I have not and will not claim to be an expert in Intellectual Property law. I’ve never passed the patent bar and, frankly, IP attorneys tend to be a little…strange. With that disclosure of a lack of practice-area expertise, I’m having a hard time with District Judge Breyer’s conclusions in granting EA a reprieve from the ruling I covered back in August. The only thing that I can think of is that he thought that EA deserved the win no matter what, just like Tom Brady and the Patriots back in Superbowl 37 when the NFL invented the “Tuck Rule.”
Back in August, a jury found that EA had breached its contract with Robin Antonick, the original designer of Madden, way back in 1986 and violated his copyrights. EA, in turn, appealed and the district judge ruled that no reasonable jury could have come to that conclusion based upon the evidence it saw.
His reasoning is nuanced and goes into about 20 pages of detail, but it boils down to this:
- Antonick’s expert witness’s automated/regressive/recursive/technomancy spells things out pretty well, although it’s a simulation of a simulcra rather than a rebuild of the original code since no one has that anywhere, apparently, and that’s just not good enough to prove-up violation of copyright or breach of contract;
- Judge Breyer’s read of the applicable law says that the work ‘taken as a whole’ has to be the standard, not small things that imply that there’s been infringement when added up to the whole (which is dumb, because: that’s how you build things in your head, it’s a standard that may look good in prose, but once you start thinking about it, it falls apart)
- EA gets a new trial.
Unlike last time, I’m not going to give you a full rundown of the basic civil procedure rules in play here beyond saying that I disagree with judges doing this in most situations.
Granting the Judgment as a Matter of Law disregards the jury’s decision because, in the judge’s opinion, no jury made up of reasonable people could have examined the evidence and found against the party who brought the motion. I don’t like it. Like another legal motion, I think that, in most cases, it disregards the 7th Amendment to the U.S. Constitution. In this case, I think the judge ignored the spirit of the law in favor of a hyper-technical analysis that assumed the jury didn’t ‘get’ what they were supposed to be ruling on. I also think that Mr. Antonick was not well served by his counsel.
It’s at this point that my personal preference and my professional judgment diverge and it is illustrative about the wildly different conclusions reached by the trial jury and the federal judge. Personally, I’m with…well, everyone who’s not a heartless robot or employed by EA. EA stole from Antonick, a jury found for Antonick, game, set, match. Professionally, (and repeating the caveat that I’m no IP attorney), I see what the judge is saying…and he’s almost certainly correct in his interpretation of the law. He’s also ignoring the spirit of the game. Yes, yes, there are rules to be observed, but come on! It’s EA! They’re the worst company in America, man!
No. Not really. Antonick is fortunate that he’s getting a second trial rather than just having the verdict reversed outright with instructions to the lower court to enforce.
The reason for that internal schism is the difference between what is right and what the law is. Antonick’s attorneys, who I assume are talented members of the patent bar, should have done a better job. I don’t know that it’s unique to the practice of appellate law, but even if the rules applicable to this case are hyper-technical and full of nuance, they’re known factors – Judge Breyer cites quite a few cases that spell out where the rules he’s forming his opinion come from and it’s not as if they were drafted in Enochian. In addition to which, there’s a body of case law drafted by Judge Breyer that tells you exactly what kind of judge he is. It’s sort of like having access to your professor’s old tests – if your argument is good enough, you should know how to get at least a B from him/her.
Am I Monday Morning Quarterbacking here? Maybe a little. But on top of the ‘this is what kind of judge you’re dealing with’ available from Judge Breyer’s judicial history coupled with precedent in an area of law that, while occasionally volatile, is based upon some fairly stable precedent, it’s not a huge stretch. Judge Breyer criticized Antonick’s legal team several times throughout his opinion. He doesn’t go so far as to call them out, but the criticism at their trial court tactics were not totally obscured, either. To that end, I think Antonick is fortunate that the decision orders a retrial. As much as I don’t like JMOL, it at least gives Antonick another chance to prove, to the law’s standards, what a jury of his peers saw as obvious. Even if the jury finds for Goliath this time around (which I’m not convinced is a likely scenario), we could always have Godzilla v. Particle Man, round two, except this time with Antonick’s arguments shored up to reflect relevant case law. Considering that the amount of money at risk, particularly if things like NCAA Football and NHL Hockey are proven to be remote derivative works, is significant, I don’t foresee Antonick picking up his ball and going home. And by ‘significant,’ I mean enough that EA might have to report them on it’s 10-K Legal Proceedings section.
Updates to follow, I’m sure.