@bengoshi I think you're analysis is spot-on. Since the IP isn't listed in their assets, and they've stated they'll sell off smaller assets out of court, that leaves it to reason that it includes BG.
One question tho- does the court need to approve these out of court sales also? The fact that Nordic Games was able to announce their purchase prior to the July 24th court mediated auction tells me that court approval isn't required, or at least isn't required ON July 24th.
We might hear more about BG:EE's future prior to that... lets hope that Beamdog works out a deal and can purchase the rights owned by Atari.
Black Isle developed and Interplay published it, taking in fact that Black Isle doesn't exist anymore, my guess would be interplay, but maybe even a third part has the copyright, who knows.
Black Isle developed and Interplay published it, taking in fact that Black Isle doesn't exist anymore, my guess would be interplay, but maybe even a third part has the copyright, who knows.
After little google search, Atari owns Icewind Dale IP too.. they bought it from Interplay.
I'm hoping if beamdog gets the Baldur's Gate IP they will have IWD bundled in with it, if not fine, I like BG more anyway, but it would still be very nice.
Well, which D&D games did Interplay had at that time? Apparently only Baldur's Gate, Icewind Dale, planescape: torment and Neverwinter Nights. That means everything atm is in the hands of ATARI, the good notice is that all those games (link below) were worth a total of $1.050.000, which means that Baldur's Gate could go for a very lower amount than that.
Bethesda has Fallout copyrights apparently atm, but i found something that let me worry a bit:
So... is EA International the owner of every copyright out there (and what is being negotiated is only the use permissions? ... I don't like much EA (and Ubisoft).
Well, which D&D games did Interplay had at that time? Apparently only Baldur's Gate, Icewind Dale, planescape: torment and Neverwinter Nights. That means everything atm is in the hands of ATARI, the good notice is that all those games (link below) were worth a total of $1.050.000, which means that Baldur's Gate could go for a very lower amount than that.
Bethesda has Fallout copyrights apparently atm, but i found something that let me worry a bit:
So... is EA International the owner of every copyright out there (and what is being negotiated is only the use permissions? ... I don't like much EA (and Ubisoft).
If i remember how this goes Atari has the publishing rights to all electronic D&D games (BG, IWD, PT, ect...). And in BGs case, Bioware/EA owns the copyright to the storyline of the game and the game engine, and WoTC owns the rights to the forgotten realms setting.
It will be interesting to see if Atari will break up the rights to each of the D&D games and sell them independently, or if they will just sell all the electronic D&D rights as a packaged deal... If it is the latter then Beamdog could get the publishing rights to all of them . Although I could also see WoTC stepping in and trying to bring all of D&D (paper and electronic) back under one company.
One question tho- does the court need to approve these out of court sales also? The fact that Nordic Games was able to announce their purchase prior to the July 24th court mediated auction tells me that court approval isn't required, or at least isn't required ON July 24th.
To answer a question like this it is necessary to study the statutory provisions governing sales in a chapter 11 bankruptcy case.
Section 363 of the Bankruptcy Code provides for the use, sale or lease of property of a debtor in bankruptcy. The use, sale or lease of property that is not in the ordinary course of the debtor's business requires notice to creditors and parties in interest and approval of the bankruptcy court.
In general terms, sales of assets that do not constitute the normal operations of the business are deemed to be outside of the ordinary course.
Normally, a transaction is deemed to be within the ordinary course of business if it is in accord with the debtor's prepetition practices and typically consists of those daily operating expenses which are relatively insignificant. Requiring court approval for every minor transaction would frustrate the purpose of Section 363 of the Code and the debtor's ability to reorganize and would overburden the court.
The selling of intellectual rights may be considered to be outside of the ordinary course (unlike eg rental, telecommunications services and so on).
As it follows from these provisions, any asset sale that is not in the ordinary course of the debtor's business must be approved by the bankruptcy court.
And the Code provides that the debtor-in-possession must notice the court and wait for a hearing. The court will approve the highest and best offer, which is not necessarily the highest in terms of dollars and may also consider security of payment and payment terms.
I understand that in this case the single date (July 24) was assigned for approving the sale of all assets (both those sales that are conducted by public auction under the supervision of the bankruptcy court and those sales that are private) but maybe the court had approved the deal between Atari and Nordic Games earlier, eg on June 11.
But of course there’s a possibility that constituent (statutory) corporate documents of Atari provide that selling of intellectual rights (or intellectual rights that cannot be considered major) is a normal business operation for Atari. In this case, the court approval is not needed.
If they were to sell the Baldur's Gate IP then personally I'd hope for a bigger studio to buy it.
Big players have their own game set. They would probably add those rights to the company portfolio. BG series is to small project for giants like UBI or EDIOS. They have their own money making "hits" they want to focus one. BG income is probably more like a marathon in compare to sprinters run of games like "Assassin’s Creed", "Hallo", "Call of Duty" etc. Small studio would be more interested in this production. With bigger profit for both I think.
Does anyone else wonder if a kickstarter project wouldn't help out here?
They've stated before that their partners didn't want them doing KS for the games themselves; but I suppose that Overhaul could start a KS for BG3 and include in the funding goal the cost of buying the rights from Atari...
Correct me if I'm wrong, but, without the rights, wouldn't they be unable to make a BG3?
Also, not to be a Debbie Downer here, but isn't the auction coming up pretty quickly? A Kickstarter to raise enough money from an admittedly niche audience would probably have to be up already. Plus, if the price of the IP hasn't been announced (or if it is even going up for auction), how would they know what to set it at?
Sorry... I really want them to have the rights, too, just being a little realistic.
@rdarken I agree, I was just mentioning it as a vague (albeit unlikely) possibility; most likely it's impossible. My main point was my hope that they would consider kickstarting a new IP as a spiritual successor to BG, which could give them the funding and rights to make an RPG to the best of their abilities... just a thought, it'll most likely never happen.
I understand that in this case the single date (July 24) was assigned for approving the sale of all assets (both those sales that are conducted by public auction under the supervision of the bankruptcy court and those sales that are private) but maybe the court had approved the deal between Atari and Nordic Games earlier, eg on June 11.
But of course there’s a possibility that constituent (statutory) corporate documents of Atari provide that selling of intellectual rights (or intellectual rights that cannot be considered major) is a normal business operation for Atari. In this case, the court approval is not needed.
Right, these are the two best and broadest rationals to explain the sale to Nordic. It also could have been under consideration prior to the Chapter 11 filings, but I'm not up for sleuthing that. Have you taken a peak at Atari's court filings, @bengoshi? Would there be a court docket explicitly detailing what Atari considers "normal operations" with respect to the sale or lease of property?
edit: looking back over their June 14th filing (attached), do you think that the BG 'IP' falls under de minimus assets? If so, the sale is pursuant to the stipulations laid out by the court on pg. 9. I'll quote it below
18. The Debtors are authorized and empowered to sell the De Minimis Assets pursuant to the following procedures:
(a) Subject to paragraph (d), in connection with a sale(s) of De Minimis Assets for a purchase price of $25,000 or less per asset, the Debtors shall provide at least three (3) business days’ prior notice, and five (5) business days’ prior notice where the proposed sale(s) is to an “insider” as such term is defined in Bankruptcy Code section 101(31), (collectively, the “De Minimis Notice Periods”) of the proposed sale(s), by e-mail, to (i) counsel to the DIP Lender, (ii) counsel to the Committee and (iii) counsel to Atari, S.A. (collectively, the “De Minimis Sale Notice Parties”). Such notice (the “De Minimis Sale Notice”) shall disclose the name of any buyer(s) interested in purchasing the relevant De Minimis Asset(s); any known affiliation the buyer(s) have with the Debtors; a description of the De Minimis Asset(s) being sold; the proposed purchase price(s), and, if applicable, why the proposed sale price(s) is the best price(s) available. If none of the De Minimis Sale Notice Parties object to the proposed sale(s) prior to the expiration of the applicable De Minimis Notice Periods, the Debtors shall have the authority to sell the De Minimis Asset(s) in the manner disclosed without further order of the Court; provided, however, that before the expiration of the applicable De Minimis Notice Periods, any De Minimis Sale Notice Party may request an extension of the time to review the proposed sale(s). If a De Minimis Sale Notice Party timely objects to the proposed sale(s), the Debtors shall not proceed with the proposed transaction until the Debtors and such De Minimis Sale Notice Party reach agreement on the proposed sale; provided, however, that at any time the Debtors may seek Court approval of the proposed transaction upon notice and a hearing pursuant to Bankruptcy Code section 363.
(b) Subject to paragraph (d) below, in connection with a sale(s) of De Minimis Assets for a purchase price of $25,000 to $100,000 per asset, the Debtors shall serve by email, facsimile or overnight mail, the De Minimis Sale Notice on all Sale(s) Notice Parties. Any Sale(s) Notice Party who objects to the proposed sale(s) must serve such objection in writing on the Consulting Parties within seven (7) days from date of De Minimis Sale Notice. If no timely objections are received by the Consulting Parties, the Debtors shall have the authority to sell the De Minimis Asset(s) in the manner disclosed herein without further order of the Court. If a Sale(s) Notice Party timely objects to the proposed sale(s), the Debtors shall not proceed with the proposed transaction until the Debtors and such Sale(s) Notice Party reach agreement on the proposed sale; provided, however, that at any time the Debtors may seek Court approval of the proposed transaction upon notice and a hearing pursuant to Bankruptcy Code section 363.
(c) For any sale(s) of De Minimis Assets at a purchase price of $100,000 or more, the Debtors shall seek Court approval of the proposed transaction upon notice and a hearing pursuant to Bankruptcy Code section 363. However, the Debtors may seek to shorten the applicable notice period if such reduction is determined, in the Debtors’ business judgment, to be necessary and appropriate under the facts and circumstances of these cases.
(d) If the Debtors believe that a party has a lien on one or more of the De Minimis Assets to be sold, the Debtors shall serve such party, by email, facsimile or overnight mail, with the De Minimis Sale Notice. If such creditor does not object with seven (7) days after service of such notice (and no objection is made by any De Minimis Sale Notice Party), the Debtors shall have the authority to dispose of such De Minimis Asset(s) in the manner disclosed without further order of the Court.
Atari has the rights to Master of Orion? and the minimum bid is $100,000? Hey Beamdog! If you have any spare cash, nab that franchise and Enhance it too!
I apologize for this semi-offtopic post, but, the title of the thread just made me connect it to the title of Star Wars Episode IV: A New Hope.
{{John William's music plays}}
"It is a period of civil war. Beamdog spaceships, striking from a hidden base, have won their first victory against the evil Atari Empire.
During the battle, Beamdog spies managed to steal secret plans to Atari's ultimate weapon, the DEATH BANKRUPTCY LAW, an armored space station with enough power to destroy the entire planet of Abeir-Toril.
Pursued by Atari's sinister agents, Prince @TrentOster races home aboard his starship, custodian of the stolen plans that can save his people and restore freedom to the galaxy...."
I don't know if this plays into anything, but Steam is once again selling BG:EE. In fact, they are having a sale on it such that you can get it for $4.99. So what has changed?
I don't know if this plays into anything, but Steam is once again selling BG:EE. In fact, they are having a sale on it such that you can get it for $4.99. So what has changed?
It was never actually taken off steam. That would require effort from atari
Have you taken a peak at Atari's court filings? Would there be a court docket explicitly detailing what Atari considers "normal operations" with respect to the sale or lease of property?
edit: looking back over their June 14th filing (attached), do you think that the BG 'IP' falls under de minimus assets? If so, the sale is pursuant to the stipulations laid out by the court on pg. 9.
I've been studying it for several days already and the amount of useful details regarding this all situation there is overwhelming.
Apparently, as it follows from the Atari Interactive Inc Schedules, there's an executory contract between Atari Interactive Inc and Beamdog. BTW, Jalily's answer here shows we indeed can talk about an executory contract between these two parties - taking into account that a debtor in a chapter 11 bankruptcy case is able to unilaterally terminate an executory contract and minimize the financial impact of the default, sell and assign an executory contract to a third party, even though the contract has a provision which otherwise prohibits assignment.
So, as it can be seen from the Atari Interactive Inc Schedules, there's a Baldur's Gate Sublicense Agreement. And the nature of Debtor's (Atari's) interest in this contract is a License.
We now that a license may be granted by one party - a licensor - to another party - a licensee. And because the contract between Atari and Beamdog is a Sublicense Agreement, Atari is not a licensor, it's a licensee (!). So, an ultimate license holder (and owner) of Baldur's Gate is Hasbro (or - more likely if we look at the bottom of this page - its subsidiary that is Wizards of the Coast), not Atari. This page confirms it also, naming Hasbro.
Whether the license (Atari's interest) regarding Baldur's Gate is worth less than $100,000 (this grants Atari the authority to sell the asset without further order of the Court), or not, is hard to estimate. I doubt it, though.
To say it simple, right now there're business negotiations between Beamdog and Atari to buy a license regarding Baldur's Gate. There's a belief that Atari will ultimately sell it to Beamdog after these talks.
Atari can sell it. If the price is or below $100,000 they don't need a court order, if it's more - then only the court can approve the deal (on July 24).
Regarding different owners: the main owner of Baldur's Gate is Hasbro (or - I think more likely especially taking into account Cerevant's answer here - Wizards of the Coast, its subsidiary) and Beamdog has a good relationship with them, so there won't be problems. As Trent himself said: "We went down to visit the Wizards fellows a few short weeks ago and we all get along smashingly well".
So, really, hope it will be solved soon - no matter what, Beamdog will continue to find a resolution until it is done.
@bengoshi I've been following this for the last 2 weeks and your legal analysis definitely seems spot on, but if things are playing out the way you describe, why the hostility from Beamdog that seems to be directed at Atari? If it was just legal mumbo jumbo to go through, I'd expect less volatile tweets from Trent than "I'm more of an elbow to the face kinda guy. Uppercuts are good too. I like uppercuts." Any insight from a legal perspective why this seems more personal than just a court/paperwork issue? (I don't mean to imply you have any direct knowledge of the situation, but you seem knowledgable in general about similar situations.)
bg_sepotter: "@ TrentOster IF Baldur's Gate were to be auctioned off, and IF the price was one beamdog could afford, even if just barely, would you bid?"
TrentOster: "@ bg_sepotter we are proposing something along those lines"
bg_sepotter: "@ TrentOster IF Baldur's Gate were to be auctioned off, and IF the price was one beamdog could afford, even if just barely, would you bid?"
TrentOster: "@ bg_sepotter we are proposing something along those lines"
Well, that's exactly the first post that started this whole thread on June 28... I've posted the newer tweet (released on July 1) that shows the negotiations continue. That's the main thing - that we're being kept informed by the Devs about the situation every several days - thumbs up for that, it's VERY important to the community - and that the process of finding a solution hasn't stopped.
In fact, the quoted tweet has nothing in it showing it's against Atari. Beamdog hasn't showed any hostility at all.
But if we face the truth, we can undestand there indeed can be some negativity that is just not shown and kept inside. When we speak about business partners, we mean the concept of trust. Without trust there can be no progress, no success. And when a partner suddenly requests to stop the relations, it can raise some questions to say the least.
Atari as a debtor had a right to cancel the contract but in no way it was an obligation. And by doing so, Atari brought the situation when Beamdog is trying to negotiate the things anew. Probably it means that Beamdog has to pay additional money. And when these two parties had decided to have relations (at the very start of all BG:EE project), there unlikely had been even thoughts that an executory contract could be terminated before the main part of it is executed.
I actually dreamed about these problems last night and though being a pessimistic person my dream was an optimistic one: In my dream, each few days there was an update by @Dee, telling about further progress in solving the matter and by the end of my dream, the announcement was something along the lines: 'problem solved, selling will recommence tomorrow and the patch will be released in a week'.
So I can say, though this issue is far less severe than segregation of the black minority: "I had a dream".
Kudo's for @bengoshi for well-funded speculation of reality. Even reality doesn't seem as bad as it seemed two weeks ago.
Comments
One question tho- does the court need to approve these out of court sales also? The fact that Nordic Games was able to announce their purchase prior to the July 24th court mediated auction tells me that court approval isn't required, or at least isn't required ON July 24th.
We might hear more about BG:EE's future prior to that... lets hope that Beamdog works out a deal and can purchase the rights owned by Atari.
http://news.bigdownload.com/2008/08/07/interplay-and-atari-settle-dispute-over-dandd-game-rights/
I wonder what will be its fate..
Bethesda has Fallout copyrights apparently atm, but i found something that let me worry a bit:
http://www.bioware.com/copyright
So... is EA International the owner of every copyright out there (and what is being negotiated is only the use permissions? ... I don't like much EA (and Ubisoft).
It will be interesting to see if Atari will break up the rights to each of the D&D games and sell them independently, or if they will just sell all the electronic D&D rights as a packaged deal... If it is the latter then Beamdog could get the publishing rights to all of them
A helpful breakdown of ownership of BG: http://www.shacknews.com/article/79831/baldurs-gate-enhanced-pulled-over-contractual-issues?id=30362419#item_30362419
Section 363 of the Bankruptcy Code provides for the use, sale or lease of property of a debtor in bankruptcy. The use, sale or lease of property that is not in the ordinary course of the debtor's business requires notice to creditors and parties in interest and approval of the bankruptcy court.
In general terms, sales of assets that do not constitute the normal operations of the business are deemed to be outside of the ordinary course.
Normally, a transaction is deemed to be within the ordinary course of business if it is in accord with the debtor's prepetition practices and typically consists of those daily operating expenses which are relatively insignificant. Requiring court approval for every minor transaction would frustrate the purpose of Section 363 of the Code and the debtor's ability to reorganize and would overburden the court.
The selling of intellectual rights may be considered to be outside of the ordinary course (unlike eg rental, telecommunications services and so on).
As it follows from these provisions, any asset sale that is not in the ordinary course of the debtor's business must be approved by the bankruptcy court.
And the Code provides that the debtor-in-possession must notice the court and wait for a hearing. The court will approve the highest and best offer, which is not necessarily the highest in terms of dollars and may also consider security of payment and payment terms.
I understand that in this case the single date (July 24) was assigned for approving the sale of all assets (both those sales that are conducted by public auction under the supervision of the bankruptcy court and those sales that are private) but maybe the court had approved the deal between Atari and Nordic Games earlier, eg on June 11.
But of course there’s a possibility that constituent (statutory) corporate documents of Atari provide that selling of intellectual rights (or intellectual rights that cannot be considered major) is a normal business operation for Atari. In this case, the court approval is not needed.
Small studio would be more interested in this production. With bigger profit for both I think.
@rdarken I agree, I was just mentioning it as a vague (albeit unlikely) possibility; most likely it's impossible. My main point was my hope that they would consider kickstarting a new IP as a spiritual successor to BG, which could give them the funding and rights to make an RPG to the best of their abilities... just a thought, it'll most likely never happen.
edit: looking back over their June 14th filing (attached), do you think that the BG 'IP' falls under de minimus assets? If so, the sale is pursuant to the stipulations laid out by the court on pg. 9. I'll quote it below
{{John William's music plays}}
"It is a period of civil war. Beamdog spaceships, striking from a hidden base, have won their first victory against the evil Atari Empire.
During the battle, Beamdog spies managed to steal secret plans to Atari's ultimate weapon, the DEATH BANKRUPTCY LAW, an armored space station with enough power to destroy the entire planet of Abeir-Toril.
Pursued by Atari's sinister agents, Prince @TrentOster races home aboard his starship, custodian of the stolen plans that can save his people and restore freedom to the galaxy...."
I've been studying it for several days already and the amount of useful details regarding this all situation there is overwhelming.
Apparently, as it follows from the Atari Interactive Inc Schedules, there's an executory contract between Atari Interactive Inc and Beamdog. BTW, Jalily's answer here shows we indeed can talk about an executory contract between these two parties - taking into account that a debtor in a chapter 11 bankruptcy case is able to unilaterally terminate an executory contract and minimize the financial impact of the default, sell and assign an executory contract to a third party, even though the contract has a provision which otherwise prohibits assignment.
So, as it can be seen from the Atari Interactive Inc Schedules, there's a Baldur's Gate Sublicense Agreement. And the nature of Debtor's (Atari's) interest in this contract is a License.
We now that a license may be granted by one party - a licensor - to another party - a licensee. And because the contract between Atari and Beamdog is a Sublicense Agreement, Atari is not a licensor, it's a licensee (!). So, an ultimate license holder (and owner) of Baldur's Gate is Hasbro (or - more likely if we look at the bottom of this page - its subsidiary that is Wizards of the Coast), not Atari. This page confirms it also, naming Hasbro.
Whether the license (Atari's interest) regarding Baldur's Gate is worth less than $100,000 (this grants Atari the authority to sell the asset without further order of the Court), or not, is hard to estimate. I doubt it, though.
Will Atri sell it to Beamdog, can they even sell it (with all the different owners) ?
I don't get the lawyer mambo jambo and stuff.
TWEET from Trent Oster as of July 1
We are talking. Hope we can solve it.
To say it simple, right now there're business negotiations between Beamdog and Atari to buy a license regarding Baldur's Gate. There's a belief that Atari will ultimately sell it to Beamdog after these talks.
Atari can sell it. If the price is or below $100,000 they don't need a court order, if it's more - then only the court can approve the deal (on July 24).
Regarding different owners: the main owner of Baldur's Gate is Hasbro (or - I think more likely especially taking into account Cerevant's answer here - Wizards of the Coast, its subsidiary) and Beamdog has a good relationship with them, so there won't be problems. As Trent himself said: "We went down to visit the Wizards fellows a few short weeks ago and we all get along smashingly well".
So, really, hope it will be solved soon - no matter what, Beamdog will continue to find a resolution until it is done.
bg_sepotter: "@ TrentOster IF Baldur's Gate were to be auctioned off, and IF the price was one beamdog could afford, even if just barely, would you bid?"
TrentOster: "@ bg_sepotter we are proposing something along those lines"
@modestvolta
In fact, the quoted tweet has nothing in it showing it's against Atari. Beamdog hasn't showed any hostility at all.
But if we face the truth, we can undestand there indeed can be some negativity that is just not shown and kept inside. When we speak about business partners, we mean the concept of trust. Without trust there can be no progress, no success. And when a partner suddenly requests to stop the relations, it can raise some questions to say the least.
Atari as a debtor had a right to cancel the contract but in no way it was an obligation. And by doing so, Atari brought the situation when Beamdog is trying to negotiate the things anew. Probably it means that Beamdog has to pay additional money. And when these two parties had decided to have relations (at the very start of all BG:EE project), there unlikely had been even thoughts that an executory contract could be terminated before the main part of it is executed.
So I can say, though this issue is far less severe than segregation of the black minority: "I had a dream".
Kudo's for @bengoshi for well-funded speculation of reality. Even reality doesn't seem as bad as it seemed two weeks ago.