Back And Forth Cloning Battles With Zynga Continue With New EA Chapter

from the karma-slapped dept

Our first introduction with Zynga was back in 2009 when the maker of Mob Wars sued Zynga over its Mafia Wars game. Zynga was accused of copyright infringement and ended up paying a pretty penny. Later on in the year, Zynga turned around and sued Playdom over what it claimed was trademark infringement. Shortly there after Zynga was sued for trademark infringment over the name Mafia Wars. Then last year, Zynga decided to sue a Brazilian company, Vostu, for various claims of copyright infringment and even some claims that the company copied its entire business model. This lawsuit resulted in a very interesting ruling from a US Judge telling Zynga not to enforce its win over Vostu, because the US Judge wanted first dibs on the ruling. Remember this last case, because it is the most important one when reviewing this next lawsuit.

Just last week, word came in that Zynga was being sued yet again over allegations of game cloning and copyright infringement. This time the player doing the suing is none other than EA, the makers of the game The Sims Social. In its complaint, EA accuses Zynga of pretty much copying the entirity of the Sims Social in its game The Ville. In a press release about the case, EA states:

As outlined in our complaint, when The Ville was introduced in June 2012, the infringement of The Sims Social was unmistakable to those of us at Maxis as well as to players and the industry at large. The similarities go well beyond any superficial resemblance. Zynga’s design choices, animations, visual arrangements and character motions and actions have been directly lifted from The Sims Social. The copying was so comprehensive that the two games are, to an uninitiated observer, largely indistinguishable. Scores of media and bloggers commented on the blatant mimicry.

Compare that to Zynga's statement about its lawsuit against Vostu:

Let’s be clear – it is one thing to be inspired by Zynga games, but it is entirely different to copy all of our key product features, product strategy, branding, mission statement and employee benefits lock, stock and barrel. We welcome Vostu into the arena of social games, but blatant infringement of our creative works is not an acceptable business strategy—it is a violation of the law.

In both statements, the accuser is stating that outright copying was taking place. That each accused game was a near replica of the other game. Such a claim from EA after Zynga made very much the same claims has got to be one of the largest legal karma slaps in history. One that Zynga will be very much lucky to walk away from.

Elsewhere in the filing, EA shows that Zynga's cloning is not limited to this one case. It lists numerous instances where Zynga had been accused of cloning other popular games. It lists the afore mentioned Mafia Wars, Dream Heights, Farmville and Zynga Bingo, all games that had been publicly accused of being clones. This was done to show that Zynga has an extensive history of cloning games.

EA's filing is also full of interesting screen shot comparisons in which it points out some of the more common similarities, such as the almost exact duplication of skin tone selections and personality types. EA even provided a video showing other similarities in animations.

Something to note in these examples is that they follow a very similar pattern to the filing Zynga made in its case against Vostu. In that filing, any time Zynga wanted to show off the similarities of the two games in question, it would show images that use as many similar elements arranged in as similar a fashion as possible. Something that EA does as well. This tactic is deployed as a method to project as much of a feeling of copyright infringement as possible. Unfortunately, it also clouds the fact that much of what is shown are in all actuality user made choices. 

In response to this lawsuit, Zynga has sent a comment out to the media.

The Ville is the newest game in our 'ville' franchise -- it builds on every major innovation from our existing invest-and-express games dating back to YoVille and continuing through CityVille and CastleVille, and introduces a number of new social features and game mechanics not seen in social games today. It's unfortunate that EA thought that this was an appropriate response to our game, and clearly demonstrates a lack of understanding of basic copyright principles. It's also ironic that EA brings this suit shortly after launching SimCity Social, which bears an uncanny resemblance to Zynga's CityVille game. Nonetheless, we plan to defend our rights to the fullest extent possible and intend to win with players.

Since we are in a compare/contrast mood today, let's take a quick look at how Vostu responded to Zynga's lawsuit.

Zynga has been accused of copying so many games that they’ve sadly lost the ability to recognize games like ours that are chock full of original content and have been independently created. Vostu has 500 brilliant employees working night and day making hand drawings and writing proprietary code for online games that our 35 million users worldwide enjoy. Zynga’s anti-competitive effort to bully us with a frivolous lawsuit — especially when we have some of the same key investors — is pathetic. While Zynga plays games with the legal process we will continue focusing on using our substantial resources to create games that entertain our customers.

There are two key similarities between these two defensive statements. The first is that both companies make the claim that their work is original and built with the companies' creative talents. The other is both are claiming that the lawsuits are less about copyright and more about attacking a competitor. It really boggles the mind that a company like Zynga has missed the poetics of this situation.

While we have repeatedly stated that the practice of game cloning is something that can be dealt with outside of the legal system, it is interesting to see these two players go toe to toe. What makes this case even more interesting than a typical cloning case, as I have tried to portray, is that Zynga set itself up for this lawsuit. Not just by copying EA's game, but also by providing the exact kind of legal precedent EA needs to win. If Zynga is to defend itself in this case, it is in effect defending Vostu's actions. Something that Zynga probably isn't looking forward to.

Filed Under: cloning, copying, hypocrisy, video games
Companies: ea, vostu, zynga

US Court Tells Brazilian Court To Stop Ruling On Copyright Issue That It Wants To Rule On First

from the international-disputes dept

One of the issues that we've been discussing on Techdirt since the very beginning is the big question of how do you determine proper jurisdiction on internet related lawsuits, since the internet is accessible anywhere. Over the years there have been different rulings and different thoughts on this, but it's not clear there are good answers. The worst idea, of course, is suggesting that because something is available anywhere, it's subject to all rules. That creates a least common denominator setup, in which the absolute most restrictive rules win out around the world. That would hinder innovation tremendously. Almost as bad is the view that the US government appears to take, which is that the US's rules matter on most of the internet, because the major URLs of the internet (such as .com) are managed by a US company. That's pretty crazy, and is going to lead to serious international problems in the long run. I think a more reasonable (though far from perfect) test is simply an analysis of (1) where the actual business is located and (2) where the servers are located. It seems reasonable to focus mainly on where the company is located, and as a secondary measure, look at where the servers are located, and then use that for jurisdiction.

But, of course, when you're dealing with multiple parties, there can be questions of multiple jurisdictions. In the US, when there's a dispute over jurisdictions, such as when a declaratory judgment is filed for in one district, and the other party wants to file the lawsuit in another district, efforts are made to explain to the court that first got the case which district is best, and the court then decides to keep the case or boot it to a different district. But what happens when there are international jurisdiction disputes?

TechCrunch alerts us to a fun case in which Zynga (who has a well known history of copying other company's games) sued a Brazilian startup named Vostu, which it accused of copying its games. Personally, I think Zynga should shut up and not open up such a can of worms that might come back to bite it as well, but Zynga seems to be focusing a lot on being a legal bully lately. Either way, it filed lawsuits in both the US and in Brazil. While the US court, as typically happens, was taking its sweet time, the Brazilian court actually ruled in favor of Zynga (against the hometown favorite) and issued a preliminary injunction, telling Vostu to shut down within 48 hours.

And here's where things get interesting. This woke up the US court (at the request of Vostu), who has ordered Zynga not to enforce the Brazilian decision. As the court notes, it wants to "maintain the status quo" until it has a chance to decide the preliminary injunction question. Furthermore, even as Zynga argues that the two lawsuits are separate, as one covers Brazilian copyright law and the other covers American copyright law, the US court points out that the impact of the Brazilian ruling will hit the US as well:

But one clear policy that all federal courts recognize—even those which have been loath to interfere with foreign proceedings—is the need to protect the court’s own jurisdiction.... The Brazilian injunction evidently purports to restrict all use of the works in suit everywhere. It appears that enforcement of the exceptionally broad Brazilian injunction would prevent this Court from meaningfully adjudicating the claims of U.S. copyright infringement in this case.

As the court notes, allowing the Brazilian injunction to go forward could harm the US court's ability to decide the case... and, by the way, it notes that Zynga filed in the US first, and should wait for the US court to weigh in:

The injunction issued in the Brazilian action is a grim backdrop against which to consider issues of comity. To be sure, Brazil has an important interest in enforcing its copyright laws. But Zynga—which chose the U.S. forum first—now seeks to enforce an injunction it obtained abroad that would paralyze this Court’s ability to decide this case. Comity norms do not abide such a result.

It will be interesting to see if this cross-border dispute goes much further, because I would expect that we're going to see a lot more international jurisdiction battles in the near future, and how courts deal with these could become a very big deal.

Filed Under: brazil, copyright, jurisdiction, us
Companies: vostu, zynga