Pokemon Company continues to pursue Sword/Shield guidebook leakers, court allows for subpoena

KiokiN · Dec 15, 2019

Enryx25 said:
Why is everyone talking about Nintendo??

Pokemon Company is the one who is suing.

Nintendo owns 33% of the Pokemon Company, the other 66% is owned by GameFreak and Creatures Inc. GameFreak is a private entity, so Nintendo owns none of them. Also, Nintendo apparently owns a undisclosed percentage of Creatures Inc. So, what does this mean you may ask? Nintendo both owns a large share of the Pokemon Company, and on top of that, has a reputation for pointless law suits. Therefore, it is likely Nintendo has at least SOMETHING to do with the lawsuit.

Ev1l0rd · Dec 15, 2019

KiokiN said:
and on top of that, has a reputation for pointless law suits. Therefore, it is likely Nintendo has at least SOMETHING to do with the lawsuit.

The lawsuit isn't pointless. The plaintiff is enforcing a violation of their NDAs. Not suing over those sends a message that your NDAs don't matter and could lead to more violations.

This isn't a lawsuit over someone downloading a song and getting slapped with a ridiculous fine for doing that (aka piracy), this is a lawsuit over contract breach.

KiokiN · Dec 15, 2019

Ev1l0rd said:
The lawsuit isn't pointless. The plaintiff is enforcing a violation of their NDAs. Not suing over those sends a message that your NDAs don't matter and could lead to more violations.

This isn't a lawsuit over someone downloading a song and getting slapped with a ridiculous fine for doing that (aka piracy), this is a lawsuit over contract breach.

Has it been confirmed that the leaker had a NDA? If so that is completely different.

Worldblender · Dec 15, 2019

Stuff like this sometimes makes me wish that I could become a scapegoat (even though this is not for the games themselves), just so I can get a taste of what it's like to be in these kinds of lawsuits. I may feel that I deserve things like this (ignore all the open-source projects I made), for every single incident of copyright infringement that occurred, for every single video game ROM/ISO image I ever downloaded, even if they're no longer legally available (let's pretend that the big companies have 100% power here). That could bankrupt my family in a matter of minutes, assuming maximum damage for every case of infringement. But nothing else really matters, I may use this to hurt myself financially, because I sometimes feel like being masochistic.

Ev1l0rd · Dec 15, 2019

KiokiN said:
Has it been confirmed that the leaker had a NDA? If so that is completely different.

Plaintiff establishes in the opening for their lawsuit that the guidebook (which they're suing over) wasn't distributed yet outside of circles that had NDAs on them.

No stores or reviewers had gotten their hands on the guidebook yet, there wasn't any shipping being done yet, which means that the only possible way for someone to get a physical copy of them would have been to steal one from their warehouses or the printing lines, both of which are explicitly established to be covered by NDAs by the plaintiff in their complaint.

FAST6191 · Dec 15, 2019

Ev1l0rd said:
Plaintiff establishes in the opening for their lawsuit that the guidebook (which they're suing over) wasn't distributed yet outside of circles that had NDAs on them.

No stores or reviewers had gotten their hands on the guidebook yet, there wasn't any shipping being done yet, which means that the only possible way for someone to get a physical copy of them would have been to steal one from their warehouses or the printing lines, both of which are explicitly established to be covered by NDAs by the plaintiff in their complaint.

While they can have their rather odd fishing expedition I am not inclined to entirely buy that story, or at least assume there is no left it on the train and come what may type scenario potentially applicable here.

Someone might be at fault but to leap immediately to people under NDA doing the leaking is a bit of a stretch.

Ev1l0rd · Dec 15, 2019

FAST6191 said:
While they can have their rather odd fishing expedition I am not inclined to entirely buy that story, or at least assume there is no left it on the train and come what may type scenario potentially applicable here.

Someone might be at fault but to leap immediately to people under NDA doing the leaking is a bit of a stretch.

"or at least assume there is no left it on the train and come what may type scenario potentially applicable here", this isn't possible. Plaintiff establishes that the guidebook was covered by their NDAs and is one of their trade secrets. The notion of "I take a copy of the guidebook home and left it on the train" is already breaking that NDA because you're not allowed to do something like that to begin with (they go in-depth about the security measures they take on TPCs premises and how they enforce similar measures for their printers and distributors in the original complaint. Long story short "taking your work home" would count as violating the NDA).

Even if we assume something like this happened, it wouldn't change that the plaintiff is dealing with a broken NDA here.

FAST6191 · Dec 15, 2019

Ev1l0rd said:
"or at least assume there is no left it on the train and come what may type scenario potentially applicable here", this isn't possible. Plaintiff establishes that the guidebook was covered by their NDAs and is one of their trade secrets. The notion of "I take a copy of the guidebook home and left it on the train" is already breaking that NDA because you're not allowed to do something like that to begin with (they go in-depth about the security measures they take on TPCs premises and how they enforce similar measures for their printers and distributors in the original complaint. Long story short "taking your work home" would count as violating the NDA).

Even if we assume something like this happened, it wouldn't change that the plaintiff is dealing with a broken NDA here.

I agree there would be someone in breach of NDA (whether knowingly or unknowingly I don't know) here but whether it is necessarily the leaker/distributor like many are assuming is a different matter. Enough to launch a fishing expedition upon though. I am sure they can also get some lawyer to swear up and down that the only plausible scenario for it escaping was a fault with the entities in question (anything else being a suitable candidate for a work of fiction, or Hollywood plot if we are to use usual security industry parlance, and likely a better story than the one in the game in question) too but they are hardly going to talk themselves down at that stage when there is nobody to answer to.

I suppose in the end I can't get to being morally upset here, and find it truly strange some of the vitriol that some people here and about the place are spewing (though probably written off with "ah, pokefiends"). Someone saw an ahead of time (a bloody short one at that) distribution of true official data about a work, and said same data would have been discovered in hours most likely and shared even quicker. Such things also usually being part and parcel of such works (how many leaks about games, films, TV shows, music, books.... have we seen over the years?).
Not the same as leaking a secret formula (or taking said secret formula and starting your own company), particulars of an upcoming contract deal, particulars of a product request or the usual lines of things NDAs cover, at very best results of research being leaked could come close but that is still a very different scenario from where I sit. If they can demonstrate fault with a printer, translator, typesetter, IP lawyer... then no objections to breach of contract (or agreement) style fines, negation of any bonuses and justified future blacklisting but they are going about it in a rather odd way and rubbing a lot of people the wrong way in the process.

Ev1l0rd · Dec 15, 2019

FAST6191 said:
Not the same as leaking a secret formula (or taking said secret formula and starting your own company), particulars of an upcoming contract deal, particulars of a product request or the usual lines of things NDAs cover, at very best results of research being leaked could come close but that is still a very different scenario from where I sit. If they can demonstrate fault with a printer, translator, typesetter, IP lawyer... then no objections to breach of contract (or agreement) style fines, negation of any bonuses and justified future blacklisting but they are going about it in a rather odd way and rubbing a lot of people the wrong way in the process.

Naw, this is pretty procedural. It's blowing up because a lot of people felt kinda burned on Sword and Shield (due to Dexit is my guess which is the cause for a lot of the vitriol surrounding these games in general) and this feels to them like it's that TPC cares more about squeezing money from leakers than delivering the game they wanted.

Of course, due to how contracts and running a business works, that isn't accurate from TPCs perspective, but the average vocal Pokemon player isn't going to understand or care much about that.

Subpoenaing the leakers information and going after them for said breach of contract isn't anything out of the ordinary for a lawsuit like this.

FAST6191 · Dec 15, 2019

Ev1l0rd said:
Naw, this is pretty procedural. It's blowing up because a lot of people felt kinda burned on Sword and Shield (due to Dexit is my guess which is the cause for a lot of the vitriol surrounding these games in general) and this feels to them like it's that TPC cares more about squeezing money from leakers than delivering the game they wanted.

Of course, due to how contracts and running a business works, that isn't accurate from TPCs perspective, but the average vocal Pokemon player isn't going to understand or care much about that.

Subpoenaing the leakers information and going after them for said breach of contract isn't anything out of the ordinary for a lawsuit like this.

Starting out in the civil world with public shots from the web on backwards, and the stuff done before then, is not really standard play for this sort of thing. It is also not something I have really ever seen despite equivalents in said games, films, TV shows, music, books.... for decades at this point. Also the rather nebulous idea of damages as a result being floated around too rubs me the wrong way.

So quite possibly within the letter of the law, maybe even the spirit, but still getting the raised middle finger from me.

bobmcjr · Dec 15, 2019

Ev1l0rd said:
Developers are (typically) not lawyers! Just because TPC is suing here doesn't mean the developers or the executives are spending all their time going after a bunch of leakers. This is probably a lawyer office that is representing them.

Sure, but executives are 100% responsible for the actions of their corporation. Law firms don't just randomly look around for things to DMCA without the corporation telling them to. I also hold developers as equally complicit as lawyers. They are both just carrying out the will of the corporation.

FAST6191 · Dec 15, 2019

bobmcjr said:
Sure, but executives are 100% responsible for the actions of their corporation. Law firms don't just randomly look around for things to DMCA without the corporation telling them to. I also hold developers as equally complicit as lawyers. They are both just carrying out the will of the corporation.

There are firms out there which are given a fairly broad mandate to seek out and engage in action. That said for it to get to this point (which is to say beyond simple DMCA notices or equivalent and the foundations of a lawsuit/investigation) there would surely have been someone involved to pull the proverbial trigger or tell them knock it off (court time, prep work, filing fees... not a cheap hobby).

To that end I would probably phrase it as if we are all OK with telling devs* they work for a bunch of cunts so if they don't want to be caught in the crossfire or stained by virtue of continued association... then this counts as that.

*crunch time woes being the ones some got hot and bothered about in the recent past, though I am usually inclined to dismiss those as "can't stand the heat, get out of the kitchen". For others many of the allegations of improper conduct were rather spurious but would be a good example if properly substantiated and acted upon. Don't work with censors, or if they are some flavour of monopoly you have to deal with then at least don't make the lives of censors easy, (Sony of all entities being the main one at present, though Valve, Microsoft and Nintendo have all been the arsehole in the past) might be another. Amusingly the best example here is probably from devs themselves when various tech companies had their tech peeps say don't be doing all that military contract nonsense with the tech we made (VR and AI for the most recent examples) and while I can't say I agree with that it is a position I can see people justifiably taking.

Ev1l0rd · Dec 15, 2019

bobmcjr said:
Sure, but executives are 100% responsible for the actions of their corporation. Law firms don't just randomly look around for things to DMCA without the corporation telling them to. I also hold developers as equally complicit as lawyers. They are both just carrying out the will of the corporation.

What likely happened is that just some random employee from TPC, could really be anyone from the CEOs to the person doing their cafetaria noticed the breach (could just be from casually browsing reddit or 4chan on breaks), forwarded it to HR, who then proceeded to notify the CEOs who subsequently hired a law firm to investigate the leak.

That's just my guess though, I'm not a part of TPC nor do I know how they operate but that would seem to me how something like this would go.

Either way, whether you hold developers complicit or not, it's not really relevant here because this lawsuit has little to do with the clusterfuck that is copyright law and more has to do with contract breach, which holding up in court is important to do because it means you won't tolerate breach of contract so that people don't screw around with you.

DuoForce · Dec 15, 2019

Fuck the court for allowing the subpoena

FAST6191 · Dec 15, 2019

DuoForce said:
Fuck the court for allowing the subpoena

I don't know if I can get there.

For the purposes of the court the people sharing the images could reasonably be said to be linked to, or possibly be, the originators of the leak, a leak they can at least straight facedly call both a breach of contract and attribute something resembling damages to the whole affair then it make sense to try to get any tracking data (if it still exists*) to in turn try to find a location, such a thing not exactly being a terrible burden upon the would be defendant. I would agree anybody even vaguely sensible would use some kind of cash purchased VPN/TOR in a coffee shop/library/open wifi they walked to a town over with a random name throwaway account (and even better an unwitting middleman) but not everybody takes precautions and thus they do the due diligence for these situations.

*I don't know what required retention policies are around the world, and that is before we get into the usual jurisdiction nightmares, but if the sites in question do routinely delete logs then that is a different matter.

I still think this is the wrong way to set about this (starting in the civil arena, being as public as they are about things, going from the end on in having potentially not exhausted means of internal investigation) and beyond the contract/NDA breach itself pointless to try to recoup anything but it is well within the scope of most courts and cases.

Now if they get the data back and it is just some kid reposting something they were dropped from IRC or something and then try to get a look at their computer then that is a different matter.

Lumstar · Dec 16, 2019

Enryx25 said:
Why is everyone talking about Nintendo??

Pokemon Company is the one who is suing.

Nintendo has a portion of the Pokemon copyrights and trademarks.

Dungeonseeker · Dec 16, 2019

nero99 said:
before people get all pissy over this. These people deserve this 10000000%. Don't want to risk getting in trouble? don't leak stuff. And for all of you who will have some smart comment to say.. just think if this was your work that you put a lot of time into only to have some idiot leaked your stuff that had a strict release date. I bet you would sue aas well.

Wrong. You can only get in trouble for leaking if you do it while under an NDA (or other contract), if you haven't signed anything you have no obligation to protect anything.

Ev1l0rd · Dec 16, 2019

Lumstar said:
Nintendo has a portion of the Pokemon copyrights and trademarks.

TPC's internal structuring has been covered earlier in this thread. Nintendo controls 32%, with Creatures Inc and Game Freak owning the rest. Creatures Inc is also to some extent controlled by Nintendo so not sure how that plays into it. That said, it's unlikely this lawsuit is fueled by Nintendo alone. Again, getting sued for breaking an NDA isn't all that weird.

Dungeonseeker said:
Wrong. You can only get in trouble for leaking if you do it while under an NDA (or other contract), if you haven't signed anything you have no obligation to protect anything.

Anyone with access to the guidebook at the time of the leak would have broken the NDA if they leaked it. Whilst there's the possibility that it's a case of "I left this in the train and someone picked it up", that a. would still mean the person who did that broke their NDA and b. it's very unlikely and either way that's something you can only know once you investigate the case (ie. through subpoenaing the places where the leaks got posted to).

WD_GASTER2 · Dec 16, 2019

Ev1l0rd said:
The lawsuit isn't pointless. The plaintiff is enforcing a violation of their NDAs. Not suing over those sends a message that your NDAs don't matter and could lead to more violations.

This isn't a lawsuit over someone downloading a song and getting slapped with a ridiculous fine for doing that (aka piracy), this is a lawsuit over contract breach.

This is one of those situations, while i understand where they are coming from feels a bit disproportionate to any damage they incured though. Still their right, but feels strong handed.

Ev1l0rd · Dec 16, 2019

WD_GASTER2 said:
This is one of those situations, while i understand where they are coming from feels a bit disproportionate to any damage they incured though. Still their right, but feels strong handed.

I mean, the situation is practically identical to "game tester signs up for testing a video game, proceeds to leak beta builds to the general public". It'd make sense to sue for that, because it sends the clear message you aren't going to be messed with when it comes to enforcing your contracts.

It's also likely possible that they tried to do a covert investigation at first and only opted to go for a lawsuit when they didn't figure out who it was by doing that (seems likely, when you compare this case with a recent case by a different developer who concretely sued someone for leaking early footage of their game).

chrisrlink · Dec 16, 2019

at least tpc/nintendo hasn't gone after the end user pirate at least not yet their are WAY to many of us to sue and time+energy+money will be wasted going after people who just plays leaks/rom dumps in general, but the scene dumpers/leakers are a different story

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