Bethesda Loses Again in Fallout Online Legal Battle

[Andy Chalk]

Bethesda Loses Again in Fallout Online Legal Battle

Bethesda Softworks has been denied a temporary restraining order against Masthead Studios over its work on Interplay's Fallout MMO.

Unable to make much headway in its legal effort to regain the rights to make a Fallout-based MMO from Interplay, Bethesda recently trained its sights on a new target: Masthead Games, which signed a deal [http://www.escapistmagazine.com/news/view/90672-Interplay-Moves-One-Step-Closer-to-Project-V13] with Interplay to work on Fallout Online back in April 2009. Bethesda alleged that Interplay "improperly sublicensed" its IP to Masthead and that Masthead, by working on the game, is contributing to the ongoing infringements of its copyrights. The company sought a temporary restraining order against Masthead to halt its work on the project.

But the judge in the case denied the motion, without even hearing an opposing argument from Masthead. He ruled that Bethesda had not demonstrated that it would be "irreparably prejudiced" if it wasn't granted the restraining order and also pointed out that the company bears some responsibility for "creating the crisis that requires the ex parte relief" in the first place.

"Plaintiff was aware as early as February 2011 that Masthead was potentially infringing its copyrights," the judge wrote. "Yet, Plaintiff waited seven months to apply for ex parte relief. The court finds that Plaintiff unreasonably delayed in seeking relief, and that the emergency that allegedly justifies a TRO is self-created. Accordingly, Plaintiff's Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction is DENIED."

I like to imagine that the judge heard the Fallout Online [http://www.amazon.com/Quake-III-Arena-Pc/dp/B0000296ZD/ref=sr_1_1?ie=UTF8&qid=1316796167&sr=8-1] MMO continues.

Source: Gamasutra [http://www.iptrademarkattorney.com/2011/09/copyright-infringement-videogame-fallout-license-video-masthead-bethesda-tro-denied.html]


Permalink

 

[Vrach]

I love Bethesda with all my heart, but hurray, seriously, I can see no pragmatical benefit in them winning this one, for anyone, both developers/publishers and consumers. Best of luck to the MMO, hope it doesn't suck and hope their funds haven't been too significantly drained by all this bollox.

 

[ike42]

So if you wait a little while before filing you suddenly lose your right to your own intellectual property? That sounds pretty suspect to me.

 

[Alandoril]

The point is why did they wait? If it was really that pressing a concern they would have filed immediately. Most corporations don't even blink before throwing the lawyers at people so the fact they delayed so long is rather strange.

 

[mattaui]

So if you wait a little while before filing you suddenly lose your right to your own intellectual property? That sounds pretty suspect to me.

Despite what you might think, waiting seven months isn't waiting a little while, especially if you're now saying that time is of the essence. Was it not of the essence seven months ago? They have also not lost their rights to their IP, that's not at all what the ruling says. They just couldn't get an emergency injunction against a lawfully executed license with a third party.

 

[Therumancer]

Hmmm, well I have mixed opinions. The delay in filing legal action could have come about due to attempts at negotiation before the desician to go to court. It's not like we have the details of everything that was said and done before then.

That said, I'm becoming a little wary of Bethesda getting their hooks into the Fallout liscence so solidly right now, because I have some suspicians that they might want to lock it down just to sit on it and prevent anyone else from using it.

To be honest the way they are publishing and promoting "Rage" (despite it being made by the guys that did Doom) seems an awful lot like they took my advice about how if they wanted an free-roam post apocolyptic FPS, they should have created their own franchise as opposed to trying to gradually turn Fallout into something it's not.

I have no objection to "Rage" in any way, shape, or form, but to be honest shooters are more popular than RPGs, and I can't see Bethesda running two competing brands. What's more with strong sales, I can see why they wouldn't want a "Fallout" game out there, on any front, to compete with them for a similar market.

While we just got the final "New Vegas" DLC, I can't help but notice "New Vegas" dropped to $20 pretty quickly as well, which while not directly tied to Bethesda, does kind of raise some questions about the liscence.

We'll ultimatly have to wait and see if we see a "Fallout 4" being developed off of the Skyrim engine, but I half suspect that if Bethesda ends these MMOs, and if Rage isn't a total flop, we might very well see "Fallout" locked in a vault somewhere.

Yes, that's grim and paranoid, but I have increasingly little faith in the gaming industry. With everything else on it's plate I can't see Bethesda trying to develop a "Fallout" MMO itself, and it doesn't seem like there are tons of bidders lining up demanding the liscence for more money than these other companies promised, as time goes on it seems like there is increasingly little benefit to Bethesda chasing down these liscences other than to halt the production of the games and then sit on the rights and let them gather dust while it does something else.

 

[Rawne1980]

So if you wait a little while before filing you suddenly lose your right to your own intellectual property? That sounds pretty suspect to me.

Except it isn't "their own" intellectual property.

Under the License Back the Company obtained an exclusive license, under certain
conditions, to use the IP for the purpose of developing an Interplay branded
Fallout Massively Multiplayer Online Game ("MMOG").

Taken from the contract (gotta love the internet for getting hold of amazingly pointless shit).

http://www.sec.gov/Archives/edgar/data/1057232/000117091807000324/0001170918-07-000324.txt

Interplay kept the rights to the Fallout MMO when it sold the Fallout IP to Bathesda. Bathesda agreed to the MMO under certain conditions all of which Interplay have met and Bathesda still try and drag them through the courts.

That was, oooooh 4 years ago.

Since then Bathesda has tried everything to stop Interplay from finishing that project and for the past 4 years have failed in every attempt.

I really enjoy Bathesda games but I think it's about time they dropped this one, they have wasted a small fortune on court losses and they won't be winning any cases any time soon.

Chalk it up to experience Bathesda, let it slide now. 4 years you've been trying, you gave it a good shot. Now you're just making yourselves look silly.

 

[IceStar100]

So if you wait a little while before filing you suddenly lose your right to your own intellectual property? That sounds pretty suspect to me.

Except it isn't "their own" intellectual property.

Under the License Back the Company obtained an exclusive license, under certain
conditions, to use the IP for the purpose of developing an Interplay branded
Fallout Massively Multiplayer Online Game ("MMOG").

Taken from the contract (gotta love the internet for getting hold of amazingly pointless shit).

http://www.sec.gov/Archives/edgar/data/1057232/000117091807000324/0001170918-07-000324.txt

Interplay kept the rights to the Fallout MMO when it sold the Fallout IP to Bathesda. Bathesda agreed to the MMO under certain conditions all of which Interplay have met and Bathesda still try and drag them through the courts.

That was, oooooh 4 years ago.

Since then Bathesda has tried everything to stop Interplay from finishing that project and for the past 4 years have failed in every attempt.

I really enjoy Bathesda games but I think it's about time they dropped this one, they have wasted a small fortune on court losses and they won't be winning any cases any time soon.

Chalk it up to experience Bathesda, let it slide now. 4 years you've been trying, you gave it a good shot. Now you're just making yourselves look silly.

They did do one thing. They came out looking like a arse. Right now they are working there ways to earning a spot beside EA and Activision. That not good because people are more likly to want to buy preowned or pirate just to stick it to them. Becuase who really want to fund a bully?

 

[cerebus23]

^ all true but interplay gave bethesda an out when they agreed to a timeline and conditions on that right to make an mmo.

But bethesda has been disingenious through this entire process on what they knew and did not know and when they knew and do not know it and the shock and horror to find that interplay was shockingly doing exactly what they agreed to do in the first place.

then beth conceeding that in fact they were doing what they said they were doing, then took the line that there was not enough work done then and that was the reason they should get sole rights to the IP.

this whole process has the distinct aroma of bullshit from start to finish. and hey ty bethesda for reviving the fallout franchise in essence and making an ok game, but ffs you guys did not create fallout to try and end around back stab IP rights grab you should burn in the deepest pits of the 7 spheres of hades for this crap.

 

[Proverbial Jon]

Wow, Bethesda really are all about suing people lately, aren't they?

First Mojang's Scrolls and now this? I don't pretend to know anything about copyright laws but this does seem like overkill. Seems like game development is a cut-throat business.

 

[JPArbiter]

So if you wait a little while before filing you suddenly lose your right to your own intellectual property? That sounds pretty suspect to me.

IP Law has this generally unwritten rule where if you do not defend it promptly you lose a lot of options to protect it. it is the number one reason why Harmony Gold, despite doing jack squat with the robotech property for the past 15 years will sue the pants off of anyone who release anything with a robot even remotely looking like a Warhammer... excuse me Tomahawk.

I love following this case, because Bethesda's core claim, that Interplay was not fulfilling the contractual obligations to develop the fallout MMO is pretty solid. but all of the other crap that they have thrown at the courts as well is meaningless, and they have been beaten down. this will sadly work against them when the central case finally gets decided.

I just hope thew doomsday scenario does not happen and Bethesda has to cede Fallout back to Interplay, who is financially and creatively incapable of doing anything with the property. they would have to subliscene to Obsidian and I think New Vegas has shown that Obsidian can not make a game properly.

 

[Susurrus]

So if you wait a little while before filing you suddenly lose your right to your own intellectual property? That sounds pretty suspect to me.

IP Law has this generally unwritten rule where if you do not defend it promptly you lose a lot of options to protect it. it is the number one reason why Harmony Gold, despite doing jack squat with the robotech property for the past 15 years will sue the pants off of anyone who release anything with a robot even remotely looking like a Warhammer... excuse me Tomahawk.

I love following this case, because Bethesda's core claim, that Interplay was not fulfilling the contractual obligations to develop the fallout MMO is pretty solid. but all of the other crap that they have thrown at the courts as well is meaningless, and they have been beaten down. this will sadly work against them when the central case finally gets decided.

I just hope thew doomsday scenario does not happen and Bethesda has to cede Fallout back to Interplay, who is financially and creatively incapable of doing anything with the property. they would have to subliscene to Obsidian and I think New Vegas has shown that Obsidian can not make a game properly.

That's not what's going on here though, from my reading of it.

The judge simply denied an injuction. An injunction of this type is a last minute order from the court to stop a firm doing something, on the basis that by the time the trial is completed, any ruling in favour of the other party would be irrelevant, as the damage would already have been done.

As such, they are emergency measures, should be posted as soon as the claiming party becomes aware of the need for them, and are only temporary measures anyway.

They waited 7 months, and then, right before xyz happened, they asked for an injunction.

It's like being given homework 7 months early, waiting until the last day to do it, realising you don't have time, and asking for an extended deadline. It's not gonna happen, because you've been an idiot.

 

[cerebus23]

So if you wait a little while before filing you suddenly lose your right to your own intellectual property? That sounds pretty suspect to me.

IP Law has this generally unwritten rule where if you do not defend it promptly you lose a lot of options to protect it. it is the number one reason why Harmony Gold, despite doing jack squat with the robotech property for the past 15 years will sue the pants off of anyone who release anything with a robot even remotely looking like a Warhammer... excuse me Tomahawk.

I love following this case, because Bethesda's core claim, that Interplay was not fulfilling the contractual obligations to develop the fallout MMO is pretty solid. but all of the other crap that they have thrown at the courts as well is meaningless, and they have been beaten down. this will sadly work against them when the central case finally gets decided.

I just hope thew doomsday scenario does not happen and Bethesda has to cede Fallout back to Interplay, who is financially and creatively incapable of doing anything with the property. they would have to subliscene to Obsidian and I think New Vegas has shown that Obsidian can not make a game properly.

What obsidian cannot make a game properly? New vegas was no more buggy than any other game developed on the gamebro engine that includes oblivion and fallout 3 both made by bethesda.

Yes obsidian has a bad track record in general with producing buggy games, but solid games at the core, alpha protocol and such were good games once some of the bugs were patched up, same for vampire bloodlines which is right up there with many people's top rpgs of all time lists.

Do they need better quality control and fire their whole business lawyer department? Sure. Do they need some guys that can handle money better and budget? Sure. Not as bad as the interplay days, when they had top game after top that great reviews made some of the best rpgs ever made to this day, and seemed to be selling lots of software but still managed to go belly up.

But your take on obsidian in general seems to be coming from a distinctly bethesda viewpoint, and far as i know they had work to show had an engine running, i think it s bit much to just agree with bethesda that it was not enough to qualify their contractual obligiations, and the way these judgements have been going i would find it odd that the trend would reverse down the road in some crazy twist.

since why would the judge not stop obsidian from working on the stuff if there just to find a few months later oh yea that one core argument you had depending on how you agree with the extremely vague guidelines of the contract and who the hell decides what qualifies i forget the exact wording but "enough work", thats a highly vague standard, you could scribble some notes on a napkin and you are working on something, and obsidian certainly had concept art, assest done, a game engine, and etc.

This judge today basically called out bethesda for what they been doing with a big smack down, and its about time, this stuff is just petty at this point, and in the swimming pool of, if you throw enough litigiation at someone something might stick.

 

[jpoon]

Good for them, I'd prefer for masthead/Interplay to be able to make this game. Screw what Bethesda thinks (even though I am a major fan of their games). Can't say I feel sorry for Bethesda in this situation at all.

Not sure what that guys talking about saying Obsidian can't make a Fallout game properly. New Vegas was a much better game than Fallout 3.

 

[II2]

This is a delirious circus of failure all around, but regarding this ongoing matter that is still somehow solvent, it may behoove us to 2004 and consider:

 

[-Dragmire-]

Bethesda news has been lined with lawyers lately, what happened with that whole "scrolls" business or is that still on the court list?

 

[x-machina]

Thank Christ, other developers have been shitting on the fallout franchise for far too long.

 

[jpoon]

Good for them, I'd prefer for masthead/Interplay to be able to make this game. Screw what Bethesda thinks (even though I am a major fan of their games). Can't say I feel sorry for Bethesda in this situation at all.

Not sure what that guys talking about saying Obsidian can't make a Fallout game properly. New Vegas was a much better game than Fallout 3.

NV was also made by the same people who made Fallout 1 and 2 IIRC. So I'd dare say they know more about making fallout games than Bethesda ever did and ever will.

That was what I heard as well, I have more faith in Obsidian to create a very canon story for Fallout far more than I'd trust Bethesda to do. They already proved it to me when New Vegas was released. Now I'm not saying Obsidian is an amazing dev company but they deserve some respect.