Novell denies indemnification of open source software

Some volume purchasers of Novell software (those with Corporate License Agreement and Master License Agreements) did a doubletake recently when they read the cordial invitation to add Novell’s newly acquired Ximian products to the mix the buyers were licensing. It wasn’t that the prices weren’t reasonable, but that there was an addendum to the general license agreement that the customer would have to agree to before they were allowed to buy the Ximian product.

The addendum states: “Prior to Novell’s acceptance of any MLA or CLA customer order for Ximian licenses, Novell requires customer’s acceptance of a change to the indemnity section of the MLA or CLA. These changes state with greater specificity Novell’s indemnification policies with respect to open source software. The acceptance form for this change can be found at https://www.novell.com/licensing/opensource/ .”

Go to that “open source” page, and you don’t find the changes, but do find a link to a file, https://www.novell.com/licensing/opensource/open_addendum.pdf .

That document contains a form to be signed and filed with Novell stating that the buyer agrees with the changes. The form states that: “You agree that Novell will have no liability and no obligation to defend or indemnify You, or to pay any damages, costs, expenses or fines in connection with a claim alleging that a Software product or service deliverable infringes any copyright, patent or other intellectual property right of a third party…”

Which means that if Novell delivers software to you that was developed outside of Novell and contains illegally-used code, then you use it at your own risk, never mind that you’re paying Novell to license and maintain the code.

Now Novell isn’t breaking any new ground here. Most vendors that package open source software by dressing it up with a utility or two, or perhaps porting it to a particular platform, or maybe writing some documentation (whatever it takes to justify selling you what is, in essence, free code) do the same. As the “SCO vs. the world” case shows, it’s hard to pin down the source of every line of code in a piece of software.

There are, however, some vendors that are indemnifying their customers, such as HP (see “HP to indemnify customers,”  https://www.nwfusion.com/news/2003/0924reporhpto.html). HP boss Carly Fiorina isn’t known for being profligate in her spending, so you can assume that HP feels it won’t have to pay out a dime under this indemnification. Even if HP is wrong, the publicity is probably worth whatever the lawyers’ fees would be.

Novell isn’t wrong to deny indemnification, but it wouldn’t win many friends by doing so, either.