Bethesda v Interplay latest -

Agent c December 1, 2011 User blog:Agent c

You may have already read this on alternative sites; but in the upheaval we've missed it here on our news service. Duck and Cover hasn't taken its eye off the ball however and has Interplay's response to Bethesda's Motion in Limme which you may remember from Cartman's news post on 8 November.

I'll not include DAC's analysis but I'll quote their quotes of Interplay's filing.... Unfortunately these snippets are secondhand so I can't swear blindly that the quotes aren't selectively chosen or miss something significant - but in turn I have no reason to believe are selectively chosen or don't miss something big.

Just to stress the following quotes are from Interplay's filings. They represent Interplay's (and their counsel's) views - not mine or the Wiki's.

BSW's Motion in Limine, and each request therein, should be denied in its entirety. BSW's Motion is not a proper motion in limine directed at threshold issues of admissibility of evidence. Instead, BSW's Motion seeks an order shifting Plaintiffs burden of proof as to certain essential elements of BSW' s claims to Interplay. BSW's Motion focuses on the sufficiency of evidence to support Interplay's arguments -- even though no evidence has been introduced and Interplay has not had an opportunity to present its case at trial. This is not a proper subject for an in limine motion.
BSW simply reasserts the exact same points that it has raised at least twice before with respect to the meaning and scope of the Trademark License Agreement ("TLA") -the very issues the trial is set to determine. The TLA demonstrates on its face that the parties intended for Interplay to create a "Fallout-branded MMOG" that would include copyrighted or copyrightable elements of Fallout intellectual property. To the extent the Court determines that the TLA is susceptible to different interpretations, the Court may look to parol evidence for indications of the parties' intent, or if it is determined that the agreement is susceptible to multiple differing interpretations, the Court will have to address whether there was a failure of the parties to have a meeting of the minds at the time they signed the TLA and the impact such a failure has on all of the transactions, including the Asset Purchase Agreement ("APA"), for which the TLA was consideration, or whether the conditions in Section 2.3 of the TLA are enforceable contract terms.

BSW's argument is legally incorrect. It is BSW's obligation to prove the existence of a valid and enforceable agreement, where all the elements of a contract exist, and Interplay's burden to prove its affirmative defense of license to the extent that the underlying agreements are not declared null and void for a lack of the meeting of the minds of the parties.

Because BSW seeks to escape its obligations under the TLA, BSW bears the burden to prove the occurrence of the condition subsequent (Section 2.3) necessary to terminate Interplay's rights.ld. This burden should include both proof of the meaning and interpretation of the agreement and particularly Section 2.3 among others, that the parties had the same understanding of the meaning thereof, as well as persuading the Court that Interplay's development and financing efforts were not sufficient to comply with the language of the agreement.
BSW's argument that it cannot "prove a negative" also is inapplicable. (See, Memorandum in Support of BSW's Motion at 7-8.) BSW again provides only a string cite without any analysis of the cases cited. Refusing to shift BSW's burden of proof to Interplay will not require BSW to prove the negative of a fact, as it contends. BSW's burden is no different than that faced by any breach of contract plaintiff, who must prove up the validity of the contract and then prove breach by showing a defendant's failure to perform. See VLIW Technology, LLC v. Hewlett-Packard Co. 840 A.2d 606, 612 (Del.Supr. 2003); see also, Gregory v. Frazer, 2010 WL 4262030 (Del.Com.Pl. Oct. 8, 2010) at *1 (plaintiff proved defendant's failure to pay per contract terms). To find otherwise would mean that in every contract case plaintiff would be able to shift the burden to the defendant to show that it performed rather than plaintiff having to prove that defendant breached.
BSW seeks an order precluding Interplay from arguing as part of its defense that it was in "full-scale development of the Fallout MMOG and had satisfied the requirements for "Minimum Financing" as of April4, 2009.
This is another attempt by BSW to sidestep the procedural requirements of a summary judgment motion.
BSW's logic in regard to the identities of Masthead employees being unknown makes no sense. By analogy, even though the foundation is laid, the walls are framed, the roof is installed and a construction crew can be observed working on the site, there is no evidence that a house is being built unless the particular carpenter who pounded a particular nail can be specifically identified. But the TLA does not contain any requirement that would have caused Interplay to scrutinize Masthead's pre-April 2009 work to that detail.

For example, Section 3.4 of the TLA itself creates ambiguity because, it works to terminate Interplay's right to use copyrighted material, which by its very nature must mean that Interplay had the right to use the copyrighted material in the first instance, or at the very least the parties understood this to be included as part of the agreement or why else would this language be necessary to take back something that was not understood to have been granted? It would by its very nature be superfluous.

Section 2.1 of the TLA authorizes Interplay to use the Fallout Trademark, not with just any video game, but: "on and in connection with its FALLOUT-branded MMOG" and not for any other purpose. (Emphasis added.) BSW focuses on the individual word "brand," divorcing itself from the context of the remainder of the TLA and the related transactions, and contends this means "Interplay may only use the name Fallout in connection with a game named Fallout." (See Memorandum in Support of BSW's Motion at p. 19-21.) Not only is this circular and awkward syntax, but to read the TLA as narrowly as BSW suggests defeats the purpose and intent of the agreement and renders the TLA meaningless.
This begs the question: What is the "Fallout-branded MMOG" to which Interplay is supposed to attach the Fallout trademark if it can't use the Fallout characters, creatures, locations, backstory, on something that has absolutely nothing to do with the Fall out world? That is absurd. One can just imagine if Interplay tried to get approval to put the name "Fallout" on a game that had people falling out of windows, what BSW would say. Most likely BSW would scream that this type of game does not comport with the look and feel of the Fallout brand and image and thus not approve the game. What constitutes the "Fallout-branded MMOG," is not specifically defined in the APA or TLA. This is because the parties already had an understanding as to what a "Fallout-branded MMOG" meant based on their three year relationship and course of dealing under the ELA. The ELA should not be considered parol evidence because Section 2.8 incorporates it into the later transactions and specifically permits the parties to rely on it as an aid to interpret the subsequent agreements.
In the event the TLA terminates, Section 3.4 of the TLA provides a detailed accounting of the Fallout-branded MMOG elements that Interplay may continue to use in a "non-Fallout MMOG." (Emphasis added.) Such materials deemed "Interplay-Derived MMOG Elements" include:
inter alia, any or all locations, graphic representations, creatures, monsters, names, likenesses, behaviors, religions, deities, environments, legends, fairy tales, stories, universes, character classes or character professions that are in the public domain, are owned by any entity other than Bethesda and/or its affiliates and/or licensors or otherwise are not subject to [Bethesda's] copyright or trademark protection.
Section 3.4 of the TLA further explains that the Interplay-Derived MMOG Elements are those which:
do not use, incorporate, trade on or otherwise exploit any Fallout-related intellectual property created by Interplay or by Bethesda or by their respective parents, subsidiaries, affiliates, successors or assigns, including without limitation any Fallout artwork, locations, graphic representations, story lines, creatures, monsters, names, likenesses, behaviors, environments (e.g., vaults), universes, settings, legends, characters, character classes, character professions, packaging, advertisements, text and translations, and any and all Fallout proprietary characters, trademarks, copyrights and artwork ...

Update: The following quotes are from Bethesda's response as posed on DAC:

Plaintiff/Counter-Defendant Bethesda Softworks LLC (“Bethesda”) respectfully submits this opposition to Defendant/Counterclaimant Interplay Entertainment Corporation’s (“Interplay”) Motion in Limine No. 1 (the “Motion”). In its Motion, Interplay seeks to preclude Bethesda’s expert from testifying at trial to opinions concerning the meaning of contract terms contained in the Trademark License Agreement (the “TLA”) and to Interplay’s performance of such terms, because such testimony is not admissible under Rule 702 and because Bethesda’s expert did not disclose such opinions in his report. Interplay’s request for relief is mystifying. Bethesda’s expert, Mr. Thomas Bidaux, will not provide testimony on the meaning of the terms contained in the TLA or on Interplay’s performance of those terms, and Bethesda has not proffered any expert testimony in this regard. The Court will determine the meaning of the terms of the TLA and whether Interplay satisfied those terms. Mr. Bidaux, who is a highly-qualified expert in the development of online games including massively multiplayer online games (“MMOG”), will provide expert testimony regarding the work that is necessary to develop such games and what development of a game means and entails in the online gaming industry. Such testimony is plainly admissible under Rule 702 and was comprehensively disclosed in Mr. Bidaux’s report.

Alternatively, Interplay seeks to exclude Mr. Bidaux as a witness because Interplay did not depose him during (or after) discovery. This request for relief is frivolous. Interplay did not depose Mr. Bidaux because Interplay refused to appear for the deposition that Interplay requested and Bethesda agreed would be held in the Washington D.C. area on October 28, 2011.


Bethesda worked to coordinate the schedules of these four very busy individuals so that the depositions could be arranged on consecutive days, in the same calendar week, during the last part of September.
Interplay has the burden of proving the “full-scale development” and “Minimum Financing” requirements of Section 2.3, which are necessary for establishing Interplay’s license defense. License is an affirmative defense and the burden of proving the existence of a license is on the party invoking the purported license.
Interplay should be precluded from arguing at trial that it satisfieed the requirements of Section 2.3 of the TLA.
The APA and TLA are plain, clear and unambiguous. The TLA granted Interplay a conditional and temporally limited right to use the single trademark “FALLOUT” and nothing more, in the creation of an MMOG.
(End edit)

I don't intend to editorialise in news posts; but a bit of Analysis for those of us without legal degrees is probably helpful. DAC's great point-by-point analysis sums it up by saying that this is Interplay ripping into Bethesda's argument and give the impression they think Interplay is winning - their analysis is definitely worth a read. Edit: Link to Bethesda response Here.

I'm going to be keeping a "living" blog article offering a summary of the past - how we got here and the current situation. As its not a news post it has a little more editorialising. You can view (as well as Critique and offer corrections) it here.

Edit: 4/12 - I'm closing comments on this due to excess vandalism.