Sunday, April 11, 2010

IBM's defense clause that was never triggered

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

But there's ongoing confusion. Just a few hours ago, someone commented on a previous post of mine and claimed that an "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 quote from a senior IBM VP, a remark he made 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 do with TurboHercules. It's a statement about the Linux kernel. Hercules isn't the Linux kernel and IBM's patent pledge doesn't even mention the word Linux. IBM's comment has no effect on the scope of the patent pledge. The pledge stands on its own. It doesn't 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 stands on its own. The pledge defines one -- and only one -- defensive scenario in which IBM would not want to be constrained by the pledge. That clause exclusively pertains to "any party
who files a lawsuit asserting patents or other intellectual property rights against Open Source Software."

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

What TurboHercules did doesn't trigger the exception provided for in the pledge any more than reporting an illegally parked IBM car to the police would.

Antitrust and intellectual property are totally different areas of the law and the European Commission doesn't pursue patent infringement. (It doesn't adjudicate lawsuits of any kind.)

There are only three scenarios in which someone can claim that TurboHercules triggered the defense clause:
  • that person hasn't ever bothered to read the actual pledge (which is only one page, plus a patent list) prior to commenting on this issue

  • that person doesn't know that antitrust and intellectual property are disparate areas of the law, which I've now clarified

  • that person intentionally wants to fool the community (and there are some out there who aim to do that)

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