back to article Oracle really does owe HPE $3b after Supreme Court snub

The US Supreme Court on Monday declined to hear Oracle's appeal to overturn a ruling ordering the IT giant to pay $3 billion in damages for violating a decades-old contract agreement. In June 2011, back when HPE had not yet split from HP, the biz sued Oracle for refusing to add Itanium support to its database software. HP …

  1. BOFH in Training Bronze badge

    Ops, that's one less yacht or island for Larry.

    1. A Non e-mouse Silver badge

      And a small dent in the write-off losses from the Autonomy debacle for HPE.

      1. Franco Silver badge

        Might cover a small part of the lawyers fees.....

  2. Snowy Silver badge

    First Amendment

    That protects you from the government, not from other people?

    1. DS999 Silver badge

      Re: First Amendment

      Yes, that's what is has always said. Congress shall make no law...

      The people claiming Twitter is infringing upon free speech don't understand that, and apparently neither does Oracle.

    2. Doctor Syntax Silver badge

      Re: First Amendment

      Their case seems to have been based on the petition clause. A very quick DDG brings up this “Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances.”

      How a right to petition the govt applies to a commercial contract doesn't seem obvious to me. Neither does equating Oracle with "the people". It didn't seem obvious to the Supreme Court either. I doubt it seemed obvious to anyone except Oracle's lawyers.

      1. ArrZarr

        Re: First Amendment

        I suspect that even Oracle's lawyers knew that it wouldn't fly but it was the best they had and the fees from the extra work would be dwarfed by the $3B Oracle were going to have to pay anyway, so it was worth it to at least try.

        1. DS999 Silver badge

          Re: First Amendment

          Even if the lawyers were 100% sure it wouldn't fly it is worth it TO THEM to do it, because extra billable hours, you know?

          1. AVee

            Re: First Amendment

            It's probably worth it to Oracle too. Assuming you can get just 0.1% interest on that money postponing the payment by half a year will be worth 1.5 million. Lawyers are expensive, but just filing the appeal is probably cheaper.

            And it will annoy HPE, that's probably worth something as well.

      2. Old Used Programmer Silver badge

        Re: First Amendment

        Petitioning for a redress of grievances doesn't guarantee you'll get the redress you want...even if it applied in the first place.

    3. General Purpose Silver badge

      Re: First Amendment

      IANAL and I haven't kept track but it seems Oracle argued they were being penalised for appealing.

      It's all very convoluted but this bit from Oracle's application to the Supremes seems key: "Oracle argued, among other things, that the damages calculation by HP’s expert was predicated in part on Oracle’s announced intent to appeal the trial court’s ruling, which effectively penalized Oracle for exercising its rights under the Petition Clause."

      The Petition Clause of the First Amendment protects, they said, their right to petition the courts (appeal) without being penalised.

      1. General Purpose Silver badge

        Re: First Amendment

        More from that application: "HP’s expert ... claimed that HP suffered damages owing to market uncertainty resulting from both (1) Oracle’s March 2011 announcement that it would stop offering future software versions on Itanium, and (2) Oracle’s August 2012 announcement that it would appeal the court’s Phase I ruling."

    4. EarthDog

      Re: First Amendment

      Civil law is different than constitutional law, unless explicitly stated as in the bankruptcy clauses of the US constitution. That's why labor laws are needed. This is also hwy social media platform owners can restrict speech without strong regulation in place.

      1. MachDiamond Silver badge

        Re: First Amendment

        "This is also hwy social media platform owners can restrict speech without strong regulation in place."

        The Free Speech amendment in the US Bill of Rights put a restriction on what the government can and can't do. It doesn't necessarily apply to private companies.

  3. Dinanziame Silver badge

    Couldn't happen to a nicer company

    Incidentally, it's the second year in a row that Oracle loses billions of dollars due to a supreme court ruling. Last year was losing the Google Android lawsuit. It looks like the main department are Oracle (lawyers) are not good at their job.

    1. hammarbtyp

      Re: Couldn't happen to a nicer company

      No, the lawyers are doing fine, thank you very much

      You have to question the management however who felt that they could win

      a) a case that involved trying to retrospectively patent a commonly used computer language

      b) Trying to frame contract law as some sort of 1st amendment free speech issue

      1. ecofeco Silver badge

        Re: Couldn't happen to a nicer company

        This. Manglement is solely to blame.

    2. MachDiamond Silver badge

      Re: Couldn't happen to a nicer company

      "It looks like the main department are Oracle (lawyers) are not good at their job."

      The lawyers are certainly easy targets and probably deserving, but many big companies get to be too full of themselves and don't deal honestly with anybody. If it earns a company, and more specifically, the most compensated to behave that way, they'll keep doing it. It the same thing that happens if you let your kids get away with breaking your rules with no more than a stern look. No real punishment means the rules aren't very important. There are lots of really tall spoiled brats in this world.

  4. Paul Crawford Silver badge

    Really, just how expensive is it to support a CPU on the database software? How much is (or indeed should be) written in assembly or anything so low-level that you need teams of expensive and specialist programmers to make sure the build & test process works on all architectures? Can't be anything like $3B, in fact, probably less than one Oracle license...

    1. Anonymous Coward
      Anonymous Coward

      Another option, just port it and don't care how slow it is. You made it and thus met the agreement. Only a fool would use it and it would never actually be put into production if it was really bad. Sales people love slide decks and as such, show how bad it performs compared to other supported platforms. Licensing could also be a lot more expensive to deter the use of it as well. If the licensing is 10 times the cost and the performance is 1/10th of other supported platforms, only the mist diehard Itanic users that love Oracle software would even think of using it.

      1. Doctor Syntax Silver badge

        "Licensing could also be a lot more expensive to deter the use of it as well."

        That doesn't seem a deterrent to Oracle customers in general.

        1. Rob Willett

          How much would you have to put Oracle licensing so it does become an issue?

          Clearly more than it is at the monent as Oracle is still making money.

        2. Anonymous Coward
          Anonymous Coward

          Oracle already were charging an over the top excess for using Itanium, they billed it differently to all other types of CPU. Hell on Itanium they ever counted hyperthreading as doubling the CPU count.

      2. John Dallman

        HP weren't getting many new sites on HP-UX Itanium at the time. Oracle thus weren't getting many new sales. If they were to reduce their efforts to "contractual obligation only", the people who'd suffer would be the Oracle customers.

        They'd have to move to different hardware, and they'd likely want to switch databases at the same time, since Oracle had done this to them. The idea that they'd made a serious error by buying Itanium would not be popular with them at all.

        1. Richard 12 Silver badge

          They had to anyway

          As Oracle stopped supporting their hardware

      3. 2+2=5 Silver badge

        > Another option, just port it and don't care how slow it is. You made it and thus met the agreement.

        Yep - and HP would still have been able to claim that it was the fastest available DB on Itanium. ;-)

  5. Tubz

    No sympathy for either company, but a little YES !! for Oracle getting screwed over after years of doing it to others.

  6. rsole

    I feel happy and sad at the same time :)

  7. SusiW

    Happy Days

    Well, that nugget of good news has really made my day.

    I truly love it when certain companies get slapped-down. Trouble is that it's HP(E?) that's getting the cash.

    HP: Once a lauded maker of superb lab instrumentation and devices. Now when I see the name "HP" all I can think of is them bleeding customers dry (in my opinion) of their hard-earned cash by using anti-consumer "security chips" to 'encourage' us to buy their overpriced printer inks. Allegedly.

    Now if they can only nut-up and face that they royally screwed-up the purchase of Autonomy, that it was their lack of due diligence and avarice being at fault, then I might look at them in a kinder light.

    Nah. That's just silly thinking. :D

    1. Doctor Syntax Silver badge

      Re: Happy Days

      HPE isn't the screwing-over-of-ink-users company.

      1. l8gravely

        Re: Happy Days

        Nah, HPE is the "you gotta buy an expensive license for our iLO remote management tool if you want to see the console at the OS level after boot" kind of screw over the customer type of company.

        Now I admit it's a nice platform, but they should just give it away as part of the cost of doing business. I'll push people to SuperMicro even though their remote management tool is crufty. It works and works quite well, and I don't have to pay extra for a needed feature.

        But all companies try to nickel and dime you to death, because too many people are focused on the bottom line to the exclusion of everything else. Idjits.

        1. Anonymous Coward
          Anonymous Coward

          Re: Happy Days

          Just put the console on the VSP and then you don't need the adv iLO license.

          1. Sandtitz Silver badge

            Re: Happy Days

            "Just put the console on the VSP and then you don't need the adv iLO license."

            Not the same thing at all.

            Advanced license allows enables mounting virtual media with which you can do the OS installation into a blank server, or you can boot into SPP and such without a need to visit the server room. The console may be handy if you lose connectivity to the server, although you can use it for short periods (1 min?) at a time before you get the license errors.

            Advanced license also allows LDAP logins and the federation feature is handy if you have more than a handful of Proliants, although there are other ways of monitoring and updating the servers, e.g. ILO Amplifier.

            For a one-time need you can get a 60-day trial license from HPE.

        2. rcxb1

          Re: Happy Days

          Dell does the same thing with their DRAC licensing... if you need the graphical virtual console, virtual media, or dedicated NIC.

          If you don't need those, the free license is fine. IPMI serial-over-LAN works perfectly well with Unix/Linux and even Windows Emergency Management Services (EMS) if you enable/configure those.

          I hated the idea of included hardware you can't use without a license, too, but it's oh-so-easy to cheat the license, so home-lab types get extra capabilities for free from the old equipment they pick up.

      2. rcxb1

        Re: Happy Days

        > HPE isn't the screwing-over-of-ink-users company.

        No, that is HP.

        HPE is the: "You can't download those drivers for your hardware from us again unless you have a current support contract" company.

        1. This post has been deleted by its author

      3. ecofeco Silver badge

        Re: Happy Days

        HP is HP. The rest is just fiction.

    2. Anonymous Coward
      Anonymous Coward

      Re: Happy Days

      If you want some happy thoughts, I can vouch that Keysight (the artist formerly known as Agilent, the artist formerly known as Hewlett Packard's test & measurement division) still make some really, really nice instruments.

      And I was even recently pleasantly surprised that I could install the VNC server package on my 'scope without actually needing to buy any kind of license, which definitely wouldn't be true if they were still part of HP. (I have grim memories of trying to understand HP-UX licensing back in the day, and having to grovel to our rep for the installation media, at a time when SunOS could just be downloaded off a website, so it's fair to say the rot set in there long, long ago, well before Fiorina et al.)

      1. Richard 12 Silver badge

        Re: Happy Days

        Keysight are Agilent? I did not know that, thanks!

      2. EarthDog

        Re: Happy Days

        Keysight is what HP was when they were first starting out. Instruments and measurements equipment. Real engineering.

  8. nematoad Silver badge

    No, really?

    "We are pleased with the court's order,"

    Yes, with 3 billion dollars heading towards your bank account, why wouldn't you be?

  9. Captain_Cretin

    Hands up, everyone who thinks that $2.99 Billion will go out in legal fees?

    1. hammarbtyp

      At least one side bills will be paid then...

  10. Roger Kynaston Silver badge

    licence audits here we come

    Larry will want to recoup that loss as quickly as possible.

    I'm glad that there is no Oracle where I work.

    1. 2+2=5 Silver badge

      Re: licence audits here we come

      > Larry will want to recoup that loss as quickly as possible.

      Oracle could try and offload it onto an insurer - which might explain why they've gone to the highest possible appeal.

    2. Snowy Silver badge

      Re: licence audits here we come

      Will that stop them wanting to come and look?

  11. John Dallman

    Oracle aren't a nice bunch, but they aren't stupid, and they were right about Itanium being doomed.

    AFAICS, they seem to have decided that contingency plans at intel (to drop Itanium) and HP (to port HP-UX to x86-64) that had leaked to them were the plans being acted on. Had that been the case, their actions would have been a lot easier to defend. But it wasn't. HP was determined to keep on with Itanium at the time, and it took several more years for them to see the writing on the wall.

    Incidentally, don't claim that supporting Itanium can't be that difficult if you haven't tried it. It was horrid. If you needed any third-party libraries, they usually weren't available. Common programming tools were often unavailable, or worked badly. Performance sucked, and improving it was hard. The compilers were buggy. I produced Windows and HP-UX software on Itanium for a few years, and it was a constant struggle. When HP approached us to add Linux support, our reaction was "Not funny. You cannot possibly be serious, and it's been hard enough with Windows and HP-UX that jokes fall flat."

    1. Doctor Syntax Silver badge

      "Oracle aren't a nice bunch, but they aren't stupid, and they were right about Itanium being doomed."

      HP's Itanium customers might also have come to that conclusion. Nevertheless is they had an investment in it they might reasonably have expected it to be supported for the life of the H/W.

  12. This post has been deleted by its author

  13. Alan Brown Silver badge

    Freedom of speech

    is not freedom from consequences

    1. luis river

      Re: Freedom of speech

      Lack sense of humor!!! Please

  14. msobkow Silver badge

    Suck it, Larry. :P

  15. a_yank_lurker Silver badge

    Poor Leisure Suit Larry</snark>

    Now let's see how his minions defraud their customers to pay the bill.

    1. Anonymous Coward
      Anonymous Coward

      Re: Poor Leisure Suit Larry</snark>

      "Now let's see HOW his minions defraud their customers to pay the bill."

      Simples .... they do it the same way they always do !!!


  16. Mixedbag

    Open door

    I wonder... Does this open the door for former Oracle on HPE Itanium users to sue Oracle for the cost of having to re-platform?

    1. Anonymous Coward
      Anonymous Coward

      Re: Open door

      Oh that would be sweet

      Even sweeter would be if all the people who lost their jobs over this could also sue

  17. aerogems Bronze badge
    Thumb Up


    An action (so to speak) by SCOTUS that I can actually support!

  18. ecofeco Silver badge


    I hate both companies, but Oracle-extortion-by-license-audit, deserved this.

    Live by the extortion... win stupid prizes!

  19. Rockets

    Good - Oracle a Horrible Company

    Where I work we were a HP Itanium customer that ran Oracle on the platform. We got bitten badly by Oracle's decisions around Itanium and cost significant amount of time and money to move away from the platform to a x86 infrastructure. Our workloads that would happily run on a single Itanium box had to be scaled out across multiple x86 servers which made them more complex. We also ran Oracle Linux on the boxes because early in the test migrations we ran into a issue and Oracle support was pointing the finger at RHEL that we were initially using and not their own software. Switched a box to OEL and same issue which they then finally resolved while at the same time trying to sell us one of the Exadata storage devices. The head of IT was doing a tour of a Oracle hosting DC around the same time and asked to see a Exadata. They couldn't show him one because they were too expensive for Oracle's hosted operations and there was only 2 in the whole DC that belonged to customers so he couldn't see them. That quickly shutdown any Exadata talk after that.

  20. Anonymous Coward
    Anonymous Coward

    The wheels of justice grind slowly

    Holy crap, this lawsuit started back when I worked at HP, years before the HPE split. I've had another entire career since then.

    There was a whole lotta bad blood between HP and Oracle over hiring Mark Hurd. HP had just fired him for "inaccurate expense reports," which was clearly a palace plot by other board members because the supposed discrepancies were a microscopic fraction of his total compensation. Seen from the trenches, it appeared that his immediate hiring by Oracle threw the HP C-suite into full "Crazy Spurned Ex" mode.

    The disagreement that led to this lawsuit was driven by posturing and dick-swinging. Oracle announced they were dumping Itanium; maybe it was Hurd's revenge, maybe not. They certainly seemed to take pleasure in their decision. I can't speak to Oracle's motives, but many at HP saw it as payback from Hurd for the ginned-up scandal that forced him to resign. The HP internal narrative was that the whole Integrity product line was now in jeopardy because of the Oracle announcement.

    I'll admit, many of us thought the lawsuit was kind of a pathetic move by HP. Itanium was obviously not the future of computing. It was a constant battle to keep Windows DC, RHEL, and any other operating systems that were not called HP-UX aboard the Itanic. But what-evs. You do you, HP board.

    So now HPE (which did not exist in 2011) has "won." Yay. The $3B that they sued for in 2011 is now worth $2.3B in constant dollars. The rusted hulk of the Itanic rests on the bottom of an ocean somewhere, unmissed. Oracle is still Oracle; they'll pull $3B out of the couch cushions and move on. The lawyers for both sides got new yachts and private planes. Plus ça change, plus ça change rien.

  21. Kofovok

    Oracle deserves that

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