Experienced Points: Revenge of the Litigated

By Shamus
on Aug 13, 2010
Filed under:


Last week was grim truths. This week my column is obvious advice that will be ignored, to the ruination of millions of dollars and many jobs.

Ah well. At least all the other industries are just as screwed up as this one.

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  1. Mari says:

    Darn you and your logic, Shamus. Your logic would prevent my company from potentially making billions of imaginary dollars that I would never see.

    OK, really, excellent advice. I wish more of my favorite developers would take it. For that matter, I wish more businesses in general would take it.

  2. Steve C says:

    Wait, you’re telling me that the loser doesn’t have to pay legal costs in the USA? (I’m not an American.)

    • Mari says:

      It varies. We have many different kinds of courts in the US and they each have their own rules to a degree. Also, even where it’s not just part of the rules, most companies that bring suit can include their legal fees in the judgement if they choose to do so. In fact, a common business practice when defending against a lawsuit is to file countersuit for just such a purpose. Basically Company A sues Company B for breach of contract or somesuch. Company B defends against the suit in part by filing a suit of their own for the same. Each company demands, as part of the settlement, that the other side pay their legal fees. Ergo, the winner gets their legal fees paid by the loser. If both parties win their suits, the demand for legal compensation is usually thrown out by the judge.

      • Scipio says:

        Not really sure what you’re referring to Mari. Companies don’t file countersuits, nor can they simply demand legal fees as part of a win. They file counterclaims that are part of the same suit. And they can only request legal fees if specifically allowed by law.

        The problem with a loser-pays scheme is how much does the loser have to pay? Think one of those Grisham films/books where a solitary Tom Cruise attorney takes on the entire in-house legal department of a major insurance firm. A big firm can easily rack up millions in legal fees. And once those fees pay off and the big firm crushes its small competitor, suddenly the small firm has to pay several million on top? Seems odd considering the small firm probably only spent 1/10th as much on its own legal fees. So basically loser-pays plans incentivise excess legal spending.

        • HeadHunter says:

          That’s exactly why I said that a “loser pays” scenario is a nonsense “solution” to this issue. It would merely be another means that Activision would use to crush these small developers or bring them into line.

          • Steve C says:

            That’s exactly why I said that a “loser pays” scenario is a nonsense “solution” to this issue.

            A ‘nonsense “solution”‘? Wow. Way to insult every jurisdiction that does have such loser pays laws. It works well. It’s so common I assumed the US did it too.

            BTW “Loser pays” is not automatic nor is it necessarily the full amount. It’s determined by the judge who awards only 100% of costs if the loser’s case was non-existent or if the winner would be unfairly burdened by the cost if they had to pay their legal fees. The court looks at if there is unequal bargaining power between the parties and favors the weaker party when it comes to who pays court costs. It also has a cap depending on the court that hears the case. For example I think small claims court has a $500 cap on legal fees that can be awarded.

            • HeadHunter says:

              Did you miss the words “TO THIS ISSUE”? I put them in caps so you don’t overlook them this time.

              Making the loser (i.e. the Small Developer IN THIS CASE) pay the winner’s (i.e. The Big Publisher IN THIS CASE) legal costs would actually help Activision’s strategy of using the courts to bring small developers under their thumb and eliminate those who won’t toe the line.

              So please don’t accuse me of making a generalization when you’ve clearly misunderstood what I wrote.

              • Steve C says:

                I understood what you wrote. It didn’t make sense because it demonstrated a lack of understanding of how this kind of system works.

                If the small developer loses to a big publisher and must pay the legal costs then it means the small developer DIDN’T HAVE A CASE TO START WITH. That’s the reason why the =judge= would have awarded legal fees. If the Big Publisher uses their deep pockets to force the small developer to drop their case then that means the dispute was settled out of court. IE THE COURT WOULDN’T AWARD ANYTHING. If the case goes away then the =judge= doesn’t get the chance to rule on the case and cannot award legal fees.

                One party can counter-sue the other for their legal costs but that only has a chance in hell of working if the original lawsuit was complete bullshit. For example someone engaging in fraud.

                • HeadHunter says:

                  It’s overly optimistic to assume that the party that is in the right will always win in court. Sometimes, all it takes is a better lawyer. Look at the O.J. Simpson trial, or any of a number of other famous cases where the prevailing opinion was against one party but good lawyers won the case.

                  Even if Activision doesn’t have a good case, and even if the small developer is in the right, an army of lawyers can find a way to win in court – and if they do, “loser pays” is just the final nail in their coffin.

                  Don’t be so naive in believing that the good guys always win. Activision has a history of proving you wrong.

                • Deoxy says:

                  Actually, the J case mostly just proved that a bad judge ruins a good case – the judge made several very bad calls. Also, there was a significant racial issue there.

                  But seriously, loser pays is a GREAT idea, and it works well in most places it is used. Also, several people in this particular comment thread (I’m going to read the rest and post at the bottom) are shooting their mouths off without proper factual knowledge.

    • Amarsir says:

      Another problem with the “loser pays” theoretical approach is that it’s not crystal clear who lost.

      I claim you owe me $100 million, and refuse to settle. We go to court, and ultimately you are ordered to pay me $1000. Which of us won this?

      • Michael says:

        Legally? You did. Enjoy.

      • Deoxy says:

        There are several ways that loser pays (as actually implemented in most jurisdictions in industrialized world) deals with this. A very simple one is to compare initial offer to final judgement. That is, if you sue me for $OMGillion, I offer you a $1000 settlement, you refuse it, and a jury awards you $1000, then actually, *I* won the case (for “loser pays” purposes) – I made an offer that the court considered sufficient to make you whole, and you refused and drove up legal costs on both sides.

        Now, that was a fairly simple example (obviously), and no system is perfect (there are still some bad outcomes in any system), but loser pays produces few bad outcomes than our current system.

  3. HeadHunter says:

    Your advice is the logical, sensible and best course of action in this regard.

    As for the suggestion of “loser pays”? Some states have it, some states don’t – but even where it applies, it’s beneficial to the big company that’s trying to outlast the little guy in court. When the small developer can no longer continue to pursue the amtter and withdraws, the court finds in favor of the Big Publisher – at which point, small developer pays their legal fees and is driven out of business.

    This is why pat answers are so seldom useful – people think the matter through just enough to come up with an answer but fail to see how it can be abused or circumvented.

    • Dev Null says:

      Or, in a more convoluted example, small-ish developer – big enough to have some investors – gets told by their investors / board / whatever that they _will_ settle out of court, because even if they’re in the right theres a chance that they’ll lose the court case because the big guys have better lawyers, at which point the legal costs will bankrupt them.

      Sad but true: the guys with the money win.

    • Sumanai says:

      If you’re the small fish and you know the loser pays, and believe you’re on the right, you can spend more in lawyers. Of course they have to be hired with the “get paid after”. But if the loser pays, and the loser will very likely be the large company, I’d think a lawyer would go for it.

      For example:
      Company L(arge) threatens to sue company T(iny) for BS reasons.
      T expects that it will be ruled in their favor, and know that loser pays.
      T can hire good lawyers to guarantee it, paid after.
      Said lawyers will most likely agree to do this, because it’s “loser pays”, it is against a big company that can pay the fees and they believe T will win.
      L will most likely back off, because they can’t really hurt T through legal fees. And L will have to look for another leverage.

      Of course, that’s the “perfect scenario”, but I feel few understand why “loser pays” is in place anywhere so I think it’s worth noting.

      • HeadHunter says:

        That’s the “ideal” scenario – but if things truly went ideally, the little guy would win in court on their own merits.

        If you could hire a legal team that would be willing to get paid after the case is settled, that would work. But Activision has an established strategy of using the courts to put the little guy in a financial stranglehold, and this would carry over to the little guy’s legal team.

        Say you’re a lawyer, and you’re working full-time to defend a small publisher from Activision’s legal antics. The case has dragged on for months because Activision has lawyers on retainer and can afford to pay them in advance. Meanwhile, you have a mortgage, student loans, and your kid’s braces to pay for… but you aren’t getting paid until this case is finished. That’s a matter of “if and when”, and when/how much you’ll be paid is not yet known. And there’s still a chance that Activision will win anyhow, in which case you’ll be trying to collect your fees from a developer that has just been bankrupted in court. And now Activision has successfully used its tactics on you as well as them.

        Given those conditions, do you really think a small developer is going to be able to find someone who’ll do the work?

        Loser Pays is a good idea for some types of cases, but sadly, this isn’t one of them. The only answer, as Shamus has said, is not to make the deal in the first place.

        • Sumanai says:

          If you’re a lawyer and you’re tight on money, why would you take a case “paid when done”? I’m pretty certain it makes more sense for a more established lawyer to take such a case, and since his payment is basically secured by the big company the small one shouldn’t really need to worry about the cost.

          However, my point wasn’t that it’s (loser pays is) either perfect or a solution to all of life’s problems. Large companies like Activision can often get around such things, even if they protect against their current tactics. The important part on legal chances is to make those either harder to use or less powerful.
          My point was that “loser pays” isn’t some haphazard piece of stupid that most seem to assume, and that I think it could help dissuade the more sue-happy attitudes.
          Of course there are other options, and “loser pays” might need other system changes to work properly.

          As much as people who think the US justice system is a swiss cheese made of dogshit are wrong, it’s wrong to assume that other systems are automatically bad either.

          The worst use of “loser pays” still seems to be in the US, if I’ve understood correctly. Some states have it, but others don’t? Sound pretty abusable to me. I’d say all or nothing in this case.

          And yes, I do think the best method to avoid problems like these is to not make business with people who aren’t trustworthy.

          • Deoxy says:

            people who think the US justice system is a swiss cheese made of dogshit are wrong

            Yes, they’re wrong – swiss cheese made of dogshit would be a big improvement.

            In general, I’ve travelled enough of this world to know that the US is far and away the place to live, and generally, if I point out that “other countries do X”, that means we SHOULDN’T do X, because it probably sucks.

            But this is one area where the US has some serious problems. And “loser pays” would be a very big improvement.

            Note that it is not PERFECT, and there would still be bad results in some cases… just a lot fewer of them. It would help remove some of the perverse incentives.

            In the example of small company versus large company, yes, sometimes, the small company would lose and go bankrupt, but they would probably have gone bankrupt ANYWAY, so the result is really no worse, but the small company can AFFORD to fight back on good cases (instead of just having it dragged out until they run out of money), at least in many cases, and the big company tactic of just running up the tab for both of them loses some significant power. In short, the individual results get no worse, and the aggregate results get BETTER.

            • Sumanai says:

              Yeah, well I guess I’ll have to out loud advocate something sooner or later (and indeed have) so I might as well explicitly mention that I think that “loser pays” solves more than it causes.

              But having it on some jurisdiction and not others? Bad idea. You can basically just sue in a court that’s supporting you’re agenda.

          • HeadHunter says:

            That’s why I emphasized “to this issue”. It may work great for many things, but it won’t do a damn thing to stop Activision’s typical legal behavior. If anything, it will only help them further.

            For those who doubt, ask anyone who HAS lost to Activision: Would you be better off if you had to pay Activision’s legal fees too? Of course not.

            As for those brave Davids who succeed against Goliath? They don’t need to worry about Activision paying their legal fees – they’ll make the majority of their money back from damages – which could, among other things, include those fees. So “loser pays” isn’t necessary there, either.

            • Deoxy says:

              No, to get damages, they have to win their own suit against Activision. Activision could drag out a long case and lose, but the small guy doesn’t get reimbursed for his legal fees (much less get any damages) unless it files its own suit back AND WINS.

              That is, there are three outcomes, not just 2: Activision outright wins (and maybe sometimes they should), Activision loses their case AND loses the countersuit (which should make the little guy whole again), and Activision loses the case but WINS the countersuit (which basically means Activision still wins since the little guy is bankrupt – countersuits in these cases are also generally extremely hard to win).

              And that’s without considering that Activision can drag out a case long enough for most little players to run out of money so they can’t fight the original suit in the first place.

              THAT is why “loser pays” is necessary.

  4. Steve C says:

    Here’s another “easy solution” that I think is a good idea:
    Ensure that no dispute settled out of court is ever allowed to be confidential.

    Part of the problem is that companies like Activision force a large number of people into confidentially agreements when they complain. That is bad for society. Essentially it’s extortion. I’d make any and all such clauses unenforceable. They are still welcome to keep it secret if both parties wish, but if the dispute had been settled in court it would all be part of the public record. There’s a reason why court records are public.

    • Sheer_Falacy says:

      And how are you going to a) verify this and b) deal with the fact that any random argument between 2 people is, in fact, a dispute settled out of court?

      • Steve C says:

        I don’t understand either of your points. There’s nothing to “verify” and of course any random argument between 2 people is a dispute settled out of court.

        If one party forces another to accept terms that include “You are not allowed to speak of this to anyone” then currently that is legally enforceable. If they do speak about it then they can be taken to court and there will be consequences for breaking those terms. I’m saying that there should be no legal consequences if one party fully discloses the terms of that legal agreement against the wishes of another. Court issued gag-orders are and should remain enforceable.

        • Sumanai says:

          That has a problem.

          How about situations where two companies make, say, a manufacturing agreement, but the orderer doesn’t want it to go public yet. Say, for marketing reasons.
          Sure, if the provider goes public about it they’ll most likely lose future agreements, but the current contract will hold because it wasn’t breached. It would really suck being in the ordering end, especially if part of that agreement was, say, sole rights to manufacture said object.

          Not the best example, I’m sure, but still.

          • Steve C says:

            Yup those sorts of things would come up. I still think the positives outweigh the negatives in abolishing unilateral lawyer (not court) created gag-orders. It’s bad business to piss off the people you do business with for no good reason.

            I can think of lots of problems like your example but I can’t think of anything so negative to be comparable to one side using their financial power to force unfair terms and force silence about those terms onto someone. And a SLAPP so ridiculously common now.

            I have a friend this happened to. I know many of the facts surrounding his circumstances because they happened and there are public records. But =he’s= forbidden from telling anyone what happened even if it’s just to read outloud the information I already know. So we have the situation where an event happened that’s not secret but the victim and only the victim is not allowed to speak of it to anyone. The victim must suffer in silence because he did not have enough money to protect his ability to speak.

            Secret deals that cannot stand public scrutiny are extremely bad for society. It’s the reason why whistle-blowers get protection under the law.

            • Sumanai says:

              I suppose there could be a time limit. And it could top at, say, five years. Of course with the exception of court rulings.

              Still, feels like too simple solution. In law there’s never a rarely a solution that actually solves something without bringing new problems.

              Not that I agree with Shamus’ almost defeatist attitude. Progress can be made, just make sure it’s actually progress.

  5. Irridium says:

    Hopefully Bungie knows what they’re doing. They’ve managed to be part of Microsoft for almost 10 years and managed to make it through alright, where others(Rare) weren’t so lucky.

  6. Daemian Lucifer says:

    1)Massive fines:There is actually an easy solution to this,and I think it is being implemented in norway,or sweeden,Im not sure though.It goes:Fines arent fixed,they are a percentage of your monthly/yearly income.So if youve earned $100 last month,your fine will be $50.If youve earned $100000000,your fine will be $50000000.

    2)Reputation:You ask why,and you answer it(indirectly)in your own blog.You know what happens when someone starts a hot topic and it escalates in loads of trolling and flaming.Youve seen it dozens of times now,you know all the sines,yet you still tried to moderate the thread with codexers pouring in and trolling left and right.You couldve easily locked the thread after 10th comment,but you had to wait until it came to 121.And thats not the first time I see you try to moderate an obvious flame war,even though you know you cant.

    • Nostromo says:

      There is a very good example of fines determined by your income with the recent story about the Swedish driver caught speeding in Switzerland and condemned to pay a whooping $1m (or £656 000).

    • Mari says:

      I’ll tell you the problem with scaling fines to fit income with a little example. My husband is a farmer which means self-employed sole proprietorship. Let’s say we GROSS around (an imaginary number follows) $100K per year. Once business expenses are deducted, what remains on our tax forms is a number that would qualify us for food stamps like $18K. We are not involved in tax evasion or anything else shady, it’s just how the forms work out, perfectly legally and verified by IRS audit. The truth is that we LIVE on something more akin to $35K, a number that doesn’t even exist to the IRS.

      So whichever number (net or gross) you choose to use as the basis for fining/damages in a lawsuit, somebody’s getting screwed painfully. If we were sued and the courts decided against us and set the award at 10% of $100K, that would mean me trying to feed, clothe, and shelter a family of 5 on only $25K that year. Alternatively, the judge awards 10% of $18K and the plaintiff only gets a puny $1,800 award to compensate for something that he/she felt was egregious enough to sue over and we’ve essentially gotten away with a slap on the wrist.

      • Zukhramm says:

        I do not understand. If $18K would remain after deductions, how is it possible to live on $35K?

        • Keeshhound says:

          Taxes are weird. To put it simply, as a result of special rules for farmers and other similarly economically risky jobs; what is considered your “taxable income” is not always the same as what you actually have left over after your business expenditures. I’m not well versed in tax law, but that’s how it works in the most basic of terms.

      • Daemian Lucifer says:

        Thats true,but that is a problem of taxes,not lawsuit fines.

        • Sleeping Dragon says:

          It is. These fines have to be based on something, you can’t just have a judge go and say “I’m guessing you earned… hmm… let’s say a $100k” or roll dice. This needs to be based on some official records, and in most countries the only (relatively) reliable income records that the government has access to are tax forms.

          Also, the point of all the tax magic is (in theory at least) to make sure that people in “economically risky professions” don’t go bankrupt over something like a bad year or such. The same notion should generally apply here, even if it is a big company the point of the fine isn’t to drive them out of business. It is to primarily to compensate the injured party for its loss. Only secondly is it to cut the profit the company might have earned from the illegal practice and thirdly to actually “punish” the company.

          In my country we had a single provider of phone services (I’m going to refer to them as “the Old Company”) for decades, some years ago (I think around 10?) they’ve been told that they have to let other companies in due to free market and stuff but since they’ve built all the infrastructure (like, say, cables) they are allowed to set a pricetag on using that for the first few years. Unsurprisingly the Old Company set the prices so high that no other company could possibly compete (one in fact did, it was a big company from abroad that decided to “sell below cost” at the start in order to get a share of the market, they could afford it thanks to their operations in other countries. The Old Company promptly filed for illegal business practices and won). The new companies filed suit after suit about this and won, the Old Company promptly paid the fines because it earned more by remaining a monopoly and increasing prices for its clients. Only in the last two or three years the competition managed to wiggle in and the prices started dropping.

          • Daemian Lucifer says:

            Again,problem of the tax system.There already are numerous things that work well,but have problems exactly because of the faulty tax system.For example,college in this country has some free money given to the best students that dont have enough income.However,because its based on the taxes,youll get someone whose parents make a lot of money get extra,but someone whose parents make little get nothing exactly because of the faulty tax system.

            • Deoxy says:

              This is amazingly true. Our tax structure is stupid. The politicians use it to bribe us with our own money (you get THIS exemption, you get THAT exemption, etc).

      • Michael says:

        Well, and legally you’re a sole proprietorship (probably). We’re talking about corporations which can include dozens of subsidiaries and loads of accounting data.

        The only substantial exposure I’ve had to corporate accounting was working through bankruptcy cases in school, but the accounting is insanely complex.

      • Sumanai says:

        But aren’t fines punitive, not compensation? Don’t they usually end up going to some part of the goverment?
        And how exactly is a fixed fine better? Wouldn’t you still end up either screwed or slapped in the wrist?

        The problem of “what to look at as income” is very real and has *fun* quirks that end up biting people in the ass, but fixed fines have their own problems.
        Such as a rich asshole being able to just shrug it (although there are other solutions for that, such as increased penalty for repeat offends). Or poor getting reamed (since accidents happen, and fine adjusting based on how much at fault you were isn’t exactly perfect).

        But I feel I need to emphasise: Scaled fines aren’t perfect, and there are other solutions to the same problem.

    • thebigJ_A says:

      About point 2, What thread are you talking about? Neither the thread here nor on the escapist, pertaining to the last Experienced Points got locked, as far as I can see. Also, neither went to 121 comments.

      • acronix says:

        He´s talking about a thread that has nothing to do with Experienced Points or The Escapist. It was a message from Rustkarn to clarify a misunderstanding on something he said in Spoiler Warning. Look back a couple of days and you´ll see.

        (I wanted to give you a link, but my post got Missing in Action)

  7. thebigJ_A says:

    About your last point in the column:

    What do you think about the Bungie/Activision deal? Is Bungie big enough to be safe? My thought is that they think they are. Else why go into business with them? But are they really? I mean, they’re great at what they do, and Halo has been massively succesful, but they don’t own Halo anymore.

    Suppose their next IP is a flop. If I remember correctly, their deal states in no uncertain terms that they retain ownership of any IPs they make, but does that protect them from a lawsuit if Acty is unhappy with the new IP’s sales?

    • rofltehcat says:

      Even Blizzard was corrupted by them.
      And Blizzard is extremely successful and has a lot of money.

      I still don’t get why they signed that devil’s contract.

      • Sumanai says:

        People have a nasty habit of believing empty promises.

      • krellen says:

        Blizzard already sold out to Vivendi long ago (before WoW launched, even). When Vivendi decided to enter in the partnership with Activision, Blizzard didn’t really have a say in it. The deal ended up with the name “Blizzard” because Blizzard was about 99.9% of Vivendi’s profit margin and 100% of their good name, so Vivdeni saw no purpose in keeping the “Vivendi” name around any more.

  8. Hermes says:

    A couple of american states have laws against this phenomenon. How effective and encompassing they are i dont know but you can read about it here http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

    Examples of famous SLAPP cases in the US are at the bottom of the article

  9. Sleeping Dragon says:

    first off I’d like to say that I find it interesting how a lot of human practices operate on the reputation factor that you mention. This is one of the things they’ll keep hammering into you if you ever go working in retail: even if you have to grit your teeth, spend extra time, go above and beyond whatever your contract may say or even take insults keep the customer happy or else bad rep will spread. Incidentally, not keeping the customer happy is probably the easiest way to loose job in retail, second maybe to robbing the register and setting the shop on fire. Also, a few years back I’ve seen a similar thing happening in an MMO, there were a lot of guys cruising from one guild to another staying for a while, getting some guild gear or cash and then running away. Since staff took a position (probably with good reason) of “not getting involved in guild internal problems” this continued for a while until people got together and started making (semi)official blacklists of players (the alt system on that game was non-existent so that made things a bit easier).

    On a somewhat unrelated note, it always gives me pause how people expect that the legal system operates based on logic. No, it works on a basis of a set of rules. When it comes to “lawyer battle” it’s most often the case of both sides trying to bend or force the interpretation of these rules that is favourable to them. I know that occasionally the law will use a term like “common sense” but that is where the law usually fails the most as the interpretation of what constitutes “common sense” is typically left to a single individual (judge) or a small group (jury). Everyone will go and suggest stuff “well, it’s obvious they should pay more, they’re a big company and they can afford it” but even if the judge were sympathetic to this claim he can only assign a fine that is dictated by rules of law.

  10. MrKite says:

    Hey, the first comment is right ! In the US you might not be able to protect the little ones but in France we do, just look at our president.

  11. Kdansky says:

    Here in Switzerland, three things kill those lawyer battles dead:
    1. Loser pays lawyer cost.
    2. If you cannot afford a lawyer, the gouvernment gives you one. Whom the loser then pays.
    3. And if you don’t use a jury system, lawyers are not as expensive. Because they do not need to be charismatic and charming to convince a judge that is cynical, jaded and experienced. All those neat tricks don’t work, and having a “bad” lawyer is not as much of a disaster as it would be against a jury.

    TLDR: The US legal system is horrible. There are quite a few reasons why the RIAA does not sue anyone here, but they do in the USA.

    • Sumanai says:

      Or it might have something to do with the fact that RIAA doesn’t act outside the US.
      “Recording Industry Association of America

      • Tizzy says:

        Don’t the RIAA stakeholders sell outside of the US? How does it work, are distributors supposed to sue for them? Anyone here knows? That could be relevant here.

      • Steve C says:

        HAHAHA! Of *course* the RIAA acts outside the US. The RIAA sends legal threats to people everywhere. They send DMCA notices to everyone regardless of the country despite the fact that the DMCA is *only* a US law. The RIAA also have lobbyists everywhere. Some are RIAA some are simply arms of the RIAA like the CRIA. WIPO is for all intents and purposes the RIAA.

        • Sumanai says:

          But isn’t it then the WIPO that acts outside?

          And aren’t RIAAs actions outside US impotent, or really ran by local equivalents? I know that in Finland there’re similiar organisations that ruins people’s lives, but blaming RIAA for those just doesn’t sound right.

    • Tizzy says:

      I’ll grant you that the jury system is overused in the US (I can tell if only by how many people I know who get summoned to jury duty). And juries are gleefully manipulated by slick lawyers everywhere.

      The government-appointed lawyer, on the other hand, is largely overrated. I’ve never heard of any place where you’re not better off hiring your own if you can afford it, and that’s ultimately the sad truth behind all this: in any legal system, the party with more resources starts out with an edge, and all that a legal system can do is try to whittle away a little bit of that edge.

  12. rofltehcat says:

    Don’t work for Activision. Don’t do business with Activision. And never ever buy Activision products. And if you really have to deal with them, at least make sure the contract greatly benefits you.

    This works for other branches of trade, too.
    Take my father for example, who sells and installs heating systems, solar panels, heat pumps etc.
    In the construction business there are those shady figure who basically take someone else’s money, buy some land with it, hire contractors to build houses, sell those houses and then either vanish with all the money, somehow made extraordinary losses and go bancrupt or just never pay anyone.
    Those guys are the activision of construction business.

    • krellen says:

      I used to work for a construction company. On private jobs, sub-contractors can put in bids, but if they’re a shady company, the contractor can ignore the bids. However, on public jobs, laws state that a contractor must take the lowest bid, regardless of the reputation of the sub-contractor submitting it (some legislatures have decided this is a great way to keep public costs down.)

      What this has led to is some of the project managers at the company I worked for “losing” bids from companies they knew to be shady, which may or may not have led to legal battles over the bids.

  13. toasty says:

    The problem with this is that Activision, EA, and several other of the large companies are evil and like to steal your IP or screw you. That’s most of the companies. Maybe Activision and EA are the worst. THQ seems decent, but they don’t do much, just a few WWE games and whatever 40k game they can come up with. What are the other big guys and how do they measure up?

  14. (LK) says:

    I still think there is room for a workable patch for this problem modeled after the reasonably useful anti-SLAPP (Strategic lawsuit against public participation) laws.

    In response to large entities filing lawsuits to intimidate people into silencing legally protected free speech, laws have been passed which seek to counteract entities litigating in bad-faith when the purpose appears to be censorship without regards to actual damages of offenses.

    To win an anti-SLAPP motion, the defendant must first show that the lawsuit is based on constitutionally protected activity. Then, the burden shifts to the plaintiff, to affirmatively present evidence to show that they have a reasonable probability of prevailing on the action. The filing of an anti-SLAPP motion stays all discovery. This feature acts to greatly reduce the cost of litigation to the anti-SLAPP defendant, and can make beating the motion extremely difficult for the plaintiff, because they effectively must prove their case without the benefit of discovery.

    After filing an anti-SLAPP motion, which can take place at the very outset of the case, the onus of evidence is placed entirely upon the plaintiff to prove the validity of their complaint against the motion. If they cannot, the case ends, promptly, with comparatively little expense to the defendant.

    Such a methodology could arguably be applied to these contract negotiations.

    • Deoxy says:

      The difficulty is that there is no “constitutionally protected” stuff involved in contract negotiation – determining the points that would allow some kind of “anti-SLAPP” like motion is already the whole point of the suit.

  15. Deoxy says:

    There are 2 major problems with your “simple” advice:

    1) new companies have no track record, and even old companies with a good track record can suddenly decide to behave badly (see #2). Injustice can land on you through no fault of your own, and the legal system should be set up to allow that in the fewest possible cases.

    2) “Companies” have no character. The people RUNNING them may have character… and those people can be replaced.

    Your advice is great and should be followed (in the lone term, it would help everyone), but it is not sufficient.

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