IBM: Digging itself in deeper

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 TurboHercules’ 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?

15 thoughts on “IBM: Digging itself in deeper

  1. I’m not sure that IBM counsel hasn’t looked at it. At least maybe not senior IBM counsel. As I said before, the Nazgul’s first response to any legal situation is to dig through the patent portfolio. Just look at how they handled SCO.

  2. When a new “slim” model of PS3 was announced conspicuously missing Linux support in September 2009, Sony made an official statement to the effect that they would still continue to support Linux on older models of PS3, and not remove such support with a software update. This pledge was reiterated as recently as February 2010.

    On April 1, 2010, Sony released PS3 firmware update 3.21. Its sole feature was disabling “Other OS” (Linux) support.

    Since then I’ve learned that when these huge companies make pledges to the OSS community, they should be read in the voice of GlaDOS, followed immediately by “That was a joke. HAHA. FAT CHANCE.”

    Miguel de Icaza should take note: he will find himself in Microsoft’s sights should Mono actualy pose a credible threat to .NET’s dominance.

  3. Jeff, you’re talking about the same company that distributed music CDs that root your system if you play them on a Windows box and then, when it came to light, didn’t understand why anyone was upset. I wouldn’t be so hasty about generalizing from their example. Sony is… special.

  4. Sony is… special.

    Sony is in this respect no different from IBM: a huge company with many divisions and tentacles, often in conflct with each other. That noxious CD was released by their music division, which should be considered entirely separate, from a personality standpoint, from their gaming-hardware division.

    That’s why it helps to treat such a large company as a borderline psychotic with multiple personalities who can’t be trusted to stick to his word once given.

  5. Who says he hasn’t, Sean? If I were a betting man, I’d bet $20 that ESR has been shouting into the nearest phone for the past few days. It sure beats shouting at the wall.

  6. > That’s why it helps to treat such a large company as a borderline psychotic with multiple personalities who can’t be trusted to stick to his word once given.

    Jeff inadvertantly explains why we don’t trust big government. ;)

    Yours,
    Tom

  7. A kind of counter reply (it mentions the funding from microsoft issue) from turbohercules is available at http://www.turbohercules.com/news/permalink/a-statement-from-roger-bowler-about-hercules-and-ibm/
    .

    The whole thing makes me a little bit sadder. The picture thats beginning to emerge seems to be that at some point in the recent past someone at IBM had the brilliant idea of building an emulator of their own only to find out that there’s a perfectly serviceable open source one.

  8. The whole thing makes me a little bit sadder. The picture thats beginning to emerge seems to be that at some point in the recent past someone at IBM had the brilliant idea of building an emulator of their own only to find out that there’s a perfectly serviceable open source one.

    I’m not so sure, given that all mentions of Hercules vanished over time from IBM publications. This is looking more and more calculated by the day. It still makes absolutely no sense, however. Any explanation either begins or ends with IBM shooting itself in the foot. Its as bizarre as it is sad.

  9. JonB:

    The picture thats beginning to emerge seems to be that at some point in the recent past someone at IBM had the brilliant idea of building an emulator of their own only to find out that there’s a perfectly serviceable open source one.

    Actually, the history behind z/PDT (IBM’s emulator) is a bit convoluted, and tied up with its relationship with the commercial emulators that had actually been on the market from Fundamental Software, Inc and PSI. For this discussion, I’ll just note that IBM had z/PDT internally for a year or so before making it available to others, and it’s now only available to those who had been eligible to use FSI’s emulator, FlexES, under a program run by IBM’s Partnerworld for Developers. They did so after not giving developers any way to use their software legally at all aside from either spending a half-million dollars or so on a real mainframe, or else using one of a few remote offerings, which most developers found unsatisfactory.

  10. Sony is… special.

    Sony is in this respect no different from IBM: a huge company with many divisions and tentacles, often in conflct with each other. That noxious CD was released by their music division, which should be considered entirely separate, from a personality standpoint, from their gaming-hardware division.

    That’s why it helps to treat such a large company as a borderline psychotic with multiple personalities who can’t be trusted to stick to his word once given.

  11. >Would somebody with a clue please wake up over there?

    like most outsiders to big corporates, you’re over-estimating them.

    i blogged about this 6 years ago: “Corporate Insidersight“. Funny yet pungent. If you want to better understand the mindset you’re facing, well worth taking 2mins to read. you’ll have a laugh. after a moment of reflection, you’ll have a cold chill.

    Very few people realise just how non-rational big business is. The larger the corporation, particularly in the USA, the more INSULATED its decision makers are from the market, not the more responsive or the more intelligent. Notice there I used the words “decision makers,” rather than “owners” or “executive management” which are quite different concepts. The yankee corporations in particular are quite surreal. You have an insane stickiness on Memes (contrasted with the European’s Tradition or the Academics’ and Employees’ and Citizens’ (Economic) Goal) and Orwell’s groupthink takes on literally hysterical reality.

    I have unusual experience here. But it’s unusual only in the sense of how I arrived there and how suddenly I arrived there, without being one of the strivers. Every single other major American growth company I’ve come in contact with, has… been… identical. Read the various insider story books arising from workers inside Sun, GE, Apple, IBM, etc. They will all match the essence of what you will read here.

    With one key difference.
    Those books were written either by people who’d fought their way up from the inside, or by journalists who’d interviewed a lot of people, but never actually walked in their shoes.

    I spent 3 years within 2 reports of the CEO/President of a Fortune 500, a several trillion dollar software firm, as managing director of an independent global business unit.

    The hebephrenia was surreal, the surreality was insane, the insanity was terrifying.

    http://saltation.blogspot.com/2004_04_01_archive.html#108129427328651669

  12. Pingback: CCIA | IBM, TurboHercules and the Problems with the Patent System

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong> <pre lang="" line="" escaped="" highlight="">