…deliberately destroyed or withheld e-mails and failed to preserve tape recordings that should have been turned over to lawyers for shareholders suing him…

Ellison and Oracle knew the material was potentially relevant to claims that they made false statements about the company’s 2001 second-quarter financial results and problems with a software product, Illston said.

As a penalty, Illston said the jury in the case will be instructed to assume that Ellison knew about the problems. The judge also said she would take that assumption into account when deciding whether to rule in favor of investors on their claims for damages and Oracle’s requests to throw the case out.

The case is a class action brought by Nursing Home Pension Fund. It claims Ellison improperly used his insider knowledge to cash in $900 million of stock before the company issued statements that discussed the problems. The software in question is the 11i Suite. The judgment, via the Wall Street Journal is here.

This is not the first time Ellison has been in trouble over insider dealings. In September 2005, he agreed to fork over $100 million to charities and cough up $22.5 million in legal fees on behalf of Oracle in order to settle another class action. The earlier case focused on Oracle’s Q3 earnings, announced March, 2001.

Ellison is well known for taking an aggressive stance in his ongoing battle for a larger share of the enterprise pie. Part of those ongoing tactics include taking potshots at SAP during earnings calls. In the past, Oracle has made all manner of claims about customer wins that my Irregular colleagues could not make stack up. Let’s not forget the Microsoft dustbin saga which surfaced back in 2000. At the time, Ellison was quoted as saying: “I’m prepared to ship our garbage to Redmond, and they can go through it.”

Oracle may be no saint but it’s not the only company that employs dirty tricks. Most recently, we have Oracle’s case against SAP over TomorrowNow. Assuming this doesn’t get settled prior to trial, it promises to yield all sorts of fascinating details about how the now defunct TomorrowNow plied its trade. Assuming Oracle is successful in claiming its $1 billion in damages, that could just as easily fly out the window if the Nursing Home Pension Fund is successful. However, given Judge Illston’s ruling, a dark shadow has been cast across Oracle’s credibility and that of its flamboyant leader.

Not that Ellison will be over worried. He recently managed to persuade the company to award him a 38% pay hike bringing his total package to something around $72 million. As one wag suggested in a direct Tweet message to me, “I guess an increasing part of his package will now go to his lawyers.” Explain that at the open microphone session at the upcoming Oracle OpenWorld Mr. Ellison. -:)

11. Su licencia del Contenido

11.1 Conservará los derechos de autor y cualquier otro derecho que ya posea del Contenido que envíe, publique o muestre en los Servicios o a través de ellos. Al enviar, publicar o mostrar Contenido, estará concediendo a Google una licencia permanente, internacional, irrevocable, no exclusiva y que no está sujeta a derechos de autor para reproducir, adaptar, modificar, traducir, publicar, representar y mostrar públicamente, así como para distribuir cualquier Contenido que envíe, publique o muestre en los Servicios o a través de ellos. Esta licencia se otorga con el único propósito de permitir a Google publicar, distribuir y promocionar los Servicios y puede revocarse para determinados Servicios, según lo estipulado en las Condiciones adicionales asociadas.

Which roughly translated means: “We’ve not got around to fixing this license.”  Color me stupid but when Google released Chrome, they didn’t seem to have a problem getting all the language versions aligned.

Chris Mellor over at The Register reminds us:

Thaddeus P Fink, founder, chairman and CEO of Fink First, Cut ‘n Paste, said he had a one-time-only, special offer deal for cutting out Completely Redundant Arcane Prose (think acronymically) from EULAs, and was open for further business. ®

Looks like FFCP still have work to do.

Update: Google finally got around to ‘explain’ their update position:

It will take a little time to propagate this change through the 40+ languages in which Google Chrome is available, and to remove the language in the download versions. But rest assured that we’re working quickly to fix this. The new terms will of course be retroactive, and will cover everyone who has downloaded Google Chrome since it was launched.

So everyone’s happy now.

“You may well have heard today, the rumour mill has been very busy that Jesper has resigned from Oracle.

I have been in touch and want to let you know as a group, he tells me he is going to Cisco to head up their Network Management team.

Jesper has been our executive sponsor from the start of the PDC and his decision to work through a single channel for Fusion is what made us come and work together and achieve all that we have for our respective members.”

Karen Tillman from Oracle confirms Andersen’s departure, noting that:
“Yes, I can confirm Jesper’s departure - he will be missed.  It’s worth noting that Jesper was not part of the Fusion development team (which reports to Chuck Rozwat), and that our Fusion plans remain on track.”

In theory this casts a shadow over Fusion because internally to Oracle, Andersen was always thought of as ‘Mr. Fusion.’  Whether this is the case or not is a moot point. At the Q4 2008 earnings call, a question on the progress of Fusion was passed to Larry Ellison, CEO who said:

I think no change in terms of our schedules. So we have actually launched some Fusion applications already. We have launched a variety of CRM applications based on Fusion technology. They are available as Software as a Service. Maybe the most interesting one is one called Sales Prospector, which offers a capability not available with Salesforce.com. Specifically, it data mines your installed base and tells you what product you should be selling to that customer next and who your best references are for selling that product. So we have got a whole second generation set of CRM products to make salespeople more productive versus the first generation, which really was to help managers do a better job forecasting their sales. So those Fusion technology based applications are actually already in the marketplace.

We will continue to deliver Fusion technology applications until ultimately we have a Fusion version of every application that we sell but it will take some time before we get all the way through all the different applications that we offer. But the big — there will be a suite of Fusion applications coming out this year, next year and the year after.

In light of this latest development and the near radio silence on progress this is how I’m reading it:

• Fusion is happening but not at the pace Oracle originally thought.
• Coming as it does just before Oracle Open World, the story will be spun so that new releases will be branded as Fusion, regardless of whether they’re new or something else.
• Vertical market plays, on which Oracle was pinning a lot of hope are up in the air.

Some of the Irregulars are meeting with Oracle this week. It should make for an interesting conversation.

You retain copyright and any other rights that you already hold in Content that you submit, post or display on or through the Services. By submitting, posting or displaying the content, you give Google a perpetual, irrevocable, worldwide, royalty-free and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content that you submit, post or display on or through the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

[My emphasis added.] Given that the smart money is saying this is Google’s move on delivering an OS for the web that happens to have a browser, just how many corporate legal departments are going to allow web apps to run across a service with these terms? I can tell you now: zero.

Think about it for one moment. Google will claim that ’services’ merely means advertising but can you trust Google with your data when they’re explicitly saying they’ll mine it for their own purposes? Marshall Kirkpatrick picks up the beat but in my opinion is nowhere near strong enough in his condemnation:

Such terms might make sense for user uploaded video sites, for example, but language like this always raises concerns. In the context of an entire browser it seems absolutely absurd. Passwords, financial information, you name it - these kinds of things Google can’t be given any right to, can they? Though it’s framed in terms of “promoting Google services,” we don’t think that condition is a clear enough limit on the rights being claimed.

I first vented on this issue almost exactly a year ago. Read what it says above and then compare with the extract I used at the time, taken from the terms used for Google Docs and Spreadsheets. The terms are almost identical. I have to ask myself: what’s the matter with Google’s legal department? Do they honestly think this will simply get glossed over? Or is it a sign of what appears to be a growing arrogance at the Googleplex?

I’ve never bought into the ‘Do No Evil’ mantra, it’s an absurdity for a company like Google to pretend that’s how they see life. Even so, this cynical disregard for IP rights is dangerous because it strikes directly at the heart of what corporations consider confidential. Note also the contrast with the way Google itself behaves. You can barely walk through the door without promising to never reveal a thing that you see or hear. C’mon Google, time to take the toungue out of the cheek and start listening to the folk who keep you afloat. In enterprisey land, we ain’t playing that no-win hand.

Over at the predictably strident Register, Chris Mellor thinks: “Google’s EULA sucks.” I have to agree while thanking him for providing a wholly appropriate image (used above).

In the meantime, I’m hoping Josh Greenbaum will chime in. He’s been pretty vocal about this in the past.

Regardless of its ‘loser’ image among the Silicon Valley edglings, Microsoft still has a remarkably resilient following in the business community. Try wresting Excel off a finance guy’s desktop any time soon and see what happens. All the while Microsoft is still managing to stuff its coffers with cash at an amazing rate.

But I think Google’s greatest challenge comes down to something I’ve been alluding to for some time. In a highly regulated world, the chances of half baked software with a cuddly ‘Beta’ moniker making it into the business market are pretty much zero. Despite their mantra of ‘release early and iterate‘ Google doesn’t live up to its own words except in fits and starts. In enterprise land, we complain bitterly about over promising and under delivering. Standing back, Google is not that much different except that it sort of delivers and then forgets about what it has put out. The big problem for Microsoft is one of perception. As Deep Jive Interests says:

The other thing that struck me is that Chrome could be crap — and it probably won’t, but it could be — and yet, the penetration of this product could be *huge*. Google owns almost 70% of the total search in North America. 70%! Even if no one else wrote about it, there was no blogger buzz, and no coverage that we all expect in tomorrow’s news … all it has to do is throw up some strategic links on its SERP’s, on its home page, and on all of its applications (since Chrome will exist for web applications it would be especially apropros), and this will still get thousands and thousands of downloads on the strength of Google’s web presence alone.

And that’s not even taking into the consideration some people think of Google as the Internet itself.

But it is not limited to general perceptions. I was interested in Larry’s use of stats to illustrate the long term decline in IE’s market share. According to a variety of sources on Wikipedia, IE is holding at around 74% this year with Firefox coming in at 20%. Janco Partners, the source Larry uses quotes 58% and 19% respectively. What is more ominous for Microsoft is the Janco numbers are remarkably similar to the IE/Netscape market split for 1996, with Netscape the market leader. A lot has changed in the intervening years and Microsoft has consolidated its hold on the business market by ensuring a near air tight lock between the operating system-browser-application triumvirate. That is something Google claims it is not doing by spoon feeding the blogerati with its open source roots message. Don’t kid yourself. But don’t worry either.

Even so, using webkit and dubbing Chrome as an open source initiative is smart because it tugs directly on the emotional heart strings of developers who have been slurping the open source Kool-Aid by the gallon the last few years. Good for Oracle fans, not so good for SAP lovers. The kicker is that the initial release will only be good for Windows users. No Mac or Linux versions for the moment. I guess even Google has to nod to market penetration reality. At least for now.

Anshu Sharma chose not to comment in public but I leave it to astute observers to detect the steam coming out of his ears.  Meanwhile Vinnie Mirchandani pushes back, suggesting:

Investors may not be thrilled with the SaaS business model. But more customers are liking it, and that’s who Harry - and Larry [Ellison] - should be listening to.

Vinnie knows Harry’s history better than most. Bob Warfield agrees with Vinnie, noting:

Well what do the analysts think?  Looks like they’re predicting annual growth of 30% for Lawson and about 43% for Salesforce.

Well maybe this is all just a Salesforce aberration and other SaaS companies can’t match the numbers.  What about my other favorite, Conquer?  Back to Yahoo, and it looks like they’re selling $194M and their EBITDA is $42.72M.  Wow!  They make half as much EBITDA as Lawson on 1/4 the revenue?  Who is the profitable one now?

But then Anshu and Bob are saasy people while Vinnie is in it for the buyer value stakes. As am I but then I recognize all software companies need to make a turn or they fail. And I recall when Lawson was truly on a roll back in the late 1990’s, developing cool technology before it hiccuped badly in overseas markets and ended up retrenching.

In the meantime, I receive a steady stream of case material from Lawson’s PR company. It has some delighted customers like Cheryl Crates, CFO at Carpentersville Unified School District. She oversees a large Lawson implementation that includes financials, HR, e-learning and procurement. Cheryl has many years ICT experience but as CFO she has to count the pennies. Cheryl says that economic constraints require that she keeps administration costs pegged back. That translates into the need for continued innovation and cost reduction. She attributes some $200,000 in procurement savings to the Lawson reverse auction system and surrounding business process automation. However, achieving those savings isn’t a given: “Lawson is complex and robust and therefore the install is a long and arduous process but now we’re enjoying the functionality on the back end.”

If that sounds familiar then let’s not be surprised. On premise software that has been in development many years is far more mature than many of the saas offerings in the market. But then nothing is that clear cut. As Phil Wainewright says:

My own take is that many applications work better when they can take advantage of the compute resources of powerful clients, and that cloud-serviced client platforms such as Adobe’s AIR, Microsoft Silverlight and Google Gears are the way of the future (albeit with some caveats, which I’ll come back to later). I say ‘cloud-serviced’ because it’s important that the software for these client platforms should be managed from the cloud. I’m not advocating a return to the bad old days of leaving users struggling with shrinkwrapped software installs.

But I do think that there are many occasions when users want to be delighted and supported by a client experience that the browser alone simply can’t deliver (and sometimes they want or need to work offline, too).

This debate won’t end anytime soon.

For about 10 years, I played trombone in a circus band for about a month out of every summer. One of the things I witnessed every year was the trapeze. In this act, there are catchers and flyers. Catchers catch and flyers fly. The flyer needs to let go of the bar and not focus on catching but on launching themselves into the gap, in order to achieve greatness.

EDS has historically been the catcher. In this merger with HP, EDS needs to change its mindset and become the flyer. It’s not an easy thing to do. The bar may seem like a safe place, but it prevents you from reaching your potential.

There is a quote from Marilyn Ferguson that comes to mind:

“It’s not so much that we’re afraid of change or so in love with the old ways, but it’s that place in between we fear. There’s nothing to hold on to.”

From the limited interaction I have had with the folks working on the merger activities, the HP-EDS team should have an advantage. EDS transitions people into the company all the time - that comes with outsourcing. EDS is made up of people who have had to let go of the bar before. After all, catchers can only catch people who let go of the bar. The company consists of people who have flying experience. The HP-EDS team needs to seek out the “fliers”, listen to their perspectives and the merger will be successful.

Everyone I’ve talked to views this as a great opportunity. EDS and HP have strengths in different areas, through this diversity of perspective it will be stronger than either organization would be alone.

People have been asking me why I don’t comment on the merger in the blog, and that’s because generally I don’t think I have anything unique to say, but this is an exception.

Earlier in the year, Vinnie Mirchandani had this to say:

HP could use a better services arm - while it has some marquee clients like P&G, it is inconsistent in most outsourcing deals. EDS could use a layer of cover. The company which just about defined outsourcing has been running hard to stay even - flat growth over the last decade…

…If I was Mark Hurd, I would spend $ 5 bn towards a smaller infrastructure player like ACS (or even better one with footprint in emerging markets) and spend the rest (plans to spend $ 12 bn on EDS) on a BPO and an application outsourcing play. In fact around infrastructure, I would think even smaller and buy a cloud computing player and use HP’s vast channel to build market on top of it.

So now there are two perspectives from within the Irregular camp. There is a third.

HP does have money. Organizations that can finance change can support clients in a quite different fashion than one that only has good intentions and a proven track record of taking on large and complex problems. Even if that is not always with the success EDS would have liked to see expressed in the public domain. EDS could do that kind of thing in the 90s but between the lack of financial skills and the decline of industry focus the company lost its way. Under HP’s stewardship EDS will have a chance to get back on the road its clients need. That, I suspect is the hope of all those transitioning to the new environment. Anything else would be a wasted opportunity.

That noise in the background was me throwing up.  A job board now positioning themselves as “green?”

The second from another colleague was altogether more illuminating:

Green hiring practices are nothing new. We ask all of our job candidates to walk to our campus for their interviews. When they arrive, instead of offering them bottled water we provide them with a locally-grown bamboo drinking straw and directions to our outdoor rainwater reclamation pond. Finally, we provide composting toilets for all hiring managers and job seekers, outfitted with 100% post-consumer recycled toilet paper made from the printed resumes of previous applicants.

Video schmideo.

As you might imagine, we’re not entirely enamored of many things we see in this ever-greening world.  As we say to all new Irregulars: “We may not always be nice, we may not always agree, but we guarantee that you’ll always leave smarter than when you came.” Just one more example of Enterprise Irregular advanced thinking.

He ran with it, a handful of the Irregulars turned out and for many it was the first time we’d met in meatspace. That happens a lot in communities that draw their numbers from those in the enterprise space. It doesn’t depend on the Silicon Valley ‘bubble crowd’ but a global audience with attendees coming from around the world.

Two years on and the show has evolved considerably. As in past years, Ismael runs it as a not-for-profit, reasonably priced gig where attendees get some of the best schwag available at any conference. Last year it was the must-have iPhone, this year it’s the HP 2133 Mini-Note PC. As a die hard and converted Mac bigot I’m not sure I approve but heck - in enterprise land, I’m in an at least 9:1 minority.

Most of the sponsors come from the startup community but there is always a smattering of big names like Google and Salesforce.com in attendance. If you want to see innovation at work, then it’s worthwhile checking out which vendors are planning booths.

This year, a number of the Irregulars will be there helping to organize, running unconference sessions, participating in or moderating panels. The panel quality looks exceptional and unlike vendor driven gigs this will include some solid real life case studies. Here’s a few of the anticipated highlights with links to the Irregulars who will be there:

• Unconference hosted by SocialText’s Ross Mayfield. Ross has organized many successful unconference sessions in the past so I would expect this to be no exception. Susan Scrupski is planning a session on ‘Barriers to Adoption,’ something she works on with clients at nGenera.
• David Terrar will be on the Document Management 2.0 session. At an unconference session, David will discuss the ion/ITCounts project in which I have had a significant involvement and which has already won an award for innovation.
• Zoli Erdos is moderating the Project Management session. If you’ve read Zoli’s blog then you’ll know he has a great sense of humor and can guarantee to bring a smile to the most jaded of conference goer’s lips.
• Vinnie Mirchandani is on the Cloud Computing panel. Vinnie is my partner in crime when it comes to calling the enterprise vendors to account for their lack of innovation and pricing policies. He’s a fearsome yet gracious debater who should not be missed.
• Anshu Sharma, once with Oracle now with Salesforce.com is on the Platform as a Service panel which is being moderated by our very own Phil Wainewright - who is also an Irregular. Given this is a hot topic, again it is one not to be missed.

Lurking around will be David Tebbutt. David and I go back more years than either of us care to remember. He is now an analyst with FreeForm Dynamics, a boutique organization based in the UK. David’s remit is to analyze environmental computing issues so if you want to learn how to make your business carbon neutral, he’s the go-to guy.If he’s in town, I can’t imagine that Dan Farber will miss the show. Dan was one of the very early Irregular supporters and even though he’s taken another position within the CNet/CBS empire, the Irregulars continue to value his company and insights.

Without wishing to blow anyone’s trumpet too hard, you’d be hard pressed to find a more interesting, entertaining, sharp or independently minded group than those I’ve named above. They are among the finest minds in the enterprise world. They have deep domain knowledge across a broad range of topics representing vendor, buy side and analyst communities. As you might imagine, we don’t always agree, but the debates are always enriching. Many of them end up parsed on this blog. But if you want to meet them, you’ll have to show up.

PS - If I’ve missed anyone, I’ll update.

SAP has committed to donating up to €200,000 to the UN World Food Program based on the value attributed to community contributions this year. I don’t wish to diminish in any way the value this kind of contribution makes. But it must pale into insignificance when compared to the amount SAP saves as a result of the work the community puts into solving problems.

Quite what that number is we may never know but it is safe to assume it runs millions of dollars. Whether that figure runs $5-10-20 million a year matters little because SAP operating income in the first half of 2008 was something around $1.4 billion at today’s exchange rates. Barely a rounding error. Nevertheless, it would be a nice gesture to see at least some of those savings going back to customers. That’s what Jim’s asking. It’s not an unreasonable request.