Original Madden Developer Loses out on Millions in Royalties

Any gamer knows the Madden franchise. It might as well be the only football video game on the market. "Football video game" and "Madden [put any year since 1992 here]" are so synonymous that using the two phrases in the same sentence is probably a little redundant. Being redundant, however, is probably the last thing that Antonick's lawyers will be accused of after this case.

In Antonick v. Electronic Arts, an original developer of the extremely popular video game franchise hoped to obtain a massive amount in past royalties thanks to a “Derivative Work” clause buried in his 1986 contract with Electronic Arts (“EA”). ;While the developer’s intentions seemed good – and whole-heartedly driven by dollar signs in his eyes—his attorney’s execution in this case will leave all ambitious video game developers with an acidic taste in their mouth.

First Rule of Evidence: If You Need It, Introduce It
Back during the infancy of John Madden Football (“Madden”) and EA, Robin Antonick developed the code for the original Madden game designed for the Apple II. Thanks to the success of this version of the game, in 1989, Antonick began working on a Madden version for the Sega and Nintendo consoles. However, a year later EA told him to stop all development because they wanted to go with a more “arcade” feel to their games.
Despite this change in gears by the EA brass, the interface of the game – according to an assistant producer of the original Madden game that took the stand – “looked identical to the Apple II version.” Antonick, believing that the code for the new versions of Madden were derivative works of his original Apple II version, filed ;a lawsuit seeking royalties for every single game in this juggernaut of a franchise.
Unfortunately for Antonick, the expert testimony that his attorney propped the entire case up on crumbled faster than a cookie in the hand of a toddler. Instead of actually introducing the code of the Apple II version and the Sega and Nintendo versions to point out the stark similarities to the interface and coding of the game, Antonick attempted to use testimony to show a jury that the games were substantially similar. ;While it seemed to work after the jury came back with a favorable verdict, the overall outcome was not favorable for Antonick after the judge got his hands on it.

Can’t Pass a Test Without Putting Down an Answer The Ninth Circuit uses a two part test when determining when one work is substantially similar to another.; According to Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620,;624 (9th Cir. 2010) a plaintiff must prove both substantial similarity under the “extrinsic test” and substantial similarity under the “intrinsic test.” The “extrinsic test” is an objective comparison of specific expressive elements. The “intrinsic test” is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works.

Although a jury found that Antonick was entitled to royalties, the district court granted a judgment as a matter of law to EA under the “intrinsic test” because “the jury had no evidence of [the] Apple II Madden or [the] Sega Madden.” The Ninth Circuit affirmed this ruling stating that “our law is clear that expert testimony cannot satisfy a plaintiff’s burden of proof under the intrinsic test.” The court goes on to say that the lay witness testimony of how the games appeared was also useless because the coding of the games was the real issue at hand, not whether or not gamers thought the interface was similar.

After this ruling, it is safe to say that Antonick certainly missed the gravy boat that is the Madden franchise. While he had a good argument that he deserved at least some residual cash for his initial work on the ever-so popular game, his execution of his case was so poorly handled that he will probably wake up with night-sweats thinking about what could have been.; Let’s hope the game developer has another billion dollar coding idea hidden somewhere up his sleeve to make up for this series of unfortunate mishaps.

Ninth Circuit Leave States 'Standing' There With Egg On Their Face

You can’t make an omelet without cracking a couple eggs. In California, you can’t even get those eggs unless the farmers follow the Golden State’s strict Shell Egg Laws.  Egg farmers outside of California are a bit pissed about these laws, trying ever-so-hard to get this law overturn. Six states came together and filed a lawsuit in the Ninth Circuit to challenge the validity of these California’s law. The result was not exactly favorable for these out-of-state farmers.

These Chickens Need Room to Stretch Those Legs

In 2008, California voters adopted a law that stated hens may not be confined for the majority of any day.  In order to be compliant, farmers cannot prevent hens from lying down, standing up, fully extending their limbs, and turning around freely. Two years later, California adopted legislation which mandated that a shelled egg cannot be sold or contract for human consumption in California if the seller knows or should have known that the egg came from a hen that was not housed under these laws.

Missouri got the ball rolling in February 2014 by filing a lawsuit claiming that California’s Shell Egg Law violated the Commerce Clause. The States of Nebraska, Oklahoma, Alabama, and Kentucky and Iowa were later added on as additional plaintiffs because, well, they feared the law, too. Unfortunately, these states failed to qualify the biggest hurdle every lawsuit must clear…standing.

Stop Yawning, Standing Is Dreadful Great

Standing might not be the sexiest ways to have a lawsuit dismissed, but it is highly effective nonetheless.  Heck, some of this country’s landmark cases have been decided strictly on this issue.

The six states advanced several theories on why California’s Shell Egg Laws caused their states injuries in fact. First, the six states allege harm to their egg farmers. Next, they argue that the Shell Egg Laws will cause harmful fluctuations in the price of eggs. Finally, they claim that they will suffer discrimination from the Shell Egg Laws. The three judge panel was hardly convinced in any of the states’ arguments.  The Ninth Circuit ruled that the farmers themselves probably have standing, not the states.  Unless the states can prove actual, not speculative, harm to their states because of these California rules, then this case has no merits to be in front of them.

The Ninth Circuit did, however, provide the states with some wriggle room to bring this action back to court. Although the lower court ruled that this case was dismissed with prejudice, the Ninth reversed that part of the ruling saying that since this is a Subject Matter Jurisdiction issue, it should have dismissed without prejudice. 

While finding a new way to argue standing might be a tall task for these states, we will have to wait and see what eggs-actly happens from here.

Usefulness of Cheerleading Outfits Becomes a Copyright Debate for SCOTUS

The usefulness of cheerleaders at sporting events is debatable. Sure, they can get the crowd pumped up by doing some extravagant tumbles while hooting and hollering team fight songs. But separate the cheerleaders from the game and all you really have is attractive young women in sequenced outfits adding minimal value to the players on the field. The cheerleader's uniform, on the other hand, appears to hold a little more weight when it comes to the usefulness to a copyright.

Last month, the Supreme Court grant certiorari in Star Athletica v. Varsity Brands to determine what is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act? The case lays out 10 different test that are used to determine whether something is a “useful article.” The Supreme Court’s task is to choose the one that works the best.

Stripes, Chevrons, and Zigzags

The opening sentence of the Sixth Circuit’s opinion asks “are cheerleading uniforms truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks?” Well, if you are a teenage boy, this is probably the last thing you noticed. However, it is an interesting point. If one was to describe a cheerleader uniform to a time traveler from the 1800’s, how exactly would you do so?

Varsity Brands (“Vasity”) is the largest supplier of cheerleader uniforms through the United States. As most corporations do, Varsity filed copyright protections for several of their cheerleader designs. Star Athletica (“Star”), a rival company, claims that Varsity’s copyrights are invalid because they are unprotectable “design[s] of … useful article[s]. 17 U.S.C. §101 (2012). While the district court agreed with Star, the Sixth Circuit decided that the stripes, chevrons, and zigzags are much more than useful articles. The court held that the Copyright Act protects the “pictorial, graphic, or sculptural features” of a design of a useful article even if those features cannot be removed physically from the useful article, as long as they are conceptually separable from the utilitarian aspects of the article.”

A useful article is defined by the court as an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” The Sixth Circuit lays out nine tests (yes, NINE!) used by the other circuits and, instead of using one of those nine, it then provides its own test. According to the Sixth Circuit, the following series of questions must be answered to determine whether or not an item can be considered a useful article:

1.   Is the design a pictorial, graphic, or sculptural work?

2.   If the design is a pictorial, graphic, or sculptural work, then is it a design of a useful Article?

3.   What are the utilitarian aspects of the useful article?

4.    Can the viewer of the design identify “pictorial, graphic, or sculptural features” “separately from . . . the utilitarian aspects of the useful article?”

5.   Can the pictorial, graphic, or sculptural features” of the design of the useful article “exist independently of the utilitarian aspects of the useful article  from . . . the utilitarian aspects of the useful article? 

Gotta Keep’em Separate?

The court seems to harp on the necessity of whether or not the stripes, chevrons, and zigzags can be separated from the usefulness of the cheerleader uniform.  Since a cheerleader uniform is simply just athletic wear meant to keep the boys and girls jumping up and down in them from overheating, the usefulness of the cheerleader uniform is held mainly in that material. Therefore, the designs placed over this material can be separated from the usefulness of the article and can be receive copyright protection.

Star argues that without the zigzags, chevrons, and what-nots, people would not be able to tell who those super enthusiastic persons on the sideline are. But, when you think about it, what else would those people be? The pom-poms in my mind is a dead-giveaway what these people are trying to do.

While this concept of usefulness can seem alien, the court begs that you think of a chair when thinking about separability. A chair on its own is a useful article because the point of the chair is for it to be used as a place to sit. However, if the chair is littered with designs on the seat and backing, then those designs are considered to be separable and therefore, copyrightable.

Make sense? Probably not. But, SCOTUS will be looking make heads out of what it means to be a “useful article” next fall when the court reconvenes. And if the court continues to grant cases at its current pace, then this might be the most interesting case that SCOTUS nerds will get. 

The Common Law Dedication of Martin's Beach

Beach life and California pretty much go hand-in-hand. With a coast as long as the Golden State's, access to a number of these sandy strips of bikinis, beers, and boards are not super hard to find. However, uncovering hidden beaches off the beaten path is something of a rite of passage for native Californians looking to escape from the tourist hot spots.

Martin's Beach used to be one of these secluded spots that only those "in-the-know" would visit. For decades, the owners of the land (the Deeney’s) leading to Martin's Beach allowed the public to use their private road to enjoy what has been called a "mystical and multi-faceted playground." Signs were put up by the owners on the nearby highway alerting drivers to the pristine locale. The owners of the land were even kind enough to set up public restrooms and a concession shop for these beach goers.

This all changed in 2008 when the land was sold to Sun Microsystems millionaire Vinod Khosla. A couple months after the land transfer signs for the beach were taken down, the access road from the highway to the beach was closed off, and the evil beachGrinch ruin summer for all.

To the surprise of none, surfers were really the first ones to get pissed. Martin's Beach has an epic break (brah!) and a little gate wasn't going to stop these boarders from catching some gnarly tubes. But then the law got involved. 

Friends Don’t Let Friends Give Up
The owners of the property leading into Martin’s Beach ended up being sued in two different law suits. One by the Surfrider Foundation and the other by a group named Friend’s of Martin Beach. While the Surfrider Foundation went to trial and was decided in their favor, the Friend’s of Martin Beach (Friends) suit still thrives on. Thanks, in large part, to a decision made by the First Appellate District of the California Appeals Courts. 

In this case, Friends alleged four theories in which injunctive and declaratory relief should be granted. In short, the theories revolved around 1) a public trust theory, 2) a constitutional theory, a common law dedication theory, and 4) an ancient custom theory. Although the Friends lost three of these four arguments, the one they won allows this case to live yet another day (or in the case of our legal system, a year).  

Deciding the Existence of a Common Law Dedication
In a 3-0 ruling, the California Court of Appeals concluded that Friends alleged sufficient facts to establish a common law dedication claim. The elements of common law dedication are an offer or intent to dedicate and an acceptance. The court believed that there is “little doubt” that the Friends facts could establish a common law dedication if true, and therefore, summary judgment was improper by the trial court.

Friends allege that the original owners of Martin’s Beach offered access to the beach to the public and intended to do so when they put up signs for the road and added a parking lot to their land for the public to use.  By using this road and parking lot, the public accepted this offer and the common law dedication was complete. Since after acceptance, the dedicator cannot revoke, even if the property changes hands, Friends have a pretty strong argument if they can muster enough evidence for the upcoming trial. 

Martin’s Beach LLC argues that since the original owners charged a fee for people to use the road and parking lot that a license, not a common law dedication, was created. The court failed to concur with this argument, mainly because there was very little evidence that this fee was collected every time someone came to the beach. A trial court will now have to decide if a Common Law Dedication was created by the Deeney’s offer and the public’s acceptance. But even if a jury decides this issue in the Friends’ favor, the battle for access to this beach is probably far from over.  

Pending D.C. Circuit Ruling Could Decide Fate of the Open Internet

The internet has morphed from a timed-forum, purchased from compact discs sent directly to your house in spam fashion (thanks AOL) to an everyday necessity that people of the youngest age greatly depend on. Like the little old man hiding behind the curtain in Oz, most people fail to understand how this world wide access to information actually operates. For some, ignorance is bliss. For others, their right to an unabated internet is essential to life.

Each country regulates its internet a certain way, from the very extreme (we are looking at you China) to the completely unfettered. Net neutrality, or Open Internet, is a term that most have heard of but few really understand. As described by Wikipedia, net neutrality is the principle that Internet service providers and governments should treat all data on the Internet the same, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, or mode of communication. Think of it as an equal rights movement for internet access.

Opponents of net neutrality threaten to regulate the internet in a manner that instills a significant measure of fear into the online system that we all have come to love. If the companies backing the demise of net neutrality have their way, the days of streaming unlimited movies and TV shows without concerns of throttling could be long gone.

Proponents of net neutrality received a big win when the FCC approved a proposal by FCC Chairman Tom Wheeler to base new Net Neutrality rules on Title II of the Communications Act.  However, the D.C. Circuit will have a say (and perhaps the last say) on whether or not this win will stand when they decide United States Telecom Association v. FCC.

Reclassifying Internet as Telecommunication Services
Most people will remember the days when the internet required user to listen to a high pitched connecting sound just to start surfing the web. Those days are long gone and surfing the web is literally available at every user’s fingertips. While most people don’t think of telephones and the internet as being remotely the same, the FCC has decided to lump the two together to allow the internet to be regulated more equally.

The crucial question in this case before the D.C. Circuit is whether internet providers can be reclassified as “common carriers.”  Although this reclassification may seem arbitrary, the repercussion of the classification is the crux of the argument for opponents to net neutrality. In their brief they argue that “The FCC relies on Chevron deference to support reclassification of broadband Internet access service as a telecommunications service.  No deference is warranted because the plain language and structure of the Act demonstrate that Congress spoke directly to the issue.”

To counter this argument, the FCC brandishes the decision in the Brand X case to show that the reclassification was reasonable. Appeals Court Judge David Tatel, the author of the original case before this court, helped hammer this idea home.

Most of the discussion at oral arguments focused on whether broadband providers were already offering “common carrier” service to their customers. The imposition of common carriage restrictions on internet providers hinges on whether they can be considered “telecommunications services.” This classification varies substantially from the lightly regulated “information services.”  ISPs argue that internet access is properly defined as an information service, but the FCC argues that they have the discretion to make that decision.

According to the three judges faced with deciding this case, the life of this case may rise and fall on this issue of reclassification. Depending on how this court decides this one question, it may make the rest of the case moot and completely kill any hopes that the First Amendment issues mentioned below gets any light of day in this decision.

First Amendment Issues
On what seems like an unlikely claim that will be settled by the D.C. Circuit this time around, the First Amendment question raised by two of the appellants in this case seemed to be swept to the side by the reclassification issues.

In their brief, Alamo argues that the FCC rules violate the First Amendment because broadband providers are speakers since they engage in speech, and they exercise the same editorial discretion as cable television operators in deciding which speech to transmit. The FCC counters by saying that the rules do not impair broadband providers’ First Amendment rights at all because broadband providers are not acting as speakers but instead as conduits for the speech of others. The FCC goes even further stating that even if the First Amendment were implicated, the open Internet rules would easily pass muster.”

The fact that the court devoted only 20 minutes to the entire First Amendment argument and that neither Judge Tatel nor Judge Sri Srinivasan were sold on an infringement of this right makes this issue seem mostly dead in the water.

Supreme Court Bound?
While nothing is for certain when it comes to the Supreme Court, it is most likely that the losing side of this case will at least try to stoke the fires underneath the nine eight justices.  The internet service providers will almost definitely appeal to the highest court if they come out on the wrong end of this one. On the flip side the FCC might appeal the D.C. court ruling, however, it will depend on how far the D.C. Circuit decides to attack this case.

SCOTUS Bracket: #4 Ruth Bader Ginsburg v. #5 Stephen Breyer

The final game of the first round of the unbelievably (un)popular SCOTUS Bracket is finally among us.

Bringing this elongated Elite Eight round to a close is the left-leaning, liberal battle between the Notorious RBG and Stephen Breyer. One has a cool nickname and is pulp culture icon. The other doesn’t have a cool nickname (and if he did it would probably still just be Stephen Breyer) but is definitely one of the more active judges when it comes to oral arguments.

So, without further adieu, let’s get ready to, well, you know….

Courtroom Curiosity
At oral arguments, the first justice to fire off a question tends to get the ball rolling for the other justices to propel their own carefully aimed bullets towards both the sitting duck at the podium and certain justices that may be on the fence. This break in the meticulously prepared intro by the counselor allows the topic to move in any direction the given justices chooses. However, getting the firing squad started and delivering a kill shot are two completely different things.

Ginsburg is quite notorious for being the first to interrupt counsel. Over the past four years, she has finished as the most frequent first questioner three times, only being beaten out in OT2013 by Sonia Sotomayor. However, once that first question is asked, RBG tends to fall back into the shadows. Only once in a blue moon does Ginsburg finish as the top 3 questioner and it is even rarer to see her finish as the most active justice at oral arguments.

On the flip side, Breyer rarely shoots firsts (only twice during the past four years) but once he starts asking questions, he finds it hard to stop. Over the past four terms, Breyer finished in the Top 4 in both the Top Questioner and Top 3 Questioner rankings. On average, Breyer asks 17 questions per argument while Ginsburg tends to ask much fewer (averaging only 10 questions per orals).

Although RBG often gets the fireworks started, Breyer is the justice that keeps the show going. For this reason, Breyer takes this category.

Category Winner: Stephen Breyer

Penning Power
Relentless Ruth commands the attention of the other justices in a meek yet massive way. When it comes to getting justices on her side to concur with an opinion, she definitely possesses an undeniable ability to be persuasive. From OT2011 through OT2013, RBG stacked up an impressive 88.7% in justice concurrence. While her numbers took a bit of a nose dive in OT2014 (73%), this should only be a slight bump in the road after OT2015 is all said and done.

Breyer’s justice concurrence numbers tend to hover around the low 70s. OT2013 was his most persuasive year, putting together a 90.7% in justice’s approval. However, this one outlier of a term will not be enough to compare with the approval ratings that RBG is used to seeing.

Category Winner: Ruth Bader Ginsberg 

Humor
At first glance, it is hard to believe that Stephen Breyer could even be remotely funny. In fact, the Mr. Burn’s lookalike may seem somewhat evil from the exterior. But when it comes to laugh track triggers, this guy is now the front runner to take @SCOTUSHUMOR’s OT2015 crown.

From OT2012 through  OT2014 (and probably even further into the past if the Twitter records went back that far), Breyer has finished second to the Atonin Scalia in this category. Scalia was such a humor force, that often times Breyer would finish a distant second despite averaging 38 questions per term during that span. But now that Scalia’s seat lays vacant, Breyer’s path to the humor crown is in his midst.   Breyer already has 39 laugh tracks in OT2015 and is well ahead of Roberts, who is in second amongst active justices with 19.

RBG, on the other hand, isn’t the jokester when it comes to oral argument. She has tallied one laugh track so far this year and that is only one off of her Term high over the last four years.  While Ginsburg does have humorous side away from the bench (her approval of her "gangsta" nickname is proof alone of that), this off the record jovial   isn’t enough for her to really move the needle for her in this category.

Category Winner: Stephen Breyer 

WINNER: Stephen Breyer 2-1

SCOTUSbracket Round 1: #3 Clarence Thomas v. #6 Samuel Alito

Is it really still only Round 1 of #SCOTUSbracket? Man, this could set the world record for the longest story piece ever…

This week matchup isn’t really much to talk about. Because of the way the rules were written, Clarence Thomas has no real chance of coming out of the first round despite his Top 3 ranking. For those new comers to the SCOTUS landscape, the silent judge never talks at oral arguments. And because of that, he pretty much loses the Courtroom Curiosity and Humor categories without even having to look at the numbers.

So, instead of wasting Alito’s stats on this first round bust, let’s just go ahead and call this one…

Winner: Samuel Alito (by default)