Ausir said:
It would make a significant difference as to whether Bethesda is likely to win, and whether sale through GoG, Steam etc is going to be permanently stuffed. If Bethesda owns the code to the old FO games, with a contractual exception for selling them in their current forms, then Interplay is screwed. But if they are just suing over copyright in the name, then that's a bit silly - copyright only covers the words, not the idea, so Interplay could just rename them - just title them 'Fallouts of the 1990s', or 'INTERPLAY'S fallout (with big emphasis on Interplay and a big disclaimer saying they have nothing to do with FO3)', or something similar.
Bethesda might not own the code, but they certainly own all the content - characters, plots, etc. now. So no, Interplay cannot do this.
Mind you, most cases like this get settled, unless one or both sides are being dicks and not listening to their legal advice.
Sounds like Herve Caen.
Under what IP would they own the content? I'm only familiar with the common law nations, i.e. Australia, UK, Canada, US, Singapore etc, so there might be a different form of IP in the code law nations (continental europe - actually US kind of falls between the two in some ways).
But insofar as IP in most countries go, you have:
- copyright - only owns words and images, not the ideas. Certainly doesn't protect characters, setting and so forth - at most you'd have to change the characters' names. If they owned copyright on the dialgoue from FO, that could be a problem, as you'd have to change the wording of a sufficient portion of it, but I doubt they own the copyright on that - they would have bought the FO name, rather than (say) the title music and writing therein. In any event, the lawsuit would be set up wrong if that was the case - they're suing for sale and marketing of the fallout trilogy. If they were suing on dialogue and characters, they'd have to state the dialogue and characters that they were claiming ownership of - e.g. the use of the line 'get your rats on a stick here!' And even then, they still would have great difficulty claiming copyright over that because very few terms were 'out of the ordinary' - you can't copyright general speech. You might be able to copyright the name 'Brotherhood of Steel', but again, the suit doesn't seem set up that way. Would be a dicey case in any event - Brotherhood and Steel are pretty ordinary words, and their combination isn't particular distinct - you certainly wouldn't risk a major lawsuit over it. Vault Dweller, with capital V and D, might be a better bet, but still avoidable - changing names like that is less effort than what used to go into the utterly budget console ports of yesteryear. COuld probably do it with one guy working on a mod. And that's in the unlikely event that they have the copyright over that stuff, or would be silly enough to sue on it (given that the damages for that would be trivial, as opposed to the substantial damages if you caught Interplay breaching an exclusivity contract). Most legal threats under copyright (EXCEPT the ones where sony sues you for pirating - as I said, copyright has teeth when it comes to music and code) are baseless threats that the company knows can't be enforced, and are just trying to scare you into a compromise. That used to be so common in Australia (and still is elsewhere) that they made it a significant offence over here to threaten someone with breach of copyright when it is clear that the threat is groundless (that was 10 years ago when I studied IP at uni, not sure if it is still on the books now - in those days you had record makers threatening to sue car dealerships for switching on the car radio to prove that the radio worked, without paying royalties to the company that owned the song being played). But I can't imagine them trying a baseless threat against a company large enough to get legal advice.
The only area where copyright has any real teeth is music - because it protects the exact combinations of notes. But otherwise, if you want to write 'the badly lit tall building', and have the exact same plot as Stephen King's the Dark Tower, then go for it - just make sure you don't copy out any exact passages.
- trademarks - applies to the titles and logos,that's all.
- patent - doesn't apply to this area,
- confidentiality contract - not applicable
- designs - not applicable
Traditionally, the ONLY form of IP used in the software industry is copyright over the code, and exclusivity contracts to prevent subsidiaries, ex-employees and business partners from competinga gainst you. That's why Microsoft can't prevent Open Office from making a Word-imitation that opens word documents. The code is different, and copyright doesn't protect the idea.
So what form of IP could they be using? There isn't any general IP that covers 'content' as you put it, that I'm aware of. I'm not trying to be a know-it-all here, I'm asking honestly - I didn't practice in IP, and my current work doesn't take me near that stuff, so I haven't looked at it since law school many many years ago (my best friend is an IP lawyer for the Australia Film Institute, so I could ask him next time I speak to him, I guess).
The lack of an IP covering 'content' was why the original FO could take so much from Mad Max (characters, food, armour-styles, weapons, art-style, etc). Again, they could have called it 'Insane John', and kept the same plot as Mad Max without losing a thing.
Edit: it is also the exact reason why Coke doesn't use IP to protect its formula from Pepsi. If it patented the formula the patent would have run out about 10 years after invention (i.e. many years ago now), and there is no IP that allows it to own the idea or even the 'content' (the formula and manufacturing process). It relies on good old fashioned secrecy, combined with employee contracts that threaten to financially castrate any of the handfull of employees that knows that actual formula if they tell (they have a syrup that can be reverse-engineered, and then vials that get added to it, which are kept under massive security and they few guys allowed to handle them don't know what is in them). If the secret got out, they'd have no IP protection, but there simply isn't an IP that covers that stuff.
Now that doesn't mean that Interplay's sale to Bethesda was worthless. I would have thought that the contract WOULD have included clauses preventing Interplay from selling any products containing any characters, dialogue, art or other assets from the Fallout series. You could create an IP via an exclusivity contract, and then enforce it by suing for breach of contract, sure. But if they aren't doing that, then what form of IP are they relying on?
Edit: what it COULD be is a threat to drag Interplay through a long and ultra-expensive court process unless they voluntarily stop selling them, or assign them over to Bethesda, even if they legally don't have to. THAT is a very common tactic. Bethesda/Zenimax could wear the legal costs over the next few years (plus appeals after that) without raising a sweat, whereas Interplay is struggling for existence and any major ongoing cost like this could collapse it. Even if Bethesda has no grounds, or has grounds but little likelihood of large damages payout, they might be backing themselves to bankrupt Interplay with legal fees, or at least threaten to so that Interplay is forced to sell them the back catalogue.
