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Decision, EA: Judge Reverses Multimillion Dollar Award To Madden Dev

timothy posted about 8 months ago | from the such-bizarre-reasoning dept.

Businesses 125

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.

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First!!! (-1)

Anonymous Coward | about 8 months ago | (#46070859)

Look Mamma!!!!

Re:First!!! (3, Funny)

chris200x9 (2591231) | about 8 months ago | (#46070875)

C'mon it's not that big of deal, no need to call her down to the basement at this hour.

Spoiled Onions: Exposing Malicious Tor Exit Relays (-1)

Anonymous Coward | about 8 months ago | (#46070863)

-- Spoiled Onions: Exposing Malicious Tor Exit Relays

(PDF) http://cryptome.org/2014/01/sp... [cryptome.org]
http://www.cs.kau.se/philwint/... [cs.kau.se]

&

-- What the "Spoiled Onions" paper means for Tor users
https://blog.torproject.org/bl... [torproject.org]

&

-- Scientists detect âoespoiled onionsâ trying to sabotage Tor privacy network
Rogue Tor volunteers perform attacks that try to degrade encrypted connections.

http://arstechnica.com/securit... [arstechnica.com]

huh? (0)

Anonymous Coward | about 8 months ago | (#46071065)

the CIA has owned TOR since it's inception. your point?

Re:huh? (1)

lister king of smeg (2481612) | about 8 months ago | (#46071099)

Not according to Jacob Applebaums (lead developer of TOR) latest talk at Chaos 30C3

http://media.ccc.de/browse/con... [media.ccc.de]

Re:huh? (0)

Anonymous Coward | about 8 months ago | (#46071199)

Lead Developer? Hardly
Applebaum is a self-appointed talking head for anything security related, and is actually a talentless twit.

Re:huh? (0)

Anonymous Coward | about 8 months ago | (#46071529)

Never heard of him, but I bet he's smarter than you.

Re:huh? (1)

Eunuchswear (210685) | about 8 months ago | (#46071677)

Well, he's probaly smarter than some mouse that spends all its time talking to itself.

Re:huh? (0)

Anonymous Coward | about 8 months ago | (#46072107)

A talking mouse is quite smart, as mice go.

Re:huh? (1)

MobSwatter (2884921) | about 8 months ago | (#46071287)

Then again, they've owned drug trafficking to fund black wars since the 60's too. Suppose medical pot really pissed in their cheerios.

Re:huh? (1)

Eunuchswear (210685) | about 8 months ago | (#46071673)

ITYM ONI?

As usual, the rich win. (-1)

Anonymous Coward | about 8 months ago | (#46070899)

Actually, I know nothing about this case. Maybe this jury is right and the other one was wrong. That, of course, won't stop me from seizing the opportunity to be cynical about the rich stomping on the poor.

Re:As usual, the rich win. (1)

phmadore (1391487) | about 8 months ago | (#46070915)

The judge is not a jury. It's a district judge who is reversing the decision, not another, equal jury.

Re:As usual, the rich win. (3, Informative)

AK Marc (707885) | about 8 months ago | (#46071031)

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.

Re:As usual, the rich win. (3, Informative)

mysidia (191772) | about 8 months ago | (#46071057)

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

Re:As usual, the rich win. (1)

The Rizz (1319) | about 8 months ago | (#46071325)

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*

Re:As usual, the rich win. (1)

mysidia (191772) | about 8 months ago | (#46071987)

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.

Re:As usual, the rich win. (1)

amiga3D (567632) | about 8 months ago | (#46072063)

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.

Re:As usual, the rich win. (2)

drinkypoo (153816) | about 8 months ago | (#46072089)

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.

TFA says "as required by law" (1)

raymorris (2726007) | about 8 months ago | (#46072491)

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.

 

Re:As usual, the rich win. (4, Informative)

anagama (611277) | about 8 months ago | (#46071059)

here's a link to the decision.
http://pdfserver.amlaw.com/ca/... [amlaw.com]

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.

Re:As usual, the rich win. (2)

anagama (611277) | about 8 months ago | (#46071075)

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.

Re:As usual, the rich win. (5, Interesting)

AK Marc (707885) | about 8 months ago | (#46071133)

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.

Re:As usual, the rich win. (1, Troll)

Moryath (553296) | about 8 months ago | (#46071173)

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...

Re:As usual, the rich win. (1)

Frosty Piss (770223) | about 8 months ago | (#46071263)

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.

Re:As usual, the rich win. (0)

Anonymous Coward | about 8 months ago | (#46071441)

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.

Re:As usual, the rich win. (1)

Eunuchswear (210685) | about 8 months ago | (#46071697)

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.

Re:As usual, the rich win. (0)

Anonymous Coward | about 8 months ago | (#46072821)

Right wing???? In California???? I cannot quit laughing.

Re:As usual, the rich win. (0)

Anonymous Coward | about 8 months ago | (#46076117)

I think you mean the left wing authoritarian mindset. The copyright industry is left-wing's golden child.

Re:As usual, the rich win. (1)

NickFortune (613926) | about 8 months ago | (#46071683)

Your comment is meaningless since it has no connection to reality or any of that actual facts of the case.

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.

True, the judge may be "wrong". But you are suggesting a "payoff", which is extreamly unlikly.

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.

Re:As usual, the rich win. (1)

amiga3D (567632) | about 8 months ago | (#46072081)

True. We know federal judges are above anything like bribery.

http://www.nytimes.com/1985/09... [nytimes.com]

http://articles.orlandosentine... [orlandosentinel.com]

http://news.google.com/newspap... [google.com]

Re:As usual, the rich win. (1)

Anonymous Coward | about 8 months ago | (#46072283)

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 [wikipedia.org] .

Re:As usual, the rich win. (0)

Anonymous Coward | about 8 months ago | (#46072535)

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?

Not exactly, but not too far off (1)

rsilvergun (571051) | about 8 months ago | (#46074725)

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...

Re:As usual, the rich win. (1)

lucm (889690) | about 8 months ago | (#46071237)

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.

Re:As usual, the rich win. (4, Insightful)

The Rizz (1319) | about 8 months ago | (#46071343)

[...] 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.

Re:As usual, the rich win. (0)

Anonymous Coward | about 8 months ago | (#46073085)

ha, i see what you did there. dirty deep pocket pool.

Re:As usual, the rich win. (1)

AK Marc (707885) | about 8 months ago | (#46071477)

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.

Re:As usual, the rich win. (1)

lucm (889690) | about 8 months ago | (#46071785)

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.

Re:As usual, the rich win. (1)

Crispy Critters (226798) | about 8 months ago | (#46073393)

If you sit in a jury and the plaintiff claims that the defendant is a witch...

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.

Re:As usual, the rich win. (1)

TFAFalcon (1839122) | about 8 months ago | (#46072001)

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.

I testify CmdrTaco is a horse. Plaintiff no eviden (1)

raymorris (2726007) | about 8 months ago | (#46072685)

> 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.

Re:I testify CmdrTaco is a horse. Plaintiff no evi (1)

TFAFalcon (1839122) | about 8 months ago | (#46072977)

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.

 

Re:I testify CmdrTaco is a horse. Plaintiff no evi (1)

CrimsonAvenger (580665) | about 8 months ago | (#46074577)

Does the expert opinion not count as evidence?

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.

Re:I testify CmdrTaco is a horse. Plaintiff no evi (1)

TFAFalcon (1839122) | about 8 months ago | (#46075853)

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.

Re:I testify CmdrTaco is a horse. Plaintiff no evi (1)

Culture20 (968837) | about 8 months ago | (#46076161)

That is pure nonsense. There is no such thing as a typing horse. He must be dictating.

Re:As usual, the rich win. (1)

Aighearach (97333) | about 8 months ago | (#46071253)

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 ;)

Re:As usual, the rich win. (3, Insightful)

chaboud (231590) | about 8 months ago | (#46071301)

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.

Re:As usual, the rich win. (1)

pspahn (1175617) | about 8 months ago | (#46071383)

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.

Re:As usual, the rich win. (1)

AK Marc (707885) | about 8 months ago | (#46071497)

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.

Re:As usual, the rich win. (1)

pspahn (1175617) | about 8 months ago | (#46076131)

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).

Re:As usual, the rich win. (1)

Aighearach (97333) | about 8 months ago | (#46076415)

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.

Re:As usual, the rich win. (1)

AK Marc (707885) | about 8 months ago | (#46071491)

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.

Re:As usual, the rich win. (1)

Aighearach (97333) | about 8 months ago | (#46075765)

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.

I'm too lazy... (0)

Anonymous Coward | about 8 months ago | (#46071285)

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?

Re:I'm too lazy... (1)

AK Marc (707885) | about 8 months ago | (#46071505)

Others have mentioned that they coudn't get the actual code to look at and compare, so they did an expert analysis to help analyze the gameplay, without focusing on the cosmetic changes.

Re:As usual, the rich win. (1)

whoever57 (658626) | about 8 months ago | (#46071307)

A read of the opinion you linked to, and I think the appeal was wrong. The appellant judge ...

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.

Re: As usual, the rich win. (0)

Anonymous Coward | about 8 months ago | (#46071451)

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.

Re:As usual, the rich win. (0)

Anonymous Coward | about 8 months ago | (#46071467)

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]!!!

Re:As usual, the rich win. (0)

Anonymous Coward | about 8 months ago | (#46071489)

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.

Re:As usual, the rich win. (0)

Anonymous Coward | about 8 months ago | (#46071535)

here's a link to the decision.
http://pdfserver.amlaw.com/ca/... [amlaw.com]

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...

Wouldn't the games be irrelevant? (1)

rsilvergun (571051) | about 8 months ago | (#46074701)

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

Re:As usual, the rich win. (1)

EuclideanSilence (1968630) | about 8 months ago | (#46076949)

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.

Contract disputes between developers and marketers (0)

Anonymous Coward | about 8 months ago | (#46070911)

What a mess they are, and always will be.

Like the one between Software Arts and Visicorp over Visicalc [ucla.edu] .

Re:Contract disputes between developers and market (1)

dyingtolive (1393037) | about 8 months ago | (#46070967)

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.

Re:Contract disputes between developers and market (3, Informative)

mysidia (191772) | about 8 months ago | (#46071089)

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.

Re:Contract disputes between developers and market (5, Insightful)

codepigeon (1202896) | about 8 months ago | (#46071145)

" they had signed with the programmer, an agreement for the developer to be compensated by royalties for the first edition and any derivative works"
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. ...."it depends on what your definition of 'is' is..."

Re:Contract disputes between developers and market (1)

Aighearach (97333) | about 8 months ago | (#46071273)

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.

Re:Contract disputes between developers and market (1)

amiga3D (567632) | about 8 months ago | (#46072085)

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.

Re:Contract disputes between developers and market (1)

mysidia (191772) | about 8 months ago | (#46074553)

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.

Re:Contract disputes between developers and market (2)

UnknownSoldier (67820) | about 8 months ago | (#46071239)

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)

Re:Contract disputes between developers and market (0)

Anonymous Coward | about 8 months ago | (#46073443)

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...

The appeal process, bought and paid for (1, Informative)

Anonymous Coward | about 8 months ago | (#46071007)

Bribes are so easy nowadays.

Re:The appeal process, bought and paid for (0)

Anonymous Coward | about 8 months ago | (#46071251)

Couldn't be bothered to read TFA eh. Just to clue you in, there has been no appeal yet, this is the original judge ruling on the law.

Re:The appeal process, bought and paid for (2)

chaboud (231590) | about 8 months ago | (#46071319)

No. This is the original judge overturning a jury determination. It is a legal determination, but he's not ruling on the law. I'm pretty sure there isn't any case law requiring side-by-side game demos in order to make a determination of infringement/contract-breach in the presence of analysis-based expert testimony for one party and thumb-up-ass rebuttal from the other.

This is blazing new (and stupid) ground.

Re:The appeal process, bought and paid for (1)

amiga3D (567632) | about 8 months ago | (#46072091)

I don't know if it is new and stupid or not. A lot of stuff in the legal system seems stupid to me anyway. I want to agree with you because I hate EA so much.

statutory law requires evidence of identical sourc (3, Informative)

raymorris (2726007) | about 8 months ago | (#46072585)

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.

Re: statutory law requires evidence of identical s (1)

chaboud (231590) | about 8 months ago | (#46076639)

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.

Spoiled Onions: Exposing Malicious Tor Exit Relays (-1)

Anonymous Coward | about 8 months ago | (#46071017)

-- Spoiled Onions: Exposing Malicious Tor Exit Relays

(PDF) http://cryptome.org/2014/01/sp... [cryptome.org]
http://www.cs.kau.se/philwint/... [cs.kau.se]

&

-- What the "Spoiled Onions" paper means for Tor users
https://blog.torproject.org/bl... [torproject.org]

&

-- Scientists detect "spoiled onions" trying to sabotage Tor privacy network
Rogue Tor volunteers perform attacks that try to degrade encrypted connections.

http://arstechnica.com/securit... [arstechnica.com]

Silly Wabbit (4, Insightful)

PortHaven (242123) | about 8 months ago | (#46071073)

Patents and Copyrights are for rich companies....not people.

Re:Silly Wabbit (0)

Anonymous Coward | about 8 months ago | (#46071609)

Funny, I know several patent holders, including my dad, none of whom would be considered rich. But, don't let your hate for corporations get in the way of the facts.

Re:Silly Wabbit (2)

Reemi (142518) | about 8 months ago | (#46071611)

Ask your dad how much money he is willing to spend defending it.

As they say: the value of a patent is equal to the money you are able to spend defending it.

Re:Silly Wabbit (1)

EMN13 (11493) | about 8 months ago | (#46071637)

Don't worry, it's OK to *have* patents, you just can't *use* them very well...

Re:Silly Wabbit (1, Insightful)

amiga3D (567632) | about 8 months ago | (#46072097)

The Law is for rich companies, not people.

FTFY

FTA (0)

Anonymous Coward | about 8 months ago | (#46071091)

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.

Re:FTA (1)

lucm (889690) | about 8 months ago | (#46071811)

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.

One does not get to appeal just because he lost his case and wishes to give it another go. One gets to appeal because there is some evidence that the judge overseeing the case may have made a mistake as far as the law is concerned, such as giving wrong instructions to the jury or rejecting a valid motion. So to bring the case in front of a second judge means that already there was a valid concern about the behavior of the first judge; winning this appeal means that the second judge agrees that something went wrong. It usually has nothing to do with the actual dispute.

Re:FTA (1)

sir-gold (949031) | about 8 months ago | (#46072873)

The lawyer could argue that the case should have been sent back for re-trial, and not simply overturned. The basis of this judge's ruling is that the jury could not have had enough evidence to reach the decision that it did, which is certainly reasonable, however that doesn't mean the "correct" answer is to rule the exact opposite of whatever the jury happened to decide.

If the problem was an ill-informed jury, then the solution is a better-informed one.

Diff? (0)

Anonymous Coward | about 8 months ago | (#46071197)

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.

Re:Diff? (2)

pspahn (1175617) | about 8 months ago | (#46071353)

I used to be a huge fan of the Madden series up until a year or few before they stopped building a PC version (used to have loads of fun playing online with that terrible little java based matchmaker before they broke everything and made matchmaking built-in).

I also used to work at EA around this time, and even beta tested the first Madden PS2 release (though, not a single bug I reported was fixed).

I used to be given these weird little tasks (instead of manning the phones like I was supposed to) where I would have to, say, go set up a console in the board room so the C*Os could check out the stuff the slaves were churning out. One of those times, and I can't remember what I was doing, I got to talking with one of the engineers about Madden because I noticed he had a copy of all the old console versions up on his shelf. I had pointed out the versions I used to have (going back to SNES) and he made a comment about how "today's versions have nothing in common with those old relics."

This little anecdote doesn't really have a point, but an interesting recollection from a former life of mine.

Re:Diff? (1)

rollingcalf (605357) | about 8 months ago | (#46072073)

Suppose they don't have the 1988 source code?

If they rewrote the next version from scratch as they claimed, it's not surprising that they didn't put much of an effort into preserving the 1988 version for the next 25 years.

Why not look? (1)

edibobb (113989) | about 8 months ago | (#46071257)

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.

Re:Why not look? (0)

MobSwatter (2884921) | about 8 months ago | (#46071291)

Suppose your missing the point: Lie, cheat, steal, the new accepted way of American business. (Time magazine circa '2000)

Re: Why not look? (1)

cyber-vandal (148830) | about 8 months ago | (#46071649)

Since when is that new? Humans have been screwing each other over since forever.

Not permitted to look (1)

dbIII (701233) | about 8 months ago | (#46071635)

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.

Re:Not permitted to look (1)

lucm (889690) | about 8 months ago | (#46071799)

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.

Sounds plausible: "Your honor, I invoke the fifth, there is no way I will show you the source code of Module1.bas".

Re:Not permitted to look (0)

Anonymous Coward | about 8 months ago | (#46072473)

Look up the word "subpena".

Re:Why not look? (1)

rollingcalf (605357) | about 8 months ago | (#46072059)

Maybe they don't have the source code from the 1988 version any more. They claim they weren't using that source code for subsequent versions of the game, and they couldn't release a patch on the Internet if they found bugs after it was released, so there wasn't much perceived value in preserving the source code. And they certainly didn't expect to have to preserve it for 25 years.

Re:Why not look? (1)

tomhath (637240) | about 8 months ago | (#46072391)

If the source code was reused you can be quite sure they would have introduced that as evidence. But they never introduced the code or even the games as evidence. Hmmm.

They based their claim on an "expert" opinion that the games looked very similar, therefore the source code must have been copied. Because everyone knows that you couldn't possibly rewrite the game to run on the same hardware using the same story without copying the code, right?

This is ~still America (1)

Anonymous Coward | about 8 months ago | (#46073765)

One judge or a thousand judges SHOULD NOT be able to overturn a ({[JURY'S]}) virdict. Period.

Re:This is ~still America (0)

Anonymous Coward | about 8 months ago | (#46077487)

A judge is a god in his/her courtroom. They can make any arbitrary decision they want and it is final. It is up to the plantiff/defendant to appeal and hope for a more favorable outcome. I wonder how much palm greasing really goes on behind the closed doors of the judges chambers... or are they greasing something else?

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