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A California federal judge has given Electronic Arts some relief from a bold lawsuit by Robin Antonick, who first developed a prototype for Madden NFL, the computer- and video game that has sold more than 100 million copies and earned more than $4 billion in revenue over the years.
Antonick sued in 2011 alleging that EA had breached a development contract he signed in 1986 that entitled him to royalties on derivative versions of the Madden game. The lawsuit explored innovative copyright issues like whether it’s possible to protect the design of football plays. A judge allowed the case to go to trial with the caveat that things like “field width” and “plays and formations” as expressed visually via computer code were entitled to thin, rather than broad, protection.
Nevertheless, Antonick was able to get to trial, and last summer, he prevailed. The jury determined first that he had filed a lawsuit soon enough, and second that EA had copied his work. The jury awarded $11 million in damages for video games created before 1996 with a later trial to determine liability for video games created later.
But EA has now managed to reverse the verdict and wipe out the $11 million award.
On Wednesday, U.S. District Judge Charles Breyer determined that EA was entitled to a judgment as a matter of law after having reviewed the trial record. Here’s the full ruling.
Antonick proved at trial that there were substantial similarities with respect to the expression of his source code of “plays and formations,” but the judge added that not all copying of protected expression amounts to copyright infringement. To determine that, the judge saw the necessity of comparing the works as a whole to determine whether they were sufficiently similar to support a finding of illicit copying.
But Judge Breyer says there was no evidence for a reasonable juror to conclude that “Apple II Madden and any of the seven Sega Madden games are virtually identical when compared as a whole. Consequently, Antonick did not prove any of the Sega Madden games are infringing works.”
In coming to this conclusion, the judge weighed how to determine what’s “virtually identical” and took Antonick’s arguments that a jury take a qualitative rather than quantitative evaluation of similarities. Still, that wasn’t enough. Besides an expert that testified that the games were “essentially the same,” the judge faulted the plaintiffs for not offering the jury the opportunity to subjectively compare each of the Sega games as a whole to Antonick’s original Apple II game.
One might interpret this as a suggestion that the jury should have had the pleasure of playing those video games.
The judge left open the possibility of a new trial, but the most exciting action in this dispute might occur next at an appeals court.
Reached for comment, Robert Carey, Antonick’s attorney, said his side was now exploring whether to pursue a new trial — including over those later games — or whether to head directly to the 9th Circuit. In other words, it seems only to be a matter of when, not if, this gets to appeal.
Once there, Antonick will be asking a higher authority to address how the judge dismissed some of his earlier claims. Among Antonick’s theories previously rejected by the judge was a contract breach on the basis of EA’s alleged theft of a football playbook. Yes, about a week before Super Bowl XLVIII, the stage is set for an argument that football plays are indeed protectable.
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