Bonum Certa Men Certa

IBM Will Never be the Same After Taking Software Patents Out of Its Holster

Watch IBM Slink Away

Shy dog



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):

  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


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.


OIN is in favour of what it calls "high-quality" software patents, based on its CEO. It's a bit like Peer-to-Patent, which does not genuinely help the ending of software patents.

IBM obviously broke its promise and IBM is in denial.

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.


This does not agree with reports [1, 2, 3] that the source of the backlash (Mueller) brags about with a summary of resultant posts and articles, such as:

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."


Here is the original. ECIS is tied to IBM, so it is making the following claims (an assertion that's likely true, but does not excuse IBM):

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.


We have attempted to see what led IBM to the nasygram and the following excellent article from LWN answers many of the questions.

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).

According to Professor Eben Moglen's essay for a new Red Hat Web site, the Bilski case and the end of gene patents are a stepping stone towards ending software patents.

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.”

--Linus Torvalds

Comments

Recent Techrights' Posts

Yes, Of Course the Linux Foundation's OpenSSF Rejects Open Source and GNU/Linux (New Report)
longstanding tradition
Links 10/12/2024: Nvidia's Regulatory Woes, Trust Issues in LLMs (and Similar Recent Hype)
Links for the day
Gemini Links 10/12/2024: Lagrange 1.18.4 Released, New RNG
Links for the day
More Chatbot 'Articles' About Chatbots
Look what's happening to the Web...
Microsoft Falls to All-Time Lows in Cameroon
Windows down to just 4.6%
Brittany Day Still Uses Bots to 'Write' Articles (But Not All the Time)
it leads to a presumption of plagiarism
Links 10/12/2024: Trying "Hey Hi" With New Hype and Buzzwords, TikTok Bans Imminent
Links for the day
Google's CEO: LLMs' ‘Low-Hanging Fruit’ Now Exhausted
They basically tell shareholders not to expect returns on this hype
Microsoft Windows Falls to 11% in Senegal, an All-Time Low
In neighbouring countries (to the east of Senegal) the "market share" of Windows is even lower
The EPO's Corrupt Dealings With Microsoft Never Addressed, Only Worsened
it helps Microsoft spy on the competition and manipulate examiners dealing with its files
The Catching of Luigi Mangione Shows We Need Not Have More Surveillance (Than We Already Have; It's Excessive Anyway)
instead of saying surveillance is insufficient and thus we need more of it, now they can claim they have enough of it
[Teaser] Fate of Formalities Officers (FOs) at the EPO
Coming soon
Libre Liberia: Windows Down to 8% in Liberia
In Liberia, only about 1 in 12 Web requests seems to originate from Windows
Links 10/12/2024: Health, Politics, Economics, and More
Links for the day
Gemini Links 10/12/2024: LLM Plagiarism and "Flow" Review
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, December 09, 2024
IRC logs for Monday, December 09, 2024
EPO Salaries Reduced: EPO's “Sustainability” Clause "Cuts the Average Overall Adjustment for Staff by –41,8%."
What does this all mean for staff?
Google is Nuking Remaining Invidious Instances Again, Hoping to Force Everyone to Use Proprietary Spyware With DRM
This issue started a few hours ago
Microsoft's Grip on Armenia is Slipping, According to New Data From statCounter
Notice what happened to Windows - an all-time low
[Meme] Sloppy Plagiarism Full of Errors, Lacking Actual Comprehension
LLMs are not "AI"
More LLM Spam/Slop About LLM Spam/Slop
This is what the Web will become unless we expose those who contribute to the problem
Reforming Versus Rebooting Versus Destroying Institutions
At the moment we strive to expose the truth or shine light on pertinent facts
Expose Corrupt Insurance Companies, Don't Kill People
Murder gives them sympathy, makes the raiders seem like the victims
Microsoft's Windows is Pretty Much Dead in Haiti
Android has eaten Microsoft's lunch, Microsoft can't even eat crow
[Teaser] EPO Management Thinks Inflation in Europe is 0.2% Per Annum
Taming inflation by entirely ignoring it is like wrongly assuming that climate change (caused by human activity) can be overcome by not studying the effect of 8+ billion humans on this finite planet
Corporate Media Will Be Discarded and Eventually Die If It Keeps Doing "Bill Gates Sez" (or Similar) Pieces Instead of Journalism
"Superintelligence" does not even mean anything!
This Week We Focus Again on European Patent Office (EPO) Scandals
Nothing can stop us, not even a party or SLAPP
Links 09/12/2024: Health Care Anger and Power Vacuum in Syria
Links for the day
Links 09/12/2024: Burned, Uncertain Future, and Failure
Links for the day
[Meme] Write Code, Not Social Control Media
don't forget to 'like'
Links 09/12/2024: UnitedHealthcare C.E.O.'s Killer Still Unknown, Syrian Regime Change Completed
Links for the day
Site in Support of Richard Stallman Reminds People of the FSF's and Stallman's Support of Women
new updates
Microsoft: Target the Young (Get 'Em While They're Young)
Then they say Free software advocates are "extremists" and "rude"...
As of December 8th (23 Days Remaining), the FSF (Free Software Foundation, Inc.) Already a Third of the Way Toward Ambitious Funding Goal
FSF's memberships (or donations) drive is going a lot better than we anticipated
Why Mike Magee Created and Was Involved in So Many News Sites About Technology
British legend
In Memory of Mike Magee (1949-2024) and Our Best Wishes to The Register, Which He Founded in the 1990s
Months have passed since Magee died
Tunisia is Android, Windows is Waning There
Windows was measured below 20% in Tunisia
[Meme] Jeff Bezos Working From Home
"B**** please, publish articles in Washington Post about how working from home sucks"
'Remote' (From Home) Tech Workers Are More Productive for a Lot of Reasons
The Bezos-owned media should disclose its conflict of interest here
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, December 08, 2024
IRC logs for Sunday, December 08, 2024
No Wonder Microsoft's LinkedIn and Github Have So Many Layoffs, Permanent Office Closures
Traffic down, losses, probably never going to profit
Microsoft Ends Support for Vista 10, So Relative Share of Vista 10 Goes Up, Vista 11 is Down
For 2 months in a row already
When Python is Basically Run by a 'Microsoft-Friendly' Mole Who Ousts People That Actually Contributed a Lot to Python for Many Years
Removing some of the best people
Microsoft's Latest 'Novel' Approach, Trying to Prevent People Moving Away From Microsoft and From Windows
ads say a lot about their business strategy
Syria: Microsoft Windows Down to 8% "Market Share" (It Was 99% Just 15 Years Ago)
it was even measured at less than 5% earlier this year
Microsoft-sponsored "The New Stack" Publishing Microsoft Windows Articles in "Linux" Clothing
Just sayin'...
Links 08/12/2024: Boeing Leaks and Bluesky’s Business Model Dilemma
Links for the day
Gemini Links 08/12/2024: UK Winds and Ultraviolet Grasslands (UVG)
Links for the day
Links 08/12/2024: Conflicts, Misinformation, and Gutting of the Media
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, December 07, 2024
IRC logs for Saturday, December 07, 2024