By: Pam Fulmer of Tactical Law Group and Ryan Triplette of Coalition for Fair Software Licensing

​Software is inherently technical, but its licensing terms do not have to be. On the contrary, it is a best practice for licensing agreements to be clearly written and easy for customers to understand. That is why the first principle of the Principles of Fair Software Licensing is that “Licensing Terms Should Be Clear and Intelligible.”
 
Unclear Licensing Terms Leave Customers Confused and Vulnerable
When licensing terms are not clearly written, customers in the cloud and on-premises are left vulnerable to hidden clauses, stealth or soft audits, and other predatory behaviors.
 
Difficult to find or decipher licensing terms are more common than one might think. The Coalition for Fair Software Licensinghas heard from customers experiencing issues with contract clauses that are not readily apparent or easy to understand. Customers who, despite doing the necessary due diligence prior to signing, are not aware of some of the most important clauses until a problem arises. Given the fact that the only recourse these customers have had to date has been either to purchase products that they do not need or manage litigation, we feel it is important to shine a light on some of these terms
 
For example, Oracle customers who finance their cloud purchases through Oracle Credit Corporation (“OCC”) may not be aware that the standard financing contract allows Oracle to assign the financing agreement to third-party banks.  These customers - generally small and medium sized businesses, including retailers and franchisees - have been surprised to learn that the third-party banks expect to be paid in full on the loan “come hell or high water” even if Oracle itself has completely failed to deliver a working ERP solution. Recently, these banks have filed waves of lawsuits against Oracle customers involving such OCC assignments. Judge Leighton of the Western District of Washington presiding over one such lawsuit noted that the arrangement most likely failed for lack of consideration. According to the court:
 
"[t]his clever arrangement seems designed to subdivide the payment and performance aspects of Oracle's agreement with [its licensee] into different contracts, thus ensuring payment even if Oracle fails to deliver the promised services. The result is a disturbingly imbalanced transaction that preserves OCC's ability to terminate [licensee’s] rights to the cloud services if it fails to pay but denies the [licensee] the same opportunity to avoid payment if Oracle breaches. Unfortunately for Oracle, such an arrangement would likely be illusory or lacking in consideration. See 1 WILLISTON ON CONTRACTS § 4:27 (4th ed.) (contracts are illusory where one party can decide for themselves the nature and extent of performance)." Key Equipment Finance v. Barrett Business Services, Inc., NO. 3:19-cv-05122-RBL, 2019 WL 2491893, (W.D of Washington June 14 2019)."
 
The Coalition has also heard from customers struggling to understand the terms and scope of use of the licenses purchased from legacy providers. This includes customers who are seeking to ensure that they are in compliance with their contractual terms, only to be surprised to learn just what that entails. World-renowned analyst Gartner reported that, “[t]here are also restrictions with the use of Microsoft licensing on Azure itself that are often not communicated to customers. For example, customers are not told about restrictive rules under Azure Hybrid Use Benefits in Azure multi-tenant environments.” The company’s most recent licensing changes have created new layers of complexity for providers and customers alike, with new – but unclear and uncertain – limitations. Many customers have also experienced unexpected costs and extended terms with their licensing terms. Even as customers struggle to understand what this most recent round of changes mean to them, another set potentially sit on the horizon.
 
While these are known and well documented issues that customers are experiencing with their contracts, it is worth noting a few others that have not received much coverage to date.
 
Such is the case of some SAP customers seeking to purchase additional product seats to account for new employees and ensure compliance with existing contracts. What they think will be a (relatively) simple process quickly becomes an opportunity for SAP to force them to re-up the entirety of the underlying contract for an extended term. These customers are finding themselves in a Catch-22 position: either remain in compliance but locked in to a longer term relationship with SAP, limiting their ability to choose alternative vendors that better meet their needs in the future, or risk repercussions for operating out of compliance with their contract.
 
What makes this so interesting - if not disconcerting - is that it is occurring just as many customers are having to navigate increased maintenance fees for their products at the very time they are being forced to evaluate their long term relationship with SAP. It is important to understand these issues as backdrop to recent calls by user groups for SAP, “to offer transparent, flexible and scalable cloud agreements with the corresponding metrics, as well as binding statements and roadmaps for product strategies for cloud and on-premise solutions.” 
 
One final issue that the Coalition has heard from a number of experts raise in recent weeks is another potential round of changes to Microsoft’s Licensing Mobility program that would preclude customers from any avenue of utilizing their licenses on Listed Providers. It is worth noting that the companies included as Listed Providers just happen to be Microsoft’s most significant competitors - but does not provide any clarity as to the reasoning for their inclusion or whether other providers will be included in the future. 

That Microsoft includes itself as a Listed Provider does not level the playing field. Indeed, the Azure Hybrid Benefit essentially exempts Microsoft and its customers from any of the Listed Provider restrictions, as long as those customers use Azure. While it is hard to speak to contractual changes that are, at this point, purely conjectural in nature, the current and potential ramifications for customers already managing the impact of the changes made to the integral software’s licensing terms to date highlights the importance and need for clarity and predictability both for existing and future contracts.
 
Straightforward Licensing Terms Help to Support All Customers, Especially Small and Medium-Sized Businesses
Having clear and intelligible licensing terms empowers customers. This is especially true for smaller businesses that have limited budgets for digital transformation strategies and do not have the means to wage massive legal battles.
 
The threat of expensive and resource-consuming litigation with legacy software providers causes fear among even the most well-financed enterprise customers. Unfortunately, most customers capitulate to unreasonable demands from these providers and end up paying more money than what is owed. Many customers will even agree to purchase products that they do not need to avoid legal action.
Small businesses are particularly vulnerable due to reliance on software providers and often narrow budget margins. For example, Oracle uses its non-contractual partitioning policies during audits to gin up large “shock numbers” for alleged non-compliance involving the customer’s use of VMWare virtualization software, which findings it presents to its customer in final audit reports.  Then Oracle magnanimously agrees to waive the audit penalties based on a provision that is not even in the contract, provided that the customer agrees to enter into a new Unlimited License Agreement (“ULA”) with its pernicious total support stream obligation. The customer then pays more money for software that it doesn’t need or want with expensive continuing maintenance and support obligations, just to resolve an audit based upon inflated audit findings. Such predatory audit practices are detailed extensively in the First Amended Complaint in the Sunrise Firefighters securities class action lawsuit in the Northern District of California.
This is why the Coalition formed – to provide power in knowledge and numbers and advocate for commonsense best practices that put customers, including small businesses, first.

Software Providers Should Adopt the Principles of Fair Software Licensing
Ensuring that licensing terms are clear and intelligible is not just common sense, but imperative at a time when customers need maximum contractual clarity and cloud flexibility to manage the budgetary crunch of the recent economic downturn. However, they are not nearly as common as they should be. Customers should be able to easily access and understand their licensing terms upfront and be able to easily determine their licensing costs and obligations. They should not be forced to click through a series of hyperlinks to just understand simple obligations - let alone critical terms related to payment for non-service, compliance implications, and mobility. It is critical for software providers to stand with their customers and adopt the Principles of Fair Software Licensing, which will encourage other software providers to follow suit.