Bethesda counters Interplay's counterclaim

Discussion in 'NMA News and Information' started by Brother None, Jan 12, 2011.

  1. Brother None

    Brother None This ghoul has seen it all
    Staff Member Admin Orderite

    Apr 3, 2003
    An anonymous tipster sent in Bethesda's counter to Interplay's "this is absurd" counterclaim. To not put a fine legalese point on it, it basically repeats their original claim and goes "neener neener".<blockquote>Ignoring these determinative facts, Interplay seeks to create confusion and ambiguity where none exists. Interplay’s opposition is in its entirety based on the unsupported contention that the term “FALLOUT-branded MMOG” is somehow “ambiguous.” Interplay seeks to introduce extrinsic evidence to alter the clear language and terms of the parties’ agreements. Parol evidence, however, is neither permitted nor warranted here. The term “FALLOUTbranded MMOG” is plain and clear on its face – it means an MMOG named FALLOUT. Bethesda gave Interplay a license to call its MMOG “Fallout” if it met the conditions of the TLA. (See Bethesda Mem. at p. 5.) Nothing else was licensed to Interplay. The APA and TLA also contain undisputed, unambiguous integration clauses prohibiting admission of extrinsic agreements or understandings.

    Neither the APA nor the TLA creates any duty or obligation on Bethesda’s part to allow Interplay the use of any Fallout related intellectual property assets which it unconditionally sold to Bethesda. In its opposition, Interplay fails to cite one single contractual provision in either agreement that would create such a duty. Instead, Interplay engages in a convoluted analysis of simple and straightforward agreements in a last-ditch effort to present parol evidence. Given the clarity of the relevant agreements, parol evidence is unnecessary and inappropriate. Dismissal of amended counterclaims I and II is warranted as a matter of law.</blockquote>Apply facepalms as needed.

    Guys, seriously, this is a transfer of a license which always implies transfer of related assets except where specifically void. Bethesda is essentially pointing to a lack of unnecessary provisions as proof, even after Interplay notes how this is contradicting their earlier legal stance.
  2. Brother None

    Brother None This ghoul has seen it all
    Staff Member Admin Orderite

    Apr 3, 2003
    I am both amused and horrified at the sheer incompetence of Bethesda's lawyers.
  3. Little Robot

    Little Robot sup Orderite

    Sep 29, 2010
    Maybe Interplay should take a stance of "it isn't explicitly stated in the contract that you aren't giving us rights to the Elder Scrolls series."
  4. Sicblades

    Sicblades Antediluvian as Feck

    Aug 28, 2008
    Although more amused.
  5. Beelzebud

    Beelzebud A Smooth-Skin

    Mar 6, 2008
    I never thought anything could make me root for Interplay, but here it is...
  6. Vik

    Vik It Wandered In From the Wastes

    Jan 6, 2011
    Here's something I don't completely follow - if Beth is making such silly claims, does it mean that Interplay actually signed a contact that only allows a MMOG to only be named FALLOUT and not have anything else related to it? I mean, if Beth thinks that this is enough to win the case, they must have something in the contract that backs them up, right?
  7. Brother None

    Brother None This ghoul has seen it all
    Staff Member Admin Orderite

    Apr 3, 2003
    Not really.

    The contract just makes no mention of it in which case the court will rule in favor of common sense. You'd think "they must have something" but this has been a farce since day one, with Bethesda somehow hiring lawyers horrible enough to keep an open-and-shut case going and going...

    Even if Bethesda had a point this is way, way too late to bring it up, which is why Interplay's lawyers (who are good) could point out how Bethesda is contradicting itself. If the contract had such a clear unambiguous clause it should've been brought up right at the beginning.
  8. Vik

    Vik It Wandered In From the Wastes

    Jan 6, 2011
    Maybe this point of the contract was kept as some last resort kind of a thing because of the nature of the claim.
    To me it seems like one of those small and absurd contract details that help win even the most ridiculous cases in America over the past years.

    I just don't see a company like Bethesda threatening Interplay with a pistol that has no clip, because it's clear they will have to fire it at some point to not lose.
  9. Ausir

    Ausir Venerable Relic of the Wastes

    Apr 20, 2003
    I posted it at The Vault with a few more details.

    While Interplay argues that sections 3.4 and 9.3.4 of the TLA support the interpretation that Interplay was granted the right to use elements of the Fallout setting, Bethesda states that the detailed accounting of elements of the Fallout-branded MMOG that Interplay would not be able to continue to use if it were not to satisfy the conditions of the license simply "confirms that Bethesda owns all Fallout intellectual property".
    Bethesda also claims that Interplay never allowed Bethesda to view any Fallout Online development documents, even though Interplay, in its earlier filings, invited Bethesda representatives to view them, but objected to copying of the trade secret document and publicly submitting it as court evidence. Bethesda also claims that it had not raised the issue of Interplay not being allowed to use any Fallout-related assets, only claiming breach of contract on the grounds of not fulfilling the financial and development requirements, only because "Bethesda only recently learned of Interplay’s multiple infringements from Interplay’s public marketing materials". Interplay actually started releasing materials using Fallout assets in June 2010, over 6 months before Bethesda made this claim.

    Bethesda also argues that Interplay should be denied additional discovery regarding the meaning and scope of the term "FALLOUT-branded MMOG". According to them, "For all the reasons discussed above, extrinsic evidence of intent is unnecessary, unwarranted and inappropriate here."
  10. Kyuu

    Kyuu Insert Awesome Title Here

    Jul 19, 2007
    I don't think Bethesda's lawyers have something up their sleeve. It's more likely that they are simply grasping at straws because they were outfoxed by Interplay's lawyers.

    However, I'm inclined to think this posturing is more the result of Bethesda/Vivendi pushing the lawyers or the lawyers simply milking Beth rather than the lawyers being as incompetent as they appear. Either Beth is refusing to accept that they've lost this part of the case and is forcing the lawyers to continue despite the lawyers advising them against it, or the lawyers are simply happy to keep taking the money Beth is throwing their way as long as they can get away with it.

    Of course, incompetence is always a possibility.
  11. Ausir

    Ausir Venerable Relic of the Wastes

    Apr 20, 2003
    Wait, actually, Interplay's proof of concept screenshots with super mutants and Nuka-Cola were admitted as evidence already in 2009.
  12. Brother None

    Brother None This ghoul has seen it all
    Staff Member Admin Orderite

    Apr 3, 2003
    Did you just actually yourself, Aus?
  13. Little Robot

    Little Robot sup Orderite

    Sep 29, 2010
    My God... what does this mean for the future of the Vault?

  14. Ausir

    Ausir Venerable Relic of the Wastes

    Apr 20, 2003
    Hah, I did! And I didn't even realize it!
  15. Threepwood

    Threepwood Look, Ma! Two Heads!

    Nov 4, 2010
    I don't get it, what did you do Ausir? :L

    Anyway, it's clear Bethesdas lawyers wrote the plot for FO3.
  16. Korin

    Korin So Old I'm Losing Radiation Signs

    Aug 6, 2010
    World of... Fallout... craft?
  17. Idiotfool

    Idiotfool Still Mildly Glowing

    Apr 12, 2007
    In case you're serious, Ausir Aursired himself.
  18. CrzyFooL

    CrzyFooL First time out of the vault

    Oct 18, 2010
  19. UncannyGarlic

    UncannyGarlic Sonny, I Watched the Vault Bein' Built!

    Feb 6, 2008
    Read the contract(s), there are links available here and, I believe, on the Vault. I read it back when it was first released and, if memory serves, there is a failure to meet clause which states that Interplay must hand over/remove all materials (it lists things like art objects) which are protected under the Fallout copyright, so it's pretty clear that assets beyond the name were included.

    This isn't the first bogus claim they've made in this case and it's unlikely to be the last. Don't forget that they fired the first firm they had representing them for being extraordinarily incompetent.
  20. LionXavier

    LionXavier It Wandered In From the Wastes

    Dec 29, 2007
    I'd call it "karma" :D (uh... do you think Beth's gonna sue me for using this well known term from the Fallout trademark without an express permission contract for doing so?)

    If that point had existed all along, they wouldn't have waited to use it as a last resort.