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The case against Zynga: What if EA wins?
The case against Zynga: What if EA wins? Exclusive
August 6, 2012 | By Leigh Alexander

August 6, 2012 | By Leigh Alexander
More: Console/PC, Programming, Art, Design, Business/Marketing, Exclusive

Electronic Arts' game-copying lawsuit against Zynga could have wide-reaching ramifications for the mobile and social space if EA wins. And EA has a good chance of winning, according to a professor of law who specializes in digital games.

Rutgers' Greg Lastowka tells Gamasutra that it's clear that Zynga's The Ville has copied from The Sims Social, from its use of very similar "personality type" choices to elements of character behavior and appearance. But what EA will have to prove is that the copying went too far.

It's not illegal to copy the idea of a game, just its particulars. Lastowka says the case is particularly interesting because there's just one count -- copyright infringement -- in the complaint. Normally, he says, most similar lawsuits in games also include additional causes of action like unfair competition or trademark infringement.

"The other thing that's interesting about it is that cloning is so common, and Zynga has been accused of it many times," he continues. In fact, the company's been fielding accusations of copying even since its earlier games, like Mafia Wars (Zynga settled for about $7 million with the developer of Mob Wars).

Zynga most recently faced public chastisement for the uncanny similarity of its Dream Heights to NimbleBit's popular Tiny Tower, but there's little indies can do legally to take the giant on.

"This is the first time we've got a major [company] like EA who can actually finance a suit through to the end," Lastowka says. "So it's not just a lawsuit designed to extract a settlement."

The key issue here may be bigger than Facebook games. By copying The Sims Social, Zynga actually ends up lifting elements that have been unique to Maxis' Sims brand for its entire long lifetime.

The Ville characters speak in a sort of babble that resembles "Simlish," and the way icons appear in characters' thought bubbles to indicate their interests or intentions has until now been fairly unique to the franchise, for example. Even the interface borrows some iconic elements -- the distinct rounded font, or the modern blue and aqua palette.

"I think the Maxis team probably feels like Zynga's copying practices have gone to the heart of what defines The Sims, and I think they said, 'We don't have to sit still for this,'" Lastowka says. "I think in a way they really had to do this, if they want to protect that franchise."

A tough fight

But there are a number of challenging factors that could spell a tough fight for EA. For one thing, success in the Facebook space actually depends on learning from the best practices of successful games and, in many cases, borrowing them.

For example, like many Facebook games, The Sims Social itself uses some core mechanics pioneered by Zynga -- a similar cocktail of Energy system, visiting and gifting, and land maintenance, and Zynga was quick to point this out in its statement to the press on the suit.

Another challenge, says Lastowka, is that video games in general are not commonly well-understood by judges, who in often come from an older and less digitally-savvy generation.

"When courts analyze video games, they often do so by analogizing them to movies," he explains. "You have appellate judges who are 60 years old; they don't play games, and to them a modern game looks like an animated cartoon. They'll look for a narrative structure or characters that are being copied."

As a result, Zynga is likely to argue that the game's characters and world are determined by the player, and that the game itself is the kind of system or process not covered by copyright law. The screenshots EA shows look so alike in part because in each shot, the character or environment is dressed or colored the same -- those are player choices.

Another complicating factor is the difficulty in proving copyright infringement in general. There are a multiple ways of defining copyright infringement: In the court's second circuit (New York, Connecticut and Vermont), they break down issues of copyright infringement into two parts: A core idea that can't be protected, and a particularized expression subject to a high level of protection.

California's 9th circuit -- notably where this suit was filed -- questions substantial similarities through an analysis of extrinsic features, plus a judgment of whether your average person would be able to tell two products apart. That method of looking at the issue favors EA in this case, Lastowka suggests.

'A pretty strong case'

EA's opening salvo involves visual comparisons of how alike the two games are, and as such they can be expected to continue trying to prove copyright infringement under the 9th circuit's definition, while Zynga can be expected to push back under the "particularized expression" defense.

To understand particularized expression, let's say someone rewrites J.K. Rowling's Harry Potter books using entirely different words and different names for the characters and places, but leaves the story otherwise intact. That re-writer might argue that they're making a particularized expression of a core idea. Of course, Rowling's books are massive and complex, and this re-writer would be committing a clear violation of copyright law.

It remains to be seen whether that analogy will make sense to a legal system that has relatively little experience understanding games. And when one actually plays The Ville and The Sims Social, there are some noticeable differences that EA hasn't mentioned in its complaint. Still, items unique to EA's Sims brand in general may be more easily understood by a judge.

"[Zynga will] push hard on the idea-expression dichotomy; they're going to say they copied the idea, but not the individual expression," suggests Lastowka.

"And I wouldn't be surprised if they brought a counterclaim against EA, because if the court is going to be confused about what is creativity in the video game context... these games don't have a plot, they have a system of choices, so the courts will try to grapple with this, and Zynga could try to throw some dust up."

All in all, though, "EA has a pretty strong case," Lastowka opines.

And the outcome will be especially interesting in terms of law precedent. Importantly, a decisive EA victory could create the precedent that indies would need in order to be safe from having their games cloned by big companies they can't afford to fight. All game companies will become markedly more hesitant to engage in blatant copying.

If Zynga's defeated in this case, then what happened to Tiny Tower -- or Mob Wars, or Farmtown, or Restaurant City, or Bingo Blitz -- may not have to happen to anyone again.

Screenshots and videos are from EA's complaint.

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E Zachary Knight
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I was looking into this case over the weekend, and here are my thoughts.

A while back, Zynga sued a Brazilian company, Vostu, for copying its city game.

That case was settled out of court, but the implications are pretty big. Vostu pretty much lost the case as it later had to downsize a lot of employees.

In the filing against Vostu, Zynga made a lot of the same complaints and implications that EA is now making. Something that Zynga is going to have a very hard time defending against. If Zynga wins, then it shows that its case against Vostu had no merit. If EA wins, then it shows that Zynga pretty much made its own bed.

I am looking forward to the results.

Christopher Floyd
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Maybe it's less likely, but I'm very curious what would happen if ZYNGA wins. Will they become even more brazen with copying (if that's possible)? How many other companies would start to follow suit?

Carlo Delallana
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Best Case Scenario: More original ideas that have a higher barrier of entry. This could mean less copying because it's fiscally or creatively difficult to pull off.

Doug Poston
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Worse Case Scenario: Death of the industry while the lawyers all get new cars.

Unlikely, but I hope the courts look at the long term results on this one.

(EDIT: Sorry, that was my "Worse Case Scenario" for EA winning. If Zynga wins the Worse Case is a glut of cloned games. Best Case is less bullying of smaller studios by larger ones who can threaten to sue over 'look and feel').

Steven Ulakovich
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The most likely thing to happen is that the case will settle out of court, Zynga will pay EA an undisclosed amount of cash, and will not have to admit guilt.

Bob Charone
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I think:
if EA is doing this for the principle then they won't settle for a settlement
if EA is doing this for money then they still won't settle for a settlement, because they know Zynga has a lot of cash (unlike the startup Zynga sued)

Jose Striedinger
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I'm personally tired of Zynga. I believe those guys have no respect for videogames as artistic and entertainment forms, they are just milking cows, they just want money (just like the current CEO of Activision...). In the past few years there's been a lot of pressure to EA (remember it was classified as the world's worst company to work on?) but, I believe is there's someone that can put Zynga in it's place is EA.

We all know Zynga is popular for stealing IP but, never got in trouble because IP protection takes a LOT of money and the victims were not exactly very wealthy developers but, EA doesn't have that problem.

This july I made a visit to EA HQ in Redwood City thanks to a friend I have there. The company and the people are awesome, I hope they win, I hope Zynga gets what it deserves!

Matt McConnell
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"This july I made a visit to EA HQ in Redwood City thanks to a friend I have there. The company and the people are awesome, I hope they win, I hope Zynga gets what it deserves!"

If you had a friend at Zynga and visited them in July, you would probably have noted that the company and people are awesome as well. I've heard they treat their employees extremely well and have great facilities. In general, people in our industry are fun and don't deserve to lose jobs.

I'd just say: hate the company's practices, sure, but don't act like either of these companies is particularly better than the other in terms of business practices.

Jacob Germany
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@Matt I've heard the opposite. Well, not the opposite, but that they are treated far worse than "extremely well".

Gil Salvado
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It surely helps to copy game mechanics in order to understand how they work and have been achieved exactly. But copying game mechanics isn't the same as copying a game in its whole entirety.

If EA wins this suit this will not only give indies a precedent, but hopefully force larger studios to be much more creative when copying. It's not like they wouldn't have the manpower, experience and money to do so already, it's no one forcing them to do so.

Terry Matthes
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I hesitate to think that EA winning will help indies because independent developers don't have the kind of money needed to stand on their own two feet in court.

Sadly the idea of being right or wrong takes a back seat to being able to pay your way through the legal processes.

Dan Rogers
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Leigh's comments are well considered. For a bit more depth into how Zynga might respond, see:

Ted Chen
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I actually liked yours better. Claim #53 does seem to be the pivot point, with everything before setting their 'willfulness' level, and everything after pointing to inappropriate use of protected material.

"And the outcome will be especially interesting in terms of law precedent. Importantly, a decisive EA victory could create the precedent that indies would need in order to be safe from having their games cloned by big companies they can't afford to fight. All game companies will become markedly more hesitant to engage in blatant copying. "

Does this really even set a precedent for anyone else? It'd be rare for an indie to be in the same situation of having former employees hired or have had access to internal design documents. Not being a lawyer, am I mistaken that you'd need to at least be in that same ballpark for it to apply?

Greg Lastowka
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Hi Ted, not really -- the hiring of former employees goes to show that the employees had access to Sims Social, so there was access that enabled copying. As a fact, it will probably color the analysis slightly in favor of EA. But the core question here will be whether the two games are substantially similar. So the precedent from a future ruling (if the case doesn't settle) will be applicable to cloning practices in general and not limited to cases involving former employees.

If there was an employment claim, that would be different, but this is just a 1-count copyright infringement Complaint.

Joshua Hawkins
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I don't like what Zynga's doing, but legally I'd worry about the chilling effect a case like this could cause.

Duong Nguyen
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Like how Zynga sued Vostus for "copying" them? Zynga already set the precedent that they will peruse smaller companies if they feel they infringe upon their turf..

Eric McConnell
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Does anyone on here work for Zynga? I'd love to hear what goes on in their offices.

Arnaud Clermonté
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Reply from a Zynga employee:

Does anyone on here work for EA? I'd love to hear what goes on in their offices.

Evan Jones
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Publicly commenting on an active lawsuit your company is involved in can get you not only fired, but also sued.

Eric McVinney
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@Evan - My common sense is tingling...

Bob Charone
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EA employee: Zynga is a bully
Zynga employee: EA is a bully
indie developer: Zynga is a bully
American gamer: EA is a bully
Hollywood director: EA and Zynga are uninspiring

Kellam Templeton-Smith
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So the big kid in the AAA scene is waging war with the big kid in the casual scene? Eh. This really won't change much-now instead of making what amounts to palette swaps, small companies will just opt for the Gameloft, "So damn close, it hurts, but looks different enough to avoid lawsuits" route.

That said, EA does need to protect their IP, and Zynga is a choice company to make an example of.

Darcy Nelson
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Wild speculation here, but maybe the idea isn't necessarily to win the lawsuit, just to make Zynga more cautious about treading on EA's turf, so to speak.

Kellam Templeton-Smith
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They seem to have a pretty strong case, at least on the surface.

Frank Moolah
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From watching the vids, it's looking like Zynga's gonna take a loss here. Even though both games are based solely on player customization, from the vids, the options you're able to choose from in the selection process are so remotely similar. Then again, I can't entirely place judgment immediately, especially if the vid could be a biased attempt by an EA advocate to omit the defining differences that distinguishes between both of their products

Terry Matthes
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I'm sure those video's wouldn't look near as incriminating if they avatars weren't made by to look as close as possible to each other. Switch the skin/clothing style and I think it wouldn't be as strong. There's something to say about being able to customize the look of the avatars; No?

E McNeill
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Not if you can customize in exactly the same ways.

Sean Kauppinen
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It would be great if we could quit using professors and academics as sources if they don't actually participate in our industry. The expert quoted in the story has zero industry experience: I doubt his opinion of whether EA has a strong case or a weak case is worth listening to, mostly because he has no experience.

I also think Dan Rogers' explanation was a lot better because it actually explained what the points of the lawsuit were and why it's not about the possible cloning, but the misappropriation of trade secrets.

This is a lawsuit about EA employees leaving over the past several years and supposedly using information regarding the EA road-map and products to produce a clone. It has nothing to do with actual cloning and won't establish new case law on that point.

Greg Lastowka
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Hi Sean -- it's true that I am a professor and I don't work in the games industry. But re the facts: Dan's explanation and the Complaint both state that this is a copyright infringement lawsuit, not a suit for trade secret misappropriation. Dan's post also makes it clear that if the case doesn't settle, it will clarify the law on game cloning in a way that will relevant for the industry.

Jacob Crane
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Either way, this is likely to be a lawsuit that goes on for awhile.