HP says it isn’t in cahoots with SCO on ‘IP indemnification program’

– By Robin ‘Roblimo’ Miller –
If you obtain Linux through HP, even if it’s on one of its low-cost PCs that ship with ‘Mandrake light,’ HP will indemnify you against any suits SCO might file against you — if SCO decides you are violating its IP rights by running Linux without a license from them. SCO claims HP is validating its claim that it owns at least some Linux code by doing this. HP’s boss Linux guy, Martin Fink, says this isn’t so. And there’s a catch to the indemnification offer: You aren’t allowed to freely modify your source code and still be covered by HP’s warm & fuzzy legal security blanket.Fink claims “only one in 10,000” users ever modify source code, and that if you get your binaries — for any distribution — through HP and use it on HP hardware, you’re covered. If you buy a new HP unit that comes with Linux and install that same version of Linux on that old HP laptop you have in the shed, you’re still covered. (However, if you install it on your Toshiba laptop, you’re not.)

During a conference call at noon today, Fink said they’d check modifications “on a case-by-case basis.” I specifically asked him about removing the OpenOffice.org splash screen, a fairly typical modification, and he was unable or unwilling to tell me whether this simple change in two lines of code would or would not remove indemnification, and he did not tell me where or how to find out.

A few moments later, respected tech journalist (and NewsForge contributing writer) Steven J. Vaughan-Nichols asked if security patches would void the indemnification. Fink said, “If you take them from an unknown third party” it’s a case-by-case thing, but if you get your patches as binaries from a distribution publisher that works with HP, you’re covered.

GPL or indemnification?

It seems that in HP-land, you can choose either to exercise your right to change your GPL-given right to change your Linux source code or be protected from SCO by HP’s broad legal shoulders, but not necessarily both. In a way, you can see HP’s point here. If they provided legal protection against SCO to every modified Linux install on every HP machine, someone would no doubt intentionally add some known SCO-owned code just to force the issue and cause grief for HP (and, of course, for SCO).

But, noted by an analyst on the call, HP doesn’t indemnify third-party proprietary software they sell or resell at all. Fink said that with proprietary software, the publisher usually provides that indemnity. The conversation went on; the analyst pointed out that many proprietary software vendors don’t indemnify their customers. Fink responded that yes, this is a unique situation.

‘We aren’t SCO’s Linux business partner’

Fink used the phrase “business partner” about SCO. Asked how this should be interpreted, he said, “SCO and HP had a long history where we sold their OpenUnix on HP Proliant servers.” When I asked if anyone was still buying OpenUnix though HP, he hedged with a small laugh. “I don’t track those numbers,” he said. He also pointed out that SCO and HP have no Linux-based business partnership.

Fink was asked what he thought about SCO’s allegation in a press release sent out earlier today (full text at the end of this article) that said,
“Rather than deny the existence of substantial structural problems with Linux as many Open Source leaders have done, HP is acknowledging that issues exist and is attempting to be responsive to its customers’ request for relief. HP’s actions are driving the Linux industry towards a licensing program. In other words, Linux is not free.”

He called SCO’s words “an interesting spin” and carefully pointed out that HP has no official position on the validity of SCO’s claims. “That’s up to the courts to decide,” he said.

He said, “HP’s thinking was the indemnification was better than countersuits and other possible measures. These are big, complex issues, and it takes time to work through them all.”

Fink used several marketing-type phrases about how SCO-proofing HP’s Linux customers is, “differentiating ourselves from the market,” and at one point asked the very valid question, “Where’s our competitors?” Obviously, IT buyers (in HP’s opinion) are supposed to want to “work with a vendor who stands behind their customers.”

But there’s yet another catch: Right now now, HP is only indemnifying their Linux- using customers against Linux-based IP suits
from SCO. If another company decides that they, like SCO, own some or all Linux IP, you are on your own.

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Full text of SCO press release issued 24 Sept 2003 about the HP indemnification program:

LINDON, Utah September 24, 2003 – The SCO Group, Inc. (NASDAQ: SCOX) today made the following announcement:

HP’s actions this morning reaffirm the fact that enterprise end users running Linux are exposed to legal risks. Rather than deny the existence of substantial structural problems with Linux as many Open Source leaders have done, HP is acknowledging that issues exist and is attempting to be responsive to its customers’ request for relief. HP’s actions are driving the Linux industry towards a licensing program. In other words, Linux is not free.

We are gratified that, alone among the major Linux vendors, HP has taken a strong stand to protect their customers by indemnifying them against possible legal difficulties stemming from their use of Linux. We believe that this action signals that HP recognizes their Linux users could, in fact, face litigation because of copyright violations and intellectual property problems within Linux. As a company that strongly supports its customers, HP has done something about this.

Now that HP has stepped up for its customers, SCO once again encourages Red Hat, IBM and other major Linux vendors to do the same. We think their customers will demand it.