I thought it worth republishing Dave Welch's (of House of Brick) comments to my discussion on the subject of Oracle licensing costs on VMware vSphere configurations. Here are Dave's comments:

 

All,

 

Let me start by bringing all of you into the courtroom. There are three issues that you will observe me as counsel provide to the jury as part of my allowed instruction (I am not an attorney in real life).

 

I offer the definitions in this paragraph only to make this post as self-sufficient as possible and not with intent to talk down to anyone.  Case law refers to precedents established in other court cases. Case law can supplement statutory law enacted by legislative bodies and can stand in lieu of statutory law when applicable statutory law does not exist.

 

Back to the courtroom:

 

  1. You cannot prove a negative.
  2. Just about every contract that any of our organizations enters into or sees contains a clause that essentially states that the only terms that are binding have been reduced to the fully-executed instrument itself as well as other explicitly-referenced written material, and all verbal agreements and/or representations are null and void. The language usually allows for the obvious possibility of written, fully executed amendment.
  3. As often as original documents are unavailable, courts in all fifty states recognize case law called "best available image.” This refers to copies which become recognized as legally binding as if they were the original. “Best available image” case law has been universally recognized since 1989 when as the Medical Records Systems Analyst for 23 hospitals and 7 clinics in 3 states, I had responsibility to begin architecture for imaging of medical records.


I offer the following as the exclusive binding source documentation for this post:



The OLSA is bi-laterally executed between Oracle and the customer. I have seen many of them as you can imagine in my role as the lead of House of Brick’s Oracle Enterprise License Assessment business line. The OLSA always contains:


  • A reference to other unnamed published documentation, which given the nature of the reference, refers to the Licensing Data Recovery Environments extract of the Software Investment Guide as well as the current Oracle Support policy. Because of the nature of these external OLSA references, I make it my business to occasionally archive current versions of the Software Investment Guide and Licensing Data Recovery Environments document such that any given OLSA can be clearly tied to the external terms in effect as of the OLSA’s execution.
  • A Non-Disclosure Agreement as to the OLSA’s terms. As Oracle publishes template OLSA copies, a reasonable and customary interpretation of the NDA’s coverage is pricing (discounts) as well as any other non-standard qualitative terms that the customer may have negotiated with Oracle. We have initiated for customers and seen Oracle approve non-standard qualitative OLSA terms. However, we have never bothered to initiate sub-cluster licensing terms as there is no need to do so.


The sum and detail of the stock published OLSA and its external Software Investment Guide for at least the last decade and to-date with respect to processor-based licensing is two-fold:


  • Customers must license all physical cores or sockets on a host where Oracle executables are “installed and/or running” (with physical cores factored per Oracle’s published Core Factor Table, and potentially subject to the so-called 10-day rule [whose terms became more restrictive sometime during 2007]). Notice the tense. Oracle customers are contractually obligated for licensing the physical servers where the Oracle executables are and have been, not where they might go. To imply otherwise without explicit contractual inducement would not be unlike concluding that I am legally obligated to purchase transportation to or obtain a visa for destinations that I clearly have the capability of visiting but where I have neither ever been nor yet made a determination to even visit.
  • Furthermore, customers must pay a license to cover the use of remote mirroring at the storage unit or shared disk array layer to transmit Oracle executables to a SAN whether or not and that set of Oracle executables is “installed and/or running” on any physical host connected to the SAN.


When discussing Oracle licensing, there are two common areas of confusion:


  1. Oracle itself defines both of the terms “Hard Partitioning” and “Soft Partitioning” in its Partitioning document, published since 2002. The document makes clear that both “Hard Partitioning” and “Soft Partitioning” have to do with carving up physical cores/CPUs within a single physical server. It is Oracle’s right to define the terms as they relate to the OLSA. I frequently see Oracle reps (knowingly?), customers and others confuse these terms over into a discussion of licensing physical servers within a sub-cluster. As often as unintentional term confusion occurs, I believe it important for authors to make corrective edits after the confusion has been pointed out, especially on a topic with such scaled financial ramifications.
  2. To say that Oracle has not made a statement supporting vSphere DRS Host Affinity Rules (as has been asserted in this thread) is beside the point. That is clearly in the realm of proving a negative. That DRS Host Affinity Rules may or may not be used as a mechanism to assure that Oracle executables are not “installed and/or running” on unlicensed physical hosts is customer-discretionary and irrelevant to the OLSA’s binding terms. I might add that methods existed to restrict VM movement to a sub-cluster of physical hosts long before the vSphere 4.1 advent of DRS Host Affinity Rules.

 

I tried to force both clarifications into Gartner Group’s Chris Wolf’s November 10, 2010 blog thread via comment posting.  I feel that I failed to get Mr. Wolf to directly address my point before he elected to close the thread.  I feel that I failed both verbally and in writing during the pre-publication interview process to preventively insert the clarifications into TechTarget’s Beth Pariseau’s May 4, 2011 article titled “Oracle licensing for vSphere 4.1 irks VMware pros.” Furthermore, the TechTarget article’s title unfortunately implies that Oracle may have licensing terms specific to vSphere version 4.1, which it does not, or licensing terms specific to VMware technologies in any way, which it does not. Thankfully the VMware Corp. November 2011 whitepaper (to which I contributed) “Understanding Oracle Certification, Support and Licensing for VMware Environments” got it right. I can confirm that the entire white paper received all the multi-disciplinary pre-publication review that you would imagine appropriate for a piece of its importance and ramifications.

 

House of Brick is occasionally invited by customers and/or partners to get on the phone with Oracle to deal with Oracle licensing concerns that Oracle has verbally conveyed to the customer.  We always welcome these opportunities.  The most recent call was a couple months ago. An Oracle Corp. licensing specialists was on the call. The impetus for the call was that Oracle had previously told the customer that all nodes in a physical cluster must be licensed, not just those where Oracle executables are “installed and/or running.” We asked the Oracle licensing specialist about the statement.  He informed us that it was Oracle’s policy.  We asked where the policy was written.  He replied that it is an unwritten policy. At this point, we reminded him of the binding OLSA language whereby all verbal conveyances and understandings were voided at the execution of the document leaving only the printed OLSA terms in effect. That was the end of the discussion. The customer left the call entirely and appropriately satisfied as to their full legal compliance with their proposed sub-cluster licensing scenario. This vignette is by no means an isolated incident. The outcome is always predictable and consistent.

 

A previous post on this thread states ‘I've heard Dave at HOB contend the same thing you've heard, which is essentially: "DRS/Host Affinity SHOULD be fine"...’  The quote could be interpreted inappropriately out of context of my consistent, persistent statements. What I have always said is that any method (manual or automatic) to restrict movement of Oracle executables to a licensed sub-cluster of physical hosts is fully OLSA-compliant and legally defensible. At the release of vSphere 4.1, I added the statement that DRS Host Affinity Rules happens to be one, the newest, and the easiest of multiple available methods of restricting Oracle executables’ movement.

 

There are comments on this thread that I believe fall under the umbrella of attempting to prove negatives. Oracle has no legal obligation to go on paper with sub-cluster licensing clarifications specific to vSphere. In my view, Oracle has no financial incentive to do so.  Stop looking for that to happen.

 

Occasionally people actually insist that I produce an Oracle-authored document that says Oracle will not ding them for not licensing all nodes in a physical cluster. That strikes me like asking me to provide an Oracle-authored document that says Oracle will not make a claim against me for choosing to drive a Ford as opposed to a GM. Not only is it asking me to prove a negative which I cannot do, but it delves into an area that is none of Oracle’s business since it is not listed in my OLSA obligations.

 

I see no need for Oracle to comment on their recognition of the validity of vSphere logs to prove vSphere VM movement. vSphere logs may well be the best available mechanism to document Oracle executables’ travels.  Although vSphere logs may not be identical to “best available image” case law, “best available image” is instructive to the audit log/verification concept under discussion. As of November, 2010, the majority of the world’s servers are virtual. ~85% of those virtual machines are VMware. That is tenured technology and no one is questioning the de facto authority of those logs. Oracle has the OLSA contractually-granted right to present themselves at any time without notice (upon 45 days’ notice as of the 2001 OLA) for the compliance inspection of their customers’ physical hardware. Oracle has options to audit the current and historical location of where their executables are “installed and/or running.” That those options may rely on mechanisms not provided by Oracle is beside the point.

 

As for the question on the thread as to whether vSphere logs could be maliciously manipulated,security industry experts have said that eighty percent of security breaches come from within the firewall. I see a corollary to that statistic. Oracle has plenty of financially incented prospective friends inside its customer organizations. It is sad that human integrity is such that posting of large rewards has become necessary to incent individuals to turn in their employers for knowing theft of software. To me, OLSA obligations are like the U.S. tax code. I believe in paying every penny I owe. However, beyond that, it is my discretion to who or what I donate and in what amount. I have no patience with individuals or entities that premeditate the creation of OLSA compliance issues.  I similarly have no patience with the knowing spreading of FUD by some professionals in what could be construed as extortion of funds beyond customers’ executed contractual obligations. I will continue to vigorously promote and defend the legal rights of both software vendors and their customers even if that means I induce accelerated hair loss through rapid, frequent hat swapping.

 

What Oracle verbally represents on this or any other contractual topic for that matter is of absolutely no relevance whatsoever. Look to the OLSA and extant external referenced documentation as of the OLSA’s execution date. Should you still be dissatisfied, look to court history of judgments against customers attempting to exercise their sub-cluster licensing rights. Let me save you some time. Relevant court history does not exist. There is a simple reason: the terms of your executed OLSA are clear, sufficient, binding. The terms explicitly invalidate any and all verbal representations.

 

Given what I have presented here, I see no legal, risk management, or moral need for and am not inclined to encourage and/or endorse air gap clusters strictly for Oracle licensing purposes. I am concerned that such talk may scare parties away from investigating, understanding, and asserting their legal rights. Furthermore, in my observation, such talk gets quickly quoted out of context of the original motive. I believe such talk has a similar long-term effect on the market as paying ransom for hostages has on future hostage taking. The SMB market has every contractual right to leverage sub-cluster licensing to facilitate crossing the chasm over to Business Critical Application virtualization. That larger enterprises may find it convenient to use air-gap cluster separation of their Oracle workloads is great, but to do so has absolutely no bearing whatsoever on their legally binding contractual obligations to Oracle Corporation.

 

Some on the thread have suggested this or that course of action to minimize risk with Oracle. Occasionally people express concern to me that Oracle has far deeper legal pockets than they do. I believe those that make these points do not understand the power of their position. I cannot think of one reason that Oracle could possibly want this thing to go to court and indeed I believe Oracle has everything to lose minimally moving forward if and when it does. Once such a judgment was out, it would cause an immediate slow-down on non-contractual cash donations that some of Oracle’s customers have felt induced to make.


Errata on remote mirroring and audit notification: March 26, 2014.