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Open Source Complaint Against IBM Gets Support
FlorianMueller writes "ZDNet blogger Dana Blankenhorn reports that '[t]he efforts by open source TurboHercules to break IBM's mainframe monopoly through the European Commission got some proprietary support this week when NEON Enterprise Software LLC of Austin, Texas, filed an EU complaint alongside a US antitrust lawsuit.' NEON's founder co-founded BMC, so the company is well-funded for this fight. In comments given to the IDG News Service, IBM claims that NEON's product, which saves mainframe customers money by optimizing the use of coprocessors, 'offers no innovation,' and accuses the 'copycat' of violating IBM's intellectual property. That's basically what IBM also said about the Hercules emulator. The European Commission is expected to take a decision on an investigation in a matter of months. Since IBM lobbies the EC over the Open Document Format, it's now accused of double standards."
Sorry poetmatt, but Groklaw didn't debunk the issue at all. As far as NEON is concerned, Groklaw hasn't reported on it yet as far as I can see. What it wrote in April about TurboHercules was somewhere between 'grossly misleading' and 'totally wrong', and the article contains several links to verify that, for an example, IBM brought patents into play (initially calling them "intellectual property") before TurboHercules ever inquired about possible problems in that regard (see here). Also, Groklaw claimed that IBM's threat letter to TurboHercules wasn't that bad because it wasn't an actual lawsuit or cease-and-desist letter, but IBM had promised in its open source patent pledge "not to assert" a list of 500 patents (see here). And there would be more examples.
I don't think a lot of people here on slashdot agree with you (poetmatt) and Groklaw's PJ that it's a good idea for any company to sue a free and open source software startup that was founded by the same person who created the Hercules open source project in 1999. In fact, a lot of loyal Groklaw readers were disappointed and some of the activists I know (as the founder of the NoSoftwarePatents campaign) were nothing short of shocked that PJ would rush to IBM's defense with an encouragement to sue the pants off an open source company. A few may have expected it from someone who's more loyal to IBM than Rush Limbaugh is to the Republican Party.
You say that it's not "IBM's fault" that Hercules users don't get the license they'd like to get, but that's the whole point of antitrust law: curbing abuse of rights (such as intellectual property rights) by companies in a dominant market position ("dominant" is actually an understatement given that IBM has a de facto monopoly on the mainframe by now).
Even though only an Anonymous Coward just wrote that none of what I do makes sense "as far as advancing open source", I want to point out a few examples: I was involved with MySQL very early on (starting in 2001) as an adviser and small shareholder; I founded the NoSoftwarePatents campaign; my FOSS Patents blog tries to help understand and deal with patent issues surrounding open source; I promote the idea of the Defensive Patent License and will most likely promote the license once it is finalized and available; and I will promote the European Commission's interoperability initiative that will affect not only dominant companies like IBM and Microsoft but also other "significant market players" and will create major new opportunities for open source. I'll blog about that one next week. I don't think these activities are accurately described as "FUD".
Even though it was posted by an Anonymous Coward I'll try to shed light on what's been said:
My understanding is that the EU restricted Microsoft from shipping Windows with IE, etc without presenting users with the other available options. They did not state that Microsoft's programs must be allowed to run on any platform.
Microsoft doesn't tie its software to hardware. What the European Commission and the EU's Court of First Instance determined was that Microsoft tied is operating system to certain additional components (initially the Media Player; later on, the browser case you mentioned also came up), meaning you could only buy Windows if you also bought the Media Player.
In fact, all of the cases with Apple and OS/X requiring Apple hardware would suggest that there's plenty of precedent that opposes your argument.
An antitrust regulator can only intervene against a company that has a dominant market position. IBM has a mainframe monopoly, so it's obviously dominant. Microsoft was considered dominant for desktop PC operating systems. Concerning Apple, I know experts who believe they're dominant as an online music distributor. But the Mac isn't a dominant platform in terms of market share. Simply put, if you're a little guy in the market, you don't get regulated, but monopolists, quasi-monopolists and other dominant players do get regulated. That's why company A getting away with something isn't necessarily a precedent for similar behavior by a dominant company B.
The European Commission now intends to also create interoperability requirements, by way of a new law, for other "significant market players", but that's just for your additional information and doesn't relate to IBM's mainframe monopoly, for which we have antitrust law in place already. For Apple, that new initiative could make a major difference.
The point of competition rules isn't that dominant players have to give anything away for free. What regulators and courts can do is require a dominant player to "untie" and to make an important component (such as an operating system) available separately on fair, reasonable and non-discriminatory (FRAND) terms. There can be a lot of discussion about what kinds of licensing terms (especially license fees) are FRAND, but in case of doubt that would be determined by a court of law.
if they continue with their lawsuit against IBM then IBM might consider using this list of patents against them. [...] I think software patents suck, but using a lawsuit to try to force someone to do something that they don't want to sucks just as much.
Let me inform you then that this is incorrect in three important ways:
This blog posting contains links to all four letters exchanged between the two entities from July 2009 to March 2010. The antitrust complaint was filed in March. The first time IBM said that the Hercules emulator is an "infringing platform" and claimed that its "intellectual property" (in that case, as a synonym for "patents") was violated was in November 2009 -- four to five months before the antitrust complaint.
You say "lawsuit" but TurboHercules never filed a lawsuit. A complaint with an antitrust regulator is something different. It means that the regulator is informed of what someone considers anticompetitive conduct. The regulator then takes a look and will only take action if it concludes that this must be pursued in the public interest. The case then doesn't go to court, at least not in Europe, but if the company that's being investigated (which in this case would be IBM if and when an investigation starts) wanted to appeal the ruling, it could go to court later. Again, TurboHercules didn't go to court.
The other respect in which this is wrong is that IBM never said that TurboHercules should withdraw its antitrust complaint or else would face IP infringement. If you look at the correspondence between the companies, it's clear that TurboHercules had only asked IBM for an offer of reasonable business terms that would allow the use of z/OS in emulation mode. The complaint was lodged in March 2010, and considering that the first polite letter asking IBM for an offer was written in July 2009 and flatly turned down, they decided at some point that they needed help. From an access-to-justice point of view it's very important that such a fledgling company can ask a regulator for help because otherwise the big bully on the block can do to the little guy whatever the bully wants...
It's not an anti-trust situation because the situation you describe is exactly the same as Apple's whole business model which has been upheld with legal precedent.
It's not a precedent, and I explained it in this other comment here on slashdot.
However, they cannot use any copyrighted or patented technology that IBM created in order to do so.
An emulator needs to interpret the CPU instruction set (that of the CPU that is emulated). In its letters to TurboHercules, IBM took the position that an emulator doing its job is an "infringing platform".
IBM is under no obligation to assist them in creating or maintaining their emulator.
TurboHercules' letters don't state that, nor have I stated it.
Any company is free to compete in the mainframe market by offering their own hardware and software solution.
As you can see, IBM doesn't want anyone to do so and instead uses its "intellectual property" rights in order to preserve its monopoly.
If they can't convince customers to switch to their platform from IBM's that is just capitalism at work.
Capitalism needs at least a certain level of regulation and intervention (after the subprime crisis and now the BP oil spill, most people have probably raised the standard for the level that's required. Capitalism can work with very little regulation or sometimes even none at all if competition is intact. When there's no competition (which is the self-healing force of capitalism), then antitrust comes into play. The US is the epitome of Western capitalism, but it's also the country that invented antitrust law in the 19th century when recognizing what can go wrong if a monopolist can do whatever he wants. The Sherman Act wasn't an anticapitalist initiative. It was meant to make sure capitalism continues to work.
The Linux Foundation's largest financier is IBM. Therefore, it's obvious that they'll dismiss complaints over IBM's anticompetitive behavior and its overall hypocrisy.
Concerning Groklaw, I don't want to make claims as to who funds it (although a lot of people have previously - not in this discussion here but elsewhere - voiced theories that might make sense), but there's no doubt that it's been slavishly loyal to IBM all along. Like I said, Groklaw's PJ is more loyal to IBM than Rush Limbaugh is to the Republican Party. Even if PJ doesn't disclose anything, I venture to guess Rush Limbaugh makes a lot of money, so the Republican Party can't afford him as a staffer.
... apparently so they could throw the list they ASKED for in IBM's face.
This claim that they ASKED for the list is misinformation because it omits an essential fact: IBM said that Hercules infringed its intellectual property (using that term as a synonym for "patents", which is what many lawyers do) out of the blue (or Blue, if you will). TurboHercules had not asked any question about potential "intellectual property" infringement when IBM did it. Then TurboHercules wanted to know what kind of "intellectual property" (the term is so broad it could theoretically mean a plant variety right...) was involved. All of those letters (four in total, two from either company) have been published and you can find links to them in this blog posting. The chronology is perfectly clear, so I hope this clarification helps.
Look at it this way: If I told you you infringe some of my intellectual property, wouldn't you also then want to know what I meant by the term?
Popularity does not determine monopoly status.
Monopoly, or dominant market positions, are a matter of market share.
If there was any merit to the tying of an O/S to hardware, than the government would of acted long before now. Regardless of popularity the government would have to act if a company practiced anti-competitive behavior.
You are confusing two things here: one is regulation (meaning the government intervenes based on the law as it exists) and the other is legislation (the government makes new laws to solve problems or achieve improvement in an area). The IBM mainframe matter is a regulatory issue. For Apple, new legislation would be needed and may indeed be promulgated in a matter of a few years.
Tim99, your first two paragraphs just say what I didn't mean to dispute: Hercules users can't run z/OS on Hercules for licensing reasons, and TurboHercules asked for a solution. Then IBM turned them down and claimed an infringement of intellectual property (meaning in this case: patents).
I might have been more favourably inclined to Florian Müller's view if I had not watched his efforts to help Monty Widenius wrest control of MySQL back from Sun/Oracle. I suspect that Florian's view of FOSS may be slanted by his commercial lobbying efforts.
The merger case was resolved and the merger was consummated in late January. But since you make this a matter of trust, I'd like to clarify something. You say that this was an effort to "wrest control of MySQL back from Oracle" and that is not correct. It's 100% incorrect for a simple legal reason: there was no way for Monty to force Oracle to give him back MySQL because it was only a question of whether Oracle should get to own it.
To explain to you the legal framework (because this may make the whole concern you voiced a complete non-issue), the European Commission could never have ordered Oracle to give MySQL to Monty. The EU merger control regulation gives the Commission only two choices: they can say Yes or they can so No when a merger (that is big enough to be subject to review) is put before them. In the end they said Yes, after Oracle made some promises. If they had said No, Oracle could not have bought Sun. Now, since it was clear that only the MySQL part of the deal posed a problem to the EU, one option for Oracle could also have been to propose to the Commission: "let us buy Sun but we promise beforehand that we'll sell the MySQL division to someone else". That's called a divestiture. Again, the Commission could not have ordered it against Oracle's will. Oracle always had two options: to insist on the deal as a whole (which is what they did, and successfully so) or walk away from the merger in case it gets blocked (which is what Oracle would almost certainly have done in that case).
Assuming that scenario of a divestiture, the Commission would have had no legal way to order Oracle that Monty or anyone close to Monty has to be the buyer. That would have been 100% legally impossible. They would have had to accept any buyer chosen by Oracle unless that buyer would have posed a new antitrust problem. For an example, if Oracle had said "we'll sell it to Microsoft", then they could have said "No", but they could never have said "it has to be Monty".
I hope this clarification has been helpful. If there's anything else you'd like to know about that past process that is relevant to the trust you can place in me in other contexts, please let me know and I'll answer. The only thing I won't do is attack Oracle or talk about whether I like or dislike what they've done since the merger because I accept the rule of law and in the end they were allowed to buy MySQL, so today they are MySQL's legitimate owner without a question.
What is clear is that you have an agenda against IBM.
My agenda is issue-driven, not company-specific. I want open source to be able to compete. I also want closed source to compete. So my agenda is about competition, about customer choice, about innovation, about fair treatment of customers because all of us are customers even those of us who are also producers.
I don't have any problem with IBM anymore the moment they practice what they preach in terms of interoperability. If they allow customers to run z/OS on non-IBM hardware and if they retract their patent threats against TurboHercules, then I'll applaud them. Then I won't have any more reason to say they use double standards.
They can end this anytime if they do what's right. If they continue to refuse, antitrust intervention may make them consider, or might force them to act reasonably.
In this case, the law has yet to step in and say that IBM is abusing a monopoly position, even though you continue to imply that they are abusing a monopoly position.
Of course it's now up to others than me to determine this. The European Commission has complaints on the table, and the US Department of Justice is aware of the problems. I'm all for letting them to do their job. But I'm entitled to my opinion at this stage. Did you also tell everyone who claimed Microsoft had a monopoly that he should not say so until the end of some proceeding? Freedom of speech, and of thought.
Oh god! you link to sys-con.com as a reference and worse yet to Maureen O'Gara is the author. Well that says it all
You mean the link on this page. It points to an article by Maureen O'Gara that seems accurate to me. If I had found anything in it that I disagree with, I wouldn't have linked to her (nor anyone else). Actually the whole resaon I linked to her article is because it was the first one to say that Sun's former EU antitrust law firm now works for NEON. I thought this was relevant information because Sun was a key antitrust complainant against Microsoft int he past and that law firm did a great job for Sun.
I've never even seen a mainframe
Few people do. There's about 10,000 to 12,000 of them in use worldwide if I'm not mistaken. But 80% of the world's data are processed by them. If you do a wire transfer, chances are your bank processes it on a mainframe. Other examples: insurance companies, social security, airlines...
What sort of programming interfaces exist?
For Hercules purposes there are two. One is the programming interface between the CPU (or the emulator) and software running on top of the CPU (or emulator). That programming interface is the instruction set of the System z CPU. The other one is the programming interface of z/OS, the proprietary mainframe operating system on which most of the legacy code runs. If antitrust intervention results in IBM granting a license (not free of charge, but on fair, reasonably and non-discriminatory terms) to z/OS without tying its use to the use of IBM hardware, then that interface problem is solved.
Are there a lot of of the shelf proprietary software running on the mainframes or are there mostly in-house software?
According to estimates, there's about 300 billion lines of mainframe program code in use. I assume that the largest part was developed for custom purposes by in-house developers or subcontractors. But there's also some proprietary software. IBM owns about 40% of the mainframe software market (DB2 etc.). BMC is a big player and there are others.
In both cases, is it really that hard to migrate to another mainframe vendor? Oracle, HP, Unisys or Groupe Bull?
The other vendors you listed are server vendors but not mainframe vendors.
Migrating code is extremely hard because the mainframe has its own programming paradigm, the legacy code base is huge, those are extremely mission-critical applications, and a lot of it is written in COBOL, not exactly a programming language many people know anymore today. The whole programming paradigm (batch processing etc.) is special. There are other reasons, I just gave a few and those weren't necessarily the most important ones but just the ones that came to mind quickly. If you see my post here on the mainframe lock-in example that the airline industry is, you can see that there really is a problem.
Generally, IBM prices things more competitively when customers have choices. For an example, they're more flexible about letting people use inexpensive coprocessors (which are fully functional, so it's just a price discrimination scheme that they make the distinction) to reduce the cost of running z/Linux since Linux-based applications are easier to port. But on the z/OS side customers are milked brutally because switching is so extremely hard to do.
In another post you said that 'certainly no-one expects IBM to give it's IP away for free', and here you say they must 'retract their patent threats'. Well, which is it? Do you expect IBM to give away it's billions of dollars in investments or not?
As a self-proclaimed good citizen of the open source universe, who in some presentations even cites the four freedoms from the Free Software Definition, and as a big proponent of unencumbered open standards, they should retract the threats. But that's a FOSS point of view and should not be confused for a position on what the outcome of an antitrust proceeding would/should/could be. z/OS is clearly an antitrust non-FOSS issue and for that one TurboHercules only inquired about "reasonable" terms, which in my opinion is in line with antitrust law.
There are people who think as you do, and support you. We are just not so vocal as the feeble minded /.ers here.