Why the Turbo Hercules case matters

Why the Turbo Hercules case matters

Summary: Patents are monopolies on inventions which are limited in time, but what IBM seems to have done is to patent each addition it made to its mainframe technology, the way movie companies re-assert copyrights on old movies so the public domain can't exist.

SHARE:

When I wrote about Florian Mueller's defense of TurboHercules yesterday I got a reaction I describe as "crickets." Which is to say, no reaction.

That's a shame because while I kept my tone light there are serious issues involved.

Most reporters think the central issue is whether IBM broke its promise to the open source community by asserting patent rights it previously claimed it would not assert against open source. IBM says it did not break its promise. Mueller says it did.

What really seems at issue, according to a long post Hercules founder Roger Bowler posted, is that he sought to turn his project into a company. He writes many IBM employees have used his software and IBM even published a chapter on it in one of its Redbooks.

It was only when Hercules became TurboHercules that IBM objected, Bowler said. That could prove important to a court. Patent lawyers don't care whether your rip-off is made for business or pleasure, and failure to assert rights can often put them at risk.

Of course, a patent case is not yet before any court. After IBM waved its patents at Bowler he filed a complaint with the EC's anti-trust authorities, saying IBM was illegally tying its mainframe software to its hardware.

It's important that TurboHercules fired the first real legal shot, and that it did so in Europe. Europe has lately been more aggressive against U.S. tech monopolies than American authorities, and software patents are illegal there.

They may soon be illegal here. Bilski vs. Kappos, challenging the whole idea of software patents, was heard by the Supreme Court in November. A decision could come any day defining not just the legality of such patents but their limits, what types of software can be patented and what types can't be.

I also want to call attention to what's being protected here. Mainframes have been around for decades. IBM fought the law for decades to protect its monopoly, and the fight only ended when it ceased being an issue in computing's evolution.

Yet the market remained. It still remains. There are big profits in backwaters. We are not arguing about the state of the art.

Patents are monopolies on inventions which are limited in time, but what IBM seems to have done is to patent each addition it made to its mainframe technology, the way movie companies re-assert copyrights on old movies so the public domain can't exist.

Thus we come to the most basic question in intellectual property. What are its time limits? The purpose of legally created monopolies is to encourage people to create more stuff. How does it benefit society if a monopoly becomes eternal, if it continues to exist for generations after the creator has died?

I'm not trying to answer many questions here. You need to answer them. In a democracy you have the power. Your silence gives elites the power to ignore you.

Topics: IBM, Hardware, Legal, Open Source, Patents

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

50 comments
Log in or register to join the discussion
  • Patents and Copyrights should last no more than 14 years

    The "life plus seventy years" length of copyright is obscene. Patents should be difficult to get and limited in term.
    sismoc
  • RE: Why the Turbo Hercules case matters

    "It was only when Hercules became TurboHercules that IBM objected, Bowler said. That could prove important to a court. Patent lawyers don?t care whether your rip-off is made for business or pleasure, and failure to assert rights can often put them at risk."

    This will just serve as a warning to all companies that allow any open source coding that they MUST immediately shut them down or be prepared to lose a revenue stream for the sake of FOSS. As all corporations are required to try to improve shareholder equity, FOSS should/will become a problem to any company that makes both hardware and software.
    Fark
    • Did you reply to the wrong article, or are you just a troll?

      Either way, flagged.
      AzuMao
      • Why?

        Please explain?
        Fark
        • Because you either replied to the wrong story or are purposefully trolling.

          [b] [/b]
          AzuMao
          • My post relates to the original story...

            Sorry Mao, I think my post relates fine with the original report. You may disagree - but that's not trolling.
            Fark
          • In what way?

            How does claiming that everyone MUST stop using/making open source software relate to anything in the story or even in the replies to it?

            Looks to me like a bad attempt at trolling.
            AzuMao
          • Not trolling

            While I disagree with Fark's assertion, I must conceede that he is on topic.

            He refers to the article. "When Herculules became TurboHercules...". IBM ignored the FOSS project, but when that FOSS project tried to monitize itself by becoming a company, IBM became threatening.

            To Fark, this apparently indicates that since all FOSS projects may move from project to company, the only way an existing corporation can prevent this kind of threat is to sue the project, and not wait for it to become a company. Therefore, it's in the corporate intrests to stop FOSS in its tracks.

            However, I disagree with this assessment. IBM uses Hercules, which is FOSS. It is in their best interests to help maintain and support this project because it's a tool they find very useful and which doesn't cost them a lot. TurboHercules is a company that uses a variant of Hercules to do the same job as IBM. This threatens IBM's business model and they let their displeasure be known. TH responded by suing.

            The problem is not the code, nor the patents, but the business. Former friends have now become enemies.

            Therefore, while Fark is , in my opinion WRONG, he/she is on topic, and therefore not trolling.

            That said, your response to Fark was very trollish. You'd have done better to simply point out the flaws in Fark's arguement than to accuse Fark of being a troll.
            mheartwood
          • @mheartwood They're being sued for making it stop being FOSS.

            How could anyone honestly (as in, by mistake, not a deliberate attempt to troll) get from that to "everyone must make their stuff stop being FOSS"?


            The obviously conclusion is to keep it FOSS, or not infringe patents.
            AzuMao
      • RE: Why the Turbo Hercules case matters

        both just as easily as damaging a "real"<a href="http://bitlabmalmo.net/"><font color="light&amp;height"> about it</font></a> is bank that <a href="http://donnygoines.net/"><font color="light&amp;height">website</font></a> attacked from the <a href="http://www.emberburning.com/"><font color="light&amp;height">baby support</font></a> from any soldier <a href="http://www.theclydefitchreport.com/"><font color="light&amp;height">site</font></a> to the light <a href="http://www.skksc.com/"><font color="light&amp;height">rider</font></a> is the thing
        gorians
  • "Real" vs "Intellectual" Property

    Uh huh.

    On patents, i'm not sure where i stand - but author's life plus *something* (not necessarily seventy years) is quite reasonable for books and other such IP - to impose such limits as you advocate is stealing from authors' heirs.

    My brother is a best-selling SF author. You're saying that, if he died tomorrow, his daughters should get nothing from his writings beyond their mid-twenties.

    But i'm sure you would have no problem, if he were a builder who put up apartment houses, with him leaving them to his heirs who would continue to collect revenue from them in perpetuity.

    Intellectual Property is just as much property as "real" property.
    fairportfan
    • "Intellectual Property" is just an imaginary concept

      "Intellectual Property" does not exist! It is a construct of laws and tradition, not reality!

      The whole purpose of "Intellectual Property" is to promote the creation of new ideas, not reward the heirs of the creators. It is society as a whole that is supposed to benefit, not the grandchildren of an author or inventor.
      sismoc
      • Thank you (nt)

        nt
        Economister
      • By your definition - many things don't exist...

        Marriage is a construct of law and religious tradition. Tell your wife your marriage doesn't really exist and then check out your new reality. =D

        Civilization is a construct of law and tradition. It's just buildings and people and traditions and laws. Does that make it not a reality?

        By your definition - the only things that exist can be held and possessed or taken by force. I think that's a very limited view.

        Profit motive (no always money) has encouraged some of the greatest advances in our civiliation. The best way to foster that profit motive is to grant people rights to their labor - even it cannot be picked up or touched.
        Fark
        • Can I steal your Marriage or your Civilization?

          The answer is NO. They are concepts, not objects. They are not physical in the same sense as a building or an automobile.
          sismoc
          • You can damage both just as easily as damaging a "real" thing <nt>

            :)
            daftkey
          • By attacking them, yes, but not by copying them.

            [b] [/b]
            AzuMao
          • You could make a case for damage by copying in marriage..

            For example, how has the institution of marriage fared in the last 50 years by unmarried people "copying" it (by living common-law, etc)?

            I'd argue that this copying has caused very serious damage to the entire concept - something that used to be a sacred institution is now merely a piece of paper to many.
            daftkey
          • @daftkey

            To the copiers it may be.

            But to the people marrying for religious reasons it isn't.
            AzuMao
        • This isn't about whether or not people have rights to what they made.

          It's about other people not having rights to make something themselves if whatever it is has some abstract similarity to something else.


          It would be like if only Ford was allowed to make cars with ignition keys.
          AzuMao