.
Sell A for $40 and you are overcharging by $10.

"But without profit you cannot grow."

Then you ask, "How much is enough?"

It's never enough once you cross the profit line. The whole usury debate has been going on for over 4000 years and the nature of profit in morality.

Profit is at it's core, evil in that sense. The question rages on, how much evil are you will to tolerate in order to stay ahead of the competition.

It's always a race to the bottom of the morality ladder. Ethics is nothing more then a series of rules a business tells people they play by until they become inconvienent.

Re:Wake up and smell the stock market people...

[RMS Eats Toejam]

Pledges don't mean shit. Signed contracts do.

Re:Wake up and smell the stock market people...

[Assmasher]

I think you're missing the point. They are not actually 'evil' by any stretch of the imagination, they have different priorities and responsibilities. As soon as a company goes 'public' their single most important driver is the need to enrich their shareholders - that is it. Anything else is purely 'gravy' and subject to the whims of the economy. I guarantee you that if someone were to challenge Google's market seriously Google would do WHATEVER IT COULD to prevent that from happening - whether 'ethical' or otherwise. There'd be no dithering, not stopping to think about it, it would simply happen.

Re:Wake up and smell the stock market people...

[besalope]

You will also notice that these 'pledges' don't do very much in the long run. IBM, Google, Microsoft, Novell, Red Hat and Apple all have 'pledged' some type of protection for their open source ancestors but those things are not legally binding no matter what they might say about it (I think it's MSFT that has such a claim).

That's also why you should avoid implementing any of their proprietary crap in your Open Source project (or any project that's being made public or sold in any shape or form) because if for any reason they want to leverage their arbitrary licenses on it, they can no matter what they have promised whether it's uncanny legal speak or so-called patent pools.

Actually, if there is evidence or a precedent has set for non-enforcement of those patents in regards to other projects, then their pledge is legally binding. The OSS project would just have to show the judge that the patent owner had previous failed to enforce the against pre-existing projects, and the patent holder's argument would fall apart.

Re:Wake up and smell the stock market people...

[Assmasher]

Believe it? Of course I believe it, and it's exactly how it is.

Senior managers obscuring financial results until well after they have collected their paycheck and left...? You apparently do not understand how senior manager are paid in a public corporation - their rewards are DIRECTLY tied to the performance of the company's stock. This is why the SEC (who are at least good at this one aspect of their jobs) watch senior corporate members stock sales/purchases like a hawk. Salary is relatively nothing in a public corporation.

The board of directors cannot be fired? What do you mean? Individual board members can be removed by the action of the board at ANY time - usually due to direct pressure from stockholders outside of the annual meeting. The entire board? I've never heard of an entire board being replaced, even after a hostile takeover.

Board members and senior management choose the direction of companies with non-huge shareholders simply along for the ride until they decide to jump off? That's not true. Most stockholders tend to group together for the purposes of increased influence, maybe you're referring disinterested stockholders (like mom & pop shareholders who for some reason hold shares on their own.)

Mutual Funds have enormous influence on public companies depending upon the angle at which they've bought in.

AIG is an example of a company that did absolutely everything possible to keep their share prices up, they actually prove my point - not contradict it.

Lehman isn't a good example because they are one of the rare examples of companies whose senior management's recompense is tied to things other than the stock's valuation - although they also did what they could to float the company's stock as long as possible.

Do you really think AIG and Lehman didn't know they were in deep DEEP kimchee until 2 years ago? I personally know a scumbag finance type who bragged just a year ago about how the people at his level (he was mid-level at Goldman Sachs) knew how bullshit the system was and that it would eventually fold but he was busy making his millions (he's semi-retired now in the mid-west the useless sack of sh**) and his bosses were supposedly happy at how they could keep revenue growth increasing while the economy was in a minor depression.

Re:Wake up and smell the stock market people...

[J Story]

Profit is inheritly evil by definition.

Utter nonsense. If you want a widget and are willing to pay $x for it, and if I am willing to provide it at that price, nothing else matters. I am no more a thief for making a gazillion percent profit on it than you are if I am selling the widget at a loss.

Re:Wake up and smell the stock market people...

[ckaminski]

After years of watching it, and the redirection and misdirection, and the golden parachutes, the short-term operation of companies today is simply to line the pockets of the professional managers. The ongoing pumping out of MBAs in this country is going to kill US long term. Pretty much when the founders get out, the company loses it's ideals and it's drive. Once the professional managers come in you get things like "largest layoff in company history" to refocus and drive the company, while projecting 10% higher year over year growth.

Good stuff. I can't wait to be a business owner.

Re:Wake up and smell the stock market people...

[bigstrat2003]

Profit is inheritly evil by definition. You have charged someone more for a good or service then it is actually worth. You can easily run a not-for-profit company or even a non-profit company. Net Profit is inheritly evil by the definition of charging someone more then something is worth.

This is simply false. Profit is being paid for something more than what you paid for it, true, but it isn't simply arbitrary. It is to compensate you for the effort you expended to help that product reach the hands of the person receiving it (whether that involved crafting materials into a finished product, or transporting a truck full of widgets across the country). You are merely being compensated for your expenditure of time and energy, not gouging someone.

Re:Wake up and smell the stock market people...

[HishamMuhammad]

You are merely being compensated for your expenditure of time and energy, not gouging someone.

I see your point (and I agree with Sloppy's point above) but, to nitpick, compensation of time and energy is gross profit (which even not-for-profit companies have to have, in order to remain operational, unless they're funded by a third party). The grandparent post was explicitly talking about net profit, which is what remains after all costs are compensated.

Re:Wake up and smell the stock market people...

[Anonymous Coward]

How can you have $30 of 'cost' in your little profit-free utopia? The only true labor 'costs' are food and shelter for the workers (anything above that and the workers are earning a profit, which makes them evil). The only cost for food is the labor of the farmers, so it too must be $0. Any materials you could possibly need are already here, it just requires labor to get to them/make them usable.

Re:Wake up and smell the stock market people...

[kenp2002]

Gross != Net

Re:Wake up and smell the stock market people...

[kenp2002]

and what if you need the widget?

If by your logic, then price gouging is perfectly acceptable.

Evil is a subjective concept by which society measures benefit verus hazard to society.

Greed is good by your logic. Going back to the question "How much is enough" you clearly side on the "It's never enough". And no one is implying theft.

Profit (Net specifically) is an excess above the value of an object. The law of supply and demand factor in a free market environment. The reason the morality of profit has been and always will be in dispute is because there are no true free markets. In a pure free market You would sell a widget at $20 dollars (lets say you have a $10 markup) and I am unwilling to pay for it. Someone e else in a free market would come in to undercut the competition at $15 dollars ($5 markup). I buy that. The reality of economics, especially post minium wage erased the pure free market. Add in a botched patent system, litigation system (with no tort reform likely), and a copyright system gutted of it's original purpose. Add in resource scarcity and you have a mess and at it's core, a lust for unstatainable profit growth.

The advent of the public corporation means that you either have to have an infinite capability to improve the efficeny of create a widget (lowering endlessly the cost of the widget's creation) in order to continue to grow. The concept of Profit then puts pressure on the manufacture to not only improve the product's margin indefinately (which is impossible) but also build cost-of-entry barriers, resource constraints (see net neutrality) and all sorts of unpleasentries (See Big Oil).

"The love of money is the root of all evil" was accurate in ways you fail to see apparently.

Gordon Geko would be proud... as would Enron...

Re:Wake up and smell the stock market people...

[Anonymous Coward]

And from this argument is born price controls complete with confiscation of private property and stifling of investment (for a current example of which, see Chavez.)

As for the question, what if you need the widget?, say you've got some fatal disease for which an experimental cure exists. Not considering R&D, the cost for one treatment is $100, but amortizing R&D expenses over a given time pushes the cost to $500,000 and the price to $1,000,000. How much do *you* feel the supplier should be compelled to charge, and what is the likely result of your decision on the supplier's future actions in other R&D?

Re:Wake up and smell the stock market people...

[yuhong]

Yep, I know, and it is far from good! We need to move away from maximizing shareholder value! The good news is from what I read, there seems to be a movement to change the MBA curriculum to fix the problems. I read the http://blogs.hbr.org/ every day now, and it has some articles on these problems, some of which I have even submitted to Slashdot.

Re:Wake up and smell the stock market people...

[yuhong]

You apparently do not understand how senior manager are paid in a public corporation - their rewards are DIRECTLY tied to the performance of the company's stock.

I know, and an important step in moving away from maximizing shareholder value and the quarterly earnings game is to move away from that. This article from HBR talks about it:
http://blogs.hbr.org/hbr/how-to-fix-executive-pay/2009/07/scrap-stock-based-compensation.html

Call the DOJ

[lwriemen]

If IBM is using anti-competitive practices again, then maybe it's time for some external constraint. After all, Microsoft owes it's whole existence to the previous IBM anti-trust ruling, which led to Microsoft's monopoly and IBMs pledge of support for open source.

Re:Call the DOJ

[TheRaven64]

More or less what I was thinking. Didn't IBM lose an antitrust suit in the '80s for doing pretty much exactly the same thing?

Re:Call the DOJ

[Richard W.M. Jones]

I think the unfortunately difference here is that patents are legal monopolies. You're meant to use them anti-competitively and against the interests of the free market.

Rich.

Re:Call the DOJ

[lwriemen]

This is true, but if you were selectively making use of those patents, then your intent is open to judgment. There is also the question of enforceability of the patent; a large company can use a not obviously unenforceable patent as a bludgeon against a small company to force them out of business through a long, expensive litigation, which the large company wouldn't even pursue against another large company.

Re:Call the DOJ

[Anonymous Coward]

No, IBM dragged the case on forever and were found not guilty, unlike MS which was found guilty and got away with it anyway.

Re:Call the DOJ

[ClosedSource]

IBM wasn't found anything by a court. The DOJ just dropped the case.

Re:Call the DOJ

[ClosedSource]

IBM didn't play a role in the existence of Microsoft. It was a profitable company before its involvement in the development of the IBM PC.

IBM didn't involve MS because of any anti-trust issue either. The PC project was an attempt at "agile" development by avoiding the slow-moving IBM bureaucracy in favor of partnering with other companies with expertise in microprocessors (Intel) and microprocessor software (MS).

Re:Call the DOJ

[lwriemen]

I should have qualified existence with "monopoly", but to say IBM didn't have a role in Microsoft's existence is wrong as well. Without the inclusion of Microsoft DOS on the IBM PC, Microsoft would probably have never had a monopoly, and Windows would have never gotten it's present market share.
        If IBM hadn't unbundled it's software and hardware due to the antitrust investigation, the IBM PC probably would have been a lot less open and probably wouldn't have gone outside the company for an OS. IBM could have competed in a more closed fashion with Commodore, Apple, Atari, etc.

Re:Call the DOJ

[ClosedSource]

At best you should have replaced "existence" with "monopoly" not qualified it.

IBM wasn't under any court-imposed anti-trust sanctions. As I said before, IBM wanted to accelerate the development of a personal computer given how late they were to the game.

Re:Call the DOJ

[lwriemen]

Wow! You are so wrong, that I'm tempted not to educate you!

IBM was under a consent decree until 2001. That's why there was no verdict in the antitrust case.

Try this link:
http://www.justice.gov/atr/public/press_releases/1996/0715.htm

Re:Call the DOJ

[ClosedSource]

This is a 1956 consent decree. It's not part of the more contemporary DOJ investigation. If that decree forced IBM to develop products with outside help, how did they get away with waiting over 20 years to do it?

Anonymous Coward

[Anonymous Coward]

This is the same IBM the has laid off THOUSANDs in the US over the past two years, and replaced them with folks from the BRIC countries, so it doesn't surprise me.

Hercules is a z/Arch emulator...

[Anonymous Coward]

Sure, IBM will win because Roger doesn't have the means to fight that type of litigation...

But Hercules is a hardware emulator, w/o IBM software. I didn't read the article (this is /. after all), but can they do anything about a re-implementation of an arch in software? I thought Intel vs Who-Knows, Maybe AMD left some legal baggage on that...

Also, the letter was sent to the company that deals TurboHercules, and not the Hercules team itself. Something to consider as well.

Re:Hercules is a z/Arch emulator...

[bb5ch39t]

Yes. Patents apply to some of the z architecture. You cannot make "something" (either hardware or software) which implement the patented architecture, regardless of how you implement it.

Re:Hercules is a z/Arch emulator...

[Megane]

Patents cover a method of doing something, not the mere idea of doing something. A software implementation of a hardware feature is likely to use a different method to accomplish the same or similar result.

Re:Hercules is a z/Arch emulator...

[Anonymous Coward]

I'm not up to speed on the old mainframe stuff, so I may be wrong in terms of availability (and I'm sure IBM is happy to support it for a pretty penny), but I'm a bit surprised that this stuff is not protected under the DMCA, assuming that the hardware is no longer easily available.

Wasn't that one of the few good things about the DMCA? Legal protection for people trying to work with extremely legacy technology.

Re:Hercules is a z/Arch emulator...

[bws111]

The DMCA is for copyright, not patents. The particular patents are for new mainframe features, not old legacy stuff. zSeries is alive and well, it is certainly easily available (but expensive).

A lot of people

[wandazulu]

There are still a *lot* of mainframes out there running code from the 1960s. I can personally vouch for one system that went into production two years before I was even born.

The issue is the hardware; IBM charges a *lot* of money for their stuff, and especially on the mainframe, where some products (think MQSeries, or now known as WebsphereMQ) are charged by the processor cycle. The machine has a permanent link to IBM for both troubleshooting (they can work with every aspect of the machine remotely) as well as for billing (one of the "cool" features is that you can "lease" additional power only when you need it, like year-end billing or some-such).

I worked with a small shop that had a single mainframe that was used for small jobs by my company because it was cheaper to farm it out to them than to run it on the ES/9000; the $/cycle count cost just made it prohibitive to use the 9000 for anything other than massive jobs. So this small company got all the small business. You can appreciate that they'd cut their costs even further if they could run everything in Hercules on standard hardware, and probably get better performance than their small early 80s machine.

Mainframes are still the guy hidden in the shadows, smoking the cigarette; he's still there and has more power than you think.

Re:A lot of people

[TheRaven64]

And a big Whoosh goes to wandazulu. The grandparent was referring to the Hercules graphics adaptor (a high resolution mono display card from the '80s). It was a pun. Not a good one, but a pun that you completely missed nonetheless.

Re:A lot of people

[squiggleslash]

Let's try again: Who would want to emulate a mythical greek hero?

Re:A lot of people

[gzipped_tar]

Dung cleaner. Ancient mainframe software maintainer. What's the difference?

Re:A lot of people

[Jurily]

It's not like the summary was clear on what it was referring to, and you should know how many articles we read.

Re:A lot of people

[PolygamousRanchKid]

Dung cleaner. Ancient mainframe software maintainer. What's the difference?

Heracles cleaned the Augean Stabes to expiate the crime of slaying his own children.

The ancient mainframe software maintainer maintains mainframe software because he gets paid obscenely well for doing it.

And younger programmers won't touch mainframe software, because looking at mainframe software would cause them to go mad and slay their children. Thus, putting them in the dung cleaner role.

Pretty simple innit? Were you able to spot the difference . . . ?

Re:A lot of people

[Anonymous Coward]

Florian Müller once founded the nosoftwarepatents campaign but he does not own it anymore and cannot speak on their behalf.

Re:A lot of people

[gzipped_tar]

You must be new here. This is /. and here "children" means the process you get from a fork() call, not some vaguely remembered bio-science concept that has something to do with a strange experience that no true /.er ever really knows.

BTW: Seven child processes were kill()ed during the making of this post.

Re:A lot of people

[zotz]

The governator?

Re:A lot of people

[steelfood]

Who wouldn't?

Re:A lot of people

[d'baba]

Warner Brothers?

Re:A lot of people

[laughing rabbit]

Even children in the real world are a result of forkin'.

Re:A lot of people

[icebraining]

Not true. "Children" is also that strange concept that politicians refer to when they plan on censoring the Internet or spy our packets.

Re:A lot of people

[Anonymous Coward]

They're just ticked off 'cause I made hamburger-meat out of the real one's face.

-- Kratos

Re:A lot of people

[Anonymous Coward]

The ancient mainframe software maintainer maintains mainframe software

Does it chuck wood, too?

Re:A lot of people

[yo_tuco]

"...This is /. and here "children" means the process you get from a fork() call, not some vaguely remembered bio-science concept that has something to do with a strange experience that no true /.er ever really knows."

Not some vaguely remembered bio-science concept? Not true. We all know that children generated from dysfunctional parents create Zombies!

Re:A lot of people

[Ecuador]

Ah, but of course! IBM's Perseus Graphics Controller (PGC), I remember back in the 80's, it could do some serious CAD stuff, so that's what all the fuss is about? ;)

Re:A lot of people

[sznupi]

We all know that children generated from dysfunctional parents create Zombies!

Please continue...

Re:A lot of people

[rayzat]

While IBM does charge per MIP for their hardware, from what I've seen the real cost is the software, as it seems is the case with almost all hardware/software. I heard CA makes more then 2x off Mainframe software then IBM does off hardware which is why IBM has all that zip/zap stuff for decreasing the application MIP and increasing the hardware cost. I would be curious how software would be priced per real processor MIP or per virtual MIP. I can't really imagine who would want to run a large virtual mainframe anyway, sure there might be some 1 off app some people would like to export, but the vast majority of users, I just can't see it.

Re:A lot of people

[Amanieu]

The cure is waitpid?

Re:A lot of people

[hardwarefreak]

Mainframes are still the guy hidden in the shadows, smoking the cigarette; he's still there and has more power than you think.

The only "power" you speak of is vendor lock in due to BS contract language. The only thing really holding IBM's mainframe division together, for the most part, for the past 20 years, are their lawyers and the lock in contracts they write for the mainframe platforms.

Re:A lot of people

[Jay Maynard]

Not really. Mainframe customers incur enormous expense and effort when trying to move off of the mainframe platform, and such projects fail as often as not. That's what makes IBM's tying of z/OS to their hardware an illegal monopolistic tactic: because they own 100% of the relevant market.

Fortune 25 companies are not known for being stupid when it comes to cutting costs - and every single one of them is an IBM mainframe user. The vendor lockin is not because of their contracts with their users, but because they have no competition in the mainframe space.

Re:A lot of people

[hardwarefreak]

They do have mainframe competition to an extent. But the competition are not true competitors, they're IBM partners, i.e. OEM customers. Or, at least there used to be. I'm thinking Fujitsu/Ahmdal. They compete somewhat with IBM for the sale, but the electronics complex in those machines is True Blue IIRC, supplied in an OEM fashion by IBM, under an Iron clad contract of course. IBM makes a little less on the hardware and software, but this relationship has kept world-wide antitrust regulators at bay for some decades. IIRC Siemens sells (or sold) a rebadged Fujitsu mainframe, twice removed from IBM, but still containing all IBM electronics inside.

Thus, IBM does have some mainframe competition, FSVO "competition". Or at least they used to as of a few years ago. I tend to look at this like the courts do. There is plenty of technological choice in the marketplace today WRT to platforms. If people choose to stick with IBM mainframe lock in, that's their choice. That doesn't make IBM a monopolist, because there are hundreds of other platform choices available. Allowing oneself to become locked in in the first place is not a result of "monopoly" but bad decision making. If a company truly want to get out from under IBM's proverbial mainframe lock in thumb, all they have to do is make the choice to spend the money and port/convert/migrate. The fact that it's expensive to migrate is also not a result of a "monopoly".

Re:A lot of people

[Jay Maynard]

That ended several years ago. Fujitsu/Amdahl exited the mainframe market not long after z/Architecture became available. They never resold IBM hardware; they built their own, and decided that the market couldn't justify the expense they'd incur trying to keep up plus the patent royalties IBM was demanding.

There are zero platform choices available to someone who can't spend hundreds of millions to get rid of their mainframes. They are locked in, due entirely to IBM's actions. If a company makes decisions based on there being competition in the market, and then one company eliminates the competition, that's monopolistic tactics.

Re:A lot of people

[yo_tuco]

Or a double-fork.

Re:A lot of people

[hardwarefreak]

That ended several years ago. Fujitsu/Amdahl exited the mainframe market not long after z/Architecture became available. They never resold IBM hardware; they built their own, and decided that the market couldn't justify the expense they'd incur trying to keep up plus the patent royalties IBM was demanding.

My mistake. I didn't know it was a royalty situation. So Fujitsu was rolling their own compatible hardware under a patent license.

There are zero platform choices available to someone who can't spend hundreds of millions to get rid of their mainframes. They are locked in, due entirely to IBM's actions. If a company makes decisions based on there being competition in the market, and then one company eliminates the competition, that's monopolistic tactics.

One "platform" doesn't make a "market". The IBM mainframe platform comprises less than 1% of installed server platforms by type. By unit volume it's a tiny fraction of 1%. One cannot be deemed a monopoly when one owns less than 1% of a "market". Platform != Market. Monopoly only applies to markets, not individual platforms. Again, the mere fact that it's extremely expensive to migrate doesn't by itself denote a monopoly. What would create a monopoly is the total lack of the choice to migrate.

I don't care for IBM's mainframe business practices, but they're nowhere close to the definition of "monopolistic" under the Sherman Antitrust Act.

Re:A lot of people

[Jay Maynard]

The market isn't servers, though. It's legacy computing systems. When a user can't economically migrate, then they're stuck in the mainframe world - and that makes it a market unto itself. If you can't migrate because to do so would destroy your business, then it's beyond "extremely expensive".

Re:A lot of people

[yuhong]

Yea, as I said, the fight against mainframe emulators and other clone mainframes has a long history. It was once the topic of anti-trust lawsuits against IBM. Amdahl has to fight with IBM in order to allow their OSes to run on mainframes. And if you think x86 was bad enough, look at how many undocumented instructions are in IBM mainframes and used by IBM mainframe operating systems. Amdahl had to sign a often expensive TIDA with IBM in order to obtain documentation, and I think it took a fight before even that was possible.

Re:A lot of people

[Hurricane78]

I AM a mythical greek hero, you insensitive clod!

Also, THIS IS SPARTAAAAA!!! *kicks squiggleslash into the pit*

hmm

[nomadic]

." I have to agree: from where I sit, IBM likes Open Source only as long as they don't have to compete with it."

Not like you'd have any bias here or anything...

Re:hmm

[AaxelB]

." I have to agree: from where I sit, IBM likes Open Source only as long as they don't have to compete with it."

Not like you'd have any bias here or anything...

Who claimed not to be biased? That is clearly a statement of opinion, and they even acknowledged their bias earlier in the summary.

Something worth keeping in mind: Everything anyone ever says is at least a little biased. Unless someone is claiming not to be biased, there's no point calling them out on it.

Re:hmm

[nomadic]

Of course there is, it's not a binary proposition, either you're biased or not, it's a question of degrees. This guy is one of the parties in the dispute. The bias is pretty much insurmountable at that level.

Re:hmm

[Anonymous Coward]

." I have to agree: from where I sit, IBM likes Open Source only as long as they don't have to compete with it."

Not like you'd have any bias here or anything...

Motive fallacy. Just because he has a reason to make that argument doesn't mean that he's wrong.

Re:hmm

[Anonymous Coward]

Well, he IS the one caught in the crossfire, being involved with the Heracles emulator but not a member of TH, so far as I know.

Look, IBM is losing it anyway

[Maxo-Texas]

They have shipped so many jobs overseas that they have stopped saying how many jobs they are shipping overseas. Like Microsoft (and others), they are probably very close to dropping below 50% american employees.

Like all large corporations (including Google), they will do evil to make money. They just don't care any more. They are usually strong enough to put the government off indefinitely or are willing to pay a small fine to make a large profit.

So they are open source friendly if it makes them money, and not if it loses them money.

They are not your friend. As the VB developers found out a few years ago, they'll dump you with no upgrade path if it makes financial sense to do so.

IBM does some good stuff (Eclipse) but they are not your friend.

Re:Look, IBM is losing it anyway

[CannonballHead]

So they are open source friendly if it makes them money, and not if it loses them money.

Most business work that way, it's not something strange to "open source."

They are not your friend. As the VB developers found out a few years ago, they'll dump you with no upgrade path if it makes financial sense to do so.

Unfortunately, most businesses work that way.

Like Microsoft (and others), they are probably very close to dropping below 50% american employees.

Most businesses work that way. They try to get cheap labor. Until it bites them (if it does). Oh, but I guess in this post-modern post-racial international world, we should DEMAND that this business hire only American employees. I mean, that's what's fair. We should require this company to hire us! ...

Frankly, I wish it made more financial sense for them to hire American employees. Apparently, something is wrong with the US that makes them want to hire non-US workers. Maybe it has to do with the same reason that many companies are moving out of California.

Naaaah. Couldn't be. They are just being evil for the sake of being evil...

Disclaimer: I am against greed, but I have a consistent enough worldview to know that most people ARE greedy, no matter what I want them to be... and any governing or economic system that expects people to be what they are not and won't be is destined to fail.

Re:Look, IBM is losing it anyway

[mdm42]

They are usually strong enough to put the government off indefinitely or are willing to pay a small fine to make a large profit.

... or strong to enough to simply fuck off to another country with (*cough*) friendlier laws. I worked for several months in the Swiss canton of Zug. Very interesting place! Just wandering around the streets and looking at the discreet brass nameplates beside the doors of so many office buildings... "World Headquarters of XYZ Corp.", "World Headquarter of ABC Inc.", etc., etc. Those offices all contain exactly 3 people - an office manager, a secretary and a cleaning lady: because Swiss federal law requires that they employ at least 3 Swiss citizens. And that's it!

Let's not get into the Extremely Senior Apartheid Sanctions Busters, the Oil Brokers, Arms Brokers and Zimbabwean Dictators's Benevolent Funds get located in Zug Canton. Can't think why...

Re:Look, IBM is losing it anyway

[gzipped_tar]

You're basically saying that a free employment market is evil because it hurts you USAers. How's that different from IBM saying an open source hardware emulator is evil because it hurts its competitive advantages?

If you fail to get employed, whining doesn't help. Capitalism doesn't work the way you think it works.

Re:Look, IBM is losing it anyway

[Anonymous Coward]

VB had an upgrade path: .NET. It just wasn't as easy as you might have liked.

I haven't had the need to even consider them for a while, but I believe it was Visual Studio 2005 or Visual Studio 2008 that got an improved VB to VB.NET conversion engine. It certainly wasn't perfect, but it was a start.

Not to mention, stopping VB was a necessary evil. VB was an easy system and not a good system. VB.NET, albeit with a learning curve, was an easy system and a pretty good system (I certainly prefer curly brace OO languages to VB.NET, but you do what the job requires).

I'm not one to give companies prop's when they're unwarranted, but this is not one of those areas.

Re:Look, IBM is losing it anyway

[Anonymous Coward]

They have shipped so many jobs overseas that they have stopped saying how many jobs they are shipping overseas.

Umm, let me see... "IBM"... what does that stand for, anyway... no, really, I'm serious here...

International Business Machines

Not "American". Not "New York". International. They're saying they are an international corporation, right there in the name.

Anyone who thinks IBM is an American company is just being a fool. They've been globalized for decades. An engineer I knew here in Texas 20 years ago got a job at IBM and they shipped him to Italy within the year, for several years. I don't even know where his family is anymore.

Re:Look, IBM is losing it anyway

[metamatic]

They are not your friend. As the VB developers found out a few years ago, they'll dump you with no upgrade path if it makes financial sense to do so.

What does IBM have to do with the lack of an upgrade path for Microsoft Visual Basic? Did you just copypasta your rant and forget to adjust it to match the company name?

Re:Look, IBM is losing it anyway

[Anonymous Coward]

IBM does some good stuff (Eclipse) but they are not your friend.

Really??? Have you *used* Eclipse???

Re:Look, IBM is losing it anyway

[ClosedSource]

There is no free employment market. If there were, any worker could work and live in any country they choose.

Re:Look, IBM is losing it anyway

[pongo000]

Like all large corporations (including Google), they will do evil to make money. They just don't care any more. They are usually strong enough to put the government off indefinitely or are willing to pay a small fine to make a large profit.

You mean like walking off with USD1.6 billion of US taxpayers' money? Yes, if any company has the credentials to be able to do that, IBM would be at the top of the list.

(For those who don't remember, IBM was billions of dollars into an FAA modernization contract in the mid 90's when it sold its federal services division, including the never-completed contract, to Loral, effectively walking away with billions of dollars of taxpayer money for services never rendered.)

Re:Look, IBM is losing it anyway

[Maxo-Texas]

There's nothing wrong with a company being indian or chinese.

Pretending to be an american company, going for national security jobs, getting "US Job" tax breaks, getting the benefits of the american legal system, etc. when you are not is something that people should point out. So I did and I will continue to do so in the future.

It's daft that microsoft ships 7000 jobs over seas and THEN washington gives them a 100,000,000 tax break and THEN raises taxes on small programming shops 100% based on washington by 10%.

Re:Look, IBM is losing it anyway

[Maxo-Texas]

Open source makes sense. Because it's free in india and it's free in the U.S.

The problem we have with IBM, Microsoft, The Movie Industry, the Music Industry, The Drug industry, is that they don't want to hire americans but they have had laws passed which allow them to charge americans premium rates and we can't legally reimport products from elsewhere.

I'm fine with competing with someone from india or china-- but why should I compete with them and pay $20 for movies, $5 for pills, and $798 for the development tools when those same products are $2, .10, and greatly discounted (I forget but I think Microsoft let indian developers get the kit for under $100).

If pills and movies sell for 1% of the price elsewhere, I should be able to reimport from there. Then I don't have to make as much money- so I CAN compete.

It's NOT CAPITALISM when YOU get to pay $.10 for blood pressure pills- I pay $5.00 and my government prevents anyone from taking advantage of the $4.90 difference in prices. In capitalism, the cost of goods drop when the cost of labor drops.

We don't have capitalism any more.

Re:Look, IBM is losing it anyway

[Maxo-Texas]

One of the general points of my post is that you are an idiot if you fall in love with ANY corporation.

Many people do. Plenty of people love microsoft or apple or IBM and then get upset when the corporation screws them over later.

Use a corporation and it's products but never trust it. Don't buy any of it's "feel good" propoganda- it will kill people (as in Nigeria) if it can make an extra buck.

Re:Look, IBM is losing it anyway

[rayzat]

>Probably very close to dropping below 50% American employees.
IBM probably started employing less then 50% US employee's in the 90's. IBM is probably employing less then 25% US employee's currently. Last I heard US headcount was 400k.

Re:Look, IBM is losing it anyway

[rayzat]

Formatting error: My bad
Last I heard US headcount was less then 100k while worldwide headcount was greater then 400k.

Re:Look, IBM is losing it anyway

[Maxo-Texas]

Total headcount 400k.

US headcount 121k.

http://www.cio.com/article/485823/IBM_s_U.S._Workforce_Declines_in_08_As_Headcount_Grows_Overseas ...Brazil, China, India and Russia, but that number increased by 15 percent to 113,000 last year. Most of those employees are in India. ...In 2007, IBM said it had 74,000 workers in India.

Re:Look, IBM is losing it anyway

[rayzat]

I posted an update before you posted I used less than and grater then signs and inadvertently blocked out a chunk of my post. My numbers are 2010 estimates. less then 100k in the US and more then 415k worldwide. I heard that IBM actually employs more people in India now then in the US. I'm trying to find the article that had the numbers, all the numbers are estimates of course because IBM is no longer publishing any headcount information other then the worldwide number.

Re:Look, IBM is losing it anyway

[KlaymenDK]

What does IBM have to do with the lack of an upgrade path for Microsoft Visual Basic?

Well I don't know, but I do know that LotusScript is damned close to being 100% Visual Basic compatible.

Re:Look, IBM is losing it anyway

[Anonymous Coward]

Worldwide IBM employees: ~400,000 http://www.ibm.com/ibm/us/en/
US IBM employees: ~109,000 http://www.computerworld.com/s/article/9169678/IBM_stops_disclosing_U.S._headcount_data

They ARE well below 50%. For the remainder of your post, read IBM's annual report. They are in it for their shareholders. If that constitutes evil, then so be it.

Re:Look, IBM is losing it anyway

[Maxo-Texas]

I really wish slashdot had a better editor and it let you edit your posts.

So your figures are even more grim.

The problem is this means a race to the bottom by labor and an increasingly small class of ultra wealthy.

In much of the world there will be no democratic fix once the lock is in. In many ways, we are already losing the democratic fix in the U.S.

Re:Look, IBM is losing it anyway

[Maxo-Texas]

IBM price in September, 2000: $122.

IBM price today, 2010: $129.

IBM's top executive receives $21.2M pay package for '09. (That's just ONE of them. There are probably dozens who make over $10m if they are similar to other companies these days)

You really think they are in it for the shareholders any more?

How much more would the stock be worth if $100 million a year wasn't going into executives who are clearly not providing value ( 4% return in 10 years? After 10 years of average 2% or more inflation? )

The executive class is out for themselves these days. not for their countries. not for their shareholders.

Re:Look, IBM is losing it anyway

[Maxo-Texas]

Yea.. quite a bit back in 2005-2007 period. I don't develop any more tho. Hands went bad.

Sounds like "Bait & Switch"

[bogaboga]

Who can disagree? And by the way, I understand IBM's position. Sometimes, you just have to take a stand.

Linux is almost everywhere now and it will surely continue to improve. Stemming its tide now just seems logical.

Guess what! Microsoft must be screaming of happiness as I write this.

Obviousness

[headkase]

A corollary to this is that all the "obvious" patents that are being granted are already spam. Software patents are broken so I'm all for breaking them faster. A companies attitude towards software patents is determined by how innovative it is, young Apple: against, current Apple: for. I guess once you become big enough you can afford the shotgun technique of software patent application then you are for them.

Re:Obviousness

[Anonymous Coward]

A corollary to this is that all the "obvious" patents that are being granted are already spam. Software patents are broken so I'm all for breaking them faster. A companies attitude towards software patents is determined by how innovative it is, young Apple: against, current Apple: for. I guess once you become big enough you can afford the shotgun technique of software patent application then you are for them.

The thing I don't understand is that they seem to be a money-losing proposition for most of the companies that support them. Look at Microsoft: Currently a huge supporter of software patents, but didn't they just have to pay something like a quarter of a billion dollars to a patent troll? Not to mention the hundreds of thousands of lawyer-hours these companies have to pay to maintain their defensive patent portfolios that they wouldn't if there were no software patents. Can being able to spread FUD about open source really be that valuable to them?

Re:Obviousness

[wirelessbuzzers]

A quarter billion seems pretty reasonable for keeping other companies off their turf.

Master the Mainframe

[Caffeine Molecule]

What's _really_ interesting is that IBM instructs students competing the Master the Mainframe contest to download and use Hercules. At least they did in '06. http://www.ibm.com/developerworks/university/students/contests/mainframe/index.html

Re:Master the Mainframe

[DarKnyht]

Couldn't be that a company as large as IBM might have multiple departments/divisions that don't really know what the other is doing. Nope just an evil corporation being hypercritical.

Re:Master the Mainframe

[bill_mcgonigle]

Couldn't be that a company as large as IBM might have multiple departments/divisions that don't really know what the other is doing.

It's likely yet it absolves them of nothing - you live by the sword, you die by the sword.

Corporations want to be people, remember? So, if they're being an ass, multiple-personality-disorder isn't a defense.

Re:Master the Mainframe

[oji-sama]

That doesn't make it less interesting. And if not evil, then perhaps stupid..?

Re:Master the Mainframe

[Anonymous Coward]

just looked at the '09 version and did not see it mentioned.

Re:Master the Mainframe

[r_jensen11]

Couldn't be that a company as large as IBM might have multiple departments/divisions that don't really know what the other is doing. Nope just an evil corporation being hypercritical.

It shouldn't matter at this point- the employees who posted the instructions are agents of IBM and should have cleared the recommendations with one of their legal departments.

That being said, the key word is "should"

Re:Master the Mainframe

[dcollins]

It's bad enough that corporations are legally treated as people. Heaven help us if each multiple-personality-fragment gets to have a separate and distinct legal status.

Re:Master the Mainframe

[Anonymous Coward]

What's _really_ interesting is that IBM instructs students competing the Master the Mainframe contest to download and use Hercules. At least they did in '06.

Incorrect.... as one of the finalists in the contest in 2006, I can say with certainty Hercules was not used in the contest. Rather the site instructed students to download and use the "Vista" terminal emulator software (same as the 2009 contest instructions).

Re:Master the Mainframe

[Tim C]

Corporations want to be people, remember? So, if they're being an ass, multiple-personality-disorder isn't a defense.

Funny, because it would be a defence for a real person, or would at least be mitigating circumstances that would change the nature of the sentence if found guilty (insane people are generally committed to secure hospitals and treated, rather than prison).

Re:Master the Mainframe

[bill_mcgonigle]

Funny, because it would be a defence for a real person, or would at least be mitigating circumstances that would change the nature of the sentence if found guilty (insane people are generally committed to secure hospitals and treated, rather than prison).

Sure, if you're a magistrate. Everybody else would just stop doing business with the person and possibly ostracise him.

Re:Master the Mainframe

[countertrolling]

...multiple-personality-disorder isn't a defense.

Maybe yes, maybe no...

Re:Master the Mainframe

[Anonymous Coward]

Don't be retarded, corporations don't want to be people, they might enjoy some of the same legal rights of being a person, but that is part of law and they get them whether they want them or not, and getting some of the same legal rights as a person is not the same as wanting to be one. And this is assuming it is appropriate to anthropomorphize a corporation which I'm not sure it is and is a separate argument.

IBM were always against us

[ciaran_o_riordan]

They're as bad as Microsoft:

• IBM
• Fake_representatives_of_free_software#IBM
• Open Invention Network - this highlights a limit of OIN: OIN doesn't protect you against attacks *from* OIN members

swpat.org is a publicly editable wiki, help welcome.

Re:IBM were always against us

[Lunix Nutcase]

It was always amusing to see how much people bought into IBM's bullshit. IBM as a company never cared about the ideals of free software nor the GNU manifesto. They saw Linux and other open source software as something they could leverage in order to sell more of their proprietary hardware.

Re:IBM were always against us

[Anonymous Coward]

this highlights a limit of OIN: OIN doesn't protect you against attacks *from* OIN members

Not to be contrary, but why not? OIN licenses their patents to anyone who agrees not to assert patents against "the Linux system" (whatever that means). Does this mean that IBM hasn't infringed on -any- OIN patents, so that they don't need to agree to those terms?

Re:IBM were always against us

[Lunix Nutcase]

Not to be contrary, but why not?

Because it's scope is only to patents that apply to Linux. This doesn't stop any of the OIN members from suing the other members for non-Linux related patents such as are the vast majority of the patents in this case.

OIN licenses their patents to anyone who agrees not to assert patents against "the Linux system" (whatever that means).

And this case isn't about "the Linux system" and as such those terms don't apply.

Re:IBM were always against us

[yuhong]

Yea, it has a long history. IBM instituted it's OCO policy in 1983 the same year RMS started the free software movement. Before then, many IBM software came with source code.

Strange action to take

[Richard W.M. Jones]

Hercules is a nice bit of software, but it's very slow. (Supposedly something like 50x slower than the real thing). There's no way I can see that someone would be using Hercules to run their payroll software, and every reason to think that it's mainly used for interop testing. Which is the reason I occasionally use it, to test Red Hat's software on S/390{x]. Foot, meet gun.

Rich.

Re:Strange action to take

[jimicus]

50x slower than the real thing as sold by IBM today? Or 50x slower than the real thing as sold by IBM 30 years ago?

If the latter, then I don't see a problem. If the former, then I see a huge problem for IBM regarding existing customers who are quite happy with the performance of their 30 year old mainframe but can no longer justify paying the annual maintenance fees.

(That being said, the developers of Hercules themselves admit that IBMs license for OS/390 is legally tied to IBM hardware, so it's hard to see why a business would want to migrate their systems to Hercules-on-x86 only to incur the wrath of a thousand lawyers).

Re:Strange action to take

[Anonymous Coward]

Hercules is a nice bit of software, but it's very slow. (Supposedly something like 50x slower than the real thing).

That doesn't really make it useless for migrating software from 1960s-1980s mainframes onto small, cheap modern hardware.

Re:Strange action to take

[TheRaven64]

50x is really not that much. Processor speeds double roughly ever 18 months. Six doublings is 64 times, so you're talking about a mainframe a decade old for equivalent speed. Compare Hercules on a large multi-processor Xeon system to a decade-old IBM mainframe and see which costs more to operate. If you're running software that ran on VM/360 (which a surprising number of companies are) then Hercules on something like a fast Pentium will be faster than the mainframe the software originally shipped on.

One of the advantages of mainframes is that they just keep working, but this is also a disadvantage for the company trying to sell them to you. If you buy a mainframe and it lasts for a decade then, at the end of the decade, commodity hardware can emulate it at native speed.

Re:Strange action to take

[Anonymous Coward]

Remember that for a S390, ZSeries, or System Z, you had to pay IBM the montlhy license charge (MLC), no matter if it is the oldest mainframe on earth that the processor capacity can be replaced by a modern PC.

So, for companies that had historic data on a mainframe and haven't migrate the data, they need to pay the MLC to be able to access that data. If you put an emulator on a new machine to have this historic information you are putting at risk the IBM business for the MLC on this cases. That's why they see this emulator as a risk.

In this case you are not running your payroll from an emulator, but you are hurting IBM business becuase you had to pay the MLC just to have the mainframe turned on for historic data , time-to-time access.

Re:Strange action to take

[Richard W.M. Jones]

If it really is "the oldest mainframe on earth", well let's say for the sake of argument from the 1960s or 1970s or 1980s, then it's no longer covered by any patents.

Rich.

Re:Strange action to take

[evilviper]

Patents from the 1980s are NUMEROUS. MP3 is from the 1980s in fact. The rules were very different back then...

Re:Strange action to take

[evilviper]

Hercules is a nice bit of software, but it's very slow. (Supposedly something like 50x slower than the real thing). There's no way I can see that someone would be using Hercules to run their payroll software

1) I seriously doubt it's really two orders of magnitude slower... It would have to be the most horribly written emulator ever.

2) We're still using 30+ year-old mainframes for some purposes. 20X overhead would be manageable.

Probably an oversight

[voss]

Since only two of 171 patents were covered by the covet not to assert. IBM doesnt need those two patents to win its case.

In any event the two patents are unenforceable under the doctrine of promissory estoppel. When IBM promised not to assert
these patents others acted in reliance on that promise. I suspect IBM's lawyers knows the law sufficiently well to not try to
do that in actual legal filings.

Re:Probably an oversight

[Anonymous Coward]

Someone did the set difference for them. It's not clear if IBM lawyers are able to do this mathematical operation on their own.

Re:Probably an oversight

[DragonWriter]

Since only two of 171 patents were covered by the covet not to assert. IBM doesnt need those two patents to win its case.

Winning a case isn't a binary thing. The scope and scale of violations is often important.

In any event the two patents are unenforceable under the doctrine of promissory estoppel.

That's less clear than it seems. Promissory estoppel is an equitable doctrine which allows a court to mitigate remedies to which a party might otherwise be entitled to the extent necessary to avoid injustice where there has been reasonable and detrimenetal reliance by the other party on a promise made by the party which has the cause of action. The exact nature of the promise, and the actions undertaken supposedly based on it, are relevant to determining to whether the reliance was reasonable, and the extent to which remedies should be mitigate to avoid injustice.

Your offering a commercial product

[Shivetya]

just because your Open Source doesn't somehow mean your friendly and cuddly.

I would sue a competitor too. I am quite sure IBM would not be in such a hissy if you were not charging, hell they might never have noticed you. Your using twists in words to offer an product which may or not may violate the licensing terms a customer of IBM has over the use their hardware and software. I mean, reading your own pages it looks like your trying too hard to say your doing something while not doing something bad.

Well...

[Anonymous Coward]

Now they want to have their cake and eat it too.

Why would you want to have a cake you couldn't eat?

Re:Well...

[TheCycoONE]

You may be using irony, but enough people are confused by that expression: http://en.wikipedia.org/wiki/Have_one's_cake_and_eat_it_too

Re:Well...

[cbiltcliffe]

To throw in the face of some dumbass politician?

Re:Well...

[uglyduckling]

The phrase "to have" in this case could be read "to keep", so the popular phrase really means '[he] wants to eat his cake and keep it'.

IBM is not suing the project.

[velen]

IBM is suing TurboHercules who are out to make money out of the Hercules project.

From the TurboHercules website.

"The TurboHercules Niche
TurboHercules is looking to carve out a commercial niche that complements—not competes with—the IBM mainframe.

The niche we see for TurboHercules is to focus on ancillary workloads such as mainframe education, training, demonstrations, pre- and post-processing, data preparation, archiving, development and testing. However, IBM has restricted the use of its operating system software to IBM mainframes only.

But, there is an exception. The worldwide IBM Customer Agreement clearly states that “if the designated machine is inoperable, the customer may use another machine temporarily.” Disaster recovery / business continuity is an ideal fit for TurboHercules since the backup and related communications occur without the need to run any IBM software on the TurboHercules machine.

For an overview of our disaster recovery offerings, please visit our DR Solutions page."

Re:IBM is not suing the project.

[velen]

From Ars Technica

"In many ways, the project arguably benefits IBM by encouraging interest in the mainframe platform. That is largely why IBM has shown no hostility towards Hercules in the past. In fact, IBM's own researchers and System Z specialists have lavished Hercules with praise over the years after using it themselves in various contexts. The project was even featured at one time in an IBM Redbook. What brought about IBM's change in perspective was an unexpected effort by the TurboHercules company to commercialize the project in some unusual ways.

TurboHercules came up with a bizarre method to circumvent the licensing restrictions and monetize the emulator. IBM allows customers to transfer the operating system license to another machine in the event that their mainframe suffers an outage. Depending on how you choose to interpret that part of the license, it could make it legally permissible to use IBM's mainframe operating system with Hercules in some cases.

Exploiting that loophole in the license, TurboHercules promotes the Hercules emulator as a "disaster recovery" solution that allows mainframe users to continue running their mainframe software on regular PC hardware when their mainframe is inoperable or experiencing technical problems. This has apparently opened up a market for commercial Hercules support with a modest number of potential customers, such as government entities that are required to have redundant failover systems for emergencies, but can't afford to buy a whole additional mainframe."

Re:IBM is not suing the project.

[vlm]

It says a lot about the "modern IT world" that hot-backup and high reliability is considered bizarre and unusual enough to require scare quotes around "disaster recovery", and they have to explain the basic concept of not having a single point of failure to their readers.

A couple decades ago my first real IT job was at a mainframe shop that had two machines, either of which could quite easily handle the load, for obvious reasons. You don't just "shut off" roughly 5% of the US stock market transactions because a maintenance dude wants to replace an air filter or whatever.

I'm quite sure Hercules could handily have saved them untold millions on hardware and maint contracts. Of course IBM would have freaked...

Re:IBM is not suing the project.

[Jay Maynard]

A patent attack on TurboHercules SA is an attack on the open source project, since the company is using the Hercules package unaltered in its solution.

Re:IBM is not suing the project.

[bws111]

It is not a 'patent attack', it is a patent counter-attack. TurboHercules is suing IBM, not the other way around. IBM has not counter-sued. What they have done is signal that if TurboHercules continues with their suit they can expect a world of hurt. IBM can absolutely allow Hercules (the OSS project) to survive and at the same time reduce TurboHercules (the company) to a cinder. There is no contradiction there.

Re:IBM is not suing the project.

[Jay Maynard]

Regardless of the reason for the attack, it's still a patent attack on open source software, and that's the reason for the controversy.

Re:IBM is not suing the project.

[bws111]

I think it would be pretty hard to use Hercules as a hot-backup. It can't even drive the real IO (DASD).

Re:IBM is not suing the project.

[mswhippingboy]

I think it would be pretty hard to use Hercules as a hot-backup. It can't even drive the real IO (DASD).

Not true at all. While an Intel Server, even a high-powered one might not be able to drive the same throughput as a late-model mainframe (no, that's not an oxymoron), there are plenty of older mainframes out there (I have an acquaintance that as of just a couple of years ago was still running an IBM 4300 series mainframe) that might even see an increase in performance.
And if Hercules is to be used as a DR solution, then performance is less critical as many businesses only need DR for their core business systems, not the entire application portfolio.

Re:IBM is not suing the project.

[bws111]

Where exactly are they attacking the project? Did they send a letter to the developers? Did they send a letter to the users? Did they make a general public announcement? Did they in any way threaten any of the above? In IBM's original pledge, they did have a clause that said the pledge was not valid if the other party initiated legal proceedings, which is what happened here. Look at it hypothetically: suppose IBM owns patents that cover something someone implemented and released under the GPL. Microsoft used that code. Now Microsoft sues some OSS developer. Would IBM be viewed as 'evil' if they used their patent as a weapon against Microsoft to get them to back down? Would anybody even bother making the ridiculous claim that IBM is attacking the OSS project?

Re:IBM is not suing the project.

[Jay Maynard]

IBM's original pledge said that the pledge was not valid if the other party initiated legal proceedings against open source software. TurboHercules has not done so and will not do so. Therefore, your hypothetical doesn't apply.

Re:IBM is not suing the project.

[bws111]

I don't mean from a performance point of view, I mean it physically can't drive the IO. There is no support for FICON, ESCON, or parallel channels. All the DASD on Hercules are emulated disks on the physical PC disk. Hot-backups usually involve twin-tailed IO or ICB connections between the systems, neither of which are available.

Re:IBM is not suing the project.

[mswhippingboy]

When I did DR work (many moons ago), hot backups were done via WAN (electronic vaulting) to a remote hotsite (Comdisco at the time). Since this was expensive, only limited "critical" data was handled this way. Most of the rest of the system was backed up to tape and rotated offsite. I'm sure TurboHercules was targeting much smaller shops with limited funds that couldn't afford the high priced standby hardware or even the high priced hotsite fees for a "real" DR setup.

What am I missing?

[Slash.Poop]

Included in that list is two that it pledged not to assert in 2005

What about the other 171? Any comment on them?

Re:What am I missing?

[ClosedSource]

IBM is a big company. These things take time.

As an IBM shareholder, I am disappointed

[Anonymous Coward]

Financially, I can see rescinding the pledge for FUTURE patents, but going back on ones word will cost them more in goodwill than they will gain in hard dollars.

I do hope they reconsider and I hope that they reaffirm their earlier pledge for new patents as well. There is too much to be gained by sharing and too much to lose by being stingy.

IBM shareholders should write the company.

From IBM's Shareholder relations web site (http://www.ibm.com/investor/services/contact-information.wss):

Investors with requests [not relating to stock transfer] may write or call:

IBM Stockholder relations
IBM Corporation
New Orchard Road
Armonk, NY 10504

What he said.

[symbolset]

As PJ over on Groklaw says, the usual Microsoft spokesflacks leapt out in front of this story to promote Hercules' position when ordinarily they wouldn't even know about a subject this obscure. It's likely this is an attempt to turn the community against one of its biggest benefactors. Don't fall for it.

In the actual suit we can all be sure the oversight will be corrected and IBM will only use the 169 patents (plus a few more) that weren't in the pledge.

Re:What he said.

[Jay Maynard]

If Microsoft is bankrolling this, why am I flat broke?

IBM's actions show that they're only interested in Open Source when it makes money for them. Once they have to compete with it, then the gloves come off. Yes, they've been a big benefactor, but they can and will turn on the community if they think it's in their best interest.

Re:What he said.

[ClosedSource]

PJ is far more anti-MS than pro open source, so it's not surprising she wants you to ignore this.

Re:What he said.

[cheesybagel]

Microsoft has been trying to get a slice of the mainframe business for a long time. Anything that erodes it is in their interest. You do not need to look at other ulterior motives. Nearly invariably when IBM sues someone for providing some sort of mainframe functionality Microsoft has been in the side of the ones defending against IBM. Try reading about T3 Technologies, or Platform Technologies for example.

Re:What he said.

[Jay Maynard]

I don't have to read about T3 or PSI. I'm well familiar with them. Just because Microsoft sees self-interest in helping someone sue IBM doesn't mean that the cause is any less just.

Re:What he said.

[cheesybagel]

Ah you are the Hercules developer. Well FWIW I am on your side on this case (although that will not be helping much I'm afraid).

I think emulators should be legal, and trying to use hardware patents against them should not be allowed. Just because Microsoft shares some interest does not mean I am against that thing. I was merely pointing out that Microsoft can be on the side of Hercules without a larger anti-FLOSS conspiracy of any sort.

Does TurboHercules actually fund Hercules development, or not? This is a question I have not seen answered so far.

It is a shame you did not use the GPLv3 or the IBM CPL license though. AFAIK the QPL has no patent provisions.

Re:What he said.

[Draek]

So they're not breaking their pledge not to sue Open Source Software with their patent portfolio, they're suing OSS while technically still maintaining their pledge. Why does that fail to fill me with joy and relief?

Oh, right. They're still suing OSS over patents.

Re:What he said.

[cheesybagel]

I read a bit more. Seems like the co-founder of TurboHercules is the original Hercules author. So they actually contribute, or contributed at least. Since you seem to know the history of mainframes (likely better than I do) I will refrain from discussing the details of the anti-trust settlement with IBM decades ago, or how IBM has been stomping out anyone with any vague mainframe emulation or clone capability.

I am pretty sure you could get the FSF or the EFF on your side in this case. Unfortunately with the current environment there is a high possibility the EU will not help. In the US the possibility is probably even lower. Even if you do not lose the patent lawsuit, litigation alone could drive a company bankrupt (as happened to the Bleem! Playstation emulator for example). Or the suit could even be lost as happened to Psystar.

Your best chance is probably to appeal in the sense that governments are heavy mainframe users and are likely interested in alternatives. Taxmen and banks usually love these kinds of systems. It is always nice to have these people on your side. :-)

Re:What he said.

[Jay Maynard]

Hercules does not, as yet, receive any substantial financial support from anyone, be it TurboHercules SA, Microsoft, or even happy users.

FWIW, I'm happy Microsoft is helping in some way, even if I'm not seeing it personally (and could really, really use the help...)

Neither the GPL v3 nor the IBM CPL were available when the choice of an open source license was made back in the early years of the project. The QPL was chosen because, at the time, it met the goals of the project's management most closely.

Re:What he said.

[symbolset]

Look, you're being ground up by the wheels of Industry, it's true. But you weren't pushed in there, you inserted yourself deliberately and with great effort. When you find your work being praised by Maureen O'Gara it's time to take a step back and do a little self-evaluation.

I don't approve of software patents, nor the prevention of progress through hardware patents. I'm pretty vocal about this here. But this is not progress. You're not inventing something new. You're only implementing patented hardware in software - and probably poorly since the hardware the software is running on doesn't actually have the features that make the mainframe a valuable platform, the software just lies to the applications about having the features. Presumably this is so mainframe customers can migrate off of expensive mainframes to virtual mainframes running on the emulator, rather than migrating off the hideous proprietary or complex non-portable systems like they should, and so getting the least favorable path: all the lockin of the apps without the RAS of the mainframe or the inherent portability of industry standard architectures. And you intend to profit from their movement from IBM's proprietary platform to your emulation of it and so remaining locked into those hideous applications, or there'd be no company.

So no, you've actually found a strange corner case in all of IP protection that I actually don't care about. Congratulations! I didn't think there was one. Enjoy your time with the Nazgul. Their attention can be quite... memorable.

Re:What he said.

[Jay Maynard]

I refuse to hold myself responsible for what Maureen O'Gara thinks.

The purpose of the emulator and the open source project that's sprung up around it is not to allow people to migrate off the mainframe, or to allow people to pirate IBM software, or any other nefarious purpose that IBM or its shills (like the one who accused Hercules of existing to pirate software earlier in the comments) might wish to assign to it.The purpose of the open source project is to build an emulator that is as close to the behavior of the actual iron, and have it be correct, reliable, portable, and fast, in that order, so that its users can do whatever they wish with it. Our users have many different reasons for running it, many if not most of them legal and permissible, but in the end, it's up to the user to use the system in a legal way.

TurboHercules SAS's purpose is to make money from services and support related to Hercules. That's always been acceptable for a company to do int he open source world, even to the likes of RMS.

You may or may not care about Hercules, but do you care about software patents and their chilling effect on the world of open source software? If so, then you should care what happens to Hercules.

you know you're old when...

[cstacy]

You know you're old when your brain considers processing the headline "IBM Breaks Open Source Patent Pledge" as "IBM breaks open a source patent pledge...I wonder what a "source patent pledge" is? Something good I hope!"

Well

[kenp2002]

"To think some uppity pesant thinks he can do as he pleases without our permission. The arrogance." - Excerpt from a trial in England from roughly the 12th century about some pesant butchering his chickens to feed his family and the land owner getting pissed because of some crap about getting 1/3rd the flock...(at least that's what I have scribbled in my old college notebook.)

Freedom long died when the US stopped exporting stuff and tried exporting ideas. The fact is the only thing the US largely exports is Intellectual Property. Does the whole Copyright\Patent fiasco not point that out?

Open Source is the largest economical threat to the US economy and it will only get worse. Wait till the corporations starts shipping everything offshore to extort more draconian Intellectual Property laws... oh wait...

In the end it is a pyhric victory. The businesses are now being choked by their own intellectual property crusade (see patent troll) and now that the genie is out of the bottle it is a race to the bottom until, like the dark ages few have a monopoly on thought itself by restricting who can read what. It took Gutenberg's heresy to end the dark ages in many ways...

IBM is trapped and now, and walks to a self-defeat that cannot be avoided. The 3rd world, which is soundly grounded in practical needs (food, water, shelter) cares little for the nonsense of imaginary property and simply see information as something free to share to get out of poverty. Those minds grow while those trapped in intellectual tyranny narrow.

IBM, it's a lose-lose either way. Might as well try to be the biggest IP hoarder around.

That's what it really is now, a crisis (intellectual) and hoarding mentality.

Re:Well

[Anonymous Coward]

I was liking your post until this:

-=[ Who Is John Galt? ]=-

Oh, fuck.

You're missing the point

[Weaselmancer]

It's not that this particular case has 173 patent infringements, and 2 were ones IBM promised not to use so the project is pooched anyways. That's not it at all. Sure - the end result is the same for this Hercules emulator but that's not the point.

The point is IBM said they wouldn't use these patents against open source projects, and just did. Therefore the 500 or so patents that they claim are off limits to open source obviously aren't. Their promise is useless because now we know that as soon as it is expedient they will use these patents against open source.

In other words this Hercules emulator is merely the litmus test for IBM's open source patent promise, with lousy (but sadly typical) results.

Re:You're missing the point

[TemporalBeing]

Please note who brought the initial suit. Nothing more to say.

Re:You're missing the point

[Russ Nelson]

You're missing the point. When somebody says "I won't sue you for doing this", the law does not allow them to retract that. Worry about more likely things happening, like getting hit by lightning, or having civilization come to an end because of a meteorite strike, or global warming actually having any bad effects.

Re:You're missing the point

[ciw42]

The point is IBM said they wouldn't use these patents against open source projects, and just did.

Actually, they haven't done anything of the sort.

If you follow the link and read the letter send by IBM to the TurboHercules president, all they have done is inform him that they believe his company is infringing at least 173 of their patents. This is no less true for the two which they pledged not to use against open source projects than it is the other 171. They are still being infringed regardless of whether IBM intends to enforce them or not.

What IBM have not done is make any attempt to enforce these patents, they're just stating facts as they see them. You can be absolutely certain that the two which were part of the patent pledge won't form part of any future case, and therefore IBM haven't broken and I don't expect will break their patent pledge.

Re:You're missing the point

[DragonWriter]

The point is IBM said they wouldn't use these patents against open source projects, and just did.

Hercules uses an altered version of the QPL (changing the "Choice of Law" section), which therefore is not the version that was posted on the opensource.org website as of the specific date in 2005 mentioned in the pledge, and therefore not an "open source license" covered by the pledge.

Re:You're missing the point

[DragonWriter]

You're missing the point. When somebody says "I won't sue you for doing this", the law does not allow them to retract that.

Whether or not, and to what extent, the law allows that depends on the laws in the particular jurisdiction in which an action is brought, it certainly is not as black and white as you present it under the doctrine of promissory estoppel, which would be the main basis for something like the bar you suggest in most US jurisdictions.

Further, in any case, the whole issue becomes moot if you aren't doing what the promise said you wouldn't be sued for in the first place; not that IBM included a very specific definition of "open source license" in the pledge, including exactly those published on the opensource.org website as of a specific date. The license actually used by Hercules claims to be the Q Public License v1.0, (even including Trolltech's copyright notice) which is such a license, however, it's text differs from that text of the Q Public License v1.0 on opensource.org (the text of the Choice of Law section is changed from "This license is governed by the Laws of Norway. Disputes shall be settled by Oslo City Court" to "This license is governed by the Laws of England".)

Since IBM didn't pledge not to press patent claims against license merely very similar to those listed on opensource.org as of the date specified, I think it is pretty clear that, whether or not the law of any particular jurisdiction makes the promise not sue binding, TurboHercules hasn't done the thing that IBM promised not sue over.

Re:You're missing the point

[Anonymous Coward]

Exactly. When will people realize. Evil is directly correlated with size of corporation. it's like a fundamental law of physics we haven't yet quantified. DUH!

Re:You're missing the point

[BikeHelmet]

The point is IBM said they wouldn't use these patents against open source projects, and just did. Therefore the 500 or so patents that they claim are off limits to open source obviously aren't. Their promise is useless because now we know that as soon as it is expedient they will use these patents against open source.

In other words this Hercules emulator is merely the litmus test for IBM's open source patent promise, with lousy (but sadly typical) results.

That's iffy. Someone is trying to steal their cake from them. It's good for us guys with no cake, but it's still IBM's cake.

This seems like a lot of anti-IBM FUD. But when I see the patents listed in an actual legal filing, I'll change my stance.

Re:Probably an oversight or NOT FOSS

[LWATCDR]

Not only that but the law suit looks to not be the FOSS Hurcules project at all but the Commercial company TurboHercules.
Does TurboHercules==Hercules? Are TurboHurcules offerings FOSS or is this a closed fork?
If it is a closed fork then IBM is not attacking FOSS at all and is keeping it's promise.
If not then we may have an issue but right now I am not so sure.

Good Grief.

[Frosty Piss]

If IBM is using anti-competitive practices again, then maybe it's time for some external constraint.

It's "anti-competitive" to let your competitors use your patented work? Is that you, RMS? Only on Slashdot...

Re:Good Grief.

[lwriemen]

I believe this comment was included in the posting, "IBM likes Open Source only as long as they don't have to compete with it.", and I didn't reference the patent statement specifically. ..., but like you said, "Only on Slashdot..."

Re:Good Grief.

[jellomizer]

No if that was RMS GPL 4.0 will go out soon where there are modifications where it is worded that it is OK for IBM to do this.

Just like the "TiVoization" exception in the GPL 3.0 where it doesn't say IBM in particularly but words in a way the IBM and a few other companies can safely abide to.

Hercules is hardly a replacement for Big Iron

[itomato]

I don't think anything short of full access to the sum total of IBM mainframers' braindumps can catapult Hercules into successful competition.

It's all that proprietary IBM equipment that makes the technology worthwhile - memory access, disks, when emulated lose most of their benefit.

FWIW: http://openlpos.org/zDev/

Re:Hercules is hardly a replacement for Big Iron

[mswhippingboy]

I can't imagine it would be a good idea to run Linux/390 on Hercules running on Linux/x86 - other than for bragging rights at the next sexagenarian pocket protector party.
No, I think IBM's concern are those running Z/OS on Hercules

A curious question

[rabtech]

Are they asserting patents against the open source project itself, or against a company making money off selling support for the open source project? It seems like the latter - their beef seems to be with a company that is their direct competitor, not the actual open source project. It may even be that they are attacking some closed-source goodies the company provides its customers, at this point I don't really know.

Can anyone with more direct info about the case shed some light on it?

Re:Probably an oversight or NOT FOSS

[just_another_sean]

Actually TurboHecules is suing IBM in France under Anti-Trust laws hoping to force IBM to make its software available to all, regardless of where they buy the hardware. If it works TurboHerc's reasoning is that people will flock to their emulator so they can run the IBM software without forking over the cash IBM wants for their hardware.

Does TurboHercules==Hercules? Are TurboHurcules offerings FOSS or is this a closed fork?

From what I can tell, no, TurboHercules simply sells support and services for Hercules. There doesn't seem to be a lot of need for that now though because running IBM's OS on the emulator violates IBM's license.

More info - here.

I wish people could read...

[Kr3m3Puff]

If people actually read stuff before the commented, the world would be a lot better.

The letter from IBM is directed at TurboHercules, a commercial enterprise making money off of IBM's IPR. Though we don't see the letter that prompted this, it can be guessed from the letter that TurboHercules said something along the lines "we don't think what we do, because we didn't realise IBM had IPR in this area." Which does seem rather rich, since this commercial enterprise is engaged.

Second the letter doesn't say they are going to enforce these patents, but that they do have US patents in this area. Also they don't appear to be attacking the open source project, but a commercial entity that is making money off of IBM's products.

Re:I wish people could read...

[sabt-pestnu]

You might take another look at the linked article.

The IPR issue is only a stick. What IBM is losing out on is mainframe repair and sales.

According to the article, "IBM allows customers to transfer the operating system license to another machine in the event that their mainframe suffers an outage. ...TurboHercules promotes the Hercules emulator as a "disaster recovery" solution..."

Some government entities that are required to have a failover solution, but can't afford redundant hardware see this as useful. IBM sees it as poaching on their hardware market, that they've legitimately locked in.

I would comment about your take on the patents themselves and the threat value you've assigned, but one topic at a time is enough for me.

And IBM likes having that stick available; it is still lobbying for software patents in Europe.

Re:I wish people could read...

[eabrek]

The letter from IBM is directed at TurboHercules, a commercial enterprise making money off of IBM's IPR.

The IPR in this case is the patents. They can only threaten these people because of the patents. That is IBM using patents against an Open Source project (regardless of whether people are making money - in this case for supporting people who like the code). That's evil any way you slice it.

Re:I wish people could read...

[Anonymous Coward]

You can't have a commercial Open Source Product? Since when?

Darl McBride says...

[IGnatius T Foobar]

...it's actually SCO, and not IBM, that owns the rights to the zSeries instruction set.

I'm not sure it will hold

[boorack]

From what I read on Hercules pages, IBM knew about it for a very long time. They even published some info about Hercules in one of their redbooks and then mysteriously removed it. I wonder whether it is a good defence against their assertions, however, I am not a lawyer.

You reap what you sow!

[Anonymous Coward]

This probably has something to do with Maynard and Bowler being 100% responsible for almost ALL instances of z/OS piracy.
There is ABSOLUTELY NO legal reason why Hercules should support running the real OSes. There would be almost no z/OS piracy if not for Hercules.

Re:Probably an oversight or NOT FOSS

[Anonymous Coward]

I think that TurboHercules the company is using Hercules the FOSS as part of it's business.

Hercules was created by Roger Bowler and is maintained by Jay Maynard.

Roger Bowler is a Co-founder of TurboHercules

Re:Probably an oversight or NOT FOSS

[Jay Maynard]

There is no fork, closed or open source. TurboHercules SA sells support and services for Hercules the open source emulator. There is only one codebase, and only one set of developers. IBM's attack on TurboHercules SA cannot help but attack Hercules the open source project.

Not so fast with the pitchforks

[jvillain]

I don't have the EULA to read but it smells like TurboHercules is trying to encourage IBMs customers to violate if not the word, at least the spirit of the EULA they agreed to. If that is the case then I am not surprised that IBM broke out every weapon they had and went to war. That's how those boys roll. It makes more sense to make it clear that they aren't going to win right off the bat than it does to go through a SCO style plague of law suites. The two patents are definitely an issue but I am very sure you will see them back down from those shortly. If that happens then until we have more info I don't see a reason to go to war with IBM.

Uppity Peasants

[maroberts]

Your notebook should also have noted that taxation was often in kind (goods) and not always in coinage.

Re:Uppity Peasants

[Anonymous Coward]

Coinage, goods, whatever. He's still robbing the poor guy at swordpoint. (Or penpoint; maybe the swords come later, depending on how "civilized" the specific form of theft called "taxation" was at that place and time.)

Biting the hand that feeds you

[dyfet]

I imagine it is quite possible that Hercules is the primary reason there is both S/390 linux kernel arch support and packages tested and running for the platform, and GNU/Linux support on these mainframes is something that IBM has also made real money selling.

Re:Biting the hand that feeds you

[Jay Maynard]

I don't know if it's the primary reason it's there in the first place - after all, the original work was done at IBM's labs in Boeblingen, Germany - but many Linux developers use Hercules as their platform of choice. I've gotten comments from several who told me that they prefer firing up Hercules to logging onto a real z/Series system for kernel work.

Who pays? Rewrite the code!

[bobs666]

Its not going to be the case that IBM is going to have to do much to enforce bogus patents. Free source people to not have the cash to pay for the court battles. Only the threat is needed.

Software needs to be rewritten from time to time. So get a Free OS and GCC and start translating. If nothing else it will be a much needed code review.

That's absurd

[Sloppy]

Different people value things differently.

Widget A: Cost $30 dollars (labor, materials, overhead, etc.)

Sell A for $30 and you are honest.

Sell A for $40 and you are overcharging by $10.

The person who buys it for $40, is convinced that it's worth at least $40. Are you saying they're wrong? In fact, even though you have the skills to make the widget for $30, with my lesser skills (or lack of an assembly line or other efficiencies of scale, or many other possible factors) it might cost me $60.

If someone consents to buying the widget for $40, then there's no evidence the seller is evil.

Re:That's absurd

[kenp2002]

I'm not making implications of the seller, we are talking about the nature of Profit itself, specifically net profit.

It's all about the hardware.

[Inominate]

As has been mentioned, only two of the patents listed were part of the promise and will almost certainly be dropped from the claim. The patent pledge is essentially unrelated to this case.

TurboHercules doesn't sell an open source emulator. TurboHercules sells hardware setups designed to emulate IBM mainframes. This is not an issue of software, or of evil companies, or open source. TurboHercules is using IBM's patents to compete directly with them in the mainframe market. To expect IBM to not act is insane.

Re:Probably an oversight or NOT FOSS

[LWATCDR]

Well the link you gave called TurboHercules the "commercial version" of Hercules. So I do have to wonder.
Am not really surprised by IBM getting upset at TurboHercules. TH is using a loop hole in the IBM license to make money. TH is claiming that that there commercial offerings are just for Disaster Recovery.
Which is kind of funny if you bother to read the FOSS Hercules FAQ where it says that it would be unwise to use Hercules for disaster recovery!
From the website.

2.02 What operating systems can I run legally?

      3. Running under the terms of a disaster recovery provision of the OS license (but I really don't recommend depending on Hercules to be your disaster recovery solution!).

I hate to say it but the entire TurboHercules thing seems very murky to me.
You have a company saying one thing and the FAQ from the FOSS project saying something entirely differn't!
 

Please mod parent back up!

[HishamMuhammad]

How did people mod this down as troll? The parent expressed a valid opinion. It may be diametrically opposed to your core values, or even the core values your country is based on, but it's a valid, clearly-stated opinion. Don't use "Troll" as a synonym for "Disagree".

Come on people, we're no Thought Police here.

Re:Please mod parent back up!

[Americano]

No, the parent expressed a valid opinion as a statement of fact. There's a difference.

And as for not being the Thought Police... you haven't been around Slashdot for long, have you? :)

Pros and Cons

[maroberts]

The letters don't seem to indicate that IBM intended to assert the patents against TurboHercules; they did make it very clear that they had those patents. In essence the letters seemed to be marking IBMs territory, not directly threatening legal action.

I'm not sure that any of the patents would be valid against an emulation, for the simple reason that the patents protect the hardware of the system, and a software implementation will not go about things in the same way, thus sidestepping the issue of patents.

Also, in many legislations, software is not patentable (the US is probably dependent on the results of Bilski), you therefore cannot be breaching any patents if you implement a hardware patented device in software.

Bend me over and call me your bitch

[Anonymous Coward]

A number of years ago, people here were mostly slobbering over how wonderful IBM was when it took a stance supporting FOSS.

To all of the IBM apologists that slapped me down when I, as an ex-employee mentioned that they would skin their own mothers to satisfy a demand for wet-suits in China: I fucking told you so.

Re:Probably an oversight or NOT FOSS

[Anonymous Coward]

IBM's attack on TurboHercules SA cannot help but attack Hercules the open source project.

That isn't how patent infringement claims work in the US. The patent holder can accuse one infringer without going after another, it is their choice who they accuse. Even if the infringement is performed by software that the infringer didn't make. The statute says "make, use, or sell" = infringement. So attacking TurboHercules SA is not de facto an attack on Hercules. Although it does create some persuasive precedent.

Whoops, you're right

[wandazulu]

Ha ha, okay, I get it, and you're right, I missed it. The parent was talking about this.

A little forgiveness please, I only had one of these.

Address in France...

[jopsen]

Hmm... Just, looked at their about page... and TurboHercules SAS appears to have an address in France... So how is U.S. patents relevant to them?

Re:Address in France...

[Anonymous Coward]

Because IBM rarely file for patents in the US alone. Important ones are also filed under the PCT (patent cooperation treaty) to which I believe just about every country on the planet except Taiwan and Argentina are a signatory to.

Most Likely Just Fallout...

[tyen]

This action is likely continued fallout from the IBM-PSI lawsuit which ended in 2008 but has some reverberating ramifications. Page 36 of this z/Journal issue has a good overview of what happened. IBM now operates a PartnerWorld program where you can get a legitimate, IBM-sanctioned emulator for about $4K USD per year, expressly intended for just developers and OEMs who need a development platform but are not big enough to justify real System Z iron. This program comes with access to the ADCD that developers need to thoroughly test against different configurations. You can't sign up for this program if you only want to use it to knock points off of your annual hardware/software spend on mainframe iron, and IBM enforces this through their licensing and limitations on the emulators.

My guess is IBM has to do this to ensure another troll investor-funded PSI doesn't come out of the wood work looking for a buyout. Also, TurboHercules' legalistic business model of catering to disaster recovery situations was asking for trouble: the incremental revenue from DR where the vendor can sell hardware, software and support without incurring huge utilization of support and development staff, leading to giant margins compared to production environments, is precisely the kind of business that IBM wouldn't appreciate getting siphoned off. If TurboHercules had stuck to some zero-margin activity like free (or ridiculously cheap, about $1 a month) over-the-web education of mainframe skills, then provide value added training geared towards certification to make their real margins, and used real IBM iron to supply remote DR services while using the equipment when not supporting active DR to drive "pro" certification courses (with the understanding from customers of the courses that they could be kicked off if a DR incident demanded their space), then that might have worked, as it fills a niche (raising the next crop of mainframe users to system programmers) IBM currently spends money on today without any immediate returns.

Re:Most Likely Just Fallout...

[Jay Maynard]

Sorry, but I have to object to your use of the term "legitimate". There's nothing illegitimate about Hercules. It's an independent, open source development, and calling it illegitimate is an attack on the open source community just as much as IBM's letter is.

The z/PDT emulator was introduced a couple of years after IBM drove two commercial emulators out of the marketplace, and only because they found that people were getting away from developing for the mainframe rather than use IBM's remote offerings. Even though it's available internally (for some funny money), and even despite persistent reports that doing so is officially a firing offense, I still get regular reports from IBMers using Hercules internally to IBM in preference to it.

There's a crucial difference between Hercules and PSI: IBM can't kill the project by buying it out. The QPL, like all Open Source Definition-compliant licenses, prevents that; the emulator would continue to exist and be freely available. If IBM were to offer me enough money, I could be convinced to quit supporting or distributing it, but that would only be a very short, temporary impediment to its distribution.

Since IBM can't buy Hercules out, they have to kill it some other way if they want to retain their total monopoly in the mainframe computing market. The patent attack is their weapon of choice, and it reveals them as no better than other software patent troll.

2+2=5

[elnyka]

Thinking like yous is what's wrong with business and politics today -- nobody thinks long-term.

For me, a long term plan involves getting a better job, and if the people at IBM think the same, there's nobody left in that company you can blame for anything that happened in 2005.

So you are arguing that something is certain (or at least highly likely) when in reality it is just a subjective, unfounded conclusion illogically drawn by the shaky, unprovable premise that others working on a company you have not work for before think the same way you do?

Here, for you:

http://en.wikipedia.org/wiki/Psychological_projection

http://en.wikipedia.org/wiki/Is-ought_problem

Re:Probably an oversight or NOT FOSS

[dgatwood]

Actually TurboHecules is suing IBM in France under Anti-Trust laws hoping to force IBM to make its software available to all, regardless of where they buy the hardware. If it works TurboHerc's reasoning is that people will flock to their emulator so they can run the IBM software without forking over the cash IBM wants for their hardware.

That's a really important point. I'm rather surprised the patent pledge didn't include an exception for companies that sue IBM. Either way, when this company sued IBM, as far as I'm concerned, they became fair game. This isn't IBM suing an open source project. It's IBM counter-suing a company that sued them first.

Even if IBM can't use those two patents (and it's not clear if they can't, given that TurboHercules is not an open source project, but rather a company that appears to be leaching off of an open source project), it seems completely reasonable for them to use the other patents defensively in this way.

IBM better watch out

[Anonymous Coward]

This project is licensed under the "Q" public license, which means that the minute the project is put under attack, the developers can pull out all kinds of unbelievable weapons which until then have been disguised as ordinary objects.

TurboHercules hitting first?

[Todd Knarr]

One thing I notice is that IBM's patent threat isn't an opening move by IBM. TurboHercules filed an antitrust complaint against IBM first, and it appears they're trying to force IBM to let z/OS run on TH emulation (normally IBM only licenses z/OS to run on IBM hardware). IBM's patent threat is in response to this. Responding to a threat is rather different from initiating a threat.

I also notice the company TurboHercules keeps in OpenMainframe.org: Microsoft, the CCIA (known to be a Microsoft arm), Peerstone Research (what's an analyst firm doing here?), T3 Technologies (which was doing what TH is doing and has a grudge against IBM because IBM made them choose between selling the emulated solution and selling IBM mainframes). Long experience tells me that the side Microsoft's on is usually the wrong side.

Re:TurboHercules hitting first?

[Jay Maynard]

The CCIA is hardly a Microsoft arm. They fought against Microsoft in their EU antitrust case, and were responsible for the part of the decision that required Microsoft to make their interoperability documentation available to the Samba project.

To quote Larry Niven: "Ideas are not responsible for those who believe in them." Not even Microsoft is perfectly evil.

Re:TurboHercules hitting first?

[walterbyrd]

Scox/Caldera also sued Microsoft. Does that mean that scox is not a Microsoft arm?

Re:TurboHercules hitting first?

[Todd Knarr]

Microsoft paid CCIA official as part of the antitrust settlement.

Intellectually dishonest headline

[rdean400]

I know this won't be popular, but IBM didn't break their promise. It's actually quite dishonest to say so.

IBM's pledge contains the following terms: "[The pledge] is irrevocable except that IBM
reserves the right to terminate this patent pledge and commitment only with regard to any party
who files a lawsuit asserting patents or other intellectual property rights against Open Source
Software."

I actually think it's kind of stupid on TurboHercules' part to file an antitrust complaint against IBM and expect to still be covered by the patent pledge.

http://www.ibm.com/ibm/licensing/patents/pledgedpatents.pdf

mac clone sellers moving overseas too

[Anonymous Coward]

After Psystar got badly slapped in U.S. courts, sellers of OS X clones are also moving overseas in search of more-favorable (to them) software licensing laws http://computerworld.co.nz/news.nsf/news/72205DF8C160BD83CC2575590070386E.

Uh, Microsoft is not a FOSS company

[DrJimbo]

Take a look at the IBM: Mainframe emulator part of a conspiracy Newspick over on Groklaw. Florian Mueller is an obvious Microsoft shill. TurboHercules is funded by Microsoft and this whole thing reeks to high heaven of a Microsoft scheme to game the legal system in order to attack its competitors. They simply recycled the Psystar scam against Apple and used it to attack IBM. We still haven't quite seen the end of SCO's attacks on Linux (SCO got $100 million from Microsoft).

As PJ said:

[Microsoft] should put more energy into creating good products. Then they wouldn't have to resort to such tactics.

Patents on mainframe technology

[Sheik Yerbouti]

I though patents were meant to encourage innovation by encouraging the inventor to share what he or she had discovered. This looks like the patents are purely being used to stifle a potential competitor (inconceivable). Also how long exactly do patents guarantee a monopoly this is mainframe technology we are talking about here not exactly new right?

  Well let's see the original patent term was not to exceed 14 years. Now it's 20 wonder why it has been lengthened so. Perhaps it is because the pace of technology advancement has slowed and thus the corporations need protection for their inventions for longer terms? Nope seems the pace of advancement has increased not decreased. So it's probably more logical to conclude that this is yet another example of how powerful people with money protect their interests by paying legislators in this country for favorable laws.

Reverse engineering is legal and morally right it is not "ripping off IBM" we would not have a had the unlicensed Compaq 386 and the white box computers that followed were it not so. But the reality is if your going to do this sort of thing in this country in this day and age you better have your own patent portfolio to go nuclear with or be able to afford a long court battle that you may very well lose. And in this case this group has neither so all they can do is whine to us. And in case you hadn't noticed we have no juice as we are neither wealthy and powerful or paid for legislators. So in short adios amigos.

Patents and copyrights need to be returned to their original length and software and business method patents abolished altogether.

Re:Intellectually dishonest headline

[Jay Maynard]

TurboHercules did not assert any patents or intellectual property rights against open source software, or IBM, or anyone else. Thus, IBM's exception doesn't apply.

Re:Probably an oversight or NOT FOSS

[clang_jangle]

TH is claiming that that there commercial offerings are just for Disaster Recovery.

Should be, "TH is claiming that them there commercial offerings are just for Disaster Recovery. Lurn to write you some Inglesh!

Sir, you will not get any sympathy from us.

[Anonymous Coward]

According to this article you are using TurboHercules with the help of Microsoft against IBM.

Re:Sir, you will not get any sympathy from us.

[Jay Maynard]

As I said earlier: if Microsoft were funding this, I wouldn't be flat broke. Not even Microsoft is evil 100% of the time.

Link to The Register article

[DaveAtFraud]

Here's the link to The Register article that spawned Groklaw's News Picks coverage:

http://www.theregister.co.uk/2010/03/26/ibm_turbohercules_response/

Sad the way someone can wrap themselves in some sort of open source banner then yell, "They're asserting software patents against open source!" and the slashdot herd follows along like a bunch of lemmings headed for a cliff. PJ has some interesting commentary in addition to what you quoted.

Cheers,
Dave

Re:Link to The Register article

[Jay Maynard]

PJ is letting her anti-Microsoft blinders get in the way of her thinking. TurboHercules would be pushing this issue even if Microsoft weren't involved - and they're not, aside from sharing memberships in a couple of trade organizations. The Hercules project has been open source for over a decade now.

IBM's comments in the Register are quite one-sided, as you might expect. It speaks poorly of PJ that she swallowed them hook, line, and sinker without doing her own thinking.

Re:Link to The Register article

[DrJimbo]

Your sig:

Disinfect the GNU General Public Virus!

says it all. If you want us to believe your claims that the both PJ and the Register article are biased and blinded, you should cover up your own anti-FOSS biases better first.

Re:Link to The Register article

[Jay Maynard]

That I oppose the GPL does not mean I oppose FOSS. That would be downright silly of me, since I manage the open source project at the center of this discussion. I have opposed the GPL for better than two decades now, and continue to do so - but that's an opposition to the specific license, not the community at large.

Re:Link to The Register article

[DaveAtFraud]

Could be but with supporters like Maureen O'Gara and Florian Mueller, your cause is highly suspect. O'Gara has long been a paid shill for anything anti-Linux as evidenced by her "reporting" support of SCO in their whole "we own Linux" lawsuit. Ditto for Mueller and has hysterical attacks on the Munich Linux implementation.

If you want to be taken seriously, I'd suggest you request both of them stop saying anything about your case. Likewise, lose the sig. At least say which FOSS license you support instead of just saying that you are opposed to the GPL. Otherwise you have quite a bit of circumstantial evidence that The Register is right on target.

Cheers,
Dave

Re:Link to The Register article

[Jay Maynard]

I support any FOSS license that does not attempt to tell others what they may do with their own code, as the GPL does and as no other license does. The code I write for my own use is generally released under the MIT/X/new BSD license.

As for the attacks on the messengers, why should we let IBM divert attention away from their own actions? The signature on that letter is Mark Anzani, not Maureen O'Gara or Florian Mueller. Is the goal here to slam Microsoft just because IBM gave people a sliver of an opening to do so? Or is the goal to protect open source software from the threat of software patents?

Re:Link to The Register article

[Jay Maynard]

Is Eric Raymond a Microsoft shill? He's come out against IBM's threat, as well.

Re:Link to The Register article

[DaveAtFraud]

I support any FOSS license that does not attempt to tell others what they may do with their own code, as the GPL does and as no other license does. The code I write for my own use is generally released under the MIT/X/new BSD license.

The GPL doesn't require you to do any such thing for your own code. If, however, you modify someone else's GPLed code, you must respect the license they chose. You may not like this but don't complain that a lot of others do. It's their code and they have the same right as you to license their work as they see fit.

As for the attacks on the messengers, why should we let IBM divert attention away from their own actions? The signature on that letter is Mark Anzani, not Maureen O'Gara or Florian Mueller. Is the goal here to slam Microsoft just because IBM gave people a sliver of an opening to do so? Or is the goal to protect open source software from the threat of software patents?

As the old adage goes, you are known by the company you keep.

O'Gara and Mueller are not friends of open source regardless of how they pose their arguments in your favor. My goal is to do what's best for open source software. Their goal seems to be to destroy open source software. If they are for you, something stinks. It may not be your fault but something stinks.

Cheers,
Dave

Re:Link to The Register article

[Jay Maynard]

The GPL doesn't require you to do any such thing for your own code. If, however, you modify someone else's GPLed code, you must respect the license they chose. You may not like this but don't complain that a lot of others do. It's their code and they have the same right as you to license their work as they see fit.

They have that right, and I have mine, just as I have my right to express my opposition to the terms of their license. I find the GPL sufficiently intolerable that I refuse to work on GPLd code; if someone wants to control my work that badly, they don't deserve to have it.

As the old adage goes, you are known by the company you keep.

O'Gara and Mueller are not friends of open source regardless of how they pose their arguments in your favor. My goal is to do what's best for open source software. Their goal seems to be to destroy open source software. If they are for you, something stinks. It may not be your fault but something stinks.

Nobody's wrong 100% of the time. To argue against the person rather than the argument is a classic fallacy. Besides, as I note below, Eric Raymond makes the same arguments, and I am pleased and proud that he has done so, not only because I am proud to be able to call him friend, but also because I know - as does anyone who knows him at all - that he wouldn't make those arguments if he didn't passionately believe him. Whatever else you can say about him, you cannot accuse him of being an enemy of open source.

Re:Link to The Register article

[Byzantine]

Nah, Raymond's not a shill—he's just rabidly anti-authoritarian, and IBM (or the patent system, if you prefer) qualifies as "authority" in this instance.

Re:Link to The Register article

[Wakko Warner]

To argue against the person rather than the argument is a classic fallacy.

Coming from you, this is funny.

The purpose of patent pledges...

[Chris Snook]

...is to reassure people you have not yet attacked that you will not attack them, unless of course they attack you first. IBM has been trying to bury Hercules since long before they made their patent pledge. While this is certainly a violation of the letter of the patent pledge, it is not a violation of the spirit of the patent pledge, which is that open source developers will not get in trouble with IBM for using these specific techniques. IBM isn't mad at Hercules because of these two patents, they just happen to have been dug up in the patent review they did because they're mad at Hercules for daring to threaten their mainframe business, which is an infuriatingly inflexible division of the company that is defending its dying empire as viciously as Microsoft.

Most of IBM realizes that its business advantage in the mainframe space is with all the RAS features implemented in hardware and firmware, and that anything that makes it easier for developers to write code for the platform (like an emulator) improves the value of those products, but the mainframe business, which is quite appropriately extremely conservative, is terrified that all their customers who are using the s390 architecture to run 20-year-old legacy apps might suddenly move them all to x86 servers.

The reality is that anyone paying for the exorbitant service contracts for an IBM mainframe just to support legacy apps is either so poorly managed that they'll be losing budget or going out of business soon, or is smart enough that they're trying to modernize the apps, which gives them an opportunity to move to a platform where IBM doesn't have them by the balls. If IBM were to back off of Hercules, it would probably make people feel a lot more comfortable about continuing to use such an arcane and unique architecture, and drive more sales in the long term. Unfortunately, I don't think the culture of that group will really change much until their biggest competitor, the IBM POWER group, devours them and enforces a more flexible outlook on community relations.

Few People like...

[sbeckstead]

Few people or business for that matter like competing with themselves. The reason for patents in the first place was to allow the owner to exploit his inventions without competition. So saying they like Open Source until they have to compete with it is bullshit. I like Open Source until I have to compete with it just as much as IBM! If you love Open Source so much make it work without violating the patents, compete on an even footing. I know you guys that hate software patents are going to go insane on this one but please it's what we have now and it's going to change but until it does, play by the rules and innovate.

Sorry, but it's software, not hardware

[mswhippingboy]

You are incorrect in your differentiating hardware from software here.
IBM mainframe processors (going all the way back to S/370 at least) are micro-coded processors. (I actually still have a box containing a microfiche copy of the microcode for a 370/148). This means that while there is definitely some proprietary hardware executing, the instruction set is 100% implemented in software which runs on the special purpose hardware. In a very real way, the very same instruction set that Hercules emulates, is in reality implemented as an emulator on IBM's hardware.

In any case, I do find IBM's tack here a bit ridiculous. I mean c'mon, what micro-percentage of potential sales are possibly being lost the the Hercules emulator?
I've been a user of Hercules going way back (and A370 before that!). I don't use it for any real work - but I like to occasionally go back and refresh my old skill set (I was an MVS SysProg years ago). Today I spend 98% of my time doing S/D in Java and C# on Unix and Windows, but every once in a while I get called in to do something on a mainframe (and no, it doesn't pay any better than my Java/C# work).
Hercules is by far the most complete S/390 emulator out there and I'm grateful for folks like Jay and Roger (Fish, Volker and the rest of the regulars) who give freely of their efforts and time to allow old farts like me to experience the thrill of bringing up an MVS or VM/370 system on our very own system (something you young whippersnappers probably just can't understand) .

Having said that - now get off my lawn!

I love acronyms!

[Anonymous Coward]

...TurboHercules, a commercial enterprise making money off of IBM's IPR.

Oooh, ooh, let me guess!

Iridium Plated Rotisseries?
Intelligent Political Responses?
Integrated Police Raids?
Illicitly Propagated Roses?
Insane Panjandrum Rotator?
Illegitimate People's Revolution?
Intimate Propulsion Redactor?
Innocent People's Rectums?
Inherent Popular Revulsion?

Hmmm... obviously, it must be a physical thing, or there'd be no problem. IBM's been making money off other people's ideas (including ones from Anatasoff, Torvalds, Zuse, and of course me) since it was founded, so they can't possibly be objecting to that.

Anybody else want to play?

Doesn't IBM Patent Everything?

[Oxford_Comma_Lover]

I vaguely remember one of the Patents IBM hit SCO with being the use of hierarchical menu systems.

You don't mess with a company that holds the patent on friggin hierarchical menu systems.

Unless you're in it for (1) the fight, or (2) hundreds of millions of dollars.

If (1), you'd better HAVE hundreds of millions of dollars, or be really awesome at patent law.

What are these people thinking?

[Whuffo]

A corporation is a legal construct that has many of the same rights as a human being. It, however isn't subject to the same penalties for breaking the law (or promises). This isn't news to anyone here, is it? So why is it when IBM gives a "promise" you act surprised when IBM finds it expedient to ignore that promise?

A thoughtful person would realize that you can't depend on anything a corporation promises you. Even if you have a contract with the corporation you'll find that it's hard if not impossible to enforce. Either bow down for your corporate overlords or get out of their way - but don't whine when you get some deep corporate attention from behind.

don't jump to conclusions

[pydev]

IBM sent a list of patents that the emulator potentially infringes. That's not the same as "asserting" those patents. Asserting them would mean going to court of them. You can talk to them, remind them of the pledge, and ask them not to assert the patents that fall under the pledge. However, since the emulator may infringe dozens of other patents, that may not solve your problem.

Also, IBM isn't a monolithic entity. Parts of IBM may dislike the pledge and try to undermine it; they will only stop if high-up management calls them off. So, it's good if you make this a public relations issue for them, but let's not jump to conclusions. They haven't broken the pledge yet.

IBM and Microsoft are multinational corporations.

[Anonymous Coward]

They have clients and providers all around the world.

It is simply childish to expect that their employee base should remain mostly USian.

Use Common Sense

[Douglas Goodall]

There is a difference between having an idea for a new application or utility program and wanting not to accidentally re-invent a coding technique that happens to be patented, and writing an emulator that competes with a companies hardware and software system. The fact that the code may be open source doesn't mean the software isn't infringing on trademarks, copyrights, and patents. We aren't talking about a piece of software that is similar. We are talking about a piece of software, designed to replace a complete product. Probably written using IBM technical documents. The software attempts to copy the functionality of the mainframe exactly. IBM has every right to be annoyed at someone trying to copy their product. The fact it is open source is just an attempt to cloud the issue. If you stand back ten feet and squint, it probably looks like the same product. Courts have found fault with that before. This is not a general trend of IBM going after many open source programs, but rather a particular program designed to divert legitimate customers and revenue. It is one thing to write an emulator for a vintage machine no longer being actively sold, and something else to go after a contemporary product. IANABCL, but IMHO, IBM has a leg to stand on about this.

Re:IBM and Microsoft are multinational corporation

[Maxo-Texas]

And it's dumb to continue give them breaks as "American" companies.

Let's see-- for a start, you could pass a law that if a company sells a product cheaper elsewhere then it is legal to purchase it and resell it at a profit in the U.S. That would stop some of the worst abuses.

Selling movies in China for $2.49-- okay- but that means they'll be selling for $4 in the US instead of $19.99 very quickly.
Selling developer kits for $100 in india but $800 in the U.S. Same thing.

Followup story from Groklaw

[bth]

PJ posts "Why I Believe IBM is Free to Sue The Pants Off TurboHercules" at http://www.groklaw.net/article.php?story=20100408153953613