May 17, 2004 9:01 PM PDT

Red Hat adds legal firepower

Linux seller Red Hat, tangled in a legal wrestling match with the SCO Group, has hired a new top lawyer from IBM.

Michael Cunningham, who will join Red Hat on June 1, previously was associate general counsel for IBM's Business Consulting Services Division in Europe. In the new post at Red Hat, he'll be working at a company that has launched its own legal attack against SCO and that is a champion of some unconventional notions about intellectual property.

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Red Hat's current general counsel, Mark Webbink, will become Cunningham's deputy specializing in intellectual property and public policy issues.

Open-source software is created by programmers who cooperate by sharing software freely, a contrast to traditional proprietary software methods in which a program's underlying source code is kept secret. With SCO's case, which alleges that Linux infringes SCO's Unix copyrights, the intersection of intellectual property law and open-source software has been getting more attention.

To assuage potential customer legal concerns with using Linux and open-source applications, Raleigh, N.C.-based Red Hat offers a warranty that promises to replace any software found to violate another's copyrights. Novell and Hewlett-Packard have taken a different route, offering indemnification, which means they'll reimburse their Linux customers for a certain amount of their legal bills if sued.

With Cunningham's arrival, Red Hat will re-examine its legal protections and other issues. "We continue to examine indemnification. I think Michael will be taking us through a review in everything we do in that area in the next months," Webbink said.

Cunningham left IBM for Red Hat in part because he wanted to work for a smaller company in the thick of major changes.

"Red Hat will deal with those who seek to slow the momentum of open source," Cunningham said. "With a disruptive and transformative way of collaborating like open source, it seems pretty clear that the entrenched interests challenged by it will almost assuredly try to cast aspersions on it and inject fear and uncertainty into the minds of those who embrace it."

Cunningham is a former systems and electrical engineer who worked on projects such as early warning radar systems to detect Soviet attacks during the Cold War. But he then resumed an earlier plan for a law degree, earned one from the University of Pennsylvania, and headed into corporate law.

Red Hat sued SCO in August, seeking a declaration that its Linux products don't infringe SCO's copyrights or trade secrets. The case awaits a decision in SCO's suit against IBM, though Red Hat is seeking to reawaken its case.


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