It's a dance. As some speculated before, the initial filing was probably trying to give CIG/RSI the possibility of settling things. This is their response.
Again, I am not a lawyer, and this ain't advice.
At the end, the Ortwin-baiting worked pretty well, especially since, as has pointed out (and as I understand it), Ortwin's failure to recuse himself is not itself an actionable cause. The defendants insist that the statements of fact (called "allegations" in the response) regarding Ortwin and Jones' history with the plaintiff and defendants and which are left in the FAC should be removed as being damaging and having no bearing on the lawsuit.
That now gives the plaintiffs perfectly good grounds to explain why those statements of fact are relevant to the complaint, especially as regards intentionality: "this has nothing to do with the belligerent lack of collegiality on the part of defendants' counsel, your honor..." Now let's talk about what that waiver does and doesn't cover, and how it might apply to the GLA.
So too with the comments on the plaintiff's alleged attempt to hide the GLA from the court. If the plaintiff really wanted to try the case in the court of public opinion, they would have published immediately the document in question. The GLA substantiates pretty well the complaint.
The claim that the recital included reference to two games "Space Citizen" and "Squadron 42", "together hereafter the 'Game'" means that the license covers two separately-marketed games is highly problematic.
First, because nowhere in the body do I see an explicit incorporation of the recital. Second, to the contrary, the first section of the body concerns definitions, and "Game" is pretty clearly defined as included "Star Citizen" and "Squadron 42" as "Features". There's also the killer clause:
For the avoidance of doubt, the Game does not include any content being sold and marketed separately, and not being accessed through the Star Citizen Game client, e.g., a fleet battle RTS sold and marketed as a separate, standalone PC game that does not interact with the main Star Citizen game (as opposed to an add-on / DLC to the Game).;
Third, in practice, CIG/RSI treated SQ42 + SC as a single game until a certain point, when they decided to market them (and sell them) separately.
Again, from my non-lawyer perspective (although some might call me an expert in diplomatics), I don't see how the recital can trump the body, especially since it would be hard to the defendants to claim that they were always planning on marketing two separate games.
The best part about this is that, the good ol' counterargument from the start "well, either they agreed to license CryEngine for two games, or Squadron 42, as a separate game with a separate engine" doesn't work: they agreed to license CryEngine for one game, including in that game both SC and S42.
The same thing for their "exclusivity" defense. The defense seems to be claiming that, when CryTek granted CIG the license "to exclusively embed CryEngine in the Game and develop the Game", this means that CryTek gave CIG the right to be the only ones who implement CryEngine for Star Citizen. The right to work on Star Citizen code is not a right that CryTek can concede. CIG and CIG alone gets to decide that. So "exclusively" has to refer to embedding CryEngine at the exclusion of other things. What other things? That's a little vague, and Exhibit 1 would have to be called upon. Unfortunately, for CIG/RSI, it would be trivial to show that Lumberyard meets their criteria of "exclusively".
Finally, if RSI is not involved, what's its role in this? If by actions and deeds it is involved and is controlled by the same persons, maybe it's time to see how well all these separate entities hold up to scrutiny?
