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Open Source Start-Up Complains About IBM To Antitrust Regulators

The little company says IBM is blocking it from selling its open source solutions

TurboHercules SAS, the Paris-based concern started last year to commercialize the 10-year-old open source Hercules mainframe project, filed a formal antitrust complaint against IBM with the European Commission Tuesday.

The little company says IBM is blocking it from selling its open source solutions.

Its software, which reinterprets or emulates the mainframe hardware architecture, makes it possible for mainframe applications to run on non-IBM operating systems such as the Mac OS, Windows and Linux on x86 and x64 hardware, a lot cheaper proposition for mainframe users and in some cases reportedly more performant.

TurboHercules is charging IBM with abusing its market dominance by refusing to let its mainframe customers run z/OS on anything other than IBM mainframe hardware. It says this is tying, a mortal sin for a dominant vendor.

It also charges IBM with recently introducing undocumented software interfaces and protocols to lock out competitors and prevent the open source project from maintaining full compatibility.

It says both these practices were outlawed by the undertaking IBM gave to the EC back in 1984 to resolve the EC's antitrust finding against the company and by the EC's 2004 decision against Microsoft upheld on appeal by the Court of First Instance - a decision IBM encouraged, one might add.

TurboHercules wants the EC, known for having an open source protectionist streak - look at how it almost blocked Oracle's acquisition of Sun over MySQL - to make IBM stop tying and open up its interfaces and protocols like they used to be back before 2002 when IBM introduced z/OS.

The start-up also wants IBM ordered to license it what it needs to compete on fair, reasonable and non-discriminatory terms. It's not asking for any freebies, simply a fair shake.

Roger Bowler, the mainframe maven who started the Hercules project in 1999, says that when he started TurboHercules last year, he asked IBM to license z/OS to customers for use with Hercules at prices and on conditions set by IBM provided they were fair and reasonable.

That was last July. It took IBM four months to answer. In November IBM's mainframe CTO Mark Anzani rejected the request and accused Hercules of infringing IBM's intellectual property.

Anzani is quoted as saying that Hercules open source emulator "requires IBM intellectual property and you will understand that IBM could not reasonably be asked to consider licensing its operating system for use on infringing platforms."

Bowler says in a blog dated Tuesday that "We wrote back immediately to Mr. Anzani to express our surprise that, after 10 years during which Hercules has acquired thousands of users around the world, including many within the ranks of IBM itself, IBM has now suddenly discovered that we are violating its intellectual property. In our reply we asked that IBM identify the specific property we allegedly violated in order that we could investigate that claim. In the unlikely event that IBM's assertions were found to have merit, we asked further that IBM consider adding such intellectual property to their much-publicized and deservedly admired ‘non-assertion' pledge to the open source community - the ‘IBM Statement of Non-Assertion of Named Patents Against OSS' published at www.ibm.com/ibm/licensing/patents/pledgedpatents.pdf."

Bowler is still waiting for IBM to tell him what IP Hercules is supposed to infringe, which is why he says TurboHercules has complained to the EC.

Once IBM asserted infringement and wouldn't identify it, he says, "We then realized that our only hope as a small company was to file a complaint with the European Commission."

So let me get this. IBM, the open source hero, is doing exactly what SCO was pilloried by the open source community for doing when it wouldn't say - because of its lawsuit against IBM - what lines of Linux code were supposedly stolen from Unix. Does that mean that the open source community is now going to tar and feather IBM and ride it out of town on a rail à la SCO?

And the complaint that IBM shows no reluctance in using its patents as an offensive anticompetitive weapon - instead of using patents to ensure compensation when other people use its inventions - should scare the bejaysus out of everybody since IBM owns patents on just about everything. According to TurboHercules, IBM is simply saying that we own the patents and you can't compete with us under any circumstances. Goodness gracious, whatever happened to fostering innovation around inventions?

Like MySQL, Hercules was developed in Europe and has been maintained by global volunteer community for the last 10 years. It is said to be used by 5,000-10,000 users worldwide.

The Computer & Communications Industry Association (CCIA), whose similar complaint to the US Justice Department kicked off an on-going investigation, says TurboHercules' anticompetitive complaint resembles its own and other complaints made to the EC the last couple of years. It claims it shows a "systemic pattern of behavior by IBM directed at anyone who threatens its mainframe monopoly."

CCIA CEO Ed Black also claims that "IBM is speaking out of both sides of its mouth when it comes to its support of the open source community and its commitment to the responsible use of its patent portfolio. The fact that IBM would actually assert that an open source project infringes its patents is proof that IBM's support of open source stops the minute it threatens IBM's lucrative mainframe monopolies."

CCIA is supported by IBM foes like Microsoft.

Steven Friedman, president of T3T, which filed one of the other complaints CCIA is talking about last year, said, "I'm obviously very happy to see a formal complaint from another company that, like T3, is seeking to restore competition to the mainframe market. In reading today's press, TurboHercles seems to have suffered from the same IBM anticompetitive tying of hardware and software conduct as T3. Further, TurboHercules seems to support everything T3 said in our complaint."

In its complaint TurboHercules positions IBM as "super-dominant" under EU law because it holds 100% of both the mainframe operating systems market for running so-called legacy workloads and the mainframe hardware market for running these same legacy workloads.

When it suits it, IBM likes to dilute the market and lump mainframes in with other servers to make its share seem smaller but, as TurboHercules told the EC, no other system can claim to hold 80% of the world's data or represent an investment worth $5 trillion by its users or have a lock on 200 billion lines of code.

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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