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Open Source Complaint Against IBM Gets Support

kdawson posted more than 4 years ago | from the flashback-to-the-eighties dept.

IBM 250

FlorianMueller writes "ZDNet blogger Dana Blankenhorn reports that '[t]he efforts by open source TurboHercules to break IBM's mainframe monopoly through the European Commission got some proprietary support this week when NEON Enterprise Software LLC of Austin, Texas, filed an EU complaint alongside a US antitrust lawsuit.' NEON's founder co-founded BMC, so the company is well-funded for this fight. In comments given to the IDG News Service, IBM claims that NEON's product, which saves mainframe customers money by optimizing the use of coprocessors, 'offers no innovation,' and accuses the 'copycat' of violating IBM's intellectual property. That's basically what IBM also said about the Hercules emulator. The European Commission is expected to take a decision on an investigation in a matter of months. Since IBM lobbies the EC over the Open Document Format, it's now accused of double standards."

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oh jeez (4, Informative)

poetmatt (793785) | more than 4 years ago | (#32690886)

can we not go through this again? it's been debunked [groklaw.net] thoroughly.

This is the fault of Hercules trying to get IBM to license the way Hercules wants, not anything that is IBM's fault.

Groklaw debunked nothing but straw men (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32691046)

Sorry poetmatt, but Groklaw didn't debunk the issue at all. As far as NEON is concerned, Groklaw hasn't reported on it yet as far as I can see. What it wrote in April about TurboHercules was somewhere between 'grossly misleading' and 'totally wrong', and the article contains several links to verify that, for an example, IBM brought patents into play (initially calling them "intellectual property") before TurboHercules ever inquired about possible problems in that regard (see here [blogspot.com] ). Also, Groklaw claimed that IBM's threat letter to TurboHercules wasn't that bad because it wasn't an actual lawsuit or cease-and-desist letter, but IBM had promised in its open source patent pledge "not to assert" a list of 500 patents (see here [blogspot.com] ). And there would be more examples.

I don't think a lot of people here on slashdot agree with you (poetmatt) and Groklaw's PJ that it's a good idea for any company to sue a free and open source software startup that was founded by the same person who created the Hercules open source project in 1999. In fact, a lot of loyal Groklaw readers were disappointed and some of the activists I know (as the founder of the NoSoftwarePatents campaign) were nothing short of shocked that PJ would rush to IBM's defense with an encouragement to sue the pants off an open source company. A few may have expected it from someone who's more loyal to IBM than Rush Limbaugh is to the Republican Party.

You say that it's not "IBM's fault" that Hercules users don't get the license they'd like to get, but that's the whole point of antitrust law: curbing abuse of rights (such as intellectual property rights) by companies in a dominant market position ("dominant" is actually an understatement given that IBM has a de facto monopoly on the mainframe by now).

Re:Groklaw debunked nothing but straw men (5, Interesting)

poetmatt (793785) | more than 4 years ago | (#32691124)

HAHAHAHAHAHA Florian! The man represents himself. Color me surprised.

This is not about patents, and you are 100% incorrect.

I know you mean well, but everything you do causes problems for open source. Please go away. Do you have any idea how much you're negatively impacting open source? You are seriously a bane on free software.

Secondly, citing your own blog is not fact. It's completely insubstantiated. Come back with something that actually makes sense and isn't spin, Florian.

There is no abuse of rights. IBM has a copyright and if they choose to exert it they can. Are you going to tell me that if I copyright something I shouldn't be able to exert that copyright? What world do you live in?

I love how you fail to read the groklaw article where it shows that this has nothing to do with IBM's patents. Hercules is asking IBM to license something to a non-GPL compatible license. Since when is that IBM's responsibility to allow, when it would modify their own license? I hate MS for example, but you wouldn't expect them to license something under GPLv3 when it would modify or restrict their own license, would you?

this is about copyright, not IP rights, and not antitrust. Get your laws right. It's not anticompetitive, either. Anyone can still go out and make their own implementation, and guess what? Hercules has already done so.

Re:Groklaw debunked nothing but straw men (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32691248)

This is not about patents

It's not exclusively about patents. But it's an undeniable fact that IBM asserted patent infringement and hasn't retracted that assertion.

Secondly, citing your own blog is not fact. It's completely insubstantiated.

I didn't say that people should take my word for it, but the blog is a starting point because it contains links to all four letters that were exchanged between IBM and TurboHercules from July 2009 until March 2010. That is what I consider access to substantiation. Please take a look at it and then you might agree.

There is no abuse of rights. IBM has a copyright

No copyright. They said "intellectual property" initially, which is indeed a vague term, but their second letter contained a list of 106 patents and 67 patent applications. No reference to copyright in any of their letters.

and if they choose to exert it they can. Are you going to tell me that if I copyright something I shouldn't be able to exert that copyright? What world do you live in?

The very world in which there's antitrust law. Ever heard of the legal concept of an abuse of a dominant market position? Let me google that for you. [wikipedia.org]

Anyone can still go out and make their own implementation

As you can see, once you do it, IBM claims you violate their intellectual property rights. They bully you, they'll even bully your customers which is what they did in NEON's case. Take a look at the NEON situation and you'll see the parallels [blogspot.com] between that one and the TurboHercules matter.

The EU also imposed requirements on Microsoft that restricted the way they could use their intellectual property rights and required them to make certain components available separately ("untying"). On that same basis, IBM may soon be required under competition law to make z/OS available on a fair, reasonable and non-discriminatory basis without tying its use to IBM hardware.

Re:Groklaw debunked nothing but straw men (5, Informative)

poetmatt (793785) | more than 4 years ago | (#32691402)

IBM did nothing.

There was no bullying. They never even sent a Cease and Desist! So what did they do, exactly? Our Turbohercules guy asked for clarification and got it, and flipped out.

Again, linking to your own blog with your own opinions is disingenuous and the kind of spin that you are frankly, known for, Florian. Tit for tat sir, if you want to play LMGTFY, then I'm going to call you on the fact that you're a known for misleading comments and redirecting debates.

So lets go onward to things that you also fail to understand, shall we? I don't have all day, after all. IBM *does* have copyright on their code, and if you read their license, you would understand that their control of the copyright defines the scenario. Why? Well lets take a look at the IBM license. Do you know what it is? LGPL. Maybe you should look up what the LGPL does, as it is about copyright, and not software patents.

So you're saying that the fault here is IBM, which indirectly blames LGPL. This is why and how you are detrimental to the F/OSS community. Please leave it and go back to lobbying or work for MS or something. If IBM gets screwed here, the GPL would be weakened accordingly. Way to go! That surely must be good for open source, right?

Is this related to MS? No. Don't bring it up and waste my time, buddy. I know your games. You've been around too long to bring down a community that is way too established for you to go to. Guess which community that is? The F/OSS one.

And with that said, I have to get back to actual real work, as opposed to verbal sparring.

Re:Groklaw debunked nothing but straw men (1, Insightful)

Anonymous Coward | more than 4 years ago | (#32691574)

The EU also imposed requirements on Microsoft that restricted the way they could use their intellectual property rights and required them to make certain components available separately ("untying"). On that same basis, IBM may soon be required under competition law to make z/OS available on a fair, reasonable and non-discriminatory basis without tying its use to IBM hardware.

You're making a simple logical fallacy here. A implies B does not mean that B implies A. My understanding is that the EU restricted Microsoft from shipping Windows with IE, etc without presenting users with the other available options. They did not state that Microsoft's programs must be allowed to run on any platform.

Therefore, the precedent in the EU case is that a platform cannot prefer one sub-component over a competitor's, but that says nothing about a component requiring a particular platform. In fact, all of the cases with Apple and OS/X requiring Apple hardware would suggest that there's plenty of precedent that opposes your argument.

IANAL, but what you're claiming seems to be a distortion of reality.

Only dominant companies get regulated (1, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32691724)

Even though it was posted by an Anonymous Coward I'll try to shed light on what's been said:

My understanding is that the EU restricted Microsoft from shipping Windows with IE, etc without presenting users with the other available options. They did not state that Microsoft's programs must be allowed to run on any platform.

Microsoft doesn't tie its software to hardware. What the European Commission and the EU's Court of First Instance determined was that Microsoft tied is operating system to certain additional components (initially the Media Player; later on, the browser case you mentioned also came up), meaning you could only buy Windows if you also bought the Media Player.

In fact, all of the cases with Apple and OS/X requiring Apple hardware would suggest that there's plenty of precedent that opposes your argument.

An antitrust regulator can only intervene against a company that has a dominant market position. IBM has a mainframe monopoly, so it's obviously dominant. Microsoft was considered dominant for desktop PC operating systems. Concerning Apple, I know experts who believe they're dominant as an online music distributor. But the Mac isn't a dominant platform in terms of market share. Simply put, if you're a little guy in the market, you don't get regulated, but monopolists, quasi-monopolists and other dominant players do get regulated. That's why company A getting away with something isn't necessarily a precedent for similar behavior by a dominant company B.

The European Commission now intends to also create interoperability requirements, by way of a new law, for other "significant market players", but that's just for your additional information and doesn't relate to IBM's mainframe monopoly, for which we have antitrust law in place already. For Apple, that new initiative could make a major difference.

TL;DR version (0)

Anonymous Coward | more than 4 years ago | (#32691842)

TurboHercules and NEON file antitrust lawsuits against IBM, then cry foul because IBM isn't going to roll over and take it.

Re:Only dominant companies get regulated (0)

Anonymous Coward | more than 4 years ago | (#32692600)

Again, you distort reality to fit your argument. I could claim that Apple has a monopoly in the Macintosh or OS X markets, but that's ignoring the competitive market. Mainframes compete directly with x86 servers [top500.org] , so you have to consider that as part of the market. There is plenty of competition [techworld.com] in that market space, so IBM does not have a monopoly.

The EU took action against Microsoft because they held a true monopoly in the Browser and Desktop OS markets. In 2004, MS had 91% market share for IE [wikipedia.org] . That has since declined significantly, but is still around 60%. Windows still holds onto greater than 90% market share [wikipedia.org] .

Re:Groklaw debunked nothing but straw men (4, Informative)

sprag (38460) | more than 4 years ago | (#32691270)

I think Florian's beef is that IBM's response letter mentioned patents which may be infringed by the hercules product -- and how one of them was on the 'gift to open source' list. Of course, even then he's wrong: the open source hercules project is different than the commercial product which is seeking the copyright license.

The bottom line is the commercial hercules people started this fight and they were in the wrong to assert that IBM must license its properties to anyone who comes by and asks. The patent (non-) issue doesn't have anything to do with it and its an emotional sideshow to get the OSS folks to be on the commercial hercules' side.

Re:Groklaw debunked nothing but straw men (1, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32691398)

the open source hercules project is different than the commercial product which is seeking the copyright license.

It's 100% the open source software. They sell you services in addition, and if you want, you can buy a server from them. If you claim that this typical open source business model (we're not talking about TurboHercules having created any proprietary software) doesn't deserve to be considered an open source approach, then what about Red Hat, Novell, Alfresco, Canonical and so many other open source companies out there? What if someone runs Oracle 11g on Linux? Should anyone who promised not to assert patents against Linux then get away with using patents against the Linux part of the setup?

Re:Groklaw debunked nothing but straw men (2, Informative)

sprag (38460) | more than 4 years ago | (#32691894)

If i said it was closed source then I misspoke.

But, that isn't the point: the open source project isn't affected. The commercial entity which is repackaging hercules has been informed (not sued, not C&D, just informed) that if they continue with their lawsuit against IBM then IBM might consider using this list of patents against them. Again, not against the open source hercules community but the commercial entity.

I think software patents suck, but using a lawsuit to try to force someone to do something that they don't want to sucks just as much.

IBM asserted infringements months before antitrust (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32692040)

if they continue with their lawsuit against IBM then IBM might consider using this list of patents against them. [...] I think software patents suck, but using a lawsuit to try to force someone to do something that they don't want to sucks just as much.

Let me inform you then that this is incorrect in three important ways:

This blog posting [blogspot.com] contains links to all four letters exchanged between the two entities from July 2009 to March 2010. The antitrust complaint was filed in March. The first time IBM said that the Hercules emulator is an "infringing platform" and claimed that its "intellectual property" (in that case, as a synonym for "patents") was violated was in November 2009 -- four to five months before the antitrust complaint.

You say "lawsuit" but TurboHercules never filed a lawsuit. A complaint with an antitrust regulator is something different. It means that the regulator is informed of what someone considers anticompetitive conduct. The regulator then takes a look and will only take action if it concludes that this must be pursued in the public interest. The case then doesn't go to court, at least not in Europe, but if the company that's being investigated (which in this case would be IBM if and when an investigation starts) wanted to appeal the ruling, it could go to court later. Again, TurboHercules didn't go to court.

The other respect in which this is wrong is that IBM never said that TurboHercules should withdraw its antitrust complaint or else would face IP infringement. If you look at the correspondence between the companies, it's clear that TurboHercules had only asked IBM for an offer of reasonable business terms that would allow the use of z/OS in emulation mode. The complaint was lodged in March 2010, and considering that the first polite letter asking IBM for an offer was written in July 2009 and flatly turned down, they decided at some point that they needed help. From an access-to-justice point of view it's very important that such a fledgling company can ask a regulator for help because otherwise the big bully on the block can do to the little guy whatever the bully wants...

Re:IBM asserted infringements months before antitr (0)

Anonymous Coward | more than 4 years ago | (#32692880)

Dear IBM:

I would like to profit from the billions you've invested since the early 1960s in System/360 and OS/360, up to and including the current zArchitecture, z/OS, and all of the software that runs on that platform. (I've found some open source project that lets me do this with minimal investment on my part!)

Now I know many firms have grown large and profitable filling gaps in and adding value to the z/OS ecosystem, but I'd rather make my money by trying to cannibalize your business. I had assumed you'd let me license your premier operating system for a pittance, but it appears I was wrong.

I know I'm asking you to let me gnaw away at your customer base, asking you to deal with the customer support problems if my emulator isn't a perfect implementation of the zArchitecture Principles of Operation and the interface specifications for all of the other emulated hardware, and am offering only modest licensing fees compared with your cumulative and ongoing investments. But think of it from my point of view. I've already printed brochures! I have a Web site. What about my sunk costs?

It may be a terrible business decision for IBM, but c'mon. Have a little heart for the little guy.

Unicorns and kittens,
Your new BFF

Re:IBM asserted infringements months before antitr (1)

Jay Maynard (54798) | more than 4 years ago | (#32693148)

TurboHercules SAS isn't cannibalizing IBM's customer base for one simple reason: IBM abandoned the segment of the customer base that Hercules can satisfy a long time ago. They just don't sell small mainframes any more. The z/PDT, their emulator, is only available under highly restrictive conditions that essentially rule out anything but program testing.

As for problems from emulation bugs, IBM dealt with their software running on other people's hardware for decades, and know how to do it. The support requirements are simple: a software bug must first be demonstrated on IBM hardware before it is considered to be a bug IBM has to fix. That's the way it's always worked, and TurboHercules SAS understands and accepts that.

Re:IBM asserted infringements months before antitr (0)

Anonymous Coward | more than 4 years ago | (#32693432)

I thought the z10 BC was a small mainframe.

Re:IBM asserted infringements months before antitr (1)

bws111 (1216812) | more than 4 years ago | (#32693580)

This is simply false. The smallest current generation 'mainframe' IBM sells is the 2098-A01, which runs at a paltry 28 MIPS, and can run any z/OS workload. The largest is the 2097-764, which runs at 30000 MIPS. In between those two extremes are several hundred more models to choose from. Almost any emulation is going to run better than 28 MIPS.

Re:IBM asserted infringements months before antitr (1)

Jay Maynard (54798) | more than 4 years ago | (#32694570)

Priced a 2098-A01 lately? By the time you add DASD, you're well over a half million bucks. The low end of the market isn't going to be able to afford that.

Re:Groklaw debunked nothing but straw men (0)

Anonymous Coward | more than 4 years ago | (#32691386)

Sorry poetmatt, I must disagree with you on one thing you wrote, "I know you (Florian Mueller) mean well." Well from reading some of his blog I don't think he means well at all. He looks to be a paid spin/FUD master from what I am seeing. His positions don't make any sense as far as advancing open source.

His argument comes down to if IBM supports open source software they must open source all of their products including their mainframe software. He then appears to twist things to suit his agenda . . .

What I do for the sake of 'advancing open source' (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32691480)

Even though only an Anonymous Coward just wrote that none of what I do makes sense "as far as advancing open source", I want to point out a few examples: I was involved with MySQL very early on (starting in 2001) as an adviser and small shareholder; I founded the NoSoftwarePatents campaign; my FOSS Patents blog tries to help understand and deal with patent issues surrounding open source; I promote the idea of the Defensive Patent License and will most likely promote the license once it is finalized and available; and I will promote the European Commission's interoperability initiative that will affect not only dominant companies like IBM and Microsoft but also other "significant market players" and will create major new opportunities for open source. I'll blog about that one next week. I don't think these activities are accurately described as "FUD".

Hey Don Quixote, put down the lance (1)

symbolset (646467) | more than 4 years ago | (#32694584)

You're not going to win this one. Whatever your reason for taking up this absurd mission, it's lost. There will be no grand grassroots campaign to demonize IBM for this because in this particular case they've done nothing wrong.

Now give it up before you do your reputation and your cause any more damage.

Or don't. I'm not exactly wishing you luck in either case. It's just annoying to watch you try.

Re:Groklaw debunked nothing but straw men (1)

poetmatt (793785) | more than 4 years ago | (#32691606)

see, as much as I could say negative things about the man, he does honestly mean well. It's quite misguided and perhaps questionable at times, but he really is anti software patents.

However, this is like people who totally twist an issue and assume it's still valid, and so he thinks he is supporting anti-patent actions, but in reality he's pulling down open source with it. You are 100% correct.

It's like the people who take one line from the bible as the meaning or explanation or rationale of their entire life while citing the bible. Florian is not as extreme as that, but he represents the same kind of misunderstanding.This is well known as mission creep. [wikipedia.org]

Florian's old work was more clearly opined, but something changed, and we all know that. I don't remember the specifics but if I recall correctly some of the MySQL stuff he did was actually meaningful and positive. Someone please correct me if I am wrong here.

Florian, I think you might want to look at what you are doing. Honestly, ask yourself - if GPL is taken down, will that be good for open source? That is something I would strongly advise you consider for the turbohercules scenario. Also, ask yourself - why the defensive patent license as opposed to OIN? This has been debated up and down but I fail to see why the DPL is better than OIN. I also fail to see how the average person is going to understand the scenario as it's highly confusing to all, and yet you're trying to promote DPL?

Re:Groklaw debunked nothing but straw men (0)

Anonymous Coward | more than 4 years ago | (#32693120)

I know you mean well, but everything you do causes problems for open source. Please go away. Do you have any idea how much you're negatively impacting open source? You are seriously a bane on free software.

No he does not mean well The only question is: is Florian Mueller a paid Microsoft shill, or does he do it gratis?

Re:Groklaw debunked nothing but straw men (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32693860)

No he does not mean well The only question is: is Florian Mueller a paid Microsoft shill, or does he do it gratis?

If this is the basic question you have, then I think you can answer it yourself if you take a look at this other comment of mine here [slashdot.org] .

My position is still the NoSoftwarePatents one. You can find that position reiterated all over my blog [blogspot.com] and you may also see that I criticized a court decision in favor of a Microsoft FAT patent and have mentioned Microsoft in a variety of patent-related contexts in a way that I'm sure you'll agree is not what a "Microsoft shill" would say.

Re:oh jeez (5, Informative)

LWATCDR (28044) | more than 4 years ago | (#32691218)

Thanks for your post.
Really this has been turned down by both Groklaw and the Linux Foundation.
For those that don't know this is what TurboHercules wants.
IBM sells z/OS which is a closed source OS with a restrictive license that says you can only run it on an IBM zMachine.
TurboHercules wants IBM to allow customers that buy z/OS to run it on the Hercules emulator.
There is nothing involving the GPL or FOSS here at all except that Hercules runs under Linux and is released under the Q license which is FOSS but not GPL compatible.
Now Neon wants to sell a closed source solution that allows you to off load some zMachine processing to co processors which IBM says violated their z/OS license.
This is massive spin of the highest order.
It has nothing to do with FOSS or patents or anything else.
If you do not want to be stuck running IBM hardware I suggest that people migrate their software to Linux on the zMachine and then they can migrate away from the zMachine to any Linux box on the want.
The company TurboHercules is actually spreading FUD because IBM doesn't want to do things their way.
AKA TurboHercules is using the FOSS community for it's own ends and wrapping it's self in the FOSS flag.
Both Groklaw and the Linux Foundation have said that they are spreading FUD.

BTW http://www.hercules-390.org/ [hercules-390.org] is really a cool program. You can get older IBM mainframe OSs and run them on it and you can even run Linux on it if you want your own IBM mainframe to play with.

Re:oh jeez (-1, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32691294)

The patents that IBM brought into play aren't patents on z/OS. They are patents that affect emulation as a whole and would also affect Hercules users if they run any of the older mainframe operating systems you mentioned. So on the one hand there's the problem you described, which is that IBM doesn't want to make z/OS available for use on non-IBM hardware, and that's the essence of the antitrust issue. But on the other hand IBM is against the emulator and as you can see with the NEON situation, IBM also uses "intellectual property" against others who want to give more choice to mainframe customers.

Re:oh jeez (2, Informative)

LWATCDR (28044) | more than 4 years ago | (#32691424)

IBM is not using the patents to attack Hercules. Hercules is up and available right now. Show me a take down notice or law suite.
Yep IBM wants to make as much money as possible and the Z/OS lock makes them money.
NEON is a way to run Z/OS not on the ZMachine hardware so blame. Also IBM said that it wouldn't use patents to attack FOSS NEON isn't FOSS.
So nope this doesn't effect the FOSS community really at all.
The one thing I would love to see is IBM to release a version of Z/OS for "educational" use. I would like to play with and learn it.

Re:oh jeez (2, Insightful)

redbeard55 (1002526) | more than 4 years ago | (#32691636)

Hey Mueller you seem to think IBM has to allow more choice on the use of their products. So, I think I deserve more choice also when it comes to the use money. I want the choice to take money out of your bank account to use in a way I see fit. Is that OK with you? Please forward the appropriate info to me so I can do that, OK?

The anti-trust issue has nothing to do with this. Even if IBM WAS convicted of abusing a monopoly position in the mainframe area they would not be required to give away (license) their product to whoever asked, and in the manor the requester wanted. Was MS required to give away their products after they were convicted of abusing their OS monopoly?

If IBM doesn't want to make z/OS available for use on non-IBM hardware they are under no legal or moral requirement to do so. You are talking non-sense or have other agenda you wish to pursue.

I didn't say IBM has to 'give away' anything (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32691776)

The point of competition rules isn't that dominant players have to give anything away for free. What regulators and courts can do is require a dominant player to "untie" and to make an important component (such as an operating system) available separately on fair, reasonable and non-discriminatory (FRAND) terms. There can be a lot of discussion about what kinds of licensing terms (especially license fees) are FRAND, but in case of doubt that would be determined by a court of law.

Re:oh jeez (2, Insightful)

Tim99 (984437) | more than 4 years ago | (#32691720)

Florian, You know that the issue is licencing - It has nothing to do with FOSS and virtual machines. You can't run z/OS on non IBM hardware, learn to live with it. Similarly you can't run AIX on generic hardware. It is a proprietary software licence.

Why would IBM change their licencing to some BSD derived open system? Just so that someone else can use it to set up a competing business without paying a significant licence fee to IBM? Alternatively, someone could set up a business supporting a GNU/Linux or BSD derived OS on vanilla hardware that has the same level of support for "continuous, high-volume operation with high security and stability" - But that would cost multi-millions to develop. Instead, why not agitate for changes in legislation to get access to this technology? That might only cost a million or so. If, in some alternative universe, you were successful; any business that you had built would be quickly destroyed by an even lower cost operator...

Re:oh jeez (1)

Jay Maynard (54798) | more than 4 years ago | (#32692256)

TurboHercules SAS is not asking IBM to go to any other license for their software. They're only asking that it be licensed to run on non-IBM hardware, just as they did for decades.

IBM's attack on TurboHercules SAS is a patent attack, and since TurboHercules SAS's code is the open source Hercules emulator, that makes it a patent attack on open source software. What's so hard to understand about this?

Re:oh jeez Turbo ASKED ibm for a patent list... (1)

ChapterS (666029) | more than 4 years ago | (#32692984)

... apparently so they could throw the list they ASKED for in IBM's face.

Correcting misinformation re. the patent list (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32693174)

... apparently so they could throw the list they ASKED for in IBM's face.

This claim that they ASKED for the list is misinformation because it omits an essential fact: IBM said that Hercules infringed its intellectual property (using that term as a synonym for "patents", which is what many lawyers do) out of the blue (or Blue, if you will). TurboHercules had not asked any question about potential "intellectual property" infringement when IBM did it. Then TurboHercules wanted to know what kind of "intellectual property" (the term is so broad it could theoretically mean a plant variety right...) was involved. All of those letters (four in total, two from either company) have been published and you can find links to them in this blog posting [blogspot.com] . The chronology is perfectly clear, so I hope this clarification helps.

Look at it this way: If I told you you infringe some of my intellectual property, wouldn't you also then want to know what I meant by the term?

Re:oh jeez Turbo ASKED ibm for a patent list... (1)

Jay Maynard (54798) | more than 4 years ago | (#32693228)

Read the correspondence. IBM said "you're infringing our IP" in their second letter. TurboHercules SAS merely asked them to be specific in what they were referring to.

Re:oh jeez (2, Informative)

Tim99 (984437) | more than 4 years ago | (#32693370)

I have been following this for a while. TurboHercules SAS asked (in my opinion naively, or perhaps, disingenuously) IBM " to consider making available to your mainframe customers a license for IBM operating systems on the TurboHercules platform". http://www.turbohercules.com/uploads/files/TH-letter-to-IBM-Europe-2009-07-29.pdf [turbohercules.com]

The original Q Public License version of the Hercules 390 software states in their FAQ "Hercules implements only the raw S/370, ESA/390, and z/Architecture instruction set; it does not provide any operating system facilities. This means that you need to provide an operating system or standalone program which Hercules can load from an emulated disk or tape device. You will have to write the operating system or standalone program yourself, unless you can manage to obtain a license from IBM to run one of their operating systems on your PC, or use IBM programs and operating systems which have been placed in the public domain." http://www.hercules-390.org/hercfaq.html [hercules-390.org] . They knew that they did not have an OS licence. The TurboHercules SAS company was set up in 2009 to commercialize this Hercules technology - Roger Bowler knew that he did not have a commercial business unless IBM granted them the licence.

An article giving some background can be found here: http://www.linuxjournal.com/content/another-thrown-under-bus [linuxjournal.com]

Before I retired, I wrote both commercial and public/sector FLOSS software, and would have been very surprised if someone had taken my commercial stuff and then based a FLOSS project upon it without my written assignment. I might have been more favourably inclined to Florian Müller's view if I had not watched his efforts to help Monty Widenius wrest control of MySQL back from Sun/Oracle. I suspect that Florian's view of FOSS may be slanted by his commercial lobbying efforts.

Re:oh jeez (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32693716)

Tim99, your first two paragraphs just say what I didn't mean to dispute: Hercules users can't run z/OS on Hercules for licensing reasons, and TurboHercules asked for a solution. Then IBM turned them down and claimed an infringement of intellectual property (meaning in this case: patents).

I might have been more favourably inclined to Florian Müller's view if I had not watched his efforts to help Monty Widenius wrest control of MySQL back from Sun/Oracle. I suspect that Florian's view of FOSS may be slanted by his commercial lobbying efforts.

The merger case was resolved and the merger was consummated in late January. But since you make this a matter of trust, I'd like to clarify something. You say that this was an effort to "wrest control of MySQL back from Oracle" and that is not correct. It's 100% incorrect for a simple legal reason: there was no way for Monty to force Oracle to give him back MySQL because it was only a question of whether Oracle should get to own it.

To explain to you the legal framework (because this may make the whole concern you voiced a complete non-issue), the European Commission could never have ordered Oracle to give MySQL to Monty. The EU merger control regulation gives the Commission only two choices: they can say Yes or they can so No when a merger (that is big enough to be subject to review) is put before them. In the end they said Yes, after Oracle made some promises. If they had said No, Oracle could not have bought Sun. Now, since it was clear that only the MySQL part of the deal posed a problem to the EU, one option for Oracle could also have been to propose to the Commission: "let us buy Sun but we promise beforehand that we'll sell the MySQL division to someone else". That's called a divestiture. Again, the Commission could not have ordered it against Oracle's will. Oracle always had two options: to insist on the deal as a whole (which is what they did, and successfully so) or walk away from the merger in case it gets blocked (which is what Oracle would almost certainly have done in that case).

Assuming that scenario of a divestiture, the Commission would have had no legal way to order Oracle that Monty or anyone close to Monty has to be the buyer. That would have been 100% legally impossible. They would have had to accept any buyer chosen by Oracle unless that buyer would have posed a new antitrust problem. For an example, if Oracle had said "we'll sell it to Microsoft", then they could have said "No", but they could never have said "it has to be Monty".

I hope this clarification has been helpful. If there's anything else you'd like to know about that past process that is relevant to the trust you can place in me in other contexts, please let me know and I'll answer. The only thing I won't do is attack Oracle or talk about whether I like or dislike what they've done since the merger because I accept the rule of law and in the end they were allowed to buy MySQL, so today they are MySQL's legitimate owner without a question.

Re:oh jeez (1)

bws111 (1216812) | more than 4 years ago | (#32693756)

Well, the other vendors that they licensed z/OS to also did this little thing called giving something in return, which Hercules/TurboHercules would just rather ignore. Exactly WHAT do you have to offer IBM? Cross-licenses for patents? License fees? Anything? No, the only thing you are 'offering' IBM is the opportunity to lose business. I can't imaging why they are not interested.

Re:oh jeez (1)

Jay Maynard (54798) | more than 4 years ago | (#32694630)

Just what did Amdahl give IBM in the days when the OS was freely available and in the public domain? IBM got *nothing* from Amdahl until they started patenting features. Now, IBM is not willing to license their patents at all in order to maintain their monopoly position, and tie the sale of their mainframe hardware to licensing of their software product - and that's just plain illegal for a monopolist.

Re:oh jeez (2, Informative)

trboyden (465969) | more than 4 years ago | (#32692530)

Florian,

It's not an anti-trust situation because the situation you describe is exactly the same as Apple's whole business model which has been upheld with legal precedent. You say IBM doesn't want to make z/OS available for use on non-IBM hardware - that is the same argument Pystar tried with Apple not wanting to make OS X available for use on non-Apple hardware. The courts expediently slapped Pystar down and confirmed that business model is perfectly OK.

The emulator is an entirely different issue. Anyone is free to clean room backwards engineer an emulator for the purposes of interoperability - that is allowed under the fair use doctrine. However, they cannot use any copyrighted or patented technology that IBM created in order to do so. IBM is under no obligation to assist them in creating or maintaining their emulator. IBM is perfectly in the right to demand legal review of the emulator if they feel that it violates any of their IP. As this can only be done in a court of law through legal discovery, it is not unreasonable to expect that the group behind the emulator would receive the typical legal paperwork (demands) that initiate the process.

Any company is free to compete in the mainframe market by offering their own hardware and software solution. If they can't convince customers to switch to their platform from IBM's that is just capitalism at work.

Antitrust is part of capitalism (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32692802)

It's not an anti-trust situation because the situation you describe is exactly the same as Apple's whole business model which has been upheld with legal precedent.

It's not a precedent, and I explained it in this other comment here on slashdot [slashdot.org] .

However, they cannot use any copyrighted or patented technology that IBM created in order to do so.

An emulator needs to interpret the CPU instruction set (that of the CPU that is emulated). In its letters to TurboHercules, IBM took the position that an emulator doing its job is an "infringing platform".

IBM is under no obligation to assist them in creating or maintaining their emulator.

TurboHercules' letters don't state that, nor have I stated it.

Any company is free to compete in the mainframe market by offering their own hardware and software solution.

As you can see, IBM doesn't want anyone to do so and instead uses its "intellectual property" rights in order to preserve its monopoly.

If they can't convince customers to switch to their platform from IBM's that is just capitalism at work.

Capitalism needs at least a certain level of regulation and intervention (after the subprime crisis and now the BP oil spill, most people have probably raised the standard for the level that's required. Capitalism can work with very little regulation or sometimes even none at all if competition is intact. When there's no competition (which is the self-healing force of capitalism), then antitrust comes into play. The US is the epitome of Western capitalism, but it's also the country that invented antitrust law in the 19th century when recognizing what can go wrong if a monopolist can do whatever he wants. The Sherman Act wasn't an anticapitalist initiative. It was meant to make sure capitalism continues to work.

Re:Antitrust is part of capitalism (1)

bws111 (1216812) | more than 4 years ago | (#32693994)

The main problem is that you and TurboHercules are being entirely unreasonable. You do not only want IBM to license z/OS on other platforms, you want IBM to forget that they invested billions of dollars in the platform, and give the results of all that investment away for free.

Would you be happier if IBM opened the licensing for z/OS (ending the anti-trust claims), then turned around and sued for patent infringement?

I'm not aware of anyone demanding a freebie (1)

FlorianMueller (801981) | more than 4 years ago | (#32694168)

The main problem is that you and TurboHercules are being entirely unreasonable.

You can compare what the TurboHercules company says to what I say, but I want to make it clear that it's not necessarily the same. I view a lot of issues here the way they do, but not all of them, and vice versa I guess.

You do not only want IBM to license z/OS on other platforms

I think a company in a dominant market position should be required to do so. I believe that TurboHercules also thinks so, which is why they filed their antitrust complaint after trying unsuccessfully for a long time to enter into negotiations with IBM. They wrote their first letter to IBM in July 2009 and got turned down (four months later); then wrote another one asking IBM to reconsider, and four months later were turned down again. So they tried in good faith but IBM didn't even want to have a reasonable conversation.

you want IBM to forget that they invested billions of dollars in the platform, and give the results of all that investment away for free.

No one forgets that, and no one wants IBM to forget it. And most importantly, no one demands anything for free. TurboHercules asked in its first letter (for links to the entire correspondence, please check here [blogspot.com] ) for a reasonable offer. They didn't ask for anything free of charge.

Would you be happier if IBM opened the licensing for z/OS (ending the anti-trust claims), then turned around and sued for patent infringement?

This is not a question for me to answer. The regulators have the complaints on the table (not only the one from TurboHercules but also others, such as NEON) and if the European Commission launches an in-depth investigation into IBM's practices, then it's up to the EC to determine what it would consider a satisfactory outcome. And even if they have a satisfactory outcome at some point, they could always launch a new investigation later if necessary.

Re:I'm not aware of anyone demanding a freebie (1)

bws111 (1216812) | more than 4 years ago | (#32694618)

"No one forgets that, and no one wants IBM to forget it. And most importantly, no one demands anything for free" Oh really? Is there an alternate explanation for this statement in the second letter to IBM?

    "In the unlikely event that IBM believes that the Hercules open source project infringes any IBM intellectual property, we kindly ask you too add any such property to the portfolio of patents that IBM has already pledged for the free use of the open source community".

That statement seems to say to me quite clearly that they expect IBM to give up it's IP for FREE.

There are really only four possibilities for IBM:

1) Open z/OS licensing and ignore the patents - completely stupid business decision, absolutely nothing to gain for IBM, everything to lose
2) Open z/OS licensing and enforce the patents - sound business decision, no antitrust issues, doesn't help TurboHercules in the slightest, troubling for developers and users of Hercules
3) Keep z/OS licensing as is, and ignore the patents - sound business decision, possible anti-trust complaint, no harm to Hercules developers or users, TurboHercules out of luck
4) Keep z/OS licensing as is, and enforce the patents - possible anti-trust issues, bad PR, no real point

If there is another option, I would love to hear it.

Re:I'm not aware of anyone demanding a freebie (1)

Jay Maynard (54798) | more than 4 years ago | (#32694706)

Your possibility 1 is the end result any opponent of monopolistic abuses and software patents should be arguing for. You're wrong, though, in that IBM does indeed have something to gain - software licensing revenues with no additional work, as well as even more good PR in the open source community - and nothing to lose.

Re:oh jeez (1)

bws111 (1216812) | more than 4 years ago | (#32693440)

They are not patents that affect 'emulation', they are patents on elements of the z architecture. They do not come into play on the older OSs, because they don't run z architecture, and any patents on things used by those old OSs are long since expired.

As for the supposed anti-trust issues: what market is it that IBM supposedly dominates? Is it 'computing'? Is it 'servers'? Is it large-capacity servers? None of those seem to apply. The 'market', as you are defining it, is IBM z/Architecture machines. That is a pretty narrow definition of a market, isn't it? If that is your definition of a market, then every single company who has branded their products is a monopoly with no competition, and is subject to anti-trust actions.

You claim that IBM doesn't want to make z/OS available on non-IBM hardware. Do you have any evidence of that? I think all we know is that IBM declined to license z/OS on platforms which they believe infringe their patents. Was any effort made to resolve that issue? Did TurboHercules offer to license the patents, like any legitimate vendor would? No, instead they just demanded that IBM (after investing billions of dollars in them) give them away for free to someone who has invested exactly $0 and has nothing to offer IBM, except the opportunity to suck business away from IBM.

As for the NEON case - that is nothing more than a company that wants to sell a product allowing IBM's (and their ISV's) customers to violate their licensing agreements. If NEON was selling a product that allowed manufacturers to obscure their use of OSS code in violation of the licenses, what would your position be?

What can the Linux Foundation turn down? (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32693052)

The Linux Foundation's largest financier is IBM. Therefore, it's obvious that they'll dismiss complaints over IBM's anticompetitive behavior and its overall hypocrisy.

Concerning Groklaw, I don't want to make claims as to who funds it (although a lot of people have previously - not in this discussion here but elsewhere - voiced theories that might make sense), but there's no doubt that it's been slavishly loyal to IBM all along. Like I said, Groklaw's PJ is more loyal to IBM than Rush Limbaugh is to the Republican Party. Even if PJ doesn't disclose anything, I venture to guess Rush Limbaugh makes a lot of money, so the Republican Party can't afford him as a staffer.

Re:What can the Linux Foundation turn down? (1)

Tim99 (984437) | more than 4 years ago | (#32693844)

Florian,

An "Ad hominem"; a "straw man"; and conspiracy theorist; attack on an "award-winning" --- "widely respected" ----"Open Source advocate", in just four sentances.

Very classy. You must be so proud.

Re:What can the Linux Foundation turn down? (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32693966)

An "Ad hominem"; a "straw man"; and conspiracy theorist; attack on an "award-winning" --- "widely respected" ----"Open Source advocate", in just four sentances.

Tim,

None of what I wrote meets the definition of an "ad hominem" or a "conspiracy theory". PJ has always supported whatever IBM has done. On SCO that's understandable and FOSS-like. But saying that IBM should sue the pants off an open source company is certainly unworthy of an "open source advocate".

I clearly said that I don't want to speculate about Groklaw's source of funding but I do take note of its slavish loyalty to IBM. That slavish loyalty can have any number of reasons, but it certainly calls into question the assumption of some people that Groklaw is unbiased and "digging for truth" as its slogan says.

And just FYI, I've also won several awards including CNET UK's "Outstanding Contribution to Software Development" Award for my FOSS-related work. Linux Magazine (in the US I think it's called Linux Pro Magazine now) voted me runner-up to the "Outstanding Contribution to Linux and Open Source" award, and I won an EU Campaigner award in 2005 that went to Pope John Paul II in 2002 and to Governor Schwarzenegger in 2007. So are we going to make this a matter of awards or can we get back to the actual issue? I prefer the latter.

Re:What can the Linux Foundation turn down? (1)

LWATCDR (28044) | more than 4 years ago | (#32694378)

"Concerning Groklaw, I don't want to make claims as to who funds it (although a lot of people have previously "
Okay then don't
"- not in this discussion here but elsewhere - voiced theories that might make sense), but there's no doubt that it's been slavishly loyal to IBM all along. Like I said, Groklaw's PJ is more loyal to IBM than Rush Limbaugh is to the Republican Party. Even if PJ doesn't disclose anything, I venture to guess Rush Limbaugh makes a lot of money, so the Republican Party can't afford him as a staffer."
Oh yes you did. Wow PJ compared to Rush Limbaugh!
You go boy. Or wearing mirrored sun glasses and a base ball cap living next to Hank Hill.
Wow that was so funny.

Re:oh jeez (1)

Icegryphon (715550) | more than 4 years ago | (#32691340)

Well you know, Haters gonna hate.
Maybe I am just to much of a BigBlue fan and am bias.

Re:oh jeez (0, Troll)

RMS Eats Toejam (1693864) | more than 4 years ago | (#32691798)

Yeah, but PJ is a cunt. Bottom line, she's just another asshole who wants to join the "I support FOSS" dick-waving contest, sans the dick. No rational person would expect her to be unbiased and honest. Her unwavering defense of IBM reflects that.

Re:oh jeez (0)

Anonymous Coward | more than 4 years ago | (#32691886)

holy shit. I salute you for screenname and comments alone. This is a well done troll.

Re:oh jeez (1)

Jay Maynard (54798) | more than 4 years ago | (#32691958)

PJ didn't debunk it at all. Only her fanboys think she did.

She ignores facts and twists words, taking things out of context, just to make IBM look good in whatever it is they're doing. She did it to me repeatedly before throwing me off the site entirely.

I started my own blog [ibmvshercules.com] to post the parts of the story that PJ ignores or twists out of any recognizable shape.

PJ's done a lot of admirable work in the IBM vs. SCO case, but her comments on other things reveal her as at least a rabid fangirl who thinks IBM can do no wrong. Her credibility is taking more of a hit because of it than she realizes.

And no, my long-time opposition to the GPL does not make me the enemy of open source software, no matter how loudly PJ may scream otherwise.

Re:oh jeez (0)

Anonymous Coward | more than 4 years ago | (#32694454)

Okay I read your BLOG, along with what others have to say, including Tim99, FlorianMueller and poetmatt, as well as Groklaw and other informed sources.... Sorry Jay - JP and poetmatt got it right, as does the Linux Foundation. IBM is responding to a commercial entity and NOT the FLOSS community or attacking Free Software. This for once it NOT an attack on FLOSS, it's a company defending the same rights - copyrights - that make the GPL and other Open Licenses VALID! Not to do so would be harmful and IBM should be praised.

Re:oh jeez (1)

Jay Maynard (54798) | more than 4 years ago | (#32694750)

They're not defending copyrights, because those aren't in dispute. Nobody is saying that IBM should change the license they issue their software products under. All that anyone is asking is that they agree to license that same software on other platforms.

IBM's attack is patent-based, pure and simple. Worse, it's software patents, because if they're strictly hardware, then software can't infringe them. It's an attack on Hercules itself, simply because that's what TurboHercules SAS is using. They may be trying to spin it as a commercial dispute, but it's like shooting someone at close range with an elephant rifle: you ahve to watch where your bullet will go when it overpenetrates the target. In this case, the elephant gun is aimed at TurboHercules SAS, but it will also hit the Hercules open source project.

A big corporation with double standards?! (3, Informative)

betterunixthanunix (980855) | more than 4 years ago | (#32690900)

They say IBM has double standards as if this were supposed to be shocking. Microsoft has its open source lab, Apple has made threats against open source projects while contributing to other projects, Mozilla and Red Hat leverage their trademarks, etc. Corporations do whatever is profitable, they are not some bastion of morality, so why should we be shocked that IBM fights open source projects while pushing other open source projects?

Re:A big corporation with double standards?! (4, Insightful)

Richard_at_work (517087) | more than 4 years ago | (#32691036)

I don't even think its double standards - taking action against one project, whether its open source or proprietary, does not mean taking action against an entire ethos and it does not conflict with supporting an open standard elsewhere. To try and spin this as a double standard seems very much like someone is trying to market it as a negative toward IBM as a whole.

It's all about interoperability (1)

FlorianMueller (801981) | more than 4 years ago | (#32691344)

In the political context that's relevant here, it's not primarily about which category of software you promote or attack. It's about the concept of interoperability. IBM's denial to make its proprietary z/OS operating system available for use on non-IBM hardware and its use of patents on a programming interface (the mainframe CPU instruction set) is an attack on interoperability [blogspot.com] . Therefore, they have a serious credibility problem when trying to tell policy-makers that other companies must make their patents available on an "open standards" basis because of interoperability being so important.

Interoperability is extremely important, no doubt about that. But in IBM's case it's too obvious that they don't want interoperability, customer choice etc. -- they use them as pretexts for their political purposes.

Re:It's all about interoperability (1)

redbeard55 (1002526) | more than 4 years ago | (#32691700)

More spin and misdirection . . . This has nothing to do with interoperability. Both companies want to use IBM products in a manor that IBM doesn't want their product to be used. This is not about communication between an IBM product and other products.

Emulation/virtualization (1)

FlorianMueller (801981) | more than 4 years ago | (#32691820)

Both companies want to use IBM products in a manor that IBM doesn't want their product to be used. This is not about communication between an IBM product and other products.

Just try to think of the situation of those mainframe customers with an estimated 300 billion lines of program code (most of it in COBOL) still in use. They want to use that code, in which they've invested exorbitant amounts of money over the years, on non-IBM hardware, typically Intel-based servers, which is what Hercules can technically enable. This is about interoperability between the existing programs ("legacy code") and newer hardware.

In my view emulation is a particularly important interoperability issue because it's closely related to the concept of virtualization.

I've used open source emulators such as VICE (Commodore computers from the 1980's) and those are fun and it would be very disappointing if companies could shut such emulators down too easily. While a Commodore emulator is mostly about fun and nostalgia, mainframe emulation is absolutely key in order to open that market in which IBM has a hardware monopoly by now.

Re:Emulation/virtualization (1)

sprag (38460) | more than 4 years ago | (#32692096)

They chose a proprietary platform at the beginning and now they're stuck with the lock-in. When you get on the proprietary plane that's the cost of the ticket.

They bought their tickets
they knew what they were getting into
I say let 'em crash

Can't leave those customers in the lurch (1)

FlorianMueller (801981) | more than 4 years ago | (#32692420)

They chose a proprietary platform at the beginning and now they're stuck with the lock-in. When you get on the proprietary plane that's the cost of the ticket. They bought their tickets they knew what they were getting into I say let 'em crash

That's what you can say but regulators have to apply the law as it stands and monopolists aren't allowed to preserve a lock-in by whatever means they please.

I can agree with you in part that the mainframe situation will clearly serve as a lesson for those who are affected by it and by others who take a look at it, and yes, this is an issue that doesn't happen with Free and Open Source Software.

But when 80% of the world's data are crunched by a legacy architecture, it's not economically reasonable (and therefore not politically responsible) to leave those locked-in customers in the lurch when there's antitrust law in place to solve the problem in whole or at least in part.

Re:Can't leave those customers in the lurch (0)

Anonymous Coward | more than 4 years ago | (#32693138)

There is no lock in. Firms have many, many ways to move their applications and data from z/OS to other platforms if they desire. There are even corporate "alliances" that rally IBM competitors to push and enable such migrations.

There are switching costs. There always are with technology.

It even happens with Open Source software. I'm certain that migrating from MySQL to PostgreSQL isn't a frictionless, error-free change that one can do without planning, execution, and testing.

With respect to leaving customers in the lurch: if there's a platform that has done more to protect customer investments through backwards compatibility than z/OS, please tell me about it.

Re:Can't leave those customers in the lurch (1)

FlorianMueller (801981) | more than 4 years ago | (#32694208)

There is no lock in.

Sure there is. To give you only one example that was just written about it today: the airline industry [computing.co.uk] .

Re:Emulation/virtualization (1)

redbeard55 (1002526) | more than 4 years ago | (#32692478)

So you are saying they can only run their code on IBM mainframe systems without spending money, and you want IBM to lose money so they can save money. Sounds like a poor business decision on their part. They need to make a business decision to either modify their code to run on something else (locking them into that system, whether FOSS based or proprietary), or pay IBM to continue to use the existing code. No complicated code is going to be perfectly portable between different systems.

Cheaper doesn’t mean better. IBM also has invested a huge amount of money in these systems to assure they operate at high reliability and as expected. These types of systems are expensive to run and code for, so they require a lot of money to operate.

IBM doesn't have a moral or legal requirement to license their product in a manner that would only harm IBM.

Re:Emulation/virtualization (1)

FlorianMueller (801981) | more than 4 years ago | (#32692632)

So you are saying they can only run their code on IBM mainframe systems without spending money, and you want IBM to lose money so they can save money. Sounds like a poor business decision on their part.

IBM's management will do what's best for IBM's shareholders. But since they have a monopoly, antitrust regulators can intervene if their rent-seeking is an anticompetitive practice. They wouldn't even have to have a monopoly for that, but at least a dominant market position, as discussed in this other comment here [slashdot.org] .

Would you want a monopolist to milk you? If you were affected, I'm sure you'd also call for government intervention. That's why antitrust law was created: to protect consumers.

They need to make a business decision to either modify their code to run on something else

We talk about 300 billion lines of code or so. We talk about a unique programming model and a lot of the code being written in COBOL. It's not as easy as 1-2-3. Since there isn't any competition anymore for IBM in the mainframe market, there are antitrust issues. That's the rule of law. Would you want to pay 60 times as much for your telephone charges as you do now, just because someone exploits a monopoly so shamelessly? Then think of mainframe customers who have to pay 60 times as much for a gigabyte of RAM as you have to pay for RAM you install in your computer at home.

Re:Emulation/virtualization (1)

twiddlingbits (707452) | more than 4 years ago | (#32693016)

Guess you have never heard of Amdahl, Hitachi and several other systems that can run IBM Mainframe OSes. They have a small market share but 90% of a market is not a monopoly. Mainframe is NOT all about z/OS, CICS, etc. its about doing a LOT of work. With virtualization and 8-core CPUs mid-sized Linux/Unix servers are competing with the processing power of a mainframe. Your argument is baseless. Yes, memory for mainframes is expensive but it's NOT the same thing you put in your PC..not even close. Ever tried to buy memory for an HP Superdome? That can set you back $2M a GB. You are not only a paid shill, you are an idiot one at that.

Re:Emulation/virtualization (1)

FlorianMueller (801981) | more than 4 years ago | (#32693272)

Guess you have never heard of Amdahl,

I have. On Wikipedia you can read that the namesake founder of Amdahl coined the term FUD to describe how IBM tried to discourage customers from using Amdahl products. Where's Amdahl today?

They have a small market share but 90% of a market is not a monopoly.

I don't want to get into the debate over "monopoly" vs. "superdominant market share". The key thing is that antitrust law prohibits the abuse of a "dominant" position. You say they have a 90% share, so if you're right, then that's more than enough to be considered dominant and to fall under antitrust rules. Why would we then have a big debate over the remaining 10%?

You are not only a paid shill, you are an idiot one at that.

Given that you're a troll who insults people instead of contributing resaonably to a factual discussion, I'm sorry I answered the part above but I hope that other people, who are more mature and reasonable than you are, may find it helpful anyway.

Re:Emulation/virtualization (1)

twiddlingbits (707452) | more than 4 years ago | (#32694246)

LOL.wow..what misdirection, Obama and you must have gone to the same school I've been here at Slashdot close to 10 yrs. I am NOT a current day attention seeking paid shill like you. I say it like it is. I have a top notch rating. It's YOU who are ignoring the facts. I guess the $$$ have blinded your eyes. You NEVER addressed my issues nor that of others. If you can't take the heat get out of the kitchen. Everyone has to make a living but I suspect if the devil himself came asking for your help with the right $$$ he would get it. Shoo, scram, go away, get lost, and DON'T COME BACK.

Re:Emulation/virtualization (2, Insightful)

redbeard55 (1002526) | more than 4 years ago | (#32693954)

What is clear is that you have an agenda against IBM.

In this case, the law has yet to step in and say that IBM is abusing a monopoly position, even though you continue to imply that they are abusing a monopoly position.

" Would you want to pay 60 times as much for your telephone charges as you do now, just because someone exploits a monopoly so shamelessly?"

Again, it is your position that abuse is going on NOT the "laws". I know when I purchase enterprise class equipment (not mainframe level btw) I pay a lot more for it than I would for equipment I would use at home, but I also expect a lot more from it.

IBM didn't get to own a significant portion of the mainframe business because they were the only game in town. They earned their position and even at your claimed 80% of the market, I am not sure that they can get away with too much abuse because the "law" would be brought to bear pretty quickly. Mainframes are the in realms of the big boys for the most part due to the expense of their operation. The big boys have the resources and the influence to go after IBM if they are truly being abused.

I understand the complexes of moving a code.

"Since there isn't any competition anymore for IBM in the mainframe market, there are antitrust issues."

So %20 doesn't represent any competition? Other options are available and economics will determine what a company with a lot of legacy code will do. However, a lot of companies know the value of using IBM for mission critical computing.

Yes there are potential anti-trust issues but the "law" has yet to identity any abuse to this point.

Oh god! you link to sys-con.com as a reference and worse yet to Maureen O'Gara is the author. Well that says it all I WILL NO LONG REPLY TO YOU

Re:Emulation/virtualization (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32694298)

What is clear is that you have an agenda against IBM.

My agenda is issue-driven, not company-specific. I want open source to be able to compete. I also want closed source to compete. So my agenda is about competition, about customer choice, about innovation, about fair treatment of customers because all of us are customers even those of us who are also producers.

I don't have any problem with IBM anymore the moment they practice what they preach in terms of interoperability. If they allow customers to run z/OS on non-IBM hardware and if they retract their patent threats against TurboHercules, then I'll applaud them. Then I won't have any more reason to say they use double standards.

They can end this anytime if they do what's right. If they continue to refuse, antitrust intervention may make them consider, or might force them to act reasonably.

In this case, the law has yet to step in and say that IBM is abusing a monopoly position, even though you continue to imply that they are abusing a monopoly position.

Of course it's now up to others than me to determine this. The European Commission has complaints on the table, and the US Department of Justice is aware of the problems. I'm all for letting them to do their job. But I'm entitled to my opinion at this stage. Did you also tell everyone who claimed Microsoft had a monopoly that he should not say so until the end of some proceeding? Freedom of speech, and of thought.

Oh god! you link to sys-con.com as a reference and worse yet to Maureen O'Gara is the author. Well that says it all

You mean the link on this page [blogspot.com] . It points to an article by Maureen O'Gara that seems accurate to me. If I had found anything in it that I disagree with, I wouldn't have linked to her (nor anyone else). Actually the whole resaon I linked to her article is because it was the first one to say that Sun's former EU antitrust law firm now works for NEON. I thought this was relevant information because Sun was a key antitrust complainant against Microsoft int he past and that law firm did a great job for Sun.

Re:Emulation/virtualization (1)

bws111 (1216812) | more than 4 years ago | (#32694244)

Is your gigabyte of RAM at home in a system with a MTBF >30 years? Does your GB of RAM at home correct errors? Does it even DETECT errors? If it gets too many errors, does it silently fence off a section? If it fences off too many sections, does it automatically call the manufacturer to send out someone with a replacement? Once the replacement gets there, does the system and all applications continue running while the RAM is replaced? Is the cost of developing your non-correcting, non-detecting, non-hotswappable RAM spread out over hundreds of millions of customers, or only a few thousand? Gee, I can't imagine why mainframe RAM is more expensive, it must just be a rip-off.

Re:It's all about interoperability (1)

twiddlingbits (707452) | more than 4 years ago | (#32692094)

Wrong. The courts in the USA have held in the Apple vs Pystar case that tying an OS to specific proprietary hardware is a perfectly legit business strategy as it creates a barrier to entry. Even if the EU goes the other way which I doubt IBM will win in the long run as it's about copyrights not about patents. In the lefter BM was foreshadowingg a 2nd line of defense that they could choose to take up if needed, they did NOT asserting it in any way. The letter was a warning shot. As we have seen in the SCO case, IBM WILL defend itself against baseless allegations affecting or potentially affecting it's business. IBM has the law and recent legal precedent on it's side, is diligent about keeping a case going and doesn't seem to mind waiting a few years for the courts to rule on a case. Hercules and NEON will likely be history in a few years so IBM can wait. Hercules (and NEON) were/are hoping to force some sort of compromise involving a low cost licensing agreement but it isn't going to happen. IBM isn't a firm that would license technology to someone who would use it to compete against one of it's most profitable business segments. The fact NEON has some cash doesn't faze IBM as the probably piss away that much money every year on trivial items.

Difference between IBM and Apple cases (1)

FlorianMueller (801981) | more than 4 years ago | (#32692302)

Wrong. The courts in the USA have held in the Apple vs Pystar case that tying an OS to specific proprietary hardware is a perfectly legit business strategy as it creates a barrier to entry.

Please have a look at this other comment of mine here on slashdot [slashdot.org] explaining why the Apple case isn't a precedent for the IBM mainframe monopoly issue. And it also explains why Apple may in the future also have to provide interoperability because of a new EU law that's in the making, but under today's antitrust law comparing Apple to IBM is the same as comparing apples to bananas.

Re:Difference between IBM and Apple cases (1)

twiddlingbits (707452) | more than 4 years ago | (#32692858)

OMG, this has not one bleeping thing to do with anti-trust. Where the Sam Hill did you come up with that idea? Present a case with some reasonable legal arguments not made up from thin air and people might respond more positively. The judge, the appeals court, Apple, IBM and many others would have a significantly different opinion about PyStar. The case is 99% the same. Your paid shilling isn't any more welcome here than it was at Groklaw. If I'm not mistaken, PJ banned you over there. I've never seen a ban here but you might be the precedent!

Re:Difference between IBM and Apple cases (1)

FlorianMueller (801981) | more than 4 years ago | (#32692976)

Present a case with some reasonable legal arguments not made up from thin air and people might respond more positively.

TurboHercules has made its antitrust case, and so has now NEON, and previously T3 Technologies. Those three companies have filed it with the European Commission -- not with you, not with slashdot, not with me. Some companies have also mae submissions to the US Department of Justice on mainframe issues from what I hear.

Your paid shilling isn't any more welcome here than it was at Groklaw. If I'm not mistaken, PJ banned you over there. I've never seen a ban here but you might be the precedent!

The first part is simply an attack on the messenger instead of a factual way to deal with a message. The second part is something I'm totally unaware of. I don't have a Groklaw account. I may have had one a long time ago (2004-2005, NoSoftwarePatents campaign) but not sure and if I did, I don't even have the password anymore. So I can hardly be blocked. But with a view to other people who may want to express opinions on Groklaw, I hope that they have at least a minimum standard, such as blocking people who make offensive or off-topic posts or run commercial promotions. If different opinions get anyone blocked, then it's the end of any serious discussion forum.

Re:It's all about interoperability (0)

Anonymous Coward | more than 4 years ago | (#32693130)

That's what Psystar said about Apple. They got kicked in the shins for it.

Re:A big corporation with double standards?! (1)

EMR (13768) | more than 4 years ago | (#32693208)

Basically IBM is looking at their "bottom line" in both instances..

For ODF, IBM has the potential to get more money as users become no longer tied to Microsoft Office. (Lotus and whatever other "document" products IBM has that may support ODF.. What they are I am not sure.. I don't use them).

For the Hercules issue, since IBM "HAS" the majority stake in the products in that arena, having an open competitor would decrease their income.

It's all about $$$.. Not about open source.

Re:A big corporation with double standards?! (2, Interesting)

FlorianMueller (801981) | more than 4 years ago | (#32691138)

You're right that large corporations are complex organizations with a diversity of interests. It's not about morality in this case. It's about political credibility:

IBM wants to convince policy-makers such as in the EU (and actually all around the globe) of the benefits of patent-unencumbered standards only in markets or market segments where IBM has nothing to lose. But in their own core business (the mainframe business generates about 50% of IBM's corporate-wide profits) they oppose it vehemently, I would even say ruthlessly because no one would expect them to give something away, but they should at least make a commercially reasonable offer. They demand royalty-free access, for the sake of interoperability, when other companies' patents are concerned and say "fair, resaonable and non-discriminatory" is insufficient. Then when there own core business is at stake, they don't even grant "FRAND" terms: they simply want to shut out competition and that's why there are now three antitrust complaints on the European Commission's table and antitrust litigation and complaints in the US as well. The discrepancy between "No way, José" for their own patents and "FRAND is not enough, we need royalty-free" for other companies' patents is so extreme that it's not just standard corporate behavior. It's worse than what most other large players in the industry do.

As far as I'm concerned, the question of royalty-free or FRAND (or complete denial to grant a license) wouldn't even have to be on the agenda: do away with software patents and the problem is solved for the good. But we need solutions under the current legal framework.

Re:A big corporation with double standards?! (2, Informative)

poetmatt (793785) | more than 4 years ago | (#32691160)

This isn't about political credibility or any IBM credo.

Where do you come up with this? Anything open source licensed can be reimplemented with or without IBM's blessing. What's an example? How about the product in question!

Quit spinning things like this is an IBM intent. They don't have to license to everyone.

If I said you should pay me for my implementation of your product, would you say yes? No, you wouldn't.

Re:A big corporation with double standards?! (1)

redbeard55 (1002526) | more than 4 years ago | (#32691858)

Please explain what 'standard' IBM is locking up as related to these cases specifically. This has nothing to do with standards and interoperability. Interoperability has to do with accessing data from a system, not running a proprietary system in a manner that the owner does not allow.

Don't you ever get dizzy from all of the spinning!

Re:A big corporation with double standards?! (1)

FlorianMueller (801981) | more than 4 years ago | (#32692186)

Even though your last sentence was an insult, I do want to provide clarity on the legal and technical issues you wanted to know more about. I hope that you'll be more receptive to these factual explanations than the tone of your comment (especially the last part) suggested.

Please explain what 'standard' IBM is locking up as related to these cases specifically.

Anyone working on standards policy can confirm to you and I'm now telling you that there are standards that are set by an SSO (standards-setting organization; some prefer SDO for standards development organization), such as ODF (the organization behind it is OASIS), and there are de facto standards that have as much market relevance as the other category of standards and in some cases (when you have monopolists like IBM) even more market relevance. IBM opposes the OOXML format because it's the Microsoft Office format, and they say single-vendor standards are undesirable, but the mainframe CPU instruction set is a programming interface that belongs to a single vendor (IBM) and it is a de facto standards because 80% of the world's data are still crunched by mainframes.

Interoperability has to do with accessing data from a system, not running a proprietary system in a manner that the owner does not allow.

No. Both are interoperability cases. The European Commission's first Microsoft case had two aspects: the (un-)bundling part (MediaPlayer) and the network protocol part (where Samba was the main beneficiary of the ruling). If a network protocol is an interoperability matter -- in this case, a court-validated interoperability matter --, then a CPU instruction set, which is a programming interface, is one as well.

Re:A big corporation with double standards?! (1)

stanlyb (1839382) | more than 4 years ago | (#32691680)

The day we stop to be shocked, is the day when we all become slaves to the big corporations. I am, and always will be shocked of such a evil abuse of IP, rights and monopoly, no matter who is doing it.

Patents are stupid. (1)

know1 (854868) | more than 4 years ago | (#32690960)

If it's an open source closed box rejigging of it, that's better for humanity. Everyone can improve upon it then.

ODF relationship with mainframes? (2, Insightful)

jdgeorge (18767) | more than 4 years ago | (#32691016)

Sorry, the last sentence lost me. How does the OpenDocument Format relate to mainframe software?

Re:ODF relationship with mainframes? (1)

hedwards (940851) | more than 4 years ago | (#32691106)

They were confused. It's MS' supposed open format from 6 years in the future that requires a mainframe to run. Oh, wait, I wasn't sup

ODF and mainframe emulation: interoperability (-1, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32691618)

Sorry, the last sentence lost me. How does the OpenDocument Format relate to mainframe software?

The explanation is that both are interoperability matters. I've discussed it in greater detail in a blog posting [blogspot.com] but let me also give some explanation right here:

There are two interoperability issues about the way IBM treats TurboHercules and the Hercules open source project. By tying its operating system to its hardware (not allowing the use of z/OS, even if customers are willing to pay a reasonable price for it, on non-IBM hardware), IBM prevents the emulation/virtualization that Hercules is technically capable of providing. The other issue is that IBM uses patents on its mainframe CPU instruction set to bully TurboHercules and thereby effectively against the Hercules open source project as a whole, as the Hercules maintainer explains on his blog [ibmvshercules.com] .

ODF is an interoperability matter and its interface is a document format. But the instruction set of a CPU is also an interface: it's the way the software interfaces with the CPU hardware (or, alternatively, with an emulator).

info from http://en.swpat.org (2, Informative)

ciaran_o_riordan (662132) | more than 4 years ago | (#32691146)

Here's some articles swpat.org has on these topics - but only on the software patent aspects:

Discussion over whether X company is right to defend their revenue stream etc. etc. would be outside the scope.

Re:info from http://en.swpat.org (5, Informative)

poetmatt (793785) | more than 4 years ago | (#32691288)

IBM hasn't really done anything, but everyone has taken it as aggression. IBM said "be careful" and people went "oh, shit, we're gonna get sued!" and panicked, not unlike the gif for shut down everything. It'd be like you asking Microsoft if it's possible that your software might infringe and they say yes (even before knowing what it is) just due to safety. It's not a threat.

Don't get me wrong, IBM isn't some magically innocent pure company, - but there is a lot more spin than fact here, and in fact turbohercules has now provided the aggression via NEON. It's quite surprising actually. Considering that IBM could, in the worst case, send a C&D first, where Neon just went out and sued (and we have no indication that they talked to IBM at all - I doubt they did). This is basically a politically fueled lawsuit.

swpat, while interesting, doesn't have much more than aggregations of links from other sites.

Re:info from http://en.swpat.org (1)

ciaran_o_riordan (662132) | more than 4 years ago | (#32692688)

> swpat, while interesting, doesn't have much more than aggregations of links from other sites.

That's one of the goals. We did tonnes of work in the EU in 2003, and LPF did great work from 1991-1995, and there was great work in New Zealand in March. The problem is, websites rust terribly. The documentation from the EU 2003-2005 is partly taken offline, partly moved, and a lot of it always relied on having specific knowledge of the relevant sites anyway.

swpat.org is aggregating that info so that it's available now to people in other countries, in a searchable way, and it will be available to the next campaigns in the same country in five years time when most of the current activists have changed jobs.

In 2015 or 2010, do you think everyone will remember the details of IBM v. TurboHercules? Do you think the current blogs and campaign sites and news articles will still be where they are today?

How many people today know of, and where to find info about these topics:

Half of these will evoke a "Yeh, rings a bell", but few or none will be clearly remembered by people.

So, please help document IBM's actions today so that some other folks in 2015 will be able to find it, get a summary, and find the related pages. (I'm working on adding a backup feature to preserve copies of all linked documents.)

Re:info from http://en.swpat.org (1)

poetmatt (793785) | more than 4 years ago | (#32694508)

in 2015 or 2020 (as I assumed you meant 2020), do I think everyone will remember? No. Nor does that matter. Do I think the blogs will be around? Yes. Not just Groklaw, I should add. However, Groklaw is being archived in the library of congress, after all. Don't get me wrong, redundancy is good.

Meanwhile, link aggregation doesn't mean the site has anything else useful. People can bookmark crap on their own. How about you start archiving the sites you watch if you want to be useful?

Otherwise, if the sites go down, swpat becomes nothing but an archive of broken links. Yay. That sure is useful if it lasts 20 years or whatever, supposedly.

It's actual analysis and detailed information that is more valuable, and guess what? It's something swpat *doesn't*, have. So don't think for a second I think swpat is anything useful or giving it a positive or negative nod, I'm just saying it has links. Like, you know, the rest of the web.

Why do you even bother linking swpat? This isn't about patents, and thus the site is irrelevant for the overall picture. You can harp all day about how software and patents need to be separated but that has nothing to do with IBM and LGPL vs Turbohercules/Neon.

Even though swpat is from Florian, I'm astounded they are willingly associated with a situation that is decidedly anti-open source.

All you're doing is tooting your own horn the same way Florian does. In fact, the language seems so similar I'd not consider it a stretch to consider you either a: associated or b: one and the same.

A point of comparison (2, Insightful)

idontgno (624372) | more than 4 years ago | (#32691704)

This seems structurally comparable to the legal and moral frou-frou over running MacOS on non-Apple hardware.

Discuss.

Difference from MacOS on non-Apple hardware (0, Redundant)

FlorianMueller (801981) | more than 4 years ago | (#32691910)

This seems structurally comparable to the legal and moral frou-frou over running MacOS on non-Apple hardware.

Discuss.

Happy to discuss and explain this.

The difference is that the Mac is a very popular platform but it's hard to see how one could claim that MacOS is a dominant operating system. It certainly isn't for desktops because the EU considered Windows to be dominant and under antitrust law you can at the most have one dominant player per market segment, never two. For smartphones, Apple would argue that Nokia still ships more units, that the total number of Android-based units sold is growing fast and probably also above the iPhone now, and they would point out that RIM is still a formidable competitor that grows fast and has a loyal customer base.

If competition is intact in a market, then regulators can't intervene even if they want. The theory is that competition should then take care of the problem, as a self-regulatory mechanism, meaning that if customers find Apple too restrictive, they might switch. I'll get back to Apple in a moment, but now on IBM:

IBM has a mainframe monopoly by now. That's the most extreme case of market dominance and it's where antitrust law comes in and can result in regulatory intervention. That's why the European Commissioned imposed a variety of requirements and levied hefty fines on Microsoft. Concerning IBM, there have already been antitrust cases going back to the 1950's, on that kind of basis.

But policy-makers have also begun to realize that Apple's customers -- all those fanboys who spent a lot of money on apps and phone charges -- should also get more protection. Right now they're beyond reach for traditional antitrust law. That's why the EU is preparing a legislative initiative to impose certain interoperability requirements on companies like Apple [euractiv.com] in order to protect consumers. For the mainframe market that new law isn't needed because IBM is clearly dominant (that term is an understatement for IBM's position in that market).

Re:Difference from MacOS on non-Apple hardware (1)

trboyden (465969) | more than 4 years ago | (#32693128)

Popularity does not determine monopoly status. If there was any merit to the tying of an O/S to hardware, than the government would of acted long before now. Regardless of popularity the government would have to act if a company practiced anti-competitive behavior.

In the mainframe market, which is the only thing that matters here, there are competitors to IBM and those are Oracle (via Sun) and Hewlett-Packard. Therefore no monopoly can exist and any claims of anti-trust are invalid.

Re:Difference from MacOS on non-Apple hardware (0, Troll)

FlorianMueller (801981) | more than 4 years ago | (#32693342)

Popularity does not determine monopoly status.

Monopoly, or dominant market positions, are a matter of market share.

If there was any merit to the tying of an O/S to hardware, than the government would of acted long before now. Regardless of popularity the government would have to act if a company practiced anti-competitive behavior.

You are confusing two things here: one is regulation (meaning the government intervenes based on the law as it exists) and the other is legislation (the government makes new laws to solve problems or achieve improvement in an area). The IBM mainframe matter is a regulatory issue. For Apple, new legislation would be needed and may indeed be promulgated in a matter of a few years.

WTF? (2, Interesting)

twmcneil (942300) | more than 4 years ago | (#32692076)

Who the hell accepted a post from Florian Mueller? (Looks) Oh...

Mainframe lock-in example: the airline industry (1)

FlorianMueller (801981) | more than 4 years ago | (#32693416)

Airline industry to invest just 1.8 per cent of revenue in 2010 [computing.co.uk]

Many airline systems remained locked on legacy mainframe systems and databases, with cost-saving consolidation initiatives that have been widely implemented in other industries such as virtualisation andcloud computing having made little impact so far.

Please enlighten me (1)

JonJ (907502) | more than 4 years ago | (#32694364)

I've never even seen a mainframe, so I have this question: What sort of programming interfaces exist? Are there a lot of of the shelf proprietary software running on the mainframes or are there mostly in-house software? In both cases, is it really that hard to migrate to another mainframe vendor? Oracle, HP, Unisys or Groupe Bull? And if it isn't, then why claim IBM has a monopoly?
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