Oracle v. SAP: Justice and $1.3 Billion Delivered

For a lawsuit where the guilty verdict was predetermined, Oracle v. SAP sure offered a lot of drama: Oracle CEO Larry Ellison squirming under cross examination; SAP co-CEO Bill McDermott apologizing to Oracle while on the stand (his best performance to date); testy exchanges between the lawyers and executives (winning an Oscar for Combativeness on the Stand: SAP CFO Werner Brandt); and the “Where’s Leo Apotheker?” sideshow that hung over the trial.

That SAP had basically copped to all charges leveled at it and its former subsidiary TomorrowNow, and thrown itself on the mercy of the court and jurors, ensured that the amount of “damages” would be the final and most exciting act of the three-week proceedings.

And the jurors didn’t disappoint, delivering a $1.3 billion verdict for Oracle, “the biggest ever for copyright infringement and the largest U.S. jury award of 2010,” according to Bloomberg data.

“If you take something from someone and you use it, you have to pay,” juror Joe Bangay, a 57-year-old auto body technician, told Bloomberg.

Outside of the geographic area surrounding Oracle’s Redwood Shores, Calif., headquarters, however, there seems to be an undercurrent of compassion (or pity, perhaps?) for SAP. (Like when that “nice guy” who lives on your street gets busted for selling pot to his friends and receives a harsh sentence. “It’s not like he killed anyone, or anything like that,” implore his sympathetic friends.)

Forrester analyst Paul Hamerman wrote in a blog post that the amount of the verdict “is surprising, given that the third-party support subsidiary of SAP, TomorrowNow, was fixing glitches and making compliance updates, not trying to resell the software.”

Yet just because SAP has demonstrated admirable contrition in accepting responsibility for illegal acts and executive knowledge of those actions doesn’t make the company or its leaders any less accountable for those illegal acts.

Let’s also note the fact that Larry Ellison & Co. do not play the “victim role” well, attacking with the vengeance of a pit bull. Of course, it would be harder to find a more polarizing CEO right now than Ellison: You either like him or you don’t.

Nevertheless, it’s hard to feel bad for SAP when all along it kept admitting to more and more egregious acts.

SAP can and should quibble with the amount of the verdict. (Though they’ve thrown in the towel so often on this case, perhaps one final, dramatic towel-throwing—a la Mickey from Rocky—is now in order?)

I’ve often thought about the complex task that was assigned to those jurors. Eight Northern Californian residents, who up until the beginning of November 2010 hadn’t a clue (or care) about ERP software or maintenance contracts, were asked to provide judgment on a case where even the best and highest-paid experts (as well as the litigants they worked for) could not agree on just how much damage TomorrowNow (and SAP) had inflicted on Oracle. (The range we all heard about, from $40 million to $4 billion, is a rather large range, don’t you think?)

Said the jury foreman, who didn’t give his name to Bloomberg, of the $1.3 billion verdict: “We thought that was a fair number.”

Justice is supposed to be blind, but public opinion certainly isn’t. While SAP might have more likeability than does Oracle, it doesn’t absolve SAP executives from paying for their sins. And pay they will.

Thomas Wailgum covers Enterprise Software, Data Management and Personal Productivity Apps for CIO.com. Follow him on Twitter @twailgum. Follow everything from CIO.com on Twitter @CIOonline. E-mail Thomas at twailgum@cio.com.