Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Posted Aug 13, 2010 15:03 UTC (Fri) by vblum (guest, #1151)In reply to: Taken out of context and grossly misinterpreted by FlorianMueller
Parent article: Oracle sues Google over use of Java in Android (ars technica)
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" ...)
Posted Aug 13, 2010 15:08 UTC (Fri)
by FlorianMueller (guest, #32048)
[Link] (48 responses)
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. 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.
Posted Aug 13, 2010 16:19 UTC (Fri)
by vblum (guest, #1151)
[Link] (42 responses)
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.
Posted Aug 13, 2010 16:30 UTC (Fri)
by rahulsundaram (subscriber, #21946)
[Link] (34 responses)
Posted Aug 13, 2010 17:05 UTC (Fri)
by vblum (guest, #1151)
[Link] (33 responses)
[Well, they could have chosen C to base all apps on. Fortran too, which I would prefer.]
Posted Aug 13, 2010 17:09 UTC (Fri)
by FlorianMueller (guest, #32048)
[Link] (30 responses)
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.
Posted Aug 13, 2010 18:09 UTC (Fri)
by vblum (guest, #1151)
[Link] (29 responses)
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.
Posted Aug 13, 2010 18:17 UTC (Fri)
by FlorianMueller (guest, #32048)
[Link] (28 responses)
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 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.
Posted Aug 13, 2010 21:34 UTC (Fri)
by Wol (subscriber, #4433)
[Link] (19 responses)
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,
Posted Aug 14, 2010 4:25 UTC (Sat)
by FlorianMueller (guest, #32048)
[Link] (18 responses)
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 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. 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. 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.
Posted Aug 15, 2010 22:05 UTC (Sun)
by Wol (subscriber, #4433)
[Link] (17 responses)
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,
Posted Aug 15, 2010 22:58 UTC (Sun)
by FlorianMueller (guest, #32048)
[Link] (13 responses)
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. 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." 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? 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.
Posted Aug 19, 2010 0:16 UTC (Thu)
by Wol (subscriber, #4433)
[Link] (6 responses)
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,
Posted Aug 19, 2010 1:15 UTC (Thu)
by coriordan (guest, #7544)
[Link] (4 responses)
> 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.
Posted Aug 22, 2010 22:41 UTC (Sun)
by Baylink (guest, #755)
[Link] (3 responses)
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?
Posted Aug 23, 2010 5:52 UTC (Mon)
by FlorianMueller (guest, #32048)
[Link]
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. With respect to the 500 patents IBM pledged in January 2005, the pledge said: 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. 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. 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.
Posted Aug 23, 2010 9:44 UTC (Mon)
by anselm (subscriber, #2796)
[Link] (1 responses)
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.)
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).
Posted Aug 19, 2010 2:40 UTC (Thu)
by foom (subscriber, #14868)
[Link]
Posted Aug 19, 2010 20:33 UTC (Thu)
by vonbrand (subscriber, #4458)
[Link] (1 responses)
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?!
Posted Aug 20, 2010 3:07 UTC (Fri)
by FlorianMueller (guest, #32048)
[Link]
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.
Posted Aug 19, 2010 20:37 UTC (Thu)
by vonbrand (subscriber, #4458)
[Link] (3 responses)
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).
Posted Aug 20, 2010 3:24 UTC (Fri)
by FlorianMueller (guest, #32048)
[Link] (2 responses)
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? 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. 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.
Posted Aug 22, 2010 22:47 UTC (Sun)
by Baylink (guest, #755)
[Link] (1 responses)
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.
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".
Posted Aug 16, 2010 11:52 UTC (Mon)
by shmget (guest, #58347)
[Link] (1 responses)
- 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."
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"
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. 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. 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.
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?
Posted Aug 14, 2010 4:27 UTC (Sat)
by jmalcolm (subscriber, #8876)
[Link] (5 responses)
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.
Posted Aug 14, 2010 4:31 UTC (Sat)
by FlorianMueller (guest, #32048)
[Link] (2 responses)
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.
Posted Aug 15, 2010 22:24 UTC (Sun)
by Wol (subscriber, #4433)
[Link] (1 responses)
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,
Posted Aug 15, 2010 23:05 UTC (Sun)
by FlorianMueller (guest, #32048)
[Link]
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. 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.
Posted Aug 15, 2010 22:18 UTC (Sun)
by Wol (subscriber, #4433)
[Link]
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,
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
Posted Aug 14, 2010 15:49 UTC (Sat)
by vonbrand (subscriber, #4458)
[Link] (1 responses)
Please do show your evidence for bias and/or censorship, or shut up.
Posted Aug 14, 2010 16:02 UTC (Sat)
by FlorianMueller (guest, #32048)
[Link]
Posted Aug 13, 2010 18:18 UTC (Fri)
by rahulsundaram (subscriber, #21946)
[Link] (1 responses)
Posted Aug 13, 2010 19:42 UTC (Fri)
by vblum (guest, #1151)
[Link]
Posted Aug 13, 2010 16:37 UTC (Fri)
by FlorianMueller (guest, #32048)
[Link] (6 responses)
Guilty as charged. All of us :-) 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. 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?
Posted Aug 13, 2010 17:01 UTC (Fri)
by vblum (guest, #1151)
[Link]
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.
Posted Aug 14, 2010 12:25 UTC (Sat)
by guest (guest, #2027)
[Link] (4 responses)
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?
Posted Aug 14, 2010 12:45 UTC (Sat)
by FlorianMueller (guest, #32048)
[Link] (3 responses)
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...
Posted Aug 14, 2010 19:03 UTC (Sat)
by guest (guest, #2027)
[Link] (2 responses)
Could you please visit
http://www.ca9.uscourts.gov/datastore/media/2010/06/07/08...
Background:
http://newmedialaw.proskauer.com/2010/08/articles/copyrig...
What do you think of THAT in light of the Psystar's case?
Posted Aug 14, 2010 19:09 UTC (Sat)
by FlorianMueller (guest, #32048)
[Link] (1 responses)
Posted Aug 14, 2010 19:39 UTC (Sat)
by guest (guest, #2027)
[Link]
Okay.
Then, could you please stop claiming that Psystar is not right? Thank you.
Posted Aug 14, 2010 8:13 UTC (Sat)
by guest (guest, #2027)
[Link] (4 responses)
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.
Posted Aug 14, 2010 12:11 UTC (Sat)
by FlorianMueller (guest, #32048)
[Link] (2 responses)
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 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 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. 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/ 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. 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.
Posted Aug 14, 2010 13:09 UTC (Sat)
by corbet (editor, #1)
[Link] (1 responses)
Thanks.
Posted Aug 14, 2010 13:14 UTC (Sat)
by FlorianMueller (guest, #32048)
[Link]
Posted Aug 16, 2010 7:44 UTC (Mon)
by dgm (subscriber, #49227)
[Link]
Taken out of context and grossly misinterpreted
"very suboptimal solution" is a fair statement, ... although it means that you essentially agree with PJ anyway. So no factual reason for an argument.
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.
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Hope you'll make it over at Groklaw when the time comes.
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
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.
Taken out of context and grossly misinterpreted
Wol
Taken out of context and grossly misinterpreted
IBM did NOT assert a patent infringement.
TurboHercules ASKED for a list of ALL patents that covered Hercules, and IBM gave it to them.
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.
Taken out of context and grossly misinterpreted
Wol
Taken out of context and grossly misinterpreted
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?
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.
But what you are being extremely disingenuous about (or you're being paid to be blind to)
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.
Taken out of context and grossly misinterpreted
Wol
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
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,
(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)
since it's legal to make money selling (or giving away, however you choose to look at it) GPLd code
patents apply to *code*, not to activities (as trademark infringement action would, for example)
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
> if it's the GPL they CAN'T sell HerculesTaken out of context and grossly misinterpreted
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
Taken out of context and grossly misinterpreted
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
Taken out of context and grossly misinterpreted
If I infringe on your rights is one thing, if you decide not to go after the matter is something else.
Nobody is trying to twist the meaning of plain English here (except perhaps you are misunderstanding).
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
It is not about IBM having to do business with TurboHercules. It is about IBM preventing their customers to use competing hardware solution.
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
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
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"
Who's a native of what
Taken out of context and grossly misinterpreted
Groklaw's censorship
Leaving me to accept your interpretation of your evidence without sharing it is really just FUD.
Groklaw's censorship
Wol
Groklaw's censorship
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,
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
Wol
Proof for Groklaw censorship now published
Taken out of context and grossly misinterpreted
Please respect the moderator's request to stop discussing that type of matter here: http://lwn.net/Articles/400244/
Please respect the moderator's request to abandon that sub-subissue
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Hm. Now we're really off-topic
"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."
But indeed, perhaps Google could have avoided the mess. We'll see.
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Do you still think that Psystar is not right?
Could you please explain your position, then?
Taken out of context and grossly misinterpreted
http://www.ca9.uscourts.gov/datastore/media/2010/06/07/09...
http://www.ca9.uscourts.gov/datastore/media/2010/06/07/09...
Taken out of context and grossly misinterpreted
Taken out of context and grossly misinterpreted
Wow, talk about taken out of context and grossly misinterpreted
Wow, talk about taken out of context and grossly misinterpreted
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.
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.
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.
A request
A request
Wow, talk about taken out of context and grossly misinterpreted