Why the Ninth Circuit's Antonick v. Electronic Arts Case Is an Ideal Vehicle for Addressing the Circuit Split Over Admissibility of Expert Testimony in Software Copyright Cases

Abstract

This paper contends that unless the Supreme Court grants certiorari in Antonick v. Electronic Arts, the Ninth Circuit’s bar on admissibility of expert testimony in software copyright cases will result in absurd trial procedures in the most significant region for software development and litigation. In a shocking departure from the decisions of every other circuit that has confronted software copyright infringement litigation, the Ninth Circuit reaffirmed and applied an anachronistic bar on expert testimony—originating in Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir. 1977)—to all copyright disputes, including those involving highly technical works. As the Oracle v. Google and Cisco v. Arista Networks litigations demonstrate, intellectual property disputes relating to computer software often involve both patent and copyright infringement claims. Therefore, the Ninth Circuit’s Antonick ruling creates a case management nightmare. Patent case management appropriately allows jurors to learn the technology with the aid of expert witnesses. But under the Ninth Circuit’s Antonick holding, the district judge will need to empanel separate juries to hear the copyright issues lest they be “tainted” by hearing competent testimony from qualified experts about the contents of the computer code. Software intellectual property litigation will only increase as the digital revolution unfolds. The Antonick case provides an ideal vehicle to correct the Ninth Circuit’s “nutty,” anachronistic, and illogical interpretation of copyright law.

Keywords: Copyright, Computer Software, Expert Testimony, Evidence, Oracle v. Google, Cisco v. Arista Networks