Epic Games countersues Silicon Knights

Unreal Engine creator says Too Human developer is trying to steal its technology, asks judge to dismiss original suit.

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The troubled development of Too Human was partially chronicled last month in a Silicon Knights lawsuit against Epic Games over a licensing agreement to use the latest Unreal Engine in the game. Silicon Knights claimed that Epic breached its contract and failed to deliver a workable version of the engine on time, forcing the developer to start building its own engine for Too Human, and delaying the game in the process.

Epic has returned fire: Yesterday the company filed a motion to dismiss the original suit, and then filed its own countersuit against Silicon Knights. In its defense, Epic said that Silicon Knights failed to show that the company misrepresented the truth or ever intended to deceive the developer.

It also took issue with Silicon Knights' portrayal of some terms in the licensing agreement. While the original suit claimed that Epic had committed to delivering a working engine for the Xbox 360 and PlayStation 3 within six months of each system's final development kits being sent out, the motion to dismiss claimed that Epic was obligated merely to "demonstrate" that the Unreal Engine 3 would run on the Xbox 360 by March of 2006. The motion made no mention of the PlayStation 3 deadline.

Regardless of how the judge rules on the motion, there's also Epic's counterclaim to sort through. In short, Epic accused Silicon Knights of trying to steal the Unreal Engine 3 technology.

"Indeed, the plain language of the Silicon Knights' complaint makes clear that Silicon Knights wants to take Epic's licensed technology, pay nothing for it, and use it any way it pleases," the counterclaim reads.

According to Epic, Silicon Knights had full access to the Unreal Engine 3 code and support network for an evaluation period of roughly nine months before it entered into the license agreement. The developer also got a break on the regular licensing fee because it committed to use the engine exclusively for all of its Xbox 360, PS3, and PC games.

As such, Epic accused Silicon Knights of breaching the contract by creating its own engine for Too Human and developing the game--and a second game with Sega--using that new engine. Additionally, Epic sued the developer for copyright infringement because Silicon Knights said in its original suit that the new Too Human engine was based on Unreal Engine 3.

Epic said the new engine is an unauthorized, derivative work that violates its licensing agreement and constitutes a misappropriation of its trade secrets. It also noted in the months prior to the countersuit that Silicon Knights accessed "virtually all" of the Unreal Engine 3 documentation that Epic makes available to partners online, "consistent with an effort to archive documentation for use outside the scope of the license agreement."

Epic is seeking damages in excess of $650,000, as well as an order that any code or games that infringe on its copyright be destroyed. Only Silicon Knights' next project after Too Human--the as-yet-unannounced game to be published by Sega--is referenced directly in the copyright-infringement claim.

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