EA vs Zynga: a PR masterstroke, but EA must not settle

So, Electronic Arts is suing Zynga, accusing the social gaming titan of infringing its The Sims Social copyright with its new Facebook game, The Ville. The full complaint suggests EA has a solid case, but while its legal team may be confident, champagne corks must already be popping in the publisher's PR department. As widely reviled as EA is, Zynga is on another level of evil as far as gamers are concerned. Who's the worst company in America now?

US copyright law is rather vague for videogames, as we've covered several times in the past, but EA appears to be on solid ground. Legislation hinges on the concept of "idea vs expression": you can't copyright an idea, but you can protect the way in which that idea is expressed. EA's complaint focuses on how Zynga's The Ville has seemingly copied wholesale many visual elements from The Sims Social: most damning is the discovery that The Ville's character skintones use identical RGB profiles to those in EA's game, the odds of which happening accidentally are in the tens of millions to one.

The ultimate test, US IP lawyer Greg Boyd told us a few months ago, is substantial similarity - and few would contest that Zynga's work is not substantially similar in appearance to EA's. "I know that doesn't sound like much of a test, but it is hard to improve on it," Boyd said. "Just think about what the deliberate fuzziness of it allows us to capture. Think about how broadly it needs to be applied - to every form of art out there."

While one reason for copyright law's vagueness when it comes to games is the wording of the law itself, another is that there is little legal precedent. One of the earliest videogame copyright suits found that North American Phillips' game KC Munchkin infringed on the Pac-Man copyright because it failed the substantial similarity test, but there has been little of substance since and the business of videogames has changed enormously in the intervening years.

Much of that is doubtless down to the industry's reluctance to set a precedent. There are few truly original ideas in videogames; more accurately defining copyright law could open the floodgates for widespread abuse of the system, as we've seen in US patent law. Yet that rather misses the point, and anyone familiar with videogames can tell the difference between, for example, Crash Team Racing and Mole Kart. One draws inspiration, the other clones.

The industry needs this precedent more than ever now that games can be created and released by lone bedroom coders and small unscrupulous teams in a matter of weeks. The App Store is riven with clones and knock-offs; on Android, it's even worse. As onerous for the new breed of indie developers as these nimble cloning operations are, that the same is being done by publicly traded companies with market caps in the billions of dollars speaks volumes. Something has to be done.

And EA is best positioned to do it. Writing on EA's The Beat blog, Maxis GM Lucy Bradshaw explains that the Zynga suit is "a case of principle. Maxis isn't the first studio to claim that Zynga copied its creative product. But we are the studio that has the financial and corporate resources to stand up and do something about it.

"By calling Zynga out on this illegal practice, we hope to have a secondary effect of protecting the rights of other creative studios who don't have the resources to protect themselves… Today, we hope to be taking a stand that helps the industry protect the value of original creative works and those that work tirelessly to create them."

Which is why it is of the utmost importance that EA sees this through to the end. The last time we saw such a strong case Zynga was the plaintiff, accusing Brazilian social game developer Vostu of a string of copyright infringements across several games. That ended in settlement, with Zynga receiving an unspecified amount in damages and Vostu making several changes to its games.

EA has already shown its willingness to settle an argument behind closed doors, with agreement reached with Activision in the row over the deposed heads of Infinity Ward, avoiding a potentially messy - and juicy - battle in the courts. This could be an even more riveting spectacle given the allegation of corporate espionage: EA points out that Zynga COO John Schappert was under EA's employ, heading up its nascent social game business, when The Sims Social was in the final stages of development.

There must be no out of court settlement. This is a PR masterstroke from EA, showing the company using its financial and legal might for the benefit of the industry at large and taking on a competitor its userbase largely despises. But any goodwill gained will soon be lost if an undisclosed settlement is reached by two teams of lawyers behind closed doors. The industry needs an EA victory to protect the new breed of independent developers against cloning. To secure an injunction preventing Zynga from doing it again and again. To set a precedent that fosters creativity. And to set the social gaming sector on the right track, where companies succeed on their own merits, not on how speedily and brazenly they can copy their competitors.