EA is 'playing with fire' in Zynga suit, says legal expert

Santa Clara University School of Law professor says copying is rampant in gaming, and having a clear precedent set on gaming rip-offs could come back to haunt big publishers.

Earlier today, Electronic Arts announced it is suing Zynga, alleging the social gaming developer was guilty of copyright infringement for making The Ville, an "unmistakable copy" of its own The Sims Social. The full text of complaint is available online, so gamers can make their own assessments on the validity of EA's claims, but GameSpot went to Santa Clara University School of Law Professor Eric Goldman to get his own take on the case. Goldman specializes in Internet Law and Intellectual Property Law, and earlier this year was named as a North American "IP Thought Leader" by Managing IP magazine.

EA is taking Zynga to court over The Ville's similarity to The Sims Social .

GameSpot: What's the actual legal threshold EA has to meet to make its case?

Eric Goldman: That's the million-dollar question. Copyright infringement requires two related concepts. First, the work has to be copyrightable. Second, the copy or the secondary usage has to take the protectable elements of that copyrightable original. So I don't believe EA is claiming that Zynga took the software code, and they're not saying the two outputs are identical. So in order to establish copyright infringement, EA is going to have to show that something less than the entire game is still protectable under copyright law, then that Zynga took too much of those protectable elements.

GS: Is there precedent for this, previous cases that set that bar?

"What I thought stood out in EA's complaint was that a lot of the things they alleged were copied, Zynga had made conspicuous changes to them."--Goldman

EG: I don't have a good way of organizing the game-related cases, though I'm sure there are a fair number of them. This general inquiry that I've described to you is standard for copyright law. This is something we deal with all the time across the board. The case I teach involves two plays with a Jewish-Irish couple and the shenanigans that manifest themselves when the couple gets together and norms and taboos are broken. When I describe it at that level, everyone is free to take that. But then when you start getting deeper into it, can you protect the individual characters or points in a storyline? Then a lot more judgment's involved.

What I thought stood out in EA's complaint was that a lot of the things they alleged were copied, Zynga had made conspicuous changes to them. Like in paragraph 94, the toilet versus the toilet paper. What Zynga took, and I don't think they're going to argue it, is that there's a thought bubble that's going to remind people about bathrooms. But the thought bubble is shaped differently, and it's a toilet [instead of] toilet paper. So can you take the idea of having a thought bubble to suggest that a character needs to go to the bathroom? I think that's free for everyone to take. You can't take the way it's expressed, perhaps. I leave it to you as an ordinary person in the industry, do you think they took too much of that. That's something that ultimately goes to the jury.

GS: Does it matter if there are these small tweaks if the underlying structure is the same? Does the sum of all the individual things, though they may be changed, does that add up to infringement?

"These kind of game rip-off cases are very difficult. They're hard to predict in advance. They tend to be quite costly."--Goldman

EG: That's a good question, and a nice way of framing it. Again, you're not going to get the cleanest answer that you would like. The idea of having a game environment where avatars can simulate their lives is free for everybody to take. Now in some of the massively multiplayer online role-playing games, the game has a script. There's a sequence of milestones the characters will go through as part of the gameplay. And that script is actually quite similar to the play about the Jewish-Irish coupling. That script can have protectable elements, that the same gameplay, milestones, and experiences could be protectable as well. Now I don't play The Sims, but based on the complaint, one of the beauties of it is that the game has no script. There's not a logical progression the characters have to go through from point A to point Z. Therefore, when you take away those kinds of milestones, you're back to the idea of having an avatar running a simulated life. And that's free for everyone to take, so it's harder to find a protectable element or expression in the gameplay, as such.

This green skull-and-crossbones might be a protectable element, but a thought bubble expressing hatred probably wouldn't be.

GS: When you talk about a script, it makes me think of the three-act structure in a play or movie.

EG: And that's free for everyone to take. But if the details within each of those acts are identical or substantially similar, we're going to say you took too much.

GS: Well, the Sims doesn't have a script, necessarily, but it's a series of underlying systems that interact with each other, and the game emerges from those interactions. And if you have something else with very similar underlying systems that interact in very similar ways, I would suspect that to be even more damning than having a three-act structure, something that's well-established and shared by many things in the genre, whereas the Sims has been distinctive.

EG: Let me characterize that argument in two different ways. Argument one is that because the Sims doesn't have an ordinary plot like a movie, play, or many games do, it's perhaps a less likely case to have that big picture structural infringement you were describing. Your point could be then flipped around, and I think it's a fair way of arguing it, that because it's so unstructured, anything that does overlap might be that much more questionable.

GS: Having looked through this, is your feeling that this case could go either way? That EA will prevail? That Zynga will prevail?

EG: These kind of game rip-off cases are very difficult. They're hard to predict in advance. They tend to be quite costly. I don't have a prediction on who got it right or who's going to emerge victorious.

"EA is playing with fire here. I don't think they really want to break new law and have an extensive interpretation of gameplay rip-offs."--Goldman

I will add that we don't see them all that often in the grand scheme of things if you think about how much money is on the table. We don't see a lot of lawsuits between the big players going after each other, and I think part of that is because copying of gameplay is rampant in the industry. I don't know EA's catalog well enough to know where they might be vulnerable on this point, but it's kind of the way the entire industry is built. All of the big players all have games in the same basic niches trying to provide the same basic gameplay. So there's disincentive for any big player to try to break new law about the copying of gameplay. They might win that case, but it might blow up on all the other things they try to do in the rest of the catalog.

However, we've been seeing a ton of litigation in the app space with apps going after each other for copying gameplay. But these are the small fries. These are in many cases new entrants to the industry, and they're not steeped in the industry's tradition of copying gameplay. And I see that as one of the growth areas for copyright litigation in the next few years. I think most of those are likely going to lose, but we'll get a lot more precedent irrespective of those [outcomes] as these cases work their way through the system.

GS: Those who live in glass houses shouldn't throw stones?

EG: Absolutely. And we don't normally see it, which is why this case might be more interesting than the usual one.

GS: Would you expect a settlement then?

EG: It would be a logical outcome because neither party wants to be proven wrong at the end. They both have incentives not to lose this case. So it's possible they'll just say, "Look, neither of us wants to lose. We can find out a way to come up with a win-win situation; let's do that." One solution would be Zynga could go through and reprogram the things EA complained about so they look less alike. EA says, "They changed their game." Zynga says, "We didn't really change anything." Everyone goes away happy. That would be a logical outcome.

EA is playing with fire here. I don't think they really want to break new law and have an extensive interpretation of gameplay rip-offs. I don't see how that's a win for them, so that's another reason they might be motivated to settle.

GS: Is there any sort of time frame these sorts of cases work on?

EG: The machinery of justice moves slowly. In all likelihood, we'll hear a response from Zynga in the next few weeks or months. We'll get their side of the story soon, but after that it could take months or more likely years to work through the system if it reaches its logical conclusion in the courts.

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Discussion

294 comments
Lockyboy123
Lockyboy123

So when will Activision sue EA for making BF3 close quarters a disgraceful COD clone?

moviequest14
moviequest14

In an ironic turn of events the Judge said she would consider the case further in favor of Zynga if they would invite 5 friends to the court room.

SLjimbolian
SLjimbolian

I think if there's anyone who wants to sue Zynga for "copyright infringement", it ought to be Hasbro.  Just about half of Zynga's games are ripoffs of Hasbro games like Words With Friends (Scrabble) and Scramble With Friends (Boggle)

jtthegame316
jtthegame316

Ea are greedy the exact type of company i would like to see at a loss. The kinda company i wish to see making money would be sega. I am glad ms makes money to because bill gates gives a lot of his net to charity. down with these greedy corporations i say.

Spartan_418
Spartan_418

You would think EA makes enough cash from selling content that's already on the disc in BF3 and ME3 that they wouldn't need to sue social game makers.

pszone
pszone

I want to see EA Games lose why they brought out soical gameing and waste of money.  Soical gameing use to be big and moblie but its like been there done that lol.

Megavideogamer
Megavideogamer

The lawyers will be happy dragging this out in court, making money. Until this is thrown out of court. I'd like to see EA lose in court, but that won't happen, "Copying" ideas of videogames has  been happening for ever

SicklySunStorm
SicklySunStorm

waste of money legal posturing.

 

the ONLY people that gain from this are the legal teams. how sad.

Loctin
Loctin

It's nice they got a professor of law to comment, but he doesn't really seem to know anything about this. Isn't familiar with EA's catalogue? That's.. different. Never played the sims? My GRANDMA played the sims. This infringement gag is what Zynga does, it's almost shameless about it, the higher ups are bailing on the company.. there are a dozen salient points the professor has no knowledge of apparently.

 

And while kind of, yes, sort of, the industry is about copying the ideas of others.. and several of the most significant games may've never been released if there were stringent idea-laws in place (World of Warcraft's a big one), the most common word in the vidya games industry is "innovation". It's more common than consonants.

 

I appreciate an intelligent and reasoned commentary on an issue, but try to get this from someone actually familiar with the goddamned issue next time.

molokaicreeper
molokaicreeper

not sure if they're playing with fire, but honestly... they can't win

itchyflop
itchyflop

hahaha!! its never gonna be any different the silicon band wagon will keep rolling and digital copy catters will always jump on the commercial money train. !!! wow that was creative, unlike some games companies !!!! :)

 

robayeit
robayeit

havin played both games i can see why EA r sueing its basically is the sims no questions asked.

Yes publishers pinch things all the time but a line has to be drawn its fine to pinch little things but to outright copy a game, whether its the same source code or not crosses the line 

presenting a game that looks identical to another as in this case should be able to be sued its the games trademark after its name

trivolution
trivolution

If all these gaming publishers and their companies merge, I know they can create the best games.

emperiox
emperiox

I think Jagex should sue Bethesda for stealing elements from Runescape. I mean Skyrim has dragons, swords, axes, maces, shout, special attacks, and armor sets! They obviously stole from Runescape.

Renato1984
Renato1984

I watched Ratatouille again today. Beautiful movie.

 

The part where they plan to sell chinese and mexican frozen food aiming mass market using chef Gusteau's name totally brought EA to my head. 

 

Of course mass market exists and is waiting to be exploited. But EA routinely buys unique ideas/studios/individuals to turn them into mere expendable cash cows.

Renato1984
Renato1984

The innovation/creativity bar in this industry is set to new lows every month. 

Frankenstrat247
Frankenstrat247

Here's hoping they both manage to destroy each other somehow, even though I don't think it's possible.

deathstream
deathstream

Zynga doesn't borrow ideas or genres.  They just rip games off.  I completely disagree with the article.  Nimblebit couldn't afford to fight Zynga when they flat out stole from Tiny Tower after failing to buy out Nimblebit.  EA CAN afford to fight Zynga and they should.  The casual market is extremely lucrative right now and Zynga is EA's chief competitor.  EA can't afford to let them blatantly copy entire games.

juliangui
juliangui

Zynga annoys me. But so does EA. This article annoys me.

 

I'm annoyed.

ydnarrewop
ydnarrewop

It's really sad that this is another article about legalities rather than actual gaming.

mercenary666666
mercenary666666

If EA is suing Zynga for this, does that mean they can sue them for the fact that I am able to customize my character in farmville? After all, you can customize your Sim.....

rarson
rarson

Reading the comments here, it seems like most people are attempting to legally justify the actions of one company or another, on the assumption that the law is actually correct. But all the law is doing is shifting responsibility away from the consumer (or, more accurately, stealing it from them) and placing it in the hands of government. Nobody seems to care to take responsibility for their own actions. We don't need laws to tell us what to buy and what not to buy. All we need are consumers that take the time to do their homework. If a company copies a product but improves it, then the consumer wins. It's that simple. The root of the problem here is not the companies involved, but the law. The law is what enables them to do what they do (ie, all those "evil" things that everyone is complaining about).

mlcarter815
mlcarter815

 @Loctin I've barely played The Sims and a large chunk of my free time revolves around playing games.

stan_boyd
stan_boyd

 @robayeit But there are soo many differences that its gonna be hard to sue. This lawsuit could set a dangerous precedent. If EA can sue over this then Gran Turismo can sue Forza over the driving and customization of cars, Gears of War can sue Mass Effect over the cover and fire system, Mass Effect can sue the Witcher over the freedom of choice options, God of War can sue The Walking Dead over QTE's etc etc.

PrpleTrtleBuBum
PrpleTrtleBuBum

 @emperiox Err Elder Scrolls is a lot older series than Runescape. Dungeons&Dragons is even older...

 

But in reality the medieval culture should sue them all. Just like architechts, designers and population should sue EA and Sims.

Yuusha09
Yuusha09

 @deathstream If they win the suit it's a slippery slope from there.  Would Square Enix be able to sue every other maker of JRPGs?  Could Activision sue all of the new games that borrow from CoD?  I hope no one wins.

Snow_Ball_Champ
Snow_Ball_Champ

 @rarson Rarson, it's a waste of time to post anything intelligent or thought-provoking in the comments section, but I would like to thank you for posting it anyway.

ACMC85
ACMC85

 @rarson 

 

HUH? Now we are shifting blame to consumers?

Wait, the blame is originally ours? What the heck?

MXVIII
MXVIII

 @rarson What? Thats the dumbest thing Ive ever heard. Copyright protection is ABSOLUTELY necessary. Sure Big Companies like to use it as grounds for lawsuits a lot. But without copyright laws, Artists, Authors, and independents wouldnt have anything to make a living off of, if their work was reproduced, copied and sold by other people. I mean do you even think before you type that crap?

How would you feel if a product you invented was taken by someone else and they made money off of it, and you didnt even see a dime? You see in the real world peoples products, and ideas make them money they need to feed their families and survive.

EA might be trying to work the system in its favor, but that doesnt mean the system established isnt doing its job. Which is to protect the rights and properties of innovators, inventors, and artists from being stolen from them.

stan_boyd
stan_boyd

 @radicalreet  @Megavideogamer And Zynga's game is not a clone, different art style, no moodlets, no skills like cooking or logic that you lvl, no careers, different furniture and clothing etc...

rayzor82
rayzor82

 @itchyflop Zynga stock prices are dropping fast, and they are currently in a legal battle being accused of insider trading.  Buying Zynga would be like buying the Titanic three hours after it hit the iceberg. 

Poodlejumper
Poodlejumper

@Darth_Ultima @Frankenstrat247 or Jeffrey Dahmer vs. Ted Bundy or PETA vs. Westboro Baptist or the Borg vs. The Galactic Empire or Carrot Top vs. Dane Cook

rarson
rarson

 @MXVIII 

 

I don't necessarily support the abolition of protection for original works, like a specific brand, story, or other easily identifiable things, but inventions and ideas? Yeah, the notion of claiming ownership of an idea is absurd, and it definitely DOES stifle innovation.

 

"How would you feel if a product you invented was taken by someone else and they made money off of it, and you didnt even see a dime?"

 

Here's a newsflash: in the real world, most inventors don't see a dime beyond their regular paycheck. Most inventors work for companies which automatically own anything they invent. Even if they don't, patents are ridiculously expensive, so unless you're already a rich person who dabbles in inventing things, a patent probably isn't going to help you. The patent system is there to protect companies, not individual inventors, and the purpose is to prevent competition, which stifles innovation. Without patents, a person can actually copy an invention and improve it, or at least offer a better value to the consumer (again, like the cotton gin).

 

Yeah, it totally sucks actually having to remain competitive to make money, doesn't it? Well, not for the consumer.

 

"I mean do you even think before you type that crap?"

 

I would hope that at this point it would be blatantly obvious that I have.

itchyflop
itchyflop

@Loctin haha! yeah its a double edged sword too!! :)

itchyflop
itchyflop

 @rayzor82 bye bye zynga then!! i dont understand why copy catting another well known game made by an enormous corp. with more muscle than a genetically modified gorilla would work!! 

stan_boyd
stan_boyd

 @mrboone01 The last Medal of Honor was a very blatant ripoff of Modern Warfare. And while JRPG is a genre, its a genre where all the games share similarities so yes you can steal a genre. Id created the FPS, they did it first so they should be able to sue every other company that makes FPS games if EA is able to sue Zynga for making a sims lookalike. Because while the Ville is similar it is also different. I tried both games out of curiosity. The Ville does not have moodlets, it does not have careers, and it does not have skills like cooking or logic etc. So while its similar to the sims its not exactly the same.

mlcarter815
mlcarter815

 @mrboone01 IP law is screwed up. Apple is making a similar argument against Android tablets that the hypothetical JRPG argument would be. 

stan_boyd
stan_boyd

 @funkymonkey4710 But isn't this life simulation style a genre, the fact that there are differences in the games means they are not direct clones, just like what you said about resident evil and dead space.

funkymonkey4710
funkymonkey4710

 @stan_boyd While I agree it shouldn't be right for EA to rip off other games while telling Zynga they can't, you can't say that Dead Space is just Resident Evil in space because... well they aren't. Same with God of War and Darksiders... these are genres of games and they have very different elements. Now if Dead Space introduced zombies in a mansion with similar menus, items, characters, but put it in space THEN you would have a case. In this case Zynga's game borrows heavily from The Sims Social, but sadly they are smart and knew what to take and what not to take to tip toe around these regulations. I don't see this ending good for either company and a settlement is what will likely happen.

stan_boyd
stan_boyd

 @zico_mahilary You are hilarious zico. Have you ever played God of War and Darksiders, they are VERY similar. The last Medal of Honor was so much like Modern Warfare 1 and 2 that I could barely tell the difference. Dead Space is just Resident Evil in space. Ever play Cool Boarders back on the PS1, then ever play SSX, yeah can't get much more similar than that.

maxwell97
maxwell97

 @rarson

US Constitution, Article I section 8: "The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries..."

 

 

So, there's no real way around it, inventions are protected in the US (unless you argue that Congress could choose NOT to secure these rights, which, if you read the rest of Section 8, would be similar to not building roads or maintaining a military).  Now, individual inventors do, in fact, have the right to patent their work.  The reason patents generally are owned by companies is that the inventors willingly agree to give the rights to their company as a condition of employment.  Note that this agreement applies to inventions that can be credited to the support of the company, which is perfectly reasonable; if you're working in a company lab doing company R&D with company funds and resources, you can't really argue that the company has no right to the invention that results.  However, if a software engineer at Microsoft designs a new potato-peeler in his garage on the weekends, he alone retains the IP rights.

mlcarter815
mlcarter815

 @MXVIII Haven't you been following tech news for the past decade? IP laws aren't used to protect the inventors. They are used the same way as WMDs are. The big companies are grabbing up as many patents as possible to guard against lawsuits with the threat of mutually assured destruction. 

rarson
rarson

 @MXVIII 

 

"No the patent system is their to protect whoever owns the product."

 

Patents protect ideas, not products. They "protect" the owner of the patent, which, by design, is usually a company, not an individual. Most companies are not built around one patent, they've built around hundreds or thousands. They rely on their patents to generate money, by offering products that other companies can't because of the patents that they own. The patents eliminate competition, allowing them to make more money.

 

"Man the guy who invented the snuggie Gary Clegg, Hes just one man with a patent."

 

1. Clegg invented the "Slanket," not the Snuggie.

2. He did this with the help of several other people.

3. The Slanket is not patented.

 

"Without it, any company could have developed the snuggie or stole his design, and he never would have seen a dime."

 

Well, number 3 above pretty much destroys that argument.

 

"When a patent expires its free reign for anyone who wants to improve it, to go ahead and do so, then they can file that patent."

 

That is shockingly stupid. So anyone with enough money can sit around and wait for a patent to expire and snatch it up, so they can profit and exclude others from profiting off an idea that they had nothing to do with. What's the point in improving it when you don't have to?

 

I've tried to explain it clearly, but it seems like you can't grasp the actual impact of the patenting system. The intent of a law and its actual effect are often two entirely different things. Everything that you have said has been about the intent. Everything that I've said has been about the effect.

MXVIII
MXVIII

 @rarson Not to mention Patents expire for the very reason you are trying to argue. When a patent expires its free reign for anyone who wants to improve it, to go ahead and do so, then they can file that patent. So maybe you should understand the system a little better.

MXVIII
MXVIII

 @rarson Man the guy who invented the snuggie Gary Clegg, Hes just one man with a patent. Without it, any company could have developed the snuggie or stole his design, and he never would have seen a dime. But with his patent the snuggie has sold over 20 million in the united states, and this guy gets a share of every penny of that.

MXVIII
MXVIII

 @rarson "Here's a newsflash: in the real world, most inventors don't see a dime beyond their regular paycheck. Most inventors work for companies which automatically own anything they invent. Even if they don't, patents are ridiculously expensive, so unless you're already a rich person who dabbles in inventing things, a patent probably isn't going to help you. The patent system is there to protect companies, not individual inventors, and the purpose is to prevent competition, which stifles innovation. Without patents, a person can actually copy an invention and improve it, or at least offer a better value to the consumer (again, like the cotton gin)."No the patent system is their to protect whoever owns the product. There are companies that are built around one patent sure, and whoever owns that patent now makes a crap ton of money. Then there are people who license their patent product to multiple companies and distributors and make a crap ton of money that way. A corporation is generally started by one or more people based around an idea, innovation, or design.