When last we left our heroes, Silicon Knights (“SK”) and Epic, the motion to dismiss had been denied and discovery was on the horizon. Shacknews is reporting that a number of Unreal 3 licensees have been subpoenaed with respect to their license agreements. This is an interesting move that could turn the tide of battle.
Since the facts are widely being reported, I thought I would attempt to offer a little insight on the possible strategy behind this move. Of course, I’m not privy to any actual inside information, so this is all speculative. SK’s theory seems to be proving a systematic lack of support of the Unreal 3 licensee while Epic developed Gears of War, including specific failures with respect to promises in the agreement.
So, here we have SK requesting the license agreements used with other developers. SK, I assume, is hoping for one of a few possible positive outcomes for them:
1. The other contracts lack the promises that SK is claiming, which can be argued that Epic therefore never intended to keep with respect to SK.
2. The other contracts are identical, and the other developers received the same support that SK did, showing a pattern of failure.
3. The other contracts are identical, and other developers received more than SK did, showing that SK was in fact neglected in terms of support.
4. The other contracts contain the same promises on a different timeline, evidencing that SK’s contract was perhaps entered into improperly.
5. The contracts and support were identical, and other developers are in the same position, showing a pattern that the level of support has held back development universally.
Generally speaking, no matter how the contracts are similar or different, SK’s counsel should be able to make an argument to support their case based on the contracts. Of course, on the flip side, Epic has a few possible arguments of their own:
1. If the contracts and support were identical and other developers made more progress, then Epic can argue that SK lacked the resources or know-how to make use of the engine.
2. If the contracts show a changing timeline over time, it could be argued that certain delays gave Epic a better idea of a realistic delivery date as time went on (and, assuming that the other contracts had provisions for reasonable delays, this could show SK hasn’t been patient enough).
3. If the contracts were the same and support for SK was greater than other developers, with other developers making similar or more progress on their projects than SK on Too Human, it could again be argued that the issue was on SK’s end.
There are many permutations of these arguments, but that should provide a pretty good idea of the possible result of these other contracts entering the record. Of course, I would still like to see the contracts to be able to weigh in more thoroughly, but as other sources have pointed out, it is likely those records will be sealed before anyone outside the case gets to review the documents.
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