This Is Going To Be Epic: Too Human Creators Gear Up For Legal War With Shooter Giant

This Is Going To Be Epic: Too Human Creators Gear Up For Legal War With Shooter Giant

Gears of War’s success was built on broken promises and the neglected developers who helped fund the creation of that game, a 2007 suit from the developer of the disappointing Too Human alleges.

According to documents obtained by Kotaku, that long-simmering legal feud between game maker Silicon Knights and Gears of War developer Epic Games may be reaching its boiling point—and a court room. New developments in the nearly four-year-old lawsuit that alleged the Unreal Engine maker caused damage to Xbox 360 game Too Human and to developers throughout the industry now pave the way for that suit to go before a jury.

In 2007, Silicon Knights sued Epic Games for failure to “provide a working game engine” for Too Human, causing the Ontario based game developer to “experience considerable losses.” Silicon Knights’ suit alleged that Epic was “sabotaging” Unreal Engine 3 licensees, withholding an improved version of that game engine while also using licensing fees to fund development of Gears of War, not to improve the Unreal Engine.

In short, Silicon Knights said it didn’t get what it was promised by Epic and it wants a cut of those Gears of War profits as compensation.

Silicon Knights calls a recent ruling in its case a “victory in their litigation against Epic.” That’s because a federal court has agreed with Silicon Knights that it can go before a jury with its allegations of fraud, negligent misrepresentation, unfair competition, breach of contract, and breach of warranty against the Unreal Engine maker.

The Too Human developer may also have an ally in Disney, which Silicon Knights says had “almost identical claims” against Epic in 2006.

It cites a letter from Buena Vista Games in its claim, which the court says “demonstrated that other [Unreal Engine]licensees expressed many of the very same frustrations that [Silicon Knights]did about representations made by Epic that were unfulfilled and perceived to be misleading.”

What’s more, the court found:

evidence regarding the basic nature of the parties’ businesses and the relationship between them establishes that Epic had a possible motive to deceive SK into entering into the licence Agreement in order to fund the development costs of its own games and delay the work of SK and other competing licensees on their video games. There is also Epic’s admission in its counterclaim that it developed the [Unreal Engine 3]in conjunction with the development of its own game as part of its ‘synergistic model’ and not separately as it had led SK to believe.”

Silicon Knights had also claimed that it was mislead about the support it would receive from Epic, which it claims failed to support engine licensees while it was busy working on Unreal Tournament 2007 and Gears of War. Said the court:

Epic’s witnesses confirmed that at the time the licence Agreement was in place, it never had any employees dedicated solely to servicing licensees and that, instead, every programmer on the engine team also had licensee support as a job function. (Timothy Sweeney Dep. (D.E. 561-12) 49: 16-51 :12). This is, of course, in contrast to the alleged representations by Epic that its programmers would be divided between those dedicated to engine development and support, and those dedicated to development of Epic’s own games. Indeed, SK cites to internal emails from Epic’s officers instructing programmers that ‘Gears [of War]comes first, so if you have any Gears tasks, drop work in the main branch and finish Gears tasks’ (Email communication from Daniel Vogel (D.E. 559-8)) and that ‘Right now, we are very much in ‘will this help Gears ship faster? If not, punt’ mode.’ (Email communication from Michael Capps (D.E. 560-7)).

Despite those supposed victories for Silicon Knights, the court recently sided with Epic in dismissing a number of Silicon Knights’ claims. The court said “genuine issues of material fact exist” in SK’s claims of intentional interference, unjust enrichment and more.

Epic Games has not yet responded to request for comment on the matter, but Silicon Knights offered the following statement.

“When Epic first went public about our case to the press, they said that our claims were without merit,” said Silicon Knights president Denis Dyack in a statement. “Two separate federal court judges have now disagreed with Epic, and have ruled that the case does have merit.”

“Silicon Knights has always wanted to have our focus be on making great games, not litigation. This ruling will allow us to have our day in court, before a jury, and to shine the light publicly on Epic’s conduct,” Dyack continued. “We are very confident the jury will see the truth behind Epic’s actions.”


  • Go, go, go Silicon Knights! Take Epic for what they are worth.

    That way I hope we don’t have to hear about or see Bleszinski again. He’ll probably just run off and start a studio that makes interactive fraternity butt paddling games for the Nintendo Wii.

  • Sounds like they might have a bit of a case, in that Epic probably didn’t deliver on promises and would have had a bit of conflicting bias in working on their own game while supposed to be helping others.

    But asking for some of the profits for Gears? They might not have helped you as much as they said they would, but even with it I’m sure Too Human still would have sucked. This reeks of jealousy over Epic’s successful franchise and SK desperately trying to find a legitimate reason to get a piece of that pie.

  • Too Human was a terrible game and a better engine wouldn’t have suddenly made it any less tedious.

  • Too Human was a mediocre game. That’s just plain fact.

    It’s also funny how SK had issues with the engine but Batman:AA and AC are fine, the Mass Effect games were fine, Mirrors Edge was fine, Section 8 was fine and so were plenty of other games that used UE3. Even The Ball which was done by small-timers Teotl Studios worked fine.

    But yeah, Epic totally sabotaged the version they sent to SK because they’re such a huge threat and all with their impressive catalogue of games…

    • I think they started too human on the first version of Unreal 3 engine at the same time as gears 1. All those other games came out after gears, probably on the new version.

  • I feel it would be naïve to say that because Too Human was a bad game, Silicon Knight’s allegations have no merit.

    Would people’s opinions on this case be different if Too Human had come out to rave reviews and critical acclaim?

    • My opinion would change if it seemed plausible but what would Epic gain from sabotaging SK’s version of UE3? SK aren’t a blip of any developers radar and then you have developers that are big who would actually be considered competition by Epic who have used UE3 without issue.

      • Its not about Epic trying to sabotage anything… Its about Epics poor conduct. They took money in exchange for something they didnt fully deliver then spent said money on a seperate project. Thats not the way to run a business (unless you want to get sued)

        • SK used the word “sabotage”

          Why would Epic not deliver to one company yet fulfill their contractual agreements with everyone else?

          SK are just trying to make excuses for a game they hyped up that was a tremendous flop.

  • Too Human is actually one of my guilty pleasures. I thoroughly enjoyed the constant looting and collecting better weapons, armour etc.

    Was great with a coop buddy as well.

  • Part of the argument was that when they found that the UEngine failed to meet expectations they wanted to make alterations of their own. Epic said no and SK were understandably miffed.
    Perhaps Too Human didn’t live up to expectations because the engine couldn’t handle what was in the design so it had to be changed.

  • Silicon Knights should just forget about wasting money on court cases and actually make a new game! Coz the fact is they aint made a good game since Eternal Darkness and even that wasnt all that great! And like Raven said, most other developers never had a problem – check Bioshock! One thing Ive noticed with UnrealEngine3 is that its great in the hands of Pro’s, but generic and rudimentry in the hands of B-Grade developers. Comparing the new Rush N’ Attack game to Shadow Complex is a perfect example of what I mean.

    • Gears 1 came out in 2006 and they upgraded the enginge significantly in 2009. Plus probably many patches in the mean time. If your version didn’t work right that sounds like it could make development hard to me.

      • UE3 has had many updates, everyone knows that…all of which other developers managed to work with etc…SK, despite their claims of other companies having the same issue, are the only ones who suffered from Epic’s alleged conduct.

        How is it that before, during and after the issues that SK faced with UE3 that so many other devs had no issues whatsoever?

        • Yeah, you would be perfectly correct, had Disney, one of the most financially powerful game developers out there, not said EXACTLY the same thing. It was quoted in the story. Right there. Go read, I’ll wait.

          The question isn’t ‘did someone else have the same problems?’ It isn’t ‘would it have been a better game otherwise?’ The question is and should be ‘Did Epic recieve payment for products and services they failed to adequately provide?’ The answer to that question is the only one that matters and the answer is definitely yes.

  • To me, the quality of Too Human seems to be a minor factory in this case.

    Ultimately, the claim that SK has brought before the courts is that, regardless of their output, Epic neglected to offer the assumed support and features that a licensee of the Unreal engine expected to have based on Epic’s comments and attitude.

    I bought TH, have neutral feelings about it, but am very in support for SK’s case against Epic, if it does turn out to be true that Epic did encourage the thought that Epic would offer the kind of support and benefits SK thought it would receive.

    Hope Kotaku can keep me posted about the case when it goes to trial, and more shit gets churned up.

    • The quality of Too Human should be absolutely irrelevant to the case.

      However, it isn’t relevant to the opinions of many gamers.

      Many gamers like Gears of War and either dislike Too Human or have heard bad things about Too Human. Thus, they hear about this case and treat it as SK attacking a game they like.

      So they naturally wish to defend the game they like against the game they don’t like.

      This kind of position is very flawed and emotionalist, but that’s how they think.

  • Why is Silicon Knights renowned as the ‘developer of the disappointing Too Human’ these days? What about ‘developers of the stellar Blood Omen and Eternal Darkness franchises’? Gamers are such a fickle bunch.

  • Seems like they’re a little bitter that the whole epic Too Human trilogy never took off. Maybe they should go back to Nintendo and make a damn Eternal Darkness game already.

  • Too Human was designed for a game era 10 years before it was actually released, mostly through no fault of their own (contractual obligations are binding, after all, regardless of how much you would like to split your focus). You can hardly blame them if it’s design was a little outdated by the time they released it. That said, I honestly enjoyed it, tho the storyline did feel incomplete, even for a trilogy game.

    As for the court case, I doubt sincerely that we will see anything more of this for at least a few months, given the current case has been going since 2007. This will probably take about as long to sort out as Too Human did to develop. Best of luck to SK tho. Been on the receiving end of that sort of service myself before now, and it sucks balls

  • I find Too Human a very fun game. I think a lot of the negative reviews stemmed from a “Dyack is an arrogant turd” sentiment rather than an evaluation of the game purely itself. Too Human wasn’t perfect by any means but I certainly found it a very enjoyable game.

    That said, not only have courts acknowledged merit in Dyack’s claims, but I’m inclined to agree.

    Mass Effect was a UE3 game and had significant technological problems. After playing Mass Effect 1 plenty of times, I think there’s ample evidence the engine had massive issues.

    Its true, the courts may rule in favor of Epic. I’m insufficiently familiar with the exact details of the case and case law pertaining to this issue. But my sympathy gravitates towards SK.

    Also, I wish to quote Johnny Sweetbread’s earlier comment about what would happen if SK wins;

    “That way I hope we don’t have to hear about or see Bleszinski again. He’ll probably just run off and start a studio that makes interactive fraternity butt paddling games for the Nintendo Wii.”

    I think this comment is surprisingly correct. Gears Of War as a game does seem to strongly appeal to a psychological desire to be accepted by the group; precisely the same psychological mechanisms that fraternity hazing etc. (as well as military training and arguably high school) exploits (identification with the group, pack-animal heirarchialism, etc).

    • The issue at stake is breach of contract, not whether or not Too Human sucked.

      Please read the details of the case before replying with “TH SUCKED THEREFORE DYACK’S A DOUCHE THEREFORE EPIC IS AWESOME AND U SUXXORZ!!!”

      The issue is not whether Epic makes good games or whether Too Human was terrible. The issue is whether or not Epic promised to deliver certain services to UE3 liscencees and failed to deliver said services.

    • As another gamer that liked Too Human, I agree that its a shame TH2 hasn’t surfaced. If we’re lucky, it will come after X-Men Destiny.

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