After years of pretending to be a friend of Free and Open Source Software (FOSS), IBM now shows its true colors. IBM breaks the number one taboo of the FOSS community and shamelessly uses its patents against a well-respected FOSS project, the Hercules mainframe emulator.
A reliable source close to the Hercules project has provided me with this letter that Mark Anzani, IBM's mainframe CTO, recently sent to TurboHercules SAS, a French startup founded by Roger Bowler, who started the Hercules project 11 years back. The letter comes with a "non-exhaustive" list including 106 IBM patents plus 67 pending patent applications.
This is so appalling that I felt compelled to show to the FOSS community what IBM is doing: IBM is using patent warfare in order to protect its highly lucrative mainframe monopoly against Free and Open Source Software.
Patents against FOSS and customer choice
The Hercules project is anything but anti-IBM. Hercules just wants to provide customers with an interesting and much-needed choice. In order to do so, Hercules is simply seeking a way that its customers will be allowed to run IBM's z/OS mainframe operating system on Hercules. IBM generally does not allow its customers to run z/OS (hence also the application software those customers internally developed on top of it for trilions of dollars) on non-IBM hardware.
When Roger asked IBM for a solution, IBM turned him down and accused Hercules of infringement of intellectual property rights. You can read Roger's summary of the initial exchange of letters with IBM here. The IBM letter I just published is IBM's reply to TurboHercules' request (made four months earlier) to specify which of IBM's intellectual property Hercules is allegedly infringing.
This proves that IBM's love for free and open source software ends where its business interests begin. In market segments where IBM has nothing to lose, open source comes in handy and the developer community is courted and cherished. In an area in which IBM generates massive revenues (the mainframe software alone has an estimated size of $25 billion -- twice as big as the Linux software market --, around $10billion for IBM, and IBM has a monopoly on mainframe hardware), any weapon will be brought into position against open source. Even patents, which represent to open source what nuclear arms are in the physical world.
Two of the patents had actually been pledged to the community
To add insult to injury, the list of patents with which IBM tries to intimidate the Hercules project even includes two of the 500 patents IBM originally "pledged" to the open source community.
Patent numbers U.S. 5613086 and U.S. 5220669 appear on page 4 of IBM's 2005 "patent pledge", and also appear as patents #83 and #106 in the letter IBM sent to TurboHercules.
This betrayal of the promise is unbelievable, but I never believed that IBM was sincere about that pledge in the first place.
When IBM made that announcement in 2005, I immediately viewed it as a deceitful attempt to kill two birds with one stone: to appease the FOSS community and to alleviate concerns by many European lawmakers who were opposed to a legislative proposal to enshrine software patents in European law (for more background on that process, see my initial post to this blog).
ZDNet and other media quoted me calling IBM "just being hypocritical". I stand by it. Five years later, I still can't find a better word to describe IBM's approach to open source.
Make no mistake: this is not about a simple commercial dispute between IBM and some other vendor. The patents in question, the largest group of which covers the IBM mainframe CPU instruction set, are not specifically connected to what the TurboHercules company is doing beyond the Hercules code base. That mainframe instruction set is emulated by the Hercules open source project itself, which started 11 years ago and has thousands of users worldwide, even including a number of IBM people. Other patents that IBM brings into position here cover general address management and virtualization/emulation functionality that would affect many other open source projects as well.
This is an attack on Free and Open Source Software as a whole. Unless IBM is stopped, other vendors might do the same to protect their turf.
If you read how IBM tries to justify its outrageous behavior, claiming that the Hercules folks are seeking a free ride, you'll see that we as a community face a fundamental problem.
Regulatory intervention against IBM is needed
So how can the current problem be solved? The only short-term fix that I can see -- other than IBM changing its stance -- is through regulatory intervention. IBM's mainframe monopoly is a huge problem. Customers who have invested trillions of dollars in mainframe infrastructure suffer from a lock-in and IBM doesn't even allow them to run the software they rightfully own on a platform of their choice.
Even prior to receiving that patent threat letter, TurboHercules had lodged a complaint with the European Commission. A formal investigation of IBM's conduct in this space, including (among other things) the way it uses its patent arsenal against an innovative open source program to prevent interoperability and customer choice, could ultimately open up the market and deter other monopolists from using their patent arsenals against open source in a similar way.
With all that's at stake, I'm now taking a really strong interest in this matter and will be following it more closely in the weeks and months ahead.
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