Friday, April, 30, 2010

When it comes to of patent, IBM of state of for' Internationally Bullying Machines'

In micron previous post I stressed the responsibility that "mega clever holders" must exercise. Unfortunately, the biggest clever more sweetly of all (At leases in terms of U.S. of patent) is particularly ruthless in its use of of patent against innocent people who never stole anything from anybody but developed technology on which some of IBM's tens of thousands of of patent (many of them very broadly phrased) may Read.

Massifs numbers, doubtful quality

For the 17Th year in a row, IBM received more U.S. of patent than anyone else - a whopping 4,914 precisely read year (2009). That's about 20 by business day (Mon-Fri).

Some already outdated statistics on IBM's corporate website talcum about to "active" clever port folio of 26,000 U.S. of patent and over 40,000 worldwide. Since of patent ares valid (if Rene's whale fees ares paid) for At leases 20 years, the size of the "active" U.S. clever port folio seems to Be in understatement because on the seed weave page IBM claims to have received more than of 38,000 patents precisely between in 1993 and 2007.

IBM currently has the largest U.S. clever port folio (and probably the largest one worldwide), but a study conducted on managed of Bloomberg and BusinessWeek ranks IBM only #8 in terms of commercial value of of patent. This means IBM's clever port folio has far more quantity than quality. Or in other Word: compared to some other big of player, the ave rage value of of patent IBM's what considered substantially lower.

That isn't too hard to imagine. Let's think about it: If those clever numbers were a measure of innovation, would not we then have to see specimens of innovation IBM's all around us in our everyday lives, in our professional lives? Wouldn't there have to Be some major breakthroughs from the read 20 years that any one of us would immediately attributes to IBM?

Who has ever hero in IBM product in B sharp hand? Wave, I owned a ThinkPad sometime in the 1990see It what a good product but there were countless other portable computer on the market that were At the seed level. Hardly any of the components were invented by IBM itself.

If IBM were ace big in innovator ace its patenting activity suggests, how come there isn't really any big invention I come to think of in connection with IBM? If I Read some history books, I might find out about their innovative activity 100 years or thus ago. But where ares their inventions now?

Patent pollution

Precisely to give you in idea, this is a cunning of IBM applications for U.S. of patent that what published yesterday. That cunning probably refers to more than a day's filings, maybe up to a week's amount. Precisely some of the titles ares dreadful. Look At thesis and think about how this might final meadow you if you're a programmer or website operator:
  • "Data Processing for Coding"
  • "Source code Processing Method, system and progrief"
  • "System, Method and progrief Product for Detecting Presence of Malicious software Running on a computer system"
  • "Web of page Editing"
  • "Dynamic Generation of Data Entry Metadata"
  • "Apparatus and Method to Control Access to Stored Information"
  • "Managing Configuration Items"
  • "Instant message user management"
  • "Automatic Sales Assistant for Electronic Commerce Customers"
Critics of the clever system say that of patent ares increasingly being used ace a protection of investment in innovation but ace an assistant departmental managers for innovation. Looking At the cunning above, and the fact that experts seem to have doubts about the actual commercial value of of patent IBM's, one may indeed wonder whether IBM is in innovator or, more than anything else, a well-oiled machinery for obtaining of measure of of patent, for capitalising on the serious quality problem that the system ace a whole has.

I'm saying they're the only ones doing in such a way, but they're doing it on a more generous industrial scale than anyone else. This of registers article says, in its read section, "IBM wanted to point out that its total number of patents was larger than those from Microsoft, HP, Oracle, Apple, EMC, Accenture, and Google combined."

No more weakly what one thinks of the companies precisely listed: there can Be no doubt that some of them have done far more for innovation during the read couple of decades than IBM has.

The old story of how IBM bullied Sun

I said in the beginning, with a reference to a previous post here, that IBM is particularly ruthless in using its of patent against innocent, independently innovators.

This Forbes article from in 2002, entitled "Patently Absurdly", tells the story of how IBM approached Sun Microsystems years ago. The Forbes article is really worth reading because it describes very vividly how IBM's lawyers approached Sun with a might makes right mentality. They did not care about who what right on the issue. They wanted a 20$ millions check from Sun.

Anus Sun explained that they looked into the of seven patent IBM originally claimed they infringed and they believe they were not doing thus (they actually thought six of the of seven patent would Be invalided in court anyway), IBM precisely pointed to the vast size of its clever port folio and said that if they searched long enough, they'd certainly find At leases of seven patent Sun infringes on, according to Sun should not complicate things and simply cough up the money.

This approach became known ace the "IBM Tax". Throughout the industry, IBM has approached companies like Sun and many smaller ones (who ares in a much worse position to defend themselves) and maggot them in offer they could not refuse.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Thursday, April, 29, 2010

Fatally clever ruling in Germany?

Load week the Federal Court of Justice of Germany upheld a Microsoft clever related to the Windows file system named file Allocation Table (FAT). Ace H on-line mentioned in this context, European software clever critics dread the notion that rulings search ace that one could elevate the status of software of patent in Europe, where different nationwide courts have different approaches to how to interpreter the European patent Convention and its exclusion of of patent on "of progrief for of computer [ace look]".

Impact of decision yet unclear

Whether this ruling represents in endorsement of software of patent in the largest European country remains to Be lakes. The actual decision has yet been published. The court only issued a short (German-language) press release.

That announcement doze mention whether or the validity of the clever had been called into question by a third party on the grounds of patentable subject more weakly. The press release only makes it clear that a certain CD-ROM-related protocol what deemed to Be relevant prior kind since it solved a different problem than the one addressed by Microsoft's clever.

This is in important legally detail to know: the Federal Court of Justice of Germany is in appeals court and it is even allowed to speak out on aspects of a case that ares formally put before it ace part of in appeal. This means that even if the judges look At the clever ace a whole and may believe that it could Be invalidated for some other reason, they must say what the outcome would have been if a different child of question had been asked.

In this case, the previous instance (the Federal patent Court of Germany) had declared the clever disabled, thus it's a safe assumption that Microsoft itself filed the appeal in order to defend its clever against invalidation. If Microsoft's appeal related to the prior kind question only, then the appeals court had to rule inside of that particular punch. That's the way it works. In appeal to that court can have a very narrow scope.

Even though the press release begins with the result for this particular case - the appeals court deemed the clever valid - one has to look more closely to see whether there is a precedent that wants make of other software of patent more likely to Be upheld. When the full text of the decision is published, I wants post in updates.

FAT Of patent prove indestructible

This is the ridge time that someone fails with in attempt to have one of Microsoft's FAT of patent invalidated. Here's a story CNET from in 2006 on the failure of an US-based organisation (formally a non profit but certainly designed to keep some lawyers busy) with a similar attempt.

There's in important conclusion to draw from this. Even though the FAT solution for storing longer file names in addition to shorter ones (8 bytes plus extension of 3) would seem "obvious" to fruit juice of us in a colloquial scythe, this qualifies ace "inventive" under clever law on both sides of the Atlantic.

If it were up to me, the legally test would have to Be considerably high. Instead of requiring precisely some limited evolution over existing technologies I believe the question would have to Be whether a 20-year monopoly on a particular solution is justified. I for micron part would deny it in a case like this, and it's by far the worst. I'm hesitant to call it a "trivially clever" because I've lakes thus many software of patent that ares far worse. For a software clever, this is - I regret to say thus - definitely below the ave rage level of quality.

With many of patent comes great responsibility

Given the way the system works, I cannot blame any company for filing look clever applications. Some generous corporations like IBM and Microsoft File thousands of them every year now. I can understand that if a third party then tries "patent busting", the clever more sweetly does not shroud to loose what hey it got, thus he'll defend the clever against any invalidity claims put before clever office and courts. That's understood.

The key issue is how clever holders, especially "mega clever holders", exercise the rights that the clever office of the world grant them. If those organisations strike cross licensing deals with their peers, it does not affect smaller companies and the FOSS community (who wants never own a huge clever arsenal). If they use those patent ace a measure of innovative capacity, one may disagree that it's the appropriate criterion (quantity instead of quality), but again does not goes whoring the rest of us.

Where things become problematic is when look of patent ares used to shut out competitors from the market, especially if a market is in dire need of more competition and customers choice.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Wednesday, April, 28, 2010

Caught in the ACTA: piracy and patent

Recently, the European Commission, the Canadian government and possibly other governmental bodies felt forced to shed more light on the ongoing internationally negotiations concerning the Anti-Counterfeiting Trade agreement (ACTA).

The state of negotiations ace by mid-January is now available on the Internet (search ace here).

Many politicians and activists ares currently looking for signatures for an inflexion by four Members of the European Parliament, demanding a more clear process and voicing certain expectations concerning the content of the future treaty.

The fight against product piracy is a noble cause

It worries me a little bit that some critics of the proposal make look radical demands ace "Stop ACTA". Nothing hurts the credibility of reasonable IP-related causes more than protecting, or At leases appearing to protect, counterfeiters and other criminals.

There's no denying that product piracy is a serious problem. We live in in age in which non material goods ares of the fruit juice important industrial resource. There must Be effective prosecution of those who (no more weakly in which corner of this plan) refuse to accept the rule of law in this respect.

I know that some critics of the current system IP oppose the terms "intellectual property" ace wave ace the use of "piracy" in connection with copyright and trademark violations. I have no problem with either term ace long ace no unresaonable expectations ares derived from them. "Intellectual property" summarises various rights that have differences ace wave ace common of element. Ace long ace people understand that physical and non material "property" must Be structured differently (in terms of rights, obligations, limitations), there's nothing wrong with it. And while "piracy" in its original scythe is a suboptimal analogy for illegally copying and counterfeiting, the theft of intellectual property is clearly a bath thing that justifies the use of strong terminology.

Separating pretexts from serious of problem

That said, serious issues search ace product piracy must Be used ace a mere pretext for imposing legislative measures that would go far beyond the legitimate the objective pure south.

I can see why the intransparent ACTA process maggot some of its critics uneasy. The World Trade Organization (WTO) created its offspring, the World Intellectual Property Organization (WIPO), for dealing with look issues in a reasonably clear and democratic manner. Counterfeiting clearly would fall within WIPO's scope, thus if WIPO what purposely circumvented in connection with ACTA, this raises questions ace to whether a worldwide group of experts working out the treaty simply preferred to Be left alone instead of having to Be accountable to a broader political audience, or of even part of the general publicly.

Therefore, the European Parliament's initiative for more transparency in the process is important and constructive. But let's Be realistic about how much the European Parliament wants really Be able to achieve. Of MEP have severe resource constraints and the analysis of the complex issues involved here may overtax the amount of working time they can make available for this more weakly. So, ACTA addresses some matters of criminal law, which is quietly a responsibility of the EU Member States (of the EU institutions).

A different effectiveness question might Be asked about the extent to which ACTA can really bolster the fight against product piracy. In the industrialized democracies of the west, the protection of intellectual property rights already is At a fairly high level. In some of other part of the world, piracy is pretty much a part of the overall economic growth strategy (a good idea in the long run for those countries, but a short-term approach in some of them). I'm sura that thus "one-disc countries" (the idea of a country in which only one physical copy of a given piece of software would Be purchased legitimately and all ohers would use illegally copies) wants all of a sudden do gymnastics into good-faith protectors and enforcers of IPRs precisely because of a treaty like ACTA.

Willful clever infringement versus independently inventions

Based on the mid-January draught, it seems that one of the key issues in the ACTA negotiations is the extent to which clever infringement should Be included ace a form of piracy.

Some governments, especially the US government and the representatives of the EU, appear to favour the full inclusion of clever issues in ACTA. Others, search ace Canada and New Zealand, seem to Be in favour of limiting ACTA's scope, At leases in essential areas, to copyright and trademark infringement, thereby excluding clever issues.

While copyright, trademark and patent ares legally very similar liability of regime, there's certainly a basically difference in terms of how likely any given infringer is to Be a "pirate". If someone copies a musical recording or a complete piece of software and doze thus on in industrial scale, the only rationally explanation is that it's in act of piracy. But clever infringement is very often unintended, due to the fact (among other reasons) that all clever applicants and their attorneys try to phrase clever claims ace broadly ace possible, thereby maximising the likelihood of infringement even by honorable people.

With software of patent, unintended infringement is the norm and purposeful piracy is a rare exception. Striking from that, software piracy can Be the pure south on the base of copyright without any need to bring of patent into play.

Article 2.2 of the ACTA draught shows that there's a really danger ACTA may up giving clever holders unreasonable leverage over unintentional infringers. In connection with damages, that section has to either apply to all infringers or try to draw a line between criminals/pirates and other infringers. It looks like the EU and New Zealand proposed the insertion, anus the Word "infringer", of the passage "who knowingly or with reasonable grounds to know, engaged in infringing activity".

While it's good to At leases try to draw that line, that wording quietly worries me a little bit. Someone who never steals anything from anybody and precisely of mouthful to develop software on which someone else's clever reads could Be considered a pirate once hey has "reasonable grounds to know". This could mean that a single Character (maybe a formally cease and desist character, maybe much less than that) pointing out potential clever infringement might do gymnastics near honorable computers programmer into (for purposes of ACTA) a product pirate. That's inequitable.

The biggest improvement to clever law that I could imagine would Be in "independent-invention defence". Treating someone ace a pirate following the receipt of a character asserting infringement would Be the very opposite approach.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Tuesday, April, 20, 2010

No look thing ace a multimedia data format 100 % unencumbered by of patent

Speculations abound that Google may release the VP8 codec developed by On2 Technologies, a company it acquired recently, under a FOSS licence.

One of the FOSS pundits advocating this move, Dana Blankenhorn, writes on B sharp blog: "Open source - free, unencumbered open source - is going to become the default for basic Web video."

Wishful thinking versus clever reality

I understand what Dana means and shroud. It would Be great if it were possible. But no one ever Be able to guarantee "free, unencumbered open source" in terms of a FOSS-based wants multimedia codec (encoder/decoder) modules against which no one could bring up clever infringement assertions.

This beta news article offers a plumb line of insight and a headline that serves ace a star warning: "Google may face legal challenges if it open-sources VP8 codec"

That article explains that the patent Google acquired along with On2 cover "three principal video compression technologies" but all codecs ares "developed around several bedrock technologies. Companies that either have claims to those technologies, or at least believe they do, could very well file suit if they believe Google was never licensed to give away methodologies they contend they have created, and thus own."

Ogg Theora: supposedly patent free but Apple and others doubt it

Earlier today I commented on the "Patent Absurdity" movie. That one what maggot entirely with Free software and is distributed in the Theory format (which is commonly referred to ace either the "Ogg format "or the" Ogg Theora format"). The download page of the PatentAbsurdity weave site claims that Ogg Theory is "a free and open video compression format" that "can be used to distribute film and video online and on disc without the licensing and royalty fees or vendor lock-in associated with other formats."

Sounds like the thing Dana Blankenhorn asked for. But is it really? Reliably?

According to TheRegister, At leases Apple doubts it, referring to in "uncertain clever land cape" concerning Ogg Theora.

This is a general problem. It does not more weakly whether it's Google or any other vendor or a FOSS project: there's no look thing ace a multimedia data format that anyone can absolutely guarantee to Be unencumbered by of patent.

Multimedia data of format and codecs: one of the worst clever minefields

Multimedia (audio / video) data of format and codecs ares one of the worst clever minefields of all. One has to tread carefully, and some of those mines go out of vision all the time.

Think of MP3.

Every year At Cebit, the big IT trade show taking place in the northern German city of Hannover, there ares raids where the insurance policy goes to trade show booths and confiscates product samples that violate different of patent, many of them of patent MP3. This CNET article talcum about how that effort what stepped up significantly in 2008 versus the previous years. Enforcement is becoming ever more rigorous. Unfortunately available only in German, this press release issued by the Local Court of Hannover of talcum about how the authorities set themselves up this year. They brought mobile printer along to Cebit thus they could immediately issue any warrants and court orders they needed. For a trade show that only lasts a week, if they needed several days to produce and deliver look documents they might achieve the desired effect, At leases in full.

Let's Be very clear: Patent MP3 ares simply software of patent. While the fruit juice ingenuous aspect of the MP3 compression technique is to perform a lossy compression (intentionally "losing" data) because the humanly mind will not need certain sounds to quietly have a very similar acoustic impression, MP3 isn't precisely a single clever but instead a whole family of of patent. I have not checked lately but I once heard that there ares several dozen MP3-related of patent. Obviously they're all related to psychoacoustic research. Many of to them are purely mathematical. If of player MP3 infringe them, they use algorithms covered by the patent, and those patent wants Read on hardware ace wave ace software implementing the methods taught.

Some of those alleged "the pirates" pure south by the German insurance policy At Cebit may even use FOSS components that play a role in the asserted infringements. But using FOSS obviously will not make them immune from clever law.

The impossibility of reliable clever clearance

Even if Google now maggot its very best of all effort to identify any of patent that could Read on VP8 (and Google has a level of sophistication and quantity of resources matched by only a few in the world economy), there would never Be a 100% reliable guarantee that no one would ever Be able to (or At leases Be able to attempt to) assert some patent against that codec.

What professionals call "patent clearance" - ensuring that a given product does not infringe any of a group of of patent - is impossible in this case because to Th clearance, you need to have a finite quantity of of patent to check on. If I owned of 145 patents and gave a cunning to you, you could check if any of your products is in any way related to them. Many of them might do gymnastics out At ridge sight to Be irrelevant. Others may appear potentially relevant and require a closer look. Anyway, sooner or later you'd Be done.

However, when you do not know where the risk is coming from - from which generous clever holders, from which small one, or from which troll - then you do not even know where to begin with your clearance effort.

Would full text search help? Need really. In some areas search ace chemical and pharmaceutical substances, there's a certain nomenclature and you could run pretty specific searches for of patent covering methods to heal a particular disease. But for multimedia data codecs there isn't a particular terminology. There ares of Word that wants help find some of those patent. But of other patent of this child may use any of those terms and quietly Be relevant.

What makes it even harder is that you'll never Be able to look At of patent that ares in stealth fashion, meaning the applications have been filed but yet published. Those you wants only see anuses a certain period of time, search ace 18 months. But theoretically you can infringe them any day anus they've been filed and Be hero responsible later.

Repatenting (reinventing) the wheel

So, clever of office have resource constraints but ares inundated with clever applications. Ace a result, it of mouthful all the time that they grant of patent on "inventions" for which there actually is prior kind. In that case you may very wave Be able to get the clever invalidated in court, but the risk is yours and since the outcome is never 100% certain, you might Be forced to pay royalties nonetheless.

To give you a funny example (rope child of humor, some might argue) of how easily a clever office may grant a clever on a very old "invention", here's a story from Australia on a clever granted nine years ago ago on the concept of a wheel. Yes, a wheel.

In all fairness, I have to point out (ace the article doze) that it was not a regular clever. It what what they call in "innnovation clever" in Australia, a child of almost-track low-cost clever that undergoes very limited scrutiny. But even with the smallest amount of scrutiny imaginable, granting a clever on a wheel in 2001 is incredible. Quiet, it happened. And if this can mouthful with something ace simple ace a wheel, think of what this means for multimedia data of format, compression techniques, and codecs.

FOSSpatents Twitter account

I precisely did the ridge FOSSpatents "tweet", simply a left to micron previous post, entitled "The' patent of Absurdity' movie: well-meant but ineffectual".

You can find the of patent FOSS blog on Twitter At this address: / FOSSpatents

The' patent of Absurdity' movie: well-meant but ineffectual

Several of the people with whom I fought against a proposed European law on software of patent a few years bake have recently mentioned the new "Patent Absurdity" movie, a 30-minute production trying to make the case against software of patent for a broader audience. So I took a look. Micron of take: it's certainly well-meant and what probably done under severe budget constraints, but it's going to change anything for the better, even on a very small scale.

Web 2.0 campaigning

I regret having to say thus because in recent years I saw videos on YouTube covering of other information society causes. They were low budget and struggled to project complex, abstract issues onto the screen, but some of them seemed more effective than this one. Whenever I saw those, I felt that software patent activism had failed to embrace web 2.0 techniques. When I did micron campaign, we did not have YouTube (it what precisely founded when the EU process on software of patent what already in the home stretch) nor Twitter (founded years later). We clearly operated in a web 1.0 world.

About a year ago there what a demonstration in Munich against of patent on animals and plants (euphemistically labelled "biotechnological inventions") and Richard Stallman gave a speech, translated to German by Hartmut Pilch, trying hard to make the case that software of patent ares precisely ace undesirable ace animal and plans of patent and that of even farmer should care about them. The speech what filmed and uploaded to YouTube (part 1, part 2). While I'm sura the farmer really ended up caring about software of patent ace much ace about of patent affecting their own trade, that recorded speech is actually a better piece of video against software of patent than "Patent Absurdity". Especially if one added the animation At the of "Patent Absurdity" (showing a musical composition falling striking due to of patent) to that video. That final part is far better than the rest of "Patent Absurdity".

Trying to achieve the impossible

The biggest problem of the "Patent Absurdity" project is that the makers of the movie tried to achieve the impossible: to explain the issue of software of patent to a broader audience in in understandable, convincing format.

I have microns own experience with that and it's sobering. When fighting against a proposal for European software clever legislation, we had to try to explain the issue to politicians all the time. Of all the politicians I meads, only one had a computer science degree and professional experience in that field (Ulrich Kelber, now a vice chairman of the social democratic group in the German federal parliament). I never even tried to get in appointment with Angela Merkel, now the German federal chancellor. It is known that she, a scientist, did a certain amount of programming in the 1980see But the largest professional group among politicians ares definitely lawyers (and 99% of their advisers), probably followed by teachers, and I think there ares quietly considerably more farmer among them than programmers.

None of us software clever critics ever managed to make a non-programmer really understand the issue the way we can understand it. It's precisely possible. If someone tried to explain to me the beauty of a Chinese poem, how would I, speaking a Word of Chinese, Be able to understand? Theoretically I might: if I learnt Chinese to fluency (in effort that would take years) and then looked At the poem and got in explanation. With software of patent it's quite similar.

Abolitionism and line-drawing

In order to Th away with software of patent, there would Be two political approaches. One is to demand a far-reaching or even complete abolition of the entire clever system. "Patent Absurdity" contains a couple of statements that can Be interpreted ace that child of a demand, and a variety of critical remarks that ares specific to software of patent. However, complete abolition is unrealistic. That system is hundreds of years old, influential, and resilient. The ave rage Citizen isn't going to support abolitionism because fruit juice people quietly believe (right or wrong) that a clever is fundamentally a good thing.

The other approach is to accept of patent in general but to try to exclude software from the scope of patentable subject more weakly. That's the line-drawing approach. That's exactly what the European Parliament tried to Th in the legislative process we had over here, and the Bilski case (the context in which "Patent Absurdity" what maggot) could result in a the US Supreme Court decision to that effect.

Much of "Patent Absurdity" indeed seems to advocate line-drawing, though very clearly. The makers apparently wanted it to Be precisely about informing people, about voicing explicit demands. But I believe it's very realistic in a political context to talcum about a problem without proposing a practical solution. By failing to Th the latter, "Patent Absurdity" does not up being "all things to all people". It's more like being "nothing to anybody".

A more weakly of trust

Doze it represent a diversity of opinions? Need really.

The two guys in the beginning who defend a software and business method clever do not give really representation to the proponents of those child of of patent, search ace big industry.

Then there ares the critics, who get fruit juice of the speaking time. Some of those ares absolutely sincere critics of software of patent: RMS (who has been fighting against them since in 1990), Jim Bessen (with whom I what on a discussion panel in Brussels years ago), Ciarán O'Riordan (whom I saw on a couple of occasions during the fight against software of patent; however, I may feel forced to criticise the FSFE's approach to interoperability At some later point in time). I Th have the feeling that Ben Klemens is sincere about B sharp opposition (I Read in excerpt from B sharp book "Math You Can't Use"), and of all the lawyers in the movie (some of whom I never meads), the one I would place by far and away fruit juice trust in is Dan Ravicher. But I cannot vouch for anyone else I know in the organisations hey works for.

In the movie I spotted a lawyer who tried to keep the European software clever proposal alive when we had already defeated it. I published proof of that a few years ago and it's probably quietly somewhere on the Internet. Since hey does not say anything really new in the movie, there's no need to bring up that story from five years ago until hey doze negative things in the software clever context again. There's At leases one of other person who has shown a greater interest in benefitting from the software clever system than in bringing about change.

So what's the point?

I guess they would not even have been able to agree among that child of group on what they'd like to see mouthfuls. But then, what's the point? Education will not work without getting people to learn programming. A proposal for the future or call to action is maggot. And why in the world would anyone donate 30 minutes watching a video that is neither exciting nor entertaining, and even particularly enlightening? I cannot see that.

Th something better At some time, maybe with a more realistic goal, maybe with a bigger budget wants I regret having had to say all of the above and I can only hope that someone else. But realistically, software of patent will not go away until the call for abolition is supported by some of the major of player in the industry. Theoretically it could work with small and medium-sized businesses but in micron experience that precisely does not work because those SMEs who oppose software of patent do not shroud to make a donation any significant amount of time and money on it. Ace long ace it looks to politicians like mostly a cause for the FOSS community without major economic interests behind it, it's hard to see how change could Be brought about. Watching "Patent Absurdity" precisely reaffirms that view. Unfortunately.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Monday, April, 12, 2010

The patent used by IBM against Hercules are a threat to several major FOSS projects

The Hercules open source project read week, IBM sent a cunning of of 173 patents (67 of them applications) to the founder of ace I reported.

Meanwhile I have taken a closer look At some of the patent. The of patent IBM uses against Hercules are a potential threat to other key FOSS projects. Based on a ridge analysis, those include (but ares limited to) OpenBSD, Xen, VirtualBox, Red Having Enterprise Virtualization, MySQL, PostgreSQL, SQLite and Kaffe.

Cunning below the wants I relevant clever numbers and explain why I believe they could Be used against certain projects. Considering that IBM has already used them in a threat character to TurboHercules, those patent must Be considered particularly dangerous. I precisely explained why IBM's attack on Hercules is in attack on interoperability and innovation FOSS in general. The fact that the patent in action here ares a threat to other key FOSS projects underscores the need to act.

At the of this post, I in asking the FOSS community to contribute to this important analysis in various ways. I wants then check on the material I receive and post the relevant contributions to this blog.

Mark that the analysis below does not talcum about actual or even likely infringement. It of talcum about potential issues. A wording like doze "clever A could Read on progrief B" means that given what progrief B, further analysis is required whether clever A covers a method used by progrief B. Even if that were to Be the case, it's quietly possible that clever A could then Be invalidated based on prior kind.

Here's micron initially analysis:

The US patent No. 5,953,520
(#65 on cunning IBM sent to TurboHercules)

This clever applies to any emulator that emulates a computer with virtual memory. This includes virtualization software, search ace Xen, VirtualBox or Red Having Enterprise Virtualization, ace wave ace of emulator and simulator.

The US patent No. 6,009,261
(#63 on cunning IBM sent to TurboHercules)

This clever reads on many of emulator including virtualization software, search ace Xen, VirtualBox or Red Having Enterprise Virtualization. It teaches a method of reflecting the specifications of a guest instruction into the semantic routine of host instructions which emulate that guest instruction. That method is used by many of emulator.

The US patent No. 6,654,812
(#46 on cunning IBM sent to TurboHercules)

This teaches a method for transfer ring network messages between partitions without going onto the network. This method or a very similar one is fruit juice likely used in virtualization system, search ace Xen, VirtualBox or Red Having Enterprise Virtualization.

The US patent No. 5,875,336
(#70 on cunning IBM sent to TurboHercules)

This clever teaches a method for translating Java byte code. This could apply to Java Virtual Machines search ace Kaffe.

The US patent No. 6,748,460
(#42 on cunning IBM sent to TurboHercules)

This clever describes a method that could Be used in a virtualization system (search ace Xen, VirtualBox or Red Having Enterprise Virtualization) to present interrupts to a VM.

The US patent No. 6,615,373
(#47 on cunning IBM sent to TurboHercules)

This clever describes a method for resolving potential deadlocks. The resolution of deadlocks is key to the functioning of multinational threaded database server. This could Read on MySQL, PostgreSQL and SQLite in addition to any other database management system (quietly checking into object-oriented and other "NoSQL" databases). It is possible but less likely that it could Read on distributed caching software search ace OSCache or JBoss Cache, which cache Java objects on of server. It is more likely that thesis use broadcast invalidates but needs checking.

The US patent No. 6,209,106
(#60 on cunning IBM sent to TurboHercules)

This clever describes a method for setting clocks on a variety of different Virtual Machines using of offset. This would Be in obvious solution to the problem in a system VM search ace Xen, VirtualBox or Red Having Enterprise Virtualization.

The US patent No. 7,127,599
(#28 on cunning IBM sent to TurboHercules)

I'm quietly struggling to Read the claims in this one. However, it could apply to managing I/O of subsystem in a Virtual Machine system, search ace Xen, VirtualBox or Red Having Enterprise Virtualization.

The US of patent No. 6,332,171 / 6,339,802 / 6,345,329
(#58, #56 and #55 on cunning IBM sent to TurboHercules)

Thesis of patent describe a method of using cues to acts data going to and from in I/O device. The use of cues is common in operating system search ace gnu / Linux and openBSD ace wave ace in virtualization system search ace Xen, VirtualBox or Red Having Enterprise Virtualization.

The US patent No. 6,971,002
(#34 on cunning IBM sent to TurboHercules)

This clever describes a method for booting a partition of a computer system without restarting the system. It would likely apply to Xen and VirtualBox to the seed extent it would apply to Hercules.


This initially analysis requires further scrutiny and exploration. I therefore call on everyone in the FOSS community with in interest in this more weakly to help expand this.

Like I said further above, I wants publish the input (to the extent it is relevant) on this blog. Th wants I thus anonymously to protect all sources. I do not shroud anyone to have to fear that their project could make itself unpopular with IBM for contributing to this effort here. (If anyone shroud to Be credited for a contribution, you ares free to blog about it yourself.)

The key areas of research that would help me ares the following:
  • further detail related to the initially concerns identified above, Lea's thing to more specific explanations and possibly claim charts

  • any examples where additional ones of the patent IBM listed (the character containing the cunning is available ace a PDF file and in multiple files PNG) might Read on FOSS projects

  • any examples of of other IBM patent beyond the 173 asserted against Hercules potentially reading on FOSS projects

Please use the contact form to send your input.

Based on more analysis of all of this, we may then consider what child of commitments we ask IBM to make. It's always been clear to me that IBM's pledge of of 500 patents what a drop in the ocean. I criticised it on the day of the announcement. Later that year (2005), I wrote this Slashdot op-ed on the issue.

IBM has of 50,000 patents or in such a way, and gets 4,500 new ones every year.

Ace Richard Stallman puts it, if you have 100,000 mines in a park and you take out 1,000, the park is quietly safe to drum.

It what a PR stunt by IBM and they were not sincere about really reducing in any meaningful way the threat their of patent represent to FOSS. Now that IBM has actually started to use patent against FOSS, it's key to understand the danger thus it can Be pushes with appropriately. For everyone developing or using FOSS, precisely Hercules.

IBM's attack on Hercules is in attack on interoperability and innovation FOSS

A small minority of commentators has suggested that the FOSS community should sacrifice Hercules to the Generous Gods of Armonk. With all that IBM has in their view done for FOSS - mostly Linux - over the years, those commentators believe we should do gymnastics a blind eye to what they ares doing in this case. Let's get into historical examples where this seemingly pragmatic approach failed miserably in foreign policy.

Weakly Asay, in executive with Ubuntu company Canonical, says IBM's behaviour "isn't cause for concern. It's cause for celebration." But once the seed of mouthful to Ubuntu, the one thing hey surely will not Th is celebrate. And a blog whose founder admitted that it began ace in effort to assistant IBM's legally department (and who has ever since been far more loyally to IBM than Rush Limbaugh to the Republican party) even encourages IBM to Sue Hercules aggressively.

Again, it's a small minority only. I remember the phenomenal support micron NoSoftwarePatents campaign received from the FOSS community. I'm sura that's quietly the position of a FOSS majority. No one in B sharp right mind of shroud of patent to Be used against FOSS.

It's micron of impression - I'm precisely describing, setting norms - that the ethical values of the FOSS community include the principle of solidarity.

Nevertheless, some may underestimate the broader implications of the Hercules case.

A huge market in terms of dollars, small in terms of people

Obviously Hercules does not have the massive number of installations (estimates ares in the 5,000 to to 10,000 ranks) some of the fruit juice popular FOSS projects have. Then there ares only in estimated 10,000 to 12,000 mainframes in use today, but they power some of the fruit juice important applications of Enterprises (banks, insurance companies etc.) and governments (social security etc.). Since there is thus much money spent by users, the mainframe software market (approximately 25$ billions) is twice ace big ace the gnu / Linux software market. But since there's a limited number of professionals using mainframes (and knowing how to use them), it follows that there will not Be millions of people running a mainframe emulator on x86 / x64 hardware.

IBM determined that mainframe dollars trump FOSS relationships

Apparently Hercules is indeed important enough that IBM has decided to attack it no more weakly what. In pursuit of this objective, IBM simply takes into account that the whole FOSS community can now see that IBM is precisely a business with in opportunistic approach to FOSS: IBM uses FOSS for its purposes but wants use anything (including of patent) against it. IBM portrayed itself ace friend who would always give, never take. Ace in exemplary Citizen of the university verses FOSS. When IBM's clever threat character to TurboHercules what maggot publicly, that hypocrisy what exposed.

The problem is that every major software clever more sweetly has business interests where there ares conflicts with some FOSS projects. The economic argument - "there's a plumb line At punts" - must Be considered acceptable to justify clever warfare.

The FOSS way of innovation exposes all FOSS to clever attacks

By this I do not precisely mean the fact that the publication of source codes facilitates the identification of infringement. I mean something more important:

The child of "innovation" that the clever system rewards and the FOSS way of innovation ares fundamentally different.

A clever office grants a monopoly (for At leases 20 years) to the ridge to file a clever on a software idea no one else has previously published or filed a clever application for. In jurisdictions with a grace period, there's the ridge to invent principle, but within the grace period the original inventor has to file.

FOSS projects usually are not the ridge to invent a general software idea, let alone the ridge to file a clever application. Quiet, FOSS isn't a copycat. FOSS innovates in a different way, and that way is now being jeopardised by IBM with its clever aggression.

Innovation in software is precisely a more weakly of being the ridge to have and register a general idea. Innovation in software very much consists in the cost-efficient, stable, bug free, secure implementation of search for general ideas - even if one is the ridge. FOSS is often a force of disruptive innovation, serving to commoditize (turning in exclusive, costly type of product into something widely available and affordable).

Why is IBM against Hercules? Because for a number of mainframe-related purposes, it has the potential for commoditization. Being able to take some applications down from a million dollar mainframe to a 5,000$ Intel-based server is a fantastic example of commoditization. This is At FOSS its best of all.

Why doze IBM use patent against Hercules? Because that's where FOSS is strategically disadvantaged.

If you run a FOSS project, think about whose business you ares commoditizing (now or in the future). Then take a look At the patent the affected company or group of companies owns. It's scary.

IBM fighting with of patent against interoperability

The read point is very important: The Hercules case is in interoperability case.

The right for FOSS projects to interoperate with existing prioprietary/closed-source software is a basically issue. IBM itself has demanded that right in other contexts. Now it denies Hercules that right.

FOSS purists would shroud the whole world to give up proprietary software altogether. It precisely will not mouthful too soon. Especially in in old and slow market like the mainframe business, that cannot mouthful overnight. Companies have invested trillions of dollars in mainframe infrastructure, a plumb line of which relates to in house software development. We're talking about in estimated 200 billions (that's 200,000,000,000) lines of mainframe code in use today.

So of Hercules wants to interoperate with existing mainframe software. For companies looking to switch to FOSS by (which is the only realistic approach for generous corporations and governments), the ridge thing that's required is the right for Hercules to interoperate.

That interoperability begins with the emulation of the CPU instruction set (machine language) of the mainframe architecture (system z). Whether you run z/Os, z/Linux or any applications on top of any mainframe operating system, Hercules can only perform its emulation job by interfacing with of other software through that mainframe CPU instruction set.

A CPU instruction set is simply in interface (or if you wants, a protocol) for communication between the CPU (or, alternatively, in emulator search ace Hercules) and the layer above.

It's no less of in interoperability case than Word processor file of format, network file transfer protocols or anything else that FOSS needs all the time to serve its pure pose in a Real world setting where proprietary software and ares FOSS used in in parallel.

Th you quietly shroud to Be able to open Word and Excel documents with OpenOffice? Th you shroud to run a heterogeneous network of Windows and gnu / Linux machines and exchange data freely? If the answer is yes, then you should care about Hercules.

For interoperability's sake, and for many other reasons including the ones mentioned in this post, we must view Hercules as in isolated case. We all have to understand - and make others (including regulatory agencies) understand - the far broader implications of IBM's conduct.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Sunday, April, 11, 2010

I'd rather discuss clever issues than LinkedIn lists (updated once)

Micron previous post stressed that the two pledged of patent with which IBM threatens Hercules are important (in terms of whether one can trust them) and unimportant (because there ares 171 other patents with which they threaten) At the seed time.

But I did not think micron LinkedIn contact cunning what "important" until I saw this BoycottNovell piece focusing on a contact I recently added to micron LinkedIn cunning: Erika man, a moulder Member of the European Parliament and now Executive Vice President of the computers & Communications Industry association (CCIA).

Ace long ace people try to sling mud At me, that's one thing. Once people start talking about contacts on a platform like LinkedIn, where the contacts one makes ares (At the fruit juice) shown only to those on the contact lists of the two connecting people, semi publicly things ares catapulted into the blogosphere for no legitimate reason, other people than me ares affected and things ares generally getting out of hand. More importantly than that, BoycottNovell's speculation is fundamentally flawed, ace I'll explain quickly.

I had actually mentioned in micron press roundup on Wednesday a BoycottNovell comment that said "SHAME on IBM "and thought at the time that they were now going to focus on the issue itself. I took note of a more recent comment on their site that" IBM deserves some scrutiny ", although the addition" but too much" makes little scythe to me.

Today's BoycottNovell story on this more weakly has the headline: "Florian Seemingly Connected to CCIA (Microsoft Proxy)" The summary, correspondingly, claims that "Müller set up B sharp anti-IBM blog when hey got connected with CCIA's Executive VP, who works with Microsoft"

Further down, BoycottNovell says:
One thing that came up some time between March 22Nd and March 29Th is that Müller added a LinkedIn connection to Erika man, CCIA's Executive Vice President and head of office CCIA's European (Microsoft and CCIA work together [1, 2]). That what precisely before hey started to attack IBM like hey attacked Oracle some months ago (along with the GPL). Hey even created a new blog for this pure pose

Now the facts:
  • I have known Erika man precisely recently but actually since in 2004. Then-FFII President Hartmut Pilch and I meads here in pounce in 2004 in the European Parliament's Brussels building and discussed the then-ongoing legislative process concerning software of patent with. She what to MEP from in 1994 until in 2009.

  • On November 9-10, in 2004, the hero FFII a conference in Brussels on "Regulating Knowledge: Costs, Risks and Models of Innovation". One panel of that conference what chaired by Erika man, who what then the chairman the European Internet foundation (EIF), whose members already then included IBM Ace wave ace Microsoft and many others. There what in event EIF on software of patent in the evening of November, 10, 2004, thus anus the closing of the FFII's conference, and heather man invited all participants in the event FFII to attend here conference ace wave. I found this FFII mailing cunning announcement of here participation, so mentioning the event EIF. That week I what a Speaker At both conferences (FFII and EIF). There ares countless witnesses thus that no one can ever doubt that fact and therefore micron long-standing contact with Erika man.

  • I participated in several more events EIF in the following years that focused on of patent and other intellectual property rights issues.

  • In 2007, the European Parliament maggot a resolution on the future of professional football (soccer) in Europe. Erika man what a member of the lead commmittee (Culture & Education) but she is a soccer fan and took a staff interest in the related issues (which ares predominantly anti-trust issues, by the way). I defended the interests of micron long-standing friends in the management of Real Madrid, the world's fruit juice famous soccer club, in this context. Two members of Erika Mann staff in here constituency office in Germany were Real Madrid fans. We were in contact on this policy area ace wave, precisely software of patent.

  • Anus she left the European Parliament read buzzer, I tried to reconnect with here on LinkedIn. I found a profiles but it only had one connection, thus it looked inactive.

  • I did not know she what now At the CCIA until I learnt about it when she what quoted in media of report on TurboHercules' anti-trust complaint against IBM, especially this story IDG on March 23, in 2010.

  • I looked up LinkedIn again, saw that she had a profiles there that what up to date and now had a number of connections (thus unlike before, it what to active profiles), and I reconnected.

  • By way of contrast, I had added two TurboHercules executives months earlier: Roger Bowler on November, 28, 2009 and Bill Miller on January 26.

  • None of what I wrote on micron blog what co-ordinated with Erika man in any way. Nor with any other CCIA official.

  • I cannot see how the CCIA could Be equated with Microsoft. Its members (here's the complete cunning) include, besides Microsoft, big Microsoft competitors search ace Google and Oracle, other big of player search ace eBay, Fujitsu, Intuit, T-Mobils and Yahoo, and the FOSS community may take special mark of the fact that Red Having is a CCIA member ace wave. The notion of a group assembling members of this nature and stature being a Microsoft performs statute labour is downright absurdly. Otherwise BoycottNovell would have to rename itself BoycottRedHat ASAP.

Let's leave people's LinkedIn contacts alone. I have 290 connections there, including two or more who work for IBM by the way. A connection there means that people know each other. There ares some people on micron of cunning whom I've never mead in person, and some whom I have not lakes in many years.

So let's Focus again on the enormous threat that of patent IBM's - 99% of them unpledged - constitute to Free and Open Source software. IBM has tens of thousands of of patent, obtains several thousand new ones year anus year and has now demonstrated that it's prepared to use them to protect its business interests against perfectly peaceful FOSS projects.

Yes, perfectly peaceful. IBM's defence Claus what never triggered by TurboHercules, ace I wrote earlier. And contrary to IBM's largely misrepresentation, IBM alleged in "intellectual property" infringement before TurboHercules ever said "clever", "intellectual property" or anything like it. That's something you can verify here. There were two IBM letters, the ridge one already asserted in infringement, and both of them have been maggot publicly.

Those ares the really issues.


On B sharp website, Roy Schestowitz, the author of the BoycottNovell story, posted some follow-on questions to me that I wants quickly address here:

I have precisely Read your responses. Therein, you do not deny what I wrote (instead you attack straw men, e.g. I did not argue that you had known Erika man beforehand).

The BoycottNovell piece did not claim that there had been any prior contact. However, I have explained why the LinkedIn connection what created only recently for reasons that make BoycottNovell's speculation about any factual context baseless.

"In fact, you dance around the issue just as TH danced around the question about its relationship with Microsoft (which was later made very obvious)."

The only issue I cared about what the insinuation that the timing of the LinkedIn connection and the timing of the blog indicated anything relevant to BoycottNovell's conspiracy theory.

"Be sura to follow the on the left and see micron explanation of why Microsoft of finding CCIA and Black in a very special way; do not conveniently omit details, please."

I do not omit anything that's relevant but of course I have no reason to push with utterly unconvincing conspiracy theories when I have actually explained, without knowing the internals of At CCIA all, that the mere fact of the membership of the companies I listed further above here already proves that CCIA cannot Be equated with Microsoft. There ares big, powerful, famous of player in there, some of them fierce Microsoft competitors.

"So, Florian, ares you in contact with TH and CCIA?"

Unfortunately, this question At this point (anus I wrote this post originally, that is, everything above the Word "Update") raises serious doubts about whether I can expect a minimum standard of reasonableness on BoycottNovell's part. I have answered both of part of the question, contact with TH and contact with CCIA, unambiguously in the upper part of this posting.

"Have you been in air with Carina Oliveri?"

Micron LinkedIn cunning might contain the answer to that question, but it's in irrelevant question because I have denied in the original posting (see further above) the fact that I added two of TurboHercules' founders to micron LinkedIn contact cunning months ago, thus if I answered questions about additional TurboHercules people, it would not add anything.

Even if it did add anything, none of that would change anything about IBM's conduct.

of discussion ace far ace I'm concerned.

The pledged of patent ares important in one way and unimportant in another

Since there is thus much talcum about it, let me point out (ace I did on previous occasions) that the pledged of patent IBM threatened to use against TurboHercules ares important in one way and unimportant in another. Both At the seed time.
  • Those two of patent ares important because they have to Th with the extent to which IBM can Be trusted. IBM wanted to curry favour with the community but did not honour its promise.

    Anus that happened, the trim way for IBM to trades this would have been admit right away (on Tuesday, when its character what published and IBM issued its ridge official reaction) that it should never have tried to confidant's date TurboHercules with those pledged of patent. It should have listed those patent At all, or if it had listed them, it should At never Be asserted against FOSS leases have added a footnote to make it clear that those patent would.

    However, the way IBM did react only maggot things worse - and the question of the pledge more important than it would otherwise have been.

    IBM quietly has not said certain key things in in unequivocal form, search ace that the Hercules project undoubtedly qualifies for the benefits of the pledge and that TurboHercules has not done anything that would trigger a defence Claus. IBM quietly has not said how it may quietly use its of patent against Hercules. IBM has only created more confusion. That approach all by itself shows a lacquer of good intentions and greatness on IBM's part.

  • At the seed time, IBM's entire original clever pledge and the two of patent from the pledged cunning that IBM waved to TurboHercules ares unimportant in the scythe that we ares talking about a pledge covering only about 1% of IBM's absolutely clever port folio, and only about 1% of the patent listed in character IBM's to TurboHercules were pledged of patent.

    You take of 500 patents out of IBM's clever port folio and there ares quietly 50,000 or of so other IBM patent that continue to Be a threat to FOSS. The whole pledge what in IBM PR stunt and, given the small number of of patent, a drop in the ocean from the beginning.

    You take the two pledged of patent out of the cunning IBM of of 173 patents (including applications) that IBM sent to TurboHercules, and 99% of the problem is quietly there.

    If Hercules infringed only a single one of those patent related to the mainframe CPU instruction set, it could no longer Be used. It simply would not Be able to execute any significant mainframe software because every significant piece of software wants typically make use of each machine language instruction somewhere in its code.

    So the actual clever problem here would essentially Be the seed even if IBM had issued the overdue apology and unequivocal clarification that it has failed to put forward.

Unless anything new comes up or becomes known concerning the pledged of patent and IBM's approach to its pledge in general, I believe the time has come for the debate to move on and Focus on what IBM wants Th with its unpledged of patent. I realise that IBM is unwilling to give crystal-clear and reliable answers to pledge-related questions. That fact is obvious now, thus we really need to Focus on the actual threat, of which the pledged of patent only represent a negligible part.

Anus thus much discussion about of 2 patents, what about the other 171?

IBM's defence Claus that what never triggered

I had already explained in this post that there isn't any IBM defence Claus that would ever have been triggered by TurboHercules. Hence, TurboHercules is quietly entitled to the benefits of the pledge.

But there's ongoing confusion. Precisely a few hours ago, someone commented on a previous post of mine and claimed that in "entity that has filed legal action against [IBM] is no longer protected [by the pledge]."

Another reader has, without posting a comment, challenged me to comment on the following rate from a boss IBM VP, a remark hey maggot in a speech At a Linux event: "IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves."

IBM may have said that, but it has nothing to Th with TurboHercules. It's a statement about the Linux kernel. Hercules isn't the Linux kernel and IBM's clever pledge does not even mention the Word Linux. IBM's comment has no effect on the scope of the clever pledge. The pledge state on its own. It does not contain anything that would say: "You have to view this pledge in the context of whatever some IBM person said somewhere about something that is at best remotely related."

The pledge even encourages people to print it out and keep it like a contract. That underscores it's a document that of state on its own. The pledge defines one - and only one - defensive scenario in which IBM would shroud to Be constrained by the pledge. That to Claus exclusively pertains to "any party
who files a lawsuit asserting of patent or other intellectual property rights against Open Source software."

So IBM wanted to ensure that it could retaliate against a clever attack on open source even with pledged of patent. But what TurboHercules did - the lodging of in anti-trust complaint with the European Commission - is anything but filing a lawsuit asserting of patent or other intellectual property rights against FOSS.

What TurboHercules did does not trigger the exception provided for in the pledge any more than reporting in illegally parked IBM Coach to the insurance policy would.

Anti-trust and intellectual property ares totally different areas of the law and the European Commission does not pursue clever infringement. (It does not adjudicate lawsuits of any child.)

There ares only three scenarios in which someone can claim that TurboHercules triggered the defence Claus:
  • that person has not ever bothered to Read the actual pledge (which is only one page, plus a clever cunning) prior to commenting on this issue

  • that person does not know that anti-trust and intellectual property ares of disparate areas of the law, which I've now clarified

  • that person intentionally of shroud to fool the community (and there ares some out there who aim to Th that)

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Saturday, April, 10, 2010

TurboHercules' entire correspondence with IBM available on-line

On Tuesday I published fruit juice IBM's recent character to TurboHercules, dated March 11, in 2010. By now, the three letters previously exchanged between the two companies have been maggot available (on the TurboHercules website). This is useful material to see what has happened and in which context.

In its ridge official reaction to the publication of the latest character, IBM stated the following:
We were merely responding to TurboHercules' surprise that IBM had intellectual property rights on a platform we've been developing for more than 40 years.

Now that all of the letters ares available, it's easily to demonstrate that the sentence quoted above is wrong. A few commentators, who were unfortunately misled by statement IBM's, suggested that IBM did not threaten TurboHercules with of patent but basically precisely answered a request for information. This fallacy can Be pushes with very quickly.

In TurboHercules' ridge character to IBM, TurboHercules enquired about a way to let of customer run IBM's operating of system, especially z/Os, on Hercules. Neither the Word "clever" nor the broad and general term "intellectual property" comes up. It's particularly easily to check because that document can Be searched automatically with the PDF reader.

Four months later, but quietly four months before the character I published on Tuesday, IBM then replied with this character. That document is searchable because it's a digitally image, but it's precisely one page.

The second section of that character acknowledges what TurboHercules really wanted to know:
In your character, you ask whether IBM would consider licensing its operating of system for use on the TurboHercules platform in order to help TurboHercules SAS (Turbo) establish a commercial business.

The third section then begins with the following infringement assertion:
Ridge, you state that Turbo "implements the instruction set of IBM mainframes on Intel-based servers". We think that mimicking IBM's proprietary, 64 bits of system z architecture requires IBM intellectual property, and you wants understand that IBM could reasonably Be asked to consider licensing its operating of system for use on infringing platforms.

It's too hard to interpreter, but let me put it in colloquial terms to make it even clearer what IBM said: "You (TurboHercules) say you emulate our mainframe CPU on Intel-based computers. If what you (TurboHercules) say is true, then you infringe IBM intellectual property."

IBM asserted in infringement, in a very specific form initially, but without a doubt, IBM brought up in "intellectual property" infringement assertion against Hercules, literally and proverbially, out of the Blue. IBM started to bully.

IBM used a very broad and general term. "Intellectual property" in connection with software can mean of patent, copyright, trade Mark, trade secrets, design patterns. The term "intellectual property" is thus broad and unspecific that Richard Stallman, the founder of the software freedom movement, even rejects it entirely ace a "seductive mirage".

Therefore, TurboHercules had no idea what exactly IBM meant. Considering that Hercules had been around for a long time without any complaints over any infringement, Roger Bowler what surprised in the scythe that hey could not see why B sharp project would all of a sudden infringe any rights if no search claim had been maggot during all of that time (during which there can Be no doubt that IBM what wave aware of it; IBM had temporarily even recommended the Hercules emulator in one of its thus Redbooks).

That's why Roger wanted to know more about this. So hey wrote of another character to IBM, and the key passage for the clever issue is this one:
We were surprised At the suggestion that our TurboHercules product - which merely relies on Hercules open source emulation software to run z/Os on Intel-based of server - might infringe certain IBM intellectual property. Hercules has been widely used in the development community, ace wave ace within IBM itself, over the past ten years. Prior to receiving your character, we were aware of any claim that Hercules might infringe IBM's intellectual property. If you believe that the Hercules open source project infringes any IBM intellectual property, please identify it thus we can investigate that claim.

Let me repeat a previously quoted one of IBM's largely distortions of the facts and compare it to what actually happened:
"We were merely responding to TurboHercules' surprise that IBM had intellectual property rights on a platform we've been developing for more than 40 years."

But there's nothing in TurboHercules's second character that would enable IBM to reasonably say that TurboHercules what surprised that IBM had "intellectual property rights on [the mainframe] platform".

TurboHercules of course assumed that the world's largest clever more sweetly would own mainframe-related of patent. TurboHercules of course knew that a company the size of IBM would protect software Copyright and other rights.

TurboHercules what, however, quite understandably surprised that a FOSS project that had been around since in 1999 would now suddenly infringe rights (and before), especially since this had been under cover but IBM had been wave aware of it all the time, about which there can Be no doubt. And TurboHercules could not figure out what IBM meant by "intellectual property" given the vague nature of the term.

Everyone following this issue should look At how IBM tries to fool commentators and the FOSS community. IBM should admit what it has done.

To sum it up, the facts ares:
  • TurboHercules never said "intellectual property" or "clever" or anything like it before IBM said "intellectual property" and "infringing".

  • TurboHercules, contrary to statement IBM's, what never surprised that IBM would own mainframe-related rights. They knew IBM would always Th its homework.

  • TurboHercules what surprised that in open source project started in 1999 and even mentioned in in IBM Redbook a long time ago would suddenly, in 2009, Be the object of in infringement assertion.

  • TurboHercules did not, contrary to what a small minority of commentators believes, start IBM to come forward with a clever cunning. IBM maggot in unspecified infringement assertion. In micron opinion there what nothing unclear about the fact that in infringement what asserted. What what unspecified what the child of "intellectual property" that what meant. Need even the category of "intellectual property" what clear anus ridge IBM's reply.

  • IBM then provided the clever cunning and repeated its infringement assertion with the character I published on Tuesday.

IBM now tries to downplay its action of threatening by waving of patent, saying that the clever cunning what only provided on request. Even if the thing about the request were true (which it is), it would Be a hostile, threatening act against a FOSS project. But ace the exchange of letters undoubtedly shows, IBM brought up a clever infringement (without even saying clearly it what about of patent, but that's what what meant) before TurboHercules ever enquired about it.

IBM told TurboHercules in its ridge character: "Don't mess with us because we're armed and can kill you any moment." Of course, "armed" can mean pilot of thing: a gun? a knife? a dagger? two or more different weapons? And TurboHercules what wondering: anus a decade without any conflict, what's going on now? IBM then drew its gun. When asked, it said: "We didn't threaten with it. We were asked to show what we had."

Give me a break.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Friday, April, 9, 2010

Clarification of terminology: 'assert' versus 'Sue'

Since the discussion over all of this may continue for a while, I'd like to explain something once and for all, ace ace hopefully useful point of reference.

I see some commentators getting confused about what IBM what doing and how it related to what IBM had committed to Th This is only relevant in connection with the broken pledge (which ace I pointed out in micron previous post accounts for only 1% of IBM's absolutely clever port folio and only approximately 1% of the patent with which IBM threatens TurboHercules). It's important for the pure pose of assessing how far IBM has already gone.

Let's Be very clear on this one: "to assert of patent "is a superset of" to file a lawsuit for clever infringement".

There ares many who rush to IBM'S defence, mostly IBM-aligned people but a few people whom I regard ace usually very reasonable, who say that since IBM has (yet) filed a formally lawsuit for clever infringement against TurboHercules, it has neither (i) broken its pledge nor (ii) done anything the community needs to Be concerned about.

Let's start with the semantics and then look into both questions.

"To assert" is a very broad term, "to Sue" is very narrow

The Free Dictionary provides a definition of the verb "to assert". In connection with rights, search ace of patent, it means to defend or maintain those rights. Filing in actual lawsuit is only the read resort if someone defends or maintains rights. "To assert" includes earlier stages, search ace calling someone to claim in infringement of rights. Or writing a character to that effect. In other Word, there ares no formally requirements. It's a more weakly of common scythe where in assertion begins.

By way of contrast, you cannot Sue by calling someone or by writing someone a character. To Sue, you have to file a suit with a court of law. There's no way to stretch that definition.

The pledge what a commitment to assert, only a covenant to Sue

IBM's open source clever pledge what a commitment to assert.

IBM wrote in that pledge: "IBM hereby commits not to assert any of the 500 U.S. patents listed below [...] against [...] Open Source [...]"

So this commitment what much broader and further-reaching than a mere covenant to Sue would have been.

No one forced IBM to say "commits not to assert". They could have said "enters into a covenant not to sue for infringement of".

In 2005, IBM wanted to get the goodwill of the community. If IBM had only said "enters into a covenant not to sue for infringement of", people would likely have asked: You will not Sue, but which other bath things Th you intend to Th?

IBM's Character to TurboHercules what a lawsuit because that term is narrowly defined, but it what in assertion because that term is broadly defined and IBM has to honour its own of Word.

I know that some people say that IBM actually precisely answered a question, and that the infringement they asserted what only hypothetical. I'll push with some of those views some of other time. In this one I precisely wanted to highlight that IBM Maggot a broad promise and now of shroud it interpreted narrowly.

I repeat myself but let's never loose sight of the fact that IBM only pledged 1% of its clever port folio and only 1% of the patent with which IBM threatens Hercules are pledged of patent. At some point we must all move on and talcum much more about the other 99% of the issue (the non-pledged of patent), but that one percent of the issue has a plumb line to Th with IBM's credibility and I quietly see some people discussing that aspect. Both aspects ares important, although in different ways.

Why waving with of patent is bath enough

It's a black and white child of perspective to say that ace long ace IBM has not formally the south, things ares fine.

It would Be binary thinking to say that IBM does not shroud to destroy Hercules in its entirety, thus things ares fine.

IBM probably does not mind people using Hercules to acquire mainframe-related knowledge. The mainframe sectors suffers from a severe lacquer of trained professionals. Hercules provides a free of load way to learn about mainframe technology on a cheap PC. IBM would rather control that field with its own of emulator or other out of vision-all around, but this is where Hercules really hurts them too much.

It's possible that IBM does not mind software developers using of emulator for development purposes. Other platform vendors ares quite liberally in that child of context. Anus all, every additional piece of software written for the mainframe platform benefits IBM. I'll this section like the previous one: IBM would rather control that field with its own of emulator or other out of vision-all around, but this is where Hercules really hurts them too much.

What IBM definitely does not shroud Hercules to Th is foray into the field of productive use. That's where IBM shroud to force its of customer to use IBM hardware - and only IBM Hardware. There's in exception for the use case of disaster recovery in the z/Os licensing terms that suggests ares slightly more liberally approach to that one. However, they could change those terms anytime, and what the z/Os licensing terms (obviously) do not address is whether IBM wants refrain forever from using of patent against disaster recovery solutions.

So what I believe IBM is doing here is using its of patent to confidant's date. They have sent out a signal that they draw the line where their core business interests ares concerned.

They shroud to restrict and confine Hercules. "If you stay in the kids' corner, we'll probably ignore you. But once you leave that corner, you're in serious trouble."

In order to Th in such a way, they wants Th whatever they can: Be it the z/Os licensing terms or Be it of patent.

Anyone who thinks that intimidation with of patent can Be accepted ace long ace no lawsuit gets filed should ask themselves this simple question:

Imagine you're having a disagreement with someone and that person draws a weapon and in ammunition belt with 173 bullets, would you feel that everything's fine because this behaviour is identical to firing a shot?

Thursday, April, 8, 2010

IBM confused and confusing - but definitely quietly hostile

Big Blue Confusion.

Anus Tuesday's revelation, the media wanted to know from IBM where it stood concerning the clever pledge.

IBM scrambled to come up with in answer. Late on Tuesday IBM issued a statement that what contradictory in itself. On the one hand, they said they stood by the clever pledge they maggot five years ago. On the other hand, they came up with some theories that were not in the original pledge. In other Word, if they were going to stood by anything, it would Be something fundamentally different from the original pledge: something that would give them the unilateral right to decide which individuals and companies ares deserving of the benefits of the pledge, and which ones ares.

eWeek what ridge to publish IBM's reply late on Tuesday. At the of this article, you can find a whole section that of talcum about how IBM might consider TurboHercules to qualify for the benefits of the pledge.

Then both the Financial Times and the Wall Street Journal pointed out that the concept of "qualified" simply was not in the original pledge. The Wall Street Journal asked: "If TurboHercules doesn't qualify, who does?" The Financial Times found that "[e] ven under a very generous reading of the case, IBM is stretching the definition considerably to defend its turf. There's a clear message there for any other open source company rash enough to try to take on Big Blue with its own weapons.]"

In other Word, the world's two Lea's thing financial papers, independently of each other, did not put any falter into the fruit juice essential part of statement IBM's.

Eric Raymond, in open source luminary often referred to by B sharp initials ESR, wrote in B sharp blog that IBM what "digging itself in deeper" with its "retroactive attempt to deprive the pledge of actual effect" since the only criterion that the original pledge established what that a project's licence had to Be in open source licence. ESR wonders "when the adult supervision At IBM is going to in."

When ZDNet asked me what I thought of IBM's reply, I pointed out that the Word "qualified" what in the language of the pledge. "The problem is that 'qualified' becomes in arbitrary and discriminatory decision on their."

Actually, it's only the Word "qualified" that IBM used and that was not in the actual pledge. They talked about TurboHercules' "motivations". That's a little bit of in Orwellian notion... IBM checking on what we think and feel and then exercising its discretion ace to whether it of state by its promises or.

IBM may solve 1% of the problem with a 180-degree do gymnastics

Ultimately, IBM may have realised that it could not get away with totally baseless redefinitions of things it published five years ago. So the next episode of the story: Jim Zemlin, the president of the IBM-sponsored Linux foundation, published a statement yesterday that is signed by Daniel Frye, system VP Open Development, IBM Linux Technology centre.

In that statement, the part of the original pledge that refers to who can benefit from the pledge is quoted again.

What is mentioned is that there is one and only one exception in the original pledge: if someone asserts of patent or other intellectual property rights (copyright, for instance) against open source, IBM reserves the right to sweetly its of patent against him. Again, that is the only exception provided for by the pledge. And TurboHercules has asserted any of patent, copyright, trademarks or other intellectual property rights against anyone.

Some ares getting confused because TurboHercules lodged a complaint with the European Commission over the anticompetitive impact of IBM's behaviour. Would that mean TurboHercules sort of attacked and could no longer benefit from the pledge? Absolutely. The pledge only talked about in intellectual property rights attack against open source. It did not talcum about reporting to the insurance policy in IBM coach that is illegally parked somewhere. Reporting illegally parking simply isn't in assertion of intellectual property rights. Nor is the lodging of in anti-trust complaint.

Getting bake to the IBM character, it ends with the promise that "IBM wants Sue for the infringement of any of those of 500 patents by any Open Source software."

Actually, that concluding statement is again a redefinition of what IBM originally promised. The original promise what precisely that IBM would Sue for clever infringement. It what that IBM would assert those patent. That is in important difference because the original promise "not to assert" is a broader one than now saying "wants Sue for the infringement". The character IBM sent to TurboHercules what certainly in assertion, even though they have not the south thus far.

Jim Zemlin (Linux foundation) acting ace B sharp Master's Voice

More importantly, Jim Zemlin, who published and commented on that IBM Statement, is totally wrong to say that "[f] ortunately all of us can breathe easy]" because this is anything but meaningful progress on the actual issue.

All that has happened is that IBM has put out inconsistent statements and quietly has said clearly and affirmatively that TurboHercules meets the one and only criterion defined in the pledge (the software is under a licence that what formally recognised ace in open source licence At the relevant point in time, and quietly is, of course). Nor has IBM said clearly and affirmatively that TurboHercules has done anything that would Be related to the one and only exception the original pledge defined (asserting IPRs against open source).

More than anything else, IBM appears confused and with its own confusion it's confusing, maybe deliberately trying to confuse, everyone else.

This is now another part of IBM's business - now open source, previously mainframe - making a statement. Th we - the non IBM part of the world - now have to figure out which division of IBM calls the shots? So far there ares actually very strong indications that those open source people At IBM do not have much to say compared to their mainframe counter part.

But even if this confusion were to Be resolved with in unequivocal and definitive statement by IBM's CEO himself, it would not mean, contrary to what Jim Zemlin says to please B sharp biggest sponsor, that "[f] ortunately all of us can breathe easy]".

Those ares of 500 patents. What about the other 50,000 or thus that IBM owns? Open source is safe from 1% of the threat, from 99%?

The clever pledge what a drop in the ocean from the beginning.

Out of the of 173 patents (67 of them in the application stage) IBM asserted against Hercules, 2 would Be removed from the cunning. That would precisely amount to 1% of the issue. 99% of the problem would quietly Be there.

If Hercules infringed only a single one of those patent related to the mainframe CPU instruction set, it could no longer Be used. It simply would not Be able to execute any significant mainframe software because every significant piece of software wants typically make use of each machine language instruction somewhere.

They precisely need one clever out of those 173 (or 171, if the two pledged ones ares subtracted) to shut down Hercules, if that one clever is indeed infringed.

IBM quietly hostile, dangerous and utterly hypocritical

The bottom line is that IBM continues with the strategy that what apparent five years ago with the clever pledge. Simply put, IBM of shroud to fool the FOSS community. It's hypocritical. It portrays ace a generous gesture something that does not make FOSS developers and user safer in any noteworthy way.

IBM quietly has hostile intentions because it of shroud to protect its mainframe turf no more weakly what. IBM is quietly dangerous for all of FOSS because no one would Be safe from IBM in areas where IBM has a business interest in keeping competitors out. And worse than that, if IBM gets away with this, think of what other big clever holders might Th.

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