IBM Breaks Open Source Patent Pledge 359
Jay Maynard writes "IBM has broken the pledge it made in 2005 not to assert 500 patents against open source software. In a letter sent to Roger Bowler, president of TurboHercules SA, IBM's Mark Anzani, head of their mainframe business, claimed that the Hercules open-source emulator (disclaimer: I manage the open source project) infringes on at least 106 issued patents and 67 more applied for. Included in that list are two that it pledged not to assert in 2005. In a blog entry, the NoSoftwarePatents campaign's Florian Mueller said that 'IBM is using patent warfare in order to protect its highly lucrative mainframe monopoly against Free and Open Source Software.' I have to agree: from where I sit, IBM likes Open Source only as long as they don't have to compete with it."
Re:You might not like them ... (Score:5, Informative)
Check out their website. The quotes they've listed.
“ I have installed your absolutely fantastic /390 emulator. You won't believe what I felt when I saw the prompt. Congratulations, this is a terrific software. I really have not had such a fascinating and interesting time on my PC lately. ”
— IBM Large Systems Specialist
“ Such simulators have been available for a long time. One of the most complete (up to modern 64-bit z/Architecture) is hercules. ”
— Michel Hack, IBM Thomas J. Watson Research Center
An apparently excellent emulator that allows those open source developers with an "itch to scratch", to come to the S/390 table and contribute. ”
— Mike MacIsaac, IBM
IBM -HAS- said "Go ahead and rip our stuff off, it helps us in the long run"
And now that its paid off, they're going for more money by killing it. Despicable.
A lot of people (Score:5, Informative)
There are still a *lot* of mainframes out there running code from the 1960s. I can personally vouch for one system that went into production two years before I was even born.
The issue is the hardware; IBM charges a *lot* of money for their stuff, and especially on the mainframe, where some products (think MQSeries, or now known as WebsphereMQ) are charged by the processor cycle. The machine has a permanent link to IBM for both troubleshooting (they can work with every aspect of the machine remotely) as well as for billing (one of the "cool" features is that you can "lease" additional power only when you need it, like year-end billing or some-such).
I worked with a small shop that had a single mainframe that was used for small jobs by my company because it was cheaper to farm it out to them than to run it on the ES/9000; the $/cycle count cost just made it prohibitive to use the 9000 for anything other than massive jobs. So this small company got all the small business. You can appreciate that they'd cut their costs even further if they could run everything in Hercules on standard hardware, and probably get better performance than their small early 80s machine.
Mainframes are still the guy hidden in the shadows, smoking the cigarette; he's still there and has more power than you think.
Probably an oversight (Score:5, Informative)
Since only two of 171 patents were covered by the covet not to assert. IBM doesnt need those two patents to win its case.
In any event the two patents are unenforceable under the doctrine of promissory estoppel. When IBM promised not to assert
these patents others acted in reliance on that promise. I suspect IBM's lawyers knows the law sufficiently well to not try to
do that in actual legal filings.
Re:I feel your pain (Score:3, Informative)
TurboHercules SA is a company formed to commercialize the Hercules [hercules-390.org] open-source emulator. The accusations IBM made in its letter apply as much to Hercules as they do to TurboHercules, since the latter simply sells services and support for the emulator.
Yes, Hercules is open source. The QPL is an approved open source license, according to the Open Source Initiative.
Re:IBM is not suing the project. (Score:4, Informative)
From Ars Technica
"In many ways, the project arguably benefits IBM by encouraging interest in the mainframe platform. That is largely why IBM has shown no hostility towards Hercules in the past. In fact, IBM's own researchers and System Z specialists have lavished Hercules with praise over the years after using it themselves in various contexts. The project was even featured at one time in an IBM Redbook. What brought about IBM's change in perspective was an unexpected effort by the TurboHercules company to commercialize the project in some unusual ways.
TurboHercules came up with a bizarre method to circumvent the licensing restrictions and monetize the emulator. IBM allows customers to transfer the operating system license to another machine in the event that their mainframe suffers an outage. Depending on how you choose to interpret that part of the license, it could make it legally permissible to use IBM's mainframe operating system with Hercules in some cases.
Exploiting that loophole in the license, TurboHercules promotes the Hercules emulator as a "disaster recovery" solution that allows mainframe users to continue running their mainframe software on regular PC hardware when their mainframe is inoperable or experiencing technical problems. This has apparently opened up a market for commercial Hercules support with a modest number of potential customers, such as government entities that are required to have redundant failover systems for emergencies, but can't afford to buy a whole additional mainframe."
What he said. (Score:3, Informative)
As PJ over on Groklaw says, the usual Microsoft spokesflacks leapt out in front of this story to promote Hercules' position when ordinarily they wouldn't even know about a subject this obscure. It's likely this is an attempt to turn the community against one of its biggest benefactors. Don't fall for it.
In the actual suit we can all be sure the oversight will be corrected and IBM will only use the 169 patents (plus a few more) that weren't in the pledge.
Re:Wake up and smell the stock market people... (Score:3, Informative)
You will also notice that these 'pledges' don't do very much in the long run. IBM, Google, Microsoft, Novell, Red Hat and Apple all have 'pledged' some type of protection for their open source ancestors but those things are not legally binding no matter what they might say about it (I think it's MSFT that has such a claim).
That's also why you should avoid implementing any of their proprietary crap in your Open Source project (or any project that's being made public or sold in any shape or form) because if for any reason they want to leverage their arbitrary licenses on it, they can no matter what they have promised whether it's uncanny legal speak or so-called patent pools.
Actually, if there is evidence or a precedent has set for non-enforcement of those patents in regards to other projects, then their pledge is legally binding. The OSS project would just have to show the judge that the patent owner had previous failed to enforce the against pre-existing projects, and the patent holder's argument would fall apart.
Re:Probably an oversight (Score:5, Informative)
Winning a case isn't a binary thing. The scope and scale of violations is often important.
That's less clear than it seems. Promissory estoppel is an equitable doctrine which allows a court to mitigate remedies to which a party might otherwise be entitled to the extent necessary to avoid injustice where there has been reasonable and detrimenetal reliance by the other party on a promise made by the party which has the cause of action. The exact nature of the promise, and the actions undertaken supposedly based on it, are relevant to determining to whether the reliance was reasonable, and the extent to which remedies should be mitigate to avoid injustice.
Re:What he said. (Score:4, Informative)
PJ is far more anti-MS than pro open source, so it's not surprising she wants you to ignore this.
Re:Who wants to emulate... (Score:3, Informative)
A crappy old green 720×348 graphic card?
Actually, it wasn't crappy at all, and was one of the best graphics cards for Microsoft Word for DOS, Lotus 1-2-3, and AutoCAD. I had a cheap Hercules compatible card and it worked great for the software I wanted to run. Better than the CGA or even EGA if you didn't need color or didn't want to spend money on a color monitor.
Re:IBM is not suing the project. (Score:3, Informative)
Re:You're missing the point (Score:3, Informative)
Whether or not, and to what extent, the law allows that depends on the laws in the particular jurisdiction in which an action is brought, it certainly is not as black and white as you present it under the doctrine of promissory estoppel, which would be the main basis for something like the bar you suggest in most US jurisdictions.
Further, in any case, the whole issue becomes moot if you aren't doing what the promise said you wouldn't be sued for in the first place; not that IBM included a very specific definition of "open source license" in the pledge, including exactly those published on the opensource.org website as of a specific date. The license actually used by Hercules claims to be the Q Public License v1.0, (even including Trolltech's copyright notice) which is such a license, however, it's text differs from that text of the Q Public License v1.0 on opensource.org (the text of the Choice of Law section is changed from "This license is governed by the Laws of Norway. Disputes shall be settled by Oslo City Court" to "This license is governed by the Laws of England".)
Since IBM didn't pledge not to press patent claims against license merely very similar to those listed on opensource.org as of the date specified, I think it is pretty clear that, whether or not the law of any particular jurisdiction makes the promise not sue binding, TurboHercules hasn't done the thing that IBM promised not sue over.