Revenge of the Litigated

[Larsirius]

I still don't get why Bungie would sign a contract with Activision. However, Bungie is the legal owner of the new IP they're developing for publishing by the Evil Empire, and they are still independent, but I still wouldn't risk two decades of working from literally working out of your appartment to becoming one of the biggest and most renowned game developers behind one of the greatest(and arguably the biggest and most succesfull) franchise for any console.

 

[Necrofudge]

The problem with this idea is that some companies may take it to heart and refuse deals with larger companies (like Activision) but there will always be one or two that could take advantage of the situation and work as... well... scabs.
Like those shifty people who fill in worker positions during a labor strike only more videogame-y

 

[Starke]

And "massive fines" is a tricky notion. What's massive for a ten person company is peanuts for a hundred person company. And a massive fine for a hundred person company would be a rounding error for a thousand person company. And how do you calculate how "big" a company is, anyway? Some companies employ a ton of people. Some are just a few people who employ a lot of contractors.

This is kind of at the core of what's gone screwy with the oil industry over the years. Ships like the Exxon Valdez didn't/don't comply to safety regulations because the sale of oil from the tanker vastly exceeds the cost of fines if they get caught. The moral of the story is, there's no real way to implement "massive fines" except possibly simply rummaging through a company's and assessing a percentage of their operating capital as a fine, which is impractical for other reasons.

Why is it impractical? Why can't they treat a fine the same way they treat something like income tax. Oh we see by your books you pulled in a cool million. Well we are fining you 10% of that mil. Oh you only made a fiver? Well we'll take 10% of that then. That way everyone is being punished the same even though the millionaire will be paying more.

Because then you get into a nightmare that is corporate accounting. Seriously, if you've never tried parsing this shit out it's flat out a nightmare. And this is before you get into "hilarious" "fun times" that shell companies and subsidiaries add to the mix. It's impractical because you'd burn a lot of time trying to figure out how much money they actually have in order to figure out how much you can take, and you have to then combine that with the overall court proceedings in general.

EDIT: I really do not mean for this to sound condescending, and if it does, I apologize.

 

[Starke]

At this point, only the profoundly stupid and those so profoundly greedy as to cross the line into stupid would do business with Activision-Blizzard.

Or desperate. I mean, you're making $10.50 an hour at your day job, and programing at night, you've got no free time and then Activision sails into port and offers you a boatload of money to develop your project? You've got no guarantee that if you say no, anyone will ever repeat the gesture, and this is your ticket out. What do you do?

 

[DTWolfwood]

"First Rule in Dealing with the Devil, Don't" ~some terrible movie

 

[mikespoff]

Excellent post, Shamus.

And a sound principle in any situation: take note of other people's characters, and protect your own reputation in your dealings with other people.

 

[oranger]

Well, the "free enterprise" and "free market" start to disappear when all of the major industries are allowed to become tied at the top, doesn't it?
Is it so bad to not allow one person to control too much?

 

[Kollega]

It's kinda weird that no-one has pointed out the implications of Bobby Kotick inviting someone he barely knows to a barbeque. You see, there's Kotick (aka "Emperor Palpatine"), and there's that meat cleaver... *crazy giggle*

That sort of thing, Shamus, is a recipe for disaster.

***

Yet another option: if you ARE going to make a game for Activision or similar company, make something expendable - the IP you can afford to lose. I really wonder if sabotaging the project by deliberately reserving your love and imagination is a viable option.

-snip-

It's not a DREAMWORLD for people to honour their word, and if you can't see that, I feel sorry for you. That kind of cynicism eats away at your well-being.

Very unfortunately for us The Good Guys, chivalry and good sportsmanship are kinda dead at the moment - far deader than i'd like them to be. I do not believe they are lost forever, but i do not see the easy way to reanimate them either. I wonder what kind of people we'll get in power a few decades from now - same cash-crazy packs of wolves, someone even worse, or someone better?

 

[matrix3509]

Honestly, that advice seems very, extremely weird coming from someone who is a freelancer.

Anyone doing freelance business MUST know that often you simply don't have a choice but to accept.

Especially when dealing with big companies. Especially when big money is in place.

Seriously, let's not live in the dreamworld, please.

There is ALWAYS a choice to avoid a company with such a shitty record. That choice is called Sticking to your fucking principles.

Look at the massive indie market. These people stick to their principles and don't take the easy way out because they don't want anything to do with publishers.

Sometimes people care more about the game they made than making umpteen millions that will then be promptly taken away because they signed a contract with a shitty publisher.

 

[rembrandtqeinstein]

The solutions are out there, no need to deal with the devil anymore. kickstarter.com is a way to get individuals to pledge toward a project

here is one for an ATARI! game http://www.kickstarter.com/projects/667413212/skull-island-a-puzzle-game-for-the-atari-2600?pos=10&ref=spotlight

Or you can do it the old fashioned way a business is started, max out a bunch of your personal credit cards and if it doesn't work out declare bankruptcy and go back to a day job.

Maybe you won't get 100 million to make the prettiest grass for your next brown space marine shooter but you might just get enough to pay for pizza and beer while you work on your "pretty good" game. Then if that succeeds you invest that into yourself or into a company and actually pay someone else a salary.

Primer is one of the best movies ever made for a budget of about $7k mostly for film stock.

Ink http://en.wikipedia.org/wiki/Ink_%28film%29 was a great fantasy movie made for $250k with NO publisher at all.

World of Goo had a budget of around 10k

A budget might be a limitation to getting Martin Sheen's voice but it isn't to getting your cousin Ray's voice. And it might be a limitation to making photorealistic grass and trees but it isn't a limitation if you have your own style.

Anyone can realize their dreams without selling their souls, just very few people have the integrity to walk way from a table with a big pile of money on it.

 

[idiot445]

Some thoughts on these legal battles...

"Massive fines" can't really be imposed unless you have some sort of regulation on use of the legal system. Instead, you'd have to add a count to the complaint for malicious prosecution or abuse of process for filing a claim without merit or unnecessarily drawing out the legal battle with a losing case.

"Losers Pay" systems do happen in the US when there are fee-shifting statutes in place. However, since most contract law isn't governed by statutes in the US most little guys in this situation can't take advantage of those systems, though it might be a good idea to write that stuff into contracts as a deterrent to both sides to bringing frivolous lawsuits.

All in all, I think Shamus has the right idea on this one. Solving these problems is generally a much larger headache than simply avoiding them when you can.

 

[Sampsa]

If this forum supported singantures I'd use this quote:

" Activision is like a guy who has had his last five spouses die under "mysterious circumstances". Maybe he's a murderer and maybe he's just had bad luck, but at this point only an idiot would marry him and find out. "

Btw, why doesn't this forums support sigantures?

 

[carpathic]

Some of the roots of our interpretation of law can be found in Kant's Critique of Pure reason. Other than the golden rule, he states that one ought to act as though all your maxims are universalizable. In this case, it is pretty clear that Activision's maxims are not Universalizable - so avoid them. An elegant solution.

Well thought out as usual Shamus!

 

[MetalDooley]

"I can't imagine what would possess anyone to sign a deal with Activision, knowing what is publicly known about the company now."

Maybe because,douchebags or not,Activision are one of if not the largest games publisher in the world right now.Game developers are always going to be tempted by the possibility that if they take the risk and sign on the dotted line then their game will become the next blockbuster franchise regardless of what happened to the guys before them

I'm sure massive record labels like Sony Music and movie studios like Universal have screwed over plenty of people too yet will never have a shortage of people queuing up to do business with them for the same reason

 

[KDR_11k]

A problem with the whole not-doing-business-with-Activision proposal is how few players there are in that market (and if you go with a small one you risk having it bought out when one of their other big games fails). Of course the obvious solution is not to make a 100M$ HD game but something cheaper so you aren't reliant on those gatekeepers but for some reason many developers seem to have the creative ambition to make the next CoD or Halo, which requires a ton of money. Of course making the next Farmville would be more feasible and profitable but that's not what developers want.

 

[Jaded Scribe]

The more important thing than signing with those who are obviously trustworthy, is that in that all-powerful contract negotiating time, read the contract thoroughly. Go over it with a fine-tooth comb. Look for the slightest ambiguity. Make sure that it is detailed out, point by point, exactly what you will have done when.

Take it to your lawyer ahead of time, and work with them to find any loopholes you missed. Even if there's no such thing as an ironclad contract, you can make it as close as possible. Be cautious of industry lingo. You may understand that "demo" means something on the floor, but make sure you know exactly what kind of demo, and get it in the contract.

Push for a stipulation that all discussions about the work be handled in written format (email or snail mail, doesn't matter) so you have a strong paper trail.

If you do all this, then it will be harder for them to find loopholes to push you on, and you'll have a paper trail of any changes they tried to pull last minute.

 

[Fearzone]

The "don't do business with idiots" remark reminds me of a saying:

"If you lend a man $20 and you never see him again...

...it was probably a good investment."

Bu-dum PAH!

Also: read Atlas Shrugged.

 

[Helmutye]

It seems like once a company gets to a certain size and has a certain amount of money flowing through it, no matter what industry it takes all the fun and humanity out of everything. Activision illustrates this with the game industry (seriously! Games are for fun! Why should the business side be so un-fun?), but almost all large corporations have lots of skeletons in their closet, even for really silly industries. Chiquita Banana used to be called United Fruit, and they ruined entire countries to profit from banana sales. Nike uses sweatshops to make their shoes. Lots of toy companies virtually enslave children to make their products (can you imagine a sadder scene than a bunch of Chinese kids slaving away for 16 hours a day making toys for the kids of the US?). Someday I want to conduct my own little study and see if I can approximate the size and cash flow when companies start showing these kinds of behavior...

I think we really need to ask ourselves just how much good big companies like this actually do society and humanity in general. They only exist because we as a society have allowed them to exist. Maybe we should think about changing the rules a bit, before we find out that candy companies are using the brains of Indonesian infants to make nougat...

 

[geldonyetich]

There is a way that small companies can protect themselves, and it doesn't even require an overhaul to our legal system. If you're worried that your little development studio might get crushed under the heel of (say) Activision, then there are some pretty easy things you can do to make it almost impossible for them to come after you.

This peaked my interest, considering one day I may well find myself in that situation. Alas, it seems it fell beyond the scope of the article to deliver.