Publisher Nacon Cracked and Pirated Our Game: The Sinking City

https://frogwares.com/how-nacon-cracked-and-pirated-the-sinking-city/

by jccalhoun • 5 years ago

416 116 5 years ago

prvc• 5 years ago

Hard to read because the background section does not specify how the relationship between the companies got started, and what was in place before the falling-out occurred.

lvturner• 5 years ago

https://frogwares.com/the-sinking-city-is-being-delisted-her...

ryukafalz2• 5 years ago

Article aside, a pet peeve of mine... I feel like it's often gaming sites like this one that have the most obtuse cookie banners.

This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish.

First off, assuming consent and saying it's "to improve your experience." Maybe they're not doing any targeting... nope, wait, they're loading tracking pixels. And their privacy policy says they use cookies to "...help customize our marketing offerings."

Okay, now how about opting out? Click "Read More" which takes you to... their privacy policy. Some sites at least bury information about how to disable browser cookies entirely in their privacy policy. Here even that is nowhere to be found; no mention of how you could prevent their cookies from being set in your browser at all. (Setting aside the fact that disabling cookies globally in your browser is so obviously not a sane way to avoid tracking on a single site, so even that would be woefully insufficient.)

I can only assume folks in the EU are seeing something that actually asks for consent, because this would be so far from compliance over there it's not even funny. Hoping the US gets real online privacy laws soon.

You can opt-out if you wish.

No, practically speaking, you cannot.

banana_giraffe• 5 years ago

I can only assume folks in the EU are seeing something that actually asks for consent

Nope, same message.

trissylegs• 5 years ago

Opened an articel on Yahoo news today. That one was a doozy.

FeepingCreature• 5 years ago

Yeah, this is super noncompliant. See https://gdpr.eu/cookies/

The ability to opt out does not suffice to satisfy the GDPR, even if I could find how to do it.

rendall• 5 years ago

Over time I got a feel for sites that do this, and as a practical matter I open those in private/incognito, then just click through. Commercial blogs, how-to sites, news, especiallyfrom the US: almost never compliant.

I do judge. It makes me a bit less receptive to Frogwares' message, that they do this on their company blog

gridspy2• 5 years ago

You need to install DDG privacy essentials, uMatrix and uBlock Origin. Then you won't even see those banners, since they no longer load (along with any of the related tracking)

ryukafalz2• 5 years ago

I would rather see the banners. They're a good indication of how much a company is likely to respect my privacy: no banner is best (because it means they're not tracking), a banner with an easy opt-in and a way to dismiss it is okay, and a banner that doesn't allow an opt-out I'll just leave active forever. It'll annoy me anytime I visit the site, and that's the point; I'll avoid sites that do this when I can.

One example: PayPal has a huge banner (often blocking the "pay now" button) asking for permission to use my data for targeted ads, and there's no way to dismiss it other than agreeing to it. So I leave it there forever, and every time I use PayPal I have a little bit more of a negative impression of it.

It's also good to know about them when I'm sharing links with friends - I'll be very hesitant to share one with someone who I know is using a mobile browser, because they definitely won't have the tools to avoid tracking like this.

GekkePrutser• 5 years ago

Even here in the EU there's many mainstream sites that just have a cookiewall saying "by proceeding you agree to our use of cookies".

This is totally not ok. There's should always be a way to opt out, it's not allowed to just block the site in case people don't want to agree. This has been reaffirmed in court several times. But nothing seems to be done to enforce this.

legitster7• 5 years ago

I hadn't heard of this before, so maybe I am missing some context here, but something seems fishy:

Steam is one of the listed platforms of commercialization in the contract between Frogwares and Nacon. But since the release of the game, Nacon’s unlawful actions have forced Frogwares to defend its property and react in front of the French Justice for lack of payments, attempts to steal our IPs, etc which we made a public letter about back in August 2020.

Here's the previous statement from Nacon:

https://store.steampowered.com/news/app/750130/view/30584784...

I can't find any of the details about Nacon's unlawful actions, and it seems Frogware is being intentionally vague. Doing some digging, it seems like this is almost a complete retread of a legal battle they had before:

https://twinfinite.net/2019/09/frogwares-games-delisted-alle...

It seems like they may have a history of playing a copyright game with publishers - take their money to develop a game, then use legal trickery to take back the property outright.

In this case Nacon may have felt they had a "mechanic's lien" on the code and felt justified stealing it back outright (probably a bad choice in the long run). But regardless, I don't get the sense that Frogwares is completely being on the up and up about the relationship with their exes.

Update: Frogwares has a much more detailed list of grievances here: https://frogwares.com/the-sinking-city-is-being-delisted-her... Some seem petty and some seem serious. But it still leaves questions. How much did Nacon already pay Frogwares? Does Frogwares plan on paying it back?

The agreement is, therefore, terminated without further formality. Moreover, on July 17, 2020, Nacon attempted to oppose the termination in court, but the judge rejected the demand, and the contract is now terminated in the eyes of the law.

Maybe French law is much weirder than ours, but this phrasing would be highly suspect in the US. You would get a really affirmative ruling that you are still bound by contract or not.

reitzensteinm• 5 years ago

That doesn't seem like a retread at all. Sherlock Holmes vs Jack the Ripper, for instance, was released in '09, and the dispute happened in 2019. A ten year period of exclusivity would not be uncommon, and neither would a publisher dragging their heels on handling it at the end.

It's very possible that the producers, lawyers and business development people involved in the original deal had all moved on. NOLF is famously not getting a remaster because nobody can figure out who owns it!

Maybe Frogwares is a bad actor, I don't know. But game publishers are notorious for trying to get away with all sorts of shit with studios that cannot afford to fight back, so there's another possibility: Frogwares is prepared to litigate to defend what is legitimately theirs.

legitster7• 5 years ago

Absolutely fair. I just want to make sure we don't rush to white knight someone in what from a distance could very well be a domestic squabble.

I don't doubt for a second that the publishers are crappy actors. But on the same token, you wouldn't expect them to do something so brazenly awful unless they had a legal leg to stand on.

toyg• 5 years ago

NOLF is famously not getting a remaster because nobody can figure out who owns it!

Yet another way the games industry is just "movie industry 2.0". The web of production and distribution deals in the movie biz is notoriously hairy, prone to end up in situations where IP ownership is contested. Which is a shame, really.

fnordsensei2• 5 years ago

I can't find any of the details about Nacon's unlawful actions, and it seems Frogware is being intentionally vague.

They are not.

They’ve written about it before: https://frogwares.com/the-sinking-city-is-being-delisted-her...

In short,

- They have withheld payments owed Frogwares.

- They have been behind on payments made by on average 40 days.

- They have incorrectly claimed to own the IP to third parties, including in their IPO.

legitster7• 5 years ago

Yes! I updated my post when I saw this.

I can't imagine it will be so simple for Frogwares to rip up their contract and walk away with the money they were paid already. But I imagine their publisher openly ripping off their game will make upcoming settlements really easy for them.

ernesth2• 5 years ago

Maybe French law is much weirder than ours, but this phrasing would be highly suspect in the US. You would get a really affirmative ruling that you are still bound by contract or not.

French law is not that strange :). But the decision was appealed and it seems Nacon won in appeal (in october 2020), which allowed them to pursue the contract and to publish the game another time.

The decision: https://webcache.googleusercontent.com/search?q=cache:DwqXp6...

legitster7• 5 years ago

This seems like exactly what is missing from their story. Unless something more recent was issued, they were flagrantly ignoring a direct court order.

cortesoft2• 5 years ago

This is very strange. This sounds like something that should be settled in the courts; I can’t imagine a lawyer would recommend making public claims like this while lawsuits are pending.

This all seems very amateurish.

alisonkisk• 5 years ago

Lawyers and clients usually make public statements to support their case, for PR.

Gene_Parmesan• 5 years ago

Case is already over. Nacon won. For better or worse, the developer is trying to win people over to their side on a case that was already decided.

I understand the huge frustrations they must be feeling, and they have legitimate complaints. But trying to rally public opinion against a publisher over a suit they lost is not going to make it easy for them to find publishers in the future.

ernesth2• 5 years ago

A judgment has already been given, which Frogwares lost.

The judgment, in october 2020, said that frogwares had illicitly tried to end their contract with Nacon. They were condemned to pursue the contract. Hence Nacon has published the game as it was the object of the contract.

jiofih3• 5 years ago

Their issue doesn’t seem to be with Nacon publishing the game though, but trying to appropriate their IP and even releasing other products without permission. That sounds like a clear breach of contract.

cestith3• 5 years ago

Frogwares was ordered to continue the contract while it continued to be litigated was the ruling I read. If Frogwares is in breach of a court order, the solution is to file a complaint with that same court that the order isn't being fulfilled. It almost certainly was not the court's intent that Nacon bought a copy at retail, made changes to the game, and published it under their own name with no attribution to Frogwares.

juskrey• 5 years ago

I was working near some game publishers many many years ago, and the case when they would crack the game in order to publish/republish/rewrap installer, localize to some local market or release some critical patch, when the original team was not responsive, not experienced in certain tech issues, had no resources allocated, was drown in bureaucracy, or even was not existing anymore, was not so uncommon.

The case when this is breaching original contracts is the well the separate issue. Often times the publisher and developer have different views of the world, - relationships in this industry have always been tense.

vbezhenar• 5 years ago

Why would anyone need publishers I just don't understand. I paid money to Factorio developers. I've got zipped game. Best UX in the world. Compare that to the Steam or Origin pain when I need to spent hours trying to install all that stuff and having my computer full of spyware afterwards, yuck!

Causality1• 5 years ago

Because they give developers money to make a game before they have any sales.

Svip• 5 years ago

Not everyone can afford to manage a server, nor have the necessary skills to do so, and thus Steam becomes a convenient tool to distribute one's game through. Factorio too is sold on Steam, but is also available through their own site.

I've heard that one of the appealing features of Steam for developers is how easy it is to upload new versions and generally distribute your game.

eznzt• 5 years ago

They are producers. Developing a game may take years and you need to pay salaries.

killtimeatwork• 5 years ago

Direct sales involve handling credit cards (i.e. chargebacks, scams) as well as getting in bed with potentially every tax authority in the world. For example, for every game sold in European country, you need to collect VAT and transfer it to that country's tax authority (currently, there's something like 28 of them?). This also includes filling out forms... Steam takes care of all that for you.

However! Publishers don't do that. Publishers' value proposition is funding the development and doing the marketing for you, so that you can concentrate on making the game. If the game tanks, they eat up the losses (i.e. it's an investment, not a loan). The retail is a separate issue and, while it's handled by the publishers, is still likely to be handled via Steam or other platforms.

terafo• 5 years ago

You may need publisher for one of the following:

Marketing

Localization

Covering development costs

Physical distribution

It is definitely possible to do marketing and localization alone as a company, but it will divert studio's focus from game development, which could do more harm than good since game development is insanely hard. Physical distribution is almost impossible to do properly for a small company. Of course there are game investors that invest into specific games and it could be better fit than publishers, but you can do both.

need to spent hours trying to install all that stuff

That is pretty much not a case.

sabellito• 5 years ago

Hours trying to install? What do you mean?

I do think that the steam's fee of 30% feels strange, but all the infrastructure they provide is pretty sweet. How do you update the zip file you downloaded? Do you trust every developer to keep their download servers running forever so you can always download it later?

stonemetal122• 5 years ago

In general the publisher pays for development. For big games from known studios, you get a several million dollar advance that pays for development of the game. The game's royalties payback the advance and hopefully you earn something.

That is why EA owns so many game studios one big flop and suddenly you owe EA a couple of million.

lmkg• 5 years ago

Weather Factory, developer of Cultist Simulator, has been open about the business side of their development. This includes a few blog posts about their decision to go with a publisher (Humble Bundle) instead of going alone.

tl;dr Up-front advance was important for cash flow and risk management. At the end of the day they ended up with less profit but think it was the right decision anyways.

http://weatherfactory.biz/state-of-the-factory-year-1/

Note also that there is a difference between a publisher (Humble) and a distributor (Steam), which is covered in that post.

flohofwoe• 5 years ago

Traditionally, game publishers were mostly a bank. Their main job was not marketing and publishing (although that's important too), but financing a game's development until it was ready for release, and sometimes to help out with resources and services (like localization, quality assurance, etc).

That's why Kickstarter and Steam Early Access are such a big deal, they allowed new financing models and independent game-dev studios to emanzipate themselves from publishers.

driverdan• 5 years ago

In the same way that authors who write books "need" publishers. You can self publish but that can make it much harder for an unknown person to succeed.

In some cases a publisher makes sense, in some it does not.

dunefox2• 5 years ago

Compare that to the Steam or Origin pain when I need to spent hours trying to install all that stuff and having my computer full of spyware afterwards, yuck!

Yeah, double clicking on a game and having it automatically downloaded and executed... hours of work and hundreds of viruses! You have obviously never used steam and origin.

legitster7• 5 years ago

In this case, the publishers gave the money to develop the game.

Mandatum• 5 years ago

This explains the Razer1911 release for CoD!

Sebguer• 5 years ago

This same publisher released a game based on the Paranoia tabletop setting, and then removed it from all platforms ~two months later without a single reason or announcement. To this day, no one knows why they removed it. The game wasn't great, but it certainly wasn't "delete from the internet without a word" bad. https://www.pcgamer.com/whatever-happened-to-paranoia/

einpoklum2• 5 years ago

Is there an official response by Nacon anywhere?

Nacon is the company which funded the production of the game. So it's not as though some band of pirates attacked a game development studio. I'm betting they have contractual disagreements regarding how to distribution is supposed to occur, who was supposed to make money off of what etc. - for which reason it seems prudent to listen to both sides.

jiofih3• 5 years ago

It seems that Frogware thought they had a licensing agreement, while Nacon thought they were buying the game IP. I guess the only way to know is if they publish the contract itself online.

loloquwowndueo• 5 years ago

Want me to read and sympathize with your sad story? Get rid of the newsletter nag that smacks me in the face the moment I open your page.

einpoklum2• 5 years ago

TBH this didn't happen to me. Could it be country-specific?

pc86• 5 years ago

There is an element of randomness. Presumably it's to A/B test what is most effective to getting folks to sign up.

davnn• 5 years ago

Could be adblocked as well.

niea_114• 5 years ago

Press release from Nacon about the dispute (5 Jan 2021) :

https://corporate.nacongaming.com/en/press/the-sinking-city-...

I'm not sure if the court decision gives them the right to do what they did (talking about Nacon).

random5634• 5 years ago

PDF here

https://corporate.nacongaming.com/wp-content/uploads/2021/01...

This is not someone in China cracking and rebranding things

niea_114• 5 years ago

Still, the court ordered frogwares to give the binaries to Nacon. They didn't give permission to Nacon to download and patch a binary, from another distributor, which is probably provided under a EULA that forbids what they did.

cestith3• 5 years ago

IANAL and I'm certainly not intimately familiar with French law. However, I think since they're saying Frogwares is in breach and has been ordered by the court to continue the contract that Nacon's course of action here should be to tell the court Frogwares isn't fulfilling the terms of the contract. I don't believe anywhere in the economically developed countries of the world is it okay to decide on your own vigilante solution and pursue it in violation of other laws.

rasz• 5 years ago

The French Justice refused Nacon’s demands twice, first in July 2020 and then in October 2020 during an appeal.

while https://news.ycombinator.com/item?id=26314325 "Order Frogwares Ireland to deliver the two masters of the game 'The Sinking city' on PC DRM Free and Steam format under penalty of 50,000 euros per day of delay from the 5th day following notification by e-mail of the decision to intervene,"

someone is lying to me here

niea_114• 5 years ago

I made a comment about this here with the relevent part of the decision in french: https://news.ycombinator.com/item?id=26314681

Edit:

The relevant part in french:

Sur la livraison des formats manquants :

— ordonner à Frogwares Ireland de lui livrer les deux masters du jeu 'The Sinking city’ sur format PC DRM Free et Steam sous astreinte de 50.000 euros par jour de retard à compter du 5 ème jour suivant la notification par e-mail de la décision à intervenir

jiofih3• 5 years ago

the linked comment has been deleted.

megiddo• 5 years ago

I think you're right. One of the first comments is the video he says is "Nacon is licensed to release it on Steam."

OK. Then why is your licensee going to such great lengths to publish to a platform you contractually agreed to support?

Something smells here.

wittyreference• 5 years ago

Because the publisher didn’t pay them agreed-upon sums, and they’re withholding the game awaiting said payment.

I don’t know which parts are true or false, but that’s right in the post, and makes complete sense.

brmgb4• 5 years ago

Both are.

The 50,000 euros per day of delay is what Nacon was asking for when they lost in July 2020. Then, Frogwares lost the October 2020 appeal. The French appeal court decided that the contract dismissal was actually unlawful. Therefore the contract stands and Nacon has the right to distribute the game. However, mandating the delivery of the two masters falls out of the court jurisdiction. This will be judged separatly during the year and the penalities don't apply until then.

YeGoblynQueenne2• 5 years ago

It seems there is some kind of Force Majeure clause in French law or the contract between Nacon and Frogware that prevents termination of the contract during Covid-19:

In our email exchange, BBI/Nacon essentially wrote that the contract cannot be terminated because of the emergency laws in France, aimed to protect businesses during the COVID-19 pandemic, and at the same time BBI/Nacon refused to fulfill their obligations toward us (payment, documented reports, etc…).

That should cover the original decision of the court. The following seems to hint on the reasoning for the appeal:

– The “Emergency Laws explanation” actually triggers the Force Majeure article of our own contract, entitling us to terminate the agreement in case the parties could not minimize the effects of an Event of Force Majeure on this agreement for a period of 60 days.

Source:

https://frogwares.com/the-sinking-city-is-being-delisted-her...

bogwog• 5 years ago

The only thing I got out of this fiasco is that I should trust neither Nacon nor Frogwares.

bilekas• 5 years ago

I remember reading about this from a long while ago.

Some publishers treat their partner studios like garbage, and it seems more and more studios treat their developers like garbage.

Daho0n2• 5 years ago

Clearly it goes both ways.

marcodiego• 5 years ago

How about releasing the game under an open source license and then complaining that they are not respecting the license and breaking copyrights of the artists?

YeGoblynQueenne2• 5 years ago

More background from the point of view of Frogware:

The Sinking City is Being Delisted. Here’s Why

https://frogwares.com/the-sinking-city-is-being-delisted-her...

Without wishing to take sides, here's what seems to be at the root of the dispute, from Frogware's POV:

On June 27, 2019, The Sinking City was released on Xbox One, PS4, and Epic Games Store. That was a great day for us. And once the game was released, we received a letter from Bigben/Nacon that the milestones that were previously approved are being canceled, meaning that we would not receive any profit from the sales of the game. A retroactive cancellation on not delivering a product on time that is already out in the market is not acceptable. That was when our legal battle began.

We filed a lawsuit against Bigben/Nacon on August 2019 and, incidentally, only then we started to receive income reports, though incomplete and undocumented. So it was not possible for us to see if the revenue was correctly calculated or even how many units we sold. At some point we received a statement claiming that one of the console manufacturers hasn’t paid royalties for more than 5 months, while actually the same console manufacturer paid our royalties from other games without any delay in the same period of time.

legitster7• 5 years ago

From below in the comments: https://webcache.googleusercontent.com/search?q=cache:DwqXp6...

They seem to be under a court order to at least fulfill their contract obligations until the dispute is resolved.

bibinou• 5 years ago

Full text of the decision given on October 29, 2020 by the Court of Appeals, in French: https://archive.is/Ezj08

Paul_S• 5 years ago

Publishers abuse studios, studios abuse games developers. You'd expect developers to leave and set out on their own or at least change industries.

moron4hire• 5 years ago

I call this the "not as smart as we think we are" problem.

Given on premise, "everyone" thinks their boss is a dope and they could do a better job.

If this were true, then companies built by disgruntled employees leaving their bosses to do said "better job" should be able to outcompete their former employers. Market pressure should push other competitors to adopt similar "better job" practices, and the "dope manager" problem should evaporate away.

But it hasn't. We'll even hear stories about companies that were started with this intention (e.g. Valve), only to later hear other stories about how the bosses are dopes.

I consider one of two possibilities: either there is no such thing as market competition, or the original "everyone" is not as smart as they think they are, and can't actually do a better job.

It could be that success turns you into a dope, but that doesn't change anything. The lack of ability to perpetually do a "better job" pushes us into the "no real market competition" scenario.

I'm actually on the fence as to which possibility I believe is the case. I suspect both are largely true, but which one is dominant is not clear.

As another example of "no real market competition" problem, consider that even small towns have multiple pizzarias, all of which are essentially identical, and equally shitty. They order their ingredients from the same vendors. They either order their equipment from the same vendors, or get it used from the previous pizzeria that went under because it's in a terrible location/ran by a dope, who themselves ordered everything from the same vendors. This "shitty pizzeria" model of markets states that store-front location and customer price biases are much stronger elements of success than product quality, as no pizzeria could afford the marginal cost of improving their product to attempt to capture a greater proportion of customers.

I think a lot of software gets made under the "shitty pizzeria" model. Most software consulting seems to be more about where the consultant is located than what the consultant can do. And in particular, I think a lot of the indie games market fits this market, made famous by memes showing rows upon rows of nearly identical icons in game app store listings.

ajarmst• 5 years ago

I'm less intrigued by the fact that this happened than by the fact that it was such a childishly incompetent effort at IP theft.

I'm not sure how French courts would differ, but in my jurisdiction, if a company that was failing to get what it wanted from the court just went and stole it, mid-litigation, there would be a very unpleasant discussion with the judge about what was going to happen next.

MikeUt• 5 years ago

Isn't what Nacon did illegal under the anti-circumvention provision of the DMCA?

Publisher Nacon Cracked and Pirated Our Game: The Sinking City

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