EA Making Friends With Lawsuits

Electronic Arts is trying to foster good will by taking Zynga to court, but the publisher's "principled" stand could push the case to a verdict nobody wants.

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It's a rare feat to improve one's public image through litigation, but Electronic Arts is attempting just that with its recently filed lawsuit against Zynga. However, the actions that have gamers and developers alike toasting the publisher today could come back to hurt us all later on.

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Are these too close for copyright? Do we really want to know?

On Friday, EA announced that it was taking Zynga to court, accusing the social gaming upstart of copying EA Maxis' Facebook hit The Sims Social with the recently launched The Ville. While lawsuits in this industry are fairly commonplace, they usually aren't "announced," and when they are, it's more frequently by way of an investor relations site rather than the company's own product-focused news blog.

EA is also trying to parlay this legal dispute into a bit of image rehabilitation for an oft-maligned gaming giant.

The public nature with which EA is going about this lawsuit clearly indicates that the company sees this as an opportunity to do more than just protect its own intellectual property and take a competitor down a few notches. EA is also trying to parlay this legal dispute into a bit of image rehabilitation for an oft-maligned gaming giant. Like the unpopular kid scoring points on the playground by ripping into the least popular kid, EA is betting that the core gaming audience is so thoroughly opposed to Zynga that they will reflexively embrace anyone who tries to curb that particular dog.

In a note announcing the suit, EA Maxis general manager Lucy Bradshaw called it "a matter of principle," suggesting that this isn't being done for EA's sole benefit. EA is just the company with the resources "to stand up and do something about it," Bradshaw said, implying the publisher has an obligation to go about the distasteful act of litigation in order to defend the little guy.

"By calling Zynga out on this illegal practice, we hope to have a secondary effect of protecting the rights of other creative studios who don't have the resources to protect themselves," Bradshaw noted.

In a follow-up post Monday, Bradshaw thanked the industry and gamers alike for supporting EA with their reaction to the suit, adding, "Your kind words and emotional support add strength to my conviction that we’re doing the right thing."

While EA can't be blamed for trying to score some brownie points as long as their interests overlap with those of the gamer audience, this approach could come back to bite the publisher, not to mention gamers, in the future. By portraying this dispute as a matter of principle, EA is painting itself into a corner. After all, pursuing a matter on principle is rarely a practical endeavor; it's something done because it's the right thing to do. It tends to be uncompromising like that. And that suggests a settlement--a compromise by its very nature--should not be a possible outcome here. So let's assume that unlike so many game industry lawsuits, Electronic Arts v. Zynga will actually reach a verdict.

If EA wins, then a strong message is sent to all would-be idea thieves that the legal threshold of what constitutes copyright infringement has shifted in a more inclusive direction. And given the proliferation of creatively bankrupt and shamelessly derivative games on mobile and social platforms, that could precipitate a massive wave of look-alike litigation. While some of that litigation will no doubt have merit, there would also be an uptick in frivolous claims, which in turn would discourage publishers from attempting worthwhile iterations of unique mechanics. Would Epic Games have made Gears of War if there was a chance of Namco suing it for copyright infringement on the at-the-time distinctive cover-based third-person shooter action of Kill.Switch? Would EA have touched Rock Band when something as similar as Guitar Hero was already on the market?

Then again, if Zynga wins, the fallout could be just as dire. If the only copyright protections are on the exact art, sound, and code of a game, then it can be a trivial matter for companies to recreate interfaces and entire gameplay systems with minor adjustments to abide by the letter of the law. While it would still be tough to produce a carbon copy of most AAA games, this would leave the areas of the most innovation in recent years--social, mobile, and indie games--with essentially no protection from theft.

The lack of a distinct line between what is and isn't legal allows for both innovation and iteration.

So if EA wins, we're likely to lose out on the benefits of inspired iteration as cautious publishers steer clear of other people's ideas, no matter how flawed their implementation might have been. And if Zynga wins, then we undermine what little legal protection currently exists for innovation. As frustrating as it might be to deal with the nebulous boundaries of copyright law, the lack of a distinct line between what is and isn't legal allows for both innovation and iteration, even if it tolerates more shameless rip-offs than we might like.

As Santa Clara University School of Law Professor Eric Goldman told GameSpot last week, EA is "playing with fire" here. A settlement seems like the easiest way out, with EA perhaps securing a cash payment and a pledge from Zynga to steer clear of its games in the future, and Zynga being allowed to keep running The Ville without admission of wrongdoing. But such a settlement would be purely practical, and a betrayal of the ideals EA is so prominently touting this week.

Ordinarily, I'd be applauding any principled stand by EA, but given the potentially grim effects of this particular case, I think I'll be a little more relieved if and when the publisher settles on pragmatism over principles.

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