Oracle Corporation et al v. SAP AG et al
Filing
1189
Amended Joint Jury Instructions - Blind Copy by SAP AG, SAP America Inc, Tomorrownow Inc . (Froyd, Jane) (Filed on 6/7/2012) Modified on 6/8/2012 (vlk, COURT STAFF).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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: (415) 393-2000
Facsimile: (415) 393-2286
donn.pickett@bingham.com
geoff.howard@bingham.com
bree.hann@bingham.com
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:
(415) 626-3939
Facsimile:
(415) 875-5700
ramittelstaedt@jonesday.com
jmcdonell@jonesday.com
ewallace@jonesday.com
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
333 Main Street
Armonk, NY 10504
Telephone: (914) 749-8200
Facsimile: (914) 749-8300
dboies@bsfllp.com
STEVEN C. HOLTZMAN (SBN 144177)
FRED NORTON (SBN 224725)
1999 Harrison St., Suite 900
Oakland, CA 94612
Telephone: (510) 874-1000
Facsimile: (510) 874-1460
sholtzman@bsfllp.com
fnorton@bsfllp.com
DORIAN DALEY (SBN 129049)
JENNIFER GLOSS (SBN 154227)
500 Oracle Parkway, M/S 5op7
Redwood City, CA 94070
Telephone: (650) 506-4846
Facsimile: (650) 506-7114
dorian.daley@oracle.com
jennifer.gloss@oracle.com
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:
(650) 739-3939
Facsimile:
(650) 739-3900
tglanier@jonesday.com
jfroyd@jonesday.com
JONES DAY
SCOTT W. COWAN (Admitted Pro Hac Vice)
JOSHUA L. FUCHS (Admitted Pro Hac Vice)
717 Texas, Suite 3300
Houston, TX 77002
Telephone:
(832) 239-3939
Facsimile:
(832) 239-3600
swcowan@jonesday.com
jlfuchs@jonesday.com
Attorneys for Defendants
SAP AG, SAP America, Inc., and
TomorrowNow, Inc.
19
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
20
21
22
23
24
25
ORACLE USA, INC., et al.,
Plaintiffs,
v.
Case No. 07-CV-01658 PJH (EDL)
AMENDED JOINT JURY
INSTRUCTIONS - BLIND COPY
SAP AG, et al.,
Defendants.
26
27
28
Case No. 07-CV-01658 PJH (EDL)
1
2
JOINT JURY INSTRUCTIONS
Pursuant to the Court’s Pretrial Order Re Retrial (ECF No. 1110) and the Court’s Final
3
Pretrial Order (ECF No. 1171), Plaintiff Oracle International (“Oracle”) and Defendants SAP
4
AG, SAP America, Inc., and TomorrowNow, Inc. (collectively, “Defendants,” and with Oracle,
5
the “Parties”) hereby submit a blind copy of each submitted amended jury instruction omitting
6
the citation to authority and the reference to the submitting party. These blind copies of the
7
preliminary, trial evidentiary, and final instructions are attached as Appendix A, B, and C,
8
respectively.
9
DATED: June 7, 2012
JONES DAY
10
By:
/s/ Tharan Gregory Lanier
Tharan Gregory Lanier
Attorneys for Defendants
SAP AG, SAP America, Inc.,
and TomorrowNow, Inc.
11
12
13
14
In accordance with General Order No. 45, Rule X, the above signatory attests that
15
concurrence in the filing of this document has been obtained from the signatory below.
16
DATED: June 7, 2012
BINGHAM McCUTCHEN LLP
17
18
19
By:
/s/ Geoffrey M. Howard
Geoffrey Howard
Attorneys for Plaintiff
Oracle International Corporation
20
21
22
23
24
25
26
27
28
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
APPENDIX A
1
Preliminary Instruction No. 1
2
3
DUTY OF JURY
You must not infer from the instructions or from anything that I might say during the
4
course of the trial as indicating that I have an opinion regarding the evidence or what your
5
verdict should be. It is your duty to find the facts from all of the evidence in the case, and to
6
those facts, you will apply the law as I give it to you. You must follow the law as I give it to you,
7
whether you agree with it or not. And you must not be influenced by personal likes, or dislikes,
8
opinions, prejudices, or sympathy. That means that you must decide the case solely on the
9
evidence before you. You will recall that yesterday, you took an oath to do exactly that. And in
10
following my instructions, you must follow all of them and not single out some and ignore
11
others. They are all equally important.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
1
Preliminary Instruction No. 2
2
3
4
5
6
7
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;
8
SAP America, Incorporated, which I will refer to as “SAP America”; and TomorrowNow,
9
Incorporated, which I will refer to as simply “TomorrowNow.” Collectively, these defendants
10
will be referred to as either Defendants or “SAP.” SAP America is a wholly owned subsidiary of
11
SAP AG. And TomorrowNow is a wholly owned subsidiary of SAP America.
12
Oracle and certain of its related entities originally asserted ten claims against the
13
defendants. As you will see from the stipulations that are included in your jury notebooks,
14
TomorrowNow has agreed to liability for all ten claims.
15
Further, as to the first claim for copyright infringement, as you will see from the
16
stipulations included in your juror notebook, SAP AG and SAP America have agreed to liability
17
for vicarious and contributory copyright infringement.
18
Here, the only issue remaining for you to decide is damages. Specifically, you must
19
decide the amount of damages that should be awarded to Oracle for Defendants’ stipulated
20
infringement, as I will explain to you later in the case.
21
22
23
24
25
26
27
28
2
1
Preliminary Instruction No. 3
2
3
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
4
means that you must be persuaded by the evidence that the claim is more probably true than not
5
true. And you should base your decision on all of the evidence regardless of which party
6
presented it.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
1
Preliminary Instruction No. 4
2
PARTY HAVING POWER TO PRODUCE BETTER EVIDENCE
3
You may consider the ability of each party to provide evidence. If a party provided
4
weaker evidence when it could have provided stronger evidence, you may distrust the weaker
5
evidence.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
1
Preliminary Instruction No. 5
2
3
WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:
4
1. the sworn testimony of any witness;
5
2. the exhibits which are received here in court into evidence; and
6
3. any facts to which the lawyers have agreed. We refer to those statements as
7
stipulations.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
1
Preliminary Instruction No. 6
2
3
WHAT IS NOT EVIDENCE
In reaching your verdict, you may consider only the testimony and exhibits received into
4
evidence. There are other things, however, that are not evidence, and you may not consider them
5
in deciding what the facts are. I will list them for you.
6
(1) Arguments and statements by lawyers are not evidence. The lawyers are not
7
witnesses. What they will say in their closing arguments, opening statements, and at
8
other times is intended to help you interpret the evidence, but it is not evidence. If the
9
facts as you remember them differ from the way the lawyers have stated them, your
10
memory of those facts controls.
11
(2) Questions and objections by lawyers are not evidence. Attorneys have a duty
12
to their respective clients to object when they believe a question is improper under the
13
rules of evidence. You should not be influenced by the objection or by the court’s
14
ruling on it.
15
(3) Testimony that has been excluded or stricken, or that you have been instructed
16
to disregard, is not evidence and must not be considered. In addition sometimes
17
testimony and exhibits are received only for a limited purpose; when I give a limiting
18
instruction, you must follow it.
19
20
(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.
21
22
23
24
25
26
27
28
6
1
2
3
Preliminary Instruction No. 7
EVIDENCE FOR LIMITED PURPOSE
Some evidence may be admitted for a limited purpose only. When I instruct you that an
4
item of evidence has been admitted for a limited purpose, you must consider it only for that
5
limited purpose and for no other reason.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
1
Preliminary Instruction No. 8
2
3
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
6
consider both kinds of evidence. The law makes no distinction between the weight to be given to
7
either direct or circumstantial evidence. It is for you to decide how much weight to give to any
8
evidence.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
1
Preliminary Instruction No. 9
2
3
RULING ON OBJECTIONS
There are rules of evidence that control what can be received into evidence. When a
4
lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks
5
that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the
6
objection, the question may be answered or the exhibit received. If I sustain the objection, the
7
question cannot be answered, and the exhibit cannot be received. Whenever I sustain an
8
objection to a question, you must ignore the question and must not guess what the answer might
9
have been.
10
Sometimes I may order that evidence be stricken from the record and that you disregard
11
or ignore the evidence. That means that when you are deciding the case, you must not consider
12
the evidence that I told you to disregard.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
1
Preliminary Instruction No. 10
2
CREDIBILITY OF WITNESSES
3
In deciding the facts in this case, you may have to decide which testimony to believe and
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 depend on the number of witnesses who testify about it.
6
7
In considering the testimony of any witness, you may take into account the following
things:
8
(1) the opportunity and ability of the witness to see or hear or know the things
9
about which the witness is testifying;
10
(2) the witness’s memory;
11
(3) the witness’s manner while testifying;
12
(4) the witness’s interest in the outcome of the case and any bias or prejudice;
13
(5) whether other evidence contradicted the witness’s testimony;
14
(6) the reasonableness of the witness’s testimony in light of all the evidence; and
15
(7) any other factors that bear on believability.
16
17
The weight of the evidence as to a fact does not necessarily depend on the number of
witnesses who testify about it.
18
19
20
21
22
23
24
25
26
27
28
10
1
Preliminary Instruction No. 11
2
WITNESS WILLFULLY FALSE
3
A witness who is willfully false in one material part of his or her testimony is to be
4
distrusted in others. You may reject the whole testimony of a witness who willfully has testified
5
falsely as to a material point, unless, from all the evidence, you believe the probability of truth
6
favors his or her testimony in other particulars.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
1
2
3
Preliminary Instruction No. 12
INFERENCES DEFINED
You are to consider only the evidence in the case. However, you are not limited to the
4
statements of the witnesses. In other words, you are not limited to what you see and hear as the
5
witnesses testify. You may draw from the facts that you find have been proved such reasonable
6
inferences as seem justified in light of your experience.
7
8
“Inferences” are deductions or conclusions which reason and common sense lead you to
draw from facts established by the evidence in the case.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
1
Preliminary Instruction No. 13
2
3
NO TRANSCRIPT AVAILABLE TO JURY/TAKING NOTES
During deliberations, you will have to make your decision based on what you recall of
4
the case. You will not have a transcript of the trial. I urge you to pay close attention to the
5
testimony as it is given.
6
If at any time you cannot hear or see the testimony, any evidence, exhibits, questions or
7
arguments, please let me know so we can correct the problem. Just raise your hand and I’ll ask
8
you to explain what difficulty you’re having.
9
If you wish, you may take notes to help you remember the evidence. If you do take
10
notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide
11
the case. Do not let note-taking distract you. When you leave in the evening, your notes should
12
be left in the jury room. No one will read your notes. They will be destroyed at the conclusion
13
of the case.
14
Whether or not you take notes, you should rely on your own memory of the evidence.
15
Notes are only to assist your memory. You should not be overly influenced by your notes or
16
those of your fellow jurors.
17
18
19
20
21
22
23
24
25
26
27
28
13
1
2
3
4
5
Preliminary Instruction No. 14
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
6
clip, do not speak English as a native language. Some of the witnesses speak German as a native
7
language. You must not make any assumptions about a witness or a party based upon the
8
language that is used by any witness in communicating with his or her colleagues or others.
9
The evidence to be considered by you is only that provided through the official court
10
translators. Although some of you may know German, or any other foreign language used and
11
translated during this case, it is important that all jurors consider the same evidence. Therefore,
12
you must accept the English translation and you must disregard any different meaning or
13
understanding you might have of the words used.
14
One of the parties—specifically, defendant SAP AG––is incorporated in another country.
15
You must not make any assumptions about a party based on where it is incorporated or where it
16
is headquartered.
17
18
19
20
21
22
23
24
25
26
27
28
14
1
Preliminary Instruction No. 15
2
STIPULATIONS OF FACT
3
The parties have agreed to certain facts, and their written stipulations of fact will be
4
placed in evidence as Exhibits 1 through 3. These exhibits can be found in your juror notebook
5
and may be referred to by the parties throughout this trial. You should treat facts within the
6
stipulations as having been proved.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
1
2
3
Preliminary Instruction No. 16
STIPULATIONS OF LIABILITY
The parties have reached stipulations, including that TomorrowNow is directly liable to
4
Plaintiff for all of the claims that Plaintiff have asserted, and that SAP AG and SAP America are
5
contributorily and vicariously liable for TomorrowNow’s copyright infringement. You should
6
therefore treat these claims as having been proved. Those stipulations of liability will be placed
7
in evidence as Exhibits 4 and 5. These exhibits can be found in your juror notebook and may be
8
referred to by the parties throughout this trial.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16
1
Preliminary Instruction No. 17
2
THE PARTIES’ BURDENS REGARDING DAMAGES
3
As a result of Defendants’ infringement, Oracle is entitled to recover both its actual
4
damages, and all profits Defendants earned that are attributable to the infringement and not taken
5
into account in computing actual damages.
6
Oracle’s actual damages are the profits Oracle would have made without the Defendants’
7
infringement. Oracle’s lost profits are therefore equal to the revenue Oracle would have made
8
without the infringement less any additional expenses it would have incurred in making the sales.
9
It is Oracle’s burden to prove its lost profits by a preponderance of the evidence. Determining
10
lost profits may involve some uncertainty, and Oracle is not required to establish them with
11
precision.
12
Defendants’ profits are all the gross revenues that Defendants received in connection with
13
the infringement they have admitted, less expenses incurred in producing the Defendants’ gross
14
revenue. It is Oracle’s burden to prove Defendants’ gross revenue by a preponderance of the
15
evidence. Once Oracle meets this burden, it is Defendants’ burden to prove their expenses by a
16
preponderance of the evidence. Insofar as Defendants seek to deduct indirect costs like overhead
17
expenses, they must show these expenses assisted in the production, distribution or sale of
18
infringing products. If you find that Defendants' infringement was willful, then you should give
19
extra scrutiny to the categories of overhead expenses claimed by the infringer to ensure that each
20
category is directly and validly connected to the production, distribution or sale of infringing
21
products. If Defendants do not meet their burden of proving expenses, the gross revenue figure
22
stands as the Defendants’ profits. Any doubt as to the computation of Defendants’ costs or
23
profits is to be resolved in favor of Oracle.
24
25
26
27
28
17
1
Preliminary Instruction No. 17
2
THE PARTIES’ BURDENS REGARDING DAMAGES
3
Oracle is entitled to recover the actual damages it suffered as a result of the infringement.
4
For the purposes of this case, actual damages means the profits Oracle lost because of the
5
infringement to which Defendants have stipulated. Lost profits are the revenue Oracle would
6
have made in the absence of the infringement, less any additional expenses it would have
7
incurred in generating that revenue.
8
9
Oracle must prove damages by a preponderance of the evidence. While there is no
precise formula for determining actual damages, your award must be based on evidence, not on
10
speculation, guesswork, or conjecture. Determining actual damages may involve some
11
uncertainty, and Oracle is not required to establish its actual damages with precision.
12
In addition to calculating Oracle’s actual damages, you must also determine the amount
13
of profits made by any defendant that are attributable to the stipulated infringement. You may
14
not include in an award of Defendants’ profits any amount that you already took into account in
15
determining lost profits.
16
You may make an award of Defendants’ profits only if you find that Oracle showed a
17
causal relationship between the infringement and the profits generated indirectly from the
18
infringement. Defendants’ gross revenue is all of Defendants’ receipts associated with the
19
stipulated infringement. Oracle has the burden of proving Defendants’ gross revenue by a
20
preponderance of the evidence.
21
Defendants’ profits are determined by subtracting operating costs, overhead costs, and
22
production costs incurred in producing Defendants’ gross revenue. Defendants have the burden
23
of proving their expenses by a preponderance of the evidence.
24
Unless you find that a portion of the profit from the use of the copyrighted works is
25
attributable to factors other than use of the copyrighted works, all of the profit is to be attributed
26
to the infringement. Defendants have the burden of proving the portion of the profit, if any,
27
attributable to factors other than infringing the copyrighted works.
28
In calculating lost profits and infringer’s profits, you may not award any damages for the
18
1
purposes of punishment or deterrence.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
1
2
3
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
4
is placed under oath to tell the truth and the lawyers for each party may ask questions. The
5
questions and answers are recorded. When a person is unavailable to testify at trial, the
6
deposition of that person may be used at the trial. In this trial, deposition testimony will be
7
presented by video clips.
8
Each side had an opportunity to select excerpts of video testimony for each witness. All
9
of the selected excerpts for a particular witness will be played together. Therefore, although the
10
video clips for a particular witness may be played during a particular side’s presentation, the
11
excerpts may have been selected by either side. As a result, the video clips, when played, may
12
seem slightly out of order to you. However, please listen to the entire video clip and consider all
13
of the witness’s testimony presented to you as a whole, just as you would with a live witness.
14
15
You should consider deposition testimony presented in lieu of live testimony in the same
way as if the witness had testified live.
16
17
18
19
20
21
22
23
24
25
26
27
28
20
1
2
3
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
4
interrogatories submitted by the other side. These answers were given in writing and under oath,
5
before the actual trial, in response to questions that were submitted in writing under established
6
court procedures. You should consider the answers, insofar as possible, in the same way as if
7
they were made from the witness stand.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
21
1
2
3
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
4
matters are true. If the other party admits those matters, you must accept them as true. No
5
further evidence is required to prove them. You must also accept as true any stipulated facts I
6
read to you, and those set forth in the stipulation(s) I will provide to you, as well as those that
7
have already been provided in your juror notebook.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22
1
Preliminary Instruction No. 21
2
3
EXPERT OPINION
Some witnesses, because of education or experience, are permitted to state opinions and
4
the reasons for those opinions. Opinion testimony should be judged just like any other
5
testimony. You may accept it or reject it, and give it as much weight as you think it deserves,
6
considering the witness’s education and experience, the reasons given for the opinion, and all the
7
other evidence in the case.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
23
1
Preliminary Instruction No. 22
2
EVIDENCE USED WITH EXPERT WITNESS
3
During the examination of the parties’ respective experts, certain evidence may be
4
presented that cannot be considered as substantive evidence of truth. You may consider this
5
evidence only to evaluate the basis of the expert’s opinion. I will advise you as to which
6
evidence this applies to when it is admitted.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
1
2
Preliminary Instruction No. 23
CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE
3
Certain charts and summaries not received in evidence may be shown to you in order to
4
help explain the contents of books, records, documents, or other evidence in the case. They are
5
not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures
6
shown by the evidence in the case, you should disregard the charts and summaries and determine
7
the facts from the underlying evidence.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
25
1
2
3
Preliminary Instruction No. 24
CHARTS AND SUMMARIES RECEIVED IN EVIDENCE
Certain charts and summaries may be received into evidence to illustrate information
4
brought out in the trial. Charts and summaries are only as good as the underlying evidence that
5
supports them. You should, therefore, give them only such weight as you think the underlying
6
evidence deserves.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26
1
Preliminary Instruction No. 25
2
CORPORATIONS—FAIR TREATMENT
3
All parties are equal before the law and a corporation is entitled to the same fair and
4
conscientious consideration by you as any party.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
27
1
2
3
Preliminary Instruction No. 26
INTERPRETATION OF INSTANT MESSAGES
Defendants did not produce in a timely fashion certain relevant instant messages, which
4
we’ll refer to as IMs, involving TomorrowNow employees. As a result, Oracle was unable to
5
fully investigate and use the late-produced IMs during preparations for this trial. Therefore, if
6
any of these IMs are introduced into evidence during trial, and if there is any dispute about their
7
meaning, you should interpret them consistent with what you find to be any reasonable
8
interpretation presented by Oracle.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28
1
Preliminary Instruction No. 27
2
CONDUCT OF THE JURY
3
I will now say a few words about your conduct as jurors. First, keep an open mind
4
throughout the trial, and do not decide what the verdict should be until you and your fellow
5
jurors have completed your deliberations at the end of the case. Second, because you must
6
decide this case based only on the evidence received in the case and on my instructions as to the
7
law that applies, you must not be exposed to any other information about the case or to the issues
8
it involves during the course of your jury duty. Thus, until the end of the case or unless I tell you
9
otherwise: Do not communicate with anyone in any way and do not let anyone else
10
communicate with you in any way about the merits of the case or anything to do with it. This
11
includes discussing the case in person, in writing, by phone or electronic means, via e-mail, text
12
messaging, or any Internet chat room, blog, Web site or other feature. This applies to
13
communicating with your fellow jurors until I give you the case for deliberation, and it applies to
14
communicating with everyone else including your family members, your employer, and the
15
people involved in the trial, although you may notify your family and your employer that you
16
have been seated as a juror in the case. But, if you are asked or approached in any way about
17
your jury service or anything about this case, you must respond that you have been ordered not to
18
discuss the matter and to report the contact to the court.
19
Because you will receive all the evidence and legal instruction you properly may consider
20
to return a verdict: do not read, watch, or listen to any news or media accounts or commentary
21
about the case or anything to do with it; do not do any research, such as consulting dictionaries,
22
searching the Internet or using other reference materials; and do not make any investigation or in
23
any other way try to learn about the case on your own.
24
The law requires these restrictions to ensure the parties have a fair trial based on the same
25
evidence that each party has had an opportunity to address. A juror who violates these
26
restrictions jeopardizes the fairness of these proceedings , and a mistrial could result that would
27
require the entire trial process to start over. If any juror is exposed to any outside information,
28
please notify the court immediately.
29
1
Preliminary Instruction No. 28
2
BENCH CONFERENCES AND RECESSES
3
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
and 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
8
decide how certain evidence is to be treated under the rules of evidence and to avoid confusion
9
and error.
10
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
12
what your verdict should be.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30
1
Preliminary Instruction No. 29
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.
6
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.
9
10
11
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.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
APPENDIX B
1
Evidentiary Trial Instruction No. 1
2
EVIDENCE USED WITH ORACLE’S DAMAGES EXPERT REGARDING COWLITZ
3
COUNTY
4
During the cross-examination of Oracle’s expert witness, the Defendants may present two
5
declarations from customers of Cowlitz County, Washington. These declarations are relied upon
6
by Plaintiff’s damages expert in forming his opinions. The evidence contained is admissible
7
only for the purpose of explaining the basis of Mr. Meyer’s opinion. It is not offered for truth of
8
the information contained in the declaration and should not be considered by you for that
9
purpose.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
APPENDIX C
1
Final Instruction No. 1
2
DUTY OF JURY
3
Members of the Jury: Now that you have heard all of the evidence, it is my duty to
4
5
6
7
8
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.
9
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
11
with it or not. And you must not be influenced by any personal likes or dislikes, opinions,
12
prejudices, or sympathy. That means that you must decide the case solely on the evidence before
13
you. You will recall that you took an oath to do so.
14
15
In following my instructions, you must follow all of them and not single out some and
ignore others; they are all important.
16
17
18
19
20
21
22
23
24
25
26
27
28
1
1
2
Final Instruction No. 2
WHAT IS EVIDENCE
3
The evidence you are to consider in deciding what the facts are consists of three things:
4
1. the sworn testimony of any witness;
5
2. the exhibits which are received into evidence; and
6
3. any facts to which the lawyers and parties have agreed or stipulated to.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
1
2
Final Instruction No. 3
WHAT IS NOT EVIDENCE
3
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:
6
(1) Arguments and statements by lawyers are not evidence. The lawyers are not
7
witnesses. What they have said in their opening statements, and their closing arguments,
8
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.
11
(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.
13
You should not be influenced by the objection or by the court’s ruling on it.
14
(3) Testimony that has been excluded or stricken, or that you have been instructed to
15
disregard, is not evidence and must not be considered. In addition, sometimes testimony
16
and exhibits are received only for a limited purpose; when I have given a limiting
17
instruction, you must follow it.
18
(4) Anything you may have seen or heard when the court was not in session is not
19
evidence. You are to decide the case solely on the evidence received at the trial.
20
21
22
23
24
25
26
27
28
3
1
Final Instruction No. 4
2
3
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
6
consider both kinds of evidence. The law makes no distinction between the weight to be given to
7
either direct or circumstantial evidence. It is for you to decide how much weight to give to any
8
evidence.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
1
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
3
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
6
it.
7
In considering the testimony of any witness, you may take into account the following:
8
(1) the opportunity and ability of the witness to see or hear or know the things testified to;
9
(2) the witness’s memory;
10
(3) the witness’s manner while testifying;
11
(4) the witness’s interest in the outcome of the case and any bias or prejudice;
12
(5) whether other evidence contradicted the witness's testimony;
13
(6) the reasonableness of the witness’s testimony in light of all the evidence; and
14
(7) any other factors that bear on believability.
15
16
The weight of the evidence as to a fact does not necessarily depend on the number of
witnesses who testify about it.
17
18
19
20
21
22
23
24
25
26
27
28
5
1
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,
6
including that the redacted information is unrelated to the evidence in the case, that the Court has
7
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
9
examples. You may give the un-redacted information in any document whatever weight you
10
choose, and you are not to consider any characterizations of the fact or existence of a redaction in
11
any document, including by counsel.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
1
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
4
against TomorrowNow, SAP AG, and SAP America. As reflected in the stipulations between
5
the Parties contained in your juror 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
7
vicariously and contributorily liable for that copyright infringement.
8
9
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
10
based on the instructions I will give you regarding the law on copyright infringement, and the
11
damages you may award based on the agreed copyright infringement in this case.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
1
Final Instruction No. 8
COPYRIGHT—DEFINED
2
A copyright is the exclusive right to copy. This right to copy includes the exclusive
3
4
rights to:
5
1)
reproduce the copyrighted work;
6
2)
prepare derivative works based upon the copyrighted work by adapting or
transforming it; and
7
3)
8
distribute copies of either the copyrighted work or any unauthorized derivative
work; and
9
4)
10
display publicly a copy of either the copyrighted work or any unauthorized
derivative work.
11
It is the owner of a copyright who may exercise these exclusive rights. The “owner”
12
13
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
16
may enforce these rights to exclude others in an action for copyright infringement. Even though
17
one may acquire a copy of the copyrighted work, the copyright owner retains certain rights and
18
control of that copy, including uses that may result in additional copies or alterations of the
19
work.
20
21
22
23
24
25
26
27
28
8
1
Final Instruction No. 9
2
COPYRIGHT—STIPULATED DIRECT INFRINGEMENT
3
The parties have entered into several stipulations of liability and facts. These stipulations
4
are now Orders of the Court. The stipulations have been referred to by the Parties throughout
5
this trial and entered into evidence labeled JTX 0001 through 0005. They also can be found in
6
your jury notebook and are referenced in the Table of Contents as Numbers 2 through 6. In these
7
stipulations, Defendants have admitted that TomorrowNow is directly liable to Oracle for all of
8
Oracle’s claims for direct copyright infringement of all 120 Oracle, PeopleSoft, J.D. Edwards
9
and Siebel copyrights listed in Attachment A to Trial Stipulation No. 3. Trial Stipulation No. 3
10
also contains counts of the “minimum numbers” of infringing copies and downloads made by
11
TomorrowNow. Defendants have also admitted that SAP AG and SAP America are
12
contributorily and vicariously liable for all of TomorrowNow’s copyright infringement. You
13
should therefore treat all of Oracle’s copyright infringement claims as having been proved.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
1
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 infringement
5
based on principles of vicarious liability. By agreeing to vicarious liability, SAP AG and SAP
6
America agreed that:
7
1)
8
9
10
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.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
1
2
3
Final Instruction No. 11
SECONDARY LIABILITY—STIPULATED CONTRIBUTORY INFRINGEMENT
SAP AG and SAP America also agree they are liable for all of TomorrowNow’s
4
infringement based on principles of contributory infringement. By agreeing to contributory
5
infringement, SAP AG and SAP America agreed that:
6
1)
7
8
9
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.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
1
Final Instruction No. 12
2
COPYRIGHT DAMAGES—INTRODUCTION
3
As a result of Defendants’ infringement, Oracle is entitled to recover both its actual
4
damages in the form of its own lost profits, as well all profits Defendants earned that are
5
attributable to the infringement and not taken into account in computing Oracle’s lost profits. I
6
will now instruct you about the calculation of Oracle’s lost profits and Defendants’ profits.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
1
2
3
Final Instruction No. 13
COPYRIGHT DAMAGES—ACTUAL DAMAGES
Oracle is entitled to recover the actual damages it suffered as a result of the infringement
4
Defendants have admitted. For the purposes of this case, actual damages means the profits
5
Oracle lost because of the infringement Defendants have admitted. Lost profits are the revenue
6
Oracle would have made in the absence of the infringement, less any additional expenses it
7
would have incurred in generating that revenue.
8
9
In determining actual damages, you must consider the entire scope of Defendants’
infringement, as reflected in the five stipulations in your jury notebook. Oracle must prove its
10
actual damages by a preponderance of the evidence. While there is no precise formula for
11
determining actual damages, your award must be based on evidence, not on speculation,
12
guesswork, or conjecture. Determining actual damages may involve some uncertainty, and
13
Oracle is not required to establish its actual damages with precision.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
1
2
Final Instruction No. 13
COPYRIGHT DAMAGES—ACTUAL DAMAGES
3
Oracle is entitled to recover the actual damages it suffered as a result of the
4
infringement. For the purposes of this case, actual damages means the profits Oracle lost
5
because of the infringement to which Defendants have stipulated. Lost profits are the revenue
6
Oracle would have made in the absence of the infringement, less any additional expenses it
7
would have incurred in generating that revenue.
8
9
Oracle must prove damages by a preponderance of the evidence. While there is no
precise formula for determining actual damages, your award must be based on evidence, not on
10
speculation, guesswork, or conjecture. Determining actual damages may involve some
11
uncertainty, and Oracle is not required to establish its actual damages with precision.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
1
2
Final Instruction No. 14
COPYRIGHT DAMAGES—INFRINGERS’ PROFITS
3
In addition to calculating Oracle's actual damages, you must also determine the amount
4
of profits made by any defendant that are attributable to the stipulated infringement. You may
5
not include in an award of Defendants' profits any amount that you already took into account in
6
determining lost profits.
7
Recoverable profits may be directly or indirectly related to the infringement.
8
You may make an award of Defendants' indirect profits only if you find that Oracle
9
showed a causal relationship between the infringement and the gross revenues generated
10
indirectly from the infringement. Defendants' gross revenue is all of Defendants' receipts
11
associated with the stipulated infringement. Oracle has the burden of proving Defendants' gross
12
revenue by a preponderance of the evidence.
13
Defendants' profits are determined by subtracting operating costs, overhead costs, and
14
production costs incurred in producing Defendants' gross revenue. Defendants have the burden
15
of proving their expenses by a preponderance of the evidence. Insofar as Defendants seek to
16
deduct indirect costs like overhead expenses, they must show these expenses assisted in the
17
production, distribution or sale of infringing products. If you find that Defendants' infringement
18
was willful, then you should give extra scrutiny to the categories of overhead expenses claimed
19
by the infringer to ensure that each category is directly and validly connected to the production,
20
distribution or sale of infringing products. Any doubt as to the computation of costs or profits is
21
to be resolved in favor of Oracle.
22
Unless you find that a portion of the profit from the use of the copyrighted works is
23
attributable to factors other than use of the copyrighted works, all of the profit is to be attributed
24
to the infringement. Defendants have the burden of proving the portion of the profit, if any,
25
attributable to factors other than infringing the copyrighted works.
26
27
28
15
1
2
Final Instruction No. 14
COPYRIGHT DAMAGES—INFRINGERS’ PROFITS
3
In addition to calculating Oracle’s actual damages, you must also determine the amount
4
of profits made by any defendant that are attributable to the stipulated infringement. You may
5
not include in an award of Defendants’ profits any amount that you already took into account in
6
determining lost profits.
7
You may make an award of Defendants’ profits only if you find that Oracle showed a
8
causal relationship between the infringement and the profits generated indirectly from the
9
infringement. Defendants’ gross revenue is all of Defendants’ receipts associated with the
10
stipulated infringement. Oracle has the burden of proving Defendants’ gross revenue by a
11
preponderance of the evidence.
12
Defendants’ profits are determined by subtracting operating costs, overhead costs, and
13
production costs incurred in producing Defendants’ gross revenue. Defendants have the burden
14
of proving their expenses by a preponderance of the evidence.
15
Unless you find that a portion of the profit from the use of the copyrighted works is
16
attributable to factors other than use of the copyrighted works, all of the profit is to be attributed
17
to the infringement. Defendants have the burden of proving the portion of the profit, if any,
18
attributable to factors other than infringing the copyrighted works.
19
20
In calculating lost profits and infringer’s profits, you may not award any damages for the
purposes of punishment or deterrence.
21
22
23
24
25
26
27
28
16
1
2
3
4
Final Instruction No. 15
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.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
1
Final Instruction No. 16
2
3
DUTY TO DELIBERATE
When you begin your deliberations, you should elect one member of the jury as your
4
presiding juror. That person will preside over the deliberations and speak for you here in court.
5
You will then discuss the case with your fellow jurors to reach agreement if you can do
6
so. Your verdict must be unanimous.
7
Each of you must decide the case for yourself, but you should do so only after you have
8
considered all of the evidence, discussed it fully with the other jurors, and listened to the views
9
of your fellow jurors.
10
11
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.
12
It is important that you attempt to reach a unanimous verdict but, of course, only if each
13
of you can do so after having made your own conscientious decision. Do not change an honest
14
belief about the weight and effect of the evidence simply to reach a verdict.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18
1
Final Instruction No. 17
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.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
1
2
3
Final Instruction No. 18
COMMUNICATION WITH COURT
If it becomes necessary during your deliberations to communicate with me, you may send
4
a note through the bailiff, signed by your presiding juror or by one or more members of the jury.
5
No member of the jury should ever attempt to communicate with me except by a signed writing;
6
I will communicate with any member of the jury on anything concerning the case only in
7
writing, or here in open court. If you send out a question, I will consult with the parties before
8
answering it, which may take some time. You may continue your deliberations while waiting for
9
the answer to any question. Remember that you are not to tell anyone—including me—how the
10
jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have
11
been discharged. Do not disclose any vote count in any note to the court.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20
1
2
Final Instruction No. 19
RETURN OF VERDICT
3
A verdict form has been prepared for you. After you have reached unanimous agreement
4
on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it,
5
and advise the court that you are ready to return to the courtroom.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?