IBM Takes Legal Aim at Open Software Project. It's About Time

(MoneyWatch)  Something that has worried the free and open source software (FOSS) community for years was the prospect that some huge company with a huge list of patents would send its lawyers knocking. That's finally happened in a big way, as IBM (IBM) sent a warning letter, including page after page of patent listings, to a French startup, TurboHercules SAS, which is trying to develop an open source emulation of IBM mainframe systems. And maybe that's not such a bad thing.

Some FOSS activists have been trying to publicize the situation. I received an email from one, Florian Mueller, this morning. Apparently, TurboHercules, based on emulation software that's been around for years, was trying to work with IBM so it could use Hercules as the basis of a mainframe disaster recovery system, particularly for clients that couldn't afford a second mainframe.

The mainframe business is a profitable one for IBM, which ties its software to its own hardware through licensing and makes it difficult for customers to port their own internally-written mainframe applications to other hardware. (Ars Technica has a good summary of the situation.)

As Mueller wrote:

This proves that IBM's love for free and open source software ends where its business interests begin. In market segments where IBM has nothing to lose, open source comes in handy and the developer community is courted and cherished. In an area in which IBM generates massive revenues (an estimated $25 billion annually just on mainframe software sales!), any weapon will be brought into position against open source. Even patents, which represent to open source what nuclear arms are in the physical world.

I have some sympathy for the open source view. However, for the concept to work in the commercial world, companies must still learn to act as businesses. In this case, TurboHercules wanted to move into an area that would give some certain customers a cheaper alternative to buying additional products from IBM. What did the company think that Big Blue would do? Say, "Sure, come in and take the business because we already make enough?" It was an unrealistic expectation. Why would a large company give up potential revenue, particularly when it would feel pressure to allow other organizations to take the same deal? And how could it legally, as management has a legal fiduciary responsibility under U.S. law to maximize value for the investors?

If FOSS companies want to compete, they'll have to do it the old fashioned way: creating their own intellectual property and using that as a leverage against better-established corporations. Sometimes the wise choice will be to avoid a market because getting in commercially will be impossible. Or it might be that a TurboHercules notices that all the patents asserted are in the US, possibly leaving room to operate in other parts of the world. Of course, depending on how the Supreme Court ruling in the Bilski case -- expected within the next week or two -- it is possible that many software patents in this country will simply go out the window.

Image: Osmar Schindler, 1888, public domain, via Wikimedia Commons