Epic, Silicon Knights Clash Over Access To Engine Code

Author: by Simon Carless, Brandon Boyer

Epic and licensee Silicon Knights (Too Human) have continued their engine-related court battle, with controversy over Epic being permitted to examine Silicon Knights' codebase, and Silicon Knights revealing it originally paid $750,000 to license Unreal Engine 3. Epic Protection The latest battle began with a Silicon Knights protective order that sought to ensure Epic would not be allowed to view Too Human source code to judge how much, if any, Unreal Engine 3 code remained. "Epic has not demonstrated any reason," the document states, "why the more common method of analysis of proprietary information - the use of outside experts - will not be sufficient in this action." Claiming that Epic has demonstrated no cost savings or other benefits by reviewing the documents in-house, saying "it is beyond dispute that both sides will retain such outside experts, and that those experts will need to independently make their own review of the "HC" material in question in order to render their respective opinions." "Permitting such unnecessary in-house review only leads to a heightened opportunity for misuse of that information," said Silicon Knights. Illustrating the point, the Canadian developer notes that the camera system it currently is employing in Too Human is being prepared for a patent application, and is "entirely unique in both design and function from anything in UE3." "Yet Epic would have this Court force Silicon Knights to share with Epic's employees the design and programming details of that camera well before Silicon Knights would otherwise have to reveal any such details in its patent application," the documents read. Continuing, the developer says that while Epic may argue that as Silicon Knights has had access to its own proprietary UE3 code, and therefore it is "'only fair' that Epic get access to the same from Silicon Knights," the developer reminds the court that "Silicon Knights paid for any code it received from Epic, via its $750,000 licensing fee" -- a price disclosure not before revealed. "Epic has offered Silicon Knights no such consideration in return for access to Silicon Knights' proprietary source code, which (again) it was forced to create over an 18 month period due to Epic's failure to deliver on its promises," the developer concludes. The Court's Ruling While Epic sought to bring in three in-house employees to review the Too Human code, the court ruled against keeping the identity of two of those employees a confidential, and furthermore ruled that the one identified employee, Epic CEO Tim Sweeney, played a role in the case that did indeed constitute "competitive decision making." "Epic seeks to permit three of its employees access to discovery information designated as highly confidential under the proposed discovery order," wrote the judge in the ruling, adding, "Epic fails to meet its evidentiary burden under the balancing test." "The declaration of Timothy Sweeney reveals that he is the current chief executive officer of Epic," it continued, noting that "Mr. Sweeney's involvement in 'guid[ing] and conduct[ing] research and development related to future game engine technology' and 'play[ing] an integral role in the design and development of Epic's game engines' constitutes competitive decision making." "With respect to the other two employees submitted by Epic," the judge said, "Epic fails to provide information that would allow the court to assess each individual's relationship with Epic, including assurances that the particular employee is not involved in competitive decision making." "In sum," the court concluded, "if Epic desires members of its in-house counsel to be able to view information marked as highly confidential under the protective order, Epic shall submit the name(s) of its proposed in-house counsel, supporting affidavits allowing the court to adequately assess each counsel's relationship with defendant (particularly, as to counsel's involvement in competitive decisionmaking), and a modified proposed protective order to the court and plaintiff no later than January 18, 2008. Silicon Knights shall file any response no later than January 23, 2008." These new court documents, while fascinating, do not relate to a recent story unearthed by consumer game site ShackNews that Unreal Engine 3 licensees are receiving subpoenas to provide information in the case. While likely true, this information has not yet reached court records.