The Litigation Hammer

[Sartan0]

This is a case where having a good lawyer review a contract before you sign it is worth avoiding the later (much higher) legal fees or worse losing your creations.

Ounce of prevention pound of cure situation. Educating new and small developers about this would help a great deal. As Shamus says: ( I am paraphrasing) this is the system we have. There are ways to make it work better for you.

You're missing the point. This isn't about them being screwed by a bad contract. This is when people have perfectly reasonable contracts, don't break them, and the big company sues them anyway. The big company should lose from a legal perspective, the only reason they don't is because they have so much money they can get the legal battle to drag on long enough for the small guys to go bankrupt.

That is a danger yes but some of this is not reading the contract. It makes it easier for the bigger company. Why make it easier for them? One possible solution is to get smaller companies to pool some of their resources to use when one of them is picked on.

 

[RvLeshrac]

thepi, my point was that you do not need a lawyer if you are going into the fight with nothing to lose.

You mean like your house? Your family?

You have a *LOT* to prove to a judge if you want to act as your own attorney. Many judges simply will not allow it, and will declare a mistrial, before allowing you to tank your case and lose everything you own.

This is a case where having a good lawyer review a contract before you sign it is worth avoiding the later (much higher) legal fees or worse losing your creations.

Ounce of prevention pound of cure situation. Educating new and small developers about this would help a great deal. As Shamus says: ( I am paraphrasing) this is the system we have. There are ways to make it work better for you.

You're missing the point. This isn't about them being screwed by a bad contract. This is when people have perfectly reasonable contracts, don't break them, and the big company sues them anyway. The big company should lose from a legal perspective, the only reason they don't is because they have so much money they can get the legal battle to drag on long enough for the small guys to go bankrupt.

That is a danger yes but some of this is not reading the contract. It makes it easier for the bigger company. Why make it easier for them? One possible solution is to get smaller companies to pool some of their resources to use when one of them is picked on.

So, do you REALLY think that these companies don't have lawyers reviewing contracts before they sign? Respawn (nee IW) is certainly going to review their future contracts, but I *guarantee* that they will encounter the same type of dispute. The issue is that the contracts were read, deemed fair, and adhered to. Then the companies were railroaded by lawyers who make more in a month than they make in a year.

 

[lomylithruldor]

I wasn't saying that the system couldn't be improved or that we should just accept it, I was more warning against the kind of kneejerk changes people want to make when they hear stories like this.

"Oh they should just make it so that big companies have to pay some crazy tax if they want to sue a little company."

Stuff like that. I guess I shouldn't have said you "couldn't" fix it, just that it's harder than it seems at first glance.

Well, a simple fix would be to place a soft cap on what corporations can spend in legal fees to sue other corporations. Say, ASSHOLE inc. can't spend more than 25% of VICTIM llc.'s net worth in legal fees. Something like this premise exists somewhere else, I just can't remember where, so its not a completely new precedent. Then any attempt to circumvent this cap is already a crime (faux pro bono, falsified billings, etc), meaning it would be an incredibly simple matter to expose once the case goes to trial, and every lawyer involved would be close to instantly disbarred.

But, of course, that brings us to a way the system is actually corrupt. There is no way in hell such a law would ever get passed. Literally every law firm in existence would suspend all other operations to fight in every way possible anything resembling a cap on allowable legal spending. Any and every remaining private land containing one or more trees would be clear-cut (at the owner's profit) and all the old paper mills would have to be reopened just to keep up with the amount of shit that would be filed. The whole of washington DC would be buried under an ocean of paper. Not even mentioning lobbyists.

So you're saying that a company can't defend his IP as well as he could? That will only make small company copy IPs so much that the big one can't sue the small one on all the IPs that got stolen. That would be a lot worse than what we have right now.

 

[Sartan0]

So, do you REALLY think that these companies don't have lawyers reviewing contracts before they sign? Respawn (nee IW) is certainly going to review their future contracts, but I *guarantee* that they will encounter the same type of dispute. The issue is that the contracts were read, deemed fair, and adhered to. Then the companies were railroaded by lawyers who make more in a month than they make in a year.

In some cases yes. Where is your evidence that it never happens? As I suggested in my other comment it is time for other legal solutions and possibly forming some kind of pooled fund to combat baseless claims. The situation could be improved through the actions of all the players involved. I do, on the other hand, realize that small developers are just trying to make games. So likely it would take someone making it there mission to set something up.

 

[RvLeshrac]

So, do you REALLY think that these companies don't have lawyers reviewing contracts before they sign? Respawn (nee IW) is certainly going to review their future contracts, but I *guarantee* that they will encounter the same type of dispute. The issue is that the contracts were read, deemed fair, and adhered to. Then the companies were railroaded by lawyers who make more in a month than they make in a year.

In some cases yes. Where is your evidence that it never happens? As I suggested in my other comment it is time for other legal solutions and possibly forming some kind of pooled fund to combat baseless claims. The situation could be improved through the actions of all the players involved. I do, on the other hand, realize that small developers are just trying to make games. So likely it would take someone making it there mission to set something up.

1) It does happen. It happens less often than you think. Additionally, the claims aren't "baseless," or they'd be thrown out as soon as a judge saw them. The basis, however, is usually technical, not actual, breach.

2) This has already been offered to game developers and other IT workers, many times, in the last 40 years. The majority keeps saying that they don't want unionisation, however, so benefits like collective bargaining and collective legal defence are out of the question.

 

[DTWolfwood]

now i know why fat ppl sue McDonald for getting fat. why coffee drinkers sue Starbucks for having hot coffee. why smokers sue Marlboro for getting cancer. Its just ezier/cheaper to pay them off than to take them to court! XD

Guess it works the other way around too!

 

[MGlBlaze]

Such is life. I'm boycotting Activision right now but I doubt it's making much difference (the last game of theirs I bought was THUG and the last new game was True Crime: Streets of LA).

I think I'll join you. I'm not sure why I never heard of all this Activision stuff beforehand; I guess I need to start paying attention more.

Anyway, that makes two companies I'm boycotting; Activision and Ubisoft.

 

[FlipC]

So the knee-jerk reaction is to punish the rich companies for doing this or put a cap on how much they can spend; why? If the problem is one side outspending the other than put into place a system that means neither side have to pay anything.

In civil matters such as this the court appoints two attorneys to represent each side. The loser pays damages and the costs of both attorneys. Now if one side has a lot of money they can hire an extra team of lawyers and even have them represent them in court, but they won't get the money directly back and the other side need not spend anything

Is that too simple?

 

[Optimystic]

This is why independent gaming needs to rise. If ShootGuy could have been published without sitting at the signing table with Kotick and his spawn, then there would be no legal battle left for them to fight. We can't lose if we don't play.

It would also be nice to have some lawyers that are committed against being evil (pipe dream, I know.) A lot of great pro bono work could go towards defending independent developers from exploitation like this, even if it lacks the same PR-hype as defending a homeless shelter or whatever.

And of course, the moral of the story: do your damn research before signing a contract.
And have contingencies.

edit: a flood is coming, and the animals are running. A frog comes to a riverbank, and sees a scorpion unable to cross the river. The frog gallantly swims the arachnid across, after which the scorpion stings him.
Dying, the frog asks why, to which the scorpion says, "you know what I am".

Except in this case, it's more like the scorpion carves out the frogs guts and wears his skin, allowing him to continue swimming across the river unimpeded.

An excellent analogy.

 

[Banaticus]

Don't just boycott Activision. Boycott the Vivendi/Sierra/Activision/Blizzard company. Don't let Blizzard and Sierra and Vivendi slyly get the other part of the giant company to do all the dirty work and to make a bad name for itself while the other parts of the company get to pretend they're clean. Boycott World of Warcraft. Boycott everything made by the giant company (which is a lot bigger than just Activision).

It's the only way they'll feel any real pressure to clean up their act.