IBM ducks indemnification of Linux users

IBM will not indemnify users against potential damages that could ensue from its long-running legal battle with SCO.

Last week Hewlett-Packard said it will protect its Linux customers after October 1 if they suffer fallout from SCO's contractual suit against IBM.

Since HP's move, all eyes have been on IBM to see if it would follow suit. Indemnification would protect customers financially against legal judgement or disruption if they purchase software that is later found to be tainted by the case.

But in a staff memo sent out Thursday by a US-based IBM sales manager Robert Samson, it was made clear that such protection is not in the cards for the IBM camp.

In the memo, which was examined by CRN, Samson wrote that IBM and 'most other industry leaders do not indemnify for open source code.'

'Most indemnities are narrowly drawn and are often invalidated by customer activities such as making modifications or combining the indemnified product with other code, which are central to the vitality of open source,' Samson wrote.

He said that based on press accounts of HP's offer, the indemnification only covers HP hardware shipping with Linux sold after October 1. Customers who modify the code lose the protection.

The news came as IBM filed counterclaims last week alleging that SCO infringed on IBM copyrights by distributing IBM' contributions to Linux without permission. IBM said SCO itself terminated its General Public License (GPL) but continued to distribute the code in question. The charges were detailed in a lawsuit filed Thursday in the United States District Court in Utah.

'IBM's counterclaims arise from SCO's infringement of IBM copyrights and patents,' according to the legal documents examined by CRN. 'Although SCO purports to respect the intellectual property rights of others - and has instituted litigation against IBM for alleged failures with respect to SCO's purported rights - SCO has infringed and is infringing a number of IBM copyrights and patents.'

In March of this year, SCO charged that IBM had misappropriated SCO's Unix software license and illegally shared Unix code with the open-source community. It is seeking US$1 billion in damages. Charges and countercharges have been flying ever since. Since that time SCO has said that customers using allegedly infringing code could be held liable.