Bethesda files "Motion in Limine" against Interplay

Post by **King of Creation** » Tue Nov 08, 2011 2:29 am

[ Company -> Update ] - More info on <a href="http://fallout.wikia.com/wiki/Bethesda v. Interplay">Company: Bethesda v. Interplay</a> | More info on <a href="http://fallout.wikia.com/wiki/Fallout: Online">Game: Fallout: Online</a>

Update:<a href="../../forums/viewtopic.php?t=25793"> Interplay responds</a>.
 
In the latest round of court drama between Bethesda and Interplay, Bethesda has filed a <a href="http://en.wikipedia.org/wiki/Motion_in_limine">motion in limine</a>. According to an analysis by our source, Bethesda is trying to prevent Interplay from bringing damning evidence up in the jury trial. Here is the important text from the file by Bethesda:
<blockquote>
For the reasons set forth in the accompanying memorandum, Bethesda moves the Court for an order:
(1) Holding that Defendant/Counter-Plaintiff Interplay Entertainment Corp. (“Interplay”) bears the burden of proof at trial on each of the following issues: (a) that Interplay has a trademark and copyright license; (b) that Interplay had commenced “full-scale development of its FALLOUT MMOG” by April 4, 2009 as set forth in Section 2.3 of the Trademark License Agreement entered into by Bethesda and Interplay on April 4, 2007 (the “TLA”); and (c) that Interplay had “secured financing for the FALLOUT MMOG in an amount no less than US$30,000,000.00” by April 4, 2009 as set forth in Section 2.3 of the TLA;
(2) Precluding Interplay from offering parol evidence to support its defense that the TLA granted Interplay a copyright license;
(3) Precluding Interplay from arguing at trial that it had satisfied the “full-scale development” and “Minimum Financing” requirements set forth in Section 2.3 of the TLA by April 4, 2009; and
(4) Precluding Interplay from amending its pleadings to assert the affirmative defense of mistake.
</blockquote>
I suppose if this motion was approved, then (1)(b) would mean that Interplay would have to show substantive proof of the development of Fallout: Online, which hopefully means that we could get our hands on some good stuff from the game to show you :-)

Post by **Retlaw83** » Tue Nov 08, 2011 3:25 am

The way I read it, 1 asks for Interplay to provide burden of proof, then the other numbers ask for them not being able to discuss the things they need to provide burden of proof for?

Do they think the judge is retarded?

Post by **King of Creation** » Tue Nov 08, 2011 3:26 am

Retlaw83 wrote:The way I read it, 1 asks for Interplay to provide burden of proof, then the other numbers ask for them not being able to discuss the things they need to provide burden of proof for?

Exactly. It's idiotic.

Tofu Man · Post by **Tofu Man** » Tue Nov 08, 2011 4:11 am

King of Creation wrote:I suppose if this motion was approved, then (1)(b) would mean that Interplay would have to show substantive proof of the development of Fallout: Online, which hopefully means that we could get our hands on some good stuff from the game to show you

Leave it to Koc to find a positive in bethesda's trials and tribulations.

Although they are:

a) Looking like tools
b) Wasting money
c) Trying to prevent "yet another MMO"

Not all bad, then.

The-Master · Post by **The-Master** » Tue Nov 08, 2011 7:57 am

this is pretty critical as bethesda is trying to
assert (see 1 A) that interplay has none of the copyrights but
just the trademark of fallout as they have argued since the 2nd
injuction. This is 100% bullshit and delusional, basically they are asking the judge to say they are right
which would defeat the purpose of a trial. lol

Then glancing at bullet 2. "Precluding Interplay from offering parol
evidence to support its defense that the TLA granted Interplay a
copyright license"
In common English what they are attempting to do is stop Interplay
from using the 1st contract as evidence as it contained language that
made it plain to all to see that the copyrights (characters, settings,
locations, etc etc) were part of the agreement. The contract specifically states that in the event that interplay fails to meet the requirements that interplay can put out a Non Fallout MMO and it goes on to list what fallout elements have to be removed. Now.. a freaking 3rd grader could figure out that if i have to remove all fallout content if i fail in meeting the requirements than in fact the agreement did cover all of fallout and not just a name. see thats the problem w/ the 2nd contract is it is built upon the first. BUT it even gets better...!!! In the contract it says the MMO has has to have the look and feel of a fallout game, so let me get this straight. Bethesda is claiming i have to have the look and feel of a fallout game yet they are claiming im only allowed to use the word fallout but no content. SO... i could make a hardcore porn game about aliens, tentacles, and michael jackson and call it Fallout Online. But wait! it has to have the look and feel of a fallout game!

now.. bullet 3 ... man..ROFL.

just read it.. and then reference the before mentioned section 1 B and
C. in 1 B and 1 C interplay is supposed to bear the burden of proof
that it meet the requirements of full scale development and funding (which was in the contract)

YET in bullet 3 and i f'n quote "Precluding Interplay from ARGUING
at trial that it had satisfied the full scale development and min
financing requirements set forth in section 2.3 of the TLA by april 4,
2009. "

lol yea..... so your supposed to prove it and yet bethesda is
trying to get them banned from proving it.....which would sorta defeat the purpose of a trial.

and bullet 4. Precluding interlay from amending its pleadings to
assert the affirmative defense of mistake... im not sure on this.
guess they dont want them coming back and changing their pleadings.

all in all it looks like a desperate hack job of a defense.

I could see 1 B and 1 C passing as that was part of the agreement but 1A wont.
bullet 2 should not
bullet 3 is just a ROFL
bullet 4 not sure on.

poor old Bethesda... the lawyers are just throwing 4th Quarter hail marys w/ only 8 seconds on the clock to settle or roll the dice and hope they do not lose the suit and then the entire franchise in the counter suit.

orionquest · Post by **orionquest** » Wed Nov 09, 2011 6:17 am

Bethesda's argument is so retarded and paradoxical that is smacks of collusion.

Not saying it is but really? this is all they could come up with?

Their arguments that it is a Fallout in name only game( which would never allow a sign off for publishing by Interplay) is actually a major if not the critical breach of the contract!

Do they even know what they are doing?

I predicted this before but never thought that they would actually do it to this level:

I said that Bethesda would actually argue a case that hangs them by their own noose and they are f'in doing it! How cool is that!!!!!!

Bad faith contracting, major breaches, redacting and recreating history, arguing for proof and then requesting the disallowing of presenting such proof.

It all smacks of a put up job by Bethesda who for all intents and purposes could have been buying up Interplay shares in the open market at rock bottom prices and then announce a settlement which skyrockets Interplay and which allows Bethesda to make more money from the stock than from collecting on the 12&% MMO royalties, all for the relatively tiny payment to lawyers!

Brilliant. They could even buy a stake in Interplay which would be another catalyst to sky it and cause the stake to be that much more valuable than a game's 50 million $ profit.

Other than this feasible but somewhat outlandishly smart scenario, what Bethesda's lawyers are doing makes absolutely no sense.

I would liken it to self suicide of one's Quake Deathmatch avatar over and over again

Brother None · Post by **Brother None** » Wed Nov 09, 2011 12:24 pm

Retlaw83 wrote:The way I read it, 1 asks for Interplay to provide burden of proof, then the other numbers ask for them not being able to discuss the things they need to provide burden of proof for?

1. Determines the burden of proof, but this might be Bethesda's since they brought the contract breach to court.

2. Is fairly standard. "Parol evidence" is any evidence from outside of the contract's actual text. Bethesda is saying they can't prove the meaning of the contract with anything but the contract's wording.

3. Is the only odd one, and very unlikely to pass the judge.

4. "Affirmative defense of mistake" is saying Interplay can not suddenly go "oh we did breach the contract but it was because we misunderstood it". This far into the case, that makes sense.

t/c to Reed for explaining some of this to NMA before I dug around for some extra definitions and explanations. This motion is just meant to set the ground rules and the judge doesn't have to accept or throw out the entire thing, as The-Master points out, so why not try for some things even if they're likely to be thrown out? I would expect him to throw out 3, unless satisfactory evidence has already been presented that Interplay has not satisfied either one, which I don't think will be the case. 2 is a stretch too given how the case has proceeded. But you always reach high when trying to set up the ground rules, it's standard to provide some claims that will be ticked out.

Nice scoop though.

POOPERSCOOPER · Post by **POOPERSCOOPER** » Fri Nov 11, 2011 5:16 am

This all seems a bit more than I'm really interested in reading in depth on but atleast we are getting coverage from other sites. I saw DACK at bluesnews http://www.bluesnews.com/s/127418/still ... al-fallout

Duck and Cover

Bethesda files "Motion in Limine" against Interplay

Bethesda files "Motion in Limine" against Interplay

Re: Bethesda files

Bethesda Lawyer epic fail