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IBM Breaks Open Source Patent Pledge

CmdrTaco posted about 4 years ago | from the who-saw-that-coming dept.

IBM 359

Jay Maynard writes "IBM has broken the pledge it made in 2005 not to assert 500 patents against open source software. In a letter sent to Roger Bowler, president of TurboHercules SA, IBM's Mark Anzani, head of their mainframe business, claimed that the Hercules open-source emulator (disclaimer: I manage the open source project) infringes on at least 106 issued patents and 67 more applied for. Included in that list are two that it pledged not to assert in 2005. In a blog entry, the NoSoftwarePatents campaign's Florian Mueller said that 'IBM is using patent warfare in order to protect its highly lucrative mainframe monopoly against Free and Open Source Software.' I have to agree: from where I sit, IBM likes Open Source only as long as they don't have to compete with it."

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359 comments

Turnover (1, Insightful)

Jurily (900488) | about 4 years ago | (#31748404)

Why would anyone at IBM still remember what they said in 2005? That's ancient history.

Re:Turnover (4, Insightful)

mcgrew (92797) | about 4 years ago | (#31749182)

Why would anyone at IBM still remember what they said in 2005? That's ancient history.

Five years is ancient history? What grade are you in, son? IBM started business in 1885 [wikipedia.org] . THAT'S ancient history. Thinking like yous is what's wrong with business and politics today -- nobody thinks long-term.

Re:Turnover (0, Offtopic)

Jurily (900488) | about 4 years ago | (#31749286)

Thinking like yous is what's wrong with business and politics today -- nobody thinks long-term.

For me, a long term plan involves getting a better job, and if the people at IBM think the same, there's nobody left in that company you can blame for anything that happened in 2005.

Re:Turnover (1)

punit_r (1080185) | about 4 years ago | (#31749376)

Why would anyone at IBM still remember what they said in 2005? That's ancient history.

Its strange that you find this acceptable. Please tell me that you were looking for sarcassm there.

TFA talks about at least two patents being asserted by IBM for which they have pledged not to assert as recently as in 2005. Now, as a matter of good faith I think it does not matter whether IBM said it in 2005 or 1905.

My advice to IBM would be --- "If you dont mean it... dont say it"

FLOSS to hurt competitors (0)

Anonymous Coward | about 4 years ago | (#31748416)

IBM likes Open Source only as long as they don't have to compete with it."

Or, it takes a chunk out of their competitor's pockets: MS, Oracle, etc...

Re:FLOSS to hurt competitors (2, Insightful)

postbigbang (761081) | about 4 years ago | (#31748832)

It's like multiple personalities.

One side drives a lot of open source projects.

Another side has lots of IP, and says, gosh, we're gonna lose $$ if you use that mainframe emulator. (opens big box of patents) Now it's time to scare you off this mission of yours. Go home.(whilst waving the IP like it's a magic sword)

Look, IBM, you can't have it both ways. Wanna be a friend? Great. Want to wave your IP portfolio like the usual corporate hoodlum/troll? We'll walk.

Figure it out. Much is riding on whether we walk away from you.... or not. Microsoft's blustering is enough..... we can put you in the same boat-- where you were, years ago.

Re:FLOSS to hurt competitors (2, Insightful)

poetmatt (793785) | about 4 years ago | (#31749030)

not multiple personalities, different departments.

PR and the legal department are always in contradiction. Upper Management is usually states agreement with PR but other management just follows the legal requirements only. Guess which one speaks out usually?

Re:FLOSS to hurt competitors (3, Insightful)

postbigbang (761081) | about 4 years ago | (#31749292)

A shot across the bow is a bad thing, given their current position and that of people that respect FOSS. You'd think they'd have given this more thought.

Re:FLOSS to hurt competitors (0)

Anonymous Coward | about 4 years ago | (#31749282)

FLOSS to hurt competitors

Headline: Gingivitis may merge with Plaque to retake control in Mouth area.

Who wants to emulate... (5, Funny)

anss123 (985305) | about 4 years ago | (#31748430)

A crappy old green 720×348 graphic card?

Okay okay, I'm an idiot for even thinking it.

A lot of people (4, Informative)

wandazulu (265281) | about 4 years ago | (#31748628)

There are still a *lot* of mainframes out there running code from the 1960s. I can personally vouch for one system that went into production two years before I was even born.

The issue is the hardware; IBM charges a *lot* of money for their stuff, and especially on the mainframe, where some products (think MQSeries, or now known as WebsphereMQ) are charged by the processor cycle. The machine has a permanent link to IBM for both troubleshooting (they can work with every aspect of the machine remotely) as well as for billing (one of the "cool" features is that you can "lease" additional power only when you need it, like year-end billing or some-such).

I worked with a small shop that had a single mainframe that was used for small jobs by my company because it was cheaper to farm it out to them than to run it on the ES/9000; the $/cycle count cost just made it prohibitive to use the 9000 for anything other than massive jobs. So this small company got all the small business. You can appreciate that they'd cut their costs even further if they could run everything in Hercules on standard hardware, and probably get better performance than their small early 80s machine.

Mainframes are still the guy hidden in the shadows, smoking the cigarette; he's still there and has more power than you think.

Re:A lot of people (4, Funny)

TheRaven64 (641858) | about 4 years ago | (#31748694)

And a big Whoosh goes to wandazulu. The grandparent was referring to the Hercules graphics adaptor (a high resolution mono display card from the '80s). It was a pun. Not a good one, but a pun that you completely missed nonetheless.

Re:A lot of people (1)

Jurily (900488) | about 4 years ago | (#31749156)

It's not like the summary was clear on what it was referring to, and you should know how many articles we read.

Durr (0, Flamebait)

The End Of Days (1243248) | about 4 years ago | (#31748448)

from where I sit, IBM likes Open Source only as long as they don't have to compete with it.

That surprises me, who wouldn't like to invest time and money to create something, then have to turn around and compete against someone who basically just copies it and gives it away?

Re:Durr (4, Insightful)

Nerdfest (867930) | about 4 years ago | (#31748538)

Open source has made IBM a lot of money. Now they want to have their cake and eat it too.

Probably an oversight (5, Informative)

voss (52565) | about 4 years ago | (#31748840)

Since only two of 171 patents were covered by the covet not to assert. IBM doesnt need those two patents to win its case.

In any event the two patents are unenforceable under the doctrine of promissory estoppel. When IBM promised not to assert
these patents others acted in reliance on that promise. I suspect IBM's lawyers knows the law sufficiently well to not try to
do that in actual legal filings.

What he said. (3, Informative)

symbolset (646467) | about 4 years ago | (#31749042)

As PJ over on Groklaw says, the usual Microsoft spokesflacks leapt out in front of this story to promote Hercules' position when ordinarily they wouldn't even know about a subject this obscure. It's likely this is an attempt to turn the community against one of its biggest benefactors. Don't fall for it.

In the actual suit we can all be sure the oversight will be corrected and IBM will only use the 169 patents (plus a few more) that weren't in the pledge.

Re:Probably an oversight (0)

Anonymous Coward | about 4 years ago | (#31749266)

Someone did the set difference for them. It's not clear if IBM lawyers are able to do this mathematical operation on their own.

Re:Probably an oversight or NOT FOSS (1)

LWATCDR (28044) | about 4 years ago | (#31749268)

Not only that but the law suit looks to not be the FOSS Hurcules project at all but the Commercial company TurboHercules.
Does TurboHercules==Hercules? Are TurboHurcules offerings FOSS or is this a closed fork?
If it is a closed fork then IBM is not attacking FOSS at all and is keeping it's promise.
If not then we may have an issue but right now I am not so sure.

Well... (0)

Anonymous Coward | about 4 years ago | (#31748924)

Now they want to have their cake and eat it too.

Why would you want to have a cake you couldn't eat?

Re:Durr (0, Troll)

Lunix Nutcase (1092239) | about 4 years ago | (#31749040)

Duh? Did you really think that IBM was jumping on the Linux bandwagon out of anything other than to make money for themselves?

Re:Durr (1)

Jurily (900488) | about 4 years ago | (#31748654)

So you think 20 years is a reasonable time frame for software patents? The ZX Spectrum was still manufactured 20 years ago.

Re:Durr (1)

vlm (69642) | about 4 years ago | (#31749094)

So you think 20 years is a reasonable time frame for software patents? The ZX Spectrum was still manufactured 20 years ago.

Oh, that's not even the worst part.

As I see it, the worst part is the trade rags were flaunting the PR news releases for silicon that implemented the marketing goals listed in patent 7254698 back in 1999.

But the website I checked showed 7254698 wasn't issued until August 7 2007.

Using your example, it would be like not issuing the ZX Spectrum patent until say, 2010, attaching the emulator community, then waiting another 20 years until it expires.

Re:Durr (1)

Hooya (518216) | about 4 years ago | (#31749250)

Ah.. the ZX Spectrum. That was my first computer. The most fun I had programming... Oh "Harrier Attack" was the bees knees...

Good old days..

Re:Durr (5, Insightful)

spikenerd (642677) | about 4 years ago | (#31748798)

...who wouldn't like to invest time and money to create something, then have to turn around and compete against someone who basically just copies it and gives it away?

When you say "copies it", do you mean "ctrl-c, ctrl-v" or "re-engineer from scratch"? If you mean the former, that's a serious accusation, and you need to back it up. What part of their work was electronically copied? If you mean the latter, then so what? Do you really mean to imply that people have the right to distribute ideas and yet still own them? Do you think the descendants of some cave-man should be getting royalties for every combustion engine that internally uses fire? Yes, we should like it when people improve on our ideas. And yes, doing something in open source is a significant improvement (perhaps sometimes even if it's not quite as good).

Re:Durr (-1, Flamebait)

The End Of Days (1243248) | about 4 years ago | (#31749008)

When you say "copies it", do you mean "ctrl-c, ctrl-v" or "re-engineer from scratch"?

Neither.

Do you really mean to imply that people have the right to distribute ideas and yet still own them?

Patents, chief. You know, it's right in the title.

Do you think the descendants of some cave-man should be getting royalties for every combustion engine that internally uses fire?

No. That's about the most absurd extreme you could use. Do you always make such worthless arguments?

I am not surprised that you're modded up, being that your post agrees with the Slashdot groupthink, but really it's just intellectually sloppy. You aren't even echoing the normal entitlement justifications particularly well.

Re:Durr (5, Insightful)

vlm (69642) | about 4 years ago | (#31748990)

That surprises me, who wouldn't like to invest time and money to create something, then have to turn around and compete against someone who basically just copies it and gives it away?

No time and money was invested in creating at least one of the patents. For example, look at one of the "infringed" patents, US Patent 7254698. The claims are merely a "shopping list" or "marketing glossy" of the peculiar feature of an ALU, which happens to be installed in a particular mainframe, that the Hercules guys would like to emulate:

Does multiply/add and multiply/subtract

Five deep pipeline, one result per cycle

binary or hex floating point format

Works on two different architecture formats.

It would take about a minute to make a spreadsheet in Excel that theoretically infringes on that patent, and probably an hour or so to make a perfect replica. Really all you need to do is implement mX+b=y with a five deep stack/array, given some peculiar input and output formats.

Now IBM will sell you a circuit board circa 2001-ish that will do this. They spent all their effort making an expensive machine that implements these simple math ideas in silicon. No one is stealing their physical hardware, or blueprints, or VHDL/Verilog, etc etc.

The emulator merely does the same calculations in C, and its free.

It boils down to IBM saying "no emulating our exact instruction set"

One ethical problem with patents like 7254698, aside from obvious ones like trying to patent basic linear algebra equations, is the supporting docs are all from 1999 to 2001 ish era. But its doing the submarine thing in that it was not issued until August 7 2007, "around a decade" after they were shipping silicon, more or less, sort of. And it won't expire until around 2023 which in the computer field is an absolute eternity.

I will give IBM credit, that unlike a patent troll, they actually built silicon to do something, not just patented an idea. But not much credit.

I have not looked into all hundred+ patents but they're probably all very similar to this one, but for other parts of the CPU instruction set.

I feel your pain (4, Insightful)

SleazyRidr (1563649) | about 4 years ago | (#31748484)

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

I can see why you feel hard done by.

Re:I feel your pain (0)

Anonymous Coward | about 4 years ago | (#31748552)

You're not thinking of the BIG PICTURE maaaaan!

You're missing the point (4, Insightful)

Weaselmancer (533834) | about 4 years ago | (#31749096)

It's not that this particular case has 173 patent infringements, and 2 were ones IBM promised not to use so the project is pooched anyways. That's not it at all. Sure - the end result is the same for this Hercules emulator but that's not the point.

The point is IBM said they wouldn't use these patents against open source projects, and just did. Therefore the 500 or so patents that they claim are off limits to open source obviously aren't. Their promise is useless because now we know that as soon as it is expedient they will use these patents against open source.

In other words this Hercules emulator is merely the litmus test for IBM's open source patent promise, with lousy (but sadly typical) results.

Re:I feel your pain (3, Insightful)

c++0xFF (1758032) | about 4 years ago | (#31748602)

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

Re:I feel your pain (2, Funny)

Anonymous Coward | about 4 years ago | (#31748784)

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

Re:I feel your pain (0)

Anonymous Coward | about 4 years ago | (#31749012)

Shut up you Micro-turfer!

Re:I feel your pain (3, Funny)

c++0xFF (1758032) | about 4 years ago | (#31749176)

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

Re:I feel your pain (1)

harlows_monkeys (106428) | about 4 years ago | (#31749446)

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

Re:I feel your pain (5, Insightful)

Jazz-Masta (240659) | about 4 years ago | (#31748644)

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

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

Re:I feel your pain (3, Insightful)

Trepidity (597) | about 4 years ago | (#31748824)

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

Re:I feel your pain (0)

Anonymous Coward | about 4 years ago | (#31748650)

clicking around TurboHercules web sight .. I do not see any mention of source or OSS. This is who the article claims the letter was sent to. Later links go to a QPL project.

IBM cant sell this software .. hmm fair?

Re:I feel your pain (2, Informative)

Jay Maynard (54798) | about 4 years ago | (#31748872)

TurboHercules SA is a company formed to commercialize the Hercules [hercules-390.org] open-source emulator. The accusations IBM made in its letter apply as much to Hercules as they do to TurboHercules, since the latter simply sells services and support for the emulator.

Yes, Hercules is open source. The QPL is an approved open source license, according to the Open Source Initiative.

Re:I feel your pain (1)

laing (303349) | about 4 years ago | (#31749052)

Yes but did IBM threaten the commercial version (Turbo Hercules) or the OSS version? Let's get our facts straight before we jump to the conclusion that IBM is threatening OSS.

Re:I feel your pain (1)

bluefoxlucid (723572) | about 4 years ago | (#31749016)

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

corepirate nazis have no conscience (0)

Anonymous Coward | about 4 years ago | (#31748492)

so their patentdead pledges mean.... 0.

you call this weather?

never a better time to consult with/trust in your creators.

Claiming infringement (1, Insightful)

Anonymous Coward | about 4 years ago | (#31748504)

Claiming infringement on a patent is not the same thing as asserting it. Yet another story blown vastly out of proportion by poor editing.

Re:Claiming infringement (3, Insightful)

axlrosen (88070) | about 4 years ago | (#31749342)

Your comment is not so helpful unless you explain the difference. They sound like synonyms to me.

strange brew that's also good for you (-1, Offtopic)

Anonymous Coward | about 4 years ago | (#31748518)

That would be kombucha.

You might not like them ... (0)

0racle (667029) | about 4 years ago | (#31748530)

... but software patents are legal in the US and many other countries. Surprisingly, doing things against the law is not the safest course of action. It sounds like the author of the software knew they were infringing and thought that IBM's position was 'oh no, go ahead and rip our stuff off.'

I'm finding it hard to feel bad for the project.

Re:You might not like them ... (5, Informative)

Monkeedude1212 (1560403) | about 4 years ago | (#31748624)

Check out their website. The quotes they've listed.

“ I have installed your absolutely fantastic /390 emulator. You won't believe what I felt when I saw the prompt. Congratulations, this is a terrific software. I really have not had such a fascinating and interesting time on my PC lately. ”
— IBM Large Systems Specialist

“ Such simulators have been available for a long time. One of the most complete (up to modern 64-bit z/Architecture) is hercules. ”
— Michel Hack, IBM Thomas J. Watson Research Center

  An apparently excellent emulator that allows those open source developers with an "itch to scratch", to come to the S/390 table and contribute. ”
— Mike MacIsaac, IBM

IBM -HAS- said "Go ahead and rip our stuff off, it helps us in the long run"
And now that its paid off, they're going for more money by killing it. Despicable.

Re:You might not like them ... (1)

Nerdfest (867930) | about 4 years ago | (#31748720)

And now that its paid off, they're going for more money by killing it. Despicable.

... especially with them pushing zLinux so people do not completely dump existing mainframe installations.

Re:You might not like them ... (5, Interesting)

c++0xFF (1758032) | about 4 years ago | (#31748774)

These are hardware patents, not software patents. What's interesting about this case is we have software violating a hardware patent, as it's emulating what the hardware does. A key word here is "emulating."

Now, I have a hard time thinking that all those patents are really being violated. I've worked with processor emulators before, and the way they actually work is very different from the actual hardware. Many of the patents seem to be hardware-specific, and not what you would actually implement in software. I won't speculate beyond that because I don't know much about the hardware and emulator involved in this case.

Re:You might not like them ... (0)

Anonymous Coward | about 4 years ago | (#31749364)

Just because it's legal doesn't mean it's ethical or good. Lots of states in the US still have laws on their books outlawing interracial marrage. Do you want to justify that?

Re:You might not like them ... (1)

Yvanhoe (564877) | about 4 years ago | (#31749416)

It is hard to do any computer work without infringing on a software patent you know. The safest course of action is to have a lawyer constantly checking that the obvious features you code are not patented. In fact, as this is close to impossible, most companies choose a less-safe way : they patent things of their own as defensive patents, ready to strike back if a competitor says that they infringe one patent, they'll have a counter-infringement to point at.

Everybody lives in fear of patent trolls who own a lot of patents but use none of them, only hoping to cash-out in court.

Linux itself is said to be infringing quite a lot of patents. In most cases, applying the law is a way to kill most of the OSS projects. I would say this is a law you have to disobey if you want to do anything. This is a law that must not be enforced if US doesn't want to go back into medieval IT era. And yeah, this is a bad law that will have to change sooner or later.

Remember that things like the ability to read DVDs under linux were originally illegal features. It is very unfortunate but today, we techies, have to take a political stand to do our job even in its most obvious tasks.

Spam? (2, Insightful)

headkase (533448) | about 4 years ago | (#31748550)

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

Obviousness (3, Insightful)

headkase (533448) | about 4 years ago | (#31748732)

A corollary to this is that all the "obvious" patents that are being granted are already spam. Software patents are broken so I'm all for breaking them faster. A companies attitude towards software patents is determined by how innovative it is, young Apple: against, current Apple: for. I guess once you become big enough you can afford the shotgun technique of software patent application then you are for them.

Wake up and smell the stock market people... (1, Offtopic)

Assmasher (456699) | about 4 years ago | (#31748586)

...ANY publicly traded company will do ANYTHING to ensure the continued success of the company because the management is entirely beholden to the stock holders. Google included (although for now a large amount of the stock is in the hands of people still involved in the day to day operations.)

Some day you will be reading a story about Google 'embracing/extending/extinguishing' some new darling technology and you will realize that as soon as a company 'goes public' they lose their soul FOREVER. I'm not against publicly traded companies, I'm against the ridiculous naivete that tries to act like Microsoft is 'evil' and Google is 'good', LOL. From such a simplistic point of view, Microsoft are evil, Apple are evil, Google are evil, IBM is evil, every public company is 'evil.'

Re:Wake up and smell the stock market people... (1)

bb5ch39t (786551) | about 4 years ago | (#31748762)

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

Re:Wake up and smell the stock market people... (1, Troll)

kenp2002 (545495) | about 4 years ago | (#31749178)

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

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

Sell A for $30 and you are honest.
Sell A for $40 and you are overcharging by $10.

"But without profit you cannot grow."

Then you ask, "How much is enough?"

It's never enough once you cross the profit line. The whole usury debate has been going on for over 4000 years and the nature of profit in morality.

Profit is at it's core, evil in that sense. The question rages on, how much evil are you will to tolerate in order to stay ahead of the competition.

It's always a race to the bottom of the morality ladder. Ethics is nothing more then a series of rules a business tells people they play by until they become inconvienent.

Re:Wake up and smell the stock market people... (1)

Assmasher (456699) | about 4 years ago | (#31749480)

I think you're missing the point. They are not actually 'evil' by any stretch of the imagination, they have different priorities and responsibilities. As soon as a company goes 'public' their single most important driver is the need to enrich their shareholders - that is it. Anything else is purely 'gravy' and subject to the whims of the economy. I guarantee you that if someone were to challenge Google's market seriously Google would do WHATEVER IT COULD to prevent that from happening - whether 'ethical' or otherwise. There'd be no dithering, not stopping to think about it, it would simply happen.

Re:Wake up and smell the stock market people... (2, Interesting)

guruevi (827432) | about 4 years ago | (#31748876)

You will also notice that these 'pledges' don't do very much in the long run. IBM, Google, Microsoft, Novell, Red Hat and Apple all have 'pledged' some type of protection for their open source ancestors but those things are not legally binding no matter what they might say about it (I think it's MSFT that has such a claim).

That's also why you should avoid implementing any of their proprietary crap in your Open Source project (or any project that's being made public or sold in any shape or form) because if for any reason they want to leverage their arbitrary licenses on it, they can no matter what they have promised whether it's uncanny legal speak or so-called patent pools.

Re:Wake up and smell the stock market people... (2, Interesting)

BigSlowTarget (325940) | about 4 years ago | (#31748962)

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

Ha. You actually believe this? Sorry, senior managers can obscure financial results until well after they have collected their paycheck and left the company. Each level of a corporation is 'beholden' to the level above them that has hire/fire authority or who has influence with someone who does. At the top the Board of Directors cannot be fired by the stockholders (except under very extreme conditions) but who may be up for reelection at a general meeting once a year. In practice it is extremely unlikely that a board member will be removed unless a single very large stockholder (usually a corporate takeover type) or a group of large stockholders (pension funds or hedge funds) prepare and campaign with their own money before the meeting.

Board members and senior management choose the direction of companies with non-huge shareholders simply along for the ride until they decide to jump off. They can sell their shares, but they can't really change the company. If the corporation is blatantly steered toward the rocks then someone might interfere, but it is clear most business managers of recently failed companies (AIG, Lehman) were not being operated for the benefit of any shareholders.

Call the DOJ (4, Interesting)

lwriemen (763666) | about 4 years ago | (#31748614)

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

Re:Call the DOJ (1)

TheRaven64 (641858) | about 4 years ago | (#31748728)

More or less what I was thinking. Didn't IBM lose an antitrust suit in the '80s for doing pretty much exactly the same thing?

Re:Call the DOJ (1)

Richard W.M. Jones (591125) | about 4 years ago | (#31748874)

I think the unfortunately difference here is that patents are legal monopolies. You're meant to use them anti-competitively and against the interests of the free market.

Rich.

Good Grief. (1)

Frosty Piss (770223) | about 4 years ago | (#31749302)

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

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

Anonymous Coward (0)

Anonymous Coward | about 4 years ago | (#31748618)

This is the same IBM the has laid off THOUSANDs in the US over the past two years, and replaced them with folks from the BRIC countries, so it doesn't surprise me.

Hercules is a z/Arch emulator... (2, Interesting)

Anonymous Coward | about 4 years ago | (#31748626)

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

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

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

Re:Hercules is a z/Arch emulator... (1)

bb5ch39t (786551) | about 4 years ago | (#31748806)

Yes. Patents apply to some of the z architecture. You cannot make "something" (either hardware or software) which implement the patented architecture, regardless of how you implement it.

Re:Hercules is a z/Arch emulator... (1)

Megane (129182) | about 4 years ago | (#31748942)

Patents cover a method of doing something, not the mere idea of doing something. A software implementation of a hardware feature is likely to use a different method to accomplish the same or similar result.

Re:Hercules is a z/Arch emulator... (0)

Anonymous Coward | about 4 years ago | (#31749248)

I'm not up to speed on the old mainframe stuff, so I may be wrong in terms of availability (and I'm sure IBM is happy to support it for a pretty penny), but I'm a bit surprised that this stuff is not protected under the DMCA, assuming that the hardware is no longer easily available.

Wasn't that one of the few good things about the DMCA? Legal protection for people trying to work with extremely legacy technology.

hmm (2, Insightful)

nomadic (141991) | about 4 years ago | (#31748632)

." I have to agree: from where I sit, IBM likes Open Source only as long as they don't have to compete with it."

Not like you'd have any bias here or anything...

France (-1)

Teun (17872) | about 4 years ago | (#31748640)

I don't remember France (or Europe) ever recognising software patents.

Quite the contrary, they are explicitly non-existent.

So all Hercules needs to do is limit this part of their business to the whole world minus the USofA and Japan.

Yeah I know, I'm dreaming of a fair world.

Look, IBM is losing it anyway (2, Insightful)

Maxo-Texas (864189) | about 4 years ago | (#31748676)

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

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

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

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

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

Re:Look, IBM is losing it anyway (1)

CannonballHead (842625) | about 4 years ago | (#31748984)

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

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

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

Unfortunately, most businesses work that way.

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

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

Frankly, I wish it made more financial sense for them to hire American employees. Apparently, something is wrong with the US that makes them want to hire non-US workers. Maybe it has to do with the same reason that many companies are moving out of California.

Naaaah. Couldn't be. They are just being evil for the sake of being evil...

Disclaimer: I am against greed, but I have a consistent enough worldview to know that most people ARE greedy, no matter what I want them to be... and any governing or economic system that expects people to be what they are not and won't be is destined to fail.

Re:Look, IBM is losing it anyway (4, Interesting)

mdm42 (244204) | about 4 years ago | (#31749190)

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

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

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

Re:Look, IBM is losing it anyway (1)

gzipped_tar (1151931) | about 4 years ago | (#31749218)

You're basically saying that a free employment market is evil because it hurts you USAers. How's that different from IBM saying an open source hardware emulator is evil because it hurts its competitive advantages?

If you fail to get employed, whining doesn't help. Capitalism doesn't work the way you think it works.

Sounds like "Bait & Switch" (0)

bogaboga (793279) | about 4 years ago | (#31748708)

Who can disagree? And by the way, I understand IBM's position. Sometimes, you just have to take a stand.

Linux is almost everywhere now and it will surely continue to improve. Stemming its tide now just seems logical.

Guess what! Microsoft must be screaming of happiness as I write this.

Master the Mainframe (5, Interesting)

Caffeine Molecule (784043) | about 4 years ago | (#31748778)

What's _really_ interesting is that IBM instructs students competing the Master the Mainframe contest to download and use Hercules. At least they did in '06. http://www.ibm.com/developerworks/university/students/contests/mainframe/index.html [ibm.com]

Re:Master the Mainframe (3, Insightful)

DarKnyht (671407) | about 4 years ago | (#31748946)

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

Re:Master the Mainframe (4, Interesting)

bill_mcgonigle (4333) | about 4 years ago | (#31749410)

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

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

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

IBM were always against us (0, Troll)

ciaran_o_riordan (662132) | about 4 years ago | (#31748808)

They're as bad as Microsoft:

swpat.org is a publicly editable wiki, help welcome.

Re:IBM were always against us (2, Insightful)

Lunix Nutcase (1092239) | about 4 years ago | (#31749214)

It was always amusing to see how much people bought into IBM's bullshit. IBM as a company never cared about the ideals of free software nor the GNU manifesto. They saw Linux and other open source software as something they could leverage in order to sell more of their proprietary hardware.

Strange action to take (2, Interesting)

Richard W.M. Jones (591125) | about 4 years ago | (#31748834)

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

Rich.

Re:Strange action to take (1)

jimicus (737525) | about 4 years ago | (#31748972)

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

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

(That being said, the developers of Hercules themselves admit that IBMs license for OS/390 is legally tied to IBM hardware, so it's hard to see why a business would want to migrate their systems to Hercules-on-x86 only to incur the wrath of a thousand lawyers).

Re:Strange action to take (0)

Anonymous Coward | about 4 years ago | (#31749004)

Hercules is a nice bit of software, but it's very slow. (Supposedly something like 50x slower than the real thing).

That doesn't really make it useless for migrating software from 1960s-1980s mainframes onto small, cheap modern hardware.

Re:Strange action to take (1)

TheRaven64 (641858) | about 4 years ago | (#31749216)

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

One of the advantages of mainframes is that they just keep working, but this is also a disadvantage for the company trying to sell them to you. If you buy a mainframe and it lasts for a decade then, at the end of the decade, commodity hardware can emulate it at native speed.

Your offering a commercial product (1)

Shivetya (243324) | about 4 years ago | (#31748864)

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

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

fr1st psot (-1, Offtopic)

Anonymous Coward | about 4 years ago | (#31748950)

the 3ottoms butt

IBM is not suing the project. (1)

velen (1198819) | about 4 years ago | (#31748956)

IBM is suing TurboHercules who are out to make money out of the Hercules project.

From the TurboHercules website.

"The TurboHercules Niche
TurboHercules is looking to carve out a commercial niche that complements—not competes with—the IBM mainframe.

The niche we see for TurboHercules is to focus on ancillary workloads such as mainframe education, training, demonstrations, pre- and post-processing, data preparation, archiving, development and testing. However, IBM has restricted the use of its operating system software to IBM mainframes only.

But, there is an exception. The worldwide IBM Customer Agreement clearly states that “if the designated machine is inoperable, the customer may use another machine temporarily.” Disaster recovery / business continuity is an ideal fit for TurboHercules since the backup and related communications occur without the need to run any IBM software on the TurboHercules machine.

For an overview of our disaster recovery offerings, please visit our DR Solutions page."

Re:IBM is not suing the project. (4, Informative)

velen (1198819) | about 4 years ago | (#31749018)

From Ars Technica

"In many ways, the project arguably benefits IBM by encouraging interest in the mainframe platform. That is largely why IBM has shown no hostility towards Hercules in the past. In fact, IBM's own researchers and System Z specialists have lavished Hercules with praise over the years after using it themselves in various contexts. The project was even featured at one time in an IBM Redbook. What brought about IBM's change in perspective was an unexpected effort by the TurboHercules company to commercialize the project in some unusual ways.

TurboHercules came up with a bizarre method to circumvent the licensing restrictions and monetize the emulator. IBM allows customers to transfer the operating system license to another machine in the event that their mainframe suffers an outage. Depending on how you choose to interpret that part of the license, it could make it legally permissible to use IBM's mainframe operating system with Hercules in some cases.

Exploiting that loophole in the license, TurboHercules promotes the Hercules emulator as a "disaster recovery" solution that allows mainframe users to continue running their mainframe software on regular PC hardware when their mainframe is inoperable or experiencing technical problems. This has apparently opened up a market for commercial Hercules support with a modest number of potential customers, such as government entities that are required to have redundant failover systems for emergencies, but can't afford to buy a whole additional mainframe."

Re:IBM is not suing the project. (1)

vlm (69642) | about 4 years ago | (#31749314)

It says a lot about the "modern IT world" that hot-backup and high reliability is considered bizarre and unusual enough to require scare quotes around "disaster recovery", and they have to explain the basic concept of not having a single point of failure to their readers.

A couple decades ago my first real IT job was at a mainframe shop that had two machines, either of which could quite easily handle the load, for obvious reasons. You don't just "shut off" roughly 5% of the US stock market transactions because a maintenance dude wants to replace an air filter or whatever.

I'm quite sure Hercules could handily have saved them untold millions on hardware and maint contracts. Of course IBM would have freaked...

What am I missing? (1)

Slash.Poop (1088395) | about 4 years ago | (#31748992)

Included in that list is two that it pledged not to assert in 2005

What about the other 171? Any comment on them?

As an IBM shareholder, I am disappointed (0)

Anonymous Coward | about 4 years ago | (#31749038)

Financially, I can see rescinding the pledge for FUTURE patents, but going back on ones word will cost them more in goodwill than they will gain in hard dollars.

I do hope they reconsider and I hope that they reaffirm their earlier pledge for new patents as well. There is too much to be gained by sharing and too much to lose by being stingy.

IBM shareholders should write the company.

From IBM's Shareholder relations web site (http://www.ibm.com/investor/services/contact-information.wss):

Investors with requests [not relating to stock transfer] may write or call:

IBM Stockholder relations
IBM Corporation
New Orchard Road
Armonk, NY 10504

you know you're old when... (1)

cstacy (534252) | about 4 years ago | (#31749044)

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

Well (2, Insightful)

kenp2002 (545495) | about 4 years ago | (#31749056)

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

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

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

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

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

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

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

In Soviet U.S.A. (-1, Troll)

Anonymous Coward | about 4 years ago | (#31749236)

Open source breaks IBM.

Yours In Murmansk [youtube.com]
K. Trout

Hercules is hardly a replacement for Big Iron (1)

itomato (91092) | about 4 years ago | (#31749420)

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

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

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

A curious question (1)

rabtech (223758) | about 4 years ago | (#31749444)

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

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

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