EA Faces Uphill Battle in Its Copyright Infringement Lawsuit Against Zynga (Partial Forbes Cross-Post)

By Eric Goldman

[Eric's note: I am still experimenting with how to write for different audiences. Below is the first draft of a post I wrote for my Forbes Tertium Quid blog. You'll see it's written for a lay audience, but structurally, it's still a geek post. So I've decided to move it over here. I wrote and posted a pithier version for Forbes. If you take a look at both, please email me and let me know which one you liked better (and why).]

Electronic Arts Inc. v. Zynga Inc., 3:12-cv-04099 (N.D. Cal. complaint filed Aug. 3, 2012).

Last Friday, Electronic Arts ($EA) sued Zynga ($ZNGA) for copyright infringement. EA alleges that Zynga’s “The Ville” game takes too much of EA’s “Sims Social” game.

The lawsuit is interesting for a number of reasons.  First, it’s always interesting to see two major Silicon Valley companies clash in court.  (I know Zynga is located in SoMa–“South of Market Street” in San Francisco–but close enough).  It’s even more interesting to see big game manufacturers square off, something that happens relatively rarely.  Second, the case raises interesting–and difficult-to-resolve–substantive questions about copyright law.  Third, game developers copy each other’s ideas all the time, meaning that if the case reaches a final adjudication rather than settling, it might set a vitally important precedent for the entire industry.

The Case Merits.

Games are protected by copyright law, but figuring out the precise parameters of EA’s copyright protection is a tricky endeavor.  Let’s take a careful look at the different overlapping copyright interests in a game like Social Sims:

Code. The software code for a game is protectable, but EA doesn’t allege Zynga copied its code.

Plot and Characters. A game’s “plot” typically is protectable, such as a mandatory sequences of events the player must go through to reach the game’s end.  EA doesn’t allege Zynga copied the plot for Social Sims.  Indeed, one of the hallmarks of Social Sims is that it doesn’t really have a plot.  A game’s characters may be protectable independent of the plot if they are drawn richly enough (think “Leisure Suit Larry”).  As with the lack of a storyline, Social Sims doesn’t really have characters with personalities.

Concept and Expression of the Concept.  A game’s concept, such as the ruleset for game play, usually is not protectable under copyright law.  Thus, competitors may freely make a game with a Monopoly-style gameplay.  Similarly, everyone is free to design a game where a player operates an avatar navigating through a virtual environment.  At some indeterminate point, a game manufacturer’s execution of the game’s concept is imbued with enough creative choices that the exact implementation may be protectable.

EA alleges that Zynga took not only the game concept, but many of the unique and creative choices that EA made in implementing the concept.  To prevail on this aspect, EA will have to show that its choices were sufficiently creative and unique to warrant copyright protection.  EA will also have to show that there were a multitude of ways that a rival could have executed the concept and that its execution isn’t a standard method in the industry.

So, for example, regarding para. 94 of the complaint, EA might get a little credit from its choice to communicate that an avatar needs to go potty by showing the avatar standing pigeon-toed (I don’t believe that’s a standard depiction in the game industry, but let me know if you see it differently). However, EA probably gets little credit from also showing the avatar with a thought bubble thinking of something potty-related (toilet paper in EA’s game; a toilet in Zynga’s game).  Ultimately, many of EA’s allegations go to this point: Zynga mirrored the big-picture concept and lots of specific details of that concept in Social Sims and chose a similar or identical method of expressing the specific details.  But Zynga is free to copy the concept and free to execute the concept using similar details, so the key question is whether Zynga’s execution of the freely copiable concept took too much.

User Interface.  A game’s user interface can be copyrightable, such as the unique visual depictions rendered by the software code.  EA also alleges that Zynga copied aspects of its user interface, such as the exact color scheme and many other visual depictions (e.g., the avatar’s thought balloons are quite similar in some cases).  In most cases, and consistent with its standard practices, Zynga made small but discernable changes from EA’s exact depictions.  Like the copying of EA’s concept, it’s not easy to assess if Zynga changed enough of EA’s unique expression.

Overall Assessment.  As you can see, parsing the copyright issues is complicated (and I didn’t even use any of the copyright law jargon, like the idea/expression dichotomy, “merger doctrine” or “scènes à faire”).  What is clear is that EA has to go much further than just showing that Zynga copied its gameplay.  Indeed, Zynga’s slightly different execution of the specific details in EA’s game might be just different enough to avoid the copying charge.

In a legal complaint, the plaintiff tells its very best story unrebutted by the opponent’s side of the story.  Even without seeing Zynga’s response, I was surprised how unmoved I was by EA’s allegations.  That doesn’t bode well for the merits of EA’s claim.

What About the Employee Raid?  EA makes numerous allegations about Zynga’s acquisition of confidential information from ex-EA employees who joined Zynga.  Yet, EA didn’t complete this thought by making the logical claim of trade secret misappropriation.  This leads me to believe that this lawsuit is, at least in part, a proxy battle over Zynga’s raids of EA employees.  Of course, Zynga’s raids were a lot easier when it could offer EA employees a taste of high-flying stock.  I’m guessing Zynga’s recent stock performance makes future raids less likely.

EA’s Risks of Aggressive Copyright Enforcement.

As the prior section indicates, EA may be pushing the envelope on copyright protection through this lawsuit.  From my perspective, I can’t imagine why EA would want to do that.  Every game manufacturer copies other manufacturer’s games at some level.  There are only so many unique types of game concepts to go around, and most major games manufacturers want to offer a complete line of games covering all of the different game segments.  This means that when a game manufacturer comes up with a completely new game concept, inevitably the other manufacturers will implement this game concept themselves.  

So if EA succeeds in expanding protection for game concept and user interface details, it might win this battle but lose the war.  Ultimately the next time it seeks to do its own version of someone else’s concept, any precedent EA makes here will be cited against it.

This makes EA’s enforcement effort a high risk endeavor.  While this is a case that Zynga can’t afford to lose, it’s also a case that I think EA can’t afford to win.  As a result, the most likely outcome is that the parties will settle, probably with little consequences for either party.  A logical settlement would involve Zynga making some changes to its game to placate EA, but not changing all of the issues raised in EA’s complaint.

Implications for the App Industry Generally.

As with games, concept copying is rampant in the app industry generally.  Recall, for example, how Apple declared that it didn’t want any more fart applications after the success of iFart.  If this case were to set a precedent on the boundaries of legitimate copying of app concepts and the specific details implementing the concept, it could have major implications for the entire app developer community.

I don’t expect we’ll achieve that result for two reasons.  First, because neither EA nor Zynga want a final ruling on the merits, I don’t think we’ll get a decisive final opinion.

Second, parsing between concepts and expression of those concepts will always require comparison of the original app and the variant.  In the context of comparing the plotlines and characters of two plays, over 80 years ago famed Judge Learned Hand said (citations omitted):

Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can.

We’ve developed a lot of copyright law since Judge Hand wrote these words, but we’ve not made any meaningful progress towards fixing that boundary, and I doubt this case will do so either.

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