Your imagination is so wild you'd better get it under control for your own good. I don't describe anyone as "evil". I talk about what companies actually do. Of the four companies you mention, I criticized two already back in 2004 and 2005, such as in January 2005 when I was the only one to speak out vehemently against IBM's patent pledge on the very day it was announced. I criticized Microsoft's lobbying for software patents on many occasions. I never implied Oracle is "evil". In another comment here I pointed out that I believe in the rule of law and they are at this point MySQL's legitimate owner; it was equally compatible with the rule of law to voice legitimate concerns beforehand. Concerning IBM, its actions against an 11-year old free and open source software project speak for themselves.
Everyone in the EU institutions who knows me is aware of my firm and unchanged position on software patents. Concerning interoperability, I'm excited about Neelie Kroes' plan to impose interoperability-related obligations not only on dominant but also significant market players. I'd rather see software patents abolished but in terms of an actual legislative initiative on the table, this is the first one in a long time that I really believe can have a profound positive impact, not only in Europe but actually on a worldwide basis. That initiative could effectively impose similar obligations on other companies as the Commission did on Microsoft, but through legislation, and I support the conditions imposed on Microsoft although on the MediaPlayer side the abolition of software patents would have been more helpful for competing media player software than anything else.
Lets copy from Groklaw. I'll do this one for PJ, even if she might not want it. Lets skip pleasantries, shall we?
There are legal requirements to disclose who is funding you in the US. As Groklaw has confirmed, there is no funding from IBM.
Did I say she gets funded by IBM? Never. I pointed out she's welcomed every single thing IBM has ever done with respect to patents. She says she's against software patents but when those patents belong to IBM, she says it's fine to use them to sue the pants off an open source company. I didn't say anything about why this is so. I said clearly there can be any number of reasons for that, but whatever the reason is, it prevents her from unbiased reporting on many issues.
So, how about you tell us Florian - Who is funding you? Who pays your bills to lobby?
I did some lobbying in 2004-2006 against software patents and disclosed such backers as MySQL AB, Red Hat (only for a few months), 1&1 Internet AG and Materna GmbH. I don't believe that fighting for such a community cause makes me a traditional lobbyist. I got support from companies and without it I couldn't have pulled off a campaign like that. There was also a lot of support from volunteers, which enabled me to provide some of the content in 17 languages.
The only other lobbying I did since then was on behalf of Real Madrid, the world's leading soccer club. I had bought my first (of many) Real Madrid shirts in 1987 and 20 years later I helped them fend off a political scheme that would ultimately have made their team much less competitive on the field. Real Madrid is a non-profit: no shareholders who receive dividends, it's a club that "belongs" to its members and pursues sporting goals (but obviously needs money to do so).
Concerning my current project, the FOSS Patents blog, I started it three months ago and have since then done (I just checked) 38 postings. It's obvious that this kind of activity doesn't require funding. Concerning the positions I voice there, you can see that they're consistent with the ones I've always had on the same kinds of issues. Back in January 2005, when IBM announced its patent pledge, I criticized it vehemently, and I did so again in an op-ed right here on/. later that year. Five years later, IBM's bullying of TurboHercules proved my original concerns right, it even exceeded what I had thought. Just mentioned this because it should make it clear that my positions on patent matters are not for sale. They've been consistent over so many years that unbiased observers know they can trust me.
Not if the MS Office license contains restrictions against it. When you legally bought MS Office all you really bought was a license that allows you to use the software. If you don't agree to the terms of the license, you can't install or use any of the software included on the Office disc. If Microsoft wanted to they could specify in the license that it can only be installed on Windows and that would be the end of using it (legally) under WINE.
IBM has a mainframe monopoly, which is more than what's needed to prove under competition law that they are in a dominant market position, and since they have a dominant market position, regulators can require them to make such licenses available on a fair, reasonable and non-discriminatory basis and can in particular prohibit the tying of one product to another if a dominant market position is used unfairly to restrict competition.
They could very well agree with IBM merely because IBM in their view is right.
They could, but the key thing is that anyone using the Linux Foundation as proof makes a mistake because the dependence of the Linux Foundation on IBM makes them inadmissible as a credible voice or expert witness or whatever you'd want to treat them as in this context. Using a biased organization as a reference in a debate isn't exactly the way to present oneself as a reasonable discussant. That's why I pointed out it's an inadmissible reference.
You don't know that the Linux Foundation wouldn't oppose IBM if they felt IBM was wrong and lose IBM's backing willingly in that case. Organizations have done such things in the past.
To the best of my knowledge there isn't a single example in which the Linux Foundation ever criticized anything IBM did. If you can't provide even one example of the LinuxFoundation having opposed IBM, then you have no point.
Same with Groklaw's PJ: there's no example of her opposing IBM either, other than claiming on a less than credible basis to be against software patents (which is what she says unless the patents in question belong to IBM, in which case Groklaw thinks they should be used to the pants off an open source company.)
Did you ask Google's lawyer if they would support a direct competitor, who happens to be using an OSS project that infringes Googles patents?
It was a conference and I wasn't the only one who had questions, so I couldn't start a back-and-forth debate there. But I'll tell you something that may surprise you now: your question is very well-taken per se. However, I quoted what Google's chief lawyer said and he didn't limit that statement to non-competing projects. So I have to take his word for it until/unless they act differently one day.
IBM's patent pledge didn't have a carve-out for competing projects, either. It was meant to benefit all software under an OSI-approved license.
What you have now caused, is IBM a lot of stress, and causes Florian to attack the GPL.
I've never attacked the GPL. My blog is called FOSS Patents because I believe that the Free Software idea is important and must never be forgotten even though open source is the more commonly used term. I was involved with MySQL from the year the company was founded (2001, several years after the FOSS project itself started), and the GPL worked extremely well for MySQL.
A competitor wanting to sell a complete platform that directly competes is *not* fine, and has nothing to do with the fact that Hercules built an emulator.
This distinction isn't supported by the facts. What you call "a complete platform" is simply a standard server from HP running the emulator in question. There's no hardware component in there that's unique and that would infringe IBM patents.
By the time I'm writing this, the comment to which I'm replying has a Score of 0 and is categorized as a "Troll" posting. When the discussion here started, it had moved up quickly to a score of 5 and was regarded as Interesting if not Insightful.
But then there were calls on Groklaw, such as this one, to rush over here to/. and use mod points against me.
I'm sure there's a huge number of very reasonable people on Groklaw, but there's PJ and a circle of people who use such schemes to suppress the very truth that Groklaw falsely claims to dig for.
I perfectly understand that/. is meant to be a self-moderating platform. However, in order for such a system to work, mod points must be used according to reasonable standards. If a posting disagrees with Groklaw, which my comment certainly did, but does so in a polite, factual, focused and on-topic way, there's absolutely no justification for categorizing it as a "Troll" posting. It's also unacceptable to vote it down to a score of 0. It's obvious that a posting that is less popular with a certain audience won't move up as quickly as another, or that it might not move up too much at all, but a score of 0 must be justified and in this case, if you read the original comment I'm referring to (here's a link), that is not the case.
I have complained to/. management over this organized misuse of mod points and hijacking of a neutral, opinion-forming platform (which is what/. has been for a long time) by another community that certainly has a lot of overlap (hence they have mod points here).
If this kind of attack is accepted and if the same people can misuse mod points again and again, this would mean that/. is at the mercy of the hardcore, unreasonable part of the Groklaw crowd that is a minority not only on/. but even on Groklaw itself.
OK, so where did they ask IBM for FRAND licenses and get rejected? AFAIK, there has not been even a hint of a suggestion anywhere that they did that.
In this blog posting you can find links to all four letters. The first one says toward the bottom of page 1: "The pricing, conditions and limitations of that license would be at the sole discretion of IBM on reasonable and fair terms.
Instead, they make statements like they think it is 'unlikely' that IBM, a company which proudly touts it's investments and patents, would have any IP relating to it's flagship hardware and architecture.
I'm not aware of any such "unlikely" statement by TurboHercules. In their second letter they said they were surprised to be told that their platform infringes any IBM intellectual property. They had reasons to be surprised, given that the Hercules project started in 1999 and IBM even mentioned it in one of its RedBooks a few years later, and that throughout all those years IBM never indicated any IP issue.
Of course IBM talks a lot about its patents. I discussed IBM's overall approach to patents, and patent quality concerns, in this blog posting. But the fact that IBM has lots of patents doesn't necessarily mean that Hercules infringes any of them.
I think it's very strange that IBM on the one hand claims to be a major proponent and benefactor of open source and then uses patents to threaten an open source startup and, effectively, an 11-year old open source project. By contrast, look at the quote from Google's chief lawyer in this blog posting: "anyone using patents against open source is a bad idea -- you won't see us do it"
There are people who think as you do, and support you. We are just not so vocal as the feeble minded/.ers here.
Thanks! I know the difference between irritable hordes and silent, reasonable majorities. But I don't think one can generalize some of this for all slashdotters. We're talking about a Groklaw crowd that uses its moderator rights etc. here on slashdot to suppress the truth that Groklaw claims to be digging for. Groklaw sent its crowd over by way of a link in its news pick column. And some of the postings look a lot like written by people who if they're not IBM employees are at least very close to IBM and very much informed.
Hercules is an open source project that was developed as such and it doesn't incorporate any IBM code to the best of my knowledge. Even IBM doesn't claim that.
Or have they done a clean room implementation of a set of software than entirely emulates the software stack of IBM?
Hercules emulates the mainframe CPU, so it interprets the CPU instruction set on Intel-based server. I would certainly say that it does so in a "clean room implementation" form. No theft of anything if that's what you mean.
One of these seems ok, the other seems like it runs into the need to abide by the license set forth by the maker of the software in question.
Emulating a CPU instruction set is obviously not enough to run applications that usually are built on top of an operating system. In this case, z/OS is a proprietary mainframe operating system. Hercules doesn't contain its code. But since it emulates the mainframe CPU instruction set, any software written for that CPU (z/OS as well as applications) can be emulated.
Only if that interoperability is done using no code licensed by IBM. Is that the case here?
To emulate the instruction set, no IBM code is needed or used; even IBM didn't claim that. To run z/OS, customers need the right to do so, and IBM doesn't allow it to run on non-IBM hardware. So TurboHercules asked whether there could be a commercial agreement in order to give customers that option, not free of charge but in exchange for a reasonable license fee to be paid.
You make it hard to respond to your questions. You come up with some speculation and diversion in the first paragraph and then in the second paragraph you ask a question that's unrelated to everything I said.
Of course there's no FOSS license that overrules patent law. But there's a code of ethics in open source. Google's chief lawyer said clearly - when I asked him at a conference two weeks ago - that they think using patents against open source is a bad idea and they won't do it. I've quoted him in this blog posting.
IBM has a problem with a competing (copycat) platform that TH is proposing which would cut in on the low end (and eventually the high end) of IBM's mainframe sales...not with the Hercules project itself.
You make a distinction that's totally baseless. The TurboHercules offering is 100% the open source software plus they sell you services and if you want you can get a server resold by them. That's a typical FOSS approach to doing business. You can't call TurboHercules a "copycat" without simultaneously saying the same about the Hercules open source project.
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.
Well, the other vendors that they licensed z/OS to also did this little thing called giving something in return, which Hercules/TurboHercules would just rather ignore. Exactly WHAT do you have to offer IBM? Cross-licenses for patents? License fees?
I can't speak for TurboHercules and confirm what they want, but one thing is obvious to me: they filed an antitrust complaint and antitrust law isn't about freebies -- it's about fair, reasonable and non-discriminatory licensing. I'm sure their lawyers told them that if they ask the European Commission for help, a FRAND license is the best possible outcome and a free lunch won't be achievable under the law. They can always ask IBM to add more patents to the pledge (anyone can, including other FOSS projects who feel threatened or potentially threatened), but that's separate from the antitrust issues involved.
I pointed out a difference. I didn't say they had anything in common. In fact, I right now can't think of anything they have in common. I meant to point out about Rush that there can be no doubt that the only ones on whom he's dependent are the people who tune in to his show, but there's no way that he's under the control of anyone he reports on. I pointed out the fact that Rush demonstrates independence because he doesn't always agree with the Republican Party.
Why is this example important? Because political parties, like large corporations, take positions on a large number of issues and have a diversity of interests. So it's normal that at some point someone will disagree, such as Rush who didn't want McCain to be nominated, and he disagreed with the GOP on many other things.
So if someone over the course of so many years always supports whatever a particular large company (IBM) does, it's normal that people wonder how this is possible. There are different possible explanations, not just one that many consider obvious. But no matter what the reason is, it means that Groklaw is biased propaganda and makes gross misrepresentations all the time, and doesn't "dig for truth" as it claims.
By contrast, I have been politically active since 2004 (the year I founded the NoSoftwarePatents campaign) and I've criticized about every major company in the industry over the years. PJ says she's against software patents, which is doubtful because she encouraged IBM to sue the pants off TurboHercules. Even if it was true, it would just mean a disagreement on the desirability of software patents but she has so far applauded every single thing - every little thing, every big thing - IBM has done that's relevant to Groklaw's topics. Every IBM-sponsored initiative gets glorified by Groklaw, even some that are schemes to mislead the community, to lull it into a false sense of security concerning software patents and to discourage it from taking real action against them.
"No one forgets that, and no one wants IBM to forget it. And most importantly, no one demands anything for free" Oh really? Is there an alternate explanation for this statement in the second letter to IBM?
"In the unlikely event that IBM believes that the Hercules open source project infringes any IBM intellectual property, we kindly ask you too add any such property to the portfolio of patents that IBM has already pledged for the free use of the open source community".
That statement seems to say to me quite clearly that they expect IBM to give up it's IP for FREE.
That's a misinterpretation. Since IBM wants to position itself in the eyes of the FOSS community as a generous donor of patent licenses, anyone can of course make a suggestion to add more patents to the pledge. If you're pro-FOSS, wouldn't you also like them to go from 500 pledged patents to 1,000, from 1,000 to 10,000, and ideally pledge them all?
But that doesn't mean to demand it. By demanding I mean what someone claims he's legally entitled to. In antitrust law - and we're talking about an antitrust complaint here, several ones in fact - you can't demand to be given anything for free. What you can ask for is fair, reasonable and non-discriminatory licensing terms ("FRAND"). If there's a dispute, FRAND has to be determined by a competent court of law.
There will be no grand grassroots campaign to demonize IBM for this
I never meant to start one. I look at this and various other open source patent issues and I think this is now an important situation in which antitrust intervention can, once again, be positive for open source. But what I'd like to happen more than anything else is for IBM to offer fair, reasonable and non-discriminatory z/OS licensing terms and to retract is patent threats. I have no intention at all to "demonize" IBM. They can only demonize themselves, basically. Or they could do the right thing and support the concept of customer choice.
My blog is issue-driven ("FOSS Patents" says it all), not company-specific.
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.
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.
The main problem is that you and TurboHercules are being entirely unreasonable.
You can compare what the TurboHercules company says to what I say, but I want to make it clear that it's not necessarily the same. I view a lot of issues here the way they do, but not all of them, and vice versa I guess.
You do not only want IBM to license z/OS on other platforms
I think a company in a dominant market position should be required to do so. I believe that TurboHercules also thinks so, which is why they filed their antitrust complaint after trying unsuccessfully for a long time to enter into negotiations with IBM. They wrote their first letter to IBM in July 2009 and got turned down (four months later); then wrote another one asking IBM to reconsider, and four months later were turned down again. So they tried in good faith but IBM didn't even want to have a reasonable conversation.
you want IBM to forget that they invested billions of dollars in the platform, and give the results of all that investment away for free.
No one forgets that, and no one wants IBM to forget it. And most importantly, no one demands anything for free. TurboHercules asked in its first letter (for links to the entire correspondence, please check here) for a reasonable offer. They didn't ask for anything free of charge.
Would you be happier if IBM opened the licensing for z/OS (ending the anti-trust claims), then turned around and sued for patent infringement?
This is not a question for me to answer. The regulators have the complaints on the table (not only the one from TurboHercules but also others, such as NEON) and if the European Commission launches an in-depth investigation into IBM's practices, then it's up to the EC to determine what it would consider a satisfactory outcome. And even if they have a satisfactory outcome at some point, they could always launch a new investigation later if necessary.
An "Ad hominem"; a "straw man"; and conspiracy theorist; attack on an "award-winning" --- "widely respected" ----"Open Source advocate", in just four sentances.
Tim,
None of what I wrote meets the definition of an "ad hominem" or a "conspiracy theory". PJ has always supported whatever IBM has done. On SCO that's understandable and FOSS-like. But saying that IBM should sue the pants off an open source company is certainly unworthy of an "open source advocate".
I clearly said that I don't want to speculate about Groklaw's source of funding but I do take note of its slavish loyalty to IBM. That slavish loyalty can have any number of reasons, but it certainly calls into question the assumption of some people that Groklaw is unbiased and "digging for truth" as its slogan says.
And just FYI, I've also won several awards including CNET UK's "Outstanding Contribution to Software Development" Award for my FOSS-related work. Linux Magazine (in the US I think it's called Linux Pro Magazine now) voted me runner-up to the "Outstanding Contribution to Linux and Open Source" award, and I won an EU Campaigner award in 2005 that went to Pope John Paul II in 2002 and to Governor Schwarzenegger in 2007. So are we going to make this a matter of awards or can we get back to the actual issue? I prefer the latter.
Slashdot Mirror
Your imagination is so wild you'd better get it under control for your own good. I don't describe anyone as "evil". I talk about what companies actually do. Of the four companies you mention, I criticized two already back in 2004 and 2005, such as in January 2005 when I was the only one to speak out vehemently against IBM's patent pledge on the very day it was announced. I criticized Microsoft's lobbying for software patents on many occasions. I never implied Oracle is "evil". In another comment here I pointed out that I believe in the rule of law and they are at this point MySQL's legitimate owner; it was equally compatible with the rule of law to voice legitimate concerns beforehand. Concerning IBM, its actions against an 11-year old free and open source software project speak for themselves.
Everyone in the EU institutions who knows me is aware of my firm and unchanged position on software patents. Concerning interoperability, I'm excited about Neelie Kroes' plan to impose interoperability-related obligations not only on dominant but also significant market players. I'd rather see software patents abolished but in terms of an actual legislative initiative on the table, this is the first one in a long time that I really believe can have a profound positive impact, not only in Europe but actually on a worldwide basis. That initiative could effectively impose similar obligations on other companies as the Commission did on Microsoft, but through legislation, and I support the conditions imposed on Microsoft although on the MediaPlayer side the abolition of software patents would have been more helpful for competing media player software than anything else.
Who pays Florian Müller to attack companies and IBM? As a German lobbyist he should disclose his clients from the State of Washington.
answer given to someone else (who isn't an Anonymous Coward)
Lets copy from Groklaw. I'll do this one for PJ, even if she might not want it. Lets skip pleasantries, shall we?
There are legal requirements to disclose who is funding you in the US. As Groklaw has confirmed, there is no funding from IBM.
Did I say she gets funded by IBM? Never. I pointed out she's welcomed every single thing IBM has ever done with respect to patents. She says she's against software patents but when those patents belong to IBM, she says it's fine to use them to sue the pants off an open source company. I didn't say anything about why this is so. I said clearly there can be any number of reasons for that, but whatever the reason is, it prevents her from unbiased reporting on many issues.
So, how about you tell us Florian - Who is funding you? Who pays your bills to lobby?
I did some lobbying in 2004-2006 against software patents and disclosed such backers as MySQL AB, Red Hat (only for a few months), 1&1 Internet AG and Materna GmbH. I don't believe that fighting for such a community cause makes me a traditional lobbyist. I got support from companies and without it I couldn't have pulled off a campaign like that. There was also a lot of support from volunteers, which enabled me to provide some of the content in 17 languages.
The only other lobbying I did since then was on behalf of Real Madrid, the world's leading soccer club. I had bought my first (of many) Real Madrid shirts in 1987 and 20 years later I helped them fend off a political scheme that would ultimately have made their team much less competitive on the field. Real Madrid is a non-profit: no shareholders who receive dividends, it's a club that "belongs" to its members and pursues sporting goals (but obviously needs money to do so).
Concerning my current project, the FOSS Patents blog, I started it three months ago and have since then done (I just checked) 38 postings. It's obvious that this kind of activity doesn't require funding. Concerning the positions I voice there, you can see that they're consistent with the ones I've always had on the same kinds of issues. Back in January 2005, when IBM announced its patent pledge, I criticized it vehemently, and I did so again in an op-ed right here on /. later that year. Five years later, IBM's bullying of TurboHercules proved my original concerns right, it even exceeded what I had thought. Just mentioned this because it should make it clear that my positions on patent matters are not for sale. They've been consistent over so many years that unbiased observers know they can trust me.
An article on the problems the government of the State of New Jersey faces due to the mainframe lock-in.
Not if the MS Office license contains restrictions against it. When you legally bought MS Office all you really bought was a license that allows you to use the software. If you don't agree to the terms of the license, you can't install or use any of the software included on the Office disc. If Microsoft wanted to they could specify in the license that it can only be installed on Windows and that would be the end of using it (legally) under WINE.
IBM has a mainframe monopoly, which is more than what's needed to prove under competition law that they are in a dominant market position, and since they have a dominant market position, regulators can require them to make such licenses available on a fair, reasonable and non-discriminatory basis and can in particular prohibit the tying of one product to another if a dominant market position is used unfairly to restrict competition.
They could very well agree with IBM merely because IBM in their view is right.
They could, but the key thing is that anyone using the Linux Foundation as proof makes a mistake because the dependence of the Linux Foundation on IBM makes them inadmissible as a credible voice or expert witness or whatever you'd want to treat them as in this context. Using a biased organization as a reference in a debate isn't exactly the way to present oneself as a reasonable discussant. That's why I pointed out it's an inadmissible reference.
You don't know that the Linux Foundation wouldn't oppose IBM if they felt IBM was wrong and lose IBM's backing willingly in that case. Organizations have done such things in the past.
To the best of my knowledge there isn't a single example in which the Linux Foundation ever criticized anything IBM did. If you can't provide even one example of the LinuxFoundation having opposed IBM, then you have no point.
Same with Groklaw's PJ: there's no example of her opposing IBM either, other than claiming on a less than credible basis to be against software patents (which is what she says unless the patents in question belong to IBM, in which case Groklaw thinks they should be used to the pants off an open source company.)
Did you ask Google's lawyer if they would support a direct competitor, who happens to be using an OSS project that infringes Googles patents?
It was a conference and I wasn't the only one who had questions, so I couldn't start a back-and-forth debate there. But I'll tell you something that may surprise you now: your question is very well-taken per se. However, I quoted what Google's chief lawyer said and he didn't limit that statement to non-competing projects. So I have to take his word for it until/unless they act differently one day.
IBM's patent pledge didn't have a carve-out for competing projects, either. It was meant to benefit all software under an OSI-approved license.
What you have now caused, is IBM a lot of stress, and causes Florian to attack the GPL.
I've never attacked the GPL. My blog is called FOSS Patents because I believe that the Free Software idea is important and must never be forgotten even though open source is the more commonly used term. I was involved with MySQL from the year the company was founded (2001, several years after the FOSS project itself started), and the GPL worked extremely well for MySQL.
A competitor wanting to sell a complete platform that directly competes is *not* fine, and has nothing to do with the fact that Hercules built an emulator.
This distinction isn't supported by the facts. What you call "a complete platform" is simply a standard server from HP running the emulator in question. There's no hardware component in there that's unique and that would infringe IBM patents.
By the time I'm writing this, the comment to which I'm replying has a Score of 0 and is categorized as a "Troll" posting. When the discussion here started, it had moved up quickly to a score of 5 and was regarded as Interesting if not Insightful.
But then there were calls on Groklaw, such as this one, to rush over here to /. and use mod points against me.
I'm sure there's a huge number of very reasonable people on Groklaw, but there's PJ and a circle of people who use such schemes to suppress the very truth that Groklaw falsely claims to dig for.
I perfectly understand that /. is meant to be a self-moderating platform. However, in order for such a system to work, mod points must be used according to reasonable standards. If a posting disagrees with Groklaw, which my comment certainly did, but does so in a polite, factual, focused and on-topic way, there's absolutely no justification for categorizing it as a "Troll" posting. It's also unacceptable to vote it down to a score of 0. It's obvious that a posting that is less popular with a certain audience won't move up as quickly as another, or that it might not move up too much at all, but a score of 0 must be justified and in this case, if you read the original comment I'm referring to (here's a link), that is not the case.
I have complained to /. management over this organized misuse of mod points and hijacking of a neutral, opinion-forming platform (which is what /. has been for a long time) by another community that certainly has a lot of overlap (hence they have mod points here).
If this kind of attack is accepted and if the same people can misuse mod points again and again, this would mean that /. is at the mercy of the hardcore, unreasonable part of the Groklaw crowd that is a minority not only on /. but even on Groklaw itself.
OK, so where did they ask IBM for FRAND licenses and get rejected? AFAIK, there has not been even a hint of a suggestion anywhere that they did that.
In this blog posting you can find links to all four letters. The first one says toward the bottom of page 1: "The pricing, conditions and limitations of that license would be at the sole discretion of IBM on reasonable and fair terms.
Instead, they make statements like they think it is 'unlikely' that IBM, a company which proudly touts it's investments and patents, would have any IP relating to it's flagship hardware and architecture.
I'm not aware of any such "unlikely" statement by TurboHercules. In their second letter they said they were surprised to be told that their platform infringes any IBM intellectual property. They had reasons to be surprised, given that the Hercules project started in 1999 and IBM even mentioned it in one of its RedBooks a few years later, and that throughout all those years IBM never indicated any IP issue.
Of course IBM talks a lot about its patents. I discussed IBM's overall approach to patents, and patent quality concerns, in this blog posting. But the fact that IBM has lots of patents doesn't necessarily mean that Hercules infringes any of them.
I think it's very strange that IBM on the one hand claims to be a major proponent and benefactor of open source and then uses patents to threaten an open source startup and, effectively, an 11-year old open source project. By contrast, look at the quote from Google's chief lawyer in this blog posting: "anyone using patents against open source is a bad idea -- you won't see us do it"
There are people who think as you do, and support you. We are just not so vocal as the feeble minded /.ers here.
Thanks! I know the difference between irritable hordes and silent, reasonable majorities. But I don't think one can generalize some of this for all slashdotters. We're talking about a Groklaw crowd that uses its moderator rights etc. here on slashdot to suppress the truth that Groklaw claims to be digging for. Groklaw sent its crowd over by way of a link in its news pick column. And some of the postings look a lot like written by people who if they're not IBM employees are at least very close to IBM and very much informed.
Are they using any IBM software?/p>
Hercules is an open source project that was developed as such and it doesn't incorporate any IBM code to the best of my knowledge. Even IBM doesn't claim that.
Or have they done a clean room implementation of a set of software than entirely emulates the software stack of IBM?
Hercules emulates the mainframe CPU, so it interprets the CPU instruction set on Intel-based server. I would certainly say that it does so in a "clean room implementation" form. No theft of anything if that's what you mean.
One of these seems ok, the other seems like it runs into the need to abide by the license set forth by the maker of the software in question.
Emulating a CPU instruction set is obviously not enough to run applications that usually are built on top of an operating system. In this case, z/OS is a proprietary mainframe operating system. Hercules doesn't contain its code. But since it emulates the mainframe CPU instruction set, any software written for that CPU (z/OS as well as applications) can be emulated.
Only if that interoperability is done using no code licensed by IBM. Is that the case here?
To emulate the instruction set, no IBM code is needed or used; even IBM didn't claim that. To run z/OS, customers need the right to do so, and IBM doesn't allow it to run on non-IBM hardware. So TurboHercules asked whether there could be a commercial agreement in order to give customers that option, not free of charge but in exchange for a reasonable license fee to be paid.
You make it hard to respond to your questions. You come up with some speculation and diversion in the first paragraph and then in the second paragraph you ask a question that's unrelated to everything I said.
Of course there's no FOSS license that overrules patent law. But there's a code of ethics in open source. Google's chief lawyer said clearly - when I asked him at a conference two weeks ago - that they think using patents against open source is a bad idea and they won't do it. I've quoted him in this blog posting.
IBM has a problem with a competing (copycat) platform that TH is proposing which would cut in on the low end (and eventually the high end) of IBM's mainframe sales...not with the Hercules project itself.
You make a distinction that's totally baseless. The TurboHercules offering is 100% the open source software plus they sell you services and if you want you can get a server resold by them. That's a typical FOSS approach to doing business. You can't call TurboHercules a "copycat" without simultaneously saying the same about the Hercules open source project.
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.
Well, the other vendors that they licensed z/OS to also did this little thing called giving something in return, which Hercules/TurboHercules would just rather ignore. Exactly WHAT do you have to offer IBM? Cross-licenses for patents? License fees?
I can't speak for TurboHercules and confirm what they want, but one thing is obvious to me: they filed an antitrust complaint and antitrust law isn't about freebies -- it's about fair, reasonable and non-discriminatory licensing. I'm sure their lawyers told them that if they ask the European Commission for help, a FRAND license is the best possible outcome and a free lunch won't be achievable under the law. They can always ask IBM to add more patents to the pledge (anyone can, including other FOSS projects who feel threatened or potentially threatened), but that's separate from the antitrust issues involved.
Wow PJ compared to Rush Limbaugh!
I pointed out a difference. I didn't say they had anything in common. In fact, I right now can't think of anything they have in common. I meant to point out about Rush that there can be no doubt that the only ones on whom he's dependent are the people who tune in to his show, but there's no way that he's under the control of anyone he reports on. I pointed out the fact that Rush demonstrates independence because he doesn't always agree with the Republican Party.
Why is this example important? Because political parties, like large corporations, take positions on a large number of issues and have a diversity of interests. So it's normal that at some point someone will disagree, such as Rush who didn't want McCain to be nominated, and he disagreed with the GOP on many other things.
So if someone over the course of so many years always supports whatever a particular large company (IBM) does, it's normal that people wonder how this is possible. There are different possible explanations, not just one that many consider obvious. But no matter what the reason is, it means that Groklaw is biased propaganda and makes gross misrepresentations all the time, and doesn't "dig for truth" as it claims.
By contrast, I have been politically active since 2004 (the year I founded the NoSoftwarePatents campaign) and I've criticized about every major company in the industry over the years. PJ says she's against software patents, which is doubtful because she encouraged IBM to sue the pants off TurboHercules. Even if it was true, it would just mean a disagreement on the desirability of software patents but she has so far applauded every single thing - every little thing, every big thing - IBM has done that's relevant to Groklaw's topics. Every IBM-sponsored initiative gets glorified by Groklaw, even some that are schemes to mislead the community, to lull it into a false sense of security concerning software patents and to discourage it from taking real action against them.
"No one forgets that, and no one wants IBM to forget it. And most importantly, no one demands anything for free" Oh really? Is there an alternate explanation for this statement in the second letter to IBM?
"In the unlikely event that IBM believes that the Hercules open source project infringes any IBM intellectual property, we kindly ask you too add any such property to the portfolio of patents that IBM has already pledged for the free use of the open source community".
That statement seems to say to me quite clearly that they expect IBM to give up it's IP for FREE.
That's a misinterpretation. Since IBM wants to position itself in the eyes of the FOSS community as a generous donor of patent licenses, anyone can of course make a suggestion to add more patents to the pledge. If you're pro-FOSS, wouldn't you also like them to go from 500 pledged patents to 1,000, from 1,000 to 10,000, and ideally pledge them all?
But that doesn't mean to demand it. By demanding I mean what someone claims he's legally entitled to. In antitrust law - and we're talking about an antitrust complaint here, several ones in fact - you can't demand to be given anything for free. What you can ask for is fair, reasonable and non-discriminatory licensing terms ("FRAND"). If there's a dispute, FRAND has to be determined by a competent court of law.
There will be no grand grassroots campaign to demonize IBM for this
I never meant to start one. I look at this and various other open source patent issues and I think this is now an important situation in which antitrust intervention can, once again, be positive for open source. But what I'd like to happen more than anything else is for IBM to offer fair, reasonable and non-discriminatory z/OS licensing terms and to retract is patent threats. I have no intention at all to "demonize" IBM. They can only demonize themselves, basically. Or they could do the right thing and support the concept of customer choice.
My blog is issue-driven ("FOSS Patents" says it all), not company-specific.
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.
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.
There is no lock in.
Sure there is. To give you only one example that was just written about it today: the airline industry.
The main problem is that you and TurboHercules are being entirely unreasonable.
You can compare what the TurboHercules company says to what I say, but I want to make it clear that it's not necessarily the same. I view a lot of issues here the way they do, but not all of them, and vice versa I guess.
You do not only want IBM to license z/OS on other platforms
I think a company in a dominant market position should be required to do so. I believe that TurboHercules also thinks so, which is why they filed their antitrust complaint after trying unsuccessfully for a long time to enter into negotiations with IBM. They wrote their first letter to IBM in July 2009 and got turned down (four months later); then wrote another one asking IBM to reconsider, and four months later were turned down again. So they tried in good faith but IBM didn't even want to have a reasonable conversation.
you want IBM to forget that they invested billions of dollars in the platform, and give the results of all that investment away for free.
No one forgets that, and no one wants IBM to forget it. And most importantly, no one demands anything for free. TurboHercules asked in its first letter (for links to the entire correspondence, please check here) for a reasonable offer. They didn't ask for anything free of charge.
Would you be happier if IBM opened the licensing for z/OS (ending the anti-trust claims), then turned around and sued for patent infringement?
This is not a question for me to answer. The regulators have the complaints on the table (not only the one from TurboHercules but also others, such as NEON) and if the European Commission launches an in-depth investigation into IBM's practices, then it's up to the EC to determine what it would consider a satisfactory outcome. And even if they have a satisfactory outcome at some point, they could always launch a new investigation later if necessary.
An "Ad hominem"; a "straw man"; and conspiracy theorist; attack on an "award-winning" --- "widely respected" ----"Open Source advocate", in just four sentances.
Tim,
None of what I wrote meets the definition of an "ad hominem" or a "conspiracy theory". PJ has always supported whatever IBM has done. On SCO that's understandable and FOSS-like. But saying that IBM should sue the pants off an open source company is certainly unworthy of an "open source advocate".
I clearly said that I don't want to speculate about Groklaw's source of funding but I do take note of its slavish loyalty to IBM. That slavish loyalty can have any number of reasons, but it certainly calls into question the assumption of some people that Groklaw is unbiased and "digging for truth" as its slogan says.
And just FYI, I've also won several awards including CNET UK's "Outstanding Contribution to Software Development" Award for my FOSS-related work. Linux Magazine (in the US I think it's called Linux Pro Magazine now) voted me runner-up to the "Outstanding Contribution to Linux and Open Source" award, and I won an EU Campaigner award in 2005 that went to Pope John Paul II in 2002 and to Governor Schwarzenegger in 2007. So are we going to make this a matter of awards or can we get back to the actual issue? I prefer the latter.