Take-Two v. 3D Realms Court Documents Materialize, 3DR's Scott Miller Responds

Basically TT bought the rights to publish DNF from Infogrames (who got it when they bought GTi). Nothing to do with 3DR because obviously they would have probably gotten their dev money from GT/Infogrammes (who TT bought the rights from) because am sure 3DR didn't give them the rights to publish DNF for free.

Its like just recently. Atari - flat broke - sold the Ghostbusters European publishing rights to Sony. Atari had bought that from Activision (?) I believe, along with the rights to Riddick - Dark Athena. Those deals have nothing to do with the developers and they wouldn't see a penny of it.

Here is how it probably went down in TT vs 3DR.

1. 3DR signs with GT (then bought by Infogrames) for DNF. My guess is money exchanged hands because there is no way in hell 3DR would give such a lucrative publishing right to GT for nuthin'. Then maybe they did. We won't know until the docs are released under discovery once the suit gets underway.

2. Infogrammes (which later buys Atari btw) gets tired of waiting for the game and decides to bail. So they sell the publishing rights to TT. At $12m - back in 2000 - thats a very hefty premium.

3. Since TT and 3DR have NO contract whatsoever, TT have NO control over what 3DR does with the game. It was fully self-funded by 3DR. So TT had no choice but to sit and wait. They eventually get tired of waiting and write down the $12m in their financials.

4. 3DR spends the better part of twelve years, screwing around with everyone's head, while blowing their own money on the game. Money which they obviously got from other ventures and not excluding whatever they got from GT/Infogrammes when it all started out.

5. 3DR runs out of money. They go to TT - who has the rights to publish the game - and ask for $5m to finish the game. TT says no and in an attempt to cap on their $12m, decided to buy the Duke IP for $30m. Of course its worth more than that, but publishers are righteous bastards and $30m for the Duke IP to a dev looking for $5m is nothing short of a firesale. And an insult. 3DR said no (I wouldn't do it either) and walked.

6. In order to show TT just how serious the situation was, rather than shop the title around - which am sure they did and wouldn't have been successful since TT would never sell the rights since they didn't have to - they knew it was the end of the line.

7. They close shop. Tell everyone to go home. Tell gamers to piss off.
Walked off with a Lifetime Achievement award from Wired mag and called it a day.

8. Take Two sues (as I said they would the very day this news broke). For whatever reason, that is their right.

As I said before, until docs start popping during discovery, my guess is that TT doesn't have a leg to stand on unless the rights they bought from GT clearly holds 3DR - the developer - to some performance standard. My guess is that it doesn't because once those rights were sold, the deal between 3DR and Infogrames probably terminated. If they hadn't terminated, TT would have had 100% say in the on-going development of the game, rather than sitting around and waiting.

So this also meant that whatever money Infogrames paid to 3DR up to that point, they could keep as that is industry norm when you project gets canned or sold off.

In the absense of the above, what I suspect TT is banking on is the promises of delivery and the twelve years of massive hype that 3DR had going. TT could argue that they bought the rights - and waited this long - based on promises (phone, email, marketing, PR, previews, pre-orders, the dog down the street barking Duke's name, some old wino around the corner talking about it etc) made by 3DR and they did so in good faith.

All the judge has to find is that TT bought something in good faith with a reasonable expectation of performance. If he rules on that, TT win. If he doesn't, its over and we'll never see DNF because TT will never release the rights. Lets hope there's no expiration clause. But after this long, my guess is that it is a non-expiring right they bought from Infogrames.

I want to be a fly on the wall in that court room when this goes to trial.