February 20, 2004

Infinium Labs 'initiates legal action' against game news site

Author: Robin ' Roblimo' Miller

If you haven't heard of -- or have forgotten about -- Infinium Labs and their Phantom game system, don't feel bad. I wrote one story about them a number of months back. Hardware/gaming news site HardOCP wrote a much nastier one, and Slashdot linked to both stories. Since then I've paid almost no attention to this company. Then, yesterday, a PR person representing them invited me to attend a phone-in press conference during which Infinium Labs COO Kevin Bachus was going to say they had "initiated legal action" against a news Web site that had written nasty things about their company. The PR guy wouldn't tell me the name of the site, but I had a good idea which one it was.Sure enough, we were talking about HardOCP. The "legal action" turned out to be a lawyer-written threat letter, not a lawsuit, and the letter was dated February 19, 2004, even though the story that angered Infinium Labs ran back on September 17, 2003.

The letter, from the international law firm Morrison & Foerster LLP, said (in part):

We hereby demand that you immediately remove the Article and Infinium's proprietary images and marks from your website and the Internet, print a retraction of the Article, and cease and desist from disparaging Infinium Labs and its principals in any way, including, but not limited to, making distorted and misleading statements about them or repeating distorted and misleading statements made by others. Your activities may provide sufficient grounds for Infinium and Mr. Roberts to assert a number of business tort and other claims against you, including, without limitations, trade disparagement and trade libel, trademark infringement, tortious interference, and unfair business practices. Furthermore, your statements and use of Infinium's proprietary images were obviously published with the intent to tarnish Infinium's image and dilute the value of its name. Such conduct is actionable under federal law, Section 43(c) of the Lanham Act, 15 U.S.C. | 1125(c), and various state laws.

After you have taken down the Article and printed a retraction, Infinium would once again welcome an opportunity to participate in a call or in-person meeting with you to provide you and your writers with accurate and complete information about the company, its products and its management. We encourage you to pursue the truth, but in the alternative, Infinium is preparing to commence formal legal action against you within ten days of this letter to halt your continued publication of false and misleading information that is causing ongoing financial harm to Infinium.

I believe Infinium Labs is a wonderful company

Since I certainly wouldn't want to get a letter like that, let's state for the record that I think Infinium Labs is great, and that when its CEO, Tim Roberts, told me in person he had $25 million in venture capital behind him, and it later turned out he didn't, I must have misunderstood him.

I would also like to state for the record that at a later date, when Mr. Roberts and one of his associates told me -- again in person -- that they had signed up 12 game publishers for their Phantom.net service, and gradually backed down under further questioning until they only claimed a deal with one, I must have had wax in my ears or something. Mr. Roberts is a fine gentleman who owns a lovely home in the exclusive community of Longboat Key that is currently valued at $1,250,100 by the Sarasota County Property Appraiser. When a reporter hears a statement from a person of this caliber, and that person later corrects the reporter, it is obvious that the reporter is in error.

Unfortunately, HardOCP's owner and operator, Kyle Bennett, is a hardhead who does not agree with this point of view. Indeed, he sent me (and others) this statement about the legal threat(s) from Infinium Labs:

I have extended HardOCP.comâs pledge to correct any and all possible
inconsistencies or errors in our editorial entitled "Behind the Infinium
Phantom Console" (http://www.hardocp.com/article.html?art=NTEy) personally
to Timothy Roberts and Kevin Bachus of Infinium Labs and they have yet to
inform HardOCP.com of any information we presented as being not correct.
This courtesy was extended on September 17, 2003, the date the article was
published and has been extended several times since then with no reply ever
being received by HardOCP.com. It is my opinion that Infinium Labsâ only
interest is stifling HardOCP.com and our opinions. HardOCP.com still stands
by our thoughts and opinions put forth in our editorial and no amount of
legal badgering and frivolous lawsuits will change those opinions that we
have shared with our readers.

More than once during the phone-in press conference, Kevin Bachus called Bennett an "amateur." The above statement proves that Bachus knows what he is talking about. Aside from the obvious fact that no mere owner of a small-time Web site -- even one who owns a pricey Hummer, as Kyle does -- should ever question the word of a man who lives in a $1,250,100 house, Bennett received not only the lawyer-letter quoted above, but another, similar one from a firm called Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A. that is apparently representing Tim Roberts personally. No professional journalist would ever say anything negative -- even if it were true -- about a company and man represented by not one but two law firms, one of which has six names on its letterhead.

Being thoroughly cowed by this array of legal might, I will not now mention that a threatening letter from an attorney (or two or six or eight) is not exactly the same as "taking legal action" against someone, which is what the press conference was supposed to be about. Or perhaps I heard that phrase wrong, not only when Infinium's PR rep called to invite me to the press conference, but again when I called him after it was over to confirm those words.

One seasoned computer game industry observer who is privy to the Infinium vs. HardOCP situation told me he thought Infinium had "stopped behaving this way" since the company brought Bachus on board. After all, Bachus is a seasoned pro who was once Microsoft's product manager for DirectX, and is one of the foursome that talked Microsoft into launching the XBox. And in an interview with gamesindustry.biz published January 29, 2004, he said, "I plan to be working in this industry, hopefully at Infinium but if not then somewhere else, for a long time, and ultimately all I have is my credibility."

Infinium Labs has long had a credibility problem with the computer game press. Many reporters who cover the IT and computer gaming industry long ago stopped believing Infinium's claims that they would have this product or that service ready to launch by (fill in date here) because, time after time, heralded launch dates came and went (and receded into the distance) with no launch. Not even their heavily-publicized beta test took place as promised.

- Infinium's Phantom made #3 (scroll down) on the Wired News Vaporware Awards list for 2003.

- Back in August, 2003, a BroadbandReports.com article expressed doubts about the Phantom's viability.

- On January 21, 2004, The Sarasota Herald-Tribune ran a story questioning some of Infinium's financial practices.

- In October, 2003, an Infinium presentation underwhelmed members of the Orlando chapter of the International Game Developers Association

- In January, 2004, GameSpot noted that Infinium's Web site boasted of hookups with over 60 game publishers -- but removed the boast only a few hours later.

This is only a partial list of negative press notices Infinium has gotten. A complete list would take many hours to type. Obviously, HardOCP is not the only media outlet that has noticed differences between Infinium's claims and what actually seems to be happening with the company. HardOCP's only distinction is that its story talked not only about Infinium but also about Tim Roberts' personal background, which apparently angered Roberts to the point where he felt he had to react no matter what consequences his actions might have for his company.

I had a phone conversation with Tim Roberts not long after the HardOCP story ran, during which he threatened to sue Kyle Bennett over it -- and to sue Slashdot for linking to it -- and I advised him, as a friend and fellow Suncoast resident, that this kind of suit would be foolish; that the only kind of attention it would get him would be negative; that even small, amateurish news Web sites often get legal support from large journalists' organizations that have skilled First Amendment lawyers on staff, not to mention members in all branches of the media who tend to jump on that kind of story hard and fast, and are almost never on the side of the party that sues the journalist.

During that phone conversation, and again during a later meeting at Infinium's offices -- they finally rented space in a downtown Sarasota highrise, a good while after they started claiming they had a downtown office -- Roberts blamed HardOCP for killing a $25 million investment in his company. This was, it turned out, the same $25 million he had previously told me he already had in hand.

Of course, I may have misunderstood all that. Maybe there was $25 million somewhere. Or maybe there wasn't and I just thought there was. Yeah. That's it. I misunderstood. And all those notes I took, for the story I never wrote, are probably wrong.

I didn't write that story because other, more important matters upstaged it. I wrote this one, today, only because the PR person's talk of "legal action" intrigued me, and because I wondered whether Slashdot -- hence OSDN (which also owns NewsForge) -- would be included in it. But in the end the so-called "legal action" turned out to be nothing but vaporware; lawyers fire off nasty letters on behalf of clients all the time, and no journalist worth his or her salt hasn't been threatened with a lawsuit at least once or twice.

I'm not sure I'll write about Infinium Labs again. I simply don't care enough about this company or its people to want to do the amount of investigative work it would take to check and double-check all statements they make, and I feel this is what I would have to do in order to cover their activities properly.

Think: If I fail to verify every single statement made by Infinium personnel, I might accidentally write something that would "tarnish Infinium's image and dilute the value of its name," and that would be simply awful, wouldn't it?


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