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Part 1 Zynga's Motion to Strike

Part 1 Zynga's Motion to Strike

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1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Claude M. Stern (Bar No. 96737) 2 claudestern@quinnemanuel.com Karin Kramer (Bar No.

87346) 3 karinkramer@quinnemanuel.com 555 Twin Dolphin Drive, 5th Floor 4 Redwood Shores, California 94065-2139 Telephone: (650) 801-5000 5 Facsimile: (650) 801-5100 6 PAUL HASTINGS LLP Bradford K. Newman (Bar No. 178902) 7 bradfordnewman@paulhastings.com Peter C. Meier (Bar No. 179019) 8 petermeier@paulhastings.com 1117 S. California Avenue 9 Palo Alto, CA 94304-1106 Telephone: (650) 320-1800 10 Facsimile: (650) 320-1900 11 Attorneys for Defendant Zynga Inc. 12 13 14 15 16 17 ELECTRONIC ARTS, INC., 18 19 vs. Plaintiff, CASE NO. 3:12-CV-04099-SI ZYNGA'S NOTICE OF MOTION AND MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES Date: Time: Courtroom: December 21, 2012 9:00 a.m. Courtroom 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

20 ZYNGA INC., 21 22 23 24 25 26 27 28
03880.51975/4961402.2

Defendant.

Complaint Filed: August 3, 2012

Case No. 3:12-CV-04099-SI ZYNGA'S MOTION TO STRIKE

1

NOTICE OF MOTION AND MOTION

2 TO THE CLERK OF THE ABOVE-ENTITLED COURT, PLAINTIFF, AND ITS ATTORNEYS 3 OF RECORD: 4 PLEASE TAKE NOTICE that on December 21, 2012, at 9:00 a.m. or as soon thereafter as

5 this matter may be heard, in Courtroom 10 of the above-entitled Court, located at 450 Golden Gate 6 Avenue, San Francisco, California 94102, before the Honorable Susan Illston, defendant Zynga 7 Inc. will, and hereby does, move the Court for an order striking, pursuant to Federal Rule of Civil 8 Procedure 12(f), the following allegations and exhibits from Plaintiff Electronic Art’s (“EA”) 9 Complaint because they constitute redundant, immaterial, impertinent and/or scandalous matter 10 that is unfairly prejudicial to Zynga: 11 12 13 14 15 16 17 18 1. Paragraph 4 and corresponding footnotes; 2. Paragraph 6 and corresponding footnotes; 3. Paragraph 32 (starting at page 9, line 5), and the copyright registrations included in Exhibit A for The Sims, The Sims 2, The Sims 3, MySims, and The Sims Online which are referenced in Paragraph 32; 4. Paragraph 33 through Paragraph 52 and corresponding footnotes; and 5. Paragraph 61 through Paragraph 62 and corresponding footnotes. This motion is based on this Notice of Motion, the attached Memorandum of Points and

19 Authorities, the pleadings and documents on file in this case, and all other evidence and arguments 20 as may be presented at the hearing on the motion. 21 22 DATED: September 14, 2012 23 24 25 26 27 28
03880.51975/4961402.2

QUINN EMANUEL URQUHART & SULLIVAN, LLP PAUL HASTINGS LLP

By /s/ Claude M. Stern Claude M. Stern Attorneys for Defendant Zynga Inc. -2Case No. 3:12-CV-04099-SI ZYNGA'S MOTION TO STRIKE

1 2 3 1. 4 5 6 7 2. 8 9 10 11 3. 12 13 14 15

MEMORANDUM OF POINTS AND AUTHORITIES QUESTIONS PRESENTED Should the Court strike allegations from the Complaint that quote from and cite to blogs and internet publications that serve no purpose other than to try to portray Zynga in a bad light, cannot be used to prove any element of plaintiff Electronic Arts Inc.’s (“EA”) claim, and therefore have no bearing on EA’s single claim for relief? Where plaintiff has alleged a single claim of copyright infringement involving one game, should the Court strike allegations regarding accusations and unproven claims related to other games, including games of third parties, that have no bearing on EA’s claim for relief? Where EA has alleged a single claim of copyright infringement involving one game, should copyright registrations for other games that are attached as exhibits to the Complaint be stricken so that there is no confusion about which works are at issue? PRELIMINARY STATEMENT EA has brought a single-claim complaint for alleged copyright infringement against

16 defendant Zynga Inc., raising one narrow issue: does Zynga’s game, The Ville, copy protectable 17 elements of EA’s game, The Sims Social? In sharp contrast to the confined inquiry that single 18 claim requires, EA’s Complaint is an unrestrained ramble of immaterial, inflammatory, and 19 prejudicial allegations that have no bearing on the issue at hand. These allegations are so patently 20 irrelevant to the case that they appear geared more towards inciting the press coverage they 21 generated than contributing to legal analysis. Zynga therefore moves to strike them. 22 23 24 25 26 27 28
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The objectionable paragraphs of the Complaint comprise the following categories: • Selectively quoted – and even anonymous – comments from the blogosphere and internet publications whose sole apparent purpose is to try to portray Zynga in a bad light; Allegations regarding other Zynga games that are not accused in this case; Allegations regarding disputed accusations and claims involving Zynga and third parties which EA has no standing to assert and which have no bearing on whether The Ville infringes The Sims Social;

• •

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• •

Extensive reference to an old EA game known as The Sims, which EA does not accuse Zynga of infringing; and An exhibit made up of copyright registrations for other EA games that EA has not put at issue in the Complaint.

5 Each of these categories meets the standard for a Federal Rule of Civil Procedure 12(f) motion to 6 strike. Together, they represent a smear campaign. 7 If these allegations are left in the Complaint, EA doubtless will claim they provide the

8 basis for discovery into the matters raised by those allegations – matters that have nothing to do 9 with its actual claim. The result will be discovery and evidentiary disputes that will burden the 10 Court and Zynga. 11 To avoid the confusion and prejudice these allegations will engender, and to spare the

12 Court and the parties the unnecessary expenditure of resources that inevitably will arise from 13 litigating disputes over extraneous matters, Zynga respectfully requests that the Court strike the 14 designated allegations. 15 16 LEGAL STANDARD A party may move to strike any “insufficient defense or any redundant, immaterial,

17 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f); see also Whittlestone, Inc. v. Handi18 Craft Co., 618 F.3d 970, 973-74 (9th Cir. 2010) (Rule 12(f) authorizes district court to strike 19 “insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”). “The 20 function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise 21 from litigating spurious issues by dispensing with those issues prior to trial.” Fantasy, Inc. v. 22 Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) [Fogerty], rev’d on other grounds by Fogerty v. 23 Fantasy, Inc., 510 U.S. 517 (1994). Although “[m]otions to strike are generally regarded with 24 disfavor,” Greenwich Ins. Co. v. Rodgers, 729 F. Supp. 2d 1158, 1162 (C.D. Cal. 2010), the 25 decision as to whether to strike material from the pleadings is vested in the discretion of the 26 district court, see Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000) (appellate review of 27 12(f) decision uses abuse of discretion standard). 28
03880.51975/4961402.2

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The four types of material suitable for disposition by a Rule 12(f) motion are defined as

2 follows: 3 4 5 6 7 8 9 10 11 12 13 • • • • Immaterial matter “is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Cal. Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1032 (C.D. Cal. 2002). “Redundant allegations are those that are needlessly repetitive or wholly foreign to the issues involved in the action.” Id. “Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Fogerty, 984 F.2d at 1527. “[S]candalous matters are allegations that unnecessarily reflect [] on the moral character of an individual or state [] anything in repulsive language that detracts from the dignity of the court, and include [] allegations that cast a cruelly derogatory light on a party or other person.” Consumer Solutions REO, LLC v. Hillery, 658 F. Supp. 2d 1002, 1020 (N.D. Cal. 2009) (internal quotation marks omitted).

A motion to strike should be granted when “the matter to be stricken clearly could have no

14 possible bearing on the subject of the litigation.” Spencer v. DHI Mortg. Co., Ltd., 642 F. Supp. 15 2d 1143, 1168 (E.D. Cal. 2009). 16 17 LEGAL STANDARD FOR COPYRIGHT The application of Rule 12(f) to a claim of copyright infringement requires measuring the

18 immateriality and impertinence of the challenged allegations against the elements of a copyright 19 claim. Survivor Prods. LLC v. Fox Broad. Co., No CV01-3234 LGB (SHX), 2001 WL 35829267, 20 at *3 (C.D. Cal. 2001). To prove a claim of copyright infringement, EA will need to prove that it 21 owns a copyrightable work and that Zynga inappropriately copied that work’s protected elements. 22 See Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003). Proof of copying requires proof 23 of substantial similarity of protectable elements of the works at issue. See id. To have a “possible 24 bearing” on this case, the allegations in the Complaint must be germane to those issues. 25 26 27 28
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1 2 I. 3 4

ARGUMENT THE STATEMENTS FROM THE INTERNET AND BLOGOSHPHERE SHOULD BE STRICKEN BECAUSE THEY HAVE NO BEARING ON THIS ACTION AND ARE PREJUDICIAL1 Assertions of substantial similarity made in the media are irrelevant and unfairly

5 prejudicial to claims of copyright infringement. See, e.g., Positive Black Talk, Inc. v. Cash Money 6 Records, Inc., 394 F.3d 357, 378 (5th Cir. 2004) (affirming exclusion of newspaper articles 7 offered as alleged proof that audience members believed the two works were substantially 8 similar), overruled on other grounds by Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243 9 (2010); Crane v. Poetic Prods., Ltd., 593 F. Supp. 2d 585, 597 (S.D.N.Y. 2009) (opinions of third 10 parties in secondary materials are irrelevant to determination of substantial similarity). Because 11 such media comments are immaterial to resolution of a copyright claim, they should be stricken. 12 Survivor Prods., 2001 WL 35829267, at *3-4 (opinions of similarity in trade publications and 13 newspapers stricken as immaterial to copyright infringement); RDF Media Ltd. v. Fox Broad. 14 Co., 372 F. Supp. 2d 556, 567 (C.D. Cal. 2005) (striking media quotes that one television program 15 was a “rip off” of a prior program because such quotes “are legally irrelevant to the issue of 16 substantial similarity”). 17 In Survivor Productions, the court granted a motion to strike media quotations which were

18 closely analogous to those proffered by EA here. The producers and broadcasters of the Survivor 19 television series alleged that the television series Boot Camp infringed the copyright in Survivor. 20 The complaint included “extensive quotations from various entertainment industry trade 21 publications and newspapers, which describe[d] the two programs and detail[ed] the purported 22 similarities between them.” 2001 WL 35829267, at *1. The plaintiffs also attached to the

23 complaint articles that described Boot Camp as “a ‘ripoff’ of Survivor.” Id. The District Court 24 struck the articles from the record, because they “amount to nothing more than a post-hoc analysis 25 of similarities between the programs by news reporters, unguided by the legal standards that 26 27 28
03880.51975/4961402.2

This argument pertains to the following paragraphs of the Complaint: 4, 6, 33-34, 37-40, 43-44, 45, 46, 47, 48, 49, 61, 62.

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1 govern the comparison of the two works under copyright law.” Id. at *3-4. The court further 2 acknowledged the prejudice that inheres in permitting such materials to remain in a complaint: “it 3 lends artificial credence to the opinions contained in the articles, and gives the appearance that 4 such opinions are legally relevant to the dispute.” Id. at *4. 5 Numerous paragraphs of EA’s Complaint contain the same kind of unguided and

6 prejudicial post hoc “analysis” courts have found objectionable in cases like Survivor Productions. 7 The internet and blogosphere comments that liberally populate EA’s Complaint are nothing more 8 than armchair opinions about copying, including alleged quotations from unknown sources.2 In 9 one trenchant example, EA quotes from an internet article where an anonymous, purported ex10 employee relays an alleged conversation in which Zynga’s CEO told him and others to copy their 11 competitors. (Compl. ¶ 44.) Besides being anonymous, the allegedly quoted statement occurred 12 long before The Sims Social was launched. Even if true, a statement made before both games at 13 issue existed could not possibly be probative of whether those games are substantially similar. See 14 Santrayll v. Burrell, No. 91 Civ. 3166, 1998 WL 24375, at *3 (S.D.N.Y. Jan. 22, 1998) (evidence 15 that musical artist copied in his prior works has no relevance to whether he copied from plaintiffs). 16 It also should be noted that at least some of the material EA has chosen to rely on has been

17 unfairly edited. The quotations lifted for the Complaint omit the positive statements about Zynga 18 contained in the articles, and at least one is misquoted. For example, in paragraph 61, which 19 contains a quotation stating that “The Ville crib[s] heavily from” The Sims Social, EA leaves out 20 an important part of the sentence. Intact, the sentence reads: “With their new game, The Ville, 21 Zynga is returning to the Yoville idea, . . .” – YoVille being a Zynga game that predated The Sims 22 Social by three years. The article goes on to point out how The Ville is like other Zynga games: 23 24 25 26 Because the allegations are in many cases inflammatory, Zynga has refrained from 27 repeating them in this brief. However, attached as Exhibit A is a highlighted copy of the Complaint that takes the Court to the statements in question. 28
03880.51975/4961402.2

“Home-construction is where things take on that familiar ‘Zynga Vibe’–you'll be able to lay out your house however you want. You’ll want to make it look nice for yourself, but you'll especially want to make it look nice so that your

2

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1 2 3 4 5 6 7 8 9 10 11 12 13 14

friends will be impressed. The in-game economy works the same as in other Zynga games–activities pay you in happiness but cost you energy . . .” What possible purpose could any of these random comments by lay writers, bloggers, and people in the shadows serve in a lawsuit where careful analysis will be required by a jury? Positive, negative, or agnostic, this internet and blogosphere commentary has no relation whatsoever to the only questions put in issue by the claim: whether EA owns a copyrighted work; and whether Zynga copied protectable elements of it. With no relevance to the underlying action, and “no possible bearing” on this action, these gratuitous paragraphs of EA’s Complaint have no place in a federal court pleading and should be stricken. II. ALLEGATIONS REGARDING OTHER GAMES SHOULD BE STRICKEN BECAUSE THEY CREATE CONFUSION, ARE PREJUDICIAL, AND ARE IMMATERIAL TO WHETHER THE TWO GAMES AT ISSUE ARE SUBSTANTIALLY SIMILAR3 A. EA’s Allegations Concerning Games Of Third Parties Have No Probative Value But Are Likely To Create Confusion About What Is At Issue EA spends much time discussing other accusations of copying against Zynga by itself and

15 third parties. (See, e.g., Compl. ¶¶ 33-52.) These accusations are disputed and unproven. They 16 are the kind of allegations that are rife within the game industry. None of these allegations is 17 relevant to the confined claim that EA actually has brought. Allegations regarding unproven 18 accusations, unrelated prior lawsuits, and other products are immaterial and impertinent within the 19 meaning of Rule 12(f) and should be stricken. McKinney v. Bayer Corp., No. 10–CV–224, 2010 20 WL 2756915, at *1-2 (N.D. Ohio July 12, 2010). 21 McKinney was a class action challenging Bayer’s advertising of certain vitamins. Bayer

22 moved to strike a paragraph in the complaint that referenced other products and litigation, and the 23 court granted the motion. Because those products and lawsuits did not relate to the product at 24 issue, they were “immaterial” and “gratuitous:” 25 26 27 28
03880.51975/4961402.2

This argument relates to the following paragraphs of the Complaint: 35-36, 37-40, 41, 42, 43-44, 47, 50-51, 52.

3

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1 2 3 4 5 6 Id. at *2. 7

Plaintiff's allegations regarding Bayer's other products and past settlements have no apparent relation to the claims asserted in this case, particularly since none of the allegations in Paragraph 56 relate to the Vitamin Products at issue here. These statements are unnecessary to the assertions in the Complaint, neither setting forth an element of a claim made, nor providing the needed factual predicate for one. In short, the assertions appear gratuitous at this stage of the proceedings. Accordingly, the Court finds that Paragraph 56 is immaterial and scandalous and should be stricken.

The same analysis applies here.

EA’s Complaint contains references to accusations

8 regarding games owned by third parties – accusations that EA has no standing to make. For 9 example, in paragraph 47, EA alleges that companies known as Nimblebit and Buffalo Studios 10 “publicly accused” and “alleged” that Zynga copied their games. EA does not aver that it has any 11 relationship to those companies or their games, or that those “accusations” and “allegations” were 12 ever proven – or that either company even brought a formal claim with respect to them, let alone 13 that Zynga was adjudicated to be in the wrong. Saying something in public does not make it true. 14 EA caps off its paragraph with screenshots from those parties’ games and Zynga’s games from the 15 same genres, apparently to demonstrate their similarity. But EA knows very well that such a 16 gerrymandered comparison is distorting and that a more illuminating graphic would show all of 17 the games in each genre, thus revealing the naked-eye similarity common among games of the 18 same subject matter. 19 Moreover, the details of those extraneous allegations show just how useless they would be

20 to a determination of any issue in this case. For example, EA refers to two purported claims of 21 infringement by other parties, but does not – and cannot – allege that Zynga ever has been held by 22 a court to have infringed anything. Other of the allegations are EA’s representations about what 23 certain members of the “gaming press” reported, and still others are merely EA’s own conclusions 24 that some Zynga title “closely resembled” or “was a clone of” a third party’s game. (See, e.g., 25 Compl. ¶¶ 38, 41.) None of this will assist the trier of fact with the precise legal analysis that will 26 be required in this case about two specific games. To the contrary, inasmuch as Zynga disputes 27 every one of those extraneous allegations, this single claim lawsuit would devolve into a labyrinth 28 of trials within trials. If allowed to be part of this litigation, those allegations would overwhelm
03880.51975/4961402.2

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Case No. 3:12-CV-04099-SI ZYNGA'S MOTION TO STRIKE

1 the only legitimate comparison to be made (The Ville vs. The Sims Social), would vastly and 2 improperly expand this litigation, and would ultimately confuse a jury. 3 To illustrate how pointless these gratuitous references are, even in the press that EA

4 obviously combed through to find the most derogatory statements it could about Zynga, there is 5 debate about the legitimacy of complaints that the game companies level at each other, including 6 those leveled at Zynga. For example, the article cited in paragraph 39 of the Complaint points out 7 that these games exist within a “circle of imitation”: 8 9 10 “Visually, the game [Zynga’s Farmville] does look good, but it looks rather familiar, using the same art style of [Slashkey’s] Farm Town. However, Farm Town uses a style awfully close to Zynga’s YoVille, so the circle of imitation goes full circle it seems.”

11 These allegations by EA cannot even leave the starting gate to enter the path to admissibility. The 12 only purpose they serve is to try to create bias against Zynga, a purpose that is eschewed by Rule 13 12(f). 14 15 B. EA’s Allegations Regarding Its Other Game Are Also Immaterial4 EA makes liberal reference to its much older game, The Sims, and attaches as an exhibit to

16 its Complaint six copyright registrations related to versions of that game. But EA is not accusing 17 Zynga of infringing The Sims, and its dominating presence in the Complaint is pointless. In the 52 18 paragraphs leading up to where EA finally begins to set forth allegations that bear on issues related 19 to the claim it has alleged, The Sims is mentioned repeatedly. (See, e.g., Compl. ¶¶ 1, 2, 3, 6, 15, 20 and so on.) The extraneous registration certificates add nothing to the case, but do serve to cause 21 some confusion about EA’s intentions. They, too, and the paragraph containing them, should be 22 stricken. 23 24 25 26 27
4

28
03880.51975/4961402.2

This argument pertains to the following paragraphs in the Complaint: 32, 50-51.

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CONCLUSION For the foregoing reasons, Zynga respectfully requests that its motion be granted in its

3 entirety and that the offending paragraphs and portions of Exhibit A be stricken from the 4 Complaint. 5 6 DATED: September 14, 2012 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
03880.51975/4961402.2

QUINN EMANUEL URQUHART & SULLIVAN, LLP PAUL HASTINGS LLP

By /s/ Claude M. Stern Claude M. Stern Attorneys for Defendant Zynga Inc.

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ECF ATTESTATION I, Timothy A. Butler, am the ECF User whose ID and Password are being used to file this:

3 ZYNGA’S NOTICE OF MOTION AND MOTION TO STRIKE; MEMORANDUM OF 4 POINTS AND AUTHORITIES; [PROPOSED] ORDER. In compliance with Civil Local Rule 5 5-1(i)(3), I hereby attest that Claude M. Stern has concurred in this filing. 6 7 Dated: September 14, 2012 8 9 By: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
03880.51975/4961402.2

QUINN EMANUEL URQUHART & SULLIVAN, LLP

/s/ Timothy A. Butler

Case No. 3:12-CV-04099-SI ZYNGA'S MOTION TO STRIKE

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