“A corporate Linux or open-source user that lacks indemnification and product warranty will expend its own time, money and resources fighting legal action,” said Laura DiDio, senior analyst for application infrastructure and software platforms at The Yankee Group. DiDio said that in the absence of indemnification or specific indemnification provisions, corporations could be the target of an intellectual property lawsuit that they would be forced to defend using their own money and resources.
In some cases, such as free open-source software, beta test software, steeply discounted software or software produced by nonprofits, the vendor may not realize enough of a profit to justify the cost of indemnifying its customers, DiDio said.
“Novell believes open-source software poses no greater risk of intellectual property infringement than does closed-source software, something this Yankee press release certainly doesn’t convey,” said Bruce Lowry, public relations director at Novell. “There’s been a lot of noise in the market around this issue of late, fanned by Microsoft and actions like this from the Yankee Group, but we’re not aware of any patent claim being filed against an open-source offering,” Lowry said.
“Prior to the announcement of blanket and total indemnification, if any user of Microsoft’s software was sued for patent infringement, the incentives would preclude Microsoft from abstaining and leaving their customer on their own, because if the customer lost, that would set precedent against the same Microsoft software used by anyone.”
Therefore, “in order to prevent the software from being stopped, Microsoft would—even without having given an indemnification—want to be involved with any case where its software is accused of infringement in order to protect, not its customer per se, but its software,” Ravicher said.
http://www.eweek.com/article2/0,1759,1743663,00.asp?kc=EWRSS03119TX1K0000594