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Part 1 Zynga's Motion to Strike

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Zynga's Response To EA's Copyright Lawsuit

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									                   1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
                      Claude M. Stern (Bar No. 96737)
                      Karin Kramer (Bar No. 87346)
                      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)
                     Peter C. Meier (Bar No. 179019)
                    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.


                 13                              UNITED STATES DISTRICT COURT

                 14                             NORTHERN DISTRICT OF CALIFORNIA

                 15                                 SAN FRANCISCO DIVISION


                 17 ELECTRONIC ARTS, INC.,                      CASE NO. 3:12-CV-04099-SI
                 18                Plaintiff,                   ZYNGA'S NOTICE OF MOTION AND
                                                                MOTION TO STRIKE; MEMORANDUM
                 19         vs.                                 OF POINTS AND AUTHORITIES
                 20 ZYNGA INC.,                                 Date:           December 21, 2012
                                                                Time:           9:00 a.m.
                 21                Defendant.                   Courtroom:      Courtroom 10
                 22                                             Complaint Filed: August 3, 2012






03880.51975/4961402.2                                                                Case No. 3:12-CV-04099-SI
                                                                                  ZYNGA'S MOTION TO STRIKE
                   1                              NOTICE OF MOTION AND MOTION

                   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              1. Paragraph 4 and corresponding footnotes;

                 12              2. Paragraph 6 and corresponding footnotes;

                 13              3. Paragraph 32 (starting at page 9, line 5), and the copyright registrations included in

                 14                  Exhibit A for The Sims, The Sims 2, The Sims 3, MySims, and The Sims Online

                 15                  which are referenced in Paragraph 32;

                 16              4. Paragraph 33 through Paragraph 52 and corresponding footnotes; and

                 17              5. Paragraph 61 through Paragraph 62 and corresponding footnotes.

                 18          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.


                 22 DATED: September 14, 2012                  QUINN EMANUEL URQUHART &
                                                               SULLIVAN, LLP

                 24                                            PAUL HASTINGS LLP


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

03880.51975/4961402.2                                                                          Case No. 3:12-CV-04099-SI
                                                                                            ZYNGA'S MOTION TO STRIKE
                   1                        MEMORANDUM OF POINTS AND AUTHORITIES
                   2                                      QUESTIONS PRESENTED
                   3 1.      Should the Court strike allegations from the Complaint that quote from and cite to blogs

                   4         and internet publications that serve no purpose other than to try to portray Zynga in a bad

                   5         light, cannot be used to prove any element of plaintiff Electronic Arts Inc.’s (“EA”) claim,

                   6         and therefore have no bearing on EA’s single claim for relief?

                   7 2.      Where plaintiff has alleged a single claim of copyright infringement involving one game,

                   8         should the Court strike allegations regarding accusations and unproven claims related to

                   9         other games, including games of third parties, that have no bearing on EA’s claim for

                 10          relief?

                 11 3.       Where EA has alleged a single claim of copyright infringement involving one game,

                 12          should copyright registrations for other games that are attached as exhibits to the

                 13          Complaint be stricken so that there is no confusion about which works are at issue?

                 14                                     PRELIMINARY STATEMENT
                 15          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          The objectionable paragraphs of the Complaint comprise the following categories:
                 23          •         Selectively quoted – and even anonymous – comments from the
                                       blogosphere and internet publications whose sole apparent purpose is to
                 24                    try to portray Zynga in a bad light;
                 25          •         Allegations regarding other Zynga games that are not accused in this case;
                             •         Allegations regarding disputed accusations and claims involving Zynga
                 27                    and third parties which EA has no standing to assert and which have no
                                       bearing on whether The Ville infringes The Sims Social;

03880.51975/4961402.2                                                                            Case No. 3:12-CV-04099-SI
                                                                                              ZYNGA'S MOTION TO STRIKE
                   1         •       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
                   3                 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                                        LEGAL STANDARD
                 16          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. Handi-

                 18 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).


03880.51975/4961402.2                                                                        Case No. 3:12-CV-04099-SI
                                                                                          ZYNGA'S MOTION TO STRIKE
                   1         The four types of material suitable for disposition by a Rule 12(f) motion are defined as

                   2 follows:

                   3         •      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
                   4                Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1032 (C.D.
                                    Cal. 2002).

                   6         •      “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
                   8                necessary, to the issues in question.” Fogerty, 984 F.2d at 1527.
                   9         •       “[S]candalous matters are allegations that unnecessarily reflect [] on the
                                    moral character of an individual or state [] anything in repulsive language
                 10                 that detracts from the dignity of the court, and include [] allegations that
                 11                 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.
                 12                 2009) (internal quotation marks omitted).

                 13          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                             LEGAL STANDARD FOR COPYRIGHT
                 17          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.





03880.51975/4961402.2                                                                         Case No. 3:12-CV-04099-SI
                                                                                           ZYNGA'S MOTION TO STRIKE
                   1                                            ARGUMENT
                   3           ARE PREJUDICIAL1
                   4           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

                 27            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.

03880.51975/4961402.2                                                                         Case No. 3:12-CV-04099-SI
                                                                                           ZYNGA'S MOTION TO STRIKE
                   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 ex-

                 10 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              “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
                 24              nice for yourself, but you'll especially want to make it look nice so that your

                 26       2
                            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.

03880.51975/4961402.2                                                                           Case No. 3:12-CV-04099-SI
                                                                                             ZYNGA'S MOTION TO STRIKE
                   1                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.
                                  IMMATERIAL TO WHETHER THE TWO GAMES AT ISSUE ARE
                 11               SUBSTANTIALLY SIMILAR3
                 12               A. EA’s Allegations Concerning Games Of Third Parties Have No Probative Value
                 13                  But Are Likely To Create Confusion About What Is At Issue

                 14               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:”


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

03880.51975/4961402.2                                                                           Case No. 3:12-CV-04099-SI
                                                                                             ZYNGA'S MOTION TO STRIKE
                   1              Plaintiff's allegations regarding Bayer's other products and past settlements
                                  have no apparent relation to the claims asserted in this case, particularly since
                   2              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
                   4              factual predicate for one. In short, the assertions appear gratuitous at this
                                  stage of the proceedings. Accordingly, the Court finds that Paragraph 56 is
                   5              immaterial and scandalous and should be stricken.
                   6 Id. at *2.

                   7         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                                                                             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             “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,
                   9             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            B. EA’s Allegations Regarding Its Other Game Are Also Immaterial4
                 15            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.





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

03880.51975/4961402.2                                                                          Case No. 3:12-CV-04099-SI
                                                                                            ZYNGA'S MOTION TO STRIKE
                   1                                        CONCLUSION
                   2        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.


                   6 DATED: September 14, 2012              QUINN EMANUEL URQUHART &
                                                            SULLIVAN, LLP
                                                            PAUL HASTINGS LLP


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

















03880.51975/4961402.2                                                                      Case No. 3:12-CV-04099-SI
                                                                                        ZYNGA'S MOTION TO STRIKE
                   1                                         ECF ATTESTATION
                   2          I, Timothy A. Butler, am the ECF User whose ID and Password are being used to file this:


                   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.


                   7 Dated: September 14, 2012                      QUINN EMANUEL URQUHART &
                                                                    SULLIVAN, LLP

                                                                    By:    /s/ Timothy A. Butler



















03880.51975/4961402.2                                                                            Case No. 3:12-CV-04099-SI
                                                                                              ZYNGA'S MOTION TO STRIKE

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