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Dark and Darker lawyers fire back at Nexon: ‘nothing more than anti-competitive bully tactics designed to put a small indie firm out of business’

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Dark and Darker developer Ironmace may be the “punk hero of PC gaming” right now, but it’s also making some power moves in the strait-laced chambers of the law. The studio has now fired back at Nexon with a full-throated defense of its game, saying that Nexon is just mad that some of its former employees have struck out on their own.

It’s been a hell of a ride for Dark and Darker, which blew up on Steam earlier this year but then became embroiled in a legal beef with Nexon, which accused the studio of using stolen code and assets to make the game. A DMCA claim in March forced the game from Steam, so Ironmace went “old school” and distributed a promised April playtest build via torrent.

But now Ironmace is pushing back. In a letter to Valve sent on behalf of the studio, legal firm Greenberg Glusker said that Nexon has no legal basis to force Dark and Darker off of Steam, and that its claims “are nothing more than anti-competitive bully tactics designed to put a small indie firm out of business.”

Nexon’s claims against Dark and Darker center on allegations that it uses code and assets stolen from a project revealed in 2021 as P3. The concept for P3 was eventually abandoned in favor of a more conventional survival game design, which is roughly when Ironmace was founded. Early screens from P3 do bear obvious similarities to Dark and Darker, but Ironmace’s lawyer says that’s irrelevant, because P3 is “a game that Nexon never made and which does not exist.”

“Nexon claims to have created ‘unique concepts, genre, plot, story line, characters, and plans for the game’—almost none of which is subject to copyright protection,” the letter states. “While the actual expression of plot, story line, and characters certainly may be protectable, copyright doesn’t protect concepts, genres, or ‘plans.’ Nexon’s loose treatment of what is and is not copyrightable is a running theme throughout its Takedown Notice.”

The letter asserts that Nexon is fixated  with former employee Ju-Hyun Choi, who Nexon apparently alleges is the person who actually “misappropriated trade secrets.” But despite nearly two years in both criminal and civil courts, no evidence against Choi has been produced, because he did not in fact take anything on his way out the door, claims Ironmace—and even if he had, that’s a completely separate dispute, unrelated to copyright issues.

There’s plenty of legal speak in the letter to bolster Ironmace’s position, including case law citations, code and asset comparison, and even a Law and Order-esque “fruit of the poisonous tree” reference (a theory which copyright law apparently doesn’t recognize). I’m not a lawyer, but taken altogether it certainly looks convincing. Even more compelling from a layperson’s standpoint, though, are some hard truths Ironmace’s lawyer drops about the fantasy genre and videogames in general.

“A medieval-style fantasy dungeon crawler has a limited universe of plausible assets from which one may reasonably choose,” the letter states, like a dagger to my heart. “There’s a reason nearly every game that has ever explored this genre features reanimated skeletons, trolls, spiders, and the other usual dungeon denizens. There is nothing remarkable about game designers choosing some of the same scènes à faire assets in constructing such a game.”

(Scènes à faire is a term used to describe a scene in a creative work that is almost obligatory because of its genre—like, for instance, a fireball spell in a fantasy videogame. It’s also a principle in US copyright law that exempts those elements from copyright protection.)

What the matter ultimately comes down to, according to the letter, is that Nexon doesn’t want its former employees doing their own thing—especially not if that “thing” is turning an idea it rejected into a runaway hit—and so it made “unfounded threats” and used “baseless scare tactics” against Valve in an effort to bury Dark and Darker. But in so doing, says the letter, it’s Nexon that’s actually breaking the rules, not Ironmace.

“Given the absence of any colorable copyright infringement claim, Nexon’s Takedown Notice contains knowing and material misrepresentations that Dark and Darker infringed Nexon’s copyright interests in violation of 17 U.S.C. § 512(f),” the letter states. “We respectfully implore Valve not to give in to Nexon’s threats and to instead respect the creative ingenuity of a young gaming studio that has put out a product that is already loved by hundreds of thousands of fans eager to see the next chapter in the Dark and Darker saga.”

The issuing of a DMCA counter notice begins a process that could either see Dark and Darker return to Steam fairly soon, or possibly more likely, bring the courts into it.

“After receiving a counter notice, the service provider is obligated to forward that counter notice to the person who sent the original takedown notice,” according to Copyright Alliance. “Once the service provider has received a valid DMCA counter notice they must wait 10-14 days. If the copyright owner sues the alleged infringer in that time frame the material will remain down, but if no suit is filed then the service provider must re-activate or allow access to the alleged infringing activity.”

The latest Dark and Darkest playtest is now over, and while Ironmace earned kudos for making it happen despite the obstacles, the test itself did not go especially smoothly.

“The technical quality was not up to our standards, and we’ll work hard to improve it for the future,” Ironmace said in a message posted on the Dark and Darker Discord server. “We were also the target of endless DDoS attacks and we are sorry that it impacted you. We will investigate solutions to mitigate these issues in the future.”

The April playtest was supposed to be the last one before Dark and Darker launches into early access, but Ironmace implied on Twitter that there will be more to come—understandable, under the circumstances.

The dark grows darker…Till the next playtext! #DarkAndDarkerApril 20, 2023

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I’ve reached out to Ironmace, Valve, and Greenberg Glusker for more information, and will update if I receive a reply.

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