Author: Admin

In Plain English: Crytek V Cloud Imperium Games (and RSI)


1. Dismissal Sounds Unlikely

Let’s start off at the same station and make a few things clear: Despite what is being tossed around on the internet, this case is not a slam dunk for either side (at least not evident from the statements being thrown back and forth). It is very likely that this case is going to go to trial, as there are a ton of allegations being made and accusations that are going to require the backing of email communications and witness testimony. We are not at the point in the case where either side is trying to convince a judge/jury, that won’t come for months down the road.

What Cloud Imperium Games is doing with its response is attempting to have the case dismissed by convincing the judge that the accusations have no merit and including comments that there are no damages to be recovered regardless of Crytek’s claims of breach. Since this is a gigantic lawsuit, I wanted to go down the list of points that I found interesting so far. This is not comprehensive and will certainly be followed up with when more details are presented.

2. The Definition of Exclusive

With this lawsuit between Crytek and Cloud Imperium Games, it looks like we’re diving back into the Clinton era legal argument about what the definition of ‘is’ is. A major point of contention that Crytek is bringing forward in this lawsuit is the definition of exclusive, how it was applied when forming the agreement, and what exactly it means for both parties.

Section 2.1.2 of the Game License Agreement states that this contract gives CIG the rights (and I’m quoting) “to exclusively embed CryEngine in the Game and develop the Game which right shall be sublicensable pursuant to section 2.6.” Here’s where we get to the definition of “is” as Crytek is claiming that this passage means that CIG agreed to use the CryEngine and only the CryEngine in Star Citizen, as seen in this section of the original complaint:

“Crytek and Defendants subsequently formalized their relationship by entering into a Game License Agreement. In that Agreement, Defendants promised, among other things, (i) to use the CryEngine game development platform exclusively and to promote that platform within the video game...”

CIG is naturally going to fight this claim, and understandably the wording in the license agreement is incredibly vague for the kind of contract where every line should be worded to remove any doubt or wiggle room for interpretation. To the layman, the wording of the agreement seems to indicate that the license does indeed require CIG to exclusively embed CryEngine and no other engine. As far as contracts like this go, however, such a definition of exclusive is not standard by a long shot. Exclusive in these sorts of agreements is generally understood to mean that Crytek would be granting the license to CIG alone and no other company in the agreement, rather than obligating CIG to use said engine.

CIG’s response:

The GLA further shows that CIG has an exclusive right, not a duty, to use the Engine in the Game. Through hiding the GLA, Crytek contorts the word “exclusively” to argue that the word means that CIG somehow is required to use the Engine in the Game. The plain language of the GLA where the grant of rights to CIG appears, plus the well-established concept of an exclusive license, instead establish that the word “exclusively” simply means that CIG’s right to use the Engine in the Game is exclusive to CIG and Crytek may not give that right to anyone else.

Right, except that this agreement seems to be anything but plain language, and the license agreement actually differentiates the two concepts. Where 2.1.2 allegedly requires CIG to exclusively use the Crytek engine, the question about sublicensing is taken care of in the previous step of the agreement.

2.6 of the agreement basically just says that CIG can sublicense the engine only to contractor developers, with prior written approval by Crytek, for the purpose of developing the Game. This is one of those lines that is likely going to require witness testimony on what exactly the companies negotiated, assuming the Judge/Jury doesn’t accept either definition of exclusive as a given fact.

3. Do You Understand Crytek’s GLA? Does Crytek?

Here’s an interesting note: You may notice in the passages from the lawsuit and license agreement that both parties say “the Game” (emphasis on the capital G in Game) regularly instead of Star Citizen when referring to terms that both parties agreed upon. There is a legal reason for this.

“The Game” is the legal definition given in the license agreement to, and I’m quoting the agreement here:

“the game currently entitled “Space Citizen” and its related space fighter game “Squadron 42, together hereafter the Game”

No that wasn’t a mistake on my end, yes the GLA actually gets the name of the game wrong and refers to Star Citizen as Space Citizen, but that’s not the key issue here.

This rolls into one of Crytek’s other claims, that the existence of Squadron 42 is a breach of the agreement because while it began as a mode for Star Citizen, it had since branched out into a separate purchase and, according to the license agreement, Cloud Imperium only has the rights to develop one game. Any time you see the word “Game” with the capital G, it is referring to “the game Star Citizen” and “the game Squadron 42,” combined together. Another section of the agreement goes further and states that the agreement does not include any game not accessed through the Star Citizen game client, or sold for a separate fee.

This is why clarity is necessary, and here is where we lead to another issue that the court is going to have to decide. Crytek’s contention with Squadron 42 is that CIG announced in December 2015 that Squadron 42 would be a standalone product. By December 2016, CIG announced that both Star Citizen and Squadron 42 would be moved over to the Amazon Lumberyard engine, and Crytek is going after the year that the game may or may not have been in development under their engine, claiming loss of royalties and upfront payments that would have been owed had CIG licensed a second copy of the engine.

The big question is whether or not the license agreement which appears to explicitly recognize Star Citizen and Squadron 42 as separate games, but licenses them both together, is at odds with Crytek’s claim that selling Squadron 42 as a standalone product is a breach of the terms against selling separate products, or whether any of this is even applicable since neither game is using the engine.

3. Crytek’s Negotiations: A Blank Check In A Used Car Dealership

Another thing you’ll see crop up more than once if you read Crytek’s complaint is how the company graciously negotiated a substantially lower sum than its usual licensing fee on the grounds that Cloud Imperium Games would exclusively use the license and also heavily promote the CryEngine to its base. Since CIG is no longer using the engine, thus depriving Crytek of further licensing fees, the company feels that it’s been substantially damaged by not receiving the full, usual license fee. Money that they willingly gave up in negotiation.

The licensing fee negotiated under the GLA reflected a substantial reduction from Crytek’s usual licensing fees in view of the promotional consideration and other consideration that Defendants promised to Crytek in Sections 2.8.1, 2.8.2,and 2.8.3 of that Agreement. In view of the fact that Crytek has been deprived of that promised consideration, Crytek has been substantially damaged, and has failed to receive the balance of its full, usual license fee.

Crytek is apparently so angry about the conclusion of this agreement that they’ve taken to potentially slandering some individuals involved in the negotiation process. They actually call out by name Crytek co-founder Ortwin Freyermuth, who was a former Crytek employee and negotiated the deal on behalf of CIG, for apparent conflicts of interest and never recused himself from the negotiations or resolved that conflict of interest, despite apparently knowing confidential information about Crytek.

“Notwithstanding that he had confidential information about Crytek’s licensing practices that would unfairly advantage Defendants, Freyermuth never recused himself from those negotiations and never resolved that conflict of interest with Crytek,”

Except that claim is allegedly a complete and outright lie. In the declaration presented to the court by CIG lawyer Jeremy Goldman in support of the motion to dismiss, who also kindly submitted a copy of the license agreement that Crytek for one reason or another had withheld, Freyermuth’s conflict of interest was never in question. In fact, Crytek not only didn’t have an issue with Freyermuth’s involvement at the time, they went as far as writing and signing a conflict waiver allowing him to take part. Goldman has this conflict waiver, apparently, and no doubt we will see it once this case goes to court.

It seems like a lot of this lawsuit is intended to force CIG to keep paying Crytek royalties, because the company made the arguably poor decision to substantially lower its licensing fees on what they may have seen as a huge long term earner, they negotiated a contract that may or may not say what they think it does, and now they’re angry that the money train has stopped so they’re also throwing the guys who did the negotiations under the bus.

4. Why Would Anyone Write No Damages Into a Contract?

One tactic that Cloud Imperium is using to quash this lawsuit before it ever goes to court is to point out that the license bars either party from seeking damages in the case of a breach of contract. If there are no damages that can be recovered, and in consideration of the fact that this lawsuit is popping up because CIG stopped using the engine and considers the contract scrapped, bringing this case to court would just be a massive waste of the court’s time, which when you’re trying to get a lawsuit dismissed this is a pretty logical avenue to go down.

Crytek’s claim for damages — an essential element of any breach of contract claim — is precluded by express language in the GLA barring either party from seeking any damages from the other. The FAC also seeks various forms of monetary damages and equitable relief that are unavailable under the GLA or as a matter of law, including statutory damages and attorney’s fees under the Copyright Act, punitive damages, and an injunction.

I read this response and honestly my first reaction was that CIG had grievously misread or is really reaching for something in the license. For the sake of clarity and the fact that it’s one of the few ALL CAPITAL LETTERS parts of the license, let’s look at that part of the agreement in its entirety.

So neither party can be held liable for damages incurred by either party or a third party, even if advised beforehand on the possibility of damages. In their response, it looks like CIG is going for a more in-your-face approach to their motion to dismiss.

House of cards pleading? Sham interpretation? Someone’s going for the jugular.

5.  Comments, Disclosure, and Public Access

In wrapping up this first bit of coverage, I’d like to share some disclosures. First, I am not a lawyer and nothing in this coverage or anything else on MMO Fallout should be interpreted as legal advice. As such, I try to refrain from making any judgement calls or act as armchair lawyer on how these lawsuits will proceed or which side has the more solid case, rather In Plain English has always been about presenting the allegations as-is and lining them up with publicly known facts and prior cases.

Another note that I didn’t mention is that Roberts Space Industries is a defendant in the lawsuit even though the company claims it isn’t part of the contract as it didn’t sign. Indeed, RSI didn’t sign the GLA and isn’t even mentioned in the list of sublicensed companies, however they did license Autodesk from Crytek who are claiming that that is enough to keep them involved in the lawsuit. RSI is a subsidiary of CIG.

I will be maintaining a publicly accessible Google Drive folder with the pertinent documents at this link here. Feel free to leave any thoughts or allegations of collusion/bias in the comments section below.

[NM] Youtuber DalasReview Pulls Fur Fun From Steam After Game Flops


Youtuber Dalasreview has fully pulled his title Fur Fun from Steam barely ten months after a controversial release and virtually no response from the Steam market. Fur Fun began as a game attempting to obtain crowdfunding to produce a Banjo-Kazooie style game. When those crowdfunding attempts failed, popular Spanish Youtuber Dalasreview backed the game and helped publish it, presumably also helping fund its development.

When the game launched into early access last February, it immediately struck a negative response. People quickly discovered that stolen assets from Banjo Kazooie, Minecraft, and Mario were present in the game’s files, a public spat over whether or not Yooka-Laylee composer Grant Kirkhope had created music for the game resulted in the Fur Fun account publicly accusing him of lying on Twitter, and Dalasreview began filing frivolous DMCA takedown notices against Youtube videos critical of the game and its developer.

In all of this controversy, it looks like the only thing that people weren’t doing was actually buying or playing the game. A quick glance at the Steam charts shows that Fur Fun never once after launch managed to beat a monthly average of one user. Steam Spy indicates that the game had maybe around 717 owners as of December 31, which doesn’t account for copies that may have been given away for free. Despite Dalasreview’s 4+ million subscriber count, it looks like far more people were interested in talking about the controversy of Fur Fun than were actually willing to buy it.

The Steam announcement sounds very similar to other jilted indie devs, even ending with a “good riddance” farewell.

This is our last goodbye!
It’s been a long time trying to keep up the project alive, but it’s time to say goodbye.

Fur Fun is getting out of Steam.
Thanks to all of you for your support and kind comments.
Good riddance.

(Source: Steam)

Chaturday: Gamer Grudges And The Horse Konami Road In On


Here at MMO Fallout, I often get asked a very simple question about game journalists, and whether or not members of this profession intentionally seek contrarian positions in order to goad people they already know don’t like them into responding, thus adding to their growing cache of victim bucks? You’d think so, given the current climate, but from an insider perspective I can say that the answer is a surprising yes.

Of course they do, and for two simple reasons: First, outrage bait gets clicks and clicks get ad revenue. I keep a close eye on what stories get the biggest hits on MMO Fallout, and I can tell you it certainly isn’t the ones with a happy ending. The lowest Crowdfunding Fraudster piece has more hits than any positive coverage on this website, but thankfully we aren’t supported by advertising and thus how many hits a story gets has almost zero effect on the tone that further coverage takes.

The second is that this industry doesn’t exactly pay well, business and landlords don’t accept victim bucks as a currency, and frankly if you’re the kind of person who couldn’t get into a “real journalism” (I’m parsing the words of others) for a lack of integrity or ability to conduct real investigations, then parsing Twitter and Google for the top search trends and penning an article about how you’re wrong for liking that thing or for not liking that other thing, in the hopes that those people share your piece to their friends so they can read it and talk about how angry they are, it’s pretty much all you’ve got. I’m not saying these people exist, but if they did then this probably sums up their motivations.

It’s easy to become disillusioned when you’re forced to write for an industry that you’re not really interested in, don’t know much about, and for an audience that you don’t really relate to. God gamers suck.

Oh did I say that out loud?

But we’re here today to talk about Konami, an entity so reviled in the gaming community that they make Bobby Kotick and Bill Roper look like venerated saints. If any company truly deserves being demonized by the public, it’s the company whose ethical crimes extend outside of “they made a game I didn’t like and filled it with microtransactions.” We’re talking about the Konami, who routinely not only blacklists former employees from the gaming industry but allegedly attempts to stop them from getting jobs in other industries as well.

Let’s also not forget the controversy between Konami and Hideo Kojima, which ultimately led to Konami utilizing its lawyers to prevent Kojima from accepting an award at a game show, the same year that they stripped Kojima’s name from Metal Gear Solid.

We can also have a whole conversation about Konami abandoning its properties, but ultimately the company seems determined to leave the gaming industry behind and frankly the only gripe that many gamers have with this notion is that this might mean the end of beloved franchises like Castlevania and Silent Hill. Konami obviously won’t suffer from this move, their gaming side has been small potatoes compared to their pachinko machines for quite some time.

So yes, there is a community of gamers that will never buy anything that is ever produced with Konami’s name. Does it make them entitled? Not exactly. Are they justified in their reasoning? That’s subjective to the person. Are they going to get attacked and vilified for it? You bet your sweet bippy they will.

Look around the internet blogosphere and you’ll see articles talking about how those nasty entitled gamers aren’t even giving Konami a chance. Given the recent controversy and backlash surrounding predatory microtransactions in games, you may also notice a trend about how reasonable and functional it is that Konami is making Survive online-always even for single player and how generous it is for them to introduce microtransactions for those people who have jobs and thus more money than time (aka not-basement dwelling nerds).

Until of course Konami unveils a scantily clad female character for Survive, in which case the game designers are going to get crucified by the press.

Otherwise I have no opinion on the matter.

Overwatch League Pro Suspended After Insulting Competitor In Post-Loss Stream


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(Original Story) Dallas Fuel has suspended one of its players, Felix “xQc” Lengyel after the player hurled an insult at a competitor on the Houston Outlaws after a match Thursday night. More details on the suspension will be coming.

Houston beat Dallas with a resounding 4-0 victory on Thursday, after which Lengyel went onto his stream to rant about the loss, eventually directing his anger toward Austin Wilmot of Houston who used Lengyel’s catchphrase “rolled and smoked.”

“No, you didn’t smoke shit. Shut your fucking mouth. Go back there, suck a fat cock. I mean, he would like that.”

It’s obvious from the clip that Lengyel immediately realizes that he let his frustration cross a line, and he quickly apologized on Twitter.

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Wilmot, who is openly gay, accepted the apology while apologizing for his own stream where he referred to Lengyel as a “homophobic piece of garbage” in response.

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While Wilmot may not have taken the flippant, heat-of-the-moment comment personally, Dallas Fuel hasn’t been so forgiving. Lengyel did not play in tonight’s match.

Trion Worlds To Sunset Devilian Following Developer Abandonment


It’s a tale as old as time. Developer abandons property and leaves publisher with no avenue to fix game issues or develop further content, and game eventually shuts down due to lack of ability to support itself. In this case, Bluehole Ginno was in charge of handling the further development of Devilian promptly abandoned the title to work on another title that MMO Fallout readers may be modestly aware of: Playerunknown’s Battlegrounds. The game has been in relative maintenance mode since that time.

The time of Devilians has drawn to a close; on March 5, 2018, the sun will set over a peaceful Nala for the last time. The time has come to lay down your arms and carry the laurels of your victories with you to other worlds.

Active players within the last 90 days will be eligible to receive a welcome pack to one of Trion’s other titles. The options available are listed below and at the announcement.

• ArcheAge – The Erenor Eternal Starter Pack, containing:
• Mirage Snowlion Mount
• Moonsand Fox Pet
• 50 Bound Tax Certificates
• 5 Bound Vocation Tonics
• 5 Bound Vocation Expertise Tonic
• 30 Days of Patron Status

• RIFT – The Ascended Essentials Pack, containing:
• Storm Legion Souls
• Nightmare Tide Souls
• Primalist Calling and Souls
• Ascended Souls
• 6 Character Slots per Server
• 2 Bag Slots (Slots 4 & 5)

• Trove – The Trove Essentials Pack, containing:
• Ten class Tokens
• Fire Wings
• Trovian Supercycle
• Tome: Dragon Coin
• Tome: Jade Clover
• 10 Omni Mount Unlockers
• Trove Topper
• S.S. TrovianTrovial Sail
• 50 Gem Booster Boxes
• 100 Bombs
• 15 days of Patron Pass time

• Defiance – T.I.T.A.N. Augment Bundle, containing:
• 250 Arkforge
• Random Legendary Chip
• Random Tradeable Legendary Shield (Titan’s Fury Synergy)
• (these items are claimable on one character)

• Atlas Reactor – All Freelancer Pack
• Includes every character ever made unlocked in Atlas Reactor

Epic Strikes Again: Sues Over Fortnite V-Buck Exploit


Since last October, Epic Games has launched at least six lawsuits against individuals creating or advertising cheats for Fortnite, and as of last week you can add another one to that list. Epic has filed another lawsuit in the Northern District of California court, this time against an individual Yash Gosai, over his advertising of exploits in Fortnite Battle Royale.

While Epic’s previous lawsuits targeted creators and distributors of aimbots, this lawsuit deals with an exploit surrounding Fortnite’s premium currency V-Bucks. According to the lawsuit, Gosai is accused of developing and publicizing an exploit allowing people to gain free v-bucks without paying real money. Epic Games took the action of removing the video via DMCA takedown notice, which the defendant counter-claimed, and now the case is going to court on three claims: Copyright violation, breach of contract, and conversion (monetary damages).

Unlike the other cases we’ve covered where Epic Games is mostly seeking injunctive relief, barring the defendants from playing/cheating in their games, the fact that Gosai is being accused of both using and distributing an exploit to illegitimately acquire RMT currency for Fortnite makes this lawsuit one of the few where Epic is actually pursuing monetary damages. Epic is seeking unspecified damages plus interest and lawyer fees. As Yash Gosai is a resident of New Zealand, this case might take a while.

Both parties are scheduled for a meeting in April.

(Source: North California Court Docket Case 3:2018cv00152)

Paragon Might Be Unsustainable and Fortnite Killed It


There is no doubt that Epic Games has been drawing in the players and the money with the release of their PUBG-esque Fortnite Battle Royale. While Epic refuses to separate the two modes, it did recently announce that Fortnite had drawn in a combined forty million downloads. While Fortnite has been a runaway success, it looks like the game may have sealed the doom of another Epic product.

In an open letter to the Paragon community, Epic admitted that updates have been slow and the title’s inability to draw in players with each new updated has raised cause for concern. The update notes that over the coming weeks it will be looking at Paragon and determining how to move forward with updates.

Over the next few weeks, we’ll be figuring out if and how we can evolve Paragon to achieve growth and success, and trying some things internally. In the meantime, Paragon’s release cadence will be slower.

Epic Games admits that a fair number of members of the Paragon team have jumped ship and moved over to Battle Royale and that the title may not reach what Epic considers to be a sustainable game.

Here inside Epic, we’re talking about the future of Paragon in pretty much the same terms as you’re talking about it. The core challenge is that, of new players who try Paragon, only a small number continue to play regularly after a month. Though Paragon has evolved, no iteration has yet achieved that magical combination of ingredients that make for a sustainable game. (As an aside, the problem isn’t marketing or how to make money with Paragon. We have good ideas that would solve those problems if we can find a way to make Paragon grow.)

The entire post can be read at the link below.

(Source: Reddit)

Forget Civil Court, Tencent Is Sending PUBG Cheaters To Prison


We’ve seen a lot of discussion about the morality of Epic Games suing people, including minors, for advertising their cheats in Fortnite, but while court-enforced injunctions may prevent some cheat makers from re-offending, Tencent over in China is taking a different approach; they’re getting law enforcement involved.

According to a report out of Bloomberg, Tencent has assisted Chinese police in taking down more than 120 people in 30 cases involving the creation and distribution of cheats for PUBG and is branching out into its other titles. The individuals under arrest are being charged with violating China’s criminal laws on disrupting computer networks, and unlike Epic Games’ simple injunctions, can and have faced jail times of up to five years as well as massive fines.

“PUBG is going through a puberty of sorts and cheaters threaten to stunt its growth,” said Kim Hak-joon, who analyzes gaming stocks for South Korea’s Kiwoom Securities Co. “Cheaters mostly drive away new users, and without retaining new users, PUBG won’t be able to consolidate its early success and become a long-lasting hit.”

This is not the first case of authorities cracking down on video game crimes. Last year, Jiangsu police arrested a Counter Strike: Global Offensive cheat developer who now faces up to 15 years in prison. In South Korea, a 17 year old was arrested for developing and selling cheats for Overwatch. Over in Japan, police have made use of the Unfair Competition Prevention Law in order to prosecute people creating and selling cheats for video games like Alliance of Valiant Arms and Sudden Attack. In 2014, two men were sentenced to prison in China after scamming people of digital items and selling them for cash.

In some cases, developers are assisting the police in cracking down on criminal offenses, however the police are the entities pressing the actual criminal charges.

Perpetuum Online To Shut Down Its Servers This Month


Perpetuum Online may be shutting down its official servers, but the game isn’t necessarily going away forever. Avatar Creations last week announced that, after seven years, the official Perpetuum servers will go offline as of January 25. If you happen to have an itch that only Perpetuum can scratch, you’ll still be able to log in to one of the game’s already available standalone servers, operated by members of the community.

We cannot release the live server’s database to the public due to privacy issues, however DEV Crm is committed to keep the live DB alive with his own private server solution. This won’t be the same as the current official server in terms of speed and availability and it’s strictly a “no promises made” gig, but it’s something.

The official news post goes into more details on standalone server operations. There are presently five servers online, however most have single digit player counts.

(Source: Perpetuum)

Game Software/Hardware To Hit $165 Billion In 2018


It’s no surprise that the gaming industry brings in quite a bit of moolah each year, a number that has been increasing for years and doesn’t show much of a sign of slowing down. Analyst Digi-Capital today released a prediction that video game hardware/software could reach $165+ billion in sales and go as high as $235 billion by 2022 if it stays on course. By comparison, according to the firm, this kind of revenue will make the gaming industry bigger in the next five years than the GDP of 150 countries.

You can read the whole report at the link below. The gaming industry has also been fueled by record investment, over $2 billion in 2017 and growing.

(Source: Digi-Capital)