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A. ZeniMax Online Studios is creating a triple A MMOG along the lines of, I mentioned earlier World of Warcraft. It is, you know, a world wide launch. There's close to a hundred people that are working on the game currently. The budget for that, you know, is tens and tens of millions of to dollars.
MR. GERSH: Your Honor --
THE COURT: Um hum.
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THE COURT: No. He said close to one hundred. He did say how much. Go ahead, Mr. Marbury.
Q. Now, you said a triple A game. What's that mean?
A. In the industry the term refers to the highest quality type of product offering that there is out there. There's triple A console games. There are triple A MMOGs. Those are big brands that are supported by lots of advertising and marketing. Very well established.
Q. Now, if you turn to page four, 5.0 quality control. Do you see that section 5.1, 5.1.1 and 5.1.2?
A. I do see them both.
Q. Okay. Why did Bethesda think it was important to have quality control over the Fallout MMO?
A. Well, because it's our brand. I mean, Fallout is Bethesda's property and IP. It's important to protect it. You can't have -- you can't license your mark to somebody and let them do whatever they want with it willy nilly. Here we had invested millions of the dollars to make Fallout Three over multiple years, hundreds of people working on it. We had this -- We now have an IP in Fallout that's extremely value, and in any licensing agreement anywhere I would want to protect the integrity of my brand and my mark so that it is not diminished in the mind of the consumer or degrades something else that I'm building.
Q. And how does Bethesda accomplish that by the quality control provision in front of you?
A. Well, in 5.1.1 it says that Interplay knows how important Bethesda's good will is in all of that. And in 5.1.2 it says that Interplay warrants that the licensed product shall meet or exceed such quality standards. I'm not reading the whole section. Would you like me to or --
Q. No. That's fine?
A. I'm just paraphrasing.
Q. The last sentence refers to the same quality or exceed in quality the quality of a licensed product in connection with which Bethesda has used the licensed mark after the effective date. It's a lot of legalese. Can you tell me what that means?
MR. GERSH: Objection, Your Honor. His interpretation of what it means is irrelevant as to what the document says.
THE COURT: Sustained.
Q. Okay. What licensed product -- What licensed product did Bethesda use the licensed marks after the effective date of April, 2007?
A. Fallout Three, which was a triple A quality brand, and basically 5.1.2 refers to the fact that anything going forward has to be at or exceed the quality of Fallout Three.
Q. Please turn to page eight of that same agreement, section 9.3.5, which is in the middle of the page.
A. Nine point three point five. Yes.
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Q. You never built a MMOG, have you?
A. We're building one right now.
Q. Prior to the time of the APA and the TLA, Bethesda and ZeniMax never built an MMOG, did they?
A. Bethesda began development with ZeniMax Online Studios -- ZeniMax Online Studios began to put together its design in I think late 2006, around 2007, so it's in development. Started around then and it's currently in development, it's been in development for a number of years.
Q. And not completed, right?
A. It is not completed.
Q. Okay. You told me yesterday that full scale development is a very complex concept, didn't you?
A. I believe I told you that making a MMOG is a very complex undertaking.
Q. And you did tell me also that an MMOG is a complex undertaking. So, you also told me that full scale development means all these different things to you, a fully scaled, assembled team, a lot of technical hurdles, undefined, that have to be overcome, the team is actually generating final product, whatever that means. And then you went on to say "And as I said, it's complex." Do you remember that?
MR. MARBURY: Objection, Your Honor. This is exactly the type of testimony that I tried to elicit and --
THE COURT: I'll accept that you think the term doesn't need definition and he's trying to show that it does.
MR. MARBURY: Well, if he's impeaching the witness with his testimony --
THE COURT: Okay.
MR. MARBURY: -- we'd appreciate it --
THE COURT: What would be more helpful is if you just ask him a question rather than try to ask him to remember exactly what he said at a deposition, even though it might have been just yesterday.
MR. GERSH: I will do that, Your Honor.
THE WITNESS: Thank you.
Q. Defining what is full scale development is very complex, correct?
A. I don't believe defining full scale development is complex.
Q. So it's very simple, then?
A. I believe that there is an industry definition of what full scale development is.
Q. Well, I want to pull us back to the agreement, okay. You told me at one time the MMOG is complex, correct?
A. It's very complex to make an MMOG, correct.
Q. And you'll agree that you've got to have some kind of team, but you don't know how many, and you've got to have technical hurdles, but those are not defined any why in the agreement, right?
A. No. I believe yesterday when you asked me that I told you my definition of what an assembled team would be and I referenced the one that we're building on today. Like currently my frame of reference for what it takes to make a triple A MMOG, I have about a hundred people assembled at ZeniMax Online Studios that's doing that.
So I can tell you that right now, and it's not finished, you know, that's where we are and it's growing. It's only going to get bigger as we get further down the pipe, so I have an idea of how many people it takes.
Q. Well, quality MMOGs can be created with a lot less people, can't they?
A. None that I can point to. I don't know if you point to any. If you can point me to some, I'd like to hear them.
Q. Who is Matt Firor?
A. Matt is the President of ZeniMax Online Studios.
Q. He created an MMOG that was critically acclaimed with 25 people in 18 months, didn't he?
A. I don't know that to be a fact.
Q. You don't? It's all over the internet.
THE COURT: Okay. Don't argue with the witness, please.
MR. MARBURY: Objection, Your Honor.
This bit on the Fallout Trilogy pack is pretty interesting, too:
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Q. Okay. In the upper right-hand corner, just above the word "Fallout," it clearly identifies that this book contains three smash hits in one radioactive pack, doesn't it?
A. That's what it says.
Q. And right underneath the word "Trilogy," it also shows what's purported to be in that box, Fallout, Fallout Two and Fallout Tactics, correct?
A. That appears to be the case.
Q. And all three of those games are pre-existing games that Interplay has the right to distribute, correct?
Q. And I believe that you testified earlier that there's no restrictions on Interplay creating compilations of its games of pre-existing works, correct?
A. So long as it met the specifics of that clause in the APA that required all packaging to be pre-approved by Bethesda.
Q. Is that all packaging to be pre-approved by Bethesda from the date of the agreement of April 7, 2007 to date?
A. All packaging means all packaging.