Interplay: Fallout 6 could be ours

[Elven6]

Re: Take over clause

So to clarify Caen's statement, which contract contains the clause that if the MMO is canned by Bethesda that the three game deal would become active?

No contract contains that clause. However, the Asset Purchase Agreement does contain a clause that if the APA is voided for any reason, the Exclusive Licensing Agreement will be in full effect as if it always had been.

Yes, that's the one I was talking about him referencing. If the MMO is canned (hence making the contract void according to Caen's description) the three game deal would return.

I guess that could be the closest the rights could truly revert.

Could you image how divided the community would be then?

 

[The Dutch Ghost]

As I said before, Hell has already frozen over and genetic engineering will make flying pigs soon possible, so at this point I am honestly no surprised by whatever will happen.

The sad thing is, us longer term Fallout fans will still never get anything like Van Buren.
I am not even sure they will be able to do another New Vegas.

 

[Geech]

Re: Take over clause

Yes, that's the one I was talking about him referencing. If the MMO is canned (hence making the contract void according to Caen's description) the three game deal would return.

I guess that could be the closest the rights could truly revert.

Could you image how divided the community would be then?

At this point I'm starting to suspect you're fucking with me, but I'll give you the benefit of the doubt. However, I do feel as thought we're going in circles, so this is the last response I will make to you on the matter. I want to be absolutely clear on these points:

The MMOG being canceled is not sufficient to void the sale. The Trademark Licensing Agreement, which allowed Interplay to continue making the MMOG, is a separate contract from the Asset Purchase Agreement, with which Bethesda purchased the Fallout intellectual property. If Interplay have not met their responsibilities as outlined in the Trademark Licensing Agreement and are unable to continue work on a Fallout MMOG, Bethesda will still own Fallout. I don't think I can make it more clear than this.

Typically, there are very few situations in which a contract is unilaterally voidable. Fraud is one of them, but I don't think that's applicable at all. I discussed the concept of Material Breach of Contract, but even that is very dubious because Bethesda clearly have not breached the Asset Purchase Agreement. I just don't see where the argument has any merit. Even if we assume the best outcome for Interplay out of the plausible options and Bethesda are found to have interfered in the ability of Interplay to fund their MMOG, I still don't believe the court will allow interplay to rescind the contract. I talked about that when I discussed remedies at law and remedies in equity.

To reiterate, there does not appear to be any realistic course by which Interplay will recover ownership of the franchise. It will not happen.

The reversion clause was not even placed into the APA to protect Interplay; it was written to protect Bethesda. At the time of the sale, Interplay was facing lawsuits attempting to force them into involuntary Bankruptcy. Bankruptcy can be an extremely hairy financial situation, and there was a possibility that it could complicate the sale of Fallout to Bethesda. The ELA clause was written into the APA so that if sale was voided during bankruptcy proceedings, Bethesda would not be left with a partially completed game they couldn't sell. If you're looking to this clause for some kind of hope that Interplay might recover the license, then you are barking up the wrong tree.

To reiterate once more: If the MMOG is canceled, Bethesda still own Fallout. Nothing in any of the contracts says otherwise.

 

[Fallout1FTW]

This drama is so sickening. I love Fallout but why couldn't it have stayed dead along with BIS. Now we'll all be treated with mediocre franchise handling until it finally dies someplace around "Fallout 12"

 

[SmartCheetah]

This drama is so sickening. I love Fallout but why couldn't it have stayed dead along with BIS. Now we'll all be treated with mediocre franchise handling until it finally dies someplace around "Fallout 12"

All we need is terrible film adaptation, few more parts with shitloads of DLC's and online game failure, totally based on Everquest/WoW gameplay but just with fallout theme.
"Kill 50brahmins and bring me their hides 'couse I want a proof that they're dead!"

 

[Elven6]

Re: Take over clause

Yes, that's the one I was talking about him referencing. If the MMO is canned (hence making the contract void according to Caen's description) the three game deal would return.

I guess that could be the closest the rights could truly revert.

Could you image how divided the community would be then?

At this point I'm starting to suspect you're fucking with me, but I'll give you the benefit of the doubt. However, I do feel as thought we're going in circles, so this is the last response I will make to you on the matter. I want to be absolutely clear on these points:

The MMOG being canceled is not sufficient to void the sale. The Trademark Licensing Agreement, which allowed Interplay to continue making the MMOG, is a separate contract from the Asset Purchase Agreement, with which Bethesda purchased the Fallout intellectual property. If Interplay have not met their responsibilities as outlined in the Trademark Licensing Agreement and are unable to continue work on a Fallout MMOG, Bethesda will still own Fallout. I don't think I can make it more clear than this.

Typically, there are very few situations in which a contract is unilaterally voidable. Fraud is one of them, but I don't think that's applicable at all. I discussed the concept of Material Breach of Contract, but even that is very dubious because Bethesda clearly have not breached the Asset Purchase Agreement. I just don't see where the argument has any merit. Even if we assume the best outcome for Interplay out of the plausible options and Bethesda are found to have interfered in the ability of Interplay to fund their MMOG, I still don't believe the court will allow interplay to rescind the contract. I talked about that when I discussed remedies at law and remedies in equity.

To reiterate, there does not appear to be any realistic course by which Interplay will recover ownership of the franchise. It will not happen.

The reversion clause was not even placed into the APA to protect Interplay; it was written to protect Bethesda. At the time of the sale, Interplay was facing lawsuits attempting to force them into involuntary Bankruptcy. Bankruptcy can be an extremely hairy financial situation, and there was a possibility that it could complicate the sale of Fallout to Bethesda. The ELA clause was written into the APA so that if sale was voided during bankruptcy proceedings, Bethesda would not be left with a partially completed game they couldn't sell. If you're looking to this clause for some kind of hope that Interplay might recover the license, then you are barking up the wrong tree.

To reiterate once more: If the MMOG is canceled, Bethesda still own Fallout. Nothing in any of the contracts says otherwise.

I've always been talking about the clause which Caen mentions in the interview. Essentially, which contract gives him the impression that this could happen? And according to what he says assuming it's true or remotely plausible, what could constitute Bethesda refusing the MMO?

Given what you have previously stated, it seems his (Caen's) impression is that if the APA is "voided" (from your post on the previous page) the three game deal returns. Reading into it further, it's possible that they believe if the MMO is canned the APA is void. The conditions in which the MMO was canceled probably qualify but I guess it's safe to assume Interplay believes they've fulfilled their end of the deal.

Frankly, I don't care much who owns the rights to Fallout, the franchise has gotten to a point where only one of the three gameplay demographics (classic, Tactics, 3) can be catered to properly, I highly doubt they would be able to successfully (be it Interplay, Bethesda, or a third party) juggle even two of them without confusing and perhaps even losing the user base.

But I agree, there seems to be some confusion here as to what's being mentioned when and where so we are going in circles somewhat.

 

[Hellfate]

It all depends on how the court rules. I think thats where the confusion is coming from. If the judge says that bethesda is correct and interplay did not meet requirements and that bethesda is justified in canceling the mmo, then interplay simply loses the mmo and all things publicly fallout related to MMO (at least thats the way i understand it). If the judge says that Interplay has met all the requirements but it was close, most likely bethesda will have to pay legal fees for interplay and interplay will get to make the MMO under the current contract. The only way interplay gets fallout back is if the judge rules that bethesda has been acting in bad faith all along and COMPLETELY VOIDS the contract, in that case fallout would revert to interplay and the prior contract allowing bethesda to make 3 games would be in effect. Now the last is not likely to happen, simply because its hard to prove that bethesda has been acting in bad faith (although some of their more recent legal ploys make it easier) and the judge is unlikely to take such drastic action unless its to make a point and set a precedent. One of the first 2 rulings are far more likely.

 

[Vik]

The sad thing is, us longer term Fallout fans will still never get anything like Van Buren.

True, we probably won't see an isometric fallout, but there's still hope that Wasteland 2 will see the light of day. And in all honesty, I understood and accepted that back in 2007 when I saw the F3 teaser. Shame, yeah, but since I find the morrowind/oblivion open world style enjoyable, it's not all bad. Definitely better than getting another Tactics.

Also, with Beth doing Skyrim this year and DLC's for it all next year, what's the chance of Obsidian doing another Fallout game?

 

[ryan-o-]

Re: Take over clause

I've always been talking about the clause which Caen mentions in the interview. Essentially, which contract gives him the impression that this could happen? And according to what he says assuming it's true or remotely plausible, what could constitute Bethesda refusing the MMO?

Given what you have previously stated, it seems his (Caen's) impression is that if the APA is "voided" (from your post on the previous page) the three game deal returns. Reading into it further, it's possible that they believe if the MMO is canned the APA is void. The conditions in which the MMO was canceled probably qualify but I guess it's safe to assume Interplay believes they've fulfilled their end of the deal.

Frankly, I don't care much who owns the rights to Fallout, the franchise has gotten to a point where only one of the three gameplay demographics (classic, Tactics, 3) can be catered to properly, I highly doubt they would be able to successfully (be it Interplay, Bethesda, or a third party) juggle even two of them without confusing and perhaps even losing the user base.

But I agree, there seems to be some confusion here as to what's being mentioned when and where so we are going in circles somewhat.

There is no such clause, the APA and TLA are available in full on the vault for anybody to read. Read section 2.8 of the APA, this is what Caen is referencing and as Geech mentioned was placed in the agreement to protect Bethesda from the involuntary bankruptcy petition filed against Interplay by creditors. It's tough to understand because it is written in legalese, but basically it says nothing of the sort. It was written in the event of a scenario, for example, where Interplay was owned by creditors and claimed that the APA was false because at the time of its execution Interplay owed X amount of money and therefore they didn't own the franchise and the creditors did. In that case this agreement would be void and the ELA would return.

We don't have a copy of the ELA, but based on how the APA is written Interplay were owed certain royalties, possibly after the three games were completed they were still allowed to make more games but owed royalties to Interplay? I'm just guessing. Basically it says if the agreement reverted to the ELA, they wouldn't owe anything in royalties other than what they paid in the APA. This section also states that were that to happen, Bethesda would be a secured creditor of Interplay and entitled to a first priority lien over all of the Fallout IP. If Caen is referring to this as some sort of get-out-jail-free card he is delusional. I don't think it's up for the court to decide anything in the agreement, only the TLA. Bethesda clearly hasn't breached this SEPARATE agreement by any means.

Regarding the TLA, Bethesda must have had some pretty terrible lawyers for this case to even be ongoing. It clearly has several defined landmarks that Interplay was not able to meet. Even if they somehow convinced the court that their MMO game was in "full-scale development" due to the term being loosely defined in the agreement, they still didn't raise $30 million minimum financing. It doesn't say they can meet one or the other, either was grounds for losing the license. If they did meet both items of criteria (and they clearly did not), they still would have to launch within 4 years of beginning development and it's going to be really hard from them to do that.

Interplay doesn't have a pot to piss in, I guess that's why they're pissing all over these contracts.

 

[UncannyGarlic]

True, we probably won't see an isometric fallout, but there's still hope that Wasteland 2 will see the light of day.

Yeah but given what happened to Bard's Tale, whether or not it'll be any good is completely up in the air.

Shame, yeah, but since I find the morrowind/oblivion open world style enjoyable, it's not all bad. Definitely better than getting another Tactics.

Depending on tastes. Tactics is what it claims to be and is mediocre at worst, average at best at it. It's not very good to the lore but it's not a whole lot worse than Fallout 3 in that regard either. Todd himself has said that Fallout 3 is a mediocre FPS. Neither really cut it if you're looking for Fallout.

 

[Vik]

Yeah but given what happened to Bard's Tale, whether or not it'll be any good is completely up in the air.

True. If Jason "Quitter" Anderson really worked on it, there's a chance that it's good.

And what I really don't understand is why no indie studio is trying to make something wasteland/fallout like. I mean, the formula is easy - world map, ~10 locations, random encounters, turn based combat, all on a nice looking 2d engine + hire a good writer and a guy who knows how to make a rpg. Sell it on steam for 20 bucks. Sure, it won't be superb, but with more experience they will really deliver with a sequel.

Depending on tastes. Tactics is what it claims to be and is mediocre at worst, average at best at it. It's not very good to the lore but it's not a whole lot worse than Fallout 3 in that regard either. Todd himself has said that Fallout 3 is a mediocre FPS. Neither really cut it if you're looking for Fallout.

Yeah, but Fallout 3 was the first of it's kind. New Vegas is definitely a lot better and if you ask me - one of the best rpg's to come out in years.

 

[TheWesDude]

Re: Take over clause

Regarding the TLA, Bethesda must have had some pretty terrible lawyers for this case to even be ongoing. It clearly has several defined landmarks that Interplay was not able to meet. Even if they somehow convinced the court that their MMO game was in "full-scale development" due to the term being loosely defined in the agreement, they still didn't raise $30 million minimum financing. It doesn't say they can meet one or the other, either was grounds for losing the license. If they did meet both items of criteria (and they clearly did not), they still would have to launch within 4 years of beginning development and it's going to be really hard from them to do that.

Interplay doesn't have a pot to piss in, I guess that's why they're pissing all over these contracts.

you need to start paying attention if you are going to make comments like the bolded section and the rest of it.

there was only 1 clearly defined goal, and the only defined part of it was the dollar amount, not even how it was defined, where it had to be, or anything other than the $ amount. the dev studio actually doing the work had $35 mil on hand and devoted to the mmo, and iply was doing the "supervision" of it.

and what is "full scale development" ???? that is a stupid term. even the "online studio" guy zenimax hired, matt firor, made 2 MMOs with less people than the dev studio had and made 2 MMOs with that many people. both DAOC and WHO were made with less than 30 actual developers making the game. DAOC was created with a team of around 12-15. WHO had about 25 actual devs, the rest were support staff. and the dev studio + iply had over 30 people working on the fallout mmo.

so if you want to say that iply was never in "full scale" development, they had more people than the parent of beth made 2 MMOs with.

 

[ryan-o-]

Re: Take over clause

you need to start paying attention if you are going to make comments like the bolded section and the rest of it.

there was only 1 clearly defined goal, and the only defined part of it was the dollar amount, not even how it was defined, where it had to be, or anything other than the $ amount. the dev studio actually doing the work had $35 mil on hand and devoted to the mmo, and iply was doing the "supervision" of it.

and what is "full scale development" ???? that is a stupid term. even the "online studio" guy zenimax hired, matt firor, made 2 MMOs with less people than the dev studio had and made 2 MMOs with that many people. both DAOC and WHO were made with less than 30 actual developers making the game. DAOC was created with a team of around 12-15. WHO had about 25 actual devs, the rest were support staff. and the dev studio + iply had over 30 people working on the fallout mmo.

so if you want to say that iply was never in "full scale" development, they had more people than the parent of beth made 2 MMOs with.

I am not quite sure what you mean... I'm definitely not disagreeing that 'full scale development' is a stupid term, that's why I said it was loosely defined. I wasn't aware that Masthead put $30 million toward the FOOL project either, I read something around the area of $15 but I might be wrong.

Not a lawyer, but I used to work with contracts and commercial agreements on a daily basis so I'm well aware that unless clear definition is given that anything is open to interpretation. It doesn't take a rocket scientist to figure out that the TLA completely sets Interplay up for failure but that didn't stop them from signing it. They must have been foaming at the mouth over that $5+ million.

Ignoring the $30 mil and 'full-scale development' requirement, they still have to, according to this agreement, launch the game within 4 years after the development commencement date. We know they've been developing it since 2007, it's going to be hard to say that they have not. They do get a year extension though if they release it within 12 months of that 4 years, something they would likely try to argue considering it's currently planned for a 2012 release.

There is also a ton of language in there that protects Bethesda - like for example "Interplay shall not directly or indirectly attack or impair the title of Bethesda to the Licensed Marks, the validity of this Agreement, or any of Bethesda's registrations or applications
relating to any Licensed Mark in any jurisdiction". Ooops.

Plus Bethesda has to literally approve everything and the game has to meet their 'quality standards' (which I know around here doesn't add up to much). So I stand by what I said, Bethesda must have had some pretty terrible lawyers (they did switch legal firms afterall). This thing should've been open and shut.

I don't blame Interplay for trying because they literally have everything to lose. If all the stars align and the judge/court is super ignorant (which is usually the case regarding video games) they really could get the FO liscense back and that would be like winning the lottery for them but then again so are their chances. I doubt that would happen though because I don't see anything in the APA that says they can do that. Looks like some of that agreement was verbal and in good faith. I know the Caens are French, but in the US that doesn't mean squat unless documented.

On a side note, I suggest anyone that is still willing to give the FOOL project any sort of chance check out the online videos for Earthrise which uses the same engine. The visuals look like they were sucked out of the PS2 era... not a good sign

edit - n/m, no point in arguing with you considering you post history. Safari based on Mozilla tech, eh? Umm... Okay. It's based on Webkit. Which is based on Konqueror. Which has nothing to do with Mozilla. Don't even bother repsonding to me ever again, you should really pay better attention to life dude

 

[Elven6]

Re: Take over clause

There is no such clause, the APA and TLA are available in full on the vault for anybody to read. Read section 2.8 of the APA, this is what Caen is referencing and as Geech mentioned was placed in the agreement to protect Bethesda from the involuntary bankruptcy petition filed against Interplay by creditors. It's tough to understand because it is written in legalese, but basically it says nothing of the sort. It was written in the event of a scenario, for example, where Interplay was owned by creditors and claimed that the APA was false because at the time of its execution Interplay owed X amount of money and therefore they didn't own the franchise and the creditors did. In that case this agreement would be void and the ELA would return.

Section 2.8 also mentions the following,

HOWEVER, that if in
connection with or as the result of any bankruptcy proceeding or liquidation,
dissolution, or in connection with any other insolvency proceeding, fraudulent
conveyance claim, or other claim or action, any court, bankruptcy trustee, or
other applicable Person causes this Agreement and the transactions hereunder to
be voided, nullified, or otherwise unwound or overturned for any reason under
federal or state law,

Not the entire text, just a snippet.

http://fallout.wikia.com/wiki/Asset_Purchase_Agreement

Anyway, the bolded sections from what I can make of them seem to state there are more factors than simply Interplay's bankruptcy that could make the contract void. Specifically the "or other claim" part, the courts mentioned later on are likely bankruptcy courts but I could be wrong on that.

Regarding the TLA, Bethesda must have had some pretty terrible lawyers for this case to even be ongoing. It clearly has several defined landmarks that Interplay was not able to meet. Even if they somehow convinced the court that their MMO game was in "full-scale development" due to the term being loosely defined in the agreement, they still didn't raise $30 million minimum financing. It doesn't say they can meet one or the other, either was grounds for losing the license. If they did meet both items of criteria (and they clearly did not), they still would have to launch within 4 years of beginning development and it's going to be really hard from them to do that.

Since it's an on going legal matter and none of the relevant details have been made public, it's impossible to know whether or not Interplay did or didn't meet their obligations. According to Interplay they were met, according to Bethesda they weren't.

Ausir might have more info on this but in terms of funding I believe Masthead were providing between $15-20 million and one of the investment groups that acquired stake in Interplay were providing the rest?

Ignoring the $30 mil and 'full-scale development' requirement, they still have to, according to this agreement, launch the game within 4 years after the development commencement date. We know they've been developing it since 2007, it's going to be hard to say that they have not. They do get a year extension though if they release it within 12 months of that 4 years, something they would likely try to argue considering it's currently planned for a 2012 release.

What authorizes full scale development will be argued in court (presumably), if what we're told about the MMO currently is true, assuming 2007 is indeed decided as the year development started, releasing a title at the tail end of the year might be plausible if what we're told about the world itself so far is true.

Whether the game will be any good or not if it makes a December 2011 release date is unknown.

There is also a ton of language in there that protects Bethesda - like for example "Interplay shall not directly or indirectly attack or impair the title of Bethesda to the Licensed Marks, the validity of this Agreement, or any of Bethesda's registrations or applications
relating to any Licensed Mark in any jurisdiction". Ooops.

This basically means they won't use anything in bad faith (like having an evil gang called "The Bethesda Raiders" or something like that), this is typical of most legal contracts.

Plus Bethesda has to literally approve everything and the game has to meet their 'quality standards' (which I know around here doesn't add up to much). So I stand by what I said, Bethesda must have had some pretty terrible lawyers (they did switch legal firms afterall). This thing should've been open and shut.

I don't see how them approving or disproving anything would factor into the current lawsuit in terms of them getting it thrown out immediately. Regardless, as shown by e-mails between Herve Caen and Bethesda, Herve was keeping Bethesda informed regarding the classic Fallout stuff (it was Bethesda who was hit or miss) so one must assume the MMO stuff is also included.

I think Bethesda would also need a valid reason to deny something related to the MMO. They can't just say "no we don't want this in the game" without a legitimate reason.

On the topic of Earthrise, it doesn't look bad and the engine isn't PS2 era. Something to keep in mind is that the engine is rendering large game worlds with various other process going on at the same time. To expect something Crysis level from an MMO (especially one that isn't going for a realistic look) is removed from reality due to technical and artistic limitations.

 

[TheWesDude]

elven, you have to keep in mind that everything herve sent to beth in regards to the MMO including multiple drafts of promotional materials and stuff to try to get more investors was unilaterally denied by beth every time and they never provided a reason.

herve even stated that he sent over like 4-5 promotional posters and 4-5 documents to garner investors were all denied and returned back to him via email within an hour.

 

[Elven6]

elven, you have to keep in mind that everything herve sent to beth in regards to the MMO including multiple drafts of promotional materials and stuff to try to get more investors was unilaterally denied by beth every time and they never provided a reason.

herve even stated that he sent over like 4-5 promotional posters and 4-5 documents to garner investors were all denied and returned back to him via email within an hour.

Within an hour? No,

http://fallout.wikia.com/wiki/User_blog:Ausir/Interplay-Bethesda_correspondence_unveiled

The first email alone took a week to respond too. Heck, the final e-mail in section 3 wasn't even replied to until 12 minutes before the press release was supposed to go live. If time zones are involved, it could have been an hour or two after the release had gone live.

I don't think the promotional stuff was aimed at investors directly but they may have been secondary objectives. Even if investors were the main target, it really shouldn't surprise anyone.

 

[Ausdoerrt]

Yeah, but Fallout 3 was the first of it's kind.

So was Tactics.

 

[Vik]

Hardly comparable.

 

[UncannyGarlic]

How so? Tactics is a squad based tactics game and Fallout 3 is a Elder Scrolls/Ultima Underworld/other such games with guns instead of magic.

 

[Makagulfazel]