Abuse abuse

Little back story. I was the producer on a game called Abuse back in 1996. It did really well for us, became sort of a cult classic side-scroller. We dumbly reinvested our winnings into a game called Golgotha of so large a scope we couldn't finish it and had to close shop, but we closed it in the black.

Somewhere in there, we decided to release a goodly chunk of Abuse to the public domain, basically everything but the registered levels, the sound effects (which we didn't own, so we couldn't give away), and the Abuse trademark, which Jonathan and I transferred to ourselves before we closed the company.

Jonathan has since moved onto other adventures in the world of virtualization at VMWare, and I have been working on a myriad of things, from processors to games to videos.

I've always wanted to make an Abuse 2 someday, all deliciously updated and new, super money, the works, but I'm biding my time because I want to fund it myself, so that I can have final creative control. I feel that's really important, because if I didn't have that, Abuse would have been Alien Grue, the first game we attempted to make and botched horribly, and we wouldn't have necessarily had the freedom to fix it and do it right. I also want to hire the right guys. Jonathan Clark and Duong Nguyen in particular were the uber-mensch superheroes of the project.

I don't have that kind of money handy to do it right yet. I think it might be $1Mish, which is a damn sight more than the $60k I spent on the orig, so it might be a while.

However, in the meantime, someone fun came along and decided that Abuse was now fully public domain, including the trademark, sound effects, and registered levels that we exempted from the public domain submission. I guess he figured that proximity to public domain seeps into other things, or that time somehow erases ownership, or that licenses to some people to distribute it for free means anyone gets a license to distribute it for profit, or that seeing the exempted assets in the original tarball meant that like piracy, because you have a copy, it's free... or something. Not sure of his reasoning.

Unfortunately, there are pricks in this world. This fun fellow is named Stephane Portha, and he appears to be one of them.

We learned about this magical man a few weeks before GDC. He said he was about to release Abuse for the iPhone, and that he wanted to use the name, but he seemed to have no question about the copyrights, pricing, etc. It was just a foregone conclusion that he was going to sell it.

I was immediately appalled but too slammed with party prep and biz dev on four games to give it attention. Just figured I'd get to it when I found a breather. Instead, he waited two weeks and released the game about a week before GDC. Started getting congratulations from respected peers for having just released Abuse, but woops, I didn't. Nice and embarrassing.

Learning this, I very politely asked this mystery man to take a meeting with me at GDC. He acquiesced, and then the night before, he sent a creepy email making it super clear he doesn't get it and has no intention of backing down. So I scrambled to find an attourney to come with me. Got lucky, managed to get Jim Charne, who is fantastic peeps.

The meeting got unpleasant fast. He proceeded to share his theories on intellectual property law with us, tried to explain that the game was "abandoned" and therefore his to do with as he pleases. Jim and I tried to explain how IP law actually works, but you know the type. They don't admit to being wrong. They just swerve to some other topic to try to find some other issue with it. This quickly made me angry, and I started yelling. Not proud of it, but there you go. Don't like my baby being shaken.

Anyhoo, I said look, what's done is done, they can keep 20%, which is decent for a port and particularly considering how I found out about it, and he flatly refused. Stunned, I asked why, and he claimed it was because they had spent a lot of marketing money on it. Only half-believing that I was about to negotiate with a guy who had started exploiting our IP w/o our permission, I said OK, deduct marketing, and we'll split half. Still nothing.

Totally stunned but realizing that with his game climbing the charts (it quickly got into the top 100, peaked at 20-something), he was not going to be in any hurry to come to an agreement with us, I gave him a deadline, which he ignored.

Instead, he pretty staunchly stuck to his theory that we didn't own these things we that we said we did, and that we had to prove to him that we did.

So we sent a DMCA takedown notice to Apple, showed that the sound effects were binary identical, and an affidavit confirming ownership. I believe they forwarded all this stuff, or at least the grief associated with it, and it finally did come down conveniently almost exactly when we submitted Abuse Classic to the App Store.

There's an interesting story behind Abuse Classic. I honestly thought the little fellow was going to do the rational thing and settle, chalk it up to woops, might want to get permission next time, kind of a thing, but this wasn't to be.

What surprised me is that when we started getting on the horn with Apple about it, they too stalled. We actually shipped Abuse with every iMac for a while, did the deal through Bungie. Maybe my head is just swollen, but I didn't really think anyone out there questioned who owned or made Abuse. I guess I shouldn't have been surprised. Big companies forget deals and people. I had heard that they weren't super organized there, partially from being overwhelmed with work from claims such as these, many of which are apparently bogus.

Prolly serves me right. I have all my Crack files deep in storage, and I had let the trademark registration at the US PTO lapse because you're supposed to do this update thing at the 6 year point. Doesn't mean your trademark protection itself has lapsed, just the registration. However, when you've got a duder claiming ownership to your stuff on the other end of things, it's wise to have such up-to-date docs handy. Let that be a lesson, kids. Might have accelerated things.

So anyway, as we sensed the looming bureaucracy behind the injustice, we started developing Abuse Classic because we realized that Apple might not take the game down until they realize that they have two of almost the same game on there and would have to pick one. It's the first time I've ever made a game to make a point. Completely weird.

Anyway, sure enough, foot dragging continued, but Alien Abuse came down somewhere around our submission of Abuse Classic to the App Store. Stephane said he took it down himself in email, but now he's saying Apple took it down. Whatever.

The fun part is that I promised the wee one that I'd go public with this story. I think it sucks and should serve as a warning buoy to others who want to do good gestures unto others.

I got frank about it in a thread on toucharcade.com.

In retort, he put up this neato site to explain his side of the story.

It's grossly inaccurate of course, 5% instead of 20%, leaving out the contexts of conversations, trying to spin it as greed and control, all that good stuff. Not worth getting into detail, as this has been his consistent approach- a mixture of distraction and consistent attempts to project an image of evil and unfairness on me. I would be more upset, but it's just not very well done. Happy to forward a copy of all the actual emails to a professional journalist who would like some of the source material he's drawing from if this is deemed newsworthy, but that's not the neat part to me.

The neat part is that he omitted a rather stunningly important link to our FAQ directly addressing his original theory about the wisdom of undertaking this project without our permission in the first place. The FAQ directly answers the salient question "Is Abuse Public Domain?"

And this brings us back to the beginning. We released all the shareware bits of Abuse to the public domain back in the day, but we kept ownership of the Abuse trademark, the registered levels, and Bobby Prince kept ownership of the sound effects.

That's really the beginning and end of the discussion, but it's been taken for a very long, stupid ride over the course of five months now.

His rationale was apparently that it's OK to get your game started with someone else's stuff, and then you can just patch it up later and don't have to worry about taking it down or those initial sales, brand damage, market damage, any of those annoying aftermathy details.

A friend of mine asked me whether I've been burned on open sourcing from this experience. I haven't. I still believe in it thoroughly, and I would have done it exactly the same way again.

I think to be honest, sometimes you're fated to come head to head with an asshole, and I don't know how much I really want to prepare to stave off future assholes. Life is short, and I don't think preparing for that is any kind of way to live. The vast majority of the contracts I've signed, folks I've met, it all works out great, but you essentially need to do a lot of extra work for the handful that make life suck. If this were some inconsequential game I didn't care about (and I've worked on a few of those too), I just wouldn't have bothered with any of this, but when it's your baby, it's your baby, you know? I know this isn't going to pan out for me financially, but love is like that...

We got some pseudo-justice, I guess. Not expecting to see a penny from The One Who Can't Possibly Be Wrong, and I won't blame those who bought Alien Abuse if they don't want to repurchase Abuse Classic, because they're very similar games, but I'm glad to see it taken down and to at least have an opportunity to pay the actual authors of the game what they're owed, however modest those revenues may be.

That said! I know I speak for myself and the team in saying that we'd really appreciate your patronage and would be thrilled if sales were a titch more than modest. :)

Abuse Classic is selling for $2.99, which is rather a discount on the original, which went for $35 once upon a time.