Google drip-feeds the open source community with periodic patent pledges that don't really matter

Today Google announced that it pledged 79 more patents to open source under the terms known from its March 2013 pledge relating to ten patents, which I described as a PR stunt. Based on the announcement it appears that these are typical enterprise software patents, which makes sense given that Google acquired them from IBM and CA -- companies that have, as Google notes, themselves made certain open source patent pledges.

Google itself points to a study according to which a modern-day smartphone potentially infringes on 250,000 patents. (I'm not saying that this is the right number, but the number is high for sure.) Smartphones are multifunctional. Still there's a lot of software patents out there that cover technology that is usually not implemented in a mobile device. In light of this, I can't see why it makes a significant difference (let alone a material difference) whether Google "donates" 10 patents (as it did in March) or 89 (the ones from March plus the ones pledged today). Relative to the number of patents that a piece of software potentially infringes, and also relative to tens of thousands of patents held by Google (including the ones for which it acquired Motorola Mobility), contributing to open source software projects is not significantly safer than it was before. (I'm not taking a position here on whether contributing to open source is safe or unsafe; this is just about whether today's pledge is a game-changer, and it definitely isn't.)

It also doesn't make Google a major benefactor of the open source community. About eight years ago, IBM had pledged 500 patents, and Sun approximately 1,600. I criticized those pledges as well, at the time. But 500 is more than 89, and 1,600 is a lot more than 89.

The problem with those patent pledges is usually not what's in them; it's what's not in them. For whatever reason, Google still reserves the right to assert tens of thousands of patents against open source projects.

If Google wants to help others (open source or not) navigate the patent thicket, why doesn't it lead by example and list all of the patents it holds? Why doesn't it officially and actively support of Rep. Peter Deutch's End Anonymous Patents Act? (By "support" I mean deeds, which speak louder than words.)

Why doesn't Google just "donate" one patent (Motorola's pager synchronization patent), which has been repeatedly found invalid (and is without the slightest doubt going to be invalidated by the Federal Patent Court of Germany in November) but which Google is still enforcing trollishly against Apple, to the community of German iCloud users? That would make a difference because these people would get push notifications of new emails back, and since this is just a dead patent walking, there would be no cost involved from a reasonable and cooperative patent holder's perspective.

It's still not clear what Google's motive is. Apparently it plans to make more announcements like the one today. What does it hope to achieve? Devalue intellectual property in general (though Google advocates excessive royalty levels for standard-essential patents)? Divert attention away from yesterday's defeat? I don't know. Not yet, at least. But I do know that today's announcement has no significant value to open source, and no impact whatsoever on Android-related patent litigation.

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Google's promise not to assert 10 patents against open source software: just a PR stunt

In 2005 certain companies (IBM, Sun Microsystems, Computer Associates) promised not to assert select patents against open source software. They all got some publicity for their announcements, but after a while it was easy for everyone to see that those pledges had not changed anything, particularly because they involved relatively limited numbers of patents. The problem with patent pledges and pools is not what's in them -- it's what's not in them. As a result, those pledges didn't prove to be helpful in any way (I'm sure that not even one lawsuit has been avoided because of those pledges) and quickly fell out of favor. For almost eight years no major industry player joined these companies in publishing a list of patents that would not be asserted against open source.

Then came Google. Today it pledged a total of ten patents. Ten. By comparison, IBM had pledged 500, and Sun approximately 1,600.

Not only in absolute numbers but also relative to portfolio size, Google's pledge is the least generous one ever. I criticized IBM for making available only about 1% of its portfolio; in Sun's case, the pledge actually involved far more than 1% of the company's patents at the time. For what I know, Google owns at least 17,000 patents (including, of course, the ones it acquired as part of the Motorola deal and a series of transactions with IBM). 10 patents are a small fraction of a percent of Google's portfolio.

In 2011 Google gave nine patents to HTC, which immediately sued Apple over them (that was the idea behind the deal). A company that gives nine patents to a single Android OEM to sue only one particular rival could pledge more than ten patents to open source if it wanted to.

Why should a concept that failed with far larger numbers of patents eight years ago suddenly be the answer, with a far smaller number of patents involved this time around?

I don't know what Google has in mind as the next step. Will it make more patents -- possibly all of its patents -- available on these terms in an attempt to commoditize and devalue intellectual property and innovation? Or will it continue to keep the good stuff back (search-related patents, for example)?

Whatever Google's plan may be, an initial pledge of 10 patents is much ado about almost nothing. The focus should be on what companies do with their overall patent portfolios, not what they do with a tiny number of patents.

There's an example of an open source patent promise covering an entire portfolio: the Microsoft Community Promise was not limited to a particular list of patents. It's a promise Microsoft made (when it formed a partnership with Novell years ago) not to sue individual open source developers over any of its patents (and not just ten patents). By contrast, Google reserves the right to sue open source developers over at least 17,000 patents it owns but hasn't pledged.

I'd actually like to know how many patents -- and which ones -- Google really owns. It has done a number of patent purchases over the last few years, not just the acquisition of Motorola Mobility and certain transactions with IBM. But I'm not aware of a complete and public list of all the patents Google controls. Transparency is key. Also today, Microsoft launched its Patent Tracker tool, which gives every interested party access to a complete list of patents held by Microsoft. Its patent list is available as a comma-separated value (CSV) file, which can be viewed, searched and sorted with spreadsheets and database programs. I downloaded it, opened it with Excel, and saw that it has almost 39,000 rows. Google also provides a patent search: it has indexed various patent registers. But Google's patent search won't tell you how many patents Google owns because many patents bought on the secondary market aren't formally reassigned to their new owner in the patent database until they are asserted in court. Google itself knows which patents it owns. If it wanted to do so, it could make a list available to the public in no time. If it doesn't do so in the near term, it apparently isn't committed to transparency in patent ownership.

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

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

But I didn't think my LinkedIn contact list was "important" until I saw this BoycottNovell piece focusing on a contact I recently added to my LinkedIn list: Erika Mann, a former Member of the European Parliament and now Executive Vice President of the Computer & Communications Industry Association (CCIA).

As long as 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 are (at the most) shown only to those on the contact lists of the two connecting people, semi-public things are catapulted into the blogosphere for no legitimate reason, other people than me are affected and things are generally getting out of hand. More importantly than that, BoycottNovell's speculation is fundamentally flawed, as I'll explain quickly.

I had actually mentioned in my 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 not too much" makes little sense to me.

Today's BoycottNovell story on this matter has the headline: "Florian Müller Seemingly Connected to CCIA (Microsoft Proxy)" The summary, correspondingly, claims that "Müller set up his anti-IBM blog when he 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 Mann, CCIA’s Executive Vice President and head of CCIA’s European office (Microsoft and CCIA work together [1, 2]). That was just before he started to attack IBM like he also attacked Oracle some months ago (along with the GPL). He even created a new blog for this purpose

Now the facts:

• I have known Erika Mann not just recently but actually since 2004. Then-FFII President Hartmut Pilch and I met her in fall 2004 in the European Parliament's Brussels building and discussed the then-ongoing legislative process concerning software patents with her. She was an MEP from 1994 until 2009.


• On November 9-10, 2004, the FFII held a conference in Brussels on "Regulating Knowledge: Costs, Risks and Models of Innovation". One panel of that conference was chaired by Erika Mann, who was then the chairman the European Internet Foundation (EIF), whose members already then included IBM as well as Microsoft and many others. There was an EIF event on software patents in the evening of November 10, 2004, thus after the closing of the FFII's conference, and Erika Mann invited all participants in the FFII event to attend her conference as well. I found this FFII mailing list announcement of her participation, also mentioning the EIF event. That week I was a speaker at both conferences (FFII and EIF). There are countless witnesses so that no one can ever doubt that fact and therefore my long-standing contact with Erika Mann.


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


• In 2007, the European Parliament made a resolution on the future of professional football (soccer) in Europe. Erika Mann was not a member of the lead commmittee (Culture & Education) but she is a soccer fan and took a personal interest in the related issues (which are predominantly antitrust issues, by the way). I defended the interests of my long-standing friends in the management of Real Madrid, the world's most famous soccer club, in this context. Two members of Erika Mann's staff in her constituency office in Germany were Real Madrid fans. We were in contact on this policy area as well, not just software patents.


• After she left the European Parliament last summer, I tried to reconnect with her on LinkedIn. I found a profile but it only had one connection, so it looked inactive.


• I didn't know she was now at the CCIA until I learned about it when she was quoted in media reports on TurboHercules' antitrust complaint against IBM, especially this IDG story on March 23, 2010.


• I looked up LinkedIn again, saw that she had a profile there that was up to date and now had a number of connections (so unlike before, it was an active profile), 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 my blog was coordinated with Erika Mann in any way. Nor with any other CCIA official.


• I can't see how the CCIA could be equated with Microsoft. Its members (here's the complete list) include, besides Microsoft, big Microsoft competitors such as Google and Oracle, other big players such as eBay, Fujitsu, Intuit, T-Mobile and Yahoo, and the FOSS community may take special note of the fact that Red Hat is a CCIA member as well. The notion of a group assembling members of this nature and stature being a Microsoft front is downright absurd. 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 are some people on my list whom I've never met in person, and some whom I haven't seen in many years.

So let's focus again on the enormous threat that IBM's patents - 99% of them unpledged - constitute to Free and Open Source Software. IBM has tens of thousands of patents, obtains several thousand new ones year after 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 defense clause was never triggered by TurboHercules, as I wrote earlier. And contrary to IBM's gross misrepresentation, IBM alleged an "intellectual property" infringement before TurboHercules ever said "patent", "intellectual property" or anything like it. That's something you can verify here. There were two IBM letters, the first one already asserted an infringement, and both of them have been made public.

Those are the real issues.

--- Update ---

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

I have just read your response. Therein, you don’t deny what I wrote (instead you attack straw men, e.g. I didn’t argue that you had not known Erika Mann beforehand).

The BoycottNovell piece didn't claim that there had not been any prior contact. However, I have explained why the LinkedIn connection was 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 was the insinuation that the timing of the LinkedIn connection and the timing of the blog indicated anything relevant to BoycottNovell's conspiracy theory.

"Be sure to follow the links and see my explanation of why Microsoft funds CCIA and Black in a very special way; don’t conveniently omit details, please."

I don't omit anything that's relevant but of course I have no reason to deal with utterly unconvincing conspiracy theories when I have actually explained, without knowing the internals of CCIA at 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 are big, powerful, famous players in there, some of them fierce Microsoft competitors.

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

Unfortunately, this question at this point (after 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 parts of the question, contact with TH and contact with CCIA, unambiguously in the upper part of this posting.

"Have you been in touch with Carina Oliveri?"

My LinkedIn list might also contain the answer to that question, but it's an irrelevant question because I have not denied in the original posting (see further above) the fact that I added two of TurboHercules' founders to my LinkedIn contact list months ago, so if I answered questions about additional TurboHercules people, it wouldn't add anything.

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

End of discussion as far as I'm concerned.

The pledged patents are important in one way and unimportant in another

Since there is so much talk about it, let me point out (as I did on previous occasions) that the pledged patents IBM threatened to use against TurboHercules are important in one way and unimportant in another. Both at the same time.

• Those two patents are important because they have to do with the extent to which IBM can be trusted. IBM wanted to curry favor with the community but didn't honor its promise.
  
  After that happened, the proper way for IBM to handle this would have been admit right away (on Tuesday, when its letter was published and IBM issued its first official reaction) that it should never have tried to intimidate TurboHercules with those pledged patents. It should not have listed those patents at all, or if it had listed them, it should at least have added a footnote to make it clear that those patents would never be asserted against FOSS.
  
  However, the way IBM did react only made things worse -- and the question of the pledge more important than it would otherwise have been.
  
  IBM still hasn't said certain key things in an unequivocal form, such as that the Hercules project undoubtedly qualifies for the benefits of the pledge and that TurboHercules hasn't done anything that would trigger a defense clause. IBM still hasn't said how it may still use its patents against Hercules. IBM has only created more confusion. That approach all by itself shows a lack of good intentions and greatness on IBM's part.


• At the same time, IBM's entire original patent pledge and the two patents from the pledged list that IBM waved to TurboHercules are unimportant in the sense that we are talking about a pledge covering only about 1% of IBM's total patent portfolio, and only about 1% of the patents listed in IBM's letter to TurboHercules were pledged patents.
  
  You take 500 patents out of IBM's patent portfolio and there are still 50,000 or so other IBM patents that continue to be a threat to FOSS. The whole pledge was an IBM PR stunt and, given the small number of patents, a drop in the ocean from the beginning.
  
  You take the two pledged patents out of the list IBM of 173 patents (including applications) that IBM sent to TurboHercules, and 99% of the problem is still there.
  
  If Hercules infringed only a single one of those patents related to the mainframe CPU instruction set, it could no longer be used. It simply wouldn't be able to execute any significant mainframe software because every significant piece of software will typically make use of each machine language instruction somewhere in its code.
  
  So the actual patent problem here would essentially be the same 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 patents 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 will do with its unpledged patents. I realize that IBM is unwilling to give crystal-clear and reliable answers to pledge-related questions. That fact is obvious now, so we really need to focus on the actual threat, of which the pledged patents only represent a negligible part.

After so much discussion about 2 patents, what about the other 171?

TurboHercules' entire correspondence with IBM available online

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

In its first official reaction to the publication of the latest letter, 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 are available, it's easy to demonstrate that the sentence quoted above is wrong. A few commentators, who were unfortunately misled by IBM's statement, suggested that IBM didn't threaten TurboHercules with patents but basically just answered a request for information. This fallacy can be dealt with very quickly.

In TurboHercules' first letter to IBM, TurboHercules inquired about a way to let customers run IBM's operating systems, especially z/OS, on Hercules. Neither the word "patent" nor the broad and general term "intellectual property" comes up. It's particularly easy to check because that document can be searched automatically with the PDF Reader.

Four months later, but still four months before the letter I published on Tuesday, IBM then replied with this letter. That document is not searchable because it's a digital image, but it's just one page.

The second paragraph of that letter acknowledges what TurboHercules really wanted to know:

In your letter, you ask whether IBM would consider licensing its operating systems for use on the TurboHercules platform in order to help TurboHercules SAS (Turbo) establish a commercial business.

The third paragraph then begins with the following infringement assertion:

First, you state that Turbo "implements the instruction set of IBM mainframes on Intel-based servers". We think that mimicking IBM's proprietary, 64-bit System z architecture requires IBM intellectual property, and you will understand that IBM could not reasonably be asked to consider licensing its operating systems for use on infringing platforms.

It's not too hard to interpret, 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 an infringement, not in a very specific form initially, but without a doubt, IBM brought up an "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 patents, copyright, trade marks, trade secrets, design patterns. The term "intellectual property" is so broad and unspecific that Richard Stallman, the founder of the software freedom movement, even rejects it entirely as 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 was surprised in the sense that he couldn't see why his project would all of a sudden infringe any rights if no such claim had been made during all of that time (during which there can be no doubt that IBM was well aware of it; IBM had temporarily even recommended the Hercules emulator in one of its so-called Redbooks).

That's why Roger wanted to know more about this. So he wrote another letter to IBM, and the key passage for the patent issue is this one:

We also 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 servers - might infringe certain IBM intellectual property. Hercules has been widely used in the development community, as well as within IBM itself, over the past ten years. Prior to receiving your letter, we were not 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 so we can investigate that claim.

Let me repeat a previously quoted one of IBM's gross 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 letter that would enable IBM to reasonably say that TurboHercules was surprised that IBM had "intellectual property rights on [the mainframe] platform".

TurboHercules of course assumed that the world's largest patent holder would own mainframe-related patents. TurboHercules of course knew that a company the size of IBM would protect software copyright and other rights.

TurboHercules was, however, quite understandably surprised that a FOSS project that had been around since 1999 would now suddenly infringe rights (and not before), especially since this had not been under cover but IBM had been well aware of it all the time, about which there can be no doubt. And TurboHercules couldn't 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 are:

• TurboHercules never said "intellectual property" or "patent" or anything like it before IBM said "intellectual property" and "infringing".


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


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


• TurboHercules didn't, contrary to what a small minority of commentators believes, beg IBM to come forward with a patent list. IBM made an unspecified infringement assertion. In my opinion there was nothing unclear about the fact that an infringement was asserted. What was unspecified was the kind of "intellectual property" that was meant. Not even the category of "intellectual property" was clear after IBM's first reply.


• IBM then provided the patent list and repeated its infringement assertion with the letter I published on Tuesday.

IBM now tries to downplay its action of threatening by waving patents, saying that the patent list was only provided on request. Even if the thing about the request were true (which it is not), it would be a hostile, threatening act against a FOSS project. But as the exchange of letters undoubtedly shows, IBM brought up a patent infringement (without even saying clearly it was about patents, but that's what was meant) before TurboHercules ever inquired about it.

IBM told TurboHercules in its first letter: "Don't mess with us because we're armed and can kill you any moment." Of course, "armed" can mean lots of thing: a gun? a knife? a dagger? two or more different weapons? And TurboHercules was wondering: after 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.

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Clarification of terminology: 'assert' vs. 'sue'

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

I see some commentators getting confused about what IBM was doing and how it related to what IBM had committed not to do. This is not only relevant in connection with the broken pledge (which as I pointed out in my previous post accounts for only 1% of IBM's total patent portfolio and also only approximately 1% of the patents with which IBM threatens TurboHercules). It's also important for the purpose of assessing how far IBM has already gone.

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

There are many who rush to IBM'S defense, mostly IBM-aligned people but also a few people whom I regard as usually very reasonable, who say that since IBM has not (yet) filed a formal lawsuit for patent 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, such as patents, it means to defend or maintain those rights. Filing an actual lawsuit is only the last resort if someone defends or maintains rights. "To assert" also includes earlier stages, such as calling someone to claim an infringement of rights. Or writing a letter to that effect. In other words, there are no formal requirements. It's a matter of common sense where an assertion begins.

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

The pledge was a commitment not to assert, not only a covenant not to sue

IBM's open source patent pledge was a commitment not 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 was much broader and further-reaching than a mere covenant not to sue would have been.

No one forced IBM to say "commits not to assert". They could also 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 won't sue, but which other bad things do you intend to do?

IBM's letter to TurboHercules was not a lawsuit because that term is narrowly defined, but it was an assertion because that term is broadly defined and IBM has to honor its own words.

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

I repeat myself but let's never lose sight of the fact that IBM only pledged 1% of its patent portfolio and only 1% of the patents with which IBM threatens Hercules are pledged patents. At some point we must all move on and talk much more about the other 99% of the issue (the non-pledged patents), but that one percent of the issue has a lot to do with IBM's credibility and I still see some people discussing that aspect. Both aspects are important, although in different ways.

Why waving with patents is bad enough

It's a black-and-white kind of perspective to say that as long as IBM hasn't formally sued, things are fine.

It would also be binary thinking to say that IBM doesn't want to destroy Hercules in its entirety, so things are fine.

IBM probably doesn't mind people using Hercules to acquire mainframe-related knowledge. The mainframe sectors suffers from a severe lack of trained professionals. Hercules provides a free-of-charge way to learn about mainframe technology on a cheap PC. IBM would rather control that field with its own emulators or other offerings, but this is not where Hercules really hurts them too much.

It's also possible that IBM doesn't mind software developers using emulators for development purposes. Other platform vendors are also quite liberal in that kind of context. After all, every additional piece of software written for the mainframe platform benefits IBM. I'll end this paragraph like the previous one: IBM would rather control that field with its own emulators or other offerings, but this is not where Hercules really hurts them too much.

What IBM definitely doesn't want Hercules to do is foray into the field of productive use. That's where IBM wants to force its customers to use IBM hardware - and only IBM hardware. There's an exception for the use case of disaster recovery in the z/OS licensing terms that suggests are slightly more liberal approach to that one. However, they could change those terms anytime, and what the z/OS licensing terms (obviously) don't address is whether IBM will refrain forever from using patents against disaster recovery solutions.

So what I believe IBM is doing here is using its patents to intimidate. They have sent out a signal that they draw the line where their core business interests are concerned.

They want 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 do so, they will do whatever they can: be it the z/OS licensing terms or be it patents.

Anyone who thinks that intimidation with patents can be accepted as long as 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 an ammunition belt with 173 bullets, would you also feel that everything's fine because this behavior is not identical to firing a shot?

IBM confused and confusing - but definitely still hostile

Big Blue Confusion.

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

IBM scrambled to come up with an answer. Late on Tuesday IBM issued a statement that was contradictory in itself. On the one hand, they said they stood by the patent pledge they made five years ago. On the other hand, they came up with some theories that weren't in the original pledge. In other words, if they were going to stand 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 are deserving of the benefits of the pledge, and which ones are not.

eWeek was first to publish IBM's reply late on Tuesday. At the end of this article, you can find a whole paragraph that talks about how IBM might consider TurboHercules not 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 wasn't 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 words, the world's two leading financial papers, independently of each other, didn't put any stock into the most essential part of IBM's statement.

Eric Raymond, an open source luminary often referred to by his initials ESR, wrote in his blog that IBM was "digging itself in deeper" with its "retroactive attempt to deprive the pledge of actual effect" since the only criterion that the original pledge established was that a project's license had to be an open source license. ESR wonders "when the adult supervision at IBM is going to step in."

When ZDNet asked me what I thought of IBM's reply, I also pointed out that the word "qualified" was not in the language of the pledge. "The problem is that 'qualified' becomes an arbitrary and discriminatory decision on their end."

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

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

Ultimately, IBM may have realized that it couldn't 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, VP Open Systems Development, IBM Linux Technology Center.

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

What is not mentioned is that there is one and only one exception in the original pledge: if someone asserts patents or other intellectual property rights (copyright, for instance) against open source, IBM reserves the right to hold its patents against him. Again, that is the only exception provided for by the pledge. And TurboHercules has not asserted any patents, copyrights, trademarks or other intellectual property rights against anyone.

Some are getting confused because TurboHercules lodged a complaint with the European Commission over the anticompetitive impact of IBM's behavior. Would that mean TurboHercules sort of attacked and could no longer benefit from the pledge? Absolutely not. The pledge only talked about an intellectual property rights attack against open source. It didn't talk about reporting to the police an IBM car that is illegally parked somewhere. Reporting illegal parking simply isn't an assertion of intellectual property rights. Nor is the lodging of an antitrust complaint.

Getting back to the IBM letter, it ends with the promise that "IBM will not sue for the infringement of any of those 500 patents by any Open Source Software."

Actually, that concluding statement is again a redefinition of what IBM originally promised. The original promise was not just that IBM would not sue for patent infringement. It was that IBM would not assert those patents. That is an important difference because the original promise "not to assert" is a broader one than now saying "will not sue for the infringement". The letter IBM sent to TurboHercules was certainly an assertion, even though they haven't sued so far.

Jim Zemlin (Linux Foundation) acting as His 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 still has not said clearly and affirmatively that TurboHercules meets the one and only criterion defined in the pledge (the software is under a license that was formally recognized as an open source license at the relevant point in time, and still is, of course). Nor has IBM said clearly and affirmatively that TurboHercules has not 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. Do we - the non-IBM part of the world - now have to figure out which division of IBM calls the shots? So far there are actually very strong indications that those open source people at IBM don't have much to say compared to their mainframe counterparts.

But even if this confusion were to be resolved with an unequivocal and definitive statement by IBM's CEO himself, it wouldn't mean, contrary to what Jim Zemlin says to please his biggest sponsor, that ”[f]ortunately all of us can breathe easy".

Those are 500 patents. What about the other 50,000 or so that IBM owns? Open source is safe from 1% of the threat, not from 99%?

The patent pledge was a drop in the ocean from the beginning.

Out of the 173 patents (67 of them in the application stage) IBM asserted against Hercules, 2 would be removed from the list. That would also just amount to 1% of the issue. 99% of the problem would still be there.

If Hercules infringed only a single one of those patents related to the mainframe CPU instruction set, it could no longer be used. It simply wouldn't be able to execute any significant mainframe software because every significant piece of software will typically make use of each machine language instruction somewhere.

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

IBM still hostile, dangerous and utterly hypocritical

The bottom line is that IBM continues with the strategy that was apparent five years ago with the patent pledge. Simply put, IBM wants to fool the FOSS community. It's hypocritical. It portrays as a generous gesture something that doesn't make FOSS developers and users safer in any noteworthy way.

IBM still has hostile intentions because it wants to protect its mainframe turf no matter what. IBM is still 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 patent holders might do.

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