IBM and the labors of TurboHercules [LWN.net]

By Jonathan Corbet
April 6, 2010

Once upon a time, IBM was seen as the dark force in the computing industry - Darth Vader in a Charlie Chaplin mask. More recently, though, the company has come across as a strong friend of Linux and free software. It contributes a lot of code and has made a point of defending against SCO in ways which defended Linux as a whole. But IBM still makes people nervous, a feeling which is not helped by the company's massive patent portfolio and support for software patents in Europe. So, when the word got out that IBM was asserting its patents against an open-source company, it's not surprising that the discussion quickly got heated. But perhaps it's time to calm down a bit and look at what is really going on.

The story starts with the Hercules emulator, which lets PC-type systems pretend to be IBM's System/370 and ESA/390 mainframe architectures. Hercules is good enough to run systems like z/OS or z/VM, and, according to the project's FAQ, it has been used for production use at times, even if that's not its stated purpose. The project is licensed under the OSI-certified Q Public License.

Enter TurboHercules SAS, which seeks to commercialize the Hercules system. The company offers supported versions of Hercules - optionally bundled with hardware - aimed at the disaster recovery market. Keeping a backup mainframe around is an expensive proposition; keeping a few commodity systems running Hercules is rather cheaper. It's not hard to imagine why companies which are stuck with software which must run on a mainframe might be tempted by this product - as a backup plan or as a way to migrate off the mainframes entirely.

The problem is that systems like z/OS and z/VM are proprietary software, subject to the usual obnoxiousness. In particular, IBM's licensing does not allow these systems to be run on anything but IBM's hardware. So when TurboHercules tried to get IBM to license its operating system to run on Hercules-based boxes, IBM refused. TurboHercules responded by filing a complaint with the European Commission alleging antitrust violations. According to TurboHercules, IBM's licensing restrictions amount to an illegal tying of products.

One need not agree with IBM's position to understand it. IBM understands well the power of commoditizing its competitors' proprietary technology - that's what its support for Linux is all about, in the end. Emulated mainframes running on generic Linux or Windows boxes can only look like an attempt to commoditize one of IBM's cash cows. The fact that this product requires running IBM's proprietary software gives the company a lever with which to fight back. Whether one feels that refusing to license that software in this situation is a proper action or not, one should agree that it's unsurprising that IBM exercised that option.

TurboHercules evidently sent IBM a letter questioning whether IBM actually owned any useful intellectual property in this area. IBM responded with a letter listing 175 patents owned or applied for, all of which are said to apply to IBM's mainframe architectures. Two of these patents, it turns out, are on the list of patents which IBM explicitly pledged not to assert against the free software community.

To many, this looked like the dark side of IBM coming through at last. Florian Mueller wrote:

This proves that IBM's love for free and open source software ends where its business interests begin. In market segments where IBM has nothing to lose, open source comes in handy and the developer community is courted and cherished. In an area in which IBM generates massive revenues (an estimated $25 billion annually just on mainframe software sales!), any weapon will be brought into position against open source. Even patents, which represent to open source what nuclear arms are in the physical world.

Those are strong words, and they strike a chord with anybody in the community who is concerned about the software patent threat. But it is also worth considering IBM's response, as reported in this eWeek article:

In response to a query from eWEEK, IBM issued the following statement: 'IBM sent TurboHercules a non-exhaustive list of patents that pertain to our mainframe technology. We did not make any explicit assertions or claims that TurboHercules had violated them. We were merely responding to TurboHercules' surprise that IBM had intellectual property rights on a platform we've been developing for more than 40 years. We stand behind the pledge we made in 2005, and also our rights to protect our significant investments in mainframe technology.

There are a couple of ways in which one could interpret this statement. Perhaps somebody within IBM has realized that this whole affair does not look very good and has started furiously backpedaling. Or, perhaps, it should be accepted on its face; there is, indeed, no assertion of infringement in any publicly-available communication from IBM - though the March 11 letter, listing patents "that would, therefore, be infringed" comes close. Either way, perhaps this whole thing has been blown just a little bit out of proportion.

At this time, what we have is an argument over proprietary software licensing and European antitrust law. IBM has engaged in the sort of unpleasant behavior which is common to proprietary software; it is a classic example of why many of us try to avoid dealing with that world whenever possible. In response, a formal complaint has been brought against IBM, which has responded with some intemperate rhetoric claiming that TurboHercules is a Microsoft-funded "cheap knock-off" of its mainframe products. And while the waving around of patents is disconcerting, no direct assertion of patent infringement has been made. If IBM were to make such an assertion against Hercules, its credibility and trust within the free software community would suffer considerably. Until that happens, though, it might be best to avoid jumping to conclusions and encourage these companies to work out their proprietary software squabble on their own.

IBM and the labors of TurboHercules

Posted Apr 6, 2010 23:49 UTC (Tue) by Baylink (guest, #755) [Link] (13 responses)

My personal snap reaction here is that IBM's probably telling the truth: the reply letter doesn't imply any intent to go banging anyone over the head with patents.

And overreacting will be the thing most likely to change that, I suspect. Pass it on. :-)

IBM and the labors of TurboHercules

Posted Apr 7, 2010 20:53 UTC (Wed) by baran (guest, #28429) [Link] (12 responses)

Do you really expect ESR to:

- stop overreacting,
- stop pushing,
- leave things be?

;->

IBM and the labors of TurboHercules

Posted Apr 7, 2010 20:57 UTC (Wed) by Baylink (guest, #755) [Link] (9 responses)

No, I know Eric better than that.

And if he were involved in this incident *in any way*... I'd be worried.

But he didn't write the piece, and he doesn't work on the project (so far as I can determine), and he's not involved with TurboHercules (same disclaimer), so... why are we talking about him again? :-)

IBM and the labors of TurboHercules

Posted Apr 8, 2010 2:06 UTC (Thu) by glennc99 (guest, #6993) [Link] (8 responses)

Why are we talking about ESR? Because he's posted twice on his blog so far about this very topic.

IBM and the labors of TurboHercules

Posted Apr 8, 2010 2:09 UTC (Thu) by Baylink (guest, #755) [Link] (6 responses)

Well that's fine, but it doesn't require me to have *noticed*; I stand by my original response. :-)

ESR has a blog?

IBM and the labors of TurboHercules

Posted Apr 8, 2010 10:52 UTC (Thu) by baran (guest, #28429) [Link] (5 responses)

Unfortunately. (Google for the ultimately pathetic phrase 'armed and dangerous' + blog)

And he seems to have a personal stake in the whole brouhaha, so this might be quite interesting ride.

IBM and the labors of TurboHercules

Posted Apr 8, 2010 11:46 UTC (Thu) by nix (subscriber, #2304) [Link] (4 responses)

ESR's personal stake is probably that they're threatening a project forked from a project that a friend of his is maintaining. I don't see anything suspicious in that.

IBM and the labors of TurboHercules

Posted Apr 8, 2010 14:16 UTC (Thu) by Baylink (guest, #755) [Link] (3 responses)

I hadn't realized that ESR and Jay "you ignorant splut" Maynard were buddies, though I probably shouldn't be surprised...

IBM and the labors of TurboHercules

Posted Apr 8, 2010 14:22 UTC (Thu) by Baylink (guest, #755) [Link] (2 responses)

And FWIW: ESR's reaction is much closer to mine than to Florian's; remember, Eric's been married to an attorney for most of the decade...

IBM and the labors of TurboHercules

Posted Apr 12, 2010 13:04 UTC (Mon) by baran (guest, #28429) [Link] (1 responses)

BTW, I'm slightly disgusted when I'm looking at the defend-the-good-ol'-IBM-at-all-cost reaction at Groklaw; it seems that PJ's own civility is really tested by any less-than-enthusiastic opinion with regard to IBM, i.e. she's overreacting there in a very unpleasant manner. (And of course, Mr. Schestowitz is now in his usual full-paranoia trolling mode as well.)

If it would not be so pathetic, it would be quite amusing to watch.

IBM and the labors of TurboHercules

Posted Apr 15, 2010 23:16 UTC (Thu) by stumbles (guest, #8796) [Link]

Really? Hm. Next to a lawyer, I could give PJs thoughts on this matter far more weight than just about anyone else that has wasted electrons on this farce. BTW, your weighted value is nil.

IBM and the labors of TurboHercules

Posted Apr 8, 2010 15:26 UTC (Thu) by blitzkrieg3 (guest, #57873) [Link]

Every article I've read on the topic has included quotes and a link to the Florian Mueller blog post. None of them mentioned ESR.

IBM and the labors of TurboHercules

Posted Apr 8, 2010 11:45 UTC (Thu) by nix (subscriber, #2304) [Link] (1 responses)

Note further that the current maintainer of Hercules is a friend of ESRs with similar political opinions and a similar habit of pushing hard when he thinks things are wrong -- and also the original coiner of the epithet 'General Public Virus'. (He's a very nice guy and eminently reasonable as long as you stay away from the subjects of copyright licenses and politics. Much like ESR. It takes all kinds to make a world, but some of his opinions are... eye-opening to a European. Personally I like having my eyes opened, even if you could sometimes use the resulting flamewars to melt Antarctica...)

(Of course, *I* would ever jump to conclusions or overreact about anything whatsoever, so it is not hypocritical for me to point it out in others. Call it, uh, 'close personal experience' of wild overreaction, if you like.)

(I long ago lost track of who in this mess is accusing whom of being secretly funded by Microsoft to Linux's detriment, but I can state without fear of contradiction that if the Hercules maintainer is being secretly funded by Microsoft he's truly superb at concealing it. I'm reasonably certain he'd turn down any such funds and make a very loud noise about it if he was.)

IBM and the labors of TurboHercules

Posted Apr 11, 2010 19:08 UTC (Sun) by Baylink (guest, #755) [Link]

It's odd. I've interacted with Jay on the net in the (distant) past, and I don't really remember him being like that...

Another IBM statement

Posted Apr 6, 2010 23:51 UTC (Tue) by corbet (editor, #1) [Link] (1 responses)

I encountered this Wall Street Journal post after putting the article up. They have a new statement from IBM which reads a bit less well: "In 2005, when IBM announced open access to 500 patents that we own, we said the pledge is applicable to qualified open-source individuals or companies. We have serious questions about whether TurboHercules qualifies. TurboHercules is a member of organizations founded and funded by IBM competitors such as Microsoft to attack the mainframe. We have doubts about TurboHercules motivations."

Another IBM statement

Posted Apr 7, 2010 4:06 UTC (Wed) by zorro (subscriber, #45643) [Link]

I also have to say that "We stand behind the pledge we made in 2005, and also our rights to protect our significant investments in mainframe technology" is not very open to charitable interpretation. It sounds more like "We will not sue you unless we want to".

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 7, 2010 0:23 UTC (Wed) by dlang (guest, #313) [Link] (18 responses)

all you people who were cheering the demise of pystar because apple was able to prevent them from installing OS/X on non-apple hardware need to step back and think about what you are doing.

In this case it appears that IBM is doing very much the same thing, selling software with the limitation that it can only be run on their hardware.

I happen to think that this is a dangerous route to go down, but there appear to be a LOT of people in the opensource community who were cheering apple in their fight with pystar, these same people should be cheering IBM.

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 7, 2010 5:16 UTC (Wed) by pabs (subscriber, #43278) [Link] (9 responses)

Who are these pystar haters? I never heard of such a person. Most FLOSS folks ack any statement about Apple being evil.

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 7, 2010 6:17 UTC (Wed) by Los__D (guest, #15263) [Link] (8 responses)

Pamela of Groklaw, for one.

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 7, 2010 6:22 UTC (Wed) by dlang (guest, #313) [Link] (7 responses)

Groklaw (Pamala and many other posters there) were _very_ vocal about this, but from other sources I was hearing either support for Apple (mostly mild, but support), or deafening silence. I don't remember hearing anyone supporting Pystar, either as official orginizations or individually

Apple killed Psystar

Posted Apr 7, 2010 6:53 UTC (Wed) by butlerm (subscriber, #13312) [Link] (6 responses)

If Psystar had done its due diligence before entering into such a risky
enterprise (and had better legal counsel) it is quite possible that they
could have won, because U.S. copyright law allows the legitimate owner of a
copy of software, or their authorized agents, to make an adaptation necessary
to run software on a machine. That and a successful establishment of the
gratuitous nature of retail shrinkwrap "licenses" in the case could have
allowed them to prevail.

Apple killed Psystar

Posted Apr 7, 2010 19:43 UTC (Wed) by rahvin (guest, #16953) [Link] (5 responses)

They tried that approach, the Judge told them he wouldn't let them use it as a defense.

PJ and the apple lovers have always been wrong about apple, but do you see PJ doing any articles on Apple suing HTC over Android and how it's a direct attack on Linux? Nope. There is a very large group of FOSS supporters that like Apple and have no Idea how much Job's hates FOSS, and he does hate it.

Apple killed Psystar

Posted Apr 8, 2010 11:47 UTC (Thu) by nix (subscriber, #2304) [Link] (4 responses)

I don't think Jobs hates free software per se. He hates loss of control, and he hates having people muscling in on a lucrative near-monopoly -- but he plainly has no objections to e.g. GCC (at least when it was GPLv2-or-above licensed).

Apple killed Psystar

Posted Apr 8, 2010 16:53 UTC (Thu) by rahvin (guest, #16953) [Link]

My view is he doesn't mind FOSS as long as he can use it, but if it starts competing against him he will attempt to destroy it. Mark my words, Apple will eventually sue a FOSS company using software patents. He's already directly sued Linux but through HTC.

I wouldn't be surprised if in some future period RedHat or Ubuntu started eating into Apple market share and Apple then launched a suit against them. He's clearly hostile to FOSS if it competes against Apple in any way. From some of the interviews I've read he's extremely quick to threaten with lawyers. Has everyone forgotten that he sued MS over the look and feel of Windows? Half the patents he sued HTC over are absolutely ridiculous, the equivalent in the physical world would be patents on the location of a switch, frankly I'm astounded the patent office granted them. The key point is he will use them as weapons, far more quickly than MS will.

Apple killed Psystar

Posted Apr 8, 2010 17:15 UTC (Thu) by yanfali (subscriber, #2949) [Link]

Apple, like most commercial software companies, would prefer LGPL, BSD, MIT or Apache style licenses. GCC is a major thorn for them, which is why they've made extensive investments in LLVM and Clang.

It's also highly likely that Webkit, their fork of KHTML, was attractive because of it's LGPL license.

Apple killed Psystar

Posted Apr 10, 2010 8:43 UTC (Sat) by paulj (subscriber, #341) [Link] (1 responses)

Would that be the same Jobs whose NeXT wanted to subvert the GPL licence on GCC by distributing their Objective-C frontend as binary only files?

Apple killed Psystar

Posted Apr 10, 2010 12:36 UTC (Sat) by nix (subscriber, #2304) [Link]

Yes, but they couldn't do that, and when that was made clear to them they assigned ObjC to the FSF, which they could have chosen not to do.

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 7, 2010 5:17 UTC (Wed) by felixfix (subscriber, #242) [Link] (6 responses)

I also wondered about the pystar kerfuffle. They seem to have bent the copying protocol pretty severely, but they apparently did pay for their copies. It has always seemed to me that if I buy something, it is mine. If I buy a CD or DVD and scratch it, or copy it to my computer, not a problem. If I give copies to friends, that's a problem, and I don't do that. If I take my copy to friends to watch, that's not a problem. If I loan it to them, that's not a problem; I do it for books. People use my computer. They can use my DVDs or CDs. They are mine; I paid for them.

If I buy a computer and copy the proms, roms, or OS itself, that's not a problem. I paid for it, it's mine.

I never understood the Microsoft license nonsense that if you give or sell a Windows PC, you must erase Windows software first. Why? I bought it, it's mine, I can sell it. I can't keep a copy after I sell it.

There are a ton of circumstances that seem so contrived legally that I do not understand them. If I buy something, it is mine.

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 7, 2010 12:45 UTC (Wed) by mpr22 (subscriber, #60784) [Link] (5 responses)

Also, I believe Psystar partly fell foul of the DMCA anti-circumvention rules, the argument being that the handshaking between MacOS X and the Apple firmware is an "effective technical measure" (which I certainly agree with in the strict literal sense; you can't defeat that handshaking accidentally).

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 7, 2010 14:39 UTC (Wed) by nix (subscriber, #2304) [Link]

Unfortunately for them, the first sale doctrine covers exactly this case! but big money has influenced the courts, so this is an area of 'legal confusion' (which appears to mean 'everyone settles fast rather than allow precedent to be set').

(IANAL of course)

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 7, 2010 16:31 UTC (Wed) by butlerm (subscriber, #13312) [Link] (3 responses)

I believe Big Software's underlying legal argument is that you are buying the installation media and a (frequently non-transferrable) copyright licence to the software stored on the installation media

That argument is wishful thinking. If the end user owns the media, he or she doesn't need a license to use it, and as such a retail EULA is entirely superfluous. See here. The only straightforward way around this is to lease rather than sell the physical media to users. Either that or get Congress to up end a century of copyright law.

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 7, 2010 20:40 UTC (Wed) by smoogen (subscriber, #97) [Link]

Sadly I do not think it is wishful thinking but instead probably how the courts are seeing it. The link you have points to 3 cases in the 9th district which have not reached the Appeals level so aren't precedent setting. I believe that other districts have sided more with business that the first sales only covers the media and not the software itself. [Going along the lines, that you can sell the book, but you can't sell the words inside the book as they are the property of the author. Or you own the paper, the binding, etc but not the thoughts of the author so you could not scan in the book, reprint those words and sell that second book.]

Until a case goes to the Supreme Court, it is all pretty much district by district decisions...

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 8, 2010 11:24 UTC (Thu) by mpr22 (subscriber, #60784) [Link] (1 responses)

First sale doctrine (which I wholeheartedly support as the principle by which the matter ought to be treated under the law!) probably interacts... interestingly (or at least, so the lawyers will paint it) with software bought pre-installed, especially if you only got "recovery media" instead of a normal distribution of the OS. (Also, the world is not the USA; copyright law varies in all kinds of exciting ways from country to country.)

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 8, 2010 22:39 UTC (Thu) by dlang (guest, #313) [Link]

in the pystar case it has nothing to do with pre-installed software.

apple killed pystar by being able to limit what hardware it's software runs on

Posted Apr 8, 2010 15:05 UTC (Thu) by BenHutchings (subscriber, #37955) [Link]

In this case it appears that IBM is doing very much the same thing, selling software with the limitation that it can only be run on their hardware.

I'm not sure whether that's the case, but the real killer seems to be that IBM bundles mainframe hardware and operating systems. Due to their monopoly permission in the US in the early days of commercial computing, they were required by the US government to start selling rather than only leasing computers, and later to sell hardware and software separately. In 2001 these requirements (the 'consent decree') was lifted, killing off all IBM mainframe clones. The company behind TurboHercules is complaining that IBM still has monopoly positions in mainframe hardware and software and should again be required to sell them separately rather than using these two monopolies to reinforce each other.

While I don't particularly like the way Apple tries to restrict how people use its software - which is sold separately there really isn't the same issue of monopoly; Apple has <10% share of the desktop market.

IBM and the labors of TurboHercules

Posted Apr 7, 2010 0:36 UTC (Wed) by roc (subscriber, #30627) [Link]

Asserting that an open-source project infringes an IBM patent isn't obnoxious. IBM can't have promised that no free software *infringes* its patents --- that's not under their control (and if it was true, any pledges they made of non-aggression would be meaningless!). What would be obnoxious is IBM requesting licensing fees or threatening a lawsuit.

Why not refuse indirectly?

Posted Apr 7, 2010 4:01 UTC (Wed) by nikanth (guest, #50093) [Link] (4 responses)

"So when TurboHercules tried to get IBM to license its operating system to run on Hercules-based boxes, IBM refused. "

Instead of refusing to license its OS to run on Hercules-based boxes, if IBM demands a very HUGE licensing fee, what would happen? Or is that also possibly illegal?

Why not refuse indirectly?

Posted Apr 7, 2010 5:43 UTC (Wed) by rvfh (guest, #31018) [Link] (3 responses)

I suppose IBM can do what they want with their software, and I can't blame them for that.

The question is: did they break their pledge to not assert these patents against free software projects? So far, the answer is no.

They just don't want to lose their investment and source of revenue to another company, whether selling stuff based on free software or not.

Why not refuse indirectly?

Posted Apr 7, 2010 8:37 UTC (Wed) by drag (guest, #31333) [Link] (2 responses)

Yes... Apparently IBM has not threatened them or anything after all.

To paraphrase:

TurboHercules: We want you to license your proprietary software to run on our software so we can take your customers using your proprietary software.

IBM: Ahh.... No.

TurboHercules: *Files a complaint with EU*

TurboHercules: What exactly do you have that prevents our customers from running your software on our software?

IBM: *sends short cover letter + patent list*

TurboHercules (to everybody): Help! Help! I'm being oppressed! *posts letter to internet*

-----------------

So it's not so much IBM threatening a open source project as much as IBM sending a implied threat to a company that wants to use IBM's software in violation of IBM's licensing.

Still sucks. But that's normal for proprietary software. Which is why people should not get locked into the stuff in the first place (hind site being 20:20 and all that)

I don't trust IBM, as nobody here should trust them either, except I can trust them to continue to support Linux because Linux is now making them money and their customers are using Linux (and open source software) and are paying for IBM's services.

Threatening and pissing off your own customers is not only bad form, but pretty stupid. Combining that with threatening and pissing off the people that write the software you make money from is just straight stupid no matter how you look at it. IBM is not that stupid.

You missed the proprietary word

Posted Apr 7, 2010 14:40 UTC (Wed) by southey (guest, #9466) [Link] (1 responses)

It should say:
TurboHercules: We want you to license your proprietary software to run on our proprietary software so we can take your customers using your proprietary software.

IBM does not currently violate it's agreement since this involves proprietary software involved not open source software.

You missed the proprietary word

Posted Apr 7, 2010 19:46 UTC (Wed) by hingo (guest, #14792) [Link]

So this is something I haven't seen addressed, and didn't find out myself after 1 minute of searching: Is the software sold by Turbo Hercules 100% the open source thing, or is it an open core model where they add proprietary enhancements to the open source code?

IBM and the labors of TurboHercules

Posted Apr 7, 2010 5:31 UTC (Wed) by einstein (subscriber, #2052) [Link] (2 responses)

I have no idea what these people are thinking when they run around reviling
and dumping on IBM, claiming they've broken a promise to the linux and open
source community.

Just out of curiosity, what does a microsoft-funded competitor to IBM have
to do with linux or FOSS?

And on what grounds do these people object to IBM not wanting to give away
the store to these folks?

IBM and the labors of TurboHercules

Posted Apr 7, 2010 17:00 UTC (Wed) by nix (subscriber, #2304) [Link] (1 responses)

There does appear to be a lot of unchecked wild accusation going around here. IBM accuses TurboHercules of being a Microsoft front: PJ accuses Florian of being a Microsoft front: why not just say everyone is a Microsoft front and start a march on Seattle demanding our overdue paycheques? ;)

IBM and the labors of TurboHercules

Posted Apr 11, 2010 14:32 UTC (Sun) by salvarsan (guest, #18257) [Link]

The inference of Microsoft's involvement was made by a european party who had previously worked opposite Florian Mueller, an anti-open_source EU lobbyist. The imputation of MS' hand gets more credence since TurboHercules runs on MS Server 2008 and nothing else.

If TurboHercules ran on an RHEL or Centos distro, how would this be different? Would IBM, et.al., point fingers at Red Hat?

IBM and the labors of TurboHercules

Posted Apr 7, 2010 8:10 UTC (Wed) by mjr (guest, #6979) [Link]

Thanks for the sane look at the matter.

Indeed IBM has not gone back on their word wrt. the 500 patents (yet, anyway, and I doubt they will); more to the point, this case should bring into question whether the 500 patents were an empty gesture to start with, what with IBM's massive portfolio of _other_ patents to utilize.

As for licensing software to be used only on spesific hardware, indeed that too is all too common in the proprietary world, but not really something to be encouraged (I would go as far as to say that licensees should be legally allowed to run their legal software on whatever computers they like). Especially in this case there does seem to be a plausible workaround to IBM's terms (for temporary failover functionality, anyways), but IANAL.

If IBM wants to plug the workaround in their terms, I suppose they can change the license terms for future versions of their mainframe OSes, and risk alienating more of their customers. However, even preliminary threats against this free software emulator with their patent portfolio (most of which are not subject to the promise) is something that can and should be heavily critisized. This is a road no company should be allowed to take without significant loss of goodwill, if nothing else.

IBM and the labors of TurboHercules

Posted Apr 8, 2010 3:17 UTC (Thu) by niv (guest, #8656) [Link] (2 responses)

Given all the rampant speculation, the informed, partially informed and entirely uninformed comment all over the web on this story, I thought I'd point to an authoritative statement from IBM posted on Jim Zemlin's blog just a short while ago: Jim Zemlin Blog - IBM Patent Pledge Statement.

IBM and the labors of TurboHercules

Posted Apr 11, 2010 19:15 UTC (Sun) by Baylink (guest, #755) [Link] (1 responses)

That does in fact sound authoritative.

Next question: Is what TH is shipping the bare GPLd Herc emulator?

TurboHercules license

Posted Apr 12, 2010 6:52 UTC (Mon) by jrn (subscriber, #64214) [Link]

I dont know. Hercules itself, while Free, is not GPL software.

IBM and the labors of TurboHercules

Posted Apr 9, 2010 0:20 UTC (Fri) by giraffedata (guest, #1954) [Link] (1 responses)

The strange thing about IBM not wanting TurboHercules to sell product is that, last I checked, IBM doesn't offer anything in this area. About 5 years ago, IBM announced it would no longer make small-scale System Z (fka System/370, etc.) systems, because the market for that scale had gone to other architectures. It said in the future, small scale System Z would be done as emulators on top of PC-like machines. And then never offered any such emulator. So why doesn't IBM embrace TurboHercules and take a piece of it via patent and software copyright licensing?

Incidentally, about the same time that IBM declared the future of small scale System Z was emulators, it killed the other company that was doing emulators: Fundamental Software, Inc. FSI had a much stronger position than Hercules at the time, and people commented that IBM was strangely ignoring Hercules and Hercules' day would probably come eventually. FSI had a working relationship with IBM and I believe had licenses, which IBM simply decided not to renew. That led me to believe IBM would soon offer its own similar product, but it never happened.

So what's going on?

IBM and the labors of TurboHercules

Posted Apr 9, 2010 1:17 UTC (Fri) by skitching (guest, #36856) [Link]

I agree that IBM's current course seems weird. IMO it would make far more sense for IBM to *buy* TurboHercules than to sue them.

Customers who need high reliability and high throughput will stay with their mainframes; the "real thing" gives them value that an emulator on top of commodity hardware does not.

But for those scenarios where a real mainframe isn't actually needed (development environments, backups, old non-critical software that only runs on mainframes), blocking alternatives mean that IBM are just screwing their own customers by forcing them to pay for features they don't need. And sooner or later that bites back.

If IBM were to offer their own emulation environment based on Hercules, wouldn't most potential customers rather buy from IBM than a competitor? After all, who is in the best position to offer quality support and bugfixes? RedHat certainly does well selling support for open-source-based projects; IBM could do the same without needing to apply legal force. And TurboHercules are the current experts; bringing them in-house and adding a few select IBM mainframe experts would make them the undisputed leaders in the field. Yes they might not earn those juicy Mainframe premiums, but not extorting money from your customers has its own value.

The charge of breaking their don't-sue-open-source promise isn't yet justified; technically they just noted that they *do* have patents in this area, not that they are intending to enforce them.

However on their current course, I think "anti-competitive" seems an entirely fair description of their behaviour so far, and on this front IBM deserve any trouble they get. And on recent record the EU might just give it to them..

IBM and the labors of TurboHercules

Posted Apr 13, 2010 22:36 UTC (Tue) by mgalgoci (guest, #24168) [Link]

What's an ESR? Some kind of extended status register?

IBM and the labors of TurboHercules

Posted Apr 15, 2010 15:30 UTC (Thu) by ramme (guest, #4522) [Link]

First, I *love* linux. I've been using Linux since '96 (Slackware, Redhat, OpenSUSE).
But, if I were IBM --being a commercial company, I would fight for my cash cow. They have a right to defend their proprietary technology.
This company has done more for the open source community that we'll ever be able to expect from Microsoft.
So, we should leave IBM alone.
It's silly to think that if one created an open source alternative that anything proprietary related to this has to be made 'open'.
As much as I'm a proponent of open source -- there is a freedom for the decision to be made for software to be open or closed.

Roy

IBM and the labors of TurboHercules

Posted Apr 16, 2010 1:29 UTC (Fri) by jordanb (guest, #45668) [Link] (1 responses)

> Darth Vader in a Charlie Chaplin mask.

What?

IBM and the labors of TurboHercules

Posted Apr 16, 2010 3:43 UTC (Fri) by dmaxwell (guest, #14010) [Link]

In the early eighties, IBM had a very prominent ad campaign that featured a Charlie Chaplin look alike. And there was a time when IBM got the loathing that MS gets now.

Amdahl in the 1970s

Posted Apr 17, 2010 14:42 UTC (Sat) by ableal (guest, #57174) [Link]

I seemed to remember a similar issue with IBM from the 1970s. A cursory search popped this up (http://en.wikipedia.org/wiki/Amdahl_Corporation):

"Amdahl owed some of its success to antitrust settlements between IBM and the U.S. Department of Justice, which assured that Amdahl's customers could license IBM's mainframe software under reasonable terms."

Also (http://en.wikipedia.org/wiki/Gene_Amdahl):

"By purchasing an Amdahl 470 and plug-compatible peripheral devices from third-party manufacturers, customers could now run S/360 and S/370 applications without buying actual IBM hardware. Amdahl's software team developed VM/PE, software designed to optimize the performance of IBM's MVS operating system when running under IBM's VM operating system."

Corbet and the labors of getting informed

Posted Apr 21, 2010 6:56 UTC (Wed) by frank_0 (guest, #65529) [Link]

Commercial TurboHercules did not 'respond' to an IBM refusal with a complaint to the EC. They complained before receiving the refusal, not even 4 months after expressing surprise that IBM had any IP around zOS and requesting details of encroachment with emulator Hercules. In those 4 months they did not contact IBM about their query.

Second, the new zOS is 64-bit. the 32-bit version has been discontinued and IBM does not issue any licence for it. No 32-bit licences, is that difficult to understand? There was already a court case in New York trying to force IBM to issue such licences. IBM won. The EC complaint is the same: they want the 32-bit licence.

And third, the patent brawl is just a side show. IBM has tolerated the Hercules project for 10 years and has no reason to assert any patents against it. They are irrelevant. And IBM does not need to assert patents against TurboHercules because TurboHercules is dead without the 32-bit zOS licence.

Hello, Jonathan Corbet, what about doing your home work?