Once upon a time, IBM was seen as the dark force in the computing industry
- Darth Vader in a Charlie Chaplin mask. More recently, though, the
company has come across as a strong friend of Linux and free software. It
contributes a lot of code and has made a point of defending against SCO in
ways which defended Linux as a whole. But IBM still makes people nervous,
a feeling which is not helped by the company's massive patent portfolio and
support for software patents in Europe. So, when the word got out that IBM
was asserting its patents against an open-source company, it's not
surprising that the discussion quickly got heated. But perhaps it's time
to calm down a bit and look at what is really going on.
The story starts with the Hercules
emulator, which lets PC-type systems pretend to be IBM's System/370 and
ESA/390 mainframe architectures. Hercules is good enough to run systems
like z/OS or z/VM, and, according to the project's FAQ, it has been used
for production use at times, even if that's not its stated purpose. The
project is licensed under the OSI-certified Q Public License.
Enter TurboHercules SAS, which
seeks to commercialize the Hercules system. The company offers supported
versions of Hercules - optionally bundled with hardware - aimed at
the disaster recovery market. Keeping a backup mainframe around is an
expensive proposition; keeping a few commodity systems running Hercules is
rather cheaper. It's not hard to imagine why companies which are stuck
with software which must run on a mainframe might be tempted by this
product - as a backup plan or as a way to migrate off the mainframes
The problem is that systems like z/OS and z/VM are proprietary software,
subject to the usual obnoxiousness. In particular, IBM's licensing does
not allow these systems to be run on anything but IBM's hardware. So when
TurboHercules tried to get IBM to license its operating system to run on
Hercules-based boxes, IBM refused. TurboHercules responded by filing
a complaint with the European Commission alleging antitrust
violations. According to TurboHercules, IBM's licensing restrictions
amount to an illegal tying of products.
One need not agree with IBM's position to understand it. IBM understands
well the power of commoditizing its competitors' proprietary technology -
that's what its support for Linux is all about, in the end. Emulated
mainframes running on generic Linux or Windows boxes can only look like an
attempt to commoditize one of IBM's cash cows. The fact that this product
requires running IBM's proprietary software gives the company a lever with
which to fight back. Whether one feels that refusing to license that
software in this situation is a proper action or not, one should agree that
it's unsurprising that IBM exercised that option.
TurboHercules evidently sent IBM a letter questioning whether IBM actually
owned any useful intellectual property in this area. IBM responded with a
letter listing 175 patents owned or applied for, all of which are said
to apply to IBM's mainframe architectures. Two of these patents, it turns
out, are on the list of patents which IBM explicitly pledged not to assert
against the free software community.
To many, this looked like the dark side of IBM coming through at last.
Florian Mueller wrote:
This proves that IBM's love for free and open source software ends
where its business interests begin. In market segments where IBM
has nothing to lose, open source comes in handy and the developer
community is courted and cherished. In an area in which IBM
generates massive revenues (an estimated $25 billion annually just
on mainframe software sales!), any weapon will be brought into
position against open source. Even patents, which represent to open
source what nuclear arms are in the physical world.
Those are strong words, and they strike a chord with anybody in the
community who is concerned about the software patent threat. But it is
also worth considering IBM's response, as reported in this
In response to a query from eWEEK, IBM issued the following
statement: 'IBM sent TurboHercules a non-exhaustive list of patents
that pertain to our mainframe technology. We did not make any
explicit assertions or claims that TurboHercules had violated
them. 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. We stand behind the pledge we
made in 2005, and also our rights to protect our significant
investments in mainframe technology.
There are a couple of ways in which one could interpret this statement.
Perhaps somebody within IBM has realized that this whole affair does not
look very good and has started furiously backpedaling. Or, perhaps, it
should be accepted on its face; there is, indeed, no assertion of
infringement in any publicly-available communication from IBM - though the
March 11 letter, listing patents "that would, therefore, be
infringed" comes close. Either way, perhaps
this whole thing has been blown just a little bit out of proportion.
At this time, what we have is an argument over proprietary software
licensing and European antitrust law. IBM has engaged in the sort of
unpleasant behavior which is common to proprietary software; it is a
classic example of why many of us try to avoid dealing with that world
whenever possible. In response, a formal complaint has been brought
against IBM, which has responded with some intemperate
rhetoric claiming that TurboHercules is a Microsoft-funded "cheap
knock-off" of its mainframe products. And while the waving around of
patents is disconcerting, no direct assertion of patent infringement has been
made. If IBM were to make such an assertion against Hercules, its
credibility and trust within the free software community would suffer considerably.
Until that happens, though, it might be best to avoid jumping to
conclusions and encourage these companies to work out their proprietary
software squabble on their own.
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