Just days before its highly anticipated trial with Oracle is set to start, SAP is no longer contesting that it contributed to the alleged copyright infringement of TomorrowNow, documents filed in court today said.
Oracle has long accused SAP executives of knowing about the alleged illegal operations of TomorrowNow, its now-defunct third-party support subsidiary. Oracle says SAP executives ignored warnings that Oracle would sue them because SAP wanted to win market share. SAP has always denied these claims.
But on Wednesday night,SAP’s lawyers sent an email to Oracle’s attorneys stating that “we are electing not to contest the claim for contributory copyright infringement,” according to the documents. Given that this issue is “of such significance,” it asked that the trial length be shortened-- to no more than 20 hours per side, instead of the original 36 hours.
Calling it “an 11th hour tactic,” according to court documents, Oracle showed no signs of backing down. Oracle’s attorneys are asking that the start of the trial be delayed to Nov. 4, instead of the original Nov. 1 start date, saying they need time to factor in this new development. They also said they would contest SAP’s request to limit the trial time, and want a hearing on Friday to sort it all out.
“Oracle welcomes Defendants’ admissions of all liability, however belated,” the documents state.“At the same time, the irony of and tactical motivation behind the last-minute concession, after over three years of steadfast and public denials of SAP’s role in and responsibility for the vast copyright infringement involved this case, is readily apparent.”
Oracle is claiming billions in damages in this lawsuit. SAP, claiming that it never made any money from TomorrowNow, nor gained any Oracle customers from it, claims that the damages lie more in the tens of millions.
Shortly after the lawsuit was filed in March 2007, SAP admitted that TomorrowNow, a company that provided third-party support for PeopleSoft and J.D. Edwards applications, did commit copyright infringement. When it couldn’t settle the case after a year, it shut TomorrowNow down. But SAP has steadfastly maintained that it had no role in the alleged copyright infringement, and that it only bought TomorrowNow “provide a choice to customers frightened by Oracle’s acquisition of PeopleSoft and J.D. Edwards.”
In August, seeking to limit the time and scope of the trial, SAP agreed to pay Oracle for copyright infringement and illegal downloading engaged in by TomorrowNow. But even then it maintained that while its subsidiary may have committed improprieties, SAP itself did not.
In recent weeks, the case has taken on new dimensions with the hiring of former SAP CEO Leo Apotheker to head Oracle rival HP.
Oracle CEO Larry Ellison has been more than outspoken about his belief that Apotheker not only knew about TomorrowNow’s improprieties, but oversaw “an industrial espionage scheme centering on repeated theft of massive amounts of Oracle’s software,” according to a statement released by Oracle this week. He even claimed this week that HP would keep Apotheker “far away” so that he couldn’t be served a subpoena to testify at the trial.