On Tuesday, Apple managed to get the whole 132-page document admitted into evidence. And it’s a doozy.

The 2010 report, translated from Korean, goes feature by feature, evaluating how Samsung’s phone stacks up against the iPhone.

Authored by Samsung’s product engineering team, the document evaluates everything from the home screen to the browser to the built-in apps on both devices. In each case, it comes up with a recommendation on what Samsung should do going forward, and in most cases, its answer is simple: Make it work more like the iPhone.

In short, the evaluation report makes the case that the Galaxy (identified here as the “S1″) would be better if it behaved more like the iPhone and featured a similar user interface. And it appears to play directly into Apple’s charge that Samsung “slavishly copied” the iPhone.

Samsung has been trying to make the case that the arrival of powerful capacitive touchscreens pushed the whole industry toward something like the iPhone. This document helps show how one can have a similarly sized slab of glass and still come up short — as Samsung itself concludes it did, initially.

Of course, to win its case, Apple will have to prove not just that Samsung made its phones more iPhone-like, but that it either infringed on the specific design and utility patents at issue, or that it infringes on specific design elements of the iPhone and iPad — what’s known in legal terms as “trade dress.”

In court on Tuesday, Apple called a number of experts to testify that the similarity of Samsung’s products to Apple’s is more than coincidence and constitutes infringement.

Samsung is arguing both that its products don’t infringe, and that Apple’s designs and functions weren’t patent-worthy in the first place.

Anyway, have a look for yourself and you’ll see why Samsung wasn’t too keen on this getting in front of the jury. Here’s a direct link to the document if the embed below isn’t working properly.

Reached for comment, a Samsung representative told AllThingsD that this document isn’t nearly as damning as it might appear: “Samsung benchmarks many peer companies,” the rep said. “In fact, these are typical competitive analyses routinely undertaken by many companies in many industries – including Apple. Samsung stands by its culture of continuous improvement and innovation. We are very proud of the product innovations driven by our more than 50,000 designers and engineers around the world who have made Samsung’s products the products of choice.”

44_iPhone_GalaxyS1_review

Apple versus Samsung Full Coverage

The Joy of Tech

In a filing to the U.S. District Court for the Northern District of California late Wednesday evening, Apple said the court should sanction Samsung by ruling that the patents at issue in the case are valid and infringed by Samsung. And if the court declines to do so, it should at the very least instruct the jury that Samsung has engaged in “serious misconduct,” and bar the company from any further mention of its “Sony style” argument in court.

Apple, in its motion for sanctions, argues that Samsung’s broadcast of excluded evidence is not only a clear attempt to prejudice the jury, but part of an emerging pattern of misconduct.

“Samsung already has been sanctioned four times in this case for discovery abuses (see image at right). Most recently, Samsung was sanctioned for destroying evidence,” Apple’s legal team wrote. “Litigation misconduct is apparently a part of Samsung’s litigation strategy — and limited sanctions have not deterred Samsung from such misconduct. Now, with so much at stake, Samsung has taken the calculated risk that any sanctions arising from its attempt to influence the jury with its excluded arguments are a price it is willing to pay.”

From Apple’s perspective, Samsung’s release of excluded evidence at a time when the jury will be away from Court for two days, was not only a clear attempt to prejudice the jury but a gambit for a mistrial. But Apple has no plans to request a mistrial. To do so, the company argues, would be to reward Samsung’s misconduct.

“The proper remedy for Samsung’s misconduct is judgment that Apple’s asserted phone design patents are valid and infringed,” Apple’s attorneys conclude. “Through its extraordinary actions yesterday, Samsung sought to sway the jury on the design patent issues, and the proper remedy is to enter judgment against Samsung on those same patents. It would be, to be sure, a significant sanction. But serious misconduct can only be cured through a serious sanction—and here, Samsung’s continuing and escalating misconduct merits a severe penalty that will establish that Samsung is not above the law.”

Reached for comment, Samsung said it plans to dispute Apple’s allegations. “Apple’s filing is baseless and we will be filing a response,” a company spokesman told AllThingsD.

Apple versus Samsung Full Coverage

Image by Joy of Tech

The allegation, made earlier this month in a motion discovered by Network World, claims Samsung destroyed “vast quantities of relevant evidence in blatant disregard of its duty to preserve all such evidence.” Samsung, it seems, routinely purges emails from custodian computers and, according to Apple, has continued to do so despite its duty to preserve evidence to the case.

From Apple’s motion:

Samsung’s ad hoc, unmonitored email ‘preservation’ methods have resulted in the irretrievable loss of unknown volumes of relevant emails. … For example, Judge Grewal recently compelled the deposition of Won Pyo Hong, the head of Samsung’s Product Strategy Team, in part due to an email in which Dr.Hong ‘directly orders side-by-side comparisons of Apple and Samsung products for design presentations.’

Apple and the Court cannot possibly know how many more emails Dr. Hong sent or received that would have supported Apple’s claims that Samsung copied Apple products had they not been deleted.

Harsh allegations, and ones that Samsung has decried as baseless. That said, this isn’t the first time the company has been called out for meddling with a discovery order. Just last week it was sanctioned by a California judge for withholding evidence. This just two weeks after another sanction for another failure to provide internal documents on a timely basis. Apple, in its motion, notes other instances as well.

So, as I said: Messy, and getting messier by the day. Which doesn’t bode well for the companies’ upcoming court-ordered mediation talks on May 21 and 22.

(Image: Joy of Tech)

You can add divorce lawyers to that group — but for a different reason.

Sure, like all sharks, divorce lawyers love their own mobile devices. But even more useful are those of their clients’ would-be ex-spouses.

The American Academy of Matrimonial Lawyers says that nearly all of its members have seen a sharp rise in the number of cases using evidence taken from iPhones, Androids and other smartphones. Text messages are also increasingly being used as evidence.

“As smartphones and text messaging become main sources of communication during the course of each day, there will inevitably be more and more evidence that an estranged spouse can collect,” organization President Ken Altshuler said in a statement. “Text messages can be particularly powerful forms of evidence during a divorce case, because they are written records of someone’s thoughts, actions and intentions.”

Text messages are the most common form of evidence presented, at 62 percent, followed by email at 23 percent. Phone numbers and call histories are used 13 percent of the time. Smartphone-specific data, such as GPS or Internet search history, is still rare in divorce cases, but represents the kind of powerful evidence bound to show up more in the future.

In court papers filed late Thursday in U.S. District Court for the Western District of New York, attorneys for Facebook write that plaintiff Paul Ceglia “does not want the public to know what was discovered on his computers because it includes smoking-gun documents” showing that evidence presented to bolster his case has been fabricated.

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This morning, News Corp. CEO and majordomo Rupert Murdoch, his son James (who is also a top company exec) — as well as former employee and full-time lightning rod Rebekah Brooks — march on down to the British Parliament to answer questions from a committee there about the ever-growing PhoneGate scandal.

For those living under a rock, News Corp. is embroiled in ever more serious controversy about who knew what and when (also where, why and how much) in the hacking of phones of a myriad of well-known people in the U.K. by its News of the World tabloid newspaper.

Besides celebrities and politicians, that has included the voicemails of a murdered girl, an appalling act that has galvanized public opinion and the weak spines of legislators into action in this inquiry.

It’s sordid, it’s ugly and it makes for what could be an explosive event, starring the man who brought you “Titanic,” Glenn Beck, “Glee” and, most recently, the sale of Myspace.

There’s no question, getting the 80-year-old Murdoch on the ropes will be the aim of the committee members holding the hearing, and how one of the world’s most famous and legendary media moguls performs — or does not — will be a big deal to both interested observers and News Corp. shareholders.

By way of full disclosure, that’s not me, but this site is owned by Dow Jones, which is owned by News Corp. In other words, somewhere up the corporate food chain, Murdoch is my boss.

In any case, that has never stopped me or AllThingsD.com from telling it like it is, so here is the liveblog of what is sure to be a doozy of a media event:

6:36 am PT:: It all starts for the Murdochs, as soon as the former Scotland Yard head John Yates has completed questioning about the police’s obvious bungling of the various investigations over the years.

Rupert Murdoch and his son, James Murdoch, are on, looking grave and dressed in grey.

Sitting behind them are Rupert Murdoch’s wife, Wendi Deng, and his top adviser at News Corp., Joel Klein, who is heading up the phone hacking scandal internally at the company.

The hearing — in a room that looks like a high school debate could take place there — starts off politely enough.

But the first question is directed toward James Murdoch about his clearly incomplete investigation when phone hacking allegations were first made many years ago. He begins with an apology.

“These actions do not live up to the standards of News Corp.,” says the younger Murdoch.

He is interrupted by his father, Rupert Murdoch, who notes rather dramatically: “This is the most humble day of my life.”

The questioner quickly asks the obvious query, after James Murdoch claims News Corp. was not in full possession of the facts when execs had told a previous committee there was no reason to believe there was more widespread hacking.

Were News Corp. execs lying?

James Murdoch continues to insist that the bulk of evidence came out — “real evidence” — in later civil trials. And also, that News Corp. is now investigating the situation fully.

He throws around words like “proactive action” and “transparency,” which is probably cold comfort now to those hacked when things were less clear to News Corp.’s senior management.

Now up, Rupert Murdoch, who is asked quickly about statements he made about not tolerating wrongdoing and who had lied to him at News Corp. about the phone hacking.

Apparently, he “didn’t know” a lot about the hacking that took place, while also defending the non-hacking employees of his company.

But the questioner is still on him about exactly what he did know about the situation, which seems to be — at least according to his testimony — a lot of I-don’t-knows.

6:53 am: It continues about what Rupert Murdoch knew and when he knew it and what he did. Or not.

As Rupert Murdoch keeps up with this tone of not being clued in to what have turned out to be critical events, James Murdoch wants to keep jumping in with the details, which he is eager to impart.

“At what point did you find out criminality was endemic at News of the World?” asks the questioner.

Rupert Murdoch does not like the word endemic, but stresses that he was “shocked, appalled and ashamed” by the case of the murdered girl, Milly Dowler.

The questioner seems frustrated by Rupert Murdoch’s answers, which are, for the typically razor-sharp media mogul, unusually slow.

Like a persistent terrier who wants to perform, James Murdoch is back again offering to serve up the deets.

7:04 am: Now, it is onto the closing down of News of the World: Was the tabloid shut down because of the criminality?

“We had broken our trust with our readers,” says Rupert Murdoch. “We felt ashamed for what had happened.”

A new questioner is on, with a bizarre query about why Rupert Murdoch came in the back door of the Prime Minister’s house at 10 Downing Street on a recent visit there.

It’s a cloddish effort to show him as a powerful puppetmaster to pols, but only serves as a punch line.

Back on track, with questions about whether there was hacking in the U.S., which Rupert Murdoch said he could not believe had happened.

More questions about how badly the company acted, which came down to the questions about whether he was “ultimately” responsible for the hacking.

“Nope,” says Rupert Murdoch, who keeps insisting he relied on others, some of whom apparently “misled” him.

It’s an astonishing admission and, really, excuse, given he has been chairman, CEO and a very strong leader of News Corp. for more than a half-century.

7:16 am: A new questioner, who asks who decided to close down News of the World. It was Murdoch himself, his son and other execs.

Next up, why did News Corp. pay off a victim of hacking, which James Murdoch did without informing his father or the News Corp. board.

James Murdoch essentially points out that it is typical to do this in companies of the global scale of News Corp.

These are apparently very busy, busy, busy people, who do not seem to have time to notice how such juicy and best-selling scoops might have been magically produced by News of the World.

Onto ethical conduct guidelines, which News Corp. has in a pamphlet form, says James Murdoch, but pages which some at the company have obviously never cracked.

Rupert Murdoch is asked again about his culpability in the case, which he continues to maintain he does not shoulder the blame.

James Murdoch does note that the company “will think more forcefully … about our journalism and ethics.”

Given the situation, in which every day brings a new revelation of bad acts by News Corp. employees, this promise of better behavior seems to be a case of much too little and very, very late.

Rupert Murdoch still uses the opportunity to stress the need for a free press, despite its excesses.

7:31 am: More about the payments to settle with phone hacking victims and how soon the company realized the problems were more widespread.

James Murdoch talks about how he might have acted differently had he known more then as he does now.

“If we knew now what we knew then,” says James Murdoch, “we would have taken more action and moved more aggressively.”

But what else is he going to say? It’s a could-have, would-have, should-have line of questioning that is eliciting very little in the way of true information.

Finally, a good point about “willful blindness,” which is a term from the Enron scandal about avoiding knowing about problems you really should have known about.

“Is that a question?,” asks James Murdoch. It is a statement, actually, and a decent enough one.

“We didn’t do that,” says Rupert Murdoch firmly this time.

Still, soon enough, Rupert Murdoch is insisting he was not as involved as people have imagined him to be with the management of his newspapers.

A new questioner is pressing this important point, but Rupert Murdoch is not biting on a query about his legendarily hands-on managing style.

“I’d say, ‘What’s doing?’” he explains about his conversations with editors, but adding he might not have been told about payoffs to phone hacking victims.

The questions are in the deep weeds here, but it’s still interesting that Rupert Murdoch continues to maintain that his life was too busy to wallow in the details, however controversial and important those details might be.

7:55 am: More and more don’t-knows pile up and up in a giant mountain of acts perpetrated by someone somewhere, but not the Murdochs.

“I can tell you I was surprised as you were,” says James Murdoch about certain payments to various hackers and those who were hacked.

Was it Les Hinton, who then ran News International and later Dow Jones, from which he recently resigned?

Could be! Maybe! Mistake were made! Who knows!

Well, someone does!

It moves onto Brooks, the tarnished News International exec and editor whom Rupert Murdoch does note he still trusts. Finally, some certainty!

Brooks is definitely one of the more compelling characters in this drama, although the media focus on her striking red hair color seems odd and vaguely sexist, as if she is some flame-haired she-devil from media hell. She might certainly be guilty in this mess, but her fabulous hair has nothing to do with it.

(Rupert’s mane is grey, by the way, and James’ is brown, if you really need to know.)

Fascinatingly, Murdoch’s backing of Brooks has been strong and consistent, despite intense criticism of her by many in this scandal.

The payment of legal fees of perpetrators and payments to the victims in the hacking seems to obsess one questioner, who wants News Corp. to stop doing it.

Murdoch says he’d like to if contracts did not preclude that, which essentially means News Corp. will keep up forking over the legal fees and payments.

8:12 am: The attention turns to how James Murdoch found out about the various emails that showed there was more evidence of hacking than was first thought about and what he felt about it.

He says very little, noting that the matter is under police investigation. It’s not don’t-know now, but can’t-say.

The hearing is beginning to feel a little rope-a-dope, with the Murdochs apologizing and taking blows, saying very little — either claiming lack of knowledge or lack of ability to comment about the ongoing police inquiry — and tiring out the questioners.

It is a classic tactic of the boxing champion Muhammad Ali and it works in the ring.

Whether that will be the case with PhoneGate remains to be seen, but it certainly has made what could have been a more explosive hearing much less so.

Instead, it seems to have turned into a what didn’t the Murdochs know and when didn’t they know it hearing.

On questioner gets this irony. “That’s frankly unsatisfactory,” he says about the Murdochs continuing shock and surprise at the thorny situation they find themselves in.

Maybe it seems a little hard to believe, but the persistent story from James Murdoch is that they were told by their lawyers, the police and others that nothing was awry once the initial phone hacking investigation was complete and only found out about the larger problem in later civil lawsuits.

But, asks the questioner to Rupert Murdoch, should his editors and managers at News of the World have known about it?

Of course, they should have.

But, once again, the legendary media baron, who made his fortune and fame in disseminating news and information across the world in newspapers, on television, on satellite and on the Web — at least for now — can’t say.

So, was he “kept in the dark” about the situation? Rupert Murdoch acknowledges he might have asked more questions, although he noted his British newspapers were only a small part of his massive empire.

But, he adds, “Anything that is seen as a crisis comes to me.”

Well, not the phone hacking crisis, it seems.

But, they’re sorry. So sorry. And, of course, humbled.

8:54 am: Suddenly, there is a disturbance, in which someone seems to have possibly attempted to accost the Murdochs.

But it is not clear what has happened, as the hearings are suspended for 10 minutes.

James Murdoch leaps up quickly to protect his father, which he has been doing in this hearing verbally already, where the strategy seems to be to let him largely do all the talking.

Even faster on her feet and with arms raised toward a man in a plaid shirt and carrying a pie plate with shaving cream is Rupert Murdoch’s wife, Wendi.

The man seems to have managed to get some of the foam on Rupert Murdoch, but Wendi Deng appears to have partially thwarted her husband from receiving a full pie in the face.

It’s the first striking visual of this hearing, protecting the patriarch and the king of the empire from harm, no matter what.

Here is a video of the incident:

According to Britain’s Channel 4: “As the man was being led away in handcuffs escorted by a single police officer, he refused to give his name, saying: ‘As Mr Murdoch himself said, I’m afraid I cannot comment on an ongoing police investigation.’”

9:09 am: The room is cleared, so it is only the Murdoch crew behind James and Rupert Murdoch, and now the committee is even more solicitous.

Rupert Murdoch is without his jacket and his wife is being commended for her most excellent left hook.

Still, it’s back to business and the questioner does zero in on a major disconnect over how two media execs as famously aggressive and involved as the Murdochs were so passive in this hacking situation.

It “was a terrible shock,” says James Murdoch.

The same is said about what would be even more disturbing and recent allegations of the hacking of the victims of the 9/11 bombings.

Both father and son say there is no evidence of this so far, but they were surely looking into it.

While it certainly did not come through in what have largely been feckless questions from the committee, the final questioner does correctly ask the pair if they might want to pay more attention.

The last question is for Rupert Murdoch and finally gets to the real query everyone wants to ask.

Noting Murdoch is “captain of the ship,” she asks if he has considered resigning.

“No,” answers Murdoch firmly.

“Why not?” she presses.

“People let me down and it’s for them to pay,” says Rupert Murdoch. “But I think, frankly, I am the best person do clean this up.”

He finishes up with a statement about being sorry, how he was also betrayed and how phone hacking and bribery is wrong.

“Saying sorry is not enough, things must be put right,” he says.

Finally, something we do know.

On some level of journalism, I guess anything could happen.

At least that’s according to a recent article by Business Insider’s Henry Blodget about an alleged “mole” at Twitter who was allegedly spying for Google, specifically about an exec the microblogging service was trying to poach from the Silicon Valley search giant.

In a decidedly splashy, hello-traffic, ALL-CAPs headline–THE SEARCH FOR THE “TWITTER MOLE”: All Eyes On John Doerr“–Blodget pointed his J’accuse finger at the legendary venture capitalist as the culprit.

Based on…

Well, based on nothing, it appears, except rank speculation and what appears to be no attempt to get Doerr to comment.

And, while it’s not my cup of tea, whatev, I suppose.

Except when I read down to the bottom and landed on this gem:

We have talked to several sources familiar with aspects of the situation. Thus far, we have not been able to confirm either assertion.

First, no one has even confirmed that Google was tipped off in advance of Twitter’s poaching effort, much less by a Twitter mole.

This doesn’t mean it didn’t happen.

And later still:

So we haven’t been able to confirm the “high-level mole at Twitter” story. And we think there’s a good explanation for why there might not be a mole at all.

Secondly, we have talked to no one who has any evidence other than the logic above that, even if there is a Google mole at Twitter, the mole is John Doerr. One insider we spoke to, in fact, dismissed the idea out of hand.

Say what?

It’s kind of like thinking that a sparkly Civil War-era vampire falling in love with a moody chick in the Pacific Northwest and flying through the pines all day and mooning over their cruel fate was real.

Okay, that was a Hollywood movie called “Twilight,” but that doesn’t mean it didn’t happen!

Thus, Doerr–a tough customer to be sure, capable of all kinds of sharp-elbowed behavior–is guilty until proven innocent?

Or just not guilty at all, but let’s just say he might be anyway, without a shred of evidence, because it could have happened!

(Courtroom confession: It was All Things Digital‘s Liz Gannes, who did it on the blog with scoop on the Twitter talent raid effort of Sundar Pichai!)

Speaking of evidence, less than a week later, Javert–oops, I mean, Blodget–was back in another kangaroo court performance with another terrifically loud headline:

“The Guy Who Says He Owns 50% Of Facebook Just Filed A Boatload Of New Evidence–And It’s Breathtaking.”

Breathtaking, I guess, if you are in that fantasy teenaged girl mode, but deeply suspect if you are anyone with a modicum of journalistic responsibility.

It is perfectly fine for Blodget to dredge up the copious emails from a man named Paul Ceglia–who alleges he possesses a contract that he struck with Facebook co-founder Mark Zuckerberg at the time of its creation–and analyze them.

And it is certainly notable that a credible law firm, DLA Piper, has taken on the case for Ceglia and it does seems unlikely that it would have done so without doing some level of due diligence.

In fact, in an interview with Am Law Daily, DLA partner Robert Brownlie, international co-chair of the firm’s securities litigation, said: “At first I shrugged it off as incredible. I would not have gotten involved and DLA would not have gotten involved if we had any doubts about the facts or evidence in the case.”

That was, of course, countered by Facebook’s lawyer Orin Snyder at Gibson, Dunn & Crutcher, who said in a statement that the Ceglia allegations were part of “a fraudulent lawsuit brought by a convicted felon.”

By the way, in fancy-lawyer parlance, that translates to a liar-liar-pants-on-fire defense.

So, microwave the popcorn and get ready for the drama, because no question, it is clearly going to be juicy all around with a whole lot of social networking poking!

In fact, such a case is tailor-made for Blodget, who has always been a very gifted writer with a nose for sharp-edged analysis.

It’s too bad, then, that he did not hone his knife to such an edge when it comes to Ceglia, giving him much too much credibility based on what could be fake emails, especially since they come from a man with a history of fraud.

History, in fact, that Ceglia is depending on in this case, since Zuckerberg most definitely has one in regards to partnerships gone bad.

Thus, Zuckerberg has been sneaky before, ergo he’s sneaky here.

That’s no surprise as a legal tactic, of course, and I threw in the “ergo,” since I too want to play Perry Mason in a blog.

But. More to the point, while Facebook was certainly hard-nosed in dealing with both protracted and high-profile legal challenges from the Winklevoss twins and also Eduardo Severin, I don’t think I have ever seen the company explicitly say evidence was completely fabricated, as it is alleging Ceglia’s emails are.

As I said, I have no idea if they are or they’re not, but I do know this: While those emails are certainly bombshell in nature, they are designed to be so precisely because it is a lawsuit in which the principal is trying to shame Facebook into settling.

None of that seems to concern Blodget, who concludes at the end of the post:

“In short, to us at least, the emails don’t read ‘fake.’”

In short, to me at least, that’s for fake-email experts and the courts to decide.

The real fact of the matter is, who knows? I certainly don’t, although I do know it’s terrifically easy to file a lawsuit and claim just about anything you like.

And the same seems to be true–more and more these days and not for the good–for blogs too.

As for me, I need to get back to my goal of proving that sparkly vampires do exist.

Well, he’s back. And he has emails.

Paul Ceglia, the plaintiff, filed an amended complaint Monday claiming rights to half of Mr. Zuckerberg’s equity in the company. For those of you keeping score at home, Mr. Zuckerberg’s net worth has been estimated at more than $13.5 billion.

Facebook is categorically denying the accusations, saying the emails are part of a fraud and casting doubt on Mr. Ceglia, who was accused by the New York attorney general in 2009 of defrauding customers of his wood-pellet fuel company.

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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:

• Oracle to SAP: You Owe Us Another $212 Million
• Oracle-SAP Verdict: SAP Owes Oracle $1.3 Billion
• Oracle-SAP: Closing Statements Followed by Closing Insults
• Oracle-SAP Case Closes With $1.67 Billion Difference of Opinion
• LOLCatz: Safra on The Stand Again in Oracle-SAP Trial
• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

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:

• Oracle-SAP: Closing Statements Followed by Closing Insults
• Oracle-SAP Case Closes With $1.67 Billion Difference of Opinion
• LOLCatz: Safra on The Stand Again in Oracle-SAP Trial
• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

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

“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

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:

• Oracle-SAP: Closing Statements Followed by Closing Insults
• Oracle-SAP Case Closes With $1.67 Billion Difference of Opinion
• LOLCatz: Safra on The Stand Again in Oracle-SAP Trial
• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

“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:

• LOLCatz: Safra on The Stand Again in Oracle-SAP Trial
• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

“[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:

• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

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:

• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

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:

• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

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:

• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

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:

• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

According to a prehearing examination of the patents at issue in the case by the staff of the U.S. International Trade Commission, Apple hasn’t provided enough evidence to establish a violation of its rights. The ITC’s early read on 13 patents Cupertino has accused Nokia of violating is that some were not violated at all and some aspects of others are invalid.

Now this doesn’t mean that Apple is destined to lose this particular battle; ITC Judge Charles Bullock isn’t obligated to follow his staff’s recommendation. But it is something of a setback for Apple, which has asked the Commission to block the import of Nokia phones into the States.

That ruling, based on the judge’s interpretation of 1986 electronic communications law, would seem to establish a narrow definition of privacy for social-networking users in New York. In California, on the other hand, a judge interpreted the same statute to confer privacy on material posted to Facebook and MySpace. The rulings in each case only apply to the areas covered by their courts, unlike rulings made in federal appeals court or at the Supreme Court, which typically apply more broadly.

Forbes.com blogger Kashmir Hill spotted the differing legal rulings in New York and California. In the New York lawsuit, as Hill notes, a woman sued the manufacturer of an allegedly defective office chair, seeking damages for injuries sustained in 2003 when she fell out of her seat. Lawyers for the chair company sought to review material the woman posted to Facebook to determine whether her injuries were as severe as she claimed.

Read the rest of this post on the original site

Though it acquitted him on one count of conspiracy, a federal jury on Friday found Reyes guilty on nine counts of securities fraud and making false statements–the same ones overturned last August because of prosecutorial misconduct.

Reyes, as you may recall, was charged in 2007 with “routinely backdating stock options grants to give employees favorably priced options without recording necessary compensation expenses. From 2000 through 2004, prosecutors alleged, he used the virtually unchecked authority given to him to grant ‘in the money’ options to employees by falsifying in the options documentation the date on which the grants were made and thereby granting the options with below-market strike prices.” In doing so, prosecutors argued, Reyes defrauded Brocade shareholders and violated generally accepted accounting rules.

Interestingly, Reyes’s legal team in the former exec’s most recent trial, opted not to call any witnesses in his defense–evidently an unwise idea give the evidence against him, which included testimony about Reyes’s “It’s not illegal if you don’t get caught” attitude toward options backdating.

Reyes will be sentenced on June 24. His attorneys say they plan to ask the judge for a new trial.

My understanding is that Viacom discussed this internally and made preliminary approaches to YouTube in 2006, but that discussions never got serious, even though Viacom had thrown out a $1 billion price tag. Google (GOOG), of course, ended up buying YouTube for $1.65 billion later that year.

The implication here is that if Viacom (VIA) thought YouTube was worth owning in 2006, it shouldn’t be suing it now. I don’t know if this is relevant in court, but that’s for lawyers and judges to hash out.

Regardless, it’s fun reading, if you’re into this kind of thing. Note the concern among Viacom executives that News Corp. (NWS) would end up owning YouTube instead of them.

SchEx126

SchEx173

And we’re off! Court filings in the YouTube-Viacom suit were just unsealed and both sides are distributing them now.

This post will be a work in progress as I ingest the paperwork. I’ll link to places where you can sort through the files for yourself, and I’ll be posting what I can on this site as well. Most important, I’ll try to interpret the documents and pull out the most interesting stuff.

As we start, a reminder of what we’re looking at: Both sides are releasing their legal arguments and supporting evidence in the three-year-old case. In short, Viacom (VIA) says that Google’s (GOOG) video site infringed on its copyright and wants a billion dollars in damages; YouTube says the site is protected by federal law.

Slightly longer version: Viacom is arguing that YouTube is a giant version of Napster and Grokster, the music file-sharing sites knocked down in earlier court rulings. That makes it important for the cable network to show that YouTube executives knew users were uploading licensed work and that the executives were encouraging it.

YouTube, meanwhile, is arguing that the company has always tried to discourage users from uploading licensed stuff and has gone to great lengths to take down stuff that copyright owners don’t want there. The video service also argues that Viacom has uploaded plenty of its stuff to YouTube on its own and continues to do so. Key part of Google’s defense, in plain English:

Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube–and every Web platform–to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.

It’s important to remember that all of this is already old news to the U.S. District Court judge who will rule in the case. While this may seem like a reality show, the public doesn’t get a vote on this one.

Now let’s get to the filings. Here is Viacom’s request for summary judgment, followed by its “statement of undisputed facts”–essentially supporting evidence. Viacom is also posting most of the documents and depositions here, though some items have been redacted.

Viacom Summary Judgment Motion –

Viacom Statement of Undisputed Facts –

And here’s a link to YouTube’s statement. The company’s legal memorandum follows:

20100318_google_viacom_youtube_memorandum

Below is a statement from YouTube co-founder Chad Hurley, which amounts to a legal version of a press release. Note the many references he makes to his desire to keep the site free of copyrighted stuff–at least initially.

C Hurley Declaration –

That’s not the $242 million VirnetX sought when it first sued in 2007, but it’s a substantial sum–and it could increase. If Microsoft’s infringement is found to be willful, the damage award could be tripled.

Microsoft (MSFT), which views VirnetX’s patents as dross and the company itself as a patent troll, said it will challenge the court’s decision. “We respect others’ intellectual property, and we believe the evidence demonstrated that we do not infringe and the patents are invalid,” Microsoft spokesman Kevin Kutz said in a statement. “We believe the award of damages is legally and factually unsupported, so we will ask the court to overturn the verdict.”

And the industry will no doubt be rooting for the software giant to succeed. Because if Microsoft is vulnerable to an action like this, then presumably, other companies using VPN technology are as well.

“Any time you can successfully enforce a patent against a behemoth like Microsoft, it opens the door for more lawsuits,” patent attorney Cole Stuart told Nick Eaton at the Seattle Post Intelligencer, which has been doing a great job covering the case. “It’s called ‘rolling up the industry.’ If it’s a technology Microsoft uses, it’s likely other companies use it.”

That’s the upshot of a federal judge’s ruling ordering both sides in the slow-moving copyright fight to unseal many of the documents in the case.

I’ve embedded the document below so you can parse it yourself. But the important part is that U.S. District Judge Louis Stanton has told both sides to work together over the next few days and weeks to figure out which of the files the public can see. A good chunk of them should be available within the next 10 days.

This won’t be the entire paper pile the three-year old case has thrown off–the ruling only affects documents both sides have filed in their requests for summary judgment. But it should be most of the interesting stuff, since both sides are trying to marshal as much evidence as they can to persuade Stanton.

The two arguments in a nutshell: Viacom (VIA) is arguing that Google (GOOG) and YouTube violated its copyright when they allowed users to upload and play the cable company’s stuff on the video site. And Google is arguing that federal law protects it from copyright-violation claims.

There is presumably stuff in the file embarrassing to both sides. Google has intimated that Viacom executives knowingly uploaded their own stuff to YouTube, for instance, while the Viacom folks hint that YouTube management knowingly uploaded its stuff onto the site.

But as CNET’s Greg Sandoval explained yesterday, Google’s attorneys asked the court to keep the documents sealed for another three months, while Viacom’s team wants them unsealed in two weeks.

So that makes Stanton’s ruling is a small victory for Viacom. But only a small one: The status of the documents won’t have any bearing on the case itself.

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