This just in. Florian Mueller is still mad at IBM.
"IBM still hostile, dangerous and utterly hypocritical," he writes, in asserting its patent rights against TurboHercules when it did not assert them against Hercules, the open source project on which it is based.
The real news is that Eric Raymond agrees with Mueller. The author of The Cathedral and the Bazaar, which did so much to define open source as distinct from Richard Stallman's free software ideal, says IBM is digging itself into an ever-deeper rhetorical hole.
"IBM now appears to be claiming the right to nullify the 2005 pledge at its sole discretion, rendering it a meaningless confidence trick," Raymond writes. "’Im watching this and I’m wondering when the adult supervision at IBM is going to step in."
Actually, we're all adults. IBM wrote its original pledge based on the idea that open source communities, and the companies arising from them, would not be going into its vault and making off with its crown jewels.
Fact is, IBM cannot allow its mainframe monopoly to be broken by a rival company. Billions of dollars in software and hardware sales are at stake here.
It would be like Microsoft allowing the re-engineering of and introduction of a compatible Microsoft Windows operating system. Or Apple letting the Mac OS go entirely open source. Or Oracle letting go of its intellectual property rights.
You may say, they have no right. You may say, IBM said at the time the pledge was legally binding.
Many will. Raymond again. IBM's actions are a "graceless attempt to nullify the entire pledge, a move which couldn’t offend the open source community more if it were calculated to do so."
Raymond and Mueller are morally and, perhaps legally, correct. But IBM made a unilateral pledge. It's not a contract. And I'm certain that in the IBM boardroom they're adding, it's not a suicide pact, either.
I believe IBM would rather take a hit to its open source credibility than steer into a financial iceberg. I am wondering how, or whether, this might all end up in court, because it's not in court yet. It's before the European antitrust authorities.
My guess is that while those authorities may chastise IBM, and may even fine it, they won't free TurboHercules from IBM's legal grip. And if open source advocates then march over to Hercules, the open source project (as they are doing), IBM could close it down and take that hit, too.
Yes IBM is wrong. Yes IBM is acting badly. Yes, Mueller and Raymond are right.
But for IBM to do otherwise, it seems to me, would be to break a responsibility higher than that to open source, which is the one it owes its shareholders.
What concerns me most right now is the chilling effect all this will have on other companies which have intellectual property rights. Will we ever see such a broad-brush pledge as IBM gave in 2005 again? Or will companies see this precedent as a cautionary tale, never to let go of what they feel is theirs?