Thursday, February 03, 2005

REVIEWING INDEMNIFICATION CLAUSES: More proprietary vendors will be offering indemnification protection to their customers in the coming year; however, not all indemnification offers will be equally valuable.

Karen Copenhaver, general counsel and executive vice president for Black Duck Software, offers advice in this article about indemnifications, getting support from open source projects and protecting internal software developed on open source code.

One interseting point brought up was the collaborative effect that results from a single infringement lawsuit. If one company is using an open source project that many, many other people are using, then you know that if anyone in that user group is sued, others will be concerned as well. In the end, you could get a very powerful reaction to that claim. In patent claims there will be an entire community that will be providing prior art for the validity challenge. They will be looking at how to provide an instantaneous workaround, and they will be testing that workaround. Companies can be in a much better position if they face an infringement claim under these circumstances because there will be a large open source community actually addressing the infringement issue.

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