While I was away on vacation without internet for the last two weeks, I was sent transcripts and court documents from the latest Bethesda v. Interplay hearing. Other sites conjectured that a settlement was in the works between the two companies over Interplay's Fallout: Online MMO.

Today, DAC has confirmation that a settlement has, in fact, taken place. It actually took place the day of the trial - and had I been able to get online and sort through the documents I would have reported as much. We do not yet have the details of the settlement - they will be announced this month (January 2012) - but we can report that on the day of trial, the atmosphere in the court room was tense until the judge recessed. This recess was extended, and then they recessed for lunch. After the lunch recess, the court room was locked to everyone except attorneys and clients. When our source asked why this was the case, our source was told it was because they were working out a settlement. The following day, another source called the court reporter to ask what the next hearing schedule for the case was - this source was told there was no schedule as a settlement had been reached.

So there you have it. Bethesda v. Interplay settled and done after these long few years. Stay tuned to DAC in the near future for the settlement details. Will Interplay still be able to develop Fallout: Online? Did they give up the rights to do so for a truck load of money? Hopefully we'll have the answers soon.

Our long time sister/brother/mother/father site RPGcodex has shut its door down for good with confirmation made with DarkUnderlord through private message. Here is what is posted on the website now for however long it will be up (probably not long):

Broadcast 12

In Broadcast 12 we hear the story of the very first Christmas as told by Santa Claus himself... Also featuring 'A Merry Little Wasteland', by Charlie C.

Become a fan of Wasteland Radio on Facebook if you believe in Christmas miracles.

Duck and Cover has uncovered a new screenshot for Fallout: Online (codenamed Project V13) via the developer Masthead's official site! Check it out:

The company also notes:

Project V13 is a codename for a MMORPG game, developed in cooperation with Interplay. Work started in 2009.

In addition, Duck and Cover will have exclusive details on the Interplay v. Bethesda main trial which is taking place right now.

That's right, rumors circulated earlier today when GSC's twitter announced that they were going defunct. It was quickly followed by an official statement from the owner Sergei Grigorovich stating that he was shutting down the company and halting development of their games.

Say it ain't so!

UPDATE: Thurs, 08 DEC 09:40 GMT: Here are the results!:

There is a lot referenced in the court transcripts from the Motions in Limine, so if you don't yet know what they were about, please click the links at the bottom of this bottom of this post to familiarize yourself with them.

The court hearing was a mixed bag for both Interplay and Bethesda. Neither company was a clear winner or loser, as both had things approved and denied.

Here is the main decision (ignore the numbers..they are line numbers from the transcript):

1 THE COURT: Okay. All right. With regard to
2 Bethesda's Softworks' motion. The first request is that
3 I hold Interplay Entertainment to have the burden of
4 proof on three separate or three potentially separate
5 issues. One, that Interplay has a trademark and
6 copyright license; that Interplay commenced full scale
7 development by April 4, 20-- I just said seven, but it
8 could have been nine. And second -- and third, that
9 Interplay had secured financing also by April of 2009.
10 The parties, I think, seem to agree that the party
11 asserting a license wants the party owning copyright and
12 the trademark rights to have shown ownership and copying
13 that the party asserting license has the burden of
14 proving the license. The parties agree there is a
15 document called Trademark License Agreement which at
16 least initially both sides asserted valid and
17 appropriately enforced. The question arises as to what
18 -- how to approach the problem as of April 4th 2009.
19 My conclusion is that the license was granted for
20 an initial period of two years. And while Bethesda is
21 calling this a "condition precedent" using contract
22 terms, I think more appropriately it is a condition to
23 the continued existence of the grant of the license.
24 This is a condition that automatically reverted the right
25 to Bethesda unless the condition was satisfied.
1 And, thus, I think it does come down to
2 Interplay's burden, at least of production, with regard
3 to the satisfaction of the condition in the grant. That
4 is, that it will be the burden on Interplay Entertainment
5 to come forward with evidence that it satisfied the
6 conditions in the TLA for a license as of April 4th 2009.
7 This is an express condition in the documents. It is one
8 the treatise writers, at least, talk about as one that is
9 -- results in an automatic rescission or reclamation of
10 rights if a grantee fails to perform the conditions and,
11 thus, it would, if they can't prove to the satisfaction
12 -- produce evidence of the satisfaction of the condition,
13 meaning they have not satisfied their burden of
14 production with regard to having a license.
15 I say "burden of production" because there is at
16 least one commentator that talks about separating out
17 perhaps a burden of persuasion from a burden of
18 production. It's "Patree" or "Patri" on Copyright. And
19 I'm not foreclosing the possibility, assuming that
20 evidence is in equipoise, which it rarely is, of deciding
21 that while Interplay has the burden of production on the
22 issue of compliance with the condition, that it may
23 ultimately remain Bethesda Softworks's burden of
24 persuasion.
25 I'm not -- the parties haven't -- you talked in a
1 uniform way about burden of proof, which is perhaps a
2 combination of both a burden of production and a burden
3 of persuasion. And so I think it only necessary at this
4 point to let you know that the burden of production of
5 evidence on all of these issues will apply to Interplay
6 Entertainment. The reason I asked you the question at
7 the beginning about whether there were any trademark or
8 copyright claims being asserted by Bethesda Softworks
9 before April of 2009 was that at -- if there were, that
10 potentially was raising a scope issue as opposed to the
11 existence issue about the license.
12 And so let me be clear that when we're talking
13 about whether there was a trademark and/or copyright
14 license post-April 2009, the burden of production is on
15 Interplay Entertainment. If we are litigating any
16 question as to the scope of any license pre-April 2009,
17 then it's likely a scope issue but only because the
18 parties, at least initially, agree that there is a TLA
19 in place. So, that's my ruling with regard to the first
20 issue.
21 The second issue is articulated as precluding
22 Interplay from offering parol evidence to support its
23 defense that the TLA granted a copyright license. This
24 would only come into play if in fact there was a TLA of
25 some sort that continued in existence if we're dealing
1 with the post-April 2009 time frame, if you're
2 understanding how I'm proceeding here.
3 So, if there is no license at all then, of course,
4 there is no looking at an April 11 date. At this stage
5 I'm really not prepared to rule in an almost summary
6 judgment-type scenario where I will come out. So I am
7 not going to preclude Interplay from putting on what is
8 being characterized as parol evidence in hard and fast
9 terms. That does not mean that I have decided that it is
10 relevant to any contractual interpretation issue that I
11 need to resolve. It's simply that in a bench trial I am
12 electing to defer any ultimate decisions about that legal
13 question. If this were a jury trial, I might have to
14 take a different approach.
15 The third issue is whether Interplay should be
16 precluded from arguing that it had satisfied full scale
17 development and minimum financing. Again, I'm not, at
18 this juncture, going to grant any summary judgment in the 19 guise of a motion in limine though. Depending on whether
20 they come forward with some evidence or not, they can
21 argue that it does or that I should find that it does
22 satisfy those conditions. But the burden is on Interplay
23 to come forward with some evidence.
24 Now, if there were rulings made during discovery
25 that preclude going beyond what was produced at
1 discovery. That's a different matter, and it's not my
2 understanding that's really at issue. But, rather, what
3 Bethesda Softworks was seeking here was almost a partial
4 summary judgment, and that I'm not going to enter at this
5 point.
6 Finally, though, Interplay is seeking only in
7 their pre-trial order to amend the pleadings to assert an
8 affirmative defense of mistake. Here, what I heard from
9 Mr. Gersh today differs from what was in his response to
10 this issue in the papers. Here you're saying it's
11 nothing new in terms of what the meaning might be of full
12 scale development and secured financing. In the response
13 to this motion, you point to language in the first
14 amendment answer and counter-claim dealing with, in
15 essence, additional trademarks and copyrights in terms of
16 what you were permitted to do. Because, at the time, I
17 thought this was stemming from the dispute as to whether
18 assuming there was a license to use the Fallout
19 trademark, what that meant. Did this have to be an MMOG
20 with the name "Fallout" but look like, whatever, Mickey
21 Mouse or some other character. And today I'm hearing a
22 different perspective all together.
23 In any event, "mistake" is an affirmative defense.
24 It must be pled with particularity; it has not been. It
25 isn't even proposed to be in the response to the motion
1 in limine, and I'm not going to entertain any amendment
2 to the defenses by way of a mistake. What I thought I
3 heard Mr. Gersh talking about today is that the true
4 battleground is whether there is evidence of full scale
5 development or the proper financing, but it's far too
6 late for Interplay to be contending that the TLA itself
7 should be rescinded, in essence, because of a mutual
8 mistake way back in 2007.
9 They have failed to articulate in any sufficient
10 manner what that might have been, and it's far too late
11 to infuse into this case a totally different issue. So,
12 we won't be amending the answer with the affirmative
13 defense of "mistake." Okay.

As for Interplay's Motion to have Thomas Bidaux barred from testifying:

25 THE COURT: Okay. Then, first of all, with regard
1 to the absence of a deposition, I am finding that
2 Interplay had an opportunity to take this deposition if
3 it wished, and I am not going to preclude Bethesda from
4 calling the witness on that basis. I find that I can't
5 rule, based on the current record at least, that
6 Mr. Bidaux will not have information that will be of
7 assistance to the trier of fact, and I'm not going to
8 preclude his testimony on that ground.
9 On the other hand, in reading the report, he
10 doesn't mention that he's seen material concerning what
11 Interplay had done. Instead, his report is based
12 entirely on his own experience, and he will not be
13 permitted to opine at all on whether Interplay had or had
14 not reached the -- satisfied the conditions in the TLA.
15 Rather, he is going to be permitted to testify as
16 proposed in his report as to what an MMOG is and entails
17 and nothing specific to this case, other than that
18 background education for the trier of fact which is going
19 to be me.

To summarize the above and other little bits from the hearing:

1. The burden of proof is on Interplay to prove 3 things.
A. it has a trademark and copyright license
B. it was in full scale development
C. It had secured funding of 30 million.
2. Interplay is not precluded from presenting parole evidence.
3. Interplay is not precluded from presenting evidence showing minimum financing and full scale production.
4. Affirmative defense of mistake will not work for Interplay.
5. Bethesdas witness can be at the trial, but can only testify as to what an mmo is and what it entails...he cannot comment on what Interplay has done.
6. Trial will be at 9:30 A.M. on Dec 12
7. Interplay thinks it will take 2 to 2 1/2 days for the entire trial.

So stay tuned to Duck and Cover for the latest!

UPDATE: Thurs, 08 DEC 03:45 GMT: I have the results of the assorted pre-trial motions in limine! It's a mix of wins and losses for both Interplay and Bethesda. I will be posting my writeup on them later today.

The big Bethesda v. Interplay court hearing that we've been reporting about took place today. It was, unexpectedly, a telephonic hearing rather than a standard in-court situation. Today's hearing was mainly about Interplay and Bethesda's separate Motions in Limine. We should find out soon what issues will be allowed and denied when the main trial takes place. I'm putting this post at the top and will keep updating it as more info becomes available. Right now, all we have is the following:

Telephonic Motions Hearing held on 12/5/2011 re [150] MOTION in Limine filed by Bethesda Softworks LLC and [151] MOTION in Limine No. 1 filed by Interplay Entertainment Corporation - Argued - "GRANTED" in part and "DENIED" in part for reasons stated on the record by Chief Judge Deborah K. Chasanow. (Court Reporter: Tracy Dunlap) (td, Deputy Clerk)

Granted in part and denied in part? But what parts? For reference, here is a list of recent relevant posts, with the earliest first:

Bethesda files Motion in Limine

Interplay fires back

Interplay goes for jugular, no more jury trial

Interplay tears into Bethesda's legal argument

Bethesda launches a volley

Interplay fits in a final argument before Dec. 5 hearing

UPDATE: This post formatting was borked, so I posted a new one. CLICK HERE or just go to the DAC main page to see the Top Story for the transcripts and summary.

This is a few months old now and I'm not sure if it's been posted before, but....

There's a good Youtube documentary about the rise and fall of Interplay. Have a look:

Part 1: Meteoric Rise

Part 2: Meteoric Crash

Part 3: Life in the Crater

Interplay has filed a reply to support its Motion in Limine in the ongoing Bethesda vs. Interplay Fallout: Online lawsuit. The bulk of this reply focuses on Interplay's desire to exclude Bethesda's expert witness Thomas Bidaux from testifying at the trial. Interplay's attorney believes that Bidaux's testimony will be useless and irrelevant and, as such, should be barred from trial.

Contrary to BSW's assertions, its expert's report does not disclose or even reference any opinions related to any activity undertaken by Interplay in its development of the Fallout massively multi- layer game ("MMOG") or that any terms of Section 2.3 of the Trademark License Agreement ("TLA") are technical terms or have any customary usage within the video game industry that require expert testimony.

...

It is without question that BSW's expert disclosure failed to disclose all of the opinions it seeks to introduce at trial. When compared to the list of opinions BSW proffers in the Joint Pretrial Report, Mr. Bidaux's report contains nothing that is remotely equivalent to an opinion of the status, quality, or scope oflnterplay's work on the MMOG. He also does not identify any opinions related to Interplay's financing arrangements, which BSW through its opposition now seems to argue also will be a subject of Mr. Bidaux's testimony. The omission of these opinions from Mr. Bidaux's report is proper grounds for their exclusion. Ibid. And the failure to exclude him would be prejudicial to Interplay.

Even if the Court overlooks BSW's failure to disclose all ofhis opinions, which it should not do, Mr. Bidaux's report also fails to state any factual basis for any opinions related to the development of the Fallout MMOG. This is a second failure by BSW to comply with its Rule 26 obligations.

Mr. Bidaux's report does not identify any facts or data that would support his opinions on the "ultimate issue" of contract performance that BSW first listed in the Joint Pretrial Report. Nor does his report identify any of the incomplete factual assertions BSW attempts to argue in its opposition. The report only briefly sets forth Mr. Bidaux's purported background and experience, but does not identify any material that he reviewed and considered related to development of the Fallout MMOG, as was required by Rule. Mr. Bidaux's report does not indicate that he reviewed any of the thousands of pages of design, development, production, and financing documents Interplay produced in discovery, nor any of the deposition or hearing testimony previously given in this case. The only place Mr. Bidaux's report mentions Interplay is in the caption of the pleading.

Interplay also revisits one of the major sticking point that we learned about before: Bethesda's stonewalling Interplay from deposing Bidaux:

Additionally, one of the main purposes of Rule 26(a)(2) is to allow a party to determine whether an expert deposition is necessary. The Court is aware of the controversy concerning the deposition scheduling for BSW's witnesses. BSW's refused to provide dates for the depositions of its corporate witnesses and its refused to even consider Interplay's proposal for a telephonic deposition of Mr. Bidaux. This put Interplay in the difficult position ofhaving to decide whether to incur the significant expense to travel to Maryland for a deposition that would likely last less than a half-day (in fact 3 hours was Interplay's estimate) and to file additional motions to compel. As set forth in its original motion, Interplay believes BSW's refusal to cooperate justifies a complete exclusion of all of Mr. Bidaux's testimony at trial because Interplay was not permitted to take his deposition. At a minimum, however, Mr. Bidaux should be precluded from testifying beyond the specific statements made in his expert report because Interplay had no notice of those opinions prior to BSW's untimely disclosure in the Joint Pretrial Report.

Today, December 5th, is the day that the court will decide on the various Motions in Limine, replies, and various other pre-trial motions. Stay tuned to Duck and Cover for the latest developments.

A user at the NeoGAF forums got his January edition of Game Informer (which is to feature exclusive news on the game) early and posted up a series of bullet points on Obsidian's upcoming RPG of South Parkian inspiration. The details:

Basics

-The first game Parker and Stone have directly participated in, writing the script and the dialogue.
-Parker has always preferred silent protagonists in RPG's, so the player’s character will be silent.
-The player’s character will be fully customizable.

(...)

Story

-The player will play as the new kid in town, the main theme of the game is fitting in and being accepted.
-The story begins with your character participating in a live action role-playing game that the neighborhood kids started, which eventually evolves into a real adventure.

(...)

Combat

-Many elements of the combat system are like Paper Mario and the Mario & Luigi games.
-Timed inputs occur for defense as well for reduced damage.
-Obsidian doesn't want the player to have to sit and watch animations play out; they're incorporating dynamic camera angels at certain times, such as a Ro Sham Bo attack that stuns an enemy.

(...)

Interview with Trey Parker and Matt Stone

-Parker and Stone really enjoy rpgs and they do think that rpgs are the best fit for southpark.
-They were asked of how making a rpg story differs for an episode, they say that the learning curve was be bigger than anything they have done other then their Broadway musical.
-Parker has been a lifelong gamers, he really likes rpgs because he like the singleplayer nature of them so he doesn’t like or get MMO’s. His favorite game is Oblivion. (What. The. [censored] - ED)

(...)

You can check out the info in full over here, but for now, rejoice! Seems there's finally a turn-based RPG heading our way, even if it comes from the unlikeliest of places.

This news was released a few days ago but I thought it should still be anounced by a DAC news item. Obsidian is to work with the South Park creators to create South Park RPG.

Trey Parker and Matt Stone have never been shy about their love of gaming. From Randy Marsh playing Guitar Hero in his underpants to the legendary "Make Love, Not Warcraft" episode, the comic duo have demonstrated an obvious familiarity with the medium. Now that they've conquered television, film, and Broadway, the next target on their hit list is the gaming industry.

Thanks to a collaboration with THQ and Obsidian, Parker and Stone are writing the script, performing the dialogue, and overseeing the development of South Park: The Game. Unlike the cash-in Acclaim titles from over a decade ago, this ambitious project is a full-scale RPG for the Xbox 360, Playstation 3, and PC. As the new kid in South Park, it'll be up to you to make friends and defend the town from a wide range of threats. Be sure to check out our January issue for all the details, as well as an interview with Parker and Stone themselves.

Even though the idea sounds totally ridiclous, I'm actually looking forward to it. It's something new in the RPG world and gives us a break from the stupid fantasy games that keep coming out. Also with the South Park franchise your able to actually push the limits and maybe they will get the ability to try gameplay features that they would never try on another game.

It is now Bethesda's turn in the game of law. They have submitted a court document called "BETHESDA SOFTWORKS LLC’S OPPOSITION TO DEFENDANT / COUNTERCLAIMANT INTERPLAY ENTERTAINMENT CORPORATION’S MOTION IN LIMINE NO. 1 TO EXCLUDE BETHESDA SOFTWORKS LLC’S EXPERT, THOMAS BIDAUX, FROM TESTIFYING AT TRIAL; OR, IN THE ALTERNATIVE, FOR AN ORDER PRECLUDING HIM FROM TESTIFYING TO OPINIONS CONCERNING THE MEANING OF CONTRACT TERMS CONTAINED IN THE TRADEMARK LICENSE AGREEMENT OR PERFORMANCE THEREOF" - perhaps the longest title in the history of this case. While not a very creative title, it gets the point across. For reference, this is the document that this document seeks to refute. And that one was to refute anoter document, and so on and so forth and wtf legal system.

Here are the main points that Bethesda makes:

Plaintiff/Counter-Defendant Bethesda Softworks LLC (“Bethesda”) respectfully submits this opposition to Defendant/Counterclaimant Interplay Entertainment Corporation’s (“Interplay”) Motion in Limine No. 1 (the “Motion”). In its Motion, Interplay seeks to preclude Bethesda’s expert from testifying at trial to opinions concerning the meaning of contract terms contained in the Trademark License Agreement (the “TLA”) and to Interplay’s performance of such terms, because such testimony is not admissible under Rule 702 and because Bethesda’s expert did not disclose such opinions in his report. Interplay’s request for relief is mystifying. Bethesda’s expert, Mr. Thomas Bidaux, will not provide testimony on the meaning of the terms contained in the TLA or on Interplay’s performance of those terms, and Bethesda has not proffered any expert testimony in this regard. The Court will determine the meaning of the terms of the TLA and whether Interplay satisfied those terms. Mr. Bidaux, who is a highly-qualified expert in the development of online games including massively multiplayer online games (“MMOG”), will provide expert testimony regarding the work that is necessary to develop such games and what development of a game means and entails in the online gaming industry. Such testimony is plainly admissible under Rule 702 and was comprehensively disclosed in Mr. Bidaux’s report.

Alternatively, Interplay seeks to exclude Mr. Bidaux as a witness because Interplay did not depose him during (or after) discovery. This request for relief is frivolous. Interplay did not depose Mr. Bidaux because Interplay refused to appear for the deposition that Interplay requested and Bethesda agreed would be held in the Washington D.C. area on October 28, 2011.

Nevermind the fact that Interplay clearly stated in the previous document that they never agreed to the date...and that Bethesda's attorney stonewalled Interplay's about the whole thing.

To top it off:

Bethesda worked to coordinate the schedules of these four very busy individuals so that the depositions could be arranged on consecutive days, in the same calendar week, during the last part of September.

Bullshit.

Moving on, Bethesda has also offered a Reply Memorandum in support of their Motion in Limine. They argue, tit for tat, that their Motion in Limine is, in fact, a proper Motion in Limine - unlike how Interplay's attorney characterized it. The main meaty issue, however, is the burden of proof. Interplay's attorney argues that the burden of proof should be on Bethesda, not Interplay. Bethesda, obviously, does not want that:

Interplay has the burden of proving the “full-scale development” and “Minimum Financing” requirements of Section 2.3, which are necessary for establishing Interplay’s license defense. License is an affirmative defense and the burden of proving the existence of a license is on the party invoking the purported license.

Bethesda also seeks to bar Interplay from arguing that they did, in fact, fulfill their contractual duties.

Interplay should be precluded from arguing at trial that it satisfieed the requirements of Section 2.3 of the TLA.

The real idiocy comes out, however, when Bethesda's attorney continues to argue that Interplay never had any right to use any of the Fallout world in their Fallout: Online game. "WTF?" you may ask. Yes, that is correct. Bethesda, pretty much proving they entered into the contract on bad faith, argues that Interplay could only use the name Fallout. They could not use the setting, any characters, any lore, anything at all other than the name. They go on to argue that Interplay should not be allowed to argue this point, as the contract is "unambiguous." Pardon me?

The APA and TLA are plain, clear and unambiguous. The TLA granted Interplay a conditional and temporally limited right to use the single trademark “FALLOUT” and nothing more, in the creation of an MMOG.

Now, everyone that has been a regular at DAC or the Fallout scene since the good old days of Fallout 1 and 2 knows what travesties befell Interplay. We all know that it is a shell of its former self and that Herve Caen seems like a pretty slimy businessman type who doesn't really care about gaming. We can all pretty much agree on that. We can all pretty much agree that Bethesda did nothing more with Fallout 3 than make an Oblivion mod. We were all pretty pissed about that. Either way here, angry old-timers will be pretty pissed. But when it comes to this court case, I, for one, cannot help but root for Interplay's attorney. Maybe not Interplay itself, but certainly their attorney. He outclasses Bethesda's attorney by a million miles. And Bethesda's slimy legal actions sully their name. Perhaps if Bethesda stopped being so litigious and focused less on PR and Marketing and more on making good, quality roleplaying games, then we could all be happy.

We will finally see some outcomes on December 5th, but that certainly won't be the end.

/rant

The main court battle between Interplay and Bethesda is fast approaching, and Interplay has now submitted a new document in opposition to Bethesda. This one is titled "Opposition of Defendant/Counter-Claimant Interplay Entertainment Corp. To Bethesda Softworks LLC's Motion in Limine." We reported before about Bethesda's Motion in Limine (and Interplay's), and now Interplay's lawyer is focused on ripping apart Bethesda's before the trial. As with all court documents, it is full of legal jargon, case history and precedence, and general lawyering. I'll try and save you from most of that. Interplay's attorney nicely summarizes, however, in his introduction:

BSW's Motion in Limine, and each request therein, should be denied in its entirety. BSW's Motion is not a proper motion in limine directed at threshold issues of admissibility of evidence. Instead, BSW's Motion seeks an order shifting Plaintiffs burden of proof as to certain essential elements of BSW' s claims to Interplay. BSW's Motion focuses on the sufficiency of evidence to support Interplay's arguments -- even though no evidence has been introduced and Interplay has not had an opportunity to present its case at trial. This is not a proper subject for an in limine motion.

BSW simply reasserts the exact same points that it has raised at least twice before with respect to the meaning and scope of the Trademark License Agreement ("TLA") -the very issues the trial is set to determine. The TLA demonstrates on its face that the parties intended for Interplay to create a "Fallout-branded MMOG" that would include copyrighted or copyrightable elements of Fallout intellectual property. To the extent the Court determines that the TLA is susceptible to different interpretations, the Court may look to parol evidence for indications of the parties' intent, or if it is determined that the agreement is susceptible to multiple differing interpretations, the Court will have to address whether there was a failure of the parties to have a meeting of the minds at the time they signed the TLA and the impact such a failure has on all of the transactions, including the Asset Purchase Agreement ("APA"), for which the TLA was consideration, or whether the conditions in Section 2.3 of the TLA are enforceable contract terms.

So here, we see Interplay's attorney essentially arguing what the Fallout community has been saying - Bethesda's Motion in Limine was idiotic and contradictory. Interplay's attorney goes on to cite numerous legal sources and generally destroys Bethesda's Motion. In addition to the main issue of the Motion in Limine being something else entirely, Interplay's attorney takes up the issue of Bethesda trying to shift the burden of proof:

BSW's argument is legally incorrect. It is BSW's obligation to prove the existence of a valid and enforceable agreement, where all the elements of a contract exist, and Interplay's burden to prove its affirmative defense of license to the extent that the underlying agreements are not declared null and void for a lack of the meeting of the minds of the parties.
...
Because BSW seeks to escape its obligations under the TLA, BSW bears the burden to prove the occurrence of the condition subsequent (Section 2.3) necessary to terminate Interplay's rights.ld. This burden should include both proof of the meaning and interpretation of the agreement and particularly Section 2.3 among others, that the parties had the same understanding of the meaning thereof, as well as persuading the Court that Interplay's development and financing efforts were not sufficient to comply with the language of the agreement.
...
BSW's argument that it cannot "prove a negative" also is inapplicable. (See, Memorandum in Support of BSW's Motion at 7-8.) BSW again provides only a string cite without any analysis of the cases cited. Refusing to shift BSW's burden of proof to Interplay will not require BSW to prove the negative of a fact, as it contends. BSW's burden is no different than that faced by any breach of contract plaintiff, who must prove up the validity of the contract and then prove breach by showing a defendant's failure to perform. See VLIW Technology, LLC v. Hewlett-Packard Co. 840 A.2d 606, 612 (Del.Supr. 2003); see also, Gregory v. Frazer, 2010 WL 4262030 (Del.Com.Pl. Oct. 8, 2010) at *1 (plaintiff proved defendant's failure to pay per contract terms). To find otherwise would mean that in every contract case plaintiff would be able to shift the burden to the defendant to show that it performed rather than plaintiff having to prove that defendant breached.

And for the part that got the internet really riled up, Bethesda tried arguing that Interplay should be barred from arguing that it started full-scale development of Fallout: Online, even though that's what Bethesda compelled Interplay to do:

BSW seeks an order precluding Interplay from arguing as part of its defense that it was in "full-scale development of the Fallout MMOG and had satisfied the requirements for "Minimum Financing" as of April4, 2009.
...
This is another attempt by BSW to sidestep the procedural requirements of a summary judgment motion.

Bethesda argues that the game is not in development, and that Interplay has no idea what is going on in Bulgaria at Masthead:

BSW's logic in regard to the identities of Masthead employees being unknown makes no sense. By analogy, even though the foundation is laid, the walls are framed, the roof is installed and a construction crew can be observed working on the site, there is no evidence that a house is being built unless the particular carpenter who pounded a particular nail can be specifically identified. But the TLA does not contain any requirement that would have caused Interplay to scrutinize Masthead's pre-April 2009 work to that detail.

Interplay's attorney also takes issue with Bethesda's "ambiguous" interpretation of the contracts and their attempt to preclude Interplay from offering evidence and testimony to support their own more logical interpretation:

For example, Section 3.4 of the TLA itself creates ambiguity because, it works to terminate Interplay's right to use copyrighted material, which by its very nature must mean that Interplay had the right to use the copyrighted material in the first instance, or at the very least the parties understood this to be included as part of the agreement or why else would this language be necessary to take back something that was not understood to have been granted? It would by its very nature be superfluous.

Further, Interplay argues against the blatant bad-faith of Bethesda - as the contract plainly allows Interplay to create a Fallout-branded MMOG, but Bethesda is now trying to say that Interplay was only ever allowed to use the name Fallout and not any of the setting, characters, etc.

Section 2.1 of the TLA authorizes Interplay to use the Fallout Trademark, not with just any video game, but: "on and in connection with its FALLOUT-branded MMOG" and not for any other purpose. (Emphasis added.) BSW focuses on the individual word "brand," divorcing itself from the context of the remainder of the TLA and the related transactions, and contends this means "Interplay may only use the name Fallout in connection with a game named Fallout." (See Memorandum in Support of BSW's Motion at p. 19-21.) Not only is this circular and awkward syntax, but to read the TLA as narrowly as BSW suggests defeats the purpose and intent of the agreement and renders the TLA meaningless.
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This begs the question: What is the "Fallout-branded MMOG" to which Interplay is supposed to attach the Fallout trademark if it can't use the Fallout characters, creatures, locations, backstory, on something that has absolutely nothing to do with the Fall out world? That is absurd. One can just imagine if Interplay tried to get approval to put the name "Fallout" on a game that had people falling out of windows, what BSW would say. Most likely BSW would scream that this type of game does not comport with the look and feel of the Fallout brand and image and thus not approve the game. What constitutes the "Fallout-branded MMOG," is not specifically defined in the APA or TLA. This is because the parties already had an understanding as to what a "Fallout-branded MMOG" meant based on their three year relationship and course of dealing under the ELA. The ELA should not be considered parol evidence because Section 2.8 incorporates it into the later transactions and specifically permits the parties to rely on it as an aid to interpret the subsequent agreements.

Even though Bethesda argues that Interplay never had the right to use any of the copyrighted Fallout elements (characters, setting, etc.), the TLA specifically stated which elements Interplay had to remove from their game in the event they did not meet the requirements in the contract and were forced to abandon the use of the Fallout trademark:

In the event the TLA terminates, Section 3.4 of the TLA provides a detailed accounting of the Fallout-branded MMOG elements that Interplay may continue to use in a "non-Fallout MMOG." (Emphasis added.) Such materials deemed "Interplay-Derived MMOG Elements" include:

inter alia, any or all locations, graphic representations, creatures, monsters, names, likenesses, behaviors, religions, deities, environments, legends, fairy tales, stories, universes, character classes or character professions that are in the public domain, are owned by any entity other than Bethesda and/or its affiliates and/or licensors or otherwise are not subject to [Bethesda's] copyright or trademark protection.

Section 3.4 of the TLA further explains that the Interplay-Derived MMOG Elements are those which:

do not use, incorporate, trade on or otherwise exploit any Fallout-related intellectual property created by Interplay or by Bethesda or by their respective parents, subsidiaries, affiliates, successors or assigns, including without limitation any Fallout artwork, locations, graphic representations, story lines, creatures, monsters, names, likenesses, behaviors, environments (e.g., vaults), universes, settings, legends, characters, character classes, character professions, packaging, advertisements, text and translations, and any and all Fallout proprietary characters, trademarks, copyrights and artwork ... (Emphasis added.)

So which is it, Bethesda? Did Interplay have the right to use these things as spelled out in the TLA, or did they not have the right to use anything as you argue now? Sounds more and more like a bad-faith contract that could be voided. Maybe this guy needs to sort it out:

Thanks to the Mysterious Stranger.

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In Broadcast 11, Charlie C. and the rest of Amarillo learn a hard lesson about the price of addiction... tune in.

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Ausir sends word that The Vault has moved and is now independent of Wikia:

Dear Vault Dwellers, both anonymous and registered,

The Vault has been around as the best source of information about the Fallout series for more than six years, originally at Duck and Cover, and then at Wikia. We, The Vault bureaucrats, have now decided to open a new chapter in its history and again move the wiki, which will now be hosted by Curse at FalloutWiki.com. Some of you might have heard about my new job as Curse's Lead Wiki Manager, but it was just one of many factors that influenced the decision to move. While we have enjoyed our relationship with Wikia in the past, given the direction Wikia has been taking lately, we feel that it is no longer the direction we want. The wiki now has more space for content (with 807 compared to Wikia's 660px width), and the move gives us more freedom to decide how the wiki is run. We will be able to create a more user-oriented environment, with fewer advertisements, new forums and a host of other, exciting new features (coming soon).

All of your user pages, user rights, forum posts, talk page entries and, of course, articles and media files have already been transferred to the new server and the site is fully functional. The transition is still a work in progress and we, The Vault's bureaucrats and administrators, as well as Curse staff, are still working hard on some of the functionality. All users who contributed to The Vault with their Wikia accounts can reclaim their usernames using this account migration tool. We are confident that The Vault, now at its new address, will remain the prime source of information about Fallout game, especially once the next game in the series is released.

Wikia will continue to host a copy of all of the wiki's content (up to this date), and any users are, of course, free to go with us to the new location or to stay at Wikia. As the people who created The Vault, including its name and logo, at Duck and Cover before we brought it to Wikia, we now intend to keep it, and we expect Wikia to respect our rights to these marks and to rename their copy of the content to just "Fallout Wiki" or anything else they wish to name their site.

All things considered, we thank Wikia for their years of providing hosting for The Vault. We bear no ill will towards you, and part on good terms. All of Wikia staff members and users will always be welcome at The Vault. We hope that the same will be true for any Vault users and staff members that may have responsibilites on other Wikia wikis. Thank you and farewell.

The Vault (the Vault of the Future, if you wish) is now available at FalloutWiki.com and is open and free to all!

As we can probably expect the next Fallout game to be built using the DX9 Gamebryo/Skyrim engine, it looks like we'll have Skyrim's horrible UI to look forward to unless Obsidian does some ridiculous tweaking. From Gamasutra:

After spending a couple of hours with the game, there's no other way for me to say it: Skyrim is one of the worst PC ports I have ever had the displeasure of playing. Though many issues will likely be fixed and improved as time goes on, and undoubtedly mods by more enterprising gamers will help additional problems, the release state of Skyrim is, frankly, inexcusable. "Appalling" is not a word I use too lightly to describe a game, but it's the only one that fits here.

After Fallout 3's interface left me with a bad taste in my mouth, I wasn't expecting Skyrim's interface to astound - indeed, preview footage lead me to believe that it was a classic case of Bethesda once again trading in functionality for looks. Fair enough, that's nothing new. I can struggle through the UI, even if it's a bit wonky, until someone comes out with a replacement. Unfortunately, Skyrim's PC user interface is quite possibly the clunkiest and most difficult I have ever seen in a game made after the DOS era. I have played games from 1985 that were infinitely more usable than Skyrim; that a modern game makes so many elementary mistakes suggests a certain kind of malevolence, not simple laziness.

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Bomb the QA Department

One final damning point about Skyrim's PC port - it's horribly, pathetically optimized, and has major compatibility issues. Right from the bat, I knew that something was wrong when my high-end system was getting framerates in the low 20s from time to time, and when performance did not improve upon lowering the graphics options. Things became even more suspicious when I realized that there was no rhyme or reason for any of the framerate drops - whether I was outside in the overworld, the terrain stretching into the distance, or inside a tiny shop the size of a prison cell, the game's framerate fluctuates all over the place. There's no question about this: Skyrim is badly optimized.

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"Mods will fix it" is a phrase commonly uttered when Bethesda games are mentioned, and it's certainly true that their often-buggy and occasionally-broken games have been substantially improved by their extremely dedicated fan community - I probably would not have got through Fallout: New Vegas or Oblivion if it wasn't for the countless hours fans spent overhauling the game's interface and fixing the bugs Bethesda refused to officially acknowledge. Even so, Skyrim's PC release is a new low for Bethesda - it's not that the PC version was a low priority for them, it's that it was no priority at all.

Bethesda's QA Department has dropped the ball again, just like with RAGE. We know you think the PC is too hard to develop on Pete, but come on.

Be sure to click here and read the rest of the Gamasutra article, as it's just too ridiculous to ignore.