Tag: In Plain English

In Plain English: The Grinch Who Spoiled Fortnite


Dear internet,

That video game nondisclosure agreement that your buddies tell you doesn’t matter because “it’s video games” and thus not enforceable in court? It’s probably enforceable in court. In fact it’s very likely enforceable.

To the shock of the world and heaven in the sky, Epic Games has filed a lawsuit this week against a user of Fortnite. The lawsuit targets Ronald Sykes (aka “@Snipa_King2k,” aka “@FNGzus,” aka “@invisiblellama9”) and alleges that Sykes spoiled the surprise of Fortnite Chapter 2 in breach of a nondisclosure agreement.

“Epic is suing Sykes because he broke his contractual obligation to keep Epic’s secrets about the upcoming season of Fortnite®, Epic’s popular video game. Information is currency. Sykes cashed in on what he learned as a User Experience tester for Epic. He did so at the expense of Epic and those in the Fortnite community who were anxiously awaiting the new season of Fortnite only to have some of Epic’s planned surprises spoiled by Sykes’ leaks.”

Sykes was a member of the User Testing Experience, which is fancy talk for confidential beta tester. He along with a number of others were given the opportunity to test Fortnite’s big new update, presumably so it would be as fine tuned as possible before Epic released it to the masses. Sykes allegedly disclosed those secrets before they were meant to be public.

Fortnite Chapter 2’s reveal for those who weren’t glued to their computer for the weekend was massive. The servers went offline for two days as the game was literally engulfed in a black hole, resulting in all sorts of streaming records being broken as people watched a black hole in anticipation of what would come next. The event had been preceded by easter eggs being dropped into the game throughout the past seasons of the game, and ultimately it was a major product of Epic’s work.

Epic is seeking civil relief under the Defense Trade Secrets Act of 2016 (DTSA) as well as the North Carolina Trade Secrets Protection Act (NCTSPA). The DTSA allows for damages for actual loss, any unjust enrichment caused by the leak of trade secrets, and in cases of willful and malicious disclosure, exemplary damages may be awarded of up to two times the actual loss/unjust enrichment.

The NCTSPA is similar in that the language allows for compensation for economic loss or unjust enrichment, as well as punitive damages in cases of willful violation. The lawsuit alleges that Sykes created several Twitter accounts to leak the new map introduced with Fortnite Chapter 2 as well as a number of new features coming to the game.

Epic seeks injunctive relief as well as attorneys’ costs and fees, and economic damages as well as punitive damages as allowed under law. As always, MMO Fallout has provided the relevant documents at our Google Drive for those who wish to read them.

Source: Google Drive

Not Massive: Fortnite Corroborates Child’s Knowledge of Guns


Who said video games would never offer real world experience?

Today’s human interest piece comes to us from a child custody case in the Eastern District of New York. The petitioner is the father of a child who had petitioned the court for the return of his son to Ecuador. The child, a nine year old, had been retained in the United States by the mother and without the consent of the father since mid-2018. The father (petitioner) owns a gun shop and warehouse in Ecuador and is a dealer of firearms and accessories (Editor’s note: It should be noted that the firearm business is legal/legitimate). During the custody hearing, the child testified to the father having guns in the house, on display, within the reach of a child. How did the child know the identity of the guns? Fortnite.

According to the testimony, the child was able to verify what he had seen in the house including a silencer and a shotgun because he had seen something similar in Fortnite.

The story does not have a great ending, as the court eventually ruled that the child would be returned to Ecuador under Hague Convention. Still, the court did not seem to have any reason to doubt the child’s game-based knowledge.

The full entry can be found at the link below. Content Warning: The document below has been included for those who wish to view it. It contains numerous detailed allegations of the repeated physical and verbal abuse of a child by a parental figure.

Source: Eastern District of New York

IPE Update: Amro Elansari Files Appeal In RuneScape Lawsuit


Posted with no comment. PDF version available here.

In Plain English: Court Throws Out Jagex Ban Lawsuit After Five Days


Today’s In Plain English is going to be a short one, but you’ll understand why when you see that the gist of it is about six sentences long. It comes to us from the Eastern District of Pennsylvania and involves everyone’s favorite developer of RuneScape: Jagex. Along with their parent company Shanghai Fukong, Jagex last week was sued in Pennsylvania court by one Amro Elansari, who is alleging that Jagex muted him without reason. The lawsuit goes on to claim that the UK developer refused to provide an explanation and denied Elansari’s request for an appeal. Elansari’s suit alleges violations of due process, free speech, and human rights.

Elansari was granted leave to proceed in forma pauperis, fancy legal speak for nulling filing fees, however the court took some umbrage with his claims. Judge Kearney noted that Elansari’s claims of constitutional violations were implausible, adding that the first amendment and its constitutional free speech guarantees do not restrict private entities. More so, the fifth amendment due process clause also does not apply to private companies.

As such, Elansari’s lawsuit has been dismissed just five days after being filed. Elansari cannot make any further constitutional or federal claims however if he decides to bring the lawsuit back on state charges in state court, he absolutely may do so.

As always, MMO Fallout is hosting the relevant dockets at our expense at the Google Drive. As the lawsuit was filed pro se, MMO Fallout has removed some personal contact details from the documents for the sake of the plaintiff.

How To Avoid A Lawsuit #1: Fortnite Cheater Edition


Good afternoon, internet.

In honor of my upcoming completely fictional cookbook “A Million Ways To Roast Twitter Users,” I have decided to put out a new column series expanding on the In Plain English brand. The series is titled “How To Avoid a Lawsuit” which you would know if you read the title of this piece. Every so often I am going to talk about ways you, the user, can avoid being hauled into court and be forced to hire me once I graduate from law school. I don’t offer family discounts.

Before we begin, I’d like to insert some disclaimers; (1) I am not yet a lawyer and as such none of this should be taken as legal advice, (2) this column is meant for edutainment purposes only and while it will lower your chances of being hauled into court, it cannot guarantee a 100% success rate. Check your local laws before applying, (3) some of the steps are based on an assumption that you have done something bad. MMO Fallout does not condone whatever these actions are, the suggestions are merely in response to you actually doing them, and (4) most of your problems can be solved by simply following step one.

For the first HTAL, I’m going to discuss Epic Games, Fortnite, and people cheating in Fortnite. Those of you who read MMO Fallout or at least keep up with our In Plain English articles will be aware that Epic has presently hauled at least a dozen Fortnite cheaters into court. None of the cases have actually gone to trial with the rest being voluntarily dismissed with the plaintiffs agreeing to permanent injunctions against the defendant and the threat of deep fines should they violate the terms of the settlement. Still, it provides an answer to every Fortnite cheater who has asked “what’s Epic going to do? Sue me?” Possibly!

So let’s go down the list of how to not get hauled into court, Fortnite Edition.

1. Don’t Cheat At Fortnite

This one is the easiest and essentially acts as patient zero for the rest of the list. You shouldn’t be cheating at competitive multiplayer games anyway because it makes you look like a pathetic rat creature, but given the history and details surrounding Epic’s Scared Straight program with cheaters, you really don’t want to cheat in Fortnite. It’s not good.

Like I said, this is basically patient zero. Epic to my knowledge has never sued anyone for not cheating at Fortnite, but they have for cheating at Fortnite. So if you don’t want to be hauled into court by a company with the kind of money to bribe just about every developer on the planet Earth, don’t cheat at Fortnite.

2. If You Get Banned, Stay Banned

One big connecting trait of Epic’s lawsuit defendants are that they kept returning to the game after being banned for cheating. It’s like insanity but for stupid people. I’m not aware of any Fortnite-related lawsuits where a person was banned once and then Epic immediately launched into court, and of the numerous dockets I have read the defendants in question were banned 20+ times and in one or two cases might have been using automated software to create a new account.

If you for one reason or another decide to cheat at Fortnite and you get caught and Epic bans your account, just take the L. Accept your ban, maybe work on being a better person, and go do something else with your time. You’ll thank me a whole lot more when you are not hauled into court.

3. Do Not Upload Your Cheat Videos To YouTube

This is another major connecting trait between Fortnite lawsuit defendants. If there is one thing that Epic hates more than people cheating in Fortnite, it’s people putting videos on Youtube of themselves cheating at Fortnite, and absolutely people using those videos to advertise where you can get those cheats. The more subscribers and views you have, the more likely these videos will show up on Epic’s radar, the more likely they will haul you into court, and odds are the more they will demand from you in damages.

See this one is actually really important because if you do get sued, this is going to affect what Epic wants out of you. Normally Epic does not actually ask for money with their lawsuits against cheaters. Instead they basically push the lawsuit into a settlement with the defendant agreeing on injunctions. Don’t use Epic products, don’t cheat at Epic products, don’t create or distribute cheats for Epic products. On the other hand, Epic has a habit of assuming that anyone advertising Fortnite cheats has a monetary investment in those Fortnite cheats, and that’s when they start making demands for monetary damages. Trust me, Epic has the resources to wring you dry if they want to, and you are not in the right.

4. Do Not Counterclaim A Copyright Strike

In order to dive into this tip, we must take a moment to talk about fair use. Fair Use allows for the use of copyrighted material in certain purposes such as education, parody, or criticism. Despite what the internet has told you, the Fair Use doctrine is not a “you can’t sue me” button. Think of Fair Use as more akin to a trap card in Yu-Gi-Oh! You have to wait for the opponent to make a move before you can use it. Fair Use comes up at the lawsuit and is actually an admission of copyright infringement. What you are saying is that while you did infringe on the entity’s copyright, the extent is legal. There are no definite measures on what is fair use, just past rulings that can be used as a metric, that is up to the court to decide on a case by case basis.

This takes us back to our discussion. With people who post Fortnite cheat videos to Youtube, Epic has predicated lawsuits by issuing copyright strikes taking down the person’s cheating videos. When the person files a counterclaim, that is when Epic sues. When you counterclaim a copyright strike, what you are essentially saying is “I am in the right, and I will see you in court.” After that, the copyright holder’s only option to further their claim is to file a lawsuit. Which is exactly what Epic has been doing.

5. Don’t Cheat At Fortnite

Don’t cheat at Fortnite. Do all of these things and you are probably guaranteed to not get hauled into court by Epic Games for cheating at Fortnite.

In Plain English: An ArcheAge Lawsuit and the Fraudulent 10% Discount


(Legal Disclaimer: I am not a lawyer, and as such nothing in this column constitutes legal advice. All opinions expressed are my own and based on research into case precedent and interpretation of relevant laws and statutes, as well as discussion with the MMO Fallout legal team)

It has been four long years since ArcheAge launched in the west and some people are still wondering: How did Trion Worlds avoid getting sued for its rather blatantly false advertising regarding that 10% discount for Patrons that never surfaced, and was the advertising of the game against the law?

If you’ve forgotten or just weren’t around, when Trion Worlds was initially pitching its founders packages to the west, they advertised a perk for Patrons that included 10% discounts on cash shop purchases. The page advertising the promotion had been stealthily edited close to launch to include the wording that the perk wouldn’t be applied immediately, only for Trion to throw their hands up months later and admit that not only would the perk not be coming, but that they had no concrete knowledge that it was ever going to happen. The discount was replaced with a 10% bonus to credits purchased and not applied retroactively to people who picked up their credits during the beta or to credits received from the Founder’s pack. All because Trion Worlds and XL Games no longer felt like programming it in.

I pointed out at the time that if anything in the world of forum users threatening to sue had the most weight, it would probably be this, and I was not wrong. In September 2015 a class action lawsuit was filed in California court by plaintiff Aaron Van Fleet against Trion Worlds in regards to the 10% discount as well as making claims that ArcheAge’s loot boxes constitute an illegal lottery. MMO Fallout missed this story, personally I’m blaming the editorial team who haven’t shown up for work since 2009.

1. $1000 In Cash Shop Purchases and the Digital Lottery

The lawsuit charges that the 10% bonus is an inadequate replacement as it excludes head start credit purchases, founders pack purchases, and those who buy credits through in-game purchases (APEX). Furthermore, the plaintiffs note that Trion Worlds made false statements to the existence of the 10% discount despite knowing that those claims were false, that the discount did not exist at the time, and that it may not exist at all.

This charge is a hard one to deny, and depending on how Trion Worlds makes their defense may come down to how the court views advertising. Trion Worlds mounted an early defense publicly by claiming that the page on the website and Trion’s streams didn’t constitute advertising. Someone might point out that No Man’s Sky was cleared of charges surrounding its misleading advertising, however that ruling was made by a UK court and would not have an effect on how a California court would implement differently worded state laws. This is likely going to come down to whether the court views the replacement as adequate, whether Trion’s justification for not implementing the discount is satisfactory, and how much of their claims leading up to launch can be considered binding advertising.

Now let’s talk about the illegal lottery bit of this lawsuit, which I will start with this snippet from the docket:

Many ArcheAge players have spent more than $1,000 each to purchase supply crates that offered the chance at a Rare Prize Many players have expressed in online forums that they feel they were cheated by Trion’s sale of supply crates. For example, m January 8 2015, a player posted on Trion’s public forum a message board thread titled, “Whelp this is why gambling is illegal online.” Several users complained about the amounts they spent on supply crates and Trion’s entire business model (e g, “spent almost 15k creds and only got 11 about 500G worth of useless Junk”). A true and correct copy of the thread is attached hereto as Exhibit A.

In my humble opinion as a non-lawyer, this is where the lawsuit loses its footing. The docket cites California Penal Code to try and kick the cash shop lootboxes as an illegal lottery, seeking restitution in the form of Trion Worlds being forced to offer refunds. I’m no lawyer, but I have high doubts that this charge will hold up in court given the low likelihood that the judge would qualify digital goods as property in the sense that they would be covered under California’s lottery laws. The kind of impact that this would have on the industry is massive, would effectively criminalize countless companies, and would set major precedent where it doesn’t currently exist. I don’t see the court making this kind of decision, particularly not over this lawsuit.

California defines a lottery as “any scheme for disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property,” and I highly doubt that a loot box in a game would be viewed by the court as existing in the same category as sweepstakes and promotional giveaways. Disregarding the idea that this is clearly not a lottery system, Trion Worlds would likely be safe even classified as a lottery, as an illegal lottery would require forced payment to participate (credits can be acquired without paying real money) and a clear win-lose with the prize (loot boxes always distribute prizes). This is why all of those sweepstakes you see from TV to cereal boxes have “no purchase necessary” written on them, it’s so they don’t get caught up in state lottery laws.

Exhibit A is literally about 50 pages of threads from the ArcheAge forums of people complaining about the cash shop, a notion that not only strikes me as a massive waste of the court’s time but also irrelevant to the case at hand, potentially damaging to the plaintiff’s argument, and one likely to be ignored by the court. It paints a picture that the plaintiffs are merely attempting to stretch the definition of California’s penal code to include the loot boxes because they are feeling buyer’s remorse, not out of genuine belief or concern that the loot boxes violate the law.

2. Binding Arbitration and the Supremacy of the Terms of Service

Here is where the lawsuit gets interesting.

We know from Bassett v Electronic Arts that generally arbitration clauses are accepted by the courts as binding (at least in New York they do), but what happens when one agreement contradicts another? Trion Worlds has an End User License Agreement and Terms of Use, two separate documents. It came out during the proceedings that while Trion’s TOU compels arbitration, that their End User License Agreement states that the venue for any claims is the San Mateo district court. Trion in turn attempted to compel arbitration, citing its Terms of Use.

Unfortunately Trion wrote themselves into a corner, as the court ruled that not only does the Terms of Use state that the use of Trion’s game clients is governed by the EULA, but that the specific language used in the EULA makes the venue mandatory under California law. Trion further tried to claim that its EULA agreed to upon creating an account does not apply to its games, which the court rejected as the EULA contains several pages referring to the purchase and use of digital goods. The court did find that Trion’s belief that the Terms of Service applied to the claims was reasonable, albeit incorrect, so nothing malicious was going on here.

Despite this ruling, Trion Worlds attempted to have the case dismissed and taken to arbitration. The two parties held a hearing with the presiding Judge on April 8, 2016 and on June 8 the court rejected the claim for arbitration. As ruled previously, Trion’s End User License Agreement, which stipulated that any claims must be taken to San Mateo County Court, superseded the Terms of Use which called for forced arbitration.

Additionally, the court rejected Trion’s claim that the EULA and TOU are agreed as part of the same transaction, noting that the EULA is agreed upon at account creation and the Terms of Use not until the user downloads the game, meaning the former can be agreed to without the latter. The decision goes on to note that some parts of Trion’s Terms of Use may be illegal as they conflict with state laws regarding liability, which Trion acknowledged.

In August 2016, Trion Worlds appealed the court’s denial of arbitration and now we slide on out of the San Mateo District Court and into our new home in the First District Court of Appeals.

3. The First District Court of Appeals Says No

Trion Worlds’ appeal regarding their motion to compel arbitration took us to the California 1st District Court of Appeals and since then, well, not much has happened. Both parties were given a ten minute oral argument and on the second of April, just over a week ago, the court ruled against Trion Worlds. Apparently the explicit instructions that the EULA supersedes the Terms of Service translates exactly the same no matter what California court you happen to be in.

But don’t take my word for it, read this statement from the court:

“Trion’s Terms of Use does contain an arbitration clause, but it also provides it is “in addition to, and does not replace or supplant” the ArcheAge EULA, and, in the event of a conflict or inconsistency, the ArcheAge EULA “shall supersede” it. Based on this provision in the Terms of Use, we conclude the parties did not agree to arbitrate their dispute, and we affirm the trial court’s order denying the petition to compel arbitration.”

In its appeal, Trion Worlds attempted to claim that the EULA incorporates the TOU, which the court promptly ignored and didn’t answer as it had already ruled that the governing document, the EULA, demanded trial in the San Mateo County court and the burden of proof is on the party demanding arbitration to prove otherwise.

“Thus, when addressing the threshold question of whether the parties agreed to arbitrate their dispute, which relates to purchases associated with the ArcheAge game, the Terms of Use provides we must start with the ArcheAge EULA. It does not provide for arbitration. Based on the clear language of the applicable agreements, the agreement to litigate any state law cause of action relating to the ArcheAge EULA in San Mateo County supersedes the agreement to arbitrate other kinds of disputes. Trion cannot satisfy its burden of proving the existence of a valid agreement to arbitrate this dispute.”

4. Back To County Court We Go

Unfortunately this is where the story ends for now. It looks like we’ll be heading back to San Mateo County Court to continue the lawsuit as both sides prepare their arguments. MMO Fallout will have more details on this case as it appears.

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.

Chaturday: The Story of In Plain English and how Atlus Got Copyright Wrong


If I had to give an award for the part of MMO Fallout that fills me with equal amounts of pride and disappointment, it would be the In Plain English column. For those who haven’t been following this website long, In Plain English is one of those columns I started as a direct response to the media’s coverage of events, specifically lawsuits, particularly in the sense that it is generally impossible to find someone willing to cover a lawsuit once it has started.

What got me started on this was the complete lack of coverage regarding Turbine’s lawsuit against Atari, and subsequently Wizards of the Coast’s lawsuit against Atari, regarding the Dungeons & Dragons license, a lawsuit that could have affected every single video game based on D&D. While the lawsuit between Turbine and Atari was settled out of court, we were able to surmise some of the terms of the settlement through actions by both companies shortly thereafter, such as Cryptic (who was owned by Atari at the time) suddenly declaring that Neverwinter would not be an MMO (this was later rescinded once Perfect World Entertainment took over).

For the most part, however, covering lawsuits isn’t good press unless some major groundbreaking decision is on the line or unless one or both parties is utterly insane and is permanently filing nonsense in the court records (read: James Romine v 100 Steam Users). From my perspective, I’m dealing with a story where neither side will ever comment publicly, if they know what’s good for them, due to the potential damage that commenting on an ongoing case can cause. So I’ve tried to take a different approach, by discussing the claims, looking at precedent provided, and digging up cases not presented to use for my own analysis. I never want this column to turn into "this person claimed this, the other guy denied it, who knows what is right."

More often than not, these cases end on a disappointing (for the reader) note, being settled out of court under terms that are never released to the public, with both sides gagged from ever revealing the terms themselves. Speculation in this industry is often fruitless since, as I’ve become tired of repeating on social media, most of these cases have no precedent in court.

Which ultimately leads me to this week’s controversial developer action, and of course I am speaking of Atlus attempting to DMCA a Patreon page for a Playstation emulator because the emulator can be used to play Persona 3.

They later put up a statement which didn’t so much offer legal justification as it did make excuses barely related to copyright law while repeating how much they just want everyone to have the best time possible.

"We believe that our fans best experience our titles (like Persona 5) on the actual platforms for which they are developed. We don’t want their first experiences to be framerate drops, or crashes, or other issues that can crop up in emulation that we have not personally overseen."

While a nice sentiment, this has absolutely nothing to do with copyright law, nor would it be covered under a DMCA claim.

"Unfortunately, when our content is illegally circumvented and potentially made available for free, in a format we do not think delivers the experience and quality we intend, it undermines our ability to do so by diverting potential support from new audiences."

This next part is important because Atlus isn’t just misinformed on copyright, they are veritably wrong in their interpretation of the law. First, the creator of an emulator would not be responsible for people pirating the game. Second, and going by this and other statements, Atlus believes that its rights are infringed on because people are playing Persona on a system that they did not intend it to be played on.

It’s story time.

Back in 1999, a company called Connectix released the Virtual Game Station, a commercially available emulator for the Playstation on Mac. Yes, I said commercial, as in the thing was sold on a disc and for money. It was even shown off by Steve Jobs himself at MacWorld. Sony sued, as you would expect, and the miraculous thing about it is that they lost, the court ruled in favor of Connectix that the emulator did not diminish Sony’s brand.

But here is where it specifically connects to Atlus. The court even ruled that copyright law does not grant Sony a monopoly on devices that play Sony branded products.

"Sony understandably seeks control over the market for devices that play games Sony produces or licenses. The copyright law, however, does not confer such a monopoly."

In the lawsuit, Sony argued that the availability of the emulator would lose them sales on consoles. The court’s response was essentially "tough," declaring that the emulator was a legal market competitor, and that Sony losing sales to the competition did not affect its fair use defense.

Ultimately, Patreon refused to comply with the takedown and the group is still up and operational, likely with more funding than ever thanks to the new round of publicity. All references to Persona have been removed from the Patreon page and website as a precautionary measure.

You can be completely against emulators while also acknowledging that this is out of Atlus’ reach.

IPE Update: Digital Homicide Needs A Lawyer


sued

(Update: This detail was pointed out by a reader. The document has been stamped as “not in proper form” and “subject to rejection by the court.)

proper

Small IPE update this week. I’ve said it before and I’ll say it again, but Digital Homicide is in severe need of a lawyer. Today’s update is just two pages consisting of two very short paragraphs, expanding upon the previous set of updates.

The document itself is a request for the court to accept the motion in response to Stanton’s motion to dismiss the case. Translated to English, the request says “please accept that last set of documents I submitted.” Romine has no idea if the document is required, but he filed it anyway and apologizes if it is a waste of the court’s time.

This is only submitted as the term “Opposition” was not specifically stated in those two documents. The Plaintiff was unaware if this was a required statement and felt it may need to be stated officially. Apologies if this is obvious and unnecessary.

The presence of a lawyer could have saved this lawsuit from several follies, such as the existence of this document or that “aforementioned” is one word and not two.

The Plaintiff files this Affidavit in Opposition with these two afore mentioned documents as Opposition and the undersigned requests the Defendant’s Motion to Dismiss be denied.

For those of you keeping score on the motion/response score count, we are now in Digital Homicide’s motion in response to the defendant’s motion to dismiss the plaintiff’s opposition in response to the defendant’s motion to dismiss the plaintiff’s case.

It makes sense in legal circles, not much elsewhere.

IPE Update: Judge Strikes Down Digital Homicide


sued

It’s been quite a while since the last In Plain English update on the Digital Homicide lawsuit, but earlier this week two new documents were presented to the court system that, as some of you have pointed out, I’ve ignored. I posted a short bit on Twitter essentially saying that nothing new was really presented, but for the sake of documentation, it’s best to just go over recent developments in a little more detail. For the sake of brevity, I’m going to assume you’re up to date on the case. If not, check out our previous coverage.

There are a few things at issue here. James Stanton has filed a motion to dismiss the lawsuit on the grounds of jurisdiction, among other complaints, to which James Romine filed a response and a motion to amend as well as a motion to exceed the page limit. The court accepted the first motion to amend and motion to exceed the page limit.

However, Romine filed a motion to amend his response and Stanton objected on the grounds that the amendment didn’t do anything but repeat previous arguments. The court has upheld the defense, and denied the second motion to amend the response.

As a result, the court has approved a motion for leave to the plaintiff to amend his response to the defense’s motion to dismiss the case. In layman’s terms, Romine has more time to respond to Stanton’s attempt to have the case dismissed.

The second document is a 28 page rebuttal of Stanton’s defenses. It reiterates a lot of what Romine has said already, that Stanton does business in Arizona because people in the state can subscribe to his Patreon and buy items. He states that he can sue Stanton as an individual because the defense used his name specifically in coverage (calling him Romino).

Romine was also CISSP certified until 2014, and his sales have been destroyed by Stanton’s followers. I’m not sure what those two have to do with each other, but they’re noted in the same paragraph.

Our take: Once again, it’s interesting to see Digital Homicide, a company with seemingly little self-awareness of their public perception, using the Ventura v Kyle case in their list of precedent. If you’re not aware, Jesse Ventura sued former Navy Seal Chris Kyle over Kyle’s statement that he punched Ventura in the face at a bar after Ventura allegedly stated that the Seals could “lose a few” in reference to Kyle’s deceased fellow soldiers. When Kyle was murdered in 2013 at a shooting range in Texas, Ventura instead pursued damages against Kyle’s estate. He came out with $1.8 million, which he has since been accused of lying to the court and claiming said money would be paid by the book publisher’s insurance in order to ensure a verdict in his favor.

(Addendum: The verdict in Ventura’s favor has been thrown out and the case is set to go to retrial. This was accidentally deleted along with another comment.)

Romine is still representing himself as of this publishing and his Gofundme for a lawyer presently sits at $425.