Monday, August 31, 2015

Gearbox Week: Can You Be A Sore Winner If It's Not Much Of A Win?

I said in a previous post that Duke Nukem was going to wind up being a recurring presence on this site, but he's not the only one. Gearbox Studios is also on my radar thanks to the developer's...unique approach to going to court. The two cases we in the masses know about are the class action suit about "Aliens: Colonial Marines" and the suit filed by Gearbox itself against 3D Realms over who has custody over the Duke Nukem intellectual property. Hopefully that's the last time "Duke Nukem" and "intellectual" ever have to share a sentence.

Those are two very different cases in terms of their subject matter and where Gearbox falls on the side of the all-important "vs," but they have one thing in common: Gearbox was chomping at the bit to tell the world about their supposed victories in each of them. The problem with that is, no matter how quickly you get a dismissal or reach a settlement with your opponent, the United States legal system is never going to actually vindicate you, which is what Gearbox seems to think happened.

There is no verdict of "innocent." Especially not in civil court where you really only have "liable" or "not liable." Defendants are dismissed from claims for a million and one reasons, actual innocence being only one reason. The vast majority of the time, parties get off the hook because someone filed the case at the wrong time, didn't include enough information in the complaint, or the escaping party has the legal right to make someone take the bullet for them.

That last one is what it looks like happened in the class action suit against Sega and Gearbox that was filed back in 2013. I have a lot of things to say about what went on between Sega and Gearbox there, and that's going to get its own article on Friday. What I will talk about at this point is that the tone Gearbox took when it discussed the case made it seem like they didn't realize there was no declaration of innocence being made in their favor. Having one defendant dismissed does not make the suit "frivolous." Losing class action status doesn't mean the suit was brought in bad faith. All it means is that, under the court's interpretation of the contract between Sega and Gearbox, Sega has to act like Gearbox's meat-shield and take all the litigation hits on the "Aliens: Colonial Marines."

It was actually the other big Gearbox civil suit that got my attention to the point where I felt like saying something on this site. The short version of the case is that Gearbox sued 3D Realms (original owners of Duke Nukem) and a development studio called Interceptor on the basis that 3D Realms was still shopping the Duke Nukem license around to people after Gearbox the exclusive rights to it. To take Gearbox's version of events, 3D Realms sold their sweet baby boy Duke to Gearbox in hopes that he'd have a better life, regretted their decision, and went on as if the sale had never happened to the point where they got poor little Interceptor involved in this mess by having them work on a new Duke Nukem game. I was never really able to pin down what 3D Realms' defense to this was. Best I can tell it amounted "Yeah okay maybe we sold it to you but (a) we didn't really want to sell it and (b) you didn't even pay us as much as you said you would." And then there's Interceptor, swept up by forces beyond its control, trying to figure out how to turn its now cancelled Duke Nukem game into something they're allowed to sell. They settled the case, with Gearbox looking like the clear victor, back in May of 2015.

Let it be known by all that Gearbox and Gearbox alone has the right to underwhelm people with a new Duke Nukem game! (source: The Duke Nukem Forever List)
On the face of it, it looks like Gearbox is totally in the right with this suit. Not just legally, but maybe even morally. It's not right to go back on promises, and it's not right to sell things you don't own.

But you know what's also not right? Dressing your defeated opponent in a silly outfit before stuffing him into a tiny cage and ordering him to dance for your amusement on a live international broadcast.

That's the kind of vibe I got off of this, which is from a section of Gearbox's official website:
From Mike Nielsen (3D Realms CEO): “When Interceptor acquired a license to develop ‘Duke Nukem Mass Destruction’ (‘Duke Nukem Survivor’) from 3D Realms, we did so in good faith and were not aware of any conflict. We never intended to cause any harm to Gearbox or Duke, which is why we immediately ceased development after Gearbox reached out. To secure the future of Duke, 3D Realms has agreed with Gearbox that a single home serves the IP best. And as big Duke fans, we’re excited to see what Gearbox has in store for the ‘King.’ As for our own games, we’re eager to complete development of the ‘Bombshell’ game and get it in the hands of our fans.”

Knowing the context that this statement came from, how does this not read like one of those scripts that hostages are forced to read? And there's another one from Interceptor that, strangely (or not), has the same line about being "excited to see what Gearbox has in store for the 'King.'" Now obviously I can't prove anything, but that kind of thing makes me think the same person drafted both of the apology statements. And I'm still totally speculating, but if such a person were the source of those statements, perhaps the check they received for writing such a statement would have come from Gearbox rather than 3D Realms or Interceptor.

I think these sound like someone from Gearbox's legal department wrote those apologies and gave them to 3D Realms to sign. Did I make that clear? 

Another thing I'd like to make clear is how fundamentally weird it is that there are apology statements in the first place. I have had court victories against people who absolutely made my blood boil while simultaneously not having a leg to stand on in the legal sense, but never has it ever occurred to me or any of my clients to seek an official apology. Especially not in business cases where court battles like these really are just business. This was a dispute over licensing of an intellectual property. That's like the least personal thing I can think of. But Gearbox seems to have taken it personally enough that those little paragraphs of contrition are hanging like proud trophies on their mantelpiece. Maybe these kinds of apologies happen behind the scenes to smooth things over for possible future relationships, but posting them publicly like that just feels kind of gross to me.

I love me some Borderlands 2, but the way Gearbox handles their court cases makes my face scrunch up. You shouldn't be looking for pats on the back because you got someone else to take all the liability for something you were involved in. You shouldn't take that extra step to embarrass the people you settle with out of court. There's no sense that any talks went on behind the scenes about how they got into these situations to begin with and how they can avoid them in the future. This kind of behavior makes me think that Gearbox is going to be a frequent flier in the legal system, and given their track record of crowing to the press, we will all be hearing about those cases whether we are interested or not.

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