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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."
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?
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.
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...
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.
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.
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.
Custom electronics and digital signage for your business: www.evcircuits.com
...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.
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
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."
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.
"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? ]=-
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.
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.
Free Martian Whores!
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.
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.
Your comment is not so helpful unless you explain the difference. They sound like synonyms to me.
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.
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.
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.
I don't need a million points of light, just two points of multi-mode fiber and a 10 Gig-E router.
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.
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.
If something is so important that you feel the need to post it on the internet... It probably isn't that important.
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.
Which is why we have the legal notion of corporate personhood.
Rule of Slashdot #0: You and people like you are not representative of the larger population. - A.C.
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.
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.
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.
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.
Disinfect the GNU General Public Virus!
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.
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.