Initial signs of success are evident in the widely discussed issue of indirect use. [hutterstock: 369157724, Bjoern Wylezich]
According to information provided by the DSAG, SAP conceded that until the issue “NetWeaver Foundation for third party products” has been finally clarified, all sales activities have been discontinued with immediate effect and a solution will soon be found for all the still “unsolved cases” in the market.
SAP also pledged to put an escalation body in place (COO of the regional SAP company) to attend to this matter. There is considerable doubt about whether the licensing of NetWeaver Foundation for third party applications is legally valid.
Linking the license type “NetWeaver Foundation for third party applications” of the customer’s access to the “SAP applications database or to the information contained in it” appears questionable from a legal point of view.
SAP’s shifting of its position might therefore be an important and right step in order to avoid a legal escalation with customers. However, the issue of indirect use and the related risk of sublicensing are by no means confined to this type of license.
On the contrary, there are numerous questions about whether a license is required in a networked, globalized infrastructure, especially in connection with cloud-based use scenarios.
Lack of Definition
As there is no exact definition of what licensed indirect use actually is, it is too early to consider the issue of indirect use as already settled as the matter stands today.
Incidentally, SAP’s current 2017/1a price list shows other types of license that declare the indirect use of the software as subject to a license, for example SAP Platform User, SAP Platform User for Productivity Apps or SAP NetWeaver OpenHub license in a BW environment.
The risks entailed for customers using third party applications if these access third-party databases purchased from SAP (e.g. Oracle or Microsoft) have not yet been finally clarified. As a rule, only a runtime right of use is acquired to the respective database from SAP.
Purchasing full-use licenses to these databases, where applicable, should be necessary for direct access to the third-party database or to the information contained in it.
According to SAP’s price and conditions list, the customer is responsible for ensuring that he has purchased the required rights of use from the respective licensors.
When considering this matter from the perspective of copyright law, SAP’s arrangement is justified as the customer using the database has to observe, without exception, the copyrights of the database maker and the license agreement on the proper use of the database.
In the event of any violation, the customer runs the risk of a legal dispute with the database maker. However, SAP must also fulfil certain reference and information requirements when it sells a third-party database.
Whether these requirements have been met must be examined on a case-by-case basis. Further legal issues of current interest are also SAP’s basic rules on the implementation and use of databases and communication in a separate database landscape.
But here too, questions arise about the conditions on which a specific transfer of data is covered by the license terms. The same applies to the use of various S/4 models which impose considerable restrictions in terms of the use and the transfer of data.
It therefore remains to be seen what SAP’s step to discontinue the sale of the licenses means in the long term and what effects this will have on other types of licenses in connection with indirect use.
This step has not, at any rate, provided a general solution to the issue of indirect use. Customers can at least hope that SAP will carry out and communicate the sale of license models transparently and clearly in future so that a customer is able to check the licenses he needs, if any, or have this checked before purchasing them.
SAP licensing is complex and requires technical and legal expertise. Only a person who has optimized his licenses will not pay more than necessary or run the risk of having to make expensive additional payments.