Re: [hercules-390] Re: posting styles and licensing

somitcw wrote:

>>Steve Arnet's latest post an hour ago:  "Greg
>>responded with a tip for tracking down my
>>OS/390 2.8 problem(thanks Greg!) and I am
>>currently trying to do just that.
>>Seems your certainty is misplaced there too...
>>    
>>
> - - - snipped - - -
>
>    I assume that Greg supplied help before
> Steve posted that he was running illegally.
> I don't believe that Greg knowingly assisted
> with illegal activity. 
>
Steve's post wasn't specific on identity, but if we're talking about 
Greg Smith then I too would assume as you have.

>    Peter, you keep missing one point.  While
> IBM does not issue personal licenses to run
> OS/390 under Hercules under Windows, I do have
> an OS/390 license for my 9672 and IBM does not
> prevent me from running Hercules on it.
>

I've had backchatter on this idea with Adam from time to time.  FSI pays 
royalties to IBM because of the IBM patented functionality performed by 
Flex-ES.   Imagine if somehow a 9672 were able to host Flex-ES with some 
resulting commercial impact that makes this a really neat idea in high 
demand.  Do you think we would be able to say to IBM that we do not owe 
them royalty payments on any copy of Flex we licensed to be hosted on a 
9672?   I can't imagine a circumstance where the answer would be that we 
don't owe them royalties in that case, unless we didn't owe them 
royalites in ANY case.   I believe the same analysis would be true for 
Hercules, in which case your implication that running Herc on a 9672 is 
some sort of safe harbor is probably incorrect. 

>  Some
> IBM employees have also used Hercules.  Some
> apparently with IBM's blessing, some apparently
> without IBM's blessing.  Both are legal.
>
Assuming that IBM were the only patent holder for any patented 
functionality embodied in Hercules, or assuming that Hercules embodied 
no patented functionality at all, and assuming the same alternatives 
regarding any question of misappropriated trade secrets or other forms 
of IP, then IBM's use as you've described it would likely not be assailable.

> If my 9672 melts down, I will call IBM and
> declare a disaster and run on anything that I
> can run on.  When I replace the 9672 with a
> Flex box, and the Flex dongle melts down, I
> will call IBM and declare a disaster and run
> on anything that I can run on.
>
The question is whether or not running on "anything that I can run on" 
obligates IBM to provide software support for the licensed software you 
are running on your choice of box.   I believe if you were to read your 
customer agreement you may find that IBM protects itself from having to 
firefight on schlock by "technically" limiting your right to DR  to 
various "exhibited" machines.  This is why I believe all the DR 
(exc)uses claimed on the Herc list are a bunch of bunk.   I think you 
are correct however in that if IBM had faith in the fidelity of the 
machine you were using IBM would in its commercial interest continue to 
support you in the event of a DR situation.  If it's commercial interest 
were somehow not to faciliate your use of that box, then the contracts 
I've seen would appear to give them an out should they choose to take 
it.  Your contract's terms may of course be different than those I've seen.

PDW


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