Has IBM turned its back on open source?

We all remember the story of David and Goliath, a tale that has become a trite metaphor for battles between the weak and the powerful. Knowing who’s the big guy is easy, but in the realm of corporate combat, it isn’t always clear which group has virtue on its side.

Consider the case of IBM versus TurboHercules, a tiny open source company trying to make a living selling mainframe emulator software. TurboHercules and its supporters claim that IBM is using its considerable patent muscle to stifle competition and browbeat the little company and, by extension, the open source community. IBM sees TuboHercules as a knockoff artist seeking to cash in on billions of dollars of Big Blue R&D and characterizes it as a Microsoft proxy.

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There’s some truth, I think, in both sides of this complex argument. There’s also a big dose of overheated rhetoric around the issue, none of it helpful. Is IBM really a “hypocritical enemy of open source” and are we about to lose the right to open Word and Excel documents with OpenOffice? Is fair to compare TurboHercules, the product of 11 years of work, to the maker of “cheap knock-offs of brand-name clothing or apparel”? And can a tiny company really deal a serious blow to IBM’s mainframe business?

I’m never shy about expressing an opinion (that’s an understatement), but in this case, I’d rather present the facts as I know them and let you readers decide who — if anyone — is right.

Has IBM broken with open source? Roger Bowler founded the Hercules open source project about 11 years ago, and more recently he started TurboHercules in an attempt to make money from his work. The French company’s software is an emulator that allows IBM’s mainframe z/OS operating system to run on commodity servers.

According to Bowler, all he wants to do is strike a licensing deal for his customers with IBM: “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.”

IBM refused, and when Bowler asked the company to reconsider, it refused again, sending him a letter last month that has outraged people like well-known open source activist Florian Mueller. First the letter, which you can read for yourself [PDF]: In it, IBM tells Bowler that it won’t reconsider its decision to refuse a licensing deal and goes on to cite 173 patents that the emulator software might be infringing.

“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,” writes Mark Anzani, CTO for the mainframe group. True enough — IBM has invested huge amounts of money here, and it rightfully claims to have brought the mainframe business back from the dead and made it profitable.

In turn, Bowler filed an antitrust complaint with the European Commission (the European Union’s regulatory arm) in late March. “IBM is preventing customers from using [TurboHercules] by tying IBM’s mainframe operating system with IBM hardware,” he says. However, he also notes that “we are not asking that IBM be subjected to punishing fines or anything like that.” (IBM is already facing an inquiry by the U.S. Department of Justice related to licensing of its mainframe software.)

Those are facts everyone (I think) can agree on. But what they mean is up for heated debate. To begin with, Mueller and others are furious, claiming that IBM is reneging on its well-publicized pledge [PDF] not to assert any of 500 patents against open source software companies. As Mueller points out, three of the patents cited in the letter to Bowler are among the ones IBM agreed not to assert.

That’s undeniably true, but IBM says that the letter was not a lawsuit — and that’s true too. However, I think that when a big company sends a little company a list of patents it may be infringing and adds language that says the list is “nonexhaustive,” it’s probably not a stretch to see it as a legal threat.

Still, that’s a long way from launching an all-out attack on open source — and the sky-is-falling rhetoric of Mueller (whom I respect, by the way) seems way over the top: “Do you still want to be able to open Word and Excel documents with OpenOffice? Do you want to run a heterogeneous network of Windows and Gnu/Linux machines and exchange data freely? If the answer is yes, then you should care about Hercules,” writes Mueller.

Microsoft’s role is a red herring IBM has aggressively fought off claims that it is using its dominant position in the mainframe business to unfairly stifle competition. And because its legal position seems strong in the United States, Penny Jackson, founder of the respected Groklaw blog, figures that’s why the complaint was filed abroad.

IBM says it has every right to decide to whom it sells a license and to protect its intellectual property. It expressed that position in a statement it has been circulating: “Being the first to develop an idea often takes enormous resources — resources that would be difficult to justify if the invention could immediately be copied and sold by another for a fraction of the development cost. Allowing IBM to choose for itself whether to license that technology encourages innovation and competition for new ideas.”

That’s a reasonable argument (I’m not saying it’s correct or incorrect), but IBM goes over the top when it claims that TurboHercules’ attempt to make money in mainframe emulation is “not really any different from those who seek to market cheap knock-offs of brand-name clothing or apparel.” Cheap knockoffs of Gucci bags might sell, but how likely are companies that need mainframe capabilities to buy a gaudy piece of junk?

Then there’s the whole issue of Microsoft’s role in this, a point IBM has made much of. Microsoft is undoubtedly happy to stir the pot and complicate matters for a major rival. Maybe Hercules is a proxy for Microsoft — but so what?

Microsoft doesn’t have a lot of skin in this game; the chances of a major defection from the mainframe to servers running emulation software are remote. Even if that happened, the operating system wouldn’t be Windows; it would be z/OS. Seeing this issue as part of some cosmic chess game muddies the issue and helps no one.

As I said, this is very complex; maybe there’s no villain here at all. I hope that mainframe users and members of the open source community will weigh in on this one, here or elsewhere, in a civil way.

I welcome your comments, tips, and suggestions. Post them here so that all our readers can share them, or reach me at bill.snyder@sbcglobal.net.

This article, “Has IBM turned its back on open source?,” was originally published by InfoWorld.com. Read more of Bill Snyder’s Tech’s Bottom Line blog and follow the latest developments in open source at InfoWorld.com.