Star Citizen: Death of a Space Thread?

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MedicineHut: Feb 25, 2016

History Comes Inside! posted:

I think they're actually going for "CIG are the only developer in the world allowed to use CryEngine in Star Citizen"

Which is even more retarded because uhhhhh, duh.

Yeah, that is indeed retarded since that is precisely what a license does. Only a licensee has the right to use the software. I would imagine there is no need to use the word exclusively for that since it is already articulated by virtue of being a signatory party to the license. Therefore the use of the word "exclusively" in 2.1.2 has to refer to something else. In this case the clause is clear that it refers to the obligation by licensee (or sub contractors approved by CryTek) to only use CryEngine in the Game.

e:

MedicineHut fucked around with this message at 12:32 on Jan 7, 2018

# ? Jan 7, 2018 12:08

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# ? May 21, 2024 23:56

AP: Jul 12, 2004; One Ring to fool them all
One Ring to find them
One Ring to milk them all
and pockets fully line them; Grimey Drawer

EightAce posted:

Let's not forget that Ben lesnick ( developer ). Played all the sq42 missions long before they switched to lumberyard. He said as much

I think it was this guy not :lesnick:

saying he played all the SQ42 missions. I think the :lesnick:

comment was something stupid about Star Marine being fun ages before it was released.

# ? Jan 7, 2018 12:23

alf_pogs: Feb 15, 2012

star marine might have been a lot of fun (or playable) a long time before release, until illfonic got dropped for not being fidelitous enough

# ? Jan 7, 2018 12:28

Ponzi: Feb 21, 2016; DEPORTED FROM FLAVOR TOWN

ICSA 67 LOSER; Fun Shoe

MedicineHut posted:

...Therefore the use of the word "exclusively" in 2.1.2 has to refer to something else. In this case the clause is clear that it refers to the obligation by licensee (or sub contractors approved by CryTek) to only use CryEngine in the Game.

Would the clause, if interpreted this way, also have implications for the use of the FoIP technology in The Game? It's not an 'engine' as such, but it's a third-party IP that CIG/CryTek don't control.

At the very least CIG should have provided CryTek with the details of the modifications they made to allow integration?

# ? Jan 7, 2018 12:32

Erenthal: Jan 1, 2008; A relaxing walk in the woods; Grimey Drawer

Ponzi posted:

Would the clause, if interpreted this way, also have implications for the use of the FoIP technology in The Game? It's not an 'engine' as such, but it's a third-party IP that CIG/CryTek don't control.

At the very least CIG should have provided CryTek with the details of the modifications they made to allow integration?

Jesus christ, I forgot about the FOIP and the goddamn stupid sure-to-be-overpriced webcam. That's still going on sale soon, right? There's such depths to this stupidity that sometimes I can't keep track off what's real and what's a joke I dreamed up.

# ? Jan 7, 2018 12:34

Ubik_Lives: Nov 16, 2012

SomethingJones posted:

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"

...

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 I invite you to an exclusive pineapple pizza party, is it it exclusive because I'm only serving pineapple pizza, or because of the limited invites? The exclusive nature could be referring to CIG being the only one allowed to embed Cry Engine in Star Citizen because they don't want third parties seeing the code without contracts, or Cry Engine being embedded in the game to the exclusion of other engines. I mean, how do you read 2.1.3? That CIG can't work on any other games while working on Star Citizen? Is that a normal agreement in the game engine world? Or 2.1.1? That CIG need to develop, support and maintain Cry Engine, but it's cool, because they can do that while working on other engines as well.

I don't want to keep on this point too much, because I seem to be very much in the minority here, but let's look at this another way. Ignore the exclusive phrase for a second, and look at the entire combined sections (paraphrasing 2.1, 5.1.1, 2.1.2 and 2.6).

Grant: Subject to the restrictions in the agreement, and us getting paid our quarter of a million euros, Crytek grants CIG a world-wide license only to exclusively embed Cry Engine in Star Citizen, and develop the Star Citizen, which right shall be sub-licensable to others if we give our written permission.

I mean, this is literally a section titled grants, and this section is referred to as a right. How do you force someone to use a right? Crytek granted me the right to only use Cry Engine? Cool, I guess, but I'm not going to exercise it. The very next section is Restrictions on Use. Why is there not a section there saying the Licensee shall not use any other engine to develop the game, other than Cry Engine? Why say "subject to restrictions, have another restriction"? And if it is a restriction and not a right, how do you sub-license it? You can easily give someone the right to help embed Cry Engine into Star Citizen, but if I give you the right to only use Cry Engine in Star Citizen, it's an entirely meaningless concept.

I might be wrong about this, but I don't think you can say there's only one way to read that section.

# ? Jan 7, 2018 12:51

Malachite_Dragon: Mar 31, 2010; Weaving Merry Christmas magic

Not really? Even contracts have to apply common sense. The "only CiG is allowed to use cryengine" interpretation is just dumb.

# ? Jan 7, 2018 13:01

Golli: Jan 5, 2013

AP posted:

I think it was this guy not saying he played all the SQ42 missions. I think the comment was something stupid about Star Marine being fun ages before it was released.

In either case, :rip:

the court reporter in :lesnick:

deposition

# ? Jan 7, 2018 13:02

Martman: Nov 20, 2006

Ubik_Lives posted:

How do you force someone to use a right?

Who is attempting to force someone to use a right?

# ? Jan 7, 2018 13:02

Virtual Captain: Feb 20, 2017; Archive Priest of the Stimperial Order

Star Citizen Good, in all things forevermore. Amen.

Gosts posted:

My magnum opus is done

punchline made me lol

# ? Jan 7, 2018 13:10

Nyast: Nov 14, 2017; BLAZING AT THE
SPEED OF LIGHT

Ubik_Lives posted:

If I invite you to an exclusive pineapple pizza party, is it it exclusive because I'm only serving pineapple pizza, or because of the limited invites? The exclusive nature could be referring to CIG being the only one allowed to embed Cry Engine in Star Citizen because they don't want third parties seeing the code without contracts, or Cry Engine being embedded in the game to the exclusion of other engines. I mean, how do you read 2.1.3? That CIG can't work on any other games while working on Star Citizen? Is that a normal agreement in the game engine world? Or 2.1.1? That CIG need to develop, support and maintain Cry Engine, but it's cool, because they can do that while working on other engines as well.

I don't want to keep on this point too much, because I seem to be very much in the minority here, but let's look at this another way. Ignore the exclusive phrase for a second, and look at the entire combined sections (paraphrasing 2.1, 5.1.1, 2.1.2 and 2.6).

Grant: Subject to the restrictions in the agreement, and us getting paid our quarter of a million euros, Crytek grants CIG a world-wide license only to exclusively embed Cry Engine in Star Citizen, and develop the Star Citizen, which right shall be sub-licensable to others if we give our written permission.

I mean, this is literally a section titled grants, and this section is referred to as a right. How do you force someone to use a right? Crytek granted me the right to only use Cry Engine? Cool, I guess, but I'm not going to exercise it. The very next section is Restrictions on Use. Why is there not a section there saying the Licensee shall not use any other engine to develop the game, other than Cry Engine? Why say "subject to restrictions, have another restriction"? And if it is a restriction and not a right, how do you sub-license it? You can easily give someone the right to help embed Cry Engine into Star Citizen, but if I give you the right to only use Cry Engine in Star Citizen, it's an entirely meaningless concept.

I might be wrong about this, but I don't think you can say there's only one way to read that section.

I think you're right, the lack of clause in "restrictions" gives room to CIG to argue.

Problem is that all other interpretations of "exclusively" by CIG are dumb and lack common sense.

Exclusively = only us in the entire world can use Cryengine, other companies cannot use Cryengine anymore ? -> I don't even know how somebody..anybody.. could argue that.

Exclusively = only us in the entire world can use Cryengine for Star Citizen -> but that's an obvious thing since only CIG owns the SC IP. Why use the word "exlusively" here then ? I mean, they could ( / WILL ) certainly argue that, but it doesn't make much sense to me either.

So the only thing making sense remaining, is the interptation that exclusively = cannot switch engines.

# ? Jan 7, 2018 13:11

Chalks: Sep 30, 2009

MedicineHut posted:

Yeah, that is indeed retarded since that is precisely what a license does. Only a licensee has the right to use the software. I would imagine there is no need to use the word exclusively for that since it is already articulated by virtue of being a signatory party to the license. Therefore the use of the word "exclusively" in 2.1.2 has to refer to something else. In this case the clause is clear that it refers to the obligation by licensee (or sub contractors approved by CryTek) to only use CryEngine in the Game.

They have an entire section covering the process that allows CIG to subcontract the development of Star Citizen out to other companies so they couldn't even argue it means that.

# ? Jan 7, 2018 13:11

Tank Boy Ken: Aug 24, 2012; J4G for life; Fallen Rib

Nyast posted:

I think you're right, the lack of clause in "restrictions" gives room to CIG to argue.

Problem is that all other interpretations of "exclusively" by CIG are dumb and lack common sense.

Exclusively = only us in the entire world can use Cryengine, other companies cannot use Cryengine anymore ? -> I don't even know how somebody..anybody.. could argue that.

Exclusively = only us in the entire world can use Cryengine for Star Citizen -> but that's an obvious thing since only CIG owns the SC IP. Why use the word "exlusively" here then ? I mean, they could ( / WILL ) certainly argue that, but it doesn't make much sense to me either.

So the only thing making sense remaining, is the interptation that exclusively = cannot switch engines.

The thing most of you are missing is that CryTek is a german company and the definition of exclusive and exklusiv are a bit different. Luckily for CIG Ortwin Freyermouth is a German/American and should know both languages. And thus can hardly be accused of not knowing what Crytek meant. Considering he worked on contracts for them...

The correct definition of exklusiv in this context is "einzig und allein" or solely.

quote:

exlusively embed CryEngine in the game

Which can (in my german view) be read as only being allowed to embed CryEngine in THE GAME.

# ? Jan 7, 2018 13:26

D_Smart: May 11, 2010; by FactsAreUseless; College Slice

Ubik_Lives posted:

2.1.2 - You, and you alone will make the game. Any sub-contractors, any sub-companies, anyone else, needs our written permission as per 2.6 (but we can't be unreasonable about it), because again, we don't want outsiders seeing our engine without a contract.
2.1.3 - You, and you alone will make and sell the game, but we really don't care if you sub-contract outside companies to publish and distribute the game for you.

Sure, you can read 2.1.2 as if it limits the game to only being in Cry Engine, but you need to ignore the similar framing of the two points either side of it, and the context of the section as a whole. It's not a section saying that they must develop, support and maintain Cry Engine (but you can work on other engines as well), must only use Cry Engine, and they must sell Star Citizen and no other games. It's just saying who can do those things. If the game was supposed to be CE locked, you'd expect that to be 2.2 (with potentially exactly the same wording).

If that line of reasoning holds, the rest of CryTek's arguments start to falter.

Rubbish. This is why reading and reading comprehension are taught in schools and colleges.

Only a complete moron would read that section and interpret it to mean anything other than CIG are to exclusively only use CryEngine.

This is why, in things like this, the first thing the judge is going to look at is: INTENT (look that up, then all the matching case law associated with it).

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# ? Jan 7, 2018 13:31

shrach: Jan 10, 2004; daylight ssssaving time

AngusPodgorny posted:

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.

SomethingJones posted:

D_Smart posted:
That's not what the gist of it is. Either side can still sue for breach of contract and other claims. This is the key to Skadden sprinkling all those "intentional" words in the FAC.

Skadden wouldn't be using the word 'intentionally' unless they had evidence to show that in each case it was in fact intentional. Given that there's enough stuff in the public domain to show this I'm sure they have it covered.

To be fair, the CIG lawyers already pointed this out and have covered this "intentionally" angle. It's a pretty good response that is also kind of funny.

# ? Jan 7, 2018 13:33

AutismVaccine: Feb 26, 2017; SPECIAL NEEDS
SQUAD

NOTHINGBURGER
O
T
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I
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B
U
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G
E
R

# ? Jan 7, 2018 13:34

AutismVaccine: Feb 26, 2017; SPECIAL NEEDS
SQUAD

j/k

# ? Jan 7, 2018 13:34

AutismVaccine: Feb 26, 2017; SPECIAL NEEDS
SQUAD

Skadden is gonna skin them alive

# ? Jan 7, 2018 13:35

Tank Boy Ken: Aug 24, 2012; J4G for life; Fallen Rib

AutismVaccine posted:

Skadden is gonna skin them alive

Best drat NothingBurger Ever! for up to 10 millions or more.

# ? Jan 7, 2018 13:35

AutismVaccine: Feb 26, 2017; SPECIAL NEEDS
SQUAD

Last thing:

Will every discussion about the court case be forbidden on the sc reddit? Or are there not enough hardliners left?

# ? Jan 7, 2018 13:39

D_Smart: May 11, 2010; by FactsAreUseless; College Slice

AngusPodgorny posted:

I think Lumberyard has code copyrighted by Crytek, but that Amazon has a license that lets it freely sublicense the code. So CIG is still using Cryengine code; it just gets it through a different license. The real question is whether CIG has to publicize the fact that it originated at Crytek. It appears that Amazon's agreement with Crytek doesn't include any requirement that sublicensees publicly acknowledge Crytek.

Everything Amazon has done seems fine so far, so it appears they can just watch from the sidelines.

Given that there were no royalties under the CIG-Crytek agreement, I have no idea why CIG didn't just continue displaying the splash screen or whatever. It seems like it would have been relatively painless to keep complying with the CIG-Crytek agreement. So maybe they hated each other behind the scenes, and didn't out of spite.

And yes, it would have been a lot easier if they'd included a clause like that in the Amazon-Crytek agreement, and Crytek might have screwed themselves not having it, but apparently no one thought of it.

There are lots of engines and middleware that embed other engines and middleware.

Lumberyard is itself a custom engine which uses parts of CryEngine, just like it uses parts of other engines and middleware

e.g. It uses my friend John's EmotionFX animation engine, completely replacing the CryEngine solution.

https://docs.aws.amazon.com/lumberyard/latest/userguide/gems-system-gem-emotionfx-animation.html

They did this deal a few months back. They paid John a fee that allows them to embed and sub-license it as part of Lumberyard. Like they did Crytek back in 2015.

There ARE royalties in the GLA. Except that CIG opted to pay it upfront because they felt it was cheaper. Also, doing it that way means they never have to show their books to CryTek, which they would have to do in order to calculate how much royalties are due each period.

Once they started using Lumberyard, CIG could no longer legally display the Crytek logo as they were already in breach of GLA 2.4. And they would also be in breach of 57.5 of the Lumberyard license.

quote:

57.5 Other Restrictions. Without limiting the license restrictions set out in the Agreement, you may not (a) distribute the Lumberyard Materials in source code form, except as expressly permitted by Section 57.2(b) and (c), (b) use or exploit the Lumberyard Materials or any portion thereof to develop, maintain, participate in the development of, or support any competing engine, development tool, or software framework, (c) use the Lumberyard Materials or any portion thereof as part of a logo or trademark, (d) remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) contained in the Lumberyard Materials, (e) take any action that would require us or you to license, distribute, or otherwise make available to anyone the Lumberyard Materials under different terms (e.g., combining Lumberyard Materials with software subject to �copyleft� open source licenses), or (f) use or exploit the Lumberyard Materials or any portion thereof in any manner or for any purpose other than as expressly permitted by these terms.

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# ? Jan 7, 2018 13:45

Chalks: Sep 30, 2009

D_Smart posted:

Rubbish. This is why reading and reading comprehension are taught in schools and colleges.

Only a complete moron would read that section and interpret it to mean anything other than CIG are to exclusively only use CryEngine.

This is why, in things like this, the first thing the judge is going to look at is: INTENT (look that up, then all the matching case law associated with it).

I'm not sure I agree. Look at the meaning of the word exclusively in each of the three clauses:

In the first one, "non-exclusively develop, support, maintain, extend and/or enhance CryEngine..."

"non-exclusively" does not reference the things (develop, support, maintain.. etc) nor does it reference the engine - it certainly references WHO can develop, support maintain etc the engine (not just CIG)

In the last clause, again, "exclusively" does not reference the things (manufacture, market, promote sell...) nor does it reference the game - it also clearly references WHO can do these things (only CIG and people they freely subcontract)

So for the middle statement, phrased in exactly the same way, it doesn't seem unreasonable that it should be read in the same way - ie, it does not reference the thing (embedding) nor does it reference CryEngine itself - it logically should reference WHO can do these things. CIG and only CIG can embed the engine in the game.

Maybe it's redundant but given the context their argument on this point seems pretty strong.

# ? Jan 7, 2018 13:45

Virtual Captain: Feb 20, 2017; Archive Priest of the Stimperial Order

Star Citizen Good, in all things forevermore. Amen.

Just catching up while doing the thread recap. This is such a mess it's gonna take me two hours.

EggsAisle posted:

Waitaminute, what's this?

quote:
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...

lol

# ? Jan 7, 2018 13:52

D_Smart: May 11, 2010; by FactsAreUseless; College Slice

SomethingJones posted:

Spent most of the night reading the GLA, skimming the thread and reading Derek's stuff here - https://threadreaderapp.com/thread/949626014367469568.html
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 loving 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 gently caress all else to make a case out of here.

ps: They don't have the kind of money that it will take to settle. That's really the gist of it.

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# ? Jan 7, 2018 13:53

Beer4TheBeerGod: Aug 23, 2004; Exciting Lemon

EightAce posted:

Let's not forget that Ben lesnick ( developer ). Played all the sq42 missions long before they switched to lumberyard. He said as much

I would love to see CIG's marketing BS be used against them.

# ? Jan 7, 2018 13:58

MedicineHut: Feb 25, 2016

shrach posted:

To be fair, the CIG lawyers already pointed this out and have covered this "intentionally" angle. It's a pretty good response that is also kind of funny.

I don�t see how the fact Skadden has ammended the complaint to add clarity hinders in any way their case or renders their statements any less valid?

# ? Jan 7, 2018 14:00

shrach: Jan 10, 2004; daylight ssssaving time

Ubik_Lives posted:

Once again, zero legal experience, but I've had a flick through the GLA and a little of CIG's response (not all of it, because holy poo poo it's unreadable), and it really pains me to say that I'm more on CIG's side at the moment.

The crux of the issue is the exclusive section. Does Star Citizen need to be made in Cry Engine or not?

The section in question is 2.1.2, which is part of 2.1. Basically 2.1 (to non-lawyer idiot me) is saying who does what in relation to the game and Cry Engine (limitations are in section 2.2). The 2.1.1 to 2.1.3 all start with exclusive / non-exclusive to indicate who is doing what. So to me:

2.1.1 - You can make Cry Engine better, but you're not the only group doing that. However, that doesn't mean you can get other people to fix our engine without our written permission, as per 2.6, because we don't want people stealing our code.
2.1.2 - You, and you alone will make the game. Any sub-contractors, any sub-companies, anyone else, needs our written permission as per 2.6 (but we can't be unreasonable about it), because again, we don't want outsiders seeing our engine without a contract.
2.1.3 - You, and you alone will make and sell the game, but we really don't care if you sub-contract outside companies to publish and distribute the game for you.

Sure, you can read 2.1.2 as if it limits the game to only being in Cry Engine, but you need to ignore the similar framing of the two points either side of it, and the context of the section as a whole. It's not a section saying that they must develop, support and maintain Cry Engine (but you can work on other engines as well), must only use Cry Engine, and they must sell Star Citizen and no other games. It's just saying who can do those things. If the game was supposed to be CE locked, you'd expect that to be 2.2 (with potentially exactly the same wording).

If that line of reasoning holds, the rest of CryTek's arguments start to falter.

Breaking S42 into another game is bad if they are using Cry Engine. CIG have paid for one game, not the ability to pay once and keep spinning of sub games indefinitely. This would be a breach of the pay-out to dodge royalties. But if they are using another engine, what royalty damages are there? The amount between the split and the switch perhaps, but I think we all know that no-one is really buying S42, and any royalties in that period would be less that the cost of a Skadden bathroom break.

Also things like no longer showing the CryTek logos don't make sense if they aren't using the engine anymore, and would probably come under 10.6, which states (to non-lawyer me), if sections become unenforceable because of legal or factual reasons (and not using the engine would seem to be a factual reason to not advertise you're using the engine), you ignore that section and keep the rest of the agreement.

Showing Cry Engine code on Youtube is still a problem, but it's looking pretty minor at this point.

One of the big things to me is really the damages side of things. Other than a support and mod fee, CryTek is paid up. Even if Star Citizen becomes a mobile app, have they really lost anything by no longer being the engine used? What can they really ask for here?

I started to think perhaps they were out for blood, not money (completely invalidating my previous line of thought), but even then, I don't think it would be that painful for CIG to terminate the agreement (sections 8.2 and 8.3). I mean, it would suck hilariously for the coders, who need to go through every line of code, cutting out the original CE code, then putting back the exact same legacy Lumberyard code. Practically I'd say they would just claim to have done it, because you wouldn''t be able to tell the difference. Also, is it just me, or does 8.3 reference section 6.3, which doesn't exist? Secret mystery clause!

I can't see CryTek's end game here. Nothing makes sense to me anymore. They can't really claim blood or money. My only thought at the moment is this is some sort of huge trap to bait CIG into admitting breaches they haven't been charged with yet. The RSI defence springs to mind.
"Hah! RSI is not CIG, checkmate Mr CryBabyTek!"
"Well, did you get our written permission to sub-licence the development of our game? To a company who then proceeded to bag poo poo on us while showing our code to the world? This cost millions of dollars of damages to our reputation and future sales, which you are responsible for. We have an updated list of claims, and we're putting your previous claims into evidence."
"ya whoah did ehp did eh woh did..."

Other than that, and again, not a lawyer at all, this seems like CryTek is searching for an opening, rather than having a significant grievance.

I'm joining you in moron ville I think, because this sounds about right to me.

It's worth remembering too, that this was based on a standard template contract. The "exclusive" makes sense in that context too. Otherwise you'd have to argue that anyone that ever bought a CryEngine licence, forking over millions, were then locking themselves into using CryEngine and only CryEngine and could never swap engine. It just doesn't make sense that anyone would do that or a contract would have that intention from either party.

The CryTek angle is supposed to be that this was a contract that had beneficial terms. It wouldn't be a beneficial term if anyone signing it were forced to only ever use CryEngine.

Abuminable posted:

Precisely. CryTek gave CIG a huge fee discount -- particularly in light of the massive $175m take -- in order to be repaid in marketing and publicity. So, though CIG haven't owed dollars to CryTek, CIG have not repaid CryTek in the currency they demanded: positive publicity.

The benefits were the lower cost, as already pointed out. Skadden have got to narrow down to this? Even here CIG have a defence. Given the hilarity of Skadden quoting youtube, CIG can point out Chris' valiant defence of CryEngine.

https://www.youtube.com/watch?v=CXJZbPI5nKE&t=311s

# ? Jan 7, 2018 14:03

Enchanted Hat: Aug 18, 2013; Defeated in Diplomacy under suspicious circumstances

Not a lawyer, but I sometimes have to read contracts.

I was interested by the dispute over the CryEngine license being "exclusive", so I looked at the actual license agreement: https://drive.google.com/file/d/15lZBqg7yhDiVgyxTQLfq_ivQu7c-2G6W/view?usp=sharing

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.

# ? Jan 7, 2018 14:07

MedicineHut: Feb 25, 2016

Chalks posted:

I'm not sure I agree. Look at the meaning of the word exclusively in each of the three clauses:

In the first one, "non-exclusively develop, support, maintain, extend and/or enhance CryEngine..."

"non-exclusively" does not reference the things (develop, support, maintain.. etc) nor does it reference the engine - it certainly references WHO can develop, support maintain etc the engine (not just CIG)

In the last clause, again, "exclusively" does not reference the things (manufacture, market, promote sell...) nor does it reference the game - it also clearly references WHO can do these things (only CIG and people they freely subcontract)

So for the middle statement, phrased in exactly the same way, it doesn't seem unreasonable that it should be read in the same way - ie, it does not reference the thing (embedding) nor does it reference CryEngine itself - it logically should reference WHO can do these things. CIG and only CIG can embed the engine in the game.

Maybe it's redundant but given the context their argument on this point seems pretty strong.

My take:

2.1.1 "non exclusively" refers to CryEngine
2.1.2 "exclusively" refers to CryEngine again
2.1.3 "exclusively" refers to the Game.

Explanation:

In 2.1.1 "non-exclusively" can be also perfectly well be red as pertaining to CryEngine, that is, CIG (or its subcontractors, as approved by CryTek) is not obligated to only maintain CryEngine. CIG (or its subcontractors, as approved by CryTek) can also maintain other competitor software if they so wish.

Same goes with 2.1.2, especially when one realizes that CIG is already the sole user allowed the right to develop the Game by virtue of being a signatory party to the license, there is no need for the word "exclusively" in 2.1.2 to state that. In my understanding "exclusively" in there is referring to something else entirely, i.e. the software.

2.1.3 is the only one that would open some room for doubts (i.e. in principle it would sound crazy that by entering this GLA CIG would not be allowed to pursue any other projects with other engines), but if you read it in the context of the above two as I point out then it is clear the clause is simply insisting in the "one Game and one Game only to be marketed" principle of the GLA. I.e. stating that Licensee can only develop the Game with this CryEngine license. Nothing more.

MedicineHut fucked around with this message at 14:22 on Jan 7, 2018

# ? Jan 7, 2018 14:12

D_Smart: May 11, 2010; by FactsAreUseless; College Slice

Ubik_Lives posted:

If I invite you to an exclusive pineapple pizza party, is it it exclusive because I'm only serving pineapple pizza, or because of the limited invites? The exclusive nature could be referring to CIG being the only one allowed to embed Cry Engine in Star Citizen because they don't want third parties seeing the code without contracts, or Cry Engine being embedded in the game to the exclusion of other engines. I mean, how do you read 2.1.3? That CIG can't work on any other games while working on Star Citizen? Is that a normal agreement in the game engine world? Or 2.1.1? That CIG need to develop, support and maintain Cry Engine, but it's cool, because they can do that while working on other engines as well.

I don't want to keep on this point too much, because I seem to be very much in the minority here, but let's look at this another way. Ignore the exclusive phrase for a second, and look at the entire combined sections (paraphrasing 2.1, 5.1.1, 2.1.2 and 2.6).

Grant: Subject to the restrictions in the agreement, and us getting paid our quarter of a million euros, Crytek grants CIG a world-wide license only to exclusively embed Cry Engine in Star Citizen, and develop the Star Citizen, which right shall be sub-licensable to others if we give our written permission.

I mean, this is literally a section titled grants, and this section is referred to as a right. How do you force someone to use a right? Crytek granted me the right to only use Cry Engine? Cool, I guess, but I'm not going to exercise it. The very next section is Restrictions on Use. Why is there not a section there saying the Licensee shall not use any other engine to develop the game, other than Cry Engine? Why say "subject to restrictions, have another restriction"? And if it is a restriction and not a right, how do you sub-license it? You can easily give someone the right to help embed Cry Engine into Star Citizen, but if I give you the right to only use Cry Engine in Star Citizen, it's an entirely meaningless concept.

I might be wrong about this, but I don't think you can say there's only one way to read that section.

You're an idiot.

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# ? Jan 7, 2018 14:19

big nipples big life: May 12, 2014

Going to go ahead and call it getting dismissed due to the GLA basically being written in crayon.

# ? Jan 7, 2018 14:21

D_Smart: May 11, 2010; by FactsAreUseless; College Slice

shrach posted:

quote:
Skadden wouldn't be using the word 'intentionally' unless they had evidence to show that in each case it was in fact intentional. Given that there's enough stuff in the public domain to show this I'm sure they have it covered.

To be fair, the CIG lawyers already pointed this out and have covered this "intentionally" angle. It's a pretty good response that is also kind of funny.

Yeah. But that's how the legal system works. And that's you're allowed to amend a complaint. Even if it wasn't in the ECF, it would still have come up down the road in interrogatories anyway. Skadden opted to do it sooner, rather than later.

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# ? Jan 7, 2018 14:22

PederP: Nov 20, 2009

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.

PederP fucked around with this message at 14:28 on Jan 7, 2018

# ? Jan 7, 2018 14:26

MedicineHut: Feb 25, 2016

big nipples big life posted:

Going to go ahead and call it getting dismissed due to the GLA basically being written in crayon.

lol maybe. But the quality of the writing is poor enough that I would imagine evidence related to the communications (formal or informal) between the parties at the time of the GLA negotiation are going to be they key to establish actual intent and will most likely be requested by the judge.

# ? Jan 7, 2018 14:26

shrach: Jan 10, 2004; daylight ssssaving time

MedicineHut posted:

I don�t see how the fact Skadden has ammended the complaint to add clarity hinders in any way their case or renders their statements any less valid?

First of all, it reads like the defence lawyer is telling on them to the judge like he just took an extra cookie from the cookie jar. It's unnecessary but funny.

The implication from the defence lawyer is that Skadden hadn't even read or understood the GLA that they withheld/didn't file. Perhaps they were just ashamed to share their name on any paper with it on. After it was pointed out that CryTek can't claim damages, which apparently now Skadden accepts is the case, they add the word intentionally so now they can claim damages again.

So the best case scenario now is that Skadden has to prove intent. This is obviously a worse case that simply having to prove a breach of the GLA.

Take for example the faceware guys. If we accept for a moment that CIG shared CryEngine code with the faceware people that they shouldn't have, they now have to show they did this intentionally to breach the GLA, not just that they forgot to get their approval from CryTek. For damages they'll probably end up having to prove that they would have withheld their permission too and I read something in the GLA about CryTek not withholding it unreasonably.

# ? Jan 7, 2018 14:29

D_Smart: May 11, 2010; by FactsAreUseless; College Slice

Chalks posted:

I'm not sure I agree. Look at the meaning of the word exclusively in each of the three clauses:

In the first one, "non-exclusively develop, support, maintain, extend and/or enhance CryEngine..."

"non-exclusively" does not reference the things (develop, support, maintain.. etc) nor does it reference the engine - it certainly references WHO can develop, support maintain etc the engine (not just CIG)

In the last clause, again, "exclusively" does not reference the things (manufacture, market, promote sell...) nor does it reference the game - it also clearly references WHO can do these things (only CIG and people they freely subcontract)

So for the middle statement, phrased in exactly the same way, it doesn't seem unreasonable that it should be read in the same way - ie, it does not reference the thing (embedding) nor does it reference CryEngine itself - it logically should reference WHO can do these things. CIG and only CIG can embed the engine in the game.

Maybe it's redundant but given the context their argument on this point seems pretty strong.

I know it's a brain-teaser for some people who aren't used to contracts and contract law. That's why we have lawyers and judges. This isn't going to be hard at all because it's going to come down to INTENT.

Even by your explanation above, it is clear that the terms "non-exclusively" and "exclusively" are applicable to each instance where used.

2.1.1: If this said "exclusively", it would alter the intent. That being only CIG would be allowed to, for example, "extend and/or enhance CryEngine"

2.1.2: If this said "non-exclusively", it would alter the intent. That being CIG and others would be allowed to, for example, "embed CryEngine in the Game"

2.1.3: If this said "non-exclusively", it would alter the intent. That being CIG and others would be allowed to, for example, "license, public and exploit the Game"

I covered this in my missive yesterday

https://thelawdictionary.org/exclusive-right/

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# ? Jan 7, 2018 14:32

Chalks: Sep 30, 2009

MedicineHut posted:

My take:

I agree that this is a totally sensible interpretation. I think the key thing here isn't, however, whether the contract was violated, but rather whether it was intentionally violated.

All CIG has to argue is that they misunderstood the clause in good faith.

The intentional acts or omissions clause really does gently caress Crytek's entire case.

D_Smart posted:

2.1.2: If this said "non-exclusively", it would alter the intent. That being CIG and others would be allowed to, for example, "embed CryEngine in the Game"

I'm a bit confused, but isn't that the whole crux of CIG's argument? That the "exclusively/non-exclusively" part is the difference between "CIG" and "CIG and others" and NOT the difference between "CryEngine" and "CryEngine or what ever other engine you want"?

So if CIG goes bust and sells the rights to Star Citizen to EA, clause 2.1.2 would mean that EA doesn't automatically get to use CryEngine to continue development of the game under this license and it has to be renegotiated. Because CIG (and not others) have the right to embed CryEngine in the game due to the use of the word exclusive.

This seems like a reasonable interpretation.

Chalks fucked around with this message at 14:41 on Jan 7, 2018

# ? Jan 7, 2018 14:34

D_Smart: May 11, 2010; by FactsAreUseless; College Slice

shrach posted:

The CryTek angle is supposed to be that this was a contract that had beneficial terms. It wouldn't be a beneficial term if anyone signing it were forced to only ever use CryEngine.

The benefits were the lower cost, as already pointed out. Skadden have got to narrow down to this? Even here CIG have a defence. Given the hilarity of Skadden quoting youtube, CIG can point out Chris' valiant defence of CryEngine.

Are you serious? Is this the first time you are hearing the use of the word "exclusive" and what it implies in the business world?

To wit: Why on Earth do you think Amazon has so many restrictions in their Lumberyard engine which they CLEARLY STATE you should use AWS EXCLUSIVELY (if you use any cloud services in your game) and NO OTHER COMPLETING CLOUD PLATFORM? Which is why CIG switched from Google Computer to AWS in order to be able to use Lumberyard.

"laffo:

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# ? Jan 7, 2018 14:36

PhallicPhalanges: Jun 9, 2015; Her navel is all time musky... Bt look at her face... Her face makes my ROD wakes

How dare people not interpret this exactly as DS prescribes!

# ? Jan 7, 2018 14:43

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# ? May 21, 2024 23:56

MedicineHut: Feb 25, 2016

shrach posted:

The implication from the defence lawyer is that Skadden hadn't even read or understood the GLA that they withheld/didn't file. Perhaps they were just ashamed to share their name on any paper with it on. After it was pointed out that CryTek can't claim damages, which apparently now Skadden accepts is the case, they add the word intentionally so now they can claim damages again.

I do not think we can infer from the original claim, or from this ammended one, that Skadden considers damages can not be claimed. Damages can be perfectly claimed, as long as you get to the gross negligence threshold, or worst (intent). But this is something obvious in the GLA, weather you attach a copy or not in the claim. All Skadden seems to have done is to point that out explicitly for added clarity.

shrach posted:

So the best case scenario now is that Skadden has to prove intent. This is obviously a worse case that simply having to prove a breach of the GLA.

As stated, based on the gross negligence threshold, I do not think Skadden ever had any other plans.

MedicineHut fucked around with this message at 14:49 on Jan 7, 2018

# ? Jan 7, 2018 14:43

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