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Thread: Claim details from Bethesda vs Interplay

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    Claim details from Bethesda vs Interplay

    The case over FOOL was already supposed to be over by now, having started December 12th and estimated to last two and a half days (by Interplay). Still, while we're waiting on word what the ruling actually is, a few more documents have made their way to us from the trial. This is mostly old news, but let's go over it again...

    First are exhibits 36 and 38, which are the evidence Interplay submitted to prove they fulfilled the financing requirement of $30 million USD. 36 is a production agreement between the Interactive Game Group and Interplay for the production of an unnamed game whose costs "do not exceed $15.0 million and are not less than $0.5 million". 38 is the development agreement with Masthead for the production of "Project: V13" on the PC platforms, the tasks of Masthead including programming, art and design, with Interplay handling the concept art, the majority of design and producing for project oversight, audio broken up into music/voice over (Interplay) and sound effects (Masthead) and cinematics into storyboarding/post-production (Interplay) and modeling/rendering/animation/special effects (Masthead). It also offers details on the royalties but cites no numbers on Interplay's claim that Masthead's side of the bargain "represents" $20 million for the minimum financing agreement.

    The outline of Bethesda's claims once again goes on about Interplay not having the right to use any Fallout copyright material except the name Fallout, and I think it bizarre that they keep pushing this angle. That said, Bethesda also claims Interplay did not fulfill one of the requirement of the Asset Purchase Agreement, which would be a breach of contract if true, specifically that Interplay did not deliver "all tangible embodiments" of the purchased IP.
    Interplay breached Section 2.5 by failing to deliver to Bethesda all tangible embodiments of the Fallout copyrighted works. As will be shown at trial, evidence establishing Interplay’s breach of contract includes, but is not limited to, purported design documents produced by Interplay in this case.
    No comment there since I have no details on the claim. More interesting, Bethesda offers a stack of evidence that Interplay did not fulfill the minimum financing requirement, and rebuts Interplay's claim on I2g's financing as Frederic Chesnais (owner, founder and sole employee of I2G) has testified that "there is no binding agreement between Interplay and I2G to provide financing to Interplay for the Fallout MMOG" and also that I2G "considered providing no more than five or six million dollars of financing to Interplay for the Fallout MMOG". As for Masthead's side of the deal, Bethesda points out the court ruled that Interplay "was precluded from offering any Masthead employees as witnesses at trial" or "call any Interplay witnesses to testify about any of the work purportedly done by Masthead". The reason being:
    THE COURT: . . . you [Interplay] are not calling any Masthead folks because you have not given the names in discovery, you did not do it timely in response to interrogatories that were sufficiently br[oad] to have required the identity of anybody at Masthead who has knowledge of or participated in the full scale development.

    (...)

    MR. GERSH: Your Honor, that is the Masthead. I am talking about the Interplay people prior to April of 2009.

    THE COURT: You can talk about what they did themselves not what anybody at Masthead did.
    Taking the above into account, there is pretty much no chance Interplay will win this case on the merits of having fulfilled the contract stipulations laid out by the license back agreement.

    That said, Interplay's claims are taking another angle entirely. It is using Bethesda's rather ridiculous Fallout in name only claim to expound that there was no "meeting of minds" on the terms of the parties' agreement, which by Delaware law would make the contract nul and void (Bethesda states this lacks merit because the written and signed contract is in itself conclusive evidence of mutual assent).

    Specifically:
    Specific language intrinsic to the TLA objectively supports Interplay's reasonable interpretation. Yet BSW contends the same language shows that it intended something entirely different: that Interplay's Fallout MMOG should be just a word on a box.

    (...)

    Delaware law provides that the TLA is void and unenforceable if the Court cannot objectively determine what rights were conveyed under the TLA. If the TLA is void, the APA also is void and should be rescinded because the TLA is a material term of the APA. If the TLA itself is too indefinite to bind the parties, the APA suffers from the same infirmities because it incorporates the TLA as a material term, as if it were set forth in full within the APA. The TLA, because it is invalid, also constitutes an unfulfilled condition precedent to Interplay's sale of the intellectual property.
    Interplay points out section 3.4 of the TLA clearly indicates Interplay is given the right to use Fallout-related concepts by the specification that such concepts may not be carried over to a non-Fallout MMO. However, all this hinges on - as the file states - the TLA being invalid "if the Court cannot determine what Interplay was licensed to do." I see no reason for the Court not to simply throw out Bethesda's Fallout-in-name-only claim, and the claim is the only real basis of Interplay's defense here.

    Also as a side-note, Bethesda has "dropped as affirmative claims the packaging arguments and the marketing arguments concerning the earlier Fallout games", as in the argument concerning the Fallout Trilogy, though it is not immediately clear if Interplay will still use them as arguments of bad faith.

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    I've made over 40 posts First time out of the vault

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    I'm on the road without a copy of the APA/TLA so from memory:

    The APA is a straight-forward buy/sell agreement. Bethesda pays money and Interplay provides all rights and assets to Fallout. There is no mention of the TLA in the APA. Whatever happens with the TLA has no impact on the APA.

    The APA is mentioned in the TLA. IIRC, it essentally says: Since the APA gives all rights to Fallout to Bethesda, the TLA is needed by Interplay to do Fallout MMOG development. Again, whatever happens with the TLA has no impact on the APA.

    Interplay would do better arguing that Bethesda has obstructed Interplay from fulfilling the TLA due to bad-faith efforts. Though the financing clause has always been the sticking point and still is.

    We'll finally(?) have a resolution to this saga real-soon-now.

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    Administrator Brother None's Avatar
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    Here's what they say about the APA/TLA tie:

    The indefiniteness and uncertainty of the TLA renders the APA unenforceable, too. Section 7.13of the APA states in relevant part:
    "this Agreement is deemed to include all of the exhibits, annexes, and schedules hereto, which expressly are made a part hereof and incorporated herein and will be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein."
    The TLA is Exhibit B-1 to the APA, and so is incorporated into the APA by virtue of Section 7.13.

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    The contract argument in a nutshell.
    If this sentence is true, then this sentence is false.

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    As a Fallout fan, I have little sympathy for either company, as Interplay has done little with the IP and Beth has done... questionable things. And it looks like that describes the current lawsuit beautifully. *rolleyes*

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    I should set a custom title Mildly Dipped

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    Unnecessary dragging again. Why not simply let them publish the damn MMO? It's almost there anyway.
    All this gives a bad taste in the mouth.

    Hell, if Bethesda isn't going to court about something these days then the world would turn in the wrong way. Someone will get an arrow to the knee for real.
    War. War never changes.

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    I should set a custom title Sonny, I Watched the Vault Bein' Built!

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    Quote Originally Posted by LinkPain
    Unnecessary dragging again. Why not simply let them publish the damn MMO? It's almost there anyway.
    All this gives a bad taste in the mouth.
    They are worried about possible damage to the value of the IP and may want the rights to make their own Fallout MMO or, at the very least, have less competition for the MMO that they are making.

    "Pessimism is, in brief, playing the sure game. You cannot lose at it; you may gain. It is the only view of life in which you can never be disappointed. Having reckoned what to do in the worst possible circumstances, when better arise, as they may, life becomes child's play."
    ~Thomas Hardy

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    I should set a custom title Vault Dweller

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    Quote Originally Posted by Eternal


    The contract argument in a nutshell.
    We should put these in every interplay vs. Beth thread from now on. Lionel is one of my favorite Simpsons characters.
    "Can you imagine a world without lawyers?"
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    Quote Originally Posted by tekhedd
    As a Fallout fan, I have little sympathy for either company, as Interplay has done little with the IP and Beth has done... questionable things. And it looks like that describes the current lawsuit beautifully. *rolleyes*
    Yeah they where all over the place.

    In the game creators vault interview avellone is saying it was easy to work on fallout nw because bethsesda set out the guidelines and seid what they can and can not do, obviously there are talented people in that company but you have to keep them on a tight leash otherwise they're gonna piss all over the house

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    Quote Originally Posted by tekhedd
    As a Fallout fan, I have little sympathy for either company, as Interplay has done little with the IP and Beth has done... questionable things.
    I agree.



    Also, when does the court go on holiday? I am fairly sure there is no court at all next week, but this week I'm not certain.

  11. #11
    I should set a custom title Where'd That 6th Toe Come From?

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    Quote Originally Posted by donperkan
    In the game creators vault interview avellone is saying it was easy to work on fallout nw because bethsesda set out the guidelines and seid what they can and can not do, obviously there are talented people in that company but you have to keep them on a tight leash otherwise they're gonna piss all over the house
    God knows that every time I BUILD a house the first thing I do is piss all over the floor the minute someone buys it.

    Given that Obsidian houses many of the people responsible for the rules that Bethesda promptly chucked out the window when they purchased Fallout it seems ironic that they would have to tell them what they are allowed to do.

    It would be like Wizards of the Coast telling Gary Gygax what he can do with D&D. They have every RIGHT to, but it seems stupid and counter intuitive.
    If this sentence is true, then this sentence is false.

  12. #12
    I should set a cutom tite Mildly Dipped

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    When will the trial end? I'm checking NMA and falloutwiki for news on this every day.

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    Quote Originally Posted by Eternal
    Given that Obsidian houses many of the people responsible for the rules that Bethesda promptly chucked out the window when they purchased Fallout it seems ironic that they would have to tell them what they are allowed to do.
    I'm not a fan of Bethesda's take on the lore, but from their point of view it's fairly obvious how it goes: they have plans for their next Fallout titles, so they just don't want to have them fucked up. Either way, it doesn't really seem like Obsidian had a lot of stuff vetoed, considering they reintegrated plenty of things from Van Buren and added things like Tunnelers ready to annihilate the whole west in a DLC. Granted, Ulysses is not the most reliable narrators, but it doesn't seem like Avellone's intention there was to make you doubt his word.
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    imagine it happens that the judge is a huge Fallout fan.

    And gives the whole right to Fallout to Obsidian in the end - he only listened the whole case for the entertainment.

    would be awesome though ...

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    Settlement

    Pawel had posted over on the Vault that Bethesda's recent court filing suggests a settlement negotiation is taking place.
    Life is a circle. We will meet again.

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    I don't see any new post by Ausir over on Vault2, but Vault1 has a post up, so I'll guess I'll post on that one.

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