Forgive me the indulgence of continued discussion about the Zynga v Vostu lawsuit when so little has transpired since the filing of said lawsuit in the last week. If you didn’t hear, Zynga is suing Vostu for copying the art style and game flow of many of their titles. To catch you up, Vostu said Zynga is a copier as well, and that Vostu doesn’t copy anyway, a great standard lawyer-advised answer. But this case fascinates me:
Copyright law is generally justified like this: If we didn’t have it, people wouldn’t create things as often. It’s a right that we give out because we are afraid of what would happen to creativity in a world without it, and we want to encourage big cultural contributions through art and music and writing by letting the creators of that art make money. We have this idea that too little protection would stifle our cultural richness by disincentivizing creativity. But we worry about too much protection as well – we carve out space for modifications to existing art, and for criticism and educational use of such cultural materials through the fair use and first sale doctrines, along with free speech. So it really is a rather delicate balance, as ‘just enough’ protection should lead to the greatest gains for our culture, as well as the proper profit motive for artists.
Copyright law typically doesn’t do much in the realm of video games. Yes, if somebody makes copies of a game’s disc and distributes it, copyright is there to stop it. But that same result can be achieved through contract, as it is in other parts of software and with databases contained on software – simply by granting limited licenses to users, companies can effectively prevent unauthorized distribution, perhaps MORE effectively because the license can defeat the first sale right. So copyright law is pretty useless to video games in that regard, as its benefits as a piracy-preventer could be replicated using other legal doctrine. It is redundant at best, and actually somewhat limiting at worst (some video game developers would love to quash the used game marketplace by removing the first sale right through contract).
Now in terms of the original motivations for copyright law, does having it really encourage more games to be made than we would have otherwise? It’s pretty tough to say – unfortunately our forefathers weren’t particularly into using treatment and control groups when they theorized what impact strong IP rights would have, so we ended up with pretty crappy, flawed patent and copyright laws. So we just have to guess – if copying a video game could be done, would it work, and how hard would it be to build a strong enough business off of a copied game that future developers would be discouraged? Note that the question is far more straightforward when you consider the impact of copying on the market for a book or a piece of music: especially in the digital age, unauthorized reproduction of those (relatively simple) forms of entertainment kills the value of the original for the artist – If I copied a best selling novel and sent it to all my friends and sold it on the street for a dollar, I’d effectively displace the sales of that book to all of those people. If that sort of action was widespread, we would genuinely have fewer people taking the time to write books.
But can the same be said about video games? As noted above, video games are harder to copy. You can burn a disc and hand it to your friend, but that’s not really scalable and basic licensing rules can deal with that threat just as adequately as copyright can, albeit with a bit more effort. Computer games are pretty widely available via torrents, so obviously copyright isn’t doing a whole lot there, and as I mentioned, licensing could just as easily establish a legal basis for preventing that. Social games on facebook or the web are essentially impossible to distribute to your friends – they are usually free to access anyway, and the whole point of the games is to encourage users to invite their friends to join (Someday the music industry will figure out that this is the model they ought to be using, but that’s beside the point).
Back to the Zynga v Vostu case: Zynga makes games, and they are wildly successful thus far. Vostu is making very close copies of these games and marketing them in regions of the world where Zynga is not yet dominant. It’s not working very well (Vostu has only 500,000 users, compared to Zynga’s 267 million) – what makes social games effective are the viral mechanics and fine-tuning that incentivize you to invite friends, keep playing, and pay for virtual goods. Those sorts of things aren’t readily copied – unlike a book or a song, where it takes an army to create the work but just an individual to copy it, social games take an army to create and an army to copy. Free-riding is not the same in social games. As Vostu pointed out in their defense, they are a company of 500+, not a guy in a basement redistributing Zynga’s products. Social games don’t need copyright law, because the elements that make them successful (engagement mechanics, notification mechanics, tweaked progression, feedback loops, carefully chosen monetization points) aren’t subject to copyright protection.
It’s surprising Zynga even sued over the issue: Megacity, the most successful game in Vostu’s catalog, has just about 300,000 monthly users and only 30,000 daily users, while Cityville, the game it copied, has 90 million monthly and 30 million daily users. The DAU as a percentage of MAU paints an even uglier picture for Vostu compared to Zynga (only 10% of Megacity players return daily, compared to twice that for Cityville). I’m sure Zynga monetizes those users better as well, though there is no way to know. So while I’ll undoubtedly have a great time watching the Zynga lawsuit as an observer, Zynga doesn’t need copyright to protect it’s core business – it’s core business is a mastery of engagement, notification, progression, and monetization, not art style.
(Update: Based on Vostu’s response, it appears that they have a robust core of millions of users in Brazil which Appdata, the only real source on numbers for social games and the basis for my numbers above, didn’t capture. This doesn’t necessarily change my opinion, but it’s worth noting.)
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