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HP's Big Bet

In offering to protect its users against potential Linux-related lawsuits, HP is daring SCO to show its hand

While it's common for makers of proprietary software to protect customers from intellectual-property infringement claims, such protection hasn't been offered with open source because the software's lineage isn't as clear cut, says Melise Blakeslee, a partner with law firm McDermott, Will & Emery. With open source, she says, users are getting the software "as is." HP's offer to take responsibility for any SCO Group claims will likely reassure customers, Blakeslee says.

HP's approach stands in contrast to IBM's legal maneuvers. "It seems pretty clear that if you run Linux on HP and don't change the source code, HP will protect you," Aberdeen analyst Claybrook says. Under the deal, HP requires that customers make no modifications to Linux. Martin Fink, HP's VP of Linux, asserts that most customers don't do that anyway.

In a memo to his staff obtained by InformationWeek, Bob Samson, IBM's VP for systems sales, said an indemnification policy could prevent users from fully exploiting Linux. "Most indemnities are narrowly drawn and are often invalidated by customer activities, such as making modifications," Samson wrote. IBM says it would prefer to resolve the matter in the courts.

Some analysts say IBM is merely attempting to discredit HP's indemnification policy because it's not in a position to offer users the same protection. "They are a party to the lawsuit, so they can't indemnify," says Rob Enderle of the Enderle Group.

Linux distributor SuSE Inc. applauds HP's actions--but has no plans to emulate them. "HP is saying to SCO that if you're coming after our customers, you're going to have to come through us," a spokesman says.

Both Red Hat and SuSE say SCO Group's lawsuit against IBM and its attempts to charge Linux users a licensing fee have created some apprehension in the market. "We're seeing sales cycles lengthening a bit," says the SuSE spokesman. "A lot of this has to do with bringing in the legal team to make a risk assessment."

HP claims its business hasn't suffered and says its motivation is to reinstill confidence in Linux. "This fits into our desire to take accountability for end-to-end Linux solutions," Fink says. "If we're going to do this, we have to address SCO."

HP's promise to protect its Linux customers from SCO Group seems like a step in the right direction, but it's not clear that the promise would be bulletproof if ever challenged in court. An SCO Group spokesman says that HP customers "aren't being fully protected" even with HP's offer--other developers could theoretically claim intellectual-property rights as SCO has done. In the newly litigious world of operating-system source code, it seems, even a promise of protection is no guarantee of safety.

-- with John Foley and Paul McDougall

Photo by Charles Gullung/Photonica

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