SJVN responds to Müller over at his blog in IDG. Müller keeps slamming IBM 24/7.
I just really can’t see why IBM should be singled out as patent public enemy number one for open source because of this one business dust-up. I also can’t help notice, as Pamela Jones of Groklaw recently pointed out, that there’s reason to believe that TurboHercules isn’t so much an open-source company as it is a proxy, along with OpenMainframe, in a battle between IBM and Microsoft over cloud-computing.
Again, I find myself asking, “Who’s really the open-source enemy here?” It’s not IBM.
Both sides are wrong for one simple reason: the people who run companies like IBM or Microsoft or Novell or HP, do not have friends or enemies. What they have is strategic interests. That’s all.
The GPL triggers upon public distribution of licenced code: “if you distribute copies of such a program, whether gratis or for a fee, you must pass on to the recipients the same freedoms that you received. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights.”
Your “only money speaks” ditty is an anthem for outlaw corruption a la Microsoft.
Indeed. One ought to concentrate on the fact that Microsoft is still using “dummy” companies to sue competitors. Microsoft should be taken to court over this.
Open Invention Network (OIN), the company formed to enable and protect Linux, today extended the Linux ecosystem with the signing of Ulteo as a licensee. By becoming a licensee, Ulteo has joined the growing list of companies that recognize the importance of participating in a substantial community of Linux supporters and leveraging the Open Invention Network to further spur open source innovation.
Ulteo is a small company from the super-talented Gaël Duval, creator of Mandrake. He blogged about it too.
“The opinion pieces of IBM partners/apologists sometimes assume that IBM is untouchable when it comes to criticism from the Free software community.”The IBM-created/led OIN has actually been helpful in the past [1, 2, 3, 4, 5, 6]. It’s one of those cases where IBM’s involvement actually defends GNU/Linux from hostile patents (although a permanent solution would just eliminate software patents). The opinion pieces of IBM partners/apologists sometimes assume that IBM is untouchable when it comes to criticism from the Free software community. This oughtn't be the case.
Dana Blankenhorn says that “the IBM open source pledge [has been] amended.”
The real news is that Eric Raymond agrees with Mueller. The author of The Cathedral and the Bazaar, which did so much to define open source as distinct from Richard Stallman’s free software ideal, says IBM is digging itself into an ever-deeper rhetorical hole.
Blankenhorn also brings Jay Maynard into it. Groklaw accused Maynard of playing for Microsoft, but some of our readers deny this strongly.
Jones got into this with a long Groklaw post that has 11 updates (so far) acting as exhibits. It’s the fiercest debate there since the end of the Novell case, which is to say in about two weeks.
A summary is that TurboHercules started this mess, that IBM has not even filed a case, and that it looks like a shakedown by Hercules’ Roger Bowler and Jay Maynard. (Raymond credits Maynard with bringing him into the case.)
Florian Mueller, Open Source Patent Activist, just released the following information. He believes that patents already used by IBM against TurboHercules are also a threat to other major FOSS projects. He now calls on the community for action.
Calling him “Open Source Patent Activist” is rather odd given that he attempted to derail Munich’s migration to Open Source. Corpwatch.org calls Müller “Open-source Advocate” in this new article and someone from Red Hat says that Müller “plays a strange role. Comes out of the blue. I smell more.”
Steve Stites writes about abolishing software patents in response to an article about IBM and TurboHercules:
I think that the best way to defend open source against software patent attacks is to abolish software patents. The U.S. Supreme Court might abolish software patents this month in the U.S.A. New Zealand is close to passing a law abolishing software patents in New Zealand. We are making progress from the days when people considered abolishing software patents just a flaky idea.
This brings us to the next subject.
New Zealand
Thanks to software developers, New Zealand is rejecting software patents — a move which drives some lawyers mad [1, 2, 3, 4, 5]. Here is a new report on the same subject, along with legal analysis.
Commerce Minister Simon Power says the Government will back changes proposed by a select committee that will mean computer software can no longer be patented.
Parliament’s commerce select committee proposed amending the Patents Bill, which passed its first reading in May last year, after receiving many submissions on the controversial issue.
The recommendation has attracted considerable attention outside New Zealand, particularly from the open source software community, which claims large software makers have gamed the patent system and stifled innovation.
The local solicitors (“lawyers industry”) actively protest against this (no derivatives on software? Think about the children!). This whole situation is very revealing; lawyers consistently insist on more patents, whereas developers reject them. Who again is actually producing software? Should the insurance cartel also get to define policies on medication?
Europe
As proof that the European patent system (primarily the EPO, as opposed to the UK IPO) is still relatively sane, here is the news about Amazon’s mind-blowing one-click patent getting rejected on the grounds of obviousness.
From the IPKat’s friend Kristof Neefs (Altius) comes this link to Decision T 1616/08, in which the European Patent Office’s Technical Board of Appeal ruled that the subject matter of Amazon’s controversial One-click patent is obvious. In the decision of 11 November 2009, the application to patent a “Method and system for placing a purchase order via a communications network” was opposed by the Gesellschaft für Informatik e.V., Fleurop-Interflora European Business Company AG and the Förderverein für eine Freie Informationelle Infrastruktur e.V.(FFII e.V.).
This bring us to the European Interoperability Framework.
Microsoft and Front Groups
Microsoft’s pressure groups such as CompTIA are still lobbying for software patents inside European standards. Microsoft does not want to be seen doing this directly, so it has been using moles and lobbyists. Here is the latest warning bell:
Commenting on previous efforts to introduce a European Interoperability Framework (EIF), CompTIA, a global ICT industry group with member companies such as Microsoft among its members, said it was ”concerned about the proposal’s promotion of ICT standards and development models that reject valid intellectual property’.’
For more information about Microsoft’s lobbying against real standards in EIFv2, see:
Palm is up for sale (pretty much like Novell) and after receiving patent threats from Apple, numerous reporters ponder the value of Palm’s patents [1, 2].
Indeed, Palm has a range of intellectual property assets, from hardware to software patents and its well-regarded webOS operating system.
I’m sure you can already see the problem. What software startup has $5 million to burn on defending a case with no value-add? Even $500k? I’d say it takes $1-2 million or thereabouts just to get through claim construction, which will give the parties a better sense of the overall merits of the case. One patent suit with a slightly determined plaintiff could very easily end a software startup just in legal fees, let alone the impact of the suit on gathering customers in the future.
So, software startups have to settle patent cases very early, and at high settlement amounts, because they have absolutely no leverage. Invalidity takes years to litigate, so you can’t threaten to invalidate the patent; same with inequitable conduct. Non-infringement arguments are great in theory, but the plaintiff won’t have a judgment day until the middle of the case at the earliest, after claim construction, when summary judgment motions are allowed (on most schedules), and that’s several years of litigation and several million dollars away. The defendant could file for a re-exam, but once it’s filed, the defendant has no control over it, and it takes a few years to get through the PTO.
In the 1981 Diamond decision, the majority effectively reversed 1978′s Parker v. Flook decision to disallow software patents. As Lee has persuasively argued, software patents have proven an overwhelmingly destructive force that inhibits economic growth by crippling small, innovative software developers. In both of these decisions Justice Stevens worked to limit the power of the government to reward entrenched interests. Yet this is a kind of jurisprudence that many, on the right and on the left, object to on grounds of judicial restraint.
There are growing predictions from many authorities that Stevens might be the primary author of the Bilski patent case which has yet to be handed down.
There are patent concerns, but Google has a very good record on patents, so I am optimistic there.
Lastly, on another more positive note, the president of the FFII says that “Abolishing the U.S. Patent System Is Coming Soon”; he points to this:
Patent Resources Group (PRG), the nation’s leading patent educator, will be hosting a panel discussion on “The Future of U.S. Patent Law” on June 11, 2010 in Washington, DC. This in-depth, one-day event, offered in partnership with Buchanan Ingersoll & Rooney PC, will bring together some of the best minds in intellectual property to inform, discuss, and debate the future of U.S. patent law. The one-of-a-kind program will include brief lectures, lively panel discussions, and audience participation.
Major topics will include:
* U.S. patent reform
* Latest developments at, and tensions between, the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit
* Approaches to improve pendency and efficiency at the USPTO
Meanwhile, looking at Obama’s office, their document on the subject[PDF] (which they wrote in Microsoft Word) states: “Protect intellectual property rights. Intellectual property is to the digital age what physical goods were to the industrial age. We must ensure that intellectual property is protected in foreign markets and promote greater cooperation on international standards that allow our technologies to compete everywhere. The Administration is committed to ensuring that the United States Patent and Trademark Office has the resources, authority, and flexibility to administer the patent system effectively and issue high-quality patents on innovative intellectual property, while rejecting claims that do not merit patent protection.”
Summary: The latest software patents news from New Zealand, Europe, the United States, and an American Microsoft proxy that pretends to be European (near the Commission)
LATER this week — on Thursday to be precise — people will speak about patents at the 2010 Linux Foundation Collaboration Summit. The list of speakers is interesting because it includes some lawyer types who do not oppose software patents.
The EPIP conference is also looking for paper submissions. Emphasis will be put on Free software and software patents, oddly enough (because the conference is in Europe).
This year an emphasis will be given to the issues of IPR and development and open source. Papers addressing the challenges encountered by developing countries in the context of the TRIPS (trade related aspects of intellectual property rights) agreement, the protection of traditional knowledge, the issues of IPR and health and access to knowledge in developing countries, and the challenging view of the open source alternative to IPR will be particularly welcome.
Over in New Zealand, it’s mostly the lawyer types who stifle a necessary reform that would explicitly forbid software patents [1, 2, 3, 4]. Watch the following new video from New Zealand (NZOSS) and listen to the background sounds.
Here is IDG’s latest update on the situation in New Zealand:
Commerce Minister Simon Power says the Government will back changes proposed by a select committee that will mean computer software can no longer be patented.
Parliament’s commerce select committee proposed amending the Patents Bill, which passed its first reading in May last year, after receiving many submissions on the controversial issue.
As we pointed out a couple of days ago, Judge Stevens is retiring and this is a big deal because of his involvement in the Bilski case. The president of the FFII, Benjamin Henrion, shows that a “Patent Attorney is afraid of Judge Stevens for writing Bilski decision, hopes he retires soon” (well, he got his wish fulfilled).
Henrion has also spotted IPKat’s new essay on what he calls “the UPLS attempt to validate software patents in Europe” (the former can facilitate the latter).
“Where are we now?” is the question on everyone’s lips when it comes to the long trek from national patents alone to the desired destination, the Promised Land of the single patent for the European Union and a centralised and harmonised patent litigation system. Explaining the background, Oliver Varhelyi (Head of Unit, DG Internal Market and Services, European Commission) described the legal bases on which the form and substance of the agreed new regime could be reached through a combination of unanimous and majority votes.
We cannot quite avoid speaking about the curious case of TurboHercules — a case that we’ve covered in :
Intel’s heinous crimes did not prevent HP from getting closer to Barrett this month (he is among the key people who attacked OLPC), but we were more interested in understating HP’s possible role in the TurboHercules case. Groklaw has just explained this relationship. It’s great work from Pamela Jones; in fact, many updates on her previous post show that TurboHercules used a simple trick to pull the list of patents from IBM. The closer one looks, the worse it looks for TurboHercules, whose location is elucidated as follows in one of the comments:
I am purposefully not making these links HTML clickable so there won’t be referring clicks from Groklaw. You can copy them into your browser to verify if you want to.
The TurboHercules website is at http://www.turbohercules.com where it is clearly the right site, talking about the TurboHercules emulator and founder Roger Bowler. The About Us page at http://www.turbohercules.com/about/ has their Paris, France address.
At http://www.turbohercules.com/resources/permalink/turbohercules-overview/ is a link to the PDF of a whitepaper http://www.turbohercules.com/uploads/main/TurboHercules_Overview_1.pdf “TurboHercules Overview: A Quick Overview of the TurboHercules System” which at the bottom of the cover page lists the address “TurboHercules Inc. | 701 Fifth Avenue, Suite 4200 Seattle, WA 98104″
There is also a marketing brochure at http://www.turbohercules.com/uploads/main/Turbohercules_Brochure_IDF_1.pdf that has the same address. An interesting snippet from it: “TurboHercules has approached IBM to consider making available to its mainframe customers a license for IBM operating systems on the Hercules platform.”
As Groklaw shows, it is also a Windows company, not quite an “open source” company as Florian Müller and others from that same ilk want reporters to believe (Müller has failed to properly deny his role).
All in all, patent law is broken, yet some people mischaracterise the problem by pointing their finger in the wrong direction. Mike Masnick responds:
This is a problem that happens all too often in these discussions. Folks who don’t know much about how innovation really occurs in the tech world, and who falsely conflate concepts in tangible property with a completely different government-granted monopoly right — automatically assume that infringement is the equivalent of “stealing.” Are there cases where big companies “copy” an idea from a small company? Yes, absolutely. But it’s a lot more rare than many make it out to be. The really innovative ideas? Those are the ones that big companies don’t even realize are big ideas until it’s too late.
Very few people who are developers would deny their disdain of software patents; it’s mostly them who matter, but it’s rarely them who vote on the subject. The “Litigation Industrial Complex” runs this show. █
“Small Software companies cannot afford to go to court or pay damages. Who is this software patent system for?”—Marco Schulze, Nightlabs Gmbh
Summary: More evidence that the attacks against IBM are actually coming from Microsoft and that Müller plays a role in it (Müller set up his anti-IBM blog when he got connected with CCIA’s Executive VP, who works with Microsoft)
WE keep promising to depart from this overreported subject, but as the plot thickens this becomes harder to avoid. Previous posts about TurboHercules vs IBM are:
For those who are not aware, Florian Müller became a lobbyist, but whose lobbyist? More recently he became known for his attempts to derail the Munich migration to GNU/Linux. Florian Schießl, one of the people leading the Munich migration, currently writes: “Wow, Florian Müller’s Blog started just a few days ago. Only a PR campaign, nothing to do with #swpat in real, imho http://is.gd/bm4BA #fail” (and to Rui Seabra he says that “the whole #IBM patent story is just another PR stunt by the “famous” lobbyist Florian Müller.”).
Müller is still at it on more than a daily basis. It’s like a nonstop attack on IBM in a brand new blog (it’s the same in Maureen O’Gara’s ‘blog’ [1, 2] at the moment). To clarify again, Techrights believes that evidence is sufficient to call TurboHercules a “Microsoft proxy” (see this article from Timothy Prickett Morgan), but IBM’s overall attitude towards software patents has always been a problem in general. According to this, “IBM Denies Open Source Sellout” (which is true). This is not about IBM “selling out” but about IBM defending itself from Microsoft attacks; nonetheless, IBM does not help Open Source by promoting software patents. As the president of the FFII showed this morning using an IBM document[PDF], “IBM believes harmonisation should occur along lines which endorse the current practice and case law of the EPO.” For the uninitiated, “harmonisation” is a way of bringing software patents to Europe.
All or at least several of the letters exchanged between IBM and TurboHercules are available from TurboHercules (which may have had something to do with the sensationalised, self-serving leak to Müller). Some of the details there reveal IBM’s pride which it takes in software patents and even its contribution to the guidelines developed by the European Patent Office (EPO).
“As for Microsoft, in a perfect world, someone will in due time bring an complaint against Microsoft for arranging antitrust complaints against its competition.” –Pamela Jones, GroklawHere is Groklaw’s initial take on the TurboHercules vs IBM case (written in “News Picks” before publishing a whole post): “Here’s my take. First, on the author’s use of arguments about Apple and monopoly markets, the courts already ruled that Apple doesn’t have a monopoly in the relevant market, so that analogy isn’t legally on point. Beyond that, remember when Microsoft said their competitors would be having antitrust issues? Remember when Maureen O’Gara was one of the very first to write about the TurboHercules antitrust threat to IBM, almost a year ago? And now Florian Mueller, who disrupted the Munich switch to Linux and later famously tried to use MySQL’s license as a way to block the Oracle-Sun deal, including them suggesting that the GPL license be tossed overboard in favor of a BSD-like license, now appears in the TurboHercules story, attacking IBM. What might that tell us? The Microsoft gang’s all here? That this is a manufactured anti-trust issue? That if you are a competitor of Microsoft, someone will file an antitrust complaint against you? You think? Here’s TurboHercules’s take on why they filed, so you can have the whole picture. I can’t speak for the entire open source community, just for myself. But if Florian Mueller tells me to go to the right, I’m inclined immediately to look to the left or straight up or down for alternative options. As for Microsoft, in a perfect world, someone will in due time bring an complaint against Microsoft for arranging antitrust complaints against its competition. They should put more energy into creating good products. Then they wouldn’t have to resort to such tactics.”
A lot more discussion is going on in IRC (logs available online), but here is the gist of it.
“Müller added a LinkedIn connection to Erika Mann, CCIA’s Executive Vice President and head of CCIA’s European office…”One thing that came up some time between March 22nd and March 29th is that Müller added a LinkedIn connection to Erika Mann, CCIA’s Executive Vice President and head of CCIA’s European office (Microsoft and CCIA work together [1, 2]). That was just before he started to attack IBM like he also attacked Oracle some months ago (along with the GPL). He even created a new blog for this purpose.
We are a little saddened to see that Steven J. Vaughan-Nichols (SJVN) points the finger at what he calls “Linux fans”* (hello, hypocrisy) and blames them for IBM’s PR damage.
That’s not to say that Linux doesn’t have its share of internal battles that don’t do anyone any good. Free software founder Richard M. Stallman’s insistence that Linux should be called GNU/Linux puzzles more people than it does bringing anyone to Linux, or GNU/Linux if you insist. In the last few days though, another Linux family fight has erupted.
This time around, it’s open-source developer and anti-patent political lobbyist Florien Mueller accusing IBM of breaking its promises to the FOSS (free and open-source software) community of not using patents against it. Mueller’s is ticked off that TurboHercules, an open-source z/OS emulator company, over its possible misuse of IBM patents, which includes two that’s covered by IBM’s pledge to not sue open-source companies or groups using these patents.
I have several problems with this. First, as Pamela Jones of Groklaw points out, TurboHercules started the legal fight with IBM and the open-source software license it uses isn’t compatible with the GPL–the license that covers Linux. Second, this is really just a standard-issue business fight that involves patents. It does not, as Mueller would have it, show that “After years of pretending to be a friend of Free and Open Source Software (FOSS), IBM now shows its true colors. IBM breaks the number one taboo of the FOSS community and shamelessly uses its patents against a well-respected FOSS project, the Hercules mainframe emulator.”
There is an old problem here. SJVN must understand that patents are probably the #1 barrier to GNU/Linux adoption, so software patents must go. Here is an excellent article/commentary from Dj Walker-Morgan at The H:
Patents could lead to the mutually assured destruction of the software industry and the parading of pledged patents in the opening of a dispute between IBM and TurboHercules threatens to upset the only progress towards a safer world for open source.
Patents are akin to the missiles of the Cold War. The super powers of the software industry have built up large arsenals of them to give them bargaining power. But if all companies who held patents were to pursue all infringements of their patents at the same time, there would be nothing left of the entire IT industry except the legal departments.
[...]
That said, it is somewhat essential to isolate the overarching problems with patents from the specific problem of the pledged patents. The former is a systemic problem which requires complex negotiation, legal reforms and an industry wide consensus that the problem exists in the first place. The latter though is a specific problem, one that IBM can immediately resolve by saying “Sorry, those two patents were not meant to be there”. That one move would reassure the community. IBM could, possibly, enhance their good reputation in the community by creating a new 2010 patent pledge which puts more of IBM’s near 50,000 strong arsenal of patents “beyond use” against open source software.
The only real solution is to invalidate them all or issue a legal contract that renders them useless. This is not realistic (too Utopian) given that IBM uses its patents to milk competitors and make over $1 billion per year doing almost nothing. IBM is now obliged to do this for shareholders. This is unfortunate because they use patents as a welfare system that mostly funds lawyers and cannot be afforded by most companies in the same arena**. These companies do complain sometimes, so ideally, IBM should let go and not carry on controlling using patents, however quietly.
In a recent patent filed at the USPTO, Microsoft has sought to bolster its product offerings with an interesting recommendation engine. Inspired by the recommendation algorithm incorporated on websites like YouTube, Microsoft TV’s recommendation engine will recommend TV shows, movies based on user interests as well as the program’s functional value.
This is just a fence. Who would benefit from such a patent except Microsoft? And doesn’t that involve profiling (euphemism for “spying on”) a user’s activity?
The case also illustrates what RedMonk analyst Stephen O’Grady calls “the inevitable outcome of software patents: They get used.”
O’Grady is against software patents, “not for ideological reasons, but because it is self-evident to me that there is no reasonable mechanism for evaluating and granting patents,” he told LinuxInsider.
We wrote about O’Grady’s views on software patents in this older post. He is right on target. █
_____ * “Linux”, which is the kernel IBM put a lot of money in, is not the whole of Free software.
** IBM could reform the system if it wanted to (IBM’s Kappos runs the USPTO), but that would not be beneficial to IBM’s shareholders. The “indemnification” advantage IBM markets to customers is also a way for IBM to suppress use of GNU/Linux that’s not from IBM (e.g. plain Debian).
Summary: Lawyers’ event pushes for UPLS; New Zealand faces lawyers’ wrath (greed); TurboHercules has presence in Seattle, Washington
“UPLS and EU patent, or the 3rd attempt to legalise software patents in Europe, [are] on the program of the Fordham conference[PDF],” warns the president of the FFII. It seems like a lawyers-led conference seeking to maximise their own wealth at the expense of people who actually create things. UPLS is a disaster. We append the programme in text form at the bottom because we are likely to return to it later when we name culprits, such as lobbyists for software patents in Europe.
Law firms that supported continued software patents have published critiques of the arguments put forward by those who opposed software patents and asked for an exclusion to be added to the Patent Bill. In this article Peter Harrison, vice President of the NZOSS responds.
It’s not over in New Zealand. Luckily, there are good people there who stand up for developers.
Some readers have confused our criticism of IBM with denial that TurboHercules is servicing Microsoft. This is rather surprising because we at Techrights were among the first to point out that TurboHercules was acting as a Microsoft shell. We wrote this about a month ago and discreetly received information that may validate it. In 5 more updates, Groklaw provides additional evidence that TurboHercules is connected to Microsoft, including the following article from last year:
TurboHercules is co-headquartered in Paris, France, where Bowler moved after he left the United Kingdom, and in Seattle, Washington, in close proximity to the one big software company that has in the past taken a shining to anything that gave Big Blue some grief, particularly with mainframes. (Yes, we mean Microsoft).
Our reader “Chips” shows us another article that says: “TurboHercules, a privately-held company set up in 2009, is a member of a non-profit trade group called the Computer and Communications Industry Association (CCIA), which counts Microsoft and Oracle Corp as members, but not IBM.” IDG says that “TurboHercules’ move follows similar antitrust complaints with the European Commission from two other small IBM competitors, PSI and T3 Technologies. Microsoft, an arch-rival had a stake in PSI but the firm was subsequently bought out by IBM. Meanwhile, T3 ranks Microsoft among its shareholders. Last year, the U.S. Department of Justice opened an antitrust probe into IBM’s dominance of the mainframe market. That probe was sparked by a complaint from the Computer and Communications Industry Association (CCIA), a trade group that ranks Microsoft among its members.”
We have already written several times about Microsoft’s connections with the Communications Industry Association [1, 2], in reference to T3 (which is partly owned by Microsoft).
“[N]otice that Turbohercules does really not say that they are not a pawn of Microsoft, they sort of dance around the issue.” –”Chips”Just to clarify again, we never defended TurboHercules’ side. Its case is not related to the point that, regardless of context, IBM is using software patents to achieve a goal. We have said that TurboHercules is a malign party for a very long time, so none of us ever claimed otherwise. One could argue that TurboHercules tripped up or pulled a trick on IBM (the Microsoft boosters — including Microsoft’s MVP Miguel de Icaza who has just blocked his tweets from the public — then took the opportunity to bash IBM). Here is the “story thus far,” based on Linux Magazine. We do not necessarily agree with this analysis, but it is new. Roberto Galoppini, who is influential among Free/open source voices in Europe, also has a position on the subject.
“Chips” quotes TurboHercules’ head as saying: “IBM also accuses TurboHercules of cooperating with Microsoft. Bearing in mind that Hercules works very well indeed on both Linux and Windows, not to mention the Macintosh, we are indeed quite happy to cooperate with Microsoft, Hewlett-Packard, Unisys, Dell, Intel, AMD or anyone else who wants to work with us.”
He then argues: “notice that Turbohercules does really not say that they are not a pawn of Microsoft, they sort of dance around the issue.” For those who did not read our previous posts on the TurboHercules case, they are listed below in chronological order. █
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:
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.
Summary: An analysis combining Ubuntu’s relationship with Microsoft proxies such as Yahoo! search and Mono; more on how TurboHercules may be connected to Microsoft and why IBM’s response was tactless
SEVERAL days ago we argued that Canonical was making a serious mistake by sending Ubuntu users to Microsoft’s datacentres [1, 2]. The good news is that Canonical has just changed its mind, but people keep wondering why.
However, for the final release, we will use Google as the default provider. I have asked the Ubuntu Desktop team to change the default back to Google as soon as reasonably possible, but certainly by final freeze on April 15th.
It was not our intention to “flap” between providers, but the underlying circumstances can change unpredictably. In this case, choosing Google will be familiar to everybody upgrading from 9.10 to 10.04 and the change will only be visible to those who have been part of the development cycle for 10.04.
Several people reckon that Canonical did this because of backlash relating to Microsoft, not habits (why else would habits be ignored when realigning/repositioning buttons, for example?). Others say that Google perhaps offered some money or Mark Shuttleworth had a change of heart (or intervention after someone had made this decision which he did not endorse). Either way, we might never find out the whole story and who was behind the decision, unless someone uploads some videos or internal discussions that reveal the anatomy of these decisions (both the old decision and the new one, which retracts and reverses the former).
Canonical’s important decision has received a fair deal of coverage [1, 2, 3], mostly very encouraging. Ubuntu users are happy with this sudden reversal. The Source writes:
In any case, having Google as the default search engine is the best option, so I welcome the change. Whatever the convoluted dance-stepping offered to un-justify and then re-justify it.
Here is a new response to the removal of the GIMP:
The one other thing I did notice right off the bat was that the GIMP was gone. Why Canonical decided to leave out a very, if not the most important piece of software raises some questions. Canonical needs to spend less time on Google’s Chrome OS and more time on their own OS.
Some users remain dissatisfied with the decision to remove the GIMP [1, 2, 3]. In the news we have this for example:
The next major update of Ubuntu code named Ubuntu Lucid Lynx is scheduled to arrive in April 2010. This is going to be an LTS edition, which means updates will be available for three years in desktop and five years in Servers. Even though Ubuntu 10.04 is going to be an LTS release, a complete overhaul is on the cards. Lets take a peek at what’s coming in Ubuntu 10.04 Lucid Lynx.
[...]
In another rather controversial move, Ubuntu is going to ditch GIMP. In Canonical’s observation, most of the users don’t ever use the advanced functionalities of GIMP and all their basic image manipulation needs are met with other applications. Again, you can always install GIMP with a few clicks using Ubuntu Software Centre, and so IMO, this is not going to be a big deal for most of us.
[Canonical's] Carr wasn’t hinting, however, about Ubuntu not including Mono, Novell’s Microsoft .NET-compatible set of software tools, applications by default. While some open-source fans really dislike Mono, thanks in no small part to Novell’s Microsoft partnership and Mono’s reliance on .NET, if anything, Ubuntu seems to be incorporating more of Mono in its default distribution.
As it’s become clear that the iPad is more of a “content delivery vehicle” than an interactive device (and there’s nothing wrong with that), people are quickly discovering how regional licensing issues and copyright may hold the device back in some areas.
We have shared many other explanations of why hypePad is bad [1, 2, 3, 4, 5, 6, 7, 8, 9, 10], so we won’t be repeating the old arguments. Either way, Asay refers to source code in his blog, but he does not want to talk about Freedom (with a capital F) and what hypePad does to one’s freedom. It’s rather tragic because Ubuntu’s added value ought to be more than just source code which is shared/co-developed with other companies. Ubuntu’s leadership should be thinking about other marketing factors or at least not be represented by the views of Asay. It’s distracting from GNU/Linux. Hostility or apathy towards Free software could put off Ubuntu users, at least a good majority of them.
“Hostility or apathy towards Free software could put off Ubuntu users, at least a good majority of them.”The hypePad is very revolutionary; it introduces the renting of a tablet and merely the renting of some text for it (and paying for the privilege to rent what once could be owned). No wonder Big Media companies give it so much coverage. They love the idea. Xbox is similar to that, but it’s a console.
Fortunately to some people who decided to pay hundreds of dollars to rent an hypePad, there is a way out of Apple’s prison. Within less than a day hypePad got jailbroken.
Apple’s iPad has already been jailbroken, using a variation of the iPhone method and demonstrating just how much the two devices have in common.
The hack was completed in less than 24 hours. In theory it enables the owner to install everything from Wi-Fi scanners to pornography – applications Apple disapproves of – though for the moment it just allows a remote terminal connection.
Be careful now – if you want to excuse IBM by pointing out that they can chose to enforce patents outside of the 500 named (let’s assume they listed the 2 by mistake and will retract them), then you must in turn acknowledge that projects like Mono and Moonlight which range far far beyond the standardized core are in explict danger as well.
I do not think IBM is legally out-of-bounds here, no more than I think Microsoft would legally be out-of-bounds to shut down vast portions of Mono and Moonlight now or in the future. (Perhaps after Novell is bought out and agreements are no longer renewed?)
I’m just surprised Mr. Asay finds this an encouraging development for Open Source.
Ubuntu GNU/Linux currently claims 12 million users worldwide and with this privileged position comes responsibility to represent GNU/Linux properly. Ubuntu stands on the shoulders of giants (other people’s labour). According to some recent surveys that are geography dependent, about a third of GNU/Linux users — at least on standard desktops/laptops — use Ubuntu (source: Linux Journal, 2010). Fedora has many users too.
Since the subject of IBM was brought up, here is a quick roundup of what we wrote about TurboHercules so far:
Groklaw believes that it’s just another Psystar. We agree to the extent that this quite likely has Microsoft involvement (we wrote this a month ago). It was weeks ago that sources told this to us privately, after we had raised suspicions. Our criticism of IBM is not for threatening (Groklaw suggests suing) TurboHercules, but for using software patents, including some that were part of an “open-source pledge” [1, 2, 3, 4, 5, 6]. Florian Mueller, who we do not consider to be a friend of Free software (he lobbied against the GPL for example), is having a day trip with this one.
The free and open source software community in Europe is going after IBM for using its patents against an open source project by a French company called TurboHercules. “IBM is using patent warfare in order to protect its highly lucrative mainframe monopoly,” open source advocate Florian Mueller wrote on his blog Tuesday. “The Hercules project is anything but anti-IBM. Hercules just wants to provide customers with an interesting and much-needed choice.”
IBM screwed up very badly by attempting to use software patents and it is trying to undo the damage right now [1, 2]. All in all, IBM is not an enemy of GNU/Linux, but it is not a true friend, either (it’s a selfish interest). It needs to be scrutinised, but not shunned. Here is IBM’s spin:
IBM may be using a further clause from the original pledge which says that they reserve the right to terminate the pledge if any company “files a lawsuit asserting patents or other intellectual property rights against open source software”. TurboHercules filed an antitrust complaint with the European Commission last month, and IBM may be considering that as a move that qualifies for revocation of the pledge in this case.
There’s been recent interest in IBM’s “500 patent” pledge made in 2005 and how it applies today. It’s always important to get the facts, and the words of the pledge itself are the facts we need.
“The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program’s source code without payment of fees or royalties. All licenses certified by opensource.org and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge.
“IBM hereby commits not to assert any of the 500 U.S. patents listed below, as well as all counterparts of these patents issued in other countries, against the development, use or distribution of Open Source Software.”
IBM stands by this 2005 Non-Assertion Pledge today as strongly as it did then. IBM will not sue for the infringement of any of those 500 patents by any Open Source Software.
Thanks.
Daniel Frye
VP, Open Systems Development
IBM Linux Technology Center
Given that IBM funds the Linux Foundation (and is among the founding members of OSDL), this is not too shocking at all. Jim Zemlin has always been an IBM stickler. He really ought to at least criticise IBM’s use of software patents, but he can’t. As The H puts it, “Linux Foundation say ‘breathe easy’ on IBM patents”
This is rather funny. It’s like IBM saying, “be easy on IBM.”
2010 marks the 10th anniversary of Linux for the mainframe. Here, Knowledge Center contributor Bill Claybrook delves into the 10-year history of Linux for the mainframe, discussing its first deployments, advantages and appropriate workloads, as well as its current market outlook, cost of ownership and available applications. He also offers advice on how you can determine if Linux for the mainframe is the right choice for your data center’s server virtualization project.
The year was 1999. It was the beginning of Linux for the mainframe. IBM and SUSE (which was later acquired by Novell in 2004) began working on a version of Linux for the mainframe. By 2000, the first enterprise-ready, fully supported version was available: SUSE Linux Enterprise Server for S/390. The first large, important customer was Telia, a Scandinavian telecommunications company. This year, 2010, is the 10th anniversary of Linux for the mainframe. The value propositions for Linux for the mainframe that were important in 2000 are still important today.
jamie(really) writes “IBM appears to want to patent optimizing programs by trial and error, which in the history of programming has, of course, never been done. Certainly, all my optimizations have been the result of good planning. Well done IBM for coming up with this clever idea. What is claimed is: ‘A method for developing a computer program product, the method comprising: evaluating one or more refactoring actions to determine a performance attribute; associating the performance attribute with a refactoring action used in computer code; and undoing the refactoring action of the computer code based on the performance attribute. The method of claim 1 wherein the undoing refactoring is performed when the performance attribute indicates a negative performance effect of the computer code.’”
IBM ought to stop patenting software. Better yet–IBM should use its connections in the USPTO to stop software patents as a whole. As long as IBM refuses to do this, the Big Blue may be a friend of “Linux”, but it is not a friend of Free software; one just cannot be a friend of Free software and software patents at the same time. █
Summary: IBM runs away from bad publicity after making a poor decision and sending a Free software-hostile nastygram
JUST as we predicted, IBM does the usual PR thing and backtracks when the public backlash becomes too great. It happens every time IBM obtains or applies for patents that are so trivial that they are insults to the patent system and to the intelligence of everyone around.
This post relates to a development that we covered in (chronologically sorted):
IBM has lost a lot of credibility, even if the provocation came from a proxy of Microsoft (several sources suspect so, based on information they cannot share).
IBM partners from Red Hat and Canonical are trying to defend IBM’s actions. Some are in denial, including Matt Asay from Canonical (not direct link because of the comments). IBM may have a promise for developers and not for companies. In any event, IBM shows its affair with software patents, which is not a good sign. The president of the FFII hypothetically quotes “Ubuntu’s Matt Asay” as saying: “TurboHercules is violating IBM’s patents, shame on it” (we ought to remind readers that Asay has been flirting a lot recently with Gartner‘s de facto software patents lobbyist [1, 2, 3, 4, 5]).
He also asks, “Ubuntu/Canonical is now pro swpat [software patents]?”
Pieter Hintjens, FFII’s former president, also replies to Matt Asay angrily by writing: “Matt, shame on you. Every single open source project, including all of mine, infringe on at least one IBM patent somewhere. IBM hold 50% of the world’s software patents. You know this. How can you defend IBM’s use of its patent portfolio (knowing as you should that IBM finagled software into patent law both in the USA and in Europe) against an open source project, indeed against any software project?
“Has Canonical’s position changed since Mark spoke at Eupaco-2 about the need for freedom for the new economy? Are you doing some deal with IBM that makes this particular monopoly of ideas OK?” –Pieter Hintjens“Software patents are evil, because they allow the powerful and rich to exert undue control over the small and the weak in the marketplace. Your company exists thanks to the small and the weak. IBM has never been a friend of open source, always just a “so far, so good”.
“Has Canonical’s position changed since Mark spoke at Eupaco-2 about the need for freedom for the new economy? Are you doing some deal with IBM that makes this particular monopoly of ideas OK?
“Shame on you, Matt, shame.”
The short answer is basically “yes”. Canonical and IBM collaborate on at least one project. As one person writes in response to Hintjens, “Are you inferring that Matt is using this Blog to help the company where he is the COO?”
Matt Aslett from the 451 Group writes: “The OIN promise actually covers open source software “Distributed with, or for use with, the Linux Kernel (or is the Linux Kernel)” and so is pretty broad. The full list, here http://www.openinventionnetwork.com/pat_linuxdefpop.html, includes MySQL and OpenOffice.org, for example (although no Hercules, so the wider point still stands).”
That’s not of much use if IBM is attacking. OIN (Open Invention Network) is essentially IBM and some companies that huddle around it after they have wasted money filing for software patents and putting them in a pool (what a wasteful process!). Here is a new OIN joiner:
Open Invention Network (OIN), the company formed to enable and protect Linux, today extended the Linux ecosystem with the signing of Ooma as a licensee. By becoming a licensee, Ooma has joined the growing list of companies that recognize the importance of participating in a substantial community of Linux supporters and leveraging the Open Invention Network to further spur open source innovation.
The open-source software community is up in arms over claims that IBM has broken a promise by asserting its patents against an open-source project. IBM denies that it has done so.
Australia’s iTWire writes that IBM has broken its 2005 promise. In the discussion part below the article, a reader (Richard Chapman) gives a vivid description of the situation: “Having IBM at your side in the land of Open Source is sort of like having a large carnivore as a pet. They may play and cuddle with you but you never know if or when they will revert to their natural ways and have you for lunch.”
Thomas Vinje, the founder of the European Committee for Interoperable Systems (ECIS), which ranks IBM among its members, said that “Microsoft lies behind the antitrust complaints against IBM.” Mueller can in turn be linked to Microsoft, he said, because he joined forces with Microsoft to oppose the Oracle-Sun deal, which was approved after an in-depth investigation by the Commission that ended in December. Vinje acted for Oracle in that case.
The problem is that systems like z/OS and z/VM are proprietary software, subject to the usual obnoxiousness. In particular, IBM’s licensing does not allow these systems to be run on anything but IBM’s hardware. So when TurboHercules tried to get IBM to license its operating system to run on Hercules-based boxes, IBM refused. TurboHercules responded by filing a complaint with the European Commission alleging antitrust violations. According to TurboHercules, IBM’s licensing restrictions amount to an illegal tying of products.
One need not agree with IBM’s position to understand it. IBM understands well the power of commoditizing its competitors’ proprietary technology – that’s what its support for Linux is all about, in the end. Emulated mainframes running on generic Linux or Windows boxes can only look like an attempt to commoditize one of IBM’s cash cows. The fact that this product requires running IBM’s proprietary software gives the company a lever with which to fight back. Whether one feels that refusing to license that software in this situation is a proper action or not, one should agree that it’s unsurprising that IBM exercised that option.
TurboHercules evidently sent IBM a letter questioning whether IBM actually owned any useful intellectual property in this area. IBM responded with a letter listing 175 patents owned or applied for, all of which are said to apply to IBM’s mainframe architectures. Two of these patents, it turns out, are on the list of patents which IBM explicitly pledged not to assert against the free software community.
This is the best explanation we’ve found so far. TurboHercules is probably being dishonest, so we have ignored their attempts to contact us (they send PR people). Even if IBM is being provoked and teased by a company that’s possibly linked to Microsoft (even before officially joining the Microsoft lobby), IBM’s response is not acceptable. It even gave Microsoft MVPs like Miguel de Icaza ammunition against IBM and Eruaran says that “Miguel De Icaza has got some nerve tweeting about IBM’s behaviour given his own activities.” Yes, he does a lot worse himself [1, 2], and knowingly so [1, 2, 3]. Check out the following new post that’s titled “Microsoft and Patents”:
Microsoft initially started this patent crusade about 3 years ago, and after the initial wave of accusations the Redmond giant seemed to slumber. All was well for a while. Sure, we all felt as though Novell, Xandros, and Linspire had sold their souls to Satan, but we didn’t really care. There were no real effects of the deals seen. Microsoft claimed that 235 patents had been violated, but to date they have yet to say who violated those patents and in what way. To me, this seems like a massive FUD campaign.
[...]
Rather recently in the Microsoft crusade against Linux, Microsoft approached Amazon. The Kindle’s embedded OS is Linux based, OH NOES! This leaves a striking pattern. As soon as you start making money with Linux software, and Microsoft doesn’t get your money they attack you in some way. Amazon also paid Microsoft some money during the patent exchange, which raises my suspicions… If this kind of treatment continues, I hope that someone will have the ire to stand against Microsoft at some point, and demand that the accusations and the specifics of the violations and violators be made public. How can anyone comply if the information isn’t made public?
Amazon is indeed paying Microsoft for GNU/Linux [1, 2, 3, 4] and IBM cross-licenses with Microsoft. That’s why they can’t quite sue each other. As far as Novell is concerned, Microsoft has made it clear that those who are making money from OpenSUSE are at risk of being sued and Microsoft already ‘taxes’ SLED and SLED.
“As far as Novell is concerned, Microsoft has made it clear that those who are making money from OpenSUSE are at risk of being sued and Microsoft already ‘taxes’ SLED and SLED.”Responding to the post above, Penguiniator writes: “Microsoft is not looking for compliance. The Linux kernel developers have made it clear to Microsoft that they will remove any infringing code if it is pointed out to them. Microsoft cannot make money on code that does not infringe.”
Going years back, we have already pressured IBM (and sent mail to the relevant people) asking them to take advantage of In Re Bilski and put an end to software patents (the current head of the USPTO is from IBM, which wields a lot of power in the patent system). IBM bloggers deleted comments on the subject and never replied. It’s what Pieter Hintjens called the “conspiracy of silence”, topped with censorship too (deleted comments).
In reaching his legal conclusions, Judge Sweet relied significantly on the recent opinion of the Court of Appeals for the Federal Circuit, which has primary responsibility for interpreting the nation’s patent law, In re Bilski, 535 F.3d 943 (2008), now pending in the Supreme Court. Bilski, as readers here will know, raises issues concerning the patentability of business methods and computer software, on essentially the same basic ground: that, as the Supreme Court has said, “phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” Gottschalk v. Benson, 409 U.S. 63, 67 (1972). Judge Sweet’s opinion may be said to raise the stakes on Bilski slightly, but the parts of the Federal Circuit opinion on which Judge Sweet relies are not about the “specialized machine or transformation of matter” test adopted by the Federal Circuit to distinguish patentable from unpatentable inventions involving computer software and methods of doing business. Judge Sweet followed the Federal Circuit closely in its expression of the settled law of patent scope, making it more unlikely that the Federal Circuit, which will hear the inevitable appeal from Judge Sweet’s judgment, will be inclined to disturb the conclusion.
The FFII sometimes accuses IBM of stopping short of elimination of software patents. IBM wants to remove business method patents but to keep software patents in tact. The FFII’s president also says that the “European Commission [is] trying to promote High Quality software patents with the PATQUAL study.” That’s what IBM has been trying to do with OIN. IBM is part of the problem because it not only encouraged patenting of software; here in Europe, IBM is said to be part of the movement that helps legalise software patents.
Even if IBM retracts the threat (as some sources already suggest), it cannot be trusted again. And until IBM makes it clear that it had no software patents in its agenda, IBM deserves to be seen as a fake friend of Free software. It was already called just that even months ago, primarily by other sites that seek to end software patents. Yes, to end them, not to blend with them. █
“Software patents are a huge potential threat to the ability of people to work together on open source. Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat.”
The letter includes a “non-exhaustive” list of 106 IBM patents and 67 pending patent applications. Mueller found that on examining the list, two of the patents mentioned in the letter, 5613086 and 5220669 are among the five hundred patents in the IBM patent pledgePDF. Mueller says “This betrayal of the promise is unbelievable, but I never believed that IBM was sincere about that pledge in the first place”. He calls for regulatory intervention against IBM and points out that TurboHercules had already lodged anti-trust complaint with the European Commission.
IBM certainly has some explaining to do. It needs to make clear where it stands on open source, and where on software patents. It needs to understand that the two are not compatible, and that it cannot truly be a friend of the former while deploying the latter as weapons against free software, even when the victims sit on the latter’s fringe rather than at its heart. After such a long and mutually beneficial relationship, it would be sad if IBM decides that it prefers software patents to open source – and ultimately to its detriment.
For people reading this page from Slashdot, I have to confess that IBM is still lobbying for software patents in the European Union though the creation of a central patent court. IBM, like Microsoft, is actively lobbying in Brussels not to reopen the software patent directive through the Community Patent discussions, and the creation of a central patent court.
Software developer and political lobbyist Florian Mueller weighed in on the European Commission’s investigation of monopoly abuse claims against IBM, accusing the computing giant of deserting the interests of the open-source software community.
Fresh off his humiliating defeat at the hands of Oracle, Florian Mueller is now tilting at IBM, accusing it of open source treason for trying to enforce a monopoly it won before he was born.
[...]
The question is just how much IBM credibility might be lost as a result of TurboHercules. Mueller wants to make certain it’s a lot.
Regardless of Mueller’s agenda, the letter from IBM is authentic. To IBM, it’s a black eye. Is it a blunder because it contradicts IBM’s policy or is it a blunder because it was leaked? Either way, IBM has a habit of patenting insulting things and then backtracking/apologising when there is public backlash (i.e. only when it gets caught and exposed). If IBM is a friend of Free software, then unlike Novell, it ought to trash software patents rather than quietly hoard them. As Glyn Moody put it, IBM needs to understand that Free software and software patents are simply not compatible. █
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