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IBM Open Source Patents Your Rights Online

IBM Breaks Open Source Patent Pledge 359

Posted by CmdrTaco
from the who-saw-that-coming dept.
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."
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IBM Breaks Open Source Patent Pledge

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  • by anss123 (985305) on Tuesday April 06, 2010 @11:13AM (#31748430)
    A crappy old green 720×348 graphic card?

    Okay okay, I'm an idiot for even thinking it.
    • A lot of people (Score:5, Informative)

      by wandazulu (265281) on Tuesday April 06, 2010 @11:26AM (#31748628)

      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.

    • Re: (Score:3, Informative)

      by BitterOak (537666)

      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.

  • I feel your pain (Score:5, Insightful)

    by SleazyRidr (1563649) on Tuesday April 06, 2010 @11:17AM (#31748484)

    So, out of 173 possible patent infringements, 2 of them were supposedly pledged to not be enforced.

    I can see why you feel hard done by.

    • by c++0xFF (1758032) on Tuesday April 06, 2010 @11:24AM (#31748602)

      At least they listed the patents. That more than can be said about other companies (see also: Microsoft).

      • Re: (Score:2, Funny)

        by Anonymous Coward

        rule number 1 of slashdot: ANY thread can be twisted into a bash of microsoft. no exceptions.

        • by c++0xFF (1758032) on Tuesday April 06, 2010 @12:01PM (#31749176)

          That's partly because Microsoft makes it so easy, partly because it's fun, and partly because it's an easy way to get modded up!

        • by hduff (570443)

          rule number 1 of slashdot: ANY thread can be twisted into a bash of microsoft. no exceptions.

          Because Microsoft behaves they way they do.

          Let's restate "Rule number 1 of Slashdot": ANY mention of any fact can be used to illustrate Microsoft's evil behavior because they routinely behave in some evil manner.

          But if you point was "It's pointless to always bash Microsoft because they're always doing something worth bashing and they'll never change", then I agree. Good insight on your part.

      • If Microsoft ever gets to the point of threatening a suit over specific code, as opposed to vague "we think some large open source projects might be infringing some of our patents" noisemaking, they will list specific patents.

      • by weicco (645927)

        Well, I don't think even Microsoft could sue someone over patent infringement without listing the actual patents that were supposedly infringed. Maybe SCO could though ;)

    • by Jazz-Masta (240659) on Tuesday April 06, 2010 @11:27AM (#31748644)

      I'll bet IBM will apologize for accidentally listing the 2 patents that it swore it would not.

      This will leave the creator with 171 patent infringements and nothing to complain about to slashdot.

      • by Trepidity (597) <.delirium-slashdot. .at. .hackish.org.> on Tuesday April 06, 2010 @11:37AM (#31748824)

        They will probably do that anyway, because it needlessly complicates their case if they don't--- apart from the PR value, suing someone for patent infringement after you've openly pledged not to assert the patent against them will make enforcing the patent in court harder, since it can be argued to be an implied royalty-free license, or at least to trigger estoppel.

      • by mounthood (993037)

        I'll bet IBM will apologize for accidentally listing the 2 patents that it swore it would not.

        This will leave the creator with 171 patent infringements and nothing to complain about to slashdot.

        This will leave something Slashdot cares about: IBM is using patents to attack open source.

    • Yes, poster is an idiot. "This is not fair, it's ... it's... (totally legitimate) ... help.... OH, OH I FOUND IT! YOU FORGOT TO DOT THIS 'i'! LOOK, LOOK!" Okay. Put the dot on the 'i'. Okay, now where were we?
  • Spam? (Score:3, Insightful)

    by headkase (533448) on Tuesday April 06, 2010 @11:21AM (#31748550)
    Besides cost, how difficult would it be to spam the software patent system? It doesn't seem to matter what it is that you are actually patenting so you could go for something like a triply-linked list. The doubly-linked one is already patented [slashdot.org], never mind having existed since the 60s. Build up a communal "Open Source" patent list and at the very least if someone sued an open source project for patent infringement you'd have something to cross-license OR you could keep clogging the patent system and refusing closed source licenses while licensing the patents freely to open source projects. As long as the patents didn't find their way into any standards then you could avoid RAND (reasonable and non-discriminatory) forced licensing.
    • Obviousness (Score:4, Insightful)

      by headkase (533448) on Tuesday April 06, 2010 @11:32AM (#31748732)
      A corollary to this is that all the "obvious" patents that are being granted are already spam. Software patents are broken so I'm all for breaking them faster. A companies attitude towards software patents is determined by how innovative it is, young Apple: against, current Apple: for. I guess once you become big enough you can afford the shotgun technique of software patent application then you are for them.
  • ...ANY publicly traded company will do ANYTHING to ensure the continued success of the company because the management is entirely beholden to the stock holders. Google included (although for now a large amount of the stock is in the hands of people still involved in the day to day operations.)

    Some day you will be reading a story about Google 'embracing/extending/extinguishing' some new darling technology and you will realize that as soon as a company 'goes public' they lose their soul FOREVER. I'm not aga

    • by bb5ch39t (786551)
      Every company which is in business to make a profit can turn "evil". Especially when they become "owned" by people who care only about money, with no sense of ethics. Good is defined as "anything which increases my store of money". Bad is defined as "anything which decreases my store of money". IOW, most people are simply greedy and selfish.
      • Re: (Score:2, Troll)

        by kenp2002 (545495)

        Profit is inheritly evil by definition. You have charged someone more for a good or service then it is actually worth. You can easily run a not-for-profit company or even a non-profit company. Net Profit is inheritly evil by the definition of charging someone more then something is worth. In that regard how much is enough? It's never enough once you go past the real value.

        Widget A: Cost $30 dollars (labor, materials, overhead, etc.)

        Sell A for $30 and you are honest.
        Sell A for $40 and you are overcharging by

        • by J Story (30227)

          Profit is inheritly evil by definition.

          Utter nonsense. If you want a widget and are willing to pay $x for it, and if I am willing to provide it at that price, nothing else matters. I am no more a thief for making a gazillion percent profit on it than you are if I am selling the widget at a loss.

      • by Assmasher (456699)

        I think you're missing the point. They are not actually 'evil' by any stretch of the imagination, they have different priorities and responsibilities. As soon as a company goes 'public' their single most important driver is the need to enrich their shareholders - that is it. Anything else is purely 'gravy' and subject to the whims of the economy. I guarantee you that if someone were to challenge Google's market seriously Google would do WHATEVER IT COULD to prevent that from happening - whether 'ethical

    • Re: (Score:3, Interesting)

      by guruevi (827432)

      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 f

      • Re: (Score:3, Informative)

        by besalope (1186101)

        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: (Score:3, Interesting)

      by BigSlowTarget (325940)

      ...ANY publicly traded company will do ANYTHING to ensure the continued success of the company because the management is entirely beholden to the stock holders.

      Ha. You actually believe this? Sorry, senior managers can obscure financial results until well after they have collected their paycheck and left the company. Each level of a corporation is 'beholden' to the level above them that has hire/fire authority or who has influence with someone who does. At the top the Board of Directors cannot be fired by the stockholders (except under very extreme conditions) but who may be up for reelection at a general meeting once a year. In practice it is extremely unlikel

      • by Assmasher (456699)

        Believe it? Of course I believe it, and it's exactly how it is.

        Senior managers obscuring financial results until well after they have collected their paycheck and left...? You apparently do not understand how senior manager are paid in a public corporation - their rewards are DIRECTLY tied to the performance of the company's stock. This is why the SEC (who are at least good at this one aspect of their jobs) watch senior corporate members stock sales/purchases like a hawk. Salary is relatively nothing in

  • Call the DOJ (Score:5, Interesting)

    by lwriemen (763666) on Tuesday April 06, 2010 @11:25AM (#31748614)

    If IBM is using anti-competitive practices again, then maybe it's time for some external constraint. After all, Microsoft owes it's whole existence to the previous IBM anti-trust ruling, which led to Microsoft's monopoly and IBMs pledge of support for open source.

    • More or less what I was thinking. Didn't IBM lose an antitrust suit in the '80s for doing pretty much exactly the same thing?
    • I think the unfortunately difference here is that patents are legal monopolies. You're meant to use them anti-competitively and against the interests of the free market.

      Rich.

      • by lwriemen (763666)

        This is true, but if you were selectively making use of those patents, then your intent is open to judgment. There is also the question of enforceability of the patent; a large company can use a not obviously unenforceable patent as a bludgeon against a small company to force them out of business through a long, expensive litigation, which the large company wouldn't even pursue against another large company.

    • If IBM is using anti-competitive practices again, then maybe it's time for some external constraint.

      It's "anti-competitive" to let your competitors use your patented work? Is that you, RMS? Only on Slashdot...

      • by lwriemen (763666)

        I believe this comment was included in the posting, "IBM likes Open Source only as long as they don't have to compete with it.", and I didn't reference the patent statement specifically. ..., but like you said, "Only on Slashdot..."

      • Re: (Score:3, Interesting)

        by jellomizer (103300)

        No if that was RMS GPL 4.0 will go out soon where there are modifications where it is worded that it is OK for IBM to do this.

        Just like the "TiVoization" exception in the GPL 3.0 where it doesn't say IBM in particularly but words in a way the IBM and a few other companies can safely abide to.

  • by Anonymous Coward

    Sure, IBM will win because Roger doesn't have the means to fight that type of litigation...

    But Hercules is a hardware emulator, w/o IBM software. I didn't read the article (this is /. after all), but can they do anything about a re-implementation of an arch in software? I thought Intel vs Who-Knows, Maybe AMD left some legal baggage on that...

    Also, the letter was sent to the company that deals TurboHercules, and not the Hercules team itself. Something to consider as well.

    • by bb5ch39t (786551)
      Yes. Patents apply to some of the z architecture. You cannot make "something" (either hardware or software) which implement the patented architecture, regardless of how you implement it.
      • by Megane (129182)
        Patents cover a method of doing something, not the mere idea of doing something. A software implementation of a hardware feature is likely to use a different method to accomplish the same or similar result.
  • hmm (Score:3, Insightful)

    by nomadic (141991) <nomadicworld.gmail@com> on Tuesday April 06, 2010 @11:26AM (#31748632) Homepage
    ." I have to agree: from where I sit, IBM likes Open Source only as long as they don't have to compete with it."

    Not like you'd have any bias here or anything...
  • by Maxo-Texas (864189) on Tuesday April 06, 2010 @11:28AM (#31748676)

    They have shipped so many jobs overseas that they have stopped saying how many jobs they are shipping overseas. Like Microsoft (and others), they are probably very close to dropping below 50% american employees.

    Like all large corporations (including Google), they will do evil to make money. They just don't care any more. They are usually strong enough to put the government off indefinitely or are willing to pay a small fine to make a large profit.

    So they are open source friendly if it makes them money, and not if it loses them money.

    They are not your friend. As the VB developers found out a few years ago, they'll dump you with no upgrade path if it makes financial sense to do so.

    IBM does some good stuff (Eclipse) but they are not your friend.

    • So they are open source friendly if it makes them money, and not if it loses them money.

      Most business work that way, it's not something strange to "open source."

      They are not your friend. As the VB developers found out a few years ago, they'll dump you with no upgrade path if it makes financial sense to do so.

      Unfortunately, most businesses work that way.

      Like Microsoft (and others), they are probably very close to dropping below 50% american employees.

      Most businesses work that way. They try to get cheap labor. Until it bites them (if it does). Oh, but I guess in this post-modern post-racial international world, we should DEMAND that this business hire only American employees. I mean, that's what's fair. We should require this company to hire us! ...

      Frankly, I wish it made more financial sense for them to hire American employees. App

    • by mdm42 (244204) on Tuesday April 06, 2010 @12:01PM (#31749190) Homepage Journal

      They are usually strong enough to put the government off indefinitely or are willing to pay a small fine to make a large profit.

      ... or strong to enough to simply fuck off to another country with (*cough*) friendlier laws. I worked for several months in the Swiss canton of Zug. Very interesting place! Just wandering around the streets and looking at the discreet brass nameplates beside the doors of so many office buildings... "World Headquarters of XYZ Corp.", "World Headquarter of ABC Inc.", etc., etc. Those offices all contain exactly 3 people - an office manager, a secretary and a cleaning lady: because Swiss federal law requires that they employ at least 3 Swiss citizens. And that's it!

      Let's not get into the Extremely Senior Apartheid Sanctions Busters, the Oil Brokers, Arms Brokers and Zimbabwean Dictators's Benevolent Funds get located in Zug Canton. Can't think why...

  • Master the Mainframe (Score:5, Interesting)

    by Caffeine Molecule (784043) on Tuesday April 06, 2010 @11:35AM (#31748778) Homepage Journal
    What's _really_ interesting is that IBM instructs students competing the Master the Mainframe contest to download and use Hercules. At least they did in '06. http://www.ibm.com/developerworks/university/students/contests/mainframe/index.html [ibm.com]
    • by DarKnyht (671407) on Tuesday April 06, 2010 @11:45AM (#31748946)

      Couldn't be that a company as large as IBM might have multiple departments/divisions that don't really know what the other is doing. Nope just an evil corporation being hypercritical.

      • by bill_mcgonigle (4333) * on Tuesday April 06, 2010 @12:16PM (#31749410) Homepage Journal

        Couldn't be that a company as large as IBM might have multiple departments/divisions that don't really know what the other is doing.

        It's likely yet it absolves them of nothing - you live by the sword, you die by the sword.

        Corporations want to be people, remember? So, if they're being an ass, multiple-personality-disorder isn't a defense.

      • Couldn't be that a company as large as IBM might have multiple departments/divisions that don't really know what the other is doing. Nope just an evil corporation being hypercritical.

        It shouldn't matter at this point- the employees who posted the instructions are agents of IBM and should have cleared the recommendations with one of their legal departments.

        That being said, the key word is "should"

  • by Richard W.M. Jones (591125) <rich.annexia@org> on Tuesday April 06, 2010 @11:37AM (#31748834) Homepage

    Hercules is a nice bit of software, but it's very slow. (Supposedly something like 50x slower than the real thing). There's no way I can see that someone would be using Hercules to run their payroll software, and every reason to think that it's mainly used for interop testing. Which is the reason I occasionally use it, to test Red Hat's software on S/390{x]. Foot, meet gun.

    Rich.

    • by jimicus (737525)

      50x slower than the real thing as sold by IBM today? Or 50x slower than the real thing as sold by IBM 30 years ago?

      If the latter, then I don't see a problem. If the former, then I see a huge problem for IBM regarding existing customers who are quite happy with the performance of their 30 year old mainframe but can no longer justify paying the annual maintenance fees.

      (That being said, the developers of Hercules themselves admit that IBMs license for OS/390 is legally tied to IBM hardware, so it's hard to s

    • 50x is really not that much. Processor speeds double roughly ever 18 months. Six doublings is 64 times, so you're talking about a mainframe a decade old for equivalent speed. Compare Hercules on a large multi-processor Xeon system to a decade-old IBM mainframe and see which costs more to operate. If you're running software that ran on VM/360 (which a surprising number of companies are) then Hercules on something like a fast Pentium will be faster than the mainframe the software originally shipped on.

  • just because your Open Source doesn't somehow mean your friendly and cuddly.

    I would sue a competitor too. I am quite sure IBM would not be in such a hissy if you were not charging, hell they might never have noticed you. Your using twists in words to offer an product which may or not may violate the licensing terms a customer of IBM has over the use their hardware and software. I mean, reading your own pages it looks like your trying too hard to say your doing something while not doing something bad.

  • You know you're old when your brain considers processing the headline "IBM Breaks Open Source Patent Pledge" as "IBM breaks open a source patent pledge...I wonder what a "source patent pledge" is? Something good I hope!"
  • Well (Score:3, Insightful)

    by kenp2002 (545495) on Tuesday April 06, 2010 @11:53AM (#31749056) Homepage Journal

    "To think some uppity pesant thinks he can do as he pleases without our permission. The arrogance." - Excerpt from a trial in England from roughly the 12th century about some pesant butchering his chickens to feed his family and the land owner getting pissed because of some crap about getting 1/3rd the flock...(at least that's what I have scribbled in my old college notebook.)

    Freedom long died when the US stopped exporting stuff and tried exporting ideas. The fact is the only thing the US largely exports is Intellectual Property. Does the whole Copyright\Patent fiasco not point that out?

    Open Source is the largest economical threat to the US economy and it will only get worse. Wait till the corporations starts shipping everything offshore to extort more draconian Intellectual Property laws... oh wait...

    In the end it is a pyhric victory. The businesses are now being choked by their own intellectual property crusade (see patent troll) and now that the genie is out of the bottle it is a race to the bottom until, like the dark ages few have a monopoly on thought itself by restricting who can read what. It took Gutenberg's heresy to end the dark ages in many ways...

    IBM is trapped and now, and walks to a self-defeat that cannot be avoided. The 3rd world, which is soundly grounded in practical needs (food, water, shelter) cares little for the nonsense of imaginary property and simply see information as something free to share to get out of poverty. Those minds grow while those trapped in intellectual tyranny narrow.

    IBM, it's a lose-lose either way. Might as well try to be the biggest IP hoarder around.

    That's what it really is now, a crisis (intellectual) and hoarding mentality.

  • I don't think anything short of full access to the sum total of IBM mainframers' braindumps can catapult Hercules into successful competition.

    It's all that proprietary IBM equipment that makes the technology worthwhile - memory access, disks, when emulated lose most of their benefit.

    FWIW: http://openlpos.org/zDev/ [openlpos.org]

  • Are they asserting patents against the open source project itself, or against a company making money off selling support for the open source project? It seems like the latter - their beef seems to be with a company that is their direct competitor, not the actual open source project. It may even be that they are attacking some closed-source goodies the company provides its customers, at this point I don't really know.

    Can anyone with more direct info about the case shed some light on it?

  • by Kr3m3Puff (413047) <me@@@kitsonkelly...com> on Tuesday April 06, 2010 @12:23PM (#31749530) Homepage Journal

    If people actually read stuff before the commented, the world would be a lot better.

    The letter from IBM is directed at TurboHercules, a commercial enterprise making money off of IBM's IPR. Though we don't see the letter that prompted this, it can be guessed from the letter that TurboHercules said something along the lines "we don't think what we do, because we didn't realise IBM had IPR in this area." Which does seem rather rich, since this commercial enterprise is engaged.

    Second the letter doesn't say they are going to enforce these patents, but that they do have US patents in this area. Also they don't appear to be attacking the open source project, but a commercial entity that is making money off of IBM's products.

  • ...it's actually SCO, and not IBM, that owns the rights to the zSeries instruction set.
  • by jvillain (546827) on Tuesday April 06, 2010 @12:33PM (#31749686)

    I don't have the EULA to read but it smells like TurboHercules is trying to encourage IBMs customers to violate if not the word, at least the spirit of the EULA they agreed to. If that is the case then I am not surprised that IBM broke out every weapon they had and went to war. That's how those boys roll. It makes more sense to make it clear that they aren't going to win right off the bat than it does to go through a SCO style plague of law suites. The two patents are definitely an issue but I am very sure you will see them back down from those shortly. If that happens then until we have more info I don't see a reason to go to war with IBM.

  • I imagine it is quite possible that Hercules is the primary reason there is both S/390 linux kernel arch support and packages tested and running for the platform, and GNU/Linux support on these mainframes is something that IBM has also made real money selling.

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