3 Reports re: Cloud Computing & SaaS

 

In my research of items concerning the latest in the software industry, I came across three short articles of interest. I’ll give you a brief synopsis of each and a link to the article if you wish to explore further.  I’ve added a bonus “Quote of the Week” at the end. Sorry but I just couldn’t resist.

1.       Gartner Reports on the Surge in SaaS

Larry Barrett’s article on Gartner’s SaaS Market Report entitled SaaS Market Growing by Leaps and Bounds: Gartner states the latest report from Gartner shows no indication on any slowing in the demand for on-demand software applications. Gartner defines “SaaS as software that is owned, delivered and managed remotely by one or more providers”. Gartner expects 2010 SaaS sales to top $8.5 billion, an increase of over 14% of 2009 sales.

Advantages to SaaS:

·         Lower start-up costs compared to on premises deployments

·         Lower maintenance costs compared to on premises deployments

·         Ease in sharing applications and documents through the cloud

Gartner analyst Sharon Mertz stated, "As tighter capital budgets demand leaner alternatives, familiarity with the model increases, and interest in platform as a service and cloud computing grows.”  Further Mertz noted, "Greater market competition and increased focus by the mega-vendors reinforces the legitimacy of on-demand, mitigating initial objections about security and availability for many, as acceptance of SaaS as a viable model for enterprise computing services grows."

2.       Microsoft Claims Top Spot in Cloud Computing

Stuart J. Johnston’s article on Microsoft’s claim to be #1 in Cloud Computing entitled Microsoft: We’re No. 1 in the Cloud reports that Kevin Turner, Microsoft COO, proclaimed at their annual meeting for financial analysts in Redmond, Washington that Microsoft is “number one” in cloud computing. The company claims 40 million cloud computing users globally and Turner reported that "Seventy percent of the wins in the cloud that we had in [the fourth quarter of fiscal 2010]… were new Microsoft customers." He touted three of their new customers:

·         Dow Chemical Co.

·         Hyatt Hotels & Resorts

·         University of Georgia

Additionally, Turner made sure that his audience was aware of the company’s record year due in large part to a total of over 175 million licenses sold for their new Windows 7 operating system in the short nine months since its release.

3.       Public Cloud Storage Services the New Choice for Enterprises

David Needle has a new article on Public Cloud Storage entitled New Public Cloud Storage Services Target IT. In it he discusses the latest report from research firm Ovum regarding public cloud storage services. Ovum senior analyst Timothy Stammers stated:

"Not only do they relieve the burden of storing data on customers' premises, but they also have the multiplying effect of transferring to the cloud provider the responsibility of backing up that data"

Initially companies poured vast sums of cash into online storage services to no avail. Economies of scale could not be reached due to the fact that the vendors were using the same storage systems of the enterprises they wished to sell. Huge network bandwidth costs along with their customer’s refusal to accept to the unknown contributed to the collapse of this new emerging venture.

The solution and/or opportunity was as follows:

·         Slowing economy put CIO’s on the hunt for cost cutting measures

·         Cost of network bandwidth plunges

·         The unknown becomes known due to success of certain vendors, most notably Amazon and Salesforce

·         New object-oriented storage technology, i.e. much more bang for the buck

New start-ups offering these services include Nirvanix, Nasumi, and Ctera. Stammers revealed that these vendors often leverage the storage clouds from such mega-providers as Amazon, Microsoft, and RackSpace. He stated,

“To the customer it still looks like ordinary storage and there's caching to alleviate latency issues. Typically these systems also provide their own backup, but companies may also choose to do that on their own for an extra level of protection.”

4.       Quote of the Week

And finally, I just couldn’t resist this one. To paraphrase a line from a well-known cable news network, I’ll Report, You Decide. Here is my pick from David Needle’s article entitled Say What? The Week’s Top Five IT Quotes:

"First of all, moving to the cloud is not the right way to think about anything. There will be new things in the cloud -- redoing something doesn't make a lot of sense. If you want to argue we've been somewhat slow in expanding to the cloud -- fair enough -- but customers have a lot of interest in seeing that our applications maintain their core value, the data integrity and consistency. Taking that to the cloud takes a lot of work."

Kaj Van de Loo, an executive in the office of the CTO at SAP, defending his company's cloud computing strategy.

Checklist for your Software License Agreement

 

Once again I have been the beneficiary of an excellent lead due to my membership in LinkedIn and the group Software Licensing ProfessionalsJennifer Junitz Keenan was kind enough to share a link to an article written by Steve Mullins in which he reported on a white paper by Budd Larner of the The Technology Executives Club. The article is entitled Top Ten License Negotiation Concerns, and oddly enough Mullins points out at the outset that the Budd Larner white paper actually contains twelve (12) points. This article is directly on point to one of the stated goals of this blog “… to discuss software licensing and … the legal nuances involved in the contract negotiation process …” I thought it an excellent idea to share the link with my readers and also to provide a brief synopsis on the salient points as follows:

1.       Clearly define the Licensee: The article does not discuss in-depth the importance of this first point, but allow me to point out the need to consider Affiliates and Subsidiaries and providing use rights to such entities.

2.       Use Rights for necessary third parties: Larner points out that “Scope of Use” is the most important part of any license. I suggest that you not rely on the licensor’s blanket representation that other necessary third parties may have access, but rather call out specifically those that are known to you such as lawyers, accountants, banks, and other financial investors without limiting your right to add others as they become apparent.

3.       The use of Addenda to revise the base agreement: Here Larner presents both agreements on whether to use addenda or not. I have seen both methods either an almost complete re-write of the base license agreement or the addition of amendments, riders, schedules, and other forms of addenda. A good lawyer should be able to function in both worlds. Realize that the license will be revised. Discuss the revising process with the licensor upfront and proceed accordingly.

4.       Include Representations and Warranties: Develop procedures to track your warranties.

5.       Include Maintenance & Support Obligations: Often these result in a separate agreement. Whatever the form, make sure all obligations are clearly defined.

6.       Have an Indemnification provision broad enough to cover any patent infringement: Also include language to cover any liability caused by use of the software.

7.       Insert Carve-Outs to any Limitation of Liability clause: Except out breaches of confidentiality and indemnification.

8.       Have an Internal Dispute Resolution clause: Such a clause clearly defines the process and procedure to notify the other party of a discrepancy and how it will be resolved. The procedure usually has stages and time limits for varying degrees of executives within each organization. I find this more apropos in MSA’s (i.e. consulting agreements and their accompanying SOW’s) rather than in a software license agreement.

9.       How to Terminate and is the License Perpetual: How does this affect maintenance and note any language on renewals and the necessary notice provisions. Who carries that burden?

10.   Definitions: Define ALL key terms. Not sure about the placement of this section. I am more comfortable with it being placed in the front, but I have seen it placed in a section in the back and/or a separate schedule. This is a matter of drafting preference.

11.   Is the Audit provision reasonable: Make sure it is done in a non-disruptive manner and limit the times it may be conducted and sufficient notice must be provided the Licensee.

12.   Number of Instances allowed and effects of partitioning and dual processing: This is the point that I call in the “techies” and they tell me exactly what they want and what they know to be fair and standard in the industry.

Obviously this is not an inclusive checklist, but I think it will get you started and act as a valuable aid in your negotiations.

 

Salesforce Sues Microsoft: The Future of Cloud Computing Awaits

 

In May of this year Microsoft sued Salesforce for infringement of nine Microsoft patents. Last week Salesforce counter-sued Microsoft claiming Microsoft has infringed on five of its patents. Salesforce has asked for treble damages (i.e. three ‘3’ times the amount of harm caused), an injunction of Microsoft’s use of the patents in question, and attorneys’ fees and court costs. Hanging in the balance is the future of cloud computing for enterprises and consumers alike. For more on this matter see Stuart J. Johnston’s article in eCRM Guide.com entitled Salesforce Suit Clouds Microsoft’s Patent Attack.

The Microsoft products affected by the Salesforce claim of patent infringement are as follows:

·         SharePoint Server and related products

·         Windows Server AppFabric

·         Windows 7 error reporting system

·         Windows Server 2008 R2

·         Microsoft’s .NET development platform

·         Windows Live delegated authentication system

The outcome of this law suit could have a tremendous consequence on Microsoft’s cloud computing initiatives.

So what are the chances that young upstart Salesforce can defeat the mighty Goliath Microsoft in any legal action? Well I would not count my chickens before they are hatched. Salesforce has hired David Boies as legal counsel for this litigation. For those of you not familiar with Mr. Boies or any of his notable cases you can find a brief synopsis of his career here. Just to whet your appetite here is a list of some of his more notable cases:

Notable cases

 

 

  • At Cravath, Boies assisted top litigator Thomas D. Barr in defending IBM in the 13-year antitrust cases brought by the Justice Department and many private competitors.
  • Also at Cravath, he represented the Justice Department in the United States v. Microsoft case. Boies won at trial and the verdict was upheld on appeal. The appellate court overturned the relief ordered (breakup of the company) back to the trial court for further proceedings. Thereafter, the George W. Bush administration settled the case. Bill Gates said Boies was "out to destroy Microsoft."
  • Boies represented New York Yankees owner George Steinbrenner in a suit against Major League Baseball. This involved an action against all the teams. The Atlanta Braves were owned by Time Warner, a longtime Cravath client, who objected to his representation of the Yankees.
  • He defended CBS in the action brought by General William Westmoreland. The general abandoned his case during the trial.
  • Following the 2000 U.S. presidential election, he represented Vice President Al Gore in Bush v. Gore.
  • Boies defended Napster when the company was sued by the RIAA for facilitating copyright infringement.
  • In November 2003, he represented Andrew Fastow, deposed Chief Financial Officer of Enron.
  • Boies has been retained by the SCO Group in their pursuit of alleged infringement of their rights to the Unix intellectual properties.
  • He negotiated on behalf of American Express two of the highest civil antitrust settlements ever for an individual company: $2.25 billion from Visa, and $1.8 billion from MasterCard.

 

 

Some Thoughts on SaaS Pricing

 

I have been a member of LinkedIn, the Professional Networking Site, for some time. I have joined several groups that compliment my background and/or can increase my understanding in my particular area of practice. I have found one group, Software Licensing Professionals, to be particularly helpful. There is one relatively new discussion started by Michelle Nerlinger,Sr. Product Marketing Manager, SRM Solutions at SafeNet, Inc., entitled SaaS v Software: Their Licensing Needs to be Integrated. I was very impressed by the comments from all the discussion participants. Their comments are evidence of each person’s vast experience in this area and the trials and tribulations they have experienced while we all take this journey into the world of SaaS. The one overriding issue in this series of comments, as well as in my many readings on the topic, is pricing. The concept of pay-as-you-go just hasn’t crystallized and many vendors have resorted to a sort of subscription model, if the customer can indeed make use of the model. I came across one very informative comment by one of the discussion participants and I want to share it with you. I want to give full credit to its author David Ochroch, Information Technology Strategic Sourcing Consultant and Manager. His comments on SaaS pricing are as follows:

“Most pricing for SaaS follows a per-user model because that tracks directly to web-based access rights. A number of on-premise apps can price per-user...and as long as the software is a true user-based application, a per-user model works well as a value indicator. The per-user pricing model starts to break down in (at least) two cases: 1) where the app can't readily define or track users; and 2) where the app is used very rarely or primarily during peak times. Software with those latter attributes are usually sold on some other basis (per server, per processor, etc.). From my experience, software with those attributes (e.g., databases, middleware, security monitoring, transaction processing) often resides on-premise for performance reasons -- and I don't see SaaS being widely used in those areas for some time. I'm suggesting that there won't be a one-size-fits-all licensing model for either SaaS or on-premise but there should be commonality in the licensing metrics between the same SaaS and on-premise software versions.”

 

SAP to Buy Sybase

 

 

On May 12, 2010 Larry Barrett, writing for Datamation in his article SAP Acquires Sybase for $5.8 Billion, reported that Sybase (NYSE: SY) shares rocketed up $14.57 a share, or 35 percent, to $56.14 in the regular trading session before adding another $6.96 a share, or 13 percent, to $63.10 after the bell on news of the merger”. With its starting position sufficiently secured in the database software market against its chief competitor Oracle, it appears that SAP anticipates future gains in the out years.

SAP’s Co-CEO, Bill McDermott was quoted as saying,

“…SAP will dramatically expand its addressable market by making available its market-leading solutions to hundreds of millions of mobile users …”

SAP has broken with its time-honored approach of organic growth in its quest to overtake Oracle. Last time this happened was its $6.7 billion purchase of Business Objects at the end of 2007, (see December 21, 2007 post in this blog entitled SAP Merges with Business Objects).

Sybase will operate as a separate entity under the new name Sybase, an SAP Company. The existing product lines as well as the development units will remain as is and SAP will provide support for all.

 

A Special Note to My Readers: I have not posted an article in a while. On May 4th my mother passed away from a sudden and severe blood clot in her main artery in her thigh. I needed some time to make the proper arrangements and to collect my thoughts. I plan to restart my regular schedule shortly and provide more regular reports to you on the current developments in the software licensing industry.

 

Recommended Strategies for the CIO Considering Cloud Computing

 

As many of you know, SandHill.com is the online resource created for enterprise software executives. Kamesh Pemmaraju heads cloud research for the SandHill Group and writes a weekly report on the latest happenings influencing the cloud computing community. His latest report entitled Top 5 Cloud Strategies for CIOs is based on a survey of 511 software executives. The survey deals with these executive’s perceptions of cloud computing, their initiatives, implementation issues, and any perceived benefits. His report presents the top 5 strategies CIOs should follow when considering cloud computing. I will present a brief synopsis of those findings here as follows:

1.       Treat this decision like any other business decision:  Pemmaraju simply means to look at all the alternatives and do a traditional compare and contracts analysis. Look at the ROI and weigh the risks.

2.       The cloud is coming – Embrace it: Pemmaraju quotes one executive, “The cloud will come - it's happening now even if it is coming with a lot of hype and a lot of buzzwords. It's a very logical transition - like we are going from individual car craftsmanship into the era of the industrialization of IT services.” A large amount of the survey respondents have already started trials and pilot projects to jump start the learning curve for their personnel.

3.       A sandbox spurs innovation: Create an innovation sandbox in the cloud. The drag on spending due to maintenance is lifted. This new found freedom allows IT departments to redirect efforts from infrastructure constraints to more creative ways to run the business model.

4.       Cloud computing is a furtherance of Outsourcing trend: With this in mind, Pemmaraju presents a short checklist when evaluating whether to move in this direction:

a.       Perform your due diligence and pick a good cloud computing vendor.

b.      Confirm that support levels are adequate.

c.       Obtain copies of vendor certifications (i.e. SAS 70 etc.)

d.      Is your data retrievable in your desired format?

e.      How is your data isolated and protected from others?

5.       Retrain your IT staff: As one CIO respondent succinctly stated, “The jobs of people who sit there patching thousands of servers each time there is a change—those jobs are going away.” The focus will turn from infrastructure to vendor management, and program management, and business analysis.

Pemmaraju concludes his report with an analysis of the impact open source is having on cloud computing. He states that proprietary licenses are lagging in their offerings for cloud computing and so many cloud platforms are run on top of open source stacks. This will have an effect on hardware sales as most companies will be trying to avoid the big expenditures on infrastructure.

 

 

Survey Results are in for ERP Implementation Strategies

 

It has been a very busy 1st quarter closing and I have not been able to post an article in a while. I cannot really explain the business activity other than to recognize that there is a “business cycle” and despite stimulus packages or not, our economy was going to emerge from the recession sooner or later. From the depths of the economic woes, it appears the economy is emerging later rather than sooner. There is a pent-up demand out there, for example durable items still have a tendency of wearing out and needing to be replaced. As far as software licensing and the consulting agreements needed to implement the software, procurement departments had been under a short leash, but projects are starting to come online.

In the interim, Houston Neal, Director of Marketing at Software Advice, has collected all the results of his survey on the ERP Implementation Strategies in use and presented them in an updated version of his article entitled ERP Implementation Strategies – A Guide to ERP Implementation Methodology (see my posting in this Blog immediately below). The results may be of interest and assist in your decision making process and which path to take. Neal has also inserted an interesting commentary section from the respondents claiming their implementation failed. Here is a quick glance at those results from the 45 respondents:

“Of those that answered “No,” we received the following comments:

“Logistics problem (visa issue delay, user delay for data collection, delay in top management support).” – Phased Rollout

“We are still under the progress of phased manner, only “Materials and Finance” is under parallel run and they’re facing some bugs/modifications.” – Parallel Adoption

“Still running both systems in parallel, 3 years later!” – Parallel Adoption

“1 year late, although all other success parameters achieved.” – Big Bang

“Concentrating on tools not architecture.” – Big Bang”

 

ERP Implementation Strategies

 

Houston Neal, Director of Marketing at Software Advice, is conducting a survey on ERP implementation strategies. Specifically, which implementation strategy (big bang, phased rollout, or parallel adoption) has the best success rate.

You can find the survey in his article entitled ERP Implementation Strategies – A Guide to ERP Implementation Methodology.

Scoop on SAP CEO Resignation and Business ByDesign

 

 

As many of my readers know, I am a member of the business networking site LinkedIn. In my practice I have had numerous inquiries regarding SaaS agreements and many requests to draft such agreements from my clients. I found and joined a very good group on the LinkedIn networking site entitled Software as a Service (SaaS) Group. The group site itself has a lot of information and discussion groups and news items and I found it to be a good resource when I encountered some unusual issues. So one day I’m sitting in front of my computer when a LinkedIn notice pops into my inbox from Justin Pirie entitled “Your guide to the week’s events in SaaS for the Linkedin SaaS group by Justin Pirie.” He got my attention and so I checked it out and I am glad that I did. His site Paradigm Shift Actionable Insight for a cloudy world has a plethora of information. It is current, it is informative, it is hard hitting, and a must read. I like the sources he cites. It is a bit of a “No holds barred” approach. 

As an ex-SAP employee sometimes it is hard to see the forest through the trees and I tend to tread lightly, especially since a significant part of my current practice involves SAP licensing and drafting of Master Service Agreements for the implementation of SAP software. However I also am aware that it is also important to be forthright and recognize the issues and Justin Pirie does that in his blog. With the current news regarding SAP and the upheaval that has ensued, I think Justin’s approach is the right one. He starts with a cite to Paul Hamerman’s article for Forrester entitled SAP Announces Changes at the Top; Hasso Steps Up. He follows up the hard-hitting truth of Hamerman’s article with more of the same with a quote from Jeff Kaplan of THINKstrategies and his February 8, 2010 article entitled SAP Needs Strong Leadership to Stop Sinking as follows:

 

“The significance of this event was clearly underlined by the role SAP’s Co-Founder and Chairman of the Supervisory Board, Hasso Plattner, played as the primary company spokesperson during a corporate conference call this morning.

During the call, Plattner made an emotional defense of the company’s strategies and tactics in response to rising criticism in the face of SAP’s financial struggles. Plattner used the occasion to dispute claims that SAP isn’t moving fast enough to respond to changes in the market by proclaiming that SAP is well on its way to becoming a “multiple product company”. He gave Apotheker credit for “turning around” BusinessByDesign and said the rollout of the v2.5 of the on-demand solution is “close”.

The reality is that BusinessByDesign has only had isolated success in a handful of deployments in the field, and its scalability from a technological and go-to-market point of view is yet to be proven.

The truth is that BusinessByDesign’s lack of success is a reflection of SAP’s lack of commitment to the solution and an overall SaaS strategy.

The company’s leadership has never fully acknowledged the fundamental changes disrupting the software industry as a result of rapidly changing customer preferences and competitive pressures. For example, various SAP leaders in the past have suggested that BusinessByDesign would primarily serve as an ‘on-ramp’ to its on-premise customers rather than a solid standalone solution. This half-hearted approach not only turned off prospective customers, it didn’t incent its own staff to make a concerted effort to develop and deliver a competitive solution. (Emphasis Ed.)”

 

Justin Pirie follows up this strong dose of truth with yet another quote from Vinnie Mirchandani’s article entitled Enterprise Software is Entirely Bereft of Soul:

 

“But the reality is the customer has been forgotten in enterprise software, not just at SAP. It’s about squeezing as much out of old technology as possible. As I wrote earlier in the week. “I wish the other bigger vendors had the cajones to acknowledge they similarly mostly live off profits from software 15- 20 years old, from consultants which implement that old software and provide services from data centers which were designed during the Cold War.”

Leo was expected to do more of the same in his new role as CEO. So, he did – unbelievably pushing maintenance price hikes in the middle of the deep recession. For all his talk about taking on the partners who have piled 5 to 10X costs on top of SAP’s own expensive solutions, he really could not – they were part of the “field” he created.

SAP needed someone to dismantle that “old field” as the market transitions away from the big, honking upfront license and implementation and operating cost model. It is screaming for soul and innovation. Instead they rewarded Leo. Surely, they did not expect him to choke his own baby?”

 

At this point, I’m not sure if another dose of reality is needed. Enjoy the articles and do stop by Justin Pirie’s blog.

 

Facebook Secures Patent

 

Facebook’s most popular feature, News Feed, has been patented thus locking in the Intellectual Property Rights. This popular feature shows a member’s activities, to those allowed to view it, across the site.

Kenneth Corbin reports in his Internetnews.com article entitled Facebook Lands Patent for News Feed that facebook described the feature in its patent application as follows:

The method includes generating news items regarding activities associated with a user of a social network environment and attaching an informational link associated with at least one of the activities, to at least one of the news items, as well as limiting access to the news items to a predetermined set of viewers and assigning an order to the news items. The method may further include displaying the news items in the assigned order to at least one viewing user of the predetermined set of viewers and dynamically limiting the number of news items displayed.”

 

There have been numerous privacy concerns and protests from members regarding how much of one’s activities could be broadcast on the site. However, these privacy protests have waned as other social networking sites such as MySpace, Twitter, and LinkedIn have imitated the feature.

So what are the ramifications? With the granting of the patent, Facebook may now sue any social networking site that includes an algorithm-driven mechanism for sharing and distributing information.

In a related Reuters’ story Military Allows Twitter, Other Social Media:

The Pentagon announced on Friday it has authorized the use Twitter, Facebook and other so-called "Web 2.0" sites across the U.S. military, saying the benefits of social media outweighed security concerns.

The decision, which comes at a time of growing concern over cyber-security, applies only to the military's non-classified network.

"The purpose of the policy is to recognize that we need to take advantage of these Internet-based capabilities. These Web 2.0 tools need to be part of what we use," David Wennergren, a deputy assistant secretary of defense, told Reuters.

Defense Secretary Robert Gates, 66, has said that he wants to use social networking to help the Pentagon interact with U.S. military members, many of whom are in their early 20s.

But opponents have cited the risks of information leaks, of opening gateways to hackers, along with a potential overload of precious bandwidth on the Defense Department's network.

Training people so they know what can and cannot be disclosed on the Internet is a more effective policy than simply banning use of social media on work computers, he said.

"So part of this is about having a trained workforce that is savvy in how you operate in the information age."

Copyright 2010 Reuters. Click for restrictions.