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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."
Why would anyone at IBM still remember what they said in 2005? That's ancient history.
A crappy old green 720×348 graphic card?
Okay okay, I'm an idiot for even thinking it.
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.
Is 1563649 a prime number?
Claiming infringement on a patent is not the same thing as asserting it. Yet another story blown vastly out of proportion by poor editing.
Open source has made IBM a lot of money. Now they want to have their cake and eat it too.
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.
Shh.
...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.'
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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.
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.
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.
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.
." 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...
So you think 20 years is a reasonable time frame for software patents? The ZX Spectrum was still manufactured 20 years ago.
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.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
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.
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.
Shh.
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.
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
...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).
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.
---- Teach Peace. It's Cheaper Than War.
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.
libguestfs - tools for accessing and modifying virtual machine disk images
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.
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.
* Winners compare their achievements to their goals, losers compare theirs to that of others.
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."
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.
"Science flies us to the moon. Religion flies us into buildings." - Victor Stenger
What about the other 171? Any comment on them?
I'll try anything once. Twice if it tastes good
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?
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.
Help stamp out iliturcy.
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!"
"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.
-=[ Who Is John Galt? ]=-
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.
"Science flies us to the moon. Religion flies us into buildings." - Victor Stenger
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.
Weaselmancer
rediculous.
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.
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..
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.
See my blog http://ilovecookes.blogspot.com/ for light hearted technical information.
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.
---- Teach Peace. It's Cheaper Than War.
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...
If you want news from today, you have to come back tomorrow.
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.
The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
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/
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?
Natural != (nontoxic || beneficial)
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.
Creationist Textbook Stickers Declared Unconstitutional by CowboyNeal
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.
D.O.U.O.S.V.A.V.V.M.
...it's actually SCO, and not IBM, that owns the rights to the zSeries instruction set.
Tired of FB/Google censorship? Visit UNCENSORED!
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.
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...
You don't know what you don't know.
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.
Disinfect the GNU General Public Virus!
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.
Your notebook should also have noted that taxation was often in kind (goods) and not always in coinage.
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
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.
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
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)
I don't need a million points of light, just two points of multi-mode fiber and a 10 Gig-E router.
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.
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.
Different people value things differently.
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.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
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.
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.
I don't need a million points of light, just two points of multi-mode fiber and a 10 Gig-E router.
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.
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!
See my blog http://ilovecookes.blogspot.com/ for light hearted technical information.
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.
The filesystem is the package manager
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.
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
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.
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.
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?
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.
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.
I bet that the emulator doesn't have a pipeline.
See that "Preview" button?
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.
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
To throw in the face of some dumbass politician?
"City hall" in German is "Rathaus" Kinda explains a few things......
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.
Check out my sci-fi/humor trilogy at PatriotsBooks.
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.
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.
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
As PJ said:
[Microsoft] should put more energy into creating good products. Then they wouldn't have to resort to such tactics.
We don't see the world as it is, we see it as we are.
-- Anais Nin
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.
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.
Disinfect the GNU General Public Virus!
Should be, "TH is claiming that them there commercial offerings are just for Disaster Recovery. Lurn to write you some Inglesh!
Caveat Utilitor
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?
GLaDOS for President 2016! "Well here we are again. It's always such a pleasure." -- GLaDOS, 2011
What for? My parents aren't patent lawyers, either one. They don't know a whole lot about IBM, either.
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.
Comment of the year
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.
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
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
As I said earlier: if Microsoft were funding this, I wouldn't be flat broke. Not even Microsoft is evil 100% of the time.
Disinfect the GNU General Public Virus!
It is more than PR. It is often a business strategy. But strategy and tactics are different things, done by different people.
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).
~/ssh slashdot.org ssh: connect to host slashdot.org port 22: too many beers
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...
"When information is power, privacy is freedom" - Jah-Wren Ryel
...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.
There's no failure quite as dissatisfying as a complete and total solution to the wrong problem.
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.
Why bother
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!
Sometimes the light at the end of the tunnel is the headlight of an oncoming train.
There is no difference between the two. TurboHercules is selling software and support for the open source Hercules package.
Disinfect the GNU General Public Virus!
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.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
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,
The higher the technology, the sharper that two-edged sword.
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?
Palm trees and 8
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'.
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.
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.
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.
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.
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.
"Science flies us to the moon. Religion flies us into buildings." - Victor Stenger
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.
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.
Disinfect the GNU General Public Virus!
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.
Disinfect the GNU General Public Virus!
I didn't say buy and kill. I said "buy" (FSVO "buy") and then fully support the solution.
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.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
PJ posts "Why I Believe IBM is Free to Sue The Pants Off TurboHercules" at http://www.groklaw.net/article.php?story=20100408153953613