JBoss indemnifies. But does it really matter?

JBoss indemnifies. But does it really matter?

Summary: Read the fine print. Or, ask for it. That's the moral of this blog.

TOPICS: Open Source
Read the fine print. Or, ask for it. That's the moral of this blog.

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

Topic: Open Source

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  • Just another publicity stunt

    They will never need it. If they need it,
    JBoss won't have enough money to pay for it.
    It's just another publicity stunt!
  • JBoss Program


    Our objective at JBoss was to move the needle forward on Indemnification and all you can do is bash?

    To be clear on a couple of points:
    - No one else is nearly as aggressive as JBoss is with this program. Most normal programs limit total liability to the value of the contract.

    - JBoss is basically saying that we will put all of the resources of the company behind the projects that we support.

    - Yes we are a small, private company. However our resources are fairly good. It is public knowledge that we received $10M in funding last year. It is also public knowledge that we have been running on a cash flow even basis, which implies the $10M is there. Brad also confirmed that we have incremental insurance. But most importantly we have the people that wrote 90%+ of the code across our projects. If anyone can fix it, we can.

    - Let's take a worst case scenario (which it seems you guys like to do). Someone like Microsoft comes along and decides to put JBoss, Inc. out of business. Because the open source project is separate from the company, the project lives on. There is currently about a $5-10 Billion ecosystem surrounding JBoss. This means JBoss would be able to rise from the ashes either with a consortium of companies or a new company that would fix whatever infringement there might have been.

    If you want a fuller explanation, please visit my blog at http://www.jboss.com/jbossBlog/blog/

    Bob Bickel
  • FUD

    Where did they get the idea to use FUD to scare people into buying something? A strategy book from the 1980s? As silly as this is, it does underscore why people are abandoning proprietary intellectual property for open source in the first place, to avoid this sort of thing.