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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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