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Partial Transcript Leak 12 Dec - Bethesda v Interplay

Agent c December 23, 2011 User blog:Agent c

I've received a partial transcript from the 12th of December hearing in the Bethesda v Interplay Case. As you may expect it includes legal antics from both sides, as well as a few tidbits from [Fallout Online]. Due to the nature on how my source received these, they are difficult to read, so I may have missed some points - I'll update this posting with anything else that comes to light.

From the Courtroom

The part transcript seems to be an argument about the admissibility and relevance of one of Interplay's pieces of Evidence - an internal wiki. In part it gets rather humorous as the concept of a wiki is explained to the court (This was at her honours insistence that this be described for the court, although I have a feeling this was more for completeness sake as she worded this as "".

A lot of the proceedings seems to resemble a schoolyard fight over the format that the evidence was in, and the timeliness of it being provided.

A lot of Interplay's evidential documents were marked "Attorney's eyes only", meaning that Bethesda's lawyers couldn't actually discuss some of the evidence with Bethesda to determine the context and value of it - and what counter evidence they may be able to bring to the party. Sometimes Interplay would allegedly provide a document but not actually mark what it was, and what it purported to prove, leaving Bethesda's lawyers apparently scratching their heads.

Wiki documents were allegedly produced by Interplay with the print date on them, rather than the actual date of the version of the document (this is important, as stuff after April 4 2009 doesn't count - Interplay had to start full scale development by then), electronic access to said wiki (frozen at April 4 2009) was allegedly provided only later on, after discovery. This seems to have confused the Bethesda legal team, and they seemed unfamiliar with how wikis work - specifically that you can tell them to show you an older version of any given page.

Bethesda are also arguing that as the wiki was changeable by anyone in Interplay that its hearsay, as no-one can testify that it was definitely in a particular state on April 4 2009.

Mr Caen states that his understanding of full scale development was they had to prove they were really making a game. Apparently on April 4 2009 Interplay had their aforementioned wiki with 2400 pages detailing the game mechanics, classes, etc. Apparently he also had difficulty getting a meeting with Bethesda to discuss the content of Fallout online.

What have we learned about Fallout Online

The Caen brothers are intimately involved in the development of Fallout Online - they contribute to Interplay's internal development wiki that serves as a design document.

There is at least a 90 second gameplay video in existence. Eric Caen has apparently played the game, although this was using bits and pieces from Masthead's other game in order to make it usable.

There are classes in Fallout Online (unknown if this just refers to play styles ala Fallout, but given how MMOs seem to be constructed, I don't think this is likely - I think we're looking at proper classes ala DnD, WoW, etc). These classes include the "Warrior" class.

There is reference to "New races not in the original Fallout series" and to a group of "Creepy Kids"; there are also references to "Sykers" and clones.

Housekeeping and Q+A

At this point, I'd like to remind everyone again, I am not a lawyer, and I don't have any personal experience with US Federal court procedures. As such, I am not in a position to answer any questions on these subjects, and will refrain from doing so.

I am unable to provide the source documents, at least not at this time. My agreement with my source is that I don't reveal who they are, and I don't onward distribute the documents themselves. I can summarise, and quote from them, but thats it. Please do not ask - I cannot send you a copy.

However, if you have questions on the content of any of the documents I've reported on, or any of the documents you've seen reported on another Fallout site (chances are I probably have that document, my source sent me the back catalogue when s/he first contacted me), I am happy to answer these - to ensure your question isn't missed, drop a line on my talk page, and (presuming its within this scope) I'll both personally respond to you and include the Q+A on the next Beth v IPLY post. If there's something you're looking for a bit of a quote on from the docs I am happy to provide.

Edit: First Q+A;
Q: What is going on regards Bethesda's arguments about the marketing of the "Fallout Trillogy" (Fallout 1/2/Tactics) pack?
A: Both sides have previously agreed to drop this from the case (Bethesda raised it, and Interplay agreed). The case now just concerns future Fallout games.
Edit 2: Next Q+A;
Q:I thought the reason for the whole lawsuit was to determine whether or not Interplay had the money to start developing Fallout Online at a certain date. If they did, why not show the proof? Why go all the trouble to get the franchie back when it appears irrelevant?
A:Thats how it all got started - did Interplay meet the terms of the Trademark Ticense Agreement (TLA) ie- did they have the cash and start full scale development. However its snowballed a bit since then. I'll skip the marketing issues on F1/2/Tactics for now, and jump into the IP ownership debate. Bethesda started to argue that the TLA didn't say what Interplay thought it said - Interplay understood it to mean they could use characters, images, etc from the Fallout series in Fallout Online; Bethesda started to argue they could not, as the content of the game is not covered by a trademark, its covered by Copytight (i.e.: the names "Fallout", "Fallout New Vegas", etc are "Trademarks". The Character of Harold, NukaCola, the Vaults, etc, are covered by Copyright).
Because of this disagreement, and some other clauses in the TLA, it is now Interplay's position that the TLA isn't a invalid contract because its ambiguous; if the TLA is invalid, so is the entire sale of Fallout according to Interplay as the TLA is a key part in that agreement to sell.

Edit 24 Dec - Interplay Earnings report

Interplay's earnings report has been delayed until Jan 4. The only major reasons to do delay an earnings report is if you don't have the information, or if there's something unsettled that you need to wait for. This suggests to me the verdict is almost certainly not in - why else risk the SEC's ire?

Until next time.... Agent c 01:49, December 23, 2011 (UTC)

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