Oracle USA, Inc. v. SAP AG, 2010 WL 334446 (N.D. Cal. 2009)

Oracle brought a copyright infringement suit against SAP seeking, among other things, actual damages. Title 17 Section 504 of the Copyright Act provides that a plaintiff may recover either statutory damages, or “the actual damages suffered by [the copyright owner] as a result of the infringement” and “any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” The Ninth Circuit, the Court noted, uses a fair market value retroactive license fee as one measure of actual damages.

SAP moved for a summary judgment ruling that Oracle could not pursue damages  in the form of a hypothetical license. SAP argued that, if it were not for the infringement, the arch-rivals would not have entered into a licensing agreement. The Northern District of California (Hamilton, J.) denied SAP’s motion, and allowed Oracle to present evidence regarding the market value of the license. Stated the Court, “The question is not what Oracle would have charged for a license, but what is the fair market value.”