Wednesday, 19 October 2011

The Court Decision

This morning I received a copy of the final decision letter made by the court handling the case (The United States District Court for the Northern California District, Oakland Division). Here are the important bits:

"Counterclaimant Evony, LLC, is a developer and operator of video game software, including an internet browser-based multiplayer real-time simulation strategy game known as Evony®, available at www.evony.com (“Evony Game”). Evony LLC is the owner of all exclusive and substantial rights and privileges in U.S. Copyright Registration No. X0007175070, which comprises the computer code of the Evony Game. 

Counterdefendant Heroic Era (“Heroic”), a foreign corporation with its principal place of business in China, launched an internet browser-based multiplayer real-time city-building simulation strategy game named Caesary (“Caesary Game”) through the online gaming network known as Kongregate, located at www.kongregate.com/games/caesary/caesary. Evony LLC alleges that the Caesary Game has the same look and feel and uses the same code as the Evony Game.


On June 3, 2010, Heroic filed the instant action in this Court against Evony, LLC, and Regan Mercantile, LLC’s (collectively “Evony”) seeking a declaratory judgment that its Caesary Game does not infringe Evony’s copyrights. In turn, Evony filed counterclaims against Heroic for copyright infringement, and misappropriation of copyright. The Court subsequently struck Heroic’s Complaint and dismissed the action against Evony with prejudice. The dismissal of the Complaint was pursuant to Federal Rule of Civil Procedure 37(b)(2)(A) and was based on Heroic’s discovery abuse. As a result, only Evony’s counterclaims remain pending in this action.


Evony subsequently filed a motion for default judgment on its counterclaims. In its motion, Evony seeks $226,839.75 in actual damages and $1,500,000.00 in statutory damages, plus $311,252.71 in attorneys’ fees and $36,417.16 in costs. In addition, Evony seeks an injunction preventing Heroic from using, selling or distributing the source code for the Caesary Game. The Court referred the motion to Magistrate Judge Bernard Zimmerman (“the Magistrate”) for preparation of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). Herioc failed to oppose either motion or appear at the motion hearing.


On May 5, 2011, the Magistrate issued a written decision analyzing the various requests submitted by Evony. The Magistrate concluded that Evony had substantiated its request for $226,839.75 in actual damages, but found that Evony was entitled to recover only $150,000 in statutory damages based on a single act of willful infringement. Concluding that Evony was not entitled to recover both actual and statutory damages, the Magistrate recommended awarding $226,839.75 in actual damages, as the greater of the two amounts. With regard to attorneys’ fees and costs, the Magistrate recommended awarding the amounts sought by Evony. Finally, the Magistrate recommended granting the requested injunctive relief to enjoin Heroic’s use of its Evony’s source code and otherwise infringing on its copyrights. Heroic has not objected to the Magistrate’s report and recommendation."

So that clears up the whole issue about who was suing who. Heroic Era never actually 'sued' Evony, but instead sought premptive clarification that their game did not breach copyright law - probably in response to off the record threats by Evony. This was rejected, and for whatever reason Heroic Era never turned up to the trial, presumably because they thought they had no chance at all. The $1.8 million was what Evony wanted but was not granted. The final court order is this (and I did not miss out article 5, there was no article 5 in the legal docket):


"IT IS HEREBY ORDERED THAT:

1. The Magistrate’s report and recommendation is ACCEPTED and shall become the Order of this Court. Evony’s motion for default judgment is, therefore, GRANTED.


2. A judgment shall be entered in favor of Evony on its counterclaims against Heroic Era in the amount of $608,213.37, consisting of:
a. $226,839.75 in actual damages;
b. $311,252.71 in attorneys’ fees; and
c. $70,120.91 in costs.


3. Heroic Era and its officers, employees, agents, subsidiaries, representatives, distributors, dealers, members, affiliates, successors and all persons active in concert or participation with him who receive actual notice of this order by personal service or otherwise, including but not limited to Feng Investment, Ltd., are RESTRAINED and ENJOINED, each and every one of them, from:


a. Selling, distributing, advertising, or displaying, directly or indirectly, the Caesary Game or the Caesary Game source code, any copy of the Caesary Game or Caesary Game source code, or any derivative works of the Caesary Game or Caesary Game source code;

b. Selling, distributing, advertising, or displaying, directly or indirectly, the Evony Game or the Evony Game source code, any copy of the Evony Game or Evony Game source code, or any derivative works of the Evony Game or Evony Game source code;


c. Selling, distributing, advertising, or displaying, directly or indirectly any product that contains, implements, or emulates the look and feel of the Evony Game or Evony Game source code.


4. Heroic Era and its officers, employees, agents, subsidiaries, representatives, distributors, dealers, members, affiliates, and all persons active in concert or participation with them who receive actual notice of this order by personal service or otherwise, including but not limited to Feng Investment, Ltd., are further ordered to shut down or disable access to the Caesary Game, including but not limited to www.caesary.net, http://caesary.aeriagames.com, http://caesary.lekool.com, and any related websites, forums, chat rooms, servers or other online media.



6. Heroic Era and its officers, employees, agents, subsidiaries, representatives, distributors, dealers, members, affiliates, and all persons active in concert or participation with them who receive actual notice of this order by personal service or otherwise, including but not limited to Feng Investment, Ltd., are further ordered, pursuant to 17 U.S.C. § 503(b), to deliver up to Evony for destruction the following items, which are within their possession, custody or control, or that can be obtained by them through reasonable efforts, within seven (7) days of this Order:

a. All copies of the Evony Game, including any software or source code for the Evony Game; and



b. All copies of the Caesary Game, including any software or source code for the Caesary Game.

7. Heroic Era must, within seven (7) days of this Order, notify its officers, employees, agents, subsidiaries, representatives, distributors, dealers, members, affiliates, and all persons active in concert or participation with it in the copying, sale, advertising, distribution, publication and display of the Caesary Game of this Order and its directives.


8. Heroic Era must, within seven (7) days of this Order, produce to Evony documents showing an accounting of all revenues generated from the copying, sale, advertising, distribution, publication and display of the Caesary Game.


9. Heroic Era must, within seven (7) days of this Order, file with this Court a notice of compliance with this Order, signed by a representative of Heroic Era and its counsel. The Court will enter judgment consistent with this Order.


10. Within five (5) days of the date this Order is filed, Evony shall submit a Proposed Judgment which is consistent with this Order.


11. Pursuant to Civil Local Rule 72-1, Evony’s motion for sanctions is REFERRED to Magistrate Judge Bernard Zimmerman for the preparation of a report and recommendation. The October 4, 2011, hearing date on said motion is VACATED. If no objection has been filed in response to the report and recommendation within the applicable deadline, Evony shall notify the Court in writing that the report and recommendation has been issued and that no objections have been received. In addition, Evony shall accompany such notice with a proposed order accepting the report and recommendation.


IT IS SO ORDERED.
Dated: September 7, 2011"


So Evony are only going to get $600,000 - the devs dont have $600,000 to give them, from what Ive heard about the game income from portal admins. While this court decision was made on 7th September, it does not 'technically' come into effect until after the hearing, which was two weeks ago. As Heroic Era did not turn up to the trial, and Evony have felt safe to show this court order to the portals, it is safe to presume that Heroic Era did not turn up to the hearing, and so the game should no longer exist. The renaming attempt has failed dramatically, as that "emulates the look and feel of the Evony Game or Evony Game source code." But as the devs seem to be sticking their heads in the sand over this, my guess is that they will ignore this court order completely, and keep the game going as well as keeping whatever spare cash they may have had to pay off Evony.

If you want a copy of the pdf, mail me ingame or in the forum, or leave a comment with your email address - but most of the text is in this post, so there isnt any great need for it.

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