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Decision, EA: Judge Reverses Multimillion Dollar Award To Madden Dev
The San Francisco Chronicle reports that "A federal judge overturned a jury's multimillion-dollar damage award to the programmer of the original John Madden Football video game on Wednesday, saying there was no evidence that his work was copied for seven years, without credit, by the marketer of later versions of the hugely successful game. The ruling by U.S. District Judge Charles Breyer of San Francisco spared Electronic Arts Inc. from nearly $4 million in damages, plus interest that could have exceeded $7 million. The jury verdict also could have led to larger damages against the company for later versions of the game, which reaped billions of dollars in revenues, if future juries found that those, too, had been lifted from the work of programmer Robin Antonick." Also at Kotaku.
C'mon it's not that big of deal, no need to call her down to the basement at this hour.
What a mess they are, and always will be.
Like the one between Software Arts and Visicorp over Visicalc.
The judge is not a jury. It's a district judge who is reversing the decision, not another, equal jury.
The irreconcilable difference between those who promise they will create that which they can, and those who promise what will be created that which cannot actually exist.
Support the EFF and Creative Commons. The war is coming, and they're supporting you...
Bribes are so easy nowadays.
Judges rule on matters of law, juries on facts of the case. If it's overturned by a judge, that means there was some legal problem with the first trial.
Learn to love Alaska
Judges rule on matters of law, juries on facts of the case. If it's overturned by a judge, that means there was some legal problem with the first trial.
In this case, the jury made a finding, that the Judge ruled the jury could not reasonably have made.
The Jury was claiming finding the later editions of the game to be nearly identical ------ without the jury having been presented for side-by-side comparison as evidence
here's a link to the decision.
http://pdfserver.amlaw.com/ca/...
The part relevant to the discussion here starts on PDF page 8, line 26.
It appears that the developer's attorneys presented an expert witness who provided an opinion regarding the similarity of the games. However, they did not actually demonstrate the games to the jury, which would have allowed the jury to make a subjective determination for itself. The judge ruled that because the jury never actually saw the games, they did not have enough information to rule that the games were similar.
Anyway, the attorneys better hope they win on appeal or figure out how to settle (perhaps for no fee) --- otherwise, the developer's next lawsuit is one for malpractice.
What changed under Obama? Nothing Good
the CIA has owned TOR since it's inception. your point?
Patents and Copyrights are for rich companies....not people.
As an afterthought, perhaps the developer's attorneys knew their suit wouldn't stand up to a side by side comparison, informed their client that their only chance was to wing it with an expert (dime a dozen at $1000/hr), and hope for the best. In that case, the attorneys are home free. But ... that seems pretty far fetched.
What changed under Obama? Nothing Good
What a mess they are, and always will be.
It seems to be more like a dispute between developer and employer.
EA owned the rights to the game; they had signed with the programmer, an agreement for the developer to be compensated by royalties for the first edition.
For the second/third/later years editions, they claimed to have paid a team of developers to rewrite the software from scratch, so they could get out of having to pay royalties for future versions.
I'm sure from EA's point of view --- the millions of dollars in sales of later editions of the game were not attributable to the work of the programmer of the first edition or any individual software developer, but the valuable brand name they developed for their company and the product in partnership with Madden, and EA's fan base.
Antonick will appeal the ruling, his lawyers said. "The evidence showed they used his source code without permission," said attorney Robert Carey.
And so it's overturned, but will be appeled.
I think I'm going to trust the little guy getting screwed on this one.
That sounds like a bad ruling. If the expert was right, then the jury was right. If the expert was wrong, then the defense should have shown them side-by-side to show the differences. Either way, the subsequent judges shouldn't be ruling on the facts unless the defense tried to compare the games, but the lower judge improperly excluded it.
A read of the opinion you linked to, and I think the appeal was wrong. The appellant judge should have ruled that the expert opinion on the similarity of the games be inadmissable, and return the case to the lower court for a re-hearing. Given the testimony (allowed at the time) that the games were identical, and without anything to contradict it, the jury ruled they were identical. Overturning the entire case because one piece of testimony was given improperly should result in a re-trial, not an overturn. If the plaintiff were told that witness was excluded for that reason, he could have proven his point another way. That the lower court made an error in allowing it doesn't change the facts.
Learn to love Alaska
" they had signed with the programmer, an agreement for the developer to be compensated by royalties for the first edition and any derivative works"
...."it depends on what your definition of 'is' is..."
FTFY
The fact that a jury already found his claim valid, and he is only asking for compensation from the first few editions of Madden (not all versions up to current gen), makes me think he probably is due compensation.
But, you now how lawyers are. I am sure the EA lawyers can prove that the sky is green.
If the expert was wrong, then the defense should have shown them side-by-side to show the differences.
This. After reading the judge's ruling, I'm convinced it has more to do with the brand-new swimming pool in his backyard with an EA logo on the bottom than anything to do with the facts of the case...
Did the entire US legal system not think of diff'ing the versions? I mean, EA might pretend to have lost the source code, but you can still check out the binaries.
That sounds like a bad ruling. If the expert was right, then the jury was right. If the expert was wrong, then the defense should have shown them side-by-side to show the differences.
The defense does not have to provide any evidence (unless they make claims of their own). It is always up to the party who initiates the lawsuit to either prove without reasonable doubt (in criminal law) or to show preponderance of evidence (civil law).
When a defendant has deeper pockets than the other party, it can be a good trial strategy to suffer in silence in front of a jury then have the case reviewed on appeal. On one hand cooler heads prevail (jurors often feel for the smaller guy) and also there is always the chance that the other party will run out of money and give up. Being a civil case this is fair game.
lucm, indeed.
wow, thx for the link about some of the history about Visicalc! Didn't realize Mitch Kapor wrote VisiPlot and Visitrend, then left to found Lotus (of Lotus 123 fame)
It is not up to the defense to prove they didn't copy. It is up to the plaintiff to prove that they did.
When the plaintiff bungles, don't expect the defendant in an adversarial system to set up the correct test to save the plaintiff's behind. Instead, expect the defense to file motions claiming that the plaintiff bungled it. As happened here.
IANAL, and since your advice is so awful, you should probably disclaim it too ;)
Why don't they just look at the source code of the two versions? It should be obvious whether it was copied. Maybe the lawyers don't make enough money of they use common sense.
After reading the judge's ruling, I'm convinced it has more to do with the brand-new swimming pool in his backyard with an EA logo on the bottom than anything to do with the facts of the case...
Your comment is meaningless since it has no connection to reality or any of that actual facts of the case.
True, the judge may be "wrong". But you are suggesting a "payoff", which is extreamly unlikly.
If you want news from today, you have to come back tomorrow.
If the code itself is a derivative work is different than if the story or art are derivatives. It is actually rather hyper-technical, it is not enough to just say it is a sequel so it is a derivative.
I'm too lazy to plow through the ruling. But, wondering, did the plaintiff's side try or wish to present the actual games to the jury? Did the original trial judge not allow that? Pure speculation by me on those issues.
Also, did the defendant side object or make any presentation of fact or opinion to the jury that the games were not the same? IANAL, but I do watch Perry Mason a lot. If the defendants did not raise any objection or present contrary evidence that the games were not the same, did they lose their chance on this issue, legally?
I disagree on this one.
Let's take a car analogy.
If I bring suit because you hit my car and drove off, then bring a witness who says you hit my car and drove off, and you do jack+shit in the case only to claim in a post-verdict motion that I didn't provide photographs of my car in support of my case, you will get laughed out of court.
Unless you're EA. The judge may have thought that the judgement was high, but a jury found that the preponderance of the evidence supported the plaintiff's claim. Remember, that burden is a greater than 50% chance that the plaintiff's claim is true. Sure, showing the games might help show that, but an expert witness who has made a deep inspection of the games in question can determine if the underlying mechanics of scoring, play selection, and player rating are derivative, without getting bamboozled by 16-bit graphics.
In this case, the staggering move is the absolute lack of source code. Sheesh, people. Just subpoena the source. Oh, it's not available? How about expert analysis determining the algorithmic similarity? Oh, surprise, here we are.
We need more judges who want to learn to code. The rest should sit the fuck back and stop screwing things up.
Did you actually read the decision? Because this was not the result of an appeal. That is yet to come. This was a decision by the trial judge.
The real "Libtards" are the Libertarians!
The Jury was claiming finding the later editions of the game to be nearly identical ------ without the jury having been presented for side-by-side comparison as evidence
How is this the fault of the jury, rather than the fault of the defense team?
It's good to see that if I've got enough cash and I ever break the law, all I need to do is refuse to show an "expert witness" is wrong - it's far easier to just find a convenient judge to rule that since I didn't present any evidence, they jury's verdict should be overturned. *facepalm*
[...] also there is always the chance that the other party will run out of money and give up. Being a civil case this is fair game.
No, as always, a "deep pockets" win is not a fair game, it is dirty pool.
Sure, showing the games might help show that, but an expert witness who has made a deep inspection of the games in question can determine if the underlying mechanics of scoring, play selection, and player rating are derivative, without getting bamboozled by 16-bit graphics. In this case, the staggering move is the absolute lack of source code. Sheesh, people. Just subpoena the source. Oh, it's not available? How about expert analysis determining the algorithmic similarity?
I think if we were talking about Zelda or Metroid, your point would be spot on. In this case it's a sports game. Aside from various year-to-year rule changes and some evolution of tactics, the game has remained unchanged for a hundred years and "underlying mechanics of scoring, play selection, and player rating" are going to highly similar no matter what developers built it.
Cross the goal line with the ball? That's six points. Kick it through the uprights? That's three points. Do the latter immediately after the former? That's one point. Metrics for rating a running back? Speed, agility, strength, hands, blocking, injury, jumping, intelligence. Method for selecting a play? Choose a formation, choose run or pass, choose play. I mean most of the elements of Madden for years were always the same, and I fail to see how getting an "expert opinion" on trivial algorithms would prove to show any different no matter if they were written by the same person or not.
Someone flopped a steamer in the gene pool.
And you know that it is "extreamly unlikly" how? Federal judges are not above reproach, and I feel pretty sure that you didn't perform a thorough background check of this particular judge before making this assertion. In fact, of the two parties potentially involved in the alleged payoff, only EAs reputation is known well enough by everyone here to make off-the-cuff comments regarding said reputation.
So, while I would not say that it's a certainty by any means, there is definitely a not-insignificant chance of some less-than-upstanding behavior having taken place, given what we know about the parties involved.
Then why did the judge wait until after the jury returned a verdict he didn't agree with before speaking up? He should have instructed the jury that taking the expert at his word is insufficient if that's what he's claiming now.
It appears that the developer's attorneys presented an expert witness who provided an opinion regarding the similarity of the games. However, they did not actually demonstrate the games to the jury, which would have allowed the jury to make a subjective determination for itself. The judge ruled that because the jury never actually saw the games, they did not have enough information to rule that the games were similar.
Wouldn't that fall on EA to counter by showing the game? And then again the Judge/s in the original case probably excluded it from evidence figuring he would miss his golf game or whatever these idiots do, the same with female judges.
And a question for the lower judges!! Do these idiots bother to read the appeal rulings, to educate themselves for future cases, or even know what should be acceptable as evidence without an appeals court? [probably a rhetorical question if the appeals court struck it down]!!!
It is always up to the party who initiates the lawsuit to either prove without reasonable doubt (in criminal law) or to show preponderance of evidence (civil law).
An expert saying "The answer is cactus" and the defense saying nothing would lead to a finding (in civil) that the answer is cactus. With one witness, one word, and no response, the answer will always be for the plaintiff. That's how preponderance should (and does) work.
The failure here is that the appellate judge ruled that when you exclude the witness he thinks should have been excluded, that there wasn't enough presented to find for the plaintiff. The problem is that hearings are living things. The next question depends on the answer of the one before. So when the lower court (allegedly) improperly allowed the testimony, there was no reason to follow that witness with other corroborating evidence. Had the witness been excluded at the time, the trial would certainly have gone differently. So the appellate judge shouldn't have overturned it, but ruled on a point of law (the expert not being allowed), and returned the case to the lower court for a re-trial. Hopefully the plaintiff has sufficient pockets to file that brief at the next level up.
Learn to love Alaska
Damn those jugdes who studied law for years!
Ignorant anonymous drunk bumblefuck on the internet to the rescue. Ready to save the legal system with baseless opinions.
It is not up to the defense to prove they didn't copy. It is up to the plaintiff to prove that they did.
The jury thinks the plaintiff did.
When the plaintiff bungles, don't expect the defendant in an adversarial system to set up the correct test to save the plaintiff's behind. Instead, expect the defense to file motions claiming that the plaintiff bungled it. As happened here.
The failure wasn't on the part of the plaintiff. It was on the part of the judge.
IANAL, and since your advice is so awful, you should probably disclaim it too
What's to disclaim? No party of this suit is reading this, so nobody else could possibly take this as legal advice. And the only people who need to disclaim are actual lawyers. Laymen are allowed to give incorrect legal advice as much as they want, as long as they aren't in a commercial arrangement with the other party.
Learn to love Alaska
You've obviously not played many sports games. The play is vastly different between some (at least it was back when the first few of these games in question were out - I don't play sports games, but have plenty of friends who did then). Some were so different that when you played one game, you'd try to pass every time. The gameplay favored the pass. Others you'd run every time. The gameplay greatly favored the run. Those types of things would be the "mechanics" that would demonstrate a basis from the previous game.
Learn to love Alaska
here's a link to the decision.
http://pdfserver.amlaw.com/ca/...
The part relevant to the discussion here starts on PDF page 8, line 26.
It appears that the developer's attorneys presented an expert witness who provided an opinion regarding the similarity of the games. However, they did not actually demonstrate the games to the jury, which would have allowed the jury to make a subjective determination for itself. The judge ruled that because the jury never actually saw the games, they did not have enough information to rule that the games were similar.
Anyway, the attorneys better hope they win on appeal or figure out how to settle (perhaps for no fee) --- otherwise, the developer's next lawsuit is one for malpractice.
I am not a lawyer but... From a pure legal perspective, wouldn't the be the same thing as saying that expert psychologist testimony can't be used by a Jury to decide a case because they didn't have the opportunity to interview the defendant? On the face of it, it seems this opens a can of worms...
I suggest speculating why the source code of the possible derived version was not made available to the court or the expert witness.
It may have been completely innocent worry about trade secrets but there are other possibilities, such as the unwillingness to incriminate themselves, that sound more likely to me.
Umm... about this concept of "meaning". I don't think it means what you think it means. In particular, I don't think "meaningless" means the same thing as "metaphorical". It doesn't mean "as yet unsupported by actual evidence", either.
See? You even managed to extract some meaning from the GP post yourself. Even if you did try and hide it inappropriate use of quotation marks.
Don't let THEM immanentize the Eschaton!
I very much doubt the judge was bribed - if he was it should be pretty easy to show and he, along with many EA execs would go to jail.
But the fun part of our modern fedual system is that the rich don't need to bribe their lackeys. Due to the wonders of the right wing authoritarian mindset the lackeys will do the right thing, even when they gain nothing. Even when it costs them something.
Watch this Heartland Institute video
An expert saying "The answer is cactus" and the defense saying nothing would lead to a finding (in civil) that the answer is cactus. With one witness, one word, and no response, the answer will always be for the plaintiff. That's how preponderance should (and does) work.
No. The preponderance of evidence means that the plaintiff must make the demonstration that it is more likely than not that what he claims is true (unlike a murder trial where there must be no doubt). It does not mean that the defense has to contradict the plaintiff or provide any kind of evidence.
If you sit in a jury and the plaintiff claims that the defendant is a witch who prevented him from winning the lottery, you don't have to agree and award him 25 millions even if the defendant does not contradict that claim. The jury is expected to come to their own conclusions based on the evidence presented in court, and it does not matter who came up with it. If it's more likely than not that the claim is wrong, the jury has to find for the defendant.
lucm, indeed.
How is this the fault of the jury, rather than the fault of the defense team?
It's the fault of the plaintiff, that the jury weren't presented with a side-by-side showing of versions of the game, OR any evidence sufficient to show that later editions were similar.
It doesn't matter which party's "fault" it is though, or if it was nobody's fault. It is the Judge's job to dismiss the case, if he reviews the jury's verdict, and he finds that it was not possible for them to have reasonably made the finding, based on what was presented.
But if defense doesn't present any evidence, doesn't that make it an automatic win for the plaintiff under preponderance of evidence? After all, even someone just saying that he believes that they stole something from him is more then silence.
So now you know the Golden Rule. Them with the gold makes the rules. I learned this on the Bugs Bunny show, it was a favorite quote of Bugs.
True. We know federal judges are above anything like bribery.
http://www.nytimes.com/1985/09...
http://articles.orlandosentine...
http://news.google.com/newspap...
It's Madden football. The NFL is the story and the game is the football. Graphics and gameplay improved with the sequels but it's still football strategy.
It's good to see that if I've got enough cash and I ever break the law, all I need to do is refuse to show an "expert witness" is wrong - it's far easier to just find a convenient judge to rule that since I didn't present any evidence, they jury's verdict should be overturned. *facepalm*
Welcome to America, where you can have all the justice* you can afford.
* Dictionaries are being rewritten as we speak.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Three cases in 30 years? Yeah, that's awful.
P.S: Seriously, there's only like a dozen judges impeached for bribery and corruption since 1800 .
TFA says:
> Breyer, who presided over the trial, ruled Wednesday that the jurors had no basis for that conclusion
> because they were never shown the games side by side in order to make their own evaluation, as the law requires for a verdict of copyright infringement.
If, as the article says, the law requires that the jury look at the two works and decide for themselves if they are the same, and that wasn't done, that's a slam dunk for the defense. The plaintiff's attorney should have followed the law and showed both games.
Additionally, remember this is about copyright on the source code - not the general idea of the game. EA says they wrote V2 from scratch, not using any code from V1. The expert witness didn't claim to have looked at the source code. If no-one who has seen the code thinks they are the same, the jury has no evidence that they are.
Using lack of prosecution to illustrate the honesty of the judicial branch is like using lack of arrests to illustrate the tolerance of the executive branch... and we all know cops are tolerant folks, right?
On top of voluminous case the, the statute requires that the plaintiff show evidence that the copyrighted source code is the same. What is at issue is not the general concept of the game, but the source code.
Plaintiff presented no evidence at all that the source was copied. Therefore as a matter of law, the defense prevails. It's upto a jury to determine if the evidence is "good enough" . Under the law, it's up to the judge to rule when no evidence eas presented, and that's what happened in this case.
Plaintiff may or may not be right, but his attorneys presented no evidence that he was right - that his source code was copied.
> But if defense doesn't present any evidence, doesn't that make it an automatic win for the plaintiff under preponderance of evidence?
I hereby state that CmdrTaco, founder of Slashdot, is a typing horse.
Noone has testified that he's not a horse. Do you believe that he's a horse?
Plaintiff has to convince the jury that "it is more likely than not" that his version of the facts are true. This case has a great example. Regarding the statute of limitations, plaintiff claims that it wasn't until version 4 came out that he started to suspect that v2-v4 were copied from v1. Without EA saying anything, we can think that's probably not true.
Additionally, in this case the plaintiff presented NO EVIDENCE that the source code was copied. Since the plaintiff presented NO evidence on the key question of the case, shouldn't the defendant win by default. Yes, they should, the judge ruled. The expert testimony saying the appearance of the games are similar doesn't provide any evidence of anything about the source code. If you make a football cake and I make a football cake, and the cakes are similar, that isn't evidence that I copied your recipe.
Right wing???? In California???? I cannot quit laughing.
Does the expert opinion not count as evidence? If you had a vet testify that yes, CmdrTaco is a horse that likes to walk across keyboards, and the other side did nothing to refute that, why shouldn't the jury rule that CmdrTaco is a horse? Especially since the defense refused to present him to the jury to show that he is a human.
ha, i see what you did there. dirty deep pocket pool.
Claims by the plaintiff are not evidence. They are not the same as factual evidence presented by the plaintiff or expert testimony. The defendant needs to rebut evidence presented by the other side, but not unsupported assertions.
I actually interviewed at Software Arts, it was so long ago and I was so young (and so was everyone else there) I barely remember. The place had a hip vibe, just like today's startups. They said they wanted to hire someone to write applications for TK Solver. It didn't sound like a great technical challenge, so I passed, which turned out to be fortunate because Visicalc sales were going straight down and TK Solver never went anywhere in the market.
Although if someone in the right place had written a killer financial app for TK Solver, then maybe...
One judge or a thousand judges SHOULD NOT be able to overturn a ({[JURY'S]}) virdict. Period.
Graphics and gameplay improved with the sequels but it's still football strategy.
That's not good enough. The burden of proof rests with the plaintiffs, to show a preponderance of the evidence, that the works were strikingly similar, not that they were just both football strategy games within the same genre, with similar operation and game mechanics.
Yes, it does. The expert testimony in this case seems to have been that the two versions of the game had substantially similar appearances.
Which might be 100% true.
Alas, nearly (or even actually) identical appearance on the desktop in no way implies nearly (or actually) identical code.
And copyright cases are about code, not appearances.
"I do not agree with what you say, but I will defend to the death your right to say it"
What was in question was the code he wrote that managed playbooks. My understanding was this base line code had been in use since the 90s. If it was just a bunch of C functions that's not hard to imagine. I'm sure I could find some code in my Linux box from the gnu stuff that dates back to the 70s because there's nothing wrong with it :P
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
I know you're trolling, but even at that you're not too far off, it's just that the judge isn't necessarily greedy or evil. His perspective's just off.
I read an article about how contract law is taught in schools. The point the article made was that law schools teach sorta like medical school: first, do no harm. Basically, when lawyers & judges are faced with a contract suit, their looking for the optimal solution for _both_ parties. Their not exactly concerned with what's right or wrong, legal or illegal. They're asking themselves: how should I rule to make the maximum amount of money for everyone (including society at large)?
It's a weird sort of legal ethics. Basically, they mean well. They want everyone to come out ahead. But they're not exactly considering how the little guy is getting screwed per se...
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
Laymen are allowed to give incorrect legal advice as much as they want, as long as they aren't in a commercial arrangement with the other party.
False. Lawman are allowed to have opinions about legal matters, but are not allowed to give legal advice.
But wasn't the ruling exactly the opposite of what you said? The judge said that because the jurors didn't see the appearance of the two games side by side they couldn't rule that EA reusing code. From what I've read there was nothing about source code in the ruling.
I think you mean the left wing authoritarian mindset. The copyright industry is left-wing's golden child.
You've obviously not played many sports games.
You are mistaken.
The gameplay favored the pass. Others you'd run every time. The gameplay greatly favored the run.
Ever think this might have nothing to do with some special "mechanics" and instead was influenced by the game's available talent? People that play sports games (especially Madden) will tend to pick the same team a majority of the time; the team they root for. This ends up influencing how they play the game from year to year.
If you play with the 2012 Broncos, you're probably throwing the ball nearly every down. If you play with the 2011 Broncos, you're probably running the ball nearly every down. In other words, a player is going to exploit the game based on the strength of the team they play with. I thought that would be obvious.
I'm not really sure what you mean about "some were so different ... " Are you referring to the differences between Madden from year to year? With some exceptions, the gameplay from year to year was pretty much the same. A new version might introduce a new spin move or a new way to shift your defense pre-snap, but the gameplay has always been pretty much the same. Why do you think that is? Because football has pretty much stayed the same.
If you meant other football games aside from Madden, well, there really aren't any. There used to be Front Page Sports, and aside from a different viewing angle, the gameplay was pretty much the same (until they ruined the series with what I think might have been the 2003 version ... I can't recall). There was also Tecmo Bowl. Yes. Of course this game was drastically different than Madden. This was because Tecmo Bowl followed a bastardized version of rules and players could only choose from four plays along with a reduced number of players on the field.
Aside from this is NCAA football games. There are different rules and in many ways is a very different game than NFL. But, overall, it still roughly plays the same as a game of Madden.
The point is that if you tell a thousand different developers to build an NFL football game, you're going to get a very similar result each and every time (assuming the developers have equal understanding of the game).
Someone flopped a steamer in the gene pool.
That is pure nonsense. There is no such thing as a typing horse. He must be dictating.
If the game mechanics are derivative is a different question than if the code is.
If they owned the game look & feel, if the mechanics were their own idea and their contract with the developer was regarding the actual code, as such agreements normally do, then none of that matters. In that case, you can hire a different team of developers, and if you don't even show them the old code, only the look and feel, they can duplicate the gameplay exactly and it is not a derivative. If you show the new team the old code, then it gets muddy fast.
And even with the game play, what the judge ruled was that the jury can't make a determination of similarity between things they've never seen. An expert explaining the ways they are same has to also have the context of seeing the things the expert is talking about. Otherwise you can believe the expert 100%, but you still don't have enough information to claim they are the same.
It isn't enough for the Jury to be 51% sure of something. They have to be 51% sure that the evidence presented proves some fact. In this case there was no evidence presented. The expert is supposed to talk about the evidence, their opinion is not itself evidence of anything except the expert's opinion.
And if you did show them the side-by-side, then you'd need to prove that the game mechanics came from the programmer and not... the game of football. So it is a no-brainer why they didn't show enough evidence; the case was a hail-Mary.
First off, the plaintiff brought in an expert who *did* make an assertion of source-code similarity. As programmers, we do this all the time. (Raymond Chen calls this "psychic debugging")
Secondly, without an understanding of how to identify underlying coding patterns from exhibited high level traits, how can the jury be expected to make a reasonable determination of code copying from a visual analysis of the *compiled* product? It's an on-the-face absurd assertion.
It is still surprising to me that decompilation didn't surface as an option when the source code was not produced, but sitting back and cruising to a jury verdict only to leverage a *really* rare motion to take a verdict notwithstanding judgment is bad news. This is *not* how we want to have our cases conducted. We want judges to have the latitude to correct for off-the-wall juries, but, in this case, this effectively signals that expert, aggregate, and indirect evidence is insufficient for jury determination of infringement, suggesting that respondents should just clean up their tracks after they've illegally copied code.
Judges rule on matters of law, juries on facts of the case. If it's overturned by a judge, that means there was some legal problem with the first trial.
That depends on what State you are in. For example, in the State Georgia, it is explicitly written into the State Constitution that jurors may rule on matters of law as well.
They were presented evidence that they were sufficiently similar to meet the legal standard. But the judge retro-actively (and essentially secretly) excluded that evidence without warning, then appointed himself jury of the evidence and re-tried it with himself as judge, laywer, and jury.
That's why I disagree with the finding.
Learn to love Alaska
So, is expert testimony "unsupported assertions"?
Learn to love Alaska
Additionally, in this case the plaintiff presented NO EVIDENCE that the source code was copied. Since the plaintiff presented NO evidence on the key question of the case, shouldn't the defendant win by default. Yes, they should, the judge ruled.
So why bother with juries in civil trials if the judge can over-rule them arbitrarily and capriciously?
Learn to love Alaska
I'm not really sure what you mean about "some were so different ... " Are you referring to the differences between Madden from year to year? With some exceptions, the gameplay from year to year was pretty much the same.
That's what the jury found as well, but the judge over-ruled the jury.
Why do you think that is? Because football has pretty much stayed the same.
Back in the late '80s, the sports games had substantially different looks and feels. They also had different gameplay. The plaintiffs assertion (proven in court to a jury, over-ruled by the trial judge who allowed the testamony) was that if there were no copying, the games would have been more different, as different as two random football games of the same year. Was the Tecmo version identical to the EA of the same year (not EA, but bought by EA, eventually, and EA is being sued for it)? No, they were "vastly" different, but the ones based on the plaintiffs work were nearly identical?
The point is that if you tell a thousand different developers to build an NFL football game, you're going to get a very similar result each and every time (assuming the developers have equal understanding of the game).
I disagree. Some were more about percentages of lineups (if you picked the best defensive lineup against the offensive play, you'd have a favorable outcome, even if the defense gameplay was poor). Others were more about time management (shortened quarters and halves to fit a console life-style, with timeouts and other time stoppers available). In short, there are "favorite" parts of the game to many people. And they won't make the most realistic game possible, but the funnest to play. Some will go with realism to the point of obscenity (A= step with left foot, B= step with right, so you have to mash buttons to run), and others will have auto-run auto-catch, and you focus on setting up the plays, lineup, and the gameplay of the football game is self-playing. None is wrong, but they are vastly different. And when this suit is about, there wasn't an industry consensus on ideal gameplay, so it varied wildly between games. Unless you are looking at EA's versions after this developer's game. The jury ruled "identical".
Learn to love Alaska
Laymen giving legal advice are sharing personal opinions about legal matters. Unless paid to give that legal advice.
Learn to love Alaska
A post-trial motion is an appeal, even if not explicitly an appeal to a higher court. They appealed the decision to the trial judge through additional motions filed after the finding. As we aren't in court, that fits the definition of "appeal" in the English language.
Learn to love Alaska
I might agree somewhat with your conclusions if plaintiff properly attempted to get the source through discovery and EA didn't produce it. As far as I know, EA provided the source to plaintiff and plaintiff decided they didn't want the jury to see it. Perhaps it's written in an entirely different language.
If the source was copied, an expert should be able to SHOW evidence of that to the jury using techniques as simple as "strings". It sounds like the expert simply declared that he thought it was copied, rather than showing WHY he thought that and letting the jury decide.
Noticing that plaintiff didn't present any evidence regarding a required element is neither arbitrary nor capricious.
I'm not understanding what you're saying. You said:
> they couldn't rule that EA reusing code. From what I've read there was nothing about source code.
The ruling was that their was no evidence of EA copying the code, and there's nothing about code? Are you suggesting there is some other kind of code at issue other than source code? He sued EA for copying his source code.
The expert testified that the output of the game looked similar.
Bet you my bottom dollar some palms were greased here...
Generally, no opinions aren't evidence. Opinions are BASED on evidence and an expert can explain the technical evidence to the jury. ...". For example they do show and tell, showing the jury two DNA samples and pointing out the differences. The jury themselves see the differences, which are the evidence. The expert is there to show the jury where to look, to explain the evidence.
If the expert hasn't seen the code, he can't testify that it's the same. He can only testify "I think it's so BECAUSE
Apparently, in this case the expert said he thought it might be the same BECAUSE the games look similar from a player's perspective. He chose not to SHOW the jury what they look like, though. So the jury didn't even have any evidence that the games LOOK similar - only that one guy to THOUGHT they look similar (when he was paid to think that.)
The difference between evidence of thinking and evidence of truth is obvious if I point a gun at you, you act in self-defense, and later you find out mine was a BB gun. You might introduce evidence that you THOUGHT you were in danger. That's different from actually BEING in danger. Same here - they produced evidence that a guy THOUGHT they looked similar, not that they actually WERE similar. Evidence of actual similarity would be either the games themselves, so the jury could judge for themselves, or some measure of similarity like "of 249 classes in the binary, 242 of them have the same interfaces in both versions" (and show the jury how a COM inspector can show you the interfaces).
Agreed. I recently learned that the legal definition of a derivative work is narrower than what I had thought. You CAN, under copyright law, start from someone else's work and "make it your own".
Simply a pathetic attempt to justify your incorrect description of what happened. Let me quote from what you wrote in the GGP post:
If it wasn't an appeals court (but merely an "appeal" to the trial judge), how could the judge "return the case to the lower court for a re-hearing."? You also refer to the "appellant judge", so the common meaning of the word "appeal" is not what you were referring to.
You can't stand being corrected so much that you go through mental contortions in a failed attempt to justify your mistake.
Yeah, sorry about that.
From what I've read, the judge basically ruled that the jury couldn't say that EA made a derivative work, without the jury seeing the two games running side by side. So he didn't care about the source code, just the look of the games and ruled that the look was more important than anything else (such as the expert testimony).
Wow that's a bunch of complete nonsense. You haven't read TFS, TFA, the opinion, or any of the other comments, have you?
Since you seem to only read my comments, here's a quick summary. The judge allowed an "expert" witness to take the stand to show the evidence to the jury and explain it, as expert witnesses do. The expert witness didn't show any evidence and didn't explain in any evidence. He just said "in my opinion plaintiff should win". That's nice and all, but it's not evidence.
The law requires that you prove your case with evidence, not just have your brother-in-law say "I want him to win". Either the guy had no case, or he had a completely incompetent attorney because he didn't present any case to the jury. If EA copied the source code, you show the jury the copied source and have the expert witness explain which parts are "special", which show copying, such as identical variable names. Then the jury can decide based on the evidence that the expert shows them. "I think they might have" isn't evidence that they did.
TThe judge didn't disallow the expert witness, he simply noticed that the expert witness didn't present any evidence. (Which makes him a more of a character witness; expert witnesses are experts in analyzing and explaining a particular type of evidence. Here, he didn't analyze or explain any evidence for the jury.)
There are two kinds of witnesses, material witnesses and expert witnesses.
Material witnesses saw, heard, or found something. Expert witnesses explain what someone else saw, heard, or found.
In other words, material wwitnesses provide evidence. Expert witnesses explain evidence.
This isn't my opinion, this has been law for hundreds of years, since before the American revolution.
He wasn't called as a material witness .The PLAINTIFF decided he was an expert witness, not a material witness. In other words it was the PLAINTIFF who said he was there to explain evidence, not provide it.
There are two kinds of witnesses, material witnesses and expert witnesses.
Material witnesses saw, heard, or found something. Expert witnesses explain what someone else saw, heard, or found.
In other words, material wwitnesses provide evidence. Expert witnesses explain evidence.
This isn't my opinion, this has been law since 1782, when Smeaton explained the silt in Wells Harbour.
In this case, he wasn't called as a material witness. The PLAINTIFF decided he was an expert witness, not a material witness. In other words it was the PLAINTIFF who said he was there to explain evidence, not provide evidence. You'll note he was paid handsomely for his services. If a material witness is paid, that's called bribery and it's punishable by 15 years prison under 18 USC 201. So which is it? Was the witness paid to testify as evidence, which makes the plaintiff guilty of bribery, or was he an expert witness, paid to explain independently existing evidence? You can't have it both ways.
He did not in fact explain any evidence brought before the jury, so either a) there is no evidence or b) his testimonial evidence is the result of felony bribery. Believe whichever you wish.
You mentioned fingerprints and bloody clothes as evidence. You'll notice a fingerprint examiner points to poster-sized copies of the fingerprints, showing the jury "this part matches, and this part, and this part." Then the jury can take the fingerprints into deliberations with them. The jury decides if they agree that the prints match. It's the fingerprints that are evidence, not the examiner's opinion. The examiners opinion is an opinion ABOUT the evidence. That's where this case fell down. The plaintiff didn't bring any evidence for the jury to see, they just paid someone to give an opinion. If that opinion were based on something other than getting paid, the plaintiff's lawyer should have brought that something into court for the jury to see.
This was on arstechnica last week. A number of people grabbed onto the "nearly identical" phrasing then too. Except the wording of the contract was something close to: royalties for any "derivative works". Whether the games were identical is irrelevant, and disingenuous of the judge to use the "virtually identical" phrasing as a basis for throwing out the juries verdict.
Can someone please clarify how Order 2 (that 'EA's Motion for Judgment as a Matter of Law re: Phase II is granted') and Order 3 (that '[EA's] Motion for a new Trial is conditionally granted') coexist?
If judgment is given in favour of EA on the basis that there was no evidence from which a properly instructed jury could conclude that the games were virtually identical when compared as a whole (pg 15, lines 18-22), how can there be any necessity for a further trial as to whether 'there are substantial similarities between the expression of plays and formations [in the games]'? If judgment is already given, a further hearing that cannot change the outcome of that judgment is meaningless, a waste of the parties' (and the Court's) time, and a waste of the parties' (and the public's) money. Is this kind of conflict resolved by some customary or traditional arrangement between Counsel? (it seems odd because in the jurisdiction in which I practice the Court would resolve the conflict by making a determination in respect of the first order sought and only determine the alternative orders sought in the event that it was determined that the first order would not be made)
Also, is there some aspect of the requirement (in considering whether to grant Judgment as a Matter of Law) that the evidence be construed in 'the light most favorable to the nonmoving party' (pg 5, lines 14-17) that I am missing? The jury had before it evidence (albeit from an expert) that the games were 'essentially the same' (pg 14, line 3) and it seems that this would (when construed in the light most favourable to Antonick) allow the jury (properly instructed) to come to the conclusion that the games were essentially the same and, therefore, that there were substantial similarities between them. (leading to the conclusion judgment as a matter of law should not have been given).
Regards,
A bemused practitioner from another common law jurisdiction
Judges rule on matters of law, juries on facts of the case.
It's very important for the legal profession to get people to believe this, since otherwise the people might start believing that they have rights retained by them, or reserved to them, and that these rights, being protected by the Bill of Rights, supersede the authority of the legal profession.
Who knows where that might lead?
What's worse, is the people might start wondering about the issue of legal ethics, and how ethical conflict of interest on the part of legal professionals determines the nature, scope, and form of the law. That's something to cause a legal professional to lose sleep at night.
Far better just to keep juries blind to these awkward issues, by creating the expectation that the all knowing and wise priests of the law have everything in hand.
This wasn't intended to indicate that things like Jury Nullification don't or shouldn't exist, but that the judge shoud never nullify testimony. If the judge wanted to exclude it, the direction should have been given to the jury during the trial so that the plaintiff could adjust based on jury directions. Changing the rules after the trial is over is very dis-advantageous to the party ruled against.
Learn to love Alaska
I wager, if your dad's patent was ever violated by a large company. His chance to defend his patent is extremely slim. Even if he manages to fight in court and win, the settlement, will likely be far less than the benefit said large company derived by violating his patent.
It is not impossible for an individual small time person to purchase a patent. It is just extremely hard and nigh impossible for said individual to substantially defend and benefit, from said patent.