Is Zynga the evil emperor of the social scene, or does the problem extend beyond everyone’s favourite scapegoat? Nathan Grayson reports.

What actually constitutes stealing? Does “copy pasting somebody else’s hard work and then watching the cash roll in” count? Sounds about as black-and-white as it gets, but the gaming industry’s dug deep into the issue, and the only thing it’s struck is a messy, spurting vein of gray.

Don’t swipe the pie from the windowsill. Don’t take a cookie from the cookie jar. “Bank robber” is not a viable profession. When I was a child, my mother drilled each of the above into my head, and there’s a common lesson to be learned among them. The short version? Don’t steal. Police will shoot you. Some of them really like cookies.

Funny thing about being an adult, though: Things get really complicated really fast. Suddenly, life becomes a tightrope-walking chainsaw juggling act, and nothing makes sense anymore. You’ve got taxes and rent and a family to deal with. If you don’t go to the gym, you will inflate and die. If you break the (oftentimes arbitrary) rules, you will go to jail and get a spanking of an entirely different sort. Life’s not the black-and-white perfection palace you thought it was. You do what you have to do, even if it means getting your hands dirty. The angel and devil on your shoulder go out for drinks every Friday.

So honestly, in the face of all that, what actually constitutes stealing? Does “copy pasting somebody else’s hard work and then watching the cash roll in” count? Sounds about as black-and-white as it gets, but the gaming industry’s dug deep into the issue, and the only thing it’s struck is a messy, spurting vein of gray.

If you want an example, you need only look as far as Zynga’s recent brazenly red-handed tactics. Tiny Tower and Bingo Blitz are obvious victims of sloppy chop jobs, but neither indie has been able to play David to the social giant’s Goliath. And Zynga’s hardly the only one at the scene of this apparent crime. So, what gives? Well, as per usual, things aren’t as simple as they seem.

Seeing double

Every social game should have a lawyer as part of its design team, EA chief creative director Richard Hilleman explained during the SMU Game::Business::Law summit in Dallas, Texas. Yes, design. A lawyer should be there every step of the way, he argued – from the very beginning.

Subscribe to the VG247 newsletter Get all the best bits of VG247 delivered to your inbox every Friday! Enable JavaScript to sign up to our newsletter

“Social games are a business first and a game second. Design around that and accept all those business responsibilities first. You cannot retrofit the business in later. Social games are almost completely backward in every way,” he stated candidly of an approach that’s given rise to strategies like buyable items that decay over the course of days, which keeps monetary “churn” constant.

“So much of social gaming is about designing as close to the legal line as possible. You have to drive close to the line to make the business work. So you have to know where the line is. If you’re gonna drive into that business, you’d better have help. You can no longer depend on the goodwill of your competitors. You have to protect your own real-estate.”

That’s the mentality much of the social gaming space is built on. It’s not dog-eat-dog so much as it is monkey see, monkey do, monkey sue. But why? Why are emerging game platforms like social and mobile such precarious legal minefields?

“Well, I don’t think this industry has been free from lawsuits,” said Insomniac CEO Ted Price, whose company is in the process of launching its own social gaming initiative, Insomniac Click. “There have been plenty. They just haven’t made headlines as often as what we’re seeing today. There are a lot more similarities between games in the social space, and everybody’s jumping on what seems profitable at the time. There are trends that are popping up and flaring out very quickly. Everybody wants a piece of it, so you get a lot of plagiarism.”

“Practically speaking, the reason it happens is that one can build a social game faster and more cheaply than a console game. You don’t see this very often in the console business for a lot of reasons. The practical reason you don’t see it is because people are spending a lot of money and a lot of time making triple-A games, and I don’t think developers want to go head-to-head with exactly the same concept because everyone loses generally.”

“Social games are a business first and a game second. Design around that and accept all those business responsibilities first. You cannot retrofit the business in later. Social games are almost completely backward in every way.”

Hilleman, meanwhile, chalks it up to the very DNA of modern games, which is no longer fixed. Back in the day, games had a very specific trajectory. They leaped from shelves into your hands, from hands into a console, and – once soundly beaten – from console into a dusty closet that might also have been a portal to Narnia, never to be seen again. Now, though, odds are that your favorite game is a constant presence in your life. It’s a “service.” You don’t simply save the princess and call it a day.

“My opinion is that our shelf life of our business in the past has precluded our ability to really respond to that effectively to [copies],” Hilleman explained. “So the only real answer was to build a new product that took your users back. So what’s changed is that when software is a service, suddenly that’s not the equation anymore. When you lose your customer, you may never get them back. So the stakes are higher, and the periods and consequences of loss are more extensive.”

“The other thing is that free-to-play is that 20:1 or 100:1 ratio. For every paying player you lose, it changes that ratio in a dramatically negative way. So I think those are the two effects.”

I fought the law

So it’s a giant gold rush, and everyone wants their slice of the pie. In that sense, it’s gaming’s latest Wild West – a place that’s abandoned triple-A gaming’s established rules of etiquette and conduct. A lawless land full of lawyers. Obviously, it’s a perfect place for the Zyngas of the world to throw their weight around or, say, the blatant platform-leaping theft of Ninja Fishing’s iOS assassination of Ridiculous Fishing or, well, Gameloft’s entire game library.

From a legal standpoint, though, can comparatively scrawny indies do anything to avoid getting hung from flagpoles by the industry’s biggest bullies? Unfortunately, the prognosis isn’t so hot. The law, it seems, isn’t exactly on their side.

“Whenever anyone’s copyrighting something, they’re protecting their code and the cumulative end effect of the expression – but not necessarily the idea behind it,” explained Dallas-based attorney and former Joystiq “Law of the Game” columnist Mark Methenitis. “So if I’m gonna make a farm game, it’s inevitably gonna look like Farmville or MyFarm or any of the 12 farm games. And I’m not really infringing on anything just because that’s how it’s gonna work.”

“I mean, if you were copying every single game mechanic down to the Nth degree and you were copying all the assets or you’d stolen the entire backend code, then you’d be doing something to infringe. But otherwise, you can have a lot of apps that are pretty similar and just look that way because that’s the way they should look.”

What it really comes down to, then, is the miles-wide gulf between copyright law and patent law. Methenitis continued:

“No one has been out there patenting any of these social games. If they’d been out there patenting it, theoretically you could get protection for the idea. One example is Crazy Taxi. There actually was a patent on that idea. And there ended up being a lawsuit over Simpsons Road Rage where they ended up settling out of court because it was infringing on the patent. It’s a different consideration than what you get with copyright where it’s only protecting the thing as a whole – rather than the idea specifically.”

Side-by-side comparison video used by

Zynga in its copycat suit against Vostu,

courtesy of Techcrunch.

Innovate or die

Beyond that, however, lies only madness. Fighting back is an impossibly tall proposition when you don’t have stable ground to stand on – let alone necessary funds to avoid drowning in a sea of legal fees – and that’s the position many smaller developers find themselves in today.

“You are sort of out of luck [in terms of a lawsuit] unless Nimblebit decides to sell out to, say, a Playdom,” said Methenitis of the Tiny Tower/Dream Heights controversy. “But ultimately, it’s not really copying the game. It’s just sort of copying the game genre. The tower thing. And Tiny Tower was based on an even older series of games from the ’80s and ’90s that was a whole genre that was much more popular in Japan than it was here.”

Hilleman, meanwhile, shared a similar – though slightly more optimistic – point of view.

“What I can say is that there are a lot of people who spent time making something. Good for them. From my perspective, [Tiny Tower]’s derived from yet another product. So having people who I don’t think invented something arguing about it is comical at best. What I would say in this case is I would hope people who did great creative work didn’t get punished for that work.”

“I said earlier today that sometimes those circumstances are a calling card for your expertise. I suspect Zynga’s relatively aggressive behavior with them will buy Nimblebit friends.”

What, though, of platform owners like Facebook, Apple, and – in the case of the Minecraft-clone-packed Xbox Live Indie Games Channel – Microsoft? Surely there’s something they can do to keep their spit ‘n’ shined storefronts from devolving into hives of scum and (arguable) villainy, right? If you read that sentence and then said “Yeah, totally,” I admire your dogged determination to stay upbeat. Reality, though, is a total jerk sometimes.

“Really, their only space to play is if they get a takedown notice involving something that’s actually infringing,” said Methenitis. “Otherwise, they want to keep things as open as possible, because if there’s more content, they make more money. Unless one of them decides they want to take a sort of philosophical stand on it, it’s unlikely they’re going to do anything unless, again, Apple buys Nimblebit or something.”

Numbers, however, support a policy of non-involvement. Zynga, for instance, was responsible for 12 percent of Facebook’s 2011 revenues. 12 percent! So how the hell does one stay afloat in these hydra, Loch Ness Monster, and Bigfoot-wearing-a-scuba-suit-infested waters? Here, at least, there is consensus – slim though resulting consolation may be. The short version? Beat everyone else to the punch and don’t talk to anyone ever.

“Innovate. Innovate. There is no other answer. If the elephant tries to step on you, you have to move,” Hilleman replied without missing a beat.

How the hell does one stay afloat in these hydra, Loch Ness Monster, and Bigfoot-wearing-a-scuba-suit-infested waters? Beat everyone else to the punch and don’t talk to anyone ever.”

“If you can’t protect, innovate,” Methenitis agreed. “If you stay one step ahead and always have the more interesting product, people are going to pay money for it regardless of whether there’s three clones of it that aren’t quite as good. Really, your best defense is a good offense.”

History, though, paints a somewhat less encouraging picture. You need only take a look over Zynga’s track record to realize that smart, innovative companies are crunching around in the gears of the social giant’s moneymaking machine. Mob Wars, Farm Town, Social City, and Gardens of Time all launched first, only to fade into obscurity once Zynga released eerily similar equivalent products. Ninja Fishing and Capcom’s MaxSplosion, meanwhile, displayed similar success in the mobile space while shamelessly steamrolling right over brilliant indies. So perhaps Insomniac’s Price has the right of it when he opts to say nothing at all.

“I’m not gonna say anything about our social games, and one of the reasons I’m not is because of what you just mentioned. I think when you’re going into the social space, you have to be very careful about what you say. You have to make sure there isn’t any chance that your idea is going to be used by someone else. Period.”

Damned if you innovate, damned if you don’t. Either your big idea eventually gets swiped, or no one notices you in the first place. Is it any wonder people have such a hard time making these things fun when they’ve got so many other putrid dishes on their plate?

I love games. I love this industry. Situations like this, though, really make me wish my mom would have just let me become a bank robber.