[ANALYSIS] Nexon gains legal ground in dispute over Dark and Darker

By Nam Hyun-woo

The legal battle between gaming giant Nexon and midsize studio Ironmace over the latter's PC adventure game Dark and Darker appears to be tilting in favor of Nexon, with a major gaming platform delisting the title after a court ruling in Korea.

The Feb. 13 ruling was interpreted among game fans as an equivocal decision, as it found Dark and Darker did not infringe Nexon’s copyright but still ordered Ironmace to pay compensation. However, industry officials say it is favorable to Nexon because the full sentencing of the ruling stresses that information used in developing Dark and Darker is a trade secret that belongs to Nexon.

Ironmace wrote on X on March 6 that the Epic Games Store delisted Dark and Darker, saying “this decision appears to be based on claims made by the opposing party in the ongoing legal dispute.”

In the post, the company said that Dark and Darker: Legendary Status, which is a paid upgraded version, was still available for purchase, though it was no longer searchable on the Epic Games Store as of Sunday. Both versions remained available on Steam.

The legal dispute refers to the Feb. 13 Seoul Central District Court's ruling, which turned down Nexon’s claim that Dark and Darker infringed the copyright of its project called P3, but ordered Ironmace to pay 8.5 billion won ($5.87 million) in damages.

The battle dates back to 2021 when Nexon filed a complaint against Ironmace, claiming that a former leader of the P3 project team stole source code and data and used the materials to establish Ironmace and create Dark and Darker.

According to the sentencing, the leader, surnamed Choi, had been working on the P3 project at Nexon since August 2020, but was dismissed on July 21, 2021, after he transferred a total of 2,747 build files from the P3 project to his personal servers between April and June that year.

The court also recognized that Choi recommended P3 team members to "move to another company" from June 23 to 25 that year, before his dismissal.

Nexon revealed the project on Aug. 5, 2021, during a press event, and initially planned to launch P3 in early access in November 2021, but ultimately decided to reallocate its resources and workforce to another project on Aug. 18, 2021.

Choi began developing Dark and Darker in September 2021 and set up Ironmace in October 2021. The company first released the title in August 2023, and began selling it through major platforms in June 2024.

While Nexon has claimed that Dark and Darker is based on P3 data and infringes the copyright, Ironmace has argued that Dark and Darker was based on Choi’s own idea, P3 was not released as an actual game, the transferred data was not used for Dark and Darker at all and the overall concept and rules that formed the basis of the game are not considered trade secrets.

In the ruling, the court recognized that Nexon has the copyright for P3 because “it was developed and planned to be published by Nexon,” but Dark and Darker does not infringe P3’s copyright because factors that form the two games are not “practically similar” or “can be found in existing games.”

The court also noted that the P3 files were not considered a trade secret, as there was insufficient evidence to verify their specific contents and more than 2,600 of the over 11,000 total P3 files had been made public.

However, the court emphasized that Dark and Darker infringed on P3’s trade secrets related to its "information," including details such as the game being a battle royale with elements of an extraction shooter, the dungeon featuring a multilayered inverted pyramid structure and several other factors related to battles, farming, character classes and the game's overall purpose.

“The defendants (Ironmace) argue that the trade secret information in this case was created based on the defendant's personal knowledge and experience, and therefore belongs to the defendant,” the sentencing reads.

“The court recognizes that the defendant (Choi) has written memos on ideas about several elements of the game between 2017 and 2018, but the memo only lists elements sporadically, while the specific content and combinations are not included … Given that trade secret information is the result of accumulated processes of employee research, actual implementation and evaluation (at Nexon), it is reasonable to conclude that this information belongs to the plaintiff (Nexon).”

The court continued that Nexon "made a significant amount of efforts" to keep P3 information as a trade secret, because "the market potential for a game will significantly diminish, when a competitor releases a similar or identical game first."

The court noted that the development of Dark and Darker proceeded without initial planning phase, which should be an integral part of the early stages of game development, and Ironmace was "able to save costs and time required in the initial planning phase by using P3 information."

Since Nexon plans to appeal the case to the high court for greater compensation, the impact of the case is expected to increase. While ordering the 8.5 billion won in compensation, the court noted that it fully accepted Nexon’s demand and that the actual damages surpassed 8.5 billion, because Ironmace’s game revenue was greatly influenced by shortening the development period of Dark and Darker. The court assumed that Ironmace’s operating profit from August 2023 to September last year stood at 29 billion won.

Meanwhile, Ironmace highlighted in a statement that the court's ruling found that Dark and Darker did not infringe P3's copyright, citing the court's recognition that a number of in-game factors that Nexon claimed to be similar with that of Dark and Darker are "not practically similar" or "not realized as an actual outcome."

Ironmace said that extraction shooter games like Escape from Tarkov were already popular when the P3 project began, so there was a possibility that anyone could develop a game by selecting, arranging, and combining the characteristic elements of this genre with those of other genres.

"We respect the court's recognition that Dark and Darker is an original creation independently developed by Ironmace," the company said.

Industry officials said the ruling bears significance because it recognized intangible information related to unpublished games as constituting a trade secret.

In recent years, the Korean game industry has been staging similar legal battles on titles developed by former employees. Police on Feb. 26 visited Dynamis One, which had been set up by former Nexon developers, to search for and confiscate evidence, on allegations that the developers stole assets and resources of an unpublished project.

Separately, NCSOFT is engaged in a legal battle with Kakao Games over the similarities between its Lineage 2M and Kakao Games' ArcheAge War.