InfoWorld has a story about an announcement from JBoss that the open source provider of J2EE-based application servers is strengthening its indemnification against intellectual property-related claims. As a side note, for a good icebreaker on indemnification, see ZDNet's Protect Thyself 101: A primer on indemnification written by ace tech lawyer Joseph Rosenbaum (who also puts out a great tech law newsletter).
The InfoWorld story raises questions about how far certain solution providers can really go to assure you that you'll be able to survive an intellectual property infringement suit should one be filed against you. For starters, the likelihood that end-users will be sued for the misappropriation of open source-related intellectual property is virtually nil. I say "open source-related" because when it's commercial software, end-users get nailed all the time for "theft." Usually, the Business Software Alliance does the dirty work. To vendors, having the BSA be the heavy is a clean approach that disguises the way vendors sometimes sue end-users. Suing end-users, as it turns out, is really bad for business. The same is true for when the potentially misappropriated IP is open source-related, exacerbated by the fact that finding the smoking gun in such cases is significantly more complex given the legally untested and incredibly liberal nature of open source licenses.
This is why I believe the risk to end-users is minor. (Things are different if you're a distributor, re-distributor, or a derivative-distributor of open source.) As such, although corporate attorneys regularly comb through software licensing agreements before allowing their businesses to engage a solution provider, end-user indemnification announcements appear to not only amplify, but prey on fear. Everybody is talking about the risk. Therefore, it must exist and because it does, I better seek refuge. This environment of fear, largely created by vendors, creates an opportunity for them to win your business by offering such refuge. So, it comes as no surprise that several vendors, and now JBoss, have stepped forward to say "we will go to the legal mat for you."
Technically, according to the story in InfoWorld, and another in eWeek, the new indemnification program consists of three components. Says the InfoWorld story, they