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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Filed Under: dmca, royalties, steam, the sinking city, video games
Companies: frogwares, nacon


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  1. icon
    James Burkhardt (profile), 4 Mar 2021 @ 4:52pm

    Re: Re: Re: Re: Re: 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.


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