Tag: Lawsuit

Epic Games Wins Default Judgement As Defendant Fails to Respond


It’s been a while since MMO Fallout followed up on Epic Games v. C.R., the lawsuit where Epic brought complaint against a defendant who turned out to be a minor. C.R. was being accused of continuing to cheat in Fortnite, and promote said cheats through Youtube videos/streaming, in spite of over a dozen account bans by Epic. Epic filed a copyright claim against his video, defendant counterclaimed, and Epic filed suit as required by copyright law.

Most of the updates on this case have revolved around sealing and redacting documents to remove C.R.’s name from the record, so I’ve taken the liberty of skipping their coverage as to not bore all of you. The last couple of months have brought some small updates, ultimately leading to a decision within the past couple of days. Those of you who have followed the case know that C.R.’s mother wrote a letter to the court asking for them to dismiss the case, and I pointed out at the time that this may be damaging as it could be construed by the court as an official response and a motion to dismiss. I wasn’t wrong, and the court accepted the letter and interpreted it as an official motion to dismiss.

The motion was denied because it didn’t properly address the plaintiff’s claims, a premise that shouldn’t be surprising when you consider that it wasn’t written by a lawyer, or intended to be an actual legal filing. Following the court’s denial of the motion to dismiss in July, Epic Games once again filed a motion for entry of default, as outside of the initial letter from C.R.’s mother, they have not actually responded to Epic’s complaint.

After continuing to miss deadlines for response, the court this week granted Epic’s motion for default judgement, meaning Epic will likely get what it wants. And what does Epic want? Let’s go back to the prayer for relief in Epic’s initial complaint.

Epic wants the court to enter judgement in their favor and adjudge the defendant to have infringed on Epic’s copyright, to have contributory infringement, to have breached the terms of service, to have interfered in contracts between Epic and its other players through their cheating, and for the court to declare that the infringements were willing in nature. As punishment, Epic has demanded that the defendant be permanently barred from infringing or contributing to infringement, ie; cheating in their games and distributing/promoting said cheats, as well as deleting any videos showing said cheats and copies of said software off of his computer.

Now let’s talk money. Epic has demanded the maximum statutory damages under 17 U.S.C. § 504, which allows up to $30,000 (as the court considers just) with an exception for cases where the copyright owner sustains the burden of proving willful infringement, in which case the maximum damage shoots up to $150,000 (again, as the court considers just). Alternately, Epic may ask for the “actual damages,” which were not specified. In addition, Epic has asked for attorneys’ fees, costs, and expenditures, as well as any further relief the court may deem proper.

Will Epic get paid? In my humble opinion, we’re more likely to see this end in a bankruptcy filing by the family.

IPE Update: Trion Worlds Overruled, Receives Warning Over Procedural Violations


Who would have thought we’d be talking about Trion Worlds using incorrect font sizes?

It’s Thursday, and that means it’s time for an update on the case of Van Fleet v Trion Worlds, an active lawsuit in San Mateo County Court that seeks class action status regarding two major offenses: That Trion Worlds misled customers by offering a 10% discount and then did not follow through, and the question on whether or not lockboxes in ArcheAge constitute an illegal lottery.

If you need more backstory, go here. For the rest, let’s move on.

You may recall in the last episode of In Plain English, Trion Worlds had filed a demurrer (that’s a motion to dismiss) against the claims of illegal lottery and notably not the claims of misleading advertising, with a court hearing scheduled for August 23. The notes from the hearing have just become available, so let’s go through them.

To keep the story short, both demurrers filed by Trion Worlds on the basis of standing and failing to allege facts have been overruled by the court. The real meat and potatoes of this story resides in the fact that Judge Weiner had some comments regarding improper procedure by Trion Worlds lawyers.

The judge accuses Trion’s lawyers of skirting statutory page limitations via over-use of footnotes, and that the footnotes were not in 12-point font as required by law. It may seem like a small error from the outside looking in, but the courts take these procedures seriously enough that Judge Weiner threatened to strike down future briefs that do not adhere to procedural statutory laws.

Judge Weiner went even further by striking Trion’s evidence as being improperly submitted. Trion Worlds submitted with its demurrer screenshots and information from ArcheAge, and did not formally request judicial notice. Trion’s request for judicial notice regarding its End User License Agreement was denied.

“Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted. This is done upon the request of the party seeking to rely on the fact at issue.”

In its pleadings, Trion also attempted to convert the demurrer (motion to dismiss) into a summary adjudication, essentially asking the judge to make a ruling without going to trial. The court declined to do so.

So where do we stand now? Trion Worlds has until September 17 to file its answer to the First Amended Complaint, after which a Case Management Conference will be held on October 26 where the parties will discuss status of discovery, status of settlement or mediation, any other possible motions, as well as the date of the following CMC, plus any other matters pertinent to the case.

Parties will also discuss the status of the lawsuit class action certification, including any further research needed to support or deny such a claim.

I have uploaded a copy of the Case Management Order to the MMO Fallout Google Drive, linked below.

(Source: Docket)

IPE Update: Court Issues Ruling On Star Citizen Motion To Dismiss


Here at MMO Fallout we try to avoid saturating our coverage of lawsuits for two reasons: The first being that unless the court is making a judgement or one of the parties introduces some profound claim or evidence, the court filings in between are about as interesting and productive as this. Thankfully we’re finally getting somewhere in the case of Crytek v. Roberts Space Industries and Cloud Imperium Games.

For those of you who need it, a quick summary: In the far flung past of December 2017, Crytek officially launched a lawsuit against CIG and RSI containing accusations of breach of contract over Star Citizen and Squadron 42. The major points of contention in the lawsuit come down to RSI/CIG no longer using the engine, and whether that constituted a breach with regards to royalties, obligations to collaborate, use trademarks in advertising, paid royalties, etc. In my previous coverage, I noted that CIG’s successful dismissal of the case was highly unlikely due to the nature of the allegations.

1. Terms of Contract, or, The Prevailing Document

In its motion to dismiss, Roberts Space Industries motioned to dismiss its part in the lawsuit, claiming that it did not sign the GLA and thus is not a party to the GLA. In its decision, the court noted that the ToC and GLA contain conflicting information, as both attempt to define the term “licensee” with the GLA only involving Cloud Imperium Games and the ToC including both parties. Since the terms of the contract state that any case of conflicts between the documents would lead to the ToC being the prevailing document, the court ruled that Roberts Space Industries is a signatory to the contract.

Motion to dismiss has been denied with the court refusing to consider plaintiff’s other arguments.

On a side note: We actually discussed something similar to this just recently. In regards to prevailing documents, you may recall that this same ruling was handed down against Trion Worlds, as conflicting documents between their End User License Agreement and Terms of Service in regards to where legal disputes could be held led the company to losing its attempt to pull the lawsuit into arbitration, as well as its appeal on the same matter.

2. The Defendant’s Conduct, or, Breach of Contract

The second issue that the courts ruled on this week is the question of the definition of exclusive. I gave a lot of attention to this in my prior coverage because this is an important distinction with the potential to go very, very wrong depending on the understanding of the judge.

In its lawsuit, Crytek made the claim that when it gave CIG/RSI exclusive rights to use the CryEngine on Star Citizen, this meant that both parties were obligated to use the engine and nothing else for Star Citizen. In plain English, this isn’t how the term “exclusive” is used when it comes to contracts like this, and a license is a grant of permission, generally not something used to restrict the licensee. The court agreed with RSI/CIG that the terms of the contract did not legally bind the defendants into using the CryEngine in their product, and as such the motion to dismiss on this count was approved.

The court was less forgiving on the second part of this claim, however. The second part of this claim has to do with the defendants removing Crytek’s logos from their website in breach of contract. As part of their contractual obligations, CIG was required to display Crytek logos on their website and in game. Crytek’s complaint alleges that the defendants had begun removing their logos as of September 2016 when CIG claims that they had moved away from the CryEngine by December 2016.

Due to uncertainty and an obligation by the court to favor the plaintiff’s first amended complaint, this motion was denied.

The third part of this section has to do with whether or not Squadron 42 being spun off into its own property is considered a breach of contract. In the initial lawsuit coverage, we noted that the terms of contract explicitly allowed CIG to use the CryEngine in one game and one game only, that being Star Citizen. However, we also noted that there was some wiggle room for the defendants to fight this claim, as the contract also defines “the game” as including Star Citizen and Squadron 42. HOWEVER, in defining Squadron 42 as part of “the game,” it was merely a feature of Star Citizen and was not being sold as a standalone product.

RSI/CIG may have breached contract by announcing in late 2015 that Squadron 42 would be sold as a standalone title, as it wasn’t until December 2016 that the public was informed of Squadron 42 switching to the Lumberyard engine. As a result, the court has denied the motion to dismiss on this claim.

3. Claim for Damages, or, Torts for Two

This is an interesting one. In their motion to dismiss, CIG pointed to section 6.1.4 of the contract, noting that its language precludes both parties from recovering damages for intentional or grossly negligent conduct. The defendant attempted to cite the clause, claiming that it would only allow for exceptions in claims of tort (common law) over contract (terms between the parties). The court disagreed, threw out the cases that CIG used to support its claim, and summarily denied their motion to dismiss.

4. Copyright Infringement, or, Squadron 42

Squadron 42 has been a big source of contention between Crytek and CIG and could make or break certain parts of this lawsuit. Just to go over the facts again, Crytek’s contract for the CryEngine allowed CIG/RSI to create one game, Star Citizen, with Squadron 42 being just a feature of the main game. The contract expressly does not allow CIG to use the CryEngine to separately market or sell a second game, which they proceeded to do by marketing Squadron 42 as a standalone title.

In their defense, CIG noted that Squadron 42 is being developed with the Amazon Lumberyard engine and thus did not breach the terms of the license. In their lawsuit, Crytek states that the announcement that CIG would be using the Lumberyard engine came in December 2016, while the announcement that Squadron 42 would be its own standalone game came a year prior. Presumably this would imply that Squadron 42 was in development, with the plans to sell it as a standalone product, using CryEngine at some point, thus being a breach of contract.

This allegation will need to be settled in court with discovery to figure out when Squadron 42 was split off into a standalone game and when CIG stopped development on said title using the CryEngine, so the court has denied this motion to dismiss.

5. Prayer for Relief, or, Show Me the Money

This may be a short section.

We already discussed in this piece that CIG’s use of section 6.1.4 to preclude recovery has been denied. In addition, the court ruled that Crytek had sufficiently plead facts that support entitlement to injunctive relief, alleging that defendants released videos containing confidential CryEngine information as well as entering into a partnership with a third party studio and giving them access to confidential Crytek technology in violation of their license. As a result, the court has denied CIG’s motion to dismiss Crytek’s claim for injunctive relief.

In regards to statutory damages and attorney’s fees, defendants argued that the Copyright Act does not allow recover of damages and attorney’s fees because Crytek registered its copyrights after the infringements took place. The court agreed with this interpretation, however the game license states that the prevailing party will be entitled to recover attorney’s fees in the case of litigation. The court notes that Crytek is unlikely to recover any statutory damages, that they are not willing to make a decision at the pleading stage of the lawsuit and has thus denied this motion.

As to Crytek’s demands for punitive damages, the court ruled that California law does not permit punitive damages in cases of a breach of contract, nor does the Copyright Act. As such, the motion to dismiss Crytek’s claim for punitive damages has been granted.

And finally, the court ruled on Crytek’s claims regarding potential conflicts of interest regarding the parties involved in the contract negotiations. While the defendants argued that the claims were not necessary or important to Crytek’s lawsuit, the court disagreed, concluding that the relationship between the parties and their executives may prove relevant, and that the allegations were not derogatory in nature. As such, this motion to dismiss was denied.

6. Conclusion, or, Fire Up That Injunction

Of the six motions to dismiss, the court has granted one in full and one in part. Crytek has been granted a leave to file an amended complaint addressing some of the deficiencies within 21 days, to which the defendants will have 21 days to file a response. After that, we’re going to trial.

(Source: Court Docket)

IPE Update: Class Action Lawsuit v. Trion Worlds Responds To Amended Complaint


It’s been quite a while since we last checked in on the ArcheAge class action lawsuit, so I figured we’d go ahead and see if anything has changed over the past few months.

First, a recap for those keeping score. Back in what feels like the far flung past of September 2015, two individuals by the names of Aaron Van Fleet and Paul Ovberg launched a lawsuit against Trion Worlds regarding ArcheAge. It’s probably irrelevant to most readers, but noteworthy that they didn’t “launch” a class action lawsuit but filed a lawsuit and are seeking class action status that won’t be ruled on until 2019, just an oversight that a lot of people (including myself) probably haven’t made clear.

The plaintiffs were willing to admit under oath that they had purchased the $149.99 collector’s edition of ArcheAge, and are now suing for a myriad of reasons including the infamous 10% discount and allegations that ArcheAge’s lootbox system violates California law on illegal lotteries.

In my initial discussion on the lawsuit, I noted my doubts that the lottery claims would hold up and that the plaintiffs might be damaging their case by including their exhibit A (and only exhibit) as 50 pages of random players complaining in the forums about loot boxes. Trion Worlds attempted to have the lawsuit moved to arbitration and lost, appealed their case to the First District Court of Appeals…and also lost there. Then the lawsuit went back to the San Mateo County Court and the plaintiffs were given an opportunity to file an amended complaint.

Well they’ve filed their amended complaint and of all that has changed, well, there isn’t much of it. James Longfield has been named as a plaintiff, the screenshots are of much higher quality in the copy available on the court’s website. Apart from one sentence that is changed from present tense to past tense, this is exactly the same complaint, word for word. Nothing outside of the addition of a new plaintiff has been amended in this amended complaint.

Which means that the lawsuit’s pitfalls are still there. The plaintiffs make virtually no attempt to show how Trion’s loot boxes violate the lottery penal code, nor does it actually explain the penal code in any real capacity, an oversight to be sure since it’s basically a large portion of the lawsuit. As far as I could find in the docket, they didn’t even bother citing the penal code that they are attempting to prove violation of. I noted the California lottery penal code in my previous article, the plaintiff apparently didn’t bother and still has not done so. There is also the matter of the 50 pages of forum complaints that are hardly relevant to the case at hand and basically come down to players musing the idea that “this is probably illegal because I don’t like it.”

Trion Worlds has filed a demurer, an objection that questions the validity of the plaintiff’s claims, and unsurprisingly it mostly targets the question of the illegal lottery claim. The demurer mostly attacks on the basis that items obtained in ArcheAge have no measurable value, and thus can not be covered by the penal code definition of property. In addition, Trion argues against the idea that the plaintiffs can claim that they lost money or property, as they exchanged real money for digital goods and received exactly what they paid for. Finally they attacked the lottery on the same merits that I did, that the plaintiffs didn’t really bother staking a claim on the rules of the penal code or how Trion even allegedly violated them.

Notably absent from Trion’s demurer is commentary in relation to whether or not the 10% discount offer change constituted misleading advertising, but presumably the demurer is to carve up the lawsuit and get rid of the extra fat so that the main points of contention can be handled either during the trial phase or in a supplementary demurer. Considering this lawsuit has now gone on for three years and has rulings and applications for various statuses dated for early to mid 2019, I’m sure Trion is just trying to bring this closer to some kind of resolution.

I have included a link to the docket down below, thankfully San Mateo’s county court allows you to view their dockets at no cost. MMO Fallout will continue covering this lawsuit when any noteworthy events happen.

(Source: San Mateo Docket)

PUBG Corp Drops Lawsuit Against Epic Games


PUBG Corp believes that Epic Games illegally plagiarized the Battle Royale mode, and has even gone as far as to comment its concerns that Epic Games might steal internal modifications to the Unreal engine and use it in their own game Fortnite. In any case, PUBG Corp found the concept actionable enough that just a couple of months ago they took Epic Games to court, filing an injunction in South Korean court against Fortnite and alleging that Epic Games stole their idea.

Except the lawsuit is over before it truly began, with PUBG Corp pulling out and sending a notice of withdrawal to Epic Games attorneys, according to GI Biz. As of now, neither company is willing to comment on the matter.

(Source: Games Industry)

It’s Official, PUBG Corp Is Suing Epic Games


It’s official, PUBG Corp has filed a copyright lawsuit against Epic Games according to Korea Times. After previously mulling further action for a genre that it did not create and does not own, at least not in the legal view of the United States or Europe, PUBG has officially filed a complaint against Epic Games. In Korea. The firm has filed an injunction and alleging copyright infringement in the Seoul Central District Courts.

PUBG Corp already has an active lawsuit going against NetEase, one that includes claims of ownership over concepts like frying pans as a weapon. While very concerned with the idea of others stealing concepts that they claim ownership of, PUBG has had run ins itself with theft, including plagiarizing a community ad for its game as well as several employees from Bluehole Studios being sentenced to prison for stealing from NCSoft.

(Source: Korea Times)

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.

[Column] PUBG’s Ridiculous Ownership Claim on the Frying Pan


PUBG Corp has finally decided to pull up its britches and sue NetEase for copying Playerunknown’s Battlegrounds, a move that will certainly make for some monumental court precedent. While I do have coverage coming for this 155 page complaint once I get done reading it, one bit that caught my eye was on PUBG Corp’s list of concepts it claims copyright ownership of, the frying pan as a weapon.

Especially the part where PUBG Corp claims that ‘previous shooter games did not include the use of a frying pan.’

“One very beloved aspect of creative expression in BATTLEGROUNDS is the game’s iconic frying pan. Previous shooter games did not include the use of a frying pan… When
so equipped, as a purely artistic and creative expression injecting humor into the game, the frying pan is the only indestructible armor in the game (i.e., armor that can absorb infinite hit points without deteriorating), providing complete protection against projectiles aimed at a character’s posterior. “

Right, except the frying pan has been a comedic weapon in literature popular media for decades, if not longer, likely longer than many of the PUBG Corp employees have been alive. If you want to keep the conversation strictly limited to video games, the frying pan as a humorous weapon has become iconic as far back as 1996 with Princess Peach and the release of Super Mario RPG but can be found in games like Earthbound (1994), Fable (2004), and Conker’s Bad Fur Day (2001). Dead Rising had a frying pan weapon and Dead Rising 2 even utilized the mechanic of having said frying pan block bullets.

Left 4 Dead 2 (2009) had a frying pan as arguably its most powerful melee weapon, which was then transplanted to Team Fortress 2 in 2010 with the sound effect of a successful hit meant to be both humiliating for the player on the receiving end and humorous for the game as a whole.

Full coverage of the lawsuit is on its way, but this is just one of a large number of concepts that PUBG Corp is claiming copyright ownership of that it had veritably no hand in creating, including the phrase “winner winner chicken dinner,” and the concept of starting with nothing and building up an arsenal, or virtually every RPG since the 80’s as well as the Unreal Tournament games, to name two examples.

In Plain English: Lohan Loses GTA Lawsuit Appeal


Lindsay Lohan has lost her appeal in New York State Court today in a privacy lawsuit against Take Two.

Lohan sued Take Two Interactive in regards to allegations that the company illegally used her likeness in Grand Theft Auto V. In the game, players assist a celebrity by the name of Lacey Jonas escape the paparazzi. Lohan’s lawyers argued that the Jonas character was a likeness of Lohan’s image and personality and thus constituted an invasion of privacy.

The appeals court ruled that the image of Lacey Jonas constituted an “indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman” and thus were not recognizable as Lohan. In the ruling, it was also noted that a character in a video game would fall under the laws governing using the likeness of a living person for purposes of selling a product, however the character used in Grand Theft Auto V was not close enough to Lohan to constitute a likeness of her.

“Here, the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a “twenty something” woman without any particular identifying physical characteristics. The analysis with respect to the Beach Weather and Stop and Frisk illustrations is the same.”

The court did not address the advertising and trade elements of Lohan’s appeal. The court also struck down the appeal of Karen Gravano against Take Two, a similar case to Lohan’s, citing similarly that the game did not appropriate her likeness when creating the character Andrea Bottino.

(Source: NYS Court of Appeals)

Epic Games Ends Another Lawsuit With Permanent Injunction


Back in January, MMO Fallout reported on the latest lawsuit filed by Epic Games in the district of Northern California court. The lawsuit followed the similar pattern set forth by its predecessors, seeking permanent injunctions and utilizing the natural legal progression of a DMCA takedown notice against the defendant’s Youtube videos. This lawsuit, however, charged defendant Yash Gosai, a New Zealand resident, with creating/finding an exploit that would allow him to obtain V-Bucks, Fortnite’s real money currency, without paying for them. Gosai posted the exploit on his Youtube channel and, when the video was taken down on Epic’s DMCA notice, filed a counter-claim.

Epic alleges that Gosai created, developed and/or found an exploit for Fortnite’s Battle Royale game mode; Gosai then created and publicly displayed a video on YouTube to advertise, demonstrate, and distribute the exploit; Gosai’s video contained gameplay from Epic’s Fortnite Battle Royale game; and that using the exploit, Gosai obtained Fortnite V-bucks without paying for them.

Less than a month later, the lawsuit is over with Epic Games claiming the victory. The court found in favor of Epic Games on the charges of copyright infringement, breach of contract, and conversion. The court’s decision, which cannot be appealed by either party, permanently restrains Gosai from finding, creating, promoting, sharing, or otherwise interacting with any program/cheat that interacts with any of Epic Games’ titles. As with its other lawsuits, Epic Games is not seeking monetary damages and as per the court’s ruling both sides will be responsible for their own attorney’s fees.

Since October 10, 2017, Epic Games has filed seven lawsuits against people creating/promoting cheats for Fortnite, of which four have been successfully settled. For two of the three remaining lawsuits, Epic appears to be having trouble serving the summons. In the third, filed against a Russian citizen, is allegedly being ignored.

(Source: PACER Court Documents)

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