Patent/License question
tonycrossuk
Mar 5, 2002
Ok, I think I understand that Hercules may infringe IBM patents and
so it would be unwise to use it commercially. (Right?)
BUT
If I have a license to run OS/390 on, say, a 9672 does that give me
the legal right to run the same OS/390 on Hercules?
AND
If I have a license to run OS/390 on, say, a 9672 does that give me
the legal right to run Linux for S/390 on Hercules?
I'm asking because I'm looking at providing some Linux for S/390
Installation classes and I want to use Hercules to do the online
exercises. If my client has an OS/390 license can I legally use
Hercules to run the Linux installation (without worrying about
infringing IBM patents)?
I realise that a lawyer is probably needed to fully answer this, but
what does the team think?
Many thanks for your advice........Tony Cross
7:47 am
Re: Patent/License question
Jay Maynard
Mar 5, 2002
On Tue, Mar 05, 2002 at 03:47:17PM -0000, tonycrossuk wrote:
> Ok, I think I understand that Hercules may infringe IBM patents and
> so it would be unwise to use it commercially. (Right?)
Nobody but a patent attorney is competent to have an opinion on this one way
or the other, at least not in the US, and I have not consulted one.
> If I have a license to run OS/390 on, say, a 9672 does that give me
> the legal right to run the same OS/390 on Hercules?
No. OS/390 is licensed to a specific processor. There may be limited
exceptions for testing of disaster recovery procedures and the like, but
that's something each licensee should decide for himself after reading the
license.
> If I have a license to run OS/390 on, say, a 9672 does that give me
> the legal right to run Linux for S/390 on Hercules?
Yes, but not because they have a license for OS/390...rather, *anyone* has
the legal right to run Linux on Hercules.
Having an OS/390 license has nothing to do with it.
> I'm asking because I'm looking at providing some Linux for S/390
> Installation classes and I want to use Hercules to do the online
> exercises. If my client has an OS/390 license can I legally use
> Hercules to run the Linux installation (without worrying about
> infringing IBM patents)?
YOu can do this even without the OS/390 license. Until IBM complains to you
about allegedly infringing their patents, you have no reason to believe that
you are doing so. I am not aware of IBM going after anyone for allegedly
violating their patents by running Linux on Hercules. I do know that several
Linux/390 and z/Linux developers use Hercules as their development platform.
Short answer: Go ahead and do it.
3:27 pm
Re: Patent/License question
Greg Smith
Mar 5, 2002
It is possible (probable?) that Hercules infringes on IBM patents.
I wouldn't know, 'cause I haven't read any of 'em... this is
deliberate due to the sorry state of patent & copyright law,
esp with the dmca in the picture. I could be wrong, ianal.
A lot of us here are some of IBM's strongest supporters; why
else would we write something so we can ipl at home too ?
Are we the types that make sense for IBM to chill ? I contract
to the gov so I know first hand that common sense doesn't have a
lot to do with what goes on in the real world.
It's somewhat unfortunate that commercial emulators started
showing up just about the time Hercules became viable (I'm
guessing around release 1.61 or so). It had never really crossed
my mind that commercial emulators would be viable... guess that's
why I'm a programmer and not an investor.
My personal feeling is that Hercules will be tolerated as long as
it doesn't deprive IBM or its business partners of real income.
I would be very hesitant to run os/390 on Hercules and earn money
at the same time. Linux-390, on the other hand, is probably closer
to the other end of the spectrum.
All the opinions above are, of course, my own, and I'd be rather
disappointed if others didn't disagree with me ;-)
Greg
tonycrossuk wrote:
> Ok, I think I understand that Hercules may infringe IBM patents and
> so it would be unwise to use it commercially. (Right?)
>
> BUT
>
> If I have a license to run OS/390 on, say, a 9672 does that give me
> the legal right to run the same OS/390 on Hercules?
>
> AND
>
> If I have a license to run OS/390 on, say, a 9672 does that give me
> the legal right to run Linux for S/390 on Hercules?
>
> I'm asking because I'm looking at providing some Linux for S/390
> Installation classes and I want to use Hercules to do the online
> exercises. If my client has an OS/390 license can I legally use
> Hercules to run the Linux installation (without worrying about
> infringing IBM patents)?
>
> I realise that a lawyer is probably needed to fully answer this, but
> what does the team think?
>
> Many thanks for your advice........Tony Cross
>
4:13 pm
Re: Patent/License question
Peter D. Ward
Mar 5, 2002
Jay Maynard wrote:
> Until IBM complains to you
> about allegedly infringing their patents, you have no reason to
> believe that
> you are doing so. I am not aware of IBM going after anyone for
> allegedly
> violating their patents by running Linux on Hercules. I do know that
> several
> Linux/390 and z/Linux developers use Hercules as their development
> platform.
>
> Short answer: Go ahead and do it.
Linuxgram issue 121 pointed out language in the Linux/390 code which
reportedly states:
"Elements of Linux for S/390 which
utilise [sic] internal details of the S/390 system remain the
intellectual
property and copyright of IBM, notwithstanding the (GNU) licence
[sic]"
Not sure how the above language impacts on the answer to your question,
but at risk of a Phil attack, I suggest that you write them and ask for
a written response.
Regarding licensed OS's, I was thinking about the DR rationale that is
mentioned on the list. Didn't or doesn't Amdahl and Hitachi pay
millions in license fees to IBM for software on their internal-use
machines? Couldn't they have used the same argument by buying an IBM
mainframe and run that OS on the box they were developing, explaining to
IBM that they were building a DR solution so no license was necessary?
Seems if it works here, it should have worked there too.
PDW
[Non-text portions of this message have been removed]
7:43 pm
Re: Patent/License question
Peter D. Ward
Mar 5, 2002
Greg Smith wrote:
> It's somewhat unfortunate that commercial emulators started
> showing up just about the time Hercules became viable (I'm
> guessing around release 1.61 or so).
Greg,
Flex-ES (nee Open/370) has had production placements since about 1994.
It has had ESL licensing accorded since 1998, with a number of trade
articles at that time.
Peter
[Non-text portions of this message have been removed]
7:55 pm
Re: Patent/License question
g4ugm
Mar 6, 2002
> Regarding licensed OS's, I was thinking about the DR rationale
that is
> mentioned on the list. Didn't or doesn't Amdahl and Hitachi pay
> millions in license fees to IBM for software on their internal-use
> machines? Couldn't they have used the same argument by buying an
IBM
> mainframe and run that OS on the box they were developing,
explaining to
I think the DR clauses are new.
> IBM that they were building a DR solution so no license was
necessary?
Can't see that standing up in court. (legal opinions not really
welcome)
> Seems if it works here, it should have worked there too.
>
> PDW
One odd thing I remember from many years ago when I worked closley
with IBM was that IBM had to license patents from Amdahl to build
mainframes. I seem to recall it had patents on using a second
system to perform diagnostics and control of the primary.
And a search of the US Patent Database for Amdahl reveals some
interesting items, for example:- 4,979,106 Customization of a
system control program in response to initialization of a computer
system.
In fact from browsing around it looks like any thing other than the
most simple program probably violates some patent or other as
posted....
Dave.
1:34 am
Re: Patent/License question
Peter D. Ward
Mar 6, 2002
g4ugm wrote:
> > Regarding licensed OS's, I was thinking about the DR rationale
> that is
> > mentioned on the list. Didn't or doesn't Amdahl and Hitachi pay
> > millions in license fees to IBM for software on their internal-use
> > machines? Couldn't they have used the same argument by buying an
> IBM
> > mainframe and run that OS on the box they were developing,
> explaining to IBM that they were building a DR solution so no license
> was
> necessary?
>
> I think the DR clauses are new.
Not as far as I can tell. I do recall our licenses for S/390 software
having DR clauses, and that would be early 90's, so if the "using it for
DR" gambit had some validity for what is discussed here then I wonder if
Hitachi et al would have been able to take advantage of it rather than
pay the millions they did for running IBM software on their internal
machines.
PDW
[Non-text portions of this message have been removed]
6:58 am
Re: Patent/License question
Roger Bowler
Mar 6, 2002
Peter D Ward wrote:
>Hitachi et al would have been able to take advantage of it rather than
>pay the millions they did for running IBM software on their internal
>machines.
Just out of interest, Peter, how much did Fundamental Software pay IBM to
license the rights to implement ESA/390?
And how much have you paid them for the right to implement z/Architecture?
Also, how much do you pay them to run OS/390 on your internal development
machines?
Perhaps we can better understand the points you are trying to make if we
know where you are coming from.
Roger
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7:09 am
Re: Patent/License question
Peter D. Ward
Mar 6, 2002
Roger,
As I imagine Hitachi and Fujitsu did, we have addressed issues, subject
to the usual confidentiality requirements. It wasn't cheap or easy or
timely, but it seemed required of us at the time. I recall reading
that sometime back someone tried to get around it and it cost them on
the order of 1 billion bucks after the fact. Roger, I can't claim to
know anyone else's business, so I really can't claim to know what is
required for you. Seems to me that IBM is the only one that can tell
you their business ... Ignore all the other armchair quarterbacks, but
on the flip side, don't presume to know IBM's intent without having
asked. Have you had a history of written communication with them? If
so, have you had any written response?
Peter
Roger Bowler wrote:
> Peter D Ward wrote:
> >Hitachi et al would have been able to take advantage of it rather
> than
> >pay the millions they did for running IBM software on their internal
> >machines.
>
> Just out of interest, Peter, how much did Fundamental Software pay IBM
> to
> license the rights to implement ESA/390?
> And how much have you paid them for the right to implement
> z/Architecture?
>
> Also, how much do you pay them to run OS/390 on your internal
> development
> machines?
>
> Perhaps we can better understand the points you are trying to make if
> we
> know where you are coming from.
>
> Roger
>
>
>
>
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7:38 am
Re: Patent/License question
Jay Maynard
Mar 6, 2002
On Tue, Mar 05, 2002 at 10:43:29PM -0500, Peter D. Ward wrote:
> "Elements of Linux for S/390 which
> utilise [sic] internal details of the S/390 system remain the
> intellectual
> property and copyright of IBM, notwithstanding the (GNU) licence
> [sic]"
These are not necessarily mutually exclusive; this could refer to code
within Linux/390 that is written by IBM. IBM can own the copyright to such
code and still make it available under the GPV, yet still be legal for
others to use it.
> Regarding licensed OS's, I was thinking about the DR rationale that is
> mentioned on the list. Didn't or doesn't Amdahl and Hitachi pay
> millions in license fees to IBM for software on their internal-use
> machines? Couldn't they have used the same argument by buying an IBM
> mainframe and run that OS on the box they were developing, explaining to
> IBM that they were building a DR solution so no license was necessary?
> Seems if it works here, it should have worked there too.
Amdahl and Hitachi paid license fees to run production workloads on their
machines. The DR exception is intended to cover DR testing *only*, *not*
running production workloads - for values of "production" that include
development and other more normal uses.
(Disclaimer: This is my understanding of the standard license agreement. If
you choose to rely on the DR testing provision, read your license(s) and
decide for yourself, possibly with the advice of a competent attorney, if it
applies to your intended use.)
Really, Peter...you're stretching now.
5:26 pm
Re: Patent/License question
Jay Maynard
Mar 6, 2002
On Wed, Mar 06, 2002 at 10:38:51AM -0500, Peter D. Ward wrote:
> Ignore all the other armchair quarterbacks
Good advice, Peter. I intend to start taking it, starting with you.
> don't presume to know IBM's intent without having asked.
IBM's intent is clear from their (total lack of) actions.
5:28 pm
Re: Patent/License question
Roger Bowler
Mar 6, 2002
Peter D Ward wrote:
>we have addressed issues, subject to the usual confidentiality requirements
OK, so that's one thing established. You're not going to tell us. Exactly
as I expected. Which does make me wonder, how can your customers be sure
that it's legal to run Flex/ES? How do they know that you aren't violating
any patents, IBM or otherwise? It seems to me that using your software
might be a bit of a commercial risk for a customer. However, this is none
of my business, I'm not really that interested in Fundamental Software
personally.
>Have you had a history of written communication with them? If so, have you
had any written response?
Peter, you do seem remarkably interested in poking around in areas that are
none of your business.
Roger B.
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9:00 am
Re: Patent/License question
Roger Bowler
Mar 6, 2002
On Tue Mar 5, 2002 in hercules-390, Tony Cross wrote:
>Ok, I think I understand that Hercules may infringe IBM patents
>and so it would be unwise to use it commercially. (Right?)
Wrong. No more than it would be unwise to use Flex/ES
(because how do you know it doesn't infringe IBM patents?).
Or to buy a Hoover vacuum cleaner (it may infringe Dyson's
patents), or a Panasonic TV set (how do you know it doesn't
infringe Hitachi or Sony patents?)
>If I have a license to run OS/390 on, say, a 9672 does that
>give me the legal right to run the same OS/390 on Hercules?
It would be rather surprising if it did, but then the world is full
of surprises.
>If I have a license to run OS/390 on, say, a 9672 does that
>give me the legal right to run Linux for S/390 on Hercules?
Everyone has a legal right to run Linux/390 on anything.
OS/390 has nothing to do with this.
>I'm asking because I'm looking at providing some Linux for
>S/390 Installation classes and I want to use Hercules to do
>the online exercises.
I don't know why you're worrying, because this seems to me
to be one of the least contentious uses imaginable! You are
not the only trainer using Hercules. OS/390 training would
be better, to my way of thinking, but I suppose we have to flow
with the times :-)
Roger B.
10:19 am
Re: Patent/License question
rogerbowler
Mar 6, 2002
--- In hercules-390, Peter D. Ward wrote:
> Didn't or doesn't Amdahl and Hitachi pay
> millions in license fees to IBM for software on
> their internal-use machines? Couldn't they have
> used the same argument by buying an IBM mainframe
> and run that OS on the box they were developing,
> explaining to IBM that they were building a DR
> solution so no license was necessary?
> Seems if it works here, it should have worked there too.
Hercules on a par with Amdahl and Hitachi?
I feel we may be entering the realms of fantasy here.
Roger Bowler
4:54 am
Re: Patent/License question
edamjr
Mar 7, 2002
--- In hercules-390@y..., "Peter D. Ward" <pdw@m...> wrote:
>
>
> g4ugm wrote:
>
> > > Regarding licensed OS's, I was thinking about the DR rationale
> > that is
> > > mentioned on the list. Didn't or doesn't Amdahl and Hitachi
pay
> > > millions in license fees to IBM for software on their internal-
use
> > > machines? Couldn't they have used the same argument by buying
an
> > IBM
> > > mainframe and run that OS on the box they were developing,
> > explaining to IBM that they were building a DR solution so no
license
> > was
> > necessary?
> >
> > I think the DR clauses are new.
>
> Not as far as I can tell. I do recall our licenses for S/390
software
> having DR clauses, and that would be early 90's, so if the "using
it for
> DR" gambit had some validity for what is discussed here then I
wonder if
> Hitachi et al would have been able to take advantage of it rather
than
> pay the millions they did for running IBM software on their internal
> machines.
Peter,
Slight topic-drift but I'm curious: folks who sell Flex (I mean
actually hawk it round potential customers giving demos on laptops
etc.) must have something to demonstrate - presumably they are
running z/OS, z/VM etc etc. Presumably they are licensed copies. What
license are they using? I doubt it qualifies for PWD (it's selling,
not development of a z/OS application!), and the cost of any other
license would be an astronomical sum per salesdroid, quite
uneconomic. So what license do they have? Is there some kind
of 'demo' license from IBM which very few folks know about? (and no
I'm not talking about the well-known IBM Internal Use Only DemoPgk
stuff).
I will fully understand if you tell me to bugger off and mind my own
business in no uncertain terms, but 'the only way to get pertinent
information is to ask impertinent questions' :-)
(and I will confess the extremely silly part of me would have enjoyed
walking around Linuxworld with my Sony Vaio tied to my hat running -
*demonstrating* - Herc-OS/390, if I could but get a license to do
such a thing)
Mike
5:26 am
Re: Patent/License question
Peter D. Ward
Mar 7, 2002
edamjr wrote:
> slight topic-drift but I'm curious: folks who sell Flex (I mean
> actually hawk it round potential customers giving demos on laptops
> etc.) must have something to demonstrate - presumably they are
> running z/OS, z/VM etc etc. Presumably they are licensed copies. What
> license are they using? I doubt it qualifies for PWD (it's selling,
> not development of a z/OS application!), and the cost of any other
> license would be an astronomical sum per salesdroid, quite
> uneconomic. So what license do they have?
I believe it in part derives from their status as an IBM business
partner, although I do not know all the particulars. As an aside, I do
not believe resellers to production prospects drag along a laptop to
show the production bona fides of Flex. (It wouldn't convince me!)
PDW
[Non-text portions of this message have been removed]
5:44 am
Re: Patent/License question
Peter D. Ward
Mar 6, 2002
Roger Bowler wrote:
> Which does make me wonder, how can your customers be sure
> that it's legal to run Flex/ES? How do they know that you aren't
> violating
> any patents, IBM or otherwise? It seems to me that using your
> software
> might be a bit of a commercial risk for a customer.
Among other factors, the fact that IBM will quote software for use on
the box offers face validity to the notion that some accomodation has
been reached.
> Peter, you do seem remarkably interested in poking around in areas
> that are
> none of your business.
I thought I was answering questions that you yourself had asked me.
Sorry if my answer seemed to overstep.
PDW
[Non-text portions of this message have been removed]
10:02 pm
Re: Patent/License question
Roger Bowler
Mar 6, 2002
On Thursday 07 March 2002 06:44, Peter D. Ward wrote:
> edamjr wrote:
> > slight topic-drift but I'm curious: folks who sell Flex (I
> > mean actually hawk it round potential customers giving demos on
> > laptops etc.) must have something to demonstrate - presumably
> > they are running z/OS, z/VM etc etc. Presumably they are
> > licensed copies. What license are they using?
>
> I believe it in part derives from their status as an IBM business
> partner, although I do not know all the particulars.
Well then, I think you should make it your business to find out the
particulars, Peter, and let us know. You are always very ready to
poke around and probe the licensing status of Hercules -- now that
the boot's on the other foot, let's see if you have some answers
regarding your company. We can start with the question of how can
your customers be sure that Flex/ES doesn't violate any IBM or
other patents. And I'm sorry, "commercially confidential" won't
wash. You're in a non-commercial open forum here. If you want
commercial confidentiality, stay out of the ring.
Roger B.
11:25 pm
Re: Patent/License question
rogerbowler
Mar 7, 2002
--- In hercules-390, Peter D. Ward wrote:
>Among other factors, the fact that IBM will quote software
>for use on the box offers face validity to the notion that
>some accomodation has been reached.
This is too vague and woolly. How are your customers to know
what arrangements are in place unless you publish the agreement
you have with IBM. Even if you did, what about patents held by
companies other than IBM? Do you warrant to your customers
that Flex/ES does not infringe any patents or other intellectual
property rights whatsoever (whether IBM, Amdahl, Intel, or
anyone else's), and do you indemnify your customers against the
consequences of being sued by the patent owners in case such an
infringement should turn up? If not, why not?
Roger B.
1:11 am
Re: Patents etc
Jan Jaeger
Mar 10, 2002
I do not usually comment of these type flame wars, as I think
someone should only bring up a valid point if the person also
is prepared to offer, or at least is willing to contribute to
a solution. Something that I miss too often.
I also believe that patents are not the real issue here, the
real issue is that the total hercules package provides some
functionality that others have commercial interest in.
(Not dissimilar to linux vs windows)
Although here in Europe we do not have software patents, they
do exist in the US. I must admit that I know very little
about patents, but from what I understand it describes an
invention, where the focus lies on how the result is achieved,
not what the result is.
So, anyone who codes up a piece of software, no matter what it
is has the chance that this infringes on someone's patent. If the
holder sees this as a problem, then there are then basically 3 options:
1) Come to an agreement
2) Withdraw the infringing software
3) Change the infringing software such that no longer infringes the
patent
Option 2 is in the case of hercules practically impossible, just
refer to the DeCSS case where the software can still be found on the
net.
Option 1 is a good option, however hercules is just an open source
effort from a number of volunteers, it is no commercial enterprise,
so there is no money involved. There is little point for a
commercial patent holder to invest in thin air.
Option 3 is most likely to be exercised by some open source developer
as it will be the easiest way out.
The basic issue about the existence of hercules is unlikely to
disappear.
I have no idea if there are patents that are being infringed upon (that
is,
any patent that would be applicable, (I have also read on this or
another
list that someone holds a patent on the virtual memory concept...
Cashing
in on that one could make you rich)
If they do exist, they are likely to be from IBM, Intel, Amdahl, HDS,
Fujitsu or any other similar company.
Now, hercules does not impact the revenues of the above companies, so
they do not have any reason to make any claims, neither will they
state that either hercules does not infringe, or that they allow any
infringement. One never knows how things develop in the future.
As far as FLEX-ES and UMX are concerned, it is possible that they
software patents in the US,and it is even possible that hercules
infringes upon some of those. However I am European for example,
I live in Europe. The only thing that I have in common with the
US is that I have been there on holidays a number of times. So
that pretty much defies any patent law. We could add statements
similar to those US sites that have on encryption software, which
makes one 'politically correct' but little more than that.
However if anyone makes a claim, I think all hercules developers would
try and accommodate option 1, failing that option 3, they could also
attempt option 2 by distantiating themselves from the project, however
in practice options 2 and 3 will will be of no benefit to a party
making a claim.
The hercules developers see hercules as a tool for personal and
educational use, with support on a best effort basis. (we came
to this line during the hercules workshop on the linux-kongress,
an open source initiative, supported by the German government,
which gives an indication how European governments see open source
software patents etc.)
Now if anyone wants more they should look at the commercial products
available.
Anyway, those are my thoughts on the subject, be warned: I am unlikely
to enter a public discussion on the subject, but I thought I share my
views for a change.
Jan Jaeger.
12:33 pm
Re: Patents etc
Peter D. Ward
Mar 10, 2002
Jan,
I do not think the "patent issue", to the extent there is one, falls
into the category of "software patents". The matter here is the other
way around -- someone has a patented machine claim of the type generally
honored throughout the free world, and someone else has implemented that
same machine, albeit in software. Thats why its not clear to me about
the relevancy of the Parnes quote that IBM will not enforce its software
patents against open source -- the patents at question here are *not*
software patents. Until someone asks IBM for some formal response it
remains an open question. You can close all the ambiguity surrounding
IBM's thinking simply by asking them, so the continued presence of all
this bandwidth flying about over this issue is actually under your
control.
Peter
Jan Jaeger wrote:
> I do not usually comment of these type flame wars, as I think
> someone should only bring up a valid point if the person also
> is prepared to offer, or at least is willing to contribute to
> a solution. Something that I miss too often.
>
> I also believe that patents are not the real issue here, the
> real issue is that the total hercules package provides some
> functionality that others have commercial interest in.
> (Not dissimilar to linux vs windows)
>
> Although here in Europe we do not have software patents, they
> do exist in the US. I must admit that I know very little
> about patents, but from what I understand it describes an
> invention, where the focus lies on how the result is achieved,
> not what the result is.
>
> So, anyone who codes up a piece of software, no matter what it
> is has the chance that this infringes on someone's patent. If the
> holder sees this as a problem, then there are then basically 3
> options:
> 1) Come to an agreement
> 2) Withdraw the infringing software
> 3) Change the infringing software such that no longer infringes the
> patent
>
> Option 2 is in the case of hercules practically impossible, just
> refer to the DeCSS case where the software can still be found on the
> net.
>
> Option 1 is a good option, however hercules is just an open source
> effort from a number of volunteers, it is no commercial enterprise,
> so there is no money involved. There is little point for a
> commercial patent holder to invest in thin air.
>
> Option 3 is most likely to be exercised by some open source developer
> as it will be the easiest way out.
>
> The basic issue about the existence of hercules is unlikely to
> disappear.
>
> I have no idea if there are patents that are being infringed upon
> (that
> is,
> any patent that would be applicable, (I have also read on this or
> another
> list that someone holds a patent on the virtual memory concept...
> Cashing
> in on that one could make you rich)
> If they do exist, they are likely to be from IBM, Intel, Amdahl, HDS,
> Fujitsu or any other similar company.
>
> Now, hercules does not impact the revenues of the above companies, so
> they do not have any reason to make any claims, neither will they
> state that either hercules does not infringe, or that they allow any
> infringement. One never knows how things develop in the future.
>
> As far as FLEX-ES and UMX are concerned, it is possible that they
> software patents in the US,and it is even possible that hercules
> infringes upon some of those. However I am European for example,
> I live in Europe. The only thing that I have in common with the
> US is that I have been there on holidays a number of times. So
> that pretty much defies any patent law. We could add statements
> similar to those US sites that have on encryption software, which
> makes one 'politically correct' but little more than that.
>
> However if anyone makes a claim, I think all hercules developers would
>
> try and accommodate option 1, failing that option 3, they could also
> attempt option 2 by distantiating themselves from the project, however
>
> in practice options 2 and 3 will will be of no benefit to a party
> making a claim.
>
> The hercules developers see hercules as a tool for personal and
> educational use, with support on a best effort basis. (we came
> to this line during the hercules workshop on the linux-kongress,
> an open source initiative, supported by the German government,
> which gives an indication how European governments see open source
> software patents etc.)
>
> Now if anyone wants more they should look at the commercial products
> available.
>
>
> Anyway, those are my thoughts on the subject, be warned: I am unlikely
>
> to enter a public discussion on the subject, but I thought I share my
> views for a change.
>
>
> Jan Jaeger.
>
>
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[Non-text portions of this message have been removed]
3:42 pm
Re: Patents etc
Jay Maynard
Mar 10, 2002
On Sun, Mar 10, 2002 at 10:42:29AM -0500, Peter D. Ward wrote:
> Thats why its not clear to me about
> the relevancy of the Parnes quote that IBM will not enforce its software
> patents against open source -- the patents at question here are *not*
> software patents.
OTOH, assuming for the purposes of discussion that the patents in question
are in fact claiming the same things that Hercules does, there's some
question about whether a software implementation can infringe a hardware
patent. Before you pooh-pooh this, I'll point out that at least one hardware
vendor has come to the conclusion internally that it cannot...and no, I'm
not at liberty to disclose which one.
The quote did not specify "software patents", BTW. ("When Eric Raymond and
[Bruce Perens] asked this of an IBM representative recently, the answer was
'we're not prosecuting our patents against Open Source developers.'"
http://perens.com/Articles/Patents.html )
> Until someone asks IBM for some formal response it
> remains an open question. You can close all the ambiguity surrounding
> IBM's thinking simply by asking them, so the continued presence of all
> this bandwidth flying about over this issue is actually under your
> control.
I'm not about to kick over that anthill. It's IBM's duty to notify those who
it believes are infringing its patents. Under US patent law, I am not
competent to have an opinion about whether Hercules infringes IBM patents or
not, and I am not required to go looking for trouble. Until IBM decides
there's a problem, there is no problem. When IBM decides there is a problem,
I'm certain that I'll be the first to hear of it. Until then, I refuse to
worry about it.
I find it significant that the only people who *do* worry about it are those
associated with Fundamental Software. Were I to be uncharitable, I would say
something here along the lines of "feeling the heat?"...but I'm not going
to, because I truly believe there's plenty of room for both Flex-ES and
Hercules (and yes, UMX too), because of differing design goals and differing
strategies, as well as differing business models and levels of support. I am
not a member of the Flex-ES list (and, in fact, don't even know where it's
located), so I did not see the recent postings there relating to Hercules;
if someone spread FUD there, I'm sorry to hear about it and can only say
that it did not represent the views of the Hercules development team.
4:10 pm
Re: Patents etc
Peter D. Ward
Mar 11, 2002
Jay Maynard wrote:
> It's IBM's duty to notify those who
> it believes are infringing its patents. Under US patent law, I am not
> competent to have an opinion about whether Hercules infringes IBM
> patents or
> not, and I am not required to go looking for trouble. Until IBM
> decides
> there's a problem, there is no problem. When IBM decides there is a
> problem,
> I'm certain that I'll be the first to hear of it. Until then, I refuse
> to
> worry about it.
Contrary to your implication this thread was not started by me, but
rather some guy who, if I recall correctly, was contemplating using
Hercules in a for-profit training course. You personally may not use
Herc in this manner, but he was wondering if his commercial use had any
risks so far as IBM was concerned. I suggested writing IBM to find out
their take on his proposed use. What is so wrong with that? You tell
him go ahead and let IBM tell you the consequences, if any, later.
Which is the more prudent advice, especially considering for the
relatively low cost of a price of a stamp one could possibly get a
bankable answer?
PDW
[Non-text portions of this message have been removed]
4:04 am
Re: Patents etc
pa3efu
Mar 12, 2002
Peter,
The issue of potential patent enfringements is to the best
of my knowledge not relevant to personal use. I have been
(and still am) a radio amateur, and the amateur radio community
has been experimenting and building hardware (and in the
past 20 years or so also software), sharing the results of
those experiments on a global basis. This hard- and software
most certainly has been the subject of patents which have
never been enforced due to the personal use clause.
Now, unless for some reason this general principle has changed,
or for some strange reason would not apply to other areas,
then there could be an issue.
This issue would not be limited to hercules or ibm, but to
anyone or any organisation doing some type of r&d.
The patent issue only becomes relevant when one is going to
exploit those materials that are covered by patents on a
commercial basis, something I have no interrest in.
Jan Jaeger.
--- In hercules-390@y..., "Peter D. Ward" <pdw@m...> wrote:
<big snip>
1:23 pm
Re: Patents etc
Peter D. Ward
Mar 12, 2002
Jan,
A personal use exemption is a starting point in some countries of
Europe, but I believe it is not dispositive. One good thing about open
source is the community effort, but the downside for purposes of this
issue is that it is precisely an effort of a community, ie, your
personal effort has an impact beyond your own personal use. In the
end, the analysis is probably one of factual inputs surrounding whether
or not the patent holder is being harmed, as the theory underlying a
personal use exemption is probably predicated upon that notion.
I can't say what IBM sees, but even a casual perusal of postings on this
list suggests to me that your personal use of the IP in question -- the
product of which is published under a license granting commercial use
-- is being exploited beyond the goals of personal use.
Peter
pa3efu wrote:
> Peter,
> The issue of potential patent enfringements is to the best
> of my knowledge not relevant to personal use. I have been
> (and still am) a radio amateur, and the amateur radio community
> has been experimenting and building hardware (and in the
> past 20 years or so also software), sharing the results of
> those experiments on a global basis. This hard- and software
> most certainly has been the subject of patents which have
> never been enforced due to the personal use clause.
> Now, unless for some reason this general principle has changed,
> or for some strange reason would not apply to other areas,
> then there could be an issue.
> This issue would not be limited to hercules or ibm, but to
> anyone or any organisation doing some type of r&d.
> The patent issue only becomes relevant when one is going to
> exploit those materials that are covered by patents on a
> commercial basis, something I have no interrest in.
>
> Jan Jaeger.
>
[Non-text portions of this message have been removed]
4:04 pm
Re: Patents etc
Jan Jaeger
Mar 13, 2002
Well, in that case we can agree that we do not agree.
Let us for argument sake assume that you are correct in
that hercules contains IP belonging to others.
We might have a large number of people using hercules,
most of those are using MVS 3.8, VM/370 or OSVS1, or
similar os-es. The fact that these are 25+ years old
suggest to me that that type of use falls into personal
use. It is highly unlikely that these os-es use any
features that are still patented today. Our next
category is linux/390 and linux zseries which use
under hercules is highly academic, and as such we
are left with a number of people using z/VM or z/OS
on hercules. A large number of those are IBM
employees using hercules one way or another,
so they fall outside the scope. A few people have
an agreement with IBM that they allowed to run
z/os or z/vm under hercules, so these are covered as well.
Then we have a few who run hercules under linux390 or
linux for zseries, something I cannot see anything wrong
with.
There appear to be a few systems programmers who have are
running a copy on their pc. This is illegal from a software
licencing perspective, but I can hardly see this as being a
major source of ibm missing out on IP royalties.
So we are left with people wanting to use hercules for
production type work. Now hercules currently falls by default
in the highest processor group rating, which makes it an
unattractive alternative. IBM might miss out on IP royalties,
but the software pricing appears to offset that more then once.
As we have esthablished that one can really only use patent
covered materials by means of modern operating systems, which
are only available from IBM then IBM has good control over the
use of its IP.
So, the best option seems to me that IBM builds a licence
structure for hercules, that includes any possible fees for
the IP that is used within hercules when running modern
operating systems. The situation would not be that different
from running either flex or umx, in which case I assume
ibm would get a piece of the pie if these contain IBM IP.
Anyway, this is all I have to say on the subject.
over and out.
jj
> Jan,
>
<snip>
> I can't say what IBM sees, but even a casual perusal of postings on this
> list suggests to me that your personal use of the IP in question -- the
> product of which is published under a license granting commercial use
> -- is being exploited beyond the goals of personal use.
> Peter
12:27 pm
Copyright 2002