Appeals Court Dumps Infringement Lawsuit Against EA After Plaintiff Fails To Produce Evidence

from the well,-I-have-lots-of-hearsay-and-conjecture... dept

The Ninth Circuit Court of Appeals has affirmed [PDF] the dismissal of a copyright infringement suit brought against Electronic Arts by Robin Antonick, a programmer who worked on the Apple II version of the game Madden back in the mid-80s.

Antonick was locked out of royalties for other versions of the game by the software company, but alleged Electronic Arts did nothing more than copy his code when porting it to other platforms -- creating a "derivative work" that he was supposedly entitled to collect royalties on. Antonick might have had a case. But while allegations are nice…

In 2011, Antonick brought this diversity action against EA, seeking contract damages in the form of unpaid royalties for Sega Madden and Super Nintendo Madden. [...] Antonick produced evidence that Park Place was rushed and inadequately staffed, and argued that it copied his code to meet the demanding deadline for the first Sega Madden. Antonick’s expert, Michael Barr, opined that Sega Madden was substantially similar to certain elements of Apple II Madden. In particular, Barr opined that the games had similar formations, plays, play numberings, and player ratings; a similar, disproportionately wide field; a similar eight-point directional system; and similar variable names, including variables that misspelled “scrimmage.”

…evidence is better.

But neither the source code for Apple II Madden—the “Work”— nor the source code of any allegedly infringing works were introduced into evidence. Nor were images of the games at issue introduced.

Not that evidence (or a lack thereof) apparently mattered to the jury. It found that EA had created a derivative work with its Sega version of Madden, but the court found (post-verdict) that Antonick had not produced any evidence clearly pointing to copyright infringement. Without that evidence, Antonick is out of luck when it comes to his contract/royalty claims.

Antonick tried to route around this obstacle by claiming EA had both the opportunity and the motive to copy his work. On top of that, he tried to pursue this as a "look and feel" case while still relying on the supposedly-copied code as the basis for his claims. The Ninth Circuit found these arguments -- and Antonick's witness -- unpersuasive.

[T]he lay testimony was about how the games appeared, not how they were coded—and Antonick does not assert a copyright interest in Apple II Madden’s audiovisual appearance, only in its coding.

Antonick argues that copying was shown by testimony of Michael Kawahara, an Apple II Madden assistant producer. When asked whether he recognized any of the plays in Sega Madden from Apple II Madden, Kawahara answered affirmatively, stating that “[it] was – well, since the interface was – well, it was the same as we used in the Apple II. It was very easy to look at all of the plays in the Genesis version and they looked identical . . . to the original Apple II version.” This comment, however, does not establish that the source code for the two games were substantially similar. Kawahara had no programming responsibilities for Apple II Madden; did not understand the Apple II Madden code; did not see the Sega Madden code; and admitted that he had no knowledge about differences in the games’ codes.

A statement entered into evidence by the plaintiff -- introduced to back up Antonick's claim about EA's motive/opportunity to copy the source code -- only made the case weaker.

Antonick also cites a statement by Richard Hilleman, an EA representative, that it was “possible” he had told an interviewer that “the Sega game took the system’s approach from Mr. Antonick’s game and just simply put a different aesthetic on top of it.”

This is an area that often trips up those deeply reliant on IP protections but surprisingly uninformed about what those protections actually cover. The Appeals Court straightens out this popular misconception.

But, an “approach” is an idea that cannot be copyrighted—only its expression in code is protectable—and Sega Madden could have used Apple II Madden’s “approach” to football video games without violating the copyright laws.

That's the minor failure of the suit -- mistaking ideas for expression. The ultimate failure is Antonick's inability to back up his assertions with actual evidence. Infringement claims with no evidence presented pushed Antonick into resorting to "look and feel" claims, which are notoriously difficult to turn into courtroom victories.


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  • identicon
    Michael, 2 Dec 2016 @ 4:44am

    "Not that evidence (or a lack thereof) apparently mattered to the jury. It found that EA had created a derivative work with its Sega version of Madden"

    Great job jury.

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 2 Dec 2016 @ 5:23am

    "The ultimate failure is Antonick's inability to back up his assertions with actual evidence"

    Partly. I'd argue the actual failure is the creation of a system that's convinced people they deserve to get rich off work they did decades ago just because someone else has made money. It's nice to see the likes of EA being attacked with the same weapon they wield, but the courts reached a sensible decision here for once.

    Out of curiosity, does anyone know why Antonick waited until 2011 to sue over games released in the mid 90s (according to the complaint the games in question were from 92 - 96)? Obviously it's some variation of "my contract only covers the PC game but I want some of that sweet console cash", but I wonder if he's stated what his view supposedly is.

    reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 2 Dec 2016 @ 5:27am

    I'm a bit confused.

    This sounds like a specific enough set of information to get discovery. Perhaps quite limited discovery, narrowly tailored to the source code or configuration identified as similar and thus might be copied.

    That discovery should basically settle the case.

    Either there was obvious copying, which should result in a settlement negotiation. Or there was no obvious copying, and there might be quibble over similarity that probably shouldn't end up in a full trail.

    reply to this | link to this | view in chronology ]

    • icon
      Ben (profile), 2 Dec 2016 @ 6:34am

      Re:

      My original thought, exactly. Then I considered how likely it is that anyone saved the Apple II code with enough provenance to be able to use it in court. I guess discovery would have found that out.

      This just has all the earmarks of a cash grab -- which almost worked.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2016 @ 6:16am

    Wow, two versions of the same game used identical plays! What next, two NFL teams calling the same plays in a game on Sunday? Plaintiff is a moron. Even if he's in a hurry, he should realize that. Unless he can prove they lifted his code, word for word, he doesn't have a case. And as they were coded for different platforms, that isn't likely. Now if another game came out on the same platform, it might be possible, but that's not the case here.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2016 @ 8:24am

    How much do you have to fuck up to lose to EA on a legal and moral perspective?

    As this knucklehead demonstrates, a lot.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2016 @ 9:25am

    "including variables that misspelled “scrimmage.”".
    I do work with a lot of scripts and if you have two different jobs that have variables that are misspelled the same. It is likely a copy paste job. I actually have a text document of useful scripts I created and collected over the years that I will copy paste from. So I do believe he is probably right, but he needs to be able to prove it with producing the evidence.

    reply to this | link to this | view in chronology ]

  • identicon
    In BirminghaM, 5 Dec 2016 @ 2:46am

    Lack of source code

    "nor the source code of any allegedly infringing works were introduced into evidence."

    Didn't some scofflaws from Santa Cruz, who got bitten by a tarantula and kept changing their names, try this? I believe their current greatest supporter is a Java Virtual Machine.

    reply to this | link to this | view in chronology ]


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