[Nottingham] [Rant] Software patents abuse to defend an old monopoly?

[TJ]

On Tue, 2010-04-06 at 22:03 +0100, Martin wrote:
> 
> *IBM tears up open source patent pledge, claims FOSS*
> http://www.theregister.co.uk/2010/04/06/ibm_hercules_project_patents/
> 
> ####
> IBM snubbed a request from the British founder of TurboHercules SAS to
> let it offer a disaster recovery product for IBM mainframe users and
> instead accused the French open source startup of violating its
> intellectual property.

Several issues here that make this interesting:

1. US patents listed may not have equivalents in the EU, or be
valid/enforceable (so-called 'software' or 'business-metho' patents).

2. Many of the listed patents are for hardware; Hercules is a software
emulator. Can and will an EU court accept that emulation of instructions
to achieve the same end-result is the same as physical implementations
of a method in silicon? The chilling effect of that on other emulators
such as KVM/QEMU would be immense if accepted.

3. The Hercules project has been around and recommended by IBM for
'big-iron' engineers and students for many years.

4. The 'Streisland effect' of the fuss this is kicking up will cost IBM
big $$$ in PR credibility, probably more than it might 'lose' from IBM's
mainframe customers using Hercules for disaster recovery back-up.

5. More IBM customers will discover Hercules as a result and probably
increase the run-rate of those testing Hercules.

6. This will certainly give the EU competition commission a kick to
investigate TurboHercules complaint about IBM's 100% monopoly. It might
lead to IBM having to live with hardware plug-compatible competitors
once more as it did in the 1980s.

Regarding The SCO Group:

Their attack on Linux was effectively ended in 2007 when Judge Dale
Kimball gutted their claims in the SCO vs IBM case, and left mostly IBM
counter-claims.
The SCO Group has not been able to show any source code copied from
UNIX/UnixWare in the Linux kernel. It has only been able to show a few
identical lines in header files - outside the scope of copyright in most
legal jurisdictions.
Their claim that they had to the right to tell IBM not to contribute
code from AIX (which IBM created and owns) into the Linux kernel was
shot down.
And now the jury trial in SCO vs Novell has found that Novell did not
transfer any copyrights in 1995 to Santa Cruz Organisation (later
Tarantella) and therefore the sale of the UNIX/UnixWare business to
Caldera (now The SCO Group) also didn't transfer the copyrights.

The only uncertainty left in the case is whether Novell could be ordered
by the judge to transfer the copyrights due to the clause in the APA
about "copyrights necessary for SCO (Santa Cruz Organisation) to carry
on its business".
As that business was sold on to The SCO Group I doubt the APA can be
used to force Novell to cede copyrights to a 3rd party (one with no
involvement in the 1995 APA). Also, Santa Cruz Organisation wasn't in
the business of suing Linux users so it can't be argued that copyrights
should have transferred because it needed them for that.

And add to all that the fact that not even Novell was sure, in 1995,
what copyrights it owned for UNIX SysV because of the earlier AT&T vs
Berkeley law-suit. Some of the code is under a BSD license; other parts
are public domain.

The SCO Group is teetering on the brink of Chapter 7 bankruptcy
(liquidation) now, only saved by a $2m loan from Ralph Yarro, one of the
major shareholders in the company and instigator of the entire legal
attack along with the now-former CEO Darl McBride.