John, I am not a licensed or practising attorney but I do have legal qualifications, so I can render an opinion but not for a fee (though I can for wage to my employer?? because that falls under self representation)! This is my own personal opinion and I do not purport to represent anyone else.
I think you are right, all this talk about IBM cracking down on Hercules, speaking plainly, sounds like bullshit to me. As you suggest the only likely claim of any infringement would be under patent law. As copyright would require an actual copying of code (be it source or object) no claim would succeed. Copyright protects the "written expression" not the ideas or concepts embedded in it. Ideas are basically free. Patent law comes closest to protecting an idea insofar as it will protect a function or an idea as implemented in an invention or process. While a function might be duplicated by a later invention, if it goes beyond the original invention and adds its own novel or inventive function, it will be considered a new invention in its own right. On this basis a patent would be granted, if one were applied for (so long as it were not already public - the biggest stumbling block to obtaining a patent). People often say that extra amount of ingenuity must be 10% or more which makes it sound like an objective measure, but I'd like to see how you measure ingenuity without getting subjective about it! Anyway, I can only guess that Hercules goes quite beyond any of the specific patents that IBM holds related to 360/370/390/ hardware (and/or microcode), since it emulates that hardware on an entirely different hardware platform, and, I suspect, would satisfy the required extra inventive step to be considered a new and novel invention in its own right. Just MHO and definitely not IBM's. Besides unless there is some perceived loss of money or market why would anyone bother anyway? If IBM did have a P/390 product and various follow on products and in my experience it was never a big market, that is why it was handed over to IBM's business partners. I think you can rest easy. The internet is great for propagation of fictions, rumours and sometimes even facts. Good luck with the RH installer, I had some problems initially but just reloaded it and it went smoothly. Regards, Craig +61-2-9354-7283 tel +61-2-9354-7797 fax Craig Vernon B.App.Sc. LL.B. IBM Support Centre FB41 55 Coonara Ave West Pennant Hills 2125 Sydney NSW Australia Visit us at http://www.ibm.com/services/au/its "You can not find a solution using the same thinking that created the problem." - Albert EInstein If received in error please delete and notify the sender immediately. No other use permitted. Neither confidentiality, privilege nor copyright waived. Jay Maynard <jmaynard@conmicr To: [EMAIL PROTECTED] o.cx> cc: Sent by: Linux on Subject: Hi there... 390 Port <[EMAIL PROTECTED] IST.EDU> 16/04/2002 11:01 AM Please respond to Linux on 390 Port (I get 350 emails a day. Why am I joining another list?!) Hi there. I guess I should join this list, so I can see what's going on in another segment of the S/390 world...especially since Hercules, the project I spend most of my free time on, seems to be a regular topic of discussion here. I've looked back through the archives a bit, after getting pointed at the redbook discussion. I have no idea why IBM did anything; they certainly haven't told me. For the record, the Hercules list is uncensored. Phil Payne's access was set to moderated (he can still post, if approved by a list moderator) because he was disrupting the list despite repeated requests from a large number of list members to lay off on his continual FUD. He was asked to take it to a list created especially for the purpose, and did not. As for Fish's flame, which by now has gained a degree of notoriety: I was and am uncomfortable with the language he used, but I can certainly understand why he felt pushed to that extreme. It is still in the Yahoo! Groups hercules-390 list archives because I have not received a request to remove it; if that request were to come, but not from Fish, I haven't decided what I'd do about it. Now, on to the claims of Hercules violating intellectual property rights of IBM... There are four kinds of intellectual property in the US: trademark, copyright, trade secret, and patent. Trademarks are not violated if used to identify the owner's products and acknowledged. Hercules does not violate any of IBM's (or anyone else's) trademarks that I'm aware of, and can and will correct any such violation if advised of it. Copyrights are not being violated because we do not distribute any IBM code that has been copyrighted. (The code available from http://www.cbttape.org is all in the public domain.) Trade secrets are only protected as long as they are actually secret; reverse engineering by a party not contractually bound to keep the secret destroys that status and removes any such protection. This leaves only patents. In the US, only a patent attorney is, by law, competent to read patents and render an opinion on whether a patent is being infringed. I am not a patent attorney. Therefore, I do not and have not read any patent which may be claimed to be infringed. It is IBM's responsibility to notify me (or any other Hercules developer; as the host of the web site and release coordinator for the package, as well as the most visible developer actually in the United States, I believe I am the logical recipient of such notification) of any infringement and demand that such infringement cease. Until that point, I have no responsibility to act based on others' allegations and hearsay. I am easy to find, as my home address and telephone number are posted on my home page. Until I hear from IBM directly, I refuse to worry about the issue. Finally, I do note Alan Cox's comments on the advisability of IBM shutting down Hercules, and echo them. I believe that news would spread rapidly among the Open Source[1] community, and would cause IBM immeasurable damage; I would feel no compulsion to keep anything of that nature secret, either. Fortunately, I also believe IBM understands this. Between that, and their public comments to Eric Raymond and Bruce Perens about not enforcing their patents against Open Source developers, I doubt that any of the dire predictions about IBM sending a cease and desist notice for Hercules will actually come to pass. Now that I've gotten all that out of the way...can anyone help me get Red Hat 7.2 running on Hercules? I can't get the installer to actually install. :-)
