In Contrast To PUBG's Silliness, Bethesda's Copyright Suit Against Warner Bros. Is All About Copyrightable Source Code

from the legit-if-true dept

As the silly copyright lawsuit between PUBG and Epic Games has now come to a fortunate end, with the former dropping the lawsuit it filed over similarities in game genre and broad gameplay aspects that are absolutely not afforded copyright protection, it's probably worth highlighting a lawsuit that is the polar opposite in terms of its merits. Now, I want to stress at the outset that I have no idea as of yet whether or not the allegations that spurred this lawsuit are true or not, but it's the actual claims that are important. If adjudicated as true, those claims are absolutely valid from a copyright law standpoint.

Bethesda, makers of the Fallout franchise in its current iteration, has filed a lawsuit against Warner Bros. and Behavior Interactive, which together have released Westworld, a mobile park management simulation based on the hit HBO series. Bethesda has its own simulation of this kind, called Fallout Shelter. While Bethesda's filing does indeed make much of the clear similarities between the games animations and aesthetics, as well as some of the folks behind the Westworld game clearly saying they drew inspiration from Fallout Shelter, the important difference here is this ultimately comes down to reused specific code. How this code got reused is also part of the breach of contract allegations in the suit, as it turns out that Behavior Interactive was involved in creating Bethesda's original product.

Bethesda has stated that Behaviour Interactive was involved in the creation of Fallout Shelter, before going on to make the Westworld game a few years after. Court documents reportedly state that Bethesda believes Behaviour Interactive has stolen its designs, artwork, and code, going on to use them again in this latest project in conjunction with Warner.

Bethesda's filing goes into great detail showing not only aesthetic similarities in the overall game design and character illustration, but specifically in the animations involved in the game as well as how the game screen reacts when players interact. Reading through the filing, it's fairly clear that this was more than a game merely inspired by Fallout Shelters in terms of gameplay, but instead looked to be a pretty faithful recreation of it, except themed to Westworld. Still, despite all of that, Bethesda focused on the code it alleges is reused to achieve this similarity, which is important.

And, while Warner Bros. has responded claiming all of this is false, and that Behavior Interactive has assured it that no code was reused, there is some additional evidence that sure points to that not being the case.

Aside from these mostly aesthetic similarities, it turns out that there's one other pretty suspicious thing that Bethesda has noticed, potentially giving the game away even more. Apparently, the same bugs that were originally present in an early version of Fallout Shelter have also been found in Westworld. Oh dear..

We talk a great deal about the idea/expression dichotomy in copyright law specifically, but it should be acknowledged when a content creator gets this question right in its lawsuit allegations. Again, we don't know yet if the allegations of code reuse are true at this point. But someone should wave this filing in front of the folks at PUBG to show then what a legitimate copyright lawsuit in gaming looks like.

Filed Under: copyright, fallout shelter, source code, westworld
Companies: bethesda, warner bros.


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  • icon
    aerinai (profile), 2 Jul 2018 @ 2:41pm

    Behavior Interactive -- Learn to negotiate contracts!

    So here's the thing... If a company pays you to build an game, and you build a game engine (let's be honest, its the game ENGINE we are talking about here...), you need to make sure YOU OWN THE RIGHTS TO THE ENGINE FOR REUSE FOR EXACTLY THIS PURPOSE...

    This entire case would fall apart if you owned the engine source (separate from the 'game' source).

    However, this could also come down to semantics. Behavior Interactive could say that they built an engine that they own (hopefully they have contracts to prove this is the case) and that the final product (Fallout: Shelter) was a game based on that engine.

    However... if they structured the project as building a game with a one-off engine (or didn't consider what they were building was an engine) and didn't put in any distinction between engine version and game version... yeah... they're gonna get sued and lose badly. I doubt they clean room rebuilt that engine from scratch. Ain't no one got time for that!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jul 2018 @ 5:05pm

      Re: Behavior Interactive -- Learn to negotiate contracts!

      Yup. If they had their own internal code libraries before they started Fallout Shelter it might explain the shared bug and other similar behaviour.

      Not easy to tell without knowing an awful lot about the case details. This could drag on until the smaller company runs out of lawyers regardless of the merits. Digging thru mounds of paperwork, code, and libraries would be court nightmare.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jul 2018 @ 5:40pm

        Re: Re: Behavior Interactive -- Learn to negotiate contracts!

        Hi i am the devil Welcome to court discovery HELL

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Jul 2018 @ 2:14pm

          Re: Re: Re: Behavior Interactive -- Learn to negotiate contracts!

          Cigars are evil, you won't miss 'em - we'll find ways to simulate that smell...

          reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 3 Jul 2018 @ 4:52am

      Re: Behavior Interactive -- Learn to negotiate contracts!

      That's where the contract violations come in. Bethesda obviously believes that the material produced for them by Behavior Interactive was a work for hire and that they own the copyrights on the stuff BI produced for Fallout Shelter. So it all boils down to the contract.

      Assuming that the code is the same between the two apps, if it's not a work for hire and BI retains the copyright to code they developed, Bethesda loses. If it is a work for hire, then Bethesda owns the copyright and BI and WB lose.

      Bethesda may also own the copyright if the contract is done as a transfer of copyright rather than a work for hire. I'll leave it to the lawyers to pick over the other variations in how the contract could be structured.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jul 2018 @ 6:17pm

    I suppose claiming the reused source code is just a compilation of facts wouldn't be a valid defense, huh?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jul 2018 @ 7:00pm

    Only Bethesda.....

    Only Bethesda would recognise certain bugs in some code, and go "Hang on a minute, those are OUR copyrighted bugs!"

    reply to this | link to this | view in chronology ]

  • identicon
    John Smith, 2 Jul 2018 @ 8:20pm

    Makes me glad the pinball maker who came up with the idea of an extra ball didn't sue the other pinball machines that copied it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jul 2018 @ 8:42pm

      Re:

      But if he did we can expect you to be leading the rally calling for support. How's that anti Section 230 campaign coming along, bro?

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 2 Jul 2018 @ 11:02pm

    Oops

    Apparently, the same bugs that were originally present in an early version of Fallout Shelter have also been found in Westworld. Oh dear..

    Having the same bugs show up in both games would seem to indicate rather strongly that there was some not so insignificant copying going on here, and if other factors like animations and look are likewise similar then yeah, WB and Behavior Interactive have got some explaining to do as to how 'coincidences' like that cropped up after Bethesda had them make Fallout Shelter.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 3 Jul 2018 @ 1:14am

      Re: Oops

      Yes, which is why this is an acceptable lawsuit on its face, in contrast to the PUBG one.

      PUBG - "the idea behind your game mode is vaguely similar to the one we ripped off from a movie!" - not acceptable use of copyright law.

      Bethesda - "You literally took the same code and used it in a competitor's product" - acceptable usage.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jul 2018 @ 12:21am

    If I were Bethesda I would not be drawing attention to fall out shelter. It's awful.

    I mean they're totally entitled to make a claim I just think it's better for their brand to never speak of that title again.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 3 Jul 2018 @ 1:18am

      Re:

      Why wouldn't they? It made them a lot of money, and apparently it worked well enough for people to be directly ripping the game off to make carbon copies. That you personally didn't care for it is irrelevant.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Jul 2018 @ 5:34am

        Re: Re:

        I don't think it made much (If any) money. It's free with in app purchases, as a fan of the series I never paid a penny. Out of the dozens of gamers I know none of them did either.
        I'm genuinely embarrassed by it still years after release. Honestly better to never bring it up again for them. Bad cash ins aren't high art.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Jul 2018 @ 6:07am

          Re: Re: Re:

          Fallout Shelter made a metric crapton of money. It's probably one of the most profitable games that came out of Bethesda Studio. A quick search would reveal that.

          https://www.gamespot.com/articles/fallout-shelter-makes-51-million-in-first-two-week/1100-64289 50/

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 3 Jul 2018 @ 6:23am

          Re: Re: Re:

          "I don't think it made much (If any) money. It's free with in app purchases"

          Think again.

          https://en.wikipedia.org/wiki/Fallout_Shelter

          "The game grossed $5.1 million in microtransaction sales in the first two weeks after its release."

          There's no ongoing stats that I can see that are particularly reliable, but it's still in development and thus logically must be making some reasonable amount of money.

          Also, you're missing a huge amount of recent debate if you think that in app purchases don't make money. Take a look at the "highest grossing" section of the iOS app store. It's almost always free to play stuff.

          "Out of the dozens of gamers I know none of them did either"

          I don't personally know anyone who plays quite a number of different games, but they make money. The world is much, much larger than who you happen to have come into contact with yourself. Which is good. If you don't like the more casual/mobile/whatever games, there are still things out there for you because they're not trying to hit one market at the expense of all others.

          "I'm genuinely embarrassed by it still years after release"

          It's only been out for 3 years, and has been on the PS4 and Switch for less than a month. In the meantime, Bethesda have released Fallout 4 and all its other content, and announced Fallout 76 to be released in the near future. So, who cares what you personally think about what they're doing with one specific aspect of the universe? It's clearly not replacing the things you do like? You're not the target audience for Shelter? Fine, they are providing you with stuff you do want. Not all content is geared toward you personally.

          I'm just going to go ahead and guess that they know more about what they're doing than you do.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jul 2018 @ 4:05pm

    Why would anyone want to steal code from Bethesda?

    That would be like if I were to steal shit from another person's toilet.

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 4 Jul 2018 @ 6:09am

    Another case this isbalso unlike is the Oracle V Google case.

    reply to this | link to this | view in chronology ]


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