A major industry publisher has finally been burned in the global crackdown on loot crates. It could have been easily avoided.
Since we left off, my house was on HGTV for whatever reason, I moved the site to a shiny new server, and I never ended up telling John I was going to go ahead and record this episode without him. Sorry John.
Industry outlets reported this week that Bethesda Softworks has named Behaviour Interactive and Warner Bros. in a lawsuit, alleging breach of contract and willful copyright infringement stemming from suspicious likenesses between its game Fallout Shelter and Warner Bros’. new Westworld mobile game, both of which Behaviour developed. Although news of the suit just emerged late last week and neither defending party has responded, plenty of footage of both games rests in public hands, and we have access to Bethesda’s 34-page complaint (complete with screenshots) on which to speculate. So let’s take a look at the case so far, and the important questions it raises about game industry practices.
Bethesda Softworks LLC., Plaintiff – Bethesda, keeper of such mega-hit franchises as the Fallout series and The Elder Scrolls, needs little introduction, but it’s worth presenting its own introduction in the complaint–Bethesda is the owner of all intellectual property rights in and to the Fallout series, including all computer code. Bethesda released its first game in the Fallout series, Fallout 3, in 2008, and has earned wide critical acclaim with the series ever since. Despite its rampant success, Bethesda is certainly no stranger to the justice system.
Bethesda is represented in the matter by Margaret A. Esquenet–who blogs and podcasts on the topic of intellectual property on top of several impressive career victories–and Douglas A. Rettew, whose most awesome case is almost certainly a win for Under Armour in Under Armour Inc. v. Ass Armor LLC.
Behaviour Interactive Inc., Defendant – Behaviour Interactive hails from Montreal, and presumably solidified its working relationship with Bethesda during the production of Wet in the mid-to-late 2000s. At that time, Behaviour operated under the name Artificial Mind & Movement, styled “A2M,” which was changed because of the other, quite obscene potential meaning of the abbreviation. Bethesda proposed Fallout Shelter–code name, “underground”–to Behaviour in January of 2014. In June of 2015, the game was released and shot straight to the near-top of the charts for mobile downloads and players. To capitalize on its popularity, Shelter was later released on PC.
Warner Bros. Entertainment Inc., Defendant – Warner Bros. announced a mobile tie-in game for its hit TV series Westworld in March, and gave players their first glance at the project at GDC in San Francisco and SXSW in Austin. The game’s marketing site revealed that it too was developed by Behaviour Interactive.
Upon learning about Behaviour’s new team-up with Warner Bros., Bethesda says it determined Behaviour, by necessity, must have not only breached its contractual agreement for Fallout Shelter in working with Warner Bros. on a competitive app, but that it clearly started with a copy of Fallout Shelter or at least large portions of its copyrighted code and assets as a foundation for Warner Bros’. Westworld game. Bethesda goes as far as to call the game a “blatant rip-off,” and suggests Warner Bros. and Behaviour intentionally and willfully violated Behaviour’s responsibilities to Bethesda in an effort to shorten development time and lower development costs for Westworld.
Bethesda’s explicit legal complaints break down like so:
- Breach of Contract – Against Behaviour – That Behaviour significantly breached its agreement with Bethesda, violating a non-disclosure agreement and confidentiality provisions.
- Inducement to Breach of Contract – Against Warner Bros. – That Warner Bros., knowing of Behaviour’s agreement, induced (or convinced) Behaviour to breach its contract with Bethesda to make a competitive game using copied code and assets.
- Copyright Infringement – Against Behaviour and Warner Bros. Jointly – Considering Behaviour turned over its work-for-hire product to Bethesda per specification, and Bethesda’s subsequent copyright and sole ownership of the commissioned product, Bethesda alleges that Behavior and Warner Bros. have both violated Bethesda’s copyrighted work in developing Westworld.
- Misappropriation of Trade Secrets – Against Behaviour and Warner Bros. Jointly – That Bethesda derives “economic value” from trade secrets established in maintaining Fallout Shelter, and those secrets were exploited and implemented wrongly in the development of Westworld.
- Unfair Competition – Against Behaviour and Warner Bros. Jointly – Basically, that it is unfair for Warner Bros. and Behaviour to team up, using Bethesda’s commissioned work to create a product that competes directly with Fallout Shelter.
Bethesda’s complaint presents a wealth of solid examples suggesting Behaviour reused its code. In a series of side-by-side screenshots, the suit describes likenesses as big as overall gameplay objectives, and as small as identical camera movements. Though the actual UI in Westworld does not closely resemble that of Fallout Shelter, Bethesda lists a variety of menus, features, and mechanics that work in a virtually identical fashion.
Bethesda was not the only party to notice. The complaint quotes a Forbes reporter who wrote, “It’s an obvious Fallout Shelter evolution…” This is the first of about a dozen quotes from sites, bloggers, and journalists who casually note the striking similarity between the games, presumably under the impression that the involved parties were all satisfied through some unknown agreement.
It’s likely that even more damning evidence would be presented at trial. Bethesda says in its complaint that Westworld even has the same bugs as an early development version of Shelter. This has led to a lot of “har har” moments on Twitter, but it’s something people aren’t really thinking through.
Bethesda identifying stolen code by the bugs in it is the most perfectly bethesda thing i can think of pic.twitter.com/qpPHGgah6S
— Queenie (@queer_queenie) June 22, 2018
What we actually have is an example of Bethesda catching another team’s bug and making them fix it. That means that a bug present in Westworld is almost certainly demonstrable in an old Fallout Shelter build at Bethesda, in addition to being the topic of all sorts of official communication between the two teams. If anything, it’s interesting that an alleged copy of the code used to build Westworld didn’t also have Shelter’s bug fix implemented. If it was an earlier version of the code, isn’t it also possible that the bug is the fault of a prepackaged engine like Unity or Unreal? If I was representing the defendants, these are the kind of hail Marys I’d be throwing.
Bethesda seeks a great deal of relief from the court, including (of course) an injunction barring the defending parties from continuing to develop, distribute, or support Westworld, money for Behaviour’s breach of contract, damages for copyright infringement, attorneys’ fees, punitive damages, and more. Per legal procedure, a victorious Bethesda would have an option to either receive statutory damages for willful copyright infringement in amounts established in related case law, or “at plaintiff’s election…actual damages and defendants’ profits…in amounts to be proven at trial.”
This is all worded very carefully, as willful infringement moves potential damage awards from a range of $750 – $30,000 per act, up to $150,000 per infringement. It’s unclear to this layman how many acts could be considered to have taken place here. Punitive damages, while we’re at it, are a hotly debated topic among legal scholars. Contract law alone is generally thought to be structured in a “strictly business” manner, as a means of making a plaintiff whole after suffering measurable damages. As such, a simple breach of contract case would not be expected to result in extra damages awarded to the plaintiff, simply as a deterrent to the defendant against further breaches. Many experts believe copyright law should be handled the same way. While the US Copyright Act does not explicitly provide for punitive damages, it does not necessarily preclude them, and they’ve been awarded in several recent decisions. It’s hard to deny Bethesda has a strong case, but it remains to be seen if maximum aggression will serve them if it goes to trial.
Questions yet to Be Answered
Bethesda’s case looks so bad for Behaviour and Warner Bros., that it’s actually hard to imagine what either will say in its defense. But, with the burden of proof on Bethesda, how easily can it prove some of the bolder claims from the suit? Is Westworld really a direct reskin of an early build of Fallout Shelter? Or could a jury be convinced that Behaviour made use of a process and tricks it picked up along the way, rather than directly repurposing Bethesda’s now-copyrighted code? Further, what will it take to establish that Warner Bros. intentionally sought out Behaviour and convinced its team to take a shortcut and build a competitor directly from the bones of Bethesda’s product? What could either studio have possibly been thinking with such a strategy?
What kind of settlement would Bethesda accept, that involved Westworld’s continued existence, and prevention of the defendants getting hammered at trial? Could Behaviour frame some type of defense painting its agreement with Bethesda as an unfair and unenforceable contract? If Bethesda’s contract could somehow be proven voidable, the rain clouds would part and the sun would shine again for the defending parties. If Behaviour and Warner Bros’. files and communications are fair game during pre-trial discovery, all will be revealed, and it’s hard to imagine anyone but Bethesda with any leverage at all.
When I was a pre-teen, my grandpa enlisted my help in setting up and using a decent riding lawnmower to maintain his yard for a respectable sum per-mow, probably in the neighborhood of $10-15. My friend’s dad down the hill saw my fine work and eventually approached me, saying he’s getting older, his son is unreliable in such matters, and if I would take care of his lawn too, there was $20 per week in it for me.
After my next trip around grandpa’s lawn, I hopped off the John Deere, walked down the hill, and asked my new client if it was a good time to get his push mower out and get to work.
“That’s not part of the deal,” he said. He explained that the deal was contingent upon my bringing the shiny John Deere down to make quicker work of the yard, and that he had no intention to pay for gas. My grandpa, of course, cried foul.
I was angry at my grandpa at the time, but of course, it was my friend’s dad being a dick. It’s hard to imagine acting that way as an adult, and it’s not that you needed me to illustrate this case metaphorically, but I can’t help but imagine Behaviour right now, angry at Bethesda for not letting it benefit from its own hard work, when really I can’t imagine how Warner Bros. ever thought this was going to fly. I don’t want to be too quick to paint Warner Bros. as the same kind of guy who once asked me why my single mom doesn’t work a little harder so I can afford to play sports, so I’ll be watching for updates with great interest and promise to consider all defendant responses fairly.
If the case does go to trial, perhaps the industry stands to gain new answers to questions of acceptable competition. Should a studio ever create a competitor for its own work-for-hire product? Is it fair for a publisher to give a studio reason to develop expertise in a certain type of game, and expect it never to benefit from that expertise again? What is a reasonable set of expectations for a contract between a publisher and a studio? The case won’t decide what’s morally right and wrong, but it may provide vital strategies for keeping indies and small studios safe.
Todd Mitchell is a professional developer and freelance industry journalist. His enthusiasm for legal matters should be taken no more seriously than a Phoenix Wright game. Follow him @mechatodzilla.