Of patents, open source, and IBM

After covering the war of words over IBM's use of patents in a business dispute with French start-up TurboHercules and giving my two cents on this open-source family fight, I'd hope the matter would die down. I was wrong.

Florien Mueller, the founder of the European NoSoftwarePatents campaign, who started this most recent open-source internal fuss, has now published an analysis which claims that some of the patents "IBM asserted against Hercules may also [jeopardize] other major Free and Open Source Software (FOSS) projects, including but not limited to OpenBSD, Xen, VirtualBox, Red Hat Enterprise Virtualization, MySQL, PostgreSQL, SQLite and Kaffe."

It's not that there's any proof IBM is actually considering suing anyone on these grounds, as Mueller admits, but nevertheless Mueller claims that "considering that IBM has already used them in a threat letter to TurboHercules, those patents must be considered particularly dangerous."

Sigh. All software patents, as far as I'm concerned, are dangerous to all software development. This isn't just an open-source problem. Ironically, Microsoft, which keeps spreading anti-Linux and open source patent FUD, often ends up on the losing side of other patent fights. Its losing streak to i4i concerning its Microsoft Office formats may yet cause Office users real problems as some formats may need to changed.

I really can't see IBM using patent claims in an ongoing business fight with TurboHercules, which I might note IBM didn't start, as indicating that IBM might be readying a patent war against open-source companies. As I've said before, IBM makes billions from open source. Some people might kill the goose that lays golden eggs. IBM isn't that dumb.

Mueller wrote to me and said, "You look at TurboHercules as collateral damage and the grand picture is that you see all that IBM does for open source. I look at TurboHercules as a matter that could set an awful precedent with implications for other FOSS projects viewed unfavorably by entrenched monopolies/market leaders and I believe I'm not holding IBM to any higher standards than the ones it requires of others in the industry, especially in the (admittedly very important) context of interoperability. I'm basically just holding IBM to the standard it has been pretending to have and demanding of others for many years."

I have to disagree. What IBM is doing is using some of its patents as a stick in a business fight. That's not a threat against open-source companies. It's business as usual. Patent fights are fights about money. In these battles, patents are just one more weapon. I wish they weren't but, so long as the U.S. is stuck with its defective patent system, we're going to continue to see IBM, Microsoft, and other companies beating on each other with patent claims.

I just really can't see why IBM should be singled out as patent public enemy number one for open source because of this one business dust-up. I also can't help notice, as Pamela Jones of Groklaw recently pointed out, that there's reason to believe that TurboHercules isn't so much an open-source company as it is a proxy, along with OpenMainframe, in a battle between IBM and Microsoft over cloud-computing.

Again, I find myself asking, "Who's really the open-source enemy here?" It's not IBM.

Copyright © 2010 IDG Communications, Inc.

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