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The wild story behind a free Xbox One game Microsoft announced at E3

When Microsoft announced the last batch of Xbox 360 titles made compatible with Xbox One, one in particular stood out — and not just because it’s free.

Too Human.

Yes, Too Human, the action RPG (it was supposed to be the first of a trilogy!) where Norse gods are actually cybernetically enhanced humans, or something. The game was noteworthy for many other things, too, all of them bad. It all starts with a decade of development hell and ends with a lawsuit against Epic Games, which profoundly backfired on defunct maker Silicon Knights and its volatile boss, Denis Dyack. Now the epilogue finds the game reanimated after being sued into oblivion, and given away for free.

In between, Too Human must have set some kind of record for being an exclusive project for all three platform makers, across three consecutive console generations — beginning as a PlayStation game, moving to Nintendo’s GameCube and ultimately an Xbox 360 exclusive published by Microsoft Game Studios (now known as Xbox Game Studios).

So forget being free, that part is easily explainable by the fact Microsoft owns it. The game’s return to any marketplace is what’s inexplicable.

Silicon Knights sued Epic in 2007, a year before Too Human launched. The lawsuit made the convoluted allegation that Too Human’s development was prolonged because Epic wasn’t properly supporting the Unreal Engine 3 that Silicon Knights had been using. The studio further claimed that Epic was instead directing all of its Unreal revenue and development effort into Gears of War, which Silicon Knights called a direct competitor to Too Human.

Too Human released in August 2008 and was presently crapped upon by everyone, for issues like repetitive gameplay, a strange use of the right analog stick in combat and even an unskippable, way-too-long death sequence. Mostly, the game did not live up to a decade’s worth of development or hype from a voluble auteur such as Dyack.

Epic later countersued Silicon Knights, which had ended its relationship with Epic as it continued development on Too Human. Epic said the game was still substantially developed with Unreal 3, even though Silicon Knights wasn’t paying for it and had stripped out all mention of the engine and Epic.

A federal court agreed that Too Human was an infringement of Epic’s copyrights and ruled in Epic’s favor. In the aftermath, a judge ordered all remaining physical copies of the game destroyed, and Too Human was wiped from the Xbox Marketplace in early 2013. A federal appeals court upheld all of these rulings in 2014 and Silicon Knights, following the even more disastrous X-Men: Destinywent bust in the interim.

We reached out to representatives of both Microsoft and Epic Games to ask what was up with that. Microsoft got back to us with a gracious non-reply:

Players are our priority. With the backward compatibility program, as with all our work at Xbox, we are always listening to gamers feedback and working to bring the games they want to Xbox. This is just one of the many examples of this philosophy coming to life.

Then Epic discreetly confirmed that they permitted Microsoft to release the game, but nothing further.

Too Human may be an infamous title, but it wasn’t a completely broken game. It Metacritic’d a 65, although given the grade inflation of the time, that’s as good as a zero today. Before it even launched, Dyack made matters worse by charging into NeoGAF to yell at people for not understanding his game. So the lawsuit against Epic, even if Silicon Knights alleged other developers had the same grumbling complaint about Epic’s Unreal 3 support, therefore looked like someone blaming failure on everyone but themselves.

After Silicon Knights cratered, Dyack then started a studio called Precursor Games, which attempted a spiritual successor to Silicon Knights’ Eternal Darkness. That project also ran afoul of Epic Games, which wanted to make sure the assets Precursor was using didn’t come from Silicon Knights, which was selling its assets in order to pay the $9 million judgment it owed Epic.

Shadow of the Eternals, which was supposed to launch for PC and Wii U, was ultimately canceled after getting just 10 percent of the backing it sought.

Anyway, that’s a roundabout way of saying “free game, run go get it.” Too Human may be worth picking up, if not for its enjoyability, then for the fact it was once wiped from existence, and now exists only at Epic Games’ pleasure.

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