IBM patent claims show open source has arrived

At least no one can accuse IBM of playing favorites when it comes to open source.

IBM, a longtime defender and advocate of open-source software, took a shot over the bow of the open-source community in March when it sent a cease-and-desist letter to the company behind the OpenHercules open-source project.

Has Dr. Jekyll IBM just met its Mr. Hyde?

On March 11, 2010, Mark Anzani, vice president and chief technology officer within IBM's System z business unit, sent TurboHercules a letter asserting its patents against the OpenHercules open-source project. In it Anzani expresses surprise that TurboHercules wouldn't suspect it was in violation of IBM's mainframe patents:

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...

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...

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.

TurboHercules filed a complaint late last month with the European Commission's Directorate General for Competition, accusing IBM of illegally tying IBM mainframe software to its hardware.

In a statement regarding the complaint, TurboHercules points out that it has tried repeatedly to work with IBM on resolving licensing issues, but to no avail.

We originally wrote to IBM requesting that it license its mainframe operating system to customers, on reasonable and fair terms, for use with Hercules in certain circumstances. Not only did IBM deny our request, but it now suddenly claims, after ten years, that the Hercules open-source emulator violates IBM intellectual property that it has refused to identify. We then realized that our only hope as a small company was to file a complaint with the European Commission.

The open-source community's response was more direct.

According to several open-source advocates, IBM's action reveals it as an enemy to open source. Open-source blogger Glyn Moody suggests that IBM's action "leaves other projects [i.e., non-Linux related] in limbo, potentially threatened by IBM's vast software patent portfolio."

Florian Mueller, a noted anti-patent lobbyist, went one step further: "IBM is using patent warfare in order to protect its highly lucrative mainframe monopoly against Free and Open Source Software," further arguing that "[t]his proves that IBM's love for free and open source software ends where its business interests begin."

Well, yes. At least, mostly. I think it would actually be more accurate to say that IBM is willing to defend its mainframe business against any and all threats, open source or otherwise.

This doesn't make IBM an enemy to open source, because that sort of statement doesn't make any sense anymore, now that open source is just how software gets written by just about everyone, at least, at some point in the software supply chain. (As Gartner's Brian Prentice puts it: "Openness is by and large a strategy to reduce operating costs and remove supply chain dependencies."

This is why Moody is both right and wrong to disparage IBM as an opportunist ("IBM is either a friend of open source, or it's simply an opportunist, supporting some projects when it suits, and attacking others when it doesn't").

Of course it is (an opportunist). Who isn't?

IBM has always been an opportunist when it comes to open source, just as every open-source company, project, and developer is. Try ripping off Red Hat's trademarks and see how long it takes before a cease-and-desist letter lands on your door. Or try stealing GPL code from the project of your choice, without contributing code modifications back as per the license, and see how that makes the developer feel.

If, in fact, TurboHercules is violating IBM's patents, shame on it. Just because OpenHercules is open source isn't a license to steal, any more than IBM should have the right to pilfer code from it or any other project without complying with the license grants afforded by such projects.

(That said, if Mueller is right that two of the patents asserted by IBM against TurboHercules were included in IBM's 2005 patent pledge of 500 patents to defend the open-source community, and it appears he is, then IBM needs to at least retract those or clarify its position. As Mueller notes, "patent numbers U.S. 5613086 and U.S. 5220669 appear on page 4 of IBM's 2005 'patent pledge,' and also appear as patents #83 and #106 in the letter IBM sent to TurboHercules.")

We're not talking about friends and enemies, right and wrong. We're talking about IBM treating open source like a grown-up, one that has to live by the same rules as the rest of the world. IBM, unlike Microsoft before it, is not simply spreading FUD: it's enumerating the patents in question and taking its case to the alleged violator, not to the press, as Microsoft did.

Even so, Mueller is right to point out that IBM's action is cause for concern as it's a case of IBM defending an old monopoly, as he elaborated to me in an e-mail exchange:

In terms of an open source project violating IBM IP, given the sheer breadth and depth of IBM's portfolio of software patents I venture to guess that IBM could, if it wanted, assert patent infringement against any open source project of a certain minimum size (say, anything that's significant, such as Hercules).

I'm not campaigning for the abolition of those patents because that doesn't form part of the political agenda in any major market at least at this stage. However, the use of patents to protect a monopoly and keep customers locked in is something that really requires regulatory intervention and that's what's hopefully going to happen here.

On this we agree: using patents to defend old monopolies is ugly, even if it is "business as usual." I just disagree that IBM's action is more or less offensive because it's asserted against an open-source project. It's neutral. Open source doesn't get a free pass, even in IBM's world.

This isn't cause for concern. It's cause for celebration. It means open source truly has arrived.