Following Frogwares’ decision to force the removal of The Sinking City from Steam via DMCA takedown, publisher Nacon has issued a lengthy response:
“Frogwares published an article on March 1st, 2021, accusing Nacon of having ‘pirated’ the game The Sinking City; Nacon hereby wishes to set the record straight regarding these unjustified accusations.
“Nacon is contractually the sole exclusive distributor of The Sinking City game on Steam.
“Nacon has contributed to the financing of development and the payment of royalties to Frogwares to the tune of 8.9 million euros to date (including the full payment for a version of the game for Steam), making the global investment far above 10 million euros when integrating the marketing costs. Contrary to Frogwares’ allegations, Nacon has paid all amounts due.
“Today, unless Frogwares is acting in bad faith, it has no reason not to make the game available to Nacon on Steam.
“In the past, Frogwares has improperly relied on accusations regarding a lack of payment to refuse delivery of the game on Steam, at which point they tried to unsuccessfully terminate the contract. The Paris Court of Appeal deemed this action ‘manifestly unlawful’; ordering the continuation of the contract and encouraging Frogwares to refrain ‘from any action which would impede such continuation’.
“In line with the courts’ decision, Nacon has repeatedly and unsuccessfully requested that Frogwares make the game available on Steam, failing which it would apply a clause in the contract wherein such a case, the game would be adapted by a third party. Frogwares then attempted, without the knowledge of Nacon and in violation of our rights, to make the game available on Steam without mentioning Nacon in its capacity as the publisher. This is, therefore clear proof that no technical impossibility prevents the game from being put back on Steam.
“Despite this blocking situation created exclusively by Frogwares, Nacon has allowed players to access the game on Steam while still expressly indicating the ownership of Frogwares’ rights to the game. Frogwares will also receive the royalties generated by Steam sales.
“By encouraging the gaming community via Twitter not to buy the game on Steam, Frogwares is once again sabotaging our investments in the game.
“Nacon obviously regrets this conflict, for which it is not responsible, and for which it did everything possible to avoid.
“Nacon regrets all the more that Frogwares has demanded the withdrawal of the game from Steam, thus depriving the gaming community of the unique experience provided by The Sinking City.
“Nacon reserves the right to take legal action against Frogwares for its aggressive and prejudicial comments. Frogwares has been careful not to indicate that all court decisions in the dispute between Nacon and Frogwares have thus far been favourable to Nacon.”
The developer of The Sinking City has forced its own game off Steam with a DMCA takedown.
Frogwares issued the DMCA takedown to Steam owner Valve after publisher Nacon uploaded a version of the game for sale. The Sinking City’s Steam page is now offline.
Frogwares and Nacon are embroiled in a bitter legal battle over control of horror adventure The Sinking City, which has been published on and pulled from Steam a raft of times in recent years.
This week, Frogwares accused Nacon of pirating The Sinking City and tricking Steam into uploading it for sale.
The Ukrainian studio accused Nacon of cracking, hacking and changing the game’s code and content, and “illegally” uploading the game to Steam. Frogwares also threatened new legal action against Nacon. Nacon has denied any wrongdoing.
“This last action was the straw that broke our backs,” Frogwares said. “It’s corporate bullying, and incompetent hacking, at its finest.”
Frogwares’ dispute with Nacon dates back to 2019, when it filed a lawsuit alleging the company tried to claim copyright of The Sinking City after its release, withheld milestone payments, and owed the developer around €1m in unpaid royalties.
Then, in August 2020, Frogwares pulled The Sinking City from sale. In October 2020, the Paris Court of Appeal ruled Frogwares acted unlawfully in doing so, and ordered the developer to refrain from any further action that would affect its contract with Nacon until the dispute between the two parties was resolved.
This decision opened the door to The Sinking City’s return to Steam, and last week Nacon published the game. That move prompted a tweet from Frogwares, which recommended gamers do not download its own game from Valve’s platform.
Frogwares issued a comment to Eurogamer explaining its DMCA takedown move, saying it revolved around Nacon’s alleged use of content it does not have rights to:
“We believe in a very short time, we were able to collect extremely strong evidence to indicate this version of the game was pirated and contains content that Nacon has absolutely no rights to – namely The Merciful Madness DLC,” Frogwares said.
“A DMCA notice proved to be our most effective tool to give us time to gain further potential evidence and to also start the required and lengthy additional legal processes to prevent this from happening again.
“We are aware that a final ruling on whether Frogwares are obligated to deliver a Steam version has yet not been made and could take years. As it stands, we have an appeals court ruling saying, until further notice Frogwares do not need to deliver a Steam version to Nacon. In the meantime, Nacon decided to take justice into their own hands and release a pirated build.
“We are also aware that the DMCA claim on this Steam version may only be a temporary fix and that the game may make a comeback – in this form or another. Providing partners like Valve with finalised rulings and third-party verified evidence so they can make their final decision takes time and resources. If in the meantime they decide they have to continue selling the game, we can only respect that while continuing to speak to them and provide them with more information.”
Eurogamer has asked Nacon for an updated comment. Responding to Frogwares’ tweet from last week, Nacon accused the developer of “playing the victim”, said it had paid the studio more than €10m to date.
Currently, The Sinking City remains on sale on other PC distribution platforms where it is self-published by Frogwares, such as Gamesplanet. The PlayStation 4 and Xbox One version of The Sinking City, which is published by Nacon, remains up for sale on the PlayStation Store and Xbox Games Store. The Nintendo Switch and PlayStation 5 versions, which are published by Frogwares, are also currently up for sale.