Finding that allowing using the visual depiction of source code to show illicit copying would be tantamount to having copyright over the play, which would be impermissible:
Permitting Antonick [Plaintiff] to rely on the visual depiction resulting from his source code to
show illicit copying would be tantamount to granting him ownership of the particular play
itself. Copyright law recognizes that the same function or implementation—here, a football
play—can be carried out by different authors in different ways. The Copyright Act “confers
ownership only over the specific way in which the author wrote out his version. Others are
free to write their own implementation to accomplish the identical function, for, importantly,
ideas, concepts and functions cannot be monopolized by copyright.” Oracle Am., Inc. v.
Google Inc., 872 F. Supp. 2d 974, 989, 997-98 (N.D. Cal. 2012) (“[T]here might be a myriad
of ways in which a programmer may . . . express the idea embodied in a given subroutine.”).
In accordance with this basic principle, Antonick’s ownership is limited to the expression of
the plays and formations in his source code, not the plays and formations themselves.
Regarding the evidentiary deficiencies, and despite a stipulation of fact:
2. The Jury Had No Evidence that Any Subsequent Sega Madden Game was
Virtually Identical to Apple II Madden
The record is similarly devoid of evidence supporting the jury’s conclusion that the
six Sega Madden games subsequent to 1990 are virtually identical to Apple II Madden.
Antonick’s evidence on the subsequent games relied on the proposition that if (a) the first
Sega Madden is virtually identical to Apple II Madden and (b) all seven Sega Madden games
were virtually identical to each other, then (c) all of the Sega Madden games were infringing
works of Apple II Madden. Even assuming that this approach was valid, the record contains
no legally sufficient basis for the jury to find that all of the Sega Madden games are virtually
identical to each other.
No reasonable jury could have concluded that the seven Sega Madden games were
virtually identical to each other. The only information about the subsequent games as a
whole was Barr’s opinion that each Sega Madden version changed “just a few things” each
year—specifically by (1) changing player ratings, (2) adding plays, (3) adding features such
as instant reply, (4) improving the look of the game’s graphical characters—but were
“essentially the same software program.” Tr. 1310:19-25-1311:1-5.8 Without the
opportunity to view each of the versions of Sega Madden, the jury had no basis for evaluating whether the changes Barr addressed altered each subsequent game such that they
should not be considered one and the same for purposes of the intrinsic test.
...
Permitting Antonick [Plaintiff] to rely on the visual depiction resulting from his source code to
show illicit copying would be tantamount to granting him ownership of the particular play
itself. Copyright law recognizes that the same function or implementation—here, a football
play—can be carried out by different authors in different ways. The Copyright Act “confers
ownership only over the specific way in which the author wrote out his version. Others are
free to write their own implementation to accomplish the identical function, for, importantly,
ideas, concepts and functions cannot be monopolized by copyright.” Oracle Am., Inc. v.
Google Inc., 872 F. Supp. 2d 974, 989, 997-98 (N.D. Cal. 2012) (“[T]here might be a myriad
of ways in which a programmer may . . . express the idea embodied in a given subroutine.”).
In accordance with this basic principle, Antonick’s ownership is limited to the expression of
the plays and formations in his source code, not the plays and formations themselves.
Regarding the evidentiary deficiencies, and despite a stipulation of fact:
2. The Jury Had No Evidence that Any Subsequent Sega Madden Game was
Virtually Identical to Apple II Madden
The record is similarly devoid of evidence supporting the jury’s conclusion that the
six Sega Madden games subsequent to 1990 are virtually identical to Apple II Madden.
Antonick’s evidence on the subsequent games relied on the proposition that if (a) the first
Sega Madden is virtually identical to Apple II Madden and (b) all seven Sega Madden games
were virtually identical to each other, then (c) all of the Sega Madden games were infringing
works of Apple II Madden. Even assuming that this approach was valid, the record contains
no legally sufficient basis for the jury to find that all of the Sega Madden games are virtually
identical to each other.
No reasonable jury could have concluded that the seven Sega Madden games were
virtually identical to each other. The only information about the subsequent games as a
whole was Barr’s opinion that each Sega Madden version changed “just a few things” each
year—specifically by (1) changing player ratings, (2) adding plays, (3) adding features such
as instant reply, (4) improving the look of the game’s graphical characters—but were
“essentially the same software program.” Tr. 1310:19-25-1311:1-5.8 Without the
opportunity to view each of the versions of Sega Madden, the jury had no basis for evaluating whether the changes Barr addressed altered each subsequent game such that they
should not be considered one and the same for purposes of the intrinsic test.
...
Antonick’s evidence as to the later games as a whole cannot rely on the
stipulation that each Sega Madden game “used code from” the prior one. Tr. 1340:19-
1341:22. In closing, counsel argued that the stipulation “show[s] that [EA] agrees that those
games, year to year, shared the code that we talked about. They share code. The code drops
down, it goes from game to game.” Tr. 2080:14-17. But some shared code among Sega
Madden games is not the issue. The stipulation offers no evidence about how much code
was passed on to each subsequent game, or whether that code included Antonick’s
expression of source code as to plays and formations.
This reasoning comports with Judge Alsup's Oracle v. Google opinion, which found no copyright infringement.
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