TOO MUCH flak would be bad for IBM and its GNU/Linux venture in mainframes, but too much IBM apologism would give IBM the signal that it is free to misbehave and get away with anything.
Despite the temptation to believe that some companies are unequivocal supporters of free and open source software, we should never forget that all for-profit companies are actually reptiles, acting instinctively on behalf of their shareholders and not acting on the basis of intellectual or philosophical insight. An expression of support will inevitably be a statement by a group of people within the company, motivated by a business activity. It will have been made in the context of a set of tensions between different priorities and with other groups of people in the same company. It will be the direction instinct has been steered by the availability of “food” and the presence of “threat”. Every expression of support – or act of aggression – needs to be seen in that light.
An important part of my job at Sun was to monitor actions they took that affected communities. I monitored the flow of requests to use and release open source code, ran the Ombudsman service so that I was first to hear of community issues, and acted as a (mostly!) ‘trusted friend’ to Sun’s legal staff prior to any action they took. At regular intervals throughout my five year tenure, I spoke up for communities and ensured that the actions taken in Sun’s name were not harmful to a community or Sun’s FOSS reputation. On some occasions I even had to request executive back-up for my position, in effect requesting a veto power.
Regardless of the merits of IBM’s case against TurboHercules, the fact the incident has happened at all is an important signal. I can’t for a moment believe this is the first time since IBM’s patent pledge that any part of the company has wanted to act against a community participant. We can see the tension between the statement Dan Frye makes through the Linux Foundation and the statement of another IBM spokesperson in the WSJ attempting to say the Pledge doesn’t apply to everyone. To hazard a guess, the competition is now characterised by Google – a huge user of and contributor to open source software – instead of IBM’s old foes, Microsoft and Solaris.
It’s no secret that I’m a big Free Software fan. It’s no secret that IBM is a giant company with more money than I can possibly imagine. So I was pretty happy in 2005 when IBM, in an obvious PR stunt to get buddy-buddy with the open source community, made its Statement of Non-Assertion of Named Patents Against OSS, ostensibly saying that it would permit open source projects to use any of the items covered by those patents without risk of penalty or lawsuit. Yay! Finally, a BigCo getting it and doing the right thing! But five years is a long time, people come and go, and promises can be forgotten. IBM has lately threatened to sue someone for infringement of a lot of IBM patents, including at least two that were included in the Non-Assertion statement.
[...]
More plausibly, what I think is going on here is one of two things. Either the lawyers got a little over-excited in creating the non-exclusive list of patents used to threaten TurboHercules and included two patents covered by the Non-Assertion statement; or IBM thinks they’re free to sue the company, and not the open source project itself, for the patent infringement. My guess is it’s the latter.
An organization created to protect Linux vendors from patent trolls has scored a new member, consumer VoIP device provider Ooma. Ooma is the second new company in as many months to join the the Open Invention Network (OIN). In March, another VoIP vendor, Guest-tek joined.
As Inna Kuznetsova, IBM's VP, Marketing & Sales Enablement for Systems Software and former director of Linux Strategy, told me, "We stand by our pledge of 500 patents to the open-source community. The pledge is applicable to any individual, community or company working on or using software that meets the OSI definition of open source software - now or in future. The letter in question was not a legal document but a part of ongoing dialog between IBM and TurboHercules. Intentionally taking things out of context to create FUD and throw doubt on IBM's commitment to open source is shameful and facts-twisting. "
[...]
Come on! What really bothers about this entire affair though isn't the patent issue at all. To me, IBM's letter strikes me as business as usual in a world with software patents. Given my druthers, we wouldn't have software patents period and, IBM, really, would it kill you to work with TurboHercules? I see their efforts as being more complementary than competitive to your mainframe business. No, what really bothers me is how this has turned into an ugly mud-slinging mess with IBM as the target.
--Linus Torvalds, 2007
It’s been fascinating to watch so many commentators on the open source world drawing a tight circle in defence of IBM over the last day. We’ve seen PJ at Groklaw coming to some highly questionable semantic conclusions in order to leave IBM with no case to answer; the Linux Foundation parroting IBM’s original pledge without asking the hard question; SJVN rubbishing me and ignoring the actual point; Joe Brockmeier at least willing to say IBM has an issue but pulling far short of calling for an explanation. For more balanced views you have to look further afield – to CrunchGear or to Thomas Prowse for example. Presumably those two (like me) aren’t on IBM’s PR calling list!
What’s fascinating is the way people I would have expected to remain balanced instantly sprang to IBM’s defence without any hint that IBM owed the FOSS community an answer. Maybe it’s a consequence of being allowed little grace over the last 5 years, but I wish we could hear a little less lionising of IBM and demonising of anyone that questions them. Calling to account is different from judging.
Comments
your_friend
2010-04-10 15:50:20
IBM's big sin is to use software patents for business purposes instead of using their lobby power to eliminate them. Software patents damages all companies that deal in software, not just the ones that use free software. Software patents are business method patents, an abomination that should not exist in the first place. Business and society will always suffer from instability when laws violate common sense and basic principles like that.
Dr. Roy Schestowitz
2010-04-10 15:58:16
The indemnification advantage is also a way for IBM to suppress use of GNU/Linux not from IBM.
your_friend
2010-04-11 05:40:12
and
your_friend
2010-04-12 00:59:56
PJ has a lot of updates that show that TH is indeed just a Microsoft proxy making trouble. The most interesting one is this: and She also claims that IBM is acting in “self defense” against software that is nor really “open source” which is not covered by the 2005 pledge. TH turns out to be a provider of Windows based junk under a FSF rejected license and a promoter of Windows Server and Vista, fraud in and of itself. This does not make software patents right but it does make IBM consistent with itself. Most reporting of this latest game by Microsoft is grossly inadequate.
Dr. Roy Schestowitz
2010-04-12 01:56:13
I am still concerned about IBM's patent policy in Europe (since 2008 when I first found out through the FFII).
saulgoode
2010-04-13 16:58:30
The "threat" occurred in IBM's previous letter to TurboHercules: "We think that mimicking IBM's proprietary, 64-bit System z architecture requires IBM intellectual property, and you will understand that IBM could not be reasonably asked to consider licensing its operating system for use on infringing platforms."
The request for the list came after IBM asserted that their "intellectual property" rights would be infringed by the TurboHercules software (i.e., Open Source Hercules code).
Miss Jones is thunderously wrong if she feels that IBM is "free to sue the pants off" of any Open Source codebase and not provoke the ire of the Free Software community. Yes, IBM has contributed a great deal to our community but that does not mean they deserve immunity from criticism when they affect threats using software patents.
Though the reasoning may be completely abstruse to those of us who lack the legal acumen of Miss Jones, IBM's pledge did not specify "Open Source" as determined by Pamela Jones -- irresponsibly opting for reliance upon the Open Source Initiative's judgment instead. Imagine that!
Dr. Roy Schestowitz
2010-04-13 18:16:18
your_friend
2010-04-14 04:19:16
saulgoode
2010-04-15 14:55:59
Who has made such a claim? Regardless, I fail to see how whether TurboHercules qualifies as an "open source company" should bear any relevance to a discussion about whether the open source software it is providing might be liable for patent infringement.
When TomTom was sued over their use of open source software implementating Microsoft's VFAT filesystems, did the Free Software community just ignore the lawsuit because TomTom likewise doesn't qualify as an "open source company"? Should it be considered acceptable that Microsoft employ patent threats against its competitors who distribute Linux "commercially" just so long as they don't go after the kernel developers or non-commercial distros?
saulgoode
2010-04-12 17:12:16