Them Duke boys are at it again.

Gearbox Software, the developer that eventually released the long-in-development Duke Nukem Forever, and 3D Realms, Duke's original creator, are currently fighting it out in court over the question of whether 3D Realms has the rights to release a new game starring the king of all vaporware.

In its complaint filed in February, Gearbox says that it acquired the Duke Nukem property from 3D Realms in 2010 and that a recently announced game called Duke Nukem: Mass Destruction is unauthorized.

Last week, 3D Realms filed its response, saying that the terms of its agreement with Gearbox do in fact allow it to release this game.

"Apparently, after selling its Duke Nukem IP rights to Gearbox in 2010, 3DR sought to privately convince others that the sale never happened," reads Gearbox's complaint. "The result is the unauthorized development effort that reportedly exists between 3DR and Interceptor."

Gearbox filed suit after the Denmark-based game studio Interceptor Entertainment put up a teaser website that said it would release Duke Nukem: Mass Destruction, in cooperation with 3D Realms but not Gearbox. Adding a bizarre new wrinkle to the case, Interceptor's parent firm SDN Invest announced that it had acquired 3D Realms.

Duke Nukem Forever and Ever and Ever ————————————

3D Realms is the current business name of Apogee, the revolutionary "shareware" publisher that first released id Software's Wolfenstein 3D and created its own homegrown hero Duke Nukem in 1991. The 1996 first-person shooter Duke Nukem 3D turned the character into a loud-mouthed, over-the-top action star known for his "balls of steel" and being all out of bubble gum.

Duke 3D was a huge hit, but its sequel Duke Nukem Forever famously spent nearly 15 years in development hell. In 2009, 3D Realms laid off the majority of its staff and was sued by publisher Take-Two for failing to complete the game.

The lawsuit was settled after Gearbox Software, a favorite of Take-Two due to its hit game Borderlands, stepped in and acquired the intellectual property rights to the Duke Nukem games. At the 2010 Penny Arcade Expo, it put the game on the show floor, surprising everyone including the Penny Arcade staff.

Gearbox and 3D Realms had already had a long, tumultuous history. Founder Randy Pitchford worked at 3D Realms on Duke Nukem 3D, and was one of a group of employees that split the company in 1997 to form a game developer called Rebel Boat Rocker, named after 3D Realms head Scott Miller publicly referred to the group, not kindly, as "rebels" and "boat rockers."

In 1998, 3D Realms sued Rebel Boat Rocker and Pitchford for trademark infringement; the case was settled by a mediator. In 1999, the game Rebel Boat Rocker was creating for Electronic Arts was cancelled, and Miller celebrated publicly: "Row, row, row your boat, our game is but a dream," he wrote. Various Rebel Boat Rocker employees then formed Gearbox that same year.

After showing Duke Nukem Forever at PAX, Gearbox released the game in 2012. Reviews were bad, but at least the king of vaporware was finally available for all to play.

It should have been a happy ending. But the honeymoon didn't last. In 2013, 3D Realms filed a lawsuit against Gearbox, claiming it was owed additional royalties from the deal. Shortly thereafter, 3D Realms voluntarily dropped the lawsuit and issued an apology to Gearbox and to Pitchford personally for the entire situation.

Scott Miller's handwritten note to Gearbox Software, submitted as evidence in Gearbox's lawsuit against 3D Realms. Click for full size. hoytm

All was quiet once again, until February of this year when a teaser site called AllOutOfGum.com, found to have been registered by Interceptor Entertainment, appeared with a garbled "alien message" that would be decoded if an accompanying Facebook page reached 10,000 "likes."

As it turns out, the "alien message" was not exactly Kryptos. In fact, it was the simplest of codes, a replacement cipher in which each symbol stood for a letter in the English alphabet. It took the combined power of the Internet no time at all to crack the code.

The "alien message" from alloutofgum.com and the plaintext version. Click to enlarge.

"The king makes his next-generation debut in Duke Nukem: Mass Destruction," the plaintext read, "a top-down action role-playing game for PC and PlayStation."

This did not sit well with Gearbox, which planned on making more Duke Nukem games itself.

"I think I mentioned when we first acquired the franchise that our interest there wasn't merely to make sure that we could see what those guys had been working on for so long," Pitchford told WIRED on February 6 at the DICE Summit. "I acquired the brand so we could try to do something new with it. And we haven't announced anything yet, but that will be fun."

The 2010 Asset Purchase Agreement that it had entered into with 3D Realms, Gearbox believed, gave it the exclusive rights to produce new Duke games.

On February 13, Gearbox sent 3D Realms a cease and desist letter ordering it to immediately halt any and all use of the Duke Nukem IP for Mass Destruction project. (Gearbox provided WIRED with copies of its court filing, but did not respond to requests for further comment.)

In its filing, Gearbox enclosed a "Compliance Declaration," a form that 3D Realms principals Scott Miller and George Broussard could fill out to admit their fault in the matter. It does not appear that Miller and Broussard ever filled out this form, since Gearbox did not include a signed copy in its court filing. But it did include a second, revised declaration, which did indeed appear to have been signed by both Miller and Broussard.

"I am aware that Exhibit 2.2 of the APA states that 'all future development in the Duke IP' is a development right exclusively held by Gearbox," read the declaration.

"As such, only Gearbox has possessed the right to use the Duke IP in the development of any and all new Duke Nukem games, ancillary projects and materials since February 2010. Because such rights belong to Gearbox alone, development efforts such as 3DR’s 'Duke Nukem: Mass Destruction' effort with others was not only unauthorized, but a material infringement of... Gearbox’s rights. I apologize to Gearbox for the infringement and breach represented by my efforts."

Gearbox filed its suit shortly thereafter, including the signed form as evidence.

I'm a Survivor ————–

In its response, 3D Realms said it "admits that it received a... harassing letter from [Gearbox]'s lawyers on Saturday, February 15, 2014, [which] included a blank statement, which was prepared by [Gearbox]'s lawyers, to be signed by the principles [sic] of 3DR." It denied Gearbox's allegation that the signing of the letter was tantamount to admitting that the development of Duke Nukem: Mass Destruction was "unlawful."

3D Realms' affirmative defenses, as set forth in the response, are brief. In part, it says that it believes that 3D Realms owns the trademark rights to Duke Nukem, not Gearbox. (The U.S. Patent and Trademark Office currently shows the only "live" trademarks for Duke Nukem as being owned by Gearbox.)

Furthermore, it says, the "Asset Purchase Agreement provides that 3DR could complete development of and sell a video game with the tentative title of 'Duke Nukem Survivor' [and] also explicitly provides 3DR a 'worldwide, non-exclusive license (including the right to sublicense) to use' the DUKE NUKEM trademarks in 'connection with the marketing, promotion, manufacturing, and distribution of' the 'Duke Nukem Survivor' game."

"In 2012 and again in 2013, [Gearbox] was informed by 3DR of the development of the Duke Nukem game by 3DR. Plaintiff failed to timely object to the development or sale of the Duke Nukem game," it read.

In other words, 3D Realms' position is that Duke Nukem: Mass Destruction is in fact the same project as the Duke Nukem: Survivor game that Gearbox allowed it to publish under the terms of the 2010 agreement.

Gearbox disagrees. "3DR retained only Gearbox's narrow permission... to complete the few games previously in development by Apogee for certain platforms," read the February 13 letter from Gearbox's lawyers to Scott Miller. "Your new 'Duke Nukem: Mass Destruction' project – which is mentioned nowhere within the Supplement and involves new, non-Apogee partnerships – undeniably violates the aforementioned exceptions."

"Furthermore, Gearbox does not believe, as you reportedly claim, that this new project was formerly known as 'Survivor' (or any of the games listed in the now four-year-old Supplement). Indeed, not even your collaborators at Interceptor believe this claim," reads the statement.

A footnote following this phrase points to an article that notes that the LinkedIn page of Frederik Schreiber, CEO of Interceptor, has listed a new game project called "Project Ascender."

Detail of Interceptor CEO Frederik Schreiber's LinkedIn page, captured by WIRED on March 25, 2014.

Like Duke Nukem: Mass Destruction, it is described as a next-generation game for PC and PlayStation 4. Included in the list of team members is one "Scott Miller." And it is listed with a development start date of September 2013.

Mike Nielsen, one of the chief investors at Interceptor and the newly appointed CEO of 3D Realms, says that Interceptor's actions were "in good faith" based upon the information it reviewed at the time.

"Before we license anything, we investigate the underlying documents of that license," Nielsen told WIRED earlier this month. "We've done what we thought was thorough due diligence before licensing this unannounced title. Apparently there were some issues with it that had not come 100 [percent] to light, but we still feel that we did the work necessary and that we were in the right to enter this license."

Unannounced title? Interceptor's position is that the ciphered text it posted on AllOutOfGum.com doesn't count as a game announcement.

"There have been a lot of rumors and some information leaked by a very active fan base, but we today have been stressing the fact that we have actually not announced this title yet," Nielsen said. "We were planning on announcing a title before this lawsuit came into light, and because of the lawsuit we've decided to hold off a little bit on this while we handle the lawsuit and try to see how we can resolve it."

Deathmatch ———-

"[Gearbox] actually sent several letters to Scott and George," Nielsen told WIRED prior to 3D Realm's court filing, "and only one of them has entered into evidence so far. I think they speak for themselves when you read the text of them."

In addition to its response, 3D Realms included a new piece of evidence – another letter that it says was sent by Gearbox's attorneys to Miller and Broussard.

"Gearbox has advised me that, in lieu of complying with its lawful requests, you are improperly soliciting personal gratuities and forgiveness from various parties (including Gearbox)," the letter began.

"Because such gestures cannot cure the 3DR breaches, your gestures will not circumvent Gearbox's legal action(s) in response thereto. Gearbox has instructed me to inform you that the pending case against you and 3DR is not something that you can hope to individually resolve through private appeals and emotional sidebars; Gearbox views its legal case as a formal matter with very dispassionate consequences."

Attached to this letter was the second version of the aforementioned Compliance Declaration, the one that Gearbox submitted as evidence with what appeared to be the signatures of Miller and Broussard.

"The first of you to execute and return the revised 3DR Declaration to our firm... will receive these immediate benefits from Gearbox: he will avoid being personally and individually named in next week’s court pleadings; and he will earn an opportunity to promptly sit down with Gearbox to discuss, in good faith, his relationship with Gearbox and any future business matters." The letter said that the form had to be filled out by midnight the following evening for Gearbox to honor it.

It also noted that only the first individual to return the signed declaration – Broussard or Miller, but not both – would get those "immediate benefits." The signed form that Gearbox would later submit as evidence was signed by both, with "or" crossed out and "and" written in.

This letter, 3D Realms CEO Nielsen wrote on March 26 in a statement to the press, shows that "Gearbox at no point intended to enter into good faith negotiations but instead sought to force former owners, Scott Miller and George Broussard, to improperly surrender what rightfully belonged to 3DR."

Prior to this statement, Nielsen told WIRED that he was still hoping for an amicable resolution.

"I hope that Gearbox will be willing to talk to us at one point," Nielsen said, "But unless we reach a peaceful solution, I guess it will be up to the court to decide."

The courts, if it does get to that point, will have to sort through the documents and make a key determination: Is Duke Nukem: Mass Destruction authorized under the Asset Purchase Agreement, or not? Is it Survivor under another name, or a new project?

"We're not all out of gum yet," says Nielsen.