Comedy addendum: they really did invoke the “wrong company” defense.
This is the first time we expected something in 2 weeks and CIG delivered early!
Ok, so here’s my take on the matter. I’m not a lawyer, but whatever. There’s 5 things being claimed here.
1. CIG created two games when they were limited to one.
Take: This one might get tossed depending if CIG can convince the jury that SC and SQ42 are NOT two games.
2. CIG was to only use the Crytek engine.
Take: This is entirely dependent on the interpretation of the language of the GLA (which isn’t entirely clear), and if it can be successfully argued or not that Lumberyard is CryEngine.
3. CIG was to use CryEngine branding on the first loading screens.
Take: This one is largely open and shut. CIG did not.
4. CIG was to send bugfixes to Crytek.
Take: Again, largely open and shut, with Crytek a paper trail of CIG not returning code on request. The burden is on CIG to disprove this one.
5. CIG was to keep code secret.
Take: This is largely open and shut, though I expect CIG to say that the code is on github at some point.
So that’s 2.5 dunks, .5 “eh” (copyright stuff), and 2 potential hard things for Crytek.
I am so confused right now. Are they trying to ninth-dimensional-chess their legal defense?
It’s amazing. Their position is basically that 1) the GLA gives them license to use it in both the Star Citizen and Squadron 42 game, and that 2) even if it didn’t, they aren’t using it anymore so what’s your beef?
Also, hands up who called this first because I know for a fact someone did
Waitaminute, what’s this?
During the Term of the License, or any renewals thereof, and for a period of two years thereafter, and for a period of two years thereafter, Licensee, its principals, and Affiliates shall not directly or indirectly engage in the business of designing, developing, creating, supporting, maintaining, promoting, selling, or licensing (directly or indirectly) any game engine or middleware that compete with CryEngine.
That looks, uh, pretty damning…
Can’t omit their “You’re suing the wrong shell company so it should be dismissed.”
no basis for naming RSI as a defendant to either claim in this action. Accordingly, the claims against RSI should be dismissed.
Interesting stuff! The bits from the GLA that stand out to me so far are: (note: I have no legal training or expertise.)
WHEREAS Licensee desires to use, and Crytek desires to grant the license to use, the “CryEngine” for the game currently entitled “Space [sic] Citizen” and its related space fighter game “Squadron 42,” together hereafter the “Game”, pursuant to the terms and conditions of this Agreement;
I’d have to read the complaint again, or maybe there’s something else I’m missing, but it does sound like CIG is covered in this respect.
RSI is proud to reveal that we never had any license agreement with Crytek, as part of this ip infringement legal case.
Ladies and Gentleman of the Jury, please rise as we present the prosecution’s surprise witness: Dr. Derek K. Smart. The Court advises the Jury to please permit the esteemed witness to fucking finish.
I’m calling the mother of all tweetstorms for today.
I’m not an IP litigator (although I do know one who works in CA and who I might be able to get to weigh in), so I’m not going to comment on the merits. I’m going to comment on the drafting.
The way that document is written says an awful lot about CIG’s priorities. I feel for the lawyers who had to write it, because I’d bet money they had Chris and Ortwin leaning over their shoulders demanding stuff as they drew it up. Statements of case are supposed to be calm and clear summaries of a party’s position; this one rages about those big CryTek meanies and how crap their arguments are. I’ve worked for egomaniacs and I recognise the signs. We’ve got:
1. A lengthy rant at the start about how mean CryTek are and how they tell filthy filthy lies. This doesn’t actually win points with judges (maybe juries, but even then…). The court’s got a dozen files to get through today, they don’t appreciate having to wade through your detailed allegations about what grade of cock the Plaintiff gargles.
2. A decidedly aggressive tone in the first few pages, i.e. the ones an investor or backer are most likely to read. This is the real “fire and fury”, a ferocious defence that plays to the crowd and reassures them that their money is safe. Obviously CIG would like to see their motion to dismiss succeed, but it’s rather akin to the injunction Skadden opened with; a furious counterattack to show how big their law-peen is.
3. A fanatical need, in the first few pages, to state that CryTek’s statements are false. Okay, we get it, why every time you use the word “statement”? Because someone was breathing down the drafter’s neck about how incredibly evil CryTek are and demanding that they put in how all their statements are filthy lies. I wonder if Chris is the kind of client who demands personal signoff on case papers?
Matters then calm down for a while, probably because Chris didn’t read that far and because FFKS actually need to set out the technical details of their case, but then we start up again with….
4. An _entire section devoted to saying how wonderful and blameless Ortwin is, and how his reputation is irrevocably harmed by nasty things said about him on websites.
This isn’t even relevant to the defence anymore. Presumably it was drawn up in response to the earlier allegation and then left in on Ortwin’s orders so there was a public statement refuting the mean things Skadden said about him (and his peon, who gets namechecked once). That tells me all I need to know about Ortwin.
Summary: CIG’s egomaniac executives are bleeding through onto the page. It hasn’t compromised anything yet, but this would provoke some eyerolls in most courts. They’re still playing to the crowd, which is an understandable and rational response but does leave open all the comedy meltdown options this thread dreams of.
one of CIG’s lawyers:
Who else is frustrated by the lack of GIFs and emojis in Outlook? Or is that not yet an appropriate way for outside counsel to communicate?
you’d have to be a total retard to think that CIG’s version was fact. “Crytek LITERALLY gave us CryEngine FOREVER, and no one else is EVER allowed to use it!”
Fucking retarded. CryTek is a company that survives purely on people using it’s fucking engine you fucking retards. RETARDS. WALL TO WALL RETARDS. LOOK AT THE RETARDS.
I swear, when this come to trial, and CIG’s crew is called into the room, if this doesn’t play while the Judge yells at the top of her voice “LADIES AND GENTLEMEN! THE RETARDS FROM CIG!!! (and the idiots defending them)”, it’s a missed opportunity.
I find the way he printed his name and position within the company even funnier tbh and bonus points for not knowing what the date was:
This may sound a bit flippant but afaik development of SQ42 started in 2011-2012, with CryEngine. Not in 2016 with Lumberyard. Lumberyard switch was announced in December 2016 whereas SQ42 carved out and marketed separately from the Game was announced on February 2016.
There is at least 11 months worth of CIG apparently and intentionally breaking the GLA in terms of “Game” definition (scroll to page 24, Exhibit 2 here: https://drive.google.com/drive/folders/1mPjfXrjAf9RUq3_5cJgd-hF-I5XoCQta) and/or engine use rights. And probably more in terms of engine exclusivity as a whole.
Beet Wagon
So if I understand this correctly, it seems like one of their main tactics going up against one of the best law firms in existence is the very same tactic they used to try and avoid giving a bunch of neckbeard idiots their money back. A tactic which failed against people with little to no understanding of the law, who were only in the fight for a couple hundred bucks. Against Skadden.
No, actually. It’s the other other company.
Furthermore, CIG/RSI/15 others didn’t use lumberyard or even cryengine, because there is no game.
TheAgent
omg there is a section arguing that this is tort not contract law and I am fucking dying
like never has a legal document made me lol this much
TheAgent
there’s almost no way I can follow almost anything they are saying
although to sum up for non-legal peeps its basically
Crytek is a big stupid meanie. Look at them play to the Fake News Media and slander us. They are really, really awful. Also, they are bad at contracts. They don’t even know what a contract is or the right person to sue. We didn’t do anything wrong by breaking every part of the GLA we attached, if you listen to our insane interpretations of it. This shouldn’t be in court, at all, and is a sham and a lie. Let me tell you about tort law. Also we took everything about tort law and copied it directly from the first Google result lol no they really did
Derek Smart
OK, I’m done. Now to review it and fired it off. Seriously, aside from my own bias, I was hoping that RSI/CIG had something (like the Ortwin waiver) which would have at least made this a worthy fight. By dayum, they have like…nothing. At all.
If they filed a 12(b)(6) that’s the legal equivalent of saying “nuh uh” and failing your hands
Also known as a CIG101.
I’m going to take the minority view and say some of the arguments are at least colorable (not going to disagree on the writing, which is crap):
There’s an argument as to whether “exclusive” means that CIG needs to only use Crytek’s engine, or whether only CIG can use Crytek’s engine, and there’s support either way. The contract isn’t as strongly in favor of Crytek’s argument as the petition indicated, which is why I wanted to actually see it.
Overall, it’s a poorly written contract (sorry, Ortwin), so the fight is probably going to go on. Which is typical, because transactional lawyers aren’t all that good at writing contracts. Litigators are way better at tearing them apart.
The whole argument about RSI not being a party to the contract is perfectly valid, and why you have separate companies. A separate legal entity can’t breach a contract it’s not a party to, so Crytek is going to have to jump through more hoops than it has so far.
Despite having some valid legal points, this is still a badly written motion. Judges don’t appreciate bombastic personal attacks, and CIG did themselves no favors there. Like claiming that Crytek was trying to mislead the court by not filing a copy of the contract, when there’s no need to attack evidence to a petition. They also managed to snatch defeat from the jaws of victory with the Ortwin discussion. They couldn’t just take their minor win of talking to Crytek and having the Ortwin allegations dropped from the petition, which Crytek took the high road and did. No, they had to continue to complain about allegations not in the live petition, which just makes CIG look like assholes.
So no one gets to use cryengine do develop games (or space games) while SC is in development? How does that work?
I mean, how could you possibly argue this? Is there any example of something like that ever happening?
Well, that’s if they argue that “only us in the entire world have the rights to use Cryengine no matter the product”. Which is completely stupid.
Instead they’re arguing that “only us in the entire world have the rights to use Cryengine [for Star citizen]“. Which is equally stupid, but in a different way. Since they own the IP of SC in the first place. That line shouldn’t even exist in the first place in that case, since it’s standard copyright protection to say that nobody else can do anything with the product you own.
So I’m at a loss, I’m not sure which one they’re arguing, both make no sense to me. Only Crytek’s version kind of makes sense, even if I agree it seems to lack a more explicit clause in the “restrictions” chapter. But at least it makes some sense. CIG arguments do not.
Skadden: Mr. Freyermeyer, are you saying that the standard Crytek GLA gives each client the exclusive rights to use of the Crytek game engine, excluding all other companies from using the product?
Ortwin: Yes, that is correct.
Skadden: What leads you to believe that?
Ortwin: I wrote that, so I should know the intention.
Skadden: Are you saying that as the IP lawyer for Crytek you gave each licensee exclusive use of the game engine? Wouldn’t that be an example of gross incompetence or malfeasance?
Ortwin: …
Ugh, that Leonard guy is soooo terrible to watch.
I mean, kudos to him for admitting he’s a backer in the first video, but he skims the shit out of that response and highlights things he thinks are favorable to CIG.
He completely negates to touch on any portion of the GLA that shows Squadron 42 and Star Citizen were the same product, etc etc etc.
The fact that he’s a copyright lawyer (is that right?) and doesn’t bother to go over the GLA in it’s entirety , or the entire bottom section that outlines Squadron 42 and Star Citizen as the same game, shows either;
1. He’s absolutely fucking terrible at picking portions of a document to skip over
2. He knew that section was there and chose to skip it so he could drop his dank “If I was judge judy I would rule for crytek, oops I meant CIG” line
3. He knew that section was there and he’s a die hard CIG believer and didn’t want to shatter the Reddit Armchair Lawyers ability to argue Space Law on the Subreddit for the next month.
TheAgent
I’m only going to be upset if this doesn’t go to an actual courtroom
because I will sit in on this shit for reals lol
TheAgent
“god who wrote this GLA, fuckin dumb ass crytek lol”
“I thought ortwin wrote it…”
“oh, I mean, yeah he probably had some dumb intern do it, no one really reads this things”
Derek Smart
My opinionated analysis of the CIG lawsuit response
Let’s not forget that Ben lesnick ( developer ). Played all the sq42 missions long before they switched to lumberyard. He said as much
CIG’s argument about the limitations provision is a loser. The first sentence basically says that neither CIG nor Crytek can be liable for any kind of damages, except if there’s been intentional or grossly negligent (basically extremely careless) conduct. This is why Crytek littered their amended complaint with ‘intentional.’ Under a plain reading of the provision, CIG is on the hook for any intentional conduct.
CIG is arguing that ‘intentional’ is a tort concept, and that the provision really precludes all contract damages. This isn’t going to work because the sentence plainly carves out intentional conduct, and they’re stuck with the words of the contract. Plus, the idea that you can put something in your contract saying you can breach the contract with impunity is laughable, and a judge would bend over backwards to come up with any reading other than that.
The second sentence only limits Crytek’s liability to $1.85million; it does nothing for CIG. It’s also badly written, because it removes that cap for gross negligence and says nothing about intentional, despite intentional being a higher level of misconduct. It’s also redundant, because the first sentence should limit it to $0 anyway, but maybe it’s just being extra careful.
It’s possible the first sentence is supposed to apply to all damages other than actual damages, in which case it all makes more sense, but it doesn’t say that. Because whoever drafted this is bad at making contracts.
Cultists take headline development to the next level.
First, when he first hears her mention of Lumberyard, he chuckles to himself.
Second, after he talks about the legal trickiness of the switch, he states that “after everything was inked and dotted” they were finally able to talk about the switch publicly. Presumably, the inking and dotting was with Amazon. Perhaps I’m reading too much in but one assumes the need to not discuss it publicly beforehand was to keep Crytek oblivious to their plans? The switch in itself needn’t have been controversial with backers yet the involvement of lawyers and need to keep plans quiet until after deals were inked seems suggestive that cig’s lawyers knew they were in dicey territory.
Maybe there’s another way to interpret this but that seems like the clearest reading to me.
Scruffpuff
My theory, which my wife also shares, is that the entire thing is a delay while they prepare to scuttle the company. This upcoming paid “tour” might be an alternate way of doing that - give your Amway pitch of newly created shares to the most gullible of backers, then dip.
TheAgent
my in expert legal opinion:
Against better judgement I will chip in. IANAL, but I have licensed game engines for development and have worked with engine development as well, so I do know a bit. (I have also represented myself in an actual court of law, which was dumb and shall never be repeated). The “exclusive” parts are poorly written, but generally exclusive is used with other wording to give a license which cannot be freely sub-licensed, which cannot be transferred, which does not prevent usage of other engines/middleware/libraries, and which does not prevent the licensor from licensing to other parties. So CIG and CryTek both are trying to have the poorly written contract mean something very different than the original intent and what is normal in licensing. Anglo-Saxon law is weird, with your insistence on sticking to the letter, ignoring the ‘bonus pater’ concept, etc. so I have no idea what the court will end deciding is the effective meaning of this terribly phrased contract.
Personally, I think the claim is merely there (among others) to get this into court so discovery can proceed, and it can be revealed that CryEngine is still in use. Ie the LY switch is far from fully complete. Which is why a lot of the complaint refers to CIG refers to missing logos, marketing, bugfixes/improvements being sent back to CE, unlicensed disclosure of source code, etc.
The “exclusive” argument is just a battering ram to bring down the gates and get the lawyer army into the castle. And like other battering rams, it does not have any further use and can be unceremoniously dumped at the gate.
Good summaries of CIG's response
Not a lawyer, but I sometimes have to read contracts.
The dispute over exclusivity is based on sections 2.1 and 2.1.2. Those sections are not very well written, which is why CryTek and CIG are able to propose wildly different interpretations of what the sections mean.
_2. Grant of License
2.1. Grant: Subject to strict and continuous compliance with the restrictions in the Agreement and the timely pament of the first installment of the License and Buyout Fee pursuant to Section 5.1.1 hereof by Licensee, CryTek grants to Licensee a world-wide, license only:
2.1.1. to non-exclusively develop, support, maintain, extend and/or enhance CryEnging such right being non-sub-licensable except as set forth in Sec. 2.6 below;
2.1.2. to exclusively embed CryEngine in the Game and develop the Game which right shall be sub-licensable pursuant to Sec. 2.6);_
If 2.1.2 is to be interpreted as CIG making a commitment to use CryEngine and only CryEngine to develop Star Citizen, why does the section say that CryTek “grants to Licensee a world-wide, license” to embed CryEngine in the game? If you commit to doing something in a contract, usually you wouldn’t say that you’ve been granted a license to do it. Usually a license is a permission to do something. A contractual commitment would usually be called an obligation, or the contract would state that CIG must do X, not that they have a license to do it.
If 2.1.2 is to be interpreted as CIG receiving an exclusive license to use CryEngine, meaning that no one else can use it, why does it say that CIG gets the license to “exclusively embed CryEngine in the Game”? CIG gets exclusive rights to the engine, but it’s restricted to this one game? What does “exclusive” even mean, then? Who is being excluded from working on Star Citizen? CryTek doesn’t even have the right to grant people the right to work on Star Citizen, since that’s CIG’s IP. This is also a weird interpretation.
I wonder if the section was actually intended to mean something like this:
“CryTek grants to CIG a license to embed CryEngine in Star Citizen. This license does not allow CIG to use CryEngine for any other games (it is exclusively for Star Citizen).”
That would make more a lot more sense than either CryTek’s or CIG’s interpretations - that it’s a license for one game only rather than an exclusive license for CryEngine, and that it’s not an obligation to use CryEngine no matter what (which would be very odd for what is described as a “license”). That is not what the license says, though, so we’re stuck with the confusing license agreement as it stands.
One thing I’m seeing a lot is “lol, why would CryTek give CIG an exclusive license to the CryEngine? That doesn’t fit with their business model, that would be a terrible deal for them! Clearly that’s a silly interpretation”. I have never been involved in contract disputes like that, but I’m not sure “this is a really bad deal, so that can’t be the interpretation” works as a legal argument. The license agreement between CryTek and CIG involves CIG paying millions of dollars for a license to use the CryEngine. If I were someone completely unaware of Star Citizen and I read this agreement without any context, I don’t think I’d immediately interpret it the way CryTek does. I certainly wouldn’t feel totally confident having to convince a judge and a jury that the exclusivity clause should be interpreted the way CryTek wants it to be interpreted.
tl;dr: I don’t think the dispute over the meaning of an exclusive license is a slam dunk for CryTek/Skadden.
I have to throw my hands up and say that imo Derek is right on all points:
1. There is no argument that it’s an exclusive license. Whether that is determined to be unfair or unenforceable is entirely up to space court. However the money that CIG agreed to pay Crytek is based on the license terms and that’s a pretty substantial one - without exclusivity the license fee would have been much, much higher. In other words, “use our engine and no one else’s and we’ll give you a great deal”
2. SQ42 is defined as a feature of SC. The license does not allow CIG to sell SQ42 as a separate game which they did. There’s no getting around that.
3. Amendment to Section 2.1 allows modification to the engine by third parties (not exclusively CIG) as long as it’s for the development of SC, ie “being exclusive only with respect to the game”. Essentially meaning that third party contractors can modify Cry code without being in breach of the license. I only mention this one as I’ve seen discussion around it.
4. A press release does not release CIG from the terms of the GLA. I am absolutely dumbfounded that this is CIG’s response and that they filed it into a court. Absolutely dumbfounded. There is nothing in the GLA that releases CIG from that contract and CIG have not filed anything to show they negotiated a change to the GLA or had it terminated.
7. If Cryengine had been modified so much that it was considered by CIG to be ‘StarEngine’, tough titties, Crytek own all those modifications and are free to fold them back into Cry.
8. Switching engine to Lumbaryard is a black and white breach of the contract unless the exclusivity of the GLA is determined to be unfair - HOWEVER! If there was a case to be made for it being unfair CIG could have released themselves from the GLA on that basis before the engine switch. They didn’t.
Derek is also pointing out that Crytek selling CIG the royalty license meant that they missed out on a percentage of the $180 million in fundraising, but that’s how the royalty game rolls Derek you should know that ;)
I’m not getting where people are coming from when they are saying the GLA is poorly written or open to interpretation, to me it’s clear and explicit and the amendments are clear and explicit. If anything wasn’t clear and explicit it would be amended and edited until it was and then it gets signed. The license that CIG have for Cryengine is for the development of Star Citizen and nothing else, and if they switch engine they are in breach of the contract on its face. If they want to go down that road and argue that this is an unfair term then:
1. It is a CRITICAL term for valuing the $ amount of the license
2. CIG were free to have it amended at any time in the last 5 years and pony up a space dollah amount to Crytek
3. They went ahead and switched engine and put out a press release saying so WITHOUT a legal determination on the unfairness of this term or anything in writing to Crytek saying it was unfair - because if they did it would be part of their filing right now
If you cannot see how fucking totally ludicrous this motion to dismiss is then you simply don’t comprehend the english language and I don’t know what to tell you. It will actually be torn up on day one. I’m leaning toward Loxbourne’s opinion of this being a complete PR move by CIG to keep the shitizens happy being correct.
If CIG don’t settle this madness 5 minutes before this goes into space court it means that they simply do not have the money to do so because they have fuck all else to make a case out of here.
Now both parties have filed their statements of case, we’re firmly into the territory of “will this argument fly with a court?”. That’s subjective and dependant entirely on the judge and jury’s own reactions on the day. We can comment on the evidence, caselaw, etc (and I think there’s plenty of scope for a good effortpost or three about the caselaw FFKS are citing on the meaning of “exclusive”), but we are not qualified to say which argument is likely to win. Even if we were, every lawyer’s seen a totally bullshit argument unexpectedly work, or an ironclad one fail.
Absent something hilarious happening, the thread’s best bet now is to watch, laugh as the citizens all suddenly become experts on the legal definitions of words, and sit tight until discovery. I’m sure there’s going to be all kinds of lovely things to comment on if the case proceeds that far.
So after 6 months of sheer hell ive finally just today managed to get a refund, and it’s all thanks to you guys.. Honestly i would have given up and maybe even been made homeless along with my newborn children if you guys hadn’t shown me what to do, and given me continuing encouragement when it seemed it was all over.
If you had to pick one example of CIG’s stupidity what would it be?
After her two minute tale of errors upon frustrations (clipping errors, dragonflies stuck in scaffolding, broken legs and more) to no end, the punchline:
“and I think that’s a perfect example of why I like this game.”
Toastmannnnn Remix Time!
Lyrics so you can sing along (they’re also in the mp3)
Now I have to think of a hilarious lawsuit song.
Genuine shredding Epiphone SG Junior
No parps were offering motions to dismiss in this recording.
