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HPE says $30m Solaris verdict against it didn't provide 'evidence' of copyright

Alleges Oracle did not register the patches it claims were infringed

Hewlett Packard Enterprise has come out swinging two months after a $30 million verdict against it in a long-running case, saying claims by Oracle it directly infringed copyrights in the Solaris OS are not backed by enough evidence.

In a motion filed on July 29 [PDF], HPE alleged the evidence provided by Oracle to prove it provided customers with software updates for the proprietary Unix operating system (originally developed by Sun Microsystems) without Big Red's permission did not "support a finding that any purportedly installed patch is copyrighted."

HPE is saying Oracle failed to prove any of the patches and updates in question "are covered by valid registrations," meaning they wouldn't be protected by copyright. It claimed this "warrants judgment on all of Oracle's copyright claims." Failing this, HPE said it should be given a new trial.

It said in the filing:

There is no dispute Oracle did not register the patches it claims were infringed. Oracle witnesses testified code from the patches was later incorporated into versions of Solaris or firmware that were registered, but that is insufficient because previously published code cannot be registered in a later computer program.

It also went on to claim that Oracle couldn't prove HPE had the right or ability to control software support provider Terix's "purported infringement" to justify a claim for vicarious infringement. Terix is a managed IT services provider alleged to have provided unlicensed Oracle support by getting Solaris patches from Oracle's customer support website and using them to service their own support customers.

Back in June, following a three-week trial, a jury found that HPE should pay Oracle $30 million for copyright infringement after a jury found it guilty of providing customers with Solaris software updates under a plan devised by Terix.

The jury, whose verdict was unanimous, also found [PDF] that HPE vicariously infringed Oracle's copyrights as well as intentionally interfering with Oracle's customers.

Terix, for its part, was sued by Oracle in 2013, with Big Red saying the firm had violated copyright by providing "allegedly improper installations of Solaris patches onto servers not covered under a support contract." The software support slinger settled that case in 2015 for almost $58 million.

The July 29 filing is the latest salvo in the 2016 copyright infringement case Oracle brought against HPE related to the patches supplied to Solaris customers.

Also on Friday, Oracle filed a motion [PDF] asking the court for a permanent injunction against "any copying, distribution, or use of Oracle's Solaris software, firmware or support materials, whether by HPE or any others under HPE's supervision and control, except as allowed by Oracle."

We've asked Oracle and HPE for comment. ®

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