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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

17 Pages Posted: 27 Oct 2017  

Peter S. Menell

University of California, Berkeley - School of Law

David Nimmer

Irell & Manella LLP

Kevin Green

Hagens, Berman, Sobol & Shapiro LLP

Date Written: October 11, 2017

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

Suggested Citation

Menell, Peter S. and Nimmer, David and Green, Kevin, 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 (October 11, 2017). Available at SSRN: https://ssrn.com/abstract=3059879

Peter Menell (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

David Nimmer

Irell & Manella LLP ( email )

1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
United States
310-277-1010 or (310) 203-7079 (Phone)

Kevin Green

Hagens, Berman, Sobol & Shapiro LLP ( email )

55 Cambridge Parkway, Ste 301
Cambridge, MA 02142
United States

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