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Bethesda v. Interplay: Court Documents Obtained [ Company -> Editorial ]
Posted by King of Creation | Related News Items Wed 11 Nov 2009, 6:23 PM
News related to Top Story: DAC Has Secret Sources: Court Docs Obtained | More info on Company: Bethesda v. Interplay

The saga of Interplay v. Bethesda continues on. In this episode, Bethesda has filed to have Interplay's claims thrown out. DAC has obtained the court documents for the case and I have quoted some of Bethesda's claims below, pending verification that I am able to release the whole document:

Bethesda Is Likely to Succeed on the Merits of Its Claims
Bethesda is Likely to Succeed on its Breach of Contract Claim Under the TLA
Because Interplay Failed to Satisfy Either the Funding or Full-Scale
Development Conditions
Bethesda is Likely to Succeed on its Breach of Contract Claims Under the APA
Because Interplay Repeatedly Violated the Merchandising Rights and Non-
Assignability Provisions
Bethesda is Likely to Succeed on its Trademark Infringement Claims
Bethesda is Likely to be Irreparably Harmed Absent Preliminary Relief
The Court Need Not Fully Adjudicate the Claims on the Merits to Decide
Whether Preliminary Relief Should Be Granted
Any Potential Harm to Interplay Does Not Tip the Balance of Equities in
Interplay’s Favor
The Public Interest Compels the Grant of a Preliminary Injunction in This Case

Some of the supporting statements for these arguements:

Nearly all of Interplay’s arguments in the Opposition are based entirely on the unsupported statements, speculations and improper legal conclusions contained in the Declaration of Herve Caen, Interplay’s CEO (“Caen Declaration”).

Always hating on Herve Caen!

There is no dispute between the parties as to the plain and ordinary meaning of the language
setting forth the conditions in the TLA, or that both of the conditions—“full-scale development” and the
minimum financing requirement of $30,000,000—had to be met before April 4, 2009 in order for
Interplay to retain the MMOG rights. Interplay does not seriously dispute that it failed to meet both of
those conditions. Instead, the Opposition argues that Interplay should not forfeit the conditional MMOG
rights because, in the personal opinion of Herve Caen, Interplay’s CEO, Interplay “substantially”
satisfied the conditions, Opp. at 4, by entering into an unauthorized development agreement with
Masthead Studios, another violation of the TLA. As a fallback position, Interplay asserts that “the
[$30,000,000] funding requirement serves no material financial purpose.” Id. at 18. Interplay is wrong.

It's an interesting way of trying to work around the $30,000,000 requirement, but I don't think it's going to work

While Interplay claims, in similarly unsupported fashion, to have “hired” Masthead Studios, a third party located in Bulgaria, “to provide programming services” in connection with the Fallout MMOG, there is no evidence—least of all in the Opposition—that Masthead is working or has ever worked on any part of the development for the
Fallout MMOG....A review of Masthead Studios’ website reveals that it is currently working on another game—“Earthrise”—that it must finish before starting on the Fallout MMOG.

This one is definitely a stretch. Everyone knows that studios, even small ones, very often have multiple projects in the pipeline.

Moreover, assuming arguendo that Interplay met the two conditions—which it did not—
Interplay is still in breach of the TLA because it violated the non-assignability provision by assigning its
rights to Masthead Studios without permission from Bethesda. See Ex. D (TLA) § 2.1 (“The conditional
license herein does not grant Interplay any right to sublicense any of the licensed rights without
Bethesda’s prior written approval.”).

This is interesting. Bethesda is arguing that Interplay licenced the Fallout rights to Masthead. This could be an interesting point to argue seeing as how, from what little we know, Masthead is doing all of the coding of Project V13 while all design work is being done at Interplay.

Interplay also does not deny that: (1) it is selling and distributing the Pre-existing Fallout Games through digital download without Bethesda’s approval (Compl. ¶ 43; Lesher Aff. ¶ 16)3; (2) it is selling and distributing the compilation of the Pre-existing Fallout Games as “Fallout Trilogy,” both by retail boxed product and by digital download from a link on Interplay’s website (the “Trilogy Webpage”), without Bethesda’s approval (Compl. ¶ 67; Lesher Aff. ¶ 15); (3) it is selling and distributing the compilation of the Pre-existing Fallout Games as “Fallout Collection” and “Saga Fallout” through third-party distributors and online retailers without Bethesda’s approval (Compl. ¶ 48; Lesher Aff. ¶ 21); (4) it did not submit to Bethesda any packaging, advertising and promotional materials for “Fallout Trilogy,” “Fallout Collection,” and “Saga Fallout,” including the Trilogy Webpage, for approval (Compl. ¶¶ 42, 50; Lesher Aff. ¶¶ 15, 21); or (5) it entered into licensing or distribution agreements with third parties, including GameTap, Good Old Games, and Valve Corporation, to sell and distribute the Pre-existing Fallout Games without Bethesda’s approval.

This argument seems to be Bethesda's weakest. To my knowledge, the Interplay packaging in question has been around for a long time and pre-dates the initial agreement between Bethesda and Interplay. I could be wrong.

Bethesda's basic legal arguments are well written and logical. They attack Herve Caen by name numerous times in the documents and at one point claim Interplay seems to exist in "an alternate universe in which, no matter what its can never be in breach of the parties’ agreements, and therefore could never be a trademark infringer." Bethesda's legal arguments definitely take a personal tone in quite a few areas, but are generally not very outrageous.

The crux of the whole court case seems to be based on an argument Interplay brought against Bethesda. Their claims that Bethesda attempted to coerce third-parties and prevent the ability of Interplay to sell the old Fallout games, thereby preventing them from securing the required $30 million, could very well prove to be held up in court. This opens the possibility of the entire licensing agreement being thrown out and the rights to Fallout defaulting back to Interplay.

Again, I will try to see if I can post up the whole series of court documents for everyone to go over with a fine tooth comb. For now, though, you can let these quotes simmer.

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