Another Game Developer DMCAs Its Own Game In Dispute With Publisher

from the pirate-publisher dept

Way back in early 2019, we wrote about an odd story with a game developer DMCAing its own game on Valve’s Steam platform over a dispute with its publisher. The short version of the story is that the developer accused the publisher of ghosting out on royalty payments, so the takedown allowed the developer to wrestle back control of the game and put it back up themselves. Steam, which has a reputation of being far more friendly to publishers than developers, in this case actually helped the developer wade through getting control of its game.

And now, two years later, it’s happening again. Frogwares, developer of The Sinking City game, issued a DMCA notice for the game to Steam. At issue again is the publisher, Nacon in this case, being accused of both of skipping out on royalty payments last summer and cracking Frogwares’ game and altering it, putting out a completely unauthorized version. See, due to the royalty issues, Frogwares had already pulled the game off of digital storefronts last summer. Suddenly, Nacon published a new version of the game on Steam in the past few days. The details as laid out by Frogwares on that last bit are… quite a thing.

In a post it put up yesterday afternoon, Frogwares further detailed the situation, writing, “[T]o our great surprise, we found a new version of The Sinking City was uploaded to Steam and launched, but Frogwares didn’t deliver such a version… Nacon, under the management of its president Alain Falc, asked some of their employees to crack, hack and pirate our game, change its content in order to commercialize it under their own name, and this is how they did it.”

The game developer’s post goes on to share a variety of information that, Frogwares writes, is evidence proving the French publisher bought The Sinking City from a separate platform and altered the game’s data to hide its tracks. This included replacing online retailer Gamesplanet’s logo in the opening credits and loading screen as well as removing a dynamic “Play More” option from the main menu that pointed players towards Frogwares’ other games and acted as a non-intrusive security measure by connecting to external servers.

Nacon claims otherwise, of course. The publisher says it has a contractual arrangement with Frogwares, that the new release is authorized, and that all is on the up and up. But two facts seem to suggest that might not be true. For starters, if this were an authorized release, why the mucking about with buying and cracking other copies of the game from other storefronts? Assuming the evidence Frogwares is putting out there is true, there should be no need to do any of that if there is an arrangement between developer and publisher.

But Nacon knows all of that, as it’s been locked in a legal battle in French courts over the rights to publish the game for months. From a statement Frogwares put out:

Regarding our use of a DMCA to remove the game from Steam. We believe in a very short time, we were able to collect extremely strong evidence to indicate this version of the game was pirated and contains content that Nacon has absolutely no rights to – namely The Merciful Madness DLC. A DMCA notice proved to be our most effective tool to give us time to gain further potential evidence and to also start the required and lengthy additional legal processes to prevent this from happening again.

We are aware that a final ruling on whether Frogwares are obligated to deliver a Steam version has yet not been made and could take years. As it stands, we have an appeals court ruling saying, until further notice Frogwares do not need to deliver a Steam version to Nacon. In the meantime, Nacon decided to take justice into their own hands and release a pirated build.

Which sort of makes that publisher a pirate if true. And this is the sort of piracy that damned well should be punished.

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Companies: frogwares, nacon

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Comments on “Another Game Developer DMCAs Its Own Game In Dispute With Publisher”

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This comment has been deemed insightful by the community.
That One Guy (profile) says:

'We promise we had a valid reason to break into their house...'

If they really did have authorization to post the game then I’m pretty sure the developer wouldn’t be sending out DMCA claims to get it taken down and they wouldn’t have had to(or even had any reason to) crack the game in order to hide the developer’s info, so I’m not seeing that defense of their actions going over very well with many people.

Anonymous Coward says:

So how does DMCA apply to contract disputes?

Seriously… I am definitely not a lawyer, nor do I pretend to be… but how does DMCA even apply here… it sounds like a contract dispute and I just don’t see where in that whole act this is covered… I may just be stubborn.

Is it just "because it’s on the internet"?

Perhaps I’ll draft an email to both the publisher and developer and let them know that this kind of BS makes the gamer in me not want anything to do with either of them… which I guess is at least one of their wants… to have no-one buy the game.

This comment has been deemed insightful by the community.
James Burkhardt (profile) says:

Re: So how does DMCA apply to contract disputes?

Video games are covered under copyright. All copyright is contract disputes one way or another (you can phrase infringement as a dispute over if you need a contract and you don’t have one) the contract in question is the license between the developer, who owns the copyright, and the publisher who licenses the right to make copies and distribute them. the developer has specifically noted the copy available on steam contains content that has never been licensed to the publisher, and therefore in absence of a contract, is copyright infringement. The DmCA applies to a storefront selling infringing digital works.

If you genuinely couldn’t figure out how the DMCA applies, maybe read the supplementary material. Techdirt substitutes citations for covering some background or context they have covered repeatedly. Also, learn to think beyond the most surface details.

In the more likely case you are a troll, you are playing checkers right now dude. step it up.

This comment has been deemed insightful by the community.
Ehud Gavron (profile) says:

Re: Re: How to be a troll

If you genuinely couldn’t figure out…
Also, learn to think beyond the most surface details.
In the more likely case you are a troll, you are playing checkers right now dude. step it up.

His questions seemed legit. Your 3-pronged answer really seemed more of the dick response.

If you’re the only smart guy here, apply to replace Mike or Tim or Karl. Until then, "maybe you should be polite". Certainly you’re capable of being respectful… a talent lots of us have… but to demonstrate it so adroitly three times in one post.

Dude, you’re the king of dicks.


Anonymous Coward says:

Re: Re: So how does DMCA apply to contract disputes?

A DMCA notice proved to be our most effective tool to give us time to gain further potential evidence and to also start the required and lengthy additional legal processes to prevent this from happening again.

Right here, they come out and say this is not the proper way to handle this, but it gives them some sort of relief until they are able to ‘prove’ they are the actual holders of the copyright in this case… again this is flat out admission that they are not currently able to stand behind they’re claim to copyright ownership in this case … …
If … a rather big if it seems, but still IF, it turns out they are not the legitimate copyright holders then this is all just a bunch of BS to stop the game from being released…

At this point, I’d say that yes, I’m being stubborn and the DMCA absolutely does not apply as other interests supersede it (ie, who holds the actual copyright)…

If you couldn’t be bothered to understand the question, why bother to give your non-answer :p

Rocky says:

Re: Re: Re: So how does DMCA apply to contract disputes?

At this point, I’d say that yes, I’m being stubborn and the DMCA absolutely does not apply as other interests supersede it (ie, who holds the actual copyright)…

Which was made abundantly clear if you bothered to read. The contract dispute between Frogware and Nacon is about publishing rights, not copyrights, and that pertains to the base-game only. Nacon bought and altered a copy of the game that contains a dlc they have no rights for and then put it up on Steam, now tell me what interests supersedes Frogware’s rights to stop the sales of pirated copies by using the DMCA?

Anonymous Coward says:

Re: Re: Re:2 So how does DMCA apply to contract disputes?

The contract dispute between Frogware and Nacon is about publishing rights

So where in the DMCA is this mentioned?

Explain it to me like I’m stupid (some of you obviously think am I but won’t do more than say read the article)… links are helpful.

Maybe also, help me understand how DMCA is the right tool for a dispute like this… seems like an abuse to me, but hey, I guess to dumb to understand from the article and most folks prefer to point that out instead of actually helping me understand… so I guess I’ll stay just some dumb AC 🙁

James Burkhardt (profile) says:

Re: Re: Re:3 So how does DMCA apply to contract disputes?

I did. You ignored that post. So troll it is. But on the off chance you are just that thick:

the DMCA provides a means of removal of digital files that infringe on copyright. You understand how copyright and the DMCA are connected? or do i need to explain what the DMCA is to you? I probably do.

The Digital Millennium Copyright Act (The DMCA), is a law in the United States of America (The USA). It covers a lot of things, but its most commonly know provision is the "DMCA Takedown". This is a notice that provides "red flag knowledge" to a website or service like Steam that the person submitting the DMCA believes content is infringing on a copyright they hold or a copyright for which they represent the holder. This generally results in the takedown of the content in question.

On the contract side: it is not uncommon for the creator of a work (like a video game) to not be the same person who distributes that content. But copyright restricts the ability to distribute content to the holder of a copyright.

In video games a developer, Frogwares in the case in question, makes the game. They own the copyright. The publisher, Nacon in this case, distributes it to digital storefronts (and stores if it sees a physical release).

In some fashion the right to disribute the game (exclusively allowed to Frogwares by law) was granted to Nacon by contract. If for some reason that contract was nullified, Nacon would have no right to distribute the game, and if they attempted to do so it would be copyright infringement.

This is the copyright connection. 2 years ago a contract dispute pulled the game The Sinking City from Steam, because there was a dispute as to the validity of the contract, and therefore if Nacon was legally allowed to sell The Sinking City via steam. At this point, a DMCA might have been questionable. It would take a court to really establish if the infringement was "ripe" yet. But this contract dispute is not what actually spawned the DMCA.

After 2 years it recently came back on steam. But it contained new content released by Frogwares in the interim that was legally a separate work under copyright law, covered by a different copyright. That new copyright, owned by Frogwares, was never licensed to Nacon. Therefore, the new release of The Sinking City on steam published by Nacon included what Frogwares’ description would suggest is infringement, eligible for a DMCA takedown.

It is true that without the contract dispute, Frogwares would likely have continued to provide to Nacon, and licenced the expanded content. But they did not.

TL;DR contracts (licences) control who owns a copyright. When you don’t have a license and don’t own the copyright, you infringe on copyright***. When that infringement deals with digital goods, the DMCA is a proper tool to deal with it.

***This does not consider Fair Use, which is not infringement.

Anonymous Coward says:

Re: Re: Re:4 So how does DMCA apply to contract dispu

I did. You ignored that post
Really, you had links in your first post?!? did you come back and remove them… did someone else remove them?

Right, so lots of words explaining the situation. … you do a great job summing up the article and a fine job summing up the bits that connect it.

But… I don’t see how any of your response has actually gotten me any closer to understanding.

Some of the things that aren’t clear cut (at least to me): who actually holds the copyright … I would contend that since the case isn’t really "finished" that there is no clear holder of copyright here.
I hadn’t realized that there are copies of the contract available for public viewing… reading over them sure would be enlightening… any pending court cases aside, this would at least tell me who holds the copyright (it looks like you already know that frogware retained copyright on their work… it’s not uncommon for a developer to sign over all rights, but sounds like you actually know in this case, so thanks for sharing… I’m assuming that you actually know)

as per my understanding of the dmca portion that we’re discussion, I thought I had seen something about an assumption that there was a clear copyright holder… but I may have imagined that…

When that infringement deals with digital goods, the DMCA is a proper tool to deal with it

That sounds like "because the internet" to me… but since I’m a troll, I must be trolling :p

Anonymous Coward says:

Re: Re: Re: So how does DMCA apply to contract disputes?

They didn’t say it wasn’t the proper way… they said it was the most effective way.

They’ve already got proof that a) the game on offer contains copyrighted content not covered in their contract with the publisher, and b) that to get this published, the publisher broke technological safeguards written into the game by the developers.

Either one of these would be enough to issue a DMCA. Whether this is the appropriate response is a totally different question — it’s allowed under the DMCA.

And this is regarding a property that’s already tied up in French courts, so the publisher can’t claim ignorance. The action even aligns with the guidance of the French courts.

DocGerbil100 (profile) says:

Note: I don’t speak French, so I’m only going by statements made by both sides and the various press reports. Perhaps a native French speaker might be able to dig out the original case records and see what’s what, in more accurate detail than I can obtain.

While I tend to agree that the publisher’s probably far more in the wrong, here, things might be a little trickier than that in practise.

This is a Ukrainian developer fighting a French publisher in a French court. From what’s been reported, French courts have generally favoured their own nation’s financial interests over and above what seems morally or even legally right, over the past few years – or so it seems to me. Frogwares may face an uphill battle, just from that factor alone.

From what I gather, Nacon asserts – and so far, the French courts apparently agree – that they had a contractual right to publish the game. I have the impression that Frogwares may have had no legal right to pull the game from sale, without first getting some form of prior judgment authorising it. If pulling the title was wrong, I can envisage Nacon claiming that they’ve merely made whole their injury, when the matter eventually gets back to court.

I can then see the average judge then preferring to write both sides’ improprieties off as tit-for-tat vigilantism that should be ignored, rather than getting deep into the weeds of who did what to whom. After that, said judge would only have to look at contractual details, rather than go through reams of terrifying technical details presented by Frogwares. Most judges aren’t renowned for their love of technology, after all, either in France or anywhere else.

Who might win the case seems therefore to be very much an open question.

All that said, I do get the impression that Nacon threw the first metaphorical punch, here. Reading between the lines of their statement on the cracked game’s subsequently-pulled Steam page suggests to me that they did owe Frogwares royalties – they don’t exactly deny it – but were sore about paying it, since the game hasn’t made enough money.

I get no sense that the publisher’s in serious financial trouble, or anything – it just seems like they don’t want to pay, until they’ve got more money to justify their alleged €10 million investment.

Whether we start out rich or poor, desperate times do push many of us to desperate measures – and in my view, there are certainly some sins that deserve forgiveness, even in the corporate world.

Merely being too damn greedy to pay your developers what you know you owe them really isn’t one of them.

DocGerbil100 (profile) says:


Further to this, I’ve been looking at Frogwares’ blog-post / open letter from August of last year, along with the various links they’ve given. Beyond the actions this article focuses on, which is bad enough behaviour in itself, it really does seem like Nacon has been conducting itself quite poorly.

Aside from the alleged financial misconduct and other contractual breaches, it appears, amongst other things, as though Nacon wants to claim whole ownership of Frogwares’ IP, but without having any actual legal right to do so.

Frogwares has been very consistent and clear that Nacon is only the strictly-limited licensee for Sinking City, not the owner. Nacon has – or had – the rights to distribute the game on certain platforms, but apparently no right to claim it as their own work.

For it’s part, Nacon has been putting it’s own copyright notices (in both it’s current name and it’s former name of Bigben Interactive) on various marketing materials, claiming IP ownership for themselves, while stripping out and relegating Frogwares’ name and logo to the back covers, if they’re even mentioned at all.

It appears they’ve even gone as far as authorising a tabletop RPG based on the game, presumably taking licensing fees for it, without apparently having the slightest right to do so and with no mention of Frogwares in the copyright notice.

One curious thing about this: as the Frogwares post points out, Nacon’s official stock market prospectus has a list of four licensed action / adventure games, but describes Nacon working "[…] avec IP propriétaires", which – depending on the translation – might be interpreted as either working with IP rights-holders, or once again, claiming whole ownership.

That list includes a Warhammer title. If Nacon’s trying to imply – much less claim – actual ownership of a licensed Games Workshop property, then I can see their current difficulties suddenly becoming rather sharper, if GW’s lawyers get wind of it.

As Nacon’s public reply points out, the French courts have sided with Nacon, thus far – apparently on the basis that the contract was improperly terminated by Frogwares.

Nacon also says that one of the provisions of that contract allows them to use a third-party to adapt the game, if necessary – which is why they evidently feel they have the right to pirate the game and strip out the logos and other indicia of Frogwares and Gamesplanet.

I’m of the view that – whether or not a given court agrees with Nacon’s actions – this is an appalling way to behave: even actual, commercial videogame pirates don’t generally go so far as to remove the developer’s logo and claim ownership of the titles they’re pirating.

That a publicly-traded company like Nacon thinks it’s appropriate or professional to do so utterly defies belief.

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