O’er lawyers’ fingers, who straight dream on fees

Shylock:
Most learned judge, a sentence! Come prepare!

Portia:
Tarry a little, there is something else.
This bond doth give thee here no jot of blood;
The words expressly are "a pound of flesh."

The Merchant of Venice

(painting by Alexandre Canbanel. The Merchant of Venice)

The jury has decided.  SAP owes Oracle 1.3 Billion dollars.  I’ll leave others to speculate on whether SAP appeals, if is a fair sum,  or whether there will be other legal ramifications.  

Watching it all has been fun. Good theatre, with some dramatic performance and and even more dramatic absence.  Tabloid stuff.

  1. The amount, while breaking records  for  copyright infringement,  will not impact SAP’s ability to do business.  It has plenty of cash, and there is a serendipitous symmetry with the recent 1,5 billion dollar credit facility.  While it could slow down share buybacks, I doubt that it will have a real impact on its development or marketing spend. It would be wrong for SAP to shrink into cost cutting mode to fund this, but I don’t think they will anyway. 
  2. The case illustrates the hyper-competitive and ruthless nature of the industry.  Neither firm emerges Persil white from the process.  I’m not sure that it will really make a difference to how CIO’s view SAP or Oracle. Most CIO’s know that this is a pretty ruthless and aggressive business.  Oracle’s field will have a bit of fun in the sales cycle with this, but I doubt it will really impact business.
  3. Most software executives and developers have minimal understanding of copyright law and its implications.  Coming out of this, I’d hope that software developers think a little bit more about intellectual property and IT law generally. This would be a good thing.  I’d like to see software companies funding more IT law research and studies, but then I’m biased.
  4. Software companies using intellectual property to beat each other up in court isn’t new, but this judgment will encourage more of the same.
  5. The judgment was not about the legality of third party maintenance.  The SAP-Oracle case and Rimini Street –Oracle case will be quite different.  I don’t think we should conflate them.  The SAP-Oracle case was good entertainment, but it was just about damages. In the long run the Rimini Street case is more important for the whole industry.  I ‘m not assuming that just because SAP admitted that TomorrowNow was toxic, all third party maintenance is somehow tainted. 

These are my musings, rather than a formal Gartner position.

(Okay, the heading was from Romeo and Juliet, and the quote from Merchant of Venice)

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Toto, Africa and copyright..

Super arrangement of Toto’s Africa by the Perpetuum Jazzile.  This rocks. Appeared in my inbox this morning. Thanks Geoff.

Africa is one of those tunes that is part of my mental soundtrack. I hear it and I’m transported back to a humid South African evening, the crickets chirping and the smell of African rain is in the air. Weird, as the band is from LA, and this sort of soft rock normally my thing. But I guess for most of my generation this is a iconic sing along song.  Perpetuum’s performance is really rather special.

But what rocks even more is the response from David Paich, the fellow who wrote the song.

Greetings!

My name is David Paich. When I wrote Africa I never dreamed of hearing such an innovative rendition. All I can say is awesome!!!!!!!!!!!!!!

I am truly honored that you not only would arrange a choir version of the song but the time and effort into creating REAL MAGIC! I have NEVER received so many emails from artists friends and colleagues on a singular performance of a song.

My hats off to all of you.

I know my co-writer Jeff Porcaro would have shared the same feelings. I know my band TOTO does.

Again, thanks you for such a wonderful gift.I would love to meet everyone sometime soon and maybe work together.

Regards………David

This, ladies and gentlemen, is how derivative works should work.  Goodness all around.

George Clooney,David Beckham and the software demo

I’m in the middle of doing a Magic Quadrant at the moment.  It is a lot more work than I imagined, even if Jim is doing the lion’s share of it.  By the end of the process we will have had in depth presentations from nearly 30 vendors, and interviewed many of their customers. But this post isn’t about the details of employee performance management software.

Copyright is a big deal in the software industry. It is the basis on which  most software is sold or  licensed.  licence v sale is another can of worms, and not for a friday evening post.

Software IP is  considered to be a fascinating subject by a very small segment of the population, but it is the foundation upon which our industry is built.  Folks such as Geeklawyer make fortunes out figuring software IP law out.  Software companies around the world pounce aggressively on abuse of  copyright and other IP forms. This is their right, and they are pretty good at exercising it.

Celebrities also make use of copyright and other laws  to protect their image, and to earn their crust(s). When David Beckham advertises a razor, or a pair of sunglasses, the company using that image has coughed up big money for the pleasure thereof. Mr Beckham’s advisors think long and hard whether a particular product fits with his image. 

Nestle paid handsomely for Mr Clooney to sip Nespresso.  And there is a mass of law, and troops of lawyers to defend Mr Beckham’s and Mr Clooney’s  rights to their images. Joe citizen has certain rights, but celebrity image rights is big business. California, home to many celebrities and software companies has strong laws to provide additional rights to celebrities.

Celebrities, athletes, and artists have certain rights in regard to the commercial use of their image, voice, or persona. Under sections 3344 and 3344.1 of the California Civil Code, reproducing or using the image, voice, or persona of someone without their permission constitutes a violation of their privacy rights.

Privacy rights extend to the celebrity status of deceased persons as well. Permission for the reproduction of photographs, movie stills, or other depictions of a deceased celebrity requires permission from the person or corporation who owns the rights to them. thanks to Fergus law office for the info .

Under UK law, the law of passing off can sometimes be used to prevent a celebrity’s image being used overtly to promote a commercial product. Have a look here at this case. more details here.  For those interested in comparative rights to one’s own image, see this paper on SSRN.

Why is it then, that so many software demos include images and data of Mr Beckham, Brad Pitt,  Cameron Diaz, James Bond and Matt Damon?

I’m not a lawyer, but it seems to me that using their names and images without their permission infringes the self same copyright laws that enable software companies to charge money for software. Never mind the more complex and messy issue of privacy and reputation.  

When you demo enterprise software, don’t promote George Clooney to Deputy Vice President,  make jokes about David Beckham being on the bench because he is a bit slow or change Ms Zeta-Jones’ family dental benefit plans. Unless of course, you have permission from the said celeb.  I’ve not even started on the data protection law implications of processing their personal data…

I’m not a lawyer, so if you don’t believe me, have a chat with your in-house legal counsel. You might think it is cool to have a bunch of celebrities in your demo system, but I’m not sure that it is such a good idea. 

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