Fred’s car could be colourful too.

 

Imagine Bob (figured name) took Fred’s (figured name) without Fred’s consent and used it to get on time to a business meeting that reported Bob $1 million, money which not have been made by Bob if he had been late to his meeting.

After the meeting, Bob was arrested by the police for having stolen Fred’s car. Bob had not damaged the car, and he opposed no resistance to his arrest. In fact, offered to pay for the gas he actually used. The car was worth $30,000.

Certainly Bob caused Fred some damage, as Fred was not able to use his own car for some time, until the police returned it.

Leaving aside the criminal aspect (the actual theft), would Fred really have any right to claim any of the $30,000, just because the actual usage of the car was a necessary step for Bob in the process of making the $1 million deal?

We would say, not being experts at law, that Bob should pay Fred for the actual gas, the insurance cost for the time Fred could not use his own car, and a certain compensation for any additional cost Fred could have had after his car theft: Transportation, phone calls, Fred’s earnings during hose days in case he needed his car for work, plus a certain additional amount for the hassle.

But probably it would be unfair to have Bob paying the $30,000 just because he used it to make the deal.

Last Friday Safra Catz cared to appear once again to give testimony in SAP-Oracle ongoing trial. And she gave another illustrative masterpiece of analogies which could be better understood by the jurors. 

True that the oracle’s intellectual property has a value. True that it should not have been illegally acquired by TomorrowNow. But the fact it is valuable does not increase or diminish the harm made by SAP to Oracle, which is the fact being tried.

Fair to claim $1.6 billion at least, just because the cost of what SAP used was that much? By the way, it was the oracle who said it was worth $1.6 billion at least…

If SAP made $40 million with the 358 customers that were “safe-passaged” from the oracle, by selling projects at 50% discount on the oracle’s fees, it means that the oracle would have got $80 million at the max if having continued business with those customers.

$80 million, plus $120 million already agreed to be paid for attorney’s costs (no criminal charges dropped as well) seem much more reasonable a sentence to us.

Fred could have said, by the way, his car was worth $60,000, or $90,000, based on sentimental value as well… lots of time washing it in the driveway, lots of happy times spent in the back seat, perhaps… and eventual colourful cool tuning, why not.

Weak argumentation in our opinion to claim that much, Kitty… sorry, “Catz”.

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Swift cats

 

Indeed the “trial of the month” moves forward towards its closure. Peculiar trial, dressed with a lot of surrounding attrezzo, from the Pontifex Maximus at the Oracle’s (aka Big Mouth Larry) venomous invectives to all the assumptions made here and there of where all this will end.

There has certainly been a big unbalance between the relative importance of the heavy-weight witnesses presented by the two parts. From the Pontifex himself and co-President Katz from the Oracle to Bill McDermott and Werner Brandt for the Germans, the overall declarations have as well fallen short to expectations, and basically around their original positions: up to $4 billion according to the oracle, not more than $40 million offered by the Germans. And none of the parts have given in more than an inch from those positions.

One of the strongest witnesses from the oracle, however, has been co-President Katz, whose main argument was about rewarding bad behaviour of the Germans. Ironically enough, “Katz” is a German name derived form Katze, meaning cat…

“It’s like stealing a $2,000 watch, selling it for $20, and offering to pay the $20 back as compensation”, she’s declared.

The argument is indeed difficult to respond appropriately after a first thought. It might have made a strong impression in the jurors on behalf of the oracle. as a good finance expert, she has even mentioned figures in her example that are exactly proportional to the figures discussed in the trial. 2,000 is 100 times 20, ad $40 billion is exactly 100 times $40 million. Very, very, very smart from hers.

However, there is a subtle nuance that jurors and judge Phyllis Hamilton should take into account. If someone steals your $2,000 watch, indeed he is stripping you off $2,000. Downloading copyrighted material is basically making a copy of that material. And copying it is not stripping you off the value of that material. So the point is basically that illegally copying copyrighted material, SAP used it for its own benefit without really preventing the oracle from using it on their own. In other words, it’s like an athlete unfairly competing in a running race by using illegal drops that reduce the competitive advantage of a better honest runner.

And this id probably why the actual damages (only 358 customers switched from the oracle to TomorrowNow, according to information available online) have been so small compared to the theoretical potential.

Not denying that SAP behaved bad, the already settled amount of $120 for criminal charges, plus damage reparations of $40 really sounds reasonable in our ears., though this is just an opinion of ours, who do not claim at all any expertise in law matters.

What we really are impressed with is Katz’s rationale and argumentation… together with a much more senior and mature attitude than her boss’. Indeed swift, indeed smart, indeed subtle, and probably very powerful. No surprise she sits where she does at the oracle.

Hard and tough rival in the internal struggle for the Pontifex heritage you got there, Mark Hurd…

 

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