Stephen S. Wu-- SL: Legal Writer,, (408) 573-5737, 50 W. San Fernando St., Ste. 750, San Jose, CA 95113

Recent Case Limits a Game Company's Discovery

For video game companies, metagaming, such as through the trade of in-game goods in violation of their terms of service, can seem like a “whack-a-mole” exercise. Even if companies forbid trading virtual goods used in their games through their terms of service, websites will spring up to facilitate a market in virtual goods used in popular games. And when companies stop some sites, others take their place. Part of the problem is that the website operators act anonymously, making it difficult to sue them. Accordingly, video game companies file “John Doe” suits to try to uncover the identities of the anonymous individuals behind the websites facilitating real money trading in their in-game items. A recent case in the U.S. District Court for the Northern District of California, however, shows limits to the ability of companies to obtain information about the anonymous individuals operating real money trading sites.
In Zynga Game Network Inc. v. Williams, No. CV-10:01022, 2010 U.S Dist. LEXIS 57746 (N.D. Cal. May 20, 2010), the game company Zynga, which operates the “Mafia Wars” game, brought trademark and other claims against the people behind websites selling virtual goods used in the game for real money and facilitating the exchange of in-game virtual currency for virtual goods or other valuable items outside the game. That is, the company faced a common situation of trying to stop real money trade. A copy of the Zynga case can be downloaded here.

Generally, applicable rules require a party to confer with the other parties about discovery matters before discovery is permitted. Nonetheless, if the game company sued unknown John Does, there is no party with which the game company can confer. Accordingly, the game company must seek court permission for starting discovery before serving subpoenas on service providers to try to unmask the anonymous parties allegedly causing the harm. In this case, the court did approve the sending of subpoenas, but not in the form proposed by Zynga.

Zynga sought a broad range of information, including billing and account records, server logs, contact information, transaction histories, and correspondence for the people controlling the websites selling the Mafia Wars goods. The Court rejected the breadth of the subpoenas and permitted requests only for the purpose of uncovering the names and contact information of the individuals using the email addresses corresponding to those associated with the websites. The pre-conference discovery should be limited to finding out the identity and location of the defendants in order to deliver the summons and complaint to them. Following delivery of the summons and compaint and after a conference with the defendants, Zynga will be able to obtain additional information from these service providers.

The Zynga case provides a helpful roadmap for game companies seeking expedited discovery. The judge even used language in her order that game companies can use in crafting their subpoenas. I expect that game companies will make use of this helpful opinion to tailor the requests in their subpoenas.