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News for Friday, January 29, 2010

Posted by Silencer - at 12:44

A talented and experienced modder, Jorge "Oscuro" Salgado, joined Obsidian Entertainment fairly recently to help with developing Fallout: New Vegas. He is quoted as being extremely knowledgable about the TES editor and scripting, and is renowned for developing the epic level spell game re-balancing mod Oscuro's Oblivion Overhaul. I guess it's good to have a man knowing how to right wrongs on board.

Link: The Vault

Thanks Ausir!

News for Thursday, January 28, 2010

Posted by The Vault Dweller - at 23:31

Namco Bandai Games and Bethesda Softworks have reached an agreement for the distribution of Fallout:New Vegas which involves a release across Europe and Australia.

“We are pleased to be teaming up with NAMCO BANDAI Partners to distribute one of our flagship titles. Fallout: New Vegas builds upon the immersive gaming experience that made Fallout 3 the 2008 Game of the Year. We are extremely happy to be able to offer Fallout fanswith another premium gaming experience”, said Sean Brennan, Managing Director, ZeniMax Europe Ltd. “NAMCO BANDAI Partners have a terrific European distribution network and this partnership will help establish Fallout: New Vegas as one of the premier games of 2010”.
You can go to the Namco Bandai website for the whole press release.

Thanks to cronicler for the news alert.

Posted by Brother None - at 17:23

You may have almost forgotten about upcoming post-apocalyptic FPS Metro 2033, of Ukranian creation and based on a Russian novel, but the wait is almost over, as it is coming out mid-march in the US and Europe.


Post-apocalyptic first person shooter scheduled to reach North American stores on March 16th; Europe on March 19th – pre-order at selected retailers for bonus content

AGOURA HILLS, Calif. January 28th, 2010 - THQ Inc. today announced that Metro 2033TM, the hotly anticipated first person shooter for Xbox 360® and PC, is scheduled to reach North American stores on March 16th, and European stores on March 19th 2010.

A Limited Edition will be available for both formats, including an exclusive in-game weapon – the formidable automatic shotgun – and four art cards by the Russian painter Anton Grechko, who was commissioned to create a range of artwork inspired by the universe of Metro 2033.

Standard and Limited Edition versions of Metro 2033 are available to pre-order now, with selected retailers offering free Metro 2033 themed Xbox LIVE® Avatar items with every pre-order.

For the latest Metro 2033 news, visit, follow or become a fan at

About Metro 2033

Set in the shattered subway of a post apocalyptic Moscow, Metro 2033 is a story of intensive underground survival where the fate of mankind rests in your hands.

In 2013, the world was devastated by an apocalyptic event, annihilating almost all mankind and turning the earth’s surface into a poisonous wasteland. A handful of survivors took refuge in the depths of the Moscow underground, and human civilization entered a new Dark Age.

The year is 2033. An entire generation has been born and raised underground, and their besieged Metro Station-Cities struggle for survival, with each other, and the mutant horrors that await outside.

You are Artyom, born in the last days before the fire, but raised Underground. Having never ventured beyond your Metro Station-City limits, one fateful event sparks a desperate mission to the heart of the Metro system, to warn the remnants of mankind of a terrible impending threat. Your journey takes you from the forgotten catacombs beneath the subway to the desolate wastelands above, where your actions will determine the fate of mankind.

Posted by Tagaziel - at 2:08

After a short while, the cybernetic overseer of Vegas sewers (also known as Ausir) provides us with yet another bit of information about Fallout EXTRRRRRREME:

The game was not going to be just a shooter, but rather "a game of action,tactics and strategies where moving into position, planning and falling back" is just as essential as having the biggest guns around. The world map was divided into territories, each of which had different layouts, population of various enemies, different geographical strategic significance etc. Strategy would come into play based not only on the tactics employed for a given mission, as the dynamics of each mission would be different based on whether the player entered the territory from the west, south, north, etc. To get to a particular territory, one could e.g. choose either to charge through an enemy stronghold or to sneak around through adjacent territories in order to flank the enemy.

Missions would also be interconnected and your choices would have consequences. E.g. if the player destroyed a bridge in the territory of one mission, the enemy forces might be weakened in the next one, because of lack of reinforcements. Conquering and holding territories with productive towns would be essential for establishing and maintaining supply lines. If there were a supplied camp nearby, the player's access to various kinds of weapons, ammo etc. would be constant and reliable. The player could close off a territory, forcing enemy troops to pass through another territory, where an ambush could be set up. It's actually a shame that Fallout Tactics did not have stuff like this.

After completing a given mission, the player would move their characters to outlying camp areas, where new characters for the team roster (up to 16 characters) could be recruited, and different roster members could be assigned to the active four-person team for the next missions. Members of the roster not on the active team could be sent as scouts to adjacent territories or deployed into newly conquered territories to hold fort. If a character died, they would clear space in the Roster, allowing the player to recruit new members.

At any time during a mission, the player could switch and control any of their four squad members, each of whom had different perks and specialize in different weapons. In the meantime, the other characters could be issued various standing orders. However, characters also had personality traits that would determine how they would react under different stresses. Each character would gain experience points, which would allow them to increase combat skills or unlock perks.

Aside from the single-player campaign, there were going to be several mutliplayer modes: team campaign, death match, capture the flag, assault, squad death match, squad capture the flag and squad assault.
Link: Fallout Extreme part II: The Gameplay at The Vault

News for Wednesday, January 27, 2010

Posted by Brother None - at 4:48

Yet another never-to-be-title has been uncovered to join the ranks of Tactics 2 and BoS 2. An Xbox Fallout spinoff was in development for a few months by Tactics devs 14 Degrees East but canceled before the concept really even gelled. The relentless Ausir has uncovered what is to be uncovered on the squad-based FP/TP tactical combat game Fallout Extreme (yes, someone somewhere thought that was a good idea).

The player controls a squad of revolutionaries known as The Cause. Throughout the game, it would gain momentum, starting in Oregon, Washigton and Canada. Each reclaim town would vow loyalty to the player's cause.

However, after defeating the Brotherhood, the player would learn why the Brotherhood set out to Alaska in the first place. The rebels must now venture across the Bering Strait, through Russia and Mongolia and finally into China, in order to destroy the Doom's Day Missile that could obliterate what is left of America. The endgame would take place within the Forbidden City, where the Chinese Emperor resides.

Among the factions encountered along the way would be the Issaquah Nation, the Inuits, the Montauk, the Horde of Huns, Siberian Cossacks and finally the Army of the Golden Tiger and New Imperial Guard.
Let this serve as a reminder that things could always be worse.

News for Monday, January 25, 2010

Posted by Starwars - at 20:08

We caught this one just a bit too late, as OXM was gathering questions for an interview via Twitter fours hours ago, and stopped an hour ago.

Thanks for the questions all! Answers to follow in podcast form once the mag's on sale. Assuming we've got the iTunes feed sorted by then.
The interview is with Pete Hines and not with one of Obsidian's developers. This should come as no shock since that's how Bethesda does PR, but let's be honest, that promises a long rote of significantly uninteresting interviews coming up for this game.

News for Saturday, January 23, 2010

Posted by Brother None - at 5:22

No Mutants Allowed checked with Fallout 1/2 composer Mark Morgan for comments on the recent rumors that he's doing the Fallout: New Vegas soundtrack. The answer:

The rumors are not true.
Short and clear; no Mark Morgan for New Vegas.

Posted by Brother None - at 1:03

Duck and Cover has unveiled all the parts of the transcript Bethesda looked to have redacted. None of it is very exciting, and it probably got a lot of screentime now due to the wish to have it redacted rather than due to its contents. Some interesting bits. On Bethesda's MMO.

Q. How do you know what an MMOG is?
A. One of the divisions of ZeniMax Media, ZeniMax Online Studios, is currently in production of an MMOG and has been in production for a number of years.
Q. Is it a Fallout MMOG?
A. It is not.
A. ZeniMax Online Studios is creating a triple A MMOG along the lines of, I mentioned earlier World of Warcraft. It is, you know, a world wide launch. There's close to a hundred people that are working on the game currently. The budget for that, you know, is tens and tens of millions of to dollars.
MR. GERSH: Your Honor --
THE COURT: Um hum.
On the Fallout trilogy pack.
Q. Okay. In the upper right-hand corner, just above the word "Fallout," it clearly identifies that this book contains three smash hits in one radioactive pack, doesn't it?
A. That's what it says.
Q. And right underneath the word "Trilogy," it also shows what's purported to be in that box, Fallout, Fallout Two and Fallout Tactics, correct?
A. That appears to be the case.
Q. And all three of those games are pre-existing games that Interplay has the right to distribute, correct?
A. Correct.
Q. And I believe that you testified earlier that there's no restrictions on Interplay creating compilations of its games of pre-existing works, correct?
A. So long as it met the specifics of that clause in the APA that required all packaging to be pre-approved by Bethesda.
Q. Is that all packaging to be pre-approved by Bethesda from the date of the agreement of April 7, 2007 to date?
A. All packaging means all packaging.
On Interplay's right to change Project V13 from FOOL to "post-apoc MMO" if need be. This is part of the rather key if obvious argument that Interplay working on FOOL does not in any way directly harm Bethesda, which negated the immediate need for a preliminary injunction.
A. Well, they have the exclusive rights to the Fallout Three license, but there is nothing, which is a post-apocalyptic game, but there is nothing that prevents them from doing a game in a post-apocalyptic setting, as long as it didn't trade on the assets of Fallout. You know, the themes, the vaults, the looks, the style, the things like that. But to do a Mad Max game in a post-apocalyptic world, there is nothing in there that prevents it.
Q. Correct. So there's nothing to stop Interplay from continuing to manufacturing their trade, their MMOG, even if it's a post-apocalyptic game version, so long as it doesn't trade, ultimately when it's completed, and not approved, I'm assuming, on the image and the likeness of the rights owned by Bethesda, correct?
A. Well, that's correct. And if that is the case, given that they didn't pass those two hurdles in that test, you know, I would want the rights back so that I would know what to do with my post-apocalyptic franchise in the MMO space. If they had chosen the direction that you're talking about and create a Mad Max post-apocalyptic world, yeah, they can do whatever they want. But, you know, there are two very specific tests that they have to get over in order to hang on to my brand, and continued development of my brand. So, fine. Go ahead. Do it.
Q. Bethesda hasn't started at all to do anything to make a Fallout MMOG yet, correct?
A. That is correct.
And I thought I'd just pluck out another hilarious bit of browbeating.
Q. Well, quality MMOGs can be created with a lot less people, can't they?
A. None that I can point to. I don't know if you point to any. If you can point me to some, I'd like to hear them.
Q. Who is Matt Frior [Firor - ed]?
A. Matt is the President of ZeniMax Online Studios.
Q. He created an MMOG that was critically acclaimed with 25 people in 18 months, didn't he?
A. I don't know that to be a fact.
Q. You don't? It's all over the internet.
THE COURT: Okay. Don't argue with the witness, please.
MR. MARBURY: Objection, Your Honor.

News for Friday, January 22, 2010

Posted by Brother None - at 20:52

Mark O'Green, Fallout 1/2 design/dialogue guy, has rejoined Interplay for Project V13, All-Pro Interplay stalker Ausir reports.

Despite the legal troubles, another developer of the original Fallout has joined Chris Taylor at Interplay on the Project V13 (Fallout MMO) team (Jason Anderson, who originally headed the project, left for InXile in 2009).

Mark O'Green is a designer that wrote most talking head dialogues in Fallout and Fallout 2.
As far as I know, Mark has been out of the industry since Fallout 2.

Posted by Brother None - at 19:49

I wasn't even aware it wasn't finalized yet, but it certainly is now, Interplay moving fool steam ahead on Project V13 by finalizing the MMO agreement with Masthead.


LOS ANGELES, CA, January 21, 2010 — Interplay Entertainment Corp. (OTC BB:IPLY) announced today that the Company has signed definitive agreements with Masthead Studios concerning the development of Interplay’s post-apocalyptic Massively Multiplayer Online Game (MMOG), code named “Project: V13.”

Project: V13 has been under development at Interplay since November 2007 by some of the original Fallout® creators. Masthead joined the project in early 2009 and development continues under Interplay’s direction and control. Project: V13 will utilize the proprietary tools and MMOG technology Masthead developed for its “Earthrise” project.

Commenting on the announcement, Interplay Chairman and Chief Executive Officer Herve Caen said, “Masthead’s technology is impressive and perfect for our Project: V13. Its team is passionate to bring our vision and game play to the market. This MMOG will have many unique features that we will disclose before launch of the public Beta in 2012.”

Masthead Studios President Atanas Atanasov said, “Project: V13 incorporates many creative and technological innovations. We believe it will be a unique experience. Our technology will continue to evolve in order to realize all the extraordinary content and features Interplay has designed.”

Terms of the deal were not disclosed.

Posted by Sander - at 3:31

From our good friend and news source Ausir comes some New Vegas news.

First, it seems that Mark Morgan might be working on Fallout: New Vegas. Morgan wrote the soundtracks for Fallout, Fallout 2 and Planescape: Torment, among many others.

Second, a company called Plastic Wax Animation - who produced cinematics for Bioshock, Borderlands and several other games - is supposed to be working on Fallout: New Vegas cinematics.

News for Wednesday, January 20, 2010

Posted by Tagaziel - at 10:55

Duck And Cover reports that Bethesda has filed for the statements to be redacted to protect Zenimax's investment into the MMO.

Zenimax opened up an MMO division, headed by Matt Firor (Dark Age of Camelot), which is currently working on an unannounced game. At least officially, since Bethesda let slips some information about the online game in the courtroom, which they now want to rectify by filing for statement redaction.

Apparently, there are "tens of tens of millions of dollars" and "close to a hundred people"working on a "secret" "World Of Warcraft" type MMO, in production since 2007 after the team was put together in late 2006. According to Bethesda's testimony, the timetable for an MMO is four years, so this might mean such a game will ship in 2010-11

All of the above comes from King of Creation's mysterious informant.

Link: Bethesda files for redactions to hide MMO info

EDIT: the usually fairly reliable VG247 cites unnamed sources as confirming that this game is the The Elder Scrolls MMO, which should surprise no one, and that it apparently missed a 2009 announcement date, which is more surprising.

It’s Elder Scrolls, we’re very reliably informed, and it was supposed to be revealed last year.

The game has been talked about behind the scenes for at least a year, we’re assured, and must be “very close to reveal by now”.

News for Monday, January 18, 2010

Posted by Brother None - at 13:36

No Mutants Allowed is currently experiencing some issues with old file links being broken. Our web- and filehost - AtomicGamer - let their old url of 3ddownloads expire, and a lot of our file links older than a few years were still pointing to that site. This has broken quite a few links in our files section.

If you're looking for a specific file, we'd advise heading over to our AtomicGamer file folder and looking around manually. We will hopefully get this issue sorted out sooner than later. Meanwhile, if there are any links on the main page that are broken - like the Fallout 1 and Fallout 2 music pages we just fixed - please let us know.

EDIT: this issue should be fixed now.

News for Sunday, January 17, 2010

Posted by Tagaziel - at 10:38

Ausir, from that place we do not speak of, reports that a user by the name of gir, of the Xbox Scene has apparently found a way to load Fallout 3 mods into his Xbox version of the game:

Ok, I'll explain it the best I can. Firstly, I used xexloader to install fallout 3 to an external usb hd from the retail disc. (I already had the expansion packs installed) It would probably work just as well if you installed to the internal hd.

Anywhos... I then connected the hd to my computer where I used xextool to patch the xex to the latest version using the method outlined here.

Then, I edited the fallout3.ini as instructed by the "manual" instructions from this.

Then I took the contents of the mod and put them in their respective places in the fallout 3 directory.

I had noticed earlier that the title update container had an esp file in it so, i figured what the heck? Its a longshot, but ill give it a try. So....

Then, I used this guide to help me make a live container for the mods files. Im not sure what all I needed to put in it, so I just put everything in. The esp file and the folders. Just make sure you fill out the gameid and other stuff for fallout 3. Also, instead of telling it youre making a demo, select the "content" option. When that was all said and done, I had a shiny new live container. I just dropped it into the retail hd with the rest of the expansions.

After getting everything put back together, I loaded up fo3 through xexloader and what do ya know? My little "House Mod" showed up in the downloads list. happy.gif

The first save I tried was a later save and it took a couple tries to get it to load. It wasnt until I tried an early one that everything seemed to load up and actually work.

Thats it! I hope someone can take this, make some sense of it, clean it up and streamline the process.

Have fun!
Thanks Ausir.

Link: Fallout 3 mods on the 360 on the Vault
Link: I just got a Fallout 3 mod to run on Xbox... on Xbox Scene

News for Saturday, January 16, 2010

Posted by Wheelbarrow - at 18:07

Post-apocalyptic aficionados may wish to take a look at recently released action/PA Denzel Washington vehicle The Book of Eli.

Eli (Denzel Washington) has been on a journey for 30 years, walking west across America after a cataclysmic war that turned the earth into a total wasteland. The world has become a lawless civilization where people must kill or be killed. The barren roads belong to gangs of cutthroats who rob and kill for water, a pair of shoes, a lighter, or just for fun. Eli is a peaceful man who only acts in self defense, and becomes a warrior with unbelievable killing skills when he is challenged. After the war and the "Big Flash", Eli was guided by a higher power to a hidden book and given the task of protecting the book and taking it to its final destination. Eli guards the book with his life, because he knows that the book is the only hope that humanity has for its future.
In a post on our forums, Wheelbarrow claims it was very reminiscent of Fallout
Very interesting; and blatantly fallout. Everything about it reminded me alot of the first two FO games. The people, the places, the music too. I even saw a vault-tec like advertisement poster for large fallout shelters on the wall in a couple of scenes.

It wasn't the most incredible movie ever, but it was pretty dang good. I enjoyed it, especially being a Fallout fan.

News for Thursday, January 14, 2010

Posted by Tagaziel - at 2:59

Ausir of the land of Mordor has procured some more transcripts from orionquest. As usual, in the Interplay corner is Mr. Gersh, in Bethesda's is Mr. Marbury and the referee is judge Deborah K. Chasanow. TLA refers to the Trademark Licensing Agreement, while APA refers to the Asset Purchase Agreement.

Ding, ding, ding, ding!

MR. GERSH: Trilogy, as far as I'm concerned, I think the evidence would be clear, doesn't refer to a third version of a game like Fallout Three. You'll see from the documents we've submitted, the packaging is completely different. The packaging completely identifies the product within it, but most importantly, there is no confusion in the marketplace. Zero. Yesterday during the deposition there was testimony by Mr. Leder, the COO of the company, that they had possibly two complaints to their customer service office, talking about they needed a patch or a fix for a game. They have not one complaint in the millions of copies they should of Fallout Three, that one consumer was confused by Fallout Three and Fallout Trilogy thinking they were the same. Not one. They have no survey. They have no evidence of any confusion. I don't even belief when Your Honor looks at the two packaging that you could even say there is a likelihood of confusion. It doesn't exist. They're clearly identified. This is not the same as somebody actually taking Fallout Three and using it. It's clearly marked. The font is the same. The lightening bolt and the O is the same, exactly what we've been using in the past, exactly what is continued to be used today by the Plaintiff. So I submit there is not any confusion. There is not likelihood of confusion when it relates to that.

The other issue that you have to deal with is whether or not they're likely to prevail. We have the balancing test that we deal with, et cetera, and I submit that once all the evidence has been brought out to Your Honor, you've looked at what's going on, you'll see, one, no confusion, two, no likelihood of success, three, the balance of the hardships would tip strongly in the favor of Interplay. They've been using this in the past, and if the only thing that is the problem is the use of the word "Trilogy," then we should know that that's the problem and that can be addressed by the Court and us, but there should not be an injunction issued to stop Interplay from doing that which it had previously done. Also, there will be testimony from Mr. Caen that when he licensed, when he sold the product and licensed it back there was an expected revenue stream for the company for years to come, and as a matter of fact, not only that, Mr. Marbury indicated that we're trading on the good will of the Fallout brand. Well, that's exactly what we're going to do. That's exactly what was intended by the agreement.

They licensed Interplay back the right to be able to sell the pre-existing games in perpetuity, no termination provision in the document whatsoever, and there is a termination in the TLA, but there isn't a termination right or provision in the APA or the asset purchase agreement. And there's no question that the consequence of Interplay continuing to sell product, every time a Fallout game is released by Bethesda the consequence will be that the earlier game increase in sales and there is demand for them. Their own witness indicated that is a consequence and that's going to happen. So when Mr. Marbury talks about trading on the good will, yeah. That correct. We're going to. We bargained for that, and they knew it and they know it. That's exactly what we're doing. It's going to help the sales of Interplay's earlier game and Interplay is going to continue and should be allowed to continue to market its games world wide as it has in the past.

With respect to the MMO, we have some very threshold issues to get through before I believe an injunction could even be considered to be granted in this case.

First of all, this game is not going to be released for at least two years, possibly three years, not even going to be completed. Why we're here trying to enjoin something that's under development is beyond me.

Secondly, Interplay has the absolute and unfettered right under that agreement to continue to develop this game, and if it is ultimately not approved because of the quality or other reasons under the terms of the agreement or, for that matter, if ultimately at the time of trial Your Honor decides that there was some violation that should have stopped Interplay, they have the right to change characters and scenes and do what is necessary to release that MMO.

So, how do we fashion even an injunction when we're thinking about it, you can't say "Interplay, you cannot make a MMO. You can't make an MMO with Fallout characters." Then we're going to have an argument, does this character look like a Fallout character? Is it similar? Is it close? The language of the agreement defines what can be done, and it's a little bit vague and a little bit left for everybody to kind of decide as we go. But I don't think we can decide that until 1 the game is done. Did we meet the standard or not.

There is a provision in there that says if this agreement, I'm sorry, if the game is not approved we can take out the Fallout characters to the extent any are in there. We can take out the scenes, and we can continue to make the MMO. They can't stop us from making an MMO, which is exactly what they're trying to do, so we have that problem.

We have a bigger problem. The two conditions that Mr. Marbury has indicated, they're incapable of being enforced, absolutely incapable. They're vague. They're ambiguous. They're illusory at best.

Let's start with the first one. We had to secure $30 million in financing. What does that mean? I don't know. Why isn't it defined in the agreement? The witness, Mr. Leder, the COO, didn't know. Why wasn't it made clear what it had to be? Didn't know. Did it have to be, did the money have to be in the bank? Absolutely not, he said. Did they have to have a line of credit? Maybe. What does it mean? How do we interpreter that?

By the way, Mr. Leder testified yesterday that Interplay was fully permitted to use a third party to help develop the game for them. Masthead. If Masthead is going to spend $20, $million in its development, why isn't that adequate? I'm not sure. I think it is, but I don't know. I don't know what secured, secure financing means.

Everybody know it, Mr. Leder said. Everybody will know what it means. Well, but it didn't mean in the bank. It didn't mean they had to have a specific line of credit. It also doesn't mean, and there is nothing in the agreement that says they have to be able to use $30 million on day one. This is a project that's going to take four to five years to develop. So secured financing over some period of time that they're going to be able to have that amount of money. That might be reasonable. Is that what Interplay is doing? I believe so.

Now we get to the next step. And remember, they have to have both, as Mr. Marbury said. You got to be, commerce full scale development. Your Honor, what does full scale development mean? I don't know. Doesn't say it in the agreement. No definition.

Mr. Leder said "Boy, it's a very complex situation. Hard to describe," and he listed a whole bunch of things yesterday for full scale development. I said why is it in the agreement? I don't know. How does Interplay, how is Interplay supposed to know when full scale development starts? I don't know.

This is an agreement drafted primarily by DLA, who represented the Plaintiff in this case. They had five in-house business people review this agreement. They had their in-house, at least one in-house lawyer and at last one lawyer at DLA review it. That's seven people looking at this document. And we're left here today before you with this preliminary injunction with the two most important provisions of that TLA undefined and unknown and we have to guess. Interplay has no way of determining when it's in compliance. You have no way of determining when it's in compliance for purposes of this preliminary injunction. Maybe at trial it's different. Maybe if there is expert testimony that comes along at the time of trial on what standard in the industry means, we get there. Maybe. But I don't think so because I don't think anybody can define full scale development in the context of what they're doing or what they understood. It could only possible be what theses two parties meet in their minds.

And Mr. Leder couldn't even tell us, the COO, yesterday, what it meant and when it started. It's a complex situation. If you can't decide when that starts, the provision's illusory. You can't enforce this agreement. If you can't determine what it means and, you know, clearly, unequivocally what it means to have secured $30 million in financing and we've got to go speculate for something, that may be a trial issue. We're here on a preliminary injunction. It's got to be clear. It's going to go unambiguous. And I submit, Your Honor, you don't even need testimony if Your Honor looks at those two provisions and says "Wait a second. Is there any definition of these? Is there any way I can determine as the Court what these mean and when this was suppose to happen for Interplay?" And when your answer comes up "Nope. There's nothing in the agreement," we should all go home. Thank you, Your Honor.

THE COURT: Mr. Marbury.

MR. MARBURY: Very briefly, Your Honor. I'd like to continue along the part here of discussing the MMO separately from the TLA.

I'm at a little bit of a loss of words on this issue, because to have a company that's been active, a publicly traded company that's been active in the marketplace, raising money, putting out games, operating for year, decades, to say they don't know what secured financing means is just hard to understand.

It's not unclear. What they're trying now to do it's clear, is try to negotiate that two year obligation into a five year obligation, or a six year obligation.

What Mr. Gersh failed to point out was that Interplay was also represented by counsel. They negotiated the agreement too. They understood what it meant when they went into it. There is no question what secured financing means. Everybody knows what that means.

The same can be said about full scale development. The parties understood that, and Mr. Gersh's characterization of the testimony I don't think is completely accurate from yesterday, but you'll hear it later and you can determine that. But the parties understood exactly what they were getting into when they got into this agreement back in 2007.

The suggestion that we don't have to deal with this until launch is just wrong. The contract says we're suppose to be dealing with it in two years. More to the point, the contract, in §3.4 very clearly explains what, in the event of a termination, Interplay can do, and it says very clearly in §3.4 that they are not allowed to use our characters, our environment, our story lines, our setting, our characters, our character classes.

The parties have already negotiated this. You can't just take out some of the characters. It's the world. Their project right now, it's been titled Project V13, and that's a reference, we understand, to Vault 13, expressly something that's excluded from their rights going forward to use Vault. So you understand the context, the idea here is that in the post-apocalyptic world people went underground into the vaults. The Fallout story starts in Vault 13. Those are things that they bargained away. So the idea that five years down the road, or years down the road when these guys have finished the game, they can simply flick a switch and suddenly have a non-violative game, it just doesn't make any sense. In terms of customer confusion, we'll have testimony from Mr. Leder that not only were there some calls in to customer service, but there were also, he had discussions with marketing people, I'll show you a picture from WalMart where the two things are on the shelf. A number of people complained that way.

More to the point, customer, actual customer confusion is one of, I believe, eight criteria that we need to show. It's not even actual, it's likelihood of confusion. Of the eight criteria, Your Honor, we nailed seven out of the eight. It's not a requirement for a finding of trademark infringement.

The other criteria, Defendant's intention. Well, we understand their intention. They're intentionally doing this, so we have proven that.

Is it the same mark? It's the identical. It's not E Fallout, or some variation in a foreign language. It's the exact same mark. It's the exact same goods. It's the exact same sales channels. It's the exact same advertising, sometimes on the same shelves.

So, to the extent that we haven't done a survey in the last month and brought in an expert witness who would not have been allowed because we were limited to the affidavits that we had submitted along with our motion. It doesn't matter for the purposes of reaching a conclusion here. And, finally, you know, to point out on the asset purchase agreement side and to claim that the merchandising rights were perpetual is illogical. They argue that there is no termination provision in the asset purchase agreement. Well, Judge, it's an asset purchase agreement. It's a transfer. There's a closing.

Having a termination provision, express termination provision, makes sense in the trademark license agreement. It doesn't make as much sense in an asset purchase agreement. But if you put that aside, the logic fails. The logic has to be, the word "perpetual" shows up no nowhere in that agreement, Judge. There is no perpetual language in there. This is just an interpretation. But the logic, if you continue it to its extreme, is that they can breach that contract ten ways to Sunday, but they get to continue to sell, and that just can't be right. That can't be the law.

So, we think that our case is a clear one. We agree that, you know, we need to look at the contract documents and focus on what has been done and what has not been done by the parties. I think we can clearly establish what has not been done. They have not submitted these boxes for approval. They have not gotten the $30 million and they haven't started full scale development. Thank you.

THE COURT: Um hum.

MR. GERSH: One point if I may, Your Honor.

THE COURT: Um hum.

MR. GERSH: I just want something to be very clear. Mr. Marbury said that Interplay was represented by counsel in the negotiates. Not true. Didn't come out in his deposition. Mr. Caen represented the company, handled the transaction himself. Did not have counsel go over the document for him. This is seven people on one side, one person on another. This is how the document came out.

On the issue of the termination, which is the last thing I wanted to say under the agreement, all they had to do was make their language clear as to what was going to happen, and they didn't. Instead they created confusion. They created it in the TLA and they created it in the APA, and I don't think there is enough for the preliminary injunction to issue. Thank you.

THE COURT: All right. We're ready to hear witnesses.

MR. MARBURY: That would be great.
Thanks, Ausir.

News for Tuesday, January 12, 2010

Posted by Tagaziel - at 10:31

Duck And Cover has obtained some partial transcripts from the Bethesda v. Interplay preliminary injunction hearing. See below for the long and partially amusing text. Marbury represents Bethesda, Gersh Interplay.

DAC also provides us with a short summary:

* Talking about Project V13 hurts Bethesda (kind of like how saying "I don't believe in fairies" hurts a fairy)
* Bethesda is NOT working on a Fallout MMO, they are "working on something else"
* Bethesda's lawyer didn't really understand the concept of a "preliminary injunction" and the judge called him out on it
* Interplay's lawyer believes that there was never a breach of contract in the first place
And here's the transcript:
MR. MARBURY: So, the other condition is full scale development and it is also clear that they have not engaged in full scale Development of this MMO. The witness we believe will testify consistently with his deposition, that they have approximately 20 people working, or at least he thought there were 20 people working in Bulgaria on this project when he visited back in March of 2009. We will put on testimony that that is far, far less than what you need to make one of these in full scale development. Based on our own experience in the MMO field, you need more than a hundred people working on this to be in full scale development. And, in fact, to confirm that testimony we will share with the Court Interplay's own budget documents that show that their initial budget on this required them to use well north of 50 people, and that was a scaled down version.

So, I think it's pretty clear that there's been no full scale development at any time by this company, or by Masthead. This company has seven employees right now. They can't do it, and it appears that the Bulgarian company, who is already busy with another game, isn't doing it.

So, with those two conditions not met, those rights automatically are exterminated, or terminated, and that's what the parties agreed to. So that's the trademark license agreement issue on the MMO.

THE COURT: But in terms of preliminary injunctive relief on that, if they're not doing it and they don't have the financing, what is it that you need in terms of preliminary injunctive relief?

MR. MARBURY: Well, Your Honor, they claim that they're doing it. They've testified --

THE COURT: They haven't put it up on the web though. I mean, this is where the two sort of blur. They took it down. They're not advertising to anybody that they're developing it. What is it you need them to stop immediately, as opposed to once you prevail?

MR. MARBURY: Well, Your Honor, they are developing it and they intend to develop and they intend to exploit it, and they would like to advertise it, and there's nothing in place right now to prevent them. There is no order from the Court to prevent them from advertising that they're doing aFallout brand.

And so you understand the marketplace, a lot of this industry is driven by the blogs. There are an enormous number of blogs out there where people post either wild speculation or a company's plan or their discussions about Fallout and other games. In fact, there are specific websites specifically for Fallout. So there is an enormous amount of discussion out there about how the company is develop a Fallout, how Interplay is developing a Fallout MMO. So, it is -- they're out there. The marketplace is aware of it. They're developing it and they tend to explicit. That's damaging to my client.

More to the point, Your Honor, when the parties entered into the trademark license agreed specifically, they negotiated and agreed that at the two year marker there would be some sort of determination made about whether they had the rights to go forward and continue to do this development or not. That two year time limit has expired.

The parties also agreed that because of the unique and special character of the IP that we own, that we be, shall be entitled to injunctive and equitable relief. So the parties already negotiated for some sort resolution in year two, and we are obviously seven months past year two. But to the extent that they continue to do this, that impacts our brand and it impacts, you know, the marketplace.

They've already expressed that they are continuing today to work on this project. And so what we're going to end up doing is fighting about this two years down the road, or three years down the road, if they actually do launch. So that's the immediacy of the issue for us, that we've negotiated for a to year cap and they failed to comply and it's time for us to be able to clear the air in the marketplace so they know, so the market place is clear that Interplay doesn't have the rights to the Fallout MMO.

Also, Your Honor, try to make another point, one of the keys to success in the software industry is clarity, clarity of rights, rights and title. These games, as I have described, take many years to develop. And to the extent that we are, we're not in the process of developing our own Fallout MMO right now. We're doing something else. But to the extent that the rights have been terminated, we would have an interest in developing it at some point and in order to do that we need clarity about what the rights are and what they're not.

We're not developing it now because we don't have a ruling from a court that we have the rights to do it. But we need that clarity for our own business purposes as well. So what we're seeking is what we bargained for, which is at April, 2009, you have either, the company is either, you know, going at this in a appropriate matter, fully funded and going full scale with it with a lunch or not, because, Your Honor, again, if they launch, there's a royalty stream there for us, right. If they don't launch, we've got an asset that's not depreciating but it's not being used. So either they use it and we get a royalty stream, or we get it back and we find another way to use it. But to the extent that this drags on that royalty stream's not being exploited either by us directly or by Interplay --

THE COURT: How does a Preliminary Injunction help, because it's only preliminary? It could be different at the end. I mean, it doesn't help clarify the situation. A Preliminary Injunction is designed to sort of freeze the status quo so that we can have a breathing space to get something decided. That's not going to clarifying anything. And if they're not actually going to launch, they're doing it at their own risk to develop it, if they continue to do that, because ultimately a court may decide that they didn't have the right to do it because of their default by last April.

MR. MARBURY: Well, Your Honor --

THE COURT: A Preliminary Injunction does not get you any clarity.

MR. MARBURY: Well, Your Honor, I will tell you that in their SEC filings Interplay has disclosed that they're out there trying to raise money today, or at least in their last quarterly report, they're trying to raise money based on exploiting the brand and the IP that they have. So Interplay is out there using the Fallout mark, trying to raise money, and that impacts my client directly.

They don't have the rights to do that, Judge. They're under funded. They're using a company out there that has no experience in lunch MMOs, that everybody knows hasn't ever done anything successfully. They've never launched a game in their career at Masthead. So that's impacting the Fallout brand, which we have invested an awful lot of money in, Your Honor.

It's a very value brand for us, and to the extent that there's dilution of that, that's not something that is easily quantified. As you know, trademark, you know, in good will, very challenging to quantify. So the longer that it goes, on the more dilution, or the more weakness, the more discussions online, the harder it is for our client. So that's why we think we're entitled to injunctive relief. We bargained for it. They agreed that we shall be entitled to equitable relief in the agreements. They haven't met the conditions. I think it's pretty clear, Judge.

So, you know, our burden here is to make a clear showing, Judge, of a number of things. One, that we're likely to succeed on the merits, two that we're likely to suffer irreparable harm, and I think that's satisfied both by the facts of the case and the presumption at law for trademark infringement being irreparable harm. The balance of the equity --

THE COURT: Here's where their Motion on the Subject Matter Jurisdiction helps you, I hope, to focus also. You're talking about a presumption of harm on a trademark. On the trademark license agreement issue, that's a closer call on whether it's just a breach of contract or something else. So, you talk to me about presumption. I am not, I don't, I'm remaining silent because I don't want you to think that I accept the proposition that even if you show likelihood of success on the TLA issue in terms of breach of that agreement, that it necessarily implicates irreparable harm.

MR. MARBURY: Understood, Your Honor. Understood. We think the balance of the equities tip in our favor clearly, and that the public has a strong interest in not just protecting valid trademarks and other IP rights, and not just enforcing the agreements that we entered into at arms length, but also to prevent customer confusion in the marketplace. So that's what we intend to show here today, Your Honor, and we appreciate your time and attention.

THE COURT: Okay. Mr. Gersh, you can make a brief opening, I guess, and help set the scene for what I'm about to listen to.

MR. GERSH: Thank you, very much, Your Honor. Your Honor, I would like to address one point that you raised at the end which I think is very crucial to this entire issue, and that is briefly you raised the subject matter jurisdiction.

THE COURT: Um hum.

MR. GERSH: And the irreparable harm coming out of the contract and the presumption. I still believe, as we said in our papers, that overriding, the first thing that you have to decide is has there been a breach of contract, and I still think that it's a subject matter jurisdiction. I'd still ask the Court to consider it, even though you're not going to do it this morning, because I believe that the cart has been put before the horse here.

Until you decide whether there's been a breach of contract, which is more a state law issue in the cases that we raised, you can't get to whether there has been trademark infringement. The Maryland case we cited I think is right on point. The Illinois case is even clearer. That's all I'd like to say.

THE COURT: I did read them over. The problem I have with your assertion is the counts four and five of the complaint. As I understand the law now, if on the face of a complaint it clearly invokes the federal statute and rights available under federal statute, that that's enough. Because if what you're asking me to do is in essence to go determine the merits of an underlying dispute, then the subject matter jurisdiction merges too much into the merits, and we're not going to decide it on a threshold basis.

I have to look at the well pleaded complaint, and I have here counts four and five, never mind what one and two and three even would be, or even later. Well, the common law one is Delaware law, not even federal. But that's why I'm fairly satisfied at this point, from my look at it last night, that they have done what they needed to do to invoke the subject matter jurisdiction at this juncture. But, again, I will look at it more carefully. You have certainly educated me to look at that in a lot of ways, but you had to find, you had to go long and hard to find another case after Gibraltar that you think is even close, because I think when you fairly look at the face of a complaint, this one does have those two counts. Okay.

MR. GERSH: Just for clarification, and I do agree with Your Honor. In fact, I wish we had brought this to Your Honor's attention earlier. We just found it. I've been doing this for 30 years and don't consider this little nuance between the breach of contract, and we did come across the cases just yesterday, which is why we pointed out, and it is quite a nuance.

And I think that when you look at Gibraltar, the only thing that Gibraltar talks about is that it does say they didn't plead trademark infringement.

THE COURT: It was an arbitration compelling.

MR. GERSH: Correct. They tried to bootstrap it basically, and under the Federal Arbitration Act. But in the Illinois case, they made it very, very clear that no matter what you call it, if it is a breach of contract, and that is your threshold issue, and these are contract claims, it is a breach of contract and that state courts are just as well available to deal with the contract part of the claim, and you cannot turn a breach of contract into a trademark infringement and invoke subject matter jurisdiction in a federal court.

THE COURT: Exactly. If all we were dealing here with was the trademark license agreement dispute, that is whether you have the right to continue to try to develop the MMO, this would be a much tougher question. But as he said today, when we have the Trilogy Three and the -- I'm sorry, the Fallout Three or the Fallout Trilogy, where even if you have the right to go ahead and do something, if what you're doing is naming it in a way that causing confusion, I'm talking, that's trademark, not breach of contract.

Whether you submitted it or didn't submit it is really not tissue and that, I think, is where they get into federal subject matter jurisdiction without question, because that's not just breach of contract, that's something else.

MR. GERSH: And that's kind of where we diverge, and because you never get to the issue of trademark infringement unless you find there's been a breach of contract you don't get there at all, because if we didn't breach the contract, as they allege, then we did not, we cannot possibly have infringed because we had, our clients had the rights. So you never get there, and that is the distinction that I think is very crucial to the consideration.

It's not that -- It's not that we have a competing trademark case where you have somebody that comes along and said "I like your mark. I'm going to use it," and they copy it and steal it. That isn't our case.
This situation is different. Interplay had the rights to use this, and the only basis that they bring a trademark infringement case before Your Honor today is because they're contending we have breached the agreement and therefore we're infringing the trademark, and that's the problem.

You have to determine the breach before you get to infringement. If you find, if the Court finds there is in breach, you never get there. We didn't steal the mark. We didn't come along and use it differently. We used Fallout because we had the right to use Fallout.

THE COURT: You had the right to you Fallout. The question is do you have the right to use Fallout Trilogy.

MR. GERSH: And, if I might, that would be an issue of whether or not we breached the contract by not submitting it.

THE COURT: Whether that's a pre-existing product.

MR. GERSH: That's correct.

THE COURT: Which I understand, but all of the judges and all of the writers indicate what we've got here is something that is not easy to compartmentalize.

MR. GERSH: I appreciate that. Thank you.

THE COURT: I read it. I looked at it. We're going forward. At some point, if I have more of a concern I will, obviously you will be among the first to know.

MR. GERSH: Thank you, Your Honor. Your Honor, I think what I'll address is a couple of things that Mr. Marbury raised.

Interplay had the rights to use the mark, as I have indicated. Interplay used the marks that it has been using in the past, in the same manner in which they had been using them. They had use Fallout Trilogy previously. Mr. Marbury has indicated that Mr. Caen testified at his deposition Fallout Trilogy had been used in France. They were given a complete list of all of the companies that were using our mark at the time of the closing.

Interplay has done nothing but to continue to usethat which it had used previously, and they did not have to submit those for approval. And, in fact, over a two year period did not submit any of the marks for approval.
The only issue, as Mr. Marbury seems to indicate now, is Fallout Trilogy. Not that we didn't have the right to use Fallout, Fallout Two or Fallout Tactics, but it's Trilogy. So here's what we have. We have Trilogy. Talks about a compilation of three games. It's clearly identified on the box, and it shows the product that's on there.

You asked the question, doesn't their determination have to be reasonable, and I submit that it does. And it still has to be reasonable whether we've submitted it before or not, because Interplay had been using it before and in fact believed and reasonably believed that they had the right to continue to use the box art that has been used in the past. They have done nothing different.

In most trademark infringement cases, Your Honor, somebody comes along and they're trying to take the good will of another company. In this particular case Interplay had the right to use that which it had actually developed originally, sold and licensed back certain rights. It didn't come along to steal anything.
Trilogy, as far as I'm concerned, I think the evidence would be clear, doesn't refer to a third version of a game like Fallout Three. You'll see from the documents we've submitted, the packaging is completely different. The packaging completely identifies the product within it, but most importantly, there is no confusion in the marketplace. Zero.

Link: Partial transcripts of the Bethesda v. Interplay preliminary injunction hearing, courtesy of DAC

Thanks, King of Creation, may thy winking be superb.

News for Wednesday, January 6, 2010

Posted by Tagaziel - at 22:51

The Official XBox Magazine has posted a scan of one of its pages, which simply states that we'll see official NV info in its February issue. And names it Bethesda's newest post-apocalyptic RPG.

Newsflash, OXM: It's done by Obsidian Entertainment. Now you may continue not doing basic research. And using badly photoshopped images as promotional material.

Link: Fallout: New Vegas page scan

Thanks, Bora V

Posted by Per - at 21:56

In our popular Do You Want to Rig an Online Poll series of meaningless internet popularity contests we now arrive at the 2009 Mod of the Year Awards at Mod DB which I assume is a DB to do with mods or some such. FOnline has made it to the top 100 and if you think they're totally fab you can click on the "Indie Games" tab under "Best Released" and vote for them.

News for Monday, January 4, 2010

Posted by Tagaziel - at 12:53

Update: It appears that this is indeed false, if indications from both Obsidian and Game Informer are anything to go by. In other words, we've all been trolled, lol. Original post follows:

Unconfirmed sources inform us that the next issue of Game Informer will have a feature on Fallout: New Vegas. Here are the tidbits:

Fallout New Vegas information is coming "very soon." It's going to be Gameinformer's next cover. This is the information in the magazine:

- Similar to Dragon Age: Origins, at character creation the player can select from different background stories. The first few hours of the game are different depending on which background you choose, and you get some unique perks based on your background when the main game begins.

- One background story is shown, Chinese Agent. The background story takes place before the bombs fell. The player is part of a team of Crimson Dragoons infilitrating Hoover Dam. You manage to sneak through the Americans' defenses, set explosives, and head to an extraction point, but your escape is cut off by American soldiers in Power Armor. The player and other survivors of the Crimson Dragoons take refuge in a cave in the canyons, where they commit hari kari with cyanide capsules. The player about to do the same when the bombs fall. The background story ends an indeterminate time later, when the player exits the cave, removes his helmet, and sees his ghoulish reflection in the waters of the Colorado River.

- The background story segues into character creation. The player can customize the appearance of the ghoul, and you see you start the game with two unique perks. One, similar to the Ghoul Mask in Fallout 3, makes Feral Ghouls non-aggro. The other makes the player immune to radiation sickness and allows the player to discharge accumulated radiation in a blast similar to a Glowing Ghoul, healing the player and any mutants while damaging all non-mutants in range.

- By default, the Chinese Agent has the skills Sneak, Small Arms, and Explosives tagged and SPECIAL stats set, although the player can modify their tagged skills and stats if they don't like the template.

- One character background option is Lone Wanderer. This selection has no background story or template and is a complete blank slate for players.

- The SPECIAL system used will be similar to Fallout 3, but skills will be harder to cap and one character will not be able to become a master of all skills. The article is not very specific because apparently it's something the developers are still tweaking.

- Gambling will return, but not as a skill. Your Luck stat will effect gambling results. You can attempt to cheat at cards using your Sneak skill or hack slot machines using your Science skill.

- There will be vehicles. The desert of New Vegas dwarfs the Capital Wasteland and you will need transportation to get around and explore it. You will acquire a vehicle several hours into the main quest. You can customize your vehicle with parts bought at shops or won through racing circuits and quests. Vehicles will not be common, but you will encounter road gangs, merchant caravans, and other vehicles in the wastes. The open desert is home to some very large mutant creatures, like giant radscorpions and sandworms, that will attack your vehicle.

- New Vegas has a coliseum run by a slaver gang called the Caesar's Legion. You can gamble on and participate in arena fights.
Be advised, these are just rumours and might be entirely false.

Thanks, bodhi.

News for Saturday, January 2, 2010

Posted by Anonymous - at 16:25

Shamus Young, author of Twenty Sided Tale and contributor to The Escapist released a list of the most significant game of every year from 1972 to 2009. Fallout made the cut to represent 1997.

Link: Stolen Pixels@ The Escapist

Posted by Tagaziel - at 14:40

More loose bits of data stream down the river of the Internet. Chris Avellone and J. E. Sawyer both updated their Twitter pages with two new entries each. MCA:

is companion'ing away as fast as his little fingers can type

is dropping the Vegas slang like it's going outta style
J. .E. Sawyer:
maybe eight hours straight is the limit for weapon tuning within a single day.

for now all pr/marketing questions should go to bethesda. hopefully not too much longer. Smile
In addition, the Hans Kloss of Fallout mentions that we might get the first real info on Fallout: New Vegas this month.

Thanks, Ausir.

News for Friday, January 1, 2010

Posted by Per - at 16:14

Once in a while a new project pops up that isn't just grand plans and presentation graphics, but that has already taken on form and substance. This is the case with Ardent's Fallout 2 Mod, announced recently in our modding forum.

It is a total conversion mod, so it contains a new storyline, new NPCs, new towns, etc. The action takes place a few years after the events of Fallout 2 in the today's states of Oregon, Washington and Idaho.

You start out as a bartender in a bar called "Vault 13" (hence the outfit), in a boring little town of Duston. Soon enough you're sent on a special mission which will unleash a whole series of events. As is the theme of the majority of Fallout games, the plot will revolve around the basic resources that every human being needs.

I did my best to recapture the feeling of the original games. Thus, the quests offer multiple solutions for different types of characters, the NPCs react to your actions and the decisions you make have consequences which open and close certain doors. Since it's a Fallout 2 mod, there are also pop-culture references and dark humour.

There are also some new elements. I put more stress on unarmed and melee fighting. I intend to reintroduce the food system (but it's not in the demo). I also introduced a new character path - the scientist. You can now solve most quests using scientific skills such as science, repair, doctor, etc.
There are not just plenty of screenshots that are included with some info in a promo pack but also a demo.
The demo is only a demo, so take it easy with some things, such as the worldmap, the cutscenes, etc. Only three locations are completed for this build. The dumb path is not available yet, so don't play a dumb character. To cut a long story short, this is still work in progress.
Given the intention of staying true to Fallout's design basics and the inclusion of 4-pixel chairs, it's safe to say the community will be watching this one.

Link: Ardent's Fallout 2 Mod @ NMA
Link: Ardent's Fallout 2 Mod @ The Vault modding wiki
Link: Ardent's Fallout 2 Mod demo download