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Interplay: The court has not yet ruled

Ausir October 30, 2009 User blog:Ausir
Bethesda vs Interplay

Frymuchan, one of the Interplay stockholders, has posted about the court supposedly ruling in Interplay's favor in the preliminary injunction of the Bethesda v. Interplay case. However, it turns out that he mistook a proposed court order submitted by Interplay for an actual one. Christopher Nelson, Interplay's in-house lawyer stated:

Hey, everybody.
You will not often hear from me, but as Interplay's in-house lawyer I feel the need to set the record straight here...
The Court has not ruled on Bethesda's Motion for Prelminary Injunction. A proposed order was filed with our Opposition to the Motion, but that is not the same as an Order of the Court. The hearing is weeks away. Interplay will issue an official statement if there is a material development that needs to be addressed. Please do not rely on rumor or speculation.
In the meantime, we all appreciate your enthusiasm and support.
Thanks,
Chris

Meanwhile, we have a copy of Interplay's opposition filing to Bethesda's injunction motion, which includes its arguments. Interplay argues that:

  1. The Asset Purchase Agreement (APA) does not limit the bundling of the games nor distribution channels and it allos Interplay to sublicense it to other publishers and release digital download versions.
  2. Interplay did not violate the provision that does not allow it to "use, refer to, trade upon, reflect the look and feel of or otherwise exploit any of the Fallout games or products...developed by or for Bethesda or its licensees.", as the Fallout Trilogy pack was first published under this name before Bethesda purchased the rights, and thus it is not bound to Bethesda's approval. The package also clearly shows that it does not contain Fallout 3.
  3. Interplay also claims that Bethesda's refusal to let Interplay promote Project V13 using the Fallout trademark had a direct negative impact on the company and was done in bad faith. Interplay initially submitted a version of its website that featured Fallout Online for Bethesda's approval, which was denied, then Bethesda refused to approve a website that featured Project V13 without the use of the Fallout trademark because the art "relates to a possible MMOG based on Fallout". The art was removed, but there was no response from Bethesda on further approval requests.
  4. The APA states that it can only be wholly undone, not partially, which means that Bethesda cannot revoke Interplay's rights to releasing original Fallout games without giving Interplay ownership of the franchise back and reverting to the earlier Exclusive Licensing Agreement. Thus, Interplay cannot be in violation of trademark since the APA is not invalidated.
  5. Interplay claims that it satisfied the terms of the Trademark License Agreement, which under certain conditions gives it the license to develop Fallout Online, arguing that "full production" is an undefined term that simply means "production stage", which was entered when Masthead Studios was contracted to co-develop the game. The 30 million USD that the TLA states Interplay must raise to keep the license is, according to Interplay, not defined as having to be held in its account or that "the entirity of the funding must be received in a single installment or a single line of credit", and that "no provision of the TLA requires Interplay to spend US$30,000,000, or any other amount, to create the game. Thus, the funding requirement serves no material purpose." Thus, Interplay argues that the funding requirement was merely a means of quality control and the Masthead arrangement satisfies this condition.

While I doubt they will be able to keep the Fallout Online license, I think that they actually have a pretty strong case on the rights to the original Fallout games. And if Project V13 gets canceled, I very much hope I can somehow get my hands on "more than 600 pages of extensive game design documents detaling, without limitation: characters, character abilities, equipment and in game items, weapons, concept art, story outlines, and environment descriptions, among other game information" that the team led by Chris Taylor and (originally) Jason Anderson produced.

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