And despite the lingering relevance of the matter, that’s pretty much the extent of the public record. Regardless of the fact that Oracle never filed a substantive pleading nor the fact that the court issued no material rulings, Mars v. Oracle continues to cast a long shadow over Oracle’s ongoing licensing and auditing practices.
As the five-year anniversary of the date on which we filed the complaint approaches, we can’t help but reflect on the past while also looking into the future and ask: Why does Mars v. Oracle still matter?
After the filing, our phones began ringing off the hook. By drawing public attention to Oracle’s deeply unpopular audit script, we had unwittingly provided a lifeline to scores of beleaguered licensees. They also found themselves in Mars’ position yet lacked the resources to stand up to what they strongly believed were Oracle’s abusive auditing and licensing tactics. No longer a well-guarded secret, Mars v. Oracle drew back the curtain. This revealed Oracle’s underground economy of attacking its licensees to upsell its fledgling product offerings and otherwise materialize new revenue streams.
Perhaps nothing demonstrates the impact of Mars v. Oracle better than the press and blogging attention it has received over the years. This includes other licensing attorneys and technical consulting firms that have collectively written tens of thousands of words on the iconic matter, occasionally skirting the fact that they had nothing to do with the filing. Curiously, something about Mars v. Oracle inspires people in the industry to imply first-hand experience where there is, in fact, none.
There is no grey area as to who litigated Mars v. Oracle. Other than the associate support that all successful litigation teams rely upon, the partners at Beeman & Muchmore were the litigation attorneys responsible for the matter. This is an important point to clarify -- the vast bulk of the online chatter that attempts to draw conclusions from the scant tea leaves of the public record is mere speculation. We remain, for all practical purposes, the only attorneys that can speak knowledgeably on the matter and from a place of experience.
Nearly five years later, we find that there is still a surprising amount left to be said.
Conventional wisdom says that Mars v. Oracle drew public attention to Oracle’s tried and true audit script that it still relies upon to this day. However, revisiting the source material demonstrates that in many ways that isn’t entirely true. For example, few remember that—as alleged in the complaint—Oracle was not necessarily auditing Mars. The papers identify it as a “License Review” and further suggest a dispute as to whether the review was subject to the audit provisions of the controlling agreements.
Another anomaly is that while Oracle’s now-infamous VMware/virtualization argument was a part of the “License Review,” it played something of a supporting role to an entirely different dispute regarding the licensing of Oracle’s Agile software product offering. Curiously, despite counseling scores of Oracle licensees in the past five years, we never again encountered a dispute concerning Agile.
Finally, the public documents suggest that Oracle was unusually determined to push Mars to the brink:
To put it another way, not only does Mars v. Oracle provide important lessons for Oracle licensees (as we have written about previously), it appears that Oracle itself learned a lot from the matter. This is fully demonstrated by the fact that Oracle has not allowed another audit dispute to proceed to litigation.
In the five years that have passed since we filed Mars v. Oracle, we’ve seen many changes to Oracle’s audit script and have watched many elements of its script remain unchanged. As we count down over the next several weeks to the five-year anniversary of Mars v. Oracle, we will look closely at the matter. We hope to offer insights that, while always adhering to the confidentiality of sensitive information, can perhaps only be illuminated by the attorneys that were there.
We hope you will join us.
Published on 9/1/2020
Software licensors are known for vague contracts—they’ve made a business of it.
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