Today, lawyers representing Dark and Darker developer Ironmace sent a letter to Valve disputing the DMCA notice that led to the game's removal from Steam.
"The Takedown Notice is based on claims that are entirely without merit and contains knowing and material misrepresentations that Dark and Darker infringed Nexon’s copyright interests," as Greenberg Glusker lawyer Aaron Moss writes on behalf of Ironmace. Moss argues that Nexon's claims are "nothing more than anti-competitive bully tactics designed to put a small indie game studio out of business."
In February, Nexon - a megapublisher responsible for some of the biggest online games in the Asian market - accused some of its former developers of stealing assets from an in-development project called P3 as they left the company to found Ironmace and begin development on Dark and Darker. In March, police raided Ironmace in search of the alleged stolen assets, but according to the devs found nothing. A few weeks later, the game was delisted from Steam in response to a DMCA notice from Nexon. Last week, Nexon formally sued Ironmace for "copyright infringement" and "misappropriation of trade secrets."
In Moss's letter, which was distributed to media outlets today, he argues that since "Nexon’s claims relate to a game that Nexon never made and which does not exist," the publisher's claims of copyright infringement are not appropriate. "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. While the actual expression of plot, story line, and characters certainly may be protectable, copyright doesn’t protect concepts."
In its takedown notice, Nexon pointed to similarities between concept art for P3 and characters in Dark and Darker, though Moss argues that the similarities do not go beyond long-standing tropes for fantasy characters like wizards and barbarians.
Further, Moss says that "what appears in Dark and Darker consists primarily of third-party assets legally acquired from the Unreal Engine asset store. To the extent that Nexon used the same or similar assets, that does not give rise to a copyright claim." A fantasy game is likely to contain plenty of familiar elements ranging from skeletons to spiders, Moss argues, and says that "a game of the magnitude of Dark and Darker uses /thousands/ of third-party assets in the game. Even if Nexon can cherry-pick a dozen identical assets between them, that is only a drop in the bucket in terms of actual game design."
With examples like that, the bulk of the letter continues the argument that the similarities between P3 and Dark and Darker don't go any further than the similarities between any two fantasy games. "The reality is that for every comparison Nexon can come up with, one can find half a dozen different games with the exact same feature - and in some cases, the very same asset."
Now, again, this letter is addressed to Valve, asking the company to restore Dark and Darker on Steam in defiance of Nexon's claims of copyright infringement. Nexon filed suit against Ironmace in the state of Washington for both copyright infringement and misappropriation of trade secrets, but Moss argues that the latter claim only concerns one Ironmace employee - Ju-Hyun Choi - and should be settled in South Korean court, where Nexon has been pursuing the claim "for almost two years."
"At best, Nexon has taken a handful of unprotectable elements and cobbled them together to form the illusion of a copyright infringement claim," Moss concludes. "But in reality, this case comes down to the fact that Nexon does not want any of its former employees to work at an indie studio developing a fantasy-themed extraction game. And Nexon will bend copyright law well past its breaking point in order to keep Dark and Darker out of the public’s hands."
Whether Valve takes these arguments and returns Dark and Darker to Steam remains to be seen, but you can bet there's a lot more legal drama to come before the game makes it to market.
With no Steam page, the Dark and Darker devs distributed its latest playtest via torrent.
