I have been provided with a number of complete court documents from the Bethesda v Interplay case. This includes a document dated yesterday that seems to outline Bethesda's entire argument, and on the face of it seems to answer a lot of questions we've had.
In Short Bethesda are arguing that Interplay didn't meet the requirements of the TLA as they did not have the funding and did not start full scale development on time - and even if these requirements were met Interplay still can't use anything other than the fallout name. It also makes further arguments regarding the relationship between Masthead and Interplay.
Please note IANAL.
The 30 Million Dollar Question
Bethesda's argument on the 30 million dollars financing that Interplay was required to secure by April 2009 seems pretty damning.
They cite Interplay's SEC filings which show no evidence of such funding (but instead warn in 2009 they had more financial obligations than they could meet) and say that interplay would have been required to put this in their filings. So they effectively seem to be arguing either Interplay hasn't met the conditions or lied to the SEC - rock and a hard place. The SEC filings are publicly available online.
There are further revelations. There have been some suggestions that Interplay had an agreement with I2G for $US 15 million in financing. The sole employee of I2G has contradicted this in his deposition - he indicated that there was no binding agreement between Interplay and I2G for fallout online, no funding was available to them in April 2009 for fallout online AND any funding would have been limited to 5 or 6 million.
Which brings us to Masthead's funding of $ 20 million. Interplay have chosen to leave masthead out of the trial and call no masthead employees as witnesses. This is significant because the court has apparently already determined that Interplay can't verify these documents as evidence on their own - they need to call a Masthead witness to do this otherwise it's just hearsay and inadmissible.
So even if a Masthead was providing a billion dollars it simply wouldn't count unless someone from masthead takes the stand and says they are.
Full Scale Development
Full scale development doesn't look any better for Interplay. At the end of 2009 Interplay had a whole nine employees - five of which were in games development. Bethesda say a MMO requires a lot more than this - somewhere between 40 and 80 over various disciplines - Interplay in 2008 put the number at 53 to begin full scale production.
Further to this, looking at the amount Interplay has been spending on development it has been going down - not up. In the quarter ending March 31 2009 (so the last quarter before the cutoff date) Interplay spent a mere 65k on all development - a year on year drop of 3% - and dropped to 52k in the next quarter
Additionally Interplay have not entered any code as evidence that they're making a game.
For those of you wondering about the work Masthead may have done - it's excluded on the same grounds as any possible financing. An employee of masthead would need to stand up and say "we've done this" otherwise it is again hearsay - Interplay aren't calling anyone from Masthead.
Now we come to the sometimes ridiculed "Fallout name not Fallout game" argument. The court will only need to consider this if Interplay can prove they have the cash and started full scale development.
The argument says the Trademark License agreement is just that - a TRADEMARK agreement - not a Copyright license agreement whereas the purchase agreement bought the trademarks and copyrights.
This is significant because Fallout the name is a trademark - The stuff in the game isn't, those are covered by Copyright.
More on Masthead
Furthermore Bethesda are going to argue that Interplay have breached the license agreement by involving Masthead - arguing that this is Interplay sublicensing their rights which they cannot do without approval - the License specifically prohibits it.
Meeting of the Minds
Now we come to the bit where Interplay ask for the Fallout IP to be returned by arguing there was no "meeting of the minds". The argument for Bethesda is very technical but seems to basically be that Delaware law only looks at this in non written agreements. As there's a written agreement, then both parties are bound by it.
I have not as yet received an equivalent from Interplay but will post a summary like this if I get one...
I dont like to editorialise in news posts but on the face of it it isn't looking good for Interplay. One of the groups supposedly providing funding says they aren't, and the other Interplay won't call to the stand. Interplay effectively by their own admission haven't started full scale development at the very least in house, and if Masthead have, well again Interplay won't get the benefit of their evidence because they won't call them as witnesses.
I'm keeping the documents offline for now, and if my source doesn't object I'll post them in their entirety post trial.
Edit: 12 Dec. Why Interplay say they should get Fallout back, and Bethesda on why they're wrong: http://fallout.wikia.com/wiki/User_blog:Agent_c/Arguments_on_why_Interplay_should_(or_should_not)_get_the_Fallout_IP_back_-_Beth_v_Interplay. Agent c 18:51, December 9, 2011 (UTC)