Another Thrown Under The Bus

There will always be people who can't help but engender dissent, and there will always be those who betray their allies. This sad reality is on display in the Open Source world this week as another of the community's foremost commercial supporters is merrily thrown under the bus.

Of the more recent examples, two come to mind. First was Cisco, which was burned at the stake last year as an Open Source archenemy over its Linksys product line. Cisco, as we said at the time, is a gold member of the Linux Foundation (at $100,000 a year), and counts on its rather long list of Open Source activities some 0.5% of contributions to the Linux kernel. Truly the heartless beast.

Then there was Oracle. Also a member of the Linux Foundation — platinum, at $500,000 a year, and with a seat on the Board of Directors — Oracle too is a major contributor to the Linux kernel, the fifth largest in fact, doing three percent of the work. It is also highly active with Eclipse as a Strategic Developer Member — since we're keeping count, that's $250,000 and a seat on the board — and quite a few other projects. Another monster in the shadows, waiting gleefully to stab Open Source in the back.

Who, then, is fated to follow these felonious fakers? IBM, of course. Another Linux Foundation member — also platinum, and also with a seat on the board — and co-holder of the #4 spot on the top kernel contributors list, tied with Novell at 6%. (One wonders whether it's the Foundation's member directory or the stats for kernel contributors that serve as a hit list.) What hath IBM done?

Sold out, it would seem, at least if one reads only the headlines. A letter, allegedly a threat of litigation, surfaced recently, sent by IBM's System z Vice President & CTO Mike Anzani to the president of TurboHercules SAS regarding potential infringement of IBM's patents. ("SAS" denotes a type of French company, roughly equivalent to a limited liability company in the US or a limited company in the UK.) As it happens, TurboHercules SAS provides commercial service/support for the Hercules emulator, an Open Source (QPL) project that allows IBM's z/OS to run on non-IBM hardware.


Fueling the fire was the inclusion in said letter of a list of patents — including two covered by IBM's 2005 Non-Assertion Pledge. The increasingly common fury was not slow in arriving.

So what's really going on? Very little. If one looks at the supposed "threat" letter — the full text — the real story becomes clear. The letter in question is actually one of four, part of an exchange between TurboHercules SAS (the company) and IBM, initiated by TurboHercules last fall.

The suits at the newly-formed TurboHercules SAS wrote to IBM last July, setting out what they planned to offer, and requesting IBM's blessing for their venture. That wasn't all they asked for, however — the letter also requested that IBM develop a special commercial license to allow TurboHercules' customers to run legal copies of z/OS. (IBM does not license z/OS for use on non-IBM hardware, similar to Apple's licensing of OS X.)

IBM wrote back in November, declining to offer their blessing or provide TurboHercules with a special license. In that letter, IBM's System z VP Mark Anzani stated the belief that emulating the System z architecture would require utilizing IBM's intellectual property:

We think that mimicking IBM's proprietary, 64-bit System z architecture requires IBM intellectual property, and you will understand that IBM could not reasonably be asked to consider licensing its operating systems for use on infringing platforms.

The letter goes on to say that IBM doesn't believe that entering into a business relationship with TurboHercules SAS would benefit its business, and notes that IBM provides the same services that TurboHercules intends to offer.

Undaunted, TurboHercules SAS wrote IBM again, asking for a reconsideration, and specifically asking that IBM identify any patents it believed might be infringed upon:

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 that we can investigate that claim. (Emphasis ours.)

TurboHercules SAS's letter goes on to request that "in the unlikely event" that such patents do exist, that IBM add them to the list of patents from its 2005 pledge.

The infamous "threat" letter, sent March 11, is IBM's response to TurboHercules SAS's second letter. It notes that IBM is not inclined to reconsider its decision not to form a business relationship with TurboHercules SAS, and expresses surprise at the suggestion that TurboHercules SAS was unaware that IBM has intellectual property "in this area." It goes on to note:

For illustration, I enclose with this letter a non-exhaustive list of IBM U.S. patents that protect innovative elements of IBM's mainframe architecture and that IBM believes will be infringed by an emulator covering those elements. (Emphasis ours.)

That particular phrasing is interesting, less so because of what it says than what it doesn't say. What it doesn't say is "are infringed by the Hercules emulator." It also doesn't say "are infringed by TurboHercules." In fact, it doesn't say anything is being infringed at all.

Semantics? Maybe, but important nonetheless. If IBM was certain that its intellectual property was being infringed upon, and intended to take action against Hercules or TurboHercules, it wouldn't have come in the form of the March 11 letter. Not by a long shot.

Threats to take action against patent infringement come in the form of Cease and Desist (C&D) letters, which are written by lawyers, not chief technology officers. They are painfully specific — they lay out in excruciating detail exactly what is being infringed upon and who is believed to be doing it. They also say, in no uncertain terms, that the infringement must end immediately, and what will happen if it doesn't. C&D letters are very-carefully crafted, because should the matter end up in litigation, the courts will be looking for very specific elements.

Despite being painted as directly threatening it with patent litigation, IBM never mentions the Open Source Hercules project in either of its letters — only the for-profit TurboHercules SAS. Quite frankly, one wonders whether anyone at IBM has even looked at Hercules itself. Both letters refer back to TurboHercules SAS's descriptions of the software, exclusively. One phrase in particular, "believes will be infringed by an emulator covering those elements", screams of unfamiliarity — it borders on "if such a thing exists."

And the list of patents, including the two from the 2005 pledge? Even if one completely ignores the fact that TurboHercules SAS specifically requested the list — thus falling less under "evil backstabbing threat" than "common courtesy" — the wording once again rings with abstraction. Phrases like "for illustration" don't do much to help fan the flames of fury either.

What is particularly interesting about the March 11 letter however — given that it is supposed to be a threatening letter — is the complete lack of threats. IBM never threatens to do anything about the infringing (if it exists) other than what it has already done, and that is to decline to go into business with TurboHercules SAS.

The matter should have ended there. It didn't.

On March 23 — twelve days after IBM sent them the threatening patent list they requested — TurboHercules SAS filed a complaint with the European Commission, alleging that IBM's refusal to give them a special commercial license so they can sell z/OS with Hercules contravenes European antitrust law. Should the EC actually entertain the complaint, it will no doubt be an interesting ride.

What is obvious, though, is that attacking the largest Open Source contributors will remain à la mode until no company wants to be affiliated with the community — after all, if you're going to be vilified, might as well act the part. Considering the amount of Open Source development being done on the clock — including over seventy percent of coding on the Linux kernel — that's not a very sunny future.


Justin Ryan is a Contributing Editor for Linux Journal.


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IBM and the old DOJ Monopoly Decree

Protektor's picture

Now something I wonder about that I don't think anyone here has thought about or at least I didn't see it mentioned. Did anyone look up the old DOJ antitrust lawsuit against IBM from many years ago (1960's). This is exactly one of the rulings from the case that IBM was *NOT* allowed to do. IBM was, if I remember correctly, not allowed to tie hardware and software sales together anymore, especially on their mainframe products, since that is what the whole lawsuit was about, the monopoly that IBM had in the mainframe market.

Seems to me that unless somehow that legal ruling disappeared for some weird reason, that IBM is breaking their old antitrust lawsuit decree here. I'm not saying that IBM is bad for OpenSource or Linux. I like IBM they do a lot of good for the Open Source community. I do think in this one case where they are tying their mainframe OS to the purchase of the mainframe hardware that they might just be in violation of their old DOJ anti-trust lawsuit that forbid them from doing exactly this. I could be wrong. Unless someone can show that it somehow doesn't apply here, at least in the US, IBM could be in major trouble. It would appear at first blush that they are doing exactly what they were not allowed to do, based on that antitrust case from 1960's.

Also I wouldn't mind seeing this applied to every software company out there. I personally would like to see it ruled that software companies can NOT tell you what computer their software can or can not run on. If you want to run Apple software on your Windows computer through emulation then go for it. If you want to run Apple OS X on Intel hardware then go for it! I don't think companies should be allowed to tell you where and when you can run their software. I think that is anti-competitive and smacks of vendor lock-ins which should not be allowed by law. That is my personal opinion, rather then I suspect how it is, but it is how I would like to see it. Right now I think Apple is the only other company I can think of off the top of my head that does that. I don't know of any other company that cares where or how you get their software to run, as long as you pay for it.

Looks like IBM Mainframe division and Apple are the only two companies, that I am aware of currently, who want to tie general computer hardware to their software.

This is funny. It's like if I

Anonymous's picture

This is funny. It's like if I tried to get Nintendo to give me a special privilege to sell a Wii emulator and then got pissed off when they said no.

If IBM wanted to they could get their lawyers together and own TurboHercules by the time they got out of court. They should be counting their blessings that this matter hasn't already involved lawyers and lawsuits. Though thanks to TurboHercules it appears to be heading in that direction. Awesome.

I understand the open source community doesn't like the idea of intellectual property and and proprietary technologies. But like it or not it's the law of the land. Deal with the way the world is instead of they way you wish it were and you'll get a lot further a lot faster.

special treatment?

Alex Stone's picture

most of the comments tend to view this squabble through the eyes of either/or FOSS or not, and it just may be too much of a one eyed approach.

Taking FOSS and IBM's involvement out of this for a moment, this is a straight forward business tangle. TH want to release software that may infringe on IBM patents, and under the guise of a special license, just for them. IBM gave them the courtesy of declining without lawyers involved, as they're entitled too, and it seems, without the intent of throwing legal housebricks. TH weren't happy with the answer and called in the EU cops. IBM will no doubt evaluate this from a legal point of view, at this stage, and decide what to do next.

IBM may be involved with the FOSS community, but i should imagine they are mature enough to know that community has it's passionate advocates and detractors all wanting to say their piece, and offer their support/condemnation in adequate measure. They've been around a long time, so they may well be experineced enough to take a long view, and not base their business model on a daily or weekly reaction to comments, or business challenges from others.

I'm not sure what this has to do with the FOSS community at all.


Testing the comment system here

Anonymous Troll's picture

This is my first time posting here. I just want to see how easy it is. If when I post it I am asked to register or something, I will cancel. If this comment displays, you will see how easy it is for any old troll to post a comment. That would prove my theory that I am seeing mostly troll postings here. Maybe they are sock puppets - all from the same person. I am assuming they are all trolls because I see nothing wrong with Mr. Ryan's article. I have been following this and I feel he explains the situation very well. I don't think the trolls really have much to gain from their attacks, but perhaps they could succeed confusing somebody. I have to wonder, though, if they feel such a minimal result is worth destroying open discussions for everybody.

Article is on target

Stuart's picture

I agree. I have been reading up on this. I think that this article is right on target. I really don't see IBM's moves as an anti-Open Source move at all. I personally think that TurboHercules is making much ado about nothing. So their business plan has been turned down by IBM. That is IBM's choice!

To quote Shakespeare, TurboHercules and their supporters are "protesting too much". Perhaps their noisemaking will help them gain something in the short term, but all this backbiting could come back to hurt Open Source in the future. I see those who are making these accusations about this situation against IBM as being the real troublemakers and the real anti-Open Source people in this situation. Plain and simple.


Jagg's picture

It saddens me greatly to see the term quote misused. That is not a quote, that is a paraphrase. Unless you happen to be referring to a piece other than Hamlets "The lady doth protest too much". In which case your response shall be very enlightening.


Anonymous's picture

I searched for "Microsoft" in this article. Found nothing. You're lacking research then. They're trying to turn the FS community and IBM against eachother. I'm telling you

Supporters Need to Support the Rules

FGS's picture

With all due respect, have you examined the legal issues here? IBM has to write it like that lest they allow TurboHurcules SAS to seek something called a Declaratory Judgment (and actually fight the patents on grounds like non-infringement). Meanwhile, the letter can be used to establish willful infringement and triple the patent damages. Who can do business with a cloud like that hanging over their heads? If you'd bothered to translate the footer, you would see that TurboHurcules SAS has less than 13,000 Euro to their name. Hardly a company that can fight against IBM or who can afford to carelessly infringe.

And why do you say that we throw them under the bus? I believe that Cisco failed to release the code it was required to under the GPL. I thank companies for their contributions, but we do have to follow the rules around here.

Frankly, though, I'm only a little upset with IBM. I'm a lot more upset with Groklaw and its sneaky, underhanded manipulation of the comments (silent edits & comments that are deleted to everyone but the poster and those who replied) and attempts to whitewash the incident. For the person above who called her coverage good, I suggest you see how she drove Jay Maynard off the site and threw him under the bus, which you can see here:

(This time, with nobody to delete or edit your comments silently for disagreeing with them.)

Maynard is clueless

TechGeek's picture

Jay Maynard is completely clueless when it comes to legal issues. All he sees is that IBM is attacking the Hercules project. They're not.

1. The issue at hand is that IBM refuses to license z/OS to TurboHercules, as is their right. If TubroHercules were to conduct their business without it, they would be infringing on patents that are listed in the letter IBM sent them.

2. IBM (and anyone else) can sue one group for copyright/patent infringement but not another, completely at its whim. There is no evidence that they are upset in anyway with the Hercules project.

3. TurboHercules filed their complaint with the EU over the license issue, the Hercules project really has nothing to do with it.

4. Jay thinks IBM has a 100% monopoly over the mainframe market. There are other companies in the market. IBM, just like Apple, has the right to tie its software to its hardware. Even if by some chance the EU sided with TurboHercules, forcing IBM to license z/OS to TurboHercules would not create more competition in the mainframe market. It would just allow a company with no investment in the technology to siphon money out of IBM's profits.

"Poor" TurboHurcules SAS

milliganp's picture

You misunderstand the declaration at the foot of the TurboHercules letter. The amount is the paid up share capital. For most companies this has little relationship to the operating capital. Given the cost of litigation, no one goes head to head with IBM without good cause and a solid line of credit.

mr ryan, please, you rant from a false premise

Frances Williams's picture

Mr. Ryan, what are you going on about? This "community" you are criticizing overwhelmingly leaped to defend IBM, even before any pertinent facts were in. If anything the "community" erred on the side of cheerleading IBM without understanding what was really going on. IBM is not above questioning and criticizing. Nobody is, unless you think the "community" should be a Gulag that does not tolerate dissent.

I recall that you wrote a few articles some time ago commending Cisco for being a "major kernel contributor!" when in fact they were not. You were for some reason on an I Love Cisco binge. Here you are again with the "Don't badmouth Big Companies Who Write Kernel Codes!" jive. I'm questioning your impartiality as a journalist-- methinks you are too much in love with big business.

It is good to always remember what another commenter here says:
"Just because someone is involved in open source does not exclude the possibility of them being a sneaky little git."

And-- if you're going to write flamebait, do please have something to back it up.

What does IBM stand for?

Anonymous's picture

Idiots Become Managers.


alan_q_someperson's picture

IBM is hardly being "thrown under the bus", particularly when it seems most of the main-stream Linux media is scrambling to its defense.

IBM may come out victim or villain in this affair, but either way it seems as wrong-headed to paint large corporations as "good guys" as it is to label them "bad guys". The truth is, they contribute to FOSS when it is advantageous to them, and fight it when it threatens the business model.

And saying things like "attacking the largest Open Source contributors will remain à la mode until no company wants to be affiliated with the community" is ridiculous; I don't care how much money someone gives to the Linux Foundation, if they violate the GPL or make patent litigation threats, they deserve to be called to the carpet and either corrected or exonerated honestly. Not "sweep it under the rug, because we durst not anger our benevolent overlords".


John Bailey's picture

Often unrecognised fact.

Just because someone is involved in open source does not exclude the possibility of them being a sneaky little git.

And just because someone is involved in closed source for profit business does not guarantee them being a two faced money grabbing git.

sneaky git

Anonymous's picture

I'm stealing that one to quote!

Dude. This article went way

Anonymous's picture

Dude. This article went way off track. The article start out with its main point being about Commercial companies that perished due to lack of financial support from the Open Source community. After that about 1/4 way through the article the author went on a rant defending and "playing devils advocate" for IBM. This hints of an agenda afoot, and the author is the propaganda arm of it.

Yes, I do think the OSS crowd were too quick to light the war torches, but it's another thing to write a biased and ludicrous article such as this.

PJ@Groklaw does a better analysis

Anonymous's picture

TurboHercules' public statements come up wanting.


Anonymous's picture

This Article is just a pointless Flame attempt... seriously... havn't you got something better to do with your time


Raji Ramsharma's picture

Forget IBM. Oracle just destroyed MySQL with Innodb the other day. Imagine that you Linux morons. Imagine companies like Microsoft and Oracle, with billion dollar checking accounts, playing fair with Linux. Just how dumb is the Linux Foundation? Do they think maybe OpenOffice is next?

Ooh, a flame

Doug.Roberts's picture

I hope you brought your wits with you, Raj. There's a new kid on the block and he eats flamers for lunch.



don't bit the hand that feeds you

Anonymous's picture

ditto, we are our own worst enemy. wish more of the community would think twice before trying to burn bridges with important open source contributing companies.

please show everyone the burned bridge

Frances Williams's picture

Where is it? Please give specific examples of anyone of consequence trying to chase IBM away by being all mean to them.

FOSS is the hand that feeds IBM. FOSS does not need IBM; IBM most definitely needs FOSS.

Here are some examples of prominent FOSS supporters and journalists rallying 'round IBM before they even had all the facts of the case:

The bulk of the news reporting was the usual shallow 'he said, she said' crud that briefly outlined both IBM's and TurboHercules' positions, taking no sides with either one.

We Have Met the Enemy

Doug.Roberts's picture

And he is us.

--Pogo, via the late, great Walt Kelly