MESSAGE
| DATE | 2006-02-23 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [NYLXS - HANGOUT] MS to sue GNU/Linux to death
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A LEGAL WINDOW
The IP uprising
Threat of patent infringement by your software vendor can spice up the
Microsoft vs Linux battle
Pragati Verma
Expect Microsoft vs Linux battle to heat up once again. Stoking the
flame of the ongoing war now are intellectual property (IP) issues. The
rising threat of third party IP infringement is promising to give a new
turn to the entire debate, till now primarily focused on the ownership
and security concerns.
The first shots have already been fired. IP indemnification issues are
critical, comes the warning from Microsoft — “Litigation suits can be
tremendously expensive, with the cost easily exceeding what you paid for
the software many times over’’. Open source advocates, however, are
convinced it is “plain FUD” (fear, uncertainty and doubt) and a
“last-ditch effort to slow the open source momentum”.
In short, decibel levels are promising to go up, primarily fanned by
Microsoft. “As an industry leader, we are committed to spreading
awareness on the issue among the Indian CIOs so they can make the best
software decision that will best meet their business needs while at the
same time balancing the risks involved,’’ says Microsoft India customer
and partner experience director, Sanjiv Mathur.
For starters, indemnity generally means that the software vendor will
act as the responsible party with respect to third party claims.
Companies using a software product “infringing” on someone’s IP could
face litigation. For instance, if a third party like SCO sues you for
violating its right because you don’t have its license but you have a
contract from your vendor like Microsoft or IBM, your vendor will stand
between you and SCO.
Explaining the importance of IP indemnification, Mathur says, “the
current corporate governance and risk mitigation scenario have forced
enterprises to factor in consideration for IP concerns in the software
they procure of which indemnification from third party claims of IP
claims is a big part.’’ It is different from insurance since the
customer does not buy an insurance cover and does not have to pay
premium. And in case of unlimited liability, there is no cap on the
amount that an indemnification will cover.
There are many nuances to the scope of indemnity, depending on how an
indemnity provision has been drafted. CIOs considering an indemnity
provision offered by a vendor, are typically advised to check:
• What triggers and terminates the indemnity obligations?
• What intellectual property is covered?
• What is the extent of financial liability provided by the vendor?
• How will the vendor meet its financial obligations?
• Who controls any litigation?
Microsoft claims to provide “uncapped protection for legal costs
associated with a patent, copyright, trademark or trade secret claim
alleging infringement by their product”. Open source majors like Red Hat
also provide assurance programmes to protect their customers.
With some high-profile patent lawsuits hogging the limelight in the
West, India could not have remained untouched for long. It all started
with the IBM-SCO lawsuit. SCO claimed that IBM included proprietary code
in its contribution to the Linux kernel, and that therefore, any company
using Linux also infringed on its copyright.The issue has been brought
to life once again with the recent patent infringement cases on mobile
computing devices. A Viginia-based patent holding company, NTP has sued
Research in Motion (RIM) for allegedly infringing on seven of its
patents, threatening to shutter RIM’s Blackberry e-mail service.
The US Patent and Trademark Office has rejected all of NTP’s claims, but
a hearing with a federal judge in Richmond to consider an injunction on
the service is scheduled this week. E-mail vendor Visto Corp sued Good
Technology charging it infringed on at least four of its patents for
synchronising business data with mobile devices.
Analysts believe that the core issue at stake is whether open source
software increases litigation risks. Open source advocates are quick to
point out the IP litigation faced by Microsoft itself. Ubuntu (open
source software being used by Google) founder and leader Mark
Shuttleworth says, “Linux is growing fast and whenever there is a new
way of doing things, people will raise all kind of issues.”
“Customers understand the value proposition of open source. They are
smart enough to understand that rumours of these so called “litigation
risks” floating around is in fact FUD circulated by companies with
vested interests—a last ditch effort to slow the open source momentum
down,’’ says Red Hat India president, Javed Tapia.
URL: http://www.financialexpress.com/fe_full_story.php?content_id=118101
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