We previously reported on Robin Antonick’s copyright claim against Electronic Arts, Inc. (“EA”) over the software for the Apple II John Madden Football game. Antonick didn’t have a copy of his original source code at the time of trial, so instead he had an expert take whatever binary code had survived and use that data to create a visual presentation of the kind of football play formations the original source code would create.

Based on this visual presentation, last summer a jury found that the Apple and Sega Genesis source codes were “substantially similar” and therefore EA had infringed Antonick’s copyright. However, last week, California Federal District Court Judge Charles Breyer nixed the jury’s verdict and granted EA’s motions for judgment as a matter of law and for a new trial. The grounds for Judge Breyer’s ruling included:

• The jury was required to determine that an ordinary reasonable observer looking at the two source codes as a whole could find that the copying, if any, was substantial enough to be infringing. Antonick, however, did not present evidence of the “works as a whole,” but relied on comparing the similarity of isolated elements. In other words, the protected expression was never placed in context for the jury, and thus there was no way for a reasonable jury to know whether the portion copied was qualitatively or quantitatively substantial.
• Although Antonick alleged that seven versions of the Sega Genesis game were infringing, he only presented evidence of the first of these versions. For the other six, he relied on expert testimony that each version changed “just a few things” and a stipulation that each version “used code” from the prior version. The Court held that this was insufficient evidence of the content of the other six versions.
• The Court also held that the methodology used by Antonick’s expert was flawed. As noted above, the expert compared what he posited to be the visual outputs of the two source codes, which he represented visually as similar football plays. However, similar visual representations of these football plays could be executed by a variety of different computer programs in many different ways. In other words, the visual output of a computer program is insufficient evidence of the contents of its source code.
• Finally, the football play formations themselves were not protectable expression. By relying on the similarity between the play formations in order to prove similarity between the source codes, Antonick improperly invited the jury to infer the copying of protected expression from the similarity of unprotectable expression.

After considering these and other issues, Judge Breyer held that the jury’s finding of substantial similarity was against the clear weight of the evidence and issued judgment for EA. Antonick has until February to decide whether he wishes to appeal to the Ninth Circuit.