IBM: What Impact will the Amazon Suit Have?

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I’ve been asked a couple of times in the past few weeks – and many times over the past few years – how and why IBM enjoys the reputation it does within the open source community. Here’s how I described the paradox of IBM’s embrace of the open source world:

Much to the chagrin of some of its competitors, IBM can seemingly do no wrong with the open source world in general…

[1] This, despite being absolutely unrepentent about their financial motivations.

There are, of course, a variety of explanations for the love/love relationship IBM has with the members of the open source community. Money, for one: IBM pays employees to contribute to popular projects such as Linux and Mozilla. Support, for another: open source advocates are only too aware of how important the IBM seal is to gaining enterprise adoption for everything from Apache to Linux.

But one aspect of their behavior that has gone relatively unremarked upon is their ability to keep their feet out of their mouth. Think about it: when was the last time you heard an IBMer say something inflammatory with respect to anything even vaguely related to open source? The Solaris fans in the audience are probably looking up from sticking pins in a Dan Frye voodoo doll right about now, and certainly the Geronimo community had their share of concerns about IBM’s sudden involvement, but by and large it’s very rare to hear IBMers say anything that could possibly, as the saying goes, later be used against them. Contrast that with, say, the quotes from Ballmer and Gates years ago that still come up when discussing Microsoft and Shared Source.

Not being quotable can make IBM execs seem relatively boring, of course – and that can occasionally be a problem. But it generally keeps them out of harm’s way when it comes to negative community reactions, in spite of the complete transparency described above with respect to their motivations. Whether this “on message” in PR-speak approach is the result of corporate maturity, media training, some sort of X-Files style implant, or all of the above is a question best left to the reader. But really, the impact can’t be questioned.

Considering all of the above, then, I find the decision to sue Amazon for patent infringement interesting – and potentially very problematic. On the one hand, I can’t say that I’m hugely surprised. IBM heads the patent grant list every year – literally every year, and at the IBM Intellectual Property conference it was clear that this was viewed as a substantial revenue stream for the firm (about a billion a year, from what I recall).

But IBM has also gone out of its way to acknowledge the problems with patents. Problems with the patent review system which many in the industry – including yours truly – feel are fundamentally broken and given to granting overly broad and meaningless patents. Forget the statement (PDF warning) of non-assertion for open source developers (despite the inclusion of some obviously useless patents, the gesture was a good one in my view); more important is the work they’re doing in putting their own patents online, and working with the patent office to try to address some its volume and procedural problems. Or their participation in the Open Innovation Network.

From that work, one could conclude that IBM agrees that there are basic, fundamental flaws in the way the patent system functions in this country. In spite of that, however, IBM apparently sees no issue in attempting to simultaneously profit off of it, as evidenced by the suit. Blame the shareholders, I guess. I’d perhaps be less concerned if the patents seemed on first glance to be really legitimate; highly specialized and clearly the result of unique innovation. But they aren’t, or don’t appear to be anyway; they seem to me to be terrifyingly vague.

For now, I’ll leave the question of whether or not the suits are legitimate and justified to more qualified researchers; those with actual backgrounds in patent law. In the interim, however, I think it’s worth asking the question: what does this do to IBM’s reputation within various technology communities and ecosystems? The answer is, I don’t know yet. It certainly seems to be something that IBM is concerned about, having issued internal memos prepping employees for the suit. In IBM’s favor is Amazon’s own questionable history with respect to patents – this is, after all, the firm that made lots of folks very unhappy with their 1-click patent efforts. One of their founding programmers apparently described those as “a cynical and ungrateful use of an extremely obvious technology.” But even considering the target, I’m wondering whether a variety of technologists will begin questioning the benevolent, avuncular image IBM has labored so long and hard to build. Successfully, I might add.

If that does happen, I’m not sure that any amount of money from Amazon will prove to be worth it. I’m already hearing Amazon advocates compare IBM to SCO, which while inaccurate in my view certainly isn’t going to do Big Blue any favors.

Guess I’ll wait and see how this plays out.

Disclaimer: IBM is a RedMonk client, as is an Amazon subsidiary, A9.


  1. despite being absolutely unrepentent about their financial motivations.”

    I think if anything, Steven, a big chunk of their PR success is because of, not in spite of, being unrepetant about their motivations. Everyone sane knows that the only motive you can trust a corporation on is their profit motive. Every other corporate motive is at best unreliable and at worst a lie. So when Sun or Novell says ‘oh, we love open source’, people naturally are skeptical. When IBM says ‘we love the money open source brings us’, you may or may not like that motive, but you know they are being honest and straightforward, which is I think fairly cluetrain of them.

  2. I might add that like Tim I’m shocked I’ve not seen more commentary about this- I agree with you that this seems like it could be one of the biggest patent battles in ages if both sides want to go to the mat on it.

  3. Have to pretty much agree with Luis there. I think it’s the “Stallman effect” that makes everyone this making money off OSS is “evil”. I’d argue profits are the only things that have made Linux as rock solid as it is today – it took engineering excellence to get to where it is.

    Profiting off open source generates funds to reinvest in development in open source. I recently spoke to one of the top mobile companies in the world – they commented that with $1 investment in their Linux efforts, they get $5 back. That return lowers the development and GTM costs and actually makes some projects fundable (as opposed to being killed in business plan b/c the engineering estimates are too high). Companies don’t just hire expensive, top caliber engineers to work in OSS for the fun of it. Profits and returns are necessary and not necessarily “evil”.

    I may work for IBM but have absolutely no knowledge, insider info, etc about the Amazon suit – that’s something for the legal teams to worry about and let’s be honest, lawyers don’t talk much unless they have to.

    However, as an outside observer, I have to wonder if Amazon’s past litigation history has anything to do with this. Most OSS patent grants have some sort of “backfire” clause to maintain balance – if you sue, you lose your rights to use (see last paragraph in PDF link). I wonder if Amazon’s Barnes & Noble past has come back to haunt them for upsetting a balance.

  4. Of course, Mike, Stallman has always said that profiting off Free Software is just fine by him, as long as all your code is still Free.

  5. Luis: i actually agree, but i think there is a sizable number of folks that would not admit that. take, as an example, the folks that are anti-hybrid open source companies a la Sugar or Zimbra. most feel that the economic model of incenting purchase by withholding a small portion of the code is a betrayal of F/OSS principles. explaining that they’re merely trying to make money while giving back to open source doesn’t work as well. IBM makes similar arguments with similar open and closed strategies and is applauded for it.

    as a pragmatist, i have no problem with any of the above. but many do.

    but i agree that it is very cluetrain – and very intelligent – of IBM to be as transparent as they are about their motives.

    i don’t necessarily buy the assertion that Novell or Sun are any less up front about their profit motive, however. but maybe it’s just that i talk to different folks than the community does.

    re: Tim’s point, i’m not. that’s a reflection, IMO, of how positively IBM is viewed in the community. if this was Microsoft – or probably Sun, this would be all over a number of community sites.

    Mike: let’s be careful to draw the line here between open source code and overbroad patents. neither i nor the majority of the developers or community members i speak with begrudges IBM the opportunity to make money with open source. even Stallman, as Luis observes, is not anti-economic gain from software – he’s simple fundamentalist on the belief that the software itself must be free. and for the record, i don’t question anyone’s right to make closed source software. if you want to make money from code, that in my view is your right, just as it is to choose the model you release, sell and distribute it under.

    what i do think is questionable, however, are profiting from patents like “Ordering Items Using an Electronic Catalogue” or “Presenting Advertising in an Interactive Service” as i personally do not feel that they represent genuine innovation. certainly not innovation that should be protected.

    given the quality of IBM’s legal representation, and the fact that firms are already paying licenses for these patents, i’m fairly certain that the courts disagree with me.

    but that doesn’t mean that i have to agree with it. nor, i’m arguing, based on their past actions with respect to patents, does IBM as a corporation.

    all of that is a question for the courts, of course. what i’m trying to determine is community reaction.

    will we see more comments like this, or more like this? we’ll just have to wait and see, but it’s rare that IBM risks its public perception this way.

  6. i don’t necessarily buy the assertion that Novell or Sun are any less up front about their profit motive, however.

    It isn’t that Sun and Novell are pretending they aren’t in it for the profit- they are up front about that. But they do often pretend they are in it for other reasons as well, which may well be true for specific individuals in Sun and Novell, but certainly is not true for the companies as a whole.

    Just for example, Simon is going around saying ‘I told you so‘ about IBM suing Amazon. The implication there is that Sun is somehow better than IBM on this count. I call BS. If Sun had that same batch of patents as IBM, they’d be doing exactly the same thing as IBM.

    [NB: possibly, I’m wrong about that, but I have no way of knowing, since Sun has not made a specific policy statement on the issue like RH has. If Sun were to make such a statement, and license the use of their patents appropriately, I’d happily eat my words. But I don’t see it happening.]

  7. Hi Stephen, two points:

    Re: Patents

    We should look at when these patents were filed, and consider that it was sometime before filing (say 6 months to 1 year?) that the original idea was developed and consider the validity of the patents in that time period.

    Looking at the patent titles today may lead us all to think that there is no “genuine innovation. Certainly not innovation that should be protected”, as you say 😉 Here is the list of the patents in question:

    patent #titlefiledissued
    5,796,967presenting apps in an interactive serviceNovember 26, 1993August 18, 1998
    5,442,771storing data in an interactive networkNovember 26, 1993August 15, 1995
    7,072,849presenting advertising in an interactive serviceNovember 26, 1993July 4, 2006
    5,446,891adjusting hypertext links with weighted user goals and activitiesNovember 2, 1994August 29, 1995
    5,319,542ordering items using an electronic catalogueSeptember 27, 1990June 7, 1994

    But 13 years ago, and keep in mind that we’re talking 13 years of Internet innovation, would you possibly consider the patents to cover genuine innovation? (Note: IANAL, but the one about ordering items using an electronic catalogue seems a little weak…but that is just my uninformed opinion).

    How many years from now will we be looking at the scroll wheel on a RIM blackberry or the iPod click wheel and think “man, that wasn’t innovation. It’s so obvious to us today and in so many products that it must be common sense”.

    Next: Why does IBM have OSS cred…

    Well, because we were out there supporting OSS before other vendors found it fashionable. Yes, IBM’s embrace of OSS has been with it’s own interests in mind. That doesn’t mean that customers and the community didn’t benefit.

    For example, When the IBM WebSphere team decided to use the Apache Web Server within WebSphere Application Server (WAS) instead of developing their own internal product, IBM, the community and customers benefited. And we took this bold step before other app server competitors considered it (and some never did). IBM benefited because they didn’t have to spend development resources on building an internal web server when Apache was good enough. And since then, IBM has several employees working on the Apache Web Server project (albeit less than if we were still developing a completely different product internally), so that helps the community. Less development resources working on underlying technology meant that we redirect these resources to higher value products/features that customers were asking for, thereby benefiting customers.

    And since you mentioned Apache Geronimo, yes, IBM, the community and customers have benefited from IBM’s involvement. (note that IBM’s one of 19 companies with committers on the Geronimo project). The above points apply to how IBM and the community benefits. Customers benefit from being able to get a free product, (WAS Community Edition) from IBM that fits well with their other IBM WebSphere infrastructure, or works all by its lonesome thank you very much 😉

  8. The table that I added in the previous post came out all funny: Here’s try #2

    patent #: 5,796,967
    title: presenting apps in an interactive service
    filed: November 26, 1993
    issued: August 18, 1998

    patent #: 5,442,771
    title: storing data in an interactive network
    filed: November 26, 1993
    issued: August 15, 1995

    patent #: 7,072,849
    title: presenting ads in an interactive service
    filed: November 26, 1993
    issued: July 4, 2006

    patent #: 5,446,891
    title: adjusting hypertext links with weighted user goals and activities
    filed: November 2, 1994
    issued: August 29, 1995

    patent #: 5,319,542
    title: ordering items using an electronic catalogue
    filed: September 27, 1990
    issued: June 7, 1994

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