VMware isn’t budging in its pursuit of Siemens for alleged unpaid licenses

VMware has come out swinging in its case against Siemens over alleged unlicensed use of its software.

The Broadcom business unit launched the case in March, when it alleged that during negotiations over a support contract Siemens provided a list of the VMware software it used. That list, Broadcom alleged, mentioned many more products than Siemens had licensed.

In VMware’s telling, as negotiations progressed Siemens demanded the virtualization giant support its software – something VMware doesn’t do for products sold under perpetual licenses – and didn’t address its alleged use of unlicensed software. Talks stalled, and Broadcom decided to file a copyright case over the issue of Siemens’ alleged use of unlicensed software.

The case then went quiet, save for Siemens arguing that its software licenses mean it can move the matter to Germany instead of the US court for the District of Delaware in which VMware brought its case. Siemens also argued that this was a contractual matter, not a copyright claim.

On Wednesday, VMware fired back with filings that argue Siemens’ interpretation of its software licenses is wrong and the agreements do not allow the case to be heard in Germany, as the defendant has sought. The virtualization pioneer also criticized Siemens’ attempt to turn the matter into a contractual dispute rather than a copyright claim.

“Like any infringer, Siemens would like to limit its exposure after the fact to a mere contract claim,” states a letter from VMware’s lawyers to the court.

“Siemens fundamentally mischaracterizes what has led to this suit,” the letter states. “VMware did not cause or ask for the circumstances that gave rise to the suit. Siemens caused the problem by improperly obtaining and using a large number of VMware products for which it never purchased a license.”

The letter asks the court to consider the arguments, and not to let Siemens move the case to Germany.

“Because copyright protection is territorial, as Siemens itself acknowledges, suits to address infringement are brought in each relevant country. As a U.S. company, VMware chose to begin in the United States, under the law and procedures with which it is most familiar,” the letter states.

That language strongly hints that VMware will happily run copyright claims in multiple jurisdictions.

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The facts of this case are similar to those in VMware’s disputes with UK supermarket giant Tesco and AT&T. VMware and the telco giant settled that case in about four months. The Tesco matter, which kicked off in July, is ongoing.

The Siemens case has now run for eight months and doesn’t look like settling in a hurry.

The core of these disputes is Broadcom’s decision not to sell support services for older software sold under perpetual licenses, and hardly ever selling VMware software other than the Cloud Foundation (VCF) private cloud suite. Analysts rate VCF as the best product in its class, but it is not cheap and those who adopt the product report their VMware bills rise by 300 percent or more. Broadcom counters that VCF pays for itself quickly, and that by bundling many VMware products and support it is actually cheaper than the cost of buying all the components of the suite. Users, however, don’t always want everything included in VCF.

Broadcom CEO Hock Tan has acknowledged that some VMware customers have acquired VCF without implementing it fully, and in September said his company has two years of hard work to address that situation.

VMware will end support for version 8.0 of its products on October 11, 2027, just a few weeks after the end of the two-year period Tan mentioned. The Register often hears that organizations contemplating a move away from VMware, or reducing their use of the product, have circled that date on their calendars as a deadline for migration projects to alternative platforms. ®