perfidy

Not that I want to bash on the same topic too hard, but subsequent analysis I've seen of the Oracle vs. SAP kerfuffle (below), brings into question my understanding of copyright law, and my analysis of the overall case. Such as this bit, from an article of 3/27/2007 by Michael Hickins, entitled "SAP Could be 'In a World of Trouble'":

Analysis: The lawsuit that Oracle filed against its rival in the enterprise software market last week is going to get even worse. When all is said and done, SAP's conduct, if proved true, could cost it hundreds of millions of dollars in penalties, untold points of market share and even, perhaps, jail time for some executives.

In the complaint, Oracle said it plans to register thousands of new copyright claims for its software and then "amend its Complaint to add further copyright allegations and causes of action when the registrations for these copyrights" are granted by the United States Copyright Office.

I'm no lawyer, and I don't know who Michael Hickins is, but I'm guessing that either he's no lawyer either, or he's a lawyer similar in skills to the public defender assigned in the movie "My Cousin Vinnie".

Where do I start? Purple prose like "...hundreds of millions of dollars in penalties, untold points of market share and even, perhaps, jail time for some executives" is an easy first step.

Business judgment errors, if they were even errors at all, by a tiny subsidiary of SAP called TomorrowNow, seem unlikely to damage the corporate reputation of SAP to the tune of "untold points of market share", unless "untold" is a synonym for "zero".

In order for there to be hundreds of millions of dollars in penalties, it would seem required that Oracle present evidence of hundreds of millions of dollars in damages. This seems highly unlikely, and not just because this seems clearly less than some corporate spying skullduggery than SAP's division simply walking through unlocked doors at Oracle on behalf of Oracle's former support customers. I don't know what the controlling law is alleged to be, but treble damages, such as in the case of antitrust, don't seem applicable, and I have trouble conceiving that TomorrowNow, with several hundred employees engaged in servicing all its customers, not just those who've recently moved from Oracle, somehow mulcted hundreds of millions in business.

In earlier stories on the case, I'd not seen any reference to copyright violation as the core complaint. That connection is the basis that the author, via his source, "Eric Goldman, director of the High Tech Law Institute at the Santa Clara University School of Law", uses to arrive at the 9 digit number for penalties. The odd thing about this, aside from it being a new-ish underpinning for the complaint, is that in order to make its complaint even "complaintier", Oracle plans to "register thousands of new copyright claims for its software", and then amend its initial lawsuit.

Having authored copyrighted material, including software, I'm more than passingly familiar with the process, and it's got nothing to do with registering claims of copyright. All that's required is to clearly claim copyright in the document, and presto! you've got a copyrighted document. Registering such claims with the government extends the process, but doesn't increase the degree to which you possess copyright protection. So that part of the story raises flashing red flags to me regarding the credibility of Mr. Goldman, above, and by extension, of Mr. Hickins. If I'm right (and of course, there's a chance, however small, that I've misunderanalyzed this), Mr. Hickins is at worst guilty of producing an inflammatory article. Mr. Goldman, of course, should know better.

If the basis for the complaint is copyright infringement, then I wonder how it occurred. For instance, is the claim that SAP's division wasn't allowed to read the documents that were freely available on Oracle's system? I haven't seen (and don't expect to see) claims that TomorrowNow republished the documents under their own name, and fair use, last time I checked, included simply reading such copyrighted documents. If there's a clause in the Oracle support contract that prohibits disclosure of the contents of the Oracle documents, then the case might better be made against the customers who disclosed the documents, indirectly, simply by providing access to them via user ID and password.

I'm not the only one who's raised this question. From a story last week at InternetNews:

Scott Hervey, an attorney with Weintraub Genshlea Chediak, a Sacramento, Calif.-based law firm that specializes in trade secrets and trademark law, said it was too early to tell what this could end up costing SAP if all the charges are proven.

He noted that Oracle based its complaint on unusual provisions, such as "trespass to chattel." He said the last time he saw that provision used in a lawsuit was in 2003, when Intel unsuccessfully sued a former employee for sending e-mail to current employees.

He added that it was also interesting to note the laws that Oracle was not invoking in its complaint. In particular, despite making claims that SAP stole and copied copyrighted information, Oracle isn't suing for copyright infringement. "I'm curious as to why there's no such claim," he told internetnews.com.

And while the complaint alleges that SAP used stolen passwords, Oracle chose not to sue under the anti-circumvention provisions of the Digital Millennium Copyright Act. "The anti-circumvention provision prevents circumvention of access controls--and that's what passwords are," he said. Oracle would not comment on why it made those choices at this time.

Funny - the reason I didn't recall this case being based on copyright violation is that, initially, it wasn't. Which makes it seem as though Oracle's lawyers are pulling the case together on the fly. Why might they do so?

Goldman, again:

And according to Goldman, the very language of the lawsuit reads as much as a marketing document as a legal one. "There is no doubt in my mind that the document is intended to be circulated to potential and current SAP customers," he said.

Goldman pointed to several instances in the complaint, such as where Oracle refers to its "broader, deeper product line," showing that Oracle intends to use this case to seed doubt in the minds of SAP's current and potential customers.

Lawsuit as marketing ploy? Who would have thought it? Turns out that my opening line above needs amendment. Rather than "...brings into question my understanding of copyright law, and my analysis of the overall case", I should have said "brings into question my understanding of copyright law as a marketing cudgel". Yeah, that's more like it.

Finally, the mention of jail time for SAP executives seems silly, at this point in the case, because I'm unaware of any civil case that ends with jail time. Perhaps that's just me, and perhaps this could turn into a criminal case at some point. Though still no apologist for SAP, and still no lawyer, I think such an outcome seems highly unlikely.

(also posted at a issuesblog.com)