EA-Zynga Wars Episode II: Zynga Strikes Back

By Nathan Grayson on September 15th, 2012 at 10:00 am.

Familiar, definitely. But is it too familiar?

Yes, I know that’s not an entirely correct Star Wars reference. I should probably have my head lopped off by some form of lightsaber-bladed guillotine, but let’s save that for later. Now, after all, is time to be united by that most beautiful of communal forces: big things fighting. Last month, EA sued Zynga in an effort to “take a stand” against the social titan’s alleged copycatting ways, and now – after getting its crops (and I guess probably also legal affairs) in order – Zynga’s firing back. With a lawsuit of its own. Because the court system is weird.

Kotaku picked up all of the pertinent documents, but here’s a quick rundown straight from Zynga HQ:

“Today we responded to EA’s claims which we believe have no merit. We also filed a counterclaim which addresses actions by EA we believe to be anticompetitive and unlawful business practices, including legal threats and demands for no-hire agreements. We look forward to getting back to focusing all our efforts on delighting our players.”

Yes, that’s right: Zynga is now essentially suing EA for the same things EA’s accusing Zynga of. I love it when giant multi-million dollar corporations essentially start shouting, “Nuh-uh! He started it!”

On top of that, Zynga provided screenshots that attempt to depict The Ville – the game EA claims directly infringes upon The Sims Social – as a natural successor to games like Yo Ville (2008) and Cafe World (2009). Further, it argued that similarities between all those games and EA’s own can be chalked up to simple commonalities within a genre. Zynga then went on to use the fact that SimCity Social apparently “draws heavily on elements found” in CityVille – which launched before it – as an example.

The big, bad countersuit, meanwhile, largely hinges on this particularly incendiary bit:

“The truth is that despite years of trying to compete, and spending more than a billion dollars on acquisitions, EA has not been able to successfully compete in the social gaming space and was losing talent, particularly to social gaming leader Zynga. Desperate to stem this exodus, EA undertook an anti-competitive and unlawful scheme to stop Zynga from hiring its employees and to restrain the mobility of EA employees in violation of the spirit of the antitrust laws and California public policy. EA sought, by threat of objectively and subjectively baseless sham litigation, what it could never lawfully obtain from Zynga – a no-hire agreement that would bar Zynga’s hiring of EA employees.”

Zynga has also, of course, motioned for a trial by jury, so odds are, this one’s headed to court in a very loud and shouty way. In the meantime, however, EA’s already returned fire with a blistering verbal volley of its own: ”This is a predictable subterfuge aimed at diverting attention from Zynga’s persistent plagiarism of other artists and studios. Zynga would be better served trying to hold onto the shrinking number of employees they’ve got, rather than suing to acquire more.”

Yikes. Unless someone rescues someone else from a burning building stat, I don’t see these two kissing and making up any time soon. (And honestly, I wouldn’t be surprised if, in that hypothetical situation, one of them started the fire in the first place.) Regardless of which side you fall on, though, this looks to set a pretty tremendous precedent for the way copyright infringement in games is handled.

And given that – whether or not you believe Zynga’s a part of the problem (and let’s face it; there’s some pretty damning evidence to suggest it hasn’t won its social throne purely through honor and chivalry) – social gaming’s overrun with legally nebulous instances of copycatting, this is something that needs to happen. After all, where’s the line for games, specifically? What’s a clone and what’s simply “inspired” by another idea or iterating upon it? One way or another, it looks like we’re about to find out.

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79 Comments »

  1. zeekthegeek says:

    They deserve eachother to be sure. Both are awful companies. At very least, EA occasionally (increasingly rarely) contributes something to game design though so I have to root for them in this fight versus a company that has literally only ever stolen in its entire history as a company. I hope it costs both of them an absurd amount.

    • Post-Internet Syndrome says:

      Haha, I agree.

    • Shuck says:

      Let’s be fair – Zynga doesn’t just steal other people’s game designs. They also buy up companies that make original games.

    • Baines says:

      They are both probably guilty, so maybe they both will get judged against.

      Unfortunately, that is ultimately a kind of no-win situation for us… They’ll just pay each other off, neither coming out much worse for wear, while probably setting precedents that will come back to haunt gamers in future years (particularly once the corporate lawyers figure out how to abuse them).

  2. drewski says:

    I hope all social game companies go broke.

  3. Zeewolf says:

    I hope Zynga wins. Anything else would be really bad (we already have all those loony trademark / copyright lawsuits, imagine if EA won and suddenly it was okay to sue games which borrow elements from other games – like every game ever).

    • drewski says:

      Zynga did a lot more than “borrow” elements – they basically directly copied the game.

      • Jonith says:

        Yes, but it could set the precedent and ball rolling that if a company can sue another for a game that directly rips them off, then perhaps later on they decide to sue a game that takes ideas similar to an EA (or any company) game and sue them for the same thing. We already have something similar that happens.

        Either way the little guy and innovation loses. If Zynga win they will continue creating terrible games that directly rip off others, while if EA win, they could decide that a little company that takes some of there designs and innovates on them also deserves sueing.
        I’d rather Zynga didn’t exist as a company though

        • bakaohki says:

          To me, the message is clear: I keep away from software development (at home). At the workplace I’m shielded anyways.

        • ascagnel says:

          It sets a precedent, but you’ll still have a judge there to do an initial smell test. And judges do not like frivolous lawsuits, often to the point of censuring parties that file too many.

          Note that patent trolling is different than the scenario described here because a patent gives you automatic standing to sue, while game design elements do not (only the direct copying of game assets or code do, as they fall under copyright).

          So essentially, you’ll have a judge that can look at any lawsuit to see if a game is truly a ripoff before starting legal procedures. It sucks that you still need the day in court and to lawyer up, but that’s the status quo anyway.

          • hamburger_cheesedoodle says:

            But really, how many times have you seen news articles about judges who aren’t savvy with software or games making rulings on them, or people who don’t get how most people use the internet ruling on it? (If you’re me, the answer is “at least once a week.”)

            It also has the potential to create a chilling effect- EA has zounds of lawyers on retainer and can threaten legal action to whomever they wish at an hour’s notice. A guy working in his basement on a new game who gets a letter from said legal team is much more likely to just cave in and give up than fight a flimsy lawsuit. Large corporations know this, and abuse it.

          • Ragnar says:

            That’s a good point. I mean, look at the Apple / Samsung case. I can’t imagine that anyone would mistakenly purchase a Samsung Galaxy Tab thinking it was an Apple iPad, but the judge granted Apple their injunction.

    • Tridae says:

      This would be horrible – Bringing the Apple vs Samsung drama to gaming. Way too much courtroom action. . .

      Although – on the plus side this could eliminate endless copies of cover shooters and identical modern warfare simulators. . . “you’ve got waist high walls in Max Payne now? Nah-uh, can’t have them since our Mass Effect has em” Would have made Max Payne better I think.

      It won’t happen but it’s entertaining to hypothesise what would happen if it did.

      • LionsPhil says:

        But that’s not how software patents (which is roughly what you’re after here) actually play out (not least because the USPTO is a rubber-stamping operation).

        What happens is that Large Organizations grab up as large a set of stupid, blatantly invalid patents as possible. Inevitably, everyone infringes them, because they’re vague and obvious and people were already using the idea and bluh-bluh-bluh.

        The other Large Organisations bluster back and forth a bit (since everyone is infringing everyone else), then sort out cross-licensing agreements so that they both agree that they can use each-other’s “innovations” and nobody has to get sued.

        Small Organisations have no IP leverage to reply with. They’re the guy in the Mexican Standoff who only has a water pistol.

        Call of Battlefield Effect 5 continues as normal, and any indie who gets too threatening is crushed under the weight of patent infringement lawsuits. It doesn’t matter if they’re winnable so long as they’re not outright frivilous; just who has the most money to spend on lawyers before bankrupcy.

        • Aedrill says:

          I wish you were wrong but you aren’t. It’s pretty bad scenario and it happens way too often these days.

        • AngoraFish says:

          this

        • ReV_VAdAUL says:

          Of course the kindly big publishers will be willing to withdraw their entirely valid lawsuit against indie game makers if they’ll come work for the big publisher, for a salary of course, to work on a coincidentally very similar game to the one they’re being sued over.

        • boundless08 says:

          This is exactly the reason why Minecraft got sued a couple of months ago. Patents and copyrights on software is just absurd. I have a degree in computer science and software engineering and for one module we dove into the depths of patents and such and it is ridiculous. All software boils down to is a programming language, which boils down to maths and binary operations. How can you patent maths? Even in a certain order its absurd. Chefs aren’t able to patent recipes because it would be stupid, and no one would care. The only reasonable way to have a software patent would be to invent your own programming language, compiler, functions, and all that stuff that defies every acceptable way to do things and sue someone if they took it from you…. but that is also stupid!

          • Malibu Stacey says:

            Actually the recent Mojang & Bethesda thing was about trademarks not patents or copyrights which is a whole other kettle of worms but you’re spot on with the rest (am a software developer by day myself & I couldn’t agree more).

    • mr.ioes says:

      Contrary to Zynga, EA didn’t steal any IPs afaik. So imho EA should win. But it’s like placing your bets on two bullies fighting each other.

      • AgamemnonV2 says:

        We have a winner. Go back far enough and EA is still in the right on this.

        http://en.wikipedia.org/wiki/The_Sims_Online

        The Sims Online (2002) may not have been the “social-media-tie” that they’re all trying to be today, but it did start the precedent for online social connectivity. Regardless using “examples” of people who simply copied EA earlier than they could release a Facebook game doesn’t mean that EA is wrong all of the sudden, just that EA is only gunning after the 800lb. gorilla that is blatantly stealing everyone’s ideas and acting all high-and-douchy when ever someone calls them out for it.

        Personally I hope Zynga crashes and burns. I do not want the Facebook social game platform to be any sort of reality other than a nightmare.

    • Urthman says:

      As terrible as it sounds, it’s much better for the Zyngas of the world to blatantly plagiarize ideas from indie games and compete against them than for the EA’s of the world to be able to sue indie games out of existence.

      • mouton says:

        Gamers are not like Apple customers. If EA turned to suing everyone weaker than them, the popular backlash would destroy them. EA rarely has good press, but that would be mother of all internet rages.

  4. Bilateralrope says:

    The only winners here will be each companies lawyers.

  5. aeromorte says:

    I say let em burn! But still its hard to say that EA isnt right on it (no matter how much i hate them) Zynga is just ripping of 90% of a game and says its just “simple commonalities within a genre” … i dont know how retarded must somobody be to not see. But still i dont want EA to win so let em both BURN! buahahaha

  6. Justin Keverne says:

    Whoever wins, we lose.

  7. Frankie The Patrician[PF] says:

    While they fight, I will be playing some REAL games… Seriously, I tried SimCity Social and it was HORRIBLE. I do not have anything against FB games (PopCap does decent ones), but Zynga’s and EA’s production is abysmal..

  8. tungstenHead says:

    Nathan, Nathan, Nathan. Look, Nathan. Episode II? The subtitle — what’s the subtitle for Episode II, Nathan?

    Attack of the Clones.

    Now look, Nathan, I know you’re a smart guy and all, but you basically handed that one to yourself on a silver platter and then failed to use it. I’m a bit disappointed by that, Nathan.

  9. bit.bat says:

    Irrespective of all this, why does everyone hate EA so much?

    In terms of game quality they do have their cash cows but they also seem to publish a lot of loved recent and past franchises. So yeah I’m just curious why.

    • Jonith says:

      I can’t remember if it was Activision or EA (or both) but I know that some companies do get publishing rights to some small companies, before completely absorbing the company and leaving many of the workes from in it with no, or worse jobs.

      I know that there are a lot ofthe games they barely bother marketing as well, and then, when that game does badly even if it is a good game, they will refuse to make more

      Edit: Essentially just bad businnes practise

      Something about making generic games as well, seriously, Medal of Honour and Battlefield are 2 examples, which where suitably differant previously but are getting closer and closer together in how much they are alike

    • Naum says:

      EA’s reputation partly stems not from making bad games but from making good games — that a lot of people would actually like to play — and then tacking stupid business stuff like always-on DRM or spyware with a nice GUI onto them. Which puts said people in a situation where they have to choose between their principles and the games they desire, making them very angry.

      Of course there were over 9000 other gripes that the Internet had with various EA titles, their business practices and communication specifically with the PC community, and it just adds up over time.

      • mouton says:

        What always-on DRM would that be? You mean that Origin thingie that I can turn off, go offline and forget about it all?

    • Frankie The Patrician[PF] says:

      Back in the 90s (when they were still “Electronic Arts”, not just EA), I remember an advertisement comparing a development company under their wings to a rock band… They would have their name on the box, a distinct identity….as opposed to other labels, err..publishers. Fast forward to the 21st century EA – EA North, EA Canada….no distinct identity, just one multi-body corporation… Uh-huh

      • Malibu Stacey says:

        To be fair that was before Trip Hawkins left & Larry Probst had time to dismantle the whole thing. When he was running EA it was a very different beast to what it is now under John Riccitello’s leadership.
        Probst & Riccitello come from the same business background as the generally detested Bobby Kotick so it’s no surprise it’s they’re becoming analogous over time.

    • Stromko says:

      They took a lot of classic game companies like Origin Systems, Maxis, Bullfrog, a few others I can’t recall off the top of my head (it’s late and I’ve got a headache), and turned them into terrible sequel houses before ultimately killing them off or restructuring them as to be unrecognizable.

      It’s hard to keep it in perspective now, but this was in a period where a lot of other publishers weren’t being mercilessly evil. Now we have Ubi- “PCs-Are-for-Pirates” -Soft and and Activision with its blatant “Packaged Goods” mentality, and EA’s still an anti-competitive dick besides. They own the rights to many sports franchises and put out terrible sequels for them every year because fans don’t have any other choice. They’ve put a lot of energy into sticking heaps of pre-launch paid DLC onto all their games as well, and the Origin downloader is a malicious bit of spyware according to its own EULA.

      I’d still have to say EA’s a few steps ahead on the evil front, overworking their employees with endless crunch-time and killing innovation wherever it rears its head. They’re still the leading big monolithic corporate shadow holding back professional game development, as much as Bobby Kotick is trying to suck all the fun out of it as well.

      Then again Zynga are thieves, and their CEO has admitted this. His policy is to steal, and they are killing innovation by taking every interesting concept, shamelessly ripping it off, and then using their greater influence and client base to out-compete the original innovator.

      So yeah, whoever wins, we lose. Either EA and other big companies get precedent to sue developers for similar game designs (or designs that they’ve simply patented and never use?), or Zynga and others like it get permission to keep stealing.

      • Kadayi says:

        Your talking ancient history there. All that stuff happened over a decade ago under a different CEO. When exactly do you move on from grinding an axe of over this sort of thing? Get some perspective.

        • TCM says:

          If there’s anything I’ve learned from RPS commenters, it’s that corporations are amorphous blobs without actual people in them, which continue to have the same business practices, opinions, and faults for all eternity.

          • Kadayi says:

            Indeed. I certainly don’t hold that any of the big players are without fault at times, but I do find this childish demonizing of them detrimental to real discussion. It tends to lead to conspiracy and that is just an unproductive route to go down.

          • cptgone says:

            while corporations do indeed consist of people, corporations have a social dynamic of their own that makes ‘em blind to every aspect of their environment (= our society, our planet) they can’t easily exploit for quick financial gain.

          • Kadayi says:

            We’re talking about games companies here, not oil companies. If game companies were truly exploiting us, then games would of kept place with inflation in terms of pricing. As it stands the pricing on AAA games has been static for several years, which actually translates to prices dropping.

          • mouton says:

            A year or two ago I talked with a fellow who still hates Valve for “what they did to Team Fortress” and how they betrayed the fans of the first title. So there.

        • FataMorganaPseudonym says:

          If by “ancient history” you mean that they’ve been in the process of doing this exact same thing yet again to BioWare ever since they bought them up back in 2007, then yeah… “ancient history.”

          Oh, and what happened to Pandemic, which was bought by EA at the same time that BioWare was? That’s right, they were demolished less than two years later, in the very same manner as just about all of the other companies absorbed by EA who came before. Ancient history, indeed.

          • Frankie The Patrician[PF] says:

            Corporate head hunting of today:
            1. Buy the whole company
            2. Suck out the talented people and useful assets
            3. Close the company and fire the remaining people

            VERY, VERY nice and moral…NOT

          • Kadayi says:

            Bioware still very much seem to be going, and the people they brought on are still very much there. So what are you left with pandemic? They just didn’t make particularly good games at the end of the day. If the product had sold then I’m sure they’d still be in business.

      • The Random One says:

        Ubi isn’t evil, it just hates the PC market. I play games on the dumb boxes as well and Ubi’s been pretty good to them.

    • noodlecake says:

      So EA aren’t really that bad then, for a corporate games company? Nobody has mentioned anything particularly evil. DLC isn’t always bad and Activision are far worse in almost every respect. EA publish a lot of very good games.

      • razorramone says:

        They’re hated because delusional gamers think that without them we’d be in a golden age of innovation and great games for all.

        • TCM says:

          People need an evil corporate empire they feel like they’re sticking it to, and EA is just big enough and cares about the PC just enough for folks to hate them for it.

        • Kadayi says:

          ^This. The continued anthropmophization of large organisations into malevolent eternal entities by people is frankly a joke. Not helped by a gaming press that loves to perpetuate this sort of retard thinking either.

          • doho7744 says:

            According to SCotUS EA is a person. And I can dislike a persons actions. So for me EA the person has done a lot of wrong over the past few years, and I find it hard to forgive and forget.

        • Kadayi says:

          ^This.

          The continued anthropmophization of large organisations into malevolent eternal entities by people is frankly a joke. Not helped by a gaming press that loves to perpetuate this sort of retard thinking either.

    • zbeeblebrox says:

      Around the start of and just prior to the latest console generation, EA was involved in a series of employee disputes involving overtime abuse and other sketchy stuff that ended in a class-action lawsuit which the employees won flat out. This *really* hurt their reputation, and that negative karma has followed them around ever since (deservedly so).

      I think it’s important to point that out to people when they ask, because so many people who hate EA don’t even know about that stuff. Their hatred came about through cultural osmosis, and so they’re tempted to rationalize their hate with less accurate excuses like “they make shitty games” or “their DRM is horrible”, which are both arguable at best. The truth is, their output is irrelevant. They’re just a terrible, terrible company to work for.

  10. Paul says:

    As long as no actual code and no concrete assets are stolen, I don’t see a problem with copying, even if the design is 1:1. Ideas should not be monopolized.

    • Naum says:

      To me, that sounds like massively encouraging the copycats of this world. As a matter of fact, having good ideas is usually a result of hard work, iteration and good amounts of money rather than just sitting there and staring at imaginary objects that all of the sudden magically fit together. If companies can’t protect that investment in some way, competitors may gain a significant advantage in that they don’t have to spend money on ideas and can instead improve the rest of the product or lower their costs. Which is what Zynga does very successfully.

      So, instead of abandoning the notion of patents altogether, I’d rather ask what we regard as a legitimate patent, i.e. which concepts we think are worth protecting (and for how long). If some Apple engineer has the ingenious idea of arranging app icons in a grid — which they have actually patented –, that is clearly not a relevant ‘idea’ as far as I’m concerned. But obviously, this is a very, very blurred line to be drawn, which is why as far as I know no legal system has yet attempted to define it, leading to the trivialisation of patents we are witnessing at the moment. Of course, this cripples innovation just as no patents would.

    • Ragnar says:

      Ideas are not monopolized, they’re too easy. Ideas are “cover-based shooter” and “social life sim” and “space opera”. Everyone has ideas for games, but they don’t get you anywhere.

      Implementation of ideas is very difficult, and making a good game from an idea is where the challenge lies. This is where you have design documents, art design, game systems, balance testing, etc. The beauty of Starcraft is not that it’s an RTS set in space with humans fighting alien insects fighting an advanced alien race. The beauty is that it has 3 factions which all play very differently, but are balanced such that they’re all equally competitive.

      Zynga aren’t stealing game ideas. They’re stealing whole game designs. They take a game, re-skin it, rename the units, and then pass it off as their own creation.

  11. LTK says:

    Zynga also claims that it was unlikely to have copied EA because The Sims Social’s userbase was already plummeting before The Ville was released. Holy non-sequitur, Batman!

  12. Kadayi says:

    I’d say Zynga are putting a brave face of a tough situation. The evidence does seem to favour EA and no amount of trash talking by Zyngas lawyers is going to alter that fact.

  13. trjp says:

    I’ve never really had a problem with EA – they make almost no games I’m interested in (I occasionally patronise their arcade racers but with ever decreasing enthusiasm) but otherwise I care little for them.

    Zynga tho – they make my skin crawl. My “learn yourself Android” stuff involved using Andengine which was developed by a guy who went on to work for Zynga and the appearance of (C) Zynga in the sourcecode was a major factor in my deciding to move away from it – much as you’d move away from someone who was showing obvious signs of the Black Plague…

    End of the day I don’t mind if these 2 fight to the death then – it may even add fire to the growing argument that something needs to be done about patents and, in particular, software patents – although Apple kindly demonstrated the relentless stupidity of that so powerfully that I suspect it will cost them their business…

  14. cptgone says:

    our judicial system needs to be reformed thoroughly.

    lawyers should litigate physically, while bookies take bets. trials last until there’s only one survivor, who then gets to take on the judge. the winner gets a new wig!

    meanwhile, a council of 3 honourable monkeys deliberate and render a verdict. finally, a party is thrown, with free bananas for everyone.

  15. Frankie The Patrician[PF] says:

    First world problems: Judge, their game is very similar to ours and that is unfair, because we spent lots of resources on copying them ourselves…I mean on RnD!

  16. sinister agent says:

    Whoever wins, we lose.

    Except that this should be quite entertaining. My money’s on EA, although the counterattack is surprisingly strong. It’s just a pity this can’t be settled by having the staff of both companies line up in a car park and run at each other with broom handles and dustbin lids.

  17. SkittleDiddler says:

    Even if Zynga win (which they won’t), they’ve only got a few good years left in them anyway. Facebook is going the way of the dodo, and as soon as the end comes, Zynga is going with them.

    As much as I dislike EA, Zynga are much, much, much worse.

  18. Jerakal says:

    Two companies that I hate are suing each other?
    And it’s not even my birthday!

  19. freduardo says:

    I can’t be the only one rooting for an activist judge to rule incontrovertibly, “EA and Zynga are both retarded. You are hereby required to abstain henceforth from making shitty games and either make better games or find better jobs for your employees and close down.”

  20. Beelzebud says:

    Here’s hoping they both sue each other into bankruptcy.

  21. paddymaxson says:

    I don’t totally hate EA. EA has waves of being shit. They’ll spend a few years making some cool original IPs (or making significant improvements to long running franchises like FIFA) and then spend a few years milking them/running them into the ground.

    While there’s a lot to be said for how big companies searching for profits hurts creativity, the fact that gaming can be taken seriously as an industry is because big companies have proven there’s money to be made.

    99% of the games you love, the creative ones, the awesome artistic ones couldn’t exist without what some pioneering companies have done, it just happens that those companies have become a bit arsey in their old age. If gaming hadn’t been forced to be so pervasive by companies like EA, there’d be a lot less great bedroom programmers.

    Anyway, I guess what I’m getting at is: EA are assholes, but sometimes they do something right, all Zynga does is milk the absolute worst of gaming, while stealing other people’s ideas, they really are a hideous company based on making bad ripoffs and then using dirty as hell monetisation schemes.

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