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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.
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.
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.
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).
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.
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."
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.
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!
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...
New mod option wanted: -1 DrunkenRambling
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.
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.
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.