Oracle Corporation et al v. SAP AG et al

Filing 1134

Proposed Joint Jury Instructions by SAP AG, SAP America Inc, Tomorrownow Inc, Oracle International Corporation . (Froyd, Jane) (Filed on 4/26/2012) Modified on 4/27/2012 (vlk, COURT STAFF).

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BINGHAM McCUTCHEN LLP
DONN P. PICKETT (SBN 72257)
GEOFFREY M. HOWARD (SBN 157468)
BREE HANN (SBN 215695)
Three Embarcadero Center
San Francisco, CA 94111-4067
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

JONES DAY
ROBERT A. MITTELSTAEDT (SBN 060359)
JASON McDONELL (SBN 115084)
ELAINE WALLACE (SBN 197882)
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]

BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
333 Main Street
Armonk, NY 10504
Telephone: [phone]
Facsimile: [phone]
[e-mail]
STEVEN C. HOLTZMAN (SBN 144177)
FRED NORTON (SBN 224725)
1999 Harrison St., Suite 900
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
DORIAN DALEY (SBN 129049)
JENNIFER GLOSS (SBN 154227)
500 Oracle Parkway, M/S 5op7
Redwood City, CA 94070
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
Oracle USA, Inc., et al.

JONES DAY
THARAN GREGORY LANIER (SBN 138784)
JANE L. FROYD (SBN 220776)
1755 Embarcadero Road
Palo Alto, CA 94303
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
JONES DAY
SCOTT W. COWAN (Admitted Pro Hac Vice)
JOSHUA L. FUCHS (Admitted Pro Hac Vice)
717 Texas, Suite 3300
Houston, TX 77002
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Attorneys for Defendants
SAP AG, SAP America, Inc., and
TomorrowNow, Inc.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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ORACLE USA, INC., et al.,
Plaintiffs,
v.

Case No. 07-CV-01658 PJH (EDL)
JOINT JURY INSTRUCTIONS – BLIND
COPY

SAP AG, et al.,
Defendants.

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Case No. 07-CV-01658 PJH (EDL)

JOINT JURY INSTRUCTIONS – BLIND COPY

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JOINT JURY INSTRUCTIONS – BLIND COPY
Pursuant to the Court’s Pretrial Order Re Retrial (ECF No. 1110), Plaintiff Oracle

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International (“Oracle”) and Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc.

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(collectively, “Defendants,” and with Oracle, the “Parties”) hereby submit a blind copy of each

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submitted jury instruction omitting the citation to authority and the reference to the submitting

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party. These blind copies of the preliminary and final instructions are attached as Appendix A

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and Appendix B, respectively.

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DATED: April 26, 2012

Bingham McCutchen LLP

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By:
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/s/ Geoffrey M. Howard
Geoffrey Howard
Attorneys for Plaintiff
Oracle International Corporation

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In accordance with General Order No. 45, Rule X, the above signatory attests that

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concurrence in the filing of this document has been obtained from the signatory below.

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DATED: April 26, 2012

JONES DAY

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By:
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/s/ Tharan Gregory Lanier
Tharan Gregory Lanier
Attorneys for Defendants
SAP AG, SAP America, Inc.,
and TomorrowNow, Inc.

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Case No. 07-CV-01658 PJH (EDL)

JOINT JURY INSTRUCTIONS – BLIND COPY

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APPENDIX A

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Preliminary Instruction No. 1

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DUTY OF JURY
You must not infer from the instructions or from anything that I might say or during the

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course of the trial as indicating that I have an opinion regarding the evidence or what your

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verdict should be. It is your duty to find the facts from all of the evidence in the case, and to

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those facts, you will apply the law as I give it to you. You must follow the law as I give it to you,

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whether you agree with it or not. And you must not be influenced by personal likes, or dislikes,

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opinions, prejudices, or sympathy. That means that you must decide the case solely on the

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evidence before you. You will recall that yesterday, you took an oath to do exactly that. And in

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following my instructions, you must follow all of them and not single out some and ignore

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others. They are all equally important.

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Preliminary Instruction No. 2

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PARTIES AND CLAIMS
To help you follow the evidence, I will give you a brief summary of who the parties are
and what their positions are.
As I explained yesterday, there is one plaintiff, Oracle International Corporation, which
we will refer to as “Oracle International” or “Oracle.”
There are three defendants in this case. SAP AG, which will be referred to by that name;

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SAP America, Incorporated, which I will refer to as “SAP America”; and TomorrowNow,

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Incorporated, which I will refer to as simply “TomorrowNow.” Collectively, these defendants

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will be referred to as either defendants or “SAP.” SAP America is a wholly owned subsidiary of

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SAP AG. And TomorrowNow is a wholly owned subsidiary of SAP America.

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Oracle and certain of its related entities originally asserted ten claims against the

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defendants. As you will see from the stipulations that are included in your jury notebooks,

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TomorrowNow has agreed to liability for all ten claims.

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Further, as to the first claim for copyright infringement, as you will see from the

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stipulations included in your juror notebook, SAP AG and SAP America have agreed to liability

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for vicarious and contributory copyright infringement.

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Here, the only issue remaining for you to decide is damages. Specifically, you must

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decide the amount of damages that should be awarded to Oracle for defendants’ stipulated

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infringement, as I will explain to you later in the case.

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Preliminary Instruction No. 3
PREVIOUS TRIAL
There was a previous trial in this case, and you might hear reference to it. However you

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must decide this case based solely on the evidence presented before you here. You should not

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attempt to research or otherwise obtain information related to the previous trial.

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Preliminary Instruction No. 4

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BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE
When a party has the burden of proof on any claim by a preponderance of the evidence, it

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means that you must be persuaded by the evidence that the claim is more probably true than not

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true. And you should base your decision on all of the evidence regardless of which party

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presented it.

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Preliminary Instruction No. 5

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PARTY HAVING POWER TO PRODUCE BETTER EVIDENCE

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You may consider the ability of each party to provide evidence. If a party provided

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weaker evidence when it could have provided stronger evidence, you may distrust the weaker

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evidence.

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Preliminary Instruction No. 6

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WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:

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1. the sworn testimony of any witness;

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2. the exhibits which are received here in court into evidence; and

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3. any facts to which the lawyers have agreed. We refer to those statements as

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stipulations.

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Preliminary Instruction No. 7

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WHAT IS NOT EVIDENCE
In reaching your verdict, you may consider only the testimony and exhibits received into

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evidence. There are other things, however, that are not evidence, and you may not consider

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them in deciding what the facts are. I will list them for you.

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(1) Arguments and statements by lawyers are not evidence. The lawyers are not

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witnesses. What they will say in their closing arguments, opening statements, and at

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other times is intended to help you interpret the evidence, but it is not evidence. If the

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facts as you remember them differ from the way the lawyers have stated them, your

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memory of those facts controls.

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(2) Questions and objections by lawyers are not evidence. Attorneys have a duty

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to their respective clients to object when they believe a question is improper under the

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rules of evidence. You should not be influenced by the objection or by the court’s

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ruling on it.

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(3) Testimony that has been excluded or stricken, or that you have been instructed

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to disregard, is not evidence and must not be considered. In addition sometimes

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testimony and exhibits are received only for a limited purpose; when I give a limiting

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instruction, you must follow it.

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(4) Anything you may have seen or heard when the court was not in session is not
evidence. You are to decide the case solely on the evidence received at the trial.

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Preliminary Instruction No. 8
EVIDENCE FOR LIMITED PURPOSE
Some evidence may be admitted for a limited purpose only. When I instruct you that an

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item of evidence has been admitted for a limited purpose, you must consider it only for that

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limited purpose and for no other reason.

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Preliminary Instruction No. 9

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DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such

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as testimony by a witness about what that witness personally saw or heard or did. Circumstantial

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evidence is proof of one or more facts from which you could find another fact. You should

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consider both kinds of evidence. The law makes no distinction between the weight to be given to

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either direct or circumstantial evidence. It is for you to decide how much weight to give to any

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evidence.

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Preliminary Instruction No. 10

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RULING ON OBJECTIONS
There are rules of evidence that control what can be received into evidence. When a

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lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks

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that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the

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objection, the question may be answered or the exhibit received. If I sustain the objection, the

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question cannot be answered, and the exhibit cannot be received. Whenever I sustain an

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objection to a question, you must ignore the question and must not guess what the answer might

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have been.

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Sometimes I may order that evidence be stricken from the record and that you disregard

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or ignore the evidence. That means that when you are deciding the case, you must not consider

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the evidence that I told you to disregard.

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Preliminary Instruction No. 11

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CREDIBILITY OF WITNESSES

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In deciding the facts in this case, you may have to decide which testimony to believe and

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which testimony not to believe. You may believe everything a witness says, or part of it, or none

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of it. Proof of a fact does not depend on the number of witnesses who testify about it.

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In considering the testimony of any witness, you may take into account the following
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(1) the opportunity and ability of the witness to see or hear or know the things

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about which the witness is testifying;

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(2) the witness’s memory;

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(3) the witness’s manner while testifying;

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(4) the witness’s interest in the outcome of the case and any bias or prejudice;

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(5) whether other evidence contradicted the witness’s testimony;

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(6) the reasonableness of the witness’s testimony in light of all the evidence; and

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(7) any other factors that bear on believability.

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The weight of the evidence as to a fact does not necessarily depend on the number of
witnesses who testify about it.

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Preliminary Instruction No. 12

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WITNESS WILLFULLY FALSE

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A witness who is willfully false in one material part of his or her testimony is to be

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distrusted in others. You may reject the whole testimony of a witness who willfully has testified

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falsely as to a material point, unless, from all the evidence, you believe the probability of truth

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favors his or her testimony in other particulars.

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Preliminary Instruction No. 13
INFERENCES DEFINED
You are to consider only the evidence in the case. However, you are not limited to the

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statements of the witnesses. In other words, you are not limited to what you see and hear as the

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witnesses testify. You may draw from the facts that you find have been proved such reasonable

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inferences as seem justified in light of your experience.

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“Inferences” are deductions or conclusions which reason and common sense lead you to
draw from facts established by the evidence in the case.

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Preliminary Instruction No. 14

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NO TRANSCRIPT AVAILABLE TO JURY/TAKING NOTES
During deliberations, you will have to make your decision based on what you recall of

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the case. You will not have a transcript of the trial. I urge you to pay close attention to the

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testimony as it is given.

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If at any time you cannot hear or see the testimony, any evidence, exhibits, questions or

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arguments, please let me know so we can correct the problem. Just raise your hand and I’ll ask

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you to explain what difficulty you’re having.

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If you wish, you may take notes to help you remember the evidence. If you do take

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notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide

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the case. Do not let note-taking distract you. When you leave in the evening, your notes should

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be left in the jury room. No one will read your notes. They will be destroyed at the conclusion

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of the case.

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Whether or not you take notes, you should rely on your own memory of the evidence.

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Notes are only to assist your memory. You should not be overly influenced by your notes or

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those of your fellow jurors.

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Preliminary Instruction No. 15
USE OF INTERPRETERS—OTHER LANGUAGES; COUNTRIES OF ORIGIN
You must not make any assumptions about a witness or a party based solely upon the use
of an interpreter to assist that witness or party.
Some of the witnesses who will testify live in this courtroom, or via deposition video

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clip, do not speak English as a native language. Some of the witnesses speak German as a native

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language. You must not make any assumptions about a witness or a party based upon the

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language that is used by any witness in communicating with his or her colleagues or others.

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The evidence to be considered by you is only that provided through the official court

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translators. Although some of you may know German, or any other foreign language used and

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translated during this case, it is important that all jurors consider the same evidence. Therefore,

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you must accept the English translation and you must disregard any different meaning or

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understanding you might have of the words used.

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One of the parties—specifically, defendant SAP AG––is incorporated in another country.

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You must not make any assumptions about a party based on where it is incorporated or where it

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is headquartered.

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Preliminary Instruction No. 16

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STIPULATIONS OF FACT

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The parties have agreed to certain facts, and their written stipulations of fact will be

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placed in evidence as Exhibits 1 through 3. These exhibits can be found in your juror notebook

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and may be referred to by the parties throughout this trial. You should treat facts within the

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stipulations as having been proved.

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Preliminary Instruction No. 17
STIPULATIONS OF LIABILITY
The parties have reached stipulations, including that TomorrowNow is directly liable to

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Plaintiff for all of the claims that Plaintiff have asserted, and that SAP AG and SAP America are

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contributorily and vicariously liable for TomorrowNow’s copyright infringement. You should

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therefore treat these claims as having been proved. Those stipulations of liability will be placed

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in evidence as Exhibits 4 and 5. These exhibits can be found in your juror notebook and may be

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referred to by the parties throughout this trial.

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Preliminary Instruction No. 18
DEPOSITION IN LIEU OF LIVE TESTIMONY
A deposition is the sworn testimony of a witness that was taken before trial. The witness

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is placed under oath to tell the truth and the lawyers for each party may ask questions. The

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questions and answers are recorded. When a person is unavailable to testify at trial, the

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deposition of that person may be used at the trial. In this trial, deposition testimony will be

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presented by video clips.

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Each side had an opportunity to select excerpts of video testimony for each witness. All

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of the selected excerpts for a particular witness will be played together. Therefore, although the

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video clips for a particular witness may be played during a particular side’s presentation, the

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excerpts may have been selected by either side. As a result, the video clips, when played, may

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seem slightly out of order to you. However, please listen to the entire video clip and consider all

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of the witness’s testimony presented to you as a whole, just as you would with a live witness.

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You should consider deposition testimony presented in lieu of live testimony in the same
way as if the witness had testified live.

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Preliminary Instruction No. 19
USE OF INTERROGATORIES OF A PARTY
Evidence may be presented to you in the form of answers of one of the parties to written

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interrogatories submitted by the other side. These answers were given in writing and under oath,

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before the actual trial, in response to questions that were submitted in writing under established

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court procedures. You should consider the answers, insofar as possible, in the same way as if

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they were made from the witness stand.

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Preliminary Instruction No. 20
USE OF REQUESTS FOR ADMISSION
Before trial, each party has the right to ask another party to admit in writing that certain

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matters are true. If the other party admits those matters, you must accept them as true. No

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further evidence is required to prove them. You must also accept as true any stipulated facts I

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read to you, and those set forth in the stipulation(s) I will provide to you, as well as those that

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have already been provided in your juror notebook.

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Preliminary Instruction No. 21

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EXPERT OPINION
Some witnesses, because of education or experience, are permitted to state opinions and

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the reasons for those opinions. Opinion testimony should be judged just like any other

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testimony. You may accept it or reject it, and give it as much weight as you think it deserves,

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considering the witness’s education and experience, the reasons given for the opinion, and all the

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other evidence in the case.

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Preliminary Instruction No. 22
CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE

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Certain charts and summaries not received in evidence may be shown to you in order to

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help explain the contents of books, records, documents, or other evidence in the case. They are

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not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures

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shown by the evidence in the case, you should disregard the charts and summaries and determine

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the facts from the underlying evidence.

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Preliminary Instruction No. 23
CHARTS AND SUMMARIES RECEIVED IN EVIDENCE
Certain charts and summaries may be received into evidence to illustrate information

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brought out in the trial. Charts and summaries are only as good as the underlying evidence that

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supports them. You should, therefore, give them only such weight as you think the underlying

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evidence deserves.

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Preliminary Instruction No. 24

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CORPORATIONS—FAIR TREATMENT

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All parties are equal before the law and a corporation is entitled to the same fair and

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conscientious consideration by you as any party.

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Preliminary Instruction No. 25
INTERPRETATION OF INSTANT MESSAGES
Defendants did not produce in a timely fashion certain relevant instant messages, which

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we’ll refer to as IMs, involving TomorrowNow employees. As a result, Plaintiffs were unable to

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fully investigate and use the late-produced IMs during preparations for this trial. Therefore, if

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any of these IMs are introduced into evidence during trial, and if there is any dispute about their

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meaning, you should interpret them consistent with what you find to be any reasonable

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interpretation presented by Plaintiffs.

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Preliminary Instruction No. 26

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CONDUCT OF THE JURY

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I will now say a few words about your conduct as jurors.

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First, keep an open mind throughout the trial, and do not decide what the verdict should

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be until you and your fellow jurors have completed your discussions and deliberations at the end

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of the case.

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Second, because you must decide this case based only on the evidence received in the

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case here in the courtroom and on my instructions as to the law that applies, you must not be

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exposed to any other information about the case or to the issues it involves during the course of

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your jury duty. Thus, until the end of the case or unless I tell you otherwise:
Do not communicate with anyone and do not let anyone else communicate with

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you in any way about the merits of the case or anything to do with the case. This

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includes discussing the case in person, in writing, by phone or electronic means, via e-

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mail, text messaging, or any Internet chat room, blog, Web site or using any other

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electronic tools to obtain information about this case or to help you decide the case.

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Please do not try to find out information from any source outside the confines of this

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courtroom.

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Until you retire to deliberate, you may not discuss this case with anyone, even

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your fellow jurors. After you retire to deliberate, you may begin discussing the case with

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your fellow jurors, but you cannot discuss the case with anyone else until you have

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returned a verdict and the case is at an end. I hope that for all of you this case is

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interesting and noteworthy. I know that many of you use cell phones, Blackberries, the

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internet and other tools of technology. You also must not talk to anyone about this case

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or use these tools to communicate electronically with anyone about the case. This

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includes your family and friends. You may not communicate with anyone about the case

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on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter,

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through any blog or website, through any internet chat room, or by way of any other

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social networking websites, including Facebook, Twitter, My Space, LinkedIn, and

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YouTube. But, if you are asked or approached in any way about your jury service or

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anything about this case, you must respond that you have been ordered not to discuss the

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matter and then you are to report the contact to the court.

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Because you will receive all the evidence and legal instruction you properly may

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consider to return a verdict: do not read, watch, or listen to any news or media accounts

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or commentary about the case or anything to do with the case; do not do any research,

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such as consulting dictionaries, searching the Internet or using other reference materials;

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and do not make any investigation or in any other way try to learn about the case or the

9

parties on your own.

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The law requires these restrictions to ensure the parties have a fair trial based on the same

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evidence that each party has had an opportunity to address. A juror who violates these

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restrictions jeopardizes the fairness of these proceedings, and a mistrial could result that would

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require the entire trial process to start over. If any juror is exposed to any outside information,

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please notify the Court immediately.

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Preliminary Instruction No. 27

2

BENCH CONFERENCES AND RECESSES

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From time to time during the trial, it may become necessary for me to talk with the

4

attorneys out of the hearing of the jury, either by having a conference at the bench, which we call

5

a sidebar, or when the jury is not present, or by calling a recess. We will try to keep the number

6

of length of these conferences to a minimum. Please understand that while you are waiting, we

7

are working. The purpose of these conferences is not to keep information from you, but to

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decide how certain evidence is to be treated under the rules of evidence and to avoid confusion

9

and error.

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I may not always grant an attorney’s request for a conference. Do not consider my

11

granting or denying a request for a conference as any indication of my opinion of the case or of

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what your verdict should be.

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Preliminary Instruction No. 28

2

OUTLINE OF TRIAL

3

Trials proceed in the following way: First, each side may make an opening statement. An

4

opening statement is not evidence. It is simply an outline to help you understand what that party

5

expects the evidence will show. A party is not required to make an opening statement.

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The plaintiff will then present evidence, and counsel for the defendant may cross-

7

examine. Then the defendant may present evidence, and counsel for the plaintiff may cross-

8

examine.

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After the evidence has been presented, I will instruct you on the law that applies to the
case and the attorneys will make closing arguments.
After that, you will go to the jury room to deliberate on your verdict.

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APPENDIX B

1

Final Instruction No. 1

2

DUTY OF JURY

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Members of the Jury: Now that you have heard all of the evidence, it is my duty to

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instruct you as to the law that applies in the case.
A copy of these instructions will be sent with you to the jury room when you deliberate
so you don’t need to take notes.
You must not infer from these instructions or from anything I may say or do as indicating
that I have an opinion regarding the evidence or what your verdict should be.

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It is your duty to find the facts from all the evidence in the case. To those facts you will

10

apply the law as I give it to you. You must follow the law as I give it to you whether you agree

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with it or not. And you must not be influenced by any personal likes or dislikes, opinions,

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prejudices, or sympathy. That means that you must decide the case solely on the evidence before

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you. You will recall that you took an oath to do so.

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In following my instructions, you must follow all of them and not single out some and
ignore others; they are all important.

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Final Instruction No. 2
WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of three things:

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1. the sworn testimony of any witness;

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2. the exhibits which are received into evidence; and

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3. any facts to which the lawyers and parties have agreed or stipulated to.

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Final Instruction No. 3
WHAT IS NOT EVIDENCE

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In reaching your verdict, you may consider only the testimony and exhibits received into

4

evidence. Certain things are not evidence, and you may not consider them in deciding what the

5

facts are. I will list them for you:

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(1) Arguments and statements by lawyers are not evidence. The lawyers are not

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witnesses. What they have said in their opening statements, and their closing arguments,

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and at other times is intended to help you interpret the evidence, but it is not evidence. If

9

the facts as you remember them differ from the way the lawyers have stated them, your

10

memory of them controls.

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(2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their

12

clients to object when they believe a question is improper under the rules of evidence.

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You should not be influenced by the objection or by the court’s ruling on it.

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(3) Testimony that has been excluded or stricken, or that you have been instructed to

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disregard, is not evidence and must not be considered. In addition sometimes testimony

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and exhibits are received only for a limited purpose; when I have given a limiting

17

instruction, you must follow it.

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(4) Anything you may have seen or heard when the court was not in session is not

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evidence. You are to decide the case solely on the evidence received at the trial.

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Final Instruction No. 4

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DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such

4

as testimony by a witness about what that witness personally saw or heard or did. Circumstantial

5

evidence is proof of one or more facts from which you could find another fact. You should

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consider both kinds of evidence. The law makes no distinction between the weight to be given to

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either direct or circumstantial evidence. It is for you to decide how much weight to give to any

8

evidence.

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Final Instruction No. 5
CREDIBILITY OF WITNESSES

2

In deciding the facts in this case, you may have to decide which testimony to believe and

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4

which testimony not to believe. You may believe everything a witness says, or part of it, or none

5

of it. Proof of a fact does not necessarily depend on the number of witnesses who testify about

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it.

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In considering the testimony of any witness, you may take into account the following:

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(1) the opportunity and ability of the witness to see or hear or know the things testified to;

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(2) the witness’s memory;

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(3) the witness’s manner while testifying;

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(4) the witness’s interest in the outcome of the case and any bias or prejudice;

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(5) whether other evidence contradicted the witness's testimony;

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(6) the reasonableness of the witness’s testimony in light of all the evidence; and

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(7) any other factors that bear on believability.

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The weight of the evidence as to a fact does not necessarily depend on the number of
witnesses who testify about it.

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Final Instruction No. 6

2

REDACTED MATERIALS

3

From time to time, the Parties have offered into evidence documents that have been

4

partially “redacted,” which means that certain contents of the document have been blacked or

5

whited out and stamped “redacted.” Redactions are necessary for a wide variety of reasons,

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including that the redacted information is unrelated to the evidence in the case, that the Court has

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determined that the information is not admissible, or to protect as private the personal

8

information of individuals or other companies not parties to this lawsuit. These are just

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examples. You may give the un-redacted information in any document whatever weight you

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choose, and you are not to consider any characterizations of the fact or existence of a redaction in

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any document, including by counsel.

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Final Instruction No. 7

2

DUTY TO DETERMINE DAMAGES

3

Over the course of this trial, you have heard evidence on Oracle’s damages claims

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against TomorrowNow, SAP AG, and SAP America. As reflected in the stipulations between

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the Parties contained in your jury notebook, the Parties agree that TomorrowNow is liable for

6

the copyright infringement asserted by Oracle, and that SAP AG and SAP America are also

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vicariously and contributorily liable for that copyright infringement.

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You must now decide the amount of damages that should be awarded to Oracle for
Defendants’ stipulated infringement of Oracle’s copyrights. You must make this determination

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based on the instructions I will give you regarding the law on copyright infringement, and the

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damages you may award based on the agreed copyright infringement in this case.

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Final Instruction No. 8
COPYRIGHT—DEFINED

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A copyright is the exclusive right to copy. This right to copy includes the exclusive

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rights to:

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1)

reproduce the copyrighted work;

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2)

prepare derivative works based upon the copyrighted work by adapting or
transforming it; and

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3)

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distribute copies of either the copyrighted work or any unauthorized derivative
work; and

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4)

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display publicly a copy of either the copyrighted work or any unauthorized
derivative work.

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It is the owner of a copyright who may exercise these exclusive rights. The “owner”

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refers to the author of the work, or one who has been assigned the ownership of exclusive rights

14

in the work. In general, copyright law protects against the production, adaptation, distribution,

15

or public display of the owner’s copyrighted work without the owner’s permission. An owner

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may enforce these rights to exclude others in an action for copyright infringement. Even though

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one may acquire a copy of the copyrighted work, the copyright owner retains certain rights and

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control of that copy, including uses that may result in additional copies or alterations of the

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work.

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1

Final Instruction No. 9

2

COPYRIGHT—STIPULATED DIRECT INFRINGEMENT

3

The parties have entered into several stipulations of liability and facts. These

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stipulations are now Orders of the Court. The stipulations have been referred to by the Parties

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throughout this trial and entered into evidence labeled JTX 0001 through 0005. They also can be

6

found in your jury notebook and are referenced in the Table of Contents as Numbers 2 through 6.

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In these stipulations, Defendants have admitted that TomorrowNow is directly liable to Oracle

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for all of Oracle’s claims for direct copyright infringement of all 120 Oracle, PeopleSoft, J.D.

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Edwards and Siebel copyrights listed in Attachment A to Trial Stipulation No. 3. Trial

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Stipulation No. 3 also contains counts of the “minimum numbers” of infringing copies and

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downloads made by TomorrowNow. Defendants have also admitted that SAP AG and SAP

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America are contributorily and vicariously liable for all of TomorrowNow’s copyright

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infringement. You should therefore treat all of Oracle’s copyright infringement claims as having

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been proved.

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Final Instruction No. 10

2

SECONDARY COPYRIGHT LIABILITY— STIPULATED VICARIOUS

3

INFRINGEMENT

4

SAP AG and SAP America agree they are liable for all of TomorrowNow’s

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infringement based on principles of vicarious liability. By agreeing to vicarious liability, SAP

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AG and SAP America agreed that:

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1)

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They both received a direct financial benefit from the infringing activity of
TomorrowNow; and,

2)

They both had the right and ability to supervise or control the infringing
activity of TomorrowNow.

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Final Instruction No. 11
SECONDARY LIABILITY—STIPULATED CONTRIBUTORY INFRINGEMENT
SAP AG and SAP America also agree they are liable for all of TomorrowNow’s

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infringement based on principles of contributory infringement. By agreeing to contributory

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infringement, SAP AG and SAP America agreed that:

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1)

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They knew or had reason to know of the infringing activity of
TomorrowNow; and,

2)

They intentionally and materially contributed to TomorrowNow’s
infringing activity.

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Final Instruction No. 12
COPYRIGHT DAMAGES—INTRODUCTION

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You must determine Oracle’s damages resulting from the copyright infringement

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agreed to by the Defendants. Oracle is entitled to recover the actual damages suffered as a result

5

of the infringement. As the measure of its actual damages, Oracle, as the plaintiff, has the right

6

to seek to recover either the fair market value of a license for the rights infringed or its lost

7

profits. If you award Oracle actual damages based on its lost profits, then Oracle is also entitled

8

to recover any profits that each Defendant made that are attributable to their infringement. If you

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award Oracle actual damages based on the fair market value of a license as presented by Oracle

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for the rights infringed, that award takes into account Defendants’ profits attributable to their

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infringement and Oracle is not entitled to any additional award. Oracle must prove damages by a

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preponderance of the evidence.

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Final Instruction No. 13
COPYRIGHT DAMAGES—ACTUAL DAMAGES
Oracle is entitled to recover the actual damages suffered as a result of the

4

infringement. Actual damages means the amount of money adequate to compensate Oracle for

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the reduction of the fair market value of the copyrighted work caused by the infringement.

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The reduction of the fair market value of the copyrighted work is the amount a

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willing buyer would have been reasonably required to pay a willing seller at the time of the

8

infringement for the actual use made by Defendants of Oracle’s works. That amount also could

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be represented by the lost license fees the Oracle would have received for Defendants’

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unauthorized use of Oracle’s works.
In determining the fair market value of the rights infringed, you must consider the
entire scope of infringement, which is reflected in the five stipulations in your jury notebook.

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Final Instruction No. 14
COPYRIGHT DAMAGES—ACTUAL DAMAGES CONTINUED
While there is no precise formula for determining actual damages, your award

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must be based on the evidence, not on speculation, guesswork, or conjecture. Determining the

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fair market value of the rights infringed may involve some uncertainty, and Oracle is not

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required to establish its actual damages with precision.

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Final Instruction No. 15

2

COPYRIGHT DAMAGES—ACTUAL DAMAGES—FAIR MARKET VALUE LICENSE

3

CALCULATION

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If you decide that the best measure of Oracle’s full actual damages is a fair market

5

value license, you should consider all of the information known to the parties, and all of the

6

expectations of the parties, on the dates of the hypothetical negotiations, which are the dates on

7

which infringement began. You must determine what would have been the result of this

8

negotiation in order to establish the fair market value. The fair market value is an objective

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measure of Oracle’s damages that is meant to approximate the fair market value of a

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license for all of the copyrights Defendants infringed, calculated at the time the infringement

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commenced, which the Parties agree is January 19, 2005 for the PeopleSoft, JD Edwards and

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database copyrights infringed, and September 29, 2006 for the Siebel copyrights infringed.

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The fair market value measure is “objective” in that it refers to the market value

14

of the rights infringed, not the subjective amount the copyright owner might wish it could

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charge.

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Oracle is not required to show that the parties would have reached an actual

17

agreement in order to establish the fair market value of the rights infringed. The value of a

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hypothetical license is not necessarily the amount the Defendants in this case would have agreed

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to pay, or that Oracle would have actually agreed to accept.

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Nor is Oracle required to show that it had licensed the rights Defendants infringed

21

to others in order to establish the fair market value of those rights. That value may be established

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by the contemporaneous expectations and projections of the parties at the time of infringement,

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including the amount of money Defendants expected to gain as a result of the infringing conduct,

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and the amount money Oracle would have expected to lose.

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You may consider evidence of events and facts that happened after the date of the

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hypothetical negotiation only to the extent that it provides insight into the expectations of the

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parties at the time the infringement first began, or insight into the amount a willing buyer would

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have been reasonably required to pay a willing seller at the time of the infringement.

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You may not limit or increase the fair market value of the rights infringed based
on the actual profits Defendants made.

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Final Instruction No. 16
COPYRIGHT DAMAGES—ACTUAL DAMAGES—LOST PROFITS
If you decide that the best measure of Oracle’s full actual damages is lost profits,

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you must determine what profits Oracle proves it would have made without the infringement.

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Lost profits are the revenue Oracle would have made without the infringement, less any

6

additional expenses it would have incurred in making the sales.

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Final Instruction No. 17
COPYRIGHT DAMAGES—INFRINGERS’ PROFITS

3

If you decide that the best measure of Oracle’s full actual damages is lost profits,

4

you must also determine the amount of profits made by any defendant that are attributable to the

5

stipulated infringement. You may not include in an award of Defendants’ profits any amount

6

that you already took into account in determining lost profits.

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You may make an award of Defendants’ profits only if you find that Oracle

8

showed a causal relationship between the infringement and the Defendants’ gross revenue.

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Defendants’ gross revenue is all of the money the Defendants’ received in connection with the

10

stipulated infringement. Oracle has the burden of proving Defendants’ gross revenue by a

11

preponderance of the evidence.

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If you find that Defendants’ infringement was willful, then Defendants’ profits are

13

equal to all of Defendants’ gross revenue that is associated with the stipulated infringement, and

14

no deduction for Defendants’ expenses is permitted.

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If you find that Defendants’ infringement was not willful, then Defendants’

16

profits are equal to Defendants’ gross revenue minus expenses. Expenses are all operating costs,

17

overhead costs, and production costs incurred in producing Defendants’ gross revenue.

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Defendants have the burden of proving their expenses by a preponderance of the evidence.

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Unless you find that a portion of the profit from the use of the copyrighted works

20

is attributable to factors other than use of the copyrighted works, all of the profit is to be

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attributed to the infringement. Defendants have the burden of proving the portion of the profit, if

22

any, attributable to factors other than infringing the copyrighted works.

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Final Instruction No. 9
COPYRIGHT DAMAGES—ACTUAL DAMAGES

3

You must determine Oracle’s damages resulting from the copyright infringement agreed

4

to by the Defendants. Oracle is entitled to recover the actual damages suffered as a result of the

5

infringement. Actual damages means the amount of money adequate to compensate Oracle for

6

the reduction of the fair market value of the copyrighted work caused by the infringement.

7

The reduction of the fair market value of the copyrighted work is represented by the lost

8

profits Oracle would have received but for Defendants’ unauthorized use of Oracle’s works. In

9

other words, lost profits are the revenue Oracle would have made without the infringement, less

10

any additional expenses it would have incurred in making the sales.

11

While there is no precise formula for determining actual damages, your award must be

12

based on evidence, not on speculation, guesswork, or conjecture. Determining actual damages

13

may involve some uncertainty, and Oracle is not required to establish its actual damages with

14

precision. Oracle must prove damages by a preponderance of the evidence.

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Final Instruction No. 10
COPYRIGHT DAMAGES—INFRINGERS’ PROFITS
In addition to calculating Oracle’s actual damages, you must also determine the

4

amount of profits made by any defendant that are attributable to the stipulated infringement.

5

You may not include in an award of Defendants’ profits any amount that you already took into

6

account in determining lost profits. You may make an award of Defendants’ profits only if you

7

find that Oracle showed a causal relationship between the infringement and the profits generated

8

indirectly from the infringement. Defendants’ profits are determined by subtracting all expenses

9

from the Defendants’ gross revenue. Defendants’ gross revenue is all of Defendants’ receipts

10

associated with the stipulated infringement. Oracle has the burden of proving Defendants’ gross

11

revenue by a preponderance of the evidence. Expenses are all operating costs, overhead costs,

12

and production costs incurred in producing Defendants’ gross revenue. Defendants have the

13

burden of proving their expenses by a preponderance of the evidence.

14

Unless you find that a portion of the profit from the use of the copyrighted works

15

is attributable to factors other than use of the copyrighted works, all of the profit is to be

16

attributed to the infringement. Defendants have the burden of proving the portion of the profit, if

17

any, attributable to factors other than infringing the copyrighted works.

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Final Instruction No. 18
COPYRIGHT DAMAGES—WILLFUL INFRINGEMENT
An infringement is considered willful when Oracle has proved both of the
following elements by a preponderance of the evidence:

5

1.

Defendants engaged in acts that infringed Oracle’s copyrights; and

6

2.

Defendants knew that those acts infringed Oracle’s copyrights.

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Final Instruction No. 19

2

DUTY TO DELIBERATE

3

When you begin your deliberations, you should elect one member of the jury as

4

your presiding juror. That person will preside over the deliberations and speak for you here in

5

court.

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12

You will then discuss the case with your fellow jurors to reach agreement if you
can do so. Your verdict must be unanimous.
Each of you must decide the case for yourself, but you should do so only after you
have considered all of the evidence, discussed it fully with the other jurors, and listened to the
views of your fellow jurors.
Do not hesitate to change your opinion if the discussion persuades you that you
should. Do not come to a decision simply because other jurors think it is right.

13

It is important that you attempt to reach a unanimous verdict but, of course, only

14

if each of you can do so after having made your own conscientious decision. Do not change an

15

honest belief about the weight and effect of the evidence simply to reach a verdict.

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Final Instruction No. 20

2

THE USE OF ELECTRONIC TECHNOLOGY TO CONDUCT RESEARCH ON OR

3

COMMUNICATE ABOUT A CASE

4

During your deliberations, you must not communicate with or provide any

5

information to anyone by any means about this case. You may not use any electronic device or

6

media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the

7

internet, any internet service, or any text or instant messaging service; or any internet chat room,

8

blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to

9

anyone any information about this case or to conduct any research about this case until I accept

10

your verdict.

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Final Instruction No. 21
COMMUNICATION WITH COURT

3

If it becomes necessary during your deliberations to communicate with me, you

4

may send a note through the bailiff, signed by your presiding juror or by one or more members

5

of the jury. No member of the jury should ever attempt to communicate with me except by a

6

signed writing; I will communicate with any member of the jury on anything concerning the case

7

only in writing, or here in open court. If you send out a question, I will consult with the parties

8

before answering it, which may take some time. You may continue your deliberations while

9

waiting for the answer to any question. Remember that you are not to tell anyone—including

10

me—how the jury stands, numerically or otherwise, until after you have reached a unanimous

11

verdict or have been discharged. Do not disclose any vote count in any note to the court.

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Final Instruction No. 22
RETURN OF VERDICT
A verdict form has been prepared for you. After you have reached unanimous

4

agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign

5

and date it, and advise the court that you are ready to return to the courtroom.

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