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Digging a Little Deeper into TurboHercules/IBM - OpenMainframe.org and Microsoft - Updated
Sunday, April 11 2010 @ 11:14 AM EDT

When IBM said that TurboHercules was a member of organizations Microsoft is a member of, it was particularly talking about OpenMainframe.org. It's an organization that seems dedicated to attacking IBM's mainframe business. It describes its purpose like this:
OpenMainframe.org is a forum for exchanging news, views and information related to creating an open market for IBM-compatible mainframe solutions....In the interest of helping mainframe customers, we believe the public should be made aware of how IBM’s actions harm consumers who rely on mainframe systems and services.
So it's an anti-IBM organization. You'll see they are currently highlighting TurboHercules. Their news archive on their home page is all about TurboHercules, but it doesn't include Groklaw's coverage. Neither does TurboHercules. I find that a telling omission, frankly. If you only include positive articles from your own viewpoint, it's more like Microsoft's "Get the Facts" web page, pushing a point of view by telling only part of the story, and in that case not always so fairly. That could be more than a coincidence, since IBM says Microsoft is the force behind OpenMainframe.org, as I'll show you.

However, OpenMainframe.org has on its website a number of legal documents that you may find helpful in digging a little deeper into the TurboHercules-IBM conflict.

In particular, they have some documents from the PSI/T3 case that was terminated in IBM's favor in September of 2009. One document in particular explains some things about antitrust law, and in fact it makes me suspect that TurboHercules chose the EU Commission instead of filing in New York State precisely because it would not likely have succeeded in New York, where T3 lost. Let's take a look at why they lost, because it relates to the refusal to give a license issue.

Here's the document, the Judgment [PDF] in IBM v. Platform Solutions, Inc. and T3 Technologies, which explains why T3's antitrust complaint against IBM, which included complaining about refusal to deal, ultimately failed. It failed for a lot of reasons, in part because T3 tagged along with PSI, intervening as a defendant in the case, and when PSI was bought by IBM, it impacted T3's standing. If you read the whole document, you'll see why, but I want to focus on something else.

Interestingly, I read the memorandum as saying that PSI could not have prevailed on such a claim -- refusal to license -- even if IBM had not bought them. I take that as an indication neither would TurboHercules in New York. Let me show you the wording that drew my eye, the section on Refusal to Deal beginning on page 19:

II. Refusal to Deal

T3's lack of antitrust standing is dispositive. But its claims would fail in any event. For even assuming arguendo that T3 had antitrust standing, its claims would fail because it cannot establish that IBM's refusal to deal with FSI and PSI is actionable under the Sherman Act.

The antitrust laws do "not restrict the long recognized rights of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal." Nevertheless, that right is not unqualified. A refusal to deal with a rival can violate the Sherman Act if a party terminates a "voluntary (and thus presumably profitable) court of dealing... to forsake short-term profits to achieve an anticompetitive end."

In that case, the allegation was based on IBM refusing to renew a license to someone who had a license that ran out, and then when PSI sought a license to the same upgraded code that TurboHercules wants to license, z/OS, IBM said no, and yet IBM still prevailed in that litigation. You can read how T3 spins it in an article by Steven Friedman, President of T3, highlighted on OpenMainframe's homepage. How likely, then, is it that TurboHercules could prevail, where PSI and T3 couldn't, when it can hardly claim it fits under that limited exception to the right of any company to decide who it wants to license to, when TurboHercules had no prior license to complain about?

It looks like in NYS, then, TurboHercules would have no case on that point. So off to Europe where the laws are not identical to US antitrust law? In fact, Friedman's article indicates that T3 filed in Europe as well, but I don't see him even mentioning that he lost in New York. Instead he says this:

IBM, for no reason other than to remove all competition from the mainframe market, eliminated programs to allow customers to buy IBM mainframe software for use on non-IBM mainframe solutions and took legal action to shut down PSI. When PSI countersued IBM and filed complaints in Europe and the US, IBM decided in July 2008 it was easier to just buy PSI and take them out of the market rather than fight them in court and risk waking up the anti-trust authorities in Europe and the US. With both PSI and FSI taken out, we are effectively no longer able to pursue new business with either of our IBM-mainframe-compatible product families. Again, I would like to stress that this is not because our products don’t work. This is strictly because IBM – through its actions and licensing decisions – will not allow us to exist.
That is not at all what the judge ruled in the New York case. He said IBM had upgraded to 64-bit, spending a fortune to do it, that it had no obligation to continue to support an earlier product, that T3 lacked standing, had no antitrust injury and that IBM has the right to decide who to license to, and on top of that I read it as indicating IBM didn't need to buy PSI, because it would have won anyhow. Here is the part about not needing to support older products:
The chief and perhaps only product in question was another IBM-compatible server called the Liberty Server, which was comparable to the tServer in an important respect. It was an Intel-based machine that used PSI firmware to emulate IBM's z/OS operating system. In consequence, the Liberty Server could run applications and programs designed to run on the z/OS operating system despite the fact that the Liberty Server used an Intel rather than an IBM processor. But PSI too required a license from IBM for the z/OS operating system in order to make its product available without infringing IBM's rights.

T3 claims that PSI sought such a license and... that IBM in 2006 ultimately refused to license z/OS to PSI. As a result of IBM's decision not to license z/OS, T3 sold only five Liberty Servers....

T3 contends that IBM's decision "to cease a prior course of conduct" violated the antitrust laws. Specifically, it challenges IBM's decisions to stop freely licnesing it patents and supportig its OS/390 operating system. According to T3, IBM had "no legitimate business reason" for changing its patent licensing practices," and "its sole purpose was to suppress competition from a more favorable technology."

T3, however, cannot satisfy the "limited exception" to the refusal to deal doctrine. Specifically, T3 has not demonstrated that IBM has foregone short term profits by refusing to license its patents "to achieve an anticompetitive end." IBM invested billions of dollars to develop its sixty-four bit operating systems, which contain numerous technical improvements.... It introduced them to make its operating systems more functional and competitive with distributed systems as the market for thirty-one bit technology waned. In these circumstances, IBM is not required to support and maintain its thirty-one bit technology. IBM's refusal to support and license its operating system to FSI and PSI therefore does not constitute anticompetitive conduct under the Sherman Act....

For the foregoing reasons, plaintiff's motion for summary judgment dismissing T3's complaint... is granted. As this terminates the last open claims, the Clerk shall enter final judgment and close the case.

But it lives on as a FUD item on OpenMainframe.org's site, which certainly does not highlight this ruling. Read it for yourself, the entire memorandum, though and form your own opinion as to the accuracy of Mr. Friedman's characterization. Perhaps he needs to update that article to make it clear T3 lost and that the reasons it lost rebut what he wrote.

As to why they are all piling on IBM, might this be the reason, that they think there will be big money in mainframes and the cloud? As OpenMainframe.org's article puts it:

“Cloud Computing” is getting a lot of coverage in the press and from industry analysts these days. Cloud Computing has the potential to offer customers the ability to rapidly scale computing resources based on demand and to save IT organizations money by offloading the cost of capital purchases and IT administration to service providers. Virtualization and automated provisioning will play key roles in helping vendors deliver the exact resources their customers need in a streamlined way.

Some experts say Cloud Computing will be the next new paradigm for enterprise computing – some say it is just a re-birth of ASP (Application Service Provider) or timesharing computing. Numerous models have emerged from the biggest players in the IT world to provide software, infrastructure, platform, and storage as a service. Some vendor models define Cloud Computing as IT services provided by off-premises datacenters, some define Cloud Computing as a remote extension of traditional on-premises datacenter computing and some define it as Software plus Services.

As a matter of fact, HP and Microsoft in January announced they have agreed to partner in the cloud:
Microsoft and HP talked up some gaudy numbers -- specifically, the two companies will be investing $250 million over three years to better integrate Microsoft products like Microsoft Exchange Server, Microsoft SQL Server and Microsoft Hyper-V with HP's server, storage and networking hardware, while devoting 11,000 sales reps to pushing the resulting bundled technology stacks....

As Ashlee Vance of The New York Times put it so aptly, the core communication seemed to be "that Microsoft and HP have formed a really, really, really tight relationship that supersedes their previous really, really tight relationship."

Coincidentally, IBM gets knifed in the back just in time for this partnership to prosper, eh?

You can get a little insight into OpenMainframe.org from this article about allegations of monopoly of the mainframe market in India:

IBM was quick to denounce the report. It alleged that OpenMainframe was the actual author of the report. "OpenMainframe.org is bought and paid for by Microsoft and other IBM competitors, so it's hardly surprising that it would be making an anti-IBM argument. This report has no credibility," an IBM release said.

There is some truth in the allegation. The website OpenMainframe.org shows that it's a forum that has the objective of creating an open market for IBM-compatible mainframe solutions. "In the past, there have been multiple vendors for IBM-compatible mainframes, including companies such as Hitachi, Amdahl, Comparex, Platform Solutions and T3 Technologies. Today there is only one viable company selling IBM-compatible mainframes: IBM," the website says. It also goes on to thank Microsoft, T3 and others for their support in helping to make the website "a reality".

IBM said that to call its mainframe a monopoly is "silly."

"IBM servers face vigorous competition. In fact, only a decade ago, the IBM mainframe was on the verge of extinction because of competition from Wintel and other distributed platforms that still heavily dominate the market. But by investing billions of dollars in research and development, IBM improved the mainframe platform and enhanced its competitiveness," the release said.

It then goes on to say that IBM had regularly lowered the prices paid by clients for doing work on the mainframe. "As a result, IBM's clients have benefited from innovation on the platform, and an alternative to Unix and Windows has been preserved. Continuous quality improvements and reduced prices are not what one would expect from a so-called monopoly," it said.

The article goes on to say that the report alluded to was sponsored by OpenMainframe.org:
The report, sponsored by Open-Mainframe, says IBM has a 50 percent share of the high-end computer market in India, while HP has 33 percent and Sun Microsystems 17 percent.
I can't help but notice that the proposed business plan that TurboHercules pitched to IBM mentioned its turnkey solution, the hardware/software offer, and that product offering includes HP hardware. What is HP's role in all of this? To be determined. It does make me wonder, though, when I read on OpenMainframe.org's site that this is all a push to open up standards in the mainframe market. Since when does Microsoft care about that? And may I ask why OpenMainframe.org doesn't list who owns the site and who the membership consists of? I can't find an About Us page and even the domain name registration is a private registration, so the owner can't be identified. Now, bloggers do that, so that netkooks don't show up on their doorstep and harm their children, but a trade organization? I can't find anything about Microsoft's involvement on the site. What? They're not proud of their handiwork?

This CRN article from January of 2009 shows that Microsoft invested in T3 and PSI, while it denied it has anything to do with them afterwards suing IBM. And you know Microsoft is known for always being as honest as the day is long, particularly in competitive matters:

Microsoft could be the driving force behind the latest antitrust complaint filed against IBM, according to an industry watcher who sees similarities to previous suits against Big Blue. However, Microsoft denies that it's involved in the case....

Waters notes Microsoft in early November invested an undisclosed sum in T3 Technologies that could be the financial fuel for its latest legal salvo....

Waters likens T3's situation to that of Platform Technologies, another mainframe solution provider that was sued by IBM in 2006 for patent violations, and, after getting a $37 million cash infusion from Microsoft and other investors, then turned around and filed antitrust suits against IBM in U.S. and European courts. IBM acquired Platform Technologies in July 2008 for an undisclosed sum.

We all know Microsoft would never fund a proxy's litigation against IBM. Oh. Wait. That's what happened with SCO. Hmm. Microsoft gave this hilarious statement to CRN, waxing poetic about openness:
"Like T3, Microsoft believes there needs to be greater openness and choice for customers in the mainframe market. Customers want greater interoperability between the mainframe and other platforms, including systems that run Windows Server," the spokesperson said.

"That's why we continue to invest in companies like T3 Technologies and other startups: to develop new solutions for our mutual customers."

Why, lookahere. Microsoft is fighting for greater openness and choice. They must have been struck by lighting or something, then, on the road to Damascus. I don't think that is otherwise what they've historically been known for. Here's the Richard Waters piece in Financial Times:
Whenever a significant legal challenge is filed against IBM, it seems you don’t have to scratch the surface much to find Microsoft lurking somewhere in the background.

Take the complaint that has just been filed with the European Commission against IBM’s mainframe monopoly. T3, the Florida company that brought the case, was the recipient of a Microsoft investment just two months ago....

Is it paranoia to see a Machiavellian motive behind Microsoft’s investment? There is certainly a pattern here.

In November 2007, the software company was part of a $37m investment round in Platform Solutions Inc, another company that had tangled with IBM in court. The timing was interesting. Just two months before, Microsoft had lost its landmark anti-trust case in the European courts - a precedent-setting decision that encouraged PSI to turn to Europe as well (as we reported at the time.) Armed with the extra cash, PSI took its case to Brussels early last year, before eventually agreeing to be bought out by IBM.

The most famous example, of course, was Microsoft’s financial backing for SCO Group, which brought a lawsuit against IBM over alleged intellectual property infringements in Linux. Though ultimately unsuccessful, the SCO case cast a cloud for years over the potential IP pitfalls in Linux. Who knows how important that was in limiting the damage to Microsoft’s operating system business?

Indeed. And now, just as HP and Microsoft launch their new partnership, here come the clouds over IBM again. Here's an article about their joint press release about the partnership, and notice the focus:
Talk about a heavyweight card. Microsoft (NSDQ:MSFT) and Hewlett-Packard (NYSE:HPQ) rolled out their high-profile CEOs Wednesday to pitch a new technology stack collaboration for the data center that will see $250 million invested by the companies over three years and focus largely on cloud computing.

"The world is accelerating and the movement to modern data center approaches is absolutely accelerating. [And] that really means a movement to a cloud model based upon well-defined and well-integrated virtualization and management approaches," said Microsoft CEO Steve Ballmer, explaining why the Redmond, Wash.-based software giant was entering the partnership with Palo Alto, Calif.-based HP at this time.

Calling it "the deepest level of collaboration and integration and technical work" that Microsoft and HP have every embarked on, HP CEO Mark Hurd added, "It was time for us to really align our enterprise businesses."

Well-defined and well-integrated virtualization and management approaches, eh? Sort of like TurboHercules wishes to offer? I don't know if Microsoft invested in that company too or not, although I'd like to know. What I believe, though, is that this is a well-defined and well-integrated campaign, and Microsoft has a strong stomach. It doesn't mind using "open" for its own proprietary ends, and it doesn't mind using members of the Open Source community too, if it can find some to use. And it, sadly, sometimes does. But why would that be in the interests of the community at large? I see no possible benefit. And why, pray tell, would any FOSS person want to lie down in a bed of fleas like this one?

IBM is quoted by InformationWeek saying this about OpenMainframe.org:

IBM also sees the hand of rival Microsoft behind TurboHercules' actions, given that TurboHercules is a member of an industry group, OpenMainframe.org, that's backed by the software maker.

"TurboHercules is a member of organizations founded and funded by IBM competitors such as Microsoft to attack the mainframe. Such an antitrust accusation is not being driven by the interests of consumers and mainframe customers--who benefit from intellectual property laws and the innovation that they foster--but rather by entities that seek to use governmental intervention to advance their own commercial interests," IBM's spokesman said.

IBM said it made a strategic decision to stick by mainframes in the 1990s, when other vendors were moving toward distributed and client-server computing, and now deserves to reap the rewards.

"Only a decade ago, IBM's mainframe platform was on the verge of extinction because of intense competition from other types of computing platforms. IBM invested billions of dollars in R&D--when everyone else left the market--to upgrade the platform, create a new generation of microprocessors, and develop improved mainframe technologies," IBM's spokesman said.

"The mainframe is a small niche in the overall server market, but customers benefit from an improved platform and alternatives to Unix and Windows. IBM is fully entitled to enforce our intellectual property rights and protect the investments that we have made in our technologies," the spokesman added.

So this is a group of folks who want to take some of IBM's business, I gather, or just damage it, and that makes all the holy talk of openness and standards to a new and rather disgustingly hypocritical level. What I think they want is a long, long PR opportunity. Do they even care if the litigation goes their way, if they get the cloud over IBM to last? Excuse my cynicsm, but I've been watching the SCO saga for seven years. That means all my cells are new. And I don't think Microsoft cared a bit about what happened in the end to SCO. It just handed them some money for, among other things, "patents" that don't exist, and then it enjoyed the FUD cloud that litigation inevitably creates for the victim.

Incidentally, there was a paper [PDF] on the subject of refusal to deal by Professor Andrew Chin, and in IBM's answer [PDF] to him you can discern quite clearly what IBM's position is. For completeness, here's Professor Chin's response to IBM [PDF]. In particular, I wanted to highlight two points IBM makes:

The inventions disclosed by the IBM patents are embodied in IBM's mainframe hardware as well as its operating systems.

Professor Chin suggests a more benign interpretation of what these so-called "emulator" companies are attempting to do. As he sees things, they want IBM's intellectual property only to "interoperate" with IBM's mainframe system. Not so. IBM already discloses the information needed to interoperate with IBM mainframes -- indeed, most mainframe customers use their mainframes in data centers where mainframes, distributed servers, and other technologies co-exist and interact with one another on a continuous basis. But these "emulator" firms seek access to IBM's intellectual property so that they can copy it. Not unlike a street vendor selling "Gucci" handbags, they offer customers no new functionality or improved performance: they simply appropriate IBM's innovative technology for themselves and seek to profit from it. Sure, these firms boast of being the "cheap alternative" to the original -- just as do street vendors. But that is an easy trick when you can avoid sinking billions of dollars into uncertain research and development and just rely on the fruits of someone else's labor IBM, not surprisingly, is not interested in contributing to such an effort.

I take from that a direct comparison to the Psytar case. They wanted exactly the same thing, asserting that writing their own operating system was too hard, so they had to take Apple's in order to make some money. And it's distinguished from the SAMBA complaint against Microsoft, which was successful, in that they were not asking for any Microsoft code, only APIs, and they paid them for that too.

But notice another important fact, that IBM's patents are both hardware and software related. That's another reason why I don't think TurboHercules qualifies for the patent pledge, actually, even if Hercules alone could, because they are selling a hardware and software solution, not just software. The fact that some of their hardware implementation uses "open source" does not make them an "open source software distributor." What TurboHercules is offering is hardware, and the "open source" part of their hardware product is really microcode. In an IBM System z hardware product, as I understand it, there would be lots and lots of microcode (which we now call "firmware" in several flavors: millicode, i390 code, etc.) which is not distributed or customer-modifiable and implements the System z architecture. I simply cannot see why someone who built hardware offerings to compete with IBM's hardware implementation would be considered an "open source software distributor." And that is an important distinction between the open source project, Hercules, and the proprietary company that happens to include Hercules as part, but only part, of their offerings, TurboHercules.

Update: Brian Proffitt has the best overview of this unfolding story so far, for those looking for a quick summary. The only corrections I would offer is I don't see Florian Mueller as a FOSS person, and I would note that TurboHercules's Roger Bowler has written that they did in fact receive the IBM letter with the list of patents that Bowler had asked IBM to provide prior to filing the complaint against IBM with the EU Commission:

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.
This contradicts the company's press release, which said IBM had refused to provide that information:
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.
Which is the truth? I don't know. But I know they attacked IBM in the press from both directions, meaning they intended to attack IBM no matter what IBM did. That ought to inform our opinions, don't you think? And I hope TurboHercules clarifies the conflicting stories and apologizes as appropriate, if they feel it would be the right thing to do.

  


Digging a Little Deeper into TurboHercules/IBM - OpenMainframe.org and Microsoft - Updated | 951 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Florian Müller Connected to CCIA
Authored by: schestowitz on Sunday, April 11 2010 @ 11:25 AM EDT
Surpr ise, surprise. Not.

---
Roy S. Schestowitz, Ph.D. Medical Biophysics
http://Schestowitz.com | GNU/Linux | PGP-Key: 0x74572E8E

[ Reply to This | # ]

Corrections Here...
Authored by: feldegast on Sunday, April 11 2010 @ 11:44 AM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2010 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Digging a Little Deeper into TurboHercules/IBM - OpenMainframe.org and Microsoft
Authored by: Anonymous on Sunday, April 11 2010 @ 11:51 AM EDT
What TurboHercules demonstrates, quite simply, is that one should not build
one's business model around a proprietary implementation that belongs to someone
else - unless one has safe contractual agreements in advance, at least. Why
build an open source implementation of something when the whole implementation
depends on someone else's proprietary software?

That said - this follow-up article could at least have some friendly mention of
jmaynard's longer comment in the previous article. One of the strengths of this
community is that everyone gets their say. One clear point in his comment is
that the Hercules project, at least, is not funded by Microsoft. The present
article could state this more clearly.

Note - I post anonymously because I have always done so, but:
- I have no connection whatsoever to Hercules et al. or the mainframe in
general
- I do not think TurboHercules' actions are justified in any way, already for
the above reasons
- I am also wary of IBM's invocation of patents here, even if they can
technically do so
- and finally, I do not think that IBM would seriously need to base any further
actions on their patents in this case anyway - why would they? No use doing so
(what would be the use if the matter is antitrust anyway), and way too much harm
in public perception, whether justified or not.

[ Reply to This | # ]

News Items here
Authored by: lordshipmayhem on Sunday, April 11 2010 @ 12:04 PM EDT
Discussions on items mentioned in the news column on the main page

[ Reply to This | # ]

Off topic here
Authored by: lordshipmayhem on Sunday, April 11 2010 @ 12:06 PM EDT
Please make all links clickable!!

[ Reply to This | # ]

Seems a little like the Cold War...
Authored by: Grog6 on Sunday, April 11 2010 @ 12:07 PM EDT
M$ on one side, IBM on the other, with the EU as this decades' Korea or
Vietnam.

Does that make us the underground?

:)

Which SciFi author was it that wrote about the corporate wars? I seem to
remember suicide bombing against IBM in orbit or on the moon...

---
I am not a Number, I am a Free Man. - Number 6

[ Reply to This | # ]

Speaking of issuing a correction...
Authored by: Anonymous on Sunday, April 11 2010 @ 12:08 PM EDT
PJ, in an earlier post you say:
Would that you were as sensitive to attacks on others, like IBM. For example, note update 9. I see in the press release they put out, on March 23, that they claimed IBM had refused to identify the IP it believed TH would infringe. But they sent that letter on March 11, prior to that press release going out. I think the law might view that as slander, actually. At any rate, it looks like a smear campaign against IBM. So, will TurboHercules issue a correction? If not, why not?
Well I have given you info on international delivery times twice yet you fail to issue your own corrections. Why is that?

-the former DodgeRules-

[ Reply to This | # ]

All thing COMES here...
Authored by: jbeadle on Sunday, April 11 2010 @ 12:51 PM EDT
Keep 'em coming, gang!

Thanks,
-jb

.

[ Reply to This | # ]

Psystar revisited
Authored by: HockeyPuck on Sunday, April 11 2010 @ 01:31 PM EDT
Apple develops the hardware for their OS (which they also develop). Psystar
makes (or piece meals) hardware to develop their "brand" and wants
Apple to allow Mac OS to run on the machine to create Psystar's version of the
"Apple computer". The court said not only no, but heck no! Apple has
to license this to you to be legal. And their are in their rights NOT to license
you anything

TurboHercules wants the exact same thing. What these companies fail to realize
is that development is never ending. Apple and IBM foot (just a guess) billions
of dollars for innovation, development and support of these technologies. TH and
Psystar wants to profit on someone else hard work without contributing
anything.

The better business model (in my unprofessional opinion) is TurboHercules
approaches IBM and asks; how can our technology help both of us? How can we
contribute to the development and distribution of this technology? What can we
do to help Open Source?

In other words, find a common ground to improve the availability, reliably and
support of "big iron" technology. Business has gotten way to
"mean spirited" at times. It's not about playing baseball on a
baseball diamond, cricket on a cricket pitch, football (American) on a football
field. It's about some weird new game they made up in "their garage"
with their rules. No one really knows the rules, not that it matters because the
"homeys" change them all the time.

I'm not a financial genius, and probably never will be. But one thing for sure,
if the world doesn't do something about all this "gaming", we will
have more and more devastating economic problems. Once upon a time people used
ideas, developed a business model, made real things and sold them for a profit.
That was how capitalism was supposed to work. But along came IBM (yes, early IBM
was a stout monopolist; not sure about now), Microsoft and others; wanted it all
and would do anything to get it. They are smart and did pretty much achieved
many of their goals to monopolize the industry and be some of the richest
companies in the world.

At some point this has to change.

[ Reply to This | # ]

Digging a Little Deeper into TurboHercules/IBM - OpenMainframe.org and Microsoft
Authored by: Anonymous on Sunday, April 11 2010 @ 01:50 PM EDT
Their news archive on their home page is all about TurboHercules, but it doesn't include Groklaw's coverage. Neither does TurboHercules. I find that a telling omission, frankly.
It's a little naive to expect them to put both sides of the debate up on their website. Especially when you dismiss the idea of representing both sides on your website because:
I just don't agree with you. I don't have to. I see things differently than you do, and I think you know that.

[ Reply to This | # ]

Take a step back.
Authored by: Anonymous on Sunday, April 11 2010 @ 03:07 PM EDT
What i am seeing from this is a definite split in the community on this one.
Not just foss, but groklaw to, and it looks to me like it's starting to work.
Make your comments as you will, but please, remember to keep an open mind
whichever side of the fence you are on.
Dig, dig and dig like so many of you did for the sco debacle, voice your
opinions, but at least keep an open mind.
You've all seen what happens to a company these days that backs out of a
pledge, whatever it may have been for, the very bad publicity it gets is enough
to draw people, and revenue away from it.
On the other side, i won't say it is impossible that IBM wouldn't.
Just remember what groklaw is, and take up your keyboards like you all have
with SCO, and dig and keep bringing out the info we don't actually have, i still
don't think we have it all yet either.

[ Reply to This | # ]

TurboHercules = IBM Mainframe clone
Authored by: Anonymous on Sunday, April 11 2010 @ 03:13 PM EDT
What TurboHercules is offering is hardware, and the "open source" part of their hardware product is really microcode.
Since TurboHercules product can, if supplied with a copy of the IBM OS, boot up and run the IBM OS and mainframe applications, it seems to me that the TurboHercules product is an IBM "clone" (or replacement or substitute).

Which, of course, could give rise to mainframe patent infringement claims.

-darrellB

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Threat or not a threat?
Authored by: pem on Sunday, April 11 2010 @ 03:28 PM EDT
Much has been made here of whether or not the letter from IBM listing patents constitutes a "threat."

In patent matters, it is apparently very useful (but difficult) to explain to somebody that you think they might be infringing, without explicitly threatening them with a lawsuit. See, for example, Walking the Tightrope: Providing Actual Notice While Avoiding Declaratory Judgment. The issue is that, if you provide actual notice, you can then show that their infringement (after the notice) was willful, but if you actually threaten them, then they could potentially file for declaratory judgment in a venue they control (e.g., probably not the Eastern District of Texas).

I think many here will agree that IBM and its law firms understand these issues better than most other companies, and that any legal communication from IBM will be carefully nuanced (from a legal perspective; irrespective of whether they have communicated properly with their PR department), so it stands to reason that any communications they send prior to filing an actual lawsuit will be carefully tailored to try to provide notice of infringement without providing a legal threat.

I also believe that if I received such a letter, I would personally view it as an actual threat. YMMV (and in many cases, obviously does).

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Playing devils advocate, but something that should be considered going into the case
Authored by: chris hill on Sunday, April 11 2010 @ 03:46 PM EDT

Given this is about hardware and software, by naming themselves as open source software people, they have shot themselves in the foot.

However, as we have seen all too often with SCO, the litigators tend to change stream a lot during the case.

Right now, there are many people who are open source hardware pushers, specifically those who use existing hardware to provide solutions to problems of costs.

Some of the projects that come to mind are:

  • The Universal Software Radio Project
  • Uzebox
  • Bug Labs
  • Fab@home

    The main difference is that they share their schematics, which IBM has not, to such places as the Open Source Hardware Bank.

    What is to stop this company from 'contributing' some hardware, say something that does not really make Microsoft money like the Zeno, or Zues, or whatever that player that no one wants to buy is, and claim they are contributing to the openness of the hardware to provide more choice? Just thought I should comment on this before they start to do something which we will miss in research otherwise.

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  • Using the power of Groklaw to uncover more?
    Authored by: Anonymous on Sunday, April 11 2010 @ 05:07 PM EDT
    Imagine what could be done if Groklaw's immense capacity for uncovering facts
    was used to discover more of these under-the-table Microsoft investments?
    Surely Microsoft must disclose all investments publicly for its shareholders?

    Each transaction could be followed to see if the benefactor profited via
    indirect litigation against a competitor. All of this information should be
    publicly available and could be aggregated. A large table could be made
    highlighting all this indirect 'interfearence'. It could be categorised as
    being beneficial to MS, being a direct attack on the world of free software,
    those positively and negatively affect listed, etc. This could all be tabulated
    with links to financial statements and court documents.

    Just think of how much collateral MS damage could be uncovered! The influence
    of the resultant table would be immeasurable. It could be used to preemptively
    counter MS in its future attempts at undermining our freedom! MS chooses to be
    our enemy, it is not freedom that chooses to be the enemy of MS, and this would
    be the epitome of knowing your enemy.

    Regards,

    The Bugman

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    Learning to Keep Your Mouth Shut
    Authored by: Anonymous on Sunday, April 11 2010 @ 05:59 PM EDT

    One big lesson that everyone should have taken away with himself from the SCO case is learning when to keep your mouth shut and what to say when you do open it. SCO didn't learn that, and it came back to haunt them.

    If Mr. Maynard (and any other Hercules contributor) is not really involved with TurboHercules, then he should let them make their own defence rather than lobbying on TurboHercule's behalf. At present, all these third parties are doing is arousing IBM's interest. The more they talk, the more IBM will want to know about their connections with TurboHercules. IBM will want to know who said what to whom, and who know what when.

    The big question I see is the claim to know a lot about what TurboHercules are doing with their product plans. How could Mr. Maynard (or anyone else) know this? Perhaps he is getting a bit more involved with TurboHercules than is good for his own interests and he should be bending his efforts towards distancing himself from them.

    I have an open source project which is intended for commercial use, and I talk to my users about technical problems. However, I almost never hear about who their actual customers are or how the software fits into their system. They don't usually volunteer this sort of information and they are usually are very cagey about this, in fact. I wouldn't dream of asking this either, because it's *their* business.

    I work in an industry that is dominated by a lot of vendor lock-in. One choice that I made from the beginning was to look for the keep-out signs, and to avoid those areas. I can do what I want and offer a FOSS project that competes directly with the big vendors without treading directly on their toes.

    People have asked me to do things that involve treading directly on someone else's very jealously gaurded "IP", but I've always said "no". People moan about the high prices and vendor lock-in in the industry. My view on that is that there are FOSS alternatives. If some users don't want to exert any effort to get themselves out of their locked-in situation, then why should I work on their behalf? It's got to be a two way street. If you don't like vendor lock-in traps, then open your eyes before you step into them.

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    I wish this article had come first.
    Authored by: Anonymous on Sunday, April 11 2010 @ 06:24 PM EDT
    I think this demonstrates a much clearer link to Microsoft's interests and a
    much better case than anything in the entire previous article. Maybe TH really
    is being coaxed by Microsoft into attacking an IBM market.

    But the Heracles emulator (and Jay) are caught in the crossfire. They have to
    blast it to get to the TurboHeracles SAS company. They can do that. The easy
    way is to drop the two pledged patents and use the other 170 (or whatever the
    number is... I honestly didn't count) or some subset thereof (usually, they pick
    just a few of the strongest ones to avoid having the case last forever).

    So what do we do for Jay? Tell him to leave the USA to a more free land with no
    software patents? Hope that Bilski kills all such patents (though proving
    invalidity for 170-odd patents is clearly beyond the means of some poor, broke
    coder with no fairy PIPE-mother to wave a wand and make cash appear).

    Leave him in a ditch and say that we don't care about anyone who stands in IBM's
    way? I'm just asking here. It feels like we're in an awful hurry to ignore his
    side of the story in the articles (while simultaneously condemning other people
    who do that). I'm sorry. I understand why you feel this way, PJ, but this
    whole affair leaves me with a bad feeling. I really want him and IBM to be able
    to make up. I don't think this can be solved by throwing Jay under the
    metaphorical bus.

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    Let's file complaints against Microsoft!
    Authored by: Anonymous on Sunday, April 11 2010 @ 06:30 PM EDT
    TurboHercules has given me an idea! I'm just extending their position a little. It's not just obsolete 31/32 bit IBM mainframes that that should be open! Old IBM PCs need to be open too, after all!

    People have written emulators of early IBM PCs (example here). Clearly it is incredibly unfair to everyone that Microsoft is unwilling to provide new licenses for DOS! The only possible reason for Microsoft's position is that they want to crush the PC emulator market and to deny everyone their right to play old PC games like Leisure Suit Larry in the Land of the Lounge Lizards! Clearly the European Commission needs to hear about this, too!

    Seriously, the only way this analogy breaks down that I can see is that Microsoft doesn't sell hardware. Perhaps a situation with xbox emulators and old version of an xbox game would be a better analogy. I don't know anything about that stuff, though. But if IBM could be forced to license obsolete versions of z/OS, why couldn't Microsoft (or anyone else) be forced to do the same thing with obsolete versions of its software, including Windows.

    If someone has already pointed out this analogy, I'm sorry. I haven't gone through all of the comments.

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    TurboHercules "package" is not OSS, is not free, and is not very useful
    Authored by: Anonymous on Sunday, April 11 2010 @ 06:50 PM EDT
    The TurboHercules site says: "In April of 2009 we formed TurboHercules
    SAS/Inc to commercialize the open source Hercules mainframe emulator package.
    This was done is close cooperation with the current members of the Hercules
    project. In essence we are moving Hercules from a hobbyist toy to a full
    fledged, commercially supported, enterprise ready package that can be used in a
    variety of applications in the mainframe world."

    Let's take a minute to savor the off-handed dig at the Hercules
    (semi-open-source) folks for laboring for years to create nothing more than
    "a hobbyist toy."

    The purportedly "enterprise-ready," "open source" software,
    "the TurboHercules package," is not available anywhere on the Web as
    an executable, let alone as source code. TurboHercules says: "For more
    information and to arrange a proof of concept demonstration please contact us at
    info@turbohercules.com."

    Also note that "the TurboHercules package" is not an operating system;
    it is an attempt to emulate a wide range of hardware. The emulation is not
    complete; non-free, non-open-source, third-party software is recommended by
    TurboHercules.

    The company does not guarantee its product: "If [our in-house debugging] on
    the TurboHercules standard platform does not solve the problem on the customer’s
    site or if the TurboHercules team cannot replicate the problem in the first
    place, the customer can request on-site debugging at standard time and material
    rates."

    Conclusions:

    1.) IBM spent billions to continue development of mainframe computers, at a time
    when every other major computing company believed Intel-based servers were the
    future of enterprise-class computing. IBM's "operating systems" are
    proprietary code, intimately linked to and compiled on individual hardware
    configurations. TurboHercules wants IBM to supply versions of these operating
    systems that will run on *TurboHercules'* incompletely-emulated, pseudo-IBM
    hardware configurations. TurboHercules won't (and can't) support the IBM
    software, but they do propose to profit handsomely from IBM's gift.

    2.) Given all of TurboHercules' disclaimers and the woefully incomplete nature
    of its software product, it seems doubtful that the company has advanced the
    state-of-the-art much beyond "a hobbyist toy." If the answer to
    mainframe disaster recovery is "TurboHercules," the question must be
    very peculiar.

    3.) If this were true open source, and if the coders had the moxie of Linus
    Torvalds or Richard Stallman, they would write their own OS to run mainframe
    applications. Just as is the case with GNU/Linux, their code would be free of
    patent and copyright worries, and they wouldn't need to try to force IBM to give
    them its crown jewels.

    [ Reply to This | # ]

    Why not write a z/OS emulator?
    Authored by: Nominal Animal on Sunday, April 11 2010 @ 06:55 PM EDT

    As I understand it, Hercules emulates IBM mainframe hardware (System/370, System/390, zSeres). There are multiple operating systems for such hardware, but z/OS is the one this problem revolves around. (Background information taken from Wikipedia)

    The issue seems to be that IBM has refused to license z/OS to be run under the emulator. That refusal has been reported to the EU as an antitrust violation by TurboHercules, a company commercializing the Hercules emulator. In the discussion between TurboHercules and IBM, IBM listed a number of patents, two of which are included in the IBM open-source patent pledge. When the discussion was published, that was interpreted as an attack against the open-source Hercules project, which of is (or should be, in my opinion) covered under the IBM patent pledge.

    Others have discussed here whether or not the Psystar vs Apple case was similar. Psystar did want Apple to license OS/X for Psystar hardware, but other than that, I do not know.

    If there is a true need for IBM-mainframe-compatible alternatives, why not start a related open-source project to emulate z/OS on top of the Hercules hardware emulator? Yes, the task is monumental -- see Wine for a related story -- but that should not stop us. It has not stopped us before.

    Has IBM published all z/OS APIs? There seems to be at least some information here. Do they cover the APIs fully enough to write an emulator? The fine Wine folks have had a hard time due to lot of undocumented features in the Windows libraries; I wonder if IBM's documentation is any better.

    I am strongly in favor of open source software, but I also believe IBM should have the right to license their software as they see fit. Even proprietary software companies like Microsoft or Apple should have the right to license their software how they choose, as long as there is the possibility for competition.

    An open-source z/OS emulator would be a true test for IBM, because software patents would be the only way to try to stop such a project. For the first few years the project would most likely be totally ignored, considering how much work there is to get such an emulator to a useful stage.

    Nominal Animal

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    Mainfram Disaster Recovery on the cheap...
    Authored by: Jamis on Sunday, April 11 2010 @ 07:07 PM EDT
    I have been part of many large shop DR plans in the past and I find it difficult
    to believe that the TurboHerculese offering is a viable alternative to other DR
    offerings on the market today, introductory price notwithstanding. Therefore,
    regardless of the legal implications of this Turboherculese offering, I'd bet
    the usual DR offerings (including IBM Global Services) will provide
    insurmountable competition.

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    History??
    Authored by: golding on Sunday, April 11 2010 @ 07:36 PM EDT
    Has it occurred to anybody that Mainframes wouldn't still exist except for IBMs
    continued efforts in that arena?

    I remember well, in the late eighties to mid nineties, everybody else (HP,
    Burroughs, NEC, 'BUNCH'? etc) proclaiming the Mainframe to be deader than the
    proverbial doornail.

    Yet, throughout these times, IBM continued to put time and money into these
    products.

    Perhaps IBM should license these technologies at a fair and reasonable
    percentage of their costs (billions) in maintaining the product line?

    Just my 2c worth ..

    ---
    Regards, Robert

    ..... Some people can tell what time it is by looking at the sun, but I have
    never been able to make out the numbers.

    [ Reply to This | # ]

    • History?? - Authored by: Waterman on Sunday, April 11 2010 @ 08:15 PM EDT
    • History?? - Authored by: dkpatrick on Sunday, April 11 2010 @ 10:13 PM EDT
      • History?? - Authored by: Anonymous on Sunday, April 11 2010 @ 11:48 PM EDT
    What about technology freedoms
    Authored by: Anonymous on Sunday, April 11 2010 @ 09:35 PM EDT
    IBM should (and probably will) win here under the current law. It
    "owns" the mainframe business and always has.

    I'm not convinced this is a *good thing* though. IBM is relying on EULA and
    software patents to keep their customers locked in. Mainframe customers are
    locked in just as much as any MS customer ever was.

    The public's entitlement to compete in this (and other businesses) is of course
    nonsensical and without any legal basis. We saw this with Apple vs Psystar.

    We have been effectively duped by the Wintel hardware ecosystem, and the
    Internet itself, both are common, relatively free platforms, open to anyone to
    use and implement. We sort of feel that every technology market should be as
    open, that standards should be free. We're rightly afraid patents on software
    threaten to destroy those freedoms.

    Most technology markets aren't like that at all, as much as their customers
    would love them to be. This story just highlights a case that has been going on
    for decades. A market lock in by IBM that is completely antithetical to the
    openness we experience every day with the Internet.

    Instead of turning this into yet another reason to avoid proprietary software
    like a plague, I see someone telling IBMs side of a pointless dispute. They
    don't need our help with this. Mainframe lock in is the same as any other
    proprietary software lock in.

    The clear message here is: Software freedom is critical lest you one day find
    yourself at the complete mercy of any single vendor. Even "good" ones
    like IBM.

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    Microsoft has nothing to do with the lawsuits.
    Authored by: darkonc on Sunday, April 11 2010 @ 10:44 PM EDT
    It's not their fault that they invested gobs of money and then were heard to say "It'd be really nice if we saw some of this invested money spent on a lawsuit like this (drops a pre-written memorandum on their desk).

    That the company in question took the hint and ran with it isn't Microsoft's fault at all, and it's impolite to make such suggestions.

    ---
    Powerful, committed communication. Touching the jewel within each person and bringing it to life..

    [ Reply to This | # ]

    Microsoft/HP partnership
    Authored by: jheisey on Sunday, April 11 2010 @ 11:12 PM EDT
    I think I will not be buying any HP products any time soon.

    [ Reply to This | # ]

      TurboHercules supports Windows 2008 and... wait for it... SUSE. Yeah, no MS here.
      Authored by: warner on Monday, April 12 2010 @ 01:33 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 | # ]

      It's anti-competitive that Microsoft Office only runs in Windows
      Authored by: Anonymous on Monday, April 12 2010 @ 01:55 AM EDT
      Hey, fair is fair.

      If IBM has to accommodate competing platforms, Microsoft should, too. Let's see
      Office natively in Linux (including .gz, .deb and .rpm), FreeBSD, and, say,
      HP-UX, AIX and Solaris, or whatever, say, the top 5 market share Unixes are out
      there. It's anti-competitive that Office is only available for Windows.

      It certainly would be safer to run Office outside of Windows. Of course, it
      certainly would be safer to run anything outside of Windows.

      [ Reply to This | # ]

      When the cat's (DOJ ) away the mice will play.
      Authored by: Anonymous on Monday, April 12 2010 @ 03:20 AM EDT
      Any one else notice how there seems to be an uptick of antiFOSS FUD ( in
      particular by psuedoFOSS people/organisations ) in the last half of 2009?
      Surprisingly that seems to coincide with waning attention paid to MS by the DOJ
      reguarding the antitrust suit.

      To quote the church lady...
      How convieeeenieeeeeeeeennnnnnnnnnttttttttt.

      [ Reply to This | # ]

      Wider issue: claim that IBM patents listed in letter also affect OpenBSD PostgreSQL MySQL Xen...
      Authored by: Anonymous on Monday, April 12 2010 @ 08:33 AM EDT
      http://fosspatents.blogspot.com/2010/04/paten ts-used-by-ibm-against- hercules.html

      quote - The patents IBM uses against Hercules are also a potential threat to other key FOSS projects. Based on a first analysis, those include (but are not limited to) OpenBSD, Xen, VirtualBox, Red Hat Enterprise Virtualization, MySQL, PostgreSQL, SQLite and Kaffe. - end quote

      Article leaves no doubt the goal is to ask IBM for a new, bigger open source patent pledge.

      [ Reply to This | # ]

      HP wants back in
      Authored by: Anonymous on Monday, April 12 2010 @ 08:49 AM EDT
      About the time Groklaw began, HP announced the end of their mainframe offerings.
      My employer at the time was set to buy one but ended up with a single HP and a
      dozen Dell servers to take replace the IBM mainframe they could no longer
      afford. I guess this is just one more blunder by HP.

      I wonder how much stink there would be if IBM allowed windows servers to run on
      z/OS as well as linux.

      [ Reply to This | # ]

      Digging a Little Deeper into TurboHercules/IBM - OpenMainframe.org and Microsoft
      Authored by: fxbushman on Monday, April 12 2010 @ 11:47 AM EDT
      I have to say that judging from the amount of FUD posted here today, largely
      from anonymous correspondents, PJ has really struck a nerve at Microsoft. More
      power to her, I say.

      [ Reply to This | # ]

      Digging a Little Deeper into TurboHercules/IBM - OpenMainframe.org and Microsoft
      Authored by: jrvalverde on Monday, April 12 2010 @ 11:56 AM EDT
      While I also think it unfortunate IBM mentioned the patents
      in their talks, specially since software patents are invalid
      in EU and Hercules is pure software, I think the case should
      be pretty simple to state:

      IBM is as free to sell his products however they wish as
      TurboHercules is. None however can tell the other how to
      conduct their business. And I do not see IBM telling TH not
      to distribute their emulator, nor forbidding them from
      writing their own clone of z/OS, or both. I do see TH asking
      IBM to do the hard OS work for them by selling z/OS to their
      customers.

      Now, z/OS is very different from Windows: you make Linux or
      Windows to run on almost any hardware. zOS is tightly tied
      to very secific hardware to squeeze the most of it and that
      requires heavy investments. Just like Apple can sell HW and
      SW as a bundle, so can IBM.

      Seen from another angle: let's say you want to make cheap
      plastic car bodyworks and sell them in mass by fitting
      inside a Mercedes-Benz engine. Should MB be forced to sell
      you the engines? Or are they in their right to refuse and
      only put their engines in their cars or in approved engines
      to avoid dilution and deterioration of their mark quality
      perception?

      Yes, I might dream of getting rich by letting Mercedes or
      Ferrari invest in making engines and then selling cheap
      paper/plastic cars with their engines. But they'd be in
      their right to refuse.

      Same for IBM.

      Oh, wait. Some say IBM has a monopoly on mainframes... but
      last I looked the top500 supercomptuters had a fair share of
      Linux machines. Not so much of Wintel systems, but maybe
      that's the reason someone wants to make so much noise.

      ---
      Jose R. Valverde
      EMBnet/CNB

      [ Reply to This | # ]

      Microsfot Testing the waters. - Digging a Little Deeper into TurboHercules/IBM...
      Authored by: Anonymous on Monday, April 12 2010 @ 01:45 PM EDT
      IBM has contributed patents.

      How does IBM's contribution compare to Microsoft's "promise not to
      sue"?

      "Ah Hah, IBM's contribution is not as good as they claim because they
      didn't license zOS on a windows box."

      I just wonder, does Microsoft really want access to some of those IBM patents,
      but can't get them because of the way they do business? Or even more
      interesting, is Microsoft already using one or more of those patents in their
      proprietary software?

      Just call me a conspiracy theorist. Might the same be said concerning Microsoft
      and Apple patents?

      Look over here, big flash and bang. (No, no, don't look at my other hand.)

      [ Reply to This | # ]

      Taken to the extreme..
      Authored by: Anonymous on Monday, April 12 2010 @ 01:57 PM EDT
      Thought experiment.

      I have a commercial closed source proprietary-everything business. IBM has
      patents that I infringe and I am worried about it. Those patents are in IBM's
      open source pledge.

      So, I make a toy, stupid, useless, pointless piece of code. It's "Hello
      World" but also does a dumb implementation of whatever patented method I am
      concerned about. It doesn't have to be fast, or even really working. I put the
      dumb code as open source on my website with any open source license.

      I now bundle that code WITH my proprietary product as a package, perhaps only in
      some disused support files with a lame "Here's an interesting unsupported
      extra. It's open source, here's the link and license and source."

      Now, I thumb my nose at IBM. IBM promised not to sue. If they threaten me, I fly
      the "help, help, I'm being oppressed!" banner.

      Now in practice this won't work because of the fallacy that I have even MORE
      infringing code that is NOT open source, and merely bundling them together
      doesn't make the proprietary code safe. But the open source addition DOES muddy
      the waters so much that it would still be powerful protection, in the press at
      least if not the courts. There's no downside for trying.


      [ Reply to This | # ]

      Mueller Twitter Pals w/ Michael McLoughlin, Kevin Mcbride
      Authored by: Tim Ransom on Monday, April 12 2010 @ 05:12 PM EDT
      Weeks ago it was brought to my attention that Kevin McBride was Twitter pals
      with Florian Mueller, as well as Microsoft's Michael McLoughlin.

      At the time, the dots didn't connect much. It just seemed odd that McLoughlin's
      *only two Twitter pals* were McBride and Mueller. I knew of Mueller from his
      efforts to derail the Oracle/SUN deal in the EU. Meanwhile, McLoughlin is a
      "Strategic Relations" exec.

      I notice that their Twitter relationships have since changed.

      ---
      Thanks again,

      [ Reply to This | # ]

      Ever Watch Babylon 5?
      Authored by: sproggit on Monday, April 12 2010 @ 06:17 PM EDT
      If you did, you'll understand what I mean when I say that what's going on here is like yet another in a long line of skirmishes between the Shadows and the Vorlons. [ For the sake of this dodgy analogy, let's say that IBM are the Vorlons and Microsoft are the Shadows, OK? ]

      ;o)

      These two IT Titans have had a love-hate relationship since the days of the original "IBM PC" and "MS-DOS". Think about some of the moves that we've seen played out over the last few years...

      For example, Microsoft killed OS/2.2 with Windows NT (which, if the history is accurate, was pretty much built by Vax guys that Microsoft recruited when they were supposed to be writing a graphical version of VMS for Digital). On the other side of the coin, IBM bought Lotus - perhaps a case of too little, too late given Microsoft's stranglehold on the desktop productivity space - and with it the Notes Groupware platform, in a move that could only have been seen by Microsoft as an attempt to make a move on the desktop arena. In short, what we've seen are these two huge companies competing above and below the table in all sorts of areas. Both have significant "lobbying" capabilities with the US Federal Government. Both are responsible for generating very significant amounts of tax dollars for the Federal coffers - and that means that both companies will continue to look for an "edge".

      Considered from this angle, it is entirely plausible that most [ if not all ] of what we are seeing are merely indirect strikes between these two huge power bases.

      Both companies have the reach and the scope to be able to employ intermediaries and "mercenary forces" as a means to an end. Like icebergs, the chances are that we are seeing only a small fraction of everything going on, and seeing more would not necessarily improve our understanding.

      If there is one conclusion I could draw from all that I've read since stumbling across Groklaw all those years ago, it's that big business is a dirty business. It's not my intent to offend, but I wonder if the Open Source community - with the powerful sense of *community* and collaborative nature - may simply not understand the tricks, tactics or strategies that are played out across board room tables. Maybe the FOSS world is too niaive to see these deceptions and hard-ball games?

      I am reminded of that oft-quoted maxim from Sun Tzu's the Art Of War: "For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill."

      Is that what we're witnessing here? Do we just have the likes of Microsoft and IBM duelling it out, using smaller players, like SCO, TurboHercules and others as pawns in a larger game?

      I get the feeling that it is.

      [ Reply to This | # ]

      My last try
      Authored by: Anonymous on Monday, April 12 2010 @ 08:51 PM EDT
      Reading through these comments, I can't help but notice a lot of misunderstandings.

      I am a hercules developer and have been working on IBM mainframes since 1974 when I wrote my first WatFor program my freshman year. I am what is called a systems programmer and have been for over 30 years. I've been working on various flavors of MVS for nearly as long, including today's z/os. I've even worked for IBM for a few years.

      Just about all hercules users are enthusiastic IBM mainframe supporters, you might even call a fair number "bigoted". When we use the word mainframe in this context, we mean IBM s360 and its descendants, not a Unisys machine or an insert-vendor-here machine, although in a larger context that might be applicable.

      The developers of Hercules, in addition to being mainframe enthusiasts, are very knowledgeable about their internal workings. Also very clever and smart. Building the emulator without any access to internal IBM IP is a testament to this.

      Roger Bowler is the creator of hercules and the main person (AFAIK) behind TurboHercules. Contrary to some speculation, he is currently active in the hercules project and has been for the last few years and at least I consider him the leader of the project. I don't know anything more about TH other than what is on the web site. I get the feeling that it's not a large organization.

      The day-in and day-out systems programmers for z/os are far more critical of IBM than anything I've read here. Check out the ibm-main usenet feed on google.

      That IBM went to the non-trivial effort to list a fair number of patents that the hercules project (not TH) could be infringing is worrisome. I agree it is not a direct threat but it is a potential threat. Kind of like having a ban-hammer hanging over your head in case you step out of line. That is what Jay is worried about.

      I'll agree that Florian whats-his-name is over the top, but I guess that's how you get page hits. Not that that is an excuse, but I'll agree that IBM is right declaring it FUD. (I'm a developer, I don't speak for the hercules project).

      A DR scenario running z/os on hercules on a non-IBM box is not as far-fetched as some of you think it is. Sure, a Fortune 500 company wouldn't do it, but there may be a number of mid-range and small-range companies that it would make sense. In a disaster situation, you do not have to run all your apps, you run your critical apps. You don't need as much machine. A high end server can do this adequately.

      A lot of you have disparaged the server and os that TH proposes. As far as hercules is concerned, this is an arbitrary choice. Maybe there were legitimate business reasons for making that choice, but I sincerely doubt it was done for some nefarious conspiracy scheme.

      Some of you have suggested writing a z/os clone. Sorry, that's not going to happen. z/os has roots 40 odd years deep and is more complicated than the hardware that it runs on.

      I majored in computer science and consider myself os and license agnostic. I just like to write code. I disagree with the majority here that linux is the end-all, be-all of os'es (though that's what I use everyday) and that IBM is lily-white innocent (though I did work for them). I'm speaking up here today because of what I perceive are attacks on my friends Roger and Jay. They aren't as evil as you all make them out to be.

      If you reply to this message, then chances are probable that code I meddled with is going to be executed. I've contributed a number of patches to GPL code over the years including the linux kernel itself.

      I sincerely hope that I have brought some light to this issue rather than the clouds of suspicion that you seem so fond of. To summarize, Florian's post was over the top, but IBM's listing of a large number of patents is intimidating.

      gsmith

      [ Reply to This | # ]

      IBM telling the truth about the mainframe ten years ago
      Authored by: Anonymous on Monday, April 12 2010 @ 10:39 PM EDT
      Just by way of introduction, in 2001/2002, I was a contract engineer for IBM, engaged in project work for the zSeries mainframe, so I speak from firsthand experience. My job was in a large part supplying missing Linux expertise to my particular group. This took place shortly after the skunk works project in Boeblingen that enabled virtualized Linux servers on IBM mainframes. My officemate was a German who had been involved in that effort.

      The fact is, during the 90s, IBM mainframes were gasping out their last breaths. Wintel servers had swept all competition aside, and had taken over most of the market. Virtualizing Linux on the VM operating system of the zSeries mainframes changed all that, and helped jump start things like grid computing, and computing as a utility service, of which cloud computing is only the latest evolution. The zSeries mainframe could, at least on paper, host nearly 100k virtual Linux servers, and bringup time was only 90 seconds per server. That helped decimate Sun Microsystems, and turned the tide on the Wintel juggernaut.

      The fact is, an innovative use of Linux on the old mainframe technology (VM has been around since the 60s) is what brought the mainframes roaring back to life. It suddenly made them a great way to save money over the long run. IBM didn't get a mainframe monopoly by dirty tricks, they got it by being smarter than the competition. Big difference from the Redmond crowd.

      IBM mainframes remain a highly effective technology for things like cloud computing. Indeed, aside from the benefit of a network in a box with many virtual Linux servers that can be brought up on a moment's notice, those big irons have a MTBF of around 64 years. I rather doubt TurboHercules will be able to compete with that, because even with access to IBM's software, they lack the formidable hardware capabilities.

      Finally, just as sidenote, even though I was just a contractor at IBM, I was required to attend a training session with one of their lawyers (yes, I met one of the Nazgul) on open source licenses, with an emphasis on GPL. The bottom line was since IBM was using GPLed code, it was mandatory that all developers respect the terms of the license, and not commit violations. That respect and care where IP was concerned is what told me SCO's claims were hogwash from the beginning.

      [ Reply to This | # ]

      Digging a Little Deeper into TurboHercules/IBM - OpenMainframe.org and Microsoft
      Authored by: jrvalverde on Tuesday, April 13 2010 @ 03:24 AM EDT
      I agree on some points but think you fail to see some others.
      First is the mainframe mentality. I won't go into much detail here, but the
      feeling that mainframes is some kind of a Holy Grail surrounded in Mistery is
      either wrong or right.

      If it is right, IBM has all the right to protect it, as they were the only ones
      who took the effort and cost to sail the ships, navigate dangerous waters and
      discover the new land of business and opportunity.

      If it is wrong, and it likely is, all else fails as well: a clone of z/OS can be
      built to run on Hercules, it's not easy, and z/OS dates of the 60's but UNIX
      dates of the 70's and could be redone, even better, many times. Those earlier 10
      years in computer history were ages of very scarce resources and easier to
      replicate now. You even have access to MVS source until it was closed. C'mon!
      There is no magic in z/OS.

      And remember, Hercules has not all the HW complexity of a real mainframe, it
      only needs to emulate the minimum HW to run the system. A clone for Hercules
      would be simpler to build.

      Plus, you do not need a 'clone' of z/OS, only to replicate the system APIs good
      enough to run software. I'd bet given IBM experience that z/OS is better
      engineered than windows by far... certainly the APIs are not half that
      convoluted, and yet we have Wine.

      OTOH I agree the demand for a FOSS clone of z/OS is too low to engage likely as
      many developers as Linux. But so it seemed in the early times of Linux and here
      it is. Ah, yes, z/OS user companies spend lots of money, they never cared for
      cheap alternatives. OTOH if they have so much money, wouldn't they be better
      served investing in a FOSS alternative for z/OS? Oh, yes, z/OS user companiess
      are also big business sharks, they would never play community or contribute to
      common wealth.

      To the troll who asked about whether MS should be allowed to refuse to sell
      Windows to VMware... first they have already tried, and second the difference is
      MS does not make matching hardware to run Windows, and has never done. And yet,
      it tries as hard as it can to avoid Windows running on VMware (much like they
      tried to avoid it running on OS/2 when Windows was a GUI shell).

      My point, perhaps overstated is simple: it's possible to make a clone or
      "shell" to run z/OS programs on Hercules. It certainly will cost time
      and money, but target "users" have big money and their target
      "HW" is simpler. They can cooperate (if they learn to) and do it, just
      like UNIX folk did. I do not think whining will win them anything.


      ---
      Jose R. Valverde
      EMBnet/CNB

      [ Reply to This | # ]

      Unfortunate Name: TurboHercules == Tuberculosis
      Authored by: Anonymous on Tuesday, April 13 2010 @ 07:34 AM EDT
      Is it just me or do others hear "tuberculosis" every time they read or
      hear "TurboHercules"?

      [ Reply to This | # ]

      Something I find quite interesting
      Authored by: proceng on Tuesday, April 13 2010 @ 09:45 AM EDT
      There have been many comments (specifically by Mr. Maynard) to the effect that TurboHercules SAS does not contribute financially to the Hercules project.

      If this is true, there seems to be something quite odd in their business model.

      In my opinion, there is absolutely nothing wrong if they do support the project by providing resources (both financial and in manpower). In fact, there is ample precedent for this when your business depends on the projects success. For instance:

      • Red Hat Software has people on staff whose sole job is to assist in maintaining the Linux kernel - their business depends on the success of GNU/Linux
      • IBM also has people on staff who contribute and support various parts of GNU/Linux. Not only do they provide (and support) Linux on the z-series processors, but many of their peripherals run Linux under the covers.
      • Many of the device drivers that are part of the official kernel are actively maintained by employees of their respective manufacturers.
      • The printing subsystem is actively maintained by Apple employees, with the individual drivers being supported by their manufacturers.
      . In point of fact, given the following conditions:
      • In order to avoid becoming stagnant, the Hercules open source project requires resources.
      • -and-
      • TurboHercules SAS cannot afford to fall behind the current state of the z-architecture environment if they wish to remain relevant.
      I am extremely surprised that Mr. Maynard is not employed by TurboHercules SAS and detailed to support the Hercules open source project. He is the point of contact for the project, according to it's web site. It is what I would do if I were going to attempt to run the business that they are running.

      In fact, I would be more apt to accept some of Mr. Maynard's arguments at face value if this was the case. The fact that this sort of affiliation is being denied (along with the pattern of misinformation coming from Mr. Mueller and Ms. O'Gara, among others) leads me to believe that something is wrong with this picture.

      ---
      And ye shall know the truth, and the truth shall make you free.
      John 8:32(King James Version)

      [ Reply to This | # ]

      What does Jay Maynard want?
      Authored by: cjk fossman on Tuesday, April 13 2010 @ 02:00 PM EDT
      Jay has been in and out of the building since I first posted this question,
      buried deep in another thread. Perhaps it's been answered and I missed it. If
      so, I apologize.

      What I have yet to see is a statement of what Jay wants. I've read plenty about
      how he feels threatened personally and so on.

      After all that, I still don't have any idea what would make him feel better,
      assuage his fears and make his world right again.

      Jay, can you tell me the answer? If you've already answered this question,
      please tell me how to find the answer. A link to the post would be great.

      Anyone else who has seen an answer to this question could chime in, too.

      Thanks.

      [ Reply to This | # ]

      eWeek -- IBM Denies Breaking Its Open-Source Promise
      Authored by: alanjshea on Tuesday, April 13 2010 @ 02:04 PM EDT
      IBM Denies Breaking Its Open-Source Promise

      http://www.eweek.com/c/a/Linux-and-Open-Source/IBM-Den ies-Breaking-Its-Open-Source-Promise-672104/

      The article does quote from all parties, but leaves the impression that IBM has broken its promise. Mainly because of the statement that "the open-source community is up in arms" (with a link to slashdot) and a failure to investigate the facts. Just a report on the press releases. Which, as we well know, do not come anywhere close to telling the real story...

      The writer gives the illusion of balance by quoting from multiple sources, but if you know much about open source software, they do leave something to be desired -- "FOSS aficionados" Mueller and de Icaza? How about some real FOSS authorities? Particularly those with an expertise in legal matters?

      So while I can't impugn the author with bad motives for simply giving us "just the facts", an article about the "who" and "what" is incomplete without some attempt at investigating the "why". Not a model of good journalism.

      For what its worth, I left a couple of comments to try to clarify the issues, including links to the relevant Groklaw articles. Not that most readers will see the comments...

      The FUD continues.

      [ Reply to This | # ]

      What About Product Liability?
      Authored by: dlc.usa on Tuesday, April 13 2010 @ 03:53 PM EDT
      Nobody seems to be looking at this situation as regards product liability. That
      may be due to the lack of concern many IT vendors display about this subject .
      IBM, however, has taken it very seriously for a lot longer than those companies
      have been in existence. They, too, ride in aircraft designed on platforms they
      market. The error handling of mainframes is legendary and IBM’s proprietary
      operating systems are designed to dovetail with this hardware very tightly. If
      they do not wish to be held responsible for their software running on hardware
      they did not design or manufacture, who can or should be able to compel them to
      do so?

      [ Reply to This | # ]

      Digging a Little Deeper into TurboHercules/IBM - OpenMainframe.org and Microsoft - Updated
      Authored by: Waterman on Tuesday, April 13 2010 @ 04:13 PM EDT
      PJ, the comment you higlighted
      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.
      did not say tha TH had received the last IBM reply before they filed. IT said that IBM had replied before. Very big difference. It still looks to me that TH jumped the gun and filed with the EU before they got the reply letter and that the letters were simply in reply to theirs. No foul on IBM's part but crying wolf on TH's. The second quote is now a proven lie on TH's part and they owe IBM a public retraction of it.

      [ Reply to This | # ]

      Where did the dispassionate research go? Considering dropping Groklaw
      Authored by: Anonymous on Tuesday, April 13 2010 @ 07:46 PM EDT

      Okay, I've got to get this off my chest. I've been anonymously following the SCO case on Groklaw from the beginning, posted a couple of times yesterday but managed to get buried in the morass of comments, sorry about that.

      There's something I didn't and still don't understand, and it came as a shock after the coverage of the SCO case. For me it's cast Groklaw and PJ in an entirely different and negative light, to the extent that I'm seriously beginning to believe some of the FUD regarding Groklaw being an IBM astroturf job. Please, bear with me, I'm not a troll or a shill, I work as a linux systems administrator with not even a vague connection or interest, financial or otherwise, in any of the companies involved or for anyone with an involvement or interest. This is a personal opinion, from the heart.

      The TurboHercules articles, just like Psystar/Apple before it, eventually boils down to a companies right to enforce a EULA. Like Apple, IBM imposes restrictions on what hardware their OS is allowed to run on, and currently from a legal perspective PJ is certainly correct on both calls.

      But what I don't understand is PJ coming out as the rah-rah team for first Apple and now IBM. The articles are far from neutral, there's disparagement and ridicule toward TurboHercules to the point that I really do feel sorry for them, and the disparagement is coupled with incredulity that anyone could even consider the whiter than white IBM possibly, ever, doing anything wrong. They feel very far indeed from the high standards to which PJ was originally held, and her reputation made.

      There's a big difference between calling correctness legally and waving the flag morally, when in both cases (and this is my opinion) I consider Apple and IBM to be morally in the wrong due to their use of restrictive and exclusionary EULAs that impose restrictions on what the purchaser can do with their property.

      Before conclusions are jumped to and I get jumped on, I'm a strong supporter of the GPL. The GPL is a redistribution license that explicitly allows the end user to do whatever they like with their software, even shove it up their nose if they're so inclined and capable. It's not a EULA, EULAs spit in the face of Stallman's freedom 0 - to run the program for any purpose. In my opinion, nobody should be able to tell you what you can do with something after you've purchased it.

      And that's what I don't understand, for the purportedly GPL and F/OSS friendly crowd here, which I supposed included PJ, why then the rallying call to arms to justify and support the EULA, which if you do supposedly support free software, you should be against?

      There's a philosophical dichotomy here, and the only thing that makes any sense to me is that far from being an independent site, Groklaw is somehow under instruction from those with an interest in seeing the concept of the EULA upheld. An attack on the EULA is not an attack on the GPL, but supporting the EULA is an attack on free software, and only large commercial vested interests prosper.

      Am I labouring under a misconception? Is the only value held by the majority of posters here the almighty dollar? Are they just here for the schadenfreude?

      [ Reply to This | # ]

      IBM's reputation isn't going to suffer
      Authored by: Anonymous on Tuesday, April 13 2010 @ 10:03 PM EDT
      Nice try, but it isn't going to work.

      The vehemence of the protesters is always the core symptom of a Microsoft
      campaign. We saw it in SCO, Psystar and Mono, and we're seeing it again with
      TurboHercules. All cut from the same cloth.

      IBM isn't going to have any problems with the Linux community.

      [ Reply to This | # ]

      Florian Mueller still at it
      Authored by: inode_buddha on Tuesday, April 13 2010 @ 10:45 PM EDT
      I just noticed the following article linked from linuxtoday. It seems the
      Florian is still trying to stir up the hornet's nest.

      http://fosspatents.blogspot.com/2010/04/patents-used-by-ibm-against-hercules.htm
      l

      After reading a few paragraphs, I am convinced that people and companies are
      losing all perspective. I also notice how he blurs a few distinctions that
      really matter, and seems fixated on nothing but patents regardless of the big
      picture.

      It's pure FUD, IMHO.

      I find it odd that people can't seem to distinguish between TurboHercules SA the
      company, and Hercules the software project. There is barely any mention the
      TurboHercules *asked* for it.

      IMHO all of this needs to get some air-time in more "mainstream" trade
      press, far and wide.

      I think this technique of research and posting everything publicly will do more
      to quell FUD than anything, in the long run. I also think that Jay Maynard needs
      to relax and distance himself from TurboHercules ASAP -- perhaps by forking the
      whole thing. I would definitely contact the Software Freedom Law Center if I
      were him.

      ---
      -inode_buddha

      "When we speak of free software,
      we are referring to freedom, not price"
      -- Richard M. Stallman

      [ Reply to This | # ]

      Correction: it's not TH vs. IBM, it's TH vs. the World
      Authored by: jrvalverde on Wednesday, April 14 2010 @ 09:43 AM EDT
      I just realized this. Living mostly on FOSS one tends to forget
      "trivial" details.

      The truth is that most mainframe software is not sold but licensed, usually tied
      to some specific hardware (number of CPUs, disks, serial numbers, network cards,
      etc...) and if one wants to change anything in the hardware then a new license
      must be negotiated.

      Backup, development, scientific software, accounting, databases, etc... a large
      list comes to my mind once I pay attention to it. Even MS has tried the same
      trick in recent versions of Windows.

      So, it's not just IBM refusing to allow its code to be freely run anywhere, it's
      a lot of software vendors, almost all mainframe vendors amongst them standing
      behind IBM. Hence, even if IBM were to yield, users would be still no better as
      they would not be able to run their applications on the virtual machine without
      renegotiating a license. And it's very expensive licenses we talk here.

      The more I look at this, the more this TH issue looks like a troll trying to
      game the system for FUD. It's pretty obvious that the TH business model does not
      hold under current practice, so there must be something else behind these
      moves.

      Now, I want to be fair, and give TH folks the benefit of doubt, maybe they are
      sincere in their feelings, and of course they'd like to make a quick buck off
      Hercules. And I bet they truly believed this was feasible when they went on to
      invest heavily their savings in the initiative. But that does not imply someone
      may not have been behind, misleading them, pushing and encouraging TH for his
      own, hidden interest. And, does it look like it is so!

      I guess MS must be cheering inwardly: imagine if we could run all z/OS based
      software on TH on Windows... mmmh! we could help TH negotiate with vendors
      relicensing terms for Hercules and then move clients from IBM to Windows, buy
      TH, make Hercules not run on Linux, and grab all the MF business from IBM, and
      short cut the increasing presence of Linux by offering our OS instead...
      mmmmmmh! Re-ummhhhh! (censored noises that follow to a climax).



      ---
      Jose R. Valverde
      EMBnet/CNB

      [ Reply to This | # ]

      Has IBM themselves distributed Hercules under QPL?
      Authored by: bugstomper on Wednesday, April 14 2010 @ 05:37 PM EDT
      I don't know if anyone will notice this now that this is no longer the top
      article, but after reading proceng's comment that Hercules is in the Fedora
      repository, and confirming that there is a RHEL5 rpm for Hercules in RPMForge,
      and noticing that IBM partners with RedHat and supports RHEL5 on their machines,
      it occurred to me:

      Does anyone know whether in the process of making RedHat Enterprise Linux
      available to its customers, or perhaps by making some rpm repository for it
      available, IBM has actually distributed a Hercules RPM? If they have, then it
      appears to me that they have distributed it under QPL and therefore could not
      assert any patents against the Hercules project.

      This is an entirely separate issue than what their letters meant about their
      intent, or about the patent pledge. It does seem like it would be relevant,
      though, if it turns out that they have distributed it.

      A quick Google search did not turn up any specific IBM rpm repository, nor any
      indication that IBM has done anything that could be considered permission to use
      rpms from RPMForge, but I thought it might be worth asking.

      [ Reply to This | # ]

      Link to Linux Journal article
      Authored by: proceng on Saturday, April 17 2010 @ 04:04 PM EDT
      Justin Ryan from Linux Journal has an interesting take on this:
      Another Thrown Under The Bus.

      At least he takes pains to actually look at the situation :-)

      ---
      And ye shall know the truth, and the truth shall make you free.
      John 8:32(King James Version)

      [ Reply to This | # ]

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