Taken out of context and grossly misinterpreted [LWN.net]

Taken out of context and grossly misinterpreted

Posted Aug 23, 2010 9:44 UTC (Mon) by anselm (subscriber, #2796)
In reply to: Taken out of context and grossly misinterpreted by Baylink
Parent article: Oracle sues Google over use of Java in Android (ars technica)

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.)

(Log in to post comments)

Taken out of context and grossly misinterpreted

Posted Aug 23, 2010 9:59 UTC (Mon) by FlorianMueller (subscriber, #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).