A dispute between Victura and Secret Mode came to a head in August 2026, when both parties’ applications for mandatory interim injunctions for full control over the development and publishing of “Six Days in Fallujah” were dismissed.
Each party’s respective ability to use the source code to continue developing the game, and its value to Victura, featured heavily in the Court’s decision.
The development of “Six Days in Fallujah”
“Six Days in Fallujah” is a video game based on real-world events that took place during military action in Fallujah, Iraq, in 2004, which Victura Inc has been developing for the past eight years at a cost of around $50 million (the Game). In October 2025, Victura signed a publishing agreement with Secret Mode Limited and Six Days Holdings Limited (together, the Publisher), under which the Publisher agreed to provide up to $8 million in staged development advances and publish the game, in return for certain publishing rights and receiving a revenue share once the game was completed (the Publishing Agreement). Victura was required to deliver milestones to the Publisher for review, and the Publishing Agreement contained step-in rights allowing the Publisher to take full or partial control of the Game’s development if it found Victura had not addressed the deficiencies of a given milestone after two resubmissions. These step-in rights would (i) entitle the Publisher to develop and publish the Game and (ii) require Victura to share various assets including the Game’s source code.
How did this dispute arise?
Between 31 January 2026 and April 2026, the Publisher rejected Milestone 0.6, both initially and following Victura’s two attempts at resubmission, citing issues relating to “stuck AI” (whereby characters would sometimes implausibly stand motionless, detracting from the gaming experience). On that basis, the Publisher argued it was entitled to exercise its step-in rights under the Publishing Agreement, and that these would take effect on 1 May 2026.
Victura disagreed. It argued the Publisher’s step-in rights were not validly exercised and that the Publisher had intentionally pre-determined its rejection of Milestone 0.6 in order to acquire access to Victura’s source code, which included proprietary and confidential technology for the procedural generation of building layouts. Victura also argued that it had terminated the Publishing Agreement on 29 April 2026.
What were the parties seeking?
Both parties issued claims and – somewhat unusually for this type of dispute – brought applications for interim injunctions. These were heard on 29 and 30 July 2026, to determine whether either Victura or the Publisher should be entitled to the exclusive right to both develop and publish the Game in the period between now and trial:
- The Publisher applied for an interim injunction requiring Victura to provide certain material to it including source code so that the Publisher could exercise its step-in rights in the period up to trial of the claims on 21 May 2026.
- On 29 May 2026, Victura applied for an injunction restraining the Publisher from any misuse of Victura’s confidential information and requiring the Publisher to give publishing control of the Game to Victura in the period until trial. Victura also sought an injunction prohibiting the Publisher from taking any further exercise of step-in rights, and requiring the Publisher not to dissipate revenues received from sales of the Game and to hold those in a separate account.
Both Victura and the Publisher accepted that they would need to offer a cross-undertaking in damages to obtain the relief sought.
The High Court’s decision
The High Court refused both parties’ applications, holding that the contractual status quo in terms of the parties’ respective control over the development and publishing of the Game should remain in place. It cited a number of reasons:
- It found that Victura had the expertise to take full control over the development and publishing the Game until trial, but not the financial resources to do so (nor to meet claims under its cross-undertaking in damages).
- On the other hand, although the Publisher (i) had the expertise required to develop and publish the Game and (ii) had sufficient financial resources to do so, there was a real risk that it’s taking over the Game’s development would cause a material delay to its launch. The Publisher (or the third-party developer it engaged) would need time to get up to speed and there was a risk that, in this period, the Game could become stale, and the delay might impede the launch. The Court found that, if the Publisher’s claim failed and Victura should, with hindsight, have been free to develop and publish the Game as it saw fit, damages under the Publisher’s cross-undertaking would not be an adequate remedy.
- The Court also found that, given Victura’s argument that the Publisher deliberately rejected Milestone 0.6 in order to get access to Victura’s source code has not yet been tested, there was a risk that giving the Publisher the source code (which Victura had spent over $50 million developing) would cause Victura irreparable harm. The Court found that this risk was not sufficiently mitigated by the possibility of the Publisher giving an undertaking not to use the source code for purposes other than developing and publishing the Game.
- More broadly, the Court considered that if either party was given the ability to develop and publish the Game, there may be real scope in the future for the other to complain about that party’s delay and/or poor-quality work impacting the Game’s sales, resulting in further claims under the cross-undertaking in damages. Conversely, refusing the parties’ applications may increase the chance of them resolving their dispute by negotiation, potentially by engaging in mediation.
Observations
Cases like this are rare. The majority of disputes between developers and publishers settle long before reaching the courts, and certainly before parties commit the time and expense of applying for interim relief ahead of trial. The fact that both parties sought interim relief at the same time is rarer still and made the Court’s job of applying the ‘balance of convenience’ test an intricate process, requiring a detailed understanding of both parties’ financial positions, their roles in the arrangement and their future capabilities.
In the end, the Court opted to maintain the status quo. The practical effect is that the parties’ rights and obligations under the Publishing Agreement remain in place until trial, leaving the questions of whether the step-in rights were validly exercised, and whether Victura validly terminated the Publishing Agreement, to be determined at that stage (if no settlement is reached before then)
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