This past Tuesday, IBM sued a French software company called TurboHercules. This would seem to be a relatively unimportant phenomenon: people get sued over patents all the time. But here’s the twist: TurboHercules is an open-source software company. IBM, in 2005, made a list of 500 patents over which they promised on good faith not to sue anyone. Two of these patents are on the list of items IBM is suing TurboHercules over.
The fight seems to be over system emulators, and the issue of allowing users to get around using only IBM’s System Z to run the operating system. IBM continues to make money with its hardware because you need its hardware to run the software. Hercules was an open-source program that allowed you to emulate the System Z software onto common hardware, a program that IBM had no problem with, even though the licensing for it was vague. TurboHercules offered Hercules to companies as a way to backup their systems, a venture that proved rather profitable. While I don’t entirely understand the technology part of the controversy, the role that patents, profit, and open-source play in this, and will continue to play in software development, seems incredibly important.
IBM has, for a long time, claimed to be an avid supporter of open-source software; this has been evident most prominently in its support of Linux. Many are concerned that this new suit will pit IBM against open-source. But what does this even mean in a world where most software is written in an open-source way? Will it just be that the smaller software projects slip through the cracks, and IBM enforces its patents where it sees fit to support its business model, as it has done here with TurboHercules?
In a post on cnet, Matt Asay, a COO at Canonical, says that this lawsuit heralds the true “arrival” of open-source software into the world of legitimate software. The fact that IBM is treating this open-source program as a legitimate one, which can be sued, taken to court, and is a veritable business concern to a huge company like IBM indicates the importance of open-source. Perhaps this lawsuit is, in fact, IBM’s recognition of open-source as an important power in software, rather than their pledge to protect open-source by not enforcing patents. Open-source can rival their business interests – it’s no longer a hobby for enthusiasts. But will open-source’s efforts be hindered by this new enemy – patents? That seems rather dramatic, but stepping on the toes of patent owners certainly seems more likely. Time will tell.
Yale Law Tech 
I think it’s interesting to consider that the whole ideology of open source software is that it leads to a higher quality product, which isn’t to far off from saying that it’s a better form of business. If the two can actually be equated, then maybe IBM is actually being quite consistent.
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It’s frustrating to hear that IBM went back on its promise to not sue over the use of these two patents. One has to wonder if IBM simply thought that a lack of media coverage on the complex realm of patents would let them get away with the move PR-wise.
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Regardless of what people say they will or will not due, this makes perfect sense from the business perspective. Insofar as there is no legal document that says that IBM is obligated to not pursue a patent, IBM as a company must pursue that patent. The board and its executives are tasked with protecting both the IP and maximizing profits. It makes sense that they went ahead and sued.
Although that said, its a very sad day.
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