IBM's cloud grab: the next generation of the mainframe monopoly

In July, the European Commission launched its antitrust probes of IBM's conduct in the mainframe market only four days after IBM's presentation of its new mainframe generation, the zEnterprise.

The Commission took its decision four months after French open source startup TurboHercules had lodged its complaint. That time span is the Commission's goal under its best practice guidelines.

So the EU didn't mean to spoil the party, but there is an important factual connection between the two events: the zEnterprise is an overtly aggressive move by IBM to leverage, expand and extend its mainframe monopoly with a view to enterprise cloud computing. It is high time for intervention to avert abuse that would otherwise cause irreversible damage to the emerging cloud computing market.

In its report on the zEnterprise launch, V3.co.uk picked just the right headline:

"IBM zEnterprise mainframe
assimilates Unix and Linux servers
Brings Power 7 and [x86] servers under its control"

The word "assimilates" alludes to Star Trek, but it is appropriate. IBM calls the zEnterprise a "system of systems" and a "datacenter in a box". Indeed, the objective is to absorb x86 (Intel and compatible) servers. "One box to rule them all", one might say.

If this only meant more competition on the x86 side and if customers really had alternative options, I would welcome it. However, the way IBM leverages its mainframe monopoly is abusive and anticompetitive. Let me explain.

Enterprise cloud computing: clarifying the term

Wikipedia defines cloud computing as "Internet-based computing, whereby shared resources, software, and information are provided to computers and other devices on demand".

There are different ways in which enterprises can operate cloud-based services. They may operate their own cloud (meaning they have the infrastructure in house) or use services provided by third parties. In many cases they'll do a combination of both.

Another distinction is that those cloud-based services may be available only to a company's employees (private cloud, like an "Intranet"), to select business partners (public cloud, like an "Extranet"), to the general public, or a combination (public-private cloud).

Mainframe-managed data: the lifeblood of large enterprise clouds

In every one of those setups, the mainframe legacy comes into play. In most cases -- especially in the most important cases -- new enterprise cloud services are not stand-alone creations totally detached from other business operations.

Other business data (and the applications managing them) are the lifeblood of enterprise clouds. For an example, whatever an airline might do in cloud computing, it will usually have to be connected to the reservation system and/or operations management system. Whatever a bank does in the cloud, it will usually need access to account management and the related transaction processing. Whatever an insurance company does in cloud terms, it will usually need access to all of the essential records.

Where do those essential data (and the applications managing them) reside? In most cases, on mainframes. In this recent blog posting I already mentioned that 80% of the world's business data reside on mainframes. That's the percentage across all industries. In the ones I particularly mentioned -- banks, insurance companies, travel reservations -- the number is even closer to 100%.

So to make an enterprise cloud fly, it still has to be tethered to a mainframe in many cases. That metaphor may sound paradoxical. It's just the sad reality of a lock-in of enormous proportions.

A senior IBM executive noted that IT projects don't start on a "green field" these days:

"We ought to look at these things the way we look at a city -- a city is a living, breathing thing, and you don't literally rebuild New York every year: you add to it. And more often than not, you're renovating what's already there -- you're improving what already exists, you're not replacing what exists."

IBM's all-absorbing zEnterprise cloud machine

The zEnterprise (latest mainframe generation) was designed from the ground up to connect mainframe legacy workloads with new cloud computing technologies.

It doesn't really add much new on the original mainframe (System z) side. CPU clock speed went up only from slightly below to slightly above 5 GHz, and the number of processors from 64 to 80 (in each case, 16 are reserved for internal purposes). But the key new element is that the zEnterprise is a "system of systems", integrating x86 (meaning Intel or Intel-compatible) blades to a greater extent.

I've seen and used the integration of different computer architectures in the same system a long time ago. The Commodore 128 had a CP/M component with a separate CPU, and my first PC was a plug-in card for the Amiga. That was fascinating, but those devices were toys.

What IBM now wants to achieve with the zEnterprise is that companies consolidate their entire data centers on the basis of IBM's technology, putting tons of IBM's x86 components under the control of a mainframe. IBM calls it a "data center in a box". I consider it a very dangerous expansion and extension of the mainframe monopoly. Let me explain what's wrong with this.

The need for integration

There are technical reasons for which it does make sense to run a mainframe legacy application on the same system -- not just in the same network -- as new cloud applications that require access to those data and the applications managing them.

One very important aspect is administration. If you run a large IT operation, you need an efficient way to keep track of all the systems, all the time. IBM's Tivoli systems management software can be used to administrate both System z (mainframe legacy) and x86 resources on a zEnterprise. Tivoli is proprietary software and there's no indication that competing vendors of Intel-based hardware would have access to its interfaces.

The need to integrate mainframe legacy workloads and new enterprise cloud applications distorts competition. For the mainframe, IBM has a monopoly. Consequently, Big Blue also has a monopoly for a "system of systems" including the mainframe. This expands, extends and exacerbates the monopoly. The original monopoly (mainframe) is leveraged to create an even broader cloud-related monopoly. It's like one monopoly "spawning" another.

IBM denies its customers an important choice

Customers should have the choice between two different paths to a "datacenter in a box":

1. the zEnterprise path: bringing x86 hardware under the control of a mainframe

2. the virtualization path: executing mainframe legacy workloads on Intel-based servers

The second choice is the one IBM denies its customers, and it's a very important one. It would allow many customers to make their purchasing decisions based on new cloud computing needs and to achieve similar performance at a potentially much lower cost.

IBM allows customers only to put the old cart (the mainframe legacy) before the new horse (cloud computing). As long as customer don't have an alternative to the zEnterprise approach, they are going to be overcharged and the lock-in that already exists today will only exacerbate in the future, resulting in ever-increasing costs and less innovation.

There are no technical reasons for not offering the second choice. The Hercules open source mainframe emulator is a reliable and innovative solution. It's a mature piece of software whose development started in 1999, and today's Intel-based hardware is powerful enough for many legacy workloads. The only problem is that IBM doesn't allow customers to run the proprietary z/OS operating system (which is key to execute legacy workloads) in emulation. That restriction must come to an end.

Even those who decide otherwise would benefit from the second choice because it would put pressure on IBM and result in more competitive pricing.

Regulatory intervention can open up the market, restore competition and safeguard innovation. In order to do so, it must be timely and decisive. Now is the time.

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IBM's patent holder rhetoric against open source innovation

I previously wrote that IBM's reaction to the European Commission's antitrust investigation boiled down to diversionary tactics (some of them implausible, all of them irrelevant) and the usual rhetoric of patent holders. Now I'll comment a little more on the latter part, which is of a kind that's been annoying me ever since I became involved with patent policy years ago.

It's a problem that isn't unique to IBM: every time someone sues someone over a patent, you can hear similar things. But no other company has used that kind of rhetoric in such an obnoxious and hostile manner against free and open source software (at least not recently).

Likening an alleged patent infringement to piracy

This is how IBM's reaction to the announcement of TurboHercules's EU antitrust complaint in March 2010 began:

TurboHercules is an "emulation" company that seeks a free ride on IBM's massive investments in the mainframe by marketing systems that attempt to mimic the functionality of IBM mainframes.

Hercules is an independently-developed, 11-year-old open source project. If that amounts to free riding, then all of FOSS does in one way or another. Linux, OpenOffice, MySQL... you name it.

This is not really any different from those who seek to market cheap knock-offs of brand-name clothing or apparel.

That's just so wrong. What IBM describes there is called "trademark piracy" (although the use of the term "piracy" is debatable in that context). Someone who intentionally makes illegal use of a trademark such as Armani or Boss knows exactly what he's doing: infringing on someone's rights. But if software developers infringe a patent, it's inadvertent most of the time. Someone writes code and someone else obtained a patent that reads on it. No wrongdoing. That's why I commented negatively on the inclusion of patents in the Anti-Counterfeiting Trade Agreement (ACTA).

An Armani or Boss pirate will also try to fool customers, at least the credulous ones, with respect to the origin and quality of the product. TurboHercules doesn't do that. It clearly says that its software is the Hercules open source mainframe emulator, and every single person who downloads and installs the program knows that it's software -- not a mainframe. You can tell by the weight :-)

TurboHercules is a member of organizations founded and funded by IBM competitors such as Microsoft to attack the mainframe.

On the Microsoft conspiracy theory I commented in the previous posting. The notion that TurboHercules aims "to attack the mainframe" is so absurd. Those guys are fans of the mainframe, and by making mainframe software run on other platforms they certainly don't harm the mainframe.

TheRegister's mainframe expert Timothy Prickett Morgan pointed out that the mainframe ecosystem stands to benefit from TurboHercules, calling it "perfectly understandable to want the Hercules emulator to be available as a true alternative to IBM's mainframe iron running its mainframe software, and a perfect fool as well as a genius could readily see that having such an alternative would be a good thing for mainframe shops."

Innovation requires incentives for innovators as well as a functioning competitive environment

Still commenting on IBM's reaction to TurboHercules's March 2010 antitrust complaint:

Such an anti-trust accusation is not being driven by the interests of consumers and mainframe customers - who benefit from intellectual property laws and the innovation that they foster - but rather by entities that seek to use governmental intervention to advance their own commercial interests.

IBM, you can be sure that the European Commission is "driven by the interests of consumers and mainframe customers", which is why the EU competition authority even opened a second probe of IBM's behavior at its own initiative. Then the part on "intellectual property laws and the innovation that they foster" ignores that innovation takes two things: an economic incentive (and I agree that IP often plays a key role in that) and, equally importantly, undistorted competition.

On the last part about "entities that seek to use governmental intervention to advance their own commercial interests", TheRegister's mainframe expert Timothy Prickett Morgan accurately noted: "There isn't enough time in the day to list all the times Big Blue has benefited from the intervention of local, state, and federal governments around the globe."

And the final part of the March 2010 statement:

IBM is fully entitled to enforce our intellectual property rights and protect the investments that we have made in our technologies.

This again suggests that IPRs are an absolute thing, detached from all other considerations. They're not. There can be limits under competition law.

Let me make this very clear: I don't downplay the relevance of IPRs as a factor that results in investment (of time, money and energy). I've personally lived off IP for many years. I started writing articles for computer magazines when I was 15, computer books at age 16, then became involved with several commercial software projects (including three Blizzard games: Warcraft II, Diablo I, Starcraft I). I co-founded and managed a startup that depended on IPRs. MySQL was probably the most IPR-focused open source company, and I was involved with it as an adviser and shareholder. I defended some IPR-related strategic interests (broadcasting rights) of my favorite soccer club in an EU policy-making context. So I have a whole pro-IP biography, but I also value undistorted competition.

Let me quote TheRegister's Timothy Prickett Morgan again:
"As anyone who has watched the engineering done by Amdahl/Fujitsu and Hitachi [makers of mainframe products who effectively left the market] in the long and strange mainframe market knows full well, it was these companies that often innovated ahead of Big Blue [...]"

Patent validity and actual infringement are doubtful

Now that the European Commission launched its two parallel investigations of IBM's conduct, IBM radicalizes its patent holder rhetoric:

The accusations made against IBM by Turbo Hercules and T3 are being driven by some of IBM's largest competitors -- led by Microsoft -- who want to further cement the dominance of Wintel servers by attempting to mimic aspects of IBM mainframes without making the substantial investments IBM has made and continues to make. In doing so, they are violating IBM's intellectual property rights.

Those conspiracy theories are a distraction, especially in the IP context: should there be an infringement (which is at least doubtful), it would also be committed by the 11-year-old Hercules open source project. The TurboHercules product is Hercules as far as the software is concerned (alternatively available for GNU/Linux or Windows).

The part about "violating IBM's intellectual property rights" is very aggressive. Who knows whether the patents IBM believes are infringed are even valid? I talked in 2006 to a company that's pretty big in the smartphone business and they said a patent law firm had told them there's about a 75% or higher chance that a European patent someone asserts against an alleged "infringer" isn't even valid. So many patents get thrown out due to prior art, lack of inventive step, incomplete disclosure, or for other reasons.

Even if IBM asserts patents that survive an effort to bust them, there's still the question of whether they're actually infringed. Hercules is an emulator, so it isn't a CPU "clone": it has completely different inner workings. It takes the CPU instruction set as input in order to perform functions, just like a JavaScript interpreter takes commands in that programming language as input. What Hercules does internally may very well be so fundamentally different from what IBM's System z CPU does that the patents obtained on one don't read on the other.

The Supreme Court of the United States made a very appropriate statement in its 1966 ruling on the Brenner vs. Manson case: "A patent is not a hunting license." This meant to say that a patent isn't supposed to monopolize the right to solve a problem: it's supposed to relate to one particular solution. IBM's patents, if even valid, may protect its CPU. But they certainly can't prevent others from solving the same task -- the interpretation of a machine language instruction -- with different means.

The developers of Hercules haven't commmitted any wrongdoing by developing their solution independently. The investigation is all about whether IBM harms competition. I believe that's the case, and that's why I'm glad the competition probe was launched.

In the course of it, IBM may even learn that a patent is not a bullying license.

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In the IBM antitrust case, Microsoft matters only as a precedent

In a reaction to Monday’s announcement of two parallel antitrust probes of IBM’s conduct in the mainframe market by the European Commission, IBM blamed it all on Microsoft and its “satellite proxies”.

IBM also referred to accusations “being driven by some of IBM's largest competitors -- led by Microsoft”. Other than diversionary tactics and some typical patent holder rhetoric, IBM had nothing special to say.

In fact, since IBM’s public response to the complaint TurboHercules lodged in March, it’s been the same kind of message again and again. Now that the European Commission has launched two formal investigations, IBM’s mantra is less credible than ever.

Regulators have to protect the public interest

There’s an important difference between litigation and regulation.

• If you sue someone, the court will have to take up your case unless it’s outrageously absurd at first sight. Access to justice for everyone.


• By contrast, regulatory authorities follow up on only a minority of the complaints they receive. They don’t have the resources to deal with everything, but they have more flexibility to reject. Quite often, the European Commission explains the rejection of a complaint simply with a “lack of Community interest.”

T3 Technologies filed its complaint last year, TurboHercules four months ago. There will have been a fair amount of research by the Commission, as well as back-and-forth correspondence and meetings between the regulator and IBM (knowing the Commission’s modus operandi). There must already be some strong indications of wrongdoing on the table. Monday’s announcement wouldn’t have happened otherwise.

I can’t see how Microsoft would be in the position to use the Commission for any purpose. It’s the record holder in terms of the total of fines levied by the Commission on a single company (1.7 billion euros). Microsoft was pursued by the Commission over three different issues (two of which formed part of the same case) in recent years.

The European Commission started one of the two investigations at its own initiative

We’re talking about two separate, parallel cases brought by the Commission against IBM. The Commission’s press release explains this:

Both cases are related to IBM's conduct on the market for mainframe computers. The first case follows complaints by emulator software vendors T3 and Turbo Hercules, and focuses on IBM's alleged tying of mainframe hardware to its mainframe operating system. The second is an investigation begun on the Commission's own initiative of IBM's alleged discriminatory behaviour towards competing suppliers of mainframe maintenance services.

So the first case -- the “tying” case -- resulted from two complaints (the one by T3 and the one by TurboHercules). But the second case -- the “maintenance” case -- relates to an issue that the Commission found out about without even getting a complaint from anyone.

Diversion is not a defense -- especially if it doesn’t make sense

At the heart of both cases is IBM’s suspected abuse of a dominant market position (actually it’s a monopoly).

Whatever IBM does in the mainframe market, if it’s against the law, it’s against the law and hurts consumers. IBM’s diversionary tactics don’t change the facts.

This isn’t the first time for IBM to face a mainframe antitrust issue. There’s a tradition of probes of that kind going back to the 1950’s and the famous Consent Decree. The European Commission reached a settlement with IBM in 1984. And by the way, the US Department of Justice launched a preliminary investigation last October. The DoJ is similarly unsuspicious of being in Microsoft’s pocket as the EC. It nearly broke up Microsoft into two or three pieces.

The Wall Street Journal makes some good points

The Wall Street Journal asked whether what’s good for the goose is good for the gander. It recalled that IBM ”was a principal antagonist of Microsoft during the software giant’s epic wars with Brussels.”

So IBM accuses Microsoft now of something that it actually did itself: supporting antitrust action against a competitor. But the more important thing is this:

Now it’s time to print off a few more copies of that [Microsoft] ruling. It’ll be used against IBM for sure.

The WSJ explains the parallels between both cases very well. Highly recommended reading.

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European Commission launches antitrust investigation against IBM

The European Commission today announced the launch of two formal investigations into IBM's practices in the mainframe business, following complaints lodged by T3 Technologies last year and French open source startup TurboHercules in March.

By coincidence, this announcement was made just a few days after IBM launched its new generation of mainframe computers, an event that shows mainframes are still big business and far from obsolescence. There are estimates that the mainframe business (including software) generates about half of IBM's corporate-wide profits. The mainframe software market has an estimated size of $25 billion, about twice the size of the software market for Linux.

The Commission appears concerned about the tying of IBM's mainframe hardware products to its dominant mainframe operating system, z/OS. This is reminiscent of the Commission's previous objection to the tying of the Media Player to the Microsoft Windows operating system and the "browser case" that was settled last year and resulted in a browser choice dialog box for Windows.

In early April, I published a threat letter with which IBM tried to intimidate French open source startup TurboHercules SAS, whose founder started the Hercules open source mainframe emulator in 1999, with 106 patents and 67 patent applications. If you're interested in the correspondence between TurboHercules and IBM -- two letters from each company --, please look up this page.

There is a possibility of the Commission also formally investigating the complaint brought forward by NEON Enterprise Software, on which I reported here. The other complaints were filed earlier, and there's always some back-and-forth correspondence between a complainant and a defendant after a complaint. That process must still be going on with respect to NEON's very recent complaint, but I wouldn't be surprised if in a few months the Commission also picked up that case. Then there would be three parallel EU cases related to IBM's mainframe practices in light of the suspected abuse of IBM's dominant market position (a de facto monopoly, actually).

Moreover, the US Department of Justice announced in October that it investigated IBM's mainframe practices. Since then, there hasn't been any further announcement by the DoJ. It will be interesting to see if the DoJ makes a further announcement in the weeks or months ahead.

The open source aspect of the TurboHercules complaint and IBM's use of patents are the reasons for which I recently learned a lot about the situation in the mainframe market. I'm convinced that customers are locked in and milked shamelessly by IBM, and I hope that the outcome of the process will result in more customer choice, including the possibility to use the Hercules open source emulator to run legacy mainframe applications on affordable Intel-based servers.

For some time, IBM has been lobbying the EU as a self-proclaimed advocate of open source and open standards. I can't see how this antitrust probe will enhance IBM's credibility in that context.

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NEON to lodge antitrust complaint against IBM with the European Commission

The Wall Street Journal was first to report today that NEON Enterprise Software, a maker of mainframe software, will lodge an antitrust complaint against IBM with the European Commission one of these days.

Meanwhile NEON has issued a press release confirming its intent to do so.

In December, NEON filed an antitrust lawsuit in the US against IBM over its practices in the mainframe market, which NEON calls "anticompetitive". In January, IBM then filed a countersuit against NEON, alleging an infringement of its intellectual property.

This SYS-CON Media article puts NEON's announcement into the context of other complaints against IBM and says that Allen & Overy, a law firm that previously helped such clients as Sun Microsystems with EU antitrust matters, is drawing up NEON's EU complaint.

French FOSS startup TurboHercules previously filed an EU antitrust complaint against IBM

Even though NEON's software is proprietary, I want to talk about the matter on this blog because there's a factual connection between NEON's complaint and the one previously lodged by TurboHercules, the French free and open source software startup that received a patent threat letter from IBM. NEON's press release also mentions TurboHercules.

By the way, after IBM's threat letter to TurboHercules became public, some IBM allies and apologists tried to muddy the water by claiming that IBM sent the threat letter only in reply to a question from TurboHercules, and others came up with the excuse that IBM was merely defending itself against an antitrust complaint. So if you heard any of those gross misrepresentations, you can easily verify that IBM asserted an infringement of "intellectual property" (as a synonym for patents) several months earlier. Apart from timing, an antitrust complaint could never have triggered the defense clause contained in IBM's patent pledge. IBM simply doesn't want to provide interoperability where its business interests collide with the concept of customer choice, even though IBM does a huge amount of lobbying to demand interoperability from others. Double standards. Open hypocrisy.

Differences and parallels between the problems NEON and TurboHercules have with IBM

NEON and TurboHercules are different companies that appear to have no connection whatsoever. NEON is a 15-year-old US company that sells proprietary, closed-source software. TurboHercules is a European FOSS startup.

NEON's founder, John Moores Sr., is a billionaire philanthropist and one of the founders of BMC Software, a major mainframe software company. TurboHercules' founder, Roger Bowler, is a mainframe fan and started the Hercules open source project about a decade before incorporating TurboHercules.

What NEON and TurboHercules have in common is that both are victims of IBM's bullying tactics.

Both just want to provide mainframe customers with much-needed cost-effective choice for their legacy software: hundreds of billions of lines of program code that are still in use, a very large part of it written in COBOL. NEON's zPrime software makes such legacy workloads eligible for execution on lower-cost (but fully functional) coprocessors. TurboHercules emulates the mainframe (System z) CPU on Intel servers.

But IBM wants to milk its locked-in mainframe customer base, hugely overcharging for everything that's needed to run legacy software.

NEON and TurboHercules are both very innovative in their way. IBM uses intellectual property, which should spur and protect innovation, as a destructive weapon against those companies. IBM told some mainframe customers using NEON's product that in IBM's opinion they're not allowed to do so and alleges that NEON wants to "induce" those customers to breach their license agreements with IBM. Many of you may be familiar with the Digital Millennium Copyright Act (DMCA), and IBM bases a part of its claims against NEON on that piece of legislation.

By the way, here's a YouTube video that NEON produced to explain why it believes mainframe customers have the right to use its zPrime product.

Procedural situation in the EU

Now NEON is about to file its EU antitrust complaint, and the European Commission is looking at TurboHercules' recent complaint. Previously, in January 2009, an EU antitrust complaint against IBM had been filed by T3 Technologies. The Commission still has to decide how to proceed with that one, too. If the regulator decides to lauch a full-blown investigation, IBM may have to defend itself against three complainants.

The European Commission isn't on any hard deadline for this but under its best practice guidelines a decision in the coming months is reasonably likely.

Some of the world's most critical data processing applications still run on mainframes. When any of us make a wire transfer, chances are that the bank will process it on a mainframe. Still today. Its demise was predicted a long time ago, but the mainframe isn't going away anytime soon. It's going strong. So it's an issue of major relevance to the worldwide (and European) economy to ensure that innovative solutions such as the ones provided by NEON and the Hercules open source project are available and that IBM doesn't bully anyone: neither customers nor solution providers. Enough is enough.

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The patents used by IBM against Hercules are a threat to several major FOSS projects

As I reported last week, IBM sent a list of 173 patents (67 of them applications) to the founder of the Hercules open source project.

Meanwhile I have taken a closer look at some of the patents. The patents IBM uses against Hercules are also a potential threat to other key FOSS projects. Based on a first analysis, those include (but are not limited to) OpenBSD, Xen, VirtualBox, Red Hat Enterprise Virtualization, MySQL, PostgreSQL, SQLite and Kaffe.

I will list below the relevant patent numbers and explain why I believe they could be used against certain projects. Considering that IBM has already used them in a threat letter to TurboHercules, those patents must be considered particularly dangerous. I just explained why IBM's attack on Hercules is an attack on interoperability and FOSS innovation in general. The fact that the patents in action here are also a threat to other key FOSS projects underscores the need to act.

At the end of this post, I am asking the FOSS community to contribute to this important analysis in various ways. I will then check on the material I receive and post the relevant contributions to this blog.

Note that the analysis below doesn't talk about actual or even likely infringement. It talks about potential issues. A wording like "patent A could read on program B" means that given what program B does, further analysis is required whether patent A covers a method used by program B. Even if that were to be the case, it's still possible that patent A could then be invalidated based on prior art.

Here's my initial analysis:

US Patent No. 5,953,520
(#65 on list IBM sent to TurboHercules)

This patent applies to any emulator that emulates a computer with virtual memory. This includes virtualization software, such as Xen, VirtualBox or Red Hat Enterprise Virtualization, as well as emulators and simulators.

US Patent No. 6,009,261
(#63 on list IBM sent to TurboHercules)

This patent reads on many emulators including virtualization software, such as Xen, VirtualBox or Red Hat Enterprise Virtualization. It teaches a method of reflecting the specifications of a guest instruction into the semantic routine of host instructions which emulate that guest instruction. That method is used by many emulators.

US Patent No. 6,654,812
(#46 on list IBM sent to TurboHercules)

This teaches a method for transferring network messages between partitions without going onto the network. This method or a very similar one is most likely used in virtualization systems, such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patent No. 5,875,336
(#70 on list IBM sent to TurboHercules)

This patent teaches a method for translating Java Bytecode. This could apply to Java Virtual Machines such as Kaffe.

US Patent No. 6,748,460
(#42 on list IBM sent to TurboHercules)

This patent describes a method that could be used in a virtualization system (such as Xen, VirtualBox or Red Hat Enterprise Virtualization) to present interrupts to a VM.

US Patent No. 6,615,373
(#47 on list IBM sent to TurboHercules)

This patent describes a method for resolving potential deadlocks. The resolution of deadlocks is key to the functioning of multi-threaded database servers. This could read on MySQL, PostgreSQL and SQLite in addition to any other database management system (still checking into object-oriented and other "NoSQL" databases). It is also possible but less likely that it could read on distributed caching software such as OSCache or JBoss Cache, which cache Java objects on servers. It is more likely that these use broadcast invalidates but needs checking.

US Patent No. 6,209,106
(#60 on list IBM sent to TurboHercules)

This patent describes a method for setting clocks on a variety of different Virtual Machines using offsets. This would be an obvious solution to the problem in a VM system such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patent No. 7,127,599
(#28 on list IBM sent to TurboHercules)

I'm still struggling to read the claims in this one. However, it could apply to managing I/O subsystems in a Virtual Machine system, such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patents No. 6,332,171 / 6,339,802 / 6,345,329
(#58, #56 and #55 on list IBM sent to TurboHercules)

These patents describe a method of using queues to handle data going to and from an I/O device. The use of queues is common in operating systems such as GNU/Linux and openBSD as well as in virtualization systems such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patent No. 6,971,002
(#34 on list IBM sent to TurboHercules)

This patent describes a method for booting a partition of a computer system without restarting the system. It would likely apply to Xen and VirtualBox to the same extent it would apply to Hercules.


CALL TO RESEARCH

This initial analysis requires further scrutiny and exploration. I therefore call on everyone in the FOSS community with an interest in this matter to help expand this.

Like I said further above, I will publish the input (to the extent it is relevant) on this blog. I will do so anonymously to protect all sources. I don't want anyone to have to fear that their project could make itself unpopular with IBM for contributing to this effort here. (If anyone wants to be credited for a contribution, you are free to blog about it yourself.)

The key areas of research that would help me are the following:

• further detail related to the initial concerns identified above, leading to more specific explanations and possibly claim charts


• any examples where additional ones of the patents IBM listed (the letter containing the list is available as a PDF file and in multiple PNG files) might read on FOSS projects


• any examples of other IBM patents beyond the 173 asserted against Hercules potentially reading on FOSS projects

Please use the contact form to send your input.

Based on more analysis of all of this, we may then consider what kind of commitments we ask IBM to make. It's always been clear to me that IBM's pledge of 500 patents was a drop in the ocean. I criticized it on the day of the announcement. Later that year (2005), I wrote this Slashdot op-ed on the issue.

IBM has 50,000 patents or so, and gets 4,500 new ones every year.

As Richard Stallman puts it, if you have 100,000 mines in a park and you take out 1,000, the park is still not safe to walk.

It was a PR stunt by IBM and they weren't sincere about really reducing in any meaningful way the threat their patents represent to FOSS. Now that IBM has actually started to use patents against FOSS, it's key to understand the danger so it can be dealt with appropriately. For everyone developing or using FOSS, not just Hercules.

IBM's attack on Hercules is an attack on interoperability and FOSS innovation

A small minority of commentators has suggested that the FOSS community should sacrifice Hercules to the Generous Gods of Armonk. With all that IBM has in their view done for FOSS -- mostly Linux -- over the years, those commentators believe we should turn a blind eye to what they are doing in this case. Let's not get into historical examples where this seemingly pragmatic approach failed miserably in foreign policy.

Matt Asay, an executive with Ubuntu company Canonical, says IBM's behavior "isn't cause for concern. It's cause for celebration." But once the same happens to Ubuntu, the one thing he surely won't do is celebrate. And a blog whose founder admitted that it began as an effort to assist IBM's legal department (and who has ever since been far more loyal to IBM than Rush Limbaugh to the Republican Party) even encourages IBM to sue Hercules aggressively.

Again, it's a small minority only. I remember the phenomenal support my NoSoftwarePatents campaign received from the FOSS community. I'm sure that's still the position of a FOSS majority. No one in his right mind wants patents to be used against FOSS.

It's also my impression -- I'm just describing, not setting norms -- that the ethical values of the FOSS community include the principle of solidarity.

Nevertheless, some may underestimate the broader implications of the Hercules case.

A huge market in terms of dollars, small in terms of people

Obviously Hercules doesn't have the massive number of installations (estimates are in the 5,000 to 10,000 range) some of the most popular FOSS projects have. Then there are only an estimated 10,000 to 12,000 mainframes in use today, but they power some of the most important applications of enterprises (banks, insurance companies etc.) and governments (social security etc.). Since there is so much money spent per user, the mainframe software market (approximately $25 billion) is twice as big as the GNU/Linux software market. But since there's a limited number of professionals using mainframes (and knowing how to use them), it follows that there won't be millions of people running a mainframe emulator on x86/x64 hardware.

IBM determined that mainframe dollars trump FOSS relationships

Apparently Hercules is indeed important enough that IBM has decided to attack it no matter what. In pursuit of this objective, IBM simply takes into account that the whole FOSS community can now see that IBM is just a business with an opportunistic approach to FOSS: IBM uses FOSS for its purposes but will also use anything (including patents) against it. IBM portrayed itself as friend who would always give, never take. As an exemplary citizen of the FOSS universe. When IBM's patent threat letter to TurboHercules was made public, that hypocrisy was exposed.

The problem is that every major software patent holder has business interests where there are conflicts with some FOSS projects. The economic argument -- "there's a lot at stake" -- must not be considered acceptable to justify patent warfare.

The FOSS way of innovation exposes all FOSS to patent attacks

By this I don't just mean the fact that the publication of source codes facilitates the identification of infringement. I mean something more important:

The kind of "innovation" that the patent system rewards and the FOSS way of innovation are fundamentally different.

A patent office grants a monopoly (for at least 20 years) to the first to file a patent on a software idea no one else has previously published or filed a patent application for. In jurisdictions with a grace period, there's the first-to-invent principle, but within the grace period the original inventor has to file.

FOSS projects usually aren't the first to invent a general software idea, let alone the first to file a patent application. Still, FOSS isn't a copycat. FOSS innovates in a different way, and that way is now being jeopardized by IBM with its patent aggression.

Innovation in software is not just a matter of being the first to have and register a general idea. Innovation in software very much consists in the cost-efficient, stable, bug-free, secure implementation of such general ideas -- even if one is not the first. FOSS is often a force of disruptive innovation, serving to commoditize (turning an exclusive, costly type of product into something widely available and affordable).

Why is IBM against Hercules? Because for a number of mainframe-related purposes, it has the potential for commoditization. Being able to take some applications down from a million-dollar mainframe to a $5,000 Intel-based server is a fantastic example of commoditization. This is FOSS at its best.

Why does IBM use patents against Hercules? Because that's where FOSS is strategically disadvantaged.

If you run a FOSS project, think about whose business you are commoditizing (now or in the future). Then take a look at the patents the affected company or group of companies owns. It's scary.

IBM fighting with patents against interoperability

The last point is very important: The Hercules case is an interoperability case.

The right for FOSS projects to interoperate with existing prioprietary/closed-source software is a fundamental issue. IBM itself has demanded that right in other contexts. Now it denies Hercules that right.

FOSS purists would want the whole world to give up proprietary software altogether. It just won't happen too soon. Especially in an old and slow market like the mainframe business, that can't happen overnight. Companies have invested trillions of dollars in mainframe infrastructure, a lot of which relates to in-house software development. We're talking about an estimated 200 billion (that's 200,000,000,000) lines of mainframe code in use today.

So Hercules wants to interoperate with existing mainframe software. For companies looking to switch to FOSS step by step (which is the only realistic approach for large corporations and governments), the first thing that's required is the right for Hercules to interoperate.

That interoperability begins with the emulation of the CPU instruction set (machine language) of the mainframe architecture (System z). Whether you run z/OS, z/Linux or any applications on top of any mainframe operating system, Hercules can only perform its emulation job by interfacing with other software through that mainframe CPU instruction set.

A CPU instruction set is simply an interface (or if you will, a protocol) for communication between the CPU (or, alternatively, an emulator such as Hercules) and the layer above.

It's no less of an interoperability case than word processor file formats, network file transfer protocols or anything else that FOSS needs all the time to serve its purpose in a real-world setting where proprietary software and FOSS are used in parallel.

Do you still want to be able to open Word and Excel documents with OpenOffice? Do you want to run a heterogeneous network of Windows and GNU/Linux machines and exchange data freely? If the answer is yes, then you should care about Hercules.

For interoperability's sake, and for many other reasons including the ones mentioned in this post, we must not view Hercules as an isolated case. We all have to understand -- and make others (including regulatory agencies) understand -- the far broader implications of IBM's conduct.

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I'd rather discuss patent issues than LinkedIn lists (updated once)

My previous post stressed that the two pledged patents with which IBM threatens Hercules are important (in terms of whether one can trust them) and unimportant (because there are 171 other patents with which they threaten) at the same time.

But I didn't think my LinkedIn contact list was "important" until I saw this BoycottNovell piece focusing on a contact I recently added to my LinkedIn list: Erika Mann, a former Member of the European Parliament and now Executive Vice President of the Computer & Communications Industry Association (CCIA).

As long as people try to sling mud at me, that's one thing. Once people start talking about contacts on a platform like LinkedIn, where the contacts one makes are (at the most) shown only to those on the contact lists of the two connecting people, semi-public things are catapulted into the blogosphere for no legitimate reason, other people than me are affected and things are generally getting out of hand. More importantly than that, BoycottNovell's speculation is fundamentally flawed, as I'll explain quickly.

I had actually mentioned in my press roundup on Wednesday a BoycottNovell comment that said "SHAME on IBM" and thought at the time that they were now going to focus on the issue itself. I took note of a more recent comment on their site that "IBM deserves some scrutiny", although the addition "but not too much" makes little sense to me.

Today's BoycottNovell story on this matter has the headline: "Florian Müller Seemingly Connected to CCIA (Microsoft Proxy)" The summary, correspondingly, claims that "Müller set up his anti-IBM blog when he got connected with CCIA’s Executive VP, who works with Microsoft"

Further down, BoycottNovell says:

One thing that came up some time between March 22nd and March 29th is that Müller added a LinkedIn connection to Erika Mann, CCIA’s Executive Vice President and head of CCIA’s European office (Microsoft and CCIA work together [1, 2]). That was just before he started to attack IBM like he also attacked Oracle some months ago (along with the GPL). He even created a new blog for this purpose

Now the facts:

• I have known Erika Mann not just recently but actually since 2004. Then-FFII President Hartmut Pilch and I met her in fall 2004 in the European Parliament's Brussels building and discussed the then-ongoing legislative process concerning software patents with her. She was an MEP from 1994 until 2009.


• On November 9-10, 2004, the FFII held a conference in Brussels on "Regulating Knowledge: Costs, Risks and Models of Innovation". One panel of that conference was chaired by Erika Mann, who was then the chairman the European Internet Foundation (EIF), whose members already then included IBM as well as Microsoft and many others. There was an EIF event on software patents in the evening of November 10, 2004, thus after the closing of the FFII's conference, and Erika Mann invited all participants in the FFII event to attend her conference as well. I found this FFII mailing list announcement of her participation, also mentioning the EIF event. That week I was a speaker at both conferences (FFII and EIF). There are countless witnesses so that no one can ever doubt that fact and therefore my long-standing contact with Erika Mann.


• I participated in several more EIF events in the following years that focused on patents and other intellectual property rights issues.


• In 2007, the European Parliament made a resolution on the future of professional football (soccer) in Europe. Erika Mann was not a member of the lead commmittee (Culture & Education) but she is a soccer fan and took a personal interest in the related issues (which are predominantly antitrust issues, by the way). I defended the interests of my long-standing friends in the management of Real Madrid, the world's most famous soccer club, in this context. Two members of Erika Mann's staff in her constituency office in Germany were Real Madrid fans. We were in contact on this policy area as well, not just software patents.


• After she left the European Parliament last summer, I tried to reconnect with her on LinkedIn. I found a profile but it only had one connection, so it looked inactive.


• I didn't know she was now at the CCIA until I learned about it when she was quoted in media reports on TurboHercules' antitrust complaint against IBM, especially this IDG story on March 23, 2010.


• I looked up LinkedIn again, saw that she had a profile there that was up to date and now had a number of connections (so unlike before, it was an active profile), and I reconnected.


• By way of contrast, I had added two TurboHercules executives months earlier: Roger Bowler on November 28, 2009 and Bill Miller on January 26.


• None of what I wrote on my blog was coordinated with Erika Mann in any way. Nor with any other CCIA official.


• I can't see how the CCIA could be equated with Microsoft. Its members (here's the complete list) include, besides Microsoft, big Microsoft competitors such as Google and Oracle, other big players such as eBay, Fujitsu, Intuit, T-Mobile and Yahoo, and the FOSS community may take special note of the fact that Red Hat is a CCIA member as well. The notion of a group assembling members of this nature and stature being a Microsoft front is downright absurd. Otherwise BoycottNovell would have to rename itself BoycottRedHat ASAP.

Let's leave people's LinkedIn contacts alone. I have 290 connections there, including two or more who work for IBM by the way. A connection there means that people know each other. There are some people on my list whom I've never met in person, and some whom I haven't seen in many years.

So let's focus again on the enormous threat that IBM's patents - 99% of them unpledged - constitute to Free and Open Source Software. IBM has tens of thousands of patents, obtains several thousand new ones year after year and has now demonstrated that it's prepared to use them to protect its business interests against perfectly peaceful FOSS projects.

Yes, perfectly peaceful. IBM's defense clause was never triggered by TurboHercules, as I wrote earlier. And contrary to IBM's gross misrepresentation, IBM alleged an "intellectual property" infringement before TurboHercules ever said "patent", "intellectual property" or anything like it. That's something you can verify here. There were two IBM letters, the first one already asserted an infringement, and both of them have been made public.

Those are the real issues.

--- Update ---

On his website, Roy Schestowitz, the author of the BoycottNovell story, posted some follow-on questions to me that I will quickly address here:

I have just read your response. Therein, you don’t deny what I wrote (instead you attack straw men, e.g. I didn’t argue that you had not known Erika Mann beforehand).

The BoycottNovell piece didn't claim that there had not been any prior contact. However, I have explained why the LinkedIn connection was created only recently for reasons that make BoycottNovell's speculation about any factual context baseless.

"In fact, you dance around the issue just as TH danced around the question about its relationship with Microsoft (which was later made very obvious)."

The only issue I cared about was the insinuation that the timing of the LinkedIn connection and the timing of the blog indicated anything relevant to BoycottNovell's conspiracy theory.

"Be sure to follow the links and see my explanation of why Microsoft funds CCIA and Black in a very special way; don’t conveniently omit details, please."

I don't omit anything that's relevant but of course I have no reason to deal with utterly unconvincing conspiracy theories when I have actually explained, without knowing the internals of CCIA at all, that the mere fact of the membership of the companies I listed further above here already proves that CCIA cannot be equated with Microsoft. There are big, powerful, famous players in there, some of them fierce Microsoft competitors.

"So, Florian, are you in contact with TH and CCIA?"

Unfortunately, this question at this point (after I wrote this post originally, that is, everything above the word "Update") raises serious doubts about whether I can expect a minimum standard of reasonableness on BoycottNovell's part. I have answered both parts of the question, contact with TH and contact with CCIA, unambiguously in the upper part of this posting.

"Have you been in touch with Carina Oliveri?"

My LinkedIn list might also contain the answer to that question, but it's an irrelevant question because I have not denied in the original posting (see further above) the fact that I added two of TurboHercules' founders to my LinkedIn contact list months ago, so if I answered questions about additional TurboHercules people, it wouldn't add anything.

Even if it did add anything, none of that would change anything about IBM's conduct.

End of discussion as far as I'm concerned.

The pledged patents are important in one way and unimportant in another

Since there is so much talk about it, let me point out (as I did on previous occasions) that the pledged patents IBM threatened to use against TurboHercules are important in one way and unimportant in another. Both at the same time.

• Those two patents are important because they have to do with the extent to which IBM can be trusted. IBM wanted to curry favor with the community but didn't honor its promise.
  
  After that happened, the proper way for IBM to handle this would have been admit right away (on Tuesday, when its letter was published and IBM issued its first official reaction) that it should never have tried to intimidate TurboHercules with those pledged patents. It should not have listed those patents at all, or if it had listed them, it should at least have added a footnote to make it clear that those patents would never be asserted against FOSS.
  
  However, the way IBM did react only made things worse -- and the question of the pledge more important than it would otherwise have been.
  
  IBM still hasn't said certain key things in an unequivocal form, such as that the Hercules project undoubtedly qualifies for the benefits of the pledge and that TurboHercules hasn't done anything that would trigger a defense clause. IBM still hasn't said how it may still use its patents against Hercules. IBM has only created more confusion. That approach all by itself shows a lack of good intentions and greatness on IBM's part.


• At the same time, IBM's entire original patent pledge and the two patents from the pledged list that IBM waved to TurboHercules are unimportant in the sense that we are talking about a pledge covering only about 1% of IBM's total patent portfolio, and only about 1% of the patents listed in IBM's letter to TurboHercules were pledged patents.
  
  You take 500 patents out of IBM's patent portfolio and there are still 50,000 or so other IBM patents that continue to be a threat to FOSS. The whole pledge was an IBM PR stunt and, given the small number of patents, a drop in the ocean from the beginning.
  
  You take the two pledged patents out of the list IBM of 173 patents (including applications) that IBM sent to TurboHercules, and 99% of the problem is still there.
  
  If Hercules infringed only a single one of those patents related to the mainframe CPU instruction set, it could no longer be used. It simply wouldn't be able to execute any significant mainframe software because every significant piece of software will typically make use of each machine language instruction somewhere in its code.
  
  So the actual patent problem here would essentially be the same even if IBM had issued the overdue apology and unequivocal clarification that it has failed to put forward.

Unless anything new comes up or becomes known concerning the pledged patents and IBM's approach to its pledge in general, I believe the time has come for the debate to move on and focus on what IBM will do with its unpledged patents. I realize that IBM is unwilling to give crystal-clear and reliable answers to pledge-related questions. That fact is obvious now, so we really need to focus on the actual threat, of which the pledged patents only represent a negligible part.

After so much discussion about 2 patents, what about the other 171?

IBM's defense clause that was never triggered

I had already explained in this post that there isn't any IBM defense clause that would ever have been triggered by TurboHercules. Hence, TurboHercules is still entitled to the benefits of the pledge.

But there's ongoing confusion. Just a few hours ago, someone commented on a previous post of mine and claimed that an "entity that has filed legal action against [IBM] is no longer protected [by the pledge]."

Another reader has, without posting a comment, challenged me to comment on the following quote from a senior IBM VP, a remark he made in a speech at a Linux event: "IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves."

IBM may have said that, but it has nothing to do with TurboHercules. It's a statement about the Linux kernel. Hercules isn't the Linux kernel and IBM's patent pledge doesn't even mention the word Linux. IBM's comment has no effect on the scope of the patent pledge. The pledge stands on its own. It doesn't contain anything that would say: "You have to view this pledge in the context of whatever some IBM person said somewhere about something that is at best remotely related."

The pledge even encourages people to print it out and keep it like a contract. That underscores it's a document that stands on its own. The pledge defines one -- and only one -- defensive scenario in which IBM would not want to be constrained by the pledge. That clause exclusively pertains to "any party
who files a lawsuit asserting patents or other intellectual property rights against Open Source Software."

So IBM wanted to ensure that it could retaliate against a patent attack on open source even with pledged patents. But what TurboHercules did -- the lodging of an antitrust complaint with the European Commission -- is anything but filing a lawsuit asserting patents or other intellectual property rights against FOSS.

What TurboHercules did doesn't trigger the exception provided for in the pledge any more than reporting an illegally parked IBM car to the police would.

Antitrust and intellectual property are totally different areas of the law and the European Commission doesn't pursue patent infringement. (It doesn't adjudicate lawsuits of any kind.)

There are only three scenarios in which someone can claim that TurboHercules triggered the defense clause:

• that person hasn't ever bothered to read the actual pledge (which is only one page, plus a patent list) prior to commenting on this issue


• that person doesn't know that antitrust and intellectual property are disparate areas of the law, which I've now clarified


• that person intentionally wants to fool the community (and there are some out there who aim to do that)

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TurboHercules' entire correspondence with IBM available online

On Tuesday I published IBM's most recent letter to TurboHercules, dated March 11, 2010. By now, the three letters previously exchanged between the two companies have also been made available (on the TurboHercules website). This is useful material to see what has happened and in which context.

In its first official reaction to the publication of the latest letter, IBM stated the following:

We were merely responding to TurboHercules' surprise that IBM had intellectual property rights on a platform we've been developing for more than 40 years.

Now that all of the letters are available, it's easy to demonstrate that the sentence quoted above is wrong. A few commentators, who were unfortunately misled by IBM's statement, suggested that IBM didn't threaten TurboHercules with patents but basically just answered a request for information. This fallacy can be dealt with very quickly.

In TurboHercules' first letter to IBM, TurboHercules inquired about a way to let customers run IBM's operating systems, especially z/OS, on Hercules. Neither the word "patent" nor the broad and general term "intellectual property" comes up. It's particularly easy to check because that document can be searched automatically with the PDF Reader.

Four months later, but still four months before the letter I published on Tuesday, IBM then replied with this letter. That document is not searchable because it's a digital image, but it's just one page.

The second paragraph of that letter acknowledges what TurboHercules really wanted to know:

In your letter, you ask whether IBM would consider licensing its operating systems for use on the TurboHercules platform in order to help TurboHercules SAS (Turbo) establish a commercial business.

The third paragraph then begins with the following infringement assertion:

First, you state that Turbo "implements the instruction set of IBM mainframes on Intel-based servers". We think that mimicking IBM's proprietary, 64-bit System z architecture requires IBM intellectual property, and you will understand that IBM could not reasonably be asked to consider licensing its operating systems for use on infringing platforms.

It's not too hard to interpret, but let me put it in colloquial terms to make it even clearer what IBM said: "You (TurboHercules) say you emulate our mainframe CPU on Intel-based computers. If what you (TurboHercules) say is true, then you infringe IBM intellectual property."

IBM asserted an infringement, not in a very specific form initially, but without a doubt, IBM brought up an "intellectual property" infringement assertion against Hercules, literally and proverbially, out of the Blue. IBM started to bully.

IBM used a very broad and general term. "Intellectual property" in connection with software can mean patents, copyright, trade marks, trade secrets, design patterns. The term "intellectual property" is so broad and unspecific that Richard Stallman, the founder of the software freedom movement, even rejects it entirely as a "seductive mirage".

Therefore, TurboHercules had no idea what exactly IBM meant. Considering that Hercules had been around for a long time without any complaints over any infringement, Roger Bowler was surprised in the sense that he couldn't see why his project would all of a sudden infringe any rights if no such claim had been made during all of that time (during which there can be no doubt that IBM was well aware of it; IBM had temporarily even recommended the Hercules emulator in one of its so-called Redbooks).

That's why Roger wanted to know more about this. So he wrote another letter to IBM, and the key passage for the patent issue is this one:

We also were surprised at the suggestion that our TurboHercules product - which merely relies on Hercules open source emulation software to run z/OS on Intel-based servers - might infringe certain IBM intellectual property. Hercules has been widely used in the development community, as well as within IBM itself, over the past ten years. Prior to receiving your letter, we were not aware of any claim that Hercules might infringe IBM's intellectual property. If you believe that the Hercules open source project infringes any IBM intellectual property, please identify it so we can investigate that claim.

Let me repeat a previously quoted one of IBM's gross distortions of the facts and compare it to what actually happened:

"We were merely responding to TurboHercules' surprise that IBM had intellectual property rights on a platform we've been developing for more than 40 years."

But there's nothing in TurboHercules's second letter that would enable IBM to reasonably say that TurboHercules was surprised that IBM had "intellectual property rights on [the mainframe] platform".

TurboHercules of course assumed that the world's largest patent holder would own mainframe-related patents. TurboHercules of course knew that a company the size of IBM would protect software copyright and other rights.

TurboHercules was, however, quite understandably surprised that a FOSS project that had been around since 1999 would now suddenly infringe rights (and not before), especially since this had not been under cover but IBM had been well aware of it all the time, about which there can be no doubt. And TurboHercules couldn't figure out what IBM meant by "intellectual property" given the vague nature of the term.

Everyone following this issue should look at how IBM tries to fool commentators and the FOSS community. IBM should admit what it has done.

To sum it up, the facts are:

• TurboHercules never said "intellectual property" or "patent" or anything like it before IBM said "intellectual property" and "infringing".


• TurboHercules, contrary to IBM's statement, was never surprised that IBM would own mainframe-related rights. They knew IBM would always do its homework.


• TurboHercules was surprised that an open source project started in 1999 and even mentioned in an IBM Redbook a long time ago would suddenly, in 2009, be the object of an infringement assertion.


• TurboHercules didn't, contrary to what a small minority of commentators believes, beg IBM to come forward with a patent list. IBM made an unspecified infringement assertion. In my opinion there was nothing unclear about the fact that an infringement was asserted. What was unspecified was the kind of "intellectual property" that was meant. Not even the category of "intellectual property" was clear after IBM's first reply.


• IBM then provided the patent list and repeated its infringement assertion with the letter I published on Tuesday.

IBM now tries to downplay its action of threatening by waving patents, saying that the patent list was only provided on request. Even if the thing about the request were true (which it is not), it would be a hostile, threatening act against a FOSS project. But as the exchange of letters undoubtedly shows, IBM brought up a patent infringement (without even saying clearly it was about patents, but that's what was meant) before TurboHercules ever inquired about it.

IBM told TurboHercules in its first letter: "Don't mess with us because we're armed and can kill you any moment." Of course, "armed" can mean lots of thing: a gun? a knife? a dagger? two or more different weapons? And TurboHercules was wondering: after a decade without any conflict, what's going on now? IBM then drew its gun. When asked, it said: "We didn't threaten with it. We were asked to show what we had."

Give me a break.

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Clarification of terminology: 'assert' vs. 'sue'

Since the discussion over all of this may continue for a while, I'd like to explain something once and for all, as as hopefully useful point of reference.

I see some commentators getting confused about what IBM was doing and how it related to what IBM had committed not to do. This is not only relevant in connection with the broken pledge (which as I pointed out in my previous post accounts for only 1% of IBM's total patent portfolio and also only approximately 1% of the patents with which IBM threatens TurboHercules). It's also important for the purpose of assessing how far IBM has already gone.

Let's be very clear on this one: "to assert patents" is a superset of "to file a lawsuit for patent infringement".

There are many who rush to IBM'S defense, mostly IBM-aligned people but also a few people whom I regard as usually very reasonable, who say that since IBM has not (yet) filed a formal lawsuit for patent infringement against TurboHercules, it has neither (i) broken its pledge nor (ii) done anything the community needs to be concerned about.

Let's start with the semantics and then look into both questions.

"To assert" is a very broad term, "to sue" is very narrow

The Free Dictionary provides a definition of the verb "to assert". In connection with rights, such as patents, it means to defend or maintain those rights. Filing an actual lawsuit is only the last resort if someone defends or maintains rights. "To assert" also includes earlier stages, such as calling someone to claim an infringement of rights. Or writing a letter to that effect. In other words, there are no formal requirements. It's a matter of common sense where an assertion begins.

By way of contrast, you cannot sue by calling someone or by writing someone a letter. To sue, you have to file a suit with a court of law. There's no way to stretch that definition.

The pledge was a commitment not to assert, not only a covenant not to sue

IBM's open source patent pledge was a commitment not to assert.

IBM wrote in that pledge: "IBM hereby commits not to assert any of the 500 U.S. patents listed below [...] against [...] Open Source [...]"

So this commitment was much broader and further-reaching than a mere covenant not to sue would have been.

No one forced IBM to say "commits not to assert". They could also have said "enters into a covenant not to sue for infringement of".

In 2005, IBM wanted to get the goodwill of the community. If IBM had only said "enters into a covenant not to sue for infringement of", people would likely have asked: You won't sue, but which other bad things do you intend to do?

IBM's letter to TurboHercules was not a lawsuit because that term is narrowly defined, but it was an assertion because that term is broadly defined and IBM has to honor its own words.

I know that some people say that IBM actually just answered a question, and that the infringement they asserted was only hypothetical. I'll deal with some of those views some other time. In this one I just wanted to highlight that IBM made a broad promise and now wants it interpreted narrowly.

I repeat myself but let's never lose sight of the fact that IBM only pledged 1% of its patent portfolio and only 1% of the patents with which IBM threatens Hercules are pledged patents. At some point we must all move on and talk much more about the other 99% of the issue (the non-pledged patents), but that one percent of the issue has a lot to do with IBM's credibility and I still see some people discussing that aspect. Both aspects are important, although in different ways.

Why waving with patents is bad enough

It's a black-and-white kind of perspective to say that as long as IBM hasn't formally sued, things are fine.

It would also be binary thinking to say that IBM doesn't want to destroy Hercules in its entirety, so things are fine.

IBM probably doesn't mind people using Hercules to acquire mainframe-related knowledge. The mainframe sectors suffers from a severe lack of trained professionals. Hercules provides a free-of-charge way to learn about mainframe technology on a cheap PC. IBM would rather control that field with its own emulators or other offerings, but this is not where Hercules really hurts them too much.

It's also possible that IBM doesn't mind software developers using emulators for development purposes. Other platform vendors are also quite liberal in that kind of context. After all, every additional piece of software written for the mainframe platform benefits IBM. I'll end this paragraph like the previous one: IBM would rather control that field with its own emulators or other offerings, but this is not where Hercules really hurts them too much.

What IBM definitely doesn't want Hercules to do is foray into the field of productive use. That's where IBM wants to force its customers to use IBM hardware - and only IBM hardware. There's an exception for the use case of disaster recovery in the z/OS licensing terms that suggests are slightly more liberal approach to that one. However, they could change those terms anytime, and what the z/OS licensing terms (obviously) don't address is whether IBM will refrain forever from using patents against disaster recovery solutions.

So what I believe IBM is doing here is using its patents to intimidate. They have sent out a signal that they draw the line where their core business interests are concerned.

They want to restrict and confine Hercules. "If you stay in the kids' corner, we'll probably ignore you. But once you leave that corner, you're in serious trouble."

In order to do so, they will do whatever they can: be it the z/OS licensing terms or be it patents.

Anyone who thinks that intimidation with patents can be accepted as long as no lawsuit gets filed should ask themselves this simple question:

Imagine you're having a disagreement with someone and that person draws a weapon and an ammunition belt with 173 bullets, would you also feel that everything's fine because this behavior is not identical to firing a shot?

IBM confused and confusing - but definitely still hostile

Big Blue Confusion.

After Tuesday's revelation, the media wanted to know from IBM where it stood concerning the patent pledge.

IBM scrambled to come up with an answer. Late on Tuesday IBM issued a statement that was contradictory in itself. On the one hand, they said they stood by the patent pledge they made five years ago. On the other hand, they came up with some theories that weren't in the original pledge. In other words, if they were going to stand by anything, it would be something fundamentally different from the original pledge: something that would give them the unilateral right to decide which individuals and companies are deserving of the benefits of the pledge, and which ones are not.

eWeek was first to publish IBM's reply late on Tuesday. At the end of this article, you can find a whole paragraph that talks about how IBM might consider TurboHercules not to qualify for the benefits of the pledge.

Then both the Financial Times and the Wall Street Journal pointed out that the concept of "qualified" simply wasn't in the original pledge. The Wall Street Journal asked: "If TurboHercules doesn’t qualify, who does?" The Financial Times found that "[e]ven under a very generous reading of the case, IBM is stretching the definition considerably to defend its turf. There’s a clear message there for any other open source company rash enough to try to take on Big Blue with its own weapons."

In other words, the world's two leading financial papers, independently of each other, didn't put any stock into the most essential part of IBM's statement.

Eric Raymond, an open source luminary often referred to by his initials ESR, wrote in his blog that IBM was "digging itself in deeper" with its "retroactive attempt to deprive the pledge of actual effect" since the only criterion that the original pledge established was that a project's license had to be an open source license. ESR wonders "when the adult supervision at IBM is going to step in."

When ZDNet asked me what I thought of IBM's reply, I also pointed out that the word "qualified" was not in the language of the pledge. "The problem is that 'qualified' becomes an arbitrary and discriminatory decision on their end."

Actually, it's not only the word "qualified" that IBM used and that wasn't in the actual pledge. They also talked about TurboHercules' "motivations". That's a little bit of an Orwellian notion... IBM checking on what we think and feel and then exercising its discretion as to whether it stands by its promises or not.

IBM may solve 1% of the problem with a 180-degree turn

Ultimately, IBM may have realized that it couldn't get away with totally baseless redefinitions of things it published five years ago. So the next episode of the story: Jim Zemlin, the president of the IBM-sponsored Linux Foundation, published a statement yesterday that is signed by Daniel Frye, VP Open Systems Development, IBM Linux Technology Center.

In that statement, the part of the original pledge that refers to who can benefit from the pledge is quoted again.

What is not mentioned is that there is one and only one exception in the original pledge: if someone asserts patents or other intellectual property rights (copyright, for instance) against open source, IBM reserves the right to hold its patents against him. Again, that is the only exception provided for by the pledge. And TurboHercules has not asserted any patents, copyrights, trademarks or other intellectual property rights against anyone.

Some are getting confused because TurboHercules lodged a complaint with the European Commission over the anticompetitive impact of IBM's behavior. Would that mean TurboHercules sort of attacked and could no longer benefit from the pledge? Absolutely not. The pledge only talked about an intellectual property rights attack against open source. It didn't talk about reporting to the police an IBM car that is illegally parked somewhere. Reporting illegal parking simply isn't an assertion of intellectual property rights. Nor is the lodging of an antitrust complaint.

Getting back to the IBM letter, it ends with the promise that "IBM will not sue for the infringement of any of those 500 patents by any Open Source Software."

Actually, that concluding statement is again a redefinition of what IBM originally promised. The original promise was not just that IBM would not sue for patent infringement. It was that IBM would not assert those patents. That is an important difference because the original promise "not to assert" is a broader one than now saying "will not sue for the infringement". The letter IBM sent to TurboHercules was certainly an assertion, even though they haven't sued so far.

Jim Zemlin (Linux Foundation) acting as His Master's Voice

More importantly, Jim Zemlin, who published and commented on that IBM statement, is totally wrong to say that ”[f]ortunately all of us can breathe easy" because this is anything but meaningful progress on the actual issue.

All that has happened is that IBM has put out inconsistent statements and still has not said clearly and affirmatively that TurboHercules meets the one and only criterion defined in the pledge (the software is under a license that was formally recognized as an open source license at the relevant point in time, and still is, of course). Nor has IBM said clearly and affirmatively that TurboHercules has not done anything that would be related to the one and only exception the original pledge defined (asserting IPRs against open source).

More than anything else, IBM appears confused and with its own confusion it's confusing, maybe deliberately trying to confuse, everyone else.

This is now another part of IBM's business - now open source, previously mainframe - making a statement. Do we - the non-IBM part of the world - now have to figure out which division of IBM calls the shots? So far there are actually very strong indications that those open source people at IBM don't have much to say compared to their mainframe counterparts.

But even if this confusion were to be resolved with an unequivocal and definitive statement by IBM's CEO himself, it wouldn't mean, contrary to what Jim Zemlin says to please his biggest sponsor, that ”[f]ortunately all of us can breathe easy".

Those are 500 patents. What about the other 50,000 or so that IBM owns? Open source is safe from 1% of the threat, not from 99%?

The patent pledge was a drop in the ocean from the beginning.

Out of the 173 patents (67 of them in the application stage) IBM asserted against Hercules, 2 would be removed from the list. That would also just amount to 1% of the issue. 99% of the problem would still be there.

If Hercules infringed only a single one of those patents related to the mainframe CPU instruction set, it could no longer be used. It simply wouldn't be able to execute any significant mainframe software because every significant piece of software will typically make use of each machine language instruction somewhere.

They just need one patent out of those 173 (or 171, if the two pledged ones are subtracted) to shut down Hercules, if that one patent is indeed infringed.

IBM still hostile, dangerous and utterly hypocritical

The bottom line is that IBM continues with the strategy that was apparent five years ago with the patent pledge. Simply put, IBM wants to fool the FOSS community. It's hypocritical. It portrays as a generous gesture something that doesn't make FOSS developers and users safer in any noteworthy way.

IBM still has hostile intentions because it wants to protect its mainframe turf no matter what. IBM is still dangerous for all of FOSS because no one would be safe from IBM in areas where IBM has a business interest in keeping competitors out. And worse than that, if IBM gets away with this, think of what other big patent holders might do.

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