UPDATE 9/3/2016: In the wake of the PAX West announcement of Duke Nukem 3D: World Tour, eyes have refocused on the issues that made another Duke 3D remaster needed. In order to ensure that no misinformation is spread, here is an update detailing everything that has occurred since April
As far back as June, Richard Gobeille has publicly taken to Twitter and the Duke4 forums to update everyone regarding the legal situation between himself and Gearbox. The full quote from the forum post is reproduced below.
OK, here’s the deal. Our license to Duke Nukem 3D is invalid. It’s not the fault of the current owners of 3D Realms, and, as it turns out, certainly not the fault of Gearbox. This leaves me completely up shit creek. BUT, even after the public feuding, Gearbox has found something for me to do and they are going to be helping me out, as is 3DR.
As far as Hail to the King Collection goes, there’s not much more I can say other than that it’s on hold at 90-something% completion. Gearbox isn’t currently interested in the product and they aren’t obligated to be. At this point, I’m just glad they’re willing to work with me again. I’m going to do my best to change their minds on it as I believe the market for such a product is much larger than they think it is, but for now it is what it is. I may just do a “soft” launch of the base port itself for a $1.99 price tag where you provide your own GRP.
So, to summarize:
Gearbox isn’t evil and Randy isn’t a huge asshole.
The current owner of 3DR is a great guy.
I got completely shanghaied, but things will be alright.
This quote implies that Gobeille is now working with Gearbox in some capacity, although his role is not known at this time. He is also hard at work at his own Duke-inspired FPS that is estimated to release in about a year's time. TechRaptor will continue to cover this situation as it develops.
The original article is preserved below.
In February 2010, Gearbox purchased the Duke Nukem franchise from original IP creator 3D Realms (also known as Apogee). Four years later, the former would sue the latter over over its attempted development of Duke Nukem: Mass Destruction. That lawsuit was not ultimately decided by a judge, settled instead via mediation. To this day, Gearbox has held the terms of that settlement as confidential.
But the fallout continues to claim victims.
Richard Gobeille is an independent games developer. Disabled and with a wife currently hospitalized by lupus, Gobeille relies on royalties from his games for a substantial portion of his family's overall income. Recently that took a hit, when Gearbox ended its distribution relationship with publisher Devolver Digital and Duke Nukem 3D: Megaton Edition was pulled from Steam. More than a month of Gobeille's outstanding royalties, for use of his code in Megaton, were allegedly handed over to Gearbox in the process.
All of which would be perfectly legal, if Gobeille's games were infringing upon Gearbox's rights. Yet Gobeille has a licensing contract in hand, signed by 3D Realms' Scott Miller, saying the opposite.
Gearbox CEO Randy Pitchford has since claimed that Gobeille was "hoodwinked by those guys... [w]e are both victims of the same culprit." His position, as well as that of various other Gearbox representatives who've contacted Gobeille on the matter, is that Miller was never in any position of authority to cut such a contract. One even said "If you still believe his deal with you is valid then Gearbox can take that up with Scott Miller."
But according to documents made exclusively available to TechRaptor, Gearbox may have voluntarily accepted the validity of 3D Realms' existing third-party contracts - such as Gobeille's - as part of the 2015 settlement. Mike Neilsen, 3DR's current CEO and President, advised Gobeille personally back in March that this was the case:
It's not like Gearbox doesn't like Gobeille's work, either. In early November of last year, Mike Wardwell made clear the company considered his deep understanding of the existing Duke Nukem code, not to mention the IP itself, would make him an invaluable asset to future development plans.
"You helped us understand our source code options and actually locate them, which we were having a lot of trouble doing. It’s possible that you could help us again during development too. You’re one of the most knowledgeable people about Duke and you care about it. You should get to impact the new episode and weigh in on our engine updates."
Over the next few weeks a consulting position was discussed, during which Gobeille made clear he was already finishing up a port of Duke Nukem 3D: Hail To The King Collection to the Android mobile platform. Even with this knowledge, Gearbox's Steve Gibson offered $2,500 for the assistance Gobeille had already rendered, pegging the proposed formal consultation gig at $500/month for "answering random questions". A partial advance was paid and a consulting contract sent.
Talks then broke down over specifics in the accompanying non-disclosure agreement. Gobeille was told to obtain legal counsel, so as to obtain a proper review and avoid any confusion, which he did. A month later, having continued to put off any actual discussion of the NDA, Gearbox's counsel began levying threats. All appearances are that Gearbox now consider Gobeille a loose cannon which must be lashed to the deck, if not by NDA then by legal action. Pitchford's most recent statement on the subject was this:
Gobeille isn't having any of it. Despite financial difficulties, the developer has stated he will release his Android port as promised, and that Gearbox will have to sue him to stop it. In his guise as "TerminX" on the Duke4.net forums, he summed up the situation like this:
"They seem to think they're above the law and that certain facets of our judicial system regarding contracts just don't apply to them. They claim the contracts for HTTKC are invalid, but upon my request for a written statement as to their invalidity they refuse to state why. I've been trying to get them to tell me for the last two months and they're just dicking me around and doing anything they can to avoid giving me an answer. Then they tell me they're unwilling to discuss the contracts unless I have a lawyer, so I have my lawyer contact them, only to have them waste another entire month of time before making vague legal threats and telling me they now refuse to have a discussion involving lawyers. It's complete nonsense and I suspect we will end up in court."
It may be that 3D Realms had absolutely no right to license Duke Nukem to anyone, and it could be that they lied to Gobeille about his contract being assigned to Gearbox. But the only way to clear that up is for Gearbox to forego its preference for keeping the settlement terms confidential. Since Gobeille already won't sign an NDA without first discussing it, and since he's already gone public with communications Gearbox has deemed (rightly or wrongly) to also be confidential, it's unlikely they'll let his counsel take a peek without going to court, for fear the whole thing will wind up on the Internet somewhere.
Given the current acrimony, that wouldn't necessarily be an unreasonable position.
It's also a position Gearbox has painted itself into. Let's assume, for a moment, that Pitchford is 100% correct in his assertions. Having made 3DR's Miller the villain of the piece in public written statements, there's little point in Gearbox going after Gobeille at all... he wouldn't appear to have any real liability, as he was acting in good faith that his license is legitimate. That would make for a very expensive cease-and-desist action, and they'd end up having to go after Miller in the end anyway. Flipping that around, a successful suit against Miller and 3D Realms would in turn deny Gobeille his claims to legitimacy.
That's if Pitchford is right. After we asked to clarify the situation, he directed us to contact Gearbox through official channels, which we did.
Almost a week later, even after a reminder, there's been no response. Nor have we heard back from 3DR's Scott Miller or anyone from Devolver Digital after reaching out to them more recently, so we can only go by the documents and public statements provided to date.
We saved the best twist in the story for last, though: did you read all the way to the end of that Duke Nukem Asset Purchase Agreement? You'd be forgiven if you didn't - legalese is always an exercise in eye-bleeding.
There's two lists of which company got what, both carrying the same date. In the first version, Gearbox got anything related to videogames while 3D Realms retains stuff related to movie and TV rights. But in the second, a last-page Supplement with Pitchford's name on it, Gearbox obtained movie/TV rights related to new Duke games they create - and 3D Realms retains sweeping rights to just about every preceding Duke game. Including "Duke Nukem 3D (and expansion packs)" and "All ports of the Duke Nukem 3D game (originally published in 1996) to any platform". Both Agreement and Supplement were placed in evidence during the recent lawsuit.
The entire matter hinges on the legitimacy and interpretation of that Supplement.
From the joint announcements which both Gearbox and 3D Realms made at the end of the suit, Geif the 2015 settlement did effectively saddle Gearbox with Gobeille's license, then going after a disabled man with little cash in the bank would seem the obvious ploy. Suing 3D Realms would definitely be more expensive, with any lawsuit against any party revealing the settlement terms during the discovery phase. Plus, if "the little guy" can be pressured into folding his tent and going home without suing at all, Gearbox's apparent nightmare scenario of legal transparency can be avoided at virtually no cost to the company.
The problem with that strategy is Gobeille isn't folding... he's calling. Now it's on Gearbox to show if they were bluffing, or if the AAA juggernaut has been holding a royal flush all along.