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> Maybe French law is much weirder than ours, but this phrasing would be highly suspect in the US. You would get a really affirmative ruling that you are still bound by contract or not.

French law is not that strange :). But the decision was appealed and it seems Nacon won in appeal (in october 2020), which allowed them to pursue the contract and to publish the game another time.

The decision: https://webcache.googleusercontent.com/search?q=cache:DwqXp6...

This seems like exactly what is missing from their story. Unless something more recent was issued, they were flagrantly ignoring a direct court order.

Summary of the timeline, based on a previous post by Frogwares[0]:

In 2019:

— Publisher paid for game development, though usually not on time. Per contract, IP remained with the game dev, and there was no obligation to hand over the source.

— Publisher hired another studio to work on a similar game, and started demanding source code from game dev.

— Game dev delivered the game (not the source). (Not clear whether on time or not.)

— Publisher released the game, and immediately withheld profits from sales (with some mechanism referred to as retroactive milestone cancellation).

— Publisher was also found to remove game dev’s logo, buying domain names reflecting game dev’s brand, mislead the public as to who had the rights to the game, and do other shady things.

— Game dev sued, with unknown outcome.

In 2020:

— Attempt to pirate the game by the publisher was discovered (February). (Note: this is alleged to have happened long before publisher won on appeal, so it’s not as if the publisher decided to pirate the game after the court determined they are owed the source.)

— Game dev terminated the now-breached contract and notified the publisher. Publisher claimed French COVID regulations precluding contract termination (?!).

— Publisher sued and lost (July).

— Publisher appealed and won (October). (This happened after the publication of the post I referenced.)

This obviously presents game dev’s perspective only. It seems exhaustive enough though, and so far I’m inclined to think they aren’t distorting facts and may have been taken advantage of by a larger business (the publisher).

Violating a court order is bad, and if game dev was ordered to hand over the source they should probably have complied. That aside, it’s unclear whether the courts ultimately sided with the good guy here. Sadly, if game dev’s the victim here, appealing cross-border may be infeasible for them.

[0] https://frogwares.com/the-sinking-city-is-being-delisted-her...

If you read the court ruling (in some comment around here, but in french) it makes things a little bit more clear.

- publisher not asking for the source code, they want GM copies

- publisher didn’t demand source code according to contract ( they state publisher asked for code, but there is no indication they demanded )

- they didn’t deliver the game, at least drm free and for steam

- publisher usually has non exclusive usage right to IP

But most important, they contacted steam etc and delisted game still appeal process was going, citing IP reasons.

Also they are even defensing that delaying steam release didnt cause any harm to the publisher.

They are acting in bad faith clearly.

I’m not a lawyer, but isn’t it reasonable to pull the plug as soon as the publisher had lost the contract termination lawsuit? Otherwise it seems like a loophole if the publisher can keep appealing indefinitely while getting (and withholding from game dev) all profits from the sales.

> they didn’t deliver the game

I don’t think either of us knows what exactly the delivery entailed (if you do, you could share a source), but as far as I understand the game was delivered as it was sold by the publisher (who kept and/or didn’t completely disclose profits—against the terms, it appears) and played by the users.

> they state publisher asked for code, but there is no indication they demanded

According to their post, publisher hired another studio to work on a similar game, and apparently wanted to have the code for that purpose. “Ask for” is different from “demand”, I agree, though it does sound like they were pressured.

That aside, are you basically saying the game dev is lying and their contract with the publisher was different from what they claim in their posts? I guess we can’t say for sure, absent evidence, but I don‘t see why they’d lie here.

> I’m not a lawyer, but isn’t it reasonable to pull the plug as soon as the publisher had lost the contract termination lawsuit? Otherwise it seems like a loophole if the publisher can keep appealing indefinitely while getting (and withholding from game dev) all profits from the sales.

On the contrary, it sounds like the publisher had already given the develop several millions of dollars to develop the game. You can't just declare a contract void, keep the money, and tank the deal.

https://webcache.googleusercontent.com/search?q=cache:DwqXp6...

Frogwares was under a court order to fulfill their obligation.

IANAL, but it's worth pointing out that none of the court orders precluded a lawsuit for Frogwares to collect their fair share. But them violating their obligations in the mean time is probably bad faith and will land them in hot water.

> On the contrary, it sounds like the publisher had already given the develop several millions of dollars to develop the game. You can't just declare a contract void, keep the money, and tank the deal.

I’m not a lawyer, but I’m pretty sure about this: if you partially fulfil and also partially breach a contract, the end result is that you have breached it.

The formerly-alleged logo removal was from console game covers and from marketing materials. Which, while sketchy, isn't necessarily a violation of copyright, unless the game devs designed the covers.

> Attempt to pirate the game by the publisher was discovered (February). (Note: this is alleged to have happened long before publisher won on appeal, so it’s not as if the publisher decided to pirate the game after the court determined they are owed the source.)

Actually, there are two alleged instances of piracy.

First, in Feb 2020, their game was slated to be listed on a distribution platform that was not agreed upon.

(In August 2020, they removed their game from Steam.)

Second, in Feb 2021 (just last week!), the deluxe version of their game was listed on Steam with identifying watermarks, copyright, digital signing, and more removed _from the software_.

I’m not sure about publisher’s actions after they won the appeal in late 2020. Deluxe release certainly seems a bit aggressive, but without knowing the details of the ruling it’s hard for me to have a [layman’s] opinion on whether it was acceptable for them to do it.

My [non-lawyer’s] impression based on the older post is that, if true, the publisher acted maliciously enough in early 2020, and the fact that the court decided the appeal in publisher’s favour in the first place weirds me out a bit. It looks like emergency COVID regulations against contract termination came into play? They were designed to protect struggling small businesses, but in this case ended up favoring publisher’s booming enterprise (game sales appear to have done very, very well during the pandemic).

> the fact that the court decided the appeal in publisher’s favour in the first place weirds me out a bit. It looks like emergency COVID regulations against contract termination came into play?

Honestly, the surprising part is that Frogwares won in July. To terminate the contract, they asked Nacon to hand in justification for their costs of distribution and used Nacon's failure to deliver them in a month as justification. As that's not explicitely part of the contract - Frogwares can ask to audit Nacon and Nacon has to allow them to do so in a month, they can't ask to be delivered arbitrary documents - it was obvious that the termination would be deemed illegal.

I don't understand why Frogwares keep speaking of the emergency COVID regulations. They would have allowed the publisher to be late in its contractual obligations but Nacon wasn't. The appeal court explicitely stated they didn't apply as both Nacon and Frogwares kept their activities going as usual.

But to give you an idea of how badly Frogwares managed this lawsuit, the court went out its way to explicitely point they were throwing out parts of Frogwares'"mise en demeure" - the letter explicitely asking Nacon to submit documents - becuase it was to poorly and vaguely worded.

To be harsh, Frogwares are going at it like amateurs. At the end of the day, the heart of the issue is a disagreement regarding the amount they are owned. I don't understand why they didn't just pursue that angle and I don't think the amount of press they are giving the whole thing is going to help them much.

Your response updated my understanding of this situation, seems like taking one side’s position at face value was a mistake.

> It seems exhaustive enough though, and so far I’m inclined to think they aren’t distorting facts

If you read the appeal court judgement summary, you will see that they are actually heavily distorting facts.

You are notably missing these parts:

- the publisher asked them for GM copies in order to publish, don't seem to contest that the IP is owned by Frogwares and the part about the other studio seems to be mostly paranoid non sense;

- Frogwares is unhappy about the amount of royalties they are paid, thinks the costs of distribution are inflated by Nacon but didn't properly trigger the contract audit close;

- Frogwares is extremely unhappy about the Epic store launch and seems to think they should have got more money despite actually failing to deliver on the contractualy agreed date;

- Frogwares went over their publisher to have the game delisted from distribution plateformes in a total breach of contract;

- Frogwares terminated the contract for a spurious motif (failure to justify costs of distribution in a month) which was never part of said contracts

- publisher never claimed that French COVID regulations precluded the contract termination, only that the contract termination was illegal which it was shown to be.

The whole thing is far from one sided.

> I can't find any of the details about Nacon's unlawful actions, and it seems Frogware is being intentionally vague.

They are not.

They’ve written about it before: https://frogwares.com/the-sinking-city-is-being-delisted-her...

In short,

- They have withheld payments owed Frogwares.

- They have been behind on payments made by on average 40 days.

- They have incorrectly claimed to own the IP to third parties, including in their IPO.

Yes! I updated my post when I saw this.

I can't imagine it will be so simple for Frogwares to rip up their contract and walk away with the money they were paid already. But I imagine their publisher openly ripping off their game will make upcoming settlements really easy for them.

The court ordered Frogwares to deliver the sources in October with 50k euros of penalty per day not shipping them. Frogwares did not deliver anything. As an Irish company with offices in Ukraine having to settle against a french publisher paying taxes in France, low standing in court (several lawsuits) and not having executed previous court orders, it sounds harder from my point of view. I can imagine a world where they even end up having to pay for the hacking cost as well.

was the original contract ever produced or available?

> to deliver the sources

this seems weird, since one party is telling the world from their blog the source transfer was never part of the agreement

Seems kinda weird. I wonder if Frogwares could sue in a US court? Both companies probably do the bulk of their business in the US and are selling through US-based stores.

Why? It's not any better than where they are now. If anything US court will drag it our even longer. Also Frogware already lost.

I don't think the court ordered them to deliver the source code.

I didn't read the full decision linked by @ernesth, but this part says that they have to deliver two "masters", one drm free and one for Steam.

Sur la livraison des formats manquants :

— ordonner à Frogwares Ireland de lui livrer les deux masters du jeu 'The Sinking city’ sur format PC DRM Free et Steam sous astreinte de 50.000 euros par jour de retard à compter du 5 ème jour suivant la notification par e-mail de la décision à intervenir

I think the meaning of master in this case is Gold Master : https://en.wikipedia.org/wiki/Software_release_life_cycle#RT...

You are right, it's the gold DRM free master, not the sources. But Frogwares still didn't deliver those two builds.

Then you take the money and don't hack your way to what you're owed.

In my opinion (IANAL), making claims in their IPO that aren’t true might end up being the most damaging for them, if found to be true, and if someone cares to work that angle.

That doesn't seem like a retread at all. Sherlock Holmes vs Jack the Ripper, for instance, was released in '09, and the dispute happened in 2019. A ten year period of exclusivity would not be uncommon, and neither would a publisher dragging their heels on handling it at the end.

It's very possible that the producers, lawyers and business development people involved in the original deal had all moved on. NOLF is famously not getting a remaster because nobody can figure out who owns it!

Maybe Frogwares is a bad actor, I don't know. But game publishers are notorious for trying to get away with all sorts of shit with studios that cannot afford to fight back, so there's another possibility: Frogwares is prepared to litigate to defend what is legitimately theirs.

Absolutely fair. I just want to make sure we don't rush to white knight someone in what from a distance could very well be a domestic squabble.

I don't doubt for a second that the publishers are crappy actors. But on the same token, you wouldn't expect them to do something so brazenly awful unless they had a legal leg to stand on.

More like a peg to stand on. Yarrr.

> NOLF is famously not getting a remaster because nobody can figure out who owns it!

Yet another way the games industry is just "movie industry 2.0". The web of production and distribution deals in the movie biz is notoriously hairy, prone to end up in situations where IP ownership is contested. Which is a shame, really.