Indemnity Protection for Linux?

spookymonster asks: "I'm a mainframe sysadmin for a Fortune 50 company. I'm also a Linux hobbyist. About 18 months ago, my request for a proof-of-concept z/Series testbed was granted, and the results have been encouraging. Despite this, senior management keeps saying that Linux isn't ready for prime time. Today, I was finally able to corner one of them and ask him what exactly his issue was with Linux. His answer: Indemnity. All our other software vendors provide protection against someone suing us for using their product. Who protects us if a third party sues us, claiming Linux infringes on their copyrights? Sadly, I was at a loss for words. I've done some digging on Google, but haven't really found anything on the subject. With the SCO/IBM lawsuit heavy in the headlines of late, I figured I'd turn to the Slashdot community for answers. How do I respond to questions about Linux and indemnification protection?"

Comments

Good question, but I want to extend it

[mirabilos]

It's really a good question, and I have no answer
for you, I'm sorry.
But I want to extend the question on BSD Unix, i.e.
OpenBSD, NetBSD and FreeBSD.

Also I want to remind you that /. is US-centric, but
the world is more than USA. I'm, for example,
under European law.

Re:Good question, but I want to extend it

[Anonymous Coward]

" Also I want to remind you that /. is US-centric, but
the world is more than USA. I'm, for example,
under European law. " ....but the European version of slashdot is NOT European centric? In defense of /. they accept posts from everywhere and everyone.They even accept YOUR post!
European law will not add vast resources to solving the stated problem of Linux indemnification. Linux indemnification is like placing childproof caps on bottles of milk! Linux and the way it is created and supported as well as the BSDs, points out the necessary paradigm shift required when using the open source product. To indemnify - not! To self assure is the point. You have the target platform and environment and source code for Linux. If Linux fails to some how meet mission specs - fix it! If it( Linux) conflicts with other software through dependencies or other OS conflicts, someone just fell asleep at the wheel / drawing board. Just how broke can the system get?!! No, this one question points out the difference between proprietary blinders and open source open -ness. 'Nuff said. ny questions?

Lloyd's of London

[Johnny Mnemonic]

These aren't good answers, but maybe it start you thinking "outside of the box."

1) Will MSFT really provide this indemnity protection? Do they say they will? If so, has that provision ever been tested? If they don't, or won't, then of course it's not fair to compare apples to oranges.

2) OTOH, you might try 'speciality' insurance companies. I have no idea what the rates would be like, but you can certainly buy insurance to cover any eventuality you can imagine--another poster here once talked about purchasing insurance against the loss of moon rock that they were testing. Which is just to say--just because "Linux insurance" isn't on a regular schedule doesn't mean that some actuarian won't give you a price. If you need to make calls, I would start with "Lloyd's of London", known for providing insurance for unusual events.

Finally, I think your concern is a real one--what's to stop me from using code that I developed elsewhere and contribute it back into the Linux source?

Re:Lloyd's of London

[bob_dinosaur]

Yes, Microsoft will give you indemnity protection. Not sure if they do for an individual user, but they definitely do for corporates.

Any software manufacturer that sells into large corporates will have indemnity insurance - they simply won't get any contracts otherwise.

To answer the original poster's question: if you buy a support contract from Red Hat / IBM / whoever, they will provide you with indemnity protection. Possibly for an extra fee, but they will provide it.

Re:Lloyd's of London

[spookymonster]

1) Will MSFT really provide this indemnity protection? Do they say they will?

Since we're talking non-x86 platforms (z/Series, in particular), MSFT really doesn't enter into it. However, my management indicates that it is standard practice for us to require indemnification clauses on all software purchases. Even if MSFT didn't sign such an agreement with us, a majority of vendors apparently have. Management may argue that the monopolistic nature of MSFT required them to make an exception for Bill and the boys.

2) OTOH, you might try 'speciality' insurance companies.

Unfortunately, this brings Linux's primary selling point, TCO, into question.

Re:Lloyd's of London

[dbrutus]

It might, however, be useful to know how much such a policy would cost per server, per company, and globally. If the numbers are low enough, there would be a business case for linux consultancies to provide it, or in the last case, for the community to pass the hat around.

Re:Lloyd's of London

[spengler]

Regarding Microsoft's "indemnity protection": What about the recently appearing case of MS SQL Server, which featured a unrightfully bundled third party software, for which now MS customers seen to have to pay license fees?

Re:Lloyd's of London

[Anonymous Coward]

" Finally, I think your concern is a real one--what's to stop me from using code that I developed elsewhere and contribute it back into the Linux source? "
Actually, ask RAMBUS Inc.ASk them what happens, or read what happens, when a company ' donates ' hardware intellectual property to a consortium of businesses who are creating a market standard and then sues the consortium for patent infringement / violations. You lose! You lose the IP. You lose stock value. Your stock owners sue you. You get kicked out of the consortium. You lose so much market share on your other IP that you might as well go bankrupt!You lose, lose,lose! And do not say it cannot happen to anyone in software copyright action!

Commercial solutions provide indemnity?

[joebp]

Tell that to users of MS SQL Server users who are liable to pay royalties to a third party.

What's the practical difference buying from, say, Redhat over buying from MS or Oracle?

Re:Commercial solutions provide indemnity?

[oni]

Wasn't there another case some years ago where a hospital built a system in SQL Server that broke due to a bug in SQL Server itself - the hospital had to reimplement the system in Oracle at considerable expense. So, they sued MS for damages. MS successfully defended itself from the suit by arguing that the EULA protected them in cases where their product didn't work as advertised.

So, you buy a database to store data. The database does not work. You have no legal recourse.

I searched google but can't find a link. Is anyone familiar with this case?

Re:Commercial solutions provide indemnity?

[Anonymous Coward]

I searched Westlaw, and using your definition of the case, there is no such case. Could you have the facts wrong?

Re:Commercial solutions provide indemnity?

[Finuvir]

I believe that in this sort of case you would be entitled to your money back, but it wouldn't make sense for Microsft (or anyone else) to have to reimburse more than they were payed for the product. If you want the added security of garunteeing against failure you have to pay extra for insurance.

The Wisdom of Hondo

[Anonymous Coward]

"Your OS is writing checks your company can't cash."

Simple

[91degrees]

Buy it from a vendor.

Perhaps none of them will offer the level of indemnity that you require, but if you ask enough of them, it may convince one of them that this might be a viable business model, and start offering it in the future. Essentially you'll be paying for insurance rather than software, so this would be an interesting new way for making money from open source.

Patent infringement and own use?

[Reemi]

Suppose a company produces software for internal use only, do they have to be afraid of patent infringement?

What if my company (or I) buy software that is covered by a patent but for wich no fee is paid (Linux). Am I allowed to use it internally?

Thanks in advance.

Re:Patent infringement and own use?

[91degrees]

Legally - no.

Practically speaking though, it's impossible to enforce.

Re:Patent infringement and own use?

[Anonymous Coward]

No. Patents are for the invention -- you don't get to have the invention if you don't own the patent or a license, even if you invented it on your own. Even if you never saw that other fellow's invention -- if it's the same thing it belongs to him (but if you don't tell anyone they won't know).

Same with copyright -- you can't copy the code for spell-checking from Word for your internal word processor, that's a derivative work. The difference is if you invent it on your own it's not copying, so copyright doesn't apply. But if you've seen the other guy's work, you're "tainted" and copyright can apply, if you write something substantially the same later. Pheonix used a clean-room approach to re-inventing the PC BIOS because it wasn't patented -- it was copyrighted.

If you own the copyright or patent, it's yours, you can do what you like. Or if the license is available to the public (like GPL and some patents) then you can follow the terms of the license. A fee for a license is not required but consent is required (and often the other guy will want a fee in return for consent).

But this is about indemnity -- I think the original poster's boss is nuts, or else has a very special agreement with his software suppliers. In general they (explicitly, in their license) disclaim indemnity of the purchaser but require indemnity of the seller. So you're on the hook anyways, with no-one to sue unless they committed a crime selling it to you (like fraud). Then you can ask the court to set aside the agreement, including the indemnificaiton of the seller. The boss should talk to his lawyers again, and look at the SQL server case.

I am not a lawyer. Consume this article with 64.799 milligrams sodium chloride.

Re:Patent infringement and own use?

[Anonymous Coward]

In the US, it's illegal to make, sell, or use a patented invention without a license. There are narrow exceptions for learning (how the intention works) and research (improving it), but they can come after you for simply using the invention to its intended purpose. "I wasn't selling it" and "it wasn't for business" are not defenses.

MSFT doesn't provide it either...

[sprzepiora]

Just look at the the MSSQL ruling posted to slashdot not to long ago. MS left some of their customers out to dry to pay royalty fees to a third party because MS's license didn't allow customers to use it.

What indemnity?

[AlecC]

How much is the indemnity you get from the closed-source suppliers worth? Here is a story about users of Microsoft SQL Server possibly being sued for proprietary software incorrectly or inappropriately included by Microsoft in SQLSever.

Of coursse, this is at the start of litigation, and no-one knows how it will turn out. But isn't this exactly what your executive is worrying about happening with Open Source software? And this is from the Godzilla of them all, Microsoft.

No-one can make you perfectly safe from such claims - valid or invalid. But with open source, it shoudl be a lot easier to establish the truth of such allegations, because the source is available, and trackable, a long way back. If closed-source supplier A alleges that closed source supplier B has pirated code, you are into heavy calibre lawyers before source gets disclosed under court order. With open source, you go to the CVS tree, check earliest versions, check dates.... False claims should be seen off pretty quicly. And someone filing proprietary code as OS would be pretty visible (and spurned) within the community.

And if it turns out that you have been using some stolen code, with OS you at least have the option of throwing out only the stolen bits and rewriting them, whereas with closed source you are dependant upon your supplier doing that for you - if the lawsuit hasn't destroyed them, which it would do for a small company (and then where is your indemnity? At then end of the trail of unsecured creditors, I should think).

To summarise: such situations are much less likely to occur with Open rather than Closed source. If they do occur, that indemnity has a good chance of being waste paper. Meanwhile, you have paid out *a lot* in licence fees for a very threadbare security blanket.

I don't konw about you...

[Bush_man10]

But i had to look up what Indemnity means. I myself am curious as to what companies will pay for damages for using their software. It would be nice to see Microsoft pay for the billions of dollars of damage there software causes on the internet due to worms and the sort.

Re:I don't konw about you...

[SN74S181]

Remember, we are talking about real companies that make productive use of computers in their business. It's debatable wether 'damage on the internet' actually would be considered a liability. At many companies if the Internet was totally fscked up, their employees would just spend more time doing the actual work in their job description.

Perhaps Microsoft is due a bonus.

Re:I don't konw about you...

[Bush_man10]

I stand corrected. You're right though about employees spending time on the internet. Sure I posted that comment while I was at work. :)

Surely your in-house counsel would have an idea?

[twilight30]

Not to trash the questioner, but if you work for a Fortune 50 company, surely your in-house legal department would have some idea, no? As another poster suggested, Red Hat or IBM will definitely provide this: I'm sure that RH's announcement yesterday of Advanced Server revisions is pertinent (though not directly to do with indemnity issues) to you on some level.

You're an admin guy, you know Unix. The legal people know the law. Ask them to look into it, and cc the manager you talked to so that both sides know you want this examined seriously.

I didn't understand

[inerte]

All our other software vendors provide protection against someone suing us for using their product.

You mean someone can sue you because you are using a program that infringed a law, but you weren't aware of? Or would you be aware, ie: The software producer would inform you that his product infringes a law?

I didn't get. Is this possible? I am not from USA (if you are), so things might be different there.

But wouldn't this be like RIAA suing listeners of a radio that plays "pirated" music? Or BSA suing players of a LAN house over "pirated" Half-Life copies?

Just want some clarification of why, and how, this is possible...

Re:I didn't understand

[inerte]

Just adding: I've mentioned copyright infringements, but it's a broader question.

For example, can the State sue a driver if a car break fails and it provokes an accident?

There are many possibilities. I think it's *very* strange that you get sued because of this...

Re:I didn't understand

[blahlemon]

As a general rule, ignorance doesn't stand up in court. You are expected to be aware of the rules and regulations surrounding the things you use and/or do.

So, if you listen to a radio station that plays pirated music and there is a law against listening to radio stations that play pirated music you could, theoretically be charged. However it is unlikely you would be because 1: how do you locate the people listening unless they are part of a members list and 2: there is the question of whether or not you can be reasonably expected to know that the music was pirated.

I think it's the reasonable expectation that surprises me the most about the Microsoft thing. Unless it's stated somewhere in the EULA how could the people using the software be reasonably expected to know that it was causing a patent infringment? I don't know the particulars of the case, having only glanced briefly at the story once before but I would imagine that is someone contests it in court they could be released from having to pay.

Re:I didn't understand

[cgenman]

If you are using a program that infringes upon patents, and have been informed of such (Timeline informed many of Microsoft's customers), you could be liable for the time that you infringed upon the patent and knew about it.

But if your enterprise has written a 15 million dollar application that relies upon a codebase that is patented, so long as you continue to rely upon that codebase you are required to gain a license. Upon being informed of such a problem, you can either pay the hefty licensing fees or re-write the software for a different codebase to a hefty cost.

Whatever happens, you should sue whoever licensed you the rights they didn't own in the first place.

To extend your analogy, it is like the RIAA suing people who unknowingly bought pirated copies of CD's, and who continue to listen to them. Despite a good-faith effort, the people who bought the CD's have no license to use or listen to the music, and doing so would require then acquiring a license from an appropriate vendor. Of course, if the pirates were a software company, they would disclaim liability due to the EULA...

Re:I didn't understand

[John Hasler]

> As a general rule, ignorance doesn't stand up in
> court. You are expected to be aware of the rules
> and regulations surrounding the things you use
> and/or do.

You are confounding criminal and civil law.

> I think it's the reasonable expectation that
> surprises me the most about the Microsoft thing.
> Unless it's stated somewhere in the EULA how
> could the people using the software be
> reasonably expected to know that it was causing > a patent infringment?

If they can show that a reasonable and prudent person would not have known they become "innocent infringers". As such, they are not liable for damages if they stopped infringing as soon as they were notified.

> I don't know the particulars of the case, having
> only glanced briefly at the story once before
> but I would imagine that is someone contests it
> in court they could be released from having to
> pay.

It seems like it is the position of the courts that no prudent person would ever offer anything for sale without first doing an exhaustive patent search.

Re:I didn't understand

[Grotus]

For example, can the State sue a driver if a car break fails and it provokes an accident?

It isn't the State doing the suing in either the question at hand or your hypothetical question.

In the question at hand the party doing the suing is an entity that feels that its intellectual property rights have been infringed upon.

In your hypothetical question, the driver with the failing brakes would be sued by whoever he hit (and his insurance company would be the one to fight it or pay).

And the driver could probably sue a number of entities: the car manufacturer, the car dealer, the mechanic who last worked on his brakes, etc. This action might also be handled by the insurance company.

Re:I didn't understand

[n9hmg]

On that specific one, the driver is responsible for the safe functioning of his automobile. If you're test driving a brand-new car on the dealer's lot, and engine goes full throttle and crashes into their building, you are legally responsible for all damages. Of course, their own responsibilities to you, and the manufacturer's responsibilities to them, etc., mean that the example isn't quite as bad as it sounds. The point is, "The brakes (that's how it is spelled, incidentally) didn't work", "The tire blew", or "That truck splashed mud on my windshield just as I came into the curve" are all just other ways of saying "It's my fault".

I'm sorry.

[HaloZero]

But I don't think I totally understand the problem here.

Reading the other user comments posted, I come to the conclusion that if your software damages their hardware, then they can sue you? That... sortof makes sense. Maybe in some twisted abstract way, but how the hell would that have anything to do with the platform it was developed on? I mean, there's a HUGE difference between Unix and Windows development, etc etc, but what element between them could possibly be so damaging? Different end-of-line characters? I think not.

I must be missing something here, because this legal issue does not make sense. If they use it wrong, and muck up their stuff, they can sue you? That's not cool. If you code it wrong, they can sue you, that's right, but you want to blame the OS on which it was developed in order to save your own asses and redirect the blame to another, probably innocent company? Um. No?!

I think he got it backwards

[g4dget]

Today, I was finally able to corner one of them and ask him what exactly his issue was with Linux. His answer: Indemnity.

Sounds like he was just looking for a pretext.

All our other software vendors provide protection against someone suing us for using their product.

If anybody indemnifies anybody, it's usually the other way around. At least all the Microsoft EULAs I have seen say something like

you agree [...] to indemnify, hold harmless, and defend Microsoft from and against any claims or lawsuits, including attorney's fees, that arise or result from the use or distribution of the Application

(this one is taken from here).

In general, I think anybody who offers a Fortune 50 company protection from lawsuits is a fool or speculating that they'd go bankrupt anyway if that should ever come to court (and you would still get sued).

I also doubt this kind of indemnity would be useful for Linux even if someone offered it. I mean, how often has this come up over the last decade? These kinds of lawsuits seem like such a rare occurrence when it comes to open source software that it just doesn't seem worth worrying about.

Re:I think he got it backwards

[dubl-u]

Today, I was finally able to corner one of them and ask him what exactly his issue was with Linux. His answer: Indemnity.

Sounds like he was just looking for a pretext.

Maybe. Or he might really have made a calculated business decision about it. (To check, ask him the terms and sizes of indemnity protection that they require. If he knows, then he might be serious.)

But to my mind, the most likely explanation is typical large-company cover-your-ass behavior. Large companies typically punish for failure more strongly than the reward success. One way to deal with this is to always have somebody else available to blame in case of failure.

I'm a freelance consultant; last year I did some work for a fortune 50 company. They offered me a job, but I said, "No, I'd like to stick with my freelancing ways." To get me in, I had to be on the list of approved vendors; I ended up having to subcontract through one of them. When I asked why they couldn't just contract with me directly like everybody else, they said that their vendors had to have deep pockets, so that they could sue them if something went wrong.

This was, of course, ridiculous: they didn't require their employees to have deep pockets, and when they screwed up, they didn't sue them for millions. (If anything, they promoted them.) But they weren't budging, so I charged them enough extra to pay for the middleman and forgot about it.

Re:I think he got it backwards

[SN74S181]

Large companies typically punish for failure more strongly than the reward success.

Umm, well, most large companies reward success by issuing regular paychecks. That's a pretty substancial reward.

Re:I think he got it backwards

[bmckeever]

This was, of course, ridiculous: they didn't require their employees to have deep pockets, and when they screwed up, they didn't sue them for millions.

It's not legal (in the US) to sue an employee for screwing up except for cases of gross negligence.

Vendor liable

[Rolgar]

It seems to me that the vendor who was making money from selling a patent infringing product could be sued, but I can't think of anyway that a company could be liable for using software. Wouldn't that be like Chevy suing owners of a Ford vehicle that infringed on some patent of Chevy's. You might check with your legal department about that

Re:Vendor liable

[spookymonster]

Check out the story on The Register that everyone keeps mentioning, and you'll see a clearer example of what I mean. According to the story, Timeline may be able to demand license payments from Microsoft SQL server customers. A Washington court stated that the fact that Microsoft told customers they didn't need any additional licensing didn't remove the customer's obligation for due dilligence. This is all under the terms of Microsoft's standard licensing agreements; no mention is made of what would happen to customers that had separate indemnity contracts.

If anything, this article supports the argument that separate indemnity contracts are crucial when making large investments in other people's code.

How Open Source Solves the Problem

[blahlemon]

Open Source Vender 1: You're using my code illegally

Open Source Vender 2: No I'm not, but if you think I am bring your code, I'll bring mine and we'll discuss it at the pub

(Many hard drinks later)

Open Source Vender 1: Fusking M$ and closed source is killing the world man.

Open Source Vender 2: Fusking eh, down with M$...Now what the hell were we arguing about?

Re:Surely your in-house counsel would have an idea

[tenman]

It would be interesting to see how RedHat is going to provide security to me. The original poster was talking about enterprise level Z/OS machines, not a farm of x86 boxen. The world doesn't revolve around the hordes of college geeks and the ubber fast 'leete machines they run. Your bank can't afford to be caught with their pants down, and that is why they go with the IBM flavor of Linux, which is bastardization of SUSE. But, for all who care, IBM offers the exact protection the original poster is requesting. I know, cause there is a Z/OS mainframe box on this floor that we run linux on it. While this one isn't in a development role, the shrink wrap wouldn't have made it into the building without our in-house legal department's approval first.

Check the license.

[stienman]

Show them the software license, specifically section seven which may or may not apply, and sections 11 and 12 which do apply:

Section 7 (in part): If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License.

Section 11 (all): BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

Section 12 (all): IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

So the straight answer is that the word indemnification does not occur in the license. Whether the license has no, little, or good indemnification should be judged by a lawyer. It seems as though the GPL protects those who wrote, modified, and distributed the programs in question from those who use the program, but doesn't seem to extend any special protections to those who use the program from their customers or other third parties.

My limited understanding of indemnity is that it's usually in a contract between a software supplier and a client, and the supplier usually carries insurance to cover indemnity claims. Thus, for Linux to have indemnity you'd have to contract to, say redhat, for the software and set up a clause in the contract specifically covering this issue.

-Adam

"I'm not a lawyer, but I play one on slashdot..."

Re:Check the license.

[AlecC]

Which is exactly what the questioner is worried about. His exec wants an indemnity. You don't get onw with Linux, because indemnities cost and Linux is, broadly speaking, free. As posted elsewhere, I don't actually think that indemnities are worth much. The gap between "the indemnity doesn't cover your case" and "we stole code - we're dead, and so is your indemnity" is so small that it is barely visible.

Invest the money you would have spent on an indemnity in your own GPL support/development team. If/when the issue comes up, get them to rewrite the infringing code. Meanwhile get/give other good code.

This is a laugh

[aminorex]

Your chances of getting sued for using Linux are
considerably less than your chances of getting hit
by a meteor while skydiving naked. (Which you are
also not insured for.)

Get back to us when you're back from the laughing
academy.

Re:This is a laugh

[SN74S181]

However, your chances of getting sued because of using Linux are about the same as your chances when using any other software. So if these penny-pinching 'suits' are paying for indemnity insurance, there must be a risk associated with it.

Don't go out there and try to do business with your pants down. It's bound to get you in trouble.

Get back to us when you've taken a short courss in management at the business academy.

probably the same that would happen...

[honold]

if amazon, google, and etrade got sued for infringing on others patents for running linux.

odds are these are much bigger companies than yours, and none of them appeared to be concerned about lawsuits when they made public announcements about their use of linux-based servers.

http://news.com.com/2100-1001-275155.html

http://www.internetwk.com/lead/lead060100.htm

http://linux.bryanconsulting.com/stories/storyRe ad er$157

Re:probably the same that would happen...

[spookymonster]

odds are these are much bigger companies than yours

No odds about it:
Amazon - #492
Google - not listed
E*Trade - #686

And the fact that no one's filed suit on it yet doesn't mean it won't (or can't) happen. consider the SCO v. IBM case right now. If SCO were to (improbably) win the suit, how big a leap of logic would it be for them to turn around and demand licensing fees from Red Hat, Suse, Mandrake, etc, and/or their customers?

Indemnification

[kristjansson]

OK, your management isn't hot on linux because they can't sue anybody if it doesn't work. I'm not familiar with VM/ESA's licensing agreements, but I can't name a single vendor that produces a product that their licensing claims is useful for anything, or that will indemnify if the software is a complete piece of crap. Nothing else in the US can be sold with the same disclaimers against liability as software because of the Consumer Protection Act. You can sue the vendor if you buy a lamp that has a defect that causes your house to burn down. You can't sue your vendor if their software loses data, infringes on someone else's patents and you get pulled into a liability suit, or their OS can't stay up for more than a week without hard-crashing.

Now, I'm going to go out on a limb here and guess that you're in a shop that already has at least one z390 available, or that your company has a lot of cash to burn. The reason I am inclined to this opinion is that a nice, shiny new z390 costs about $50K USD. Having a partition added to an existing z390 costs more than my car and my wife's car put together. In either case, there is still a real cost per cycle of computing on that platform that even a PHB can see. Find out what IBM is providing license wise under VM/ESA that they don't provide under their licensing agreement with RedHat. Then study the costs of the migration to linux. since any mainframe OS has monthly licensing costs (last I checked, which I will concede was more than a couple of years ago), long-term migration to OSS on the OS side will eventually come out on top dollar for dollar. It also can't hurt to point out that IBM seems to have concluded that linux is the direction for all of their server-class and mainframe machines in the long term.

As an aside, for those of you reminding this guy about the MS SQL 7/2k licensing issues, this case has been in court for about 3 years, and everybody who is about to get hosed on patent licensing was told by MS's PR dept. that they didn't have a thing to worry about. Part of what the customers are getting nailed to the wall on is the > 2 1/2 years that patent licensing has been a known issue where they didn't talk to the patent owners and acquire the appropriate licensing for their copy of MSSQL. In any case, the indemnification argument could work incredibly well as an argument to move away from MS on the smaller servers, but you are going to have to do some homework to get anything done about the mainframes.

Sounds like management-speak

[MobyDisk]

Few people, even business directors, have the legal knowledge to understand licensing issues. It sounds like this guy is just trying to throw out legal jargon so that you cannot argue the points technically. It is an avoidance technique.

have your client sign a contract..

[josepha48]

... that says that they wont sue cause of your use of Linux.. I really think this claim is laim, but it's managment and mangement often thinks of bizare things.

We have clauses in our contracts that say that we are not responsible for clients data. If it get screwed up because of a batch job that is ours, they should taken a backup. While it may be our fault, it's software things like that happen.

My 6.3 cents

[Majestix]

Well, not being very legally knowledgeable I would ask, how would your company be violating someone elses intellectual property by simply using the software?

Thinking somewhat logically (i know logic doesn't always apply in law suits) it would be the coders/developers of the product (linux) that would (should) be the targets of any law suits of that nature.

However, most lawsuits seek to recover perceived monetary losses or to blatantly put a company out of business (not PC i know). Linux on the other hand with its open sourceness (you like that dont ya) would seem to be kind of beyond that. There is no "company/business" to bring a suit against. I dont see how a third party could be help accountable just for using a product that there is no law against using.

Once again, this is just my own stream of consciousness opinion here. But i felt compelled to respond. Theres alot I dont know so flamers be gentle.

Typical management behavior

[dacarr]

Who protects us if a third party sues us, claiming Linux infringes on their copyrights?

IANAL.

I would've thought the answer was simple in that the GPL states that you can't do this - there is, in short, no copyright issue under the GPL.

As far as trademarks is concerned, some of us may remember William Della Croce, a Boston attorney who attempted to enforce trademark on Linux in 1996. Last I recall, the TM was overturned.

Your management's decision on this is extremely confusing. If above and beyond this there are still issues, one is best advised not to use software that they are concerned about, and make sure one reviews any TOU documents with a fine toothed comb belonging to an attorney.

Let me tell you about "idemnity"

[Anonymous Coward]

Gonna have to post this one anonymously! And perhaps I will obfusticate the name of a large software and hardware company....

Our business was about to fold because HAL sold us wares that simply did not do what they promised us it would.

HAL's attitude was "oh well, sorry about that!"

So, the biggest weasel PHB in the company got an HAL big wheel on the phone, and after about a half an hour got said big wheel to ADMIT that HAL had knowingly sold us software that was broken and could not do what they said it would do.

Then, weasel-boy took the SECRET TAPE RECORDING he'd made of that conversation, which mentions dates, places, products, test results, etc. and duplicated it a half-dozen or so times. He sent one copy to HAL and escrowed the rest in various places.

HAL bought back all our stuff at the cost we paid for it AND gave us a $4 million mainframe installation, and all the incriminating tapes were destroyed.

They weren't worried about the legal issues. Your lawyer is full of shit, no software company is legally liable for your losses under any circumstances (barring outright egregious and repeated fraud, and maybe not even then - we'll see how the MS-SQL case works out).

What they were worried about was the PR that we were going to generate when we published transcripts in the New York Times. Sure, they'd sue us and win, but so what - the company'd be out of business anyway.

Sometimes even weasel PHBs have their uses!

So sue me?

[leonbrooks]

What about [...] MS SQL Server, which featured a unrightfully bundled third party software, for which now MS customers see[m] to have to pay license fees?

Microsoft may well argue that the problem is not with their software, it is with the third party's software. The PR to bury that would probably cost less than the legal fees (at least in the short term, and The Road Behind certainly demonstrates short-term thinking), and good luck to the suers chasing down and confronting a zillion individual MS SQL users.

Hands up all those who think MS'd miss an opportunity like that if it was available to them?

Re:So sue me?

[spookymonster]

...good luck to the suers chasing down and confronting a zillion individual MS SQL users.

Hard? All they'd have to do is attach an invoice to some Slammer code and voila! :)

Never mind the indemnity...

[leonbrooks]

...I'm impressed that you can ask work for a USD$250,000 toy and get one!

Or...

[leonbrooks]

...get a wiretap order on Microsoft and spend some time every day sniffing the bazillion or so inbound reports on what is installed on whose machine.

Let me guess...

[RighteousFunby]

This Fortune 50 company is... DUN DUN DUUUUNNNN..... Microsoft. If so, stop trying to get blood from a stone. More likely, a boulder. or asteroid. Or planet.

Re:Let me tell you about "idemnity"

[RighteousFunby]

"HAL's attitude was "oh well, sorry about that!""

BRILLIANT obfuscation there!!!!

Experiences with zseries

[Anonymous Coward]

First off: I have three partitions on z/Series mainframes to run Linux systems on at the company I work for. (I am the Linux admin, not the mainframe admin.) We have a support contract with SuSE for the Linux part, and of course the usual IBM contracts. We had some MySQL troubles, so IBM tested our case in their labs and shipped in some guy from MySQL AB. My point is this: if you have money to burn on a mainframe from IBM with the appropirate support contracts, you're going to be pretty safe. If your company is truely that big, then they WILL manage to convince their vendors to play by their rules. Sure, it costs money, but that's how the world works.

I think your main issue is managers/superiors who're not fond of Linux for one reason or another. Which is a bit weird, considering IBM is pretty eager to get real-life "Linux-on-z/series-experience" under their belt. My experience with the whole mainframe/linux situation has been pretty good. There are kinks to be worked out, but nothing major that I can see.

Just don't roll your own linux system. Buy it from SuSE (SLES8+support contract) or from RedHat (I *think* they have a s390 version now). Check what support contracts are available from IBM. And do show your manager your results. Some real numbers. Something tangible. Preferably in the form of a colorful but short powerpoint presentation. And try to get IBM on board, chances are they'll help you out if your company is an interesting customer in any kind.

[OT] whoohoo! I finally got a negative mod!

[leonbrooks]

First one in months. I was beginning to wonder whether my karma cap was going to explode. What a relief! (-:

Indemnity Protection does exist in embedded market

[Anonymous Coward]

Lineo used to do it, esp. regarding the licensing issues.
Contact one of their reps to know how much the indemnity can be.
You might also ask them about their High Availability support.

AC