Facebook and Federal Courts: Mafia Wars Jurisprudence

Mafia Wars significantly marginalizes the social utility of Facebook. I confirmed most of my Facebook friends against my better judgment, only to later hide their status updates, because I don’t care about the fake fortune they have amassed, the ” jobs” they have completed, or the multiple assassination attempts they have survived. I have gone to New York, Las Vegas, Paris, and London. I don’t need to pretend to go there to establish a simulated criminal empire that serves to camouflage a deep sense of loneliness. Moreover, because all Facebook users are subject to Mafia Wars updates, the backlash against Mafia Wars has also risen to new levels, robbing me of the usual cachet I enjoy when I express disdain directed towards society. Mafia Wars, how big a judgment would it take to end this?

Unfortunately, the first federal case to address this pernicious trend is not one in which an injunction was sought against ceaseless Mafia Wars updates. Rather, Zynga Game Network, Inc., the perpetrator of Mafia Wars, brought suit against Jason Williams, Luna Martini, and multiple John Does claiming that they engaged in the “unauthorized sale of Zynga Virtual Goods” through various Mafia Wars related websites. The court explains the backdrop of the dispute:

Mafia Wars (the “Game”) is one of Zynga’s most popular games in which users can start a Mafia family with their friends and compete to become the most powerful family. Zynga has made use of the service mark MAFIA WARS in commerce since September 2008, and of the trademark MAFIA WARS since April 2009. Zynga currently owns Trademark Application Serial No. 77772110 for the mark MAFIA WARS in International Classes 009 and 041. As of December 2009, the Game had over 7 million daily users.

When users sign up with Zynga to play the Game, they receive a certain amount of “Virtual Currency” that can be used to compete with other players. Players can increase their total number of “Virtual Currency” either by their play or by purchase from Zynga. Players use this “Virtual Currency” to purchase various virtual, in-Game digital items (“Virtual Goods”).

Users can additionally earn Virtual Goods by either doing “jobs” or playing the Game. Zynga allows users to use the “Virtual Currency” or Virtual Goods while playing the Game, but retains sole and exclusive ownership of them and of the source code that allows them to be used in the Game. Zynga has not authorized any third party to sell the “Virtual Currency” or Virtual Goods required to play the Game. Users are informed in the Terms of Service that they are prohibited from selling “Virtual Currency” or Virtual Goods for real-world money or for exchanging “Virtual Currency” or Virtual Goods for anything of value outside of the Game.

In the present action, Zynga has alleged claims against Defendants for the unauthorized sale of Zynga Virtual Goods through the Internet domain names MAFIAWARSDIRECT.COM, MWBLACKMARKET.COM, and MWFEXPRESS.COM. Through these domain names, Defendants sell Virtual Goods that users, playing the Game through the Providers’ websites and/or applications, can use to compete with other players who obtained their Virtual Goods directly from Zynga. Defendants use Zynga’s MAFIA WARS mark and similar variations of it in advertising and for selling Virtual Goods. Plaintiff has never authorized Defendants to use the MAFIA WARS mark, sell Virtual Goods for use in the Game, or transfer Virtual Goods that Defendants have “sold” to players through the Infringing Websites.

Zynga Game Network Inc. v. Williams, No. CV-10:01022, 2010 WL 2077191, at *1 (N.D. Cal. May 20, 2010).

Sigh. No injunction sought; of course, Zynga can’t sue to enjoin itself. Interestingly enough, this is the second federal opinion involving Mafia Wars, the first being Zynga Game Network, Inc. v. McEachern, No. 09-1557, 2009 WL 1108668, at *1 (N.D. Cal. April 24, 2009). In that case, Zynga sought a temporary restraining order against a former employee who had developed Mafia Wars but left the company to create his own game, Mob Underworld.

We write about frivolous lawsuits nearly every day. Isn’t there one vexatious litigant out there who can save my Facebook account from this game? Come on!

In the mean time, we’ll consult Wigmore on Mafia Wars to explore our options.

Ninth Circuit Affirms Exclusion of Two Experts in Products Case in Eight Paragraphs

We here at Abnormal Use adore concise, get-to-the point jurisprudence, which is why we pause today to reflect upon the Ninth Circuit’s recent eight paragraph memorandum opinion in Shalaby v. Newell Rubbermaind, Inc., No. 09-56331 (9th Cir. May 17, 2010) (unpublished) [PDF]. To reduce the disposition of a products liability action to eight paragraphs is sublime.

In that case, the Plaintiffs, apparently from California, filed a products liability action after Mr. Shalabay was allegedly injured “when a handheld, gas-powered torch that he had purchased from a Home Depot store exploded.” Ever so briefly and succinctly, the Ninth Circuit observed that expert testimony is required in products liability matters to establish causation when the theory is “beyond common experience,” and because the Plaintiffs’ two proffered experts had been properly excluded by the trial court, the Plaintiff had no case. Thus, the Ninth Circuit affirmed the ruling of the district court, which had initially excluded both experts.

The money paragraphs were:

The court excluded the testimony of one of those witnesses, Dr. Anderson, a metallurgy expert, as unreliable and irrelevant. To support his theory that a design defect in the torch caused the explosion, Dr. Anderson conducted two tests on exemplar torches to demonstrate the flaw. The district court concluded that because Dr. Anderson had performed only two non-standardized tests, on torches that may have been different from the one here at issue, and did not adequately explain the results of or discuss the possible rate of error for such tests, his testimony would be unreliable. It would also be unreliable because he did not address certain contradictory evidence. Finally, he did not present adequate evidence that the design flaw caused Shalaby’s injuries, rendering his testimony irrelevant.

The district court excluded the testimony of the other witness, Dr. Vredenburgh, because she was not a qualified expert and, even if she were, her testimony was unreliable and irrelevant. Dr. Vredenburgh’s field of expertise was not torches; she had some experience in the formulation of warning instructions for various devices. When asked whether a different or larger warning would have helped in Shalaby’s case, Dr. Vredenbugh testified that “I don’t know why [the torch] failed, so I don’t know that a warning would have helped.” She stated that she had never operated a handheld torch and had not seen one operated in seventeen years. She had not spoken to any users of handheld torches in many years, and she had incorrectly testified about how such a torch is used. Dr. Vredenburgh admitted that she did not collect any empirical data, did not conduct any testing, did not conduct any surveys, did not seek data from manufacturers, did not review any peer-reviewed literature, did not conduct any other kind of research prior to forming her opinion, and did not follow her own typical process for developing product warnings.

Sure, maybe the conclusion was so easily reached that it only merited an eight paragraph opinion. But it’s nice to see such a case given short shrift.