Former Red Octane Staff Prohibited from Music Games

In what seems to be some ugly fallout from the Guitar Hero / RedOctane purchase, former Octane employees John Tam and Corey Fong are now legally prohibited from working on rhythm games. Activision has successfully brought suit against the men, arguing that they were using proprietary information gained under employ at the corporation to aid their new venture. As part their work after leaving RedOctane, Tam and Fong had begun working with the Reverb and The Ant Commandos groups on a demo for a dance/guitar game. "The demo incorporated elements of Guitar Hero and StepMania, a free dance game for the PC that supports dancepads and includes a step editor. The pair used it to solicit partners and funding for Lodestone Entertainment, the injunction states. As part of the injunction, the pair is prohibited from distributing or using the demo in any capacity and acting on or disclosing any Activision trade secrets. They are also prevented from taking steps to develop drum-, guitar-, or synthesizer-based games for the next year, nor can they work on any Xbox 360 controllers for Guitar Hero II until six months after the game's release this week. "

No Rythym whatsoever?

[Rachel Lucid]

Isn't that akin to telling a computer programmer he can't use while loops?

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[UbuntuDupe]

No, it's like telling him he can use while loops, as long as the entire conditional is "true".

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[kalirion]

Better make all conditionals inside the loop false, otherwise some enterprising hacker might break out of the trap (or, god forbid, goto end).

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[Lockejaw]

I wouldn't go that far, but I kinda wonder what happens if these guys happen to write some open-source code that happens to get incorporated into a rhythm game. Have they broken the prohibition by writing code that goes into a rhythm game?

No loopholes whatsoever?

[Anonymous Coward]

"Have they broken the prohibition by writing code that goes into a rhythm game?"

You tell us? You can read the intent as well as the rest of us. Why does the inclusion of that magic word "open source" change anything?

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[shawn(at)fsu]

I couldn't find out what these people were, were they programmers? If they were devs, no one says they can't code programs in general, just programs of a pretty specific type. I don't think this all that unusual.

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[Rachel Lucid]

My point is that rythym gets used in a lot of games.

Have to shoot a boss with a certain rythym to force 'em back? Or maybe there's a rythym minigame in an action/adventure saga? What about a rythym-based hybrid (like a rythym puzzler or a rythmic combat game?)

How does 'the ability to keep a beat' become anything even close to copyrightable, let alone enforceable, to restrict?

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[91degrees]

It's quite clear, looking at the games they were working on, everyone would agree that a rhythm game would be something like Guitar Hero or a dancung game. Something with vague tangential similarities wouldn't.

Courts are allowed to use a little common sense when interpreting contracts.

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[Soul-Burn666]

FTFA:
"As part of the injunction, the pair is prohibited from distributing or using the demo in any capacity and acting on or disclosing any Activision trade secrets. They are also prevented from taking steps to develop drum-, guitar-, or synthesizer-based games for the next year, nor can they work on any Xbox 360 controllers for Guitar Hero II until six months after the game's release this week."

So for the next year, they can't make games based specifically on guitars, drums or synthesizers or controllers s

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[Dmala]

I am sooo sorry about this, I am not usually a spelling/grammar Nazi, but my head is just about to explode...

The word you're looking for is "rhythm"

Tam and Fong are out of the porn industry too?

[xxxJonBoyxxx]

John Tam and Corey Fong are now legally prohibited from working on rhythm games...

Tam and Fong are out of the porn industry too? I guess that leaves only one legal avenue: FPS coding (shudder).

Re:Tam and Fong are out of the porn industry too?

[shiva19]

I was under the impression that the porn industry was all about First Person Shooters.

Sounds like a standard Non-Compete ... ?

[Morgon]

Am I wrong in thinking that this is the result of a typical non-compete (or equivalent)? I know I've had to sign some before.
And to answer some other posts, it's not like telling a programmer he can't use whatever control structures he wants - these guys are specifically prevented from using information they gathered while working for a company in which that information is their entire business.

Re:Sounds like a standard Non-Compete ... ?

[SatanicPuppy]

I worked at place that tried to make me sign a non-compete, but the wording was so vague that it would have prevented me from doing an unrelated sideline that I was already doing, so they took it back to re-word it, and it conveniently vanished into the shuffle of paperwork.

Years later, when I left the company after a falling out with the management, and set up shop in the same town, they tried to sue me without making sure they had the paperwork.

It was sweet.

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[UbuntuDupe]

If I were a lawyer, AND evil, I would argue that by working in the same field, you're necessarily using information gathered at your previous employer, because you ulimately draw on those experiences to improve what you do.

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[sammy baby]

That's a good point, but that's precisely the reason that non-compete complaints that go to a judge generally are decided on the behalf of the little guy. A rarity in modern law.

(IANAL)

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[Izaak]

If I were a lawyer, AND evil, I would argue that by working in the same field, you're necessarily using information gathered at your previous employer, because you ulimately draw on those experiences to improve what you do.

There is actually already a body of case law about exactly this issue. Non-compete agreements are often found to be over broad and unenforceable. In general, it is expected that you will carry skills and knowledge that you learned on one job over to the next... hell, its why we list our

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[Shadow Wrought]

They already agreed to the settlement, so I don't see them countersuing anytime soon. They essentially left Activision and tried to set up their own studio making the exact same type of games as they were making at Activision. Since they are only barred for between 6 months and year, depending on which aspect, I'd assume that its actually a rather fair noncompete agreement. They are barred from specific peripherals and a specific genre of game, so its not over-reaching IMHO.

I ain't a lawyer either.

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[AdamThor]

Are they getting the standard non-compete buyout? Regular wage for the duration of the non-compete? I've seen a few comments in 'ask slashdot' articles about non-competes that suggest that the employee should get some benefits from taking part in the non-compete. Did these guys get any of that? If they didn't, is it because they were suckers who didn't ask for their due, or is it b/c the 'ask slashdot' suggestions were unrealistic?

More was sold than just IP...

[Applekid]

Guitar Hero's ability to bring the rhythm game to the mainstream in Western countries made the big corps take notice. A dumptruck of money arrived to the doorstep which is a huge payday for a "mom & pop" publisher like Red Octane (while not strictly "mom & pop", in comparison to a behemoth like Activision, they are.) There's always a price to be paid and this fallout just highlights one of those prices. That's why it's called "selling out."

Considering how "hot" the property is, I'd call it reasonable to say that any corporation that bought this IP would guard it as strongly.

That said, TFA:
"... Guitar Hero II executive producer John Tam and brand manager Corey Fong ..."

Hmmm... how much success-deriding decision-making did these two actually make on GH2, anyway?

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[mwvdlee]

Not much decission making regarding the game perhaps, but they DO have knowledge of all important decissions other people made with regards to the game.

Sad, but not that sad.

[Anonymous Coward]

I have met John Tam back when RedOctane was marketing In The Groove and about to reveal Guitar Hero at E3. He put the kibosh on certain press groups that he felt didn't kiss his ass enough. Michael Nguyen was a great guy to work with, but when he tried to do some stuff with the website I worked with, who had been long-time partners of ours, John Tam stepped in and shut everything down in favor of trying to get in with the big gaming publications like GameSpot and 1Up. In the end we did some great promotions with RedOctane and probably contibuted significantly to the success of the first Guitar Hero. Early next year, Michael Nguyen abruptly left the company and RO quit talking to us altogether.

They definitely have forgotten their roots. I have very little pity for John Tam.

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[Shinmizu]

Bryce, is that you? I certainly agree with the low opinion of John Tam. (I was one of the DDR Freak members at E3 2005. Konami main representative, Jason Enos, was wonderfully gracious, but John Tam was a real dick.)

Congradulations Activision,

[kinglink]

First off Activision is probably right here. They had a contract, they violated it, they suffer.

However this is the worse move Activision could make, they just jump to the head of the class in "bad producers" beating EA. It's a known quantity, developers will learn tricks at a company and bring it to a new company. This is a dirty little secret in the industry. Three guys quit a company and form a new one, did they magically get the idea for their next game at 6 o'clock on the day they quit? Nope they probably planned it a while before. This always happens and Activision crucifying someone like this is going to get a lot of attention, and this is not what a developer wants to hear of a prospective employer, that the employer will come after you when you leave the company.

Does that mean the two developers were right in what they did? No, and honestly they violated their agreement, but to stop them from working on any rhythem game in the next year is pretty harsh.

Btw last I checked Stepmania is still open source, Activision never bought it, but hey that's what Activision has to prove. They did work with a chief engineer on it (if you'll call him that) for In the groove but that's a different story than using stepmania code which is still public.

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[thelegendofzaku]

Btw last I checked Stepmania is still open source, Activision never bought it, but hey that's what Activision has to prove. They did work with a chief engineer on it (if you'll call him that) for In the groove but that's a different story than using stepmania code which is still public.

That's the thing. Recent versions of StepMania are MIT licensed, thus they can be kept closed for derivative works, so technically, Activision can't buy it since they can still keep the demo code closed. However, since it used their trade secrets, they should have possession of it now as part of the settlement. Looks like after the whole relicensing of that platform for In The Groove, whether it be Konami setting with RoXoR for ITG and thus aquiring the franchise and modified SM code, it seems like anyone

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[Jim Hall]

However this is the worse move Activision could make, they just jump to the head of the class in "bad producers" beating EA. It's a known quantity, developers will learn tricks at a company and bring it to a new company. This is a dirty little secret in the industry. Three guys quit a company and form a new one, did they magically get the idea for their next game at 6 o'clock on the day they quit? Nope they probably planned it a while before. This always happens and Activision crucifying someone like this

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[illegalcortex]

I'd have to see a bit more of the details before I'd accept the language the plaintiff used. "Directed an Activision employee and Activision independent contractors to develop" could translate into normal people language as "got some of their friends who also worked at Activision to work on their project in their spare time." Likewise, "at Activision's expense" could mean "they used their company laptops to post to the project message board while at home."

The defendants may very well have done something w

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[Edgewize]

Anything I do, at all, is owned by my employer. If you're not an hourly worker (and, chances are, they weren't), then there's no such thing as "spare time": it's always owned by the employer.

That depends not only on your employment contract, but also the laws of your state. Some employment contracts make unenforceable or illegal claims. If you do something entirely yourself, at home, using your own equipment, in a field unrelated to your employer's business -- it's almost certainly yours. But talk to a l

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[illegalcortex]

As the other poster already stated, just because it's in a contract doesn't make it legal in court. I think where these people got tripped up was that they somehow "tainted" it by involving company property. Either that, or they just didn't have the money to defend themselves against a giant like Activision.

Interestingly enough, the news article says this:

As part of their settlement with Activision, Guitar Hero II executive producer John Tam and brand manager Corey Fong consented to a judge's issuing a pe

Read the article guys... They screwed up big time

[Fallen Kell]

They really did screw up with this. They instructed other activision employees (they were managers), to develop a demo for a new game. They then left the company and used that demo that was made while at activision by activision employees to sell as the basis of a new game. If they had done it on their own time with their own resources without involving other activision employees, hardware or software, they would probably have been ok. However, they didn't.

Re:Read the article guys... They screwed up big ti

[Threni]

And that lets them decide what the guys are able to do once they've left and are working elsewhere? I dunno about the US but that's not tolerated in the UK.

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[CoderJoe]

It probably does, when there would be a question of where and when those ideas were thought up and developed. They already stole from Activision by using their employees and contractors to develop the demo at Activision's expense. What gives them the right to use those projects that were developed on Activision's dime, and how do you know what else they might have had the employees do? The only sure way to keep them from using the product of their theift is to bar them from being able to use any of it for a

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[geekoid]

So if you worked at a company, took there core technology and started you own business, there is nothing they can do in the UK?

Thats the problem with this SPECIFIC issue. Non-compete are worthless in California. That's not the issue. the issue is they had it developed by activision employees, while on the clock, and took it to get VC funding.

Re:Read the article guys... They screwed up big ti

[BobSutan]

Sounds a lot like how Cisco got started. The husband and wife team used the husband's college class he taught to develop the first routers for the school he worked at (forget which one). When they realized how important the devices were to the function of the fledgling internet they went to VCs and began Cisco. The rest is history.

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[0123456]

It's not uncommon outside of the game industry: I've had one-year non-compete clauses in at least two of my programming jobs.

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[geekoid]

In some states, they aren't binding.

okay, so?

[Speare]

Noncompetes are not uncommon, and even in "Right To Work" California, they're seen as a way of avoiding the loss of well-trained employees.

So, these guys spend a little while writing either (1) serious musical instruction software for the PCs and Apples of the world, like GarageBand assistants, or (2) games which don't leverage your typical musical instrument but do develop a certain motor skill to play, like iToy-enabled Sonic titles. Anyone who loves to write code that focus on the smooth and artistic

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[geekoid]

Non-competes hold no merit is CA. It is specifically forbidden.

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[Speare]

I wrote "Right to Work California" for a reason. They're not forbidden, they're just typically unenforceable. Big difference. They're written all the time, and there are many employees who don't know the law is on their side.

So this is where Activision is taking the series..

[realinvalidname]

...into the realm of mean-spirited lawsuits. Maybe Activision should change the series into RIAA Hero, in which you search the net for file-swappers, and throw down awesome legal whoop-ass on them. I imagine that would suit the joyless Activision drone units just fine.

Lets Not Forget

[Anonymous Coward]

That RedOctane and Activision didn't even make Guitar Hero, Harmonix did. But they certainly did their share of taking credit.

These two are probably rich, and goofed up trying to make even more money. No pity.

NOT a non-compete

[Wordplay]

Can't be. They're unenforceable in California by statute.

http://caselaw.lp.findlaw.com/cacodes/bpc/16600-16 607.html [findlaw.com]

16600. Except as provided in this chapter, every contract by which
anyone is restrained from engaging in a lawful profession, trade, or
business of any kind is to that extent void.

The exceptions have to do with breaking up a company. I don't think the acquisition would qualify.

This is probably due to trade-secret knowledge.

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[dosius]

Except, a court judgment isn't a contract.

-uso.

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[Wordplay]

Sure. But lots of people were answering that they must have had a standard non-compete agreement anyway, or that this was because they broke a non-compete.

Dangerous precidence

[Secret Rabbit]

This has to be the most ridiculous thing I've heard in a while. As in, what this basically amounts to is that these guys learned something while working at a company and are know bared from using that knowledge. I mean, any non-compete clauses that I've seen means that you can't take anything with you went you leave the company e.g. research papers, contact info, etc. But, never have I seen one that prevents the /reproduction/ of results which would prevent people from working in the same field.

When I wo

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[datawhore]

This is a dangerous post. One that needs to be challenged.

Your PHP analogy is entirely false as it relates to non-competes. They don't say that *anything* you learn on a job is non-transferable to the next job. I know almost nothing about non-competes but I do know that your interpretation could at best be considered 'creative' but really, it's just plain ridiculous.

If you learn something specific as it relates to methods that a company considers 'trade secrets' you might be more on track regarding the actu

What trade secrets?

[91degrees]

A guitar game isn't exactly the most advanced sophisticated piece of engineering imaginable. You score points if you press the buttopn at the right time. That's about it.

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[Khyber]

Isn't that the premise behind most ANY game? Activision's trade secret or not, there's nothing more to it than timing the press of a button to an action.

Activision is meritless, and has been since they uber-whored the fuck out of the Mortal Kombat franchise.

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[LocalH]

It's a hell of a lot more complicated than you'd think. For example, the engine is quite loose - you can actually strum BEFORE hitting the correct fret, and if the time in-between is short enough, the game WILL count it as a hit. Also, regardless of where you hit a sustain note, if you hold the fret for the entire length of the hold, you always get the max possible score for the hold, whether you hit it early or not. Also, much of the complexity is in the note chart creation - humans very rarely play at a c

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[LocalH]

Um, just to clarify, I wasn't talking about the player when I said "humans very rarely play at a consistent, specific speed". I was referring to the artists who recorded the covers (as well as in the case of the bands that made master tracks available). The note chart has to have slight BPM adjustments to compensate for these slight tempo changes.

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[geekoid]

SO? it's input and output. Big deal.
In fact, it's realy slow input and output.
Yes, there are some rules with when the button is press compared to when the 'ideal' press happens.

This is done in many industries, just in the nano seconds rand instead of 16th of a second.

It's a cool game, great idea, hope it is even more successfull. It is not a huge technological advance.

Lodestone Entertainment?

[Quarters]

There was already a Lodestone Games. They did work for Sony. http://en.wikipedia.org/wiki/Lodestone_Games [wikipedia.org]

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[JNighthawk]

It's a small world, apparently. Your resume's out of date :-)

Oh Well.

[FiloEleven]

They should make a fighting game instead. There's a lot of similarity as both are based on timing, and I have a feeling that the crosstraining would pay off once they can jump back into the rhythm genre.