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.

Uh-oh.

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.

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