Why IBM Does Deserve Scrutiny (Updated)

Dr. Roy Schestowitz

2010-04-09 15:32:31 UTC
Modified: 2010-04-09 17:19:17 UTC

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:

"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.

Comments

your_friend

2010-04-10 15:50:20

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

2010-04-10 15:58:16

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.

your_friend

2010-04-11 05:40:12

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.
your_friend

2010-04-12 00:59:56

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

2010-04-12 01:56:13

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

2010-04-13 16:58:30

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

2010-04-13 18:16:18

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

2010-04-14 04:19:16

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

2010-04-15 14:55:59

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?

saulgoode

2010-04-12 17:12:16

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!

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Why IBM Does Deserve Scrutiny (Updated)

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