Authored by: entre on Thursday, April 08 2010 @ 05:00 PM EDT

Authored by: Anonymous on Thursday, April 08 2010 @ 05:02 PM EDT

I have only just started paying attention to this particular circus. Who, pray

tell, is Florian Mueller? From PJ's statement, I presume that he is something

of a repeat FUDster, but... other than the IBM/Hercules thing, what has he

done?



MSS2 [ Reply to This | # ]



Authored by: UncleJosh on Thursday, April 08 2010 @ 05:07 PM EDT

IBM does not seem to care ... What Roger Bowler is complaining about is that IBM will not license its z/OS software on TurboHercules ...



Something very similar happened to Fundamental Software, which had in the past licensed IBM's patents ...



So this is news?



Disclaimer: I am not an unbiased observer. [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 05:08 PM EDT

Yes, that occured to me too, when I first read about this

about a week ago.



bjd

[ Reply to This | # ]



Authored by: lnuss on Thursday, April 08 2010 @ 05:12 PM EDT

"You know what I think the real problem is here? OSI has a list of licenses

that no one should have on any approved list, in my view, including some from

Microsoft, and I don't think they plan to fix that any time soon."



Keep in mind that IBM didn't say just ANY OSI approved license. They said:



"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."



So when did this "Q" license appear on the "approved" list

on the website? Was it AFTER 1/11/2005? Likely.



In any case, you're right- they reserved the right to defend themselves.









---

Larry N. [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 05:23 PM EDT

So... all they wanted was to be able to use hardware of their choice with software they paid for? Forgive me, but I don't believe that should be an allowable restriction.



Let me ask you this: what's the difference between that an Microsoft's platform restriction clause in their pseudo-FOSS licenses? Or are we going to say that Microsoft's licenses are genuine FOSS now?



And the whole "shades of Psystar" thing... sorry. I don't buy the alleged conspiracy thing. All you've proven is that several different people hate EULAs. Yes, I know you've been hunted by Darl (in an almost literal sense with the investigators he hired), but it distorted your perspective more than you seem to realize. The GPL is not a EULA. Attacking EULAs for their onerous restrictions is NOT an attack on the GPL. I personally hate EULAs and love the GPL.



This is NOT some anti-GPL attitude. I think you underestimate how many people genuinely hate and disrespect EULAs, while loving the GPL for creating freedom. And yet you see conspiracy everywhere... but never any proof. Seriously, you had no trouble finding all the dirt on SCO, but you haven't found any financial ties, any personal ties, or any indication that these people don't really feel this way. I feel that it's irresponsible to allege some kind of conspiracy unless you have better evidence than this. You know how it felt to be unjustly accused of being in cahoots with IBM based on a lot of conjecture and a little circumstantial evidence, right? We know you're not. I'm not saying you are. But if someone wanted to make that case, the mere fact that a talented paralegal just happened to pop up out of nowhere to support IBM (and FOSS's) side of the case is a LOT better circumstantial evidence of "conspiracy" than anything and everything you've been able to put together on this alleged Psystar conspiracy. And we know that that was wrong. So what can you give us that's more convincing evidence of some kind of legal attack on the GPL by Psystar & co.? So far, all I've got is evidence that a bunch of people who hate EULAs. I'm one of them (though I've never been in any IP lawsuits whatsoever). [ Reply to This | # ]



Authored by: tknarr on Thursday, April 08 2010 @ 05:27 PM EDT

Roger Bowler claims that IBM threatened TH before TH filed it's complaint. What I figure happened is this. AIUI z/OS is licensed only to run on IBM hardware. The license allows for an installation to be run on another machine for disaster-recovery purposes, but I don't think "other machine" extends as far as "non-IBM hardware". Hercules was being used for development and testing purposes, and IBM had no problem looking the other way about just that. But TurboHercules started talking to IBM customers about using TH's software to run z/OS in a disaster-recovery role. That goes beyond just development and testing, you're now talking about running z/OS in a primary role on non-IBM hardware when the main machine suffers an outage. That's not just a violation of the license, that's a violation that impact's IBM's sales. They're not going to look the other way about that. So IBM went to TH and said "Look, if you don't stop this we're going to have to come after you for inducing our customers to violate their license agreements.". Which is IMO reasonable, it's IBM's software, they get to choose their license terms and nobody else gets the right to interfere. TH responded by filing their anti-trust complaint. And right there's where I put the line between reasonable and unreasonable. If TH really thought IBM was in the wrong, they'd've filed their complaint when they started their business and not waited until IBM acted. IMO all the anti-trust complaint is is an attempt to continue basing a business on getting IBM customers to violate their license agreements, knowing that IBM won't want to start cutting their own customers off and hoping that the complaint will make IBM back off of going after TH for tortious interference. I'd note that Roger even admits that TH's goal is to make IBM change their license terms to allow running z/OS on non-IBM hardware. That's IMO all well and good, but the way to go about it is to make your case to IBM and, if you feel it neccesary, the EU anti-trust officials, not by going to IBM's customers and going "Hey, we can save you a few bucks if you'll just break your contract with IBM.". [ Reply to This | # ]



Authored by: bugstomper on Thursday, April 08 2010 @ 05:40 PM EDT

Please stay off topic and use clickies where appropriate

[ Reply to This | # ]



Authored by: bugstomper on Thursday, April 08 2010 @ 05:41 PM EDT

Pick your News here. Please include the News Pick title in your title for easy

scanning. [ Reply to This | # ]



Authored by: xtifr on Thursday, April 08 2010 @ 05:45 PM EDT

Looking at the text of the patent pledge itself, from the PDF PJ linked, I see: IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software. Emphasis mine. Note first that it specifies filing a lawsuit as a necessary step for losing the pledge protection. I don't think that complaining to the EU commission counts, though I could be wrong about that. But in any case, IBM hasn't said that TH has lost the pledge protection yet. Still, this could prove interesting if this goes much further. The more interesting point, though, is that it doesn't say anything about IBM "defend[ing] [them]selves". It defends "Open Source Software", not IBM! The EU complaint was about IBM proprietary software, not OSS, So if IBM did assert the two patents in question in this case, rather than merely listing them, I think they might well be violating their pledge. I certainly hope it won't get that far. ---

Do not meddle in the affairs of Wizards, for it makes them soggy and hard to light. [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 05:58 PM EDT

IBM identifies the legally binding pledge as: 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.. Subject to the exception provided below, and with the intent that developers, users and distributors of Open Source Software rely on our promise, IBM hereby commits not to assert any of the 500 U.S. patents listed above, as well as all counterparts of these patents issued in other countries against the development, use or distribution of Open Source Software. In order to foster innovation and avoid the possibility that a party will take advantage of this pledge and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs, or the freedom of others to distribute and use Open Source Software, the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software. This is pretty clear as far legally binding statements are concerned. Although the not-legally-binding speech said that IBM would reserve the right to defend itself, the legally-binding pledge says "IBM hereby commits not to assert any of the 500 U.S. patents listed above ... against the development, use or distribution of Open Source Software. ... [T]he commitment not to assert any of these 500 U.S. patents ... is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software." IBM seems to be complaining about the TurboHercules' "use or distribution" of a project that qualifies for this pledge. The fact that the project is not Linux is irrelevant. The fact that the company is not the project sponsor is irrelevant. The fact that the license is not the GPL is irrelevant. The fact that TurboHercules goaded the EU into investigating IBM regarding antitrust statutes is irrelevant. Unless you can see some way TurboHercules potentially violates the patents in question outside of the use or distribution of the qualifying software, TurboHercules should be covered by the pledge. Until TurboHercules brings a patent "or other intellectual property rights" lawsuit against IBM. Or would you say that the fact that I don't contribute to the Linux kernel personally means that IBM can sue me with these patents for selling Linux CDs? I cannot see how the pledge can apply to anyone if it does not apply to TurboHercules. Of course, IBM can assert the other 100+ patents. But then that goes to the heart of the question of whether IBM is a trustworthy open source partner. You can only trust them to not squish your open source project as long as you don't make any waves that they don't like. You know what I think the real problem is here? OSI has a list of licenses that no one should have on any approved list, in my view, including some from Microsoft, and I don't think they plan to fix that any time soon. I have no idea how this is related in any way to the issue it hand. If I didn't know any better, I would call it a red herring. [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 06:01 PM EDT

Please be more careful to separate the company TurboHercules, from the open

source software project Hercules. While Rodger may have started the development

of Hercules quite a while back, he's not been a (major?) contributor for quite

some time. The people who _are_ the core developers are most definitely not

"anti-IBM" but they weren't looking to monetize their efforts. Rodger

is, which has brought things to the current state.



While you can argue that the Hercules developers have been knowingly violating

IBM's patents for a long time, both parties involved (excluding TurboHercules

which is fairly new to the scene) were generally of the mind to just live and

let live.



Finally, don't use the choice of license as any indication that the Hercules

project is some sort of ally with Microsoft. They're not. They just want to

hack on their code in peace. [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 06:12 PM EDT

I'm posting anon. for reasons that should be clear.



The hercules mainframe emulator has been very widely deployed in a development

and test role at many software houses with full knowledge of the management.

It is a very complete emulator, providing a full virtual mainframe on almost

any PC. It's usually, but not always, used in addition to a licensed box, and

in most cases is simply to provide more flexibility without having to pay for

a full mainframe for each developer. Most of these companies have used a

developer license on a mix of small IBM (e.g. P390) and Flex/ES systems, the

latter having been a reasonably priced option until that was discontinued.

Now the most realistic option for a small mainframe development company is to

buy time directly from IBM on a remote system, although I don't know how easy

it would be to test with other vendors software on those machines.



This development use is not really going to make any difference to the IBM

profit margins though, as their real money comes from the large organisations

that use high spec hardware for their corporate systems. The large

corporates do have hercules in use for training purposes, and in some cases

have tested their DR systems using an isolated hercules environment.



So IBM have left this as a grey area, until they have been challenged. This

leaves me with mixed feelings. I can see that there is a monopoly in this

specialist area, the IBM mainframes and operating systems, but there is also

no reason not to migrate to either another commercial OS, Linux or any other

system. Large corporates can afford to migrate, and small companies and

individuals don't normally have a reason to use a mainframe.



I don't really understand why IBM haven't given developers the option of using

hercules since their split with the flex/es people, but it may be a legal

issue. I know (from IBM people) that the hercules emulator has been ignored

by IBM for several years, and I assume they would have continued to ignore it

until forced to respond. The hercules (yahoo) groups make it clear where

hercules is considered legal, but it's obvious from the messages posted that

much of the usage is for recent versions of the operating systems.



So from my point of view, I would prefer that IBM would release their

operating systems to be freely available, but if they don't want to then I

will find something else, or I'll work with the developer access that they

offer. It is IBM's choice, their OS and if they want to ut off potential

customers, that's up to them.



As far as I can see, there would be no reason not to offer a complete set of

z/series API calls within another OS (similar to WINE), which could allow

mainframe programs to run without the IBM operating system, and that would

be a far more useful idea, so I suspect it's already been done.



I am anti software patents, and I like to use free (as in speech) software,

but here there are more issues than a simple free vs closed system (is Mr

Bowler planning to pass some of his profits to those who have tested,

documented, enhanced and fixed the code?). I can't condemn or support IBM in

this case.



And finally - IBM please provide the source code (GPL?), and at least a no

charge single user developer license, of Z/VM and Z/OS that can be used on

any platform.



Cheers

Anon. [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 06:12 PM EDT

. . . You know Microsoft is involved.

[ Reply to This | # ]



Authored by: sproggit on Thursday, April 08 2010 @ 06:15 PM EDT

It's that fishy smell again.



Here's a few random memes for those who haven't studied the history of

computing...



Back in the 1960s and 1970s, IBM were the undisputed leaders of mainframe

computing. To be truthful, some of their technology was poorly designed and

badly executed, but it undeniably crunched the numbers. However, because they

were the only game in the mainframe town, the US Government took interest from

an anti-trust perspective and as a result IBM were forcibly re-structured.



The internal APIs that underpin what was then OS/360 were published by IBM in

compliance with court orders. As a result, companies like Computer Associates

were able to provide software components - not merely companies producing

products like ADABAS/Natural, but actual Operating System sub-systems, such as

CA's ACF/2 plug-in security manager (that still competes today with IBM's RACF).

At the same time, [ as noted in linked sites ], competitors including Amdahl,

Hitachi and Fujitsu stepped into the mainframe hardware space. The mainframe

ecosystem entered a period of rapid change and fierce competition. But make no

mistake, IBM really didn't get their own way. For a while, systems like

Hitachi's 827 Skyline was the most powerful and fastest commercial mainframe in

the world. IBM actually *pulled out* of the top end of the market because they

couldn't compete.



But markets - and companies - changed. IBM went through a rough patch and then

struck gold when Lou Gerstner, Jr, took the helm. Meanwhile, just as IBM were

back on the ascendant, so Hitachi, Amdahl and Fujitsu scaled back their

mainframe programs. If you remember, Microsoft and Sun Microsystems and others

were chanting "the mainframe is dead". The competing companies got

cold feet, decided to vector away from the platform and eventually fell by the

wayside. IBM - because of their large and loyal customer base, stuck with it.

Fast forward to the 21st century and 2010 and the mainframe is fully resurgent.

So once again we have a situation in which someone who can 'force' their way

into the market may make a killing. So that's a little subjective background...





Now a few points to consider.



Firstly, with all due respect to those who posit this case is a mirror of

Apple's recent adventures, it isn't. Apple Inc provide personal microcomputers

and workstations for individual users - a market for which Microsoft has a

monopoly and which Linux has a growing share. By comparison, today in the

mainframe market, IBM is pretty much the only game in town. OK, I probably need

to concede that Bull HN Information Systems do offer the NovaScale family of

systems (powered by Itanium technology, no less) which run their GCOS-8

Operation System. (GCOS - General Comprehensive Operating System). GCOS-8 is

spiritually closer to zOS (OS/390) than anything else from Bull. But let's be

honest, Bull are a tiny player in comparison with IBM.



So the first important point to consider is that we can't make comparisons

between this IBM case and the Apple story from last year. The MO may be similar

(it is) but the context is wildly different.



The second important point to make is there in the history books. IBM has

previously licensed z/OS to several other mainframe providers (Amdahl, Fujitsu

and Hitachi). So at this point we don't know the specifics, but there will be

reasons that IBM are cautious about TurboHercules.



The third point of interest for me (and I'll concede up front that this may well

be purely coincidental) is that this company are based in France and are

leveraging the EU Commission to direct fire at IBM. Hmm... What other large and

well-known computer company ran foul of the EU Commission in recently history?

Learning experience maybe?



The fourth point of interest for me is that TurboHercules are a privately held

company. Now, in and of itself there is nothing unusual about that. But as we've

seen in the SCO saga, 'piercing the corporate veil' gets 10 times harder when

the veil belongs to a private company. No Executive Directors, no shareholders,

no SEC filings, no way of knowing what's going on, where the funding comes from,

or the like. Let's be careful here though. The absence of transparency does not

automatically imply any form of wrong-doing.



The fifth point of interest is well articulated by Eric Raymond. He points out

that IBM are asserting patent infringement on two of the 500 patents that made

up their Linux-friendly pledge, and he points out that maybe it would have been

sensible for IBM to think through their strategy a bit before going public with

their actions. I'm inclined to agree there.





So... lots of "curiouser and curiouser" going on here. Any tech-savvy

industry player is going to be familiar with the Apple vs Psystar case and this

IBM/TurboHercules story is pretty much a dead ringer.



The question is - did the TH case come about because the TH guys watched Psystar

and thought to themselves, "Hey, that might work for us - let's do a

mainframe clone!", or did it come about because someone else thought,

"Golly, we nearly had success in 'sending a jab' Apple's way. Now maybe we

should try and 'send a jab' to IBM instead?"



I hope IBM reconsider their tactics with respect to TurboHercules. I also think

that TurboHercules, if they are a genuine company and not out to be "Agents

Provocateurs" need to stop with the rhetoric and sit down with IBM to work

this one out.



"Divide and conquer" is as valid in the IT industry as it was for

Ghenkis Khan, and when it boils down to it, both IBM and TH want us to believe

that they are FOSS-friendly.



Well guys, if that's true, learn to play nice, huh? [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 06:18 PM EDT

You've already tried, convicted and sentenced TurboHerculese.



For someone who's NOT a team of IBM lawyers, you sometimes go to great lengths

to hide that fact. [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 06:21 PM EDT

The patents in question don't matter.



Remember how IBM had so much stuff on SCO they dropped the patents because it

was a distraction?



That will happen here, in the small, if it becomes too much of a distraction.

"Oops, you're right, technically we agreed not use these 4 patents against

you. But let's talk about these OTHER 300 patents here..."



[ Reply to This | # ]



Authored by: WatchfulEye on Thursday, April 08 2010 @ 06:30 PM EDT

I'm not really interested in this case (yet) so I haven't done any research

other than read news highlights and this article.



Here's my question, why can't people buy software that runs on IBM's mainframe

OS and then run it on Hercules? Is it the fact that IBM won't sell it unless

you own an IBM mainframe? Is IBM the only company making software for the IBM

mainframe?



From the previous articles, it was made clear that Apple's EULA is prevents

people from running Apple OS on non-Apple hardware legally.



What about WINE? Are there restrictions in the EULAs that comes with most/some

Windows software that prevents them from running on non-Windows environments?



If there was a WINE like interface to allow Apple software (not the OS) to run

on Linux would that be allowed? I would think so unless prevented by an EULA.



From my little bit of understanding, I think the IBM issue is a bit different

from Apple's issue since Hercules is replacing the OS not just a way to install

the IBM OS onto a generic computer. It seems like it is more like WINE running

Windows applications under Linux. Perhaps the EULAs on mainframes are better

written.



Jamie [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 06:47 PM EDT

If TurboHercules wants to sue someone so bad it might be best for them to not

use the GPL (sorta like PJ made reference to) as that would bar them from

distributing GPL libraries.



Yes the OSI REALLY needs to cull the list of approved licenses.



As usual PJ has shed some light on the issue as before I read this I thought

their partnering with Microsoft was just their being platform and OS agnostic.

If it were not for the choice of license and their suing first I might still

think that. This issue does not go as far as Pystar if you ask me anymore than

Linux infringes Apple. [ Reply to This | # ]



Authored by: grouch on Thursday, April 08 2010 @ 07:09 PM EDT

In October last year, the US Department of Justice began an investigation of IBM's mainframe market tactics, after the company was accused of using its dominant market position to unfairly squeeze out any upstart competition. The investigation was initiated at the prompting of Washington DC-based lobby group, the Computer & Communication Industry Association. -- IBM faces mainframe biz European antitrust probe - Kelly Fiveash, The Register, 2010-03-23 How much did Microsoft pay CCIA this time? I don't assume IBM is spotless, but the involvement of CCIA makes me very suspicious of exactly who is on the attack, here. Lately it seems like any business in Microsoft's way is coming up for antitrust complaints. I couldn't help but reflect -- and I confess it was my first reaction -- that it's so odd that all Microsoft's competitors end up dealing with unexpected allegations, sometimes from small companies, against them in court or before regulatory bodies that just happen to threaten their viability in the marketplace. -- PJ, 2008-08-27 ---

-- grouch



GNU/Linux obeys you.

[ Reply to This | # ]



continuation? - Authored by: Anonymous on Friday, April 09 2010 @ 02:26 PM EDT

Authored by: Anonymous on Thursday, April 08 2010 @ 07:12 PM EDT

How can I tell it is hypocrisy? Substitute M$ for IBM in that story, and

suddenly turbohercules would be the poor downtrodden victims.



I mean, you are actually talking about a patent defense as if it were right and

just - Since when do software patents get such good press around here? [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 08:05 PM EDT

I found the post by the mainframe developer very interesting, but not

surprising.



While running z/OS using an emulator on x86 hardware may work very well for

development, I'd be pretty skeptical of the ability to match mainframe hardware

under really heavy loads. If it would, then IBM wouldn't enjoy the mainframe

Linux market they have.



If IBM's licensed code is running on mainframe hardware whether from IBM or

another manufacturer, a bug is clearly a problem in the mainframe software

stack. Running on an emulator? Who knows? It can be very expensive to figure

out. Especially if the problem only happens once in a while under heavy load

and your contract has non-performance penalties.



rhb



[ Reply to This | # ]



IBM's just being practical - Authored by: Anonymous on Thursday, April 08 2010 @ 09:10 PM EDT

Authored by: Anonymous on Thursday, April 08 2010 @ 08:12 PM EDT

The complaint against IBM was filed with the EU Commission by TurboHercules. At that exact moment, did they not take themselves out from under the patent pledge's safety umbrella? No, they did not. According to the pledge: "...except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software". TurboHercules is not asserting patent rights or other intellectual property rights against Open Source Software. They've not filed a lawsuit, either. . [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 08:24 PM EDT

The Register had a story on this back in the fall of 2009 when TurboHercules started on this business strategy. Mainframe emulator goes commercial - Hercules, son of z/OS . The Register commented then that the situation looked likely to end up in court. They also mentioned the ties to Microsoft. 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). The article makes it clear that TurboHercules is pursuing the "disaster recovery" angle because they think that it's a loophole in IBM's software license. The problem that IBM would have with allowing this is that a lot of customers would be tempted to not bother replacing their broken mainframes and just continue to run their legacy applications indefinitely on the Hercules emulator. That would undercut a big part of IBM's business. There is very little doubt in anyone's mind that at least some of the Hercules emulators out there are running real and modern mainframe stacks, and they can do so because even with the heavy midrange penalty, an x64 server can deliver the performance of a midrange mainframe. We're talking something on the order of dozens to hundreds of MIPS, and to IBM, that's something on the order of hundreds of thousands to millions of dollars over a many-year span for hardware, software, and services. It is also clear that TurboHercules customer's are looking to their services in order to avoid buying IBM mainframes. The first customer to put TurboHercules through the paces is an unnamed state government that had a $200,000 budget to implement disaster recovery for an aging System/390 mainframe. The state cannot afford to upgrade to a modern z10 box, much less get two of them for disaster recovery. It just wants to keep the System/390 running, which is long since paid for, pay its monthly software licensing and maintenance fees to Big Blue, and have an emergency box on which to load up its applications in the event that the System/390 fails. There seems to be lots of parallels with the Pystar case. [ Reply to This | # ]



Authored by: peope on Thursday, April 08 2010 @ 08:38 PM EDT

Authored by: Anonymous on Thursday, April 08 2010 @ 09:08 PM EDT

According to something about this on Slashdot a few days ago...



IBM's suit against TurboHercules listed something like 143 patents, only 2 of

which are even covered by the patent pledge.



This is a total non-story, other than the

"trouble-possibly-stirred-up-by-Microsoft?" angle. [ Reply to This | # ]



Authored by: kehall on Thursday, April 08 2010 @ 09:30 PM EDT

As someone who works with mainframes for a living, I've been following and using Hercules for quite a few years. I started back when it was Roger Bowler's hobby. Over the years, it picked up a very talented and enthusiastic group of developers who have turned it into an amazing piece of work. Back when IBM was still sponsoring commercial emulation efforts as a cheap alternative to expensive mainframes, Hercules rapidly outpaced those products, if not in speed (it's portable), but in capability. When IBM eventually abandoned the emulation market, Hercules was the only thing left. Hercules embodies the spirit of Open Source. Very little of the development is done by Roger, or his successor, Jay Maynard. There are at least a dozen other contributors who have added major parts of the code. I, myself, contributed a couple of minor fixes. The article above contains some MAJOR inaccuracies about Hercules and it's origins and developers. 1) Hercules-the-project is NOT, to my knowledge, funded by Microsoft or anyone else. Jay runs the project web site from his home over his personal DSL line. I can't speak for the "Turbo Hercules" company, but I doubt that is either. I believe that this is simply an attempt by Roger and Jay to try to kill two birds with one stone: Make a few bucks off something they've both put a lot of their lives into, and also force IBM to provide a licensing option for their mainframe operating systems that would also benefit the "hobbyist" users. Up to now, we have been limited to running Linux or ancient versions of IBM's mainframe OS's. 2) Hercules was developed originally under Linux. The Windows version was developed as a side project by a couple of participants who simply wanted to run it under that OS. If I remember correctly, at least one of them was unemployed at the time. Nothing sinister there, just the community working the way it should. 3) Hercules kill off the mainframe? Hardly! I'm surprised IBM even had the nerve to try that argument! The problem the mainframe has under IBM's current philosophy is that nobody except large companies can afford to develop for it. With licensing on Hercules, IBM could benefit by an increased interest in the architecture. Unfortunately, they don't see it that way. IBM believes they can address this by selling time on virtual systems. It isn't working though. Psychologically, it isn't a satisfactory solution for the small developers, so they go elsewhere, to other platforms where the barriers to entry are lower, and they can do their development work on laptops and whatnot. Would it make sense for Microsoft to support a product that would enhance IBM's platform offering? Especially one that runs VERY well on Linux? 4) Roger and Jay are not opposed to Open Source, but they both have issues with the GPL. Personally, I don't share their opinions, but there's no arguing with them, their minds are made up. The problem seems to revolve around the idea that if you use one piece of GPL'd code in your product, somehow, magically, the whole thing becomes GPL'd. This is patently absurd, but they brook no argument about it. They picked the license they did because they believe strongly that the GPL is "Viral" and they do not want to risk losing control of their baby. Since it IS their product, they are welcome to use any license they wish. That point has been made on Groklaw dozens of times, and should be respected. When I first read of "Turbo Hercules", I was skeptical. I thought Roger and Jay were taking a terrible chance, and it seems my fears were borne out. Despite the predictions of a few self-proclaimed pundits on the project mailing lists, IBM doesn't seem to be interested in killing off the project totally, but they do not want to sanction it as a platform for their mainframe offerings. Not only would that take profits from their hardware business (think Apple), but it would also open them up to a whole world of support problems as people demand they address problems that are actually the fault of the emulator. Customers pay big bucks for z/OS and z/VM, and they expect a certain level of service. IBM can provide that if they control the whole package, but they learned in the past that when third parties are involved, things get much more complicated. That's my $.02, I will most likely not respond to trolls or questions regarding Roger and Jay's philosophies and beliefs. I just wanted to set the records a bit straight about where all this came from, and what it's really all about. [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 09:45 PM EDT

The Timeline (as reported in the press): IBM licenses its mainframe operating system z/OS with an EULA. I haven't seen that EULA, but it almost certainly prevents the customer from running z/OS on hardware other than IBM mainframes. In 2005 IBM pledged not to assert its intellectual property portfolio against FOSS, except in self-defense. TurboHercules (TH) developed an emulator that allows IBM's z/OS to run on plain vanilla x86 hardware. In other words, actually using the TH product would probably violate the IBM EULA. TH acknowledged as much in that they asked IBM for permission changes (i.e. to the EULA), and were rebuffed. TH went ahead and made their emulator available anyway. IBM then warned TH's product violates IBM's intellectual property (a different issue from the EULA), but apparently didn't file suit or a formal complaint against TH. TH filed a complaint against IBM with the EU's Director General for Competition on March 23, 2010. IBM invoked the self-defence clause, opening the way to a suit against TH. The Issues: IBM's z/OS EULA: Does it or does it not permit z/OS to run on the machines TH's emulator is targetting? If not, then the issues in the case do have similarities to Apple vs Psystar. Is IBM's invoking the self-defense clause of its pledge a legitimate use of that clause? IBM's patent portfolio: Does TH's product itself violate IBM's IP? [ Reply to This | # ]



Authored by: kenryan on Thursday, April 08 2010 @ 10:47 PM EDT

IMVHO, IBM could and should sidestep the FLOSS issue by simply saying "OK

you're right, you're infringing on these two but the pledge applies so we won't

sue over them. Now we have a busload of attorneys who would like to talk with

you about the 100 other patents you're infringing that are *not* covered".



I think the majority of the community understands when mistakes are made so long

as they get corrected quickly. Even if a case could be made that the pledge

does not apply (and I'm not convinced one way or the other), setting those two

aside for the sake of PR might not be a bad idea.



Kind of like nuclear arms treaties. Sure, we'll give up 100 warheads each.

We'll just have to make do with the other 8,000. No practical difference but

they get to pat each other on the back for a while.



---

ken

(speaking only for myself, IANAL) [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 11:09 PM EDT

When I first read of this fiasco on /. , I lept to the conclusion that you had

gone back on promises. Then I read the summary at lwn, and now this... I'm sorry

I did not give IBM the benefit of the doubt, and did not do any research... IBM

deserved better. [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 11:40 PM EDT

1. If software patents are evil, how do we abide IBM using them?



2. I don't recall that the US anti trust law suit that the US dropped forced IBM

to reorganize. Although certainly IBM was positioning itself for the prospect of

being broken apart.



3. I worked for IBM during those anti trust days. IBM acknowledged being a

monopoly, which is not illegal. It did impose restrictions on their/our

behavior. One of which was bundling. There is room for argument that there is a

monopoly bundling issue here. Getting the EU involved may have been

appropriate.



4. Emulating hardware to run z/OS sounds risky to me. IBM puts in a lot of

hardware in their machines to catch hardware failures, that omitted, could lead

to undetectable erroneous emulation.



5. I can't say I understood the Psystar issues I'm still stuck on the Wine and

Microsoft analogies. Which really don't apply.



6. If I can buy OSX at the store in the retail consumer market, I can see a

legal argument for using it on my favorite non-Apple box. The EULA may just be

overreaching consumer protection laws.



7. What will things look like in a few months when Apple's market capitalization

surpasses MicroSoft's? [ Reply to This | # ]



Authored by: Anonymous on Thursday, April 08 2010 @ 11:48 PM EDT

Something else to consider here - if IBM does nothing - they are silently

approving this - having to support issues that may come up on non-certified

hardware (since this is an emulator). For testing - non critical, or even

educational purposes - Maybe - and that is a real stretch.. but if I was IBM - I

wouldn't want this out there either simply from the support end of it. [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 01:21 AM EDT

Several posters have written regarding IBM's EULA covering z/OS and z/VM. There

appears to be an implicit assumption is that IBM mainframe software is

"purchased" in a manner similar to a retail purchase of Windows 7 or

OSX, and therefore has a EULA. Unless something has changed in the last 15

years (which I find unlikely), IBM does not "sell" their software.



IBM's mainframe software is licensed, not sold. You don't go to Staples,

OfficeMax, or Best Buy and purchase a copy. You sign a contract with IBM. The

contract allow you to run the licensed software on one or more specific systems

(usually by serial number). If you want to move that license to a different

system, you have to notify IBM. If the new system is in a different hardware

class, you may have to pay for the privilege. If it's an limited term license,

you have to pay to renew it. If you want support, fixes, updates, or new

versions, you typically have to purchase a maintenance or support contract. The

license may, or may not, require that you have a support contract in place to

run the software. There is no need for a EULA like we have with most

"purchased" software.



There may be some parallels with the Psystar situation, but maybe not as many as

some might suppose. For example, there can be no "right of first

sale" argument because no one ever purchases a "copy" of z/OS or

z/VM, only a license.

[ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 01:26 AM EDT

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). Can anyone tell me when he live in Seattle? On his personal home page he shows off the cars he has owned and used from 1972 thru at least 2003. So if he lived in Seattle, it was after 2003 because from 1972 to 2003 he appears not to have lived outside of the UK. His personal home page has been at its current location in France since at least January 2, 2008 according to the Internet Archive. That leaves just those years between 2004 and 2007 that are unaccounted for. But then this post seems to confirm France in 2007, as well as 2006, and 2005. So now that just leaves 2004 that is in question. Well here is a reference date stamped in 2004 that would lead me to also believe that he was living in France. So unless anyone can find some more concrete evidence that this particular Roger Bowler ever lived in Seattle, please by all means post it here with more proof than a Register article that may have their facts a bit confused. -the former DodgeRules- [ Reply to This | # ]



Correction - Authored by: Anonymous on Friday, April 09 2010 @ 12:12 PM EDT

- Authored by: Anonymous on Friday, April 09 2010 @ 12:12 PM EDT My mistake! - Authored by: Anonymous on Friday, April 09 2010 @ 01:46 PM EDT

Authored by: hardmath on Friday, April 09 2010 @ 02:46 AM EDT

IBM's pledge not to "assert" some 500 software patents it holds against "Open Source Software" is linked above but not directly quoted. For convenience let's cite two passages. First is one concerning the legal enforceability of IBM's pledge: It is our intent that this pledge be legally binding and enforceable by any open source software developer, distributor, or user who uses one or more of the 500 listed U.S. patents and/or the counterparts of these patents issued in other countries. Next is the meat of the pledge, including the only reservation IBM gives about revoking or terminating the pledged rights: 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. In order to foster innovation and avoid the possibility that a party will take advantage of this pledge and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs, the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software. My argument for the wrongness of IBM's assertion of software patents against TurboHercules is simple and no doubt familiar to any regular Groklaw reader from the past year. Software patents are illegitimate monopolies. That direct thesis is support by two additional concerns. IBM continues to hold a monopoly share (90%) of the mainframe hardware market, and the assertion of its patents against TurboHercules is manifestly IBM's tactic to maintain that monopoly. Furthermore IBM is violating its OSS pledge with respect to two patents, U.S. 5613086 and U.S. 5220669. The inclusion of these in both the pledge and IBM's letter to TurboHercules is not disputed. IBM has issued statements recognizing the overlap and trying to simultaneously stand behind both the pledge and the letter. One approach rationalizes that the letter is merely providing the patent references at TurboHercules's request. In the other approach IBM suggests that TurboHercules and their emulator may not be covered by the pledge: In 2005, when IBM announced open access to 500 patents that we own, we said the pledge is applicable to qualified open-source individuals or companies. We have serious questions about whether TurboHercules qualifies. TurboHercules is a member of organizations founded and funded by IBM competitors such as Microsoft to attack the mainframe. We have doubts about TurboHercules' motivations. PJ takes this argument a bit further, and frankly I'm more concerned with her opinions than with IBM's PR efforts. So let me address some of PJ's points in roughly descending order of how I perceive their strength. 0. IBM is free to sue ... Of course. In America, if you have the money, you can sue anybody for anything. IBM has the funds, so technically I agree with PJ about this. However it seems to me unlikely that software patents will be a critical element of any lawsuit IBM files against TurboHercules, and certainly not the two patents for which IBM gave s "legally enforceable" pledge not to assert against open source software developers. Even discounting the rough third of the potentially infringed "patents" IBM listed in their letter that have not yet issued, if IBM wants to go the patent route, they have several dozen software patents to choose from without blatantly reneging on their 2005 OSS pledge. 1. TurboHercules isn't covered by the pledge This would be a really strong point, but IBM's musings about TurboHercules's motivations and being "a member of organizations founded and funded by IBM competitors such as Microsoft to attack the mainframe" don't find much traction in their actual wording of the OSS pledge. PJ tackles the coverage more directly, questioning whether the QPL really counts: "OSI has a list of licenses that no one should have on any approved list, in my view..." Yet the QPL has been around in the formed approved by OSI since 1999, so it's not "some devilishly clever way to take advantage of that list" as PJ puts it. What specifically is wrong with the QPL? PJ quotes the FSF, maintainers of the GPL, to the effect that what's wrong with the QPL is not being compatible with the GPL. With all due respect to the GPL and credit to the FSF for maintaining it, this really doesn't disqualify QPL or dozens of alternatives from the open source definition. 2. TurboHercules forfeited coverage by attacking IBM Although not a point IBM has articulated, at least so far, this is the one PJ leads with. Who, she asks, is suing whom? "It's not IBM, folks. The complaint against IBM was filed with the EU Commission by TurboHercules. At that exact moment, did they not take themselves out from under the patent pledge's safety umbrella?" Not that I see. The OSS pledge says it "is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software." TurboHercules formally accused IBM of abusing their monopoly power in the mainframe hardware market, but that EU process is not a lawsuit, and it has not asserted IP rights "against Open Source Software." Technically neither party has filed a lawsuit asserting patent rights, but since IBM's pledge was not "to assert" the 500 patents against an OSS developer, subject to the one revocation condition, they stand to "win the battle but lose the war" if they continue. 3. It's like Apple vs. Psystar Analogies can be very poor arguments. Any real strength depends on a close analysis of functional similarity. Apple vs. Psystar was not based on software patents. TurboHercules is not selling hardware nor reselling IBM's operating system. If IBM wants to make their case similar to Apple's, they would do well to start with the title of Apple's initial complaint against Psystar: Complaint for Copyright Infringement, Induced Copyright Infringement, Breach of Contract, Trademark Infringement, Trade Dress Infringement and Unfair Competition. See anything there about patents? The Courts, which didn't buy Psystar's arguments that Apple has a monopoly -- on Apple computers, will not have to set any precedents to find IBM has a monopolistic marketshare in the mainframe hardware market. regards, hm ---

"It is difficult to get a man to understand something, when his salary depends upon his not understanding it!" -- Upton Sinclair [ Reply to This | # ]



Authored by: barbacana on Friday, April 09 2010 @ 03:29 AM EDT

Back in the 1960s, IBM was by far the dominant computer company. It had competitors (notably Burroughs, Univac, NCR, CDC, and Honeywell - collectively known as the BUNCH from their initials), but it looked as though they would all go out of business eventually, one by one. IBM had a monopoly. It used illegal means to try extend its monopoly on computers to the peripherals (tape drives, disks, printers) attached to them. There was a big antitrust lawsuit and IBM was forced to allow non-IBM peripherals to connect to IBM mainframes. A few companies also entered the business of making "clones" of IBM mainframes to run IBM operating systems. Basically, the result of the antitrust settlement was that IBM had to "unbundle" its offerings. It was not allowed to insist that you could connect only IBM peripherals to an IBM mainframe, or only run IBM operating systems on an IBM mainframe. This opened up the market for makers of "IBM-compatible" mainframes, for example Amdahl and Fujitsu (there were others). These companies made computers that were compatible with the IBM 370 hardware, and customers could license IBM software to run on them. IBM had to let them do that because it was part of the anti-trust settlement. IANAL, and also I have not studied the TurboHercules affair in detail, but I think that if that settlement had still been in force, it would have allowed TurboHercules to do what it is doing. IBM's smart lawyers got the terms of the settlement cancelled, in about 2000 IIRC. This left IBM free to pursue its anti-competitive practices which had been illegal. Groklaw attracted a lot of readers like me because in the SCO case, the distinction between Right and Wrong was very clear. SCO was morally and legally in the wrong. No unbiased person could have had any doubt that SCO's management were scoundrels. It didn't matter whether you were on the side of the morally right, or on the side of the law, or even whether you thought they were the same thing. SCO was wrong, SCO was abusing the legal system, SCO was bad, wherever you were coming from and however you sliced it. Groklaw's more recent crusades, first against Psystar and now against TurboHercules, leave me cold. PJ says the law is against both of them. She has a track record of successfully predicting several legal outcomes, and I believe her. However, I have a lot less respect for the law than PJ has. We need a legal system, but it is too often used by the wealthy and powerful to crush the little guy. And legal right does not always equate to moral right. I expect IBM will use the legal system to crush TurboHercules as effectively as Apple used the legal system to cruch Psystar. Neither Apple nor IBM needs our help. And frankly, I don't think either of them deserves it. I like openness. I like 'unbundling' as the IBM antitrust settlement of the 1960s implemented it. I think a company should be able to copyright its software, and maybe it should be able to patent its hardware; but it shouldn't be allowed to insist that its hardware may not be connected to somebody else's hardware, and it shouldn't be allowed to insist that its software may only be run on its hardware or that its hardware may only be used to run its software. The law in the United States nowadays is increasingly what big corporations want it to be. There's not much we can do about that, and there's not much we can do when another megacorporation crushes another little guy whose ideas threaten the megacorp's profits. But we don't have to cheer them on. [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 03:54 AM EDT

Perhaps this is about IBM sending a message to any future proxies out there.

"Get (sweet)talked into running interference for a certain segment of the

IT industry and you will go down. Your call."



[ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 04:12 AM EDT

It is possible that the two patents were included in the list erroneously and

that IBM will with draw those two. That still leaves 170+ patents not covered by

the pledge.



As for the argument that patents are bad and we shouldn't support companies that

use them, I think we live in the real world where patents exist and are used. If

the "good guys" can't use them then that ties one hand behind their

back. [ Reply to This | # ]



Authored by: jmaynard on Friday, April 09 2010 @ 05:59 AM EDT

I'm the project manager for Hercules, the open source emulator. There's a lot here that needs correcting. As a general note, any patent complaint against TurboHercules SAS must necessarily be a complaint against the open source Hercules emulator. TurboHercules SAS sells services and support for the open source emulator, and does not have code of its own. They use the open source emulator unaltered. Thus, IBM's patent threats against TurboHercules SAS are threats against open source. Do we really want to encourage that from anyone? The patent pledge's safety umbrella only allows IBM to back out in the case of someone that sues open source software, not IBM itself, and only on patent or intellectual property grounds. TurboHercules SAS's complaint alleges illegal tying of IBM's mainframe software and hardware. This is not an intellectual property complaint, but an antitrust complaint. Thus, I believe that IBM's threat against Hercules is a violation of its patent pledge. The pledge clearly applies to Hercules. Hercules adopted the QPL license for the code with release 1.70, on 3 December 2000, as shown in the What's New page. The change was originally made in order to qualify for the Cygwin exception to the GPL; at the time, Hercules needed Cygwin to run on Windows. Whether or not PJ or the FSF agree with the Open Source Initiative that the QPL meets the Open Source Definition, and therefore qualifies as an Open Source license, is immaterial; that decision is the OSI board's to make, and it did so, including the QPL in the original list of Open Source licenses. That it's not GPL-compatible is not part of the Open Source Definition, nor should it be; no matter what Richard Stallman would have us believe, the GPL is not the be-all and end-all of Open Source licensing. Not only that, but the FSF even says that the QPL is a free software license. Why isn't that enough? PJ asks, And if you are spooked by the GPL, for the very reason Microsoft says it is, in what sense are you a Linux person or a FOSS person? The GPL is the dominant license of the FOSS community. It's the license on Linux. I've opposed the GPL for more than two decades. My fundamental objection to it is that it is an attempt by one programmer to tell another what he may do with his own work. I use GPLd software every day, but I will not work on it for this reason. That doesn't make me any less of a Linux or Open Source person; if it did, the Open Source Initiative would have only approved the GPL, instead of the range of licenses it has. I'm not a Free Software person for similar reasons; I view the FSF as committing the classic "making love for virginity" error in its destruction of freedom in the name of supporting it. IBM's statement questioning TurboHercules SAS's motives is nothing more than an attempt to back out of its patent pledge in cases where it doesn't like someone. The plain language of the pledge leaves IBM no wiggle room, and yet IBM is trying to wiggle out of it anyway. Roger Bowler moved to Paris in the year 2000 as well, long before any of us thought about trying to commercialize Hercules as TurboHercules SAS is doing. He moved there because that's where his job was. There were no nefarious reasons for his doing so. The conspiracy theories swirling here are laughable. If Microsoft were funding this effort, I wouldn't be running the Hercules website out of my basement on an Alphaserver 4000 (which is running Gentoo Linux, BTW; I've been a happy Linux user and supporter ever since version 0.11) and driving a crappy old 1989 Ford Bronco II I bought for $125. I'm flat broke, and none of Microsoft's billions of dollars are flowing to me. Similarly, I refuse to hold myself responsible for what Maureen O'Gara, Florian Mueller, or others that the folks here believe are evil incarnate think. Larry Niven said that "Ideas are not responsible for those who hold them; there is no idea so good you won't find a fool, or a poltroon, who agrees with it." Arguing that Hercules deserves to be hit with the patent hammer because of those who support it are nothing more than the classic fallacy of ad hominem, and I'd expect better from the folks on this site. The difference between this case and the Psystar case is that, unlike Apple, IBM holds an absolute, 100% monopoly in a marketplace: that of legacy mainframe computing. They have determinedly driven other suppliers out of the market. Unlike Apple, an IBM mainframe customer cannot easily migrate away from the mainframe. There literature is full of stories, and the landscape littered with corpses, of companies trying and failing to do so. A legacy mainframe shop must either deal with IBM, or else spend immense sums and large amounts of time trying to completely reinvent its computing infrastructure. That's the classic definition of a monopoly. IBM gets the benefit of the doubt from the Open Source world because of its history of supporting Open Source projects and funding the FSF (to the tune of about 4 million bucks a year). I've got no problem with that, and think they do deserve quite a lot of appreciation for it. However, the old saying goes, "One awcrap wipes out a thousand attaboys." A true friend of the open source community wouldn't be waving the patent hammer at a member of it. The facts as they stand now show that IBM is a friend of open source only so long as it doesn't have to compete with it. [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 10:20 AM EDT

now am i to understand it then shoudl IBM violate the gpl in any fashiona nd get

sued they would sue YOU back and use patents they hold pledged not to sue linux

with?



thats the very trojan horse that gplv3 is suppoosed to protect you form and IBM

could be looking if that were the case at some real bad times



if all i did was make the software and you hold patents what if you lose gpl

ability and get sued by well everyone n the community



YEA think about that scene

correct me if i am wrong here. [ Reply to This | # ]



Authored by: ciaran on Friday, April 09 2010 @ 10:31 AM EDT

I'm documenting it here: IBM and TurboHercules, 2010 en.swpat.org is a publicly editable wiki, edits about the relationship of this case to software patents are welcome. [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 12:07 PM EDT

When I first read Florians posts I thought IBM was threatening to sue

TurboHercules. Thanks for posting IBM's entire letter PJ. Its now quite clear

that Florian was completely over the top.

Given the reaction of TurboHercules to this quite innocous letter from IBM it

would not suprise me to find MSFT lurking in the shadows!



emk [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 12:40 PM EDT

The choice of the QPL can be understood if you look at what the original "Hercules Public License" wanted. HPL (original license) 18. You may submit modifications to the maintainer for inclusion in the software. By submitting a modification you grant both the developer and the maintainer a perpetual royalty-free right to include the modification in future versions of the software and the right to distribute such modified versions to anyone under the terms of this agreement and any under other agreement at the discretion of the developer without payment of any fee to you. ... QPL (current license) 3b. When modifications to the Software are released under this license, a non-exclusive royalty-free right is granted to the initial developer of the Software to distribute your modification in future versions of the Software provided such versions remain available under these terms in addition to any other license(s) of the initial developer. The original license allowed the originators (and no one else) of Hercules to dual license the software, including contributions by others. The QPL appears to allow the same (at least that is how it appears to me). This differs from the GPL in that it puts the project initiators in a more privileged position than any later contributors. That is, the originators can accept outside contributions while still dual licensing the code, but no one else can. Since the original authors included this clause in their original custom license, it seems to be an important point for them. It is quite possible that someone had the idea fairly early in the project that it could be commercialised using the dual licensing model. [ Reply to This | # ]



Authored by: MrCharon on Friday, April 09 2010 @ 02:25 PM EDT

Could TurboHercules or The Hercules project just develop their own clone of z/OS

for IBM hardware, which also runs under their IBM hardware emulator?



---

MrCharon

~~~~

[ Reply to This | # ]



Authored by: DannyB on Friday, April 09 2010 @ 02:54 PM EDT

That can be read two ways:



0. Microsoft itself is behind it.



1. Untruths told by Microsoft are behind it.





---

The price of freedom is eternal litigation. [ Reply to This | # ]



Authored by: PTrenholme on Friday, April 09 2010 @ 03:37 PM EDT

In one of your posts, above, you stated: I've opposed the GPL for more than two decades. My fundamental objection to it is that it is an attempt by one programmer to tell another what he may do with his own work. I use GPLd software every day, but I will not work on it for this reason. I don't understand your "fundamental objection" since the GPL is a license that lets you use some other programmer's work provided only that you grant the same license to any work you produce that includes the other programmer's work. As far as I can see, that is telling you that, "If you want to distribute my work with your own work, you have to grant the same rights I've granted to you to those other programmers." How do you arrive at your "fundamental objection" which, as you stated it, is that the GPL restricts what you can do with your own code, when (in my opinion, at least) all the GPL does is constrain you if you distribute some other programmer's code with your own code. ---

IANAL, just a retired statistician [ Reply to This | # ]



Authored by: esr on Friday, April 09 2010 @ 03:38 PM EDT

There's been a lot of speculation here that the antitrust action by

TurboHercules is somehow a stealth Microsoft ploy aimed at injuring IBM, and we

therefore should take IBM's side in this.



I say Microsoft's participation, if any, is irrelevant. In fact, if Microsoft

is funding the punishment of a patent aggressor, I'm actually prepared to cheer

them on. This once.



The antitrust angle is a distraction. Microsoft is a distraction. Keep your eye

on the ball here: IBM is using patent warfare against an open-source project,

and for this they must be made to feel pain. Enough pain to frighten future

aggressors out of trying it.



[ Reply to This | # ]



Authored by: YurtGuppy on Friday, April 09 2010 @ 04:14 PM EDT

Of course it is legal for IBM to point to it's patents.



I don't think it is the smartest thing they have done this

week marketing-wise.



It would be smarter to sell mini-licenses to run their OS and apps on the

emulator, then show how Big Iron does a much better job in production

situations.



They might actually get some new customers to their Big Iron that way.



But I don't wear a blue suit so they are unlikely to ask for my advice.





---



just swimming round and round [ Reply to This | # ]



Authored by: bugstomper on Friday, April 09 2010 @ 05:26 PM EDT

I just realized from the wording in IBM's letter your product emulates significant portions of IBM's proprietary instruction set architecture and IBM has many patents that would, therefore, be infringed. For illustration, I enclose with this letter a non-exhaustive list of IBM U.S. patents that protect innovative elements of IBM's mainframe architecture and that IBM believes will be infringed by an emulator covering those elements It isn't necessarily the case that all the patents that IBM is referring to are what one would call software patents. It sounds like it could include patents on elements of a machine architecture. It does bring up the interesting question as to what it means for pure software to infringe on a hardware patent, but I see that as a much more tractable issue than the thorny one of patents on software. If someone gets a patent on a process for producing some new chemical and someone writes a control program for a flexible chemical processing machine that allows it to use that process to make that chemical, does the program infringe? Or does selling it induce the buyer to infringe? I don't have any legal knowledge and don't even know if those questions make sense given patent law, but I do wonder if the laws would apply that way to such software. So, aside from the question as to whether IBM is actually threatening to use patents against a FOSS project (with all due deference to Jay Maynard's feeling threatened by the letter, I just don't read the citing of patents as anything more than supporting reasons for IBM's refusal to change their license), for those who do read the letter as a threat, does it make a difference that the patents involved may not even all be software patents? [ Reply to This | # ]



Authored by: jacks4u on Friday, April 09 2010 @ 06:02 PM EDT

"Does IBM's correspondence constitute a position contrary to it's pledge

not to prosecute infringement, by FOSS developers, of any of it's 500

patents." IMO is the wrong question.



Let me see how this question works... "Is this publicity campaign designed

to fracture the open source community into oppositely polarized camps: On the

one hand, those that support IBM, and their efforts to 'defend themselves' and

their technology. On the other, those that feel Big Blue should roll over and

let a relatively small 'upstart' (My own term...) profit immensely from it's

heavy investment, while at the same time taking business away, with even the

possibility of completely replacing the mainframe with a cloud architecture that

runs Linux and emulates big iron well enough that migration could be a matter of

throwing one switch, then the next?



To me it's just funny, that for almost 10 years, IIRC, this emulator's been in

the works, and only now, the whole shebang blows up, with one side defending

it's self, trying to smooth ruffled feathers in the Open Source community. And

the other side, making every effort to besmirch a company's name, and even

attacking it legally.



Wierd.



IMO, They spent their billions upon billions of dollars building hardware and

software and growing their business. Compete with them on the merits of 'Your

products v.s. theirs' rather than force the issue of competing in a 'Their

products v.s their products' world



Just my opinion.

Jacks4u





[ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 06:10 PM EDT

Certainly in legal terms it isn't. But you have to have a particularly naive Boy Scout view of IBM to take it as anything but. Roger Bowler is a very brave (or very foolhardy) man, and my guess is that his company and probably he personally will be squished like a bug by IBM unless he folds quickly and quietly. Read the doc in the current Neon suit (PDF), and look at what IBM did to Jim Stracka, the guy who had the nerve to develop software to make IBM customers purchased AS/400 machines run at their actual rated speed. They convinced the FBI to arrest him on a criminal charge of extortion, which was soon dropped, but must have had a sobering effect on him. (Neon isn't making this up, by the way, it's all over the net from way before the Neon case.) In the TurboHercules case, IBM doesn't really have the easy option of buying them out as they did with PSI and Stracka (no settlement details available, of course, we're all friends now, moving forward, etc.), and will probably do with Neon, because as Maynard says, TH doesn't have an independent software product, they are just offering support of the open source Hercules. You know, the Red Hat business model that we all admire. So my guess is that IBM will make an example of this little upstart just to make it clear to any others who haven't been paying attention what they face if they threaten IBM profits. All the while supporting and defending open source, of course. [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 06:15 PM EDT

Just hit me that this random list of patents, most of which have nothing to do

with Hercules, may have been Mr Anzani just handing his secretary Bowler's

letter and saying "send this jerk the patent letter." [ Reply to This | # ]



Authored by: jmaynard on Friday, April 09 2010 @ 07:01 PM EDT

TurboHercules SAS is a distributor of the open-source Hercules emulator. Hercules performs equally well under either Linux of Windows, in repeated testing. Personally, I would have used Linux as a base, but I'm not the one calling those shots or even influencing them. Just because the TurboHercules SAS turnkey system isn't entirely open-source doesn't mean they're not an open source company. They're not simon-pure on open source doctrine, but the core of their product is the open source Hercules emulator. That's enough to qualify them as a distributor of open source software, and thus covered by the patent pledge. [ Reply to This | # ]



Authored by: bugstomper on Friday, April 09 2010 @ 07:11 PM EDT

After reading the quote in the article's Update 7. it becomes really clear that

IBM's response is something equivalent to this:



You express astonishment that we have IP rights when we have let Hercules alone

for 10 years. Here is a list of patents that we could use against anyone who

tries to copy our architecture. We haven't used them against Hercules for 10

years by our choice. We don't need to, we have our license. We want to keep

things just the way they have been and we aren't changing our license.



That is not a threat. That is telling them that the license and the patents are

enough to protect IBM's interests against potential competitors, and that IBM

intends to keep the status quo, which the past 10 years has shown to include not

suing over Hercules' infringement of any patents.



[ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 07:27 PM EDT

This is nonsense. IBM provided a list of 106 patents that it believes they

infringe. OK, congratulations TurboHurcules, you can knock 2 off the list due

to the patent pledge. You still infringe 104 other IBM patents.



TurboHurcules are just doing PR, to try to get people on their side.



As for "oh IBM is threatening us with patents"... well duh. If you

get into a legal argument with IBM, they will pull out a pile of patents you

infringe. (E.g. they found 6 that SCO infringe). That's just how legal warfare

works. If you pull the tiger's tail without a plan to deal with his teeth,

that's your problem. And IBM have a lot of patents, so you probably infringe

something.



You can also see the big company approach to patents here - sure some may not be

very good quality, but IBM have over a hundred relevant patents and they only

need one to stick.

[ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 07:29 PM EDT

http://sheepshaver.cebix.net/

Sheepshaver is a PowerPC hardware emulator. It has gained recent

popularity because it allows emulation of the Classic MacOS on

modern intel chipped machines. To do so you need a copy of

the Classic MacOS, and a ROM image from a suitable older Macintosh.

You may legally "own" a copy of the older OS, but are you legally

entitled to run it on hardware which is plainly incapable?

Also possession of a ROM image almost certainly violates some license.

Apple is not chasing Sheepshaver users for the same reason it is

not chasing Hackintoshers. It's a hobby activity, if people want all

that trouble for an experience less than the real thing, that's their problem.

Sheepshaver might also be useful for running other ppc OS (think IBM)



IBM has not worried about the Hercules project in the past because:

it's open source, IBM supports open source (and hobbyists);

it's being used out back, in workshops and test areas;

nobody is making money off of it.

Until TurboHercules asked "Please Sir, can we help each other with

this?"

Maybe TH didn't phrase the question right, but IBM's response was

the reflex of big business to an unknown startup, similar in tone

to Apple's response to Psystar, "Go away jerk, our lawyers are bigger

than yours."

[ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 07:35 PM EDT

Here we have IBM saying that hardware patents may be applicable to software that

emulates the patents. Under current law, I can't say that they're wrong (but

IANAL).



Now suppose that the Supreme Court decides Bilski in a way that throws out

software patents. And suppose that there are hardware patents that could be

implemented in software. Does that mean that those patents are also invalid?

Or does it mean that they are only valid on hardware?



MSS2 [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 08:04 PM EDT

Okay, so he's one of the people on the BSD side of the BSD/GPL split. I'm in

favor of the GPL side, but I'm not going to hold that against someone.



Some of them also live close to Microsoft. As do a few million other people.

Digging still required.



Those patents? Well, first off, that letter is an attempt to memorialize that

TH acted with knowledge of the patents. That can triple the damages as you

should know, PJ. I would interpret it as a legal threat. Not of a lawsuit, but

enough that I would think they should be able to claim reasonable apprehension

of one and sue to prove that they don't infringe.



Also, these appear to be software patents. I don't like those, period. But

we'll see if there's more to the story. [ Reply to This | # ]



Better... - Authored by: PJ on Friday, April 09 2010 @ 08:48 PM EDT

Authored by: electron on Friday, April 09 2010 @ 08:05 PM EDT

> The software supplied is:

>

> 1. Base operating system  Windows Server 2008 R2 Enterprise Edition

>

> 2. TurboHercules application  a platform-optimized binary of the

Hercules emulator

>

> 3. Local 3270 emulator package (for use with IBM supplied operating

systems)

>

> 4. Terminal and X-Windows emulators (for use with z/Linux)



If we're talking about true Free software, why is the Turbo Hurcules company

supplying a system specifically optimized for the uncrippled version of

Microsoft's toy operating system software - MS WindowsNT 6.1 (aka MS Windows

"Server 2008 Enterprise Edition")?



If they want reliability then they'd be using Linux or Solaris or AIX.



But, even better, why would you want to emulate a mainframe merely so that you

could run GPL'd linux guests? Why not simply use the GPL'd Zen and host all the

linux guests using GPL'd software?



Personally, I'm inclined to the view that if there was such a disaster that

would pull down an entire mainframe to such an extent that true "disaster

recovery" would be required (rather than merely failover to a standby

system) then surely that disaster would be massive and the business would be

unlikely to benefit from the use of a small emulation of a massive mainframe.

So, I see many issues with Turbo-Hercules' "product".









---

Electron



"A life? Sounds great! Do you know where I could download one?" [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 08:40 PM EDT

Here's why IBM may view TurboHercules as not covered by its patent pledge. Hercules is an open source product, but TurboHercules is a business on top of that product, but not exclusively that product. ... So the base operating system is Windows. So, you tell me. Is TurboHercules an "Open Source company"? Excuse me, PJ, but I think you should think about this. I do not know what the patent pledge exactly covered, but if it wouldn't allow to build a business "on top of" a covered product, then what would it be worth? To Red Hat, and Novell, who obviously build a business "on top of" Linux, obviously nothing. There are more examples: MySQL exists as a commercial product with an open source core, same for Zimbra, and lots of other solutions. Why shouldn't these be protected by IBM's patent promises? Or to rephrase the question, what would the promises be worth to the companies actively developing these open source core products? And what's so ugly with developing an open source product running on Windows? I agree, that some reactions with regard to IBM's actions are perhaps exaggerated, but I also miss a clear statement by IBM, which states that the patent promises are applicable to OpenHercules (AFAIK, its license would qualify). Jochen [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 10:32 PM EDT

it strikes me as almost identical.

IBM may not hold all the copyrights or patents,

there may be deep legal reasons.



to me it seems akin to the OS/2 situation.

OS/2 hasn't been supported by IBM in far longer than this.



but IBM can't simply open it up, even if they wanted to.



you can't just "Steal" software because it hasn't been supported for

years. that's not an excuse to commit a crime.

IBM holds rights, and they have a legal obligation to protect them.



blaming IBM for it is just stupid [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 11:00 PM EDT

I fail to see the point of update 8, which points out that proprietary software

is required. Software can be FOSS and still rely on other software that is

not.



Karl O. Pinc <kop@meme.com>



P.S. Others above have already pointed out that there is nothing in IBM's pledge

which says that the pledge is revoked when IBM is attacked; also noting that the

whole subject has not even begun to play out so it's unfair, at the very least

premature, to claim that IBM has violated it's pledge. [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 11:27 PM EDT

I wonder how this is supposed to work. There's a little more to disaster

recovery than being able to run an operating system and applications. There's

the small matter of data, and that isn't going to be accessible to, or loadable

on, one of these HP-based systems in any useful timeframe.



I think suggesting use of Turbohercules for disaster recovery is something they

know perfectly well is impractical, which raises the question of why suggest it

at all? My guess is that it is to confuse the ill-informed.



Implicit in the use of a system for disaster recovery is the idea is that it

isn't actually depriving anyone of licensing fees - these are often waived or

minimal on standby systems, until they are actually put into service. So, anyone

reading that Turbohercules should be used for disaster recovery might well

think, well, what's all the fuss about, it isn't as if it is taking a

significant revenue stream from IBM? Of course, Microsoft will get the full

whack for their W2K8 Enterprise software, which doesn't come cheap - that

software isn't on standby, its sole purpose here is to run Turbohercules.



It deflects from the real issue: that this is an attempt to subvert a legitimate

license for z/OS, and the chief beneficiary of this isn't Turbohercules, it is

Microsoft and HP. [ Reply to This | # ]



Authored by: Anonymous on Friday, April 09 2010 @ 11:55 PM EDT

I have designed and built a system that uses off the shelf hardware, and runs a

mainframe system. I, however, have not created the emulation software piece. The

system i designed and built was for the Unisys mainframe OS. They had created a

version of software that emulated their high level interface (Mapper). I

designed pieces to communicate with that and built programs to pretend to be the

mainframe core. We then, designed specific hardware to run this. It runs on

Windows.



I've never seen any of the underlying code of the Unisys core system. I merely

treated it as a black box. Now writing an emulator for the high level interface,

would have been a huge task. We didn't have the manpower for something like

that. Our solution was faster than the mainframe by in some cases several orders

of magnitude. One critical task for a client that took 2.5 days to run, would

complete on our system in 3 hours.



I can't speak to what Hercules has written, but what my team and I wrote should

not have been considered infringing any patents. This is why software patents

are such a bad idea. To think that my software could infringe a patent when all

I did was design a connectivity program from a black box is ludicrous. I had a

problem to solve and followed GAPP (generally accepted programming practices) to

achieve that. There was no flash of brilliance. Although, there were some rather

bright individuals on my team.



It was not anything that skillful, experienced, intelligent coders could not

have done. It's no different than say someone building a sophisticated, perhaps

novel, machine out of blackboxes and someone else coming along and building

replacement parts for some or all of the machine.



Obviously, that isn't a totally accurate analogy, because there really aren't

any truly novel programming bits. Now a new and novel programming language, that

*might* actually be a patentable thing, but not the software. I could see the

patentability of a completely unthought of and efficient language being so

unique that it would give any user of the language a huge leap over current

coding. I haven't seen it yet (alhtough PHP and Ruby do come to mind). Software

however is a completely different ballgame.



Also, the fact that our solution ran considerably faster goes to prove that our

code was better than the original code. Or at least leaner. The customer wound

up saving millions in hardware and licensing fees.



Unisys loved our system so much they had us present it at one of their shows.

Hercules, though, seems somewhat less than honest about all this. We worked with

Unisys in our product development. We were a client and a competitor. I no

longer work for that company.



Brian (not logged in) [ Reply to This | # ]



Authored by: SilverWave on Saturday, April 10 2010 @ 03:43 AM EDT

"TurboHercules SAS's request was for IBM to allow its customers to use the

Hercules platform as well as a real IBM mainframe computer system."



Why would TH think that IBM would agree to this?



This seems to make no business sense for IBM.



Or was it to create a record of refusal, for later use against IBM... and also

create a record stating that TH didnt know of any potentially infringing

patents?



If so TH couldnt have expected any other response, surly? That is, they asked

IBM to state which patents infringed.



---

RMS: The 4 Freedoms

0 run the program for any purpose

1 study the source code and change it

2 make copies and distribute them

3 publish modified versions



[ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 04:34 AM EDT

And is the source code for the TurboHercules optimised binary available under an

open source license?



I suspect not and that's why IBM has doubts if TurboHercules qualifies for the

patent pledge. [ Reply to This | # ]



Authored by: SilverWave on Saturday, April 10 2010 @ 04:58 AM EDT

"Dominant companies have a special responsibility to ensure that the way

they do business doesn't prevent competition on the merits and does not harm

consumers and innovation " said European Competition Commissioner Mario

Monti."



It will be interesting to see how this rule is applied in this situation.



I suppose IBM would say they haven't done anything wrong and anyone is free to

build their own completing hardware and software, but they do have a dominant

position so it will be worth following.



---

RMS: The 4 Freedoms

0 run the program for any purpose

1 study the source code and change it

2 make copies and distribute them

3 publish modified versions



[ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 05:15 AM EDT

The first article I happened to read about this was the eweek article here. Seems the article uses both Mueller and Miguel de Icaza as the open source advocates on the issue. At that point, the old spidey sense started tingling and there must naturally be more to this. Of course, 2-3 days later ... there is. [ Reply to This | # ]



Authored by: IMANAL_TOO on Saturday, April 10 2010 @ 05:43 AM EDT

Emulators are layers on top of a base. Layers transmogrify the behaviour of the

base, to something else. In this case, Microsoft is apparently a base and

TurboHercules is a layer. Funnily enough the dirt from the base does shine

through and there is little new behavior. Normally the layer should protect the

base behavior. Yet, from what I can tell, TurboHercules is a very poorly

executed excuse for a layer. The layer lawyers better lay off, before the lay

community lay them off. Basically, history may repeat itself, once again.



---

______

IMANAL





. [ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 07:25 AM EDT

Well, even if you have doubts about what IBM is doing here, at least IBM is

willing to specify its patents. Unlike Microsoft.

[ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 08:33 AM EDT

The letter with the list of patents was dated March 11, but was not actually received by TurboHercules SAS until March 25, according to the entry for that letter on the web page listing them. [ Reply to This | # ]



Authored by: Ollathair on Saturday, April 10 2010 @ 08:53 AM EDT

IBM have my confidence.

IBM have my Business.



IBM and I do a lot of FOSS.



FOSS is my employers business, hence mine.



They, like IBM, do very well out of supplying, supporting and other-wise, all

things FOSS.



FOSS, as in the GPL version.



Yes, they (My Employer) charge money for it. Lots of it.

Yes, they pay my wages with it.

Yes, the customers I deal with are happy to deal with my Employer, as well as

me.



Yes, we will supply IBM hardware to an IBM shop.



Yes, we will supply IBM hardware to a new customer that has any doubt about

brand.



Yes, we will supply Intel /Tyan / AMD / Sun based hardware to any customer that

wants something else, or else, insists on it.



FOSS, Rules! For a fee, mate!



So, am I rather suspicious if any one wants to attack my bread and butter.

Yes, mate!



So, am I rather suspicious if any one attacks FOSS, in whatever form?

Yes, mate!



IBM have my confidence.

IBM have my Business.

IBM and I do a lot of FOSS.



FOSS is my employers business, hence mine.

[ Reply to This | # ]



Authored by: Stumbles on Saturday, April 10 2010 @ 08:56 AM EDT

One thing is for sure, TH has been reading SCO/McBrides playbook. Just like

McBride running around the country making unfounded accusations and at the

minimum twisting the truth, TH could not have picked up a better playbook.



---

You can tuna piano but you can't tune a fish. [ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 10:14 AM EDT

PJ Wrote : "Look at the date of that press release. They filed with the EU

Commission on the date of the press release, March 23. Now look at the date of

the list of patents that TH specifically asked for and IBM sent them. March 11.

So is it true that IBM refused to identify the intellectual property that it

believes would be violated?"



Yet prior to this statement by PJ, Jmaynard had already stated on here, and PJ

had responded to, that although the later is dated the 11th, he didn;t receive

it until the day AFTER he filed the complaint with the EU commission.



So, now I am confused ...



What I see he is PJ apparently disregarding statements posted in good faith by

the prime source.



I had always thought the policy on here was to accept statements made in good

faith, unless there was good reason to beleive then to be false, no one has

offered any evidence that the statement made by jmaynard is false, so I have to

assume that PJ has chnaged her policy, or is delberatly showing bias towards IBM

for some unspecified reason.



To me, it looks like a clear case of a large corporation trying to squish and

open source project that threatens their revenue. What i cant understand is why

PJ has suddenly taken the "Patents are gooood, opensource is bad"

stance ...



most confusing.



[ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 10:15 AM EDT

And TurboHercules the new SCO?

MicroSoft funds FUD at Foss's expense.



Just think you can NOW have a blue screen of death on IBM mainframe programs

courtesy of Microsoft.



Do you wish to restart your Mainframe computer emulator as the OS has died from

shock.

I can see the reset button being pushed now.

[ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 10:20 AM EDT

Dear Microsoft,



you have a 100% monopoly on Windows branded operating systems. My company has

developed an open source x86 emulator for another platform and we demand that

you license Windows(TM) to run on our emulator. Failure to do so will result in

a monopoly abuse claim to the European Union.



We expect you to provide enterprise levels of support for our customers (24x7,

with on-site support from trained engineers when required), and to test your

software on our emulator. You will have to fix any problems that are found in

your software that are caused by timing differences, physical hardware

differences, etc. when running on our emulator. If you find any bugs in our

emulator we will of course fix them, but you'll have to tell us what they are

first. If we violated any patents whilst creating our emulator we expect them to

be ignored.



We look forward to hearing from you soon.



P.S. We are aware that other operating systems are available for the x86

platform (i.e. Linux), but we don't care. We want to host Windows applications

through our emulator. [ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 11:19 AM EDT

We're getting buried under comments here, but there's one thing that has changed which I really dislike and the only time I mentioned it was deep in a huge thread. Update: The Register's Timothy Prickett Morgan picked up on the story behind this story last fall: 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). Why are we citing THAT as proof? The Register is more sensational a publication than most and you're republishing it as an accusation. I'm going to have to quote your own words on that specific argument. I'm quoting you from a ZDNet article here: Th ey have also been telling journalists that I live near IBM headquarters. That's it. That is IBM's "sponsorship". Wink, wink. Get it? You knew that was a weak claim then, why did you trumpet it in its own update now, about someone else? Besides, people can conspire over the internet, you know, without being physical neighbors.



No PIPE fairy or other such mystery funding has appeared, either, right? What did you say to rebut the absurd charges that you were part of a pro-IBM conspiracy again? In the same ZDNet article you wrote: They [IBM] haven't given me any financial support of any kind. Not a dime. Not a promise. Not a grant. Not a PIPE deal. Not an envelope of money under the table from a cousin. Not a Thinkpad. Nothing. We have the same case here, do we not? Can you prove otherwise? Please tell me that them selling computers that run Windows (and being BSD heathens) isn't the link, or I'll quote even more of that article about how IBM gave iBiblio some servers once. There's no proof that anyone is in this alleged conspiracy, PJ, except for Microsoft and SCO and co., where we have links upon links showing dirty deals.



I find this illustrative because you were then defending yourself from the same type of charges (membership in a conspiracy) that you now level against TH (the "shades of Psystar" accusation). I do not, nor have I ever believed that you are part of some IBM conspiracy, PJ, and I have defended you against those who claim otherwise. But I'm not going to assume that anyone is Microsoft-backed (not even Psystar) unless someone can meet the same level of proof we required last time. I just hope that people don't think that holding you to your own words makes me a bad person. [ Reply to This | # ]



Authored by: pem on Saturday, April 10 2010 @ 01:00 PM EDT

Whether or not the emulator guys received the letter detailing the patents

before or after the press release is almost immaterial.



And whether the letters sent by IBM are *actual* threats or not is certainly a

matter of perspective. If I spent 10 years of my life coding on something, and

big MegaCorp sent me a letter (whether somehow invited by me or not) that

explained that they thought my decade's worth of activities infringed hundreds

of their patents, I would probably perceive that as a threat, or at least a

warning. What noun would you use?



But back to the issue of identifying property: If somebody told me I might be

infringing 200 of their patents, and I looked through the first few, and found

no relevance and no possible infringement, it would be my personal position that

they hadn't specified any IP I was infringing, and that their whole purpose in

giving the list was to bury me in paperwork.



I'm sorry, but "here's a haystack. There's a needle in it somewhere that

you're using that's ours" sounds an awful like SCO's behavior to me.



The community's response to the SCO accusations of infringement included

statements to the effect that Linux is developed in the open; all the code,

including the history of the code, is available for your perusal.



That response is also valid here. After all, this is an instruction set

emulator, which, in the grand scheme of things, can't be all that big. It's

been developed in the open for 10 years, the code is certainly available for

IBM's perusal, and if they really think there is some sort of patent

infringement, they are perfectly capable of rooting through the emulator code

and match a few functions up to a few patents.



Just like the FOSS community, IBM is not a monolithic entity. There are a lot

of groups, a lot of individuals, and a lot of (sometimes conflicting) goals. As

ESR points out (http://esr.ibiblio.org/) somebody higher up at IBM is going to

have to make a decision about where IBM as a company stands on the issue of open

source. Maybe it's not black and white. Maybe it's more nuanced than that.

Whatever their final decision, it would be appreciated if they could spell it

out in detail as best they can; otherwise they are the ones who risk being

lumped in with the guys from Redmond as an entity that uses fear to try to

control behavior that they cannot otherwise directly influence.

[ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 02:37 PM EDT

Update 9: And now that we have all the letters, please notice that the company's press release conflicts with the record of what happened. Here's what TurboHercules told the world: Not only did IBM deny our request, but it now suddenly claims, after ten years, that the Hercules open-source emulator violates IBM intellectual property that it has refused to identify. Look at the date of that press release. They filed with the EU Commission on the date of the press release, March 23. Now look at the date of the list of patents that TH specifically asked for and IBM sent them. March 11. So is it true that IBM refused to identify the intellectual property that it believes would be violated? Mr Bowler's quote in the press release never claimed that IBM refused to identify their intellectual property. This fact would be readily obvious if the preceding sentence of the press release hadn't been omitted from the update and the claim provided in its context:



"We originally wrote to IBM requesting that it license its mainframe operating system to customers, on reasonable and fair terms, for use with Hercules in certain circumstances. Not only did IBM deny our request,..." [ Reply to This | # ]



Authored by: Anonymous on Saturday, April 10 2010 @ 04:38 PM EDT

A company that builds it's software on top of Windows Server?



This is so wrong in so many ways.



"I would hope TurboHercules would now correct its statement in that press

release, at a minimum."



I am sure you were speaking with tongue in cheek.



And the FUD just keeps rolling on and on and on... [ Reply to This | # ]



On top of Windows server? - Authored by: Anonymous on Sunday, April 11 2010 @ 04:39 AM EDT

Authored by: SilverWave on Saturday, April 10 2010 @ 06:04 PM EDT

Am I correct in reading this as confirming that TH had seen the reply from IBM before filing the EU complaint?



"Indeed, just a few days before we filed the complaint with the European Commission, Mr. Mark Anzani, the CTO of IBMs mainframe division, w