Being asked to limit vSphere clusters just to Oracle isn't always efficient, especially for large data centers, and it's not necessary, professional negotiators say. "There is nothing in the contracts that say you have to pay for all the servers in a cluster," Guarente says. Although the software vendor has published separate policy documents that attempt to address this issue, Welch says there's nothing in black and white to back up the assertion that every server in a vSphere cluster must be licensed if Oracle software is installed or running on any one of those servers.
"The biggest issue for me is that these documents are not part of the contract the customer signed," says Guarente. "Oracle has very interesting policies around virtualization, and none of those policies are located in the contracts."
The problem with soft partitioning
One of the most relevant policy documents on the matter, the Oracle Partitioning Policy (PDF), distinguishes between hard partitioning and soft partitioning technologies with respect to licensing. With hard partitioning, customers can limit the number of processor licenses needed to those running Oracle. With soft partitioning, they cannot.
Oracle defines Microsoft Hyper-V and VMware as soft partitioning, although many technologists will argue that the features and methods used in VMware are no different than those that appear in Oracle's list of hard partitioning technologies, Guarente says. "Given that this is a competitor's offering, Oracle will always consider this as a form of soft partitioning," he explains.
The one exception, he adds, is under Microsoft's Windows Azure cloud offering, which uses Hyper-V. In that case, Oracle can be deployed within a virtual machine and the customer pays only for the resources used. "The reliance is on the provider to control the size of the virtual machines," he says.
Even if the customer's software license refers to the Partitioning Policy, that document includes a note stating that the policy "is for informational purposes only," and "does not constitute a contract or a commitment to any specific terms."
So does the policy apply or not?
Guarente says when he challenged one contract based on published policy material for an organization Oracle was auditing, he received that very same response from License Management Services, Oracle's auditing group. "They came back to us and said the documents were for educational purposes only and not binding. Fascinating." That business was able to successfully defend its position with Oracle, he adds.
"It's the art of working with Oracle versus the science of compliance. It's all very muddy," Guarente says. Furthermore, the list of approved hard partitioning technologies typically does not appear within the list of documents referenced in the Oracle Software Licensing Agreement (OSLA) that customers sign, says David Blake, CEO at UpperEdge, an IT sourcing consultancy.
Sign up for CIO Asia eNewsletters.