Thread by @dsmart

I wasn't going to cover this until Mon - for max lols. But I kept getting pinged by people who - foolishly - assume that I didn't already know already

There's been new activity since my last missive about the Crytek v CIG debacle.

And it's hilarious AF

https://twitter.com/dsmart/status/1136312413433806848

In prev filing, we saw new Crytek attorneys. I have learned that these aren't experts attached to the case, but that Crytek have switched from Skadden to another IP law powerhouse, who also brought along external experts as some law firms tend to do.

eriseip.com

Leading the renewed - and rather aggressive (trust me, it's hilarious) - charge, are Clifford Brazen and Eric Buresh.

eriseip.com/clifford-t-bra…

eriseip.com/eric-a-buresh/

The judge had refused to grant an extension to file opposition to the bond, and as I suspected, Crytek decided to answer anyway, rather than wait for the judge's ruling which could've been prejudiced if she didn't know wtf they were actually planning.

After reading this and the proposed order last evening, I laughed and laughed. Then I laughed some more - because dayum! 🤣

This is the answer. These guys aren't playing around.

docdroid.net/Fk8H2rF/031130…

docdroid.net/i85TkMM/031130…

This is the proposed (if the judge agrees with their opposition) order.

docdroid.net/j17EnTH/031130…

Imagine my complete shock and surprise when I saw that the primary thing in the pleading regards something that I have written no less than 4 articles on, and which I have long held would be a major issue in the case. That being: "CIG didn't really switch to Lumberyard" - at all

In my "Star Citizen – Irreconcilable Differences" blog of Dec 2016, I had explained and outlined how CIG had blatantly LIED about having "switched" from a CryEngine license to LumberYard (a custom build of CryEngine)

dereksmart.com/2016/12/star-c…

In that blog, I even took to task one of their low-level programmers who was publicly promoting that lie, while obfuscating (they know their main backer audience are mostly naive - and woefully ignorant) the process.

Following that, this Tweet which I made back Jan 2018, also has Brian Chambers (not a dev) also saying that the "switch" was effortless. Watch the clip.

https://twitter.com/dsmart/status/950533533877096449

I actually have a timeline of this "switch" nonsense, but OldSchoolCmdr over on Reddit has excerpts of it from a year ago. It's important to the context, so read it.

reddit.com/r/starcitizen_…

This is an absolutely masterful - and rather aggressive - pleading by the new attorneys, and one which Skadden didn't quite push to any reasonable degree - though I have ALWAYS maintained that it's actually a MAJOR issue in this case because of how both engines are intertwined.

The long and short of it is borders not on Star Citizen, but on Squadron 42.

Recall that the judge had already DENIED all the primary CIG dismissal motions back in Aug 2018.

See items 3 & 4

i.imgur.com/LBjig3J.png

The long and short of it is that while CIG still has a valid license to Star Citizen, CryTek is alleging that the license only covered a single game; and that SQ42 was to be a module similar to the others (e.g. Star Marine) in the game - not a standalone game.

That copyright infringement claim is the single largest liability in this case, not only in terms of monetary damages, but also the commercial damage it could cause if the court found in favor of Crytek. It would KILL any release of SQ42 as it currently stands.

Note that having over-sold Star Citizen to the tune of an excess of $300M - while still being unable to finish it - 7 years later, CIG has a plan to sell SQ42 separately in order to get additional money to shore up it's already bad financial position.

In addition to that, not only have they leveraged SQ42 in securing loans (at least in the UK where it's public), but also in obtaining $46M in bail out money in the Summer of 2018. I cover that below.

dereksmart.com/2018/12/star-c…

So you can well imagine the major problems it would cause CIG if the court ruled in favor of Crytek.

But that's not even the half of it - and CIG knows this quite well.

Going into discovery could not only open CIG to some pretty serious & damning revelations, but may also uncover additional issues which could very well not only give rise to additional causes of action from Crytek, but also perhaps see the reversal of dismissals e.g. exclusivity

Though even the most heated and contentious cases tend to settle before going to trial, the animosity between these two parties is widely known in some circles.

For starters, not only did CIG poach (from their own biz partners!) some key Crytek people, but they also ended up using knowledge from those same people to get an end-run around Crytek. FYI several companies have sued another for doing this.

It's why you keep seeing names like Sean Tracy appearing in these filings. Heck, even Ortwin Freyemuth, co-founder of CIG, was an ex-attorney for Crytek - and he negotiated the disputed licensing agreement for both parties. lol!!

You can't make this shit up with a straight face.

Seeing as the judge has rejected every attempt by CIG to delay discovery, even as they [CIG] tries to get Crytek into a settlement (which they seemingly have zero interest in atm), this bond nonsense was just another CIG attempt to not only add delay, but to end-run around Crytek

It came as no surprise to learn for the second time in a filing (the CIG bond) that CIG was still trying to get Crytek to settle. And once again we learn that Crytek wasn't having any of it.

There are LOTS of reasons for this.

For one thing, thus far there has been NO discovery in the case. So Crytek really has no idea what they **don't** know. And that puts them at a settlement disadvantage of sorts.

And the deadlines (which the judge continues to uphold) are coming up fast.

i.imgur.com/cY48bs7.png

So CIG attorneys had this brilliant idea and which, aside from being yet another delay to discovery, they figured would end the case because if the court rules in favor of CIG, and Crytek can't put up the bond - case over.

But for that to work, they had to convince the judge that they stood a high probability of winning the case, and thus the $2M bond was warranted.

I'm guessing the judge has seen all these tactics before; but the Crytek opposition filing is particularly on point.

And key to the case being of a significant liability to CIG hinges on that cause of action which DID NOT SURVIVE their [CIG] motion to dismiss. And that's why the new Crytek attorneys used that as their primary point. It's brilliant.

Next, I will cover p3 of the opposition filing as it pertains to the Lumberyard license because it's a masterful pleading that has me wondering why Crytek hired Skadden in the first place. These new guys are on point - right out of the gate.

First, I need more coffee. brb

If you recall where you have seen this CryEngine vs Lumberyard engine nonsense before, congrats, you've been following my blogs and missives about that farce.

Without even going into any engine technicalities (that's where expert court witnesses such as yours truly come in), the Crytek attorneys laid it out as simply as possible for the layman (see: judge) to understand.

Amazon licensed CryEngine from Crytek. They then made a custom engine called Lumberyard which they released for free (with some caveats). For all intent and purposes, both standard CryEngine and Lumberyard still (to this very day) contain Crytek code.

So to "switch" (at engine level) completely from base CryEngine to Lumberyard, aside from being impossible, isn't even at all achievable because code written in CryEngine and which remains in Lumberyard, is still going to be 100% identical.

Remember, we're not talking about going from Unity to UE where the odds of any engine code being 100% identical at the top level is virtually **impossible** - unless both use open source and/or third-party sources which are parity based.

As someone who has written engines from scratch, licensed and built custom engines from various sources, trust me when I tell you this: there is NO scenario whereby CIG is going to be able to prove to the court that they switched (at engine level) from CryEngine to Lumberyard.

If there was a case of CIG switching from CryEngine to UE, this argument (by Crytek) would still have merit, but CIG would still have to prove that not a SINGLE line of CryEngine code exists in EITHER game.

It gets worse in a hurry....

Crytek sued CIG back in Dec 2017. That was exactly one year after CIG released Star Citizen 2.6; and then, following my Lumberyard missive, released a statement saying they did the "switch" over the course of the previous year.

robertsspaceindustries.com/comm-link/tran…

They claimed that 2.6 build was the first release with Lumberyard. Well guess what? Discovery is going to be hilarious because once Crytek gets their hands on the source control logs, the shit is going to hit the fan because it's a complete forensic analysis of code changes.

Not only will Crytek be able to see who made a change, when it was checked in etc, but also will be able to tell precisely what code is in use. I mean, how hard do you think it would be, seeing as they wrote the engine?

I mean, as someone with access to both CE and LY, some of you reading my missives already know that it took me all of an hour to completely disassemble a game build and wrote - with 100% certainty - that they hadn't actually switched. They lied.

And I didn't even have access to the actual CIG custom code they built the on-going train wreck from. Though I found my spinlocks revelation rather amusing - because I'm all about the lols.

dereksmart.com/forum/index.ph…

Meantime, as I wrote back in my 2016 blog (which pre-dates the Crytek lawsuit btw), the brain trust over at CIG had already gone on the record making the claim about both engines. No seriously, you should be laughing because Ortwin somehow beat that one.

i.imgur.com/QKFgXun.jpg

I'm guessing they had no clue that after dicking Crytek around for a year, that they would end up being sued - almost one year from the date of that particularly damning post - which is still up, but now with a new avatar for Chris :)

forums.robertsspaceindustries.com/discussion/364…

What's so utterly amazing to me here is that, in a declaration, not only did Ortwin (see the bold section in my previous image) literally self-own, but he opened a critical talking point that is no doubt going to cause the judge to think pretty hard about wtf is even going on.

What Orwin is getting at, the implications of which he didn't previously understand but which these new attorneys have now latched onto, is this: When CIG licensed Lumberyard, they got a license to use the CryEngine version that Amazon had already licensed from Crytek

You know why this is suddenly relevant? Well, they didn't actually switch in terms of engine code, but rather - as I've said all along, and which Crytek has now pointed out - in license only.

Farking hell! I'm laughing so hard right now.

Another reason why this is suddenly relevant is this excerpt - which is basically what Ortwin went and regurgitated - in a legal pleading declaration.

How can your custom engine "foundation" be Lumberyard and not CryEngine, if the former contains and is built from - the latter. lol!! 😟

The rest of the opposition reads like a pleading you would have expected to read a year ago - from Skadden. Which is why seeing things like this tells me that these new lawyers really aren't screwing around. And this is precisely how cases are won and lost based on your lawyer.

INAL, but by using this bond to force Crytek into settlement talks, CIG has done more harm than good because it has allowed these new lawyers to essentially fill in the [Skadden] blanks, thus opening up a whole new line of argument. It's how appeals work.

Regardless, depending on how the judge rules on this bond, here are the 3 options I see.

1. CIG wins ruling

This will force Crytek to either post a bond (determined by the judge, not the CIG filing) or enter into settlement talks, and from a MUCH weaker position.

2. Crytek wins the opposition

At no detriment to CIG other than them allowing even more incredible and damning arguments into the case record; most of which are likely to be bolstered by whatever comes out of the discovery they've taken steps to avoid thus far.

3. CIG wins ruling

Even if it was $2M bond, from what I know, it's not something the Yerli bros will blink at. Aside from the fact they stand to gain a lot more - and those legal costs - if they prevail.

Plus, even for a foreign corp, they can find a co to secure the bond

I am further amused that, once again, on p8 a comma is going to take center stage in the interpretation of a key GLA clause. I remember back when I quoted that very same thing in my past coverage of this GLA and its implications.

I don't even understand how CIG expects to get past the judge the notion that the license is only applicable after they have released a product (SQ42). That argument fails on merits alone because "release performance" isn't even a licensing condition in the GLA.

When you license an engine, unless it explicitly has such a condition, the licensors don't care. I mean, when Epic says you can use UE4, it's clearly stated that you use it for free and only pay (royalties) if you commercially release a game. It's a KEY point in their license.

And when you pay for a Unity engine license, they don't care if you release your game or not - because you've already paid them, and there is no such condition in their license.

Though Crytek has a new license for CryEngine, the one [GLA] in place between the parties, has no such condition about whether or not it can only be enforced IF and WHEN they actually ship a product.

Even the section which had a backend royalty deal, CIG hilariously prepaid that upfront, thus not owing Crytek any further royalties or payments under the GLA. For Star Citizen that is.

These guys are good.

On p11, they point out that the more expensive firm, Skadden, which CIG used as the basis for their claim to an inflated bond, is now moot. Basically: "hey judge, look we're even cheaper!" <---- lol!!

And on that same p11, they - again - nailed what I've said for almost two years now: the source code logs are so easy to determine the merits of engine switch, that it's really a non-issue in the general scheme of things.

Finally, p12 made me almost cry in glee because, again, I've said ALL OF THIS before (read my blogs and articles) and in even more detail. ex-Crytek guys - and indeed CIG - were extolling the virtues of Crytek & CryEngine roles in their success. Until they jumped ship.

Seeing as they're quibbling over $2M bond, that pretty much confirms what I've said all along: Crytek isn't looking for peanuts in a settlement. Aside from fact that I believe that unless CIG writes them a check with a LOT of zeros in it, discovery is going to come hard and fast.

CIG is literally out of plays. What's left now are the standard fare discovery delay tactics which, seeing as the deadlines are looming and the judge has shown that she's not interested in extending deadlines, is going to be hilarious to watch.

That's the extent of my thoughts. I look forward to more hilarity coming out of these guys in the coming months because this first volley was really remarkable. How the judge rules is going to depend on how much bs she's willing to tolerate from both sides at this point.

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