Bethesda v. Interplay: Court Documents Obtained

Post by **King of Creation** » Wed Nov 11, 2009 7:23 pm

[ Company -> Editorial ] - News related to <a href="http://www.duckandcover.cx/archives.php ... ry=57">Top Story: DAC Has Secret Sources: Court Docs Obtained</a> | More info on <a href="http://fallout.wikia.com/wiki/Bethesda v. Interplay">Company: Bethesda v. Interplay</a>

The saga of Interplay v. Bethesda continues on. In this episode, Bethesda has filed to have Interplay's claims thrown out. DAC has obtained the court documents for the case and I have quoted some of Bethesda's claims below, pending verification that I am able to release the whole document:
<blockquote>
ARGUMENT
A.
Bethesda Is Likely to Succeed on the Merits of Its Claims
1.
Bethesda is Likely to Succeed on its Breach of Contract Claim Under the TLA
Because Interplay Failed to Satisfy Either the Funding or Full-Scale
Development Conditions
2.
Bethesda is Likely to Succeed on its Breach of Contract Claims Under the APA
Because Interplay Repeatedly Violated the Merchandising Rights and Non-
Assignability Provisions
3.
Bethesda is Likely to Succeed on its Trademark Infringement Claims
B.
Bethesda is Likely to be Irreparably Harmed Absent Preliminary Relief
1.
The Court Need Not Fully Adjudicate the Claims on the Merits to Decide
Whether Preliminary Relief Should Be Granted
2.
Any Potential Harm to Interplay Does Not Tip the Balance of Equities in
Interplay’s Favor
C.
The Public Interest Compels the Grant of a Preliminary Injunction in This Case
</blockquote>
Some of the supporting statements for these arguements:
<blockquote>
Nearly all of Interplay’s arguments in the Opposition are based entirely on the unsupported statements, speculations and improper legal conclusions contained in the Declaration of Herve Caen, Interplay’s CEO (“Caen Declaration”).
</blockquote>
Always hating on Herve Caen!
<blockquote>
There is no dispute between the parties as to the plain and ordinary meaning of the language
setting forth the conditions in the TLA, or that both of the conditions—“full-scale development” and the
minimum financing requirement of $30,000,000—had to be met before April 4, 2009 in order for
Interplay to retain the MMOG rights. Interplay does not seriously dispute that it failed to meet both of
those conditions. Instead, the Opposition argues that Interplay should not forfeit the conditional MMOG
rights because, in the personal opinion of Herve Caen, Interplay’s CEO, Interplay “substantially”
satisfied the conditions, Opp. at 4, by entering into an unauthorized development agreement with
Masthead Studios, another violation of the TLA. As a fallback position, Interplay asserts that “the
[$30,000,000] funding requirement serves no material financial purpose.” Id. at 18. Interplay is wrong.
</blockquote>
It's an interesting way of trying to work around the $30,000,000 requirement, but I don't think it's going to work
<blockquote>

While Interplay claims, in similarly unsupported fashion, to have “hired” Masthead Studios, a third party located in Bulgaria, “to provide programming services” in connection with the Fallout MMOG, there is no evidence—least of all in the Opposition—that Masthead is working or has ever worked on any part of the development for the
Fallout MMOG....A review of Masthead Studios’ website reveals that it is currently working on another game—“Earthrise”—that it must finish before starting on the Fallout MMOG.
</blockquote>
This one is definitely a stretch. Everyone knows that studios, even small ones, very often have multiple projects in the pipeline.
<blockquote>
Moreover, assuming arguendo that Interplay met the two conditions—which it did not—
Interplay is still in breach of the TLA because it violated the non-assignability provision by assigning its
rights to Masthead Studios without permission from Bethesda. See Ex. D (TLA) § 2.1 (“The conditional
license herein does not grant Interplay any right to sublicense any of the licensed rights without
Bethesda’s prior written approval.”).
</blockquote>
This is interesting. Bethesda is arguing that Interplay licenced the Fallout rights to Masthead. This could be an interesting point to argue seeing as how, from what little we know, Masthead is doing all of the coding of Project V13 while all design work is being done at Interplay.
<blockquote>
Interplay also does not deny that: (1) it is selling and distributing the Pre-existing Fallout Games through digital download without Bethesda’s approval (Compl. ¶ 43; Lesher Aff. ¶ 16)3; (2) it is selling and distributing the compilation of the Pre-existing Fallout Games as “Fallout Trilogy,” both by retail boxed product and by digital download from a link on Interplay’s website (the “Trilogy Webpage”), without Bethesda’s approval (Compl. ¶ 67; Lesher Aff. ¶ 15); (3) it is selling and distributing the compilation of the Pre-existing Fallout Games as “Fallout Collection” and “Saga Fallout” through third-party distributors and online retailers without Bethesda’s approval (Compl. ¶ 48; Lesher Aff. ¶ 21); (4) it did not submit to Bethesda any packaging, advertising and promotional materials for “Fallout Trilogy,” “Fallout Collection,” and “Saga Fallout,” including the Trilogy Webpage, for approval (Compl. ¶¶ 42, 50; Lesher Aff. ¶¶ 15, 21); or (5) it entered into licensing or distribution agreements with third parties, including GameTap, Good Old Games, and Valve Corporation, to sell and distribute the Pre-existing Fallout Games without Bethesda’s approval.
</blockquote>
This argument seems to be Bethesda's weakest. To my knowledge, the Interplay packaging in question has been around for a long time and pre-dates the initial agreement between Bethesda and Interplay. I could be wrong.
 
Bethesda's basic legal arguments are well written and logical. They attack Herve Caen by name numerous times in the documents and at one point claim Interplay seems to exist in "an alternate universe in which, no matter what its conduct...it can never be in breach of the parties’ agreements, and therefore could never be a trademark infringer." Bethesda's legal arguments definitely take a personal tone in quite a few areas, but are generally not very outrageous.
The crux of the whole court case seems to be based on an argument Interplay brought against Bethesda. Their claims that Bethesda attempted to coerce third-parties and prevent the ability of Interplay to sell the old Fallout games, thereby preventing them from securing the required $30 million, could very well prove to be held up in court. This opens the possibility of the entire licensing agreement being thrown out and the rights to Fallout defaulting back to Interplay.
 
 
Again, I will try to see if I can post up the whole series of court documents for everyone to go over with a fine tooth comb. For now, though, you can let these quotes simmer.

VasikkA · Post by **VasikkA** » Wed Nov 11, 2009 8:37 pm

How :

:

Cimmerian Nights · Post by **Cimmerian Nights** » Wed Nov 11, 2009 8:40 pm

The only ones to come out ahead in this are the lawyers.

I hope Interplay and Bethesda bleed each other out, except in that case Beth wins due to sugar-daddy Zenimax's deep pockets.

Dicksmoker · Post by **Dicksmoker** » Thu Nov 12, 2009 10:56 am

I hope Beth wins. Caen is the one who did the real damage to the franchise.

VasikkA · Post by **VasikkA** » Thu Nov 12, 2009 12:11 pm

Dicksmoker wrote:I hope Beth wins. Caen is the one who did the real damage to the franchise.

qfe

Blaming Beth is like blaming a retarded kid for setting the house on fire.

SenisterDenister · Post by **SenisterDenister** » Thu Nov 12, 2009 7:53 pm

Does it really matter? Whoever wins we still lose in the end.

POOPERSCOOPER · Post by **POOPERSCOOPER** » Fri Nov 13, 2009 3:34 am

This looks like its going to get interesting the further on it gets. Even if the Fallout Trilogy set was released before, their intent was pretty clear to ride off the success of FO3 with the terminology. Bethesda probably won't get them on that because I guess they didn't do their homework but Herve is still one guilty dude.

I also hope that Herve gets at Bethesda only to show them the true pain of Fallout fans who had to endure Caen in the past.

Mismatch · Post by **Mismatch** » Fri Nov 13, 2009 4:36 am

Blaming Beth is like blaming a retarded kid for setting the house on fire.

Though the kid really should be Institutionalized to prevent him from doing further damage. Shouldn't he? Any you'd still want to give him a good smack for being a retard AND setting the house on fire.

The-Barron · Post by **The-Barron** » Fri Nov 13, 2009 8:49 am

Of course the intent was to ride of the success of fallout 3,, why would you keep the rights to fallout 1 and 2, tactics if you did not plan on re-releasing them later on. Fallout Trilogy is in no way confusing , the box clearly displays fallout 1,2, Tactics.

What i really think is funny though is Bethesda says Fallout SAGA is confusing... how the heck is the word SAGA (which was sold in Poland) confusing? Answer.. its not.

Bethesda w/ its parent company Zeni formed an online gaming studio about 4 months after the deal. The game they are working on has not been announced.

Bethesda wont let Herve display Fallout related images on Interplay.com
When Herve changed the name from Fallout to V13, they said the STILL cant display the images to which he asked in email , well.. "what do you suggest i use" as he has to have some way to market fallout online. Bethesda was practicing obstruction.

Bethesda clearly wants interplay to lose the rights to fallout online so the parent company can finish making it. Otherwise they have to scrap all that work or at least convert it to something else.

Bethesda is of course pissed that Fallout 1 and 2 are selling so well b/c its infusing interplay w/ money. money that keeps them alive. money that Bethesda could have if interplay were to die.

Everyone gives Herve a bad rap and im sure hes a bastard but the fact is Interplay was dying when herve came on board. Brian Fargo had just about destoryed the comapny financially anyway. You can argue this fact all you want but its Fargo who got into bed w/ Titus Interactive due to need of cash. And after Fargo left Herve was left w/ interplay and yea.. he destroyed it some but you really have to give it to the guy that he keep trying at least. I would guess his motivation is maybe the ultimate comeback story, money, and just fame. who knows...im not defending the guy. just stating it like it is.

Bethesda made the abomination that is Oblivion 3.. i mean.. Fallout 3.

personally im going to laugh my ass off if by remote chance the rights to fallout revert back to interplay. most likely if it looks like interplay has a good chance or even a decent chance of having some ground to stand on Bethesda will try to settle rather than lose Fallout 3 and have to pay back Royalitys.

The-Barron · Post by **The-Barron** » Fri Nov 13, 2009 8:51 am

That bit about the email is true. Its in the court documents fyi.

Post by **King of Creation** » Fri Nov 13, 2009 8:57 am

Speaking of, I should be releasing them later today.

Dicksmoker · Post by **Dicksmoker** » Fri Nov 13, 2009 9:22 am

Mismatch wrote:Though the kid really should be Institutionalized to prevent him from doing further damage. Shouldn't he? Any you'd still want to give him a good smack for being a retard AND setting the house on fire.

What's even more fun is setting retards on fire.

Blargh · Post by **Blargh** » Fri Nov 13, 2009 1:34 pm

It's hardly much fun for the fire. No one ever seems to think of the dignity of the fire. A shame.

Post by **King of Creation** » Fri Nov 13, 2009 1:35 pm

Going with these first:
http://www.duckandcover.cx/forums/viewtopic.php?t=23430
More exiciting things tomorrow, and then court docs the day after probably. Can't release all the goodies at once!

rhagz · Post by **rhagz** » Sat Nov 14, 2009 4:39 pm

senisterdenister wrote:Does it really matter? Whoever wins we still lose in the end.

I disagree. If Interplay, by some miracle, wins and gets the entire IP back then Fallout: New Vegas, which is being made by most of the original Black Isle team, likely gets canned. That would be the biggest travesty in all of this. Bethesda winning is the last best hope for those people in getting a modern successor to the originals.. well at least those who couldn't accept Fallout 3.

Interplay just needs to die, or stick with making Nintendo DS and iPhone games. Fallout should never go online. It's a dumb idea being perpetrated by a dumb person.

jetbaby · Post by **jetbaby** » Sat Nov 14, 2009 9:07 pm

rhagz wrote:Bethesda winning is the last best hope for those people in getting a modern successor to the originals

Because Bethesda's last attempt had so much promise, right?

The-Barron · Post by **The-Barron** » Tue Nov 17, 2009 5:47 am

most likely Interplay would just keep the deal or restructure the terms.

Dicksmoker · Post by **Dicksmoker** » Thu Nov 19, 2009 10:00 am

I wouldn't get hopes up about New Vegas. The short development time does not bode well.

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Bethesda v. Interplay: Court Documents Obtained

Bethesda v. Interplay: Court Documents Obtained

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