Comment by shalmanese
1 day ago
So say someone decides to produce a remaster of NOLF. Does Activision have to produce this piece of paper once they sue to establish standing? If Activision's version of this piece of paper was chewed up by rats in the 90s, does their ownership stake vanish in a puff as well?
If the potential victory from a lawsuit is $20K and Activision estimates it will cost them $50K to find this piece of paper, is the company relatively safe from a lawsuit?
They would need to prove that they have the rights to it to win court, yes. The chances of Activision actually pulling the trigger and suing if you made a remastered version are definitely less than 50-50. They'd have to actually have owned the rights in the first place, they still have the documentation to prove it, and that they'd find a suit a profitable idea? Let's say it's a 1/3 chance. That means if you publish it, you'd have a 2/3 chance of not getting sued by Activision, that can have a positive E(V) if you just go ahead and YOLO it.
But the killer is that WB and Fox (now Disney) also are sitting out there as maybe rights-holders. Let's say that each of them also has a 1/3 chance of suing and that they are all independent. Now you have a 8/27th chance of not getting sued- less than 1/3. So the expected value has to be twice as large as with a normal, single company situation to justify the increased risk of lawsuit from one of three companies. And so no one pencils out the choice as a good one, compared to the opportunity cost of working on some other game with a clearer rights situation.
It is reasonably sure that each party has a 90% chance of suing if they have rights. There is a 90% chance someone will send you a cease and desist just because all 3 are the type that will do it if they think they have rights. There is a reasonable chance more than 1 will send a cease and desist (some weaselly "we are still checking rights but if we have them your notice starts now - just enough to avoid fraud if it turns out they don't have rights)
OK, but according to ChatGPT (so correct me if the AI is wrong), if you ignore the cease and desist, then the process goes into default judgement where the claimants now need to prove standing to collect judgement. You now know with 100% certainty that they need to hire someone to dig through a file vault at Iron Mountain to collect judgment and they're not going to bother doing that so the default judgement means nothing and you can go about your merry way ignoring their cease and desist.
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Why would you set the probability at 1/3rd? It feels closer to 1/100 at most.
They've admitted the documents, if they're anywhere, are buried in a file cabinet at Iron Mountain. You can set a lower limit on the amount of labor required to produce the document. Activision is not going to go on this quest if the labor required * chance of the document existing exceeds the amount they can win in a lawsuit.
What you’re describing is a risk/reward approach to decision making. But in practice many execs do not follow this calculus.
> They would need to prove that they have the rights to it to win court, yes.
I think proving that proving they had the rights at some time could be sufficient because it is impossible to prove they never sold them.
It feels like the right thing to do is to preemptively sue all three for a declaratory judgement, similar to obtaining a "quiet title" for a piece of real estate. Then they can put up or shut up. The right thing to do if you're trying to remaster the game, that is. The right thing to do if you just want to play it is to pirate.
I'm sorry, you want to get into an IP lawsuit with the Walt Disney Company, by choice? You think that starting a fight with the most fearsome collection of IP lawyers on the planet is the right thing to do?
(Fox, one of the possible rights holders, was acquired by Disney in 2019.)
How much should the preemptive-plaintiff be willing to spend to get the declaratory judgement? And why would one expect to win? It is very clear that some combination of the three companies have the rights, and all they have to do is agree collectively to win. Each firm individually probably spends more on lawyers every month than normal people do in their lifetime. They have lawyers on staff, so their marginal cost of being hasslesome to you in court is near zero.
It's all risk-adjusted cost/benefit, and there is almost no practical benefit to taking the risk. Yes, it would be nice to clear up the legal ownership rights and to have a non-pirated version available. But as an economic matter, there is almost no value.
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> Does Activision have to produce this piece of paper once they sue to establish standing?
Yes, but see below.
> If Activision's version of this piece of paper was chewed up by rats in the 90s, does their ownership stake vanish in a puff as well?
No, but complex. Legally the contract is still valid, but they still need to show the court what the details are. All parties to a contracts get a copy, and so Activation can legally force other people who should have a copy of the contract to produce it, any copy is enough (or several partially rat eaten copies may be enough to reproduce what the original said). Activision has all the time they want to find copies of the contract (unlike trademark, copyright isn't use it or lose it), so you are risking the above for a long time. Sometimes enough testimony in court of we did have a contract is enough - when it is obvious there must have been a contract at one time the court will put together obvious details which might be enough to sue. In this case the 3 parties can agree that while they don't know who as rights between the 3 of them the rights must be contained and so they can agree to a 3-way split for purposes of going to court - even if it latter turns out only one party had rights, that party agreed to the split (though if you years latter can prove a 4th party has rights they can sue the other 3).
Of course if rats did eat all copies of the contract the lawyer fees to figure this out are likely more than the game is worth and so it probably isn't worthwhile to sue, so practically it may be as if they no longer have rights to the game just because they can't afford to enforce it. This is a very risky take though and so nobody should risk it.
> This is a very risky take though and so nobody should risk it.
People keep on insisting when it comes to these things that various things are risky in a rather handwavey way but they never fully come out and articulate the risks.
I asked this question to ChatGPT a bunch of ways and tried to understand what the specifics are when people say this is risky and I can't really seem to get to anything that is a nuclear level risk, just a garden variety risk that you need to manage amongst all the other garden variety risks involved in running a business (when inputted with a reasonable set of realistic assumptions, it's possible to create assumptions where this is a nuclear level risk but that doesn't seem to apply to the majority of real world cases, including this one).
You're not going to to get a good answer to this, because 1) 99% of people here aren't lawyers and 2) the ones who are lawyers or know the law have better things to do than argue with the nonsense machine, certainly not via proxy.
Willful copyright infringement means liability for statutory damages, compensatory damages, claims on all profits, and legal fees (yours and theirs).
(I am not a lawyer, I am not your lawyer, chatgpt is a very bad lawyer).
The risks are not something we can know. They are not we put you on death row bad. The courts decide what to do. Every country has their own laws and you could be taken to court in more than one. You can get a better answer from a real lawyer not me, but that will costs money.
The worse case is if they have a registered copyright which means they get to charge triple damages. I'm not completely clear on what triple damages mean. I think that means they subtract your costs to publish the game and count only the profits, but I'm not sure. I'm also not sure if they assume your costs, or what they would have charged if they had done this (that is if you sell the game for $50 but they would charge $100) - you can bet their lawyers will argue for whatever gets them the most, and may also ask for lawyer fees.
For a small company the above will bankrupt you.