Really, really fun news this week as Zynga filed a lawsuit against a copycat. The complaint is nothing short of entertaining ( at least five pages of screenshots), and the techcrunch article even has the accompanying video, which shows side-by-sides of players playing both games. Here’s a couple important things to think about when you chat about this over the watercooler:
Zynga has a reputation as a game stealer, but stealing games isn’t usually illegal. Notice I didn’t say they stole games: barring really extreme situations, you can’t “STEAL” a game and have an actionable right under copyright law. Copyright protects original expression fixed in a tangible medium. That part is easy, but when the copycat reproduces everything themselves, it’s hard to draw the line between inspiration and blatant ripoff. If you straight up rip the art pixel by pixel from a game and reproduce it without permission, then that’s copyright infringement. But short of that, nobody has really explored where the line is for copyright infringement in a video game/facebook game. Game mechanics aren’t usually subject to copyright law, so the fact that coins pop out when you click on a house in both Cityville and Vostu’s clone doesn’t mean a whole lot. And copying the art style of a game is close to accepted practice in the social game world, where Zynga rose to fame on the shoulders of other, extremely similar games by lifting the art styles of those games (Google “farmvillians” for more background if you don’t know). While people complained about Zynga’s art appropriation, and while they were sued by those games, those suits were mostly over trademark infringement, not copyright infringement, and they were settled before legal costs could ramp up. Zynga might have been able to win most of those suits had they wanted to fight them out.
Blatant copying doesn’t really WORK in social games. Copying allegations were a big part of Zynga’s early history, but most people recognize that copying wasn’t what made Zynga’s games popular. Social games spread through virality, through network effects, and through cross-promotions with other games in the developer’s network. Zynga realized this early on, and while they did borrow most of the mechanics from the early games from others, they also added all of the features that grew the game, and they tweaked it to make the user base into a revenue generating monster. Even copying these mechanics, Vostu hasn’t really made much off of it for many of these reasons (you can’t copy a critical mass of users). Has Vostu actually benefitted from this copying? Vostu has half a million users, monthly. Zynga has 264 Million. So I don’t think their copying is really helping that much.
The legal strategy is interesting. Zynga isn’t bringing out the big guns on this one (they are already spending A LOT on their IPO, to be sure). No offense whatsoever to Keats, McFarland and Wilson LLP, the firm handling the complaint, but it’s a six attorney boutique in Beverly Hills. Not exactly a traditional heavyweight in the copyright or startup world by any stretch, and google searches turn up nothing much on the lead attorney on the case, Dennis L. Wilson. A few complaints that he was aggressive in sending out notice letters when he was at Fox… Like I said, I’m sure he is great, but hiring that firm to take the case is, in my estimation, a slight reveal of what Zynga is thinking. I’ll elaborate:
Zynga probably doesn’t care if they win or not. Zynga doesn’t need to win. Zynga is FLUSH with money, and they literally don’t care if this lawsuit goes on forever. They may WANT it to go on forever. If this is a battle of attrition, Zynga just needs to not get brushed aside in a summary judgement, and then hope Vostu can’t afford to pay the bills for a drawn out fight. Maybe draining Vostu’s resources is enough. Maybe the lawsuit scares away future investments into Vostu. Maybe the lawsuit helps assure Zynga’s potential IPO investors that the company’s core business isn’t easily copyable (ahem groupon ahem). All of those outcomes are achieved by assuring that the lawsuit survives just a few months, so it really doesn’t matter if Zynga wins. Vostu isn’t really even a threat to Zynga: Vostu has half a million users across all of their games, compared to Zynga’s 264 MILLION.
It’ll be fun to watch the suit though, because if Vostu fights it, we may get a court to make some strong precedent on where the line is between copying and homage in a genre of entertainment where that line is blurred constantly.
danielmarkmiller.net 