IBM: Back to the Bad Old Days?
<p>Sadly, Florian Mueller&#8217;s scream of outrage (<a href="http://fosspatents.blogspot.com/2010/04/ibm-breaks-taboo-and-betrays-its.html">IBM breaks the taboo and betrays its promise to the FOSS community</a> is not an April Fool&#8217;s joke.  IBM has done what it swore not to in 2005 &#8211; picked up the patent weapon and aimed it to block an open-source project.</p>
<p>I was thoroughly briefed on this about ten days ago by Jay Jurata, a lawyer working for CCIA (Computer and Communications Industry Association), which is even now bringing an antitrust action against IBM over the matter.  Assisting him was Jay Maynard, an Armed &#038; Dangerous regular who happens to be the lead of a project called Hercules.</p>
<p>Hercules is an open-source emulator for IBM mainframes. Words cannot easily describe my degree of bogglement the first time Jay brought it up an a Linux laptop in my presence and I saw the unmistakable arcane runes of a 360 boot sequence &#8211; and in an old-school band-printer-style font, too.  Now, after 11 years during which IBM nodded when its own employees used and contributed to Hercules, Big Blue has brought down the hammer.</p>
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<p>The issue begins with z/OS, IBMs&#8217;s mainframe operating system.  For Hercules to be support the trillions of dollars&#8217; worth of mainframe applications out there, z/OS has to run on top of it so the applications can run on top of that.  But IBM has long refused to officially license z/OS to run over non-IBM hardware or emulators. Recently, TurboHercules SAS tried to change that.</p>
<p>TurboHercules SAS is a small company founded by Roger Bowler, the same guy who launched Hercules itself in 1994. He passed Jay Maynard the project leadership in 1999 when it went open-source, and later founded a company aimed at selling z-series emulation for disaster backup and other uses.  In the U.S. it&#8217;s aiming at government agencies with IBM mainframes that have been ignoring their backup mandates because, jeez, <em>one</em> mainframe is expensive enough, let alone a spare.</p>
<p>Bowler asked IBM to license z/OS for use over Hercules and got back a letter that waved around vague charges of  &#8220;intellectual property&#8221; violations. The letter outright refused to license z/OS for anything other than true-Big-Blue hardware. CCIA responded on behalf of TurboHercules by filing an antitrust action alleging illegal product tying.</p>
<p>This is where matters stood when  Jay &#038; Jay first briefed me on it. At that time, I told Jay-the-Lawyer  that if the matter remained a spat between two for-profit companies over proprietary software it would be difficult to get anyone in the open-source community very excited about it.  But I also said that if (a) IBM were to take direct legal action against the open-source Hercules project, or (b) violate its patent-nonaggression pledge from 2005, that would be a different matter &#8211; time, then, to light the beacon fires and gather the clans.</p>
<p>We still haven&#8217;t seen (a); no summons on Jay Maynard&#8217;s doorstep, yet.  But a few days later we got case (b), big time.  IBM sent TurboHercules a letter alleging that Hercules commits over 160 separate patent violations.  Crucially, two of those were patents that IBM explicitly promised never to raise against open source.</p>
<p>I told them I&#8217;d blog that, for sure, but didn&#8217;t want to do it on or too near April Fool&#8217;s Day. Which is why Florian Muller broke the story rather than me. Florian has his facts right, but his interpretation is&#8230;perhaps a bit overheated. </p>
<p>It&#8217;s not justified to conclude from this attack, as Florian does, that IBM has never been sincere in its alliance with the open-source community.  IBM has ploughed some big bills in marketing money and development time into the success of Linux.  I am in a position to know for <em>certain</em> that IBM&#8217;s legal posture in the SCO case was tuned to help us out rather than defending solely their own interests on the narrowest possible grounds.</p>
<p>On the other hand&#8230;I was invited to speak at an IBM internal technical conference back in 1998, when they were formulating their pro-open-source strategy.  They&#8217;d been reading my open-source papers, and the key planners behind the new, pro-Linux strategy wanted their peers  to hear the word straight from the source. And the first thing I said into that microphone was that it felt strange for me to be there, because I had been a hacker long enough to remember when IBM (not Microsoft) was the Great Enemy.</p>
<p>That got a laugh, then&#8230;but those bad old days could be upon us again.  Because for all IBM&#8217;s intentions to reposition itself as the world&#8217;s biggest consulting and systems-integration house, mainframes still generate 25% of its revenues and 50% of its profits.  It could be IBM is reverting to type&#8230;or it could be that something like the rear brain of a Stegosaurus is defending its flanks by reflex before the official brain up font has had time to catch up with what&#8217;s going on.</p>
<p>IBM has reached a critical juncture.  For the last decade the company has has had it both ways &#8211; allied with the open-source community to grow its forward-looking services business, and creamed big profits off the long-since-paid-for z-Series technology.  Now these two strategies are in conflict.  Whichever way this ends, IBM will probably only get to keep one of them.</p>
<p>I&#8217;m still not greatly concerned with the purely anti-trust aspects of this dispute.  But our community must call IBM publicly to account on its violation of its own patent pledge for the same reasons we mobilized to help IBM defeat SCO in 2003, because we&#8217;ve got to keep their laws off our code. The kind of suppressive fire by blizzards of patents that IBM is deploying now is not just a single project&#8217;s concern, but a very serious threat to open-source development in general.  </p>
<p>We need to find a way to push back. Because if there&#8217;s a first time that patent aggression works to lock us out of a whole area of software development, it won&#8217;t be the last.  IBM needs to learn, as SCO and others have before, that that betraying our trust and going to war against us has consequences severe enough to make it a very, <em>very</em> bad idea.</p>
