Who knew court transcripts can be so much fun!
BTW,
on second thought, after reading some transcripts, it may not be a good idea for Interplay to hire Bethesda's ex lawyer nor the firm DLA Piper who happen to be Bethesda's lawyers through the Asset Purchase agreement. Sucks for them I guess.
"MR. MARBURY: Very briefly, Your Honor."
This is how DLA Piper's Marbury starts on a long winded statement at least 87 lines long. That is pathological manifestation of lying at its finest.
The football parlance would be: we played awfully well.
Which one was it? Awfully? or Well? combining them balances things out to provide neither. This is textbook pathological behavior. 87+ lines is not brief and everybody in a court of law sees that if you cannot trust the lawyer to back up his words, can you trust his arguments?
here's another lie that may have led to the dismissal of DLA Piper in favor of the next in line firm to argue this convoluted case:
MR. MARBURY:....."What Mr. Gersh failed to point out was that Interplay was also represented by counsel"
"So, we think that our case is a clear one."
Amateur hour lawyer expose:
"MR. GERSH: I just want something to be very clear.
Mr. Marbury said that Interplay was represented by counsel in
the negotiates. Not true. Didn't come out in his deposition.
Mr. Caen represented the company, handled the transaction
himself. Did not have counsel go over the document for him.
This is seven people on one side, one person on another. This
is how the document came out."
It's funny how DLA piper does not remember the important event of signing a contract and contradict themselves in amateurish ways in front of a judge.
"Q. Were the rights limited geographically in any way?
A. No, they were not."
Not limited in any way and then they argue that an existing compilation that came out in 2006 and was available for sale in the United states and Europe from 2006 and also when it was released is not allowed to be sold in the US in 2009 because a Bethesda Employee spotted it on store shelves and in their head that is a new "never before seen" product that violates Trademark rights of a product that was sold 1 year after such games first appeared.
The inability to process simple cause and effect is detrimental to your ability to competently argue a case in court.
The idiocy of the testimony of the COO of Bethesda continues:
"In 2007, when the company entered into this agreement, did
it believe that Interplay retained the rights to sell their
pre-existing games by digital download?
A. No.
Q. And can you tell me why?
A. Because I believe that this was, you know, a mechanism --
Fallout was, like I said, an IP established by Interplay in the
late '90s. The original Fallout game was well received by a
very niche group of people. It was not a well established or
promoted brand.
It wasn't something that was really, you now, a
triple A mega hit title. It was a good title for what it was,
and this clause allows Interplay to be able to sell those
original games, some of them better than others, according to
those Meta Critic scores that I told you, as a nod to the
nostalgic, the fan that would want to go back in retrospect.
You know, purchase the product and it allows them to continue
to sell whatever inventory they may have had in their
warehouse, et cetera."
"Okay. So what did you think that they were planning to
sell, Interplay was planning to sell back in 2002?
MR. GERSH: His personal observation --
THE COURT: Sustained.
MR. GERSH: -- what he thought, is irrelevant.
THE COURT: Sustained."
The deposed COO was trying to define that Interplay should not be allowed to sell the games online because in his mind the original games came out at a time that digital delivery was non existent and or not feasible and that should prevent it due to the age of the games and the nostalgia of such and it should not be sold even though that is not stipulated in the agreement.
In essence, don't you dare make money on this game since we don't want you to enjoy your part of the contract and we are going to pretend that your games are our property so we can get our hands on the Spring 2009 Top 10 surprise sales of Fallout Trilogy.
The alternate reality of Fallout Trilogy non existence is exposed for the silliness of presumption:
"Can you describe what Fallout Trilogy is?
A. I understand Fallout Trilogy to be an amalgamation of a
couple of the games that Interplay has the rights to, under
this agreement, in a new package, with a new design, something
that isn't listed as one of these four titles.
Q. Do you have an understanding of when Interplay first
offered Fallout Trilogy for sale in the United States?
A. I believe it was in early 2009. I was made aware of it
originally by my VP of sales, who was on a sales call at
WalMart, in setting the plan-a-gram, which is the run of
products in the video game space, and as he was setting the
plan-a-gram the buyer was walking him through, he saw a place
next to the Fallout Three package, a Fallout Trilogy package,
and so he took a shot with his camera, emailed it to me and
that was the first time I was ever aware of anything called
Fallout Trilogy.
MR. GERSH: Your Honor, I'd object to the testimony
and move to strike everything after the date where he said that
he found out. Everything else is hearsay and based upon
something that somebody else told him."
This defense, although correct and sufficient for the rebuking of the injunction, is inadequate long term in my opinion. All they need is to subpoena nma-fallout.com posts from 2006 to find out that the purchase of the compilation games(including Fallout Trilogy) over the internet and through reputable distributors in the US(available on Amazon.com, etc....) was discussed by the more informed and less wealthy legion of rabid Fallout Fans.
"THE COURT: Okay. I understand that perhaps the
Rules of Evidence are not quite as strictly applied at this
proceedings. I'm going to take it subject to your objection in figuring out what weight to give it as we move forward.
MR. GERSH: Very well, Your Honor. Thank you.
THE COURT: Um hum."
"Q. How do you know what an MMOG is?
A. One of the divisions of ZeniMax Media, ZeniMax Online
Studios, is currently in production of an MMOG and has been in
production for a number of years.
Q. Is it a Fallout MMOG?
A. It is not."
After all the character self assassination of the previously proven lying that has been spewed out of the mouths of the Bethesda lawyers and the deposed COO, we get the answer is a "no" but can we actually believe them and more importantly should the court just take their word or should we ask for a more thorough investigation maybe of their IT infrastructure at their second office in Maryland?
There's bound to be lots of concrete evidence in contradiction of his statement.
"Q. Did Interplay have the right to transfer their license and
right to use to the third party?
A. No.
Q. Why do you say that?
A. It says that it's a non-transferable license and right.
Q. Did Interplay have the right to sublicense its license
rights to a third party without restriction?
A. Not without restriction. I believe with prior approval
they had the right to subcontract work or hire people, but --
Q. Prior written approval from whom?
A. From Bethesda."
Aha, they can subcontract the work but he believes that prior approval is needed. We shall see if he is stating the legalese truth or just assuming it.
What he just did was allow for an opening that you can drive a semi truck through.
"Q. Let's go back to 2.3. Do you know what was meant by $30
million, secured financing in the amount of $30 million?
A. I do. Secured financing means that --
MR. GERSH: Objection, Your Honor. What his
subjective understanding of what that meant is irrelevant.
THE COURT: Sustained."
Did he just hint that there is not clear data about the exact terms of securing financing?
I smell a Whole can o' worms opening up here.
"THE COURT: Then I don't need to hear from anybody
what they think it means. You need to persuade me that as a
term in the English language, it requires no definition, I
assume.
MR. MARBURY: I will move along."
Right along to no longer representing a now sweaty Bethesda.
Maybe we need them to move to the steamy sauna room of arguing out the case of the contract in more time consuming detail at a yet to materialize trial?
They should probably get a backup set of lawyers just in case the new lawyers perjure themselves in front of the tax payed for US court system.
Interplay's lawyer GERSH stalls with going back and forth on the court admissible authenticity of downloading a legal SEC filing document attesting to the financial state of Interplay and whether or not that proves that the funding for the game was not available by the deadline date even though the Asset sale agreement is not clear on the terms of the methods of availability of the funding and whether or not we can trust that Interplay had gotten a 15 million line of credit in 2008 as stated/refuted in the hearings which to be honest is pretty confusing since even though we know we cannot trust Bethesda, can we trust Herve Caen or any of the lawyers?
Can we trust the judge to understand the nuances of any of this stuff that she probably never heard of before the case?
We haven't even touched on the transcript's intricacies of who decides what full scale development means.
There's a lot more mud to be thrown around by both sides which may end up being a lose lose situation for both sides and a win for Fallout Fans who don't want an MMO to see the light of day.
That's not good business sense in my opinion but then again, Bethesda and Interplay seem to have lots of money to burn on lawyers and lots of time to waste.
Domage.
I know it's a long winded post with lots of comment by myself but you have to understand that it's 217 pages of testimony.
Hope this enlightens some to the mediocrity that runs the world that destroys video gaming as we know it.
There's a reason why the tried and true biblical scripture tells people to settle matters before going to court. It's the sane thing to do unless you want to go back and forth forever seemingly.
DLA Piper's Marbury's does give a shout out espousing the importance of what is said and believed on the blogosphere as he termed the fan websites and how that affects the value of Bethesda's IP.
If they're very sensitive about the IP, then why release the monstrosity that is Fallout 3 and talk about continuing the legacy of Fallout.
If anyone wants to send the Judge any public comments in case these two do not settle, send them to my inbox.
I do believe that we have to submit them under our own names though and they did discuss the common good and the fans in the court so maybe it would be a good thing for the judge to hear from the fans. Please do be civil though. The transcripts showed way too many "Your honors" being spewed by both sides.
The Court demands respect. That's the least we can give judges when they have read an endless stream of court documents and supporting proofs.
Disclaimer: you don't have to believe any of the transcript quotes I provided. Something about the "truth shall set you free" makes me feel nonchalant and easy as breezy about the whole thing knowing full well that my hard earned tax payer money is being used to allow this sham to be presented in front of a judge.
Will they go to court again or will they settle and give us a Fallout MMO? Why don't they combine their efforts to allay the risks three ways between Bethesda, Interplay and Masthead?
It all boils down to greed. more to come but I'm kinda tired
