Linux tries to quiet the TurboHercules mob for IBM

[Conrad Knauer]

On Thu, Apr 8, 2010 at 10:55 AM, Fred A. Miller <fmiller at lightlink.com> wrote:

> IBM’s apparent actions in the case of TurboHercules
> <http://blogs.zdnet.com/open-source/?p=6209> have caused enormous anger
> in the open source community.
> http://blogs.zdnet.com/open-source/?p=6212&tag=nl.e539

When I first heard about this, I wondered what was going on; Groklaw
has an article up:

Why I Believe IBM is Free to Sue The Pants Off TurboHercules
http://www.groklaw.net/article.php?story=20100408153953613

It seems that this really isn't about the open source software per se...

An interesting quote:

---
 Here's  what TurboHercules says they want:

    We are not asking that IBM be subjected to punishing fines or
anything like that. We simply want IBM to agree to allow legitimate
paying customers of its z/OS mainframe operating system to deploy that
software on the hardware platforms of their choice – including, should
they so choose, on low-cost servers using Intel or AMD microprocessors
and Hercules.

Shades of Psystar. That's "all" they wanted from Apple, remember?
---

This from an update to the original article:

---
The letter is here, and here it is as text. As you will see the list
of patents was illustrative, because evidently there had been a
conversation earlier in which TurboHercules had expressed lack of
knowledge of any possible infringement. It's not a threat letter.
Trust me, this is not how a threat letter looks:

    IBM
    [address]

    March 11, 2010

    Mr. Roger Bowler
    President
    TurboHercules SAS
    [address]

    Re: TurboHercules

    Dear Mr. Bowler

    We have received and considered your letter of November 18, 2009.
The comments you provide do not lead IBM to reconsider IBM's position
as set out in my letter of November 4, 2009. Your suggestion that
TurboHercules was unaware that IBM has intellectual property rights in
this area is surprising. IBM has spent many years and many billions of
dollars developing its z-architecture and technology, and is widely
known to have many intellectual property rights in this area. IBM's
litigation against PSI for, among other things, patent infringement
and trade secret misappropriation is a matter of public record, and
well known in the industry. According to your own statements, your
product emulates significant portions of IBM's proprietary instruction
set architecture and IBM has many patents that would, therefore, be
infringed. For illustration, I enclose with this letter a
non-exhaustive list of IBM u.S. patents that protect innovative
elements of IBM's mainframe architecture and that IBM believes will be
infringed by an emulator covering those elements. For your
information, the enclosed list also includes a non-exhaustive list of
relevant IBM U.S. published patent applications. Apart from concerns
about unauthorized use of proprietary IBM information by one or more
TurboHercules contributors, IBM therefore has substantial concerns
about infringement of patented IBM technology. In these circumstances,
I trust you will understand that IBM cannot agree to your request to
reconsider its position.

    Sincerely,

    Mark S. Anzani VP and Chief Technology Officer, IBM System z
---

and from the comments:

---
As long as you run Linux on Hercules
IBM does not seem to care ... What Roger Bowler is complaining about
is that IBM will not license its z/OS software on TurboHercules ...
---
What I figure happened is this. AIUI z/OS is licensed only to run on
IBM hardware. The license allows for an installation to be run on
another machine for disaster-recovery purposes, but I don't think
"other machine" extends as far as "non-IBM hardware". Hercules was
being used for development and testing purposes, and IBM had no
problem looking the other way about just that. But TurboHercules
started talking to IBM customers about using TH's software to run z/OS
in a disaster-recovery role. That goes beyond just development and
testing, you're now talking about running z/OS in a primary role on
non-IBM hardware when the main machine suffers an outage. That's not
just a violation of the license, that's a violation that impact's
IBM's sales. They're not going to look the other way about that. So
IBM went to TH and said "Look, if you don't stop this we're going to
have to come after you for inducing our customers to violate their
license agreements.". Which is IMO reasonable, it's IBM's software,
they get to choose their license terms and nobody else gets the right
to interfere. TH responded by filing their anti-trust complaint. And
right there's where I put the line between reasonable and
unreasonable. If TH really thought IBM was in the wrong, they'd've
filed their complaint when they started their business and not waited
until IBM acted. IMO all the anti-trust complaint is is an attempt to
continue basing a business on getting IBM customers to violate their
license agreements, knowing that IBM won't want to start cutting their
own customers off and hoping that the complaint will make IBM back off
of going after TH for tortious interference.

I'd note that Roger even admits that TH's goal is to make IBM change
their license terms to allow running z/OS on non-IBM hardware. That's
IMO all well and good, but the way to go about it is to make your case
to IBM and, if you feel it neccesary, the EU anti-trust officials, not
by going to IBM's customers and going "Hey, we can save you a few
bucks if you'll just break your contract with IBM.".
---

My prediction: the "enormous anger" will mostly fizzle out as more
facts emerge...

CK