The heavyweight showdown between gaming behemoths Electronic Arts and Zynga has just entered round two, with a significant fight back from the Facebook giant. In August, EA filed a lawsuit against its Bay Area rival, claiming that Zynga’s Facebook life sim The Ville infringed the copyright of its own title, The Sims Social.
And on Friday Zynga responded.
It has employed Quinn, Emanuel, Urquhart & Sullivan, LLP, the law firm hired by Samsung in its battle against Apple, and has filed a counter-suit against EA. The papers allege that last year, EA chief executive John Riccitiello instructed the firm’s lawyers to seek a ‘no hire’ agreement from Zynga, restricting it from luring away any further EA staff. This allegedly came after EA lost three key executives to its rival: John Schappert, Jeff Karp and Barry Cottle.
In a testy and obstropolous counter-claim, Zynga states: “EA sought, by threat of objectively and subjectively baseless sham litigation, what it could never lawfully obtain from Zynga – a no-hire agreement that would bar Zynga’s hiring of EA employees.” The paper goes on to suggest that lawyers representing EA contacted Zynga, indicating that Riccitiello was on the “war path” and that if a ‘no hire’ agreement wasn’t reached he “would direct a lawsuit to be filed against Zynga ‘knowing there was no basis and even though he loses’.” Zynga says that it conceded to an agreement, but that EA went ahead with a copyright infringement action anyway – a tactic it calls “chilling”.
‘No hire’ agreements have been a feature of the tech business for many years, especially in San Francisco where so many closely competing corporations are huddled together in the same areas. However, restrictive employment agreements of this sort were outlawed by the US Justice Department in 2010.
So does Zynga have a case here? “This counter-claim is to be expected and no doubt EA would have anticipated it,” Alex Tutty, of media law firm Sheridans, tells us. “It is difficult to assess the merits of the action for unfair competition based only on Zynga’s filing, but if the statements are true EA may have gone to considerable lengths to prevent its employees from joining Zynga.”
According to Tutty, placing restrictive covenants on outgoing employees is permitted under English law as long as it is a temporarily measure designed to protect a legitimate business interest. However, things are different in California. “The law protects the interest of the employee to freely move between companies,” says Tutty. “This does not mean an employee can use trade secrets from their previous employer. It would not be surprising if EA’s reply to this filing looked to argue that these practices were necessary to maintain trade secrets as well as denying those claims which are incorrect.”
Alongside the counterclaim, Zynga has also filed two further documents with the San Francisco court. One seeks to strike what it calls “a ramble of immaterial, inflammatory and prejudicial allegations” from EA’s lawsuit. The filing asserts that references to previous legal actions involving Zynga and other developers (Psycho Monkey, the creator of Mob Wars and SocialApps, responsible for myFarm) were irrelevant to the case and there to unfairly influence a jury.
In its third document, as an answer to the copyright infringement claim, Zynga asserts that EA did not invent the ‘life sim’ genre with The Sims, and that Will Wright himself acknowledged his debt to previous titles, including Activision’s 1985 title Little Computer People. It also goes on to argue that EA drew a significant number of concepts from Zynga’s CityVille to produce SimCity Social. It’s effectively the old iteration versus plagiarism row, which has been a staple of the games industry since Magnavox spent most the of the ’70s and early ’80s suing the likes of Activision, Mattel and Coleco for infringing copyrighted technologies in its formative Odyssey console.