Saturday, July 31, 2010

IBM's patent holder rhetoric against open source innovation

I previously wrote that IBM's reaction to the European Commission's antitrust investigation boiled down to diversionary tactics (some of them implausible, all of them irrelevant) and the usual rhetoric of patent holders. Now I'll comment a little more on the latter part, which is of a kind that's been annoying me ever since I became involved with patent policy years ago.

It's a problem that isn't unique to IBM: every time someone sues someone over a patent, you can hear similar things. But no other company has used that kind of rhetoric in such an obnoxious and hostile manner against free and open source software (at least not recently).

Likening an alleged patent infringement to piracy

This is how IBM's reaction to the announcement of TurboHercules's EU antitrust complaint in March 2010 began:
TurboHercules is an "emulation" company that seeks a free ride on IBM's massive investments in the mainframe by marketing systems that attempt to mimic the functionality of IBM mainframes.
Hercules is an independently-developed, 11-year-old open source project. If that amounts to free riding, then all of FOSS does in one way or another. Linux, OpenOffice, MySQL... you name it.
This is not really any different from those who seek to market cheap knock-offs of brand-name clothing or apparel.
That's just so wrong. What IBM describes there is called "trademark piracy" (although the use of the term "piracy" is debatable in that context). Someone who intentionally makes illegal use of a trademark such as Armani or Boss knows exactly what he's doing: infringing on someone's rights. But if software developers infringe a patent, it's inadvertent most of the time. Someone writes code and someone else obtained a patent that reads on it. No wrongdoing. That's why I commented negatively on the inclusion of patents in the Anti-Counterfeiting Trade Agreement (ACTA).

An Armani or Boss pirate will also try to fool customers, at least the credulous ones, with respect to the origin and quality of the product. TurboHercules doesn't do that. It clearly says that its software is the Hercules open source mainframe emulator, and every single person who downloads and installs the program knows that it's software -- not a mainframe. You can tell by the weight :-)
TurboHercules is a member of organizations founded and funded by IBM competitors such as Microsoft to attack the mainframe.
On the Microsoft conspiracy theory I commented in the previous posting. The notion that TurboHercules aims "to attack the mainframe" is so absurd. Those guys are fans of the mainframe, and by making mainframe software run on other platforms they certainly don't harm the mainframe.

TheRegister's mainframe expert Timothy Prickett Morgan pointed out that the mainframe ecosystem stands to benefit from TurboHercules, calling it "perfectly understandable to want the Hercules emulator to be available as a true alternative to IBM's mainframe iron running its mainframe software, and a perfect fool as well as a genius could readily see that having such an alternative would be a good thing for mainframe shops."

Innovation requires incentives for innovators as well as a functioning competitive environment

Still commenting on IBM's reaction to TurboHercules's March 2010 antitrust complaint:
Such an anti-trust accusation is not being driven by the interests of consumers and mainframe customers - who benefit from intellectual property laws and the innovation that they foster - but rather by entities that seek to use governmental intervention to advance their own commercial interests.
IBM, you can be sure that the European Commission is "driven by the interests of consumers and mainframe customers", which is why the EU competition authority even opened a second probe of IBM's behavior at its own initiative. Then the part on "intellectual property laws and the innovation that they foster" ignores that innovation takes two things: an economic incentive (and I agree that IP often plays a key role in that) and, equally importantly, undistorted competition.

On the last part about "entities that seek to use governmental intervention to advance their own commercial interests", TheRegister's mainframe expert Timothy Prickett Morgan accurately noted: "There isn't enough time in the day to list all the times Big Blue has benefited from the intervention of local, state, and federal governments around the globe."

And the final part of the March 2010 statement:
IBM is fully entitled to enforce our intellectual property rights and protect the investments that we have made in our technologies.
This again suggests that IPRs are an absolute thing, detached from all other considerations. They're not. There can be limits under competition law.

Let me make this very clear: I don't downplay the relevance of IPRs as a factor that results in investment (of time, money and energy). I've personally lived off IP for many years. I started writing articles for computer magazines when I was 15, computer books at age 16, then became involved with several commercial software projects (including three Blizzard games: Warcraft II, Diablo I, Starcraft I). I co-founded and managed a startup that depended on IPRs. MySQL was probably the most IPR-focused open source company, and I was involved with it as an adviser and shareholder. I defended some IPR-related strategic interests (broadcasting rights) of my favorite soccer club in an EU policy-making context. So I have a whole pro-IP biography, but I also value undistorted competition.

Let me quote TheRegister's Timothy Prickett Morgan again:
"As anyone who has watched the engineering done by Amdahl/Fujitsu and Hitachi [makers of mainframe products who effectively left the market] in the long and strange mainframe market knows full well, it was these companies that often innovated ahead of Big Blue [...]"

Patent validity and actual infringement are doubtful

Now that the European Commission launched its two parallel investigations of IBM's conduct, IBM radicalizes its patent holder rhetoric:
The accusations made against IBM by Turbo Hercules and T3 are being driven by some of IBM's largest competitors -- led by Microsoft -- who want to further cement the dominance of Wintel servers by attempting to mimic aspects of IBM mainframes without making the substantial investments IBM has made and continues to make. In doing so, they are violating IBM's intellectual property rights.
Those conspiracy theories are a distraction, especially in the IP context: should there be an infringement (which is at least doubtful), it would also be committed by the 11-year-old Hercules open source project. The TurboHercules product is Hercules as far as the software is concerned (alternatively available for GNU/Linux or Windows).

The part about "violating IBM's intellectual property rights" is very aggressive. Who knows whether the patents IBM believes are infringed are even valid? I talked in 2006 to a company that's pretty big in the smartphone business and they said a patent law firm had told them there's about a 75% or higher chance that a European patent someone asserts against an alleged "infringer" isn't even valid. So many patents get thrown out due to prior art, lack of inventive step, incomplete disclosure, or for other reasons.

Even if IBM asserts patents that survive an effort to bust them, there's still the question of whether they're actually infringed. Hercules is an emulator, so it isn't a CPU "clone": it has completely different inner workings. It takes the CPU instruction set as input in order to perform functions, just like a JavaScript interpreter takes commands in that programming language as input. What Hercules does internally may very well be so fundamentally different from what IBM's System z CPU does that the patents obtained on one don't read on the other.

The Supreme Court of the United States made a very appropriate statement in its 1966 ruling on the Brenner vs. Manson case: "A patent is not a hunting license." This meant to say that a patent isn't supposed to monopolize the right to solve a problem: it's supposed to relate to one particular solution. IBM's patents, if even valid, may protect its CPU. But they certainly can't prevent others from solving the same task -- the interpretation of a machine language instruction -- with different means.

The developers of Hercules haven't commmitted any wrongdoing by developing their solution independently. The investigation is all about whether IBM harms competition. I believe that's the case, and that's why I'm glad the competition probe was launched.

In the course of it, IBM may even learn that a patent is not a bullying license.

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