AllThingsD » damages http://allthingsd.com Sat, 11 Feb 2012 03:23:32 +0000 en hourly 1 http://wordpress.org/?v=3.3.1 http://allthingsd.com/theme/images/logo-rss.jpg All Things Digital http://allthingsd.com/ 144 22 Singapore Press Holdings Sues Yahoo http://allthingsd.com/20111124/singapore-press-holdings-sues-yahoo/ http://allthingsd.com/20111124/singapore-press-holdings-sues-yahoo/#comments Thu, 24 Nov 2011 18:21:23 +0000 Chun Han Wong http://allthingsd.com/?p=147416 Singapore Press Holdings Ltd. is suing Yahoo Inc.’s Southeast Asian unit for alleged copyright violations, saying that the Internet firm reproduced news content from its newspapers without permission, the companies said Wednesday.

The Singapore-based media group, which publishes 18 newspapers here, seeks unspecified damages from Yahoo Southeast Asia Pte. Ltd. for the alleged copyright infringements, as well as a legal injunction to prevent further infringements, according to a writ filed last week to the city-state’s High Court.

Read the rest of this post on the original site »

]]> http://allthingsd.com/20111124/singapore-press-holdings-sues-yahoo/feed/ 0 Latest Oracle Damage Claim Still Ridiculous, Google Says http://allthingsd.com/20110921/latest-oracle-damage-claim-still-ridiculous-google-says/ http://allthingsd.com/20110921/latest-oracle-damage-claim-still-ridiculous-google-says/#comments Wed, 21 Sep 2011 18:40:58 +0000 John Paczkowski http://allthingsd.com/?p=123099 As mediation talks between Oracle and Google move into their second day, the chances of an accord being reached are looking increasingly unlikely.

According to reports, the companies’ CEOs, Larrys Ellison and Page, are still at an impasse over how to settle Oracle’s patent-infringement lawsuit against Google over the use of Java in its Android operating system.

The latest sticking point: A recommendation from Oracle’s damages expert arguing the company is owed more than $2 billion for copyright infringement and $201.8 million more for patent infringement.

That’s significantly less than the $6.1 billion Oracle claimed Google owes it in court papers, but it’s still far too heady a figure for the search giant.

Reuters reports that in a Tuesday letter to the judge presiding over the case, Google attorney Robert Van Nest urged the court to reject that recommendation, slagging it as deficient. According to Van Nest, its failure to explain just how the figure was calculated and the forecast for how much revenue Oracle might have earned by partnering with Google on Android are grounds enough for ignoring it.

Meanwhile, talks between the dueling Larrys drag on, with an October trial date looming if they fail to reach a settlement.

]]> http://allthingsd.com/20110921/latest-oracle-damage-claim-still-ridiculous-google-says/feed/ 0 Nokia to Apple: From Hell's Heart I Stab at Thee http://allthingsd.com/20110329/nokia-to-apple-from-hells-heart-i-stab-at-thee/ http://allthingsd.com/20110329/nokia-to-apple-from-hells-heart-i-stab-at-thee/#comments Tue, 29 Mar 2011 15:55:29 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=59397 Nokia’s obsession with Apple has officially crossed over into the Ahabian.

Aghast at the U.S. International Trade Commission’s ruling on its first complaint against Apple, Nokia has filed a second, accusing Apple of infringing its patents “in virtually all of its mobile phones, portable music players, tablets, and computers.”

At issue in the complaint are seven patents that Nokia argues “are now being used by Apple to create key features in its products in the areas of multi-tasking operating systems, data synchronization, positioning, call quality and the use of Bluetooth accessories.” Taken together with the IP cited in Nokia’s previous ITC complaint and related cases in the U.S., U.K., Germany and The Netherlands, the company has nearly four dozen patents in play in its suit against Apple.

“Our latest ITC filing means we now have 46 Nokia patents in suit against Apple, many filed more than 10 years before Apple made its first iPhone,” Paul Melin, Nokia’s VP of intellectual property said in a statement. “Nokia is a leading innovator in technologies needed to build great mobile products and Apple must stop building its products using Nokia’s proprietary innovation.”

Almost sounds like Nokia’s saying it invented the iPhone, doesn’t it? Which is ironic, considering the company is on the record professing its fondness for Apple’s handset.

Asked once about the striking similarities between a touchscreen device it was designing and the iPhone, Anssi Vanjoki, Nokia’s head of multimedia devices at the time, replied, “If there is something good in the world then we copy with pride.”

PREVIOUSLY:

]]> http://allthingsd.com/20110329/nokia-to-apple-from-hells-heart-i-stab-at-thee/feed/ 2 Oracle to SAP: How's This for Grossly Excessive–We Want Another Half-Billion in Damages http://allthingsd.com/20110224/sap-oracle-motion/ http://allthingsd.com/20110224/sap-oracle-motion/#comments Thu, 24 Feb 2011 17:41:28 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=58327 The $1.3 billion jury award given Oracle in its intellectual property infringement case against SAP is not only “grossly excessive,” it’s a “miscarriage of justice” that “shocks the conscience.”

So says SAP in a new motion seeking to sharply reduce that award, which it says is in conflict with copyright law and founded on sheer speculation.

“The jury’s $1.3 billion ‘hypothetical license’ fee award was an unreasonable amount that went far beyond what was needed to make Oracle whole,” SAP argued in its motion. “The enormous fee did not–indeed, could not–represent Oracle’s actual damages because Oracle never lost a license fee from Defendants or anyone else. The Copyright Act does not permit such awards that are un-tethered to a plaintiff’s actual harm, and the hypothetical license claim should not have gone to the jury.”

And so SAP is asking the court to drop the award to no more than $408.7 million or order a new trial.

Oracle, of course, believes the verdict should stand and opposes SAP’s motion. But if its rival should be granted a new trial, Oracle wants to seek an additional half a billion dollars in damages that it feels it lost when the court unfairly excluded its up-sell and cross-sell projections.

“In the event the Court were to order a new trial, however, Oracle respectfully submits that this Court would be required to review all errors at trial, including those errors that prejudiced Oracle and resulted in a reduction of the damages to which it was entitled,” the company argues. “While Oracle believes the jury’s verdict fairly reflects the evidence properly admitted, it also notes that the verdict fell toward the bottom of the range of reasonable license amounts Oracle presented, and that the Court’s rulings on certain issues shifted that range significantly downward. … [It] cut half a billion dollars from the damages opinion that Oracle’s damages expert would have offered and that fact witnesses would have supported with additional testimony and documentary evidence.”

In other words, SAP’s motion is bogus, it doesn’t deserve a new trial, and if it’s granted one Oracle wants the chance at a $1.8 billion award. Oracle’s motion in full below.


1046_Conditional New Trial Motion –

PREVIOUSLY:

]]> http://allthingsd.com/20110224/sap-oracle-motion/feed/ 0 SAP Granted Lower APR Damages Award in Oracle Case http://allthingsd.com/20101229/sap-seeks-0-apr-damages-award-in-oracle-case/ http://allthingsd.com/20101229/sap-seeks-0-apr-damages-award-in-oracle-case/#comments Wed, 29 Dec 2010 12:35:01 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=54745
SAP would rather not pay Oracle interest on top of the $1.3 billlion in damages awarded the company last month. But it has to, now that a court has granted Oracle’s demand for prejudgment interest.

Late Tuesday a Federal judge ordered SAP to pay interest on the gargantuan sum Oracle won against it in a November copyright infringement trial. But it also agreed to calculate that interest using a different method from the one employed by Oracle. And in doing so it lopped about $195 million dollars off the prejudgment interest Oracle had originally sought.

So good news or, rather, significantly better bad news. Certainly, SAP was pleased to learn it’s not obligated to pile quite as much prejudgment interest atop Oracle’s award as it might have been.

“While we believe that Oracle should only be awarded damages, we appreciate that the Court agreed with SAP on the proper calculation of interest in this case which dramatically lowered the amount,” an SAP spokesman told me. “The interest the Court ordered, based on the statutorily-set interest rate of .3 percent and the accrual period of September 29, 2006 through December 23, 2010, is approximately $16.5 million, rather than the over 200 million Oracle was seeking.”

Of course, that doesn’t make Oracle’s damages award any less massive. But then SAP hopes to whittle that down as well. As the company said in its filing last week: “Defendants plan to challenge that verdict on a variety of grounds in their post-judgment motions, including that it is excessive and overcompensates Oracle.”

Oracle declined comment.

PREVIOUSLY:

]]> http://allthingsd.com/20101229/sap-seeks-0-apr-damages-award-in-oracle-case/feed/ 0 Oracle to SAP: You Owe Us Another $212 Million http://allthingsd.com/20101210/oracle-wants-another-212-million-from-sap/ http://allthingsd.com/20101210/oracle-wants-another-212-million-from-sap/#comments Sat, 11 Dec 2010 06:15:14 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=54220 Oracle is putting the screws to SAP again.

In court papers filed Friday, the company demanded SAP pay it $212 million in interest on top of the $1.3 billion in damages it was awarded in the TomorrowNow lawsuit. Should Oracle’s demand be approved, SAP’s total penalties would rise to $1.63 billion.

SAP, which argued in court that it should be held liable for no more than $28 million, clearly has no plans to pay Oracle the interest to which it says it’s entitled.

Said an SAP spokesman, “We don’t believe that Oracle is entitled to any additional compensation beyond the final judgement in this case.” 

Reached for comment, Oracle declined to give one.

PREVIOUSLY:

]]> http://allthingsd.com/20101210/oracle-wants-another-212-million-from-sap/feed/ 0 Oracle-SAP Verdict: SAP Owes Oracle $1.3 Billion http://allthingsd.com/20101123/oracle-sap-verdict/ http://allthingsd.com/20101123/oracle-sap-verdict/#comments Tue, 23 Nov 2010 22:54:44 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=53149 Billions or millions. That was the central question in the Oracle vs. SAP case and in the end, the jury determined its answer to be billions with “b.” For the theft of Oracle’s intellectual property by its now shuttered TomorrowNow division, SAP must pay Oracle $1.3 billion.

This in addition to the $120 million in attorneys’ fees SAP agreed to pay when the trial first began.

SAP, which believed that the damages amounted to about $28 million, had argued that Oracle was looking for an undeserved bonanza out of the jury, while Oracle contended the market value of licensing the IP was between $1.65 billion and $3 billion.

As Nucleus Research’s Rebecca Wettemann notes, the damage award is “a drop in the bucket” to Oracle, but a stern warning to the industry. Looking forward, she said, “You have to bet Oracle will be reminding customers they’re choosing between thought leaders and intellectual property thieves–and what that indicates more broadly about how SAP does business.”

In a statement issued after the verdict , SAP was contrite:

“We are, of course, disappointed by this verdict and will pursue all available options, including post-trial motions and appeal if necessary. This will unfortunately be a prolonged process and we continue to hope that the matter can be resolved appropriately without more years of litigation. The mark of a leading company is the way it handles its mistakes. As stated in court, we regret the actions of TN, we have accepted liability, and have been willing to fairly compensate Oracle. Throughout this matter, our customers, employees and partners have stood by us and, for that, we are grateful. Our focus now is looking forward, helping our customers be best run businesses, and extending our legacy of industry leadership well into the future. We thank the jury for its diligent service through this lengthy trial and the Court for its supervision of this complex case.”

On behalf of Oracle, President Safra Catz sounded as clinical as Jack Webb wrapping up an episode of “Dragnet.” “For more than three years, SAP stole thousands of copies of Oracle software and then resold that software and related services to Oracle’s own customers,” she said in a statement. “Right before the trial began, SAP admitted its guilt and liability; then the trial made it clear that SAP’s most senior executives were aware of the illegal activity from the very beginning. As a result, a United States Federal Court has ordered SAP to pay Oracle $1.3 billion. This is the largest amount ever awarded for software piracy.”

PREVIOUSLY:

[Image credit: Pre-Ellison Samurai image by Artem Mirolevioch]

]]> http://allthingsd.com/20101123/oracle-sap-verdict/feed/ 0 QOTD: What Happened to "He Is Clearly a Very Important Witness in This Case"? http://allthingsd.com/20101123/qotd-343/ http://allthingsd.com/20101123/qotd-343/#comments Tue, 23 Nov 2010 15:35:23 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=53107

“I think it would have been helpful and important for the jury to hear from him. On the other hand, it wasn’t essential. We were able to put our case in anyway.”

– Oracle attorney David Boies changes his tune on the importance of HP CEO Léo Apotheker’s testimony in the company’s copyright infringement lawsuit against SAP

]]> http://allthingsd.com/20101123/qotd-343/feed/ 0 Oracle-SAP: Closing Statements Followed by Closing Insults http://allthingsd.com/20101123/oracle-sap-closing-statements-followed-by-closing-insults/ http://allthingsd.com/20101123/oracle-sap-closing-statements-followed-by-closing-insults/#comments Tue, 23 Nov 2010 09:00:14 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=53083 With closing arguments said and done, the Oracle-SAP case is nearly over, but the companies continue to trade sucker punches outside the courtroom. In dueling statements issued Monday night, Oracle branded SAP an IP plunderer and SAP upbraided Oracle for its impolitic behavior and what it seems to view as poor form. Below, both statements in their entirety.

ORACLE on SAP
“Oracle brought suit to stop the illegal conduct and hold SAP fully accountable for its actions. Four years ago we discovered massive and indiscriminate downloading of software and support materials from an Oracle support Web site.

SAP immediately and, for three and a half years, repeatedly denied wrongdoing and responsibility. But on the eve of trial SAP began a series of admissions to claims of copyright infringement, violations of state and federal computer fraud laws, unfair competition, breach of contract, interference and other claims that settled liability before the trial began. Trial evidence and testimony showed that the SAP Executive Board was fully aware of the illegal activity and still acquired TomorrowNow to unlawfully take Oracle support revenues and move Oracle customers to SAP products and to disrupt and discredit Oracle. SAP not only failed to take action to stop the behavior, but it expanded it for 18 months after Oracle filed suit.

The pre-trial admissions and testimony over the last few weeks have exposed SAP’s scheme to capitalize on the use of stolen intellectual property. While Oracle seeks damages to fairly compensate it for this massive theft, it is perhaps more important to expose the illegal conduct by a dominant player in the industry and to send a message that intellectual property rights must be respected.”

SAP on ORACLE
The time for testimony and sidewalk claims by plaintiff’s counsel are over. The actual testimony took place in court.

We are very proud of the SAP legal team and our counsel Jones Day for their work in presenting our defense. We believe we have presented a solid case for the reasonable and appropriate compensation for damages by the limited actions of TomorrowNow. This case is not about who knew what, did what or supervised what…those issues were handled by stipulations prior to trial. This case is only about the damages, and we trust now in the jury to examine the evidence and testimony and reach a fair and just conclusion.

SAP has a long history as a trusted partner and we believe our legacy will extend beyond this matter. Throughout this matter over these three years, our customers and partners have stood by us and for that we are grateful. The mark of a successful leading company is the way it handles it’s mistakes. As indicated in court, we regret the mistakes of TN, we apologize to Oracle, and we have sought to address these mistakes by compensating Oracle for the damages. All along, we have done the responsible thing by admitting to the mistakes, taking care of the customers, winding down the TN business, and accepting liability. We are confident we can put this matter behind us and continue our leadership of this industry.

PREVIOUSLY:

]]> http://allthingsd.com/20101123/oracle-sap-closing-statements-followed-by-closing-insults/feed/ 0 Oracle-SAP Case Closes With $1.67 Billion Difference of Opinion http://allthingsd.com/20101122/oracle-sap-case-closes-with-1-67-billion-difference-of-opinion/ http://allthingsd.com/20101122/oracle-sap-case-closes-with-1-67-billion-difference-of-opinion/#comments Mon, 22 Nov 2010 23:54:07 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=53070 Closing arguments in the Oracle vs. SAP trial went about as expected, with Oracle attorney David Boies urging the jury to drop the hammer on SAP by awarding $1.7 billion in damages for infringement of intellectual property, and SAP attorney Robert Mittelstaedt arguing that to do so would be asinine.

“The defendants have admitted that their infringement was massive and prolonged,” Boies said in his closing statement. “It is clear that SAP’s board and top executives expected it would be worth billions of dollars.” And just because SAP wasn’t able to generate that kind of value from Oracle’s pilfered IP, doesn’t mean it shouldn’t pay full fare for its infringement. “They took it and they have to pay for it regardless of whether they did well or didn’t do well using it.”

But SAP would rather not pay what it describes as a poorly caluclated “bonanza” award. “This case comes down to what is the best measure of compensation,” SAP attorney Robert Mittelstaedt argued. “Oracle’s [proposed damages] are based on guesswork,” while SAP’s are “based on reality.”

And evidently factoring “reality” into the equation cuts a hell of a lot of fat off the damages award at issue here. Because Mittelstaedt says SAP feels it owes Oracle just $28 million, which is, remarkably, even less than the $40.6 million its high-paid damages expert suggested.

PREVIOUSLY:

]]> http://allthingsd.com/20101122/oracle-sap-case-closes-with-1-67-billion-difference-of-opinion/feed/ 0 LOLCatz: Safra on The Stand Again in Oracle-SAP Trial http://allthingsd.com/20101120/lolcatz-safra-on-the-stand-again-in-oracle-sap-trial/ http://allthingsd.com/20101120/lolcatz-safra-on-the-stand-again-in-oracle-sap-trial/#comments Sat, 20 Nov 2010 10:00:48 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=52879
Testimony in the Oracle vs SAP trial wrapped up on Friday with a second appearance by Oracle co-President Safra, who said SAP should pay at least $1.6 billion in damages for the copyright infringement’s of its TomorrowNow subsidiary and chided the company for its offer of $40 million.

“[Their offer] doesn’t value our intellectual property at all,” she said, adding that TomorrowNow’s infringement encompassed more than just support documentation. “Yes, there were documents and help guides and things like that, but there was also the software itself–probably millions of lines of code, which is what the products really are….And we spend billions a year on R&D. This is a business where intellectual property is worth billions.”

Greg Lanier, a Jones Day attorney representing SAP, pressed her on that point insisting that Oracle isn’t owed such a large damages award because the value that the company lost to TomorrowKnow’s infringement is that “Oracle doesn’t get the chance to sell that software to someone else.”

But Catz wasn’t having any of it.

“You know, if Warner Brothers had a little subsidiary that copied Disney’s entire library and started selling it for $2 a copy, and they got caught and then offered to give Disney back half of what they made, is Disney’s library only worth $50?” she asked. “I mean, really. It’s valuable. The fact that it was copied doesn’t change that it’s valuable.”

Lanier quickly dismissed Catz’s point as a “colorful analogy,” reminding her that there are only 358 lost customers at issue in this case. Hard to imagine that such a “colorful analogy” in an otherwise tedious enterprise software case didn’t resonate with the jury, though.

Closing arguments in the case begin on Monday, with jury deliberations to follow.

PREVIOUSLY:

]]> http://allthingsd.com/20101120/lolcatz-safra-on-the-stand-again-in-oracle-sap-trial/feed/ 0 Oracle Rests SAP Case, Slams HP CEO http://allthingsd.com/20101119/no-hp-ceo-testimony-in-oracle-sap-case/ http://allthingsd.com/20101119/no-hp-ceo-testimony-in-oracle-sap-case/#comments Fri, 19 Nov 2010 19:05:54 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=52955 Just a day or so left now before the jury in the Oracle-SAP trial begins its deliberations. Oracle called its last rebuttal witness early Friday and closing arguments will soon follow. In the end, Oracle opted not to show former SAP chief Léo Apotheker’s videotaped deposition following the advice of lead attorney David Boies, who last week suggested leaving the Hewlett-Packard CEO’s role in all this to jurors’ imaginations might be a better move strategically than showing them Apotheker’s now very dated testimony.

Indeed, speaking to reporters in the courtroom hallway this morning, Boies said that the evidence Oracle presented during the trial proved that Apotheker had knowledge of the copyright infringement scheme at issue in the case. “The testimony and evidence prove that Mr. Apotheker oversaw the copyright infringement scheme,” Boies said. “We did not show the 2 year old video deposition because it was taken before SAP stipulated to liability.”

Of course if Apotheker was as pivotal a figure as Boies maintains, one would think that there would at least be some content in his video deposition worth showing the jury. Certainly, that’s the view of SAP, which continues to maintain that Oracle’s repeated shots at Apotheker are more about the PR trial being conducted outside the courtroom than anything else.

“Today’s proceedings focused on the damages, and we remain confident that we have demonstrated a clear case for fair compensation to Oracle for the limited operations of TomorrowNow,” an SAP spokesperson said in a statement. “We trust now in the jury to bring this matter to an appropriate conclusion.”

HP has not yet commented on Boies’s remarks. The company reports earnings next week, and Oracle would obviously not be unhappy if any of this legal unpleasantness happened to lodge in investors’ minds.

UPDATE: Here’s HP’s official comment: “Oracle’s current stance is clear proof that they have been trying to harass Léo and interfere with his work at HP. As HP has said repeatedly, Oracle had ample opportunity to question Léo in the two years after he gave a full-day deposition. Léo was never asked to give an additional deposition. As HP and SAP have noted, Oracle chose not to include Leo as a live trial witness until after he was named CEO of HP. Léo had a limited role in the matter.”

PREVIOUSLY:

]]> http://allthingsd.com/20101119/no-hp-ceo-testimony-in-oracle-sap-case/feed/ 0 Plattner and White No-Shows at Oracle-SAP Trial http://allthingsd.com/20101118/sap-orcl/ http://allthingsd.com/20101118/sap-orcl/#comments Thu, 18 Nov 2010 11:50:33 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=52818 Oracle’s long-running legal battle with SAP and its now-shuttered TomorrowNow subsidiary is heading toward its climax. SAP is expected to rest its case Thursday, after which Oracle will call rebuttal witnesses, among them one of its strongest to date–President Safra Catz, who last week described SAP’s offer of $40 million in damages as “a reward for their bad behavior.” Presumably, Catz will have a bit more to say on that matter, now that SAP’s high-priced damages expert has outlined the calculation that got him to that figure.

Then it’s on to closing arguments, now scheduled for Monday, and finally deliberation. Odd to think that the case has reached this point with so few SAP board members actually testifying live in court. Looking over the final witness list for the trial reveals a number of noteworthy no-shows (beyond Hewlett-Packard CEO Léo Apotheker): Former SAP CEO Henning Kagermann, COO and board member Gerhard Oswald, co-founder and board chairman Hasso Plattner, and, most interestingly, CFO Mark White, SAP’s designated corporate representative for the trial and the guy tapped by its board to clean up the TomorrowNow mess.

Why didn’t SAP put them on the stand? Perhaps it’s because Werner Brandt and SAP co-Chief Executive Officer Bill McDermott, the only board members to take the stand, fared so poorly there.

Or perhaps it’s simply because of the way the trial has played out. “We’ve said from the start that our focus is on damages, that we are interested in resolution of this dispute and determining a reasonable number for damages, and putting the matter behind us,” an SAP spokesperson told me. “The witnesses we call support that focus. Please keep in mind that there were 73 names on the witness list when it was submitted. Since that list was submitted, the scope of the trial has been narrowed considerably and the length of the trial has been shortened.”

UPDATE: I’m told Kagermann was prepared to testify live, but did not due to time constraints. His video deposition was played instead.

PREVIOUSLY:

]]> http://allthingsd.com/20101118/sap-orcl/feed/ 0 Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That http://allthingsd.com/20101117/damages-expert-to-sap-you-owe-me-14-million-and-oracle-four-times-that/ http://allthingsd.com/20101117/damages-expert-to-sap-you-owe-me-14-million-and-oracle-four-times-that/#comments Wed, 17 Nov 2010 11:09:36 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=52754 Oracle CEO Larry Ellison says SAP owes it $4 billion in damages for infringing its IP. Paul Meyer, its damages expert, puts that sum at about $1.7 billion.

But SAP damages expert Stephen Clarke argues it shouldn’t be more than $40.6 million.

Which is ironic considering SAP paid Clarke’s firm $14 million in fees to determine how much the company owed Oracle for infringing its IP. That’s more than 25 percent of the sum Clarke ultimately settled on (and $10 million more than the fees Oracle’s expert collected for his testimony).

But, according to Clarke, calculating damages accurately requires a certain detached objectivity and evidently it comes at a price. “There’s no anger or punishment allowed,” Clarke said Tuesday. “What happened as a result of that infringement is what matters. The only way to do that is focus on the actual number of contracts at issue here.”

And that number is just 358, well shy of the “thousands” of contracts SAP hoped to win away from Oracle.

Too bad there’s no dollar value on SAP co-CEO Bill McDermott’s apology to Oracle yesterday.

Oracle’s cross-examination of Clarke is expected to continue into Thursday, after which SAP will likely show a bit of testimonial footage and rest its case. Presumably that will be followed by some rebuttal witnesses from Oracle on Friday and closing arguments sometime the following week.

PREVIOUSLY:

]]> http://allthingsd.com/20101117/damages-expert-to-sap-you-owe-me-14-million-and-oracle-four-times-that/feed/ 0 Oracle, SAP and the Apotheker Sideshow http://allthingsd.com/20101116/oracle-sap-tk/ http://allthingsd.com/20101116/oracle-sap-tk/#comments Tue, 16 Nov 2010 11:00:01 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=52700

Why is Oracle so intent on putting former SAP CEO and new HP chief Léo Apotheker on the stand in the trial that will determine damages in Oracle’s long-running IP battle with its German rival?

SAP insists it’s to create a “PR sideshow”–which is true to an extent. But sometimes there’s more to a sideshow than meets the eye. Which is not to say that some nefarious scheme lies at the heart of all this, just that there is a lot of subtext to make sense of in this case. And it’s being written from two very different views of how damages should be calculated and how important Apotheker is as a variable in that calculation.

SAP’s view is that now that it has stipulated to liability, damages should be determined according to the actual number of contracts won by TomorrowNow and their value–not according to the number of contracts it hoped to win.

Oracle’s view is that damages should be determined by value of the intellectual property stolen from it and SAP’s ambitions for it. And while SAP’s stipulation to liability prevents Oracle from introducing evidence on liability, it leaves it free to introduce evidence for “context” on damages.

And that’s where Apotheker comes in.

According to evidence presented in the case, Apotheker chaired the launch of the Safe Passage program, of which the TomorrowNow acquisition was one part. And in his depositions, former SAP board member Shai Agassi clearly identified Apotheker as having some responsibility for TomorrowNow post acquisition, along with Gerd Oswald.

“I was the guy who led the the evaluation [of TomorrowNow] with Werner Brandt, who managed the acquisition teams at the time,” Agassi said. “The day of the acquisition, it was basically moved to Gerd Oswald, and the sales effort was moved over to Apotheker. So Safe Passage was managed by Apotheker and Oswald.”

Add to this the fact that Apotheker reported on TomorrowNow and the Safe Passage program in SAP earnings calls and was the only senior SAP exec quoted in a company release touting the program’s success, and it seems reasonable to expect that he might be able to provide some of the “context” Oracle is looking for (click document below to enlarge). One could argue that his expectations and forecasts for the program’s success speak directly to Oracle’s damages.

Or one could argue, as SAP and HP do, that his involvement was incidental and that he had no responsibility for TomorrowNow’s day-to-day operations and hence no knowledge of its transgressions.

But unless he testifies under oath, we’ll never know who’s right. And with Apotheker quietly going about his business at an undisclosed location, it’s looking like that’s how things will end up.

PREVIOUSLY:

]]> http://allthingsd.com/20101116/oracle-sap-tk/feed/ 0 LimeWire Disavows New "Pirate Edition" http://allthingsd.com/20101111/limewire-disavows-new-pirate-edition/ http://allthingsd.com/20101111/limewire-disavows-new-pirate-edition/#comments Thu, 11 Nov 2010 13:00:06 +0000 Ethan Smith http://voices.allthingsd.com/?p=32383 LimeWire LLC, potentially liable for hundreds of millions of dollars in damages for copyright infringement, issued a cease-and-desist notice of its own Wednesday, trying to prevent anonymous computer programmers from distributing a “pirate edition” of its file-sharing software.

A federal court has permanently enjoined the New York company from distributing its software, which lets users upload and download free, often illegal, copies of songs and other media. But earlier this week a new version, “LimeWire Pirate Edition,” surfaced online, purportedly created by a “secret” team of software developers.

“We demand that all persons using the LimeWire software, name, or trademark in order to upload or download copyrighted works in any manner cease and desist from doing so,” said a statement on LimeWire.com. The statement also asserted that the company is “taking all steps to comply with the injunction.”

Read the rest of this post on the original site

]]> http://allthingsd.com/20101111/limewire-disavows-new-pirate-edition/feed/ 0 Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion http://allthingsd.com/20101110/ellison-to-self-damn-damn-i-knew-i-should-have-said-4-5-billion/ http://allthingsd.com/20101110/ellison-to-self-damn-damn-i-knew-i-should-have-said-4-5-billion/#comments Wed, 10 Nov 2010 19:25:01 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=52292 Whatever damages Oracle is awarded in its suit against SAP, they’ll be $500 million lighter, thanks to an order by the judge presiding over the case. Judge Phyllis Hamilton has prevented Oracle from including in its damages estimates any potential lost profits from products it might have sold to customers it lost because of the SAP-TomorrowNow debacle.

So when Oracle’s damage expert, Paul Meyer, offered his estimate of what SAP should pay Oracle it ended up being $1.66 billion, which is obviously a substantial sum, but less than the one Oracle has been seeking and significantly less than the $4 billion figure Oracle CEO Larry Ellison was tossing around on Monday.

Good news for SAP–particularly after yesterday–and one that the company hopes is the beginning of a trend. “The ruling of the Court has an immediate and demonstrable impact on Oracle’s damages presentation, reducing the total by $500 million, from $2.2 billion down to $1.6 billion,” an SAP spokesperson told me. “This is the second such reduction by the Court and we are confident that, when the jury hears our case presentation, the outcome of the case will reflect the actual damages the limited actions of TommorowNow had upon Oracle.”

Oracle declined to comment on the matter.

PREVIOUSLY:

]]> http://allthingsd.com/20101110/ellison-to-self-damn-damn-i-knew-i-should-have-said-4-5-billion/feed/ 0 Oracle Co-President on SAP's Damages Offer: "It's Crazy" http://allthingsd.com/20101109/oracle-co-president-on-saps-damages-offer-its-crazy/ http://allthingsd.com/20101109/oracle-co-president-on-saps-damages-offer-its-crazy/#comments Tue, 09 Nov 2010 16:02:38 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=52160 Whatever points SAP managed to score in its high-stakes legal battle with Oracle Monday–by introducing an email from Oracle President Safra Catz suggesting the company had not lost any large customers to its German competitor after it bought TomorrowNow–dropped off the board when Catz finally took the stand herself.

Called as a witness for Oracle, Catz reiterated an earlier point made by Oracle CEO Larry Ellison, saying that had SAP licensed the materials that its TomorrowNow subsidiary ultimately pilfered, it would have cost “billions.” She also reminded SAP’s legal team that her email on SAP/TomorrowNow as a competitive threat was written without knowing about TomorrowNow’s copyright infringement.

Worse, she dismissed SAP’s offer of $40 million in damages as laughable. “SAP paying us damages of $40 million would be a reward for their bad behavior. “It’s like taking someone’s $2,000 watch and hocking it for $20, and then offering to give us $20. It’s crazy. It completely undervalues the entire basis for our industry.”

A powerful jab, and one that’s making the rounds in media reports on the trial today.

PREVIOUSLY:

]]> http://allthingsd.com/20101109/oracle-co-president-on-saps-damages-offer-its-crazy/feed/ 0 Objection: Mr. Ellison Is Referring to the Defendant as "Choleric of Temper" Again http://allthingsd.com/20101108/objection-mr-ellison-is-referring-to-the-defendent-as-choleric-of-temper-again/ http://allthingsd.com/20101108/objection-mr-ellison-is-referring-to-the-defendent-as-choleric-of-temper-again/#comments Mon, 08 Nov 2010 15:51:29 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=52087
Beginning today, Oracle chief Larry Ellison has a new podium from which to verbally assault SAP and former CEO (and current Hewlett-Packard CEO) Léo Apotheker: U.S. District Court in Oakland, Calif.

Ellison is scheduled to take the stand in his company’s ongoing legal battle with SAP today, and if his testimony is anything like the press releases and letters to the editor he’s been broadcasting about the case the past few months, the software firm’s ears will bleed before he’s through. Unless its legal team somehow manages to keep him from turning the witness stand into a bully pulpit, a difficult task given Ellison’s mercurial manner and “Art of War”-style tactical thinking.

Handling Ellison’s direct examination is David Boies, Oracle’s lead litigator in the case.

PREVIOUSLY:

]]> http://allthingsd.com/20101108/objection-mr-ellison-is-referring-to-the-defendent-as-choleric-of-temper-again/feed/ 0 Oracle Lands Early Shots in SAP Trial http://allthingsd.com/20101105/52035/ http://allthingsd.com/20101105/52035/#comments Fri, 05 Nov 2010 10:06:17 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=52035 If SAP finds Oracle’s claim for $2 billion in damages in the pairs’ long-running legal battle to be excessive, the figures offered by former Oracle President Charles Phillips must seem outright profligate.

Testifying in an Oakland, Calif., courtroom Thursday, Phillips–who once managed marketing and large-customer relations at Oracle–said his former employer would have charged SAP billions of dollars for a license to use the IP that its TomorrowNow subsidiary illegally downloaded. For something like that, Phillips said, you “would ask for $3 billion or $4 billion and you’d want it up front.”

A nasty blow for SAP, which contends it owes Oracle only $40 million. And only the first of several struck yesterday.

In a videotaped deposition shown to jurors, former SAP executive board member Shai Agassi testified that SAP acquired TomorrowNow in the hopes of taking maintenance revenues away from Oracle. Worse, he said the company was well aware of the risk that Oracle would sue over the acquisition. “There’s always a chance Oracle could sue,” he said. “Oracle would sue if we dripped sandwich sauce on its lawn.”

Or, as former TomorrowNow developer John Ritchie testified, if it discovered a Web scraper sucking copyrighted materials off its support Web site and “hammering their servers so hard…it was like a denial of service attack.”

Another ugly blow. And then there was this from Agassi, who, in remarks that must have had Hewlett-Packard’s board of directors scrambling for the Mylanta, fingered current HP CEO and former SAP chief Léo Apotheker as one of two executives charged with overseeing TomorrowNow after SAP acquired the company. “I was the guy who led the evaluation together with Werner Brandt,” Agassi said. “[On] the day of the acquisition it was basically moved to [board member] Gerhard Oswald and the sales effort for it was moved over to Apotheker.”

Damaging stuff, anyway you look at it–though this is just one side of the case. Oracle has clearly thrown and landed some roundhouse punches so far, but SAP will have its chance to counter them and throw a few of its own in due time.

Question is, will it still be standing when that time finally comes.

PREVIOUSLY:

]]> http://allthingsd.com/20101105/52035/feed/ 0 Ellison to Testify in SAP Case on Monday http://allthingsd.com/20101104/51941/ http://allthingsd.com/20101104/51941/#comments Thu, 04 Nov 2010 12:40:31 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=51941 If there are to be any moments of courtroom spectacle in Oracle’s legal showdown with SAP and its now-shuttered TomorrowNow subsidiary, they’ll likely occur Monday, when Oracle CEO Larry Ellison testifies in his company’s copyright infringement case against SAP. Late Wednesday it was widely reported that Ellison was to testify on Friday, but Oracle tells me its legal team won’t put him on the stand until Monday (and that’s now been confirmed in court by Oracle counsel Geoff Howard).

Before that, the jury will hear testimony from former Oracle co-President Charles Phillips and the deposition of former SAP chief and newly appointed Hewlett-Packard CEO Léo Apotheker, who has so far dodged Oracle’s efforts to subpoena him.

Speaking of Apotheker, sources tell me that Oracle is pretty much convinced he isn’t even in the country. “Larry predicted they’d keep him far away from HP headquarters, and that seems to be exactly what they’re doing,” one told me, adding, “It’s not like Oracle hasn’t put some effort into finding him.”

Keeping Apotheker out of Oracle’s reach is likely a wise move. It’s clear that beyond squeezing all the copyright damages it can out of SAP, Oracle’s goal in this trial is to embarrass HP for hiring him. Putting him on the stand after Ellison would just be silliness anyway–like watching someone trying to play a set of Volksmusik after the “Live at Leeds”-era Who have just left the stage strewn with broken drum heads and guitar shards.

PREVIOUSLY:

]]> http://allthingsd.com/20101104/51941/feed/ 0 Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza! http://allthingsd.com/20101103/oracle-vs-sap-we-got-a-right-to-pick-a-little-fight-bonanza/ http://allthingsd.com/20101103/oracle-vs-sap-we-got-a-right-to-pick-a-little-fight-bonanza/#comments Wed, 03 Nov 2010 10:05:24 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=51846 As first legal volleys go, the ones fired off Tuesday in the Oracle vs. SAP trial were about what you’d expect, given the sniping between the two companies in recent weeks–all bluster, petulance and condemnation.

Oracle, in its opening argument, slagged SAP as a sinister and scheming rival, claiming the company’s leadership knew it was taking a risk by buying TomorrowNow, which was found to have infringed Oracle’s intellectual property. “SAP could have chosen to compete fairly,” Oracle attorney Geoffrey Howard said. “Instead it chose to buy TomorrowNow, a company that the board of directors at SAP knew was competing unfairly. It did that because it expected to make enormous amounts of money and inflict enormous amounts of harm on Oracle by using its intellectual property.”

And SAP, in its opening argument, derided Oracle as a company deluded by its own avarice into seeking a ridiculously inflated damages award. Oracle wants “a windfall,” SAP attorney Bob Mittelstaedt told the jury. “They want a bonanza that is out of all proportion to the harm they suffered.”

According to Mittelstaedt, SAP should have to pay only for the software sales Oracle lost as a result of TomorrowNow’s malfeasance, and those number less than 500.

And that’s the point of contention around which this case will orbit. Because Oracle claims that SAP, with its acquisition of TomorrowNow, was looking for a bonanza of its own and just didn’t get it.

Memos presented by Howard on Tuesday show that SAP estimated its acquisition of TomorrowNow would disrupt Oracle’s applications business enough to cause a 10 percent decline in the company’s share price, trimming about $7 billion off its market cap.

In other words, the intent was there; the execution was just lacking. Just because SAP didn’t benefit significantly from TomorrowNow’s improper downloads of Oracle software and documentation doesn’t make those downloads any less improper.

PREVIOUSLY:

]]> http://allthingsd.com/20101103/oracle-vs-sap-we-got-a-right-to-pick-a-little-fight-bonanza/feed/ 0 SAP's Tab in Oracle Case: $120 Million and Counting http://allthingsd.com/20101102/saps-tab-in-oracle-case-120-million-and-counting/ http://allthingsd.com/20101102/saps-tab-in-oracle-case-120-million-and-counting/#comments Tue, 02 Nov 2010 19:01:54 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=51810 Whatever illusions SAP harbored that it could get out of its TomorrowNow copyright mess with Oracle for under $100 million are long gone. According to a court filing, SAP, which is acknowledging complicity in its unit’s infringement, has already agreed to pay Oracle $120 million just for attorneys’ fees. And that’s before Oracle makes its case to the jury for $2 billion-plus in damages.

Under an agreement filed Monday, SAP said it is willing to pay Oracle for “past and future reasonable attorneys fees and costs” as part of a deal in which TomorrowNow would stipulate “to entry of judgment on Oracle’s claims for violations of the Federal Computer Fraud and Abuse Act and California’s Computer Data Access and Fraud Act, breach of contract, intentional interference, negligent interference, unfair competition, trespass to chattels, unjust enrichment/restitution and an accounting.” In exchange for the admission, Oracle would not seek additional punitive damages. The joint stipulation would need judicial approval.

Still, the real damages here are those related to copyright infringement. So while ducking punitive damages will certainly reduce SAP’s ultimate bill, it’s not likely to bring it that much closer to the “tens of millions” it contends Oracle is legitimately owed. Indeed, Oracle still has its sights firmly set on that $2 billion figure, which to be clear is copyright only. In opening arguments today, Oracle attorney Geoffrey Howard said the company will produce evidence to show SAP “expected the benefit to them and the harm to Oracle to be in the billions of dollars.”

PREVIOUSLY:

[Image credit: Pre-Ellison Samurai image by Artem Mirolevioch]

]]> http://allthingsd.com/20101102/saps-tab-in-oracle-case-120-million-and-counting/feed/ 0 SAP Changes Its Strategy in Oracle Copyright Suit http://allthingsd.com/20101029/sap-changes-its-strategy-in-oracle-copyright-suit/ http://allthingsd.com/20101029/sap-changes-its-strategy-in-oracle-copyright-suit/#comments Fri, 29 Oct 2010 09:25:50 +0000 Cari Tuna http://voices.allthingsd.com/?p=31761 SAP AG shifted strategies in a long-running legal battle against Oracle Corp., moving to head off what it called an attempt by Oracle to create a “media circus” around the role of a former SAP chief executive who has been named to run Hewlett-Packard Co.

The German software company said it will no longer contest Oracle’s allegations that it contributed to acts of copyright infringement committed by a discontinued unit called TomorrowNow.

Previously, SAP had accepted liability for the unit’s actions, which included illegally downloading thousands of Oracle documents from its customer-support systems. But SAP had denied knowing of or contributing to those actions. A trial to determine damages in the case is scheduled to begin Monday.

Read the rest of this post on the original site »

]]> http://allthingsd.com/20101029/sap-changes-its-strategy-in-oracle-copyright-suit/feed/ 0 LimeWire Gives Up the Ghost, Shuts Down P2P File-Sharing Client http://allthingsd.com/20101026/limewire-gives-up-the-ghost-shuts-down-p2p-filesharing-client/ http://allthingsd.com/20101026/limewire-gives-up-the-ghost-shuts-down-p2p-filesharing-client/#comments Tue, 26 Oct 2010 19:57:57 +0000 Peter Kafka http://mediamemo.allthingsd.com/?p=25092 Last spring, music file-sharing service LimeWire suffered a crushing blow in federal court. This is the net result: The company is shutting down its core software–though it insists it’s not doing that exactly. It’s the victory the big music labels have been seeking for some time.

The company says it will comply with a court injunction to turn off “the searching, downloading, uploading, file trading and/or file distribution functionality, and/or all functionality” of its software, which remains one of the most popular methods of finding free–and illegal–music on the Web.

That means the company will stop offering downloads of its software, which you could still get on its site as of late Tuesday afternoon. And it also means that the company will disable the software that’s already been downloaded, according to people familiar with LimeWire’s plans.

I don’t know if LimeWire intends to cripple its client via a “kill switch” or some other method, but as of 20 minutes ago it hadn’t gone into effect–I was able to locate and download a version of the Clash’s “I Fought the Law” within a minute of booting up LimeWire’s software. (UPDATE for the technically minded, via a person familiar with the company’s plans: “They’ve taken down the relay severs on the Gnutella network which the Limewire client uses to figure out which other p2p clients have what info on them.” This should render existing clients effectively useless as anything other than a media player within the next nine hours, I’m told.)

LimeWire‘s client has been downloaded “hundreds of millions” of times, and is still responsible for the “vast majority” of usage on the Gnutella trading network, says Eric Garland, who runs the BigChampagne media tracking service. The company’s moves won’t affect other open source clients that run on the same Gnutella network, like FrostWire.

Meanwhile, LimeWire’s parent company, Lime Group, is prepping a new music service that it says will be legal, and should be due out in a month.

But the utility of that service depends on the participation of the big music labels, and at least for now the labels are still trying to extract a big piece of Lime Group’s hide. Court hearings in the damages phase of Lime Group’s hire are scheduled to resume in January. And this statement by industry trade group RIAA makes it clear that the labels aren’t feeling conciliatory:

“For the better part of the last decade, Limewire and Gorton have violated the law. The court has now signed an injunction that will start to unwind the massive piracy machine that Limewire and Gorton used to enrich themselves immensely. In January, the court will conduct a trial to determine the appropriate level of damages necessary to compensate the record companies for the billions and billions of illegal downloads that occurred through the Limewire system.”

Today’s announcement comes after Lime and the labels spent weeks trying to negotiate an out-of-court settlement; Federal District Court judge Kimba Wood actually handed down the injunction in August.

Here’s LimeWire CEO George Searle’s description of events, via  blog post:

As of today, we are required to stop distribution and support of LimeWire’s P2P file-sharing service as a result of a court-ordered injunction.

Naturally, we’re disappointed with this turn of events. We are extremely proud of our pioneering history and have, for years, worked hard to bridge the gap between technology and content rights holders. However, at this time, we have no option but to cease further distribution and support of our software.

It’s a sad occasion for our team, and for you–the hundreds of millions of people who have used LimeWire to discover new things.

While we have enabled open sharing and discovery for the past decade, LimeWire is mostly the product of the people who used it. You made LimeWire. Thank you for letting us being part of that. Your support and enthusiasm has fueled everything that we do.

During this challenging time, we are excited about the future. The injunction applies only to the LimeWire product. Our company remains open for business.

We remain deeply committed to working with the music industry and making the act of loving music more fulfilling for everyone – including artists, songwriters, publishers, labels, and of course music fans.Our team of technologists and music enthusiasts are creating a completely new music service that puts you back at the center of your digital music experience.

We’ll be sharing more details about our new service and look forward to bringing it to you in the future.

And here’s a LimeWire PR rep’s description of what’s going on:

As a result of a court ordered injunction, we are required to disable “the searching, downloading, uploading, file trading and/or file distribution functionality, and/or all functionality” of LimeWire’s P2P file-sharing software.

Please note LimeWire’s official statement on this legal development is as follows:

“While this is not our ideal path, we hope to work with the music industry in moving forward.  We look forward to embracing necessary changes and collaborating with the entire music industry in the future.”  – LimeWire Spokesperson.

An important point of clarification, LimeWire is not “shutting down”, in specific regarding our software, we are compelled to use our best efforts cease support and distribution of the file-sharing software, along with increased filtering.  And, that is what we are doing.

]]> http://allthingsd.com/20101026/limewire-gives-up-the-ghost-shuts-down-p2p-filesharing-client/feed/ 27