Comment by FlorianMueller | Hacker News Reader

Comment by FlorianMueller | Hacker News Reader

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You are wrong about IBM not having been the aggressor. Here's a documentation of the entire correspondence: http://fosspatents.blogspot.com/2010/04/turbohercules-entire...

TurboHercules didn't make a "request" to IBM as a "bluff". Instead, IBM threatened TurboHercules with a previous letter.

Also, TurboHercules never attacked IBM with patents (I guess TurboHercules doesn't even own any patents). All that TurboHercules did later was to lodge an antitrust complaint with the European Commission. However, lodging a complaint with a regulator is not an act of aggression. Regulatory agencies will only take action if a company's conduct is suspected of being anticompetitive and unlawful. The European Commission launched an investigation in July: http://fosspatents.blogspot.com/2010/07/european-commission-...

That would not have happened if there weren't serious concerns over what IBM is doing. The outcome of the in-depth investigation remains to be seen, but the European Commission doesn't launch such investigations unless there's at least a strong indication of possible wrongdoing.

lodging a complaint with a regulator is not an act of aggression. Regulatory agencies will only take action if a company's conduct is suspected of being anticompetitive and unlawful.

Wow.. that's an interesting spin.

The cynic in me wants to say "lodging a lawsuit is not an act of aggression. Courts will only take action if a company's conduct is proved to be unlawful."

Contrary to my statement being "an interesting spin", your statement displays a total lack of understanding for antitrust law and patent law.

Worse than that, you don't even seem to understand that antitrust regulators aren't courts of law.

If you sue someone over patent infringement allegations, and as long as you satisfy some basic criteria (such as "Rule 11"), there will be a lawsuit. It's a given that the court will hear your case. Period. And it's only because you as the patent holder want to assert your rights, regardless of whether that particular case is good or bad for the economy at large, and for society.

By contrast, an antitrust complaint like the one TurboHercules brought against IBM (many months after the initial - even if then not yet totally specific - patent infringement threat) is lodged with a regulatory agency that doesn't have an obligation to follow up. They can always say there's no public interest in what you complain about. In that case, you could try to bring an antitrust lawsuit, and then you just satisfy some basic criteria and a court will hear the case. But if you ask an antitrust regulator to act, the regulatory agency will look at your complaint and its merits, and will compare it to other complaints and their merits, and will then decide to pursue only the most important issues, i.e., the ones that the economy at large, and society, have the greatest benefit from.

Depending on the jurisdiction, the antitrust regulator will either have to go to court at some point (unless a case is settled before) or, such as in the EU's case, the regulator may be in a position to impose remedies and fines, but all of that will be subject to review by a court of law if the affected company appeals.

I understand perfectly well.

Complaining to an antitrust regulator is analogous to making a police complaint. The police may or may not do anything, in which case you can always file a civil lawsuit.

Trying to present making a complaint as some kind of innocent move is misleading at best.

Is there any way for IBM to notify someone of potential infringement that you wouldn't call a threat?

There can be different objectives of informing someone of potential infringement:

1) making someone aware but saying right away that it's fine (that's what IBM as a self-declared friend and protector of open source should have done in this context)

2) making someone aware and offering a license deal on fair, reasonable and non-discriminatory (FRAND) terms; that would have made sense in this case, too, since TurboHercules stated in its first letter that it wanted to reach an agreement with IBM on such terms

3) making someone aware while simultaneously pursuing exclusionary, anticompetitive objectives

I like the first possibility, I can accept the second one if the offered terms are truly FRAND, but I despise the third option.

How about option

4) making someone aware and giving them the opportunity to cease and desist from commercial infringing activity

Is that a threat?

It's one thing to tolerate infringement from a community open-source project. It's another thing to let someone commercialize that technology and bundle it with hardware when a fully proprietary competitor would reasonably expect to be sued in to bankruptcy in no time flat. Should the fact that part of your business is "open" give the whole business immunity from patent infringement claims?

Also, IBM isn't "a self-declared friend and protector of open source". They only made a limited non-aggression pledge. They aren't (and aren't trying to be) in the same category as the FSF and EFF, or even RedHat.

Your point 4 is just a different way to phrase my point 3, the worst option of all.

Similarly, your distinction between a "community open-source project" and someone bundling it with hardware makes no sense. Companies bundling open source software with hardware or commercializing it in other ways are simply part of the community as long as they comply with open source terms.

So any use of software patents is unduly "exclusionary [and] anticompetitive", especially when applied to commercial users of open-source software?

I hadn't really picked up a strong "they're all wrong" vibe from what I've seen of your coverage of the smartphone mess.

You're now trying, not for the first time in this discussion, quite desperately to pretend not to understand what I say.

You previously just phrased my 3rd option differently to artifically create a 4th option.

Now you don't take into account that I explained 3 different approaches: grant a free license, grant a FRAND license, and prohibit any implementation of the patented invention only to foreclose competition, which is exactly what IBM (a monopolist in the context we're discussing) tried. Fortunately, the European Commission is investigating IBM for suspected violations of EU competition law.

You're implying that any use of patents to stifle competition is probably illegal, and should certainly be investigated. That rather thoroughly contradicts the definition of "patent".

Further, IBM's decade of tolerating Hercules development suggests that they do see a difference between community infringement and commercial infringement.

Your first paragraph is, once again, a complete strawman as opposed to what I said or implied. Not granting a license to a patent on FRAND terms is certainly anticompetitive, but not necessarily illegal. If, however, a monopolist does so in order to foreclose competition, then it raises serious antitrust issues and can, as the result of a regulatory process or lawsuit, be deemed illegal.

Your second paragraph doesn't make sense to me given that the patents asserted by IBM in that correspondence were related to the Hercules open source emulator, not specific to any commercial offering. The maintainer of the Hercules project explained on his blog why this was an attack on the Hercules project as a whole: http://ibmvshercules.com/

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