9th Circuit Parses Claim of ‘Madden’ Code Theft

     (CN) – A Ninth Circuit panel grilled attorneys for a game programmer who claimed Electronic Arts stole his code to make new “Madden NFL” games in the early 1990s.
     Robin Antonick, a programmer and former college football player, designed the earliest versions of the popular “Madden NFL” video games for EA.
     Antonick claimed in 2011 that EA first contracted with him in 1983 to design a football game, and that he designed three versions of “John Madden Football” for the Apple II, Commodore C64 and IBM computers that were released in the late 1980s.
     EA developed a new version of the Madden game for the Sega Genesis gaming system in 1990, however, and did not hire Antonick to work on it.
     Antonick said an EA employee assured him that the new game “was being developed without any reference or use of his intellectual property.”
     Although he knew that EA released new editions of the Madden games every year, Antonick said he began to suspect that the company “continued to create derivative works from his work” in 2009, following the publicity around the 20th anniversary of the Madden games.
     A jury found that the Sega version of the Madden game was a derivative work of the Apple II version and that EA should pay Antonick royalties.
     Then, six month later, U.S. District Judge Charles Breyer granted EA judgment as a matter of law because there was no evidence that the Sega game was “virtually identical” to the Apple II version.
     Antonick appealed to the Ninth Circuit, and this week a three-judge panel heard arguments about why EA owes the programmer royalties.
     Much of the debate dialogue involved the statute of limitations and when, specifically, Antonick was put on notice that his code might have been copied.
     At one point, U.S. Circuit Judge Michael Hurwitz noted that the evidence was “pretty thin gruel.”
     “It seems inconceivable that a game developer would not notice that his game had been copied until many years later when there was an anniversary special,” U.S. Circuit Judge Andrew Kleinfeld said to Antonick’s attorney, Stuart Paynter. “You’d think he’d be playing football games.”
     Paynter responded that he hadn’t played the games, and even if he had, one can’t tell the source code just by playing the game.
     Hurwitz seemed puzzled as to why Antonick wouldn’t find a way to disassemble the game to figure out the code. “If you have a big economic interest, one would think you would,” the judge said.
     Paynter’s arguments were frequently interrupted by Hurwitz and Kleinfeld, as they attempted to figure out the timeline of events, and whether Antonick’s knowledge of the alleged infringement would put the case outside the statute of limitations.
     “I can’t imagine a guy who was the leading man on a football game not disassembling another football game,” Kleinfeld said. “Was that not available to him?”
     Paynter said the Sega cartridge was complex, but there was nothing on the record suggesting that Antonick did or could have disassembled the game.
     Having used all his allotted time, Paynter stepped down and attorney David Nimmer argued for Antonick.
     “You’re a victim of the continued inadvisability of splitting oral arguments, which people never learn,” Hurwitz told Nimmer, to laughs on the panel.
     “Lesson learned for the future,” Nimmer replied with a smile.
     Nimmer attempted to raise the issue of copyright protections for game programmers, but judges on the panel again raised the issue of when Antonick was put on notice.
     “If I design code and six months later something comes out that’s virtually identical, would that put me on notice to check about whether my code was used?” Hurwitz asked.
     Judge Kleinfeld noted that “football is going to look like football” in a game setting, and if a programmer sees an aspect of the game that looked difficult to code, he would look into it.
     Nimmer said he respectfully disagreed because the 1990 Madden game “had an entirely different visual look.”
     “It would look like a television broadcast of a football game,” Nimmer said.
     The attorney also argued that expert testimony from someone who knows computer software would be needed to tell differences between source code, and that a jury could make an intrinsic finding from that testimony.
     U.S. Circuit Judge Johnnie Rawlinson told Nimmer the appellant counsel’s side had gone 11 minutes over the limit, and brought up the opposing counsel.
     “This is a copyright case in which none of the works at issue were ever entered into evidence or displayed to the jury,” attorney Eric MacMichael argued on behalf of EA.
     MacMichael noted that the jury did see some testimony about the width of the fields in the two games, and on that issue the jury “found no substantial similarity.”
     Hurwitz again raised the question of statute of limitations, and tried to parse the jury instruction about when Antonick knew of the alleged copying versus when “a reasonable person” would have known.
     MacMichael said he knew when the new Madden game was coming out.
     “What did that tell him about possible infringement?” Rawlinson asked.
     MacMichael also argued that “something caused” Antonick to go out and investigate the alleged copying in 2009, when he claimed he was first put on notice.
     “Anybody can go online and learn a new fact 20 years later,” MacMichael said. “That’s not the standard.”
     “I would submit that this case is a very, very poor vehicle for the creation of new law,” MacMichael said. “Under any standard, Mr. Antonick failed to meet his burden of proof and his claims fail as a matter of law.”
     “A copyright plaintiff cannot prove that one work infringes another under any standard unless the works are in evidence then displayed to the jury, so the jury and the court can make a comparison,” he continued.

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