It Kind Of Looks Like Crytek Sued Star Citizen Developer By Pretending Its Engine License Says Something It Doesn't

from the fake-it-until-you-make-it dept

Mon, Jan 22nd 2018 3:27pm — Timothy Geigner

We see all kinds of crazy copyright disputes and lawsuits around here. It is, after all, kind of our thing. Still, occasionally you come across a copyright lawsuit so completely head-scratching as to make you question reality. Thus is the case with the lawsuit Crytek filed against CIG, makers of the long-anticipated Star Citzen game, for both breaking a licensing agreement between both parties and copyright infringement. Strangely, if you read the complaint, all of this centers around CIG choosing not to use the Crytek engine.

Crytek's lawsuit alleged that CIG broke a CryEngine licensing agreement and infringed on Crytek's copyrights by switching from CryEngine to Amazon's Lumberyard platform in late 2016. But CIG contends that Crytek's complaint selectively and misleadingly quotes from the full Game License Agreement signed by both parties.

CIG's response, as highlighted in its motion to dismiss looks really bad for Crytek. Essentially, CIG contends that Crytek either doesn't know how to read its own licensing agreement, or is selecting portions of the agreement to make it seem like it says something it simply doesn't. As an example, Crytek's suit claims the licensing agreement isn't supposed to extend to a spinoff game CIG is developing, Squardron 42, except that the full licensing agreement CIG put before the court specifically covers Squadron 42 by name.

And if that sort of gaff isn't enough to get your head shaking, CIG also points out that the licensing agreement, while providing exclusivity to the engine to CIG, doesn't actually require the company to use the engine at all.

CIG also argues that the "exclusive rights" to CryEngine granted in the license agreement do not extend to a requirement to use that engine. "The plain language of the GLA where the grant of rights to CIG appears, plus the well-established concept of an exclusive license, instead establish that the word 'exclusively' simply means that CIG’s right to use the Engine in the Game is exclusive to CIG and Crytek may not give that right to anyone else," the company writes.

"No provision in the GLA states that CIG 'shall not' embed any other engine or third-party software in the Game," the response continues.

That covers the contract dispute portion of this. The claim of copyright infringement brought by Crytek appears to center on CIG's failure to post Crytek's copyright notices for the game engine it is no longer using.

By extension, the requirement to list Crytek's copyright notices only applies when CryEngine was being used, CIG argues. Furthermore, CIG argues, the original agreement bars either party from seeking damages, as Crytek is attempting with its lawsuit. And Roberts Space Industries, which is named in the original Crytek complaint, didn't actually sign the agreement in question, CIG contends.

At face value, it's difficult to describe this whole situation as something other than Crytek's legal team stepping directly into a bucket of shit, comically hopping up and down while shaking its fist for a moment, and then simply falling over backwards. I'm hard-pressed to think of a bigger loser of a suit than this, assuming CIG's documentation is correct.

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Filed Under: engine, exclusivity, licensing, squadron 42, star citizen, video games
Companies: cig, crytek

36 Comments

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Anonymous Coward, 22 Jan 2018 @ 5:07pm

If you use it, it's copyright infringement. If you don't use it, it's copyright infringement. Well, who am I to argue with a lawyer?
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- Anonymous Coward, 22 Jan 2018 @ 7:06pm
  
  Re:
  Same logic MyNameHere is such a fan of. If you look like you're committing a crime, you're guilty. But if you don't look like you're committing a crime, obviously it means you took steps to prevent yourself from looking like you're committing a crime, so you must be guilty and therefore have to surrender anything and everything for inspection, just in case there's anything incriminating. After all if you weren't guilty you wouldn't have anything to hide, right? (Never mind that if you did have something to hide they'd run roughshod over you anyway...)
  [ link to this | view in chronology ]
  - Toom1275 (profile), 22 Jan 2018 @ 9:58pm
    
    Re: Re:
    Just like that farcical Aereo decision: "By following every applicable law exactly to the letter, you must therefore be breaking it."
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- Coyne Tibbets (profile), 22 Jan 2018 @ 7:28pm
  
  Re:
  Look, it's very simple: Having reached an agreement with us, failure on your part to pay us forever is a violation of our intellectual property rights in your money.
  [ link to this | view in chronology ]
Anonymous Coward, 22 Jan 2018 @ 5:14pm

Mostly, yes. But there seem to be some claims regarding CIG having to contribute "fixes" back to Crytek, a point CIG stayed silent on.
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- Anonymous Coward, 22 Jan 2018 @ 5:55pm
  
  Re:
  One would assume fixes would refer to issues encountered while using the software. Since they decided against using it, any fixes would be none existant. Nice try though.
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  - Anonymous Coward, 22 Jan 2018 @ 8:09pm
    
    Re: Re:
    They did use it for a few years though. Not sure if they ever submitted the agreed bug fixes.
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    - Anonymous Coward, 23 Jan 2018 @ 4:59pm
      
      Re: Re: Re:
      Since Crytek has yet to give any examples of this alleged failure on the part of CIG to submit bug fixes and optimizations while they were still using Cryengine, we just have Crytek's word that CIG didn't.
      
      Honestly, I have a rather strong suspicion that Crytek is trying to get the court to rule major additions/changes to the game engine that were specific to their game(s); e.g. the conversion to a 64 bit precision coordinate system, the spherical physics grid, the various procedural generation tech, the various tech for continuously streaming game assets in and out of the client's perception, etc... as just "bug fixes and optimizations" to Cryengine.
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- Anonymous Coward, 22 Jan 2018 @ 8:54pm
  
  Re:
  They didn't address it directly, but they did address all of Crytek's concerns indirectly. The agreement includes a clause that states neither party can sue the other for damages, which is exactly what Crytek is trying to do. If Crytek can't claim any damages, then the whole lawsuit gets thrown out anyways. They would have to prove that CIG was acting intentionally malicious or grossly negligent, and I don't think them not sending over some bug reports is gonna be enough to prove that.
  [ link to this | view in chronology ]
  - Anonymous Coward, 23 Jan 2018 @ 8:33am
    
    Re: Re:
    The text says "EXCEPT FOR INTENTIONAL ACTS OR OMISSIONS OR GROSS NEGLIGENT ACTS". Malice is not a requirement; Crytek would only have to show CIG committed an "intentional act or omission" that violated the license. I suppose removing/omitting the copyright notice could count, if that term of the contract is still active (it's not tied to actually using the engine, but the court could use common sense to throw it out).
    [ link to this | view in chronology ]
- Anonymous Coward, 23 Jan 2018 @ 8:00pm
  
  Re:
  What's weird about your logic, though, is that it assumes CIG was responsible for testing, finding bugs, fixing the bugs, then submitting those fixes to Crytek. That's a very unusual request for a client/customer. Basically, you're assuming CIG was first responsible for testing CryEngine and submitting regular testing/fix reports, then responsible for developing a game second.
  
  Based on what lawyers have said, CIG was responsible for submitting bugs they might have encountered, along with any fixes they developed, on a regular basis while using CryEngine to develop the Game. That is not the same as saying CIG was responsible for finding bugs, fixing them, and providing Crytek with the code fixes (their own product) in lieu of developing the Game.
  [ link to this | view in chronology ]
Anonymous Coward, 22 Jan 2018 @ 8:14pm

What makes this more complicated is that they didn't really switch engines. Amazon bought a version of Cryengine and named it Lumberyard. It was only a few days effort for CIG to switch from Cryengine to Lumberyard since they were based on the same codebase.
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- Will B., 22 Jan 2018 @ 10:05pm
  
  Re:
  Sounds like an issue between Crytek and Amazon, then. If Amazon bought a version of it with the express intent of modifying it and releasing it as Lumberyard and selling it, I have to assume Amazon cleared all the legal hurdles to do so, and thus it was well within CIG's rights to purchase a license to that and use that instead.
  [ link to this | view in chronology ]
  - Anonymous Coward, 22 Jan 2018 @ 10:53pm
    
    Re: Re:
    Agreed. However there may be a bit of bad blood between Crytek and CIG. A few years ago Crytek didn’t pay their employees for a few months and a bunch of them were hired by one of CIG’s subsidiaries. As a result CIG has been able to make a whole bunch of new improvements to the engine. I haven’t seen a response from CIG stating that they have threes fixes/new features.
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    - Will B., 23 Jan 2018 @ 1:06am
      
      Re: Re: Re:
      IANAL, but I don't believe "bad blood" is a legal doctrine.
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      - Bruce C., 23 Jan 2018 @ 12:53pm
        
        Re: Re: Re: Re:
        R-E-S-P-E-C-T...looks like Crytek's CEO told their lawyer to sock it to CIG.
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That Anonymous Coward (profile), 22 Jan 2018 @ 10:32pm

Copyright, it can do anything!!!
Except make sense.
So stretched, bent, twisted, mangled that somehow this is a case of Schrödinger's copyright.
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- Bruce C., 23 Jan 2018 @ 1:03pm
  
  Re:
  I think you mean a Klein copyright, where it only has one side.
  
  Actually, Schrodinger is a pretty accurate analogy for most legal doctrines. Until its tried in court a doctrine is both valid and invalid, depending on which lawyers you talk to. The judge is the observer that causes the quantum legal function to collapse into a single state...at least until appeal.
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Anonymous Coward, 23 Jan 2018 @ 1:47am

Honest question, as a non-developer-- do these kind of "you have to use our engine for this game" kind of contracts show up for platform-exclusive titles? And if so, how are they usually phrased compared to this one?
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- Eldakka (profile), 23 Jan 2018 @ 5:24am
  
  Re:
  
  do these kind of "you have to use our engine for this game" kind of contracts
  
  The whole point of CIGs submission is that that is not what the contract says.
  
  Therefore there is no "these kind of" because this isn't one of those contracts.
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  - Anonymous Coward, 23 Jan 2018 @ 7:55am
    
    Re: Re:
    It looks pretty clear to me: "Fully-Executed Game License Agreement between Crytek GmbH and Cloud Imperium Games Corp.
    …
    2.4. During the Term of the License, or any renewals thereof, and for a period of two years thereafter, Licensee, its principals, and Af?liates 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 which compete with CryEngine.
    …
    2.8. Copyright Notice and Trademarks
    2.8.1. The splash screen, credits screen, documentation and packaging (if any) as well as the marketing material (print, online etc.) of the Game shall include the following wording:
    ?Portions of this software are included under license 2004-201_ Crytek GmbH. All rights reserved.? Crytek's copyright notices shall be no less prominently displayed than Licensee?s own copyright notices.
    …
    8. Term and Termination
    8.1. Term. The Term of this Agreement shall begin on the Effective Date [November 20, 2012]. Unless sooner terminated in accordance with the provisions hereof, the Term shall remain in force for the Commercial Life of the Game."
    
    Unless the license has already been terminated for 2 years, §2.4 prohibits them from maintaining/selling another engine (the game they sell contains an engine—and obviously it's competing, because they used it to replace Crytek's). §2.8 requires the copyright notice, apparently regardless of date; common sense says it's only required if they actually use the copyrighted material, but the contract does not. (It's unclear whether it should persist after termination: "Sections 6.3 and 7 shall survive any termination of this Agreement, as well as any other provisions which by their terms or meaning are intended to survive. Termination of this Agreement shall not relieve the Parties of any obligation accruing prior to such termination." Did the copyright notice "accrue"?)
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    - Anonymous Coward, 23 Jan 2018 @ 8:57am
      
      Re: Re: Re:
      I think you're mis-interpreting what is meant by 'selling' a competing engine. They aren't doing that; they're using a competing engine that Amazon is selling. Nobody can buy an engine from CIG.
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    - Anonymous Coward, 23 Jan 2018 @ 8:57am
      
      Re: Re: Re:
      I think you're mis-interpreting what is meant by 'selling' a competing engine. They aren't doing that; they're using a competing engine that Amazon is selling. Nobody can buy an engine from CIG.
      [ link to this | view in chronology ]
    - KeillRandor (profile), 23 Jan 2018 @ 8:51pm
      
      Re: Re: Re:
      As I said below - 2.4 of the GLA is a standard non-compete clause - to prevent CIG from developing their own ENGINE as their BUSINESS, rather than developing a game using such an engine.
      
      Anyone reading this as anything else, is simply not reading to correctly/accurately AS WRITTEN, which includes Crytek, apparently.
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      - Will B., 24 Jan 2018 @ 3:59pm
        
        Re: Re: Re: Re:
        I think I see the issue.
        
        They're reading "or licensing (directly or indirectly) any game engine or middleware which compete with CryEngine."
        
        They're missing the context, which is:
        
        "engage in the business of designing, developing, creating, supporting, maintaining, promoting, selling or licensing (directly or indirectly) any game engine or middleware which compete with CryEngine."
        
        People are reading this as "You are not allowed to license any other game engine but CryEngine during the time of the contract," but that is NOT what it says.
        
        It explicitly says they are not allowed to sell, develop, or license OUT TO OTHERS any other game engine during this time. I.E., they are not allowed to DEVELOP AND SELL their own engine during this time. That's the "Engage in the business of" part, guys.
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        Will B., 24 Jan 2018 @ 4:01pm
        
        Re: Re: Re: Re: Re:
        oh hey you already said that below herpaderp. HAHA PLEASE DISREGARD THAT I COOK SOCKS.
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KeillRandor (profile), 23 Jan 2018 @ 2:39am

Been following this for a while...
This GLA between Crytek and CIG is too ambiguous is places, and was obviously written either in a hurry or by amateurs :P

Having said that, trying to make out that a (fairly standard) non-compete clause (against CIG developing their own game engine) is instead a clause determining exclusive use of CryEngine FOR the game (no other engine allowed) is just bullshit.

The moment CIG swapped to using Lumberyard (new contract between CIG and Amazon), and stopped using CryEngine the GLA between Crytek and CIG is no longer applicable.

For this reason, the two viable claims they do have, only matter for the time until this happened:

Failure to reciprocate bug fixes and improvements to the engine, and failure to display engine use and copyright ownership notices etc. with the product.

The only other ambiguous aspect is how it applies to Squadron 42 - on one hand it describes it as a separate game, but on the other it also details that it must use the same basic launcher-executable as Star Citizen. If this didn't happen while they were using CryEngine (not Lumberyard), then Crytek may also have a (minor) case regardless of it being described (and therefore allowed to exist) as a separate game.
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- Tanall, 23 Jan 2018 @ 4:42am
  
  Re: Been following this for a while...
  "This GLA between Crytek and CIG is too ambiguous is places, and was obviously written either in a hurry or by amateurs :P"
  
  Crytek has a nasty habit of not paying their employees, who then move on to greener pastures. With the greener pastures often being CIG ironically enough. Thats how they wound up with CIG Frankfurt (the entirety of Crytek's former dev staff). Thats how they wound up with their current second in command (Former Crytek legal head).
  
  So its entirely possible that Crytek has no experienced staff, and the one that wrote the contract WAS an amateur.
  
  Alternative, it was intentionally written ambiguous so as to make a court case a necessity as a means to encourage settlements down the road. But that may be giving them too much credit.
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Anonymous Coward, 23 Jan 2018 @ 3:59am

Vids covering all three docs
A real-life copyright lawyer goes over all three docs:

https://www.youtube.com/watch?v=7MzzuiQVTDw

https://www.youtube.com/watch?v=ti4R8JsJa9A

https://w ww.youtube.com/watch?v=DHoiLclXI2M

quite intertaining
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- Tanall, 23 Jan 2018 @ 4:45am
  
  Re: Vids covering all three docs
  Do a search for 'Youtuber Law' to get a tech/software lawyer's take.
  [ link to this | view in chronology ]
Bamboo Harvester (profile), 23 Jan 2018 @ 4:43am

And if that sort of gaff isn't enough...
Talk about an ironic comment - it's "gaffe", "an embarrassing blunder" not "gaff", either a large hook on a pole for boating fish or a spar off a mast. :)
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- Anonymous Coward, 23 Jan 2018 @ 5:05pm
  
  Re: And if that sort of gaff isn't enough...
  Perhaps it's an intentional metaphor, as in "The hook brings you back, on this you can rely." ;)
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Bruce C., 23 Jan 2018 @ 12:46pm

Wait, WHAT?
Crytek actually has a license that you SIGN? not just a shrink-wrap EULA that you have to click? The times they are indeed a changin'.
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marsilies (profile), 23 Jan 2018 @ 2:02pm

Article isn't up to date
This article is missing Crytek's response to CIG's motion to dismissal

2:17-cv-08937-DMG-FFM Document 25 Filed 01/19/18

PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS THE FIRST AMENDED COMPLAINT OR CLAIMS FOR RELIEF THEREIN OR, IN THE ALTERNATIVE, TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT
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Anonymous Coward, 23 Jan 2018 @ 2:03pm

Explain to me again how it's all right for governments to collect private personal information on all of us, because only the right people can access it.

The problem isn't that a socially-challenged but clever kid in a foreign country can access our closely-guarded secrets; the problem is that an ethically-challenged but stupid bureaucrat thought it would be a good idea to get this information all in one place so it can be more easily accessed by anybody on earth.
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- Anonymous Coward, 23 Jan 2018 @ 5:06pm
  
  Re:
  I think you replied to the wrong article, or at least I hope this is the case... :p
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