WE ROUTINELY quote Mr. Müller, but we very well know that his interests outside the software patents debate do not intersect with ours. It is somewhat sad that as we first showed yesterday, Müller pushes the Microsoft line against GNU/Linux domination in mainframes (be it by IBM or someone else). We wrote about NEON in [1, 2], but the connection to Microsoft's front does not deter Müller who promotes the anti-IBM line in Slashdot. In his blog he even links to Maureen O'Gara (who needs no special introduction [1, 2, 3, 4, 5]).
The efforts by open source TurboHercules to break IBM’s mainframe monopoly through the European Commission got some proprietary support this week when NEON Enterprise Software LLC of Austin, Tex. filed an EU complaint alongside a U.S. antitrust lawsuit.
NEON was founded by BMC Software co-founder John Moores, so even if you have never heard of it, they have the money to pursue the case.
From: Florian Mueller Sent: Saturday, June 26, 2010 6:55 PM To: Roy Schestowitz Subject: NEON is not a Microsoft front
Hi Roy,
We'll always have a combination of items on which we agree and ones on which we disagree. Whether or not you elect to quote from this, I'd like to provide an explanation as to why I welcomed NEON's announcement of an impending antitrust complaint against IBM.
My primary concern about the mainframe case is the Hercules open source project, which started in 1999 and can therefore not be considered a Microsoft front by any reasonable stretch of the imagination. I believe this is now a situation in which antitrust intervention can benefit free software and open source once again, as Samba benefitted from the EU antitrust case against Microsoft.
NEON also filed a complaint, not with a view to emulation but a different scenario in which IBM alleges infringement of "intellectual property". In NEON's case one of IBM's legal theories is based on the DMCA, a piece of legislation that I'm sure you have a critical perspective on.
At any rate, I feel comfortable reporting on NEON because I can't see any indication that they are a Microsoft front. NEON's principal founder and owner (besides the company's employees) is John Moores Sr., a billionaire philanthropist who co-founded BMC (hence his wealth). This isn't the kind of company that would act as anyone else's front. NEON has its own beef with IBM, but it underscores the need for antitrust intervention against an abuse of a dominant market position (or, simply put, monopoly) and that's why I was glad to see them act not only in the US, where they've already lodged a complaint, but also in the EU.
Given NEON's background and the 11-year history of the Hercules open source project, this leaves only T3 as a complainant with a Microsoft connection. I heard that Microsoft is a shareholder of T3 but haven't been able to find out more detail on how much of the company they own. I haven't had any contact with T3 nor with NEON myself. I have no reason to assume that TurboHercules is linked to them.
At the end of the day, my view is that there is a serious problem with IBM's anticompetitive conduct, an antitrust intervention would be justified. A possible Microsoft involvement with one of the three complainants isn't the issue that the European Commission will be interested in. What matters is whether the European economy is harmed by IBM's behavior.
I can't see any negative effects on the mainframe version of GNU/Linux. On the contrary, I have talked to mainframe developers and I have learned that most if not all of the developers of the mainframe port of GNU/Linux use(d) Hercules for their own development and testing purposes, including but not limited to Alan Cox (former Red Hat Fellow, now employed at Intel) and Bernharnd Kaindl (who did the mainframe port of SuSE Linux).
Hercules is available for GNU/Linux as well as Windows.
If there are customers who want to continue to use existing ("legacy") z/OS program code, they are now forced to use IBM hardware and Hercules would give them a choice for some use cases. For possibly porting their applications to GNU/Linux, the switching costs, risks, delays and efforts involved are huge, but the existence and availability of Hercules certainly isn't a factor that would adversely affect anyone's attitude toward ports.
Best regards,
Florian
Comments
Jose_X
2010-06-27 19:54:50
This is a very important point. No matter what rules and laws exist, there is a constant effort to game the system. Microsoft is very very successful at this.
There won't always be a direct money trail, for example.
In particular, if enough people believe they need to achieve X (eg, weaken Linux, GPL, GPLv3, the FSF/GNU, etc) because somehow that will help their own futures, Microsoft will be able to gain from this.
This "invisible" focus towards Microsoft's gain is one reason why many Microsoft partners get "stabbed in the back" or otherwise gain much less than they expected. Microsoft is simply a great business chess player, and, as was mentioned here http://techrights.org/2009/02/08/microsoft-evilness-galore/ , when the pawns go to collect their improved lot, they find new barriers and/or losses that they didn't anticipate and that they likely in part helped bring about. Of course, some pawns do gain and maybe even a very few gain a whole lot, but you can't spread your wealth around to too many pawns and at the same time grow your own.
So help Chess Master Gates beat most other strong chess teams, and then we have Gates against pawns.
It's a never-ending cycle of greed, deception, abuse, and destruction. At some point, we might even see Microsoft top brass turn against each other (never mind the lower minions), but really who cares by then.
OK, well, the more people that see through the smoke and mirrors, the more people will stop enabling these people to keep aggregating control. We need to shun the growth of closed source platforms. Specifically, the smoke and mirrors of support by diverse groups to stop a monopolist (IBM) from abusing open source (TH) should be seen for what it is: an effort that culminates in the growth of a monopolist closed source platform into areas where now open source platform Linux is strong.
We must look at the wider picture and not just at the small markets. Don't let hyper-ambitious and savvy players game our rules. We need to prevent the growth of already wide-reaching monopolies.
Don't let a sort of digital "terrorist" use a digital "human shield" (an "open source" app or an "anti-patent" supporter) to grow their grip over us. The human shields aren't even what they appear when they are implanted and working on top of the monopolist platform.
Dr. Roy Schestowitz
2010-06-27 21:33:30
Readers ought to know that Müller is mass-mailing many journalists with statements that come before/right after their official announcement; he tries to control/shape or to change how things are covered and I don't agree with him a lot of the time. At least he is courteous and polite.
My suggestions to Müller:
1. Make a public disclosure, expressing the opinion/stance on Free software in general, the mixing with proprietary software, and the subject of open standards
2. Make another disclosure about conflicts of interests (Müller told me about his sources of income privately and it's up to him whether he wants to make it public)
3). Express an opinion on Microsoft's monopoly abuse. This is a subject that Müller consistently avoids/dodges, based on my experience (because it weakens his case)
Florian Mueller
2010-06-27 22:14:07
You mention that I send statements to journalists. I also send all of those statements to you. Those emails typically contain a link to the original news and a feel-free-to-quote passage. I can't see what's wrong with doing so. Some journalists from major IT news sites have even encouraged me to do more of it.
Concerning your three suggestions:
1. I like the Free Software idea and that's why I try to talk about FOSS rather than open source most of the time. However, until software patents are abolished, there can be no truly free software - neither free as in free speech nor free as in free beer. I don't oppose the term "open source" as long as it isn't used to dilute the concept. The Open Source Definition is fine and it supports the mixing with proprietary software. RMS doesn't discourage ports of free software to proprietary operating systems. For me it's also normal to use FOSS and proprietary software in parallel.
2. I will always comply with transparency rules such as the ones established by the European Commission, under which I have no conflicts of interests to disclose. Should it ever change, I will make a filing accordingly and it will be public. Apart from this, if anyone considers anything I say now inconsistent with the positions I took during the (very public) NoSoftwarePatents campaign in 2004-2005, I'd like to know. I criticized IBM's approach to software patents and its "patent pledge" back in 2005, which is well-documented on the Internet. Five years later - this year - I was proven right; in fact, what happened even exceeded my original concerns.
3. I expressed an opinion on that in my speech at LinuxTag, the slides of which are available online. The European Commission was absolutely right to intervene in order to ensure effective competition. I think this has had a very positive impact, although on the Media Player side the abolition of software patents would have been infinitely more helpful than the unbundling requirement imposed. I do not dodge this subject at all. On the contrary, I plan to publish a blog posting in a few days (after the Bilski dust settles) in which I will support European Commission Vice President Neelie Kroes' new initiative to impose interoperability obligations modeled after the Microsoft decision on *all* significant market players, not only dominant companies (such as monopolists) but also all other important ones such as Apple. I agree with her that it shouldn't take lengthy antitrust battles in the future to resolve those issues and that a new EU law could be a great solution. In my opinion, that law should ideally have the same effect on all major players as the Microsoft ruling. I don't think one can ask for more at this stage because the Microsoft decision is a court-validated standard that was a major victory for the EU on behalf of consumers, nor should the Commission aim for less.
Florian Mueller
2010-06-27 22:31:34
Dr. Roy Schestowitz
2010-06-27 23:45:21
Jose_X
2010-06-28 00:41:33
Trade secret is a real potential problem with software, in particular, with software that we might label a "platform". A platform would be a significantly large body of software that had "hooks" to allow third parties to extend it.
It's too easy to update software to do anything allowed by the OS and then remove traces of what just happened. Naturally, the operating system itself can most readily abuse this capability as well as many others.
Software is exceedingly complex. Bugs are rampant and these break interoperability as well. A standard is but a guide.
***If you don't test implementations aggressively against standards, then they are not nearly so useful in preventing abuses.***
Is the Commission testing aggressively?
Microsoft can partner with specific groups to give them extra access or superior integration. This is the case with TurboHercules and with numerous other groups. This should not be allowed. All interfaces should be public. Otherwise, the affiliate can help Microsoft remove competition.
For platform providers there should be say 3 choices:
(a) Let only independent third parties provide all the "user level" extension features and forbid the platform vendor from giving any group private access to future platform developments and platform API;
(b) allow the platform vendor to create proprietary extensions, but they can do absolutely no integration with the platform and must keep the base platform completely *stable* and with a given fully documented API;
(c) open source the entire platform in order to then add closed source extensions.
The above implies that Microsoft could not improve/change both the Windows platform as well as the IE or any other platform. Of all their interrelating platforms, they could only improve one.
There should be serious penalties for discovering any form of integration (eg, undocumented API or extensions) or violations of any of the above conditions.
>> RMS doesn’t discourage ports of free software to proprietary operating systems.
Does anyone have links to what he has said about this. I thought I had read that he considered ports to be inferior or undesirable "solutions".
If I could have my wish, I would like the FSF to take a strong stance when the proprietary platform is being actively developed (since this growth creates unpredictable interoperability issues and interface semantic changes) and/or when the platform is owned by a legal monopolist in the given market.
A GPLv4 that addresses this would be very nice. Actually, the current versions of the GPL may require (I'll read more carefully later) a standard interface or else open source, and this may imply that if you mess with the semantics of any interface (as happens all the time with Windows upgrades) or fail to fully document behavior, then you can't link the GPL software to that environment.
>> The European Commission was absolutely right to intervene in order to ensure effective competition.
I think Neelie Kroes recognizes the problems with closed source platforms and wanted the EU governments to move off them. That's a great first step to introducing competition and breaking lock-in and interoperability failures.
This would roughly correspond to (c) above.
Jose_X
2010-06-28 00:52:43
This is saying that prior to Microsoft trying to leverage software patents very much, think back 10 or more years (eg, to the US DOJ cases from the middle 90s and Microsoft earlier abuses), that they did not present anti-competition problems.
The major anti-competitive tool for their extensive platform has been trade secret. For example, the inevitable constant flux of semantic changes that occurs as the software is changed and grown, and the integration only available to their applications.
Another major problem is leveraging the large size of their distribution platform (Windows) in order to strike deals with re-distributors which lead to biases against competing platforms (eg, Linux).
Again, Neelie Kroes recognizing that the EU government should move to open platforms is excellent, as it solves numerous problems and potential complications from quasi-solutions.
Jose_X
2010-06-27 19:20:48
I have a problem with a push of Microsoft software.
I think a lot of people have a problem with a push of Microsoft software.
Turbo Hercules the project is *not* the company. The project is not what IBM is attacking. IBM is attacking a push and growth of Microsoft platforms. IBM's patent issues (for better or worse) are with a proprietary platform.
IBM is defending against an embrace of pseudo-open source (WinFOSS) by a Microsoft affiliate. The open source product has been integrated into the proprietary platform of a monopolist.
If we want to break monopolies, we should not allow another monopolist to take over existing ones. Doing so makes things worse if we end up with more control in the hands of fewer and with the monopolist gaining being much more aggressively against open platforms. In particular, displacing and/or weakening Linux should not be promoted or perhaps even allowed by those with legal oversight over these matters. Additionally, pushing Linux higher up the stack enables the promotion in adjacent markets of those solutions displacing it lower in the stack (in this case Windows) which will be believed to be superior.
What this means is that IBM can and should be prevented from blocking Linux competition, but it's a very different story to support a growth into new markets of Microsoft platforms that are already established as a monopoly in important markets. A software platform is too easy to be used to dominate what lies on top. It controls access to everything on top and can manipulate things quickly without leaving much of a trace behind. This means we should challenge all proprietary software platforms and not allow the spread of any of them.
Has Muller changed his position, or is he still refusing to call Microsoft out on their threat and exploitation of closed source software platforms?
Why is Muller supporting the gaining of Microsoft platforms? Muller should refuse to support the growth of a monopolist (not to mention, one loaded with software patents) into new markets.
Has Muller lost his mind?
Florian Mueller
2010-06-28 07:38:42
I want to make this perfectly clear: my agenda is issue-driven (hence my consistent positions over all those years), not company-specific.
RMS and I opposed Oracle's acquisition of MySQL and to neither of us the fact that Microsoft also made submissions critical of the deal (see the European Commission's decision, which contains lots of quotes from them) was a reason to change our position on the subject. RMS' positions and mine were driven by FOSS concerns. That doesn't mean we were wrong only because two proprietary software companies (Microsoft and SAP) also presented arguments against antitrust clearance from their (different) angles.
It's the same for me now with the mainframe antitrust (abuse of dominance) case. I've made a lot of effort to look into the mainframe market. In addition to studying a lot of write-ups from both sides of the debate, I have held conversations not only with the founder of the Hercules project but with many others, including Bernhard Kaindl, a fellow anti-software-patent activist who developed the mainframe version of SuSE Linux, which is still the market-leading z/Linux distribution. I have concluded that strengthening Hercules (and the Hercules-based TurboHercules offering, which is equally available for GNU/Linux) does not in any way harm the interests of FOSS. On the contrary, I believe it strengthens FOSS directly as well as (because of the issues involved that are also relevant in other markets) indirectly.
Over time I will certainly explain that on my blog in greater detail to address concerns some may have due to IBM-driven propaganda.
Being issue-driven rather than company-focused is the only way to have consistent positions and the credibility it entails. That's what I'm known for in Brussels, and I would never want it any other way.
If Microsoft called me and said they're sick of all those patent troll lawsuits against them and they've understood (again, because a long time ago they knew) that software patents are a bad thing, would I close my door? No. I would say, "welcome to the club, what can we do together for this good cause?" And I would then ensure that I don't become a gun for hire but that I would have all the autonomy in the world to pursue what's right. I wouldn't accept a muzzle of any kind. If they wanted to specify a kind of framework for the positions I take, I would tell them to read my Creative Commons-licensed ebook, No Lobbyists As Such.
If they only wanted to get rid of software patents because IBM has so many of them, that wouldn't play any role.
But if they asked me whether I could support software patents or downplay the essential role of FOSS to ensure effective competition in the software market, I wouldn't make myself available.
I believe I have now made a good-faith effort to explain my approach to the important issues that have been raised.
Dr. Roy Schestowitz
2010-06-28 07:45:34
saulgoode
2010-06-29 13:09:52
The same could be said of Novell, yet some people still consider it legitimate to engage in exposition of those issues where their choices are questionable.
One also shouldn't blinker there focus to only those areas of computing which interest them. IBM has been friendly towards Free Software on the desktop, but has their history with regard to the mainframe arena exhibited a similar level of freedom advocacy?
I would caution against admonishing those who advocate software freedom on the mainframe merely based on IBM having made significant contributions towards Free Software on the desktop. I certainly disagree with Mr Mueller and Mr Maynard on several issues, but a company's contributions to the Free Software community only goes so far towards excusing their more disfavorable and exclusionary conduct.
Jose_X
2010-06-28 21:19:30
I'd like to think I am issue driven as well, but there are multiple issues in this saga that I think deserve attention as a FOSS supporter.
I'm still waiting for you to give balance to your attack on IBM by attacking Microsoft for moving in on new territory and for using patent threats against many open source users.
>> If they only wanted to get rid of software patents because IBM has so many of them, that wouldn’t play any role.
Florian, Microsoft takes out more software patents than almost any other company.
Let me know the day they come to you saying they want to abolish software patents because their position is quite the opposite as revealed by deed, by their briefs in support of them in the Bilski trial, and by internal memos (eg, from the Comes exhibit).
Dr. Roy Schestowitz
2010-06-28 21:57:49
Florian Mueller
2010-06-28 05:56:54
Jose_X
2010-06-28 21:12:33
Dr. Roy Schestowitz
2010-06-29 09:05:02
OK, I wrote a followup about reasons for distrusting Florian, at least from the FOSS POV.
Florian Mueller
2010-06-28 05:55:04
Jose_X
2010-06-28 21:07:30
I agree except that I'd go further. Remove all the GPL software from Windows, and watch Linux and other open platforms become a lot more attractive to more people. Notice that Microsoft is trying to get all GPL to work on their platform and then is additionally supporting a class of open source projects that get special rights and capabilities only when run on Microsoft's own platform. Microsoft knows that they have to win the application game (get them to work on their platform, exclusively if possible) in order to preserve their proprietary platform.
A more important point is that open source over a proprietary platform that is in active development is not open source. The user doesn't have control or predictability except as the closed platform vendor sees fitting to their business plans.
I think the GPL might not be acceptable in these cases where the underlying platform is not standardized (eg, because it is in flux and with features not publicly documented) nor open source. [I'll have to reread the GPL later. I mentioned this above "GPLv4".]
You stated you find mixing open and closed source to be acceptable. It's different to use a proprietary application here or there with mostly open source, for example, than it is to use a proprietary platform since, in the latter case, everything becomes proprietary by virtue of the substantial dependencies on the proprietary platform that every single piece of software running on it has.
You can isolate and lock down and limit what any proprietary application can do when it's on an open platform like Linux, but you can't have control of even a single application (except to the degree tolerated by the platform vendor) when you are on a closed platform like Windows.
It's difficult to know what RMS had in mind without knowing the exact words and more context.
Dr. Roy Schestowitz
2010-06-28 21:56:20
Jose_X
2010-06-29 12:33:45
The GPLv3 may give you rights to get a GPL work and run it through a defective trash compactor (eg, run it on Windows even if Windows is not behaving as expected) if that is what tickles your fancy; however, compiling GPL using a proprietary compiler (eg, a Microsoft compiler) which produces object code you can't otherwise derive and then distributing without the corresponding source (to include instructions on creating that object code) is not allowed.
I've seen projects that use Microsoft tools to build the Windows binaries and then put these binaries up for download. This is going against the letter and spirit of the GPL by distributing something without sufficient source code to allow you to predict its behavior.
Florian Mueller
2010-06-28 05:31:11
I see a need for antitrust intervention against IBM because I see exactly those principles at stake.
To keep it focused, let me just use the quote above from you on "leveraging" as an example. IBM leverages and thereby reinforces, expands and exacerbates its mainframe monopoly by disallowing the use of z/OS on non-IBM hardware. If action is taken against them, it's a clear signal to Microsoft and its OEM partners. If IBM gets away with it, think of the implications this may have for Microsoft's dealings with hardware companies.
Jose_X
2010-06-28 20:48:25
I am not against antitrust enforcement were warranted, but it should not be replacing one abuser with a greater one that is more of a threat to open platforms.
I am wondering why you aren't speaking out, as a FOSS supporter, against the growth of monopolist proprietary platforms into new territory?
It's this inconsistency, as a FOSS supporter, that is troubling other FOSS supporters who look at your actions.
>> If action is taken against them, it’s a clear signal to Microsoft and its OEM partners.
That is correct. You can't send a signal to Microsoft that they will be allowed to go into new markets as an excuse to weaken other players that happen to be strong in those markets.
Microsoft is (or should be) restricted because of their position with their Windows platform. This is the signal we should send them, in addition to any other signal we send to IBM and anyone else.
Florian Mueller
2010-06-28 05:25:08
The term "open standards" is actually used much more aggressively by companies who are actually against the concept when their own core business is concerned, such as IBM.
I certainly don't want trade secrets to stand in the way of interoperability. The European Commission's decision in the Microsoft case addressed both trade secret and patent issues, and I said I wouldn't want that new European interoperability law to stop short of what was achieved in the Microsoft case. Elevating that principle from a case-by-case decision (which is court-validated but only by the Court of First Instance because Microsoft didn't appeal to the ECJ) to a real law would be major progress with respect all companies in the industry, including but not limited to Microsoft. I think Apple and Adobe are particularly good examples of companies that need to open up and under the current legal framework they might have strong points to make that they're not "dominant".
I think that EU initiative will also be real litmus test because some of those who advocated the principles we (as opponents of software patents and proponents of FOSS) cherish only when they viewed it as a means of attacking a competitor will now struggle with the idea of having to open up, too. Fortunately, the first case was about Microsoft (and supported by Adobe, for instance) and not about them. It will be very hard for them to oppose Neelie Kroes' initiative and I guess they will do it through backroom lobbying. We should all keep an eye on that and it makes that legislative process (which has not yet formally begun, but it's on the right track in this "prenatal" state) a critical mission because in the worst case a weak outcome due to lobbying by the likes of Apple and Adobe could also result in more Microsoft behavior of the kind none of us would like to see.
Jose_X
2010-06-28 20:39:26
Did you mean to imply that Microsoft is for open standards that are fully specified while companies like IBM "actually" are not?
>> The European Commission’s decision in the Microsoft case addressed both trade secret and patent issues, and I said I wouldn’t want that new European interoperability law to stop short of what was achieved in the Microsoft case.
I think I looked over that decision. I am not a lawyer and don't deal with Microsoft products.
I did get the impression that the decision did not require Microsoft to document all aspects of the protocols or full semantics of their API.
>> I think that EU initiative will also be real litmus test because some of those who advocated the principles we (as opponents of software patents and proponents of FOSS) cherish only when they viewed it as a means of attacking a competitor will now struggle with the idea of having to open up, too.
IBM has problems with a proprietary platform being pushed by Turbo Hercules (the company). You should too when you consider that this would be a growing of power of an abusive monopolist.
I think, as a supporter of FOSS (as you just claimed you are), that you should attack Microsoft on par with your attacks against IBM. Microsoft is trying to grow their proprietary lock-in and reach into new markets.
>> because in the worst case a weak outcome due to lobbying by the likes of Apple and Adobe could also result in more Microsoft behavior of the kind none of us would like to see.
Are you saying that Microsoft, despite the EU taking care of them as you appear to think is the case, is a threat if Adobe and Apple are not similarly restrained?
Or are you saying that Apple and Adobe pose the same threats to consumers today as does Microsoft?
Dr. Roy Schestowitz
2010-06-28 20:45:12
Jose_X
2010-06-28 01:05:56
By definition, patents are broad monopolies (anti-competition), and, for numerous reasons, this is particularly stifling to many individuals and unworkable for the creation and distribution of increasingly sophisticated software products.
Software is a product of the mind, without the bounds nature places on material goods. Patents on fiction or on math, for example, would also be very disruptive to society and advancement.
Jose_X
2010-06-28 01:22:07