Mobile Mavens

The Mobile Gaming Mavens talk EA's legal tussle with Zynga

When two tribes go to war

The Mobile Gaming Mavens talk EA's legal tussle with Zynga

The Mobile Mavens is our panel of experts drawn from all sectors of the mobile gaming industry.

Not only has EA's intent to take Zynga to court over its alleged copying of The Sims Socialmade headlines the world over – some also believe the case could set a legal precedent if it goes to trial, calling time on clones for good.

So, we asked the Mavens:

Does EA and Zynga's legal tussle have the potential to impact the rest of the industry, or is this just a case unlikely to deliver the goods, simply handing two big players an excuse to openly snipe at each other?


John Ozimek Co-founder Big Games Machine

John is co-founder of PR and marketing company Big Ideas Machine. Also an all-round nice guy...

This kind of activity is inevitable when companies feel under (financial) pressure, but I don't think they'll be successful, unless it's on something specific and potentially copyright-able, such as the UI aspects of the design.

I don't believe you can protects gameplay mechanisms themselves, and I don't recall any cases where someone has won a case of 'your game is a lot like our game and we thought of it first'.

There is so much prior art in the games industry that it's incredibly difficult to prove copying rather than 'inspiration'.

What really gets my goat is when the same big companies that create games 'inspired by' great indie hits then themselves call in the lawyers to subsequently 'protect' their (unoriginal) IP, and pressure small developers who don't have the funds to fight to back down.

I know of a developer right now that's being threatened by a major studio based on nothing more than one word which they somehow believe they own, despite it being an everyday word that isn't trademarked.

It appears that the big studio wants to clear the ground ahead of the release of their own game that has a similar title. This kind of behaviour ultimately covers nobody in glory, and leads to a games industry where lawyers are more important than great ideas.

Joony Koo Head of Business Development Block Crafters

John, I think I know which company you are talking about. A friend of mine at Orca games received the same email.

One way of defending yourself from that kind of threat is to look for all the games or apps that were released before them or their trademark registration date and show them that they don't own the word.

I don't see this law suit between Zynga and EA going to trial. I don't have much to say on the issue except thumbs up to the lawyers. They are the winners!

Dave Castelnuovo Owner Bolt Creative

Although, I have a feeling you are right and it won't get to trial, I hope that EA goes all the way with it and Zynga is stubborn enough to put up a fight.

EA is one of the few companies that can actually afford to take a stance and I think we all agree that the writing is on the wall.

Many game companies are getting much more comfortable pushing copyright law to its absolute limit. To the point where it's an integral part of their business model.

Zynga, Gameloft, 6 waves, and many others make their money by finding successful games and cloning them all the way down to their colour scheme, logo design, and play mechanics.

Currently, most people believe that copyright law doesn't cover many of these infringements, but that's just because no one has challenged it in the court system yet. The music industry went through a painful process of going after infringing artists so that the courts could define how copyright applies to their industry.

This is why you can't steal someone's melody regardless of what instrument you play it with or how it's presented.

The game industry is following copyright law that is more appropriate to static graphic design than an interactive and immersive world.

Basically, infringement is grey area unless you directly copy a game's graphics, music, or text. You might still have a case if you can prove access or confusion in the market place but it costs a great deal of money to get in front of - hopefully - reasonable people that can make that judgement based on evidence.

Until you get to the point where someone can review the facts, you are basically in a game of financial chicken.

Since most parties that clone games are already unreasonable, there is no winning with logic and facts. It's only by bluster and the threat of financial loss that you can hopefully get the other party to back off.

And backing off doesn't necessarily mean that you win and they take their game down, it can be something as simple as changing a small portion of their art so it looks a tiny bit less like your game.

Some people are fearful that protection of game mechanics would require more patents. More patents in the game industry is a disaster waiting to happen. For the game industry to grow, we need to be able to riff off and expand mechanics from other games.

We should be able to look at Flight Control and come up with Harbor Master. A patent for line drawing games would prevent that. and if you think Lodsys was a nightmare for mobile developers, just wait until the patent portfolio companies start trading in game mechanic patents - some of which may actually be legitimate patents.

Large companies in the electronics industry may be able to navigate those waters but indie game developers have no way of dealing with the licenses, royalties, and time suck that it takes to deal with that world.

Unfortunately, with the current understanding of copyright law, patents are the only way for large companies to protect core mechanics of their game. They have a duty to their shareholders to do whatever they can to prevent companies like Zynga from stealing their ideas.

In order to prevent the patent system from destroying our industry, I think we need better clarification in how copyright applies to game design so we all have more effective tools for protecting ourselves.

I really hope EA does it but, realistically speaking, I'm sure Zynga would back down and cut its losses on the Ville rather than risk a change to copyright law that destroys its entire business model.

It's kind of funny that this came up this week. We are getting close to releasing some vinyl toys and were thinking that it would be cool to do a Skylanders thing where we would use AR to unlock new content if the player has certain toys.

A friend of mine that is close to the people at Activision told me that have a ton of patents around that technology. If he didn't tell me, I would have no idea and I expect we would have had to deal with an unpleasant situation sometime in the future.

While I'm sure we could approach them for a license, it all sounds like way more of a pain in the arse than the original fun idea.

It's a bit sad when companies take ideas like this off the table and even sadder still that other developers, unknowingly, will likely do something cool only to have a large company come along, take its money and more importantly create a huge distraction that will prevent them from building its business.

With a fine eye for detail, Keith Andrew is fuelled by strong coffee, Kylie Minogue and the shapely curve of a san serif font.


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