Wednesday, November 24, 2010

Oracle v. SAP AG: A Chilling Effect? Not Likely

On this chilly day before Thanksgiving, Oracle Corporation got a holiday present when a federal jury in Oakland awarded the company $1.3 billion in damages for its copyright infringement suit against German software giant SAP AG. The case focused on the intentional copying and use of Oracle’s software by TomorrowNow, a former division of SAP. TomorrowNow offered maintenance services and support software for customers of companies Oracle had acquired. Turns out in order to perform those services; TomorrowNow had downloaded, without Oracle’s permission, Oracle software – a clear and unambiguous copyright infringement.

Oracle sued, and before trial began, SAP admitted the copying and liability for infringement, which left only the amount of damages as the focus of the trial. Oracle sought $2.3 billion, SAP claimed the award should be limited to 40 million. So it appears the jury compromised and awarded damages in the middle of the range at issue.

Some commentators are concerned that this verdict, the largest in 2010 and, according to the San Francisco Chronicle story about the case, the 23rd largest verdict of all time, may have a chilling effect on companies seeking to develop new innovations in software, because of concern about being sued for infringement.

I’m dubious about that concern. This was, from all accounts, an egregious, indefensible case of blatant infringement. Companies that engage in this kind of conduct, when caught in the act, should indeed be concerned that they will be tagged with a big judgment against them. However, many jurisdictions allow for intermediate copying to occur as a company develops new products, provided the copied software is not used in any way in the product ultimately developed. Even in those jurisdictions that preclude intermediate copying, a fair use defense may still aid a defendant.

Given the nature of the conduct of SAP in this case, while the award sets a record, its importance as precedent is more likely to be limited.

Sunday, November 14, 2010

Digital History – Are We All Public Figures?

In his The Public Editor column in the November 14, 2010 New York Times, writer Arthur S. Brisbane casts a critical eye on the a bicycle/pedestrian accident in which 87-year old Claire Menagh was recently knocked down and injured on a quiet New York City street. The operators of the two bicycles which ran into her were a four-year old girl and a five-year old boy. Media reports of the incident named each of the children, and their parents, after Ms. Menagh’s Estate (she died three months after the accident, of unrelated causes) sued the children for damages resulting from negligence, and their parents (also named in the media) for negligent supervision.

Mr. Brisbane, in his Public Editor role, asks whether the Times was right to publish the children’s names. He posed this question to various editors with the Times, who noted that the names were in the public record via the lawsuit, and that other news organizations had previously listed the names in their reporting. They also pointed out that since the case didn’t deal with criminal law claims, nor did it deal with the sexual exploitation of children, the prohibitions on naming children that those instances trigger did not apply to this story.

Critics of the Times’ decision, also profiled by Mr. Brisbane, note that once these children’s names appear in the online universe in this context, this public record is never erased, and will dog them for the rest of their life. “When we stigmatize them by using their names, we say that childhood in America ends at 4-years old”, says the Rev. Emma Jordan-Simpson, Executive director of the Children’s Defense Fund-New York.

Therese Bottomly, managing editor for readership and standards at The Oregonian in Portland, summarizes the impact the digital revolution has on the decision whether to publish children’s names in these cases:

“I used to think short-term about what effect coverage might have on a child returning the next week to a classroom, say, and whether that should be a consideration. Now, we think about the ramifications if a would-be employer or college admissions counselor searches for a kid 10 years down the road”.

This case is directly relevant to the issue of privacy protection versus a shared life approach – the latter being a lifestyle choice many people have chosen in the Facebook and related social network milieu many live in today. While I, and other academics who teach in the area of Internet and related hi-tech law, routinely counsel students to be careful what they upload to social network sites because employers now regularly do Google and Facebook searches, even we fail, I think, to consider the long term impact of this digitally open and recorded lifestyle. The idea of re-inventing yourself to move past youthful indiscretions or poor choices may become less available in a world where your digital history becomes inescapable. This is an effect of these shared lives that many of us, with our eye only on the next month or year, may come to regret only when it is too late. Will we come to a tipping point where we realize we have offered, as some call it, TMI (Too Much Information)?

As is often the case with the excesses of technology in the digital age, there is a social tendency to look to the law and the legal system for a fix for this problem. However, there are some concerns the law is poorly suited to address, and I suspect this is one of them. Attempting to ban or limit, through legal strictures, user-generated content is a losing battle. It is far more likely that it will take many more cases like the Menagh case before the battle for people’s hearts and minds on these privacy issues may be won, and the value of limiting what people share will begin to be embraced, perhaps by a generation yet to come.

Sunday, November 7, 2010

Report on the GGU IPLC Annual Conference

On Friday November 5th, the Golden Gate University IP Law Center presented our 9th Annual Conference on Recent Developments in IP Law and Policy. The day long conference, held in Room 2201, attracted over 70 participants. Highlights included an electrifying presentation by U.C. Davis Professor Madhavi Sunder based on her upcoming work “IP: YouTube, MySpace, Our Culture”, and an engrossing panel of online gaming attorneys from Electronic Arts, Zynga and NAMCO BANDAI Games America.

Center Co-Directors Bill Gallahger and I, joined by Assoc. Prof Chester Chuang, our third IP Law faculty member, wish to acknowledge and thank the Townsend law firm for its generous financial support of the conference. Thanks are also due to Dean Ramey and the Dean’s Office administrative staff for its support. Our presenters and panelists, some of whom traveled from Irvine, Los Angeles and Davis, gave generously of their time and expertise, which is also greatly appreciated. Grad Law program coordinators Natascha Fastabend, Brad Lai and Tiptira Rammaniya provided valuable support as well. A special thanks is reserved for Justin Reid, Administrative Assistant for the IP Program – he did an exceptional job handling the myriad administrative tasks critical to making the conference a success. And lastly, we tip our hats to the twenty student volunteers who worked long and hard to make the event the success it was.

Planning for next year’s conference begins Monday!