back to article IBM tears up open source patent pledge, claims FOSS

IBM snubbed a request from the British founder of TurboHercules SAS to let it offer a disaster recovery product for IBM mainframe users and instead accused the French open source startup of violating its intellectual property. According to a letter published today by NosoftwarePatents founder Florian Mueller, Big Blue has …


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  1. Anonymous Coward
    Paris Hilton

    Register joining the freetards?

    So basically this guy's argument is: because his software that undermines IBM business is open source, that magically entitles him to violate over 100 patents that a product built under a commercial license would have to respect?

    IBM isn't being anti-FOSS, it's being anti-idiot.

    1. Bakunin

      Lies and Profit

      No, his argument is about two things

      1) The fact that IBM identified a number of patents that they said they would not use against the Open Source community, that they are in fact using against the Open Source community. Which means they're lying to people.

      2) IBM is trying to stop another vendor (FOSS or not) from producing an emulation layer (from scratch, not by reverse engineering) because they want to keep the customer base to themselves.

      Plus what's wrong with undermining someone else’s business model? If my business model it to expensive TVs there's nothing stopping you "under mining" it by selling cheaper of better televisions.

    2. Tom Chiverton 1


      No, the point is IBM's threat includes things IBM promised never to threaten anyone with. The other 95 or whatever patents are fine...

    3. Flocke Kroes Silver badge

      A product built under a commercial license would NOT have to respect bogus patents

      1) Several broad fields of knowledge are explicitly excluded from patentability by internation treaties. One of the fields is software. IBM's software patents should never have been granted. No-one should have to knuckle under when threatened with software patents - and doing so is foolish as feeding trolls simply attracts more trolls.

      2) IBM chose to promise not to use certain patents against open source software. No magic is required. The project is open source, so IBM is breaking a promise.

    4. DavCrav

      I think his point was...

      ...that IBM said they wouldn't do this to FOSS, but then turned around and did it. Big company in being-a-bastard shock...

    5. corestore

      Your are...

      You are Phil Payne and ICMFP :-D

  2. James Hughes 1

    IBM in enforcing patents shocker.....

    That is, enforcing patents it has aginst a competitor who is breaking those patents.

    Now, if these patents were on obvious tech and probably should not have been granted, there would be something to whinge about, but on the current evidence, what have they done that is bad?

    1. Anonymous Coward
      Anonymous Coward

      What have they (IBM) done that is bad?

      They lied.

      What did FOSS do that was bad?

      FOSS trusted them.

      If a promise is not in the form of a signed contract then it is not to be relied upon. Even if it is in the form of a contract it can go to court and be disputed and if you can't pay the court costs then you loose.

      1. Richard 120


        FFS the word is lose dammit!

  3. Rob Dobs

    IBM should be held to thier word

    If IBM publicly told the world they would not enforce X patents against open source, then the world should hold them to their word. I'm tired of the double standard.

    Music companies get away with charging you 4-5 times the value of their product in cases of shoplifting, but when the CD makes colluded to steal from the public, the got off paying a fraction of the stolen amount.

    If IBM were the person, and Open source the big corporation, they would sue IBM for lying.

    Which is of course what this guy should do if he is indeed correct. Take them to court on it, plenty of states will let you sue for a oral contract, especially when there is public record of such agreement.

    Also what the hell is IBM thinking???!?! Do they really think they will get fans, investors, and supporters from these actions? It is precisely IBM's embrace of Open source that makes them such a strong competitor.

  4. Remy Redert


    No. His argument is that some of those patents being used to threaten his Open Source project are on the list of patents that IBM promised not to use against Open Source projects.

    Considering the size of the list, however, it's most likely an oversight.

  5. Anonymous Coward
    Anonymous Coward

    Alternatively . . .

    it doesn't appear to me that there is sufficient detail in this report to decide who, if anyone, is in the right.

  6. Daniel B.

    I'd rather have a System z, but...

    I understand the need to defend the mainframe stuff ... I would definitely not want one of the few non-Intel architectures to die off thanks to having a zillion users running z/OS on junk archs (x86, x64).

    But this case would be interesting ... if TurboHercules wins, it will set a nice precedent to take down the *other* company that insists in controlling the hardware on which its OS runs, and you know who I'm talking about.

    At least IBM can claim their System z iron performs better than a junk PC ... but the fruity PCs have the same junk inside 'em.

    Let's see how this unfolds...

  7. corestore

    This goes back a while...

    IBM are not showing their true colours, as some people have put it, for the first time. Way back 8 years ago there was the saga of the redbook, as I pointed out in this thread:

    If IBM *do* follow through and try to enforce patents against Hercules, the enmity they will earn from the FOSS community will be deep and not soon forgotten. 'Peace, Love, and Linux' my arse!

  8. Anonymous Coward
    Thumb Down


    That a letter by noted M$ophile and general idiot Florian Mueller would be treated as factual news

  9. Ysean

    Uhm... did we lose all reading comprehension abalities?

    Guys, if you actually READ the article fully you will see that IBM is suing the company that is commercializing the open-source project. It is NOT suing the open-source project itself. While you may not see a difference there, there is most definitely a huge difference. My take is that IBM is keeping to their word. I can completely understand their point of view. Now, I only wish they'd permit licenses of os/z to legally run on hercules for education purposes. (I for one would love to tinker and learn os/z, which is impossible to do for 99.9999% of tech people.)

  10. I didn't do IT.
    Black Helicopters

    Change of Captains

    Interesting that this comes about after the inditements of IBM higher-ups, eh?

  11. Destroy All Monsters Silver badge
    Big Brother

    Job creation and competition, sir?

    No thanks, we have have monpolies granted by State.

  12. asdf

    Re: I'd rather have a System Z

    > I would definitely not want one of the few non-Intel architectures to die off thanks to having a zillion users running z/OS on junk archs (x86, x64).

    Nothing like an shill IBMtard sizing things up. I will second your point that having fewer cpu architectures is indeed a bad thing but the reason Power, Cell, Sparc, etc are getting their ass handed to them by Intel is because Intel is quickly adding features that used to be only found in big iron (some of it by raiding HP's DEC IP) and offering it at a fraction of the cost. Also as for calling them junk they may not be so elegant and all but most of the worlds computing is done on x86 and x64. Some people just want to add computing power without having to get the CFO and sales force involved and being forced to sign a 10 year multimillion dollar support contract for one damn box.

  13. Matt Bryant Silver badge

    Hold on a sec......

    So, if IBM wins that means another bit of software won't be running on Power? Does that mean I can use the frothing IBMer logic and that Power7 is dead? LOL!

    IBM takes drastic measures to protect the cash cow of the mainframe market, especially as the margins are shrinking as the competition hots up. Just look what they did to PSI, where an emulator running on Itanium Superdomes thrashed IBM mainframes, and for a fraction of the price. Bullyboy IBM sued them into submission, then bought them and killed the product. Not because there weren't people that wanted to buy it, but because IBM could make more money from the mainframe suckers.

    The sad thing is I did actually think IBM meant what they said when they said they wouldn't troll FOSS. A sad day indeed.

  14. Will Godfrey Silver badge

    Follow the money?

    1) Muller is a well know anti-FOSS snake-in-the-grass. Don't believe me? Look at his track record.

    2) IBM is attacking the **commercialisation** of FOSS, not FOSS itself.

  15. elderlybloke

    Back to the Eightyies

    when IBM and not MS was the big bad bastard.

  16. Kebabbert

    Trust IBM?

    IBM is famous for being the first company to employ and use FUD. That says a lot.,_uncertainty_and_doubt#Definition

    We also have seen IBMers FUD a lot here. And IBM marketing is famous for twisting the truth badly. I wouldnt trust IBM at all. See IBM customers complaining:

    1. Jesper Frimann

      Throw the first stone he who is pure...

      Well having read your posts one should surely think that you worked there :)=

      You are the Master ... What about telling your Siebel and the what 847437328 POWER6 CPU's.

      // Jesper

  17. Marcus Aurelius

    Patents and applicability

    Only two of the 150 odd patents IBM have claimed are involved with z/OS are the ones they promised not to sue over; I think we can say that this is probably IBMs oversight. Never attribute to conspiracy what can be attributed to cock up

    Secondly, it may be that none of IBMs patents are applicable to Hercules; for the simple reason that Hercules is software and IBMs patents are on the hardware of the z series. In Europe, I believe software is not patentable at the present time, and if it isn't patentable then you can't use patents against something implemented entirely in software.

    Next, because Hercules is an emulation, it is entirely possible that the emulation uses different methods to achieve the same result, and if you use different methods you're no longer affected by the patent anyway.

  18. Anonymous Coward
    Anonymous Coward

    IBM loved Hercules before it hated it

    What people don't understand is that IBM's patent charges against the Hercules emulator are fraudulent. IBM used to love Hercules. They published an entire Redbook chapter explaining how to use it. Then they deleted that chapter and came out with their own (much slower) mainframe emulator to compete with Hercules.

    It makes no sense for IBM to say others can't emulate their mainframe instruction set. They publish thousands of pages of technical documents on their web site explaining exactly how to do this. They let Amdahl, Fujitsu and Hitachi sell plug compatible mainframes for 25 years without complaining. Hercules has been around for 10 years, and thousands of people use it, including plenty of IBM employees. IBM never had a problem with it until now.

    This is all about managers at the IBM mainframe division who are obsessed with making their quarterly numbers and are freaking out over a tiny competitor. Hercules will keep people on the mainframe, not drive them away. If the pointy-haired bosses at IBM would only take their heads out of the dark places and look at the sunlight, they would see that an open source mainframe emulator serves their own long-term interests.

    1. corestore

      Couple of points...

      1. "They published an entire Redbook chapter explaining how to use it. Then they deleted that chapter and came out with their own (much slower) mainframe emulator to compete with Hercules."

      The lower orders in IBM loved Herc; the senior management took a very different view. They pulled the Redbook chapter in 2003 IIRC - it was many years later that zPDT was released.

      2. re. Amdahl etc... IP licensing was a big issue there. I remember being told the tale of how ?Amdahl? at one point had to pay IBM some huge sum of money in order to *officially* look at one single page of IBM IP, *the contents of which they already knew*!

    2. sisk

      Not quite

      They didn't 'let' Amdahl, Fujitsu, and Hitachi sell plugins. US Law didn't give them a choice in the matter at the time. They changed their practice before the ink was even dry when the law changed.

  19. Anonymous Coward


    "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."


    "I'm throwing a hissy fit because IBM are protecting their revenue stream by throwing their research and hard work at my freetard product whilst I hide behind FOSS."

    1. Victor 2


      You need a better one for your translations

  20. dlc.usa

    Consider This

    "Nobody seems to be looking at this situation as regards product liability. That may be due to the lack of concern many IT vendors display about this subject . IBM, however, has taken it _very_ seriously for a lot longer than those companies have been in existence. They, too, ride in aircraft designed on platforms they market. The error handling of mainframes is legendary and IBM’s proprietary operating systems are designed to dovetail with this hardware very tightly. If they do not wish to be held responsible for their software running on hardware they did not design or manufacture, who can or should be able to compel them to do so?"

    --posted by me on Jim Zimlin's blog at the Linux Foundation (

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