CryTek v CIG/RSI

[Kyrt]

Yes, that's basically their argument.

They're stating that, for example, since they're not in the "business of developing any game engine or middleware which compete with CryEngine" that they haven't breached 2.4. They're saying that their "business" isn't related to that, and that it relates to making a game. This despite the fact that they've actually done 6 of the 8 items listed.

I think that's the point.

They have done 6 of those actions. They can't deny that. One can even argue they have engaged in licensing a competing game engine. By agreeing to use LumberYard. And let's not forget what can be done with what they did with Star Engine.

The question is whether such activities count as "being in the business of"

On the one hand, it sounds like a simple non-compete clause.

On the other, game development, by its nature, often encompasses those proscribed activities simply by virtue of what it is. More, they are arguably making money of such proscribed activities because, by promoting LumberYard and StarEngine and their modifications, they are helping to drive sales of their core game.

But is all that enough to argue that they are in the business of doing these activities? For all that they perform these activities, for all that they are proscribed, for all that it is important to development, engine development is not the main goal or purpose of CIG. That will obviously be CIGs defence and I'm not certain the clause simply prohibits the actions.

Could it be argued to be the main goal of F42 Frankfurt? Possibly. That is supposedly what the studio is for. And as an affiliate, that might be enough for CryTek to score a win.

For the rest...it depends on how "in the business of" is interpreted. Which may or may not go CryTeks way.

Of course, if you argue the comma means only the term designing is linked with the "in the business of" clause, you could argue CIG are guilty of engaging in the other activities but I don't know how likely such an argument is likely to succeed

[Bubba]

Indeed, in Oakhurst, there was a genuinely ambiguous construction, caused by a series of gerunds, a phrase composed of a gerund, preposition, noun, 'or', noun. You could read it two ways.
Here, if you try to separate "engage in the business of" from the list of gerunds that follows, or pretend that it only refers to designing, you'd still need to explain what all those other gerunds are doing in the sentence.
It's clear, as Derek has pointed out, that they have been doing 6 of the 8, and doomed is their weak -ass attempt to use the precedent Websters v. My Third-Grade Report to explain that to promoting a competing product to their customers is not competing.

But here's the fun: their MtD does two things: one overtly, and one half-hidden. Overtly, they claim that Skadden doesn't mention in their analysis "engage in the business of", because those words would make their case weaker. It doesn't, of course. We had this discussion already. "In the business of" excludes incidental cases, such as if CIG were to point out a vulnerability in Unity.
The sneaky part is that they change the GLA's "which compete" to "that compete" and imply that the SAC reads it as "which compete".  I don't think the SAC reads it this way, but the MtD doesn't want to spell out the literal reading of the passage:
"which compete" is plural. That means that it refers to a plural subject; "any game or middleware" is singular, and, if you wanted to refer to it, you'd probably want to use the restrictive pronoun ' that'. So the subject of "compete" is the list of eight activities, and ' which '  should be non -restrictive,  meaning that 2.4 forbids CIG from designing, developing etc. any engjne or middleware, since those activities compete with CryEngine.
That's absurd. Skadden/CryTek aren't claiming that. FKKS/CIG are saying that they are, and, the funny part is that the contract actually says what FKKS/CIG falsely claim CryTek says it does. This makes Oakhurst a walk in the park.

De minimis. 'which compete' was meant to refer to 'game engine or middleware', and it doesn't make a bit of difference: however you cut it, CiG loses.

[dsmart]

I seem to remember you said CIG were trying to sell / licence their "StarEngine" to other studios - if so, that's another little detail which could come out in Discovery.

No, I never claimed that. You probably read it from those clowns on Reddit. CIG have been promoting their custom engine as Star Engine, and I have written about it in various articles. I have no knowledge of them ever trying to license it to a third-party.

[dsmart]

Of course, if you argue the comma means only the term designing is linked with the "in the business of" clause, you could argue CIG are guilty of engaging in the other activities but I don't know how likely such an argument is likely to succeed

From my article, here are examples of how the comma changes the context.

They’re now saying they haven’t done any of those things because the language in “engage in the business of” protects them because they’re not doing those things as a “business“. I have to admit, it’s a pretty solid & bold argument. But here’s the problem. In their filing, I didn’t see any arg that supports how they could get around the issue that they’re not, for example “in the business of” doing those six things. To wit, what does “in the business of designing” mean? Obviously they did all of those six things above for not only their custom engine, Star Marine, but also for a competing engine, Lumberyard, which they switched to. It gets better.

What about “in the business of licensing (directly or indirectly) any engine or middleware which compete with CryEngine”?

It’s public knowledge that they did that with Lumberyard. Arguably, by their own promotions, Star Engine, which like Lumberyard, is built with CryEngine, also qualifies as a competing engine.

They’re stating that, for example, since they’re not in the “business of developing any game engine or middleware which compete with CryEngine” that they haven’t breached 2.4. This despite the fact that they have done precisely that in their promotion of Star Engine. The same could apply to Lumberyard if you read it as “business of promoting any game engine or middleware which compete with CryEngine“. And the “supporting” and “maintaining” qualifiers would also apply not only to their own engine, but also to Lumberyard.

[dsmart]

Indeed, in Oakhurst, there was a genuinely ambiguous construction, caused by a series of gerunds, a phrase composed of a gerund, preposition, noun, 'or', noun. You could read it two ways.
Here, if you try to separate "engage in the business of" from the list of gerunds that follows, or pretend that it only refers to designing, you'd still need to explain what all those other gerunds are doing in the sentence.
It's clear, as Derek has pointed out, that they have been doing 6 of the 8, and doomed is their weak -ass attempt to use the precedent Websters v. My Third-Grade Report to explain that to promoting a competing product to their customers is not competing.

But here's the fun: their MtD does two things: one overtly, and one half-hidden. Overtly, they claim that Skadden doesn't mention in their analysis "engage in the business of", because those words would make their case weaker. It doesn't, of course. We had this discussion already. "In the business of" excludes incidental cases, such as if CIG were to point out a vulnerability in Unity.
The sneaky part is that they change the GLA's "which compete" to "that compete" and imply that the SAC reads it as "which compete".  I don't think the SAC reads it this way, but the MtD doesn't want to spell out the literal reading of the passage:
"which compete" is plural. That means that it refers to a plural subject; "any game or middleware" is singular, and, if you wanted to refer to it, you'd probably want to use the restrictive pronoun ' that'. So the subject of "compete" is the list of eight activities, and ' which '  should be non -restrictive,  meaning that 2.4 forbids CIG from designing, developing etc. any engjne or middleware, since those activities compete with CryEngine.
That's absurd. Skadden/CryTek aren't claiming that. FKKS/CIG are saying that they are, and, the funny part is that the contract actually says what FKKS/CIG falsely claim CryTek says it does. This makes Oakhurst a walk in the park.

De minimis. 'which compete' was meant to refer to 'game engine or middleware', and it doesn't make a bit of difference: however you cut it, CiG loses.

This is why it's going to be very interesting to see the judge's ruling on this; seeing as she obviously pointed it out. She wouldn't have done that if she didn't have reason to believe that there is ambiguity that needs to be clarified. She has now forced both parties to outline their reading of that section in order for her to clarify it and remove any/all arguments about it down the road. It's also the strongest evidence yet as to why she granted the dismissal of 2.1.2 which dealt with the "exclusive" clause. You can still have an exclusive to use a product, while still having a non-compete.

I have seen quite a few people claiming that 2.4 is a non-compete clause. I don't read it as that because most contracts will specifically have a section highlighted as NON-COMPETE clause in the heading. Who knows? Maybe the judge will read it as that. But neither party is claiming that it is in fact that.

I still believe that 2.1.2 ties into 2.4, and that's the problem that the judge is now trying to resolve. That she ignored the CIG objection about discovery, also means that she doesn't think that she has to wait for that ruling before discovery can proceed. Especially since the other surviving claims already warrant discovery to begin and 2.4 wouldn't change the scope in any manner.

[dsmart]

Guys, I have had to remove several posts this morning due to profanity filter alerting me. Please refrain from doing that here. Thanks.

[dsmart]

New filing is up. Check the OP. I will post my article later today or tomorrow.

[dsmart]

I have posted the new filing which I am reviewing it now for a later post.

[jwh1701]

I have posted the new filing which I am reviewing it now for a later post.

Based on all the lawyer comments in this thread the ELE has started for Crytek, they had a good run in the past and that's how I will remember them.


https://www.reddit.com/r/starcitizen/comments/a40qo6/crytek_vs_cig_judge_grants_cigs_mtd_savagely_rips/

[dsmart]

Based on all the lawyer comments in this thread the ELE has started for Crytek, they had a good run in the past and that's how I will remember them.

https://www.reddit.com/r/starcitizen/comments/a40qo6/crytek_vs_cig_judge_grants_cigs_mtd_savagely_rips/

Yeah, those chuckleheads are so obtuse and stupid, it beggars belief.

It's pure procedural fodder that doesn't have anything to do with the previous motions which she threw out. This is purely related to the SAC. Whatever Crytek responds with, is going to determine if the ruling stays or if she amends it. Remember, discovery is on the way anyway, so none of this is material to the case due to the other claims having already survived the previous MtD. So even if she's not satisfied with the Crytek response and her ruling stands, it won't have any material effect on the case.

[jwh1701]

Yeah, those chuckleheads are so obtuse and stupid, it beggars belief.

It's pure procedural fodder that doesn't have anything to do with the previous motions which she threw out. This is purely related to the SAC. Whatever Crytek responds with, is going to determine if the ruling stays or if she amends it. Remember, discovery is on the way anyway, so none of this is material to the case due to the other claims having already survived the previous MtD. So even if she's not satisfied with the Crytek response and her ruling stands, it won't have any material effect on the case.

I figured they were rowing up stream with one oar as usual but since I really do not understand the fillings its best to wait for confirmation. It was a slow day on the SC reddit side so I started trolling the refund guys, beet did catch on very quickly.

[dsmart]

All of the above still stand, discovery will commence, the case will go to trial (Summer 2019) if they don't settle etc

The only issue with this MtD is related to item #2 which Crytek changed to 2.4 in the SAC (Second Amended Complaint) which CIG the filed a new MtD for.

Basically, if this MtD stands - even after Crytek's amendment - then item #2 (exclusivity) remains GRANTED (in favor of CIG)

[StanTheMan]

These Backers are so thick and lazy.....

https://www.reddit.com/r/starcitizen/comments/a40qo6/crytek_vs_cig_judge_grants_cigs_mtd_savagely_rips/

[jgajek]

It's pure procedural fodder that doesn't have anything to do with the previous motions which she threw out. This is purely related to the SAC. Whatever Crytek responds with, is going to determine if the ruling stays or if she amends it. Remember, discovery is on the way anyway, so none of this is material to the case due to the other claims having already survived the previous MtD. So even if she's not satisfied with the Crytek response and her ruling stands, it won't have any material effect on the case.

You can't be serious.  CryTek's central claim just got dismissed.  The surviving claims are just a nuisance, and probably not even worth pursuing.  And the discovery will be limited to documentation that is responsive to the surviving claims, so it won't be a fishing expedition.  Just going through your history of posts on the subject shows that you are completely out to lunch and have no clue what's going on legally.

[N0mad]

You can't be serious.  CryTek's central claim just got dismissed.  The surviving claims are just a nuisance, and probably not even worth pursuing.  And the discovery will be limited to documentation that is responsive to the surviving claims, so it won't be a fishing expedition.  Just going through your history of posts on the subject shows that you are completely out to lunch and have no clue what's going on legally.

I always like to see dissenting voices on these forums, but, you've just picked a fight with THE Derek Smart. I'm not sure you understand what you're letting yourself in for.

I need to get some popcorn while I watch this one play out...