No he does not mean well The only question is: is Florian Mueller a paid Microsoft shill, or does he do it gratis?
If this is the basic question you have, then I think you can answer it yourself if you take a look at this other comment of mine here.
My position is still the NoSoftwarePatents one. You can find that position reiterated all over my blog and you may also see that I criticized a court decision in favor of a Microsoft FAT patent and have mentioned Microsoft in a variety of patent-related contexts in a way that I'm sure you'll agree is not what a "Microsoft shill" would say.
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.
Many airline systems remained locked on legacy mainframe systems and databases, with cost-saving consolidation initiatives that have been widely implemented in other industries such as virtualisation andcloud computing having made little impact so far.
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.
I have. On Wikipedia you can read that the namesake founder of Amdahl coined the term FUD to describe how IBM tried to discourage customers from using Amdahl products. Where's Amdahl today?
They have a small market share but 90% of a market is not a monopoly.
I don't want to get into the debate over "monopoly" vs. "superdominant market share". The key thing is that antitrust law prohibits the abuse of a "dominant" position. You say they have a 90% share, so if you're right, then that's more than enough to be considered dominant and to fall under antitrust rules. Why would we then have a big debate over the remaining 10%?
You are not only a paid shill, you are an idiot one at that.
Given that you're a troll who insults people instead of contributing resaonably to a factual discussion, I'm sorry I answered the part above but I hope that other people, who are more mature and reasonable than you are, may find it helpful anyway.
... 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?
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.
Present a case with some reasonable legal arguments not made up from thin air and people might respond more positively.
TurboHercules has made its antitrust case, and so has now NEON, and previously T3 Technologies. Those three companies have filed it with the European Commission -- not with you, not with slashdot, not with me. Some companies have also mae submissions to the US Department of Justice on mainframe issues from what I hear.
Your paid shilling isn't any more welcome here than it was at Groklaw. If I'm not mistaken, PJ banned you over there. I've never seen a ban here but you might be the precedent!
The first part is simply an attack on the messenger instead of a factual way to deal with a message. The second part is something I'm totally unaware of. I don't have a Groklaw account. I may have had one a long time ago (2004-2005, NoSoftwarePatents campaign) but not sure and if I did, I don't even have the password anymore. So I can hardly be blocked. But with a view to other people who may want to express opinions on Groklaw, I hope that they have at least a minimum standard, such as blocking people who make offensive or off-topic posts or run commercial promotions. If different opinions get anyone blocked, then it's the end of any serious discussion forum.
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.
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.
So you are saying they can only run their code on IBM mainframe systems without spending money, and you want IBM to lose money so they can save money. Sounds like a poor business decision on their part.
IBM's management will do what's best for IBM's shareholders. But since they have a monopoly, antitrust regulators can intervene if their rent-seeking is an anticompetitive practice. They wouldn't even have to have a monopoly for that, but at least a dominant market position, as discussed in this other comment here.
Would you want a monopolist to milk you? If you were affected, I'm sure you'd also call for government intervention. That's why antitrust law was created: to protect consumers.
They need to make a business decision to either modify their code to run on something else
We talk about 300 billion lines of code or so. We talk about a unique programming model and a lot of the code being written in COBOL. It's not as easy as 1-2-3. Since there isn't any competition anymore for IBM in the mainframe market, there are antitrust issues. That's the rule of law. Would you want to pay 60 times as much for your telephone charges as you do now, just because someone exploits a monopoly so shamelessly? Then think of mainframe customers who have to pay 60 times as much for a gigabyte of RAM as you have to pay for RAM you install in your computer at home.
They chose a proprietary platform at the beginning and now they're stuck with the lock-in. When you get on the proprietary plane that's the cost of the ticket. They bought their tickets
they knew what they were getting into
I say let 'em crash
That's what you can say but regulators have to apply the law as it stands and monopolists aren't allowed to preserve a lock-in by whatever means they please.
I can agree with you in part that the mainframe situation will clearly serve as a lesson for those who are affected by it and by others who take a look at it, and yes, this is an issue that doesn't happen with Free and Open Source Software.
But when 80% of the world's data are crunched by a legacy architecture, it's not economically reasonable (and therefore not politically responsible) to leave those locked-in customers in the lurch when there's antitrust law in place to solve the problem in whole or at least in part.
Wrong. The courts in the USA have held in the Apple vs Pystar case that tying an OS to specific proprietary hardware is a perfectly legit business strategy as it creates a barrier to entry.
Please have a look at this other comment of mine here on slashdot explaining why the Apple case isn't a precedent for the IBM mainframe monopoly issue. And it also explains why Apple may in the future also have to provide interoperability because of a new EU law that's in the making, but under today's antitrust law comparing Apple to IBM is the same as comparing apples to bananas.
Even though your last sentence was an insult, I do want to provide clarity on the legal and technical issues you wanted to know more about. I hope that you'll be more receptive to these factual explanations than the tone of your comment (especially the last part) suggested.
Please explain what 'standard' IBM is locking up as related to these cases specifically.
Anyone working on standards policy can confirm to you and I'm now telling you that there are standards that are set by an SSO (standards-setting organization; some prefer SDO for standards development organization), such as ODF (the organization behind it is OASIS), and there are de facto standards that have as much market relevance as the other category of standards and in some cases (when you have monopolists like IBM) even more market relevance. IBM opposes the OOXML format because it's the Microsoft Office format, and they say single-vendor standards are undesirable, but the mainframe CPU instruction set is a programming interface that belongs to a single vendor (IBM) and it is a de facto standards because 80% of the world's data are still crunched by mainframes.
Interoperability has to do with accessing data from a system, not running a proprietary system in a manner that the owner does not allow.
No. Both are interoperability cases. The European Commission's first Microsoft case had two aspects: the (un-)bundling part (MediaPlayer) and the network protocol part (where Samba was the main beneficiary of the ruling). If a network protocol is an interoperability matter -- in this case, a court-validated interoperability matter --, then a CPU instruction set, which is a programming interface, is one as well.
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...
This seems structurally comparable to the legal and moral frou-frou over running MacOS on non-Apple hardware.
Discuss.
Happy to discuss and explain this.
The difference is that the Mac is a very popular platform but it's hard to see how one could claim that MacOS is a dominant operating system. It certainly isn't for desktops because the EU considered Windows to be dominant and under antitrust law you can at the most have one dominant player per market segment, never two. For smartphones, Apple would argue that Nokia still ships more units, that the total number of Android-based units sold is growing fast and probably also above the iPhone now, and they would point out that RIM is still a formidable competitor that grows fast and has a loyal customer base.
If competition is intact in a market, then regulators can't intervene even if they want. The theory is that competition should then take care of the problem, as a self-regulatory mechanism, meaning that if customers find Apple too restrictive, they might switch. I'll get back to Apple in a moment, but now on IBM:
IBM has a mainframe monopoly by now. That's the most extreme case of market dominance and it's where antitrust law comes in and can result in regulatory intervention. That's why the European Commissioned imposed a variety of requirements and levied hefty fines on Microsoft. Concerning IBM, there have already been antitrust cases going back to the 1950's, on that kind of basis.
But policy-makers have also begun to realize that Apple's customers -- all those fanboys who spent a lot of money on apps and phone charges -- should also get more protection. Right now they're beyond reach for traditional antitrust law. That's why the EU is preparing a legislative initiative to impose certain interoperability requirements on companies like Apple in order to protect consumers. For the mainframe market that new law isn't needed because IBM is clearly dominant (that term is an understatement for IBM's position in that market).
Both companies want to use IBM products in a manor that IBM doesn't want their product to be used. This is not about communication between an IBM product and other products.
Just try to think of the situation of those mainframe customers with an estimated 300 billion lines of program code (most of it in COBOL) still in use. They want to use that code, in which they've invested exorbitant amounts of money over the years, on non-IBM hardware, typically Intel-based servers, which is what Hercules can technically enable. This is about interoperability between the existing programs ("legacy code") and newer hardware.
In my view emulation is a particularly important interoperability issue because it's closely related to the concept of virtualization.
I've used open source emulators such as VICE (Commodore computers from the 1980's) and those are fun and it would be very disappointing if companies could shut such emulators down too easily. While a Commodore emulator is mostly about fun and nostalgia, mainframe emulation is absolutely key in order to open that market in which IBM has a hardware monopoly by now.
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.
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.
Sorry, the last sentence lost me. How does the OpenDocument Format relate to mainframe software?
The explanation is that both are interoperability matters. I've discussed it in greater detail in a blog posting but let me also give some explanation right here:
There are two interoperability issues about the way IBM treats TurboHercules and the Hercules open source project. By tying its operating system to its hardware (not allowing the use of z/OS, even if customers are willing to pay a reasonable price for it, on non-IBM hardware), IBM prevents the emulation/virtualization that Hercules is technically capable of providing. The other issue is that IBM uses patents on its mainframe CPU instruction set to bully TurboHercules and thereby effectively against the Hercules open source project as a whole, as the Hercules maintainer explains on his blog.
ODF is an interoperability matter and its interface is a document format. But the instruction set of a CPU is also an interface: it's the way the software interfaces with the CPU hardware (or, alternatively, with an emulator).
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".
the open source hercules project is different than the commercial product which is seeking the copyright license.
It's 100% the open source software. They sell you services in addition, and if you want, you can buy a server from them. If you claim that this typical open source business model (we're not talking about TurboHercules having created any proprietary software) doesn't deserve to be considered an open source approach, then what about Red Hat, Novell, Alfresco, Canonical and so many other open source companies out there? What if someone runs Oracle 11g on Linux? Should anyone who promised not to assert patents against Linux then get away with using patents against the Linux part of the setup?
In the political context that's relevant here, it's not primarily about which category of software you promote or attack. It's about the concept of interoperability. IBM's denial to make its proprietary z/OS operating system available for use on non-IBM hardware and its use of patents on a programming interface (the mainframe CPU instruction set) is an attack on interoperability. Therefore, they have a serious credibility problem when trying to tell policy-makers that other companies must make their patents available on an "open standards" basis because of interoperability being so important.
Interoperability is extremely important, no doubt about that. But in IBM's case it's too obvious that they don't want interoperability, customer choice etc. -- they use them as pretexts for their political purposes.
The patents that IBM brought into play aren't patents on z/OS. They are patents that affect emulation as a whole and would also affect Hercules users if they run any of the older mainframe operating systems you mentioned. So on the one hand there's the problem you described, which is that IBM doesn't want to make z/OS available for use on non-IBM hardware, and that's the essence of the antitrust issue. But on the other hand IBM is against the emulator and as you can see with the NEON situation, IBM also uses "intellectual property" against others who want to give more choice to mainframe customers.
It's not exclusively about patents. But it's an undeniable fact that IBM asserted patent infringement and hasn't retracted that assertion.
Secondly, citing your own blog is not fact. It's completely insubstantiated.
I didn't say that people should take my word for it, but the blog is a starting point because it contains links to all four letters that were exchanged between IBM and TurboHercules from July 2009 until March 2010. That is what I consider access to substantiation. Please take a look at it and then you might agree.
There is no abuse of rights. IBM has a copyright
No copyright. They said "intellectual property" initially, which is indeed a vague term, but their second letter contained a list of 106 patents and 67 patent applications. No reference to copyright in any of their letters.
and if they choose to exert it they can. Are you going to tell me that if I copyright something I shouldn't be able to exert that copyright? What world do you live in?
The very world in which there's antitrust law. Ever heard of the legal concept of an abuse of a dominant market position? Let me google that for you.
Anyone can still go out and make their own implementation
As you can see, once you do it, IBM claims you violate their intellectual property rights. They bully you, they'll even bully your customers which is what they did in NEON's case. Take a look at the NEON situation and you'll see the parallels between that one and the TurboHercules matter.
The EU also imposed requirements on Microsoft that restricted the way they could use their intellectual property rights and required them to make certain components available separately ("untying"). On that same basis, IBM may soon be required under competition law to make z/OS available on a fair, reasonable and non-discriminatory basis without tying its use to IBM hardware.
You're right that large corporations are complex organizations with a diversity of interests. It's not about morality in this case. It's about political credibility:
IBM wants to convince policy-makers such as in the EU (and actually all around the globe) of the benefits of patent-unencumbered standards only in markets or market segments where IBM has nothing to lose. But in their own core business (the mainframe business generates about 50% of IBM's corporate-wide profits) they oppose it vehemently, I would even say ruthlessly because no one would expect them to give something away, but they should at least make a commercially reasonable offer. They demand royalty-free access, for the sake of interoperability, when other companies' patents are concerned and say "fair, resaonable and non-discriminatory" is insufficient. Then when there own core business is at stake, they don't even grant "FRAND" terms: they simply want to shut out competition and that's why there are now three antitrust complaints on the European Commission's table and antitrust litigation and complaints in the US as well. The discrepancy between "No way, José" for their own patents and "FRAND is not enough, we need royalty-free" for other companies' patents is so extreme that it's not just standard corporate behavior. It's worse than what most other large players in the industry do.
As far as I'm concerned, the question of royalty-free or FRAND (or complete denial to grant a license) wouldn't even have to be on the agenda: do away with software patents and the problem is solved for the good. But we need solutions under the current legal framework.
Slashdot Mirror
No he does not mean well The only question is: is Florian Mueller a paid Microsoft shill, or does he do it gratis?
If this is the basic question you have, then I think you can answer it yourself if you take a look at this other comment of mine here.
My position is still the NoSoftwarePatents one. You can find that position reiterated all over my blog and you may also see that I criticized a court decision in favor of a Microsoft FAT patent and have mentioned Microsoft in a variety of patent-related contexts in a way that I'm sure you'll agree is not what a "Microsoft shill" would say.
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.
Airline industry to invest just 1.8 per cent of revenue in 2010
Many airline systems remained locked on legacy mainframe systems and databases, with cost-saving consolidation initiatives that have been widely implemented in other industries such as virtualisation andcloud computing having made little impact so far.
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.
Guess you have never heard of Amdahl,
I have. On Wikipedia you can read that the namesake founder of Amdahl coined the term FUD to describe how IBM tried to discourage customers from using Amdahl products. Where's Amdahl today?
They have a small market share but 90% of a market is not a monopoly.
I don't want to get into the debate over "monopoly" vs. "superdominant market share". The key thing is that antitrust law prohibits the abuse of a "dominant" position. You say they have a 90% share, so if you're right, then that's more than enough to be considered dominant and to fall under antitrust rules. Why would we then have a big debate over the remaining 10%?
You are not only a paid shill, you are an idiot one at that.
Given that you're a troll who insults people instead of contributing resaonably to a factual discussion, I'm sorry I answered the part above but I hope that other people, who are more mature and reasonable than you are, may find it helpful anyway.
... 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?
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.
Present a case with some reasonable legal arguments not made up from thin air and people might respond more positively.
TurboHercules has made its antitrust case, and so has now NEON, and previously T3 Technologies. Those three companies have filed it with the European Commission -- not with you, not with slashdot, not with me. Some companies have also mae submissions to the US Department of Justice on mainframe issues from what I hear.
Your paid shilling isn't any more welcome here than it was at Groklaw. If I'm not mistaken, PJ banned you over there. I've never seen a ban here but you might be the precedent!
The first part is simply an attack on the messenger instead of a factual way to deal with a message. The second part is something I'm totally unaware of. I don't have a Groklaw account. I may have had one a long time ago (2004-2005, NoSoftwarePatents campaign) but not sure and if I did, I don't even have the password anymore. So I can hardly be blocked. But with a view to other people who may want to express opinions on Groklaw, I hope that they have at least a minimum standard, such as blocking people who make offensive or off-topic posts or run commercial promotions. If different opinions get anyone blocked, then it's the end of any serious discussion forum.
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.
So you are saying they can only run their code on IBM mainframe systems without spending money, and you want IBM to lose money so they can save money. Sounds like a poor business decision on their part.
IBM's management will do what's best for IBM's shareholders. But since they have a monopoly, antitrust regulators can intervene if their rent-seeking is an anticompetitive practice. They wouldn't even have to have a monopoly for that, but at least a dominant market position, as discussed in this other comment here.
Would you want a monopolist to milk you? If you were affected, I'm sure you'd also call for government intervention. That's why antitrust law was created: to protect consumers.
They need to make a business decision to either modify their code to run on something else
We talk about 300 billion lines of code or so. We talk about a unique programming model and a lot of the code being written in COBOL. It's not as easy as 1-2-3. Since there isn't any competition anymore for IBM in the mainframe market, there are antitrust issues. That's the rule of law. Would you want to pay 60 times as much for your telephone charges as you do now, just because someone exploits a monopoly so shamelessly? Then think of mainframe customers who have to pay 60 times as much for a gigabyte of RAM as you have to pay for RAM you install in your computer at home.
They chose a proprietary platform at the beginning and now they're stuck with the lock-in. When you get on the proprietary plane that's the cost of the ticket. They bought their tickets they knew what they were getting into I say let 'em crash
That's what you can say but regulators have to apply the law as it stands and monopolists aren't allowed to preserve a lock-in by whatever means they please.
I can agree with you in part that the mainframe situation will clearly serve as a lesson for those who are affected by it and by others who take a look at it, and yes, this is an issue that doesn't happen with Free and Open Source Software.
But when 80% of the world's data are crunched by a legacy architecture, it's not economically reasonable (and therefore not politically responsible) to leave those locked-in customers in the lurch when there's antitrust law in place to solve the problem in whole or at least in part.
Wrong. The courts in the USA have held in the Apple vs Pystar case that tying an OS to specific proprietary hardware is a perfectly legit business strategy as it creates a barrier to entry.
Please have a look at this other comment of mine here on slashdot explaining why the Apple case isn't a precedent for the IBM mainframe monopoly issue. And it also explains why Apple may in the future also have to provide interoperability because of a new EU law that's in the making, but under today's antitrust law comparing Apple to IBM is the same as comparing apples to bananas.
Even though your last sentence was an insult, I do want to provide clarity on the legal and technical issues you wanted to know more about. I hope that you'll be more receptive to these factual explanations than the tone of your comment (especially the last part) suggested.
Please explain what 'standard' IBM is locking up as related to these cases specifically.
Anyone working on standards policy can confirm to you and I'm now telling you that there are standards that are set by an SSO (standards-setting organization; some prefer SDO for standards development organization), such as ODF (the organization behind it is OASIS), and there are de facto standards that have as much market relevance as the other category of standards and in some cases (when you have monopolists like IBM) even more market relevance. IBM opposes the OOXML format because it's the Microsoft Office format, and they say single-vendor standards are undesirable, but the mainframe CPU instruction set is a programming interface that belongs to a single vendor (IBM) and it is a de facto standards because 80% of the world's data are still crunched by mainframes.
Interoperability has to do with accessing data from a system, not running a proprietary system in a manner that the owner does not allow.
No. Both are interoperability cases. The European Commission's first Microsoft case had two aspects: the (un-)bundling part (MediaPlayer) and the network protocol part (where Samba was the main beneficiary of the ruling). If a network protocol is an interoperability matter -- in this case, a court-validated interoperability matter --, then a CPU instruction set, which is a programming interface, is one as well.
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...
This seems structurally comparable to the legal and moral frou-frou over running MacOS on non-Apple hardware.
Discuss.
Happy to discuss and explain this.
The difference is that the Mac is a very popular platform but it's hard to see how one could claim that MacOS is a dominant operating system. It certainly isn't for desktops because the EU considered Windows to be dominant and under antitrust law you can at the most have one dominant player per market segment, never two. For smartphones, Apple would argue that Nokia still ships more units, that the total number of Android-based units sold is growing fast and probably also above the iPhone now, and they would point out that RIM is still a formidable competitor that grows fast and has a loyal customer base.
If competition is intact in a market, then regulators can't intervene even if they want. The theory is that competition should then take care of the problem, as a self-regulatory mechanism, meaning that if customers find Apple too restrictive, they might switch. I'll get back to Apple in a moment, but now on IBM:
IBM has a mainframe monopoly by now. That's the most extreme case of market dominance and it's where antitrust law comes in and can result in regulatory intervention. That's why the European Commissioned imposed a variety of requirements and levied hefty fines on Microsoft. Concerning IBM, there have already been antitrust cases going back to the 1950's, on that kind of basis.
But policy-makers have also begun to realize that Apple's customers -- all those fanboys who spent a lot of money on apps and phone charges -- should also get more protection. Right now they're beyond reach for traditional antitrust law. That's why the EU is preparing a legislative initiative to impose certain interoperability requirements on companies like Apple in order to protect consumers. For the mainframe market that new law isn't needed because IBM is clearly dominant (that term is an understatement for IBM's position in that market).
Both companies want to use IBM products in a manor that IBM doesn't want their product to be used. This is not about communication between an IBM product and other products.
Just try to think of the situation of those mainframe customers with an estimated 300 billion lines of program code (most of it in COBOL) still in use. They want to use that code, in which they've invested exorbitant amounts of money over the years, on non-IBM hardware, typically Intel-based servers, which is what Hercules can technically enable. This is about interoperability between the existing programs ("legacy code") and newer hardware.
In my view emulation is a particularly important interoperability issue because it's closely related to the concept of virtualization.
I've used open source emulators such as VICE (Commodore computers from the 1980's) and those are fun and it would be very disappointing if companies could shut such emulators down too easily. While a Commodore emulator is mostly about fun and nostalgia, mainframe emulation is absolutely key in order to open that market in which IBM has a hardware monopoly by now.
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.
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.
Sorry, the last sentence lost me. How does the OpenDocument Format relate to mainframe software?
The explanation is that both are interoperability matters. I've discussed it in greater detail in a blog posting but let me also give some explanation right here:
There are two interoperability issues about the way IBM treats TurboHercules and the Hercules open source project. By tying its operating system to its hardware (not allowing the use of z/OS, even if customers are willing to pay a reasonable price for it, on non-IBM hardware), IBM prevents the emulation/virtualization that Hercules is technically capable of providing. The other issue is that IBM uses patents on its mainframe CPU instruction set to bully TurboHercules and thereby effectively against the Hercules open source project as a whole, as the Hercules maintainer explains on his blog.
ODF is an interoperability matter and its interface is a document format. But the instruction set of a CPU is also an interface: it's the way the software interfaces with the CPU hardware (or, alternatively, with an emulator).
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".
the open source hercules project is different than the commercial product which is seeking the copyright license.
It's 100% the open source software. They sell you services in addition, and if you want, you can buy a server from them. If you claim that this typical open source business model (we're not talking about TurboHercules having created any proprietary software) doesn't deserve to be considered an open source approach, then what about Red Hat, Novell, Alfresco, Canonical and so many other open source companies out there? What if someone runs Oracle 11g on Linux? Should anyone who promised not to assert patents against Linux then get away with using patents against the Linux part of the setup?
In the political context that's relevant here, it's not primarily about which category of software you promote or attack. It's about the concept of interoperability. IBM's denial to make its proprietary z/OS operating system available for use on non-IBM hardware and its use of patents on a programming interface (the mainframe CPU instruction set) is an attack on interoperability. Therefore, they have a serious credibility problem when trying to tell policy-makers that other companies must make their patents available on an "open standards" basis because of interoperability being so important.
Interoperability is extremely important, no doubt about that. But in IBM's case it's too obvious that they don't want interoperability, customer choice etc. -- they use them as pretexts for their political purposes.
The patents that IBM brought into play aren't patents on z/OS. They are patents that affect emulation as a whole and would also affect Hercules users if they run any of the older mainframe operating systems you mentioned. So on the one hand there's the problem you described, which is that IBM doesn't want to make z/OS available for use on non-IBM hardware, and that's the essence of the antitrust issue. But on the other hand IBM is against the emulator and as you can see with the NEON situation, IBM also uses "intellectual property" against others who want to give more choice to mainframe customers.
This is not about patents
It's not exclusively about patents. But it's an undeniable fact that IBM asserted patent infringement and hasn't retracted that assertion.
Secondly, citing your own blog is not fact. It's completely insubstantiated.
I didn't say that people should take my word for it, but the blog is a starting point because it contains links to all four letters that were exchanged between IBM and TurboHercules from July 2009 until March 2010. That is what I consider access to substantiation. Please take a look at it and then you might agree.
There is no abuse of rights. IBM has a copyright
No copyright. They said "intellectual property" initially, which is indeed a vague term, but their second letter contained a list of 106 patents and 67 patent applications. No reference to copyright in any of their letters.
and if they choose to exert it they can. Are you going to tell me that if I copyright something I shouldn't be able to exert that copyright? What world do you live in?
The very world in which there's antitrust law. Ever heard of the legal concept of an abuse of a dominant market position? Let me google that for you.
Anyone can still go out and make their own implementation
As you can see, once you do it, IBM claims you violate their intellectual property rights. They bully you, they'll even bully your customers which is what they did in NEON's case. Take a look at the NEON situation and you'll see the parallels between that one and the TurboHercules matter.
The EU also imposed requirements on Microsoft that restricted the way they could use their intellectual property rights and required them to make certain components available separately ("untying"). On that same basis, IBM may soon be required under competition law to make z/OS available on a fair, reasonable and non-discriminatory basis without tying its use to IBM hardware.
You're right that large corporations are complex organizations with a diversity of interests. It's not about morality in this case. It's about political credibility:
IBM wants to convince policy-makers such as in the EU (and actually all around the globe) of the benefits of patent-unencumbered standards only in markets or market segments where IBM has nothing to lose. But in their own core business (the mainframe business generates about 50% of IBM's corporate-wide profits) they oppose it vehemently, I would even say ruthlessly because no one would expect them to give something away, but they should at least make a commercially reasonable offer. They demand royalty-free access, for the sake of interoperability, when other companies' patents are concerned and say "fair, resaonable and non-discriminatory" is insufficient. Then when there own core business is at stake, they don't even grant "FRAND" terms: they simply want to shut out competition and that's why there are now three antitrust complaints on the European Commission's table and antitrust litigation and complaints in the US as well. The discrepancy between "No way, José" for their own patents and "FRAND is not enough, we need royalty-free" for other companies' patents is so extreme that it's not just standard corporate behavior. It's worse than what most other large players in the industry do.
As far as I'm concerned, the question of royalty-free or FRAND (or complete denial to grant a license) wouldn't even have to be on the agenda: do away with software patents and the problem is solved for the good. But we need solutions under the current legal framework.