inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by SagaDC » May 7th, 2016, 3:40 pm

dorkboy wrote:Doesn't mean they'd be able to convince a judge that they're right, of course. ;)
Honestly, that's kind of the problem. Yes, it's probably safe to assume that Devdan had no idea what he was doing when he decided to develop and publish his own game. He's obviously not a lawyer, and he's not very good at handling the social media for his game either. But does inexperience or ignorance excuse him from every single mistake he makes?

Devdan didn't make just one mistake, he made several.

1) He didn't properly check for existing trademarks before releasing his game.

2) He released a flawed and broken product. That's not related to the trademark infringement, mind you, but it's still worth noting. He only fixed the largest bugs in his game after a couple of Youtube videos popped up making fun of them.

3) He never properly listed his game in the Youtube gaming database, causing the Youtube categorization software to misidentify all of the Alien Wasteland videos as being affiliated with the Wasteland franchise. Given that many of the videos were negative in tone, this could be viewed as harmful to the Wasteland brand, and it went on for almost a year. Whether or not he realized it, he was creating brand confusion.

Even now, after the trademark dispute, he still hasn't fixed the problem.

4) When he was finally approached by InXile, he initially denied that there was any problem at all, then ended up requesting money in exchange for resolving the problem that he denied existed. InXile didn't even involve any lawyers until Devdan started asking for money.

5) He only cooperated after he finally received a Cease & Desist order, and immediately went public in an effort to paint himself as the victim. This is particularly bewildering, because he was almost single-handedly responsible for the entire situation. Based on his various statements, he still seems to honestly have no idea what he did wrong.

And honestly, after all that he wasn't even punished all that severely. He was given a legal warning, and had to change the name of his game. I haven't seen anything to imply that InXile intends to take it any further then that.
dorkboy wrote:What's a non-competitive gaming market, btw? :?
Free games, maybe? Shareware? That kind of thing doesn't tend to get nearly as much legal attention, because it's generally seen as non-competitive. Unless a free game is blatantly violating a copyright or something, it's rare to see them get wrapped up in a legal dispute.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 7th, 2016, 5:11 pm

SagaDC wrote:[..] Yes, it's probably safe to assume that Devdan had no idea what he was doing when he decided to develop and publish his own game. He's obviously not a lawyer, and he's not very good at handling the social media for his game either. But does inexperience or ignorance excuse him from every single mistake he makes?
No, but it does somewhat rule out the idea that they were acting in bad faith.
As for the rest of the glass house, heh..
SagaDC wrote:1) He didn't properly check for existing trademarks before releasing his game.
Yes, we've already covered that, I think. :)
SagaDC wrote:2) He released a flawed and broken product. That's not related to the trademark infringement, mind you, but it's still worth noting. He only fixed the largest bugs in his game after a couple of Youtube videos popped up making fun of them.
So he's on par with Bethesda in that regard, basically.
SagaDC wrote:3) He never properly listed his game in the Youtube gaming database, causing the Youtube categorization software to misidentify all of the Alien Wasteland videos as being affiliated with the Wasteland franchise. Given that many of the videos were negative in tone, this could be viewed as harmful to the Wasteland brand, and it went on for almost a year. Whether or not he realized it, he was creating brand confusion.
Even now, after the trademark dispute, he still hasn't fixed the problem.
Ok, that I was not aware of. I guess I thought it was more of an automatic thing on youtube's end.
The curious thing about this is even with the change of title this problem isn't solved for existing videos, and if this problem had been solved the brand confusion would stop even if the title of the game remained unchanged. I can definitely see how this would be annoying for inXile, though.
SagaDC wrote:4) When he was finally approached by InXile, he initially denied that there was any problem at all, then ended up requesting money in exchange for resolving the problem that he denied existed. InXile didn't even involve any lawyers until Devdan started asking for money.
Which problem - the trademark or the youtube gaming database, or both? I'm getting the impression that the issue that ended up sparking this thread is more about the former, so I'm gonna go with that for now:
Would you change the title of your game for free if you honestly thought you had every right to use that title? Just because some developer with a different game with a similar title told you to do so? [Yes, that is mere speculation on my part..]
Mind you, if they denied there was a problem with the gaming database thingie, that would be right cheeky asking for money to fix.
SagaDC wrote:5) He only cooperated after he finally received a Cease & Desist order, and immediately went public in an effort to paint himself as the victim. This is particularly bewildering, because he was almost single-handedly responsible for the entire situation. Based on his various statements, he still seems to honestly have no idea what he did wrong.
So, in other words, he did cooperate after receiving the C&D. And this, too, was somehow a mistake? You know, if a law make no sense, then you can't really expect everyone to flawlessly comply with it, let alone understand what it was they did wrong. :|
SagaDC wrote:And honestly, after all that he wasn't even punished all that severely. He was given a legal warning, and had to change the name of his game. I haven't seen anything to imply that InXile intends to take it any further then that.
True, if you accept the insane premise that these laws are not, then it'd be just another day at the office, I reckon. :)

(And I did think 'competitive gaming market' sounded a bit tautological, hence the question.)
(Also, I'm getting way too old to respond to multiple quotes like that.. :lol: )
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by SagaDC » May 7th, 2016, 5:39 pm

dorkboy wrote:No, but it does somewhat rule out the idea that they were acting in bad faith.
I never really assumed that he was acting in bad faith. But like I said, I'm not sure if pleading ignorance should automatically grant one immunity to potential repercussions.
dorkboy wrote:The curious thing about this is even with the change of title this problem isn't solved for existing videos, and if this problem had been solved the brand confusion would stop even if the title of the game remained unchanged. I can definitely see how this would be annoying for inXile, though.
Apparently it can actually be fixed, though I'm not sure of what the process is. The original videos for Wasteland Kings (now Nuclear Throne), for example, do not show the incorrect information. After the name of the game was changed, the Youtube categorization was changed to show that the game was Nuclear Throne even if "Wasteland Kings" was still part of the video title.

Likewise, Wasteland Angels is a very small-scale indie game, but their videos also have correct categorization showing that the footage is from "Wasteland Angels".
dorkboy wrote:Would you change the title of your game for free if you honestly thought you had every right to use that title? Just because some developer with a different game with a similar title told you to do so? [Yes, that is mere speculation on my part..]
Speculation is fine. InXile itself is pretty mum on the details, so I'm doing a lot of speculating myself, based primarily on what I've observed over the past few days.

It's fair for Dave Games to have been hesitant, at least at first. But even a quick check of the trademark database at that point would have been enough to verify that he might be on shaky legal ground. There are a lot of appropriate things that he could have done at that point, but requesting money was probably one of the worst. Even if he wasn't operating in bad faith, requesting money when he's possibly in the wrong will suddenly make it seem like he's operating in bad faith.

After all, a lot of people are suddenly accusing InXile of being greedy for defending their trademark. But the fact of the matter is that the only person who was seeking money in this dispute was Dan Games.
dorkboy wrote:So, in other words, he did cooperate after receiving the C&D. And this, too, was somehow a mistake?
No, cooperating with the C&D wasn't a mistake. But publicizing the whole incident afterwards was definitely a mistake. It's essentially creating a public record of his mistakes for schmucks like me to over-analyze. :)

From looking at his store page, the only actual benefit he's received from publicizing the situation is a little bit of misguided sympathy, and a very small number of extra sales for his game (about three?).
dorkboy wrote:True, if you accept the insane premise that these laws are not, then it'd be just another day at the office, I reckon. :)
Honestly, I think that's the real crux of the problem. A lot of people just don't like the way that the Trademark system works, and they're misdirecting that at InXile. The system is absolutely flawed, but businesses still need to operate within the system if they want to do business in any country that uses that system. There are certainly entities that abuse the system to their own advantage (such as the infamous Tim Langdell of Edge Gaming), but InXile isn't one of them.

All InXile is guilty of is trying to defend their trademark against another product that was legitimately, if unintentionally, causing brand confusion. And honestly, based on what I've seen, they tried to handle it with kid gloves (relatively speaking).
dorkboy wrote:(And I did think 'competitive gaming market' sounded a bit tautological, hence the question.)
Sure, that's fair. In my mind, you've entered a "competitive" market once you're actually trying to make money. If someone's making a project simply for the fun or passion of it, and releasing it for free, then I think people are a lot more forgiving about mistakes. Once someone is actually charging money for their project, however, both consumers and other businesses are presumably going to hold them to a higher standard.
dorkboy wrote:(Also, I'm getting way too old to respond to multiple quotes like that.. :lol: )
Sorry, force of habit. I like breaking up my posts into little bite-sized pieces for ease of reading, and to make it clear what part of someone's post I'm responding to. You should never feel like you have to reply to every single part of my posts. Just pick and choose whatever you want to respond to, and quote that part so I know what you're responding to. :)
Last edited by SagaDC on May 7th, 2016, 9:33 pm, edited 1 time in total.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Firkraag » May 7th, 2016, 6:54 pm

SagaDC wrote:
dorkboy wrote:So, to recap - they "have no choice" but to prepare for a hypothetical battle they probably wouldn't win, by attacking parties that pose no real threat. Do I want to support to that kind of pointlessly destructive behaviour? No, I don't.
I'm just guessing, but I suspect that InXile ended up approaching the creator of Alien Wasteland because there was already an issue of brand confusion. Just look at any Youtube video about Alien Wasteland, and you'll find that every one of them is incorrectly labeled as part of the Wasteland franchise - even the ones on the developer's official Youtube channel. This is a bad thing, especially since many of the videos are extremely negative in tone.

It's due in part to Youtube's sloppy auto-sorting software, but it wouldn't have happened if Alien Wasteland didn't have such a similar title. Even if they got it fixed with Youtube, there's no guarantee that someone or something else wouldn't end up getting mixed up in the future because of the similarity between the titles.
Interesting point. Noted.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by IHaveHugeNick » May 7th, 2016, 11:27 pm

dorkboy wrote: No, I wasn't attempting to discuss legal matters, I was attempting to point out that I have a choice in terms of what type of behaviours and systems I lend my support to
Oh you do have a choice. It's just a matter of whether you're trying to make an informed choice, or an all aboard the outrage train choice.
dorkboy wrote: Whose lawyers in this case? And are you telling me the apparent relativity of The Law vis-a-vis Bethesda and Devdan is not a case of who can fuck whom?
Cause I don't buy it.
You'd be right, it's definitely that.
dorkboy wrote: Don't get me wrong, I can appreciate that inXile want to protect their self interests. But I'm hoping they'll continue doing so in a way that doesn't suck.
Well they tried, didn't they? C&D only happened because they were dealing with evidently not the brightest person on the planet. Can't exactly fault them for that. That fella shouldn't even attempt to run his own business if he thought demanding money was a good idea.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 8th, 2016, 4:26 am

@SagaDC
I guess I don't really agree about the disclosure being a mistake, as I think healthy public discussion (and awareness) about IP law is a good thing.

@IHaveHugeNick
You're right, they did try, and I'd be remiss not to take the half-fullness of the glass into consideration, as well as giving inXile the benefit of some doubt (no matter how much I dislike it when people get all lawyered up for unclear reasons).
I don't, for instance, know for how long they tried, and how much Devdan was asking - 5 thousand and 5 trillion signifying vastly different attitudes, regardless of the legal nature of the request.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by SagaDC » May 8th, 2016, 6:39 am

dorkboy wrote:@SagaDC
I guess I don't really agree about the disclosure being a mistake, as I think healthy public discussion (and awareness) about IP law is a good thing.
Oh, of course. I do like a good discussion, especially about something as murky about trademark law. The problem here is that most people aren't actually talking about IP law, they're just pointing the finger and screaming bloody murder.

Devdan's public announcements aren't really intended to drum up discussion about IP law, they're intended to garner sympathy, while doing nothing to actually deny anything he might have done wrong. I mean, in his last post about it, he even mentions how he "had to" send InXile a list of other games using the word Wasteland in the title. I find it doubtful that he was somehow forced to do this, and far more likely that he was throwing other people under the bus in an effort to save himself.
dorkboy wrote:@IHaveHugeNick
You're right, they did try, and I'd be remiss not to take the half-fullness of the glass into consideration, as well as giving inXile the benefit of some doubt (no matter how much I dislike it when people get all lawyered up for unclear reasons).
I don't, for instance, know for how long they tried, and how much Devdan was asking - 5 thousand and 5 trillion signifying vastly different attitudes, regardless of the legal nature of the request.
I know this wasn't directed at me, but I do have some quick notes on it. InXile is unlikely to ever announce specifics, but Devdan chattered a bit about it in his last couple of posts. He mentions that he "calmly explained things through long emails" and "spent a lot of time writing emails" before he "finally ended up receiving a cease and desist letter". That seems to imply that the email conversation went on for a decent amount of time.

He only mentions asking for money in his more recent post, likely because of InXile's statement about it after Devdan's first blog post (which didn't mention it at all). Devdan doesn't specify how much he asked for, but instead vaguely states: "the compensation I asked is absolutely nothing compared to the millions of US dollars InXile has earned through their kickstarter campaigns and sales on Steam". That doesn't really imply that it was a low amount, given that the only qualifier he uses is that it was a smaller amount than "millions of US dollars".

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 8th, 2016, 8:18 am

@SagaDC
Ok, "IP law" may have been an inadequate shorthand for the entire range of the discussion(s) taking place as a result of the disclosure.
I don't think I ever made any qualifier as to Devdan's intentions with regards to those announcements, but that shouldn't prevent you from arguing your opinion within such a framework, of course. :)

Well, at least we've ruled out 5 trillion, if nothing else. :lol:
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by SagaDC » May 8th, 2016, 9:36 am

dorkboy wrote:@SagaDC
Ok, "IP law" may have been an inadequate shorthand for the entire range of the discussion(s) taking place as a result of the disclosure.
Of course. Honestly, I'm not even referring to you in that regard, but rather to some of the discussions I'm seeing elsewhere. There are a lot of folks who just don't like the way that Trademarks work, and are using InXile as a scapegoat so that they can vent. It's a lot of misdirected anger, and I'll admit that I find it a little bothersome.

In comparison, you've been perfectly reasonable.
dorkboy wrote:I don't think I ever made any qualifier as to Devdan's intentions with regards to those announcements, but that shouldn't prevent you from arguing your opinion within such a framework, of course. :)
True, you didn't. I was just trying to add some perspective, based on my own observations. I just wanted to highlight that even Devdan himself had basically corroborated with InXile's version of their interactions, though he obviously tried to word it in ways that made him seem more sympathetic.

I still find it very telling that Dan didn't mention asking for money when he made his initial public statement, and only brought it up after InXile mentioned it - and even then, he didn't specify how much he asked for. He only qualified that it was less than "millions" of dollars, which is a very vague thing to say, given that he was otherwise eager to spill all sorts of information about his interaction with InXile.

Overall, we really have very little to go on. The first anyone heard of this situation was Dan Games going public with it last week. Then InXile followed up with two official statements, followed by Dan Games issuing one more statement after that (in which he sort-of but not-really refuted InXile's statements). Beyond that, there's just a lot of cluttered misinformation floating around, especially from some of the low-tier gaming journalists. Well, that and speculation from folks like us. :P

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 8th, 2016, 1:37 pm

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by SagaDC » May 8th, 2016, 1:56 pm

Yup, that's Devdan's second statement. He also posted it on Steam. I quoted little bits and pieces of it in some of my previous posts. :)

Honestly, one of the strangest things about this whole situation is that, while a number of people are condemning InXile, very few people are actually trying to defend or support Devdan. There are folks paying lip service here and there, sending him fleeting sympathies, but it's only actually translated into a small number of extra sales (six?) for his game. At this rate, given another couple of weeks, people will have forgotten about him entirely.

It really does seem to reinforce the idea that, for many people, this is more about the "principle of the thing" rather than about the specific players involved.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by IHaveHugeNick » May 8th, 2016, 7:41 pm

Yeah, that statement is rather amusing. Don't get me wrong, it's certainly an unfortunate situation for him, but the guy is as dumb as a box of hammers.

This in particular made me facepalm:
Compensation I asked is absolutely nothing compared to the millions of US dollars inXile has earned through their kickstarter campaigns
So he wants to be paid from fan given money? Wow.

I was a little pissed off when this whole drama blew up, but the more this guy talks the less sympathy I have for him.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 8th, 2016, 9:44 pm

You guys can have whatever opinions you like, and defend whatever bullshit you find yourselves compelled to, but I still don't think waving a lawyer card at someone is a particularly nice thing to do.
And it is undeniably inXile's lawyer this time.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by kilobug » May 9th, 2016, 12:50 am

dorkboy wrote:but I still don't think waving a lawyer card at someone is a particularly nice thing to do.
No, it is not a very nice thing, but when you tried to do it the nice way, the other one was totally uncooperative and you're in your right, sometimes you need to be a less nice, and waving a lawyer card is part of it - or people should never, ever use lawyers to enforce their rights ?

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Firkraag » May 9th, 2016, 1:24 am

So, let me get this straight.

Youtube misidentified a whole bunch of "Alien Wasteland" video, allegedly creating a case of brand confusion. I get it looks bad from law's standpoint, but I still have to see people, that might confuse one with another, just how many of those people can exist.

And inXile contated him to fix this? Or inXile team started with asking him to change title, without no explanation whatsoever?

I mean, if he was confronted with irrefutable "see, there's brand confusion. You need to fix this." - "what brand confusion, I don't see." - "N % of Youtube videos of Alien Wasteland is mislabeled by Youtube. -Short explanation why it's bad.- Fix this. Quick."

If he was presented with solid proof of brand confusion and instead of trying to assure you he'll do anything to fix this, to keeping his game's title he came up with idea yo milk some money out of it, it's very, very bad.

If inXile just informed him, that there is some Trademark infringement and he should change name of his title, that's different.

Also, I tried to search "Wasteland" and "Alien Wasteland" on Youtube and yet to see any confusion. "Alien Wasteland" doesn't refer to inXile and "Wasteland 2" at any point or my basic internet skills is not enough to figure out, what I'm looking at.

If I search for "Wasteland" though, I see there is 40/40/10 split between "Wasteland 2", "Fallout 4" and some random videos (American Wasteland came up once). Someone could even say, that inXile has a lot more to worry with Wasteland Workshop, but all of those videos are labeled as, Fallout 4, so not much fuel for confusion here either.

If anything, inXile lost a lot more by Davdan simply mentioning it the way he did, than Youtube ever could. You're right to say that this game was probably on it's way into oblivion. And Dan Games didn't even got anything out of it.

I'm not saying, inXile shouldn't act to protect what they thought was Trademark infringement, but apparently - they ended shooting arrow in their own knee - incident, that caused this was not as bad, as the fallout.
For an Indie dev, this is one hell of a black PR sorcery.

If inXile could manage to present a proof of Davdan acting on bad faith (asking for money is already a giveaway, but still fleeting "he said, no he said"), that will be their saving card.

The greatest problem, that I see now is that there can be no proof, that Devdan acted maliciously and inXile had a bad case of negotiation failure. From here best way is either let the water to go under bridge and hope, that damage wasn't too big or (if possible, manageable and worthwhile) to come up with a shared statement with negotiation logs thrown in, to prove that neither side was actively malicious and Internet are chasing nonexistant black cats in dark room.

P.S. I still think, that brand confusion case should be proven. Not just assumed.
I hope, that something good can come out of all this and someone will get interested in revisiting Trademark laws. Common words shouldn't be locked in IP owners clutches. If we survived dozens of "Alien(s) somethings" games - we can survive dozens of "Wasteland" games. Or Sagas. Or Scrolls. As long as it's not malicious copycats, which should be dealt with.
I guess, that it is much easier for me to believe that someone at inXile made an honest mistake, rather than created this situation voluntarily.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by kilobug » May 9th, 2016, 3:01 am

Firkraag wrote:P.S. I still think, that brand confusion case should be proven. Not just assumed.
[...] Common words shouldn't be locked in IP owners clutches.
But that's not how the law currently work - I mostly agree with you on principle, common words shouldn't be trademarks, and brand confusion should be proven. But that's not how trademark law works for now, and it's not inXile's purpose to change the laws, inXile is a business making games, operating within the current legal framework.

The only thing we can hope from inXile, a "nice" business not an aggressive and bullying one, is to try to use soft power, nice demands and win-win agreements when it's possible, resorting to lawyers and C&D only when that failed - and it seems it is what they did.

So while in a perfect world that situation wouldn't have existed because trademark laws would work differently, in the current world inXile behaved in a civilized manner, first trying to solve the problem nicely and only when it failed moved to using the fact that they are in their legal rights through the lawyer card.

Perhaps they shouldn't have done it because of the risk of bad PR, but it's also an issue when you can't defend your rights because of the fear some people will yell "blood !" with only partial knowledge of what happened if you do.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Stuurminator » May 9th, 2016, 5:34 pm

Firkraag wrote:Also, I tried to search "Wasteland" and "Alien Wasteland" on Youtube and yet to see any confusion. "Alien Wasteland" doesn't refer to inXile and "Wasteland 2" at any point or my basic internet skills is not enough to figure out, what I'm looking at.

(...)

P.S. I still think, that brand confusion case should be proven. Not just assumed.
This seems pertinent.

Image

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Drool » May 10th, 2016, 11:58 am

I'm just trying to figure out that image. Cheesy taco with marshmallow teeth?
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dflatline » May 10th, 2016, 7:22 pm

Seems to finally be dawning on some folks that people with more money than you are never your friends.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Stuurminator » May 11th, 2016, 11:10 am

Drool wrote:I'm just trying to figure out that image. Cheesy taco with marshmallow teeth?
It's an alien's jaws clipping through the camera, while the alien itself clips through several red-and-yellow plastic gas cans; the player had tried to drop their one gas can, but it stayed in his hands while he dropped a new one on the ground. Objects rotate, so all the copies ended up making a pretty little red-and-yellow carousel with no collision physics.

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