What is the significance of IBM’s patent attack on the company behind the open source Hercules community? I believe it may indicate a change in the balance of power inside IBM, one probably reflected in other large corporations, as cloud computing rises in prominence and as the main disruptive force becomes Google – a large user of FOSS – instead of Microsoft. We need to take note. Oh, and I’m using “reptile” in a technical sense 🙂
Despite the temptation to believe that some companies are unequivocal supporters of free and open source software, we should never forget that all for-profit companies are actually reptiles, acting instinctively on behalf of their shareholders and not acting on the basis of intellectual or philosophical insight. An expression of support will inevitably be a statement by a group of people within the company, motivated by a business activity. It will have been made in the context of a set of tensions between different priorities and with other groups of people in the same company. It will be the direction instinct has been steered by the availability of “food” and the presence of “threat”. Every expression of support – or act of aggression – needs to be seen in that light.
An important part of my job at Sun was to monitor actions they took that affected communities. I monitored the flow of requests to use and release open source code, ran the Ombudsman service so that I was first to hear of community issues, and acted as a (mostly!) ‘trusted friend’ to Sun’s legal staff prior to any action they took. At regular intervals throughout my five year tenure, I spoke up for communities and ensured that the actions taken in Sun’s name were not harmful to a community or Sun’s FOSS reputation. On some occasions I even had to request executive back-up for my position, in effect requesting a veto power.
Regardless of the merits of IBM’s case against TurboHercules (well summarised on Ars Technica), the fact the incident has happened at all is an important signal. I can’t for a moment believe this is the first time since IBM’s patent pledge that any part of the company has wanted to act against a community participant. We can see the tension between the statement Dan Frye makes through the Linux Foundation and the statement of another IBM spokesperson in the WSJ attempting to say the Pledge doesn’t apply to everyone. To hazard a guess, the competition is now characterised by Google – a huge user of and contributor to open source software – instead of IBM’s old foes, Microsoft and Solaris.
Perhaps IBM doesn’t need the FOSS community as a stick to beat its foes any more? Regardless, this action tells us that there is now no FOSS advocacy function at IBM with the authority to veto actions against open source. I hope IBM will categorically say I am wrong about this, but until they do all of us need to take note of this development and keep asking.
[More on this subject here]
Wild Webmink 
Um, note taken, and I’m not sure this changes a single thing. If you were working with IBM closely (as you should be in your new role), you’d know that it’s the same company, with the same principles, as it ever was. There has been no balance of power swing to the corporates, or whatever it is that you’re implying above.
IBM feels its IP has been violated. Period.
The real question is why it feels that now is the time to raise the question about Hercules, when this has apparently been going on for 10 years (with no apparent harm to IBM’s business). Perhaps it’s because of the specter of Microsoft. I don’t know.
But I think it unwise and improper to throw out 10+ years of IBM faithfully helping the open-source community *while simultaneously competing against it* (WebSphere and DB2, anyone?), because of alleged violations of trust and propriety. It’s not as if IBM is a repeat offender. Why aren’t we giving the company more of a chance? Why so quick to assume the worst?
Yes, IBM is a company and shareholders come first, just like at Sun, where you used to work. But that’s not inimical to IBM’s open-source commitments, as the past 10 years have shown.
Thanks, Matt. I’m amazed by how many prominent people are willing to automatically give IBM a free pass rather than asking serious questions about serious actions. I hope you are right; I’m looking forward to an unequivocal statement from IBM rather than from their fans.
I’m the project manager for the open source Hercules project. I’m not associated with TurboHercules SAS, IBM, or indeed anyone else (I’ve been unemployed since the collapse of my previous employer in May 2009).
I think IBM’s pulling out the big guns because the mainframe hardware group there is afraid that its monopoly position would be harmed by the ability of users at the low end to license its software to run on Hercules. That’s all TurboHercules SAS asked for, and it’s what they complained about to the EU.
The problem for me is that IBM’s chosen method of attack must necessarily implicate not just TurboHercules SAS but the open source project as well. TurboHercules SAS’s product is services and support for the Hercules open source product; there is no separate commercial version, so a claim that TurboHercules violates IBM’s patents is a claim that the open source project does so.. I have no assets IBM can take in a lawsuit, but they can easily destroy me financially should they choose to pursue their patent allegations against Hercules simply by causing me to have to defend myself. If they do that, they might drive me away from the project, but the project itself will continue on with hardly a blip, as any open source project would.
IBM gets a free pass from many because of its history of being a good guy to the open source world. I understand that, but to me the important lesson is that they only like open source as long as they don’t have to compete with it.
TurboHercules asked IBM to consider allowing customers to license IBM mainframe operating systems such as z/OS for use on the Hercules emulator. TurboHercules expressed its interest in establishing a commercial business under fair and reasonable terms, to be set by IBM. The issue here isn’t just that IBM slipped up and included two patents from the pledged 500 list. The larger issue is that, instead of negotiating a mutually-beneficial commercial arrangement, IBM decided to use a long list of patents to infer that TurboHercules must obviously be infringing on at least some of them. As Jay Maynard pointed out, this was an attack on the Hercules open source project since TurboHercules does not develop its own software. Furthermore, IBM expressed concerns about unauthorized use of proprietary IBM information by one or more TurboHercules [i.e. Hercules] contributors. What’s that all about? Is it doubting the power of the open source development model that smart people couldn’t possibly create such an elegant mainframe emulator from IBM’s own published information?
Just to put IBM’s actions in perspective, Simon I’m sure you’re familiar with this forbes article, even though it predates your time, where it reports how IBM “manhandled” SUN with software patents. 🙂
http://www.forbes.com/asap/2002/0624/044.html
[…] sue to protect open-source patents,” says this new report from IDG and we particularly liked Simon Phipps’ take. He wrote: Despite the temptation to believe that some companies are unequivocal supporters of […]
Take a look here… This may help to put this whole thing into perspective before going off half cocked. http://www.groklaw.net/article.php?story=20100408153953613
Get a subscription (if you do not already have one) to Linux Weekly News (LWN, http://www.lwn.net/), and read the insightful article at
http://lwn.net/Articles/382350/
It’s important to put things in perspective.
Please be careful about who you call the reptile, is it the company that is only feeding you selective information for their profit, the company that is protecting their interests, or is it the blogger/journalists that wants headlines without checking all the facts.
I have read a number of other news/blogger reports, although I don’t believe IBM is innocent, TurboHercules may not have presented you with all the facts or worse, not all the facts were included in your article.
I always believed it was a blogger/journalists duty to provide a balanced unbiased report, ie it was TurboHercules that sued/filed a complaint against IBM not IBM filing a suit against TurboHercules.
Did you actually read what I wrote or are you reacting to your impression of it or a report elsewhere? Unlike most commentators, I am not being fed information by either TurboHercules or IBM. I am careful to point out that all corporations are reptiles, and if you read the original article in which I coined the term (which was written a long time ago) you’ll see it explained.
As for your take on TurboHercules: I don’t think you have your facts right about who fired first, but as I wrote in today’s posting I think it is far too early to come to any conclusions as there is obviously lots more going on than any of us lay observers can see and my observation about IBM is unrelated to the merits of the case. All of which I think is clear above…
Simon, I overall found this to be a reckless observation despite the fact that I know we’re both in agreement on our views of software patents.
First, let me disclose for others that I work for IBM although no longer in a Linux/OSS role and have been working in our CHQ for 2+ years now. I comment here in my personal capacity and do not represent IBM’s positions, strategies, or opinions.
This line of … ?logic? that the battleground is now cloud which = Google which means IBM and other proprietary software vendors will use patents to beat down the forces of FOSS/Google is not only baseless in facts, but reckless.
Sun never viewed OSS the same as IBM does and so I would guess some in IBM could find it insulting you presume that their company used the same strategy/logic as Sun. Just because both seeks profits for their investors does not mean their strategies are the same. Clearly we’ve seen evidence over the years to support that claim.
A long time before Sun realized FOSS wasn’t a cancer, IBM was investing and has found a happy medium whereby it can participate in communities and still drive profits in its core businesses. To outsiders, it seemed Sun tried to copy that approach for its struggling server business (although far too late to matter). I’m a bit surprised by the current situation with one man’s personal bullhorn suddenly grabbing headlines – but a well thought out attack by an IBM competitor using a front-man could explain why anyone is spending time on this nonsense.
And per your definition Google itself is a “reptile” and so your analogy is reptiles going after reptiles — with patents. When in fact though the Linux Foundation I know many Google and IBM developers work and interact together in the same vein – not competitive at all. Google does far more in the FOSS community (and on a philosophical basis too) than people give them credit for. And even without the credit, they still do it.
Any profit seeking “reptile” company would have complied with China’s censorship requirement. But Google did the philosophically right thing. Hopefully this point doesn’t get your entire blog censored out of China 😉
Hi Mike, thanks for the comment. I note that while you’re berating me with hyperbole for hyperbole, you avoid actually addressing the core issue. That issue is: how on earth did IBM let two of the patents from the pledge list get into a threat letter against an open source activity? Is there no adult supervision? Address that issue and I’ll be happy (as I say at the end) to let the hyperbolic speculation rest.
As to the rest of your righteous anger, observing that there can be good people in corporations in no way diminishes the fact that all corporations act instinctively for the benefit of their shareholders in the absence of other influences (which is what I mean by “reptiles” if you read the original article, which was not written about IBM). I know many, many great people at both IBM and Google and they are a major factor in the essential corporate reptilian character being so rarely expressed by both companies. If this was not the case, this incident would not be so exceptional.
And can’t you let your (fact-challenged) hatred of Sun rest now Sun is dead?
Again Simon… I will direct you to a an educational site. I think you failed to mention something here… It isn’t IBM that started the suing but that would have sullied your story I reckon. I don’t have to cheer lead for IBM to understand facts and to know that your article just doesn’t wash. http://www.groklaw.net/article.php?story=20100408153953613 is the exact article to start on. Sun sucked as a FOSS friend so let them stay dead, right where karma put them.
I think you’re getting ahead of the facts on all points, Brian. As far as I can tell, no-one has sued anyone yet. TH appears to have asked the EU to initiate anti-trust enquiries after being unhappy with a conversation with IBM, and IBM appears to have sent an unvetted threatening letter – which is the actual subject of my blog, since I want to know why it was unvetted. The case itself is way beyond comment and I’m pretty suspicious of anyone claiming certainty over it – where are they getting their facts? TH PR (Florian)? IBM PR? I don’t trust either much.
And yes, I saw you link PJ’s article the first time you wrote, which I had already considered – you’ll see I linked it in today’s post. It was written after my blog but it didn’t need mentioning anyway since my point has nothing to do with the semantic niceties she divines.
Generally in business it’s not a good idea to do something to spite a competitor but, rather, to provide an advantage in the operation of the business. And that is something I had observed as a significant guiding principle in IBM when I worked there. An old timer once told me that in the even older days in IBM it was forbidden for IBMers to compare their products to those of others, rather, they had to speak of the value and merits of IBM products on their own terms, full stop.
At the time IBM made the decision to adopt Linux and, thus its first large move with FOSS, the decision was made to provide a lower cost means to support the development of tools and software products for its broad range of servers and to foster an adoption of IBM software development tools and methods by a broader range of developers. Lower cost – broader range. It worked. This was furthered with them putting Eclipse into open source.
While I would agree that for profit companies are in the business of benefiting their shareholders the fundamental exercise of that through their business strategy and tactics is what you are really commenting about. You are asking whether or not they have shifted their strategy.
It has long been known that the highest revenue volume for IBM comes from services with its challenging margins. This is followed by software, servers and other technology. At once they are trying to protect revenue growth with the highest possible margins in each of the different IT technology areas with their very different characteristics.
FOSS has probably helped IBM services grow revenue and, from time to time, be more competitive with services but would not likely provide the same profit benefits of hardware and software.
As a consequence of the above dynamics it would come as a huge surprise if there was any significantly greater support for FOSS in IBM Server and Technology Group (STG) than that for Linux and their support for the Hercules project thus far, I speculate, is in service of that. They have limits, as you suggested, in their desire to support something just because it’s good for a community.
IBM have publicly stated their focus around cloud computing as both software and services offerings. Those, in turn, are potentially dragging more IBM STG products with good margins into large enterprise accounts. In fact, it is public knowledge that IBM is a major back-office cloud supplier for Google’s own back-office operations, based in Malaysia, if I remember correctly.
As the financial sector has been the longest lasting and one of the most significant customer segments for IBM, it is quite understandable they don’t want to see mainframe OSs loading on someone else’s hardware unless it generates significant new revenue which they would not otherwise have gotten for IBM Software Group or for IBM Global Services.
I would think that your IBM counterparts with whom you worked in FOSS communities over the last 5 years are a bit frustrated themselves because they have never had the mandate to truly drive FOSS across the company.
As you remember from your own IBM days back in the ’90s, it is very, very difficult to get all the three major lines of business to agree on a common business strategy. When they do align they get extraordinary results, e.g. e-business and the emergence of Java and Linux as a significantly new technology base within IBM (thanks to Ian Brackenbury and Simon Phipps for the Java bit).
In short, that is what we are seeing now. The lack of a central focus and an IBM senior executive committee commitment to continue to drive FOSS beyond what has thus far been accomplished for the benefit of shareholders. For the last few years IBM has been investing in skilled people around the world, focusing more on the growth of a skills base for a growing share of services revenue.
And then there is now the big question as to the effect of Oracle acquiring Sun and to what consequence vis-a-vis open source. I would imagine that the IBM senior executive committee is closely watching.