EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

04.09.10

Why IBM Does Deserve Scrutiny (Updated)

Posted in Apple, GNU/Linux, IBM, Microsoft, Patents, Servers at 10:32 am by Dr. Roy Schestowitz

Linus Torvalds

Summary: Techrights responds to people who believe that IBM should be left alone after using software patents to negotiate a competitor’s departure from the market

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.

This will hopefully be the last post in a series of posts that so far includes:

  1. Microsoft Proxy Attack on GNU/Linux Continues With TurboHercules
  2. Eye on Security: Windows Malware, Emergency Patches, and BeyondTrust’s CEO from Microsoft
  3. IBM Uses Software Patents Aggressively
  4. IBM’s Day of Shame
  5. IBM Will Never be the Same After Taking Software Patents Out of Its Holster
  6. Thumbs up to Ubuntu for Removing a Part of Microsoft; TurboHercules Likely a Psystar-Type Microsoft Shell

“IBM says it won’t sue to protect open-source patents,” says this new report from IDG and we particularly liked Simon Phipps’ take. He wrote:

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.

Matt Asay, who is an IBM partner right now, is once again defending IBM (he has just told me that Groklaw is the basis for his defense). So, be sure to watch the comment where Matt Asay is defending a business partner, IBM, without disclosure. He does not intend to mislead, but Simon replies to him with: “Thanks, Matt. I’m amazed by how many prominent people are willing to automatically give IBM a free pass rather than asking serious questions about serious actions.”

We are pleased to see that Phipps has no blind faith. Pointing to this old article, Rui Miguel Silva Seabra writes: “Just to put IBM’s actions in perspective, Simon I’m sure you’re familiar with this forbes article, even though it predates your time, where it reports how IBM “manhandled” SUN with software patents.”

We have been hearing over the years (from other sources) about IBM’s aggression with patents, so this is nothing new. To let it slide would be a mistake.

Scott Merrill, whom I know from WordPress (back in the days), writes:

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.

That last part is important. IBM views corporations differently from the way it views individuals, but Microsoft is the same. Like Apple versus HTC maybe? It gives no excuse to these companies because they hurt actual people who are running projects outside any particular company. To attack a company that uses some piece of Free software is to cause a lot of trouble to developers, who would in turn struggle to market their work to large companies (for fear of litigation).

IBM’s parenthood of Linux (whether real or just perceived) is not particularly healthy because of the issue of control. Linus Torvalds can hardly afford to stand up against IBM's policies at this stage. When Microsoft attacked Linux with patent FUD back in 2007, Torvalds ran away to IBM’s vast portfolio and implicitly warned about retaliation (M.A.D.). But is this really the way to run a Free software project? Building of patent coalitions? A few days ago we wrote about Ooma joining IBM's patent pool for Linux and this is now being covered by IDG.

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.

The OIN does serve an important function [1, 2, 3, 4, 5, 6], but backers of the OIN could instead just abolish software patents in the very few countries where they exist. In reality, most/all of those companies choose to encourage the extension of one’s patent portfolio. This is not something that start-ups — particularly ones that revolve around Free software — are able to afford. Viability is limited to conglomerates that encircle the market.

Phipps does not agree with people who defend IBM without qualm. Examples include Groklaw (see yesterday’s post) and Steven J. Vaughan-Nichols (SJVN), who is not much of an active opposer of software patents or proprietary software (same with Microsoft’s Novell deal). SJVN fires off this article which he titled “Get Off IBM’s Back Already!”

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.

We never defended TurboHercules. We are not defending IBM, either. We never trusted Florian, but the leaked document indicates that IBM uses software patents to do its bargaining. That’s why IBM deserves some scrutiny (but not too much).

“It’s certainly a lot more likely that Microsoft violates patents than Linux does [...] Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really ‘fundamental’ patents [...] The fundamental stuff was done about half a century ago and has long, long since lost any patent protection.”

Linus Torvalds, 2007

Update: Simon Phipps has just posted an update which is also important to read. In part he says:

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.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

10 Comments

  1. your_friend said,

    April 10, 2010 at 10:50 am

    Gravatar

    TurboHercules is just the kind of divisive trouble Microsoft like to make and it’s easy to see why people would like to defend IBM. If TurboHercules is just a Microsoft shell, it is good that IBM crushes them like a bug. All of this has Microsoft’s competitors bickering with each other and distracted from the much larger threats to software freedom that Microsoft and their media palls are cooking up with ACTA. Boycott Novell is correct to not lose sight of the fundamentals and to get the story right.

    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 Reply:

    Yes, IBM could reform the system, but that would not be beneficial to IBM.

    The indemnification advantage is also a way for IBM to suppress use of GNU/Linux not from IBM.

  2. your_friend said,

    April 11, 2010 at 12:40 am

    Gravatar

    PJ has a lot of updates that show that TH is indeed just a Microsoft proxy making trouble. The most interesting one is this:

    So it was actually TurboHercules who asked for the list that IBM sent. Once IBM sent it, they accused IBM of threatening them.

    and

    [The TH EU claim is that that IBM pulled an SCO by suddenly claiming, after ten years, that the Hercules open-source emulator violates IBM intellectual property that it has refused to identify.] TH filed with the EU Commission on the date of the press release, March 23. Now look at the date of the list of patents that TH specifically asked for and IBM sent them. March 11. So is it true that IBM refused to identify the intellectual property that it believes would be violated?

    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.

  3. your_friend said,

    April 11, 2010 at 7:59 pm

    Gravatar

    This should have read:

    PJ has a lot of updates that show that TH is indeed just a Microsoft proxy making trouble. The most interesting one is this:

    So it was actually TurboHercules who asked for the list that IBM sent. Once IBM sent it, they accused IBM of threatening them.

    and

    [The TH EU claim is that that IBM pulled an SCO by suddenly claiming, after ten years, that the Hercules open-source emulator violates IBM intellectual property that it has refused to identify.] TH filed with the EU Commission on the date of the press release, March 23. Now look at the date of the list of patents that TH specifically asked for and IBM sent them. March 11. So is it true that IBM refused to identify the intellectual property that it believes would be violated?

    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 Reply:

    There are few “mainstream news” articles that mention Microsoft’s involvement as a possibility. Here at Techrights we’ve named TH as a Microsoft shell (like SCO) since the very beginning (in March).

    I am still concerned about IBM’s patent policy in Europe (since 2008 when I first found out through the FFII).

    saulgoode Reply:

    I screwed up the formatting on that one (previews would be nice). Here’s another try:

    PJ has a lot of updates that show that TH is indeed just a Microsoft proxy making trouble. The most interesting one is this:

    So it was actually TurboHercules who asked for the list that IBM sent. Once IBM sent it, they accused IBM of threatening them.

    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.

    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.

    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 Reply:

    What I found valuable in Groklaw is information connecting TH and MS. I don’t agree about IBM.

    your_friend Reply:

    TH is not “any open source company” and is surely not a free software company. They are a Microsoft proxy that’s launched a regulatory attack on IBM, complete with astroturf and fake “news” articles from the usual suspects. The kind of legal action that needs to happen is an anti-trust and fraud investigation of Microsoft and their proxy. There’s a 10 year backlog of other cases waiting for a rebuilt US Justice department.

    saulgoode Reply:

    TH is not “any open source company” and is surely not a free software company.

    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?

  4. saulgoode said,

    April 12, 2010 at 12:12 pm

    Gravatar

    PJ has a lot of updates that show that TH is indeed just a Microsoft proxy making trouble. The most interesting one is this:

    So it was actually TurboHercules who asked for the list that IBM sent. Once IBM sent it, they accused IBM of threatening them.

    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.

    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.

    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 defined by Pamela Jones — irresponsibly opting for reliance upon the Open Source Initiative’s judgment instead. Imagine that!

What Else is New


  1. Links 25/4/2015: Debian LTS Plans, Turing Phone Runs Linux

    Links for the day



  2. Who Kills Yahoo? It's Microsoft, Not Yahoo!

    The media should blame Microsoft, not Marissa Mayer, for what's going on (and has been going on for 7 years) at Yahoo!



  3. EPO Management is Trying Hard to Appease Its Critics While Pushing Forth Unitary Patent Agenda

    The European Patent Office and European Commission promote the agenda of large multinational corporations (at the expense or European citizens) and critics are being kept at bay



  4. Real Patent Reform Will Not Come From Biggest Backers of GNU/Linux, Not Even Google

    A look at the 'new' Google, the company which is hoarding patents (2,566 last year alone) instead of fighting for reform



  5. Microsoft's Troll Intellectual Ventures Loses Software Patents

    Intellectual Ventures is bluffing with software patents, but this time around it doesn't get its way



  6. Links 24/4/2015: Ubuntu and Variants in the News, Red Hat Developer Toolset 3.1

    Links for the day



  7. Links 23/4/2015: Ubuntu 15.04 is Out, Debian 8.0 Out Very Soon

    Links for the day



  8. Links 22/4/2015: Fedora 22 Beta, Atlassian Acquires BlueJimp

    Links for the day



  9. The Dying Debate Over Patent Scope (Including Software Patents) Replaced by 'Trolls' (But Not the Biggest Ones)

    The corporate media and Web sites or people who are funded by large corporations have essentially suppressed any debate about issues in the patent granting process, thereby guarding software patents and preventing criticism of large corporations' power grab



  10. The Patents Gold Rush Continues

    The morbid obsession with monopolising mere ideas still dominates the media, even increasingly in China



  11. 9 Millionth US Patent Tells a Story of Failure and USPTO Misconduct

    The USPTO, much like FISA (notorious court for surveillance/espionage authorisation), has become a rubber-stamping operation rather than a patents examination centre, as new evidence and old evidence serve to show



  12. HBO Helps Shift Debate Over Patents to 'Trolls' (Scale), Not Scope

    More of that awkward shifting of the patent debate towards small actors who are misusing patents, not large conglomerates like Apple and Microsoft which use patents to destroy competitors, crush startups, drive up prices, and so on



  13. Software Patents Are Still Menacing to Free Software: OIN Expands Scope, HEVC Adds to MPEG-LA Burden/Tax, Google and Facebook Give in on Patents

    A look at recent news about software patents and especially Free/libre software, which is inherently incompatible with them



  14. The Latest Developments Around Microsoft's Clever Attack on Android/Linux

    Microsoft's campaign of destruction, extortion, etc. against the most widely used Linux-powered operating system is revisited in light of new reports



  15. The Microsoft 'Community' is Maligning the Free Software Community

    Dishonest generalisations and baseless deductions portray the Free/Open Source software communities as a nasty place that leads to poverty and despair



  16. Googlebombing 'Microsoft Open Source' Even When Microsoft Shuts Down Its 'Open Source' Proxy

    A massive failure by the press to cover the most basic news, which is Microsoft putting an end to a supposedly 'Open Source' effort



  17. Links 22/4/2015: Calculate Linux 14.16, SparkyLinux 4.0 RC KDE

    Links for the day



  18. Links 21/4/2015: Project Photon, Ubuntu Touch Buzz

    Links for the day



  19. Embrace, Extend, Extinguish: How Microsoft Plans to Get Rid of Linux/Android

    Microsoft's sheer abuse against Android is laying bare for everyone to see now that Microsoft has paralysed Google's legal department with potential antitrust action in Europe



  20. Yahoo's Current CEO (Mayer, Formerly of Google) is Trying to End Yahoo! Status as Microsoft Proxy

    There are signs of relinquishing Microsoft's control over Yahoo! after Marissa Mayer worked to end the company's suicidal/abusive relationship with Steve Ballmer's Microsoft



  21. Repeating Microsoft's Lies Without Any Journalistic Assessment

    Poor fact-checking by relatively large media/news sites results in Microsoft's patently false claims being repeated uncritically



  22. Links 19/4/2015: New KaOS (2015.04), Manjaro Linux 0.8.13 Pre1

    Links for the day



  23. Links 18/4/2015: ExTiX 15.2, RaspArch

    Links for the day



  24. Microsoft Tired of Pretending to be Nice to Free/Open Source Software (FOSS), Microsoft 'Open' Technologies Dumped

    Microsoft dumps its proxy (misleadingly named 'Open Tech') and other attacks on Free software persist from the inside, often through so-called 'experts' whose agenda is to sell proprietary software



  25. More Translations of French Article About the EPO

    German and Dutch translations of the Le Monde article are now available



  26. Links 17/4/2015: Wipro and the Netherlands Want FOSS

    Links for the day



  27. Microsoft's Multi-Dimensional Assault on Android/Linux: Extortion, Lobbying of Regulators, and Bribes

    Microsoft's vicious war on Linux (and Android in its current incarnation) takes more sophisticated -- albeit illegal (as per the RICO Act) -- forms



  28. Microsoft's Plot to Associate Windows with 'Open Source' is Proving Effective, Despite Being Just a Big Lie

    A look at the latest headlines which can lead to a false perception that Microsoft is now in bed with 'Open Source'



  29. Microsoft Windows Remotely Crashed, Remotely Hijacked, But Still No Logo and No Branding for the Bugs

    Windows maintains its reputation as a back doors haven, but the media is still not highlighting the severity of this issue, instead focusing on accidental bugs in Free software, even very old (and already fixed) bugs



  30. Black Duck's Latest Self-Promotional Propaganda (for Proprietary Software) Still Fools Journalists

    Under the traditionally misleading title "Future of Open Source" Black Duck expresses its desire for proprietary software sales, salivating over fearful managers who may get bamboozled into buying the patents-'protected' Black Duck 'product'


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts