When the Oracle vs. SAP copyright infringement trial starts today, only one matter remains to be determined -- damages.
SAP’s last minute decision not to contest Oracle’s claims that it contributed to copyright infringement by TomorrowNow, and its admission last year that TomorrowNow committed wrongdoing, takes the blame game off the table. It will limit the evidence and shorten the trial. Now, a jury is simply tasked with determining whether SAP’s wrongdoing lies in the “tens of millions,” as it claims, or in the billions Oracle’s seeking.
But even with the billions of dollars Oracle is claiming SAP owes it, several SAP customers interviewed said the lawsuit is of little concern to their organizations.
Indeed, analysts agreed SAP customers shouldn’t be too concerned by the developments or the lawsuit itself. SAP will be able to absorb whatever damages it ends up having to pay, said Paul Hamerman, Forrester Research vice president and principal analyst, and customers won’t be affected.
One SAP customer, a longtime Basis administrator who works for a large SAP shop, even said SAP deserves credit for the way it’s handled the affair.
“They stepped up and said, 'this is our fault,’” he said. “But Oracle, they just have to stick it to them."
Plan on Oracle doing just that throughout the trial, analysts interviewed said.
On Friday, SAP sent an email to Oracle’s lawyers saying that it wouldn’t contest contributory copyright claims on behalf of TomorrowNow.
SAP countered the move was just a legal play to move the trial along.
“It’s not admitting, or accepting greater responsibility,” SAP spokesman Andy Kendzie said. “It’s electing not to contest this part in an effort to expedite this trial.”
SAP’s move comes as no surprise, Hamerman said. SAP has always wanted to end things quickly, as opposed to Oracle, which wants to make the trial into a “public spectacle” in an effort to humiliate and damage its rival, he said.
“He doesn’t want the trial to be a secret. He wants to rub it in,” Hamerman said of Oracle CEO Larry Ellison.
But Oracle fired back in a statement in response, “SAP has finally confessed it knew about the theft all along. The evidence at trial will show that the SAP Board of Directors valued Oracle's copyrighted software so highly, they were willing to steal it rather than compete fairly.”
Oracle also sought to delay the start of the trial until Thursday -- a request the judge denied -- which could have been an effort for Oracle to buy time to subpoena former SAP co-CEO and current HP CEO Leo Apotheker, according to Rebecca Wettemann, vice president of research at Boston-based Nucleus Research.
SAP’s move is an indication of just how badly it wants to end things.
“It’s highly unusual and exceedingly rare for a party to admit liability at the brink of trial,” said Hillard Sterling, a partner in the litigation practice group of Freeborn & Peters, where he specializes in IP law. “SAP’s trying to take the trial away as one of Oracle’s competitive weapons.”
When the trial gets under way, Sterling said, Oracle will try to embarrass SAP by saying SAP profited by the alleged copyright infringements.
Wettemann agreed. “Expect Oracle to use the ‘steal instead of innovate’ messaging more often in referring to SAP in the future,” she said.
Yet all of the negative publicity Oracle’s drumming up through the lawsuit may be bad for Oracle itself, according to Joshua Greenbaum, an analyst with Enterprise Applications Consulting. Greenbaum said none of his clients’ purchasing decisions have been influenced by the suit.
Not only that, but customers don’t want to be strong-armed, and they don’t want to feel that vendors are fighting to the death for their dollar, he added. Oracle risks a backfire from this, Greenbaum said, by looking angry and out of control.
“This isn’t really casting Oracle in a good light,” he said. “I think it’s starting to border on absurd. There are legitimate issues buried in this theater of the self-righteous.”