Thread by @dsmart

BREAKING! CIG have filed their response to the latest SAC filed by CryTek.

docdroid.net/N0hyv2e/031128…

I took a quick look; and will delve into it briefly now.

TL;DR

Dec 2017: CryTek sues CIG/RSI for a litany of things which all but guarantee to put them out of business

Jan 2018: CIG answers suit, and files a Motion To Dismiss (MtD) all of it

Aug 2018: Judge rules on the MtD

Chronology:

dereksmart.com/forum/index.ph…

A few days ago, after the judge ruled on the MtD, Crytek filed an amended (SAC) complaint as per the judge's guidance in her ruling.

I covered the MtD ruling and the SAC (updated at bottom of article below) here:

dereksmart.com/forums/reply/6…

Judge threw out the bulk (4/6) of the MtD.

When you consider that punitive damages are of no relevance to this case (see MtD ruling), the only single item granted in the MtD, was that the GLA didn't require CIG to "exclusively" develop Star Citizen using CryEngine.

In the SAC, CryTek 1) removed the punitive damages request (from their original filing) and 2) as per the judge's guidance notes, changed their filing to focus on the more pertinent Section 2.4 (competitive licensing), than on the dismissed Section 2.1.2 (exclusivity)

In their latest filing, CIG are whining that they don't want the Rule 26(f) procedure to start, as that would trigger discovery in the case.

They're also accusing Crytek of countering the judge's original April order regarding discovery.

Basis of their arg goes back to April 2018 when they had filed a protective order asking the court to hold off on Rule 26(f) until all pleadings (e.g. MtD) in the case were completed.

The judge denied that motion because according to FCRP, discovery at that point was voluntary

What's interesting is that there are NO material new things in the Crytek SAC that weren't already known. That was the basis of their notice for a Rule 26(f) in order to avoid any further delay (NOTE: we waited 7 months for the MtD ruling).

docdroid.net/X4V4AC9/031128…

But once again, with Rule 26(f) looming and back on the table, CIG is attempting to delay it; even though they already had a 7 month delay during which discovery would have started, and possibly been completed by now - amid much hilarity.

When you consider the elements that survived the MtD, especially the exceptionally damaging copyright infringement (re: Squadron 42), and the several breaches of contract causes of action, it's easy to see that CIG is basically delaying the inevitable.

Even if the court had granted all but 1 of the items in the MtD, they would have still gone to discovery. And the scope would have still been relatively the same because the gist of the case doesn't change. Only the claims do.

Let me explain...

The gist of the case hinges on two things:

1) breach of contract in several causes of action

2) copyright infringement brought on by Squadron 42 being developed without a valid CryEngine license

Any item in that list which would have survived the MtD, would result in discovery that focuses on very damaging things that CIG would not want to see entered into the court/public record:

1) finances

2) use of CryEngine in SC/SQ42

3) improvements to CryEngine

So knowing this, the only conclusion to reach is that they know they're going to discovery, regardless of what they do, but they have no incentive to make it easy.

It's from the standard playbook in all such cases. And you can do it. until you piss off a Federal judge.

I mean, the latest CIG filing claims that not only are they likely to file another MtD due to Crytek filing the SAC, but that the judge ruling on that motion, could significantly change discovery.

It's rubbish.

If they file an response to the SAC, they're only going to be responding to Crytek's change from 2.1.2 to 2.4.

They have the right to do so.

But read 2.4 again, and see if you spot ANYTHING in there which would move the judge to grant them a dismissal on that - for ANY reason

Section 2.4 is so cut and dry, complete with evidence that CIG themselves put not only in the case filings, but also in the public record, that I can only think of one argument that they will probably make in the pursuit of delays and wasting the court's time...

They will likely claim one or both of these. Trust me, it's hilarious.

1) Lumberyard isn't a competing engine because it's based on CryEngine

2) The GLA is no longer in effect, and that they're not even using CryEngine anyway

Don't laugh.

These were the same guys who claimed that 2.1.2 meant that only CIG had a license to use CryEngine. Even when we were all falling over ourselves trying to logically and reasonably decipher the context of "exclusive" in the GLA.

Arg #1 won't take much to destroy.

Amazon licensed CryEngine to develop their own engine which they had a license to sell (they opted to release is free) as middleware.

They called it Lumberyard.

After 4 yrs of dev, it's still in Beta and is extensively different from CE

CIG/RSI licensed CryEngine to develop Star Citizen.

They then used it to build their own custom engine which they were NOT allowed to sell as a separate engine.

They called it Star Engine.

I already covered this in yesterday's thread:

threadreaderapp.com/thread/1030420…

CryTek currently sells licenses to CryEngine, while also having a free version for download.

Amazon is currently giving away free Lumberyard licenses, while selling AWS (their core business).

Devs can choose from the four leading game engines, and this is what competition in that space looks like:

CryEngine
Lumberyard
Unity
Unreal Engine

So as open and shut as one would think 2.4 is, thus not even warranting a CIG response (they have 18 more days), nothing it stopping them from trying because that's all part of how delaying and frustrating the other side works.

Until you run out of rope.

Arg #2 about the validity and term of the GLA is a non-starter. At least for people who aren't involved in an utterly destructive lawsuit.

As there is ZERO evidence that the GLA terminated (as per Section 8.x), I have no idea if they will even go for that one.

I don't see how they stand any chance of getting 2.4 tossed. And we're not even talking about the definition & intent of a single term in a paragraph, like we did with 2.1.2. We're talking about a section that has a lot of specific language, that's neither broad nor ambiguous.

2.4 basically boils down to this simple concept:

"As long as you have a valid contract (GLA) that's neither terminated, nor outside the additional + 2 yrs post-termination scope, you can't do this, or that, or that, or that, or all of THAT..."

I was also pondering why they they filed this response so quickly. If they were seeking to take advantage of procedural issues in order to continue increasing the delays, they would have waited (as they have done in the past) and filed just before the 20 days expired.

The only thing that I can come up with is that because the Rule 26(f) came up, and was ruled on, 7 months ago, they didn't want to take the chance that, while they were in a holding pattern waiting to run out the clock, the judge would give CryTek go-ahead as per their notice.

The language in the CIG filing also alludes to this theory:

"Defendants may elect to file a motion to dismiss Crytek’s new
claim added to the Second Amended Complaint"

Here they're saying that even though this isn't their response to the SAC, they may respond later.

What they've done here is let the judge know that in the event that she's even thinking about allowing it, that she should be aware that not only had she ruled about this deferment 7 months ago, but that she would be denying them the opportunity to respond to the SAC.

While judges aren't fans of appeals, Federal judges in particular tend to err on the side of caution when it comes to procedural rulings which could in fact play into appeal filings down the road.

It's anybody's guess what the judge would do. My gut tells me she has no incentive to grant Crytek their request because after all, what's another 2 weeks for CIG to make their move - if any; which will then signal the end of pleadings and the bum rush to discovery drama?

In fact, when I think about it, even though Crytek has been granted injunctive relief by the judge, if they were to attempt to file a motion for that now, granted or not, that too will cause another 4-6 months delay which will also delay discovery.

By "granted", I mean, unlike punitive damages, the judge allowed them to file a motion for it if they chose to do so.

Other thing to consider is that we didn't find out that CIG was attempting settlement talks, until we read about it in a CryTek filing back in April. Shockingly, as per that filing, CIG started those talks when CryTek approached them about...you guessed it..Rule 26(f) start

So with this damaging (to CIG) MtD ruling by the judge, I have to believe that CIG would once again try to enter into settlement talks while continuing their delays tactics to stave off Rule 26(f), and subsequently discovery, as long as possible.

Except the MtD has now put Crytek in such a stronger position, that we're talking more zeros in whatever it was CIG was previously thinking of considering.

Problem is, with CIG/RSI in debt, while being funded by backer money that barely pays for op expenses, I don't see where they would get the money from, let alone what incentive Crytek would have to settle ahead of a jury trial.

From where I'm sitting, this is going to trial.

Meantime, now we wait to see what comes first, the judge's ruling on the Rule 26(f), or CIG running out the clock on their response to the SAC if they don't file a response.

{end}

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