Yesterday I blogged about the escalating dispute between IBM and TurboHercules SAS. I said, and will repeat now, that the central issue for the open-source community in this matter is not the antitrust allegations, but rather the fact that IBM has raised a patent threat alleging that Hercules violates its intellectual property. And especially, that IBM in doing so has cited two patents that were explicitly listed in its 2005 pledge to the open-source community.
IBM has now made matters worse. Much worse.
The Wall Street Journal quotes an IBM spokesperson as follows:
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 TurboHerculesâ€™ motivations.
That is, IBM now appears to be claiming the right to nullify the 2005 pledge at its sole discretion, rendering it a meaningless confidence trick.
The correct filter for whether an individual or company is “qualified” is that described in the pledge itself – conformance of the project’s licensing to the Open Source Definition. Any retroactive attempt to deprive the pledge of actual effect would be profoundly unethical. And probably nullified by the legal doctrine of promissory estoppel.
I’m watching this and I’m wondering when the adult supervision at IBM is going to step in.
The original letter to Roger Bowler denying TurboHercules’ request for a z/OS licensing program was full of vague threats and ominous language – I said to Jay Maynard at the time that no IBM counsel could possibly have looked at it, because as written it was dripping red meat for antitrust regulators.
Including two patents from the 2005 pledge list in their count of alleged Hercules violations was colossally stupid. With more than 160 other patents to allege, why court a fight with the open-source community over those two?
And now it’s compounded by this graceless attempt to nullify the entire pledge, a move which couldn’t offend the open-source community more if it were calculated to do so. IBM may be aiming at TurboHercules, but so far it has shot three bullets squarely into its own foot.
Would somebody with a clue please wake up over there?