ESS’ intellectual property (IP) is being systematically and unlawfully misused by certain competitors, who are trying to conceal their misuse of ESS’ intellectual property through a smokescreen of allegations of anti-competitor behaviour.
ESS provides lawful, safe, and authorised means for its competitors to migrate data from SIMS, which our competitors have ignored, instead choosing to access our program code and not just school data.
Certain reporting of this matter in the trade press and on blogs mis-characterises the competitors doing this as victims. Fair competition requires all companies to abide by the law. This blog sets the story straight:
What has happened?
In October 2023, ESS obtained actionable evidence that its IP was being unlawfully used by certain competitors, who have subsequently tried to excuse their actions on the basis that this misuse was required to migrate customers from SIMS to their MIS.
Specifically, we established that competitors were inducing our customers to breach their contracts with ESS by providing them with full backup copies of their SIMS databases, which in addition to customer data contain over 1.5 million lines of ESS program code and other valuable ESS IP.
Further research also uncovered that one of our competitors has been taking copies of the encrypted SIMS Document Store database and decrypting that database. The competitor in question has yet to explain how they are doing this lawfully without either using ESS program code or reverse engineering ESS program code.
Why shouldn’t competitors be accessing ESS databases directly?
Firstly because extracting data directly from a SIMS database, rather than through reports or Application Programming Interfaces (“APIs”), is unsafe. This is because, while ESS guarantees the stability of SIMS and its APIs and reports, it has always reserved the right to change its database design without notice. As a consequence direct data extraction runs the risk of compromising the integrity and consistency of the data extracted.
Secondly, because these databases contain ESS program code and other valuable ESS IP, which competitors have no right to obtain or use.
How should competitor MIS providers be operating?
In 2003, Capita (the then owner of SIMS) gave the Office of Fair Trading (the forerunner of the Competition and Markets Authority) Voluntary Assurances that it would make it possible for third parties who had entered into an agreement with ESS to extract data from SIMS via Application Programming Interfaces (APIs). These APIs (and the associated SDKs) provide access to all the customer data in SIMS and are used by scores of third parties to extract billions of data items from SIMS every month.
In addition to the APIs, schools can use the SIMS reporting engine to extract data from SIMS. This is the method ESS uses to migrate data from competitor systems, and in most cases is the only method made available by ESS’s competitors for data migration.
The lawful methods that ESS makes available for extracting customer data from SIMS or files from the SIMS Document Store have been around for many years. There is therefore no justification for competitors to copy SIMS databases or directly read data from these databases or for competitors to use ESS IP to decrypt documents in the SIMS Document Store. Copying or using ESS program code is unlawful and entirely unnecessary for the migration of customer data.
What have we done to address this?
We addressed this matter formally with the relevant competitors in December 2023, requiring them (amongst other things) to immediately cease their unlawful practices. We note that despite this, certain competitors continue to encourage schools to provide them with SIMS databases and ESS program code. This is clearly unlawful.
We have explained that competitors can sign up to our technical integrator program if they wish to use the APIs to extract data programmatically, or they can use aggregators such as Wonde and GroupCall to extract data programmatically on their behalf. Alternatively, they can do what ESS is required to do when migrating from competitor MIS, namely use reports to extract data from SIMS and then ingest data into their MIS from these reports.
We have written to our SIMS Support Unit (SSU) partners, to remind them of their obligations to not provide, nor assist schools to provide, ESS IP (which includes the SIMS database and SIMS Document Store database), to third parties.
There is clear guidance on the SIMS knowledge base, which sets out how to migrate away from SIMS lawfully and safely.
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