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| Why I Believe IBM is Free to Sue The Pants Off TurboHercules - Updated 12Xs |
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Thursday, April 08 2010 @ 04:42 PM EDT
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It seems Groklaw will have to open a new category, answering Florian Mueller
FUD.
As you know he recently claimed that IBM had violated its public pledge not to sue Linux for patent infringement. I think he's mistaken. IBM,
when it announced the patent pledge, specifically reserved the right to defend itself from attack:"IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves," said Nick Donofrio, senior vice president for technology and manufacturing, drawing applause in a speech at the LinuxWorld Conference and Expo. And in the TurboHercules story, who is suing whom? It's not IBM, folks. The complaint against IBM was filed with the EU Commission by TurboHercules. At that exact moment, did they not take themselves out from under the patent pledge's safety umbrella? So be it.
Meanwhile, IBM's Dan Frye has reiterated its patent pledge in an email published on the Linux Foundation Executive Director Jim Zemlin's blog. IBM hasn't sued anyone. TurboHercules is filing complaints, to which IBM is responding.
Here's the text: Dear Jim:
There’s been recent interest in IBM’s “500 patent” pledge made in 2005 and how it applies today. It’s always important to get the facts, and the words of the pledge itself [PDF] are the facts we need.
“The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program’s source code without payment of fees or royalties. All licenses certified by opensource.org and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge.
“IBM hereby commits not to assert any of the 500 U.S. patents listed below, as well as all counterparts of these patents issued in other countries, against the development, use or distribution of Open Source Software.”
IBM stands by this 2005 Non-Assertion Pledge today as strongly as it did then. IBM will not sue for the infringement of any of those 500 patents by any Open Source Software.
Thanks.
Daniel Frye
VP, Open Systems Development
IBM Linux Technology Center - Personally, I think they absolutely are free from the pledge with respect to TurboHercules. TurboHercules jumped on Florian's claims, of course, as did the media, such as the Wall St. Journal: Roger Bowler, TurboHercules’s co-founder, says that neither TurboHercules’s offerings, nor the Hercules emulator, infringes IBM’s intellectual property. Regardless, he calls IBM’s claims a violation of the 2005 pledge. “The pledge goes on to define Open Source Software as software certified by the Open Source Initiative (OSI). The Hercules emulator is an OSI-certified open source project,” he says in a statement. “Thus, IBM’s patent threats are indeed a violation of its 2005 pledge. That IBM is now claiming that IBM alone gets to decide what open source efforts can and cannot benefit from that pledge speaks volumes about its underlying motivations.“ Puh lease.
That link also explains that TurboHercules is the company, and that it offers support and services associated with Hercules, the software. IBM now says, as
quoted by ZDNet's Tom Espiner, that it questions if the patent pledge covers TurboHercules in any case: "In 2005, when IBM announced open access to 500 patents that we own, we said the pledge is applicable to qualified open-source individuals or companies," said an IBM spokesperson. "We have serious questions about whether TurboHercules qualifies. TurboHercules is a member of organisations founded and funded by IBM competitors such as Microsoft to attack the mainframe. We have doubts about TurboHercules' motivations." For sure. And now that they've launched a legal attack against IBM, what stands in IBM's way? I'm not a lawyer, but I can read.
You know what I think the real problem is here? OSI has a list of licenses that no one should have on any approved list, in my view, including some from Microsoft, and I don't think they plan to fix that any time soon. But they should. I said a long time ago that I expected Microsoft and/or its proxies to come up with some devilishly clever way to take advantage of that list and specifically the IBM patent pledge. When IBM first announced the patent pledge, I mentioned that worry, but IBM paid no attention to li'l ole me. Now the chickens are flying home to try to roost, fanned on by the Microsoft block of evildoers, as I like to call them, Shadow-like. Who knows what evil lurks in the hearts of men. But here's what I do believe: Microsoft really does want to damage Linux, folks. Did you think if you were nice to them, they'd reciprocate? Hahahahaha. Suckahs. TurboHercules is listed as being under the Q Public License version 1.0, which is on the OSI list of approved Open Source licenses, although renamed the Qt Public License.
For context, here's what the FSF says is the problem with the Q Public License: This is a non-copyleft free software license which is incompatible with the GNU GPL. It also causes major practical inconvenience, because modified sources can only be distributed as patches.
We recommend that you avoid using the QPL for anything that you write, and use QPL-covered software packages only when absolutely necessary. However, this avoidance no longer applies to Qt itself, since Qt is now also released under the GNU GPL.
Since the QPL is incompatible with the GNU GPL, you cannot take a GPL-covered program and QPL-covered program and link them together, no matter how.
However, if you have written a program that uses QPL-covered library (called FOO), and you want to release your program under the GNU GPL, you can easily do that. You can resolve the conflict for your program by adding a notice like this to it:
As a special exception, you have permission to link this program
with the FOO library and distribute executables, as long as you
follow the requirements of the GNU GPL in regard to all of the
software in the executable aside from FOO.
You can do this, legally, if you are the copyright holder for the program. Add it in the source files, after the notice that says the program is covered by the GNU GPL.
So the TurboHercules project chose a license that is incompatible with the GPL. A coincidence? See what I mean about OSI? I reiterate that the OSI list needs to be pruned a bit to exclude some of the licenses on their approved list. Take care of the toy train problem while you are at it, will you? But in any case, even using this list and going strictly by IBM's public pledge, IBM is free to defend itself.
Here's what TurboHercules says they want: We are not asking that IBM be subjected to punishing fines or anything like that. We simply want IBM to agree to allow legitimate paying customers of its z/OS mainframe operating system to deploy that software on the hardware platforms of their choice – including, should they so choose, on low-cost servers using Intel or AMD microprocessors and Hercules. Shades of Psystar. That's "all" they wanted from Apple, remember? Needless to say, Groklaw will try to cover this case going forward.
Update: The Register's Timothy Prickett Morgan
picked up on the story behind this story last fall:
TurboHercules is co-headquartered in Paris, France, where Bowler moved after he left the United Kingdom, and in Seattle, Washington, in close proximity to the one big software company that has in the past taken a shining to anything that gave Big Blue some grief, particularly with mainframes. (Yes, we mean Microsoft). Update 2: The letter is
here, and I'll show it to you as text. As you will see the list of patents was illustrative, because evidently there had been a conversation earlier in which TurboHercules had expressed lack of knowledge of any possible infringement. It's not a threat letter. Trust me, this is not how a threat letter looks:
IBM
[address]
March 11, 2010
Mr. Roger Bowler
President
TurboHercules SAS
[address]
Re: TurboHercules
Dear Mr. Bowler
We have received and considered your letter of November 18, 2009. The comments you provide do not lead IBM to reconsider IBM's position as set out in my letter of November 4, 2009. Your suggestion that TurboHercules was unaware that IBM has intellectual property rights in this area is surprising. IBM has spent many years and many billions of dollars developing its z-architecture and technology, and is widely known to have many intellectual property rights in this area. IBM's litigation against PSI for, among other things, patent infringement and trade secret misappropriation is a matter of public record, and well known in the industry. According to your own statements, your product emulates significant portions of IBM's proprietary instruction set architecture and IBM has many patents that would, therefore, be infringed. For illustration, I enclose with this letter a non-exhaustive list of IBM U.S. patents that protect innovative elements of IBM's mainframe architecture and that IBM believes will be infringed by an emulator covering those elements. For your information, the enclosed list also includes a non-exhaustive list of relevant IBM U.S. published patent applications. Apart from concerns about unauthorized use of proprietary IBM information by one or more TurboHercules contributors, IBM therefore has substantial concerns about infringement of patented IBM technology. In these circumstances, I trust you will understand that IBM cannot agree to your request to reconsider its position.
Sincerely, Mark S. Anzani VP and Chief Technology Officer, IBM System z So, why doesn't Florian and the folks he is lobbying for release the earlier letter from Bowler, in which he apparently expressed that he was unaware that "IBM has intellectual property rights in this area"? This letter, then is addressing that expression and responding to it with incredulity. The list is to show Bowler that, indeed, IBM has rights that it believes TurboHercules would infringe if it goes forward, and I see that IBM is saying that the infringement is not just patents. That's how I understand this sentence: "Apart from concerns about unauthorized use of proprietary IBM information by one or more TurboHercules contributors, IBM therefore has substantial concerns about infringement of patented IBM technology." So patents are not the whole story, from IBM's point of view. The letter, then, was a refusal letter, letting Bowler know that IBM's answer to what was evidently a request that IBM alter its position was no, it would not. And it's essentially implying that Bowler couldn't really be unaware of IBM's rights, that IBM simply did not believe they didn't know, but if they didn't, here's a list of patents, and by the way that is not the only issue IBM had with their plan, which IBM was not agreeable to. Now go back and read again what Florian wrote. Seriously. Update 3: Jay Maynard, Project manager for the Hercules open-source emulator for IBM mainframe systems, has now taken a membership in Groklaw and has posted why he dislikes the GPL and refuses to work with it: I've opposed the GPL for more than two decades. My fundamental objection to it is that it is an attempt by one programmer to tell another what he may do with his own work. Cluebat: that is exactly what TurboHercules is doing to IBM, trying to tell IBM what it MUST do with its own code. Some have questioned the Register's report that there is a TH Seattle presence. Groklaw's bugstomper, however, provides evidence in this comment, and confirmed by Maynard here. And for the community, do I really need to say anything more? He said it all right there. Update 4: I found some examples of real cease and desist letters for you, and so you will understand how courts view what is and isn't a cease and desist letter leading to apprehension of litigation, here's an article that explains that topic on Findlaw, "Patent Law – "Reasonable Apprehension" After Receipt of a Cease-and-Desist Letter – Grounds for Declaratory Judgment Action". It's more interesting than the title might make you think, so take a look and you'll see even more clearly that this letter is no such thing, as I read it, anyway.
Update 5: Thomas Vinje speaks out about Florian:
Thomas Vinje, the founder of the European Committee for Interoperable Systems (ECIS), which ranks IBM among its members, said that "Microsoft lies behind the antitrust complaints against IBM." Mueller can in turn be linked to Microsoft, he said, because he joined forces with Microsoft to oppose the Oracle-Sun deal, which was approved after an in-depth investigation by the Commission that ended in December. Vinje acted for Oracle in that case.
"They have learned how to play the game in Europe," Vinje said of Microsoft, which itself has been the target of antitrust regulators there. Microsoft has invested huge amounts in attacking its rivals, including Oracle and Google as well as IBM, in Brussels in recent years, he said. For any who are new, here is an interview Groklaw's Sean Daly conducted with Mr. Vinje in 2007. Update 6: Steven J. Vaughan-Nichols has a statement from IBM's Inna Kuznetsova: As Inna Kuznetsova, IBM's VP, Marketing & Sales Enablement for Systems Software and former director of Linux Strategy, told me, "We stand by our pledge of 500 patents to the open-source community. The pledge is applicable to any individual, community or company working on or using software that meets the OSI definition of open source software - now or in future. The letter in question was not a legal document but a part of ongoing dialog between IBM and TurboHercules. Intentionally taking things out of context to create FUD and throw doubt on IBM's commitment to open source is shameful and facts-twisting." Another good point. The letter didn't come from Legal, which a cease and desist would have.
Update 7: The letters between TurboHercules' President Roger Bowler and Mike Anzani, VP and Chief Technology Officer, IBM System z are here. If you take a look at the letter [PDF] from TurboHercules to Anzani that he was responding to, you will find this paragraph: We also were surprised at the suggestion that our TurboHercules product -- which merely relies on Hercules open source emulation software to run z/OS on Intel-based servers -- might infringe certain IBM intellectual property. Hercules has been widely used in the development community, as well as within IBM itself, over the past ten years. Prior to receiving your letter, we were not aware of any claim that Hercules might infringe IBM's intellectual property. If you believe that the Hercules open source project infringes any IBM intellectual property, please identify it so that we can investigate that claim. So it was actually TurboHercules who asked for the list that IBM sent. Once IBM sent it, they accused IBM of threatening them. Update 8: Here's why IBM may view TurboHercules as not covered by its patent pledge. Hercules is an open source product, but TurboHercules is a business on top of that product, but not exclusively that product. For example, here's how TurboHercules describes its "turnkey solution", its hardware/software product/service:
System Configuration
The local and remote TurboHercules systems consist of:
1. A HP Proliant DL380G6 server equipped with:
a. 2 Intel Quad Core Processors
b. 32GB of main memory
c. 10TB of RAID 5 based disk storage
2. HP R5500 UPS system equipped with 2 extended run modules
The following options are available to tailor each system to the mainframe they will be supporting:
1. Memory – up to 192GB per server
2. Storage – up to 192TB per server
The software supplied is:
1. Base operating system – Windows Server 2008 R2 Enterprise Edition
2. TurboHercules application – a platform-optimized binary of the Hercules emulator
3. Local 3270 emulator package (for use with IBM supplied operating systems)
4. Terminal and X-Windows emulators (for use with z/Linux)
It is expected that the user will supply properly licensed copies of all guest operating systems and applications that will be used during any disaster recovery/business continuity testing or real outage situation.
Service and Support
First point of contact for all issues will be through the TurboHercules support organization. If it can be determined that the issue relates to the hardware of the system, the TurboHercules support group will bring the HP support team into the conversation. Otherwise, all software issues will he handled directly by the TurboHercules support team. So the base operating system is Windows. So, you tell me. Is TurboHercules an "Open Source company"? And what, exactly, is HP's role in all this? But what, you may ask, do they provide if you only want the software? Then are they an Open Source company? Let's look:
Software Requirements
The software only package consists of the TurboHercules package itself. It is up to the customer to supply the underlying host operating system and any other utilities necessary to invoke and control the operation of the TurboHercules package. The minimums are:
1. Host operating system – Windows Server 2008 R2 Enterprise Edition or DataCenter Edition. Earlier versions (Windows Server 2008 and earlier) will not correctly support the TurboHercules binary.
2. Some form of 3270 emulation to support IBM mainframe operating systems such as z/OS, etc. We recommend Vista 3270 from Tom Brennan Software as one package that is known to work well not only with TurboHercules but as a 3270 emulator in general.
3. If you are planning to run some version of z/Linux on TurboHercules you will need a terminal emulator (PuTTY) and some form of X-Window emulation. One suggested solution is the XMing package available through SourceForge or the original XMing project website.
Update 9: And now that we have all the letters, please notice that the company's press release conflicts with the record of what happened. Here's what TurboHercules told the world: Not only did IBM deny our request, but it now suddenly claims, after ten years, that the Hercules open-source emulator violates IBM intellectual property that it has refused to identify. Look at the date of that press release. They filed with the EU Commission on the date of the press release, March 23. Now look at the date of the list of patents that TH specifically asked for and IBM sent them. March 11. So is it true that IBM refused to identify the intellectual property that it believes would be violated?
How could that happen that TurboHercules would make such a statement? You tell me. Was it true? You have eyes. At the time, the letters had not been made public. So the funny part is, by Florian launching the FUD campaign by releasing the letter, he revealed what now looks like a deliberate and rather cynical smear campaign against IBM, hoping to cause the FOSS community to turn against IBM. I would hope TurboHercules would now correct its statement in that press release, at a minimum. Update 10: Florian instead "clarifies" by stressing again that he thinks IBM is a big meanie. He quotes a bit of the IBM patent pledge, but he ignores a significant phrase as to what IBM said it would cover: Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program's source code without payment of fees or royalties. Now let's take a look at the first letter that TurboHercules sent to IBM, or at least the first one in the four that have been made available. Notice that the letter writer did NOT think that what they intended to do was covered by the patent pledge, because instead of availing itself of that pledge and just going forward, here is what TurboHercules proposed to IBM and asked for:TurboHercules seeks to establish a commercial business that offers customers a choice in mainframe-compatible platforms, while contributing to the long-term health of the IBM mainframe ecosystem. Because the lasting success of the IBM mainframe platform is the prerequisite for our own success, it is very important to us to secure IBM's approval for our business model.
Sepecifically, we would like you to consider making available to your mainframe customers a license for IBM operating systems on the TurboHercules platform. TurboHercules S.A.S., as the commercial entity, would provide support for a complete turnkey system based on these licenses. The pricing, conditions and limitations of that license would be at the sole discretion of IBM on reasonable and fair terms. We propose to focus on secondary workloads such as training, demonstrations, pre- and post-processing, data preparation, disaster recovery, archiving, development and testing. See the mismatch for yourself? I read that as saying that TH wanted IBM to come up with a license, for which they would be paid. That alone takes the offering outside of the pledge, in that the pledge is only for software that does not require royalties or fees under the license. The letter, in fact, goes on to propose a secondary type of license, academic licenses, that "would allow a wider range of schools and universities to teach mainframe concepts and skills using the TurboHercules platform." But what TH wanted was IBM's code. They wanted to make money using IBM's code. IBM said no. So they file a complaint with the EU Commission to try to force them to say yes. So did they think they could rely on IBM's patent pledge? If so, why ask for a license? And when IBM said no, did they threaten Hercules? Or TurboHercules's new business model? See the difference? Did they even mention the pledge? Did their proposal of commercial licensing match the requirements of the IBM patent pledge? So which party was it that was proposing a business based on commercial licenses, in direct contradiction of the terms of the patent pledge?
Update 11: Some try to explain the fact that the TH press release claimed IBM did not identify its intellectual property prior to TH filing its complaint with the EU Commission by pointing out that letters from the US to Europe can take a long time, and that the TH website says the Anzani letter was not received prior to the filing.
Is that true? Let's see what TH's Bowler says happened: IBM complains in its press statement in response to our antitrust filing that we “seek to use governmental intervention” to advance our interests. However, we acted only as a matter of last resort. Indeed, just a few days before we filed the complaint with the European Commission, Mr. Mark Anzani, the CTO of IBM’s mainframe division, wrote to me to allege that the open source Hercules emulator may have violated no fewer than 173 of IBM’s patents or patent applications. As you can see, he openly states that they had the list of patents prior to the press release, which was sent out the same day that TurboHercules filed its complaint. That makes the press release actionable in the US anyway, I would think. Or in simpler and more human terms, it was a smear against IBM, and while there may be some explanation, until we hear one, it looks very, very bad.
Update 12: Take a look at this part of the QPL:
3. You may make modifications to the Software and distribute your modifications, in a form that is separate from the Software, such as patches. The following restrictions apply to modifications:
a. Modifications must not alter or remove any copyright notices in the Software.
b. When modifications to the Software are released under this license, a non-exclusive royalty-free right is granted to the initial developer of the Software to distribute your modification in future versions of the Software provided such versions remain available under these terms in addition to any other license(s) of the initial developer.
Talk about your back door to proprietary use of an Open Source project. Now maybe that is what the project wants, and they get to choose the license. But can you see what IBM might be noticing the future holds if it agreed to TurboHercules's request?
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| Authored by: entre on Thursday, April 08 2010 @ 05:00 PM EDT |
| If Needed... [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 05:02 PM EDT |
I have only just started paying attention to this particular circus. Who, pray
tell, is Florian Mueller? From PJ's statement, I presume that he is something
of a repeat FUDster, but... other than the IBM/Hercules thing, what has he
done?
MSS2[ Reply to This | # ]
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| Authored by: UncleJosh on Thursday, April 08 2010 @ 05:07 PM EDT |
IBM does not seem to care ... What Roger Bowler is complaining about is that IBM will not license its
z/OS software on TurboHercules ...
Something very similar happened to Fundamental Software,
which had in the past licensed IBM's patents ...
So this is
news?
Disclaimer: I am not an unbiased observer.[ Reply to This | # ]
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- As long as you run Linux on Hercules - Authored by: wvhillbilly on Thursday, April 08 2010 @ 11:19 PM EDT
- As long as you run Linux on Hercules - Authored by: alisonken1 on Friday, April 09 2010 @ 12:45 AM EDT
- That's z/OS - Authored by: mvs_tomm on Friday, April 09 2010 @ 12:04 PM EDT
- That's z/OS - Authored by: complex_number on Friday, April 09 2010 @ 12:24 PM EDT
- Wow - Authored by: crs17 on Friday, April 09 2010 @ 03:31 PM EDT
- Wow - Authored by: mvs_tomm on Friday, April 09 2010 @ 05:04 PM EDT
- Wow - Authored by: Waterman on Friday, April 09 2010 @ 08:55 PM EDT
- Minor point - Authored by: proceng on Saturday, April 10 2010 @ 10:49 AM EDT
- Minor point - Authored by: jmaynard on Saturday, April 10 2010 @ 11:04 AM EDT
- Minor point - Authored by: Anonymous on Monday, April 12 2010 @ 01:59 AM EDT
- Wow - Authored by: crs17 on Saturday, April 10 2010 @ 04:59 PM EDT
- Wow - Authored by: crs17 on Saturday, April 10 2010 @ 05:31 PM EDT
- Wow - Authored by: Anonymous on Saturday, April 10 2010 @ 09:20 PM EDT
- Wow - Authored by: mvs_tomm on Monday, April 12 2010 @ 08:40 AM EDT
- Wow - Authored by: mvs_tomm on Monday, April 12 2010 @ 08:35 AM EDT
- Wow - Authored by: darkonc on Sunday, April 11 2010 @ 10:45 AM EDT
- Wow - Authored by: mvs_tomm on Monday, April 12 2010 @ 08:50 AM EDT
- Wow - Authored by: dcm on Friday, April 09 2010 @ 09:50 PM EDT
- Wow - Authored by: dcm on Friday, April 09 2010 @ 10:16 PM EDT
- Wow - Authored by: crs17 on Saturday, April 10 2010 @ 12:12 PM EDT
- Wow - Authored by: mvs_tomm on Monday, April 12 2010 @ 09:24 AM EDT
- Yeah. - Authored by: OrlandoNative on Monday, April 12 2010 @ 01:12 PM EDT
- That's z/OS - Authored by: vonbrand on Friday, April 09 2010 @ 04:14 PM EDT
- Actually, - Authored by: OrlandoNative on Monday, April 12 2010 @ 01:09 PM EDT
- It's news because of PJ's sudden pro software patents - Authored by: Anonymous on Friday, April 09 2010 @ 03:40 AM EDT
- Wishing doesn't make software patents not exist. - Authored by: Anonymous on Friday, April 09 2010 @ 04:22 AM EDT
- Software patents do not exist in the EU - Authored by: hardmath on Friday, April 09 2010 @ 11:40 AM EDT
- SCOTUS - Authored by: Anonymous on Friday, April 09 2010 @ 12:19 PM EDT
- SCOTUS - Authored by: hardmath on Friday, April 09 2010 @ 12:52 PM EDT
- SCOTUS - Authored by: Anonymous on Friday, April 09 2010 @ 03:20 PM EDT
- Nah - Authored by: Anonymous on Saturday, April 10 2010 @ 03:20 PM EDT
- SCOTUS - Authored by: txwikinger on Monday, April 12 2010 @ 01:50 PM EDT
- It's news because of PJ's sudden pro software patents - Authored by: stegu on Friday, April 09 2010 @ 07:27 AM EDT
- It's news because of PJ's sudden pro software patents - Authored by: PJ on Friday, April 09 2010 @ 11:48 AM EDT
- It's news because of PJ's sudden pro software patents - Authored by: wvhillbilly on Friday, April 09 2010 @ 12:55 PM EDT
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| Authored by: Anonymous on Thursday, April 08 2010 @ 05:08 PM EDT |
Yes, that occured to me too, when I first read about this
about a week
ago.
bjd
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- Shades of Psystar - Authored by: Anonymous on Thursday, April 08 2010 @ 05:28 PM EDT
- Shades of Psystar ... and Amdahl ? - Authored by: Anonymous on Thursday, April 08 2010 @ 05:50 PM EDT
- same issue, groklaw was wrong then too. - Authored by: Anonymous on Thursday, April 08 2010 @ 06:33 PM EDT
- same issue, groklaw was wrong then too. - Authored by: Anonymous on Thursday, April 08 2010 @ 06:45 PM EDT
- same issue, groklaw was wrong then too. - Authored by: PJ on Thursday, April 08 2010 @ 06:51 PM EDT
- I think there's arguments on both sides - Authored by: xtifr on Thursday, April 08 2010 @ 07:04 PM EDT
- same issue, groklaw was wrong then too. - Authored by: Anonymous on Thursday, April 08 2010 @ 07:25 PM EDT
- Not the same thing at all - Authored by: Anonymous on Thursday, April 08 2010 @ 10:57 PM EDT
- same issue, groklaw was wrong then too. - Authored by: Anonymous on Thursday, April 08 2010 @ 11:51 PM EDT
- And your legal qualifications are ....? - Authored by: Anonymous on Friday, April 09 2010 @ 03:52 AM EDT
- Lexmark is a totally different issue - Authored by: Anonymous on Friday, April 09 2010 @ 10:54 AM EDT
- z/OS is licensed to run on a specific processor. It is not sold. - Authored by: mvs_tomm on Friday, April 09 2010 @ 03:06 PM EDT
- same issue, groklaw was right then too. - Authored by: PJ on Friday, April 09 2010 @ 04:30 PM EDT
- Confused issues - Authored by: Anonymous on Saturday, April 10 2010 @ 09:07 AM EDT
- Nope - Authored by: Anonymous on Saturday, April 10 2010 @ 08:13 PM EDT
- I think this is basically the reverse of the Tivo issue... - Authored by: OrlandoNative on Monday, April 12 2010 @ 04:16 PM EDT
- Could someone please explain... Isn't IBM under a DoJ agreement from the 80's ... - Authored by: Anonymous on Thursday, April 08 2010 @ 07:02 PM EDT
- Shades of Psystar? How about Bnetd? - Authored by: Hop on Friday, April 09 2010 @ 02:19 PM EDT
- Shades of Psystar - Authored by: wvhillbilly on Saturday, April 10 2010 @ 12:52 AM EDT
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| Authored by: lnuss on Thursday, April 08 2010 @ 05:12 PM EDT |
"You know what I think the real problem is here? OSI has a list of licenses
that no one should have on any approved list, in my view, including some from
Microsoft, and I don't think they plan to fix that any time soon."
Keep in mind that IBM didn't say just ANY OSI approved license. They said:
"All licenses certified by opensource.org and listed on their website as of
01/11/2005 are Open Source Software licenses for the purpose of this
pledge."
So when did this "Q" license appear on the "approved" list
on the website? Was it AFTER 1/11/2005? Likely.
In any case, you're right- they reserved the right to defend themselves.
---
Larry N.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 05:23 PM EDT |
So... all they wanted was to be able to use hardware of their choice with
software they paid for? Forgive me, but I don't believe that should be an
allowable restriction.
Let me ask you this: what's the difference
between that an Microsoft's platform restriction clause in their pseudo-FOSS
licenses? Or are we going to say that Microsoft's licenses are genuine FOSS
now?
And the whole "shades of Psystar" thing... sorry. I don't buy the
alleged conspiracy thing. All you've proven is that several different people
hate EULAs. Yes, I know you've been hunted by Darl (in an almost literal sense
with the investigators he hired), but it distorted your perspective more than
you seem to realize. The GPL is not a EULA. Attacking EULAs for their onerous
restrictions is NOT an attack on the GPL. I personally hate EULAs and love the
GPL.
This is NOT
some anti-GPL attitude. I think you underestimate how many people genuinely
hate and disrespect EULAs, while loving the GPL for creating freedom. And yet
you see conspiracy everywhere... but never any proof. Seriously, you had no
trouble finding all the dirt on SCO, but you haven't found any financial ties,
any personal ties, or any indication that these people don't really feel this
way. I feel that it's irresponsible to allege some kind of conspiracy unless
you have better evidence than this.
You know how it felt to be unjustly accused
of being in cahoots with IBM based on a lot of conjecture and a little
circumstantial evidence, right? We know you're not. I'm not saying you are.
But if someone wanted to make that case, the mere fact that a talented paralegal
just happened to pop up out of nowhere to support IBM (and FOSS's) side of the
case is a LOT better circumstantial evidence of "conspiracy" than anything and
everything you've been able to put together on this alleged Psystar
conspiracy.
And we know that that was wrong. So what can you give us that's
more convincing evidence of some kind of legal attack on the GPL by Psystar
& co.? So far, all I've got is evidence that a bunch of people who hate
EULAs. I'm one of them (though I've never been in any IP lawsuits whatsoever).[ Reply to This | # ]
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- Read a bit closer, please... - Authored by: The_Pirate on Thursday, April 08 2010 @ 05:36 PM EDT
- Choices - Authored by: Anonymous on Thursday, April 08 2010 @ 05:45 PM EDT
- Be careful before jumping to conclusions - Authored by: Tilendor on Thursday, April 08 2010 @ 05:48 PM EDT
- Microsoft couldn't have said it better themselves - Authored by: Anonymous on Friday, April 09 2010 @ 01:00 AM EDT
- You completely miss the point - Authored by: Anonymous on Friday, April 09 2010 @ 04:03 AM EDT
- You're wrong, PJ, and have given no proof. - Authored by: Anonymous on Friday, April 09 2010 @ 10:58 AM EDT
- You are not aware of z software costs. - Authored by: bb5ch39t on Friday, April 09 2010 @ 11:26 AM EDT
- Quick question: - Authored by: Anonymous on Monday, April 12 2010 @ 07:59 AM EDT
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| Authored by: tknarr on Thursday, April 08 2010 @ 05:27 PM EDT |
Roger Bowler claims that IBM threatened TH before TH filed it's
complaint. What I figure happened is this. AIUI z/OS is licensed only to run
on IBM hardware. The license allows for an installation to be run on another
machine for disaster-recovery purposes, but I don't think "other machine"
extends as far as "non-IBM hardware". Hercules was being used for development
and testing purposes, and IBM had no problem looking the other way about just
that. But TurboHercules started talking to IBM customers about using TH's
software to run z/OS in a disaster-recovery role. That goes beyond just
development and testing, you're now talking about running z/OS in a primary role
on non-IBM hardware when the main machine suffers an outage. That's not just a
violation of the license, that's a violation that impact's IBM's sales. They're
not going to look the other way about that. So IBM went to TH and said "Look, if
you don't stop this we're going to have to come after you for inducing our
customers to violate their license agreements.". Which is IMO reasonable, it's
IBM's software, they get to choose their license terms and nobody else gets the
right to interfere. TH responded by filing their anti-trust complaint. And right
there's where I put the line between reasonable and unreasonable. If TH really
thought IBM was in the wrong, they'd've filed their complaint when they started
their business and not waited until IBM acted. IMO all the anti-trust complaint
is is an attempt to continue basing a business on getting IBM customers to
violate their license agreements, knowing that IBM won't want to start cutting
their own customers off and hoping that the complaint will make IBM back off of
going after TH for tortious interference.
I'd note that Roger even admits
that TH's goal is to make IBM change their license terms to allow running z/OS
on non-IBM hardware. That's IMO all well and good, but the way to go about it is
to make your case to IBM and, if you feel it neccesary, the EU anti-trust
officials, not by going to IBM's customers and going "Hey, we can save
you a few bucks if you'll just break your contract with IBM.". [ Reply to This | # ]
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| Authored by: bugstomper on Thursday, April 08 2010 @ 05:40 PM EDT |
Please stay off topic and use clickies where appropriate
[ Reply to This | # ]
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- Now the Chinese government comprehensively hacks into top Indian government defense secrets. - Authored by: Anonymous on Thursday, April 08 2010 @ 06:22 PM EDT
- Ubersoft cartoon SCO - Authored by: Anonymous on Thursday, April 08 2010 @ 09:50 PM EDT
- Off Topic threads - Authored by: Tufty on Thursday, April 08 2010 @ 11:59 PM EDT
- Off Topic threads - Authored by: PJ on Friday, April 09 2010 @ 02:13 AM EDT
- Is it trolls? - Authored by: jsoulejr on Friday, April 09 2010 @ 10:44 AM EDT
- Yeah... - Authored by: Anonymous on Saturday, April 10 2010 @ 02:39 PM EDT
- Shame on you..... - Authored by: Anonymous on Friday, April 09 2010 @ 01:33 PM EDT
- POV :) - Authored by: Tufty on Friday, April 09 2010 @ 03:38 PM EDT
- Adobe issues workaround for "/Launch" attack - Authored by: Anonymous on Friday, April 09 2010 @ 03:32 AM EDT
- you use adobe? - Authored by: Anonymous on Friday, April 09 2010 @ 10:32 AM EDT
- Off Topic but from PJ's article: The Shadow - Authored by: msfisher on Friday, April 09 2010 @ 08:44 AM EDT
- Supreme Court Justice Stevens to retire - Authored by: SpaceLifeForm on Friday, April 09 2010 @ 11:10 AM EDT
- Linux Outlaws on Crunchbang Linux - Authored by: jplatt39 on Friday, April 09 2010 @ 11:56 AM EDT
- Real Estate Patent Troll Emerges - Authored by: jmcsp on Friday, April 09 2010 @ 01:52 PM EDT
- All your Bluetooth Are Belong To Us - Authored by: Anonymous on Friday, April 09 2010 @ 03:53 PM EDT
- Microsoft to support OOXML by Offiice 15 LOL. - Authored by: Anonymous on Friday, April 09 2010 @ 05:10 PM EDT
- A GPL question - Authored by: Anonymous on Saturday, April 10 2010 @ 02:34 AM EDT
- Its Getting Bizzare in the Bazaar - Authored by: Anonymous on Saturday, April 10 2010 @ 11:12 AM EDT
- WSJ: DOJ investigates everybody (except Microsoft) - Authored by: Aladdin Sane on Sunday, April 11 2010 @ 06:31 AM EDT
- 20 years of oppostion to the GPL - Authored by: jbb on Sunday, April 11 2010 @ 09:34 AM EDT
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| Authored by: bugstomper on Thursday, April 08 2010 @ 05:41 PM EDT |
Pick your News here. Please include the News Pick title in your title for easy
scanning.[ Reply to This | # ]
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| Authored by: xtifr on Thursday, April 08 2010 @ 05:45 PM EDT |
Looking at the text of the patent pledge itself, from the PDF PJ linked, I
see: IBM reserves the right to terminate this patent pledge and
commitment only with regard to any party who files a lawsuit asserting
patents or other intellectual property rights against Open Source
Software. Emphasis mine.
Note first that it specifies
filing a lawsuit as a necessary step for losing the pledge protection. I don't
think that complaining to the EU commission counts, though I could be wrong
about that. But in any case, IBM hasn't said that TH has lost the pledge
protection yet. Still, this could prove interesting if this goes much
further.
The more interesting point, though, is that it doesn't say
anything about IBM "defend[ing] [them]selves". It defends "Open Source
Software", not IBM! The EU complaint was about IBM proprietary software, not
OSS, So if IBM did assert the two patents in question in this case,
rather than merely listing them, I think they might well be violating their
pledge. I certainly hope it won't get that far.
---
Do not meddle in
the affairs of Wizards, for it makes them soggy and hard to light. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 05:58 PM EDT |
IBM identifies the legally binding pledge as:
The pledge
will benefit any Open Source Software. Open Source Software is any computer
software program whose source code is published and available for inspection and
use by anyone, and is made available under a license agreement that permits
recipients to copy, modify and distribute the program’s source code without
payment of fees or royalties. All licenses certified by opensource.org and
listed on their website as of 01/11/2005 are Open Source Software licenses for
the purpose of this pledge..
Subject to the exception provided below,
and with the intent that developers, users and distributors of Open Source
Software rely on our promise, IBM hereby commits not to assert any of the 500
U.S. patents listed above, as well as all counterparts of these patents issued
in other countries against the development, use or distribution of Open Source
Software.
In order to foster innovation and avoid the possibility that a
party will take advantage of this pledge and then assert patents or other
intellectual property rights of its own against Open Source Software, thereby
limiting the freedom of IBM or any other Open Source Software developer to
create innovative software programs, or the freedom of others to distribute and
use Open Source Software, the commitment not to assert any of these 500 U.S.
patents and all counterparts of these patents issued in other countries is
irrevocable except that IBM reserves the right to terminate this patent pledge
and commitment only with regard to any party who files a lawsuit asserting
patents or other intellectual property rights against Open Source
Software.
This is pretty clear as far legally binding
statements are concerned. Although the not-legally-binding speech said that IBM
would reserve the right to defend itself, the legally-binding pledge says "IBM
hereby commits not to assert any of the 500 U.S. patents listed above ...
against the development, use or distribution of Open Source Software. ... [T]he
commitment not to assert any of these 500 U.S. patents ... is
irrevocable except that IBM reserves the right to terminate
this patent pledge and commitment only with regard to any party who
files a lawsuit asserting patents or other intellectual property rights against
Open Source Software."
IBM seems to be complaining about the
TurboHercules' "use or distribution" of a project that qualifies for this
pledge. The fact that the project is not Linux is irrelevant. The fact that
the company is not the project sponsor is irrelevant. The fact that the license
is not the GPL is irrelevant. The fact that TurboHercules goaded the EU into
investigating IBM regarding antitrust statutes is irrelevant. Unless you can
see some way TurboHercules potentially violates the patents in question outside
of the use or distribution of the qualifying software, TurboHercules should be
covered by the pledge. Until TurboHercules brings a patent "or other
intellectual property rights" lawsuit against IBM.
Or would you say that
the fact that I don't contribute to the Linux kernel personally means that IBM
can sue me with these patents for selling Linux CDs? I cannot see how the
pledge can apply to anyone if it does not apply to TurboHercules.
Of
course, IBM can assert the other 100+ patents. But then that goes to the heart
of the question of whether IBM is a trustworthy open source partner. You can
only trust them to not squish your open source project as long as you don't make
any waves that they don't like.
You know what I think the real
problem is here? OSI has a list of licenses that no one should have on any
approved list, in my view, including some from Microsoft, and I don't think they
plan to fix that any time soon.
I have no idea how this is
related in any way to the issue it hand. If I didn't know any better, I would
call it a red herring. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 06:01 PM EDT |
Please be more careful to separate the company TurboHercules, from the open
source software project Hercules. While Rodger may have started the development
of Hercules quite a while back, he's not been a (major?) contributor for quite
some time. The people who _are_ the core developers are most definitely not
"anti-IBM" but they weren't looking to monetize their efforts. Rodger
is, which has brought things to the current state.
While you can argue that the Hercules developers have been knowingly violating
IBM's patents for a long time, both parties involved (excluding TurboHercules
which is fairly new to the scene) were generally of the mind to just live and
let live.
Finally, don't use the choice of license as any indication that the Hercules
project is some sort of ally with Microsoft. They're not. They just want to
hack on their code in peace.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 06:12 PM EDT |
I'm posting anon. for reasons that should be clear.
The hercules mainframe emulator has been very widely deployed in a development
and test role at many software houses with full knowledge of the management.
It is a very complete emulator, providing a full virtual mainframe on almost
any PC. It's usually, but not always, used in addition to a licensed box, and
in most cases is simply to provide more flexibility without having to pay for
a full mainframe for each developer. Most of these companies have used a
developer license on a mix of small IBM (e.g. P390) and Flex/ES systems, the
latter having been a reasonably priced option until that was discontinued.
Now the most realistic option for a small mainframe development company is to
buy time directly from IBM on a remote system, although I don't know how easy
it would be to test with other vendors software on those machines.
This development use is not really going to make any difference to the IBM
profit margins though, as their real money comes from the large organisations
that use high spec hardware for their corporate systems. The large
corporates do have hercules in use for training purposes, and in some cases
have tested their DR systems using an isolated hercules environment.
So IBM have left this as a grey area, until they have been challenged. This
leaves me with mixed feelings. I can see that there is a monopoly in this
specialist area, the IBM mainframes and operating systems, but there is also
no reason not to migrate to either another commercial OS, Linux or any other
system. Large corporates can afford to migrate, and small companies and
individuals don't normally have a reason to use a mainframe.
I don't really understand why IBM haven't given developers the option of using
hercules since their split with the flex/es people, but it may be a legal
issue. I know (from IBM people) that the hercules emulator has been ignored
by IBM for several years, and I assume they would have continued to ignore it
until forced to respond. The hercules (yahoo) groups make it clear where
hercules is considered legal, but it's obvious from the messages posted that
much of the usage is for recent versions of the operating systems.
So from my point of view, I would prefer that IBM would release their
operating systems to be freely available, but if they don't want to then I
will find something else, or I'll work with the developer access that they
offer. It is IBM's choice, their OS and if they want to ut off potential
customers, that's up to them.
As far as I can see, there would be no reason not to offer a complete set of
z/series API calls within another OS (similar to WINE), which could allow
mainframe programs to run without the IBM operating system, and that would
be a far more useful idea, so I suspect it's already been done.
I am anti software patents, and I like to use free (as in speech) software,
but here there are more issues than a simple free vs closed system (is Mr
Bowler planning to pass some of his profits to those who have tested,
documented, enhanced and fixed the code?). I can't condemn or support IBM in
this case.
And finally - IBM please provide the source code (GPL?), and at least a no
charge single user developer license, of Z/VM and Z/OS that can be used on
any platform.
Cheers
Anon.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 06:12 PM EDT |
. . . You know Microsoft is involved.
[ Reply to This | # ]
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| Authored by: sproggit on Thursday, April 08 2010 @ 06:15 PM EDT |
It's that fishy smell again.
Here's a few random memes for those who haven't studied the history of
computing...
Back in the 1960s and 1970s, IBM were the undisputed leaders of mainframe
computing. To be truthful, some of their technology was poorly designed and
badly executed, but it undeniably crunched the numbers. However, because they
were the only game in the mainframe town, the US Government took interest from
an anti-trust perspective and as a result IBM were forcibly re-structured.
The internal APIs that underpin what was then OS/360 were published by IBM in
compliance with court orders. As a result, companies like Computer Associates
were able to provide software components - not merely companies producing
products like ADABAS/Natural, but actual Operating System sub-systems, such as
CA's ACF/2 plug-in security manager (that still competes today with IBM's RACF).
At the same time, [ as noted in linked sites ], competitors including Amdahl,
Hitachi and Fujitsu stepped into the mainframe hardware space. The mainframe
ecosystem entered a period of rapid change and fierce competition. But make no
mistake, IBM really didn't get their own way. For a while, systems like
Hitachi's 827 Skyline was the most powerful and fastest commercial mainframe in
the world. IBM actually *pulled out* of the top end of the market because they
couldn't compete.
But markets - and companies - changed. IBM went through a rough patch and then
struck gold when Lou Gerstner, Jr, took the helm. Meanwhile, just as IBM were
back on the ascendant, so Hitachi, Amdahl and Fujitsu scaled back their
mainframe programs. If you remember, Microsoft and Sun Microsystems and others
were chanting "the mainframe is dead". The competing companies got
cold feet, decided to vector away from the platform and eventually fell by the
wayside. IBM - because of their large and loyal customer base, stuck with it.
Fast forward to the 21st century and 2010 and the mainframe is fully resurgent.
So once again we have a situation in which someone who can 'force' their way
into the market may make a killing. So that's a little subjective background...
Now a few points to consider.
Firstly, with all due respect to those who posit this case is a mirror of
Apple's recent adventures, it isn't. Apple Inc provide personal microcomputers
and workstations for individual users - a market for which Microsoft has a
monopoly and which Linux has a growing share. By comparison, today in the
mainframe market, IBM is pretty much the only game in town. OK, I probably need
to concede that Bull HN Information Systems do offer the NovaScale family of
systems (powered by Itanium technology, no less) which run their GCOS-8
Operation System. (GCOS - General Comprehensive Operating System). GCOS-8 is
spiritually closer to zOS (OS/390) than anything else from Bull. But let's be
honest, Bull are a tiny player in comparison with IBM.
So the first important point to consider is that we can't make comparisons
between this IBM case and the Apple story from last year. The MO may be similar
(it is) but the context is wildly different.
The second important point to make is there in the history books. IBM has
previously licensed z/OS to several other mainframe providers (Amdahl, Fujitsu
and Hitachi). So at this point we don't know the specifics, but there will be
reasons that IBM are cautious about TurboHercules.
The third point of interest for me (and I'll concede up front that this may well
be purely coincidental) is that this company are based in France and are
leveraging the EU Commission to direct fire at IBM. Hmm... What other large and
well-known computer company ran foul of the EU Commission in recently history?
Learning experience maybe?
The fourth point of interest for me is that TurboHercules are a privately held
company. Now, in and of itself there is nothing unusual about that. But as we've
seen in the SCO saga, 'piercing the corporate veil' gets 10 times harder when
the veil belongs to a private company. No Executive Directors, no shareholders,
no SEC filings, no way of knowing what's going on, where the funding comes from,
or the like. Let's be careful here though. The absence of transparency does not
automatically imply any form of wrong-doing.
The fifth point of interest is well articulated by Eric Raymond. He points out
that IBM are asserting patent infringement on two of the 500 patents that made
up their Linux-friendly pledge, and he points out that maybe it would have been
sensible for IBM to think through their strategy a bit before going public with
their actions. I'm inclined to agree there.
So... lots of "curiouser and curiouser" going on here. Any tech-savvy
industry player is going to be familiar with the Apple vs Psystar case and this
IBM/TurboHercules story is pretty much a dead ringer.
The question is - did the TH case come about because the TH guys watched Psystar
and thought to themselves, "Hey, that might work for us - let's do a
mainframe clone!", or did it come about because someone else thought,
"Golly, we nearly had success in 'sending a jab' Apple's way. Now maybe we
should try and 'send a jab' to IBM instead?"
I hope IBM reconsider their tactics with respect to TurboHercules. I also think
that TurboHercules, if they are a genuine company and not out to be "Agents
Provocateurs" need to stop with the rhetoric and sit down with IBM to work
this one out.
"Divide and conquer" is as valid in the IT industry as it was for
Ghenkis Khan, and when it boils down to it, both IBM and TH want us to believe
that they are FOSS-friendly.
Well guys, if that's true, learn to play nice, huh?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 06:18 PM EDT |
You've already tried, convicted and sentenced TurboHerculese.
For someone who's NOT a team of IBM lawyers, you sometimes go to great lengths
to hide that fact.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 06:21 PM EDT |
The patents in question don't matter.
Remember how IBM had so much stuff on SCO they dropped the patents because it
was a distraction?
That will happen here, in the small, if it becomes too much of a distraction.
"Oops, you're right, technically we agreed not use these 4 patents against
you. But let's talk about these OTHER 300 patents here..."
[ Reply to This | # ]
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| Authored by: WatchfulEye on Thursday, April 08 2010 @ 06:30 PM EDT |
I'm not really interested in this case (yet) so I haven't done any research
other than read news highlights and this article.
Here's my question, why can't people buy software that runs on IBM's mainframe
OS and then run it on Hercules? Is it the fact that IBM won't sell it unless
you own an IBM mainframe? Is IBM the only company making software for the IBM
mainframe?
From the previous articles, it was made clear that Apple's EULA is prevents
people from running Apple OS on non-Apple hardware legally.
What about WINE? Are there restrictions in the EULAs that comes with most/some
Windows software that prevents them from running on non-Windows environments?
If there was a WINE like interface to allow Apple software (not the OS) to run
on Linux would that be allowed? I would think so unless prevented by an EULA.
From my little bit of understanding, I think the IBM issue is a bit different
from Apple's issue since Hercules is replacing the OS not just a way to install
the IBM OS onto a generic computer. It seems like it is more like WINE running
Windows applications under Linux. Perhaps the EULAs on mainframes are better
written.
Jamie[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 06:47 PM EDT |
If TurboHercules wants to sue someone so bad it might be best for them to not
use the GPL (sorta like PJ made reference to) as that would bar them from
distributing GPL libraries.
Yes the OSI REALLY needs to cull the list of approved licenses.
As usual PJ has shed some light on the issue as before I read this I thought
their partnering with Microsoft was just their being platform and OS agnostic.
If it were not for the choice of license and their suing first I might still
think that. This issue does not go as far as Pystar if you ask me anymore than
Linux infringes Apple.[ Reply to This | # ]
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| Authored by: grouch on Thursday, April 08 2010 @ 07:09 PM EDT |
In October last year, the US Department of Justice began an
investigation of IBM's mainframe market tactics, after the company was accused
of using its dominant market position to unfairly squeeze out any upstart
competition. The investigation was initiated at the prompting of Washington
DC-based lobby group, the Computer & Communication Industry
Association.
--
IBM faces mainframe biz European antitrust probe
- Kelly
Fiveash, The Register, 2010-03-23
How much did
Microsoft pay CCIA this time?
I don't assume IBM is spotless, but the
involvement of CCIA makes me very suspicious of exactly who is on the attack,
here. Lately it seems like any business in Microsoft's way is coming up for
antitrust complaints.
I couldn't help but reflect -- and I
confess it was my first reaction -- that it's so odd that all Microsoft's
competitors end up dealing with unexpected allegations, sometimes from small
companies, against them in court or before regulatory bodies that just happen to
threaten their viability in the marketplace.
--
PJ,
2008-08-27
---
-- grouch
GNU/Linux obeys you.
[ Reply to This | # ]
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- continuation? - Authored by: Anonymous on Friday, April 09 2010 @ 02:26 PM EDT
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| Authored by: Anonymous on Thursday, April 08 2010 @ 07:12 PM EDT |
How can I tell it is hypocrisy? Substitute M$ for IBM in that story, and
suddenly turbohercules would be the poor downtrodden victims.
I mean, you are actually talking about a patent defense as if it were right and
just - Since when do software patents get such good press around here?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 08:05 PM EDT |
I found the post by the mainframe developer very interesting, but not
surprising.
While running z/OS using an emulator on x86 hardware may work very well for
development, I'd be pretty skeptical of the ability to match mainframe hardware
under really heavy loads. If it would, then IBM wouldn't enjoy the mainframe
Linux market they have.
If IBM's licensed code is running on mainframe hardware whether from IBM or
another manufacturer, a bug is clearly a problem in the mainframe software
stack. Running on an emulator? Who knows? It can be very expensive to figure
out. Especially if the problem only happens once in a while under heavy load
and your contract has non-performance penalties.
rhb
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 08:12 PM EDT |
The complaint against IBM was filed with the EU Commission
by
TurboHercules. At that exact moment, did they not take themselves out from
under the patent pledge's safety umbrella?
No, they did
not.
According to the
pledge: "...except that IBM reserves the right to terminate this
patent
pledge and commitment only with regard to any party who files a lawsuit
asserting patents or other intellectual property rights against Open Source
Software".
TurboHercules is not asserting patent rights or other
intellectual
property rights against Open Source Software. They've not filed a
lawsuit,
either. .
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 08:24 PM EDT |
The Register had a story on this back in the fall of 2009 when TurboHercules
started on this business strategy.
Mainframe emulator goes commercial - Hercules, son of z/OS . The Register
commented then that the situation looked likely to end up in court. They also
mentioned the ties to Microsoft.
TurboHercules is
co-headquartered in Paris, France, where Bowler moved after he left the United
Kingdom, and in Seattle, Washington, in close proximity to the one big software
company that has in the past taken a shining to anything that gave Big Blue some
grief, particularly with mainframes. (Yes, we mean
Microsoft).
The article makes it clear that TurboHercules is
pursuing the "disaster recovery" angle because they think that it's a loophole
in IBM's software license. The problem that IBM would have with allowing this is
that a lot of customers would be tempted to not bother replacing their broken
mainframes and just continue to run their legacy applications indefinitely on
the Hercules emulator. That would undercut a big part of IBM's
business.
There is very little doubt in anyone's mind that at
least some of the Hercules emulators out there are running real and modern
mainframe stacks, and they can do so because even with the heavy midrange
penalty, an x64 server can deliver the performance of a midrange mainframe.
We're talking something on the order of dozens to hundreds of MIPS, and to IBM,
that's something on the order of hundreds of thousands to millions of dollars
over a many-year span for hardware, software, and services.
It
is also clear that TurboHercules customer's are looking to their services in
order to avoid buying IBM mainframes.
The first customer to
put TurboHercules through the paces is an unnamed state government that had a
$200,000 budget to implement disaster recovery for an aging System/390
mainframe. The state cannot afford to upgrade to a modern z10 box, much less get
two of them for disaster recovery. It just wants to keep the System/390 running,
which is long since paid for, pay its monthly software licensing and maintenance
fees to Big Blue, and have an emergency box on which to load up its applications
in the event that the System/390 fails.
There seems to be lots
of parallels with the Pystar case.
[ Reply to This | # ]
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| Authored by: peope on Thursday, April 08 2010 @ 08:38 PM EDT |
| Software patents are bad, m'kay? [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2010 @ 09:08 PM EDT |
According to something about this on Slashdot a few days ago...
IBM's suit against TurboHercules listed something like 143 patents, only 2 of
which are even covered by the patent pledge.
This is a total non-story, other than the
"trouble-possibly-stirred-up-by-Microsoft?" angle.[ Reply to This | # ]
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| Authored by: kehall on Thursday, April 08 2010 @ 09:30 PM EDT |
| As someone who works with mainframes for a living, I've been following and using
Hercules for quite a few years. I started back when it was Roger Bowler's
hobby. Over the years, it picked up a very talented and enthusiastic group of
developers who have turned it into an amazing piece of work.
Back when IBM
was still sponsoring commercial emulation efforts as a cheap alternative to
expensive mainframes, Hercules rapidly outpaced those products, if not in speed
(it's portable), but in capability. When IBM eventually abandoned the emulation
market, Hercules was the only thing left.
Hercules embodies the spirit
of Open Source. Very little of the development is done by Roger, or his
successor, Jay Maynard. There are at least a dozen other contributors who have
added major parts of the code. I, myself, contributed a couple of minor
fixes.
The article above contains some MAJOR inaccuracies about Hercules and
it's origins and developers.
1) Hercules-the-project is NOT, to my
knowledge, funded by Microsoft or anyone else. Jay runs the project web site
from his home over his personal DSL line. I can't speak for the "Turbo
Hercules" company, but I doubt that is either. I believe that this is simply an
attempt by Roger and Jay to try to kill two birds with one stone: Make a few
bucks off something they've both put a lot of their lives into, and also force
IBM to provide a licensing option for their mainframe operating systems that
would also benefit the "hobbyist" users. Up to now, we have been limited to
running Linux or ancient versions of IBM's mainframe OS's.
2) Hercules was
developed originally under Linux. The Windows version was developed as a side
project by a couple of participants who simply wanted to run it under that OS.
If I remember correctly, at least one of them was unemployed at the time.
Nothing sinister there, just the community working the way it should.
3)
Hercules kill off the mainframe? Hardly! I'm surprised IBM even had the nerve
to try that argument! The problem the mainframe has under IBM's current
philosophy is that nobody except large companies can afford to develop for it.
With licensing on Hercules, IBM could benefit by an increased interest in the
architecture. Unfortunately, they don't see it that way. IBM believes they can
address this by selling time on virtual systems. It isn't working though.
Psychologically, it isn't a satisfactory solution for the small developers, so
they go elsewhere, to other platforms where the barriers to entry are lower, and
they can do their development work on laptops and whatnot. Would it make sense
for Microsoft to support a product that would enhance IBM's platform offering?
Especially one that runs VERY well on Linux?
4) Roger and Jay are not
opposed to Open Source, but they both have issues with the GPL. Personally, I
don't share their opinions, but there's no arguing with them, their minds are
made up. The problem seems to revolve around the idea that if you use one piece
of GPL'd code in your product, somehow, magically, the whole thing becomes
GPL'd. This is patently absurd, but they brook no argument about it. They
picked the license they did because they believe strongly that the GPL is
"Viral" and they do not want to risk losing control of their baby. Since it IS
their product, they are welcome to use any license they wish. That point has
been made on Groklaw dozens of times, and should be respected.
When I
first read of "Turbo Hercules", I was skeptical. I thought Roger and Jay were
taking a terrible chance, and it seems my fears were borne out. Despite the
predictions of a few self-proclaimed pundits on the project mailing lists, IBM
doesn't seem to be interested in killing off the project totally, but they do
not want to sanction it as a platform for their mainframe offerings. Not only
would that take profits from their hardware business (think Apple), but it would
also open them up to a whole world of support problems as people demand they
address problems that are actually the fault of the emulator. Customers pay big
bucks for z/OS and z/VM, and they expect a certain level of service. IBM can
provide that if they control the whole package, but they learned in the past
that when third parties are involved, things get much more
complicated.
That's my $.02, I will most likely not respond to trolls
or questions regarding Roger and Jay's philosophies and beliefs. I just wanted
to set the records a bit straight about where all this came from, and what it's
really all about. [ Reply to This | # ]
|
- A bit of perspective on Hercules - Authored by: PJ on Thursday, April 08 2010 @ 10:12 PM EDT
- A bit of perspective on Hercules - Authored by: kehall on Thursday, April 08 2010 @ 10:46 PM EDT
- BSD - Authored by: Anonymous on Saturday, April 10 2010 @ 04:07 PM EDT
- BSD - Authored by: PJ on Saturday, April 10 2010 @ 04:46 PM EDT
- Hypocrite, thy name is TurboHercules - Authored by: jheisey on Thursday, April 08 2010 @ 11:40 PM EDT
- No, it wouldn't. This was solved in the 1970s - Authored by: Anonymous on Friday, April 09 2010 @ 04:17 AM EDT
- A bit of perspective on Hercules - Authored by: Anonymous on Friday, April 09 2010 @ 05:17 AM EDT
- A bit of perspective on Hercules - Authored by: Steve Martin on Friday, April 09 2010 @ 06:35 AM EDT
- A bit more perspective - Authored by: proceng on Saturday, April 10 2010 @ 01:22 PM EDT
- A bit of perspective on Hercules - Authored by: sidders on Monday, April 12 2010 @ 08:01 AM EDT
| |
| Authored by: Anonymous on Thursday, April 08 2010 @ 09:45 PM EDT |
The Timeline (as reported in the press):
IBM licenses its
mainframe operating system z/OS with an EULA. I haven't seen that EULA, but it
almost certainly prevents the customer from running z/OS on hardware other than
IBM mainframes.
In 2005 IBM pledged not to assert its intellectual
property portfolio against FOSS, except in self-defense.
TurboHercules
(TH) developed an emulator that allows IBM's z/OS to run on plain vanilla x86
hardware. In other words, actually using the TH product would probably violate
the IBM EULA. TH acknowledged as much in that they asked IBM for permission
changes (i.e. to the EULA), and were rebuffed. TH went ahead and made their
emulator available anyway.
IBM then warned TH's product violates IBM's
intellectual property (a different issue from the EULA), but apparently didn't
file suit or a formal complaint against TH.
TH filed a complaint against
IBM with the EU's Director General for Competition on March 23,
2010.
IBM invoked the self-defence clause, opening the way to a suit
against TH.
The Issues:
IBM's z/OS EULA: Does it or
does it not permit z/OS to run on the machines TH's emulator is targetting? If
not, then the issues in the case do have similarities to Apple vs
Psystar.
Is IBM's invoking the self-defense clause of its pledge a
legitimate use of that clause?
IBM's patent portfolio: Does TH's product
itself violate IBM's IP?
[ Reply to This | # ]
|
| |
| Authored by: kenryan on Thursday, April 08 2010 @ 10:47 PM EDT |
IMVHO, IBM could and should sidestep the FLOSS issue by simply saying "OK
you're right, you're infringing on these two but the pledge applies so we won't
sue over them. Now we have a busload of attorneys who would like to talk with
you about the 100 other patents you're infringing that are *not* covered".
I think the majority of the community understands when mistakes are made so long
as they get corrected quickly. Even if a case could be made that the pledge
does not apply (and I'm not convinced one way or the other), setting those two
aside for the sake of PR might not be a bad idea.
Kind of like nuclear arms treaties. Sure, we'll give up 100 warheads each.
We'll just have to make do with the other 8,000. No practical difference but
they get to pat each other on the back for a while.
---
ken
(speaking only for myself, IANAL)[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, April 08 2010 @ 11:09 PM EDT |
When I first read of this fiasco on /. , I lept to the conclusion that you had
gone back on promises. Then I read the summary at lwn, and now this... I'm sorry
I did not give IBM the benefit of the doubt, and did not do any research... IBM
deserved better.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, April 08 2010 @ 11:40 PM EDT |
1. If software patents are evil, how do we abide IBM using them?
2. I don't recall that the US anti trust law suit that the US dropped forced IBM
to reorganize. Although certainly IBM was positioning itself for the prospect of
being broken apart.
3. I worked for IBM during those anti trust days. IBM acknowledged being a
monopoly, which is not illegal. It did impose restrictions on their/our
behavior. One of which was bundling. There is room for argument that there is a
monopoly bundling issue here. Getting the EU involved may have been
appropriate.
4. Emulating hardware to run z/OS sounds risky to me. IBM puts in a lot of
hardware in their machines to catch hardware failures, that omitted, could lead
to undetectable erroneous emulation.
5. I can't say I understood the Psystar issues I'm still stuck on the Wine and
Microsoft analogies. Which really don't apply.
6. If I can buy OSX at the store in the retail consumer market, I can see a
legal argument for using it on my favorite non-Apple box. The EULA may just be
overreaching consumer protection laws.
7. What will things look like in a few months when Apple's market capitalization
surpasses MicroSoft's?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, April 08 2010 @ 11:48 PM EDT |
Something else to consider here - if IBM does nothing - they are silently
approving this - having to support issues that may come up on non-certified
hardware (since this is an emulator). For testing - non critical, or even
educational purposes - Maybe - and that is a real stretch.. but if I was IBM - I
wouldn't want this out there either simply from the support end of it.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, April 09 2010 @ 01:21 AM EDT |
Several posters have written regarding IBM's EULA covering z/OS and z/VM. There
appears to be an implicit assumption is that IBM mainframe software is
"purchased" in a manner similar to a retail purchase of Windows 7 or
OSX, and therefore has a EULA. Unless something has changed in the last 15
years (which I find unlikely), IBM does not "sell" their software.
IBM's mainframe software is licensed, not sold. You don't go to Staples,
OfficeMax, or Best Buy and purchase a copy. You sign a contract with IBM. The
contract allow you to run the licensed software on one or more specific systems
(usually by serial number). If you want to move that license to a different
system, you have to notify IBM. If the new system is in a different hardware
class, you may have to pay for the privilege. If it's an limited term license,
you have to pay to renew it. If you want support, fixes, updates, or new
versions, you typically have to purchase a maintenance or support contract. The
license may, or may not, require that you have a support contract in place to
run the software. There is no need for a EULA like we have with most
"purchased" software.
There may be some parallels with the Psystar situation, but maybe not as many as
some might suppose. For example, there can be no "right of first
sale" argument because no one ever purchases a "copy" of z/OS or
z/VM, only a license.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, April 09 2010 @ 01:26 AM EDT |
TurboHercules is co-headquartered in Paris, France, where Bowler
moved after he left the United Kingdom, and in Seattle, Washington, in close
proximity to the one big software company that has in the past taken a shining
to anything that gave Big Blue some grief, particularly with mainframes. (Yes,
we mean Microsoft).
Can anyone tell me when he live in Seattle?
On his personal home page he
shows off the cars
he has owned and used from 1972 thru at least 2003. So if he lived in
Seattle, it was after 2003 because from 1972 to 2003 he appears not to have
lived outside of the UK. His personal home page has been at its current
location in France since at least January 2, 2008
according to the Internet Archive. That leaves just those years between
2004 and 2007 that are unaccounted for.
But then this post seems to confirm France in 2007, as
well as 2006, and 2005. So now that just leaves 2004 that is
in question.
Well here is a reference date stamped
in 2004 that would lead me to also believe that he was living in France. So
unless anyone can find some more concrete evidence that this particular Roger
Bowler ever lived in Seattle, please by all means post it here with more proof
than a Register article that may have their facts a bit confused.
-the
former DodgeRules-[ Reply to This | # ]
|
- Correction - Authored by: Anonymous on Friday, April 09 2010 @ 12:12 PM EDT
- My mistake! - Authored by: Anonymous on Friday, April 09 2010 @ 01:46 PM EDT
| |
| Authored by: hardmath on Friday, April 09 2010 @ 02:46 AM EDT |
IBM's pledge not to "assert" some 500 software patents it holds against
"Open Source Software" is linked above but not directly quoted. For convenience
let's cite two passages.
First is one concerning the legal enforceability of
IBM's pledge:
It is our intent that this pledge be legally binding
and enforceable by any open source software developer, distributor, or user who
uses one or more of the 500 listed U.S. patents and/or the counterparts of these
patents issued in other countries.
Next is the meat of the
pledge, including the only reservation IBM gives about revoking or terminating
the pledged rights:
IBM hereby commits not to assert any of the 500
U.S. patents listed below, as well as all counterparts of these patents issued
in other countries, against the development, use or distribution of Open Source
Software.
In order to foster innovation and avoid the possibility that a
party will take advantage of this pledge and then assert patents or other
intellectual property rights of its own against Open Source Software, thereby
limiting the freedom of IBM or any other Open Source Software developer to
create innovative software programs, the commitment not to assert any of these
500 U.S. patents and all counterparts of these patents issued in other countries
is irrevocable except that IBM reserves the right to terminate this patent
pledge and commitment only with regard to any party who files a lawsuit
asserting patents or other intellectual property rights against Open Source
Software.
My argument for the wrongness of IBM's assertion of
software patents against TurboHercules is simple and no doubt familiar to any
regular Groklaw reader from the past year. Software patents are illegitimate
monopolies.
That direct thesis is support by two additional concerns. IBM
continues to hold a
monopoly share (90%) of the mainframe hardware market, and the assertion of
its patents against TurboHercules is manifestly IBM's tactic to maintain that
monopoly.
Furthermore IBM is violating its OSS pledge with respect to two
patents, U.S. 5613086 and U.S. 5220669. The inclusion of these in both the
pledge and IBM's letter to TurboHercules is not disputed.
IBM has issued statements
recognizing the overlap and trying to simultaneously stand behind both the
pledge and the letter. One approach rationalizes that the letter is merely
providing the patent references at TurboHercules's request.
In the other
approach IBM suggests that TurboHercules and their emulator may not be covered
by the pledge:
In 2005, when IBM announced open access to 500
patents that we own, we said the pledge is applicable to qualified open-source
individuals or companies. We have serious questions about whether TurboHercules
qualifies. TurboHercules is a member of organizations founded and funded by IBM
competitors such as Microsoft to attack the mainframe. We have doubts about
TurboHercules' motivations.
PJ takes this argument a bit further,
and frankly I'm more concerned with her opinions than with IBM's PR efforts. So
let me address some of PJ's points in roughly descending order of how I perceive
their strength.
0. IBM is free to sue ...
Of course. In
America, if you have the money, you can sue anybody for anything. IBM has the
funds, so technically I agree with PJ about this. However it seems to me
unlikely that software patents will be a critical element of any lawsuit IBM
files against TurboHercules, and certainly not the two patents for which IBM
gave s "legally enforceable" pledge not to assert against open source software
developers. Even discounting the rough third of the potentially infringed
"patents" IBM listed in their letter that have not yet issued, if IBM wants to
go the patent route, they have several dozen software patents to choose from
without blatantly reneging on their 2005 OSS pledge.
1. TurboHercules
isn't covered by the pledge
This would be a really strong point, but
IBM's musings about TurboHercules's motivations and being "a member of
organizations founded and funded by IBM competitors such as Microsoft to attack
the mainframe" don't find much traction in their actual wording of the OSS
pledge. PJ tackles the coverage more directly, questioning whether the QPL
really counts: "OSI has a list of licenses that no one should have on any
approved list, in my view..." Yet the QPL has been around in the formed
approved by OSI since 1999, so it's not "some devilishly clever way to take
advantage of that list" as PJ puts it. What specifically is wrong with the QPL?
PJ quotes the FSF, maintainers of the GPL, to the effect that what's wrong with
the QPL is not being compatible with the GPL. With all due respect to the GPL
and credit to the FSF for maintaining it, this really doesn't disqualify QPL or
dozens of alternatives from the open source definition.
2. TurboHercules
forfeited coverage by attacking IBM
Although not a point IBM has
articulated, at least so far, this is the one PJ leads with. Who, she asks, is
suing whom? "It's not IBM, folks. The complaint against IBM was filed with the
EU Commission by TurboHercules. At that exact moment, did they not take
themselves out from under the patent pledge's safety umbrella?" Not that I see.
The OSS pledge says it "is irrevocable except that IBM reserves the right to
terminate this patent pledge and commitment only with regard to any party who
files a lawsuit asserting patents or other intellectual property rights against
Open Source Software." TurboHercules formally accused IBM of abusing their
monopoly power in the mainframe hardware market, but that EU process is not a
lawsuit, and it has not asserted IP rights "against Open Source Software."
Technically neither party has filed a lawsuit asserting patent rights, but since
IBM's pledge was not "to assert" the 500 patents against an OSS developer,
subject to the one revocation condition, they stand to "win the battle but lose
the war" if they continue.
3. It's like Apple vs.
Psystar
Analogies can be very poor arguments. Any real strength depends
on a close analysis of functional similarity. Apple vs. Psystar was not based
on software patents. TurboHercules is not selling hardware nor reselling IBM's
operating system. If IBM wants to make their case similar to Apple's, they
would do well to start with the title of Apple's initial complaint against
Psystar: Complaint for Copyright Infringement, Induced Copyright
Infringement,
Breach of Contract, Trademark Infringement, Trade Dress
Infringement and Unfair Competition. See anything there about patents? The
Courts, which didn't buy Psystar's arguments that Apple has a monopoly -- on
Apple computers, will not have to set any precedents to find IBM has a monopolistic
marketshare in the mainframe hardware market.
regards, hm
---
"It is
difficult to get a man to understand something, when his salary depends upon his
not understanding it!" -- Upton Sinclair [ Reply to This | # ]
|
| |
| Authored by: barbacana on Friday, April 09 2010 @ 03:29 AM EDT |
Back in the 1960s, IBM was by far the dominant computer company. It had
competitors (notably Burroughs, Univac, NCR, CDC, and Honeywell - collectively
known as the BUNCH from their initials), but it looked as though they would all
go out of business eventually, one by one. IBM had a monopoly. It used illegal
means to try extend its monopoly on computers to the peripherals (tape drives,
disks, printers) attached to them. There was a big antitrust lawsuit and IBM was
forced to allow non-IBM peripherals to connect to IBM mainframes. A few
companies also entered the business of making "clones" of IBM mainframes to run
IBM operating systems. Basically, the result of the antitrust settlement was
that IBM had to "unbundle" its offerings. It was not allowed to insist that you
could connect only IBM peripherals to an IBM mainframe, or only run IBM
operating systems on an IBM mainframe. This opened up the market for makers of
"IBM-compatible" mainframes, for example Amdahl and Fujitsu (there were others).
These companies made computers that were compatible with the IBM 370 hardware,
and customers could license IBM software to run on them. IBM had to let them do
that because it was part of the anti-trust settlement. IANAL, and also I have
not studied the TurboHercules affair in detail, but I think that if that
settlement had still been in force, it would have allowed TurboHercules to do
what it is doing.
IBM's smart lawyers got the terms of the settlement
cancelled, in about 2000 IIRC. This left IBM free to pursue its anti-competitive
practices which had been illegal.
Groklaw attracted a lot of readers like
me because in the SCO case, the distinction between Right and Wrong was very
clear. SCO was morally and legally in the wrong. No unbiased person could
have had any doubt that SCO's management were scoundrels. It didn't matter
whether you were on the side of the morally right, or on the side of the law, or
even whether you thought they were the same thing. SCO was wrong, SCO was
abusing the legal system, SCO was bad, wherever you were coming from and
however you sliced it.
Groklaw's more recent crusades, first against
Psystar and now against TurboHercules, leave me cold. PJ says the law is against
both of them. She has a track record of successfully predicting several legal
outcomes, and I believe her.
However, I have a lot less respect for the
law than PJ has. We need a legal system, but it is too often used by the wealthy
and powerful to crush the little guy. And legal right does not always equate to
moral right.
I expect IBM will use the legal system to crush
TurboHercules as effectively as Apple used the legal system to cruch Psystar.
Neither Apple nor IBM needs our help. And frankly, I don't think either of them
deserves it. I like openness. I like 'unbundling' as the IBM antitrust
settlement of the 1960s implemented it. I think a company should be able to
copyright its software, and maybe it should be able to patent its hardware; but
it shouldn't be allowed to insist that its hardware may not be connected to
somebody else's hardware, and it shouldn't be allowed to insist that its
software may only be run on its hardware or that its hardware may only be used
to run its software.
The law in the United States nowadays is
increasingly what big corporations want it to be. There's not much we can do
about that, and there's not much we can do when another megacorporation crushes
another little guy whose ideas threaten the megacorp's profits.
But we
don't have to cheer them on. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, April 09 2010 @ 03:54 AM EDT |
Perhaps this is about IBM sending a message to any future proxies out there.
"Get (sweet)talked into running interference for a certain segment of the
IT industry and you will go down. Your call."
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, April 09 2010 @ 04:12 AM EDT |
It is possible that the two patents were included in the list erroneously and
that IBM will with draw those two. That still leaves 170+ patents not covered by
the pledge.
As for the argument that patents are bad and we shouldn't support companies that
use them, I think we live in the real world where patents exist and are used. If
the "good guys" can't use them then that ties one hand behind their
back.[ Reply to This | # ]
|
| |
| Authored by: jmaynard on Friday, April 09 2010 @ 05:59 AM EDT |
| I'm the project manager for Hercules, the open source emulator. There's a lot
here that needs correcting.
As a general note, any patent complaint against
TurboHercules SAS must
necessarily be a complaint against the open source
Hercules emulator.
TurboHercules SAS sells services and support for the open
source emulator,
and does not have code of its own. They use the open source
emulator
unaltered. Thus, IBM's patent threats against TurboHercules SAS are
threats
against open source. Do we really want to encourage that from
anyone?
The patent pledge's safety umbrella only allows IBM to back out in
the case of
someone that sues open source software, not IBM itself, and
only
on patent or intellectual property grounds. TurboHercules SAS's complaint
alleges illegal tying of IBM's mainframe software and hardware. This is not an
intellectual property complaint, but an antitrust complaint.
Thus, I
believe that IBM's threat against Hercules is a violation of its patent
pledge.
The pledge clearly applies to Hercules. Hercules adopted the QPL
license for
the code with release 1.70, on 3 December 2000, as shown in the What's New
page. The
change was originally made in order to qualify for the Cygwin
exception to the
GPL; at the time, Hercules needed Cygwin to run on
Windows. Whether or not PJ
or the FSF agree with the Open Source Initiative
that the QPL meets the Open
Source Definition, and therefore qualifies as an
Open Source license, is
immaterial; that decision is the OSI board's to make,
and it did so, including
the QPL in the original list of Open Source licenses.
That it's not
GPL-compatible is not part of the Open Source Definition, nor
should it be; no
matter what Richard Stallman would have us believe, the GPL
is not the be-all
and end-all of Open Source licensing. Not only that, but the
FSF even says that
the QPL is a free software license. Why isn't that enough?
PJ asks,
And if you
are spooked by the GPL, for the very reason
Microsoft says it is, in what sense
are you a Linux person or a FOSS person?
The GPL is the dominant license of the
FOSS community. It's the license on
Linux.
I've opposed the GPL
for more than two decades. My fundamental objection
to it is that it is an
attempt by one programmer to tell another what he may
do with his own work. I
use GPLd software every day, but I will not work on it
for this reason. That
doesn't make me any less of a Linux or Open Source
person; if it did, the Open
Source Initiative would have only approved the
GPL, instead of the range of
licenses it has. I'm not a Free Software person for
similar reasons; I view the
FSF as committing the classic "making love for
virginity" error in its
destruction of freedom in the name of supporting it.
IBM's statement
questioning TurboHercules SAS's motives is nothing more
than an attempt to back
out of its patent pledge in cases where it doesn't like
someone. The plain
language of the pledge leaves IBM no wiggle room, and
yet IBM is trying to
wiggle out of it anyway.
Roger Bowler moved to Paris in the year 2000 as
well, long before any of us
thought about trying to commercialize Hercules as
TurboHercules SAS is
doing. He moved there because that's where his job was.
There were no
nefarious reasons for his doing so.
The conspiracy theories
swirling here are laughable. If Microsoft were funding
this effort, I wouldn't
be running the Hercules website out of my basement on
an Alphaserver 4000
(which is running Gentoo Linux, BTW; I've been a happy
Linux user and supporter
ever since version 0.11) and driving a crappy old
1989 Ford Bronco II I bought
for $125. I'm flat broke, and none of Microsoft's
billions of dollars are
flowing to me.
Similarly, I refuse to hold myself responsible for what
Maureen O'Gara, Florian
Mueller, or others that the folks here believe are evil
incarnate think. Larry
Niven said that "Ideas are not responsible for those who
hold them; there is
no idea so good you won't find a fool, or a poltroon, who
agrees with it."
Arguing that Hercules deserves to be hit with the patent
hammer because of
those who support it are nothing more than the classic
fallacy of ad hominem,
and I'd expect better from the folks on this
site.
The difference between this case and the Psystar case is that, unlike
Apple,
IBM holds an absolute, 100% monopoly in a marketplace: that of legacy
mainframe computing. They have determinedly driven other suppliers out of
the
market. Unlike Apple, an IBM mainframe customer cannot easily migrate
away from
the mainframe. There literature is full of stories, and the landscape
littered
with corpses, of companies trying and failing to do so. A legacy
mainframe shop
must either deal with IBM, or else spend immense sums and
large amounts of time
trying to completely reinvent its computing
infrastructure. That's the classic
definition of a monopoly.
IBM gets the benefit of the doubt from the Open
Source world because of its
history of supporting Open Source projects and
funding the FSF (to the tune
of about 4 million bucks a year). I've got no
problem with that, and think they
do deserve quite a lot of appreciation for
it. However, the old saying goes,
"One awcrap wipes out a thousand attaboys." A
true friend of the open source
community wouldn't be waving the patent hammer
at a member of it. The
facts as they stand now show that IBM is a friend of
open source only so long
as it doesn't have to compete with it. [ Reply to This | # ]
|
- Thanks for posting - Authored by: Winter on Friday, April 09 2010 @ 06:16 AM EDT
- Correcting the record - Authored by: ChrisP on Friday, April 09 2010 @ 07:42 AM EDT
- Correcting the record - Authored by: Anonymous on Friday, April 09 2010 @ 08:26 AM EDT
- I only support the GPL. Why not use it?? - Authored by: Anonymous on Friday, April 09 2010 @ 09:09 AM EDT
- Correcting the record - Authored by: Anonymous on Friday, April 09 2010 @ 09:17 AM EDT
- Correcting the record - Authored by: Anonymous on Friday, April 09 2010 @ 10:23 AM EDT
- Correcting the record - Authored by: Anonymous on Friday, April 09 2010 @ 11:31 AM EDT
- Correcting the record - Authored by: Anonymous on Friday, April 09 2010 @ 12:11 PM EDT
- Correcting the record - Authored by: Anonymous on Friday, April 09 2010 @ 01:38 PM EDT
- Correcting the record - Authored by: bb5ch39t on Friday, April 09 2010 @ 01:45 PM EDT
- welcome to groklaw - Authored by: designerfx on Friday, April 09 2010 @ 02:39 PM EDT
- Key Fact Most People Don't Consider - Authored by: Anonymous on Friday, April 09 2010 @ 02:48 PM EDT
- Correcting the record - Authored by: cjk fossman on Friday, April 09 2010 @ 05:55 PM EDT
- I support both the GPL & you - Authored by: Anonymous on Saturday, April 10 2010 @ 02:53 AM EDT
- Sorry to be blunt, but this is complete nonsense - Authored by: Anonymous on Saturday, April 10 2010 @ 05:44 AM EDT
- Community runs both ways - Authored by: artp on Saturday, April 10 2010 @ 12:56 PM EDT
- Correcting the record - Authored by: Anonymous on Sunday, April 11 2010 @ 05:59 AM EDT
- A Few Thoughts - Authored by: Anonymous on Monday, April 12 2010 @ 12:05 AM EDT
| |
| Authored by: Anonymous on Friday, April 09 2010 @ 10:20 AM EDT |
now am i to understand it then shoudl IBM violate the gpl in any fashiona nd get
sued they would sue YOU back and use patents they hold pledged not to sue linux
with?
thats the very trojan horse that gplv3 is suppoosed to protect you form and IBM
could be looking if that were the case at some real bad times
if all i did was make the software and you hold patents what if you lose gpl
ability and get sued by well everyone n the community
YEA think about that scene
correct me if i am wrong here.[ Reply to This | # ]
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| Authored by: ciaran on Friday, April 09 2010 @ 10:31 AM EDT |
I'm documenting it here:
en.swpat.org is a publicly editable wiki,
edits about the relationship of this case to software patents are welcome.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 12:07 PM EDT |
When I first read Florians posts I thought IBM was threatening to sue
TurboHercules. Thanks for posting IBM's entire letter PJ. Its now quite clear
that Florian was completely over the top.
Given the reaction of TurboHercules to this quite innocous letter from IBM it
would not suprise me to find MSFT lurking in the shadows!
emk[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 12:40 PM EDT |
The choice of the QPL can be understood if you look at what the original
"Hercules Public License" wanted.
HPL (original
license)
18. You may submit modifications to the maintainer
for inclusion in the software. By submitting a modification you grant both the
developer and the maintainer a perpetual royalty-free right to include the
modification in future versions of the software and the right to distribute such
modified versions to anyone under the terms of this agreement and any under
other agreement at the discretion of the developer without payment of any fee to
you. ...
QPL (current license)
3b.
When modifications to the Software are released under this license, a
non-exclusive royalty-free right is granted to the initial developer of the
Software to distribute your modification in future versions of the Software
provided such versions remain available under these terms in addition to any
other license(s) of the initial developer.
The original
license allowed the originators (and no one else) of Hercules to dual license
the software, including contributions by others. The QPL appears to allow the
same (at least that is how it appears to me). This differs from the GPL in that
it puts the project initiators in a more privileged position than any later
contributors. That is, the originators can accept outside contributions while
still dual licensing the code, but no one else can.
Since the original
authors included this clause in their original custom license, it seems to be an
important point for them. It is quite possible that someone had the idea fairly
early in the project that it could be commercialised using the dual licensing
model.
[ Reply to This | # ]
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| Authored by: MrCharon on Friday, April 09 2010 @ 02:25 PM EDT |
Could TurboHercules or The Hercules project just develop their own clone of z/OS
for IBM hardware, which also runs under their IBM hardware emulator?
---
MrCharon
~~~~
[ Reply to This | # ]
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| Authored by: DannyB on Friday, April 09 2010 @ 02:54 PM EDT |
That can be read two ways:
0. Microsoft itself is behind it.
1. Untruths told by Microsoft are behind it.
---
The price of freedom is eternal litigation.[ Reply to This | # ]
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| Authored by: PTrenholme on Friday, April 09 2010 @ 03:37 PM EDT |
In one of your posts, above, you stated: I've opposed the
GPL for more than two decades. My fundamental objection to it is that it is an
attempt by one programmer to tell another what he may do with his own work. I
use GPLd software every day, but I will not work on it for this
reason.
I don't understand your "fundamental objection"
since the GPL is a license that lets you use some other programmer's work
provided only that you grant the same license to any work you produce that
includes the other programmer's work. As far as I can see, that is
telling you that, "If you want to distribute my work with your own
work, you have to grant the same rights I've granted to you to those other
programmers." How do you arrive at your "fundamental objection" which, as
you stated it, is that the GPL restricts what you can do with your own code,
when (in my opinion, at least) all the GPL does is constrain you if you
distribute some other programmer's code with your own code. ---
IANAL,
just a retired statistician [ Reply to This | # ]
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| Authored by: esr on Friday, April 09 2010 @ 03:38 PM EDT |
There's been a lot of speculation here that the antitrust action by
TurboHercules is somehow a stealth Microsoft ploy aimed at injuring IBM, and we
therefore should take IBM's side in this.
I say Microsoft's participation, if any, is irrelevant. In fact, if Microsoft
is funding the punishment of a patent aggressor, I'm actually prepared to cheer
them on. This once.
The antitrust angle is a distraction. Microsoft is a distraction. Keep your eye
on the ball here: IBM is using patent warfare against an open-source project,
and for this they must be made to feel pain. Enough pain to frighten future
aggressors out of trying it.
[ Reply to This | # ]
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| Authored by: YurtGuppy on Friday, April 09 2010 @ 04:14 PM EDT |
Of course it is legal for IBM to point to it's patents.
I don't think it is the smartest thing they have done this
week marketing-wise.
It would be smarter to sell mini-licenses to run their OS and apps on the
emulator, then show how Big Iron does a much better job in production
situations.
They might actually get some new customers to their Big Iron that way.
But I don't wear a blue suit so they are unlikely to ask for my advice.
---
just swimming round and round[ Reply to This | # ]
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| Authored by: bugstomper on Friday, April 09 2010 @ 05:26 PM EDT |
I just realized from the wording in IBM's letter
your product
emulates significant portions of IBM's proprietary instruction set architecture
and IBM has many patents that would, therefore, be infringed. For illustration,
I enclose with this letter a non-exhaustive list of IBM U.S. patents that
protect innovative elements of IBM's mainframe architecture and that IBM
believes will be infringed by an emulator covering those
elements
It isn't necessarily the case that all the patents that
IBM is referring to are what one would call software patents. It sounds like it
could include patents on elements of a machine architecture. It does bring up
the interesting question as to what it means for pure software to infringe on a
hardware patent, but I see that as a much more tractable issue than the thorny
one of patents on software.
If someone gets a patent on a process for
producing some new chemical and someone writes a control program for a flexible
chemical processing machine that allows it to use that process to make that
chemical, does the program infringe? Or does selling it induce the buyer to
infringe? I don't have any legal knowledge and don't even know if those
questions make sense given patent law, but I do wonder if the laws would apply
that way to such software.
So, aside from the question as to whether IBM is
actually threatening to use patents against a FOSS project (with all due
deference to Jay Maynard's feeling threatened by the letter, I just don't read
the citing of patents as anything more than supporting reasons for IBM's refusal
to change their license), for those who do read the letter as a threat, does it
make a difference that the patents involved may not even all be software
patents?
[ Reply to This | # ]
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| Authored by: jacks4u on Friday, April 09 2010 @ 06:02 PM EDT |
"Does IBM's correspondence constitute a position contrary to it's pledge
not to prosecute infringement, by FOSS developers, of any of it's 500
patents." IMO is the wrong question.
Let me see how this question works... "Is this publicity campaign designed
to fracture the open source community into oppositely polarized camps: On the
one hand, those that support IBM, and their efforts to 'defend themselves' and
their technology. On the other, those that feel Big Blue should roll over and
let a relatively small 'upstart' (My own term...) profit immensely from it's
heavy investment, while at the same time taking business away, with even the
possibility of completely replacing the mainframe with a cloud architecture that
runs Linux and emulates big iron well enough that migration could be a matter of
throwing one switch, then the next?
To me it's just funny, that for almost 10 years, IIRC, this emulator's been in
the works, and only now, the whole shebang blows up, with one side defending
it's self, trying to smooth ruffled feathers in the Open Source community. And
the other side, making every effort to besmirch a company's name, and even
attacking it legally.
Wierd.
IMO, They spent their billions upon billions of dollars building hardware and
software and growing their business. Compete with them on the merits of 'Your
products v.s. theirs' rather than force the issue of competing in a 'Their
products v.s their products' world
Just my opinion.
Jacks4u
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 06:10 PM EDT |
| Certainly in legal terms it isn't. But you have to have a particularly naive Boy
Scout view of IBM to take it as anything but. Roger Bowler is a very brave (or
very foolhardy) man, and my guess is that his company and probably he personally
will be squished like a bug by IBM unless he folds quickly and quietly.
Read the doc in the current Neon suit
(PDF), and look at what IBM did to Jim Stracka, the guy who had the nerve to
develop software to make IBM customers purchased AS/400 machines run at their
actual rated speed. They convinced the FBI to arrest him on a criminal charge of
extortion, which was soon dropped, but must have had a sobering effect on him.
(Neon isn't making this up, by the way, it's all over the net from way before
the Neon case.)
In the TurboHercules case, IBM doesn't really have the easy
option of buying them out as they did with PSI and Stracka (no settlement
details available, of course, we're all friends now, moving forward, etc.), and
will probably do with Neon, because as Maynard says, TH doesn't have an
independent software product, they are just offering support of the open source
Hercules. You know, the Red Hat business model that we all admire. So my guess
is that IBM will make an example of this little upstart just to make it clear to
any others who haven't been paying attention what they face if they threaten IBM
profits. All the while supporting and defending open source, of course. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 06:15 PM EDT |
Just hit me that this random list of patents, most of which have nothing to do
with Hercules, may have been Mr Anzani just handing his secretary Bowler's
letter and saying "send this jerk the patent letter."[ Reply to This | # ]
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| Authored by: jmaynard on Friday, April 09 2010 @ 07:01 PM EDT |
| TurboHercules SAS is a distributor of the open-source Hercules emulator.
Hercules performs equally well under either Linux of Windows, in repeated
testing. Personally, I would have used Linux as a base, but I'm not the one
calling those shots or even influencing them.
Just because the TurboHercules
SAS turnkey system isn't entirely open-source
doesn't mean they're not an open
source company. They're not simon-pure on
open source doctrine, but the core of
their product is the open source Hercules
emulator. That's enough to qualify
them as a distributor of open source
software, and thus covered by the patent
pledge. [ Reply to This | # ]
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| Authored by: bugstomper on Friday, April 09 2010 @ 07:11 PM EDT |
After reading the quote in the article's Update 7. it becomes really clear that
IBM's response is something equivalent to this:
You express astonishment that we have IP rights when we have let Hercules alone
for 10 years. Here is a list of patents that we could use against anyone who
tries to copy our architecture. We haven't used them against Hercules for 10
years by our choice. We don't need to, we have our license. We want to keep
things just the way they have been and we aren't changing our license.
That is not a threat. That is telling them that the license and the patents are
enough to protect IBM's interests against potential competitors, and that IBM
intends to keep the status quo, which the past 10 years has shown to include not
suing over Hercules' infringement of any patents.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 07:27 PM EDT |
This is nonsense. IBM provided a list of 106 patents that it believes they
infringe. OK, congratulations TurboHurcules, you can knock 2 off the list due
to the patent pledge. You still infringe 104 other IBM patents.
TurboHurcules are just doing PR, to try to get people on their side.
As for "oh IBM is threatening us with patents"... well duh. If you
get into a legal argument with IBM, they will pull out a pile of patents you
infringe. (E.g. they found 6 that SCO infringe). That's just how legal warfare
works. If you pull the tiger's tail without a plan to deal with his teeth,
that's your problem. And IBM have a lot of patents, so you probably infringe
something.
You can also see the big company approach to patents here - sure some may not be
very good quality, but IBM have over a hundred relevant patents and they only
need one to stick.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 07:29 PM EDT |
http://sheepshaver.cebix.net/
Sheepshaver is a PowerPC hardware emulator. It has gained recent
popularity because it allows emulation of the Classic MacOS on
modern intel chipped machines. To do so you need a copy of
the Classic MacOS, and a ROM image from a suitable older Macintosh.
You may legally "own" a copy of the older OS, but are you legally
entitled to run it on hardware which is plainly incapable?
Also possession of a ROM image almost certainly violates some license.
Apple is not chasing Sheepshaver users for the same reason it is
not chasing Hackintoshers. It's a hobby activity, if people want all
that trouble for an experience less than the real thing, that's their problem.
Sheepshaver might also be useful for running other ppc OS (think IBM)
IBM has not worried about the Hercules project in the past because:
it's open source, IBM supports open source (and hobbyists);
it's being used out back, in workshops and test areas;
nobody is making money off of it.
Until TurboHercules asked "Please Sir, can we help each other with
this?"
Maybe TH didn't phrase the question right, but IBM's response was
the reflex of big business to an unknown startup, similar in tone
to Apple's response to Psystar, "Go away jerk, our lawyers are bigger
than yours."
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 07:35 PM EDT |
Here we have IBM saying that hardware patents may be applicable to software that
emulates the patents. Under current law, I can't say that they're wrong (but
IANAL).
Now suppose that the Supreme Court decides Bilski in a way that throws out
software patents. And suppose that there are hardware patents that could be
implemented in software. Does that mean that those patents are also invalid?
Or does it mean that they are only valid on hardware?
MSS2[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 08:04 PM EDT |
Okay, so he's one of the people on the BSD side of the BSD/GPL split. I'm in
favor of the GPL side, but I'm not going to hold that against someone.
Some of them also live close to Microsoft. As do a few million other people.
Digging still required.
Those patents? Well, first off, that letter is an attempt to memorialize that
TH acted with knowledge of the patents. That can triple the damages as you
should know, PJ. I would interpret it as a legal threat. Not of a lawsuit, but
enough that I would think they should be able to claim reasonable apprehension
of one and sue to prove that they don't infringe.
Also, these appear to be software patents. I don't like those, period. But
we'll see if there's more to the story.[ Reply to This | # ]
|
- Better... - Authored by: PJ on Friday, April 09 2010 @ 08:48 PM EDT
| |
| Authored by: electron on Friday, April 09 2010 @ 08:05 PM EDT |
> The software supplied is:
>
> 1. Base operating system – Windows Server 2008 R2 Enterprise Edition
>
> 2. TurboHercules application – a platform-optimized binary of the
Hercules emulator
>
> 3. Local 3270 emulator package (for use with IBM supplied operating
systems)
>
> 4. Terminal and X-Windows emulators (for use with z/Linux)
If we're talking about true Free software, why is the Turbo Hurcules company
supplying a system specifically optimized for the uncrippled version of
Microsoft's toy operating system software - MS WindowsNT 6.1 (aka MS Windows
"Server 2008 Enterprise Edition")?
If they want reliability then they'd be using Linux or Solaris or AIX.
But, even better, why would you want to emulate a mainframe merely so that you
could run GPL'd linux guests? Why not simply use the GPL'd Zen and host all the
linux guests using GPL'd software?
Personally, I'm inclined to the view that if there was such a disaster that
would pull down an entire mainframe to such an extent that true "disaster
recovery" would be required (rather than merely failover to a standby
system) then surely that disaster would be massive and the business would be
unlikely to benefit from the use of a small emulation of a massive mainframe.
So, I see many issues with Turbo-Hercules' "product".
---
Electron
"A life? Sounds great! Do you know where I could download one?"[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 08:40 PM EDT |
Here's why IBM may view TurboHercules as not covered by its patent
pledge. Hercules is an open source product, but TurboHercules is a business on
top of that product, but not exclusively that product. ...
So the base
operating system is Windows. So, you tell me. Is TurboHercules an "Open Source
company"?
Excuse me, PJ, but I think you should think about
this.
I do not know what the patent pledge exactly covered, but if it
wouldn't allow to build a business "on top of" a covered product, then what
would it be worth? To Red Hat, and Novell, who obviously build a business "on
top of" Linux, obviously nothing.
There are more examples: MySQL exists
as a commercial product with an open source core, same for Zimbra, and lots of
other solutions. Why shouldn't these be protected by IBM's patent promises? Or
to rephrase the question, what would the promises be worth to the companies
actively developing these open source core products?
And what's so ugly
with developing an open source product running on Windows?
I agree, that
some reactions with regard to IBM's actions are perhaps exaggerated, but I also
miss a clear statement by IBM, which states that the patent promises are
applicable to OpenHercules (AFAIK, its license would
qualify).
Jochen
[ Reply to This | # ]
|
- Hmmmm..... - Authored by: PJ on Friday, April 09 2010 @ 08:43 PM EDT
- Hmmmm..... - Authored by: jmaynard on Friday, April 09 2010 @ 08:50 PM EDT
- That makes no sense from a free-software perspective. The GPL expressly allows it. - Authored by: Anonymous on Friday, April 09 2010 @ 09:02 PM EDT
- Hmmmm..... - Authored by: ChrisP on Friday, April 09 2010 @ 09:41 PM EDT
- Hmmmm..... - Authored by: Anonymous on Saturday, April 10 2010 @ 05:02 AM EDT
- Hmmmm..... - Authored by: Anonymous on Saturday, April 10 2010 @ 08:40 AM EDT
- Hmmmm..... - Authored by: PJ on Saturday, April 10 2010 @ 08:41 AM EDT
- Hmmmm..... - Authored by: Wol on Saturday, April 10 2010 @ 09:25 AM EDT
- Hmmmm..... - Authored by: Anonymous on Saturday, April 10 2010 @ 12:38 PM EDT
- Hmmmm..... - Authored by: Anonymous on Saturday, April 10 2010 @ 05:47 PM EDT
- Hmmmm..... - Authored by: Anonymous on Saturday, April 10 2010 @ 10:30 PM EDT
- Hmmmm..... - Authored by: Vic on Wednesday, April 14 2010 @ 12:59 PM EDT
- Hmmmm..... - Authored by: Anonymous on Monday, April 12 2010 @ 07:30 PM EDT
- Hmmmm..... - Authored by: Vic on Wednesday, April 14 2010 @ 01:03 PM EDT
- Hmmmm..... - Authored by: Anonymous on Saturday, April 10 2010 @ 05:31 PM EDT
- Hmmmm..... - Authored by: Anonymous on Saturday, April 10 2010 @ 10:18 PM EDT
- Hmmmm..... - Authored by: Vic on Wednesday, April 14 2010 @ 01:09 PM EDT
- Hmmmm..... - Authored by: Anonymous on Friday, April 09 2010 @ 09:27 PM EDT
- Hmmmm..... - Authored by: Anonymous on Saturday, April 10 2010 @ 01:16 AM EDT
- Hmmmm..... - Authored by: Anonymous on Saturday, April 10 2010 @ 10:51 PM EDT
- Hmmmm..... - Authored by: Anonymous on Sunday, April 11 2010 @ 12:32 AM EDT
- Hmmmm..... - Authored by: Anonymous on Sunday, April 11 2010 @ 12:41 AM EDT
| |
| Authored by: Anonymous on Friday, April 09 2010 @ 10:32 PM EDT |
it strikes me as almost identical.
IBM may not hold all the copyrights or patents,
there may be deep legal reasons.
to me it seems akin to the OS/2 situation.
OS/2 hasn't been supported by IBM in far longer than this.
but IBM can't simply open it up, even if they wanted to.
you can't just "Steal" software because it hasn't been supported for
years. that's not an excuse to commit a crime.
IBM holds rights, and they have a legal obligation to protect them.
blaming IBM for it is just stupid[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 11:00 PM EDT |
I fail to see the point of update 8, which points out that proprietary software
is required. Software can be FOSS and still rely on other software that is
not.
Karl O. Pinc <kop@meme.com>
P.S. Others above have already pointed out that there is nothing in IBM's pledge
which says that the pledge is revoked when IBM is attacked; also noting that the
whole subject has not even begun to play out so it's unfair, at the very least
premature, to claim that IBM has violated it's pledge.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 09 2010 @ 11:27 PM EDT |
I wonder how this is supposed to work. There's a little more to disaster
recovery than being able to run an operating system and applications. There's
the small matter of data, and that isn't going to be accessible to, or loadable
on, one of these HP-based systems in any useful timeframe.
I think suggesting use of Turbohercules for disaster recovery is something they
know perfectly well is impractical, which raises the question of why suggest it
at all? My guess is that it is to confuse the ill-informed.
Implicit in the use of a system for disaster recovery is the idea is that it
isn't actually depriving anyone of licensing fees - these are often waived or
minimal on standby systems, until they are actually put into service. So, anyone
reading that Turbohercules should be used for disaster recovery might well
think, well, what's all the fuss about, it isn't as if it is taking a
significant revenue stream from IBM? Of course, Microsoft will get the full
whack for their W2K8 Enterprise software, which doesn't come cheap - that
software isn't on standby, its sole purpose here is to run Turbohercules.
It deflects from the real issue: that this is an attempt to subvert a legitimate
license for z/OS, and the chief beneficiary of this isn't Turbohercules, it is
Microsoft and HP.[ Reply to This | # ]
|
- Pish Posh - Authored by: Anonymous on Saturday, April 10 2010 @ 12:13 AM EDT
- Pish Posh - Authored by: Anonymous on Saturday, April 10 2010 @ 08:49 PM EDT
- Pish Posh - Authored by: Anonymous on Sunday, April 11 2010 @ 10:35 PM EDT
- Pish Posh - Authored by: Anonymous on Sunday, April 11 2010 @ 04:03 PM EDT
- Pish Posh - Authored by: Anonymous on Sunday, April 11 2010 @ 11:00 PM EDT
| |
| Authored by: Anonymous on Friday, April 09 2010 @ 11:55 PM EDT |
I have designed and built a system that uses off the shelf hardware, and runs a
mainframe system. I, however, have not created the emulation software piece. The
system i designed and built was for the Unisys mainframe OS. They had created a
version of software that emulated their high level interface (Mapper). I
designed pieces to communicate with that and built programs to pretend to be the
mainframe core. We then, designed specific hardware to run this. It runs on
Windows.
I've never seen any of the underlying code of the Unisys core system. I merely
treated it as a black box. Now writing an emulator for the high level interface,
would have been a huge task. We didn't have the manpower for something like
that. Our solution was faster than the mainframe by in some cases several orders
of magnitude. One critical task for a client that took 2.5 days to run, would
complete on our system in 3 hours.
I can't speak to what Hercules has written, but what my team and I wrote should
not have been considered infringing any patents. This is why software patents
are such a bad idea. To think that my software could infringe a patent when all
I did was design a connectivity program from a black box is ludicrous. I had a
problem to solve and followed GAPP (generally accepted programming practices) to
achieve that. There was no flash of brilliance. Although, there were some rather
bright individuals on my team.
It was not anything that skillful, experienced, intelligent coders could not
have done. It's no different than say someone building a sophisticated, perhaps
novel, machine out of blackboxes and someone else coming along and building
replacement parts for some or all of the machine.
Obviously, that isn't a totally accurate analogy, because there really aren't
any truly novel programming bits. Now a new and novel programming language, that
*might* actually be a patentable thing, but not the software. I could see the
patentability of a completely unthought of and efficient language being so
unique that it would give any user of the language a huge leap over current
coding. I haven't seen it yet (alhtough PHP and Ruby do come to mind). Software
however is a completely different ballgame.
Also, the fact that our solution ran considerably faster goes to prove that our
code was better than the original code. Or at least leaner. The customer wound
up saving millions in hardware and licensing fees.
Unisys loved our system so much they had us present it at one of their shows.
Hercules, though, seems somewhat less than honest about all this. We worked with
Unisys in our product development. We were a client and a competitor. I no
longer work for that company.
Brian (not logged in)[ Reply to This | # ]
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| Authored by: SilverWave on Saturday, April 10 2010 @ 03:43 AM EDT |
"TurboHercules SAS's request was for IBM to allow its customers to use the
Hercules platform as well as a real IBM mainframe computer system."
Why would TH think that IBM would agree to this?
This seems to make no business sense for IBM.
Or was it to create a record of refusal, for later use against IBM... and also
create a record stating that TH didn’t know of any potentially infringing
patents?
If so TH couldn’t have expected any other response, surly? That is, they asked
IBM to state which patents infringed.
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 04:34 AM EDT |
And is the source code for the TurboHercules optimised binary available under an
open source license?
I suspect not and that's why IBM has doubts if TurboHercules qualifies for the
patent pledge.[ Reply to This | # ]
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| Authored by: SilverWave on Saturday, April 10 2010 @ 04:58 AM EDT |
"Dominant companies have a special responsibility to ensure that the way
they do business doesn't prevent competition on the merits and does not harm
consumers and innovation " said European Competition Commissioner Mario
Monti."
It will be interesting to see how this rule is applied in this situation.
I suppose IBM would say they haven't done anything wrong and anyone is free to
build their own completing hardware and software, but they do have a dominant
position so it will be worth following.
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 05:15 AM EDT |
| The first article I happened to read about this was the eweek article here.
Seems the article uses both Mueller and Miguel de Icaza
as the open source advocates on the issue.
At that point, the old spidey sense
started tingling and there must naturally be more to this. Of course, 2-3 days
later ... there is. [ Reply to This | # ]
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| Authored by: IMANAL_TOO on Saturday, April 10 2010 @ 05:43 AM EDT |
Emulators are layers on top of a base. Layers transmogrify the behaviour of the
base, to something else. In this case, Microsoft is apparently a base and
TurboHercules is a layer. Funnily enough the dirt from the base does shine
through and there is little new behavior. Normally the layer should protect the
base behavior. Yet, from what I can tell, TurboHercules is a very poorly
executed excuse for a layer. The layer lawyers better lay off, before the lay
community lay them off. Basically, history may repeat itself, once again.
---
______
IMANAL
.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 07:25 AM EDT |
Well, even if you have doubts about what IBM is doing here, at least IBM is
willing to specify its patents. Unlike Microsoft.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 08:33 AM EDT |
| The letter with the list of patents was dated March 11, but was not actually
received by TurboHercules SAS until March 25, according to the entry for that
letter on the web
page
listing them. [ Reply to This | # ]
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| Authored by: Ollathair on Saturday, April 10 2010 @ 08:53 AM EDT |
IBM have my confidence.
IBM have my Business.
IBM and I do a lot of FOSS.
FOSS is my employers business, hence mine.
They, like IBM, do very well out of supplying, supporting and other-wise, all
things FOSS.
FOSS, as in the GPL version.
Yes, they (My Employer) charge money for it. Lots of it.
Yes, they pay my wages with it.
Yes, the customers I deal with are happy to deal with my Employer, as well as
me.
Yes, we will supply IBM hardware to an IBM shop.
Yes, we will supply IBM hardware to a new customer that has any doubt about
brand.
Yes, we will supply Intel /Tyan / AMD / Sun based hardware to any customer that
wants something else, or else, insists on it.
FOSS, Rules! For a fee, mate!
So, am I rather suspicious if any one wants to attack my bread and butter.
Yes, mate!
So, am I rather suspicious if any one attacks FOSS, in whatever form?
Yes, mate!
IBM have my confidence.
IBM have my Business.
IBM and I do a lot of FOSS.
FOSS is my employers business, hence mine.
[ Reply to This | # ]
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| Authored by: Stumbles on Saturday, April 10 2010 @ 08:56 AM EDT |
One thing is for sure, TH has been reading SCO/McBrides playbook. Just like
McBride running around the country making unfounded accusations and at the
minimum twisting the truth, TH could not have picked up a better playbook.
---
You can tuna piano but you can't tune a fish.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 10:14 AM EDT |
PJ Wrote : "Look at the date of that press release. They filed with the EU
Commission on the date of the press release, March 23. Now look at the date of
the list of patents that TH specifically asked for and IBM sent them. March 11.
So is it true that IBM refused to identify the intellectual property that it
believes would be violated?"
Yet prior to this statement by PJ, Jmaynard had already stated on here, and PJ
had responded to, that although the later is dated the 11th, he didn;t receive
it until the day AFTER he filed the complaint with the EU commission.
So, now I am confused ...
What I see he is PJ apparently disregarding statements posted in good faith by
the prime source.
I had always thought the policy on here was to accept statements made in good
faith, unless there was good reason to beleive then to be false, no one has
offered any evidence that the statement made by jmaynard is false, so I have to
assume that PJ has chnaged her policy, or is delberatly showing bias towards IBM
for some unspecified reason.
To me, it looks like a clear case of a large corporation trying to squish and
open source project that threatens their revenue. What i cant understand is why
PJ has suddenly taken the "Patents are gooood, opensource is bad"
stance ...
most confusing.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 10:15 AM EDT |
And TurboHercules the new SCO?
MicroSoft funds FUD at Foss's expense.
Just think you can NOW have a blue screen of death on IBM mainframe programs
courtesy of Microsoft.
Do you wish to restart your Mainframe computer emulator as the OS has died from
shock.
I can see the reset button being pushed now.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 10:20 AM EDT |
Dear Microsoft,
you have a 100% monopoly on Windows branded operating systems. My company has
developed an open source x86 emulator for another platform and we demand that
you license Windows(TM) to run on our emulator. Failure to do so will result in
a monopoly abuse claim to the European Union.
We expect you to provide enterprise levels of support for our customers (24x7,
with on-site support from trained engineers when required), and to test your
software on our emulator. You will have to fix any problems that are found in
your software that are caused by timing differences, physical hardware
differences, etc. when running on our emulator. If you find any bugs in our
emulator we will of course fix them, but you'll have to tell us what they are
first. If we violated any patents whilst creating our emulator we expect them to
be ignored.
We look forward to hearing from you soon.
P.S. We are aware that other operating systems are available for the x86
platform (i.e. Linux), but we don't care. We want to host Windows applications
through our emulator.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 11:19 AM EDT |
We're getting buried under comments here, but there's one thing that has changed
which I really dislike and the only time I mentioned it was deep in a huge
thread.
Update: The Register's Timothy Prickett Morgan picked up
on the story behind this story last fall:
TurboHercules is
co-headquartered in Paris, France, where Bowler moved after he left the United
Kingdom, and in Seattle, Washington, in close proximity to the one big software
company that has in the past taken a shining to anything that gave Big Blue some
grief, particularly with mainframes. (Yes, we mean Microsoft).
Why are we citing THAT as proof? The Register is
more sensational a publication than most and you're republishing it as an
accusation. I'm going to have to quote your own words on that specific
argument. I'm quoting you from a ZDNet article here:
Th
ey have also been telling journalists that I live near IBM headquarters. That's
it. That is IBM's "sponsorship". Wink, wink. Get it?
You knew
that was a weak claim then, why did you trumpet it in its own update now, about
someone else? Besides, people can conspire over the internet, you know, without
being physical neighbors.
No PIPE fairy or other such mystery funding
has appeared, either, right? What did you say to rebut the absurd charges that
you were part of a pro-IBM conspiracy again? In the same ZDNet article you
wrote:
They [IBM] haven't given me any financial support of any
kind. Not a dime. Not a promise. Not a grant. Not a PIPE deal. Not an envelope
of money under the table from a cousin. Not a Thinkpad.
Nothing.
We have the same case here, do we not? Can you prove
otherwise? Please tell me that them selling computers that run Windows (and
being BSD heathens) isn't the link, or I'll quote even more of that article
about how IBM gave iBiblio some servers once. There's no proof that anyone is
in this alleged conspiracy, PJ, except for Microsoft and SCO and co., where we
have links upon links showing dirty deals.
I find this illustrative
because you were then defending yourself from the same type of charges
(membership in a conspiracy) that you now level against TH (the "shades of
Psystar" accusation). I do not, nor have I ever believed that you are part of
some IBM conspiracy, PJ, and I have defended you against those who claim
otherwise. But I'm not going to assume that anyone is Microsoft-backed (not
even Psystar) unless someone can meet the same level of proof we required last
time. I just hope that people don't think that holding
you to your own words makes me a bad person.[ Reply to This | # ]
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| Authored by: pem on Saturday, April 10 2010 @ 01:00 PM EDT |
Whether or not the emulator guys received the letter detailing the patents
before or after the press release is almost immaterial.
And whether the letters sent by IBM are *actual* threats or not is certainly a
matter of perspective. If I spent 10 years of my life coding on something, and
big MegaCorp sent me a letter (whether somehow invited by me or not) that
explained that they thought my decade's worth of activities infringed hundreds
of their patents, I would probably perceive that as a threat, or at least a
warning. What noun would you use?
But back to the issue of identifying property: If somebody told me I might be
infringing 200 of their patents, and I looked through the first few, and found
no relevance and no possible infringement, it would be my personal position that
they hadn't specified any IP I was infringing, and that their whole purpose in
giving the list was to bury me in paperwork.
I'm sorry, but "here's a haystack. There's a needle in it somewhere that
you're using that's ours" sounds an awful like SCO's behavior to me.
The community's response to the SCO accusations of infringement included
statements to the effect that Linux is developed in the open; all the code,
including the history of the code, is available for your perusal.
That response is also valid here. After all, this is an instruction set
emulator, which, in the grand scheme of things, can't be all that big. It's
been developed in the open for 10 years, the code is certainly available for
IBM's perusal, and if they really think there is some sort of patent
infringement, they are perfectly capable of rooting through the emulator code
and match a few functions up to a few patents.
Just like the FOSS community, IBM is not a monolithic entity. There are a lot
of groups, a lot of individuals, and a lot of (sometimes conflicting) goals. As
ESR points out (http://esr.ibiblio.org/) somebody higher up at IBM is going to
have to make a decision about where IBM as a company stands on the issue of open
source. Maybe it's not black and white. Maybe it's more nuanced than that.
Whatever their final decision, it would be appreciated if they could spell it
out in detail as best they can; otherwise they are the ones who risk being
lumped in with the guys from Redmond as an entity that uses fear to try to
control behavior that they cannot otherwise directly influence.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 02:37 PM EDT |
Update 9: And now that we have all the letters, please notice that
the company's press release conflicts with the record of what happened. Here's
what TurboHercules told the world:
Not only did IBM deny our
request, but it now suddenly claims, after ten years, that the Hercules
open-source emulator violates IBM intellectual property that it has refused to
identify.
Look at the date of that press release. They filed with
the EU Commission on the date of the press release, March 23. Now look at the
date of the list of patents that TH specifically asked for and IBM sent them.
March 11. So is it true that IBM refused to identify the intellectual property
that it believes would be violated?
Mr Bowler's quote in the press
release never claimed that IBM refused to identify their intellectual property.
This fact would be readily obvious if the preceding sentence of the press
release hadn't been omitted from the update and the claim provided in its
context:
"We originally wrote to IBM requesting that it license
its mainframe operating system to customers, on reasonable and fair
terms, for use with Hercules in certain circumstances. Not only did IBM deny our
request,..."
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 04:38 PM EDT |
A company that builds it's software on top of Windows Server?
This is so wrong in so many ways.
"I would hope TurboHercules would now correct its statement in that press
release, at a minimum."
I am sure you were speaking with tongue in cheek.
And the FUD just keeps rolling on and on and on...[ Reply to This | # ]
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| Authored by: SilverWave on Saturday, April 10 2010 @ 06:04 PM EDT |
Am I correct in reading this as confirming that TH had seen the reply from IBM
before filing the EU complaint?
"Indeed, just a few days before
we filed the complaint with the European Commission, Mr. Mark Anzani, the CTO of
IBM’s mainframe division, wrote to me to allege that the open source Hercules
emulator may have violated no fewer than 173 of IBM’s patents or patent
applications."
roger bowler about hercules and ibm
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 07:20 PM EDT |
with "open source" microcode. If the Hercules code in such a product
were "burned" in ROM it really would be what IBM calls "firmware". IBM
is saying to TurboHercules
"Oh you want to make hardware to compete
with our cheapest z10 BC? Have you cross licensed our patents like
Amdahl, Hitachi, Fujitsu and others like Fundamental Software did? Why not? And why
should we license our software to run on your hardware if you will not license
our hardware patents?"
Full disclosure: long time IBM employee
posting anonymously. Wrote my first OS/360 JCL in 1968, long before I worked
for IBM.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 07:58 PM EDT |
| Is somebody trying to set a record for number of updates in one post? [ Reply to This | # ]
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| Authored by: YurtGuppy on Saturday, April 10 2010 @ 09:18 PM EDT |
Mr. Maynard, I think you are a stand-up guy for coming on Groklaw and talking
about your project.
I get the impression that you are a bit caught in the middle though, since your
emulator is the basis of the TH product but you aren't in the company (as I
understand).
I think TH and IBM have used the open source emulator issue to try to leverage
against each other. And that is unfortunate. I hope they can work something out
without damaging your project.
I think IBM made a faux pas by referring to software patents in this context.
And I get the feeling that maybe TH kind of lead them in that direction in order
to put the pie in their face. But maybe I am wrong.
Wishing you well.
---
just swimming round and round[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, April 10 2010 @ 11:40 PM EDT |
Is there a copy of the November letters between IBM and TurboHercules, not just
a summary?
It seems like IBM's list of patents was actually a reply to a specific TH's
question about what patents might apply to 3rd party hardware running Hercules.
If so, then IBM's patent list is just a (polite!) answer to a question,
certainly not a threat.
It's very much like asking a simple question, "Who owns the trademark of
Linux?" Linus replies "I own the Linux trademark." and then the
original questioner gets all upset that Linus is now threatening people with his
trademark and he should be punished.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, April 11 2010 @ 12:12 AM EDT |
PJ, did you even read what he wrote?
Sepecifically, we would like
you to consider making available to your mainframe customers a license for
IBM operating systems on the TurboHercules platform. TurboHercules S.A.S.,
as the commercial entity, would provide support for a complete turnkey system
based on these licenses. The pricing, conditions and limitations of that
license [...]
The license he's talking about is for IBM's
proprietary software. Not for Heracles. Heracles is the product they claim is
covered by the pledge. Nobody I've seen is claiming that IBM's proprietary
software is covered by their OSS pledge (and why would it need to be). You're
talking about very different things and each update you write is even meaner
than the last.[ Reply to This | # ]
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| Authored by: Waterman on Sunday, April 11 2010 @ 12:18 AM EDT |
said Linux kernal also. Is TH the kernal? No. Slippery slope that TH put itself
on.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, April 11 2010 @ 12:52 AM EDT |
IBM has good DR programs and pricing on DR hardware, and
sells another operating system called VM, if there's a need
for a virtual machine to run multiple z/OS images on. IBM
already sells almost any sized box you want. IBM uses
capacity based licensing and charges by the month for
software support. That's the real issue here, TurboHercules
won't go anywhere, if IBM won't support the z/OS running on
top. Mainframe customer expectations are extremely high,
being down for days isn't acceptable in mosts shops. If IBM
tells it's customers that it's OK to run on a piece of junk,
and z/OS breaks, IBM is on the hook to satisfy the customer,
regardless of whose hardware or software caused the problem.
IBM hardly has a monopoly on the mainframe. There's a few
tape and disk vendors and several dozen 3rd party software
vendors that compete with IBM offerings. There's plenty of
non-IBM platforms with COBOL compilers for folks that want
to get off the mainframe. Amdahl and Hitachi both got out
of the mainframe system market when z/OS went to 64-bit real
memory addressing, neither wanted to make the hardware
investment, or license the technology from IBM. [ Reply to This | # ]
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| Authored by: Totosplatz on Sunday, April 11 2010 @ 12:52 AM EDT |
Justice John Paul Stevens is going to retire, Obama is laboring day and night to
find a replacement: PJ for the Supreme Court!
I like it!
---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location
varies).
All the best to one and all.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, April 11 2010 @ 04:46 AM EDT |
Update 10x refers to someone charging money for open source.
The Open Source Definition doesn't prohibit the attempt to
charge money. It only requires to make the open source
component available for free-of-charge download. Customers
then don't have to pay if they don't want to.
Red Hat and Novell offer Linux distributions and
subscriptions. They charge money. But that doesn't make
Linux itself proprietary and it doesn't mean that IBM could
say Red Hat and Novell are not open source and therefore the
pledge wouldn't apply. So it's the same with TurboHercules.
If they sold a package containing z/OS and Hercules (and
maybe other things, too), then Hercules is still open
source and z/OS is still proprietary and the pledge still
applies to the Hercules part - because no one can deny
people free-
of-charge open-source access to any version of Hercules
already published under an irrevocable open source license
such as the QPL.
Oracle 11g running on top of GNU/Linux doesn't make
GNU/Linux proprietary. Nor does z/OS running on top of
Hercules make Hercules proprietary. None of it means
Oracle's use and deployment of Linux would justify an
exception from IBM's pledge.[ Reply to This | # ]
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| Authored by: s65_sean on Sunday, April 11 2010 @ 08:04 AM EDT |
I don't understand update 10.
IBM's definition of Open Source Software is one thing, and it talks about access
to the source code of the Open Source Software being available without payment
of fees or royalties. I believe that Hercules is licensed under a license
recognized by the OSI as being open source for this definition.
Then there is the part where Turboherccules asks IBM to provide a license for
their mainframe operating system, and gives IBM the opportunity to set the price
for the license to their own mainframe OS. This has nothing to do with a price
for the Hercules software, it is about IBM charging customers whatever amount
that they wish for their own software. The Hercules software is still available
under its original OSI approved license.
I guess I may just be dense, but I don't see how TurboHercules asking IBM to set
a price for licensing the IBM Mainframe OS has anything to do with access to the
Hercules source code being available without payment of fees or royalties.[ Reply to This | # ]
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- Update 10 - Authored by: PJ on Sunday, April 11 2010 @ 12:58 PM EDT
| |
| Authored by: Anonymous on Sunday, April 11 2010 @ 08:46 AM EDT |
A is a person who lent money to many people. Being a good
person, A issues a pledge not to sue anyone who owes A
money.
Now, B is one of the people who owe A money, let's say
$1000.
One day, B sues A because he claims A owes him $500. Let's
say he can prove that.
Now what? Is A preempted from saying "but B owes me $1000,
so I'm not required to pay him anything, because on
aggregate he still owes me $500"? Does he have to pay B the
$500 simply because he issued a pledge not to sue anyone,
including B, for not returning his $1000?
Wouldn't that be grossly unfair?
Here, IBM issued a pledge regarding its intended behavious
towards its patents. But IBM never put these patents in the
public domain (i.e. waived all possible claims).
__
magicmulder[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, April 11 2010 @ 10:57 AM EDT |
PJ:
See the mismatch for yourself? I read that as saying that TH
wanted IBM to come up with a license, for which they would be
paid.
This is a stretch, to say the least. Let's look at what
TurboHercules SAS asked
for again:
Sepecifically, we would like you
to consider making available to
your mainframe customers a license for IBM
operating systems on
the TurboHercules platform. TurboHercules S.A.S., as
the commercial entity,
would provide support for a complete turnkey system
based on these
licenses. The pricing, conditions and limitations of that
license would be at
the sole discretion of IBM on reasonable and fair
terms.
The license they seek is not for the Hercules emulator;
they've already got
that, under the same Open Source Definition-compliant terms
as anyone
else. The license they seek is for IBM's software. That is
entirely
consistent with the terms of the patent pledge.
Since the premise
of your argument is incorrect, the argument that flows
from it is, likewise. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, April 11 2010 @ 11:12 AM EDT |
173 patent mentioned in the letter dated March 11, 2010
2 patents mentioned in the letter that are also in IBMs Patent Pledge
173 - 2 = 171 patents remaining that could be asserted
Mole Hill = Mountain?
TurboHercules would have you believe that IBM included its entire patent
portfolio in the Pledge.[ Reply to This | # ]
|
- Do the Math - Authored by: pem on Sunday, April 11 2010 @ 01:45 PM EDT
- Do the Math - Authored by: Anonymous on Sunday, April 11 2010 @ 11:58 PM EDT
- Do the Math - Authored by: PJ on Monday, April 12 2010 @ 12:12 AM EDT
| |
| Authored by: Anonymous on Sunday, April 11 2010 @ 11:53 AM EDT |
It seems that TH would like to define "Platforms upon which IBM Mainframe
Operating Systems run" as an market unto itself. Quite the ego-booster for
IBM. True? Hardly.[ Reply to This | # ]
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| Authored by: warner on Monday, April 12 2010 @ 01:20 AM EDT |
jmaynard,
If you are all that you say I can understand your dismay at what is unfolding.
I would encourage you to separate yourself from and seek recognition from IBM of
the separation of actions of TurboHercules and your project.
Folks around here are pretty quick in smelling a rat and almost as fast in
nailing it to the wall.
If you truly don't have any connection to TurboHercules I'm not sure why you are
so determined to get in the middle of this, yes I have read your repeated
statements that positions/assertions/threats/infringments against TH
(TurboHurcules) are by definition against your project.
I would consult with IBM and an attourny of your own on that. I would suggest
that the SFLC might give you guidance and perhaps mediation between your project
and IBM (even though you bad mouthed Richard and the GPL ;).
However as far as TH goes I at first found it odd in a comment of yours that TH
runs primarily on Win2008, what an unusual choice to support Mainframe emulation
and workloads.
Linux seems a much better fit, why wouldn't they support Linux? Ah, they do,
*SUSE* Linux. They list prefered platforms as Win2008 and SUSE, hahaha... I'm
*sure* that is just a coincidence.
As far as TH goes I will be shocked if this doesn't turn out to stink to high
heaven. Maybe it's clean but I will be shocked.
Don't make TH's fight your fight, don't assume your project's goals and their
business "objectives" line up.
You deal with your project and let TH or whoever is behind them (if in fact
someone else is behind them) deal with this fracas they have started with IBM.
regards
---
free software, for free minds and a free world.[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Monday, April 12 2010 @ 05:17 PM EDT |
PJ,
I read that exchange somewhat differently than you do.
I understood TH suggesting that IBM create a special license for z/OS to run on
top of Hercules and charge for that license. That does not seem to me to
conflict with open source software or the patent pledge. It doesn't have
anything to do with patents but rather with proprietary software running on an
open source platform, much like Windows programs running on Wine.
As I understand it Hercules already emulates the hardware, and can run any of
the OSs that the hardware can run, those apparently include Linux and
OpenSolaris as well as several IBM OSs. However in order to run z/OS, the latest
greatest and most capable OS, the user needs a license from IBM.
IBM has declined to offer a license for that use, which seems well within their
rights. I really don't see how the patent pledge enters into it all. Even
reading IBM's letter listing the patents they believe are directly involved,
doesn't directly implicate Hercules, many of these patents may be implemented or
accessed only through z/OS, I can't say since I have no idea what most of them
do.
As you point out IBM's patent pledge never said that every IBM patent was
available for use in Open Source and I can imagine that they may take issue with
someone using some of their patents in open source. If that happens we'll likely
hear from IBM fairly quickly.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, April 12 2010 @ 10:41 PM EDT |
See the mismatch for yourself? I read that as
saying that TH wanted
IBM to come up with a license, for
which they would be paid. That alone
takes the offering
outside of the pledge, in that the pledge is only for
software that does not require royalties or fees under the
license.
The pledge states that the recipient must be
allowed to
copy, modify and distribute the program's source code
without
payment of fees or royalties. This does not mean
that the recipient did not
pay a fee to get the product.
This is allowed ( just as it is with the GPL).
You can
charge for your changes, but you have to give them the
source
(including your changes) and the recipient has the
same rights that you
have.
That said, my take on it is that the fee is for the
IBM
OS and
not the Hercules code
One more thing regarding IBMs pledge:
If
software infringes on one of the patents covered
by
the pledge, the pledge
does not magically make it not
infringe. The software most certainly would
still infringe.
The pledge simply means that IBM has pledged not to sue for
the infringement. But, the software still infringes and IBM
can certainly say
so. It doesn't mean that IBM will not
abide by their pledge. In this case, IBM
appears to have
used the statement to help explain why they would not be
inclined to offer a license for their OS on those platforms.
That seems pretty
reasonable to me.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 13 2010 @ 10:55 AM EDT |
I posted the following to
http://www.linux-foundation.org/weblogs/jzemlin/2010/04/07/ibms-open-source-pate
nt-pledge/
*****
Neither of TurboHercules' products, turnkey and binary only version, has the
sources specified fully and hence is not (or should not) be considered Open
Source Software as per the IBM pledge.
You cannot specify the sources fully if the build process involves proprietary
(closed source) components. Any proprietary component can change any arbitrary
part of the software to behave very differently from what would be anticipated
by looking only at the source code for that component being built. We need the
source code (or a full and correct specification) for the full build platform to
ensure an open system.
Each version of TH's product appears to require access to Microsoft software
(build time and/or runtime). I am not certain of this, but I suspect this is the
case based on what I read at the hercules project website in the Windows binary
section. TH does state on their website that they use an optimized binary. I
think we can almost be sure that they use Microsoft software in the build
process and perhaps even used Microsoft software that was taylor-made for the
purpose (eg, special compilation and a special license or partnership with
Microsoft).
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 13 2010 @ 11:42 AM EDT |
Come to think of it, no binary for Windows should be considered FOSS (so long as
Windows+friends are closed source and/or not fully and accurately specified).
Further, if you take GPL source code and build it for Windows using such
Microsoft tools or use such ill-defined Windows (closed source) interfaces, then
you would be in violation of the GPL if you don't include the source code (or
full correct specification) to this Microsoft build and run time software.
In short, not only can we not verify WinFOSS binary behavior, but likely such
typical "GPL" WinFOSS binaries are in violation of the GPL.
http://www.gnu.org/licenses/old-licenses/gpl-2.0.html
>> 3. You may copy and distribute the Program (or a work based on it,
under Section 2) in object code or executable form under the terms of Sections 1
and 2 above provided that you also do one of the following:
>> a) Accompany it with the complete corresponding machine-readable
source code
http://www.gnu.org/licenses/gpl.html [gplv3]
See the analogous sections as quoted for gplv2 above and read the definitions
for "source code", "Standard Interface", "System
Libraries", and "Corresponding Source"
I think at some point in time people helping to support Windows by bringing in
new $0 features to that platform by way of WinFOSS binaries will have to decide
to stop that behavior or else accept that they are violating the GPL.
It would surprise me not one bit that Microsoft has shun the GPL for a long time
specifically because they know their build tools and run times do not conform to
any public spec. [Simply, they don't provide source code, so we cannot see their
"bugs".]
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| Authored by: ak on Tuesday, April 13 2010 @ 02:54 PM EDT |
| I agree. I wonder how Roger Bowler will explain that
contradiction.
Inconsistant arguments are somthing I really dislike. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 13 2010 @ 03:15 PM EDT |
No, he openly states that the letter was written several days earlier, not that
he received it several days earlier.
You are twisting his words to fit your conclusions.[ Reply to This | # ]
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| Authored by: hula on Wednesday, April 14 2010 @ 07:54 AM EDT |
I've been lurking around this site since 2003. I have been educated in the US
legal system in the best way imaginable. I have read technical descriptions more
clarifying than most textbooks. However, this discussion compelled me to finally
get a user name and throw some rocks at the subject. Although the legal and
technical analysis are just fine, it is obvious that neither PR or market
strategy people hang out here.
First, to say that TH is a competitor is a bit of an exaggeration. They could
have been an aspiring potential future competitor some time in the not very near
future. It's like saying that elephants and mosquitos are competing in the
ecosystem because they both have trunks. The "we're not going to buy
you" can be found in the letter (see part about not innovative).
When you're as big as IBM you don't kill off little companies doing things in
your space. After all, if they do something creative, you can buy them later. No
one is going to fly under the radar and suddenly take a big bite out of big
blue. Also, in my opinion, waywayway less likely to ever happen with an
emulator.
If you for some odd reason do want to squash the annoying mosquito, patents are
not your weapon of choice - especially not in the current patent hostile
climate. It's a bit like hunting mosquitos with artillery guns, costly and
inefficient. Even taking FOSS completely off the table, asserting patents at a
small company is just plain silly. Patents are for keeping the other elephants
at bay.
IBM has a very special relationship with its patents. IBM people are very proud
of their patents, and it is hard to ever have a conversation with them without
patents being mentioned. Personally, I think it is more for the collective ego
trip/trophy value than the patent revenue, even though the later probably
doesn't hurt one bit.
Now, if you really hate patents and yourself, you could always go after a
private citizen. If I could find a way of getting IBM to sue me for my FOSS
project, I'd be dancing all night. From IBMs perspective I have nothing
whatsoever of value. Were they to sue me, they can have it all, since all my
thousands of new friends will take care of me and my newfound fame would shoot
me into the limelight. I would pretty much be set for life. From a public image
perspective it would be a relief for the media industry to finally get the
stigma of going after grandma for copyright infringement out of focus. I guess
it might also prompt some reform to the patent system, but I wouldn't get my
hopes up too much on that. For IBM, the public image cost would be
insurmountable. By insurmountable, I mean actual money, like the kind that buys
islands in the Caribbean.
The normal modus operandi for this sort of nonsense is to ignore it until it
goes away. Unfortunately, the FOSS community as a group seems to suffer from
borderline personality disorder, and needs constant reassurance in order not to
go ballistic in some new creative way whenever someone screams wolf.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 15 2010 @ 07:08 AM EDT |
| Donofrio's statement in 2004 was not limited to 500 patents, it referred to
IBM's full portfolio, but only in relation to Linux, presumably because he made
it to a Linux audience.
It was in that statement that he reserved the right to
use patents against Linux, if IBM were attacked.
Some members of the OSS
community pressed for a stronger statement, and so five months later (Jan. 2005)
the pledge was born. It was limited to a list of 500 patents, but applied to
development, use, or distribution of any software available under an
OSI-approved license. And, instead of reserving the right to use those patents
to defend IBM, it reserved the right to use them to defend OSS.
So,
it is not correct that Donofrio limited the terms or scope of the pledge, his
was a separate announcement made months earlier. [ Reply to This | # ]
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