Oracle sues Google over use of Java in Android (ars technica) [LWN.net]

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 6:01 UTC (Fri) by gmaxwell (subscriber, #30048) [Link]

Can you please lay off the trollish character attacks on Eben?

Your cited examples of Eben's prior support of Oracle include things like him promoting the irrevocably of the GPL as a fact supporting Oracle's position. Nothing in the actual behaviour you have pointed to in your recent attacks on LWN reaches a plausible level concern.

At this point in time I think Eben _deserves_ a longer and more aggressive defence from your attacks but I'm hesitant to increase the size of this off-topic branch.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 6:27 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

Can you please lay off the trollish character attacks on Eben?

Can you please explain why what I just wrote was in any way or by any reasonable standard a "trollish character attack"?

I only mentioned facts. You may not like them but that doesn't make them an act of trolling. Eben Moglen just gave that big talk about patents, blaming it all on Microsoft and nothing on the corporations supporting his work, at LinuxCon. So it's a very legitimate question to ask where his organization is now. Do they defend software freedom in general or do they only do so in connection with corporate interests? The fact that Oracle sues Google over the Android SDK raises many questions, and that is one of them.

I know that there are many people in the FOSS community among whom I don't make myself popular by highlighting such issues. But I don't do that for short-term popularity in online discussions. I'll take accusations like yours (even though I consider them unfounded) because it becomes clearer and clearer that the problems patents pose to FOSS are not where some people would like the community to believe they are. There's a whole lot of diversionary tactics and hypocrisy going on, and I call people and organizations out on that. I believe it's important to do so because a whole lot of skepticism is due when looking at all sorts of companies and organizations who claim to defend FOSS interests.

It's kind of convenient to take the Moglen/Groklaw type of perspective and just blame it all on Microsoft. I'm not against people keeping a close eye on whatever Microsoft does in connection with patents. It's just that the community is better served by seeing where the real issues are these days. Patent threats to FOSS come from several large Microsoft competitors and no one should turn a blind eye to what they're doing just because IBM, Oracle and certain strategic allies of theirs try to distract. Your emotional reaction shows that it's very difficult for some people to come to realize that a lot of "free software" and "open source" people and organizations don't defend those values consistently. Some of them such as IBM and Oracle even act against those values; others only do so selectively, which is also bad.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 6:40 UTC (Fri) by kragil (subscriber, #34373) [Link]

I like your work Florian and you weren't trolling. Those are very valid concerns and from the looks of it the OIN is not really out to protect FOSS, like many people think. It only protects IBM, Red Hat, Novell and Sony and a few others. IMHO Eben should not be supporting companies that use software patents against FOSS PERIOD

Google can join OIN and help retard patent attacks if it wants

Posted Aug 13, 2010 13:10 UTC (Fri) by ofeeley (guest, #36105) [Link]

You mean the members of the patent pool support each other against patent attacks as they're supposed to, but you think that they should go to court to support Google, which is not a member? Specifically in defence of Android -- a dodgy fork!

Maybe Google should join the OIN if it wants community defence against patents.

Google can join OIN and help retard patent attacks if it wants

Posted Aug 13, 2010 13:17 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

You mean the members of the patent pool support each other against patent attacks as they're supposed to, but you think that they should go to court to support Google, which is not a member?

Sorry to say so, but you're not right. Both Oracle and Google are licensees of the OIN, and that license agreement is supposed to create a pool and its licensees should not sue each other over Linux distributions.

There are only six OIN members, and they are really in control, but the non-aggression pact relates to all licensees.

Regarding the differences between members and licensees, I recommend this posting for a starting point.

In my posting of today on Oracle vs. Google, I did point out that many Android-based devices aren't truly open source. I wouldn't call it a "dodgy fork", but at any rate, using patents against FOSS is unacceptable.

Google can join OIN and help retard patent attacks if it wants

Posted Aug 13, 2010 13:45 UTC (Fri) by ofeeley (guest, #36105) [Link]

Right. Google are merely licensees instead of members. They have the resources (money and patents) to make a significant contribution to OIN in order to protect themselves with mutual benefit to the other members.

Why don't Google join as members, i.e. what you call "owners" in order to be able to engage in the retaliatory actions which you appear to disparage on your blog?

Google as OIN licensees get exactly what they licensed: access to the patent pool.

In your haste to rip on Moglen and the OIN (which seems like a conflation anyway) you're ignoring the fact that Google chose to go it on their own and now are suffering one of the consequences of this system. If they were in the OIN they'd probably have access to some patents which could cause difficulties for Oracle.

Google can join OIN and help retard patent attacks if it wants

Posted Aug 13, 2010 13:53 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

Google are merely licensees instead of members. They have the resources (money and patents) to make a significant contribution to OIN in order to protect themselves with mutual benefit to the other members.
Why don't Google join as members, i.e. what you call "owners" [...]

I don't know whether they could become a member. There are six companies in charge and they haven't admitted any new member in years.

But you're really wrong when you think that only members are supposed to be protected by the OIN. You can read on the OIN's website: Licensee grants license to other current and future licensees [for] [a]ll licensee patents and applications for the Linux System. So it's clear now that the license agreement creates a pool of all "licensee patents". Oracle, which is a licensee, can sue Google, another licensee, although any reasonable definition of "the Linux System" should now include Android, one of the strategically most important Linux distributions.

Members are also licensees; in addition they control those patents that the OIN owns, but the OIN's patents as well as all patents of all licensees are made available under the license agreement to all licensees (not only to members: please recognize that easily verifiable fact).

In your haste to rip on Moglen and the OIN (which seems like a conflation anyway)

I didn't conflate. I discussed separate issues: Moglen advocated the merger and was part of the camp that claimed Oracle was going to be a great owner of Sun's patents. I know that he told that to people personally. Now he's proven wrong on that count. But it's not a conflation to discuss the OIN in the same context only a few days after he gave a speech at LinuxCon in which he promoted the OIN (which in terms of financial backers has significant overlap with his SFLC).

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 10:46 UTC (Fri) by vblum (guest, #1151) [Link]

Hm. PJ's criticism appeared to be that you were trying to get the license of MySQL changed away from GPL. At least that's how I understood her. I don't recall her ever blaming all software patent problems on Microsoft, in fact she gave Sun a rather hard time a few years back.

That said, PJ seems to be speculating (in response to a comment) that Google may have opted not to use the protections of the GPL in this case (and somehow not those of the Sun patent pledge either), and that this is what got them into trouble.

In any case, I am not a fan of Oracle either, given the entirety of their behaviour with Sun, after the purchase. Certainly I am not going to agree with a patent suit of theirs. Just wanted to point out that your reading of PJ's comments does not match mine.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 10:55 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

Hm. PJ's criticism appeared to be that you were trying to get the license of MySQL changed away from GPL. At least that's how I understood her.

You understood her correctly, but she wasn't telling the truth.

I personally said on every single occasion when people asked me during the process (including public events such as an analyst briefing in New York City) that a license change would not really sustain MySQL as a competitive force and I advocated a spin-off (so did Richard Stallman in his open letter at the time, by the way).

But PJ was particularly wrong because the EU wouldn't have been able to change MySQL's license. A merger control process doesn't allow them to impose any conditions. It only works this way: two companies say they want to merge and make a proposal. If there are no concerns, it goes through as proposed. If there are concerns, companies may (but don't have to) propose a solution, so-called remedies. Oracle never proposed formal remedies. If they had proposed any, the European Commission would then have had to decide whether or not to accept the deal on the basis of those remedies. The EC would not even have been allowed to tell Oracle "if you offer us a license change, you get a deal". And Monty and I would not have been invited to any such discussion.

I personally never believed that Oracle would offer a license change, but if they had done so, then it would have been a deal between the EC and Oracle and nothing that Monty or I could have achieved.

There were also accusations that Monty wanted to regain ownership of MySQL. Same thing there: if Oracle had asked the EC whether selling MySQL to Monty solves the problem, the EC could have said Yes or No, but the EC could never have forced Oracle to do so. In fact, if Oracle had wanted to sell, it could have sold to just anybody except another company that would raise competition concerns (such as Microsoft). So even if Oracle had wanted to divest MySQL, the EC could not have forced them to give it specifically to Monty.

Hm.

Posted Aug 13, 2010 13:24 UTC (Fri) by vblum (guest, #1151) [Link]

Hm. On Dec 9, 2009, PJ quoted from Monty AB's submission to EU as follows:

"We would like to draw attention to the fact that some major concerns about the effects of the proposed transaction could be somewhat alleviated by requiring that all versions of MySQL source code previously released under the GPLv2 license ...must be released under a more liberal open source license that is usable also by the OEM users and would also create an opportunity for other service vendors to compete with offerings comparable to MySQL Enterprise. A good candidate is the Apache Software License."

Are you saying she misquoted?

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 13:35 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

PJ very, very often quotes in grossly misleading, out-of-context ways and purposely omits very important passages. That's her style. Unfortunately, that's not the way to do it if someone truly wants to "dig for the truth."

The passage you just quoted only said that "some major concerns [...] could be somewhat alleviated". "Some" means "not all", "somewhat alleviated" means "this isn't a complete solution" (although it may be better than nothing). In fact, the same part of the position paper also stated that "such a commitment could not be reasonably expected to result in a continuation of disruptive innovation at the level of recent years" (and the whole paper argued about how important MySQL was as a major force of disruptive innovation).

I don't think anyone can blame us for having described to the European Commission a very suboptimal solution, whose limitations we clearly pointed out. The EC's guidelines for horizontal merger cases clearly state that any solution must not significantly impede effective competition. The position paper made it clear that a license change was clearly much weaker than a divestiture of MySQL to a suitable third party would have been. We just wanted the EC to know about the pro's and con's of that suboptimal alternative. That's part of what one should do at the start of such an investigation: provide information to the regulators.

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 15:03 UTC (Fri) by vblum (guest, #1151) [Link]

"very suboptimal solution" is a fair statement, ... although it means that you essentially agree with PJ anyway. So no factual reason for an argument.

Anyway to be fair, her selective quote in that particular case is somewhat understandable, as all she was trying to do was to make a "did too" statement.

(So far, she has been largely on target with her predictions that are based on the way she quotes, at least in the SCO/Novell and Apple/Psystar litigation. My feeling is that your particular quote was perhaps especially selective since she was only trying to make the point that that sentence was in there at all. Perhaps now that some water has passed under the bridge, the more important point is really that you both agree on "very suboptimal" ...)

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 15:08 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

"very suboptimal solution" is a fair statement, ... although it means that you essentially agree with PJ anyway. So no factual reason for an argument.

Depends on what you mean by "agree". My position was that Oracle simply wasn't a company that should have been allowed to acquire MySQL. PJ argued that the community should support Oracle's acquisition of MySQL.

So far, she has been largely on target with her predictions that are based on the way she quotes, at least in the SCO/Novell and Apple/Psystar litigation.

Far be it from me to support SCO or Psystar in any way. The problem is that PJ always supports whatever IBM does, and on TurboHercules she's completely wrong. The European Commission has launched formal probes of IBM's conduct and took that decision after careful analysis, so if TurboHercules had no point at all (which is what PJ said), the case would not have gotten this far.

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 16:19 UTC (Fri) by vblum (guest, #1151) [Link]

Hm. Now we're really off-topic. I appreciate your answers though, so I'll write one more.

In my understanding, PJ had a minimalist and crisp argument that overruled all else:

"It must not be possible that a licensor be forced to _change_ their licensing terms based on secondary claims (unfair competition etc.) Or else, some day, someone will use that argument against a particularly dominant GPL'ed project."

This is simple logic, and in my view unassailable. In a precedent-based jurisdiction (US - which is where PJ is apparently based), this could be an absolutely paramount necessity.

Whether you agree with "paramount" or not is of course up to you. But from that followed PJ's support for Apple, and for IBM. Seems genuine to me.

****

She's tentatively mapping out a similar, though weaker line for Oracle as well, it seems (and so we're back on topic). Had Google chosen the protections of the GPL, perhaps they could have avoided this mess.

Do I like Oracle? Not. Do I think that a patent attack is appropriate? Not. Do I think Oracle cares about defending software freedom? Not. But indeed, perhaps Google could have avoided the mess. We'll see.

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 16:30 UTC (Fri) by rahulsundaram (subscriber, #21946) [Link]

Google did not want a GPL'ed VM because they want the Android platform to support all types of apps and not just free and open source ones that are GPL compatible. They have avoided GPL as much as possible except for the kernel and kept it shielded away from the apps. Note that the classpath exception is not there for Java ME and this is what Google would have wanted. They very likely tried to negotiate a licensing deal with Sun for special exceptions and when that failed, gone about reimplementing things from scratch in-order to get a permissively licensed VM for Android. Google's choice has clear and obvious reasons behind it. Sun likely was unhappy but was not willing to become a patent aggressor. Oracle cares more about the bottom line and gone after Google for extracting some settlement and a profit.

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 17:05 UTC (Fri) by vblum (guest, #1151) [Link]

Good point. Hope you'll make it over at Groklaw when the time comes. Hard to see how Google would compete with the iPhone AppStore otherwise, I suppose that is the point?

[Well, they could have chosen C to base all apps on. Fortran too, which I would prefer.]

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 17:09 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

Hope you'll make it over at Groklaw when the time comes.

I stay away from Groklaw and several different users have in recent months sent me examples of Groklaw's censorship, plus the founder of the Hercules project wrote about it on his blog. So it's not a fair, neutral discussion platform. I much prefer this one, plus Slashdot, and some smaller ones occasionally.

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 18:09 UTC (Fri) by vblum (guest, #1151) [Link]

I couldn't agree more about LWN.

That said ... I have many anonymous comments at GL, including some outrightly against what PJ was stating at the time.

(No, I don't think she's always completely right either. Including in the Hercules discussion, where I unsuccessfully tried to build some kind of a bridge between the parties, IIRC. I thought the Hercules people were not given nearly enough credit for their apparently honest intentions, and that was really a shame, too. Despite the fact that I think they were naive to rely on some kind of expectation which IBM never promised, or needed to promise.)

However, I have always been treated with respect, and with well thought-through answers. To my knowledge, none of my comments was ever censored.

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 18:17 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

I have piles of screenshots showing the censorship that takes place on Groklaw and haven't decided yet if, when and how to use them, but I reserve the option for sure.

I thought the Hercules people were not given nearly enough credit for their apparently honest intentions, and that was really a shame, too. Despite the fact that I think they were naive to rely on some kind of expectation which IBM never promised, or needed to promise.

I disagree completely that TurboHercules asked for something that IBM never needed to promise, and not only do I disagree with you but apparently also the European Commission. We talk about an antitrust case. IBM has a mainframe monopoly and the European Commission's investigations wouldn't have been opened if TurboHercules's request for fair and reasonable licensing terms for z/OS (to run that proprietary system in emulation) had been out of line.

They weren't being naive. Look at where they are now: there's a formal antitrust probe that's been opened and I believe its outcome will be that IBM will be required to license z/OS on fair, reasonable and non-discriminatory terms to such vendors as TurboHercules.

The patent part is a different story. IBM tries to make that front and center. But that's not what started it, and it's important to consider that IBM asserted an IP (=patent) infringement even though that's unrelated to the z/OS licensing question. Should Hercules infringe those patents (which would have to be proven), then it will infringe them whether you run z/OS or z/Linux or any other operating system in emulation.

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 21:34 UTC (Fri) by Wol (guest, #4433) [Link]

IBM did NOT assert a patent infringement.

TurboHercules ASKED for a list of ALL patents that covered Hercules, and IBM gave it to them.

YOU then started screaming about "big bad IBM".

But all IBM did was respond - TRUTHFULLY - to a request for information. The fact that a pledged patent covered what Hercules did is just a fact. So IBM listed it as one of the patents that covered Hercules! To do otherwise would have meant IBM being fraudulent.

Cheers,
Wol

Taken out of context and grossly misinterpreted

Posted Aug 14, 2010 4:25 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

Wol, you spread IBM-aligned disinformation just like you do on Groklaw, and I have to debunk it to show to people just how wrong your claims are. I don't know why you do so: whether it's an inability to adjust your position to the facts, unconditional loyalty to PJ, or whatever. But the reasonable people here deserve truthful information.

IBM did NOT assert a patent infringement.

IBM wrote: "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 since TurboHercules didn't have a license to any "IBM intellectual property", the only logical interpretation is that it is an infringement assertion.

Furthermore, what you claim runs counter to IBM's public statements, in which IBM uses an aggressive patent holder rhetoric, likening TurboHercules to product pirates and copycats.

TurboHercules ASKED for a list of ALL patents that covered Hercules, and IBM gave it to them.

This is what TurboHercules really wrote -- it's definitely not a request for a list of all patents: "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."

Note that this was the second letter TH sent to IBM. In the first one they hadn't asked about anything like this and IBM just asserted an infringement. You can't ignore or deny the chronology of the events: IBM asserted an "IP" (=patent) infringement out of the blue/Blue. Only then TH asked to specify. Shouldn't be too hard to understand, unless one doesn't want to understand.

The fact that a pledged patent covered what Hercules did is just a fact. So IBM listed it as one of the patents that covered Hercules! To do otherwise would have meant IBM being fraudulent.

You are so wrong, it's just amazing.

IBM itself said in its letter that the patent list was "non-exhaustive", in other words: it was going to be incomplete anyway.

You are doubly wrong because IBM could have added a footnote to point out that those patents cover some mainframe-related technology but are not relevant in this case since the 11-year-old Hercules emulator is open source and thus covered by the pledge.

You are three times wrong because after the betrayal of the pledge was made public, IBM never said affirmatively that it wouldn't asssert those patents against TurboHercules. IBM issued various statements but never said unequivocally that it was a mistake to have listed those patents (or to have listed them without pointing out that they are irrelevant in an open source context). My interpretation that they never retracted the assertion of the pledged patents is consistent with how the world's two leading financial papers, the Wall Street Journal and the Financial Times, commented on IBM's reaction. What you hold against it are misrepresentations made by PJ, known for unconditional loyalty to IBM (but other than that, no detail is known about her professional background, nor has she ever appeared in public at any industry event, suggesting strongly she must have something to hide). PJ even quoted in her article from an IBM speech about patent assertion that was totally unrelated to the pledge, only to confuse you and others.

Taken out of context and grossly misinterpreted

Posted Aug 15, 2010 22:05 UTC (Sun) by Wol (guest, #4433) [Link]

What a beautifully misleading reply :-)

Yes, TH didn't request "a list of patents", true. But they requested a list of IBM's IP which Hercules might infringe. THAT INCLUDES PATENTS! So why the surprise when the list of IP they asked for includes a bunch of patents?

And by the way, I'm a native ENGLISH speaker (which I guess you're not). Seeing as we don't seem to agree on the meaning of "infringe" I would also assume my interpretation carries more weight that yours :-) But "to infringe" means "to cross the border". You may or may not give me permission to quote your words, but that is irrelevant as to whether me quoting you "infringes your copyrights". It does. End of. If I have permission, that infringement is hunky-dory and irrelevant. Hercules infringes IBM's patents. End of. The fact that IBM couldn't give a monkeys about Hercules' infringement is IBM's business. The fact that IBM DOES give a monkeys about TURBOHercules' infringement is also IBM's business.

I notice you point out that Hercules is covered by the pledge. Too right, it is. But what you are being extremely disingenuous about (or you're being paid to be blind to) is the fact that Hercules IS NOT TurboHercules. If you made all your points about *Hercules* then I'd be on your side against IBM, but your problem is that any such argument of yours would be a waste of hot air. TURBOHercules is not FLOSS, it's not a project. It's a commercial business. And if IBM says "bugger off we don't want anything to do with you", that's IBM's prerogative. WHY SHOULD IBM have to do business with TurboHercules. I'd love to force you to do business with me, too! I'd charge £1000/hr for sitting by the pool sunbathing. Lovely business :-)

If you want to *force* other people to do business with you, don't be surprised when other people force you to do business with them. And don't complain when you personally come off a lot worse in the exchange!

Cheers,
Wol

Taken out of context and grossly misinterpreted

Posted Aug 15, 2010 22:58 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

Yes, TH didn't request "a list of patents", true. But they requested a list of IBM's IP which Hercules might infringe. THAT INCLUDES PATENTS! So why the surprise when the list of IP they asked for includes a bunch of patents?

As I pointed out, they were surprised when IBM said they infringed IP, and that assertion came out of the blue/Blue. The patent list was a clarification, which doesn't make it any better.

But "to infringe" means "to cross the border". You may or may not give me permission to quote your words, but that is irrelevant as to whether me quoting you "infringes your copyrights". It does. End of. If I have permission, that infringement is hunky-dory and irrelevant.

So now the IBM apologists start to redefine the meaning of plain English? That's a sign of desperation I guess.

Merriam-Webster: "to encroach upon in a way that violates law or the rights of another (infringe a patent)" => note that it clearly says "violates", so does the American Heritage Dictionary's definition of "infringe". There can be another meaning but both dictionaries clearly use patents as an example of the definition I gave, that is, "violate."

But what you are being extremely disingenuous about (or you're being paid to be blind to)

As someone who just tried to mislead people here as to the meaning of a plain English word, debunked by me with a simple quote from a leading dictionary, do you think you're in a position to speculate about someone being paid to be blind to a fact?

the fact that Hercules IS NOT TurboHercules. If you made all your points about *Hercules* then I'd be on your side against IBM, but your problem is that any such argument of yours would be a waste of hot air. TURBOHercules is not FLOSS, it's not a project. It's a commercial business.

TurboHercules's software is 100% the Hercules open source program. 100%.

So by your "logic", IBM's patent pledge then wouldn't cover companies like Red Hat. IBM's patent pledge does not contain any language that excludes companies just because they're companies. The distinction you try to make is hostile to the notions of Free Software and of Open Source as defined by the FSF and the OSI. Both absolutely support the idea of companies redistributing free and open source software.

So you're either anti-FOSS or you may have to ask yourself the question you asked me and which I quoted further above, about being paid to be blind to something.

Taken out of context and grossly misinterpreted

Posted Aug 19, 2010 0:16 UTC (Thu) by Wol (guest, #4433) [Link]

Merriam-Webster? *AMERICAN* Heritage Dictionary?

I thought I said I spoke ENGLISH! Do you really expect me to pay any attention to that foreign rubbish! :-) (As indeed, you ought to know if were a regular on this site - you've just got to look at my membership number, both here and on Groklaw, to know I've been around a LOOOONNGGGG time!)

And what on earth does the software TurboHercules may care to use have to with the fact that TURBOHERCULES IS NOT HERCULES.

But Turbohercules probably isn't *selling* Hercules (I'm not sure what the licence is, but if it's the GPL they CAN'T sell Hercules). I stand by my point that TURBOHERCULES the company and HERCULES the project are not the same thing. And if IBM chooses not to care about Hercules, but does choose to care about TurboHercules, then that's up to them.

As for IBM and RedHat, RedHat hasn't been a spoilt brat demanding that IBM play with them. And oh yes - you may speak some other language entirely, but I thought (I can't be bothered to check) the pledge said IBM wouldn't ASSERT any of those patents against any FLOSS PROJECT. Speaking ENGLISH, as I do, "assert" in my legal understanding means "take action over". Which IBM hasn't done! And "project" does NOT mean the same thing as "company", either.

So IBM is perfectly free to take action against TURBOHercules, because TurboHercules is not covered by the pledge. But they HAVEN'T taken action, therefore even if the pledge applied, they haven't broken it!

Cheers,
Wol

Taken out of context and grossly misinterpreted

Posted Aug 19, 2010 1:15 UTC (Thu) by coriordan (guest, #7544) [Link]

> I stand by my point that TURBOHERCULES the company and HERCULES the project are not the same thing.

Yeh, and Red Hat (a company) is not the same as Red Hat's GNU/Linux distro (software). Does that mean you're fine with patent holders suing Red Hat? ...since you would only object if patent holders sued Red Hat's GNU/Linux distro. I don't see the logic of the distinction.

As for your opinion of your language abilities, someone with a user ID as low as yours should be aware that communities like this one respect doers more than talkers. For the definition of a legal term, I'd immediately rely on someone who did influential anti-swpat lobbying, and who wrote many well-received articles on the topic, over someone who relies on all caps to articulate his point.

Taken out of context and grossly misinterpreted

Posted Aug 22, 2010 22:41 UTC (Sun) by Baylink (subscriber, #755) [Link]

Well, I have an even lower UID, for what that's worth...

and, of course, I also have an opinion.

If the code TH is shipping is *the GPL or otherwise FLOSS licensed Hercules*, and IBM has covenanted not to take action about that code, then IBM really doesn't have much manoeuvering room here; since it's legal to make money selling (or giving away, however you choose to look at it) GPLd code, and since patents apply to *code*, not to activities (as trademark infringement action would, for example), then there really *is* the distinction coriordan seems boggled by in play here, so far as I can see.

The code either infringes IBM's patents or not, *as it sits*.

IBM either cares to take action, or chooses not to.

Neither of those decisions really has any handles onto which Turbo's sales of the program and support services can grab, so far as I can see.

Am I missing something?

Taken out of context and grossly misinterpreted

Posted Aug 23, 2010 5:52 UTC (Mon) by FlorianMueller (guest, #32048) [Link]

If the code TH is shipping is *the GPL or otherwise FLOSS licensed Hercules*

It is. It's under the Q Public License (well, it's an old project that today might choose some other license). That license is recognized by the FSF and the OSI.

and IBM has covenanted not to take action about that code,

With respect to the 500 patents IBM pledged in January 2005, the pledge said:

(quote IBM pledge) The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the programs source code without payment of fees or royalties. All licenses certified by opensource.org and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge. (end quote IBM pledge)

Concerning the last sentence, the Q Public License was listed on opensource.org (OSI website) as an approved license at the time.

Of the 106 patents (plus 67 patent applications) IBM listed in its threat letter to TurboHercules, 2 were part of that pledge.

since it's legal to make money selling (or giving away, however you choose to look at it) GPLd code

The position on gnu.org is clear: it's not selling that's illegal; it's just that those licenses require the free-of-charge availability. So if you make it available to the public for free, you comply with the license, and if someone pays you for whatever reason, he pays.

Red Hat's Enterprise Linux subscription is one of countless examples. You can also get the code on FOSS terms.

patents apply to *code*, not to activities (as trademark infringement action would, for example)

I just commented elsewhere on this page on what you wrote about those different IPRs and I think there's a misconception here. I quoted from §35 U.S.C. 271 and patent infringement includes a whole list of activities.

Taken out of context and grossly misinterpreted

Posted Aug 23, 2010 9:44 UTC (Mon) by anselm (subscriber, #2796) [Link]

There are two issues at stake here, really. The first is that IBM has told TurboHercules (the company) that no, they're not going to license z/OS to people who don't happen to have IBM mainframe hardware sitting in their basement, and the second is that IBM has told TurboHercules that incidentally there are 100-odd patents that Hercules (the software) seems to be infringing, as in »the software does certain things in a way that IBM has patented«, so if they keep on being obnoxious about z/OS licensing there is worse stuff that they might have to deal with. (Of course one would otherwise associate this kind of behaviour with much more unsavoury characters – often with Italian-sounding surnames –, but this is big business for you, after all. It is clear that people are queuing at TurboHercules's door to be able to get rid of their mainframes in order to emulate them on PC-class hardware, so obviously the survival of IBM is at stake here.)

The first issue is primarily what the EU is looking into, i.e., should IBM be allowed to keep a competitor (of sorts) out of its monopoly market.

The second issue is essentially petty posturing on IBM's part, i.e., they own the ball, they make the rules, and if you don't like that they will pick up their ball and leave. IBM's open-source patent pledge doesn't really enter into it since only a minuscule fraction of the patents IBM is using against TurboHercules are actually covered by the open-source patent pledge. IBM could remove them from the TurboHercules issue and still have loads of other patents to assert. This isn't exactly a PR win, but IBM is so big and complicated that the people behind the open-source patent pledge may never have even met the people behind the IBM-vs-TurboHercules business in the hallway. (The second issue also interests the EU but the first is more important.)

Taken out of context and grossly misinterpreted

Posted Aug 23, 2010 9:59 UTC (Mon) by FlorianMueller (guest, #32048) [Link]

I agree with you in many respects.

In terms of the description of customers queuing at TurboHercules's door, it's a funny metaphor, but there certainly is some pretty significant pent-up demand for alternatives in the market. Let's not forget that those who will benefit from more competition aren't just those who ultimately choose non-IBM hardware: it will also put those who want to buy from IBM in a much better position concerning IBM's official pricing policy and discounts granted in individual negotiations. The PCMs (plug compatible mainframes) had exactly that effect for a few decades. Now emulation can play that important role.

You are right that monopoly abuse for the purpose of preserving the monopoly is the antitrust angle to focus on.

Back in April I already wrote a blog posting entitled "The pledged patents are important in one way and unimportant in another", arguing just like you that 2 out of 106 patents (+67 applications) are a tiny fraction, but from an open source point of view the question of whether IBM honored the letter and the spirit of the pledge is nevertheless an issue, even if not at the heart of the antitrust case. Also, both aspects actually show how little benefit those pledges offer: they don't cover enough patents and companies will ultimately try to find excuses, like IBM did in very unconvincing ways, as to why they allegedly don't apply.

By the way, IBM plays the "patent pledge"/"patent commons" window dressing game also in other contexts than open source (interoperability; cleantech).

Taken out of context and grossly misinterpreted

Posted Aug 19, 2010 2:40 UTC (Thu) by foom (subscriber, #14868) [Link]

> if it's the GPL they CAN'T sell Hercules

Of course it's okay to sell free software. The GPL has no restrictions against charging for software licensed under it. I'm surprised someone who's been around so long could get this basic point wrong...

PS: you use too much emphasis in your messages, it makes them hard to read.

Taken out of context and grossly misinterpreted

Posted Aug 19, 2010 20:33 UTC (Thu) by vonbrand (subscriber, #4458) [Link]

Oh, come on. TH asks IBM for "IP it might infringe", IBM responds "this is our IP in what you use, you don't have a license so we think you infringe", and TH cries foul?!

Taken out of context and grossly misinterpreted

Posted Aug 20, 2010 3:07 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

Oh, come on. TH asks IBM for "IP it might infringe", IBM responds "this is our IP in what you use, you don't have a license so we think you infringe", and TH cries foul?!

This is just another attempt to mislead people by an utterly selective recital of fact. But a half-truth is -- if intentional -- a whole lie.

So to make it clear with a simple analogy: if someone stands in front of you and tells you "oh and by the way, I don't like what you're doing and I have a weapon with which I can kill you whenever I want", this is a threat even though the weapon isn't shown. If you're surprised and ask for what kind of weapon, and the other person then waves a gun around, then you didn't just ask to see the gun: you asked for a gun with which you were already threatened.

Or to put it this way: a threat is a threat is a threat. IBM made a threat. The patent list was version 2.0 of the threat, a more elaborate version of what was previously sent as version 1.0.

The second letter from IBM with version 2.0 of the threat was much clearer. That's why it was the one I published initially. Anyone could see in that letter that there was a history. That history is that before the threat was specified, it was made in an unspecific way (even more malicious I would argue). I knew that history, and that's why I felt it was right to show version 2.0 of the treat.

So what about IBM's first letter? Tell us what you think of threat v1.0.

Taken out of context and grossly misinterpreted

Posted Aug 19, 2010 20:37 UTC (Thu) by vonbrand (subscriber, #4458) [Link]

If I infringe on your rights is one thing, if you decide not to go after the matter is something else. Sure, in a sense if you knowingly let it pass, you are (implicitly) giving me permission, and it (sort of) ceases to be an infringement.

Nobody is trying to twist the meaning of plain English here (except perhaps you are misunderstanding).

Taken out of context and grossly misinterpreted

Posted Aug 20, 2010 3:24 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

Basically, what you tried to argue here is that entering any house is "trespassing", even if you're invited. Do you seriously expect people to follow that kind of reasoning?

If I infringe on your rights is one thing, if you decide not to go after the matter is something else.

That's not the key point Wol made (see below).

But what are you trying to argue for or against here? Are you saying that it's fine to threaten FOSS projects/companies with patents, restricting their functionality and the freedom of their developers and users? Threatening is fine as long as the threat is so powerful that the aggressor achieves his objective and the case never has to go to court?

A lot of people are too focused on the question of whether such a matter goes to court or not. The fewest patent issues ever go to court. In most cases the patent holders already win just by threatening before they go to court. It's a very dangerous path (in general and for FOSS purposes in particular) to try to whitewash patent threats. For any patent aggressor, even the most malicious one, going to court is a last resort only. Everything an aggressor wants to achieve with a patent, no matter how destructive and bad, can be achieved without a lawsuit unless the defendant tries his luck in court. Limiting the negative effects of patents only to what happens in those rare court cases doesn't reflect reality.

Nobody is trying to twist the meaning of plain English here (except perhaps you are misunderstanding).

Wrong. Wol argued that "to infringe" means only "to cross a border" and that the term can apply EVEN IF someone has a permission. In other words, he argued it doesn't necessarily mean a violation. However, in the context of IP law, an "infringement" is undoubtedly always a violation that is not permitted. A permitted use would be considered a licensed use of a patent.

An IBM-sponsored organization, the Open Invention Network, also supports my definition of the term in its Patent Agreement: 1.1 [...] the license granted herein includes the right to engage in activities that in the absence of this Agreement would constitute [...] contributory infringement (or infringement under any other analogous legal doctrine in the applicable jurisdiction) This makes it clear: something would constitute an infringement absent a license. So if you have a license, there's no infringement.

It's really remarkable how unreasonably some people argue in those debates, forcing people like me to defend -- over and over again -- their reasonable and accurate explanations against totally out-of-line absurdities that are just meant to mislead the audience.

Taken out of context and grossly misinterpreted

Posted Aug 22, 2010 22:47 UTC (Sun) by Baylink (subscriber, #755) [Link]

Well, once again, there's a lot of (I think intentional) fuzz in the definition of "Intellectual Property" and how one can infringe it, and that's what's coming into play here.

If a piece of code infringes a patent, it does so *by virtue of its design or implementation*, and it does so whether anyone's using it or not, whether anyone's selling it or not, and even whether anyone's distributing it or not: if I write it for myself, and never give it away, it *still* infringes patents, if any exist in my jurisdiction on the topics of the implementation.

Copyright, on the other hand, is a question of *distribution*, rather than mere existence, and trademark violation requires *actual commercial activity*, as much as trademark owners would often like for that not to be true.

See my earlier comment reply for the implications of this in this case.

Taken out of context and grossly misinterpreted

Posted Aug 23, 2010 5:40 UTC (Mon) by FlorianMueller (guest, #32048) [Link]

You talk about a difference between those IPRs that I actually can't see.

"Infringement" is defined by §35 U.S.C. 271. and accordingly, an infringer is "whoever without authority makes, uses, offers to sell, or sells any patented invention". The word "makes" in this context doesn't mean that just coming up with an idea that's patented is already an infringement (sort of a mind crime); it's about building something that would be marketable. The word "uses" would relate to the execution of a program. In Germany (where I live), only commercial use is an infringement; in the US it may be broader.

At any rate, if you write a computer program and without authorization paste material that someone else created, this would also be an act of infringement; and it would especially be an infringement to then use such a program. Also, the software in question would be infringing material. If you look at Oracle's filing, they demand the destruction of all such infringing material; they don't only stop distribution.

Please cite references for the claim that patent infringement requires distribution or use to a lesser degree than copyright infringement. Wikipedia actually says that downloading copyrighted music without authorization is an infringement. So it doesn't look to me like copyright gives more flexibility in terms of what one can do.

Of the IPRs you mentioned, the only one where I can see that commercial activity plays a key role is trademark law, although the definition of commercial activity is probably broader than you like.

Apart from all of the above, I can't see how what you wrote would support Wol's absurd claim that "to infringe" in case of a patent doesn't mean "to violate".

Taken out of context and grossly misinterpreted

Posted Aug 16, 2010 11:52 UTC (Mon) by shmget (subscriber, #58347) [Link]

"If you want to *force* other people to do business with you, don't be surprised when other people force you to do business with them."

- Ever hear of the concept of bundling ?

Conditioning the sale of product A to the sale of product B is called bundling and is illegal, at least in TurboHercules Jurisdiction. (see CODE DE LA CONSOMMATION, Article L122-1

That same anti-bundling law is the law that allow consumers in TurboHercules's jurisdiction to get reimbursed the of Microsoft tax.

- Ever heard of Amdahl ? There are 40+ years of precedent for IBM being 'forced' to stop engaging in abuse of dominant position.

"WHY SHOULD IBM have to do business with TurboHercules."
It is not about IBM having to do business with TurboHercules. It is about IBM preventing their customers to use competing hardware solution.

To take a car analogy: it is like if GM owned Exxon, Shell, Texaco and BP, and stipulated that You could not buy gasoline in any of their gas station unless you drive a GM car.

The whole patent things is irrelevant to TurboHercules situation, at least in its jurisdiction: EPC, Article 52(1)(c) explicitly exclude from patentability "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers"
This is transposed in the national law of TurboHercule jurisdiction in the article L611-10(2)(c) of the "Code de la propriété intellectuelle"

Taken out of context and grossly misinterpreted

Posted Aug 16, 2010 13:18 UTC (Mon) by FlorianMueller (guest, #32048) [Link]

You made good points but let me add legal precision to some of them.

Conditioning the sale of product A to the sale of product B is called bundling and is illegal, at least in TurboHercules Jurisdiction. (see CODE DE LA CONSOMMATION, Article L122-1

Under the presumably corresponding Article 102 TFEU, it's illegal if it unfairly disadvantages customers, and the requirement for that article to be applicable is a dominant market position. IBM has a mainframe monopoly, and a monopoly is the ultimate form of market dominance. By contrast, it would be much harder to claim that Apple has a dominant market position.

he whole patent things is irrelevant to TurboHercules situation, at least in its jurisdiction: EPC, Article 52(1)(c) explicitly exclude from patentability "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" This is transposed in the national law of TurboHercule jurisdiction in the article L611-10(2)(c) of the "Code de la propriété intellectuelle"

You are right that software patents can often be invalidated in the EU on the grounds of patentable subject matter and the exclusion you correctly cited. Unfortunately, there are ever more court decisions in different parts of Europe that uphold them.

Nevertheless, it's true that tying (bundling) is at the heart of the TurboHercules matter and it's just IBM trying to portray it as a patent issue, with some aggressive rhetoric that is no substitute for facts.

Who's a native of what

Posted Aug 16, 2010 12:18 UTC (Mon) by coriordan (guest, #7544) [Link]

> I'm a native ENGLISH speaker

Congratulations. There must be soooo much we could learn from you. Hey, can you point me to a good reference about when to capitalise the non-initial letters in a word?

Taken out of context and grossly misinterpreted

Posted Aug 14, 2010 4:27 UTC (Sat) by jmalcolm (guest, #8876) [Link]

Florian,

I am not sure if Groklaw censors or not but please do not say that they do, that you have a ton of proof, and that you are not going to produce this proof (even though you reserve the right to do so).

Leaving me to accept your interpretation of your evidence without sharing it is really just FUD. One of the things I love about this site is the lack of FUD and hyperbole. If you are not choosing to execute your option to share the evidence then it would be better not to mention it all. If you find it impossible to stay silent about what you feel are abuses then perhaps you should consider sharing the evidence.

Never pull a gun you are not prepared to shoot.

Thanks.

Groklaw's censorship

Posted Aug 14, 2010 4:31 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

Leaving me to accept your interpretation of your evidence without sharing it is really just FUD.

OK, so here you have a blog posting by a well-respected open source project maintainer who can tell you about it: http://ibmvshercules.com/2010/04/15/booted-from-groklaw/

I can guarantee that I have a lot more material. But to prove that a site censors, one piece of credible evidence is enough.

Groklaw's censorship

Posted Aug 15, 2010 22:24 UTC (Sun) by Wol (guest, #4433) [Link]

Ah ... Jay Maynard.

Another "defend TURBOHercules to the death" supporter :-(

Seriously, if you people can't tell the difference between an Open Source Project called Hercules, and a commercial business called TurboHercules, do you really expect us to take you seriously?

Really. At the end of the day, all IBM wants, I would guess, is for this rubbish to go away. They had ABSOLUTELY NOTHING (officially at least) to do with Hercules. They would *like* to have ABSOLUTELY NOTHING (officially AND unofficially) to do with TurboHercules, and the sooner the TWO of them buzz off and leave IBM alone, the happier IBM will be.

Cheers,
Wol

Groklaw's censorship

Posted Aug 15, 2010 23:05 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

Ah ... Jay Maynard. Another "defend TURBOHercules to the death" supporter :-(

For all I know he's not at all involved with TurboHercules, but TurboHercules uses 100% the Hercules open source program, whose maintainer he is.

Seriously, if you people can't tell the difference between an Open Source Project called Hercules, and a commercial business called TurboHercules,

I don't know what your professional background is, but among many other things, I was an adviser to the CEO of MySQL AB for three years and a shareholder of that company from the year it was founded (2001) until the sale to Sun in early 2008. So I know what an open source company and an open source project are. And I know that both free software and open source are concepts that absolutely include companies as potential contributors, users and (re)distributors of FOSS programs. As such, they're part of the ecosystem as a FOSS project.

Really. At the end of the day, all IBM wants, I would guess, is for this rubbish to go away. They had ABSOLUTELY NOTHING (officially at least) to do with Hercules. They would *like* to have ABSOLUTELY NOTHING (officially AND unofficially) to do with TurboHercules, and the sooner the TWO of them buzz off and leave IBM alone, the happier IBM will be.

That's what you say. The European Commission, after careful analysis, has decided to launch two parallel probes of IBM's conduct, in both cases related to IBM's suspected abuse of a monopoly. Apparently the regulators don't do your bidding.

Taken out of context and grossly misinterpreted

Posted Aug 15, 2010 22:18 UTC (Sun) by Wol (guest, #4433) [Link]

What do you mean by "censor"?

Groklaw is PJ's personal blog, and yes she does censor. And how! And I've been censored! (Mostly though, I've had my knuckles rapped instead).

Thing is, if you HAVE evidence, and you SHOW evidence, that's fine by PJ. She might not like it, but she has the intellectual honesty to fight her corner with facts, and if you fight yours with facts she'll respect it.

But if you come up with allegations like "I have lots of evidence" and don't show, you'll get short shrift. The "Blepp briefcase" school of evidence. Yep, I'm sure Florian has loads of evidence. I don't doubt him a moment. But when he shows his evidence I'm sure it'll just be a load of irrelevant, ad hominem, or otherwise unfounded crap that PJ deleted.

Oh - and as for Florian's assertion that "PJ has never been seen at major events" - there's quite a lot of evidence out there (from people OTHER than PJ) that they've met her - at major events - and she's a real person. Florian's new to this, but when PJ gets death threats, and people start dying mysteriously (read back - you'll find - iirc - two or three strange deaths in this saga! And at least one that looked like murder.) I don't blame her for her low profile. I may only be an amateur psychologist, but I've seen more than enough to understand that she has *justifiable* reasons to fear for her safety.

Cheers,
Wol

Proof for Groklaw censorship now published

Posted Nov 19, 2010 16:49 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

I didn't bluff. Here's a mountain of evidence: http://www.scribd.com/doc/43344245/10-11-19-Groklaw-Censorship-Evidence

Taken out of context and grossly misinterpreted

Posted Aug 14, 2010 15:49 UTC (Sat) by vonbrand (subscriber, #4458) [Link]

Please do show your evidence for bias and/or censorship, or shut up.

Please respect the moderator's request to abandon that sub-subissue

Posted Aug 14, 2010 16:02 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

Please respect the moderator's request to stop discussing that type of matter here: http://lwn.net/Articles/400244/

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 18:18 UTC (Fri) by rahulsundaram (subscriber, #21946) [Link]

The android apps are far more easier to develop and much smaller than equivalent apps would have been in C or Fortran. Google's technical choices have been correct. Meego and competing platforms have a uphill battle in their hands.

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 19:42 UTC (Fri) by vblum (guest, #1151) [Link]

umm ... just to make sure, I was not being quite serious.

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 16:37 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

Hm. Now we're really off-topic

Guilty as charged. All of us :-)

"It must not be possible that a licensor be forced to _change_ their licensing terms based on secondary claims (unfair competition etc.) Or else, some day, someone will use that argument against a particularly dominant GPL'ed project."

You're right that PJ says so, but it's a total non sequitur. It's like saying "murderers should not be prosecuted because a member of my family might one day commit a murder."

I believe in the rule of law and everyone, including GPL'd projects, has to respect it. What I don't see is why the GPL per se would be endangered.

What's worse about PJ's "logic" here is that the issues that TurboHercules and Psystar (whereas I stress that I think TH is right and Psystar is not -- they're different cases) have are absolutely GPL-unrelated. We talk about the problem of whether you can run a piece of software on any hardware on which you like to run it as a user. That's an essential freedom (from the Free Software Definition point of view) and therefore not an issue at all for any GPL'd software. PJ confuses people by claiming there could be a dangerous precedent for the GPL on something that is a non-issue for the GPL, as I just explained.

But indeed, perhaps Google could have avoided the mess. We'll see.

I encourage you and everyone thinking along those lines to ask the question in an expanded form: could Google have avoided the mess without severely limiting its ability to innovate?

Taken out of context and grossly misinterpreted

Posted Aug 13, 2010 17:01 UTC (Fri) by vblum (guest, #1151) [Link]

yes, I'll think about it.

No definitive opinion on your vs PJ's view of the sanctity of license choices (don't need to have one, fortunately).

All I'm saying is, if she does base her thinking on that logic, all else follows. I can perfectly see where she's coming from.

Taken out of context and grossly misinterpreted

Posted Aug 14, 2010 12:25 UTC (Sat) by guest (guest, #2027) [Link]

"I stress that I think TH is right and Psystar is not"

Please read

http://www.groklaw.net/pdf2/ApplevPsystarAppeal-21.pdf

Do you still think that Psystar is not right?

Could you please explain your position, then?

Taken out of context and grossly misinterpreted

Posted Aug 14, 2010 12:45 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

Do you still think that Psystar is not right? Could you please explain your position, then?

I will try to explain my position in a nutshell:

I think, although I haven't looked into the details of how to possibly define segments of the smartphone market, that Apple, unlike IBM, does not meet the antitrust criterion of a dominant player. They're very powerful, but there is competition. In the mainframe context, there isn't any competition but for several decades there were the so-called "plug compatible mainframes" from vendors like Amdahl, Hitachi etc.

Under antitrust law, if a vendor isn't dominant, then there is no case. It's totally binary. I've explained that fact in this blog posting. The EU is aware of that limitation and thinking about how to also require non-dominant companies (that are large but still in a competitive market) to provide for interoperability in the future. But under current law, especially under US antitrust rules, it's simple: no dominance, no legal (antitrust) case.

Psystar also argues with Fair Use, in other words, the rights of licensees from a copyright point of view. That means they want an interpretation of copyright that's less favorable to right holders. In other words, considerably weaker copyright. (Overruling copyright law, or patent law, with antitrust doesn't make it weaker per se; it just means that something else comes into play.)

I admit my wording was imprecise because I looked at it purely from an antitrust perspective. In that respect, TH is right, Psystar is wrong - in my view. As far as Fair Use is concerned, I don't think I'm in a position to assess it, but I will say this much: I'm very much pro-copyright. I'm just anti-software-patent but generally pro-intellectual-property. So even without knowing the details of the Apple-Psystar case, my sympathy concerning copyright is with Apple, again, within the confines of copyright law.

By the way, I considered it absurd that Groklaw's PJ suspects Microsoft behind the Psystar case because Microsoft is always in favor of strong copyright (and I see that in the EU all the time). In all of those years I've never seen an instance in which Microsoft advocated weaker copyright. After all, copyright is essential to them. They aren't just a patent house...

Taken out of context and grossly misinterpreted

Posted Aug 14, 2010 19:03 UTC (Sat) by guest (guest, #2027) [Link]

Thanks for the explanation.

Could you please visit

http://www.ca9.uscourts.gov/datastore/media/2010/06/07/08...
http://www.ca9.uscourts.gov/datastore/media/2010/06/07/09...
http://www.ca9.uscourts.gov/datastore/media/2010/06/07/09...

Background:

http://newmedialaw.proskauer.com/2010/08/articles/copyrig...

What do you think of THAT in light of the Psystar's case?

Taken out of context and grossly misinterpreted

Posted Aug 14, 2010 19:09 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

Please appreciate that I will not dig deeper on the Psystar matter. I said that my position was based on antitrust and my position on copyright was a matter of a general approach as opposed to knowing all the details of the case. I don't think it hurts Psystar in any non-negligible way that I pointed out here (in a very different context) that I don't support them. I'm very focused on patent issues, thus my blog is called FOSS Patents, and Psystar is copyright. I'm in a much better position to discuss Oracle vs. Google, IBM vs. TurboHercules, Apple vs. HTC etc.

Taken out of context and grossly misinterpreted

Posted Aug 14, 2010 19:39 UTC (Sat) by guest (guest, #2027) [Link]

"Please appreciate that I will not dig deeper on the Psystar matter."

Okay.

Then, could you please stop claiming that Psystar is not right? Thank you.

Wow, talk about taken out of context and grossly misinterpreted

Posted Aug 14, 2010 8:13 UTC (Sat) by guest (guest, #2027) [Link]

You are aware that the TurboHercules implementation want to allow one to set how many licenses one wants to say they have. IBM licenses it's software per processor capability. With Turbo Hercules you could have an actual paid for license of one processor and actually run it on a 1000. This is what Hollywood calls software piracy.

You're also really twisting the facts on the IBM TH issue. IBM hasn't sued or threatened to sue. The people at TH have stated and published the letters where they asked IBM about possible issues. The truth is out there, use it. Plus your supposed link to show PJ censors showed 0 proof of such censorship. At least PJ posts the facts and link so one can verify the truth for oneself. She does delete trolls from time to time, and of course offensive posts. If you have actual proof she does more then, as they say put up or shut up. Stop your FUD, slandering and name calling. That belongs in the grade schoolyard.

Wow, talk about taken out of context and grossly misinterpreted

Posted Aug 14, 2010 12:11 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

I encourage everyone skeptical of IBM/Groklaw propaganda on the TurboHercules case to read these answers because they definitively debunk some absolute lies, a fact that is verifiable in each case with an investment of just about a minute.

You are aware that the TurboHercules implementation want to allow one to set how many licenses one wants to say they have. IBM licenses it's software per processor capability. With Turbo Hercules you could have an actual paid for license of one processor and actually run it on a 1000.

You accuse TurboHercules baselessly (and the baselesness correlates to your aggressiveness) of something they never asked for. Never ever. Instead, TurboHercules's very first letter to IBM, sent in July 2009 (and also linked to from my blog on this page), stated: "The pricing, conditions and limitations of that license would be at the sole discretion of IBM on reasonable and fair terms." Note that this was related exclusively to the question of the license to run z/OS in emulation. If you run Windows in an open source emulator, it would be the same thing: Microsoft licenses the proprietary operating system and the emulator is available on open source terms. Simple as that.

This is what Hollywood calls software piracy.

This labeling is aggressive, IBM-style, patent holder, anticompetitive rhetoric in such a context where someone didn't steal or even try to steal anything but made an independent creation.

You're also really twisting the facts on the IBM TH issue. IBM hasn't sued or threatened to sue. The people at TH have stated and published the letters where they asked IBM about possible issues.

I never said that IBM sued; they certainly did want to intimidate both the TurboHercules company and the Hercules open source project. There can be no reasonable doubt about that because if Oracle had prior to its lawsuit sent Google a list of Java patents with similar language as IBM when it sent it to TurboHercules, Google would for sure have felt threatened. I've addressed the sue vs. assert aspect as well as the lie that TH asked for a list of patents right here on LWN: http://lwn.net/Articles/400177/

At least PJ posts the facts and link so one can verify the truth for oneself.

I do the very same things as well. Contrary to PJ, I actually gave the facts concerning the entire correspondence between TurboHercules and IBM from the perspective of when IBM asserted a patent infringement. Contrary to PJ, I quote relevant parts of the context without purposely omitting the most important things, thereby taking things out of context.

She does delete trolls from time to time, and of course offensive posts. If you have actual proof she does more then, as they say put up or shut up. Stop your FUD, slandering and name calling. That belongs in the grade schoolyard.

People will come to their own conclusion concerning where your behavior belongs after they've read the above and seen how you aggressively claimed things that were the opposite of the truth.

In the case of the maintainer of the Hercules project, PJ clearly did go beyond the censorship of offensive posts or trolls, and I do have plenty of screenshots showing the censorship of perfectly polite, perfectly on-topic postings made invisible by PJ just because those people don't agree with her pro-IBM stance. You can get worked up all you want, but if, how an when I make the material available is in my discretion. I wouldn't say this if I didn't have the material because I wouldn't want to take any risk with it. I also have the right to keep collecting even more, although I believe I have several times more than necessary.

A request

Posted Aug 14, 2010 13:09 UTC (Sat) by corbet (editor, #1) [Link]

Could we perhaps agree that Groklaw is off-topic for this discussion, and that we'll gain nothing by discussing that site or its editorial policy here? I think this has probably gone as far as it needs to - and a bit beyond.

Thanks.

A request

Posted Aug 14, 2010 13:14 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

I agree that what had to be said about it has been said, and I furthermore agree that it has even gone beyond.

Wow, talk about taken out of context and grossly misinterpreted

Posted Aug 16, 2010 7:44 UTC (Mon) by dgm (subscriber, #49227) [Link]

Nonsense. If IBM's customers are not honest as to how many licenses they really have it's not Turbo Hercules fault.

Hm.

Posted Aug 13, 2010 14:21 UTC (Fri) by fuhchee (subscriber, #40059) [Link]

"Are you saying she misquoted?"

That reminds me, has anyone here seen this PJ person in person?

Hm.

Posted Aug 13, 2010 14:50 UTC (Fri) by vblum (guest, #1151) [Link]

My point was, is the quote correct or not.

Hm.

Posted Aug 13, 2010 14:53 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

My point was, is the quote correct or not.

An out-of-context, grossly misinterpreted quote is an example of half a truth amounting to a whole lie.

Hm.

Posted Aug 13, 2010 15:10 UTC (Fri) by vblum (guest, #1151) [Link]

see my other comment, I tried to read the thing objectively, and I think I can see why in this case she might have chosen to be that selective. I know she attacked you personally, but I also hope that it may be time to just let that injury be. I think you're both on pretty much the same side after all, in the big scheme of things. To PJ's comments read consistent, coming from someone who mostly thinks "copyright" (her stated priority appears to be that the licensor's intent be respected), yours come from someone who mostly thinks in terms of patents (the stated priority is that software patents must go and should not be used by anyone, period) ... and then you clash, although ironically you seem to agree on all the important matters.

Hm.

Posted Aug 13, 2010 21:38 UTC (Fri) by Wol (guest, #4433) [Link]

Actually, PJ and Florian are NOT on the same side. "The enemy of my enemy is not my friend".

PJ and Florian are both anti-software-patent. That's where the similarity ends. Florian is widely viewed on Groklaw as being anti-software-freedom. The argument (admittedly Monty's argument, but promoted by Florian) that MySQL should be forcibly relicenced to a developer-friendly licence like BSD has pretty much burnt his boats in that arena.

Cheers,
Wol

Hm.

Posted Aug 13, 2010 21:40 UTC (Fri) by hingo (guest, #14792) [Link]

We never made such an argument. See my longer post in this same thread.

Hm.

Posted Aug 13, 2010 23:10 UTC (Fri) by vblum (guest, #1151) [Link]

I do not wish to fan the flames, and I thought the present thread was finished, and civil. The "enemy" language concerns me. As much as people may have strong feelings, this is not a war.

In this very thread, Florian stated publicly that it is not his belief that MySQL "should" be relicensed. He called it a "very suboptimal" choice.

Whatever the history, he wrote this quite clearly, here and today. This is something different than you quote. I think it would help greatly if that were acknowledged, too.

Hm.

Posted Aug 14, 2010 4:49 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

In this very thread, Florian stated publicly that it is not his belief that MySQL "should" be relicensed. He called it a "very suboptimal" choice. Whatever the history, he wrote this quite clearly, here and today.

I point out that there is no history where I would have been any more favorable on a license change.

In particular, I want to point out that I organized two public events during the merger control process: a press conference at The Westin San Francisco Airport on 26 October 2009 (attended by, among others, eWeek's Chris Preimesberger and TheRegister's Gavin Clarke) and an analyst briefing at The Westin New York at Times Square on 27 October 2009 with 120 or more attendees.

At those events, various participants asked me about how I would view a license change as a possible basis on which the EU might be satisfied (note that Oracle always had the option to walk out on the Sun deal as a whole if the EU had blocked it; and that the EU could not have imposed anything, it could only have accepted an offer made by Oracle, which Oracle never made though).

So there were plenty of witnesses there at those events and I can say definitively that I fought very hard against all of the claims that a license change could solve the problem. I had to fight so hard because at both events (even at the press conference) there were hedge fund managers and risk arbitrageurs who owned Sun stock and wanted the deal to go through, so they were arguing aggressively for whatever might be a "solution". And I stood firm. On those occasions and throughout the process, from the beginning until the end.

I never ever said MySQL's license should be "forcibly" changed

Posted Aug 14, 2010 4:39 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

Actually, PJ and Florian are NOT on the same side.

That's about the only thing we can agree on. PJ has a simple principle: IBM and its strategic allies are always the good guys. Maybe because of this story about Groklaw allegedly having received funding from the OSDL? Anyway, whatever is bad must always be linked to Microsoft, no matter how absurd those theories are. By contrast, I focus on the issues no matter where they are coming from. I take differentiated perspectives on matters. If you read my comments on Oracle vs. Google, you can see that I don't support Google on everything, but against Oracle's patent aggression they should be supported.

The argument (admittedly Monty's argument, but promoted by Florian) that MySQL should be forcibly relicenced to a developer-friendly licence like BSD has pretty much burnt his boats in that arena.

I prefer not to use such strong words, but in this case I have to: that is just a lie. Nothing else but a lie.

You can read right here in this LWN discussion both the explanation provided by Monty Program's former CEO and I also ask you read my own clarification here on LWN that a license change could not have been foisted upon Oracle against their will and was not proposed; instead, I always made it clear how very suboptimal it would have been.

Apart from being a lie, I also think it's unreasonable to even attach so much importance to that. Does PJ advocate software freedom by saying IBM is free to sue the pants off TurboHercules? Did PJ ever comment on IBM's mockery of software freedom in its Bilski brief, in which IBM claimed that software patents liberated programmers and made free and open source software so very popular in order to convince the judges that software patents are a good thing for free software?

I never ever said MySQL's license should be "forcibly" changed

Posted Aug 15, 2010 22:33 UTC (Sun) by Wol (guest, #4433) [Link]

Apart from being a lie, I also think it's unreasonable to even attach so much importance to that. Does PJ advocate software freedom by saying IBM is free to sue the pants off TurboHercules? Did PJ ever comment on IBM's mockery of software freedom in its Bilski brief, in which IBM claimed that software patents liberated programmers and made free and open source software so very popular in order to convince the judges that software patents are a good thing for free software?

You'll need to search for it, but yes I DO remember PJ commenting on IBM's Bilski brief. And I DO remember her HORROR at how it misrepresents things. It's all very well you saying PJ is an IBM sock-puppet but anybody who actually *follows* Groklaw will know that "we're on IBM's side IF IBM is on ours". And this was a pretty blatant case where GL and IBM were NOT on the same side.

Cheers,
Wol

I never advocated a MySQL license change, especially not a forcible one

Posted Aug 16, 2010 8:02 UTC (Mon) by FlorianMueller (guest, #32048) [Link]

I had previously replied, but here's a link for those who want to see all the detail plus links to several documents, serving as conclusive evidence that I consistently argued AGAINST -- NOT FOR -- a MySQL license change. PJ accused me of the opposite of what I did.

The link leads to a part of a posting that addresses Oracle/Google licensing issues, which should be the primary topic of this discussion here anyway ;-)

Hm.

Posted Aug 16, 2010 3:33 UTC (Mon) by daniels (subscriber, #16193) [Link]

Even if she doesn't misquote, I don't think anyone could possibly take her seriously; Groklaw reads like the hysterical rantings of a madwoman. I haven't read it in years, and I come back to it to read this:

Update 5: Thomas Vinje speaks out about Florian:
Thomas Vinje, the founder of the European Committee for Interoperable Systems (ECIS), which ranks IBM among its members, said that "Microsoft lies behind the antitrust complaints against IBM." Mueller can in turn be linked to Microsoft, he said, because he joined forces with Microsoft to oppose the Oracle-Sun deal, which was approved after an in-depth investigation by the Commission that ended in December. Vinje acted for Oracle in that case. "They have learned how to play the game in Europe," Vinje said of Microsoft, which itself has been the target of antitrust regulators there. Microsoft has invested huge amounts in attacking its rivals, including Oracle and Google as well as IBM, in Brussels in recent years, he said.

Even without the hilarity-in-hindsight, that's pretty incredible (as in, not even remotely credible).

Hm.

Posted Aug 16, 2010 5:55 UTC (Mon) by FlorianMueller (guest, #32048) [Link]

Thank you for your comment on Groklaw's quote of Thomas Vinje. I'd like to make a few points about that thing:

My talking points as to why Oracle shouldn't have been allowed to buy MySQL were as un-Microsoft-like as you can imagine. I was talking all the time about how important FOSS is as a key disruptive force to compete with proprietary software. I've seen various statements by Microsoft on FOSS over the years, but I've never ever seen them promote the idea of FOSS putting competitive pressure on closed-source incumbents. For those who wish to read how I argued, the position paper, a presentation I gave in San Francisco and New York, and two versions of an FAQ document (1, 2) I sent to the media are available online. Note that I'm only providing this to set the record straight on what I did. I don't mean to restart the Oracle-MySQL debate, which is history: I respect the European Commission's ultimate decision to clear the deal.
Thomas Vinje is an extremely skilled lawyer, but the way he represented Oracle's interests in that regard was excessively tough, and as the IDG story mentions, IBM is indirectly a client of his.
One thing that's very important for everyone to understand is that competition cases (merger control, cartel cases, antitrust cases against abuse of dominant market position) are not like political lobbying. Those are regulatory affairs, and it's all about the truth coming out, similar to a court proceeding. Everyone who contributes to the truth coming out helps the regulators do their job, of course including Microsoft if they have something to say. If companies contribute untruthful things, the regulators have enough resources assigned to each case to identify what's self-serving and unhelpful. The regulators only care about what's important for competition and innovation, and above all, how to protect customers.
It's obvious that in connection with such competition cases you automatically get (at least) two camps that turn into virtual networks: those who are in favor of regulatory intervention and those who are against. Within both camps, the minimum level of cooperation you can expect to happen is some sharing of information related to the process, and it usually goes beyond. There was also a broadbased alliance that supported the EU against Microsoft, including that the Free Software Foundation Europe collaborated with nonfree software (and even anti-free-software) corporations. Those are natural issue coalitions. They end whenever the related process ends. Even while they exist, they are limited in scope to that one case.
It's not a secret that Microsoft and SAP provided the European Commission with material concerning Oracle-Sun, and some of it is quoted in the published decision on the case. Undoubtedly they had talking points that were fundamentally different from mine.

Tobacco kills

Posted Aug 19, 2010 23:16 UTC (Thu) by rebentisch (guest, #69660) [Link]

I am stunned, a top-competition lawyer like Thomas Vinje (who usually restrains himself) claims you worked for Microsoft Corporation in the Oracle case. You don't refute it. I guess SAP pulled more strings behind the scenes in this case and Monty didn't just pretent to be mad about the sale. But when Vinje says so the Commission does believe the same. Beware the tobacco, it kills!

"One thing that's very important for everyone to understand is that competition cases... are not like political lobbying. Those are regulatory affairs, and it's all about the truth coming out, similar to a court proceeding."

Ironically that was exactly the argument why I would not want any unrelated persons be drawn in these cases, and why I really didn't see the point of all your antagonist public campaigning or the petition. I mean, why do you demonize corporations in public when a case would be decided on grounds of law? Why is someones attitude towards IBM relevant when the (staged) TH case would be decided by a competition authority, not in the court of public opinion?

Thomas Vinje is highly skilled but doesn't have a monopoly on the truth

Posted Aug 20, 2010 3:47 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

I hold Thomas Vinje's skills in the highest regard -- we fought for different outcomes of the Oracle/Sun case but that doesn't prevent me from respecting his abilities. However, the point you're trying to make is that he always speaks the truth. What evidence did he present for what he said? Nada. Just a conspiracy theory. Monty and I had announced our working relationship and everyone knows that Monty made a lot of money when he sold MySQL and that he cared a lot about his brainchild, so I can't see how he would have needed anyone else's money to defend the cause.

But is Thomas known to have IBM, indirectly through ECIS, as a client? That is a proven fact and an obvious motivation for him to say this kind of thing.

What's really ridiculous is to say that he "usually restrains himself". He's a fighting machine. On both occasions on which I've seen him in person, he was by far and away the most aggressive person in the room. The latter of the two events was the OpenForum Europe Summit in June. All other speakers just explained their companies' perspective on open standards or were academics who tried to present things in their way. Thomas was the only one to dismiss the European Commission's current draft European Interoperability Framework as completely insufficient. The others tried to be diplomatic. He wasn't, and he admitted right at the start of this speech that he wasn't going to be.

So much for restraint.

The idea that when he says something, the European Commission "does believe the same", is completely crazy. They know he's a lawyer who works for clients and defends their interests. They've disagreed with him often enough, and they've doubted often enough the things he says. You won't find any lawyer in the world whom a regulator (or a court) would trust unconditionally even if he doesn't present the slightest evidence.

Then another thing: what petition do you mean? Monty's petition related to MySQL? No one ever argued that the number of signatures should decide the case. Oracle had presented a couple hundred customer letters. If that was part of the case file (meaning of the overall collection of materials that were, or could potentially be, seen as evidence), then there was nothing wrong with Monty's petition either. In particular, Monty's petition form gave people the chance to enter their own individual comments that were meant to provide helpful information about the market.

why do you demonize corporations in public

I don't demonize anyone. Of course I had good reasons to believe that Oracle wanted to acquire MySQL only to remove a key competitive (and increasingly important) force from the market. That's not demonization.

If you read what I wrote so far about Oracle vs. Google, you can see that I also pointed out areas in which I'm uncomfortable with Google's strategy. So my views are balanced, how about yours?

It's just normal that major competition cases will also result in a public debate, especially if they have important economic ramifications. Oracle did several times more PR related to that merger case than Monty and I did. IBM is now doing a lot of PR about the mainframe case. That's just part of what happens. It doesn't change my belief that all those cases should be decided on the merits only.

the (staged) TH case

Come on, what's this? What is "staged" about it? Did IBM write those letters at Microsoft's behest? Did anyone forge those letters? Even IBM never claimed any of that. They tried to downplay the significance but the letters speak for themselves.

Also, do you think an open source project that started back in 1999 is simply a "staged" thing? It's a very well-respected project, and in 2002 it was even mentioned in an IBM RedBook. By calling this kind of thing "staged" you show that you have a pro-IBM bias, or a bias against me (which you've had for years as I know), or both. You won't convince reasonable people with absurd claims. If it were "staged", the European Commission wouldn't be formally investigating the case now on the basis of (among other things) TurboHercules's complaint. The EC knows how to tell staged matters from real issues. Unlike you.

Thomas Vinje is highly skilled but doesn't have a monopoly on the truth

Posted Aug 20, 2010 8:09 UTC (Fri) by rebentisch (guest, #69660) [Link]

All I said is that Vinje gets you into a Tobacco problem at the European Commission. That's your issue, not mine.

You don't fight in his weight class in the field of competition policy. You do not have a slice of his credibility and experience. When Vinje claims it then regard it as widely recognized "truth" on the corridors of Brussels.

As of the staged TH case you depict it differently, that is fine for me. I am not arguing about your commercial motivations because that's pointless as your remarks about Vinje. All observers can see TH is staged which is also fine, because these cases are usually staged. No one seriously expects a tiny SME startup from France, a non-praticing entity, to play in this league on its own and drive a multi-annual competition case.

Thomas Vinje is highly skilled but doesn't have a monopoly on the truth

Posted Aug 20, 2010 8:20 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

You're now getting off-topic by talking about "credibility". Sure, Thomas is a lawyer, I am not. Then I've got actual industry expertise, a quarter century of it. Don't compare apples to bananas. Or should we now talk about your "credibility and experience" in EU affairs as compared to mine? I move that we stay on topic and talk about the actual issues.

On the actual issues, it would be interesting to hear from you how IBM's letters and an 11-year-old open source project can be "staged". You just make the claim without substantiating it in any way.

All you say is that they don't have the resources to do it. The European Commission does not charge any fees whatsoever for lodging a complaint, nor for anything that happens thereafter. Zero fees. Sophocles accurately said 2,500 years ago that "in a just cause, the weak overcome the strong."

Thomas Vinje is highly skilled but doesn't have a monopoly on the truth

Posted Aug 20, 2010 9:13 UTC (Fri) by rebentisch (guest, #69660) [Link]

You are free to dress your claims about reality as you like. Don't expect anyone to buy into them.

On the actual issues, it would be interesting to hear from you how IBM's letters and an 11-year-old open source project can be "staged". You just make the claim without substantiating it in any way.

You would be taken more serious when your conversation was less sloppy: I didn't make any of these claims. Would you acknowledge that? Merci.

Thomas Vinje is highly skilled but doesn't have a monopoly on the truth

Posted Aug 20, 2010 9:19 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

You are free to dress your claims about reality as you like. Don't expect anyone to buy into them.

If I'm the only one viewing things like that, how do you explain the European Commission's thoroughly-considered decision to launch formal investigations?

You would be taken more serious when your conversation was less sloppy: I didn't make any of these claims. Would you acknowledge that? Merci.

If anything was "sloppy", it was your totally unsubstantiated assertion that the TurboHercules case is "staged". You were free to explain which part of the case is "staged". It's not my fault you didn't seize the opportunity before, but could you shed some light on that now?

I just pointed out that the competition issue at the heart of the case is real, the players are real, IBM's letters are real. I furthermore pointed out that there are no fees on the European Commission's part and to go from Paris to Brussels on the Thalys train takes less than two hours and then you can meet the Commission and talk. They will only grant you a meeting if there's a serious issue. In this case, there is. Serious enough to have given rise to formal investigations.

Sloppyness smells also tobacco

Posted Aug 20, 2010 10:00 UTC (Fri) by rebentisch (guest, #69660) [Link]

how IBM's letters...can be "staged"

I didn't claim IBM's letters to be staged.

...and an 11-year-old open source project can be "staged"

I didn't claim the 11-year-old open source project Hercules to be staged.

In fact whether both of them were staged is unrelated to my claim.

Sloppyness smells also tobacco

Posted Aug 20, 2010 10:25 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

OK, so by now you say you don't claim IBM's letters are staged; you don't claim the 11-year-old Hercules open source project is staged; you confirmed elsewhere in this discussion with "I see" that TurboHercules is a real company with real offerings, as evidenced by the corporate website (to make it even easier, this link leads directly to the offerings).

So what is your claim of "staging" then about, other than a cheap attempt to muddy the water with false claims? You never clarify. You just complain that, basically, your nonsensical claim is hard for reasonable people to make sense of. Come clean and tell us what's "staged". Or am I asking too much?

Common sense

Posted Aug 20, 2010 12:32 UTC (Fri) by rebentisch (guest, #69660) [Link]

A common perception is that TH is a company recently set up for the competition complaint as its business model. I share this view. You fail to convince me of your alternate teaching.

Known fact also support the common perception as well my private insights in a larger theatre of conflict.

* When was the TH set up?
* When and for what reasons was H published as open source (under the worst imaginable OSI approved license)?
* Did TH seriously expect to get an operating system license?
* Why did I.B.M. tolerate H for so long?
* Who is behind OpenMainframe?
* Furthermore, why are you so passionate to refute it? Why the drama? Why campaign against OFE? Why is TH's complaint framed as an OSS issue?

For instance opponents didn't believe that Opera launched the browser complaint on its own. I think they did, and it was a legally weak complaint. Hakon presented it at the OFE conference in Geneva that happened to coincide with the Open XML BRM in the same building. There is no reason for a small player (actually Opera is no SME anymore) to deny to have more powerful allies, except that suspected allies don't like the rumours because they get into trouble.

Common sense

Posted Aug 20, 2010 14:11 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

A common perception is that TH is a company recently set up for the competition complaint as its business model. I share this view. You fail to convince me of your alternate teaching.

It's really hard to argue with someone who behaves so unresaonably in a discussion. Just the part I quoted contains again a number of unfounded and unsubstantiated assertions, untrue also. Why a "common" perception? Apparently "common" doesn't include the European Commission, the Wall Street Journal, the Financial Times and so many other media? You say me I fail to convince you of something. In the past when I failed to convince you of something related to software patents, it was actually better for the cause that I didn't care.

You just ask a bunch of question. I'll answer them, but I challenge you to substantiate your claims. You called the TH case a "staged" drama, and after repeated requests on my end you haven't given any explanation as to why. On the contrary, whatever I said concerning the details of the case and the players, you basically had to acknowledge and then disclaim that you meant any of that to be "staged". Still you haven't said what is staged in any reasonably specific way.

I'll answer these questions, but I refuse to play a game of having to bring up more and more facts that convince reasonable people only to deal with a, say, person who simply doesn't want to be convinced no matter what I say. I do this here not for you but for the readers of LWN anyway.

* When was the TH set up?

I don't know the exact date, but I found this on their 'About' page:
Roger Bowler, Co-founder
Roger created the Hercules mainframe emulator in 1999. He lives in Paris, France where he works as a senior mainframe developer and z systems operator. He serves as the companys technical visionary and its liaison with the Hercules open source project.

* When and for what reasons was H published as open source

It was open source from the start in 1999.

(under the worst imaginable OSI approved license)

You say that from today's perspective but they made the choice a long time ago. It's not only OSI-approved but also FSF-approved by the way.

Proliferation of licenses is a general FOSS problem, can't blame such an old project for its tradition.

* Did TH seriously expect to get an operating system license?

There are two answers, and both of them I had already pointed you to, so your asking reaffirms my impression you don't want to understand.

1. I had given you the link to TH's offerings. That very page explains at the bottom that the operating system license is available, but currently limited to the use case of disaster recovery. Disaster recovery/business continuity is a pretty significant business model in IT by now. z/OS can be used for that purpose in accordance with the excerpt from the z/OS EULA as quoted on that page. TH indeed already conducts its business on the basis of being limited to disaster recover. There's a video available on that page showing a reference customer.

2. Apart from that, there's nothing unreasonable about the request for a license to z/OS in emulation. The European Commmission stated in its recent announcement that "IBM is alleged to have engaged in illegal tying of its mainframe hardware products to its dominant mainframe operating system." The Commission looked into these complaints for a long time and then decided to launch these antitrust probes. So reasonable people can indeed believe that it's fair and reasonable to ask IBM for a z/OS license on non-IBM hardware.

* Why did I.B.M. tolerate H for so long?

That's a question to put to IBM. I don't know the thinking of IBM executives. From the outside I can only try to come up with plausible explanations. When we talk about mainframes, we talk about highly mission-critical purposes and customers in that area need a company to turn to for professional support and similar services. So having TurboHercules versus just having Hercules alone makes a positive difference, just like Linux would never have become as successful in enterprise use at it has without companies providing specialized support.

The other factor I would imagine is the evolution of performance. If you look at the total number of MIPS you can build into an Intel-based system now and compare it to a mainframe, the gap has never been narrower. Thus the time has come for Hercules to become an interesting choice for a significant number of mainframe purposes. The software is mature and the hardware became powerful enough. Great combination.

* Who is behind OpenMainframe?

If you mean the openmainframe.rog website, you have to ask them. I'm not involved with it. They link to mainframe-related articles from all over the web. I sometimes use that site as a starting point for my own research. Occasionally they link to my blog, like so many others do. The idea of opening up the mainframe market is a good one if you consider the vast size of the market and the way IBM milks its customers, exploiting their $5 trillion lock-in.

* Furthermore, why are you so passionate to refute it? Why the drama?

I'm always passionate about refuting things if I believe I have acquired enough knowledge to do so and if it relates to what I do. Since my blog discussed the TurboHercules matter on multiple occasions, I care and I have done a fair amount of research. There's no drama. It's all about the truth that must come out now during the antitrust investigation.

Why campaign against OFE?

I don't "campaign" against OFE because they're OFE. I call them out on hypocrisy, also in connection with the contradiction between Oracle/Sun's Java Community Process and OFE's demands for open standards. OFE misses the point by talking only about one particular definition of "open standards" when the real issue facing the IT sector is that some de facto standards have emerged because of pervasive technologies and the question is what to do about them. The European Commission, in particular its vice-president Neelie Kroes, is well aware of that and sets the right priority with this initiative about de facto standards, about which OFE is conspicuously silent. I would view OFE much more favorably if they truly advocated openness all the way. I would, however, always be skeptical of OFE's chief executive because he lobbied for softwaer patents in the name of the open source community.

Why is TH's complaint framed as an OSS issue?

When TH's antitrust complaint was lodged, I didn't even comment on it. When I obtained IBM's threat letter (at a time when some others in the community did, such as Eric Raymond), I saw the patents-against-FOSS angle there. Now concerning the antitrust case, it certainly is a David vs. Goliath, free software start-up vs. proprietary monopolist, type of battle. TH is a FOSS startup, started by the founder of the FOSS project in question. IBM, as far as the mainframe legacy business is concerned, is at least as closed as Apple and much more closed than Microsoft.

There is no reason for a small player (actually Opera is no SME anymore) to deny to have more powerful allies, except that suspected allies don't like the rumours because they get into trouble.

I agree that if it helps to make the truth come out, there's nothing wrong with little guys getting help from bigger one with an interest in the same matter. I guess that generally there's now a lot of anticipation in the IT industry among IBM's various competitors (thinking of hardware as well as software companies) in capturing a part of a huge market(twice as big as the Linux-based software market), and we'll see if any alliances and/or investments result from that. The antitrust probes were launched just before the primary vacation month of the year, so it's not surprising that nothing hasn't happened yet. We'll see.

Common sense

Posted Aug 20, 2010 15:04 UTC (Fri) by rebentisch (guest, #69660) [Link]

When was the TH set up? I don't know the exact date, but I found this on their 'About' page: Roger Bowler, Co-founder Roger created the Hercules mainframe emulator in 1999. He lives in Paris, France where he works as a senior mainframe developer and z systems operator. He serves as the companys technical visionary and its liaison with the Hercules open source project.

You see what I mean, you try to mix H and TH up. Hercules is software from 1999. TurboHercules is a French company. I tried to look up TurboHercules.com in archive.org, no entry. You hardly find entries about Turbohercules before 2010. When you look carefully you find this: http://www.linkedin.com/companies/turbohercules Founded in 2009. The site also claims a link of the company to http://www.syspertec.com/ - Company TH is registered and requests an operating system license from I.B.M., then files an antitrust complaint against big blue.

Common sense

Posted Aug 20, 2010 16:51 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

you try to mix H and TH up. Hercules is software from 1999. TurboHercules is a French company.

It's not me conflating the issues, it's a problem with others trying to artifically separate them.

TurboHercules, an undertaking according to EU law, lodged the complaint. But what IBM does affects the Hercules open source project just to the same extent. TurboHercules's software is 100% the Hercules open source project. IBM doesn't allow the execution of z/OS on Hercules regardless of whether TurboHercules is involved or not. IBM claimed patent infringement related to the emulator, and the emulator is the open source project and nothing else.

I tried to look up TurboHercules.com in archive.org, no entry. You hardly find entries about Turbohercules before 2010.

I firstly saw the webiste last year. Also, their first letter went to IBM in July 2009. But the antitrust complaint was filed in March 2010. So we talk about them having tried for eight months to resolve this amicably with IBM. Quite a lot of patience.

You made a very strong claim: you said and never retracted that it's a "staged" drama. But you don't back up a strong claim with strong facts. All you talk about is when they were founded -- undoubtedly in 2009 at the latest given they wrote their first letter to IBM on company stationery in July 2009.

The history of the open source project -- since IBM doesn't treat that one any better than it treats the TH company and since such companies are essential parts of the FOSS ecosystem (and fully respected unter free software and open source rules) -- is definitely important. Monty started MySQL's development in the 1980s, first released it publicly in the mid 1990's, and founded MySQL AB finally in 2001. So there's nothing unusual about the TH company being founded -- by its Monty equivalent -- many years after the FOSS project. In TH's case, it makes particular sense because of something I explained before: ever more powerful Intel-based hardware has meanwhile enabled the system to master pretty significant workloads.

Common sense

Posted Sep 3, 2010 0:07 UTC (Fri) by nix (subscriber, #2304) [Link]

Does nobody know how to use whois anymore?

Creation Date: 18-Feb-2009
Expiration Date: 18-Feb-2011

It is unlikely that the company existed much before that, given that they are in a field where a website is de rigeur.

Common sense

Posted Aug 20, 2010 14:14 UTC (Fri) by foom (subscriber, #14868) [Link]

The drama *I* don't get is why there seem to be so many people who are so anti-TurboHercules/anti-FlorianMueller...AFAICT he's just defending himself against unsubstatiated innuendos and falsehoods.

Facts as I understand them, not having heard of this situation until this thread:

*1* Hercules has been around for at least 10 years, 9 years under the Q public license (an open source license)
http://web.archive.org/web/*/http://www.hercules-390.org/
http://web.archive.org/web/*/www.conmicro.cx/hercules/
*2* TH was recently formed [this is not a secret, it says so right in the first letter to IBM!], and desires to sell solutions involving running the proprietary IBM mainframe OS on the open source Hercules software. This doesn't seem outlandish.
*3* However, that's not allowed by IBM's license for their proprietary software -- you're only allowed to run their OS on their hardware.
*4* So, TH politely asked IBM for a different license that would allow the use of the OS on the Hercules software [first letter]. IBM says no (unsurprising), but also threatens TH by stating that part of the reason they don't want to is because Hurcules infringes IBM's patents. [second letter]
*5* TH says: WTF, patent violations, seriously? [third letter]. IBM says yes, look, here they are, and BTW...remember PSI? We destroyed them. [fourth letter]
*6* TH starts a claim of anti-competitive behavior with the EC claiming illegal tying by the monopoly provider IBM of their OS with their hardware. [fifth letter] I'd tend to agree, based purely on general outlines of the situation. (Of course, such tying isn't illegal unless you have a monopoly!)

Letters: http://openmainframe.org/legal/2010-turbohercules-europea...

> * Did TH seriously expect to get an operating system license?

Did they expect to get a positive response to the first letter? I have no idea, but I'd guess probably not. I suspect they probably figured all along they'd have to coerce IBM through antitrust regulations to license the OS for use on other hardware. But of course they had to ask first...

But what's wrong with that? Allowing companies like TurboHercules to exist is exactly what the antitrust regulations are *for*! And that doesn't make the antitrust complaint a "business model" -- it's just a prerequisite to doing business. The business model is quite clear: selling mainframe emulation solutions based on Hercules.

> * Why did I.B.M. tolerate H for so long?

Well, this seems obvious now: if anybody tried to use Hercules to actually compete with IBM's offerings, they would simply threaten those people with a patent lawsuit and software license violations for IBM's OS. So there was basically no harm to IBM in letting Hercules, the open source project, exist, so long as nobody showed any signs of using it to compete with IBM's mainframe hardware business.

Now that someone is, IBM brought out the patent threats...

Common sense

Posted Aug 20, 2010 14:28 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

Thank you for your support. You make some good points there and I just answered those questions in detail and posted my detailed reply about a minute before you posted yours.

The drama *I* don't get is why there seem to be so many people who are so anti-TurboHercules/anti-FlorianMueller...AFAICT he's just defending himself against unsubstatiated innuendos and falsehoods.

Thanks for this support in particular. If you look at who writes those things, it comes down to a very few user names: Wol, vonbrand, rebentisch. Wol has made himself ridiculous by claiming a patent infringement isn't a patent violation, and he's a big-time Groklaw user. I also saw a "vonbrand" profile up on Groklaw but the name isn't familiar.

There are also many reasonable people on Groklaw. However, that "PJ" (who has never spoken up at an industry conference or anything like that, so she must have something to hide) has misled her fanboys. More and more reasonable Groklaw people realize PJ sometimes simply lies. Her false but now definitely refuted claim that I wanted to un-GPL MySQL is a perfect example of a lie, and she furthermore lied about me in connection with the Munich Linux migration (she claimed that I lied about it, although I only told the truth, and blamed things on me I was never responsible for). And I could give examples of where she even misstates one of the most basic aspects of the GPL.

"rebentisch" is an activist with the FFII. The FFII started the resistance against software patents in Europe, but that wasn't his achievement. He always opposed what I did, but ultimately my strategic impulses played a role in getting the EU software patent bill rejected. So one might almost conclude that it's always best to want the opposite of what he wants. More importantly, he was involved with some of that "open standards" lobbying, and the people and organizations in that field are pretty much IBM-aligned because IBM contributes more funding to that kind of activity than any other company. Note that I'm for truly open standards. I'm just against open double standards and explained that in the posting I already reference at the start.

So the opinions expressed by those kinds of people here aren't representative of how the wider community feels. Believe me, your common sense approach is much more widespread than a discussion like this might show. But let's be patient: the European Commission has already taken a very important step by launching antitrust probes, and the longer it takes, the more lies we can expect from the usual suspects, but at the same time, more and more of the truth will come out and ever more people will realize that some people didn't tell them the truth. I have enough patience and perseverance, but again, it feels good to be supported already now.

Common sense

Posted Aug 20, 2010 14:47 UTC (Fri) by spaetz (subscriber, #32870) [Link]

Oh what a drama! See, I don't know anything about Hercules/TurboHercules or you and I don't have anything for or against you. But that constant bickering and noise here are enough now. This is not slashdot where I can easily filter out a 1000 comments. It is apparent to me that the involved people here are not interested in changing their point of view, why don't you all shut up for a while and go outside for a bit.

>However, that "PJ" (who has never spoken up at an industry conference or anything like that, so she must have something to hide)

I don't have anything against you (besides that the noise annoys me), but THAT argument is undue and indecent and lets you be my #2 in my plonk list. Sorry dude, I have never spoken at an industry conference either and would prefer to keep it that way, so I must have something to hide as well. Even if a person choses to remain completely anonymous and even if she were totally fictious, that doesn't make her information or analyses less interesting or credible (if backed up by facts). And before you put me in some groklaw corner, I visit that page every 2 months and have never posted there.

Common sense

Posted Aug 20, 2010 16:18 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

But that constant bickering and noise here are enough now.

I understand what you mean, but please appreciate that all the time I've been just responding to what others brought up, debunking Groklie after Groklie (which doesn't necessarily make the people who were misled liars -- at least some of them were undoubtedly sincere).

All I had said in my second reply far up above was that the European Commission's decision to launch investigations shows that it wasn't as pointless as some claimed. I didn't even want to address any details because that simple statement stood on its own. Certain people then raised detail after detail, and I reacted.

It is apparent to me that the involved people here are not interested in changing their point of view, why don't you all shut up for a while and go outside for a bit.

Sorry, but if you rethink this, you may notice all by yourself that this is flawed. There's a large audience that gets the chance to hear the opposing points of view and form an opinion. Some have in fact expressed appreciation for that opportunity, right here on this page. What you say would mean that there should never be a debate in any of the houses of US Congress, and it would do away with the vast majority of all TV shows. The participants in those debates won't change their points of view either, but there's value to an audience interested in the subject.

THAT argument is undue and indecent and lets you be my #2 in my plonk list. Sorry dude, I have never spoken at an industry conference either and would prefer to keep it that way, so I must have something to hide as well. Even if a person choses to remain completely anonymous and even if she were totally fictious, that doesn't make her information or analyses less interesting or credible (if backed up by facts).

OK, so please forgive me if I you are a public figure and I just didn't recognize your user name here. For now I assume that you are not. Therefore, your decision not to speak at industry conferences is a totally different thing than if you talk about a person like PJ.

PJ is the only public figure in FOSS never to have spoken at an industry conference nor to have disclosed her professional track record (former and current employers).

I will admit that for the sake of brevity I didn't add that there's no information about her biography that's available. That combined with her absence from public events is even more unique. My track record is well-documented and I think it's reasonable to expect that of people who have a certain level of exposure in such debates. It's a matter of transparency. There must be a balance between transparency and privacy, and where the balance is struck is very much related to the exposure someone gets (and utilizes to influence opinion-forming processes). In your case that may be the right one; in my case it is; in PJ's case it definitely isn't. It does raise serious questions.

What you say about whether things are less interesting or credible (if backed up by facts) is true at first sight, but too idealistic. Please take into account that there are a number of fanboys who are basically brainwashed by her, to varying degrees.

Of course I always want to focus on the facts. If you look at the things I wrote in this discussion here, you can see it's about 99% about the issues and only 1% about such credibility matters.

Common sense

Posted Sep 3, 2010 0:10 UTC (Fri) by nix (subscriber, #2304) [Link]

PJ is the only public figure in FOSS never to have spoken at an industry conference

That's utter and complete rubbish, unless you define 'public figure' so narrowly that it excludes virtually everyone but Linus (or perhaps you define it it mean 'people who have spoken at industry conferences, plus PJ').

There are a good few shy people in this field, y'know. Some of them run significant free software projects. But perhaps that doesn't make them 'public' enough.

Common sense

Posted Sep 3, 2010 3:38 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

If you had provided examples of leaders of significant projects who've never appeared at conferences, it would be clearer what your definition of "public figure" is.

In my opinion, one key criterion is whether people influence political debates aggressively.

Someone who contributes code and uploads it to a repository -- or moderates/maintains such a code base -- may do something very important but isn't necessarily a public figure unless the project really is as world-famous as Linux, MySQL, Apache and a few others.

PJ doesn't do any of that. What she does is political activism and in that area I don't know anyone else hiding like that. She comes up with conspiracy theories about others but never even presents herself, meaning there may be very very interesting things that would come out the moment she'd take the risk of anyone identifying her because of some direct or indrect connection with something or someone.

Common sense

Posted Sep 3, 2010 21:27 UTC (Fri) by nix (subscriber, #2304) [Link]

Or, alternatively, she might simply be shy. She's said as much more than once.

But perhaps you'd prefer to believe your conspiracy theory than someone's words. You really are more like PJ than you realise :/

Misanthropy

Posted Aug 20, 2010 16:34 UTC (Fri) by rebentisch (guest, #69660) [Link]

You see, you incite drama, argue in a sloppy way and then you go ad hominem.

He always opposed what I did, but ultimately my strategic impulses played a role in getting...

I am sorry for you.

The reader above confirms the dominant narrative: That TH as a company was set up for the very purpose to go after IBM's mainframe business. We may differ whether we think TH management was naive or knew the escalation process leading to an antitrust process in advance. I don't see why you have to oppose that so fiercely... Nothing wrong about it, you are free to tell alternative stories and convince the relevant stakeholders. Good luck! I could not care less.

Misanthropy

Posted Aug 20, 2010 16:56 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

The discussant you refer to supported my views to a hugely greater extent than yours. Your claim is a "staged" drama, and for a strong claim you present nothing in terms of strong facts. Not even strong indications. All you have is a time line, and I just explained in this comment that since IBM doesn't treat the Hercules open source project any better than it treats the TH company, we talk about an 11-year-old project, even if a young company then lodged the complaint, after eight months of trying to work things out with IBM.

I explained that MySQL took even longer from the start of the FOSS project to the foundation of the MySQL company. Just like in TH's case, the founder of the project also founded the company.

Selling Popcorn

Posted Aug 22, 2010 17:43 UTC (Sun) by rebentisch (guest, #69660) [Link]

The discussant... supported my views to a hugely greater extent than yours.
The discussant didn't understand why you get opposition (because you attack anyone for unknown reasons) and had his independent thoughts.

You are free to share your views, but others enjoy the same freedom. If you feel rightious, as food for thought:

What would be the role for you in that? In other words, when it is not staged why do you sell popcorn?
Do you consider to be misled? For which purpose do you oppose the idea so fiercely that it would be staged?

Two reasons why

Posted Aug 22, 2010 17:54 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

To answer all of your questions at once (because they're overlapping and I can't see why you have two bullet points), there are two reasons for which I help shed light on the issue.

One, I was the first one (although just by coincidence) to publish IBM's threat letter (Eric Raymond was also about to do it) and that's why I get blamed by some for whatever "Groklies" some have been told about the TurboHercules case. So this is about the appropriateness and accuracy of my blogging.

Two, I'm indeed very sympathetic to TurboHercules's situation because it's exactly the kind of destructive, anticompetitive use of software patents against FOSS that I always feared would happen. As you actually know all too well, others in our anti-software-patent movement criticized me back in 2004/2005 for talking too much about the threat software patents represent to FOSS. So it's a situation I've cared about for a long time, even when others said it should be positioned as only a small and medium-sized business (SMB) issue. I actually tried with my NoSoftwarePatents campaign to strike about a 50-50 balance between FOSS and SMB concerns. TurboHercules is both: it's FOSS and it's a start-up.

I repeat that you made strong claims and served extremely weak tea when asked to substantiate them. So far, the European Commission's view of the case is apparently very different from yours. When they deal with cases, they have case teams assigned to them (consisting of people with legal, economic and technical knowledge), and they have access to lots of material. It's surprising that you consider yourself in a better position to assess the case.

Two reasons why

Posted Aug 22, 2010 19:08 UTC (Sun) by rebentisch (guest, #69660) [Link]

The case will be decided by the competent competition authority, on the merits of the case. No rationale for public campaigning or partisan action.

Two reasons why

Posted Aug 22, 2010 19:14 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

I never said that my discussion with community members here on LWN is campaigning or whatever else one might consider to be a means of influencing the process. I'm all for due process. I just explained what I did and why, and my thinking.

Common sense

Posted Sep 3, 2010 0:05 UTC (Fri) by nix (subscriber, #2304) [Link]

Horst von Brand is a regular here. He's generally reasonable: what he says is worth listening to.

As someone with no dog in this fight (but a strong loathing of software patents and newSCO) both PJ *and* you come across as, bluntly, willing to discard tact and at times common sense in the pursuit of your goals, and you both seem very prone to accusing others of conspiracy without providing proof... In your case I suspect some of this is a language barrier. In PJ's case I suspect the paranoia comes from SCO *actually* conspiring against her (which would make anyone paranoid), and the assumption that the enemy of her enemy must be her friend in all matters (obviously fallacious as far as I can see).

Thomas Vinje is highly skilled but doesn't have a monopoly on the truth

Posted Aug 20, 2010 9:05 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

I must add that you just made a really outrageously malicious claim by calling TurboHercules a "non-pra[c]ticing entity". It's a real company as you can see on their website with real offerings. The only thing that prevents them from doing business on a much larger scale is IBM's anticompetitive tying of IBM hardware to the z/OS operating system. So what you say is not only a lie but also despicably cynical.

I like the smell of NPE in the morning

Posted Aug 20, 2010 9:31 UTC (Fri) by rebentisch (guest, #69660) [Link]

So what you say is not only a lie but also despicably cynical.

You ought be careful to accuse someone of a "lie", at least in my jurisdiction. You are free to replace "NPE" by a less politically correct term, then there is no need to argue about the "P".

It's a real company... with real offerings. The only thing that prevents them from doing business on a much larger scale is...

I see.

More details on the way I was misquoted about MySQL/GPL

Posted Aug 16, 2010 7:59 UTC (Mon) by FlorianMueller (guest, #32048) [Link]

I had replied to those MySQL/GPL stories here before, but I now wanted to provide this link, which leads directly (as part of a posting discussing Oracle/Google licensing issues) to a detailed explanation and conclusive evidence that I consistently argued AGAINST -- NOT FOR -- a MySQL license change. I don't blame those who trusted the wrong source. But the source was lying through her teeth, accusing me of the opposite of what I actually did (same thing about Munich's Linux migration, which I addressed recently).

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 21:02 UTC (Fri) by hingo (guest, #14792) [Link]

I had already decided to stay away from this thread, but since it goes directly back to the Oracle-Sun merger case, I will make a few statements to complement Florian.

Disclaimer: I'm currently on a long paternity leave from Monty's company, where we develop MariaDB, a MySQL fork. Before my leave I worked as COO and worked together with Florian during the process. We used Florian as our EU competition policy advisor, for one because he is a leading expert in Europe in this area, but also because he worked with MySQL AB and thus knew the history very well. (Better than most other "advisors" I saw in Brussels, have to say.) The position paper discussed on Groklaw and now here was mainly authored by Florian and submitted in our name, as part of this engagement. We only retained Florian for some specific occasions, on and off, the other submissions were mainly authored by myself, using Florian's initial crash course into competition regulation best I could. (We are a small company, so this was the best compromise solution for us.)

At the moment there is no affiliation between Florian and myself or our company.

Then for the comment: Hm. PJ's criticism appeared to be that you were trying to get the license of MySQL changed away from GPL. At least that's how I understood her.

Like Florian already said, this is what PJ wants you to understand, and it is completely wrong. The position paper is public, and you can see we do not endorse license change as something that would solve competition concerns. Since this became such a hot topic, I once reviewed everything we submitted to the EU, including the documents not written with Florian's help, plus the email exchanges with PJ, plus email exchanges with Eben (Oracle didn't allow Carlo to talk to us, so no email exchange there). I can honestly say in these documents we never proposed to anyone that changing the license would be a good solution to the problem. Like Florian says, it was not something we even could have done, but since we at times acted without his advice, it is of course possible we could have written silly things too. We didn't. We consistently advocated that Oracle shouldn't be allowed to own MySQL, period. Also very close to the part that PJ selectively quotes, we immediately said that changing the license still wouldn't solve most of the problems. (Arguably, it would have changed one of many problems, see below.)

The back story to how this debacle erupted is as follows:

1. Oracle had said to the EU that it doesn't really matter who owns MySQL, because it is open source, so they should get to keep it.

2. As part of standard procedure, EU asked competitors and customers what they think of this. In fact, Oracle had specifically mentioned our company and our fork of MySQL as proof that they are right. This was the main reason how we ended up in this in the first place.

3. While emphasizing that competition is mainly about other things that some code existing under some license (such as active marketing and sales organization) we explained to the EU that Oracle's statement is wrong, we explained about MySQL's dual licensing model, etc. Essentially what we tried to say was that the GPL is not the same as public domain. We used as example other Sun software which are under the Apache License to illustrate how Oracle's claim actually would be more true if MySQL was available to everyone under such a license too.

...but we never wrote anything that said a different license is something we wanted. In fact in the first round of submissions the EU specifically asked for things that are problematic from a fork's point of view. We gave a very long list (such as MySQL's manual is not open source), but the GPL is not on this list.

PJ had access early on to these documents, and she had access to me by email. I have no idea why she chose to attack us - on the other hand it took me completely by surprise that many other people also came out and said that Oracle is this lovely open source company that will never do anything bad to MySQL or other Sun software.

Carlo's blog post suggests these people were approached by Oracle and selectively shown things from the documents EU collected (these where confidential and only available to Oracle). Carlo seems to have made his decision under the impression that the EU was working against Oracle only because Microsoft and Monty Program in some kind of partnership opposed the deal and everyone else loved it. In reality it is more likely the EU started the investigation because all four of Europe's biggest ICT companies were against it. (One was neutral in opinion, but factual answers indicated major competition concerns for them too.) It seems in Carlo's blog post he has not seen these submissions, and access to this information was completely controlled by Oracle.

...or there could be any other explanation. As for Groklaw, her expertise seems to be in how the US judicial system works, which was very useful in the SCO case since that was mostly about abusing that system. This case was a) in Europe, b) not a court case anyway and c) about MySQL, none of which she should know much at all about. As far as I know she made her decision mostly based on trusting other people she talked to and not trusting me. (And this seems to be a pattern at Groklaw, so it makes sense.) Oh, and there is the fact that Monty was on the advisory board for the Codeplex Foundation, which at Groklaw is proof that you are a bad person.

(Trivia: Windows is still today the most popular development platform for MySQL, and AFAIK also PHP and most popular PHP apps. One explanation probably is that web developers need to test with Internet Explorer.)

Since I ended up writing anyway and I know nobody will read my blog post Florian referred to, I might as well add that: 1) It was written some time ago completely unrelated to todays discussion. 2) I'm not aware of any public statement or writing from either Eben or SFLC that would tie them into the same kind of "Oracle is a good home for Sun's patents" motivation that Carlo mentions in his blog, but 3) without naming names, it is true from private conversations that Carlo was not the only prominent FOSS lawyer to hold that view, he was just the only one blogging it. The point of my blog post was not to name names, rather that I observed a dividing line in that our lawyer friends (and a paralegal) tended to side with Oracle while hackers also outside the MySQL sphere sided with keeping MySQL free.

Regarding Carlo I've always emphasized that as a lawyer he is free to work for any client that needs his FOSS expertise and this doesn't make him more or less a friend of FOSS, it is just what he is supposed to do as a lawyer. I can honestly say I wish Oracle had let him help them even more, we will never know if the painful process could have been handled faster in that case.

Henrik Ingo
formerly Monty Program COO, now Dad

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 16, 2010 10:53 UTC (Mon) by guest (guest, #2027) [Link]

"... Henrik Ingo"

PJ's reply (see "you can't just ignore it" comment to http://www.groklaw.net/article.php?story=20100813112425821 ):

"Authored by: PJ on Saturday, August 14 2010 @ 11:30 PM EDT

It was Ingo who sent me the documents that I quoted from. I didn't make them public at the time, because he asked me not to. But if he continues to misrepresent the truth, I surely will. Normally, if I give my word, I keep it. So this is fair warning that I will publish if he continues to lie about it and about me.

Here is the article where I quoted just the pertinent section, in any case, so you can see what they wrote to the EU Commission for yourself:

And here's the article that began the discussion. Now read what Ingo wrote, and see if it matches:

"Like Florian already said, this is what PJ wants you to understand, and it is completely wrong. The position paper is public, and you can see we do not endorse license change as something that would solve competition concerns. Since this became such a hot topic, I once reviewed everything we submitted to the EU, including the documents not written with Florian's help, plus the email exchanges with PJ, plus email exchanges with Eben (Oracle didn't allow Carlo to talk to us, so no email exchange there). I can honestly say in these documents we never proposed to anyone that changing the license would be a good solution to the problem." "

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 16, 2010 11:56 UTC (Mon) by hingo (guest, #14792) [Link]

Yes. Someone already emailed me that.

I never comment on Groklaw, the level of correctness is too low a starting point to bother (hence, prefer LWN :-). For instance in those comments someone claims that Miguel de Icaza is a Microsoft employee, and this isn't even corrected by anyone else (last time I checked). If someone wants to spend time educating the Groklaw community, this would probably be valuable, but I won't volunteer.

In any case, I don't have anything to add to what I already wrote. Perhaps I could add that when I originally shared those documents with a few selected journalists that I believed to be potentially FOSS friendly, it was just to provide them information of what the EU was asking and what we were responding. At that point it was not our intent to make any public statements or even become heavily involved, my effort was just intended to provide a little bit of background. Since the EU process was totally confidential, the online discussion was mostly also dominated by lack of information more than anything else and this was problematic since the open source community generally benefits from access to information and transparency. (So for instance this whole discussion of GPL and other licenses was not at all core to what the EU was even interested in, regardless of which side you decide to believe in here.)

Ah, now I remember. What triggered me to send that first email was a column by Stephen J Vaughan Nichols EU takes on Sun/Oracle. I had also asked Stephen not to quote me but just use the material as background info. Apparently I was unclear in my messaging as the next day he did exactly that in Why the EU should block Oracle/Sun.

The email I sent to PJ is an exact forward of what I sent to SJVN. Note that SJVN's response is titled "Why the EU should block Oracle/Sun" not for instance "Why the EU should change the license on MySQL" :-) Looking at it now, the email doesn't even discuss the topic of "license change", the whole discussion came to us from somewhere else.

I should also again emphasize that in all of what I've written in this comment and the above one, I am not trying to attack or criticize Groklaw in any way. I know there are accusations that Groklaw is paid by IBM (or even Oracle, belive it or not) and I've never made such accusations. Even if she had gotten some money from a proxy such as OSDL (see link by Florian in this thread), I still don't think that is important. It is perfectly normal that people write such things purely out of conviction and she's not alone. So after the SCO case wasn't interesting anymore, I haven't followed the site and that's that. The site I do follow and actively comment on is LWN, and I wanted to make one comment to defend myself so that false information doesn't spread here.

During the process much sillier things were said about Monty and our company than what PJ said and the best thing to do was to ignore them. Due to lack of information most bloggers had no clue what to write of the Oracle-Sun thing, and PJ was not worse than many many others. On the contrary, thanks to its "crowdsourcing" community digging for truth, Groklaw at least towards the end of the process, after 5+ months and several pro-Oracle blog posts got close to the real issue relevant to this discussion when I read in one blog post "Update: [groklaw member] pointed me to this page, with the MySQL FOSS exception. I don't yet know what it means, but it looks rather generous." (paraphrased, I cannot actually find that on groklaw anymore, but I remember it vividly so that is an approximate quote.)

Which is to say, among bloggers, Groklaw was in this case probably average or better, but they were still wrong, so I wish we could stop repeating that information now.

Apparently I still had more to say... I apologize. This really isn't something I like spending time on anymore.

Definitively debunked the myth that I ever tried to un-GPL MySQL

Posted Aug 16, 2010 7:54 UTC (Mon) by FlorianMueller (guest, #32048) [Link]

PJ's criticism appeared to be that you were trying to get the license of MySQL changed away from GPL. At least that's how I understood her.

You accurately describe what she wrote, but she was lying through her teeth because I did the very opposite. I just decided to adddress that subject on my blog as part of an analysis of different Oracle/Google licensing issues.

This link gets you directly to the part of the licensing issues analysis in which I provide lots of detail and links to several documents that serve as conclusive evidence that I argued AGAINST -- NOT FOR -- a MySQL license change.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 7:51 UTC (Fri) by janpla (guest, #11093) [Link]

You seem to imply that Oracle is big and evil, while Google is not?

I don't agree with that at all - in my view, Oracle actually do a very decent job: they let people download their database and other SW, they run their business in a very professional way, their products are of good quality and well worth the money. They also support open source.

Google, on the other hand, appear to be less than completely honest with the public. I came to distrust them quite early on - their slogan about "... no evil..." was a little bit too glib, but what really put my off was the way they, at least at the time, put sponsored searches at the top without clearly telling so. To me that is no better than lying - maybe it is because I work with databases, but when I search for something, then I want to find what I am looking for, in order of relevance, not just some deceptive crap.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 8:05 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

I can assure you that I also have a critical perspective on some of what Google does. I have just put out this blog posting on the Oracle-Google dispute, which also mentions that many Android-based devices don't comply with open source rules and I raise the question of whether Google will only protect itself or the entire Android ecosystem. That said, I still think it's appropriate to rally behind Google here because Oracle is the aggressor.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 9:40 UTC (Fri) by dgm (subscriber, #49227) [Link]

Nobody is really "evil". But actions can be. What is implied, IMHO, is that what Oracle is doing _is_ evil.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 10:27 UTC (Fri) by mordae (subscriber, #54701) [Link]

> Oracle actually do a very decent job:
> their products are of good quality and well worth the money.

Have you *ever* actually administered the Oracle DB? The single most important application of that company. Their *flag ship*. It's total monstrosity, stinking pile of crap, definitely worst piece of software I've ever encountered. It's so not worth the money.

Mostly because they completely ignore rest of the world and do everything on their own. And they fail every time.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 11:21 UTC (Fri) by janpla (guest, #11093) [Link]

"Have you *ever* actually administered the Oracle DB?"

I have worked with the thing for well over 15 years now. I learned how to use, install, administrate, use the OCI etc etc simply by reading the manuals. The interface is the same on all platforms - that is one of the many things I like about it; you do things the same way whether it is on Windows, OS/2 or UNIX(es), even on MVS it is only as different as it has to be due to the system.

It seems to me that you are getting rather emotional - I wonder why?

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 13:32 UTC (Fri) by mordae (subscriber, #54701) [Link]

> I have worked with the thing for well over 15 years now.

It's not something I can say. I was administering it for 1.5 year.

> I learned how to use, install, administrate, use the OCI etc etc simply by reading the manuals.

Trying and reading manuals here. I also went to first two DBA courses and the RAC course. They taught me almost nothing new, just googling and trying was a lot faster.

> The interface is the same on all platforms

That is a standard nowadays. On the other hand, the "universal" installer of theirs is a monstrosity. Installer written in Java, that brings JVM along? Hello? No integration with OSes native packaging?

> you do things the same way whether it is on Windows, OS/2 or UNIX(es), even on MVS it is only as different as it has to be due to the system.

I've installed and administered it on Linux, AIX and briefly on Windows too. It is true, that in-database things are same. On the other hand, why should they be different anyway?

> It seems to me that you are getting rather emotional - I wonder why?

Try installing 10.2.0.4 with RAC and ASM on Oracle Enterprise Linux 5.2. Because they do not provide patched installer, you need to install 10.2.0.1 first. That one, however, did not know about 5.2 when it was released. Plus it did not open block devices with O_DIRECT, so temporary raw devices for OCR & VOTE and migrate later. vipca fails to configure network, so you have to do that manually after installing a fix right after installer puts the files in, but before you run root.sh.

Then the trouble with Enterprise Manager. Non-expectable behaviour of leaving backup jobs running when you CTRL+C in RMAN.

Plus installer and all graphical tools do not work very well over X11 forwarding, sometimes unexpectedly filling whole 100Mbps link. Oops.

And there also was this "bugfix" which required you to edit shell script of vip service. Tell me, why every script from Oracle have this structure:

#!/bin/sh
CAT=/bin/cat
TAIL=/usr/bin/tail
# ...
$CAT file | $TAIL -n 1

Ever heard of $PATH?

Plus the consistent inconsistency of all commands' options combined with lack of inline command help. No line editing or comfortable history in any interactive tool.

Oh, and the last one is really the coolest. The 11gR2 binaries are statically linked and oracle + RAC daemons + crs_stat (fine, now deprecated, but still) are each 1G large. That's not only disk space, but also a non-shareable RAM. 1G binary? Hello?

OK, I always wanted to say this aloud somewhere where people read it. Sorry.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 16:12 UTC (Fri) by butlerm (subscriber, #13312) [Link]

"Have you *ever* actually administered the Oracle DB? ... It's total monstrosity, stinking pile of crap, definitely worst piece of software I've ever encountered. It's so not worth the money."

For all the quirks and inconveniences, the core database engine is perhaps a dozen years ahead of everything else in robustness and flexibility. Oracle didn't become the worlds dominant large database by accident. Most databases are trying to catch up to the standard that Oracle set with Oracle 7 nearly two decades ago.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 14, 2010 9:33 UTC (Sat) by Wol (guest, #4433) [Link]

Make that most RELATIONAL databases.

Change database technology and you can get a lot of Oracle's robustness as a side-effect of not using FNF :-)

Cheers,
Wol

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 23, 2010 12:37 UTC (Mon) by trasz (guest, #45786) [Link]

Oracle is nice when it comes to performance and perhaps flexibility, but in terms of security and robustness it's crap. I was able to cause internal error during the first few hours of playing with it, and the security track record is horrible.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 16, 2010 14:01 UTC (Mon) by nye (guest, #51576) [Link]

>what really put my off was the way they, at least at the time, put sponsored searches at the top without clearly telling so. To me that is no better than lying

Oh please. There's never been any sane and serious argument that the sponsored links are indistinguishable from the search results. Your claim is simply trolling.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 9:03 UTC (Fri) by Karellen (subscriber, #67644) [Link]

"[Groklaw] always supports IBM"

I got the impression that Groklaw always supported FLOSS and the truth, over proprietary software and FUD. The fact that IBM currently supports FLOSS (as a hardware company, this makes sense for them) and has been laying off the FUD recently, means that Groklaw has had good reason to support IBM *so far*.

Do you have any examples of times where Groklaw has supported IBM *against* the interests of the Free Software community, or in favour of FUD? I follow it somewhat, and have not noticed any such examples. (But, I've not been looking that hard.)

"On my own blog I'll continue to call companies, other organizations and individuals out for their hypocrisy"

Oh, does that mean you're going to stop ran^H^H^Hposting here?

Off-topic, does anyone know if LWN subscribers have the ability to maintain a kill-file?

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 9:07 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

The fact that IBM currently supports FLOSS (as a hardware company, this makes sense for them) and has been laying off the FUD recently, means that Groklaw has had good reason to support IBM *so far*.

It was appropriate to support IBM against SCO. However, IBM clearly does use patents against FOSS in order to shut out competition for its mainframe monopoly. Groklaw said that IBM is "free to sue the pants off TurboHercules", and no genuine FOSS advocate would ever say that kind of thing.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 9:51 UTC (Fri) by rahulsundaram (subscriber, #21946) [Link]

"Groklaw said that IBM is "free to sue the pants off TurboHercules", and no genuine FOSS advocate would ever say that kind of thing."

Noone has the right to ever make that kind of claim either. FOSS advocates are a disparate group and often have differences of opinions on such things.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 10:30 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

FOSS advocates are a disparate group and often have differences of opinions on such things.

Pluralism is key. No doubt about that. But cheering on a patent aggressor against FOSS is clearly outside the boundaries of even the lowest common denominator in this community.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 16:33 UTC (Fri) by rahulsundaram (subscriber, #21946) [Link]

I view that statement as acceptance of reality. Simply put, nothing whatsoever stops IBM from suing if they want to and IBM is not a patent aggressor in that case unless they made the first move and filed a patent lawsuit. They never did.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 14, 2010 9:37 UTC (Sat) by Wol (guest, #4433) [Link]

Except that TurboHercules is NOT a FOSS *project*.

It's a commercial company set up to take advantage of IBM. Why shouldn't they defend themselves.

After all, IBM's *ONLY* "crime" against TurboHercules has been to say "we don't want to do business with you".

Cheers,
Wol

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 14, 2010 12:23 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

Except that TurboHercules is NOT a FOSS *project*. It's a commercial company set up to take advantage of IBM.

With this argument, Oracle Corp. is free to attack Google Inc., Microsoft Corp. would be free to attack Red Hat Inc., and JBoss Inc. or MySQL AB should never even have existed (before they were acquired) because at the time Sun Microsystems, Oracle Corp. and Microsoft Corp. should have just killed them with their patents.

I leave it to the readers here to decide whether there's any point in saying that a FOSS company, especially if it provides support for a FOSS program in a very professional context, isn't part of the FOSS ecosystem.

TurboHercules's founder, Roger Bowler, founded the Hercules FOSS project in 1999. TurboHercules's software is 100% the Hercules open source emulator. Both Hercules and TurboHercules's offerings are available for Linux as well as Windows; customers get to choose, just like with MySQL or Apache or PHP.

Why shouldn't they defend themselves.

What you call "defend", others call anticompetitive, destructive patent warfare. I leave it to the audience here to decide with whom to agree more. I'm comfortable that way.

After all, IBM's *ONLY* "crime" against TurboHercules has been to say "we don't want to do business with you".

That's absolutely wrong.

As I documented in this blog posting, based on the publication of all four letters exchanged between IBM and TurboHercules, there were two separate issues. One is the z/OS licensing question. IBM said No. That had nothing to do with the other issue, the patent threats. Those came out of the blue/Blue. Should Hercules infringe any of those patents (which would have to be proven), then it infringes them regardless of whether the operating system you run in emulation is z/OS or z/Linux. Those were just emulation patents, not operating system patents.

Even though the patent threat is therefore independent from the proprietary z/OS operating system, I would like to point out that the European Commission would not have launched its formal investigation (actually two parallel investigations) if TurboHercules had not had a point under antitrust law to ask for a way so that its customers could run z/OS in emulation.

So the way the process is going so far before an independent regulatory agency, I'm on the winning side and PJ on the losing side.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 14:15 UTC (Fri) by Karellen (subscriber, #67644) [Link]

"Groklaw said that IBM is "free to sue the pants off TurboHercules", and no genuine FOSS advocate would ever say that kind of thing."

Really, even if it that is a true statement?

My reading of that article[0] is that PJ has gone through all the patent pledges, emails, articles and other media, examined them in her professional capability as a paralegal, and come to the conclusion that there is no legal impediment to IBM suing TurboHurcules; i.e. they are free to do so.

Note that this is a completely different statement to whether or not she thinks that IBM *should* sue TurboHercules, or whether she thinks it would be good for FLOSS if IBM did sue them. It is interesting to note that according to all the available documentation, IBM have *not* sued or initiated any kind of legal proceedings or threats towards TurboHurcules at this point. That they have not surely is a tangible demonstration of their current support for FLOSS, and a reason why FLOSS advocates should (for the moment at least) give them the benefit of the doubt.

If you are aware of any valid legal reason why IBM could not sue TurboHercules, i.e. why they are not free to do so, could you please post a link to whatever rebuttal you have to PJ's points? (I scanned the comments, but could not see any posts by you there defending your position)

Or, if you are not so aware, are you instead suggesting that PJ (or other "genuine FOSS advocate") should lie and spread FUD, claiming that IBM are *not* free to do things that they, in their considered opinion, actually are?

I don't know about you, but as someone who believes in "Free Software", I would not want to be associated with such advocates.

[0] http://www.groklaw.net/article.php?story=20100408153953613

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 14:52 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

My reading of that article[0] is that PJ has gone through all the patent pledges, emails, articles and other media, examined them in her professional capability as a paralegal, and come to the conclusion that there is no legal impediment to IBM suing TurboHurcules; i.e. they are free to do so. Note that this is a completely different statement to whether or not she thinks that IBM *should* sue TurboHercules, or whether she thinks it would be good for FLOSS if IBM did sue them.

1. The headline is above the article as a whole and that one not only denies that there's a problem with the pledge (although there is) but also sides with IBM, suggesting that this is just a Microsoft scheme, which is irrelevant anyway for reasons explained here.

2. PJ grossly misrepresented and misinterpreted the pledge. It does have a defense clause, but it was never trigged by anything TurboHercules did, as I explained here. In a nutshell, an antitrust complaint couldn't have triggered the defense clause in IBM's pledge anyway because that one related to the specific scenario of (i) intellectual property (ii) litigation (iii) against open source, and not even one of those three criteria was fulfilled by an (i) antitrust (ii) complaint (iii) against IBM.

IBM have *not* sued or initiated any kind of legal proceedings or threats towards TurboHurcules at this point.

IBM's pledge didn't just say they wouldn't sue. It said they wouldn't assert, which is much broader, as I explained here. Clearly, suing isn't the only way to use patents in a malicious and pernicious manner. The fewest cases ever go to court.

If you are aware of any valid legal reason why IBM could not sue TurboHercules, i.e. why they are not free to do so, could you please post a link to whatever rebuttal you have to PJ's points? (I scanned the comments, but could not see any posts by you there defending your position)

I provided a few links and there's obviously more stuff on the TurboHercules matter on my blog, such as this posting on the entire correspondence between the two parties. There's also the ibmvshercules.com blog that the maintainer of the 11-year-old Hercules open source project set up. He strongly disagrees with PJ and talks about that fact on his blog.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 17:48 UTC (Fri) by Karellen (subscriber, #67644) [Link]

IBM's pledge didn't just say they wouldn't sue. It said they wouldn't assert, which is much broader, as I explained here.

and from the post:

I know that some people say that IBM actually just answered a question, and that the infringement they asserted was only hypothetical.

Hmmm....but they do own those patents in the area that TurboHercules asked about. How else should they have answered the question?

Should they have denied that they owned any patents in the area, which would be a lie? Don't tell me you wouldn't be ripping even more strips off them than you already are if *that* were the case.

Should they have ignored the question? At which point they'd have had strips ripped off them for failing to communicate in a reasonable fashion with members of the community.

I'll agree that pledging to "not assert" patents is much broader than pledging to "not sue over" patents, but I don't see how pledging to "not assert" must be equivalent to pledging to "deny all knowledge, irrespective of the facts".

Anyway, given that in your opinion IBM answered the question badly, how do you think they should have answered, in a way that is succinct, clear, open, true, and in line with their patent pledge?

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 17:59 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

@Karellen, as you can see, I'm happy to answer all the questions. One can argue whether this is on-topic or off-topic, but since Oracle vs. Google and IBM vs. TurboHercules are the two most important patents-against-FOSS issues, I can see a connection.

Anyway, given that in your opinion IBM answered the question badly, how do you think they should have answered, in a way that is succinct, clear, open, true, and in line with their patent pledge?

In this blog posting I discussed the chronology of events based on the correspondence between the two companies:

July 2009: TurboHercules contacts IBM about z/OS, a licensing question that is just a matter of EULA terms, nothing related to patents

November 2009: IBM basically says "no your customers won't be allowed to run z/OS in emulation, and it's not a matter of what you or the customers pay, we just don't want it" (by the way, I'm not aware of Microsoft prohibiting the use of Windows in emulation). But additionally, IBM also said: you infringe IP (= patents in this case). So IBM asserted an infringement before TurboHercules asked anything related to patents.

You talk about patents IBM has in that area. That's not even what TurboHercules asked in response to IBM's first letter. TurboHercules wanted to know what "IP" it was considered to infringe. Please imagine their situation: the Hercules open source project has been around since 1999, it was mentioned in an IBM RedBook (documentation material) in 2002, and then suddenly in 2009, after so many years without complaining, IBM claimed there was an infringement. As everyone here certainly knows, patents can be infringed unknowingly, while software copyright -- in practical terms -- is only infringed by knowingly copying something.

TurboHercules never doubted that IBM had IP in connection with the mainframe. But not having committed any wrongdoing and considering that IBM had not complained in a decade, they certainly were surprised and asked IBM to clarify what IP they might infringe. Then IBM sent the patent list.

TH didn't ask for a patent list. The term "IP" could have meant many different things in theory. That's why Richard Stallman rejects it by the way.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 14, 2010 9:42 UTC (Sat) by Wol (guest, #4433) [Link]

TurboHercules haven't been around for a decade to receive complaints!

With both patents and copyright, an owner is entitled to ignore (or even encourage?) certain uses. Certainly IBM didn't object to their customers using Hercules (a HOBBYIST, NON-COMMERCIAL TOY).

Then along comes TurboHercules, wanting to make money off of Hercules and IBM. OF COURSE they're going to object.

TH are naive, stupid, or malicious. Take your pick.

Cheers,
Wol

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 14, 2010 12:34 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

TurboHercules haven't been around for a decade to receive complaints!

TurboHercules's founder, Roger Bowler, founded the Hercules open source project in 1999. Neither he nor anyone he knows received any complaints during that decade. Since TurboHercules's software is 100% the Hercules open source project, we talk about the same patent issues (should there be any infringement, which would have to be proven), and no complaints in about a decade.

With both patents and copyright, an owner is entitled to ignore (or even encourage?) certain uses. Certainly IBM didn't object to their customers using Hercules (a HOBBYIST, NON-COMMERCIAL TOY).

Please don't forget that you're a hardcore Groklaw user and Groklaw opinion-leader, and here you're on LWN, an open source website. So in a way what you say here reflects on Groklaw, especially because you use Groklaw talking points on the TurboHercules case.

And what you say is a total rejection of the concept of software freedom and of most of the basic rights defined by both the Free Software Definition and the Open Source Definition.

You argue that patents can be used to restrict use. The same reasoning could be used so that Microsoft, Oracle, Apple etc. should use patents to prohibit the use of Linux on smartphones, doing away with Android at the same time, or that Oracle, IBM and Microsoft should have jointly killed MySQL and PostgreSQL a long time ago.

So much for what you said about the right to restrict or encourage uses with patents. The patents IBM listed aren't patents on IBM's proprietary z/OS operating system. They are patents that are either also infringed when z/Linux gets emulated or they're never infringed.

Now concerning copyright, as you can see, the European Commission launched a formal investigation because IBM is suspected of illegally tying its mainframe hardware to its z/OS operating system. So copyright holders certainly have to respect antitrust law. When the European Commission required Microsoft to provide a Windows version without the Media Player and to provide, document and license certain interfaces to Samba (and others), that also meant to impose rules on a right holder for the sake of fair and effective competition.

That's the rule of law. And since it is the rule of law, right holders aren't just expropriated without compensation the way an authoritarian regime could do it. The law says that in such cases the commercial terms have to be fair, reasonable and non-discriminatory. In other words: they will get paid, but they can't overcharge.

Certainly IBM didn't object to their customers using Hercules (a HOBBYIST, NON-COMMERCIAL TOY).

I had quoted this as part of the previous quote, but it's so fascinating that I have to quote it again here as a stand-alone quote. Is that what you're going to present as a pro-open-source point of view? Open source is OK as long as it's hobbyist and non-commercial? So the same for Linux, MySQL, Apache, PHP, everything?

It comes down to Groklaw's approach: Rule one - patents are bad and open source is good. Rule two - when IBM's patents are involved, patents are good and open source is bad.

TH are naive, stupid, or malicious. Take your pick.

I think you may have to make more facts-based postings if you want to steer clear of anyone using any of those attributes in connection with the content of your postings.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 19, 2010 0:37 UTC (Thu) by Wol (guest, #4433) [Link]

Rather than compare the "hobbiest toys" linux and Hercules, I'll compare the hobbiests Linus Torvalds and Roger Bowler.

Linus studiously avoids having anything to do with anything except Linux. He pays no attention to Windows, AIX or whatever. He just improves his "toy", with the result it is taking on the world on its own merits.

Roger, on the other hand, is paying an unhealthy amount of interest to what someone else (namely IBM) is doing. And (Turbo)Hercules is seriously suffering in consequence.

Cheers,
Wol

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 19, 2010 3:42 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

Rather than compare the "hobbiest toys" linux and Hercules, I'll compare the hobbiests Linus Torvalds and Roger Bowler.

For someone who touted on this very page his "native" English language skills your orthography leaves a lot to be desired. I'm not talking about a typo but about a mistake you made consistently (twice) in the part quoted above, suggesting that one might add your "native" claim to the long list of untruths you spread here.

If you don't know which spelling mistake I mean, look up a dictionary. It doesn't have to be the Merriam-Webster or American Heritage Dictionary since you reject those.

While you're at it, you might also want to look up the definition of "to assert" (something you raised elsewhere on this page). If you need help, there's a link in this posting.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Sep 2, 2010 23:18 UTC (Thu) by nix (subscriber, #2304) [Link]

The English are famous for being worse at spelling the English language than anyone else in Europe. Wol is just proving this.

(I'm a freak: English and can spell.)

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 21, 2010 9:27 UTC (Sat) by pdickey (guest, #69690) [Link]

I've spent the better part of two hours reading this thread. And I read the letters between IBM and TurboHercules as well.

IMHO, there are three things that you're overlooking (from my understanding of this entire case), although if I'm wrong about this, I'd like to see direct clarification (quotes from reputable sources like a licensing agreement).

1. IBM, in their initial response didn't assert patent infringment upon the Hercules project in general. They were suggesting that TurboHercules' implementation of the emulation would be infringing (why? See my #2)

2. In IBM's licensing agreement (from my understanding, and I'm too tired at 0354 to dig the information out for sure), you are allowed to emulate their OS on non-IBM hardware for certain limited uses (disaster recovery, for example). TurboHercules wants to expand that (and change the licensing agreement) to mean that you can run their OS on non-IBM hardware for any reason at all.

3. "Third, we do not see how your product contributes to our business, and IBM offers product and service solutions ourselves for all of the situations you mention in your letter, including training, demonstration, pre- and post processing, data preparation, disaster recovery, archiving, development, and testing. In fact, we would be concerned about loss of functionality and quality that could lead to customer disatisfaction mongst licensees of IBM operating systems."

My amateur interpretation of that quote is this:

"You're suggesting that people may want to use our operating systems in certain fashions. We already provide them a means to do so. So, why should we go into a partnership with someone else to provide something that we are already providing? Plus, if people have problems with YOUR product, they will blame US, because in their eyes, they're not using a TurboHercules product. They're using a licensed copy of our operating system."

In other words, it's like people saying that it's Microsoft's fault that their video card broke. Or more accurately (since this is an Open Source forum), it's like people bitching that it's Ubuntu's fault that their ATI video cards don't work properly (when it's AMD that won't provide the proper drivers for the card).

As for Groklaw, yes I do find some of the points there a little extreme. I don't think that Microsoft is necessarily behind every bad thing in the world (but I do think that as far as tech goes, they aren't upset when the bad things happen to their competitors-- just like any company wouldn't be upset).

That being said.....

She puts up the facts. She links to them, so you can read them for yourself. You are free to form your own conclusions, whether they agree with hers or not. But, she's also free to post her opinions about the facts. After all, you post your opinions about the articles you're writing about (I know I do).

I've learned a few things from Groklaw that aren't just the latest happenings in the legal and tech world... I've learnd that I'm not a lawyer, and I have no desire to become one. I've learned that laws (as they're written) and lawyers make absolutely no sense in the world. And I've learned, especially from reading the ramblings by SCO's lawyers, that Motrin doesn't always cure the headache that I got reading court filings.

And I've learned that you don't have to agree with her. In fact, as long as you do so respectfully, you can tell her you don't agree. You said you've got reams of proof that she censors, and I'll raise you reams of proof that she doesn't (you can find it all on the site). I'm willing to bet if you dig into the site, you'll find comments that disagree with her and other commenters. But, you'll also find that they were respectful of her position on the subject.

Anyhooo, I'm off to bed. (I realize that statement blew what little credibility I have on this site, but oh well. I'm too tired to care).

Have a great weekend:)
Patrick.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 21, 2010 13:06 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

You made a long and thoughtful comment and raised many questions. My comments:

1. IBM, in their initial response didn't assert patent infringment upon the Hercules project in general. They were suggesting that TurboHercules' implementation of the emulation would be infringing

TurboHercules's implementation is 100% the same software the Hercules open source emulator. We're not talking about a different emulator.

In its first reply to TurboHercules, IBM wrote: (quote) 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. (end quote) While the word "Turbo" appears there, absolutely everything that is said -- the implementation of the instruction set of the mainframe CPU on Intel-based servers -- relates to the Hercules open source emulator.

The maintainer of the Hercules open source project, Jay Maynard, explained this on his blog as well.

In IBM's licensing agreement (from my understanding [...]), you are allowed to emulate their OS on non-IBM hardware for certain limited uses (disaster recovery, for example). TurboHercules wants to expand that (and change the licensing agreement) to mean that you can run their OS on non-IBM hardware for any reason at all.

It's correct that TurboHercules asked for a license agreement in order to run z/OS in emulation for more use cases than disaster recovery.

But that's nothing I was overlooking, although you listed it as one of three items I allegedly didn't tell. For an example, my blog posting on the correspondence between the two companies also put this into the context. My very first blog posting on the TurboHercules matter also explained this very clearly: (quote) Hercules just wants to provide customers with an interesting and much-needed choice. In order to do so, Hercules is simply seeking a way that its customers will be allowed to run IBM's z/OS mainframe operating system on Hercules. IBM generally does not allow its customers to run z/OS (hence also the application software those customers internally developed on top of it for trilions of dollars) on non-IBM hardware. When Roger asked IBM for a solution, IBM turned him down and accused Hercules of infringement of intellectual property rights. (end quote) And here on LWN, I explained on several occasions what the antitrust case is about: it's all about the untying of IBM hardware from the z/OS operating system, in particular in connection with emulation.

it's like people saying that it's Microsoft's fault that their video card broke. Or more accurately (since this is an Open Source forum), it's like people bitching that it's Ubuntu's fault that their ATI video cards don't work properly (when it's AMD that won't provide the proper drivers for the card).

That's part of one of several reasons IBM gave for turning down the request.

It's just a cheap excuse that IBM uses. If people run Windows on virtualization platforms, it may also behave differently than if it resides directly on top of the hardware. Or to address the case that affects almost all of us programmers: if we write something for an operating system, possibly along with other underlying components (database etc.), we have to support our customers (to the extent we're reasonably responsible) although our software isn't "alone" in the system.

Note that TurboHercules had not said anything in its letter to IBM about the details of IBM's obligations. TH had only asked for licensing terms in IBM's discretions but fair and reasonable (which is what a monopolist has to be under antitrust rules). In my opinion, "fair and reasonable" obviously means that IBM wouldn't have to end up accepting responsibility for the inner workings of the Hercules emulator.

I don't think that Microsoft is necessarily behind every bad thing in the world (but I do think that as far as tech goes, they aren't upset when the bad things happen to their competitors-- just like any company wouldn't be upset).

That's where you phrase things in a balanced way but PJ doesn't. The one reason for which I oppose irrational Microsoft paranoia is that if you look the collective power of its key competitors (you could just add up the market capitalizations of those to get an idea that collectively they're several times as powerful as Microsoft), and if you consider that those also commit pretty serious wrongdoings all the time, then it's important to look at all the issues in the industry, emanating from all sources, so as not to be distracted by a bogeyman that actually hasn't become more powerful in about a decade and that has over the last 10+ years had its defining moments in antitrust. Others are yet to experience that, and IBM got off the hook of the 1950's Consent Decree around 2000 and needs to be reminded now.

She puts up the facts. She links to them, so you can read them for yourself. You are free to form your own conclusions, whether they agree with hers or not. But, she's also free to post her opinions about the facts.

I also link to material I comment on. Nevertheless it's legitimate to criticize someone for out-of-context quoting and gross distortions that are of a nature that an honest activist in her quest for the truth wouldn't make but only someone who's not independent, be it in terms of independent thinking to have reasonable views or otherwise. Linking to the truth isn't enough because most people don't even click through (click-through rates on the Internet are low and everyone knows it).

Just an example: in connection with the IBM patent pledge, she started off with something that's utterly disgraceful and no honest FOSS person would do that, only a propagandist of the kind you find (or in the past found) in totalitarian regimes. Frankly, the Iraqi Information Minister was much more honorable with his absurdities than PJ is. So here's just one example of dishonest, undoubtedly intentional propaganda. Her propaganda regarding TurboHercules started with this:

(Groklie quote) IBM, when it announced the patent pledge, specifically reserved the right to defend itself from attack: "IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves," said Nick Donofrio, senior vice president for technology and manufacturing, drawing applause in a speech at the LinuxWorld Conference and Expo. And in the TurboHercules story, who is suing whom? It's not IBM, folks. The complaint against IBM was filed with the EU Commission by TurboHercules. At that exact moment, did they not take themselves out from under the patent pledge's safety umbrella? So be it. (end Groklie quote)

So why is this a total Groklie, even though PJ provides links? She quoted from this ZDNet Article of 4 August 2004, but IBM's patent pledge was announced more than five months later on 11 January 2005 (check here or elsewhere on the Web). So she took an IBM statement related to something different -- use of patents against the Linux kernel -- and puts it purposely into a completely different context. If someone doesn't even click through to find out that those are two entirely different contexts, the quote even speaks for itself because it talks about someone's aggression against the Linux kernel and TurboHercules has nothing to do with that. Hercules runs on Linux, peacefully ;-)

By contrast, I told people the whole truth: IBM did have a defense clause in its January 2005 open source patent pledge, but there's no way it was triggered by anything TurboHercules did. In this posting I quote from the pledge and explain why. In a nutshell, there's one (and only one) defense clause in IBM's patent pledge. It relates to (i) IP (ii) litigation against (iii) open source. However, all that IBM and PJ could reference in terms of TurboHercules's activities is (i) antitrust [different field of law, entirely] (ii) complaint [just a filing with a regulator who will only pursue if in the public interest; not a court suit] against (iii) IBM [and in particular, its proprietary business].

Any one of the three differences would be enough on its own to make the defense clause in the pledge inapplicable. The combination of three makes it totally absurd to suggest they had a defense scenario under the pledge. Therefore the Groklie that IBM had made a very broadly-phrased exception in terms of defense. That broad "forced to defend" thing was before the pledge, and the language of the open source patent pledge makes it clear that the pledge stands on its own as a commitment. A commitment that IBM betrayed.

You can see that PJ was even alerted to that error in the comments. She didn't care. That's another strong indication that she's a propagandist, not an honest open source advocate. An honest person would at least admit the error and correct it, instead of continuing to start off a very long posting with a Groklie.

In the discussion on that page she even told the opposite of what the GPL stipulates in terms of selling GPL'd software. Since she talks about the GPL all the time, chances are she knows what the GPL says (and what gnu.org says about selling software). But if it's about defending IBM, then she doesn't care about the truth, really.

Finally, our moderator here on LWN asked to stop discussing Groklaw's editorial policy here. So please appreciate I won't comment on your last item here and now (but probably somewhere else, some other time). But regardless, I don't think you've lost your credibility here by simply triyng to find out about many aspects of a big issue.

Just to add more clarity about the disgracefully untruthful quote

Posted Aug 21, 2010 13:13 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

I had explained the whole problem, but if you look again at what PJ wrote, she said: "IBM, when it announced the patent pledge,[...]" and then presents a quote from August 2004 while the pledge was made in January 2005. So just the little part I quoted, and clicking through to the ZDNet link, shows she lied. But with little click-through rates and a number of people who trust the wrong person (a "person" whose identity isn't disclosed to even a remotely appropriate extent, as I explained in this comment here).

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 0:00 UTC (Sun) by pdickey (guest, #69690) [Link]

I appreciate your reply. The only part that I wanted to keep discussing is the difference between TurboHercules and the Hercules Project.

I took the whole issue (reading your comments, reading different news articles on the issue, and reading about the license agreement) as this:

IBM didn't have an issue with the Hercules Project, because it was mainly (or completely at the time) being used in accordance with the Licensing Agreement (or if it wasn't being used in accordance with the agreement, no one was saying that). Plus the fact that it was free (just my opinion).

Their issue with TurboHercules is different. Not because they have a problem with the Hercules Project, but because TurboHercules wants to use it in a way that is not in accordance with their licensing agreement, and make people pay for that right.

IMHO, isn't that against the code of Open Source software? I read this as:

You can have the software for free, and even see the source code for it (and modify it). However, you have to pay those guys to be able to use the software for anything other than the terms of your License Agreement.

To me, that would be the same as Canonical saying "Here's Ubuntu. You are only allowed to use the non-restricted sources. However, if you want access to the restricted sources, you have to pay LinuxCo2, because they are providing a commercial version of Ubuntu that is allowed to use restricted sources." It wouldn't seem fair, that I'm not legally allowed to put a check in the box next to "Restricted Sources" even though it's available to me--all because I didn't pay someone else for that access.

I would like to point out a bit of irony though. In looking at the letters between TurboHercules and IBM, I noticed that some of the patents were covering Virtual Machines. So, I wonder if those would be capable of being used as Prior Art in the Google v Oracle case. (Which by the way, brings us full circle to the subject of the article we're commenting on). If so, then maybe some good can come of the mess (because IBM essentially laid them out for everyone to see).

Have a great weekend:)
Patrick.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 0:52 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

IBM didn't have an issue with the Hercules Project, because it was mainly (or completely at the time) being used in accordance with the Licensing Agreement (or if it wasn't being used in accordance with the agreement, no one was saying that). Plus the fact that it was free (just my opinion).

IBM mentioned Hercules in a RedBook (documentation piece) in 2002. It then removed that reference in the next edition. So even many years before the TurboHercules company was founded, IBM changed its stance.

In terms of the license agreement at issue, that's the z/OS agreement and chances are that out of many thousands of Hercules users, some perhaps didn't adhere religiously to the z/OS terms. Not that I know of any -- but statistically it's hard to imagine that so many people would all have complied with those terms 100%, all of the time.

TurboHercules wants to use it in a way that is not in accordance with their licensing agreement, and make people pay for that right.

The "pay" part relates only to z/OS, the proprietary operating system. For proprietary software one has to pay. Of course, if IBM decided to give it away for free, that would be appreciated, but no reasonable person would demand that.

IMHO, isn't that against the code of Open Source software?

Absolutely not. The key requirements for open source are defined by the Open Source Definition (and for free software by the Free Software Definition). This means among other things that you must have the right to modify and to redistribute. You must have access for free -- to the open source program -- if you wish.

TurboHercules doesn't violate any of those principles. If you get an Oracle 11g database server running on Linux, the Linux part is open source and Oracle 11g is closed source, running on top of Linux.

However, you have to pay those guys to be able to use the software for anything other than the terms of your License Agreement.

No. TurboHercules doesn't force you to pay for the Hercules open source program. You can get that free of charge if you wish, and of course you get the source code.

The "pay" part relates only to z/OS, which is proprietary. Think of my example with Oracle 11g running on Linux. Oracle 11g is closed source, Linux is open source.

To make it even clearer: if you emulate z/Linux with Hercules, then you don't have to pay anyone and there's no restriction preventing you from doing it. Similarly, you can also run MySQL or PostgreSQL on top of Linux, and then it's all free of charge.

Those closed-source/open-source combinations are pretty ubiquitous. You only have a problem with a license if it's "copyleft" like the GPL and you don't comply with the requirement to make the source code of a derived work available. In the Linux/Oracle example, note that running applications on top of Linux isn't a "copyleft" case because of an exception.

"Here's Ubuntu. You are only allowed to use the non-restricted sources. However, if you want access to the restricted sources, you have to pay LinuxCo2, because they are providing a commercial version of Ubuntu that is allowed to use restricted sources."

The key respect in which this doesn't relate to the TurboHercules situation is that they don't restrict any Hercules sources or the use of Hercules.

If anyone restricts, it's IBM. But again, don't forget that Hercules emulates the CPU instruction set, not the operating system. The operating system runs in emulation. In that emulation you can also run z/Linux. If, however, you want to run z/OS, then that's an issue between you as a customer and IBM. If TurboHercules helps you by organizing a license for all TurboHercules customers, that's also fine -- as long as the open source program continues to be available on open source terms.

By running something in emulation you don't create a new combined program. If you run proprietary software on an open source virtualizer like Xen, then the software running in virtualization is also a different thing from the virtualizer. One can be closed source and the other open source.

In looking at the letters between TurboHercules and IBM, I noticed that some of the patents were covering Virtual Machines. So, I wonder if those would be capable of being used as Prior Art in the Google v Oracle case

There are probably many many different patents out there on virtual machines. A patent can serve as prior art in principle, but those who now probably look for prior art against those Java patents will look everywhere I'm sure.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 8:09 UTC (Sun) by anselm (subscriber, #2796) [Link]

If you want to run Windows (a proprietary OS) in an open-source virtual machine like KVM or VirtualBox, you need to procure a licensed version of Windows. This generally means buying one.

If you want to run z/OS (another proprietary OS) in an open-source virtual machine like Hercules, you need to procure a licensed version of z/OS. This means talking to IBM to see whether they'll let you buy one without an IBM mainframe attached.

There's no difference in my book.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 11:06 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

That's exactly right, and the key difference is that Microsoft doesn't leverage its market positions in PC operating systems to tie particular hardware products (or virtualizers) to Windows. But IBM abuses its monopoly that way, and that's why the European Commission's investigation was and is needed.

My position is, simply put, that neither of those companies should be allowed to abuse a monopoly. They should have to give customers choice, and offer their operating systems separately from the hardware on fair, reasonable and non-discriminatory terms. I'm very optimistic we'll get there.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 11:20 UTC (Sun) by dlang (✭ supporter ✭, #313) [Link]

ctually, they do. you are not allowed to run windows 7 on non-microsoft hyervisors (at least for some versions)

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 11:30 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

That's new to me. I understand that Windows can be virtualized with Xen (Windows 7 is listed on this page), VMware etc. Wikipedia says "VMware Inc makes VMware Tools available for Microsoft Windows, Linux, Sun Solaris, FreeBSD, and Novell NetWare guest systems."

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 12:53 UTC (Sun) by foom (subscriber, #14868) [Link]

I believe the "Home" (cheapest) editions of windows have a license which prohibits the use of them in any virtualized environment. They want you to buy the next tier up if you're doing something complex like running in a VM instead of bare hardware.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 12:57 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

I believe the "Home" (cheapest) editions of windows have a license which prohibits the use of them in any virtualized environment. They want you to buy the next tier up if you're doing something complex like running in a VM instead of bare hardware.

Thanks. There are always new things one can learn here on LWN :-)

From a competition point of view, I wouldn't be concerned about that. It seems reasonable to me based on how you describe it.

Since z/OS is by definition the opposite of a "Home" operating system, this kind of distinction is a non-issue for the mainframe matter then. But it's good to know.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 11:09 UTC (Sun) by dlang (✭ supporter ✭, #313) [Link]

this sounds very similar to Apple not allowing OS/X to be run on anything except for apple hardware (see the pystar case where they won)

the case of OS/X is even worse in my opinion because it is sold in a retail box set.

In the IBM case, the software isn't sold separately from the hardware (possibly it should be, but in this case, forcing IBM to sell the software to run on turbohurcules is similar to forcing them to support another hardware platform, it's one that attempts emulate the IBM hardware/hypervisor, but since it's an emulation it's not always going to work the same way)

trying to sell the software to run on turbohercules with a caviot that 'it may not always work and IBM won't try to troubleshoot or fix it' would not be soemthing that would go over well.

I could see IBM signing an agreement with turbohercules for them to sub-license the software and provide all the support for it, at that point it would be very clear that if anything didn't work the customer should not contact IBM.

By the way, there's nothing wrong with being a monopoly in a field (like IBM and mainframes), what would be wrong is if IBM abused it's monopoly position. I don't see that happening yet in this case.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 11:18 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

the case of OS/X is even worse in my opinion because it is sold in a retail box set.

This is a matter of market share, and that also marks a fundamental difference between the antitrust aspect of Psystar (it also has a copyright aspect, but that's irrelevant here because TurboHercules doesn't argue on the basis of "fair use") and TurboHercules.

forcing IBM to sell the software to run on turbohurcules is similar to forcing them to support another hardware platform

I wouldn't necessarily call it "support". I'd say "tolerate".

I could see IBM signing an agreement with turbohercules for them to sub-license the software and provide all the support for it, at that point it would be very clear that if anything didn't work the customer should not contact IBM.

I can't speak for TurboHercules and whether this is a proposal they should accept, but I would like to mention that TH had proposed to IBM to sit down and discuss, and IBM said the door is closed. That's how it led (eight months after TH's original question) to an antitrust complaint. Let's hope that there's going to be an agreement soon in that context.

By the way, there's nothing wrong with being a monopoly in a field (like IBM and mainframes), what would be wrong is if IBM abused it's monopoly position.

Right on. I usually always attach the word "abuse" to it to make it clear.

I don't see that happening yet in this case.

I actually do. I look at the European Commission's two Microsoft antitrust cases. The first one, besides the Samba/network protocl aspect, was about the tying of the Media Player to Windows, and the second one about browser choice. So there are precedents in the EU.

Look at this way: a decision by Microsoft to stop selling Windows separately and instead requiring anyone who wants to purchase a new version of Windows to buy hardware exclusively from Microsoft would easily result in widespread consensus that it can't be accepted. It's just that more people are familiar with Windows than with the mainframe.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 11:30 UTC (Sun) by dlang (✭ supporter ✭, #313) [Link]

why in the world would IBM be willing to enter discussions with a company behaving the way turbohercules is behaving? Among other things, they could find any part of their negotiations on the newspaper front page taken out of context.

I think that if turbohercules had proposed something like that before going public, they may have had a chance, but after going public the way they have, for IBM to suggest this would smack of backing down to extortion. IBM tends to be very agressive to responding to attacks.

selling the OS to run on turbohercules without supporting it would not work well for anyone (and would generate bad PR when things didn't work). it's not just selling a license and 'tolorating' turbohercules.

no, this isn't anything like if microsoft decided to stop selling windows separatly and only sell it with microsoft hardware, not only because microsoft doesn't sell hardware (and never has), but also because IBM has never sold the software separately, so it's not that IBM is restricting something that was previously open, it's that they are doing the same thing that everyone in the mainframe market has always done, bundle the OS with the hardware.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 22, 2010 11:52 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

The whole detailed discussion on this page here has already addressed all of this before in one way or another, and with your comment you just showed that you know hardly anything about the mainframe situation and about the basics of competition rules, but let me explain anyway:

why in the world would IBM be willing to enter discussions with a company behaving the way turbohercules is behaving?

1. TurboHercules sent a polite letter to IBM in July 2009, asking for it. Four months later, IBM turned down. TurboHercules sent another polite letter to IBM then (in November 2009). The public was only informed in late March of an antitrust complaint and in early April of IBM's patent threats: more than eight months after the original, polite contact in which a face-to-face meeting was suggested.

2. Apart from the above, a monopolist is required to treat potential customers in a fair, reasonable and non-discriminatory way. That means if you don't like the color of someone's skin or the shape of someone's nose, as a monopolist you still have obligations to meet unless you want to commit an abuse of your monopoly.

Among other things, they could find any part of their negotiations on the newspaper front page taken out of context.

See my explanations above. Nothing was discussed in the press until eight months after the original contact was made. No one forced IBM to make two versions of a patent threat, which then of course concerned people in the community, including (among many others) Eric Raymond and me.

I think that if turbohercules had proposed something like that before going public, they may have had a chance

They did propose negotiations eight months before going public. All four of the letters exchanged between the two companies from July 2009 to March 2010 are discussed in this blog posting, which includes links to the actual letters for everyone to see.

selling the OS to run on turbohercules without supporting it would not work well for anyone (and would generate bad PR when things didn't work). it's not just selling a license and 'tolorating' turbohercules.

The first step is to allow it. The second is how to address the support question in a way that would be fair, reasonable and non-discriminatory under the law. I didn't say there shouldn't be any support. To me, the support question is a logical consequence of the "tolerating" question, but I admit I didn't make it perfectly clear in my previous comment.

his isn't anything like if microsoft decided to stop selling windows separatly and only sell it with microsoft hardware, not only because microsoft doesn't sell hardware (and never has)

The question I raised is what would happen, under competition law, if they decided to leverage their market position in software in a way that distorts competition in hardware. If tying is illegal under competition law, then it's illegal regardless of whether previously practiced or newly started.

but also because IBM has never sold the software separately,

No. Under the US DoJ's Consent Decree of 1956, IBM did provide all components including its operating systems separately for several decades. There were various "plug compatible mainframe" (PCM) manufacturers in the market such as Amdahl and Hitachi.

But again, if tying is abuse of a monopoly, it's illegal regardless of history. If you park on the wrong side of your street for 10 years and then in the 11th year the police tells you that it's illegal, you can't argue that you've been doing it for 10 years so it must be legal...

that they are doing the same thing that everyone in the mainframe market has always done, bundle the OS with the hardware.

See above: the plug compatible mainframe story. The PCMs ran IBM operating systems.

The fact that IBM was required to make its operating system available separately is, by the way, considered to have played a key role in IBM's original arrangement with Microsoft that allowed the sale of MS-DOS to other hardware companies. They might have assumed at IBM that sooner or later they'd be required to do so anyway.

Now that I've patiently explained everything, it would be very kind of you if you could reconsider your position based on what you know now.

So what do the proponents of Oracle's acquisition of Sun think now?

Posted Nov 19, 2010 16:51 UTC (Fri) by FlorianMueller (guest, #32048) [Link]

You said you've got reams of proof that she censors, and I'll raise you reams of proof that she doesn't (you can find it all on the site).

I didn't just say so -- you can see it yourself now: http://www.scribd.com/doc/43344245/10-11-19-Groklaw-Censorship-Evidence

Kill file

Posted Aug 13, 2010 13:41 UTC (Fri) by corbet (editor, #1) [Link]

We do have a comment filtering capability; you'll find it behind the My Account link in the left column.

Kill file

Posted Aug 13, 2010 17:57 UTC (Fri) by farnz (guest, #17727) [Link]

Unfortunately (and I say this as an ex-subscriber, who's no longer subscribing because of the tendency the comments section has developed to descend into flamewars), the comment filtering facility only works for the individual who sets filters. I can't take an article or single comment, filter the comments out completely (or at least remove all the users whose comments will upset my managers) and send a link that I know won't get me into trouble. Perhaps this could go on the LWN wishlist?

It's a shame - LWN used to be a useful resource for explaining things to non-technical managers, but these days it's too dangerous to use it that way - my management is likely to latch onto a flamewar in progress in the comments and tell me off for reading "a Slashdot-style waste of time". As a result, I can't justify paying for LWN any more; what's most depressing is that if (in the threads that get nasty), I could point out that "look, the editors are asking people to calm down", it'd be OK - they'd accept that it's hard to stop people misbehaving. It's the lack of anything I can point them at to say "it's just a few troublemakers, and the management is asking them to behave" that makes it dangerous for me.

Kill file

Posted Aug 14, 2010 16:59 UTC (Sat) by ramon_garcia (subscriber, #67060) [Link]

Let me help the editor understand other people's points of view. Just let me say that this discussion has been useful for people not involved in these discussions. Since Grocklaw is quite popular, it is useful to understand the points of view and interests that it represents.

This discussion is very interesting

Posted Aug 15, 2010 23:41 UTC (Sun) by coriordan (guest, #7544) [Link]

Yes. I've found this whole discussion very interesting.

I haven't had the time to participate, but there are some very interesting, detailed comments.

Kill file

Posted Aug 14, 2010 17:31 UTC (Sat) by ramon_garcia (subscriber, #67060) [Link]

Dear editor,

Why don't you enforce that people making comments must specify any affiliation, interest, ... that may have an influence on their impartiality? It is unfair that people make comments influenced by their interestes without disclosing those interests.

Kill file and topic selection for RSS

Posted Oct 4, 2010 9:00 UTC (Mon) by biged (subscriber, #50106) [Link]

Jon, could I ask you to provide a per-account RSS feed which includes the user filtering and topic selection? As farnz says, the volume and mix of comments on LWN has changed over the last year or so. I've got to the point where the general RSS feed is barely useful - but I still prefer to read an uptodate stream than to visit articles and commentary manually. When I read the weekly edition I don't need to read comments because I already have them covered.

Having a few people in the kill file would be a moral victory at least.

The topic filtering is a bit different: I am interested in legal issues, but not interested in endless circular argument.

At a hundred comments a day, even skipping through 50 unwanted comments takes some time and energy. I don't want to lose enthusiasm for the site.

Does the kill file also kill responses to killed comments? That would be worth an extra level of subscription!

Kill file and topic selection for RSS

Posted Oct 4, 2010 13:30 UTC (Mon) by corbet (editor, #1) [Link]

Per-account RSS feeds is something we can look into. Meanwhile, have you looked at the unread comments page? Filtering does work there (and yes, it filters replies too). I think it beats an RSS feed in that it tries to keep the threading intact.

Kill file and topic selection for RSS

Posted Oct 4, 2010 14:19 UTC (Mon) by biged (subscriber, #50106) [Link]

Thanks Jon, I will see if that works better for me. I think I've seen you mention that before, but haven't used it. Having the responses to killed comments invisible should be a boon. A killer feature, if you will.

I'm familiar with other forums where I have to poll, but can then see unread messages. What it does mean is I have to stop bothering with the RSS feed - and remember to poll for unread comments. I'll keep a feed to LWN news though.

Unread comments (subscribers only)

Posted Oct 4, 2010 14:32 UTC (Mon) by biged (subscriber, #50106) [Link]

Just a minor point, having decided to start using that feature: I'm having trouble finding a link to the unread comments page: it's on the FAQ, and mentioned in your article about improvements. Maybe I just can't find it.

Could you please add a link in the My Account page? (Could it even be in the sidebar for logged-in subscribers?)

Thanks!

Unread comments (subscribers only)

Posted Oct 4, 2010 14:58 UTC (Mon) by coriordan (guest, #7544) [Link]

Agree.

Whenever I don't use that page for a while, I forget how to find it :-)

Unread comments (subscribers only)

Posted Oct 4, 2010 15:10 UTC (Mon) by corbet (editor, #1) [Link]

Navigation is always a pain; if we put in links for everything, there'd be no room for the ~~advertisements~~ content. Can't have that.

In the left column maybe makes sense, though, for this feature. Will think on it.

Unread comments (subscribers only)

Posted Oct 4, 2010 16:53 UTC (Mon) by nye (guest, #51576) [Link]

One large improvement would be to make the 'C' in 'https://lwn.net/Comments/unread' case insensitive. I can't tell you how many times I've forgotten that, then assumed I'd completely misremembered the URL, then googled for the post announcing it, etc.

Unread comments (subscribers only)

Posted Oct 21, 2010 18:28 UTC (Thu) by biged (subscriber, #50106) [Link]

> In the left column maybe makes sense, though, for this feature. Will think on it.

Please do it Jon! I've been using the feature for a couple of weeks and it's a great deal easier to keep up with everything. I only use the RSS feed to remind me that I have hundreds of comments to catch up on - and it doesn't take very long to do that, in the threaded scrollable and killfiled view.

Unread comments (subscribers only)

Posted Oct 25, 2010 11:01 UTC (Mon) by biged (subscriber, #50106) [Link]

> In the left column maybe makes sense, though, for this feature. Will think on it.

Just seen the new sidebar link to the Unread comments page: many thanks!

Oracle sues Google over use of Java in Android (ars technica)

Posted Aug 14, 2010 0:00 UTC (Sat) by klbrun (subscriber, #45083) [Link]

By market cap, Google is bigger than Oracle. So, who will stomp whom?

Oracle sues Google over use of Java in Android (ars technica)

Posted Aug 14, 2010 1:28 UTC (Sat) by drag (subscriber, #31333) [Link]

Market cap is much less important then the lawyer budget in situation like this.

Oracle sues Google over use of Java in Android (ars technica)

Posted Aug 14, 2010 4:30 UTC (Sat) by basic (guest, #12705) [Link]

> You'll note that neither Nokia, nor Intel, nor Palm had such squabbles (and if they didn't sell as well, that was not for licensing reasons)

Well Nokia, Intel or Palm only used JavaME, that is why SUN/Oracle does not have problems with them. And honestly, I do not ever want to develop for JavaME again if I can help it, it just doesn't fit with modern hardware (not sure how well it fit with old hardware either, but it was a nightmare working with it). Android is better because it is not using JavaME, and if you are not using JavaME, why should you need an Oracle license?

> OpenSolaris is shutting down. Again we have an example of licensing that was chosen against the (L)GPL (And this was more important to many Solaris supporters than actually finishing open-sourcing the whole stuff. They didn't want to share. Neither does Oracle).

GPL or no-GPL, the trouble with OpenSolaris shutting down had probably more to do with SUN being a control freak with the project, allowing Oracle to shut it down even when there is more than enough interest in keeping it going. Even if it were under a GPL license, with the way the project was managed, it probably would not make it.

> Could Oracle have sued/closed/killed (L)GPL projects too? I sort of doubt it.

I'm sure if Google had used GPL they will have still gotten sued. For Oracle, the license doesn't matter. They own the patents. Google is using "java tech" in a way that isn't benefiting and can't be controlled by Oracle (by not using JavaME). Oracle probably sees it as losing JavaME monies as JavaME devices are disappearing from the market. I see it as a company failing to compete, so they decide to go to the courts.

> Not only the licenses are stronger, but (as SCO showed) there is a strong community willing to defend such projects. The risk for Oracle would have been much higher. I doubt the changes they need Linux-side would have flowed as smoothly afterwards, and maintaining a full fork would probably cost Oracle a lot more than the suit would win them.

Not sure how the license being "stronger" will help in this case, since Oracle didn't contribute/distribute any of the code. We don't know if there is a "strong community" support to defend this particular lawsuit yet. Come on, it hasn't even been a week since they filed the lawsuit. Personally I doubt the license matter that much for community support in this case (it is a patent case, and will probably affect projects other than Android, GPL or not), but we shall see. As for Linux side, do we really have precedence for kernel maintainers rejecting patches because the company in question is suing (GPL or no-GPL)?

This is a patent case brought on by a third party that didn't contribute to the code, GPL would not have mattered (not to mention that Apache2 does have an explicit patent licensing clause as well). This case just shows how bad the software patent situation is.

> In a software market dominated by giants like Oracle, SAP, Microsoft, IBM, Google, it is very dangerous to refuse the protection built over a long time by (L)GPL users.

> SUN spent a lot of energy for many years furthering the '(L)GPL is bad for business' idea. And the people who believed this are the first Oracle is now stomping on.

Well, it is more like they stomp on whoever has the most monies and gave them the opportunity to do so. I doubt GPL will give much protections against third-party patent lawsuits. The only way Google could have gotten "protection" in this case, would have been to get the entire Android platform declared as "Linux" as defined by OIN. And that is heavily contributed by the "giants". Question: Are JavaME/JavaSE implementations protected by OIN? If it is, will it still be protected if it was modified to the point SUN/Oracle would not allow it to be called Java anymore?

GPL will matter if the one suing actually contributed/used the code. In this case, AFAIK Oracle did not touch the code (which makes the copyright infringement claim puzzling). As a third-party to the code, Oracle claim patent infringement, which no copyright license I can think of (no matter how it is worded) can protect you from. Do not confuse strong/weak/non copyleft license issues with software patent issues.

Oracle sues Google over use of Java in Android (ars technica)

Posted Aug 14, 2010 5:20 UTC (Sat) by rahulsundaram (subscriber, #21946) [Link]

You are incorrect in atleast one claim. If Google was using OpenJDK, it would likely stop Oracle from claiming any patent violation for Java related patents since GPLv2 has a implicit patent grant. Since Sun GPL'ed it (along with a classpath exception for the standard edition), Oracle won't be considered a third party.

OpenJDK is Zombie project

Posted Aug 14, 2010 9:01 UTC (Sat) by khim (subscriber, #9252) [Link]

Just like all other Oracle projects OpenJDK is zombie project: Google can use it but it can not change it by adding significant contributions to it without Oracle's approval (or the Oracle will sue them for said additions). And I doubt Oracle will be interested in success of Android so development will be slow.

OpenJDK is Zombie project

Posted Aug 14, 2010 9:29 UTC (Sat) by paulj (subscriber, #341) [Link]

Uh, they can fork it and make additions as they like, by the GPLv2 licence. Are you saying OpenJDK is actually not licenced as Free Software? (They can't call it Java(TM) - but that's a different thing, and acceptable, e.g. IceWeasel, etc).

It's open source - that's why it's zombie, not dead...

Posted Aug 14, 2010 10:44 UTC (Sat) by khim (subscriber, #9252) [Link]

GPLv2 implicit patent license grant don't extend to new additions. This means you can add small bugfixes and suchlike, but if you'll try to add something substantial not to Oracle liking Oracle can sue you.

That's why it's zombie project: you can use it, but you can't extend or modify it.

It's open source - that's why it's zombie, not dead...

Posted Aug 14, 2010 11:22 UTC (Sat) by paulj (subscriber, #341) [Link]

If it wasn't in the OpenJDK already, then sure - no licence will cover it. But if it wasn't in the OpenJDK already, why do you think Oracle would hold patents on this as-yet-to-be-developed idea?

Basically, your argument seems to boil down to "For any given new development you make, some company you don't have a licence with might hold a patent on it" - which we already know is a general problem with patents and the software industry, and has nothing to do specifically with Java/Dalvik, the GPL or free software.

Please think before you write...

Posted Aug 14, 2010 12:25 UTC (Sat) by khim (subscriber, #9252) [Link]

If it wasn't in the OpenJDK already, then sure - no licence will cover it. But if it wasn't in the OpenJDK already, why do you think Oracle would hold patents on this as-yet-to-be-developed idea?

Who said it'll be "yet-to-be-developed" idea? Java is Open Core: Java2SE is open, Java2EE is partially open but there are tons of proprietary stuff (from Oracle and other big players). Oracle just showed that if/when anyone will try to threaten proprietary part of Java s/he'll be sued - this makes it even worse then traditional OpenCore: you can not even fork the project and continue it's development, you can only send your extensions to Oracle and hope it'll include them in the next version of OpenJDK.

Essentially it's C# trap, just with different player. And if we [rightfully] reject C# because it's trap then we should reject Java as well. Actually C# core is better protected then Java: you don't need to beg Microsoft for the tests and pass them if you want to create alternative implementation.

OpenJDK is Zombie project

Posted Aug 14, 2010 10:20 UTC (Sat) by nim-nim (subscriber, #34454) [Link]

> Just like all other Oracle projects OpenJDK is zombie project

Not really. It's only a zombie project if:
1. Oracle tries to push new changes in Java 7
2. Oracle somehow refuses the associated TCK checks to OpenJDK

And guess what? Sun has mismanaged Java so badly, and Java 7 has slipped so often, I doubt "I can do Java 7 but you're stuck with Java 6" would matter a lot for the customers that use big J2EE apps

In fact they'd probably be happier with a "OpenJDK is still Java 6, but with the SUN bugs fixed" JVM.

It's zombie project because it makes no sense to keep it alive...

Posted Aug 14, 2010 10:50 UTC (Sat) by khim (subscriber, #9252) [Link]

In fact they'd probably be happier with a "OpenJDK is still Java 6, but with the SUN bugs fixed" JVM.

Well, that's the definition of zombie project, isn't it? OpenJDK was already in bad shape, but lawsuit made it literally the "living dead": it's covered by GPL so Oracle can't take it away, but it makes absolutely no sense for anyone except Oracle to try to extend it and keep it alive. Everyone else will only ever supply small bugfixes...

Over time it'll become less and less relevant and will probably shrink and die. But yes, it'll take years.

It's zombie project because it makes no sense to keep it alive...

Posted Aug 14, 2010 11:30 UTC (Sat) by paulj (subscriber, #341) [Link]

That doesn't make sense. We now know that anyone who wants to develop a JVM (or similar) has to worry about 2 kinds of Oracle patents:

1. The patents on things implemented already in the JDK

2. Other patents, which are not implemented in the JDK, some or all of which may be unknown, some or all of which may be irrelevant to JVMish developers.

For the former class of patents, you can *get* a licence from Oracle via the GPL, and that licence extends to derivation through modification of the work.

For the latter class, you have to either avoid them or get a licence from Oracle for the known ones that are applicable to you - the unknown ones you can do little about. You're in that boat regardless of whether or not you use GPL OpenJDK.

Surely the rational choice now would be for any future developers to ensure that at least Oracle can't shake you down on the former class, i.e. base work on the OpenJDK?

Sorry, but no...

Posted Aug 14, 2010 12:14 UTC (Sat) by khim (subscriber, #9252) [Link]

For the former class of patents, you can *get* a licence from Oracle via the GPL, and that licence extends to derivation through modification of the work.

There are two patent grants. One (implicit) does not extends to derivations (this is known GPLv2 loophole). Another is explicit - but it's only available for the "compliant implementations" which "pass all test suites". And said "test suites" are not open source, they are not available without written permission and so this promise is essentially pointless.

Surely the rational choice now would be for any future developers to ensure that at least Oracle can't shake you down on the former class, i.e. base work on the OpenJDK?

No. The rational choice is to drop Java ASAP. Java is new COBOL: useful for legacy systems, but quite pointless for the new development. You can continue to use it - but only as long as you base your work on modified (or slightly modified) OpenJDK.

This is beginning of the end for Java.

Sorry, but no...

Posted Aug 14, 2010 18:14 UTC (Sat) by paulj (subscriber, #341) [Link]

This is an interesting theory, that the GPLv2 implicit grant doesn't extend to derivation. I think you must be utterly wrong on that, for the GPLv2 explicitly grants you the right to modify. So therefore, for any processes that are implemented within the code for which you receive an implicit GPLv2 patent grant, you must be able to modify the code implementing that process and retain the grant - that's what the licence tells you you may do, after all.

Perhaps there is some fine line you have to walk to stay within the bounds of "modification", and not appear to be a new implementation. A new implementation would, obviously, not be covered by such grants.

As for the TCK grant, I never referred to that all.

I see we're actually agreed now that this means future Java work pretty has to be on the OpenJDK, in order to be safe from Oracle lawsuits. Whether this means Java is doomed though, I don't know. As others have pointed out, perhaps if anything it means that the only way to be safe, if you want a Java style runtime, is to seek shelter in the corporate patent thickets erected around the Java JVM and C# CLR.

It will be interesting to see how this lawsuit pans out. On the one hand, if Google contested it and found a way to have it ruled these patents do not apply, then it would benefit everyone. OTOH, the easiest way out for Google perhaps is to settle and pay off Oracle (but would that mark Google out as an easy touch for trolls?).

It's zombie project because it makes no sense to keep it alive...

Posted Aug 14, 2010 12:32 UTC (Sat) by nim-nim (subscriber, #34454) [Link]

Java as a language is pretty mature and good enough for decades. If Oracle wants to be a nuisance, they can try to use legal threats to freeze the OpenJDK feature perimeter (so others will miss on the language changes planned for Java 7), but anyone can "extend" the JVM via additional out-of-JVM libs.

Oracle's grip on the JVM depends on competitors actually using the bits it adds in new Java standard versions. It used to matter because there was no sane way to deploy additional java components, but OSGi has solved this part, so if Oracle wants to play hardball all they'll win is increased adoption of OSGi (when SUN pushed another mechanism for Java 7) and increased use of out-of-jvm java libs (which will marginalise Oracle features outside Oracle apps)

Eclipse showed nicely that as long as a JVM with basic capabilities was available, everything else could be bolted on with additional components. That's why every big SUN Java project failed BTW: competitors didn't like the power SUN already had JVM-side, so they deliberately chose not to support its other Java initiatives. (that's what SUN got for being a control freak and frightening other players)

Well, it's was in Sun's era, this is now Oracle era...

Posted Aug 14, 2010 12:53 UTC (Sat) by khim (subscriber, #9252) [Link]

If Oracle wants to be a nuisance, they can try to use legal threats to freeze the OpenJDK feature perimeter (so others will miss on the language changes planned for Java 7), but anyone can "extend" the JVM via additional out-of-JVM libs.

Well, as long as Oracle does not feel said extensions threaten it's control...

It used to matter because there was no sane way to deploy additional java components, but OSGi has solved this part, so if Oracle wants to play hardball all they'll win is increased adoption of OSGi (when SUN pushed another mechanism for Java 7) and increased use of out-of-jvm java libs (which will marginalise Oracle features outside Oracle apps).

Well, it's one of reasons for lawsuit, isn't it? It does not matter if you have OSGi or not if you can not legally use your extension.

Eclipse showed nicely that as long as a JVM with basic capabilities was available, everything else could be bolted on with additional components.

Well, if you are IBM, then yes. Even Oracle will not blindly attack the IBM with patent-related subpoenas.

That's why every big SUN Java project failed BTW: competitors didn't like the power SUN already had JVM-side, so they deliberately chose not to support its other Java initiatives. (that's what SUN got for being a control freak and frightening other players)

Yup. But Oracle changed rules of game: it's "my way or the highway" now. Only gorillas like IBM may be safe... for now.

Well, it's was in Sun's era, this is now Oracle era...

Posted Aug 14, 2010 13:25 UTC (Sat) by nim-nim (subscriber, #34454) [Link]

Oracle inherited from SUN some patents on core JVM features.

It can not use those patents to attack a JVM core SUN already blessed (OpenJDK), it would be laughed out of court (even if the GPLv2 implicit patent covenant was not affirmed)

It can not use those patents to attack out-of-JVM Java libs, because they're about core features, which are already provided safely by OpenJDK

Also, because the purpose of a JVM is to run Java code, they can not attack people for doing so, even if some of this code is used instead of the in-JVM classes Oracle would prefer people to use (that is, they can not attack using their JVM patent portfolio, they can attack using other patents but this would apply to any software)

What IBM did with Eclipse (and anyone else can do) was very smart: use a compliant JVM that includes stuff like swing (and that Sunacle can not sue about), but not use swing in the app and rely on out-of-jvm swt instead.

It's completely different from the Dalvik/Harmony case where the JVM core was never approved, and where changes were done Google-side in core JVM features (so either it's a JVM, and Oracle can attack it via the TCK, or it's not, and the patent pledge does not apply)

Funny, it's exactly why Oracle is doing...

Posted Aug 14, 2010 14:24 UTC (Sat) by khim (subscriber, #9252) [Link]

It can not use those patents to attack out-of-JVM Java libs, because they're about core features, which are already provided safely by OpenJDK

Of course it can! These are unlicensed implementations of core features and that means this is "willful and deliberate infringement" which should be stopped right away. Isn't it what Oracle does right now with Dalvik? So one step from OpenJDK implementation - and you are the target.

Also, because the purpose of a JVM is to run Java code, they can not attack people for doing so, even if some of this code is used instead of the in-JVM classes Oracle would prefer people to use (that is, they can not attack using their JVM patent portfolio, they can attack using other patents but this would apply to any software)

Newsflash: this exactly what they are doing right now. You only covered in two cases:
1. When you use OpenJDK (and if you modify it too much you'll lose the protection), or
2. When you've passed TCK tests (and rules for these tests change all the time - when Apache asked Sun asked to exclud mobile Java, for example).
People talked about these loopholes for years, but it was a moot point because Sun was interested in litigation. Oracle is very interested as you know.

What IBM did with Eclipse (and anyone else can do) was very smart: use a compliant JVM that includes stuff like swing (and that Sunacle can not sue about), but not use swing in the app and rely on out-of-jvm swt instead.

1. That's good way to create slow "enterprise" monster - and this where Java will live long life. Normal, small and nimble applications? Fugetaboutit!
2. It only works for IBM because Oracle will not dare to sue them about SWT. Smaller fishes can be easily killed.

It's completely different from the Dalvik/Harmony case where the JVM core was never approved, and where changes were done Google-side in core JVM features (so either it's a JVM, and Oracle can attack it via the TCK, or it's not, and the patent pledge does not apply)

TCK only applies to implementation which pass tests. Tests may include different restrictions (including field-of-use restrictions) - this was Apache's grief for years. Basically all this means "my way or the highway" (Microsoft/C# style) and we should treat Java accordingly.

Just like we are trying to remove C# from our distributions we should plan to do the same with Java. It's as simple as that.

Actually Java is an easy case. It's much harder to remove OpenOffice.org and/or Berkeley DB...

Funny, it's exactly why Oracle is doing...

Posted Aug 14, 2010 14:52 UTC (Sat) by nim-nim (subscriber, #34454) [Link]

> Of course it can! These are unlicensed implementations of core features

No because out-of-JVM Java libs needn't provide those features since they are available through OpenJDK. The patents Oracle uses are only useful against someone that needs to reimplement core features because he has not access to a blessed JVM. They are useless against out-of-JVM Java libs that provide different features.

>> Also, because the purpose of a JVM is to run Java code, they can not
>> attack people for doing so
> Newsflash: this exactly what they are doing right now.

Nope, they are attacking Google for creating something that runs Java code, but is not a JVM by their definition. This is not a problem for OpenJDK.

> 1. That's good way to create slow "enterprise" monster

Don't be silly, remember how old Java is? Today's smartphones are faster than the computers used when Java was created. Whatever inefficiencies exist in OpenJDK will be made increasingly irrelevant as hardware gets faster.

> 2. It only works for IBM because Oracle will not dare to sue them about
> SWT.

Nope, it works because SWT is an *addon* and Oracle can only use SUN-inherited tricks to sue on core features. Google messed with core features, which is the only bit SUN had some hold on.

> TCK only applies to implementation which pass tests. Tests may include
> different restrictions

New restrictions can not apply to past approvals. They can try to play this kind of trick, as long as OpenJDK behaviour does not change significantly I doubt a judge will be impressed (yes your honour, you see, when OpenJDK passed the TCK this function returned 6 in 10s, now it returns 6 in 5s, obviously OpenJDK needs to pass TCK again, and BTW the new TCK conditions say the old OpenJDK could not have passed it either).

As long as OpenJDK does not pretend to a Java level it has not passed the TCK for before, and has not changed the behaviour that made it pass the TCK previously, it's clean. (and that's only about the Java name, it Oracle tried patent tricks they'd have to handle the GPLv2 implied patent grant before a judge, which is a lot less easier than threatening to do it someday before the press).

Oops...

Posted Aug 14, 2010 15:26 UTC (Sat) by khim (subscriber, #9252) [Link]

The patents Oracle uses are only useful against someone that needs to reimplement core features because he has not access to a blessed JVM. They are useless against out-of-JVM Java libs that provide different features.

Ah, I misunderstood you - I though we were talking about reimplementation of core features... If we are talking about some features not implemented in Java core then it's even easier: Sun never promised to license patents for these so if you step on Oracle's toes it's even easier to sue you. If you develop something totally unrelated to bazillion of Oracle-developed Java products then yes, you are free. The same as with C#, really.

Nope, they are attacking Google for creating something that runs Java code, but is not a JVM by their definition. This is not a problem for OpenJDK.

They are attacking "unblessed" implementation. I doubt if you'll bundle your implementation with OpenJDK it'll satisfy them. The only way to implement Java from now on is to use unmodified (or slightly modified) OpenJDK.

Don't be silly, remember how old Java is? Today's smartphones are faster than the computers used when Java was created. Whatever inefficiencies exist in OpenJDK will be made increasingly irrelevant as hardware gets faster.

There are one problem with this idea: hardware stopped "getting faster". CPUs reached 3GHz eight years ago. Today they still can not pass 4GHz barrier. The speedups now are related to increased number of cores - and as number of cores grows NUMA-related problems become more and more relevant. To solve this kind of problems you need deep redesign of system code and VM. Exactly things Oracle now forbids.

Nope, it works because SWT is an *addon* and Oracle can only use SUN-inherited tricks to sue on core features. Google messed with core features, which is the only bit SUN had some hold on.

It may be an addon, but it duplicates functionality of SWING and so probably infringes some SWING-related patents. Oracle does not dare to sue IBM but will sue any small company if it'll try to duplicate the trick.

New restrictions can not apply to past approvals.

And this means (again) that we are in zombie-state: existing implementation can be used, future development is forbidden.

As long as OpenJDK does not pretend to a Java level it has not passed the TCK for before, and has not changed the behaviour that made it pass the TCK previously, it's clean.

No, it's not. I gave the link before. You must "pass all test suites relating to the most recent published version of the specification", not some arbitrary version in the past.

and that's only about the Java name, it Oracle tried patent tricks they'd have to handle the GPLv2 implied patent grant before a judge, which is a lot less easier than threatening to do it someday before the press

And this is about zombie-state again. Yes, existing implementation is clean and as long as you don't muck with it too much you can use it. But Java development is stopped. Frozen. Halted. Java is zombie - not yet dead, but no longer alive.

And this is in the time where "multi-core revolution" means all platforms must evolve to stay relevant in a few years.

Oops...

Posted Aug 14, 2010 17:46 UTC (Sat) by nim-nim (subscriber, #34454) [Link]

> And this is about zombie-state again. Yes, existing implementation is
> clean and as long as you don't muck with it too much you can use it. But
> Java development is stopped. Frozen. Halted. Java is zombie - not yet
> dead, but no longer alive.

You continue spreading confusion by mixing different things under the "Java" name. What people call "Java" is actually three things

1. A JVM. This is the part which has been patented by SUN, and rewritten by Google. OpenJDK is safe here due to A. Sun patent pledges B. GPL implied patent licence. Google, not, because it has neither (as long as a court thinks software patents, or those software patents in particular are valid)

2. Classpath libraries. The bits of Harmony Google use are here. With 1. this is the perimeter the TCK checks. Again OpenJDK is safe here since it already passed the TCK and only needs to be careful to not change its functional behaviour. Yes you need to use the latest TCK when you pass it but no Oracle can not change the TCK and argue before a judge it invalidates its previous approval. New TCK versions are only relevant if OpenJDK wants to claim a new compliance level. And the TCK only controls the Java name, without the TCK one just has to rename its implementation, as long as the patents protecting 1. are either invalidated or procured through the GPLv2 like is the case for OpenJDK

3. Third party infrastructure libraries. Used not to be realistic because of the abysmal manual classpath system SUN set up. Hence SUN's lock on Java, you had to push your lib in the Classpath libraries to have it widely distributed and used. Lock no longer operative now others built real dynamic dep systems (OSGi, maven...)

People build Java apps over 1. 2. and 3. With OpenJDK/GNU Classpath SUn has relinquished its hold on 1. and 2. and there is no possibility of coming back. The worst Oracle can to is hamper the evolution of 1. and 2. in OpenJDK, which will just push new features in 3. And 1. + 2. + 3. is not a zombie but an operational evolving platform

Where is confusion?

Posted Aug 14, 2010 18:37 UTC (Sat) by khim (subscriber, #9252) [Link]

You continue spreading confusion by mixing different things under the "Java" name. What people call "Java" is actually three things.

Perhaps even more, but what this has to do with anything?

1. A JVM. This is the part which has been patented by SUN, and rewritten by Google.

Yup. This part of "off the limits" now.

2. Classpath libraries.

Frozen too.

3. Third party infrastructure libraries... Lock no longer operative now others built real dynamic dep systems (OSGi, maven...)

Yup. You can play in this space as long as you either big enough to ward inevitable Oracle attacks or if you like to live on the minefield. Oracle already showed that it will try to kill any development which threaten it's proprietary Java offers so you can safely add anything to "3" if and only if these additions have no significant value. Why bother with these additions then?

The "rotten core" model. When the traditional "open core" company stifles community the said community can at least fork the project - but here this ability is removed from the start. You can not change core no matter what. You will be sued if you want to move something from proprietary periphery to core. Even if you reimplement it from scratch. In short: the place to be only if you are masochist and like pain and like to see your "babies" killed repeatedly. Do you really think population of masochists is big enough to keep Java alive?

If the "open core" is bad (and often leads to zombie projects where community refuses to participate) "rotten core" model is infinitely worse (and almost guarantee "zombie" status in the near future). In a sense we've back in 2005 with one small difference: where Java was "all the rage" back then it's "tired old technology" now. Where back then people hoped for the future where Java will be truly open today all the hope is lost. In short: Java joined COBOL. I don't think this is what Oracle had in mind, but this is what it done.

This approach was tried many times in the past - and failed many times too. Sometimes community was able to boot "rotten core" from the project and replace it with truly "open core" (GNU/Linux replaced GNU/Solaris and now Google tries to replace JVM with Dalvik in similar fashion), sometimes community was killed instead (for example Darwin and now OpenSolaris), but this situation rarely continue for very long...

The worst Oracle can to is hamper the evolution of 1. and 2. in OpenJDK, which will just push new features in 3. And 1. + 2. + 3. is not a zombie but an operational evolving platform.

No. Oracle already effectively frozen third-party development in "1" and "2" (more effectively then Sun was able to do with OpenOffice.org - I doubt we'll see analogue of Go-OO after this fiasco) and since development of "3" will be under constant threat from Oracle too... there are only two choices: Google wins fight for Android and OpenJDK is replaced with something else (don't necessary Dalvik - it can be completely different implementation like GCJ or something similar) or Google loses and Java becomes true zombie which disintegrates in time.

Oops...

Posted Aug 16, 2010 14:53 UTC (Mon) by nye (guest, #51576) [Link]

>1. A JVM. This is the part which has been patented by SUN, and rewritten by Google.

Practically speaking, it's highly unlikely that any VM, regardless of the targetted language[0], doesn't infringe some of Oracle's patents. Since - unlike Sun - they've shown that they intend to use them, this means that nobody implementing a VM-based language is safe; we just need to hope that Oracle will only bother with deep-pocketted targets. Google obviously made themselves a big target by touting their Java-to-Dalvik compiler.

[0] Unless it's a compliant JVM *and is certified compliant by Oracle's arbitrary choice of test*.

Oops...

Posted Aug 16, 2010 16:03 UTC (Mon) by paulj (subscriber, #341) [Link]

There's another way, besides your 0: Base your VM (it need not be Java compatible) on the GPLv2'd OpenJDK and ensure any code embodying Oracles' patents stays within scope of the GPLv2 patent grant.

Oracle sues Google over use of Java in Android (ars technica)

Posted Aug 14, 2010 10:02 UTC (Sat) by nim-nim (subscriber, #34454) [Link]

>> You'll note that neither Nokia, nor Intel, nor Palm had such squabbles
>> and if they didn't sell as well, that was not for licensing reasons)

> Well Nokia, Intel or Palm only used JavaME, that is why SUN/Oracle does
> not have problems with them.

My point was that the Google Android team fantasised problems with using the (L)GPL, and chose to reimplement all their userspace to avoid those imaginary problems (do you know why Android does not use Lohit fonts? Not because they don't want them, but because they are under a GPL-ish licence). While Nokia, Intel and Palm proved there was no problem whatsoever shipping (L)GPL userspace in mobile gadgets

And now Google got sued precisely because Android's "avoid GPL at all costs" stance made them use a java classpath implementation not covered by SUN legal pledges.

> GPL or no-GPL, the trouble with OpenSolaris shutting down had probably
> more to do with SUN being a control freak with the project,

SUN has been a control freak Java-side too. Yet OpenJDK is 100% functional and passed the TCK. That's because other OpenJDK contributors cared about the free-softwar-iness of it and didn't stop till they had fed SUN all the changes needed to replace leftover proprieary bits, while OpenSolaris contributors were perfectly happy with a partially freed system (because the whole point on avoiding the GPL world, is to permit proprietary forks, and SUN was only doing that). They only woke up when Oracle pulled the rug under them.

> I'm sure if Google had used GPL they will have still gotten sued

I sort of doubt it. Oracle is after money, and burning bridges with GPL users would cost them a lot more than a trial could earn (That's one thing Microsoft never understood. They benefited a lot from customers dissatisfaction with IBM past heavy handed practices, and do not understand their continual attempts at monetirizing Linux have the same affect).

> As for Linux side, do we really have precedence for kernel maintainers
> rejecting patches because the company in question is suing (GPL or
> no-GPL)?

Just annoying enough people no one wants to spend the time reviewing proposed patches would have the same effect.

> Well, it is more like they stomp on whoever has the most monies and gave
> them the opportunity to do so.

However, this monies structure is a direct consequence of the licensing model used. Harmony chose to break with the existing diverse community of players participating in GNU Classpath, and rely on rich sponsors instead, when the first would have deterred Oracle, and the second not at all.