The Ur-Quan Masters Discussion Forum

The Ur-Quan Masters Re-Release => General UQM Discussion => Topic started by: Elestan on July 18, 2018, 06:45:45 am



Title: Stardock Litigation Discussion
Post by: Elestan on July 18, 2018, 06:45:45 am
I'm starting a new thread for this, because the prior one (http://forum.uqm.stack.nl/index.php?topic=7015) was getting ridiculously long and somewhat sidetracked, and the release of the final amended complaints is likely to generate a fair amount of additional discussion.

Stardock and P&F have released their presumably final amended Complaint (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.51.0.pdf) and Countercomplaint (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.50.0.pdf).  Many thanks to Yazman for providing me copies.  I've only had time to give them each a quick read, so these thoughts are only preliminary, and mostly only focus on things that are new in these revisions; I'll do a more thorough read in due time.  I'll also repeat the usual disclaimer:  I'm not a lawyer, so anyone who takes this as legal advice is a moron.  [...twit.  jerk.  dodo.  etc.]

I'll headline with the point of greatest interest to this community:  In ¶155i, Stardock requests that the Court "Preliminarily and permanently enjoin Reiche and Ford and all persons acting in concert with them, or purporting to act on their behalf or in active concert or in participation with them [...] from using [...] the UR-QUAN MASTERS Mark."  I view this as essentially taking the UQM community hostage; if this community is too closely associated with P&F, then if P&F lose the argument at the preliminary injunction stage, Stardock could use this injunction to shut the UQM project down.  But if this community is not closely associated enough with P&F, then P&F might not have the standing to argue that UQM's use of the names weakened Stardock's common-law trademarks.

So if there was any doubt about the gloves coming off, that doubt has been dispelled.  Some of the other major points from Stardock's complaint include:

* In ¶12, Stardock is now claiming directly that any other authors involved owned their contributions individually.  There's no mention of the concept of a joint work copyright, but they are pretty clearly trying to cast Paul as just another contractor who contributed to a game that Accolade developed and published.

* In ¶20-24, I think we finally see the loophole in the 1988 agreement that Stardock is trying to leverage, and it revolves around the games' manuals.  Their argument seems to be that:

** The manual is a part of the game's packaging and marketing.
** Accolade paid for the art used in the manual, and therefore owns it.
** All of the aliens and their ships appear in the manual.
** ¶11.4 of the 1988 agreement says that anything in the packaging that isn't personally copyrighted by Paul belongs to Accolade.
** ¶11.5 of the 1988 agreement says that any trademarks used in the marketing belongs to Accolade.
** Therefore, Accolade (and now Stardock) can claim a trademark on all of the names in the manual, and a copyright on all of the art in it, which they could presumably use as a basis for further derivative works.

But I think there are at least a few problems with this:

** First, I don't think a manual that isn't visible before purchase can count as being used for "marketing".
** Second, in ¶24 I think Stardock is misrepresenting Exhibit C.  That exhibit is a signed letter from Paul which has Accolade pay for the manual art.  Stardock is claiming that this shows that Accolade bought and owns the art, and the artist retained a license for self-promotion.  But the wording of the letter doesn't support that; it looks to me more like Accolade only bought a non-exclusive license to use the art for marketing, leaving the original artist full ownership.
** Finally, it seems contrary to the intent of the 1988 agreement for these rights to be "back doored" this way, and the addenda and subsequent correspondence suggest that Accolade and Atari did not believe they had the rights to use the alien and ship names and likenesses.  

Moving on...

* In ¶25 they claim that Addendum 3 ¶1.5 modified the original agreement to exclude trademarks from the "Reiche Intellectual Property".  But trying to say that 'trademarks' includes names is hard to square with language in that same paragraph specifically giving him the proprietary rights to the names.  I think the logical reading of this paragraph is that 'trademarks' was only intended to mean 'Star Control'.

* In ¶26, they make a bald claim that Atari acquired all of the secondary marks from Accolade, but don't offer any evidence to support it.

* In ¶34, they have a bit of slippery wording; claiming continuous use of the trademark since they acquired it, without drawing attention to the lack of use by their predecessors.

* In ¶61-63,93, they claim that the fact that Paul hasn't worked on the game during the litigation shows that he never intended to start work on it.  I think this claim is to try to refute an intent to use the "Ghosts of the Precursors" mark by Paul, but I can't believe that getting dragged into litigation wouldn't be considered good cause to have delayed that work.

* In ¶78 and Exhibit T, we find the basis for Brad's statements that Fred's initial copyright filing only covered the code.  That does appear to be the case, possibly because they did not yet have the copyright assignments for the artwork.  However the first filing has now been supplanted by the second, which has those assignments. so I think this only matters with respect to any copyright damages for GoG sales by Stardock between December and April.

* In ¶80, they claim that P&F submitted UQM code for their initial copyright registration.  If P&F tried to register the current UQM code, that could actually be an issue, as all of the other UQM contributors also have a copyright interest in it, but they could have gotten around that by submitting a checkout of the very first version, before the UQM team started working on it.  This also seems to be referring specifically to their first copyright submission, which was supplanted by their second; the complaint doesn't say much about what was in that second filing.

* In ¶81-85, Stardock latches on to the fact that Paul didn't get copyright assignments from his collaborators, and is claiming that this means that all of Paul's actions with regard to the Star Control franchise have been part of a deliberate fraud perpetuated against everyone else involved.  This is where I think Stardock is playing particularly dirty.  Since none of the other contributors are contesting Paul's copyright, and they were acknowledged in the games' credits, I don't see any reason to consider this more than a matter of sloppy paperwork.  But by trying to portray P&F as fraudsters, Stardock is trying to fabricate a justification for cancelling their copyright.

* In ¶86-88, they claim that Paul putting SC3 up on GoG was a violation of their copyright.

* In ¶90-91, they claim that P&F don't need the money, so their GoFundMe campaign is just a fraud on the public.  I'm wondering if this is actually a trap of some sort; if P&F try to dispute these claims, Stardock might have cause to bring P&F's finances into discovery, allowing Stardock to know just how much money they have left to fight the case.

* In ¶94a, they claim that P&F falsely represented themselves as the sole creators of Star Control II.  I don't recall them ever making that claim.

* In ¶155 x-xi, Stardock is now asking the court to completely invalidate Paul's copyrights and any trademarks he might have.

* One thing I did not find:  Any explanation for Brad's inflammatory email assertion last October that the 1988 agreement was still active (https://cdn.stardock.us/forums/0/0/1/03ae818b-816c-4874-8c8b-86629ba9af7d.png).  At this point, I presume that means they have concluded that those assertions were unsupportable.  They actually skip over that entire part of the chronology, presumably because showing that Brad made those statements would be unhelpful.

Okay, that does it for Stardock's complaint, and this post is long enough.  P&F's has many fewer changes, so reviewing it should be shorter.  I'll go over it in my next post.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 18, 2018, 07:14:24 am
Moving on to P&F's amended countercomplaint, it has a lot fewer changes than Stardock's.  Key points of interest include:

* In ¶41, they indicate that Atari had an IP evaluation in 2006 that stated that there had been no sales of Star Control since 2001.

* In ¶92, they note that Stardock renamed the old games on GoG to include the "Ur-Quan Masters" subtitle after the litigation started.

* In ¶101, they allege that Stardock has encouraged beta testers to create UQM ships in SC:O, and plans to put the entire SC2 starmap in the game.

* In ¶107 - 114, they raise the issue of Stardock's use of the SC2 aliens in SC:O.

* In ¶133, when you include their new claims about the SC2 aliens being used, they are now effectively asking for an injunction against SC:O's release.

* ¶163-169 are requesting a declaratory judgement prohibiting Stardock's new marks.

* ¶170-177 are where P&F take off the gloves; they are now alleging that Brad was intending to try to take the rights to their IP the whole time, and that his reassuring statements to them between 2013-2016 were deliberately fraudulent, designed to lull them into complacency so that they would continue to permit the games to be sold on GoG, thereby allowing Stardock to establish use in commerce for those trademarks.

It seems like this is their tactic to try to counter the reinvigoration of the "Star Control" trademark via the GoG sales.  While it will be interesting to see if they turn up anything in discovery, I haven't seen anything public to suggest that Brad was planning an IP takeover that far back.  I think they might have a stronger argument that Brad started making fraudulent claims last October, when he found out about GotP.  Brad's assertions about the 1988 agreement were pretty clearly false, and could certainly be read as a deliberate provocation.  However, that's probably too late to serve as a justification for excusing their tolerance of the sales.

* In ¶178, they now ask the court to cancel Stardock's new trademark apps/registrations, and bar them from registering any new marks from the old games.

Okay, that's all for the amended complaints.  I presume that there will be amended replies due sometime soon, but I haven't seen a scheduling order on the docket setting a deadline for them.  The next scheduled milestone is the close of discovery, on October 19.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 18, 2018, 08:56:22 am
Fred and Paul will likely win some of the claims it seems, and Stardock will win some of the others. It looks like Stardock will most likely get the SC trademark they bought from auction, which is fine because that's what they built their game around, but that Fred and Paul will likely get the IP to the story elements (eg races and ships), which is what the fan base wants.


Title: Re: Stardock Litigation Discussion
Post by: dss on July 18, 2018, 08:59:43 am
Thanks Elestan for the summary and your other posts, I feel somewhat better informed having read them.

Stardock's position is sounding more ludicrous than before. Mainly that manual bit, the gofundme, the lack of any claim to a licence agreement... If they continue in that direction is there a point where the judge may throw out their sillier claims?


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 18, 2018, 09:05:44 am
Thanks for the summary and your other posts, I feel somewhat better informed having read them.

Stardock's position is sounding more ludicrous than before. Mainly that manual bit, the gofundme, the lack of any claim to a licence agreement... If they continue in that direction is there a point where the judge may throw out their sillier claims?

A judge almost certainly wouldn't throw away their claims over how they act on discord or their forums, but the trademark office would likely be professional enough to see through any of the superficial arguments they present anyway. There's still a chance Stardock could win claims to the races apparently if they can argue that F&P never held the copywrite to them, even though it seems they still made final decisions on the story elements, but it's not in their favor. But, Stardock would almost certainly keep SC trademark, they've always had that regardless, many different people agree on that.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 18, 2018, 03:48:36 pm
Stardock's position is sounding more ludicrous than before. Mainly that manual bit, the gofundme, the lack of any claim to a licence agreement... If they continue in that direction is there a point where the judge may throw out their sillier claims?

Next March, at the dispositive motion hearing.  We could hear some legal argument before then if/when the parties decide to press for the preliminary injunctions they've requested.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on July 18, 2018, 07:31:03 pm
Thanks a lot for the summary. I'm gonna take a look at this myself when I'm not so busy.

A few initial reactions, based on what I know so far, and based on Elestan's summary:

- I am completely unsurprised to find Stardock ready to invalidate Paul and Fred's copyright. This absolutely would prevent them from creating a new game, under any name. (Whether they will successfully cancel the Copyright is another question). Paul and Fred would basically have to start over with a completely new story and new IP.

- There was always a good chance Stardock would try for an injunction. No one tries to Trademark something unless they plan on stopping other people from using it. No one should be surprised that Stardock wants the Court to back their exclusive rights over "Ur Quan Masters". (Whether they will succeed is still another question. And so, it's not a surprise that Paul and Fred are asking the court to kill Stardock's new Trademark applications.)

- Contractual interpretation always looks at a combination of things, including a comparison of different clauses in the agreement, and the conduct of the parties. "Trademarks" does mean multiple Trademarks, but the most sold explanation is that it means "Star Control", "Star Control 2" and "Star Control 3". Otherwise, you have a hard time reconciling that with the list of IP that Atari sold that only includes a single Trademark. Or the fact that Atari never shut down the Ur Quan Masters project, which would supposedly be infringing on all of Stardock's hypothetical alien Trademarks. Or the fact that the contract literally assigns those "names" to Paul and Fred, which at the very least, shows that Atari made no intent to possess them. Or the fact that Stardock now has to apply for said Trademarks that Atari didn't use for a decade.

- I'm curious to see these Copyright assignments. There's a big difference between an agreement that puts a 25-year old  handshake agreement in writing, versus a recent re-assignment.

- Keep in mind that Atari put SC1-3 on GoG. Paul and Fred asked to take them down. But when the three-way conversation happened, Paul and Fred told GoG to work out details with Atari. I'm only going off of the email thread, but considering it was Atari who tried to sell the games without Paul and Fred's authorization, it seems pretty ridiculous to tell the court that it was the other way around.

Stardock's demands are a pretty big stretch. But Stardock does have a chance at gaining some of these things by pure attrition. If they put enough issues up for dispute, and Paul and Fred run out of money before getting to court, Paul and Fred may potentially have to give in.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 18, 2018, 08:08:41 pm
- I am completely unsurprised to find Stardock ready to invalidate Paul and Fred's copyright. This absolutely would prevent them from creating a new game, under any name. (Whether they will successfully cancel the Copyright is another question). Paul and Fred would basically have to start over with a completely new story and new IP.

Both sides have overreacted in some ways and try to manipulate the public instead of coming to a reasonable conclusion. Fred & Paul aren't completely innocent because they did say negative things about Stardock publicly and even though they're attributed with creating all, they don't bother to correct their fans often.

However, I don't see that they claim to have created every single thing themselves in the first place, and it's uncommon for a creator to claim they did every piece of dirty work. They were in charge of making most of the decisions, wrote most of the story, and were generally trusted with all of creative content by the Accolade staff, much like how a creator employed by a network would be trusted with creating a TV series. Even if they didn't physically make everything themselves, which rarely happens except with indie projects, they are responsible for shaping the original game into what it was, so it still makes sense that they are the original creators of the game.

Stardock wants the trademark to Star Control, and they should be given that after all the work they've done, but all Fred & Paul want is the copywrite to the original work they were a part of, which many want for them and which Stardock doesn't even care about, so the solution should be a no-brainer but they get just as emotional about all of this as Elestan.


Title: Re: Stardock Litigation Discussion
Post by: Tas on July 18, 2018, 09:19:09 pm
* In ¶61-63,93, they claim that the fact that Paul hasn't worked on the game during the litigation shows that he never intended to start work on it.  I think this claim is to try to refute an intent to use the "Ghosts of the Precursors" mark by Paul, but I can't believe that getting dragged into litigation wouldn't be considered good cause to have delayed that work.

Elistan glosses over something that I think the fans on this page should find paticularly damning towards Paul and Fred.

these points come from the Discovery period in which Paul and Fred were tasked with supplying documentation of work done on their new game so as to disprove the Stardock claim that the timing of the announcement of GotP was not simply made only to negatively impact SC:O before their beta launched.

As of May of this year zero story or design elements or productive work has been done on GotP.

Elistan is far far more forgiving than he should be.   If GotP was truly the passion project that Paul and Fred claim it to be, they should have had those elements designed in their free time YEARS ago.      That they had nothing, and still have nothing is insulting.

The fans here at UQM have spent more energy on SC than Paul and Fred have.         

I'm no fan of what SD has done with their lawsuit, but honestly Paul and Fred brought it on themselves.   


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 18, 2018, 09:23:47 pm
* In ¶61-63,93, they claim that the fact that Paul hasn't worked on the game during the litigation shows that he never intended to start work on it.  I think this claim is to try to refute an intent to use the "Ghosts of the Precursors" mark by Paul, but I can't believe that getting dragged into litigation wouldn't be considered good cause to have delayed that work.
We found out about Ghost of the Precursors not too long ago, just in 2017. It is fair to point out that Fred and Paul hay have only announced that as a response to Stardock. But, that point is moot because there is 20 years of evidence of Paul and Fred telling fans that they really want to make their own UQM-based game but that circumstances for it weren't favorable, and it's really the art and creative assets that matter for Paul and Fred, not the "Star Control" trademark.


Title: Re: Stardock Litigation Discussion
Post by: Tas on July 18, 2018, 09:39:19 pm
If that were really the case answer me this...

Why do they not have a story plan or game design elements already made?   They told to the Judge they have none.
if the Trademark was not valuable to them why market it as the Sequel to SC?
Why officially announce the game RIGHT before StarDock's marketing blitz for SC:O  which Paul and Fred knew the dates and plans of because SD had given them that info.

Paul and Fred would have lost nothing by waiting until  A.  They had the game elements and had stuff to show people.   B  They could have named it anything and people would recognize it, also at that time SD would have done a cross promotion and let them call it SC: GotP probably for free.  and C.  Whether SC:O is a major success or a flop getting the public awareness would have been free advertising and awareness for their game.

Paul and Fred had nothing to gain by the timing of what they did and a lot to lose and that they have NOTHING other than a few press releases and bad blood with Stardock really says something.     

I don't understand how people are so forgiving of them....    What did they do to earn such blind loyalty?    Cause they sure seem to be pissing on their own chances of giving you anything new.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 18, 2018, 09:44:45 pm
If that were really the case answer me this...

Why do they not have a story plan or game design elements already made?

The logical pitfall you've presented is similar to the pitfall Stardock expects the trademark office to fall into. You say that just because Paul and Fred currently have artistic content means they've always had that content for Ghost of the Precursors, which may be right or it may be very wrong. However, they've always made important plans for eventual content and almost certainly have drafts they wrote in their own free time, so the copywrite to that material is clearly more important to Paul and Fred than to Stardock.

So in a similar but actually potentially illegal way, Stardock is only now trademarking the Arilou and Chejnesu so that they can pretend they've always planned on those races as an integral part of their game by the time their claims make it to the trademark office, which will be months after Star Control: Origins is released. If you think that's unfair, you're not alone, which means the trademark office will likely also see through that guise if their claims even make it that far.


Title: Re: Stardock Litigation Discussion
Post by: Tas on July 18, 2018, 09:57:47 pm
Oh, the subsequent TM fillings for the alien names etc are a bunch of Bunk.

SD is playing dirty pool without a doubt.

I'm just saying that Paul and Fred were the ones that filled the pool with manure to begin with.   

I don't expect SD to win all of their points cause some of them are flat out ludicrous. 


But from what i've Seen in my own reviews of all of the documents of the case... Paul and Fred brought all of this down on themselves in a fit of spite and pettynes         Remove SC:O from the picture entirely for a moment  lets say SD bought the rights to the game and spent money developing the game but much like Elemental, their goals were not something they could do....   SD has cancelled game projects that were not working  even ones late in development..  (Servo)  Say SD cancelled or greatly delayed development of SC:O

When in that picture do you see an announcement of GotP?

My guess is never.      Words are cheap and easy...  actions matter.   Paul and Fred's actions seem lacking.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 18, 2018, 10:01:28 pm
Oh, the subsequent TM fillings for the alien names etc are a bunch of Bunk.

SD is playing dirty pool without a doubt.

I'm just saying that Paul and Fred were the ones that filled the pool with manure to begin with.  

I don't expect SD to win all of their points cause some of them are flat out ludicrous.  


But from what i've Seen in my own reviews of all of the documents of the case... Paul and Fred brought all of this down on themselves in a fit of spite and pettynes         Remove SC:O from the picture entirely for a moment  lets say SD bought the rights to the game and spent money developing the game but much like Elemental, their goals were not something they could do....   SD has cancelled game projects that were not working  even ones late in development..  (Servo)  Say SD cancelled or greatly delayed development of SC:O

When in that picture do you see an announcement of GotP?

My guess is never.      Words are cheap and easy...  actions matter.   Paul and Fred's actions seem lacking.

Fred and Pual didn't want much to do with Stardock, I also think the CEO is overselling his point when he states Fred and Paul wanted Stardock to fail.

The reality is that Stardock's CEO is a fan of theirs and felt somewhat hurt by rejection as he takes pride in the success of his company. In multiple instances, Stardock very aggressively kept pestering Paul and Fred about working on a new project, and every time, Paul and Fred said they weren't interested and had their own plans & obligations which must have disappointed Stardock.

It is true that it was a bad idea for Paul and Fred to try and use "Star Control" in any way, but everyone makes mistakes and they were probably alarmed by this whole situation as well, so they overreacted.


Title: Re: Stardock Litigation Discussion
Post by: Tas on July 18, 2018, 10:16:58 pm
Guessing  you are getting the brad thinks Paul and Fred thought the game would fail thing from either Reddit or Discord?

I hate discord....       rolling chat that if you look away for 10 minutes you can never find anything.


I've read all the publicly posted emails between Brad and Paul and Fred.   It seems that they (P&F) were very very supportive early on, though clear that they could not work with the project in any way due to their contract with Activision.

Things only turned hostile last Sept...        No where in any of that does it look like they were expecting SC:O to fail or doing anything but being supportive of the new project.

So yeah I do think that when they made the GotP announcement Brad tried to spin it as a positive (his initial posts to the media and even on this site where super super supportive)   and then things just turned.... mean.             Either there is a LOT of stuff that has not been made public, or something cause up until Dec it really looked like we'd have two games that mutually acknowledged each other and could happily co-exist.

Now.....   yuck


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 18, 2018, 10:21:49 pm
Guessing  you are getting the brad thinks Paul and Fred thought the game would fail thing from either Reddit or Discord?

I hate discord....       rolling chat that if you look away for 10 minutes you can never find anything.


I've read all the publicly posted emails between Brad and Paul and Fred.   It seems that they (P&F) were very very supportive early on, though clear that they could not work with the project in any way due to their contract with Activision.

Things only turned hostile last Sept...        No where in any of that does it look like they were expecting SC:O to fail or doing anything but being supportive of the new project.

So yeah I do think that when they made the GotP announcement Brad tried to spin it as a positive (his initial posts to the media and even on this site where super super supportive)   and then things just turned.... mean.             Either there is a LOT of stuff that has not been made public, or something cause up until Dec it really looked like we'd have two games that mutually acknowledged each other and could happily co-exist.

Now.....   yuck

It would make sense for Fred & Paul to support "Star Control" because the trademark to "Star Control" isn't what's important to them as they have their own plans, all they ultimately want is the copywrite to the original art and stories which they still need to validate. With that copywrite, they could make contemporary versions of a UQM sequel that would count as derivative works, which are protected under the U.S. copywrite laws. Even if they don't make something with their win right away, it's still their legacy on the line whereas Stardock's would have been completely safe in every way.

Even if Stardock loses most of their claims, they will undoubtedly keep their trademark to Star Control so their game will not be jeopardized. If Fred and Paul lose a majority of their battles, they will lose everything. Both parties have a chance to come to an understanding and walk away with what they want, but they are emotionally invested in the dispute.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on July 19, 2018, 03:46:05 am
Quote
It seems that they (P&F) were very very supportive early on

In the interest of factual information, I'd be curious to see what P&F's most supportive comment to Stardock has been. Their support reminds me a lot of the girl who says "let's be friends" than someone who actually wants anything to do with them. At one point, Stardock was really excited that they were supposed to have dinner, but "schedules got tight".

these points come from the Discovery period in which Paul and Fred were tasked with supplying documentation of work done on their new game so as to disprove the Stardock claim that the timing of the announcement of GotP was not simply made only to negatively impact SC:O before their beta launched.

Just an important factual correction: the discovery just started. The schedule has it going well AFTER the amended pleadings.

https://www.reddit.com/r/starcontrol/comments/86twvq/trial_schedule_posted/

Quote
This just went up on PACER (updated 3/30/2018):

Plaintiff settlement briefs due by 4/30/2018. (Confidential)

Defendant settlement briefs due by 5/06/2018. (Confidential)

Supervised settlement talks occur on 5/14/2018. (Confidential)

Amended Pleadings due by 7/16/2018.

Close of Fact Discovery by 10/19/2018.

Designation of Experts due by 10/19/2018.

Rebuttal Experts due by 11/19/2018.

Close of Expert Discovery by 12/14/2018.

Dispositive Motion Hearing set for 3/13/2019 01:00 PM.

Pretrial Preparation due by 4/10/2019.

Pretrial Conference set for 6/12/2019 01:00 PM.

Jury Selection and Jury Trial set for 6/24/2019 10:00 AM.

So. Paul and Fred have not been "tasked" with anything. There is still a lot of time to task them under subpoena. Maybe they'll reveal their work voluntarily, but that hasn't happened yet. And lastly, they may be within their right to withhold the confidential work in their game. After all, the people who are trying to get a look at it are also the same people who are being accused of illegally copying their creative work. That's a pretty valid reason to keep that stuff confidential, and a judge might see it that way if the discovery gets contentious.

This is why people need to actually read critically. You can't just take anyone's assertions at face value. And frankly, Stardock has said more things that aren't borne out by the evidence, and that seem to be directly contradicted by evidence, let alone common sense.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 19, 2018, 04:12:35 am
In the interest of factual information, I'd be curious to see what P&F's most supportive comment to Stardock has been. Their support reminds me a lot of the girl who says "let's be friends" than someone who actually wants anything to do with them.
Fred and Paul definitely did want to set some distance between themselves and Stardock when you look at their correspondance, but that's not unreasonable. If someone you've never met asks if you want to go skydiving with them, it's more than fine for you to say "no." If anything, Stardock was wrong to keep aggressively pestering them about projects.

Stardock thinks that owning the SC trademark entitles them to all the creative content that was originally associated with it. Normally, they would be right, but because the content was negotiated separately from the SC trademark by Fred and Paul prior to auction, e.g. Star Control is different than UQM, an agreement which was then illegally violated before Stardock bought the SC trademark, Stardock's assumption is incorrect.
If I grab a picture of a nebula from NASA's website and stick it into my telescope manual, I don't spontaneously hold the copyright to that nebula no matter how many telescopes I sell and therefore I do not have the right to grant anyone else exclusive use over that picture either.

This is why people need to actually read critically. You can't just take anyone's assertions at face value. And frankly, Stardock has said more things that aren't borne out by the evidence, and that seem to be directly contradicted by evidence, let alone common sense.
On the surface, Stardock is worried most about their SC trademark and allegedly IP rights to GalCiv even though they'll never lose that either. They state Paul and Fred are after it, despite that they never wanted the SC trademark in the first place. Losing SCO might just bankrupt Stardock since they sunk 5 years into it, so if there's any perceived threat to it then they will take it seriously.

However, the chances of Stardock losing their SC trademark are incredibly low and after this much time they should know that, so they could just be throwing around this dispute to draw attention to the game in order to make more sales. They already know that fans will naturally side with Paul and Fred, so they want to paint themselves as a victim in order to get ahead of accusations of wrong doing.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on July 19, 2018, 04:50:44 am
Even if Stardock lost the Trademark -- which is possible but unlikely -- it just means that no one has the exclusive right to use it. Which means everyone can use it, including Stardock.

In some remote possibility that even Stardock is limited from using the Trademark -- which no one is even pushing -- then Stardock could just release their game under a different name.

A Trademark is just a mark you use in trade. It's a name.

Losing the Copyright means literally losing the right to any copies made/sold/distributed/sequalized of the original work. It means P&F can't make any kind of continuation.

If Stardock has risked anything, it's actually including those original aliens in the new game. That's something they could be enjoined from doing, and could mean losing their release date. Just to be cynical for a second, and let's just say Stardock is doing this on purpose, so that they might be painted the victim. Has anyone actually seen the original aliens in the game itself, or is it all concept art?


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 19, 2018, 04:53:38 am
Even if Stardock lost the Trademark -- which is possible but unlikely -- it just means that no one has the exclusive right to use it. Which means everyone can use it, including Stardock.
Possibly, or possibly not, apparently it's possible it can be ruled that no one can use it, though that's very unlikely.


If Stardock has risked anything, it's actually including those original aliens in the new game. That's something they could be enjoined from doing, and could mean losing their release date. Just to be cynical for a second, and let's just say Stardock is doing this on purpose, so that they might be painted the victim. Has anyone actually seen the original aliens in the game itself, or is it all concept art?


Yes, Paul and Fred stand to lose a lot more, so it's good they have a stronger case for their desired outcome. If they do lose the copywrite validation though, then they do have to dispute each trademark claim with Stardock which is there the funding is more important, because that will be a battle for the trademark to every single race, one at a time. Clearly Stardock has the funding to raise claims to all those trademarks, but Fred and Paul may not have the funding to dispute those claims, so Stardock would get them by default.


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on July 19, 2018, 05:01:07 am
However, I don't see that they claim to have created every single thing themselves in the first place, and it's uncommon for a creator to claim they did every piece of dirty work. They were in charge of making most of the decisions, wrote most of the story, and were generally trusted with all of creative content by the Accolade staff, much like how a creator employed by a network would be trusted with creating a TV series. Even if they didn't physically make everything themselves, which rarely happens except with indie projects, they are responsible for shaping the original game into what it was, so it still makes sense that they are the original creators of the game.
I think you're fundamentally misunderstanding the relationship between Toys for Bob (aka Paul and Fred) and Accolade. From what I understand, TfB was the game studio, owned by P&F, meaning that P&F had control over creative content not by the grace of Accolade but because they had the top position in the company. Accolade, then, is the publisher, who licensed the game from TfB in order to sell it. It's more a contract between equals rather than an employer-employee type of contract.

This is all non-rigorous and taken from memory, so it's likely wrong in some details, at the very least, but I'm pretty sure that the broad strokes are correct. Of course, I'm not a lawyer.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 19, 2018, 05:03:55 am
However, I don't see that they claim to have created every single thing themselves in the first place, and it's uncommon for a creator to claim they did every piece of dirty work. They were in charge of making most of the decisions, wrote most of the story, and were generally trusted with all of creative content by the Accolade staff, much like how a creator employed by a network would be trusted with creating a TV series. Even if they didn't physically make everything themselves, which rarely happens except with indie projects, they are responsible for shaping the original game into what it was, so it still makes sense that they are the original creators of the game.
I think you're fundamentally misunderstanding the relationship between Toys for Bob (aka Paul and Fred) and Accolade. From what I understand, TfB was the game studio, owned by P&F, meaning that P&F had control over creative content not by the grace of Accolade but because they had the top position in the company. Accolade, then, is the publisher, who licensed the game from TfB in order to sell it. It's more a contract between equals rather than an employer-employee type of contract.

Well, let me put it this way: 20th Century Fox owned the TV show "The Simpsons," but Matt Groening is still the "creator" of the show. The creator status is independent from who owns the brand which is what Stardock is attacking in one of their claims and what seems to be what you're hinting at. From what I understand though, Fred and Paul made an additional effort to negotiate with Accolade the rights to make sales with the content that happened to be used in the original SC series, so Fred and Paul should legitimately already hold the copywrite to all the content that was used in the original SC series anyway. Licensing does exist, but variations of licensing like exclusive sublicensing do too, so I doubt Accolade's original goal was to obtain only a non-exclusive agreement, but if they did, that would only make Fred and Paul's case stronger.

When I read Stardock's claims objectively, it still seems odd how audacious they are. They're claiming they literally own everything, even Ghost of the Precursors, despite never having anything to do with any of its creation, and then they're claiming all of this despite that they will continue making a profit from SCO regardless of if Fred and Paul validate their copywrite which means they have less grounds to win the trademark claims.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 19, 2018, 05:34:45 am
If GotP was truly the passion project that Paul and Fred claim it to be, they should have had those elements designed in their free time YEARS ago.

This was not a release announcement; it was a "We're finally able to start" announcement.  You seem to be saying that P&F were somehow obligated not to announce that they were going to do a new game until they had things to show off for it.  I see no justification for that obligation; as a fan of SC2, I'm glad they decided to tell us as soon as they started, rather than waiting.  I have no expectations that they have anything done when they've just started, nor that they will have anything more to show before the suit is over, because it would be pretty stupid to spend time working on something they might lose the rights to do, even if they had time to spare for it.  Unlike Stardock, they don't have employees to make progress on the game while they handle legal obligations.

Also, I think after waiting this long for the game, I'd almost rather not be 'spoiled' by previews.  Based on SC2, I trust P&F to make a fun game, especially when they (hopefully still) have the financial and legal independence to take their time and really do it right.  That goes double if they manage to get some of the old band back together.

if the Trademark was not valuable to them why market it as the Sequel to SC?

To let all the SC2 fans who were wondering where the Precursors went and what happened to the Mark II know that they were finally going to get canonical answers?  

Quote
Why officially announce the game RIGHT before StarDock's marketing blitz for SC:O which Paul and Fred knew the dates and plans of because SD had given them that info.

At a broad level, the timing is easily explainable:  P&F had told Brad in 2013 that they intended to do another game someday (https://cdn.stardock.us/forums/0/0/1/dd82f909-49ef-4a81-a160-a9664274ff18.png), and both Stardock and P&F intended to time their announcements around SC2's 25th anniversary. P&F told Brad that directly (https://cdn.stardock.us/forums/0/0/1/a36c96e5-9216-4c21-b39c-ee73fa7fbd39.png), so there's no reason to infer malice from the fact that they occurred at around the same time.

With that said, after Brad insisted that he had exclusive and perpetual control of their IP (https://cdn.stardock.us/forums/0/0/1/a67e50ba-6740-4dfd-b92a-69b37ee4933f.png), P&F seem to have been rather put out with him - understandably, in my opinion.  And they did make their announcement a few weeks early, so it's possible that they moved it out of pique.  If they did, I'll grant that it wasn't very nice, but given how Brad kept trying to bully them with an expired contract, I can understand them not being very nice.

Quote
They could have named it anything and people would recognize it, also at that time SD would have done a cross promotion and let them call it SC: GotP probably for free.

"Free" needs to be in quotes here.  Sure, he might not have required any money from them, but Brad was insisting that they give up something more important to them than money:  Their independence.  He wanted them to license his trademark, thereby giving Stardock an IP foothold in their game.  Their consistent position for many years has been that they have the rights to the universe from SC2, and don't need anyone's permission to make a new game in it, and they weren't about to do anything that might jeopardize that.

I've read all the publicly posted emails between Brad and Paul and Fred.   It seems that they (P&F) were very very supportive early on, though clear that they could not work with the project in any way due to their contract with Activision.

Really?  When I read those emails, I see them giving Brad a polite but firm brush-off, with Activision's disapproval being a convenient additional justification.  The email Paul sent Brad right after Brad bought the trademark said (https://cdn.stardock.us/forums/0/0/1/dd82f909-49ef-4a81-a160-a9664274ff18.png):  

"Fred and I are just not comfortable handing over our world to be developed by others. We've been discussing this for 20 years and we've always regarded a return to Star Control as our dream project - something we'd work on as soon as we found the opportunity."

Does that sound like they're only declining because of Activision?  To me, I read that as saying (approximately):  "Sorry, we're not interested in working with you or anyone on this, now or ever."  The problem was that Brad wouldn't take the hint, and kept pestering them about it for the next four years.

Quote
Things only turned hostile last Sept...

October 4, actually.  That's the day when P&F told Brad (https://cdn.stardock.us/forums/0/0/1/a36c96e5-9216-4c21-b39c-ee73fa7fbd39.png) that they were planning to do a new game, and Brad replied (https://cdn.stardock.us/forums/0/0/1/03ae818b-816c-4874-8c8b-86629ba9af7d.png) by telling them that contrary to all of the reassurances (https://forums.starcontrol.com/471109/page/9/#3600609) he'd given over the last four years about recognizing and respecting their IP rights, he was claiming to have exclusive and perpetual control over their IP, such that they had to work with him if they wanted to do a new game.  There's no mystery here; Brad started the fight when he sent that email.  And I'll note that none of Stardock's legal filings have ever tried to justify or explain (or even mention)  those claims; as far as I can tell, Brad was just flat-out lying.

Quote
No where in any of that does it look like they were expecting SC:O to fail or doing anything but being supportive of the new project.

Supportive, yes...they didn't have a problem with SC:O being a "Star Control" game, with a similar style of gameplay to the earlier ones.  They just don't want it to use any of their setting.



Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 19, 2018, 05:49:20 am
They just don't want it to use any of their setting.
Which is also exactly what the fan base wants, which is perfectly compatible with SCO succeeding.

I've seen issues people bring up with SCO that they're using knockoffs of the original Arilou and Chenjesu and possibly the Spathi, which they don't need at all since they definitely bought the SC trademark and Fred and Paul didn't want it. Stardock has a chance to pull those races out before SCO is released, but if they don't, I hope the law makes them.

If GotP was truly the passion project that Paul and Fred claim it to be, they should have had those elements designed in their free time YEARS ago.
I have no expectations that they have anything done when they've just started,
Well, that is a part this issue, whether or not they actually had "plans" for it, which Stardock calls into question in order to argue Ghost of the Precursors is just a facade. After 20+ years though, that's not unreasonable to point out. However, many game publishers negotiate either some kind of non-compete clause in their contracts with developers or an exclusivity agreement, so it is also possible Fred and Paul literally couldn't make any new content for an outside game even if they wanted without it being owned by Activision or being slapped with a huge fine. Fred and Paul never needed the SC trademark though which is why they turned it down, because the SC trademark is separate from the artistic content, and the CEO didn't understand that.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on July 19, 2018, 10:29:56 pm
Stardock thinks that owning the SC trademark entitles them to all the creative content that was originally associated with it. Normally, they would be right

Rather, normally this particular statement would be wrong but it'd be hard to tell because something else would entitle them to all the creative content.

Also, you keep mis-spelling copyright as 'copywrite'. It's the right-to-copy, not something to do with writing.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 19, 2018, 10:45:51 pm
Rather, normally this particular statement would be wrong but it'd be hard to tell because something else would entitle them to all the creative content.

Also, you keep mis-spelling copyright as 'copywrite'. It's the right-to-copy, not something to do with writing.

From what I understand, the two are normally sold together, but in this instance with SC they weren't, so Stardock should only have the right to the SC trademark, not the artistic content. You're right I misspelled it, I'm used to writing it that way from communicating with ad agencies and graphic designers, but it should be copyright.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on July 20, 2018, 07:31:10 pm
Stardock has applied for Trademarks in Pkunk, Ur Quan Masters, Precursors, Chenjesu... the whole gamut. Add that to their (more credible) Trademark in "Star Control", and there's almost no way for Paul and Fred to so much as talk about their new game without potentially infringing Stardock's alleged Trademarks.

"Hey guys, we're giving you an update about the untitled game we're working on. We're currently writing the story, which we can't share, and we can't tell you if it will feature characters from any previous games we worked on, because those are currently the subject of a legal dispute, that we hope to win."

And hey, maybe they've done the bare minimum of development, because they could lose everything if Stardock can successfully invalidate their copyright.

Also, one of Stardock's settlement demands was to have Paul and Fred turn over any notes, sketches, drawings and other material they started brainstorming over the past 30 years. They then wanted Paul and Fred to sign a joint statement saying that they are happy to pass the torch to Stardock to tell the Star Control story. In the absence of that settlement, Stardock has stated quite openly (and brazenly considering it's the subject of a lawsuit) that they are finding a way to copy elements of the original aliens without crossing the line into copyright infringement. Why the hell would Paul and Fred want to publicly disclose so much as a sketch or an idea of what they're working on, when the other side seems hellbent on appropriating it?

One of the most interesting developments in the pleadings is that Paul and Fred mentioned seeking a declaratory judgment about their Copyrights in the aliens, and Stardock's Trademarks in the aliens. If they pursue it, a judge would have a hearing on the aliens issues before the other issues (like the legality of Stardock's steam sales, or the legality of P&F's GOTP announcement).

Quote
there exists a substantial controversy of sufficient immediacy and reality between Reiche and Ford and Stardock to warrant the issuance of a declaratory judgment that: a) Reiche and Ford are the rightful owners of THE UR-QUAN MASTERS mark; b) Reiche and Ford have rights to use the names of aliens and features from Reiche and Ford’s Star Control Games in such games, in Ghosts of the Precursors, and in any other derivative works they may later develop; c) Stardock has no trademark rights to THE UR-QUAN MASTERS or any of the other names from Reiche and Ford’s Star Control Games listed above; d) Reiche and Ford are entitled to registration of the GHOSTS OF THE PRECURSORS mark; e) invalidating and/or directing Stardock to immediately withdraw and abandon U.S. Trademark Application Nos. 87,662,697, 87,697,919, 87,720,654, 87,807,839, 87,810,480, 87,810,484, 87,810,486, 87,810,492, 87,810,495, 87,810,499, 87,810,502, 87,810,516, 87,810.518, 87,810,526, 87,810,528, 87,825,741, 87,877,907, 87,877,969, 88,016,293, and 88,016,354; and f) directing Stardock to immediately withdraw and abandon its opposition to U.S. Trademark Application No. 87,633,531

Which makes sense. Paul and Fred can't safely develop their game (or talk about their game) until this issue is settled. And frankly, Stardock should probably hold off on adding those aliens until the issue is settled. But I'm sure they've factored the risks into their respective strategies.

I might be overstating it, because it's one of several legal strategies being pursued by both sides, and it remains to be seen what the next step is. But I have a feeling it won't be a straightforward discovery.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 20, 2018, 10:01:20 pm
Stardock has applied for Trademarks in Pkunk, Ur Quan Masters, Precursors, Chenjesu... the whole gamut. Add that to their (more credible) Trademark in "Star Control", and there's almost no way for Paul and Fred to so much as talk about their new game without potentially infringing Stardock's alleged Trademarks.
They are trying to trademark the races because Stardock considers those races to be part of the SC trademark that they purchased, or at least that they can enforce it being more closely associated with their brand than Fred and Paul's. Fred and Paul seem to disagree with that as it is associated with their original creative content, and although Stardock is confident in their side, their company never actually bothered to trademark those names before recently, though it doesn't seem Fred and Paul did either.

However, because no one laid claims to the specific trademarks for the races previously, or allegedly I should say, it's still rational for Stardock to use those races, but only as a DLC because they can get away with it until they're ordered to stop if they ever are. They won't get fined since the Fred and Paul's original claims to those races are still being disputed. Then, even if Stardock loses the trademark claims, it won't affect their sales because they can just release a statement that says something akin to "due to the unspeakable tyranny of Fred and Paul, we have been ordered to take these wonderful races you love from our game." so that they retain a positive reputation among their player base.  


Title: Discovery Order
Post by: Elestan on July 21, 2018, 02:14:18 am
The discovery magistrate has responded (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.52.0.pdf) to the joint letter of disagreement about the subpoena to P&F's PR company.  However, she didn't rule on it,  Apparently the letter was not in her specified format, so she told them to re-do it...and also told them that since their final briefs were in, they should also make any arguments about whether the material to be gained justifies the effort involved.


Title: Re: Discovery Order
Post by: Shiver on July 21, 2018, 03:10:31 am
The discovery magistrate has responded (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.52.0.pdf) to the joint letter of disagreement about the subpoena to P&F's PR company.  However, she didn't rule on it,  Apparently the letter was not in her specified format, so she told them to re-do it...and also told them that since their final briefs were in, they should also make any arguments about whether the material to be gained justifies the effort involved.

"To aid the parties in their meet and confer efforts, the parties are advised that the
undersigned is inclined to narrowly construe the attorney-client and work product privileges, such
that “[p]rivilege will only attach in the very limited circumstance where disclosure to [Singer] was
necessary for [Defendants’] attorney to render sound legal advice.”


This bit reads to me as though the judge is likely to eventually allow the subpoena of Singer & Associates to go through. Am I off base? If not, I hope whatever emails got passed back and forth between F&P and this company are nothing too scandalous. Stardock seems to think they must be.


Title: Re: Discovery Order
Post by: Elestan on July 21, 2018, 03:40:35 am
This bit reads to me as though the judge is likely to eventually allow the subpoena of Singer & Associates to go through. Am I off base? If not, I hope whatever emails got passed back and forth between F&P and this company are nothing too scandalous. Stardock seems to think they must be.

Brad has made comments implying that he thinks the PR firm is setting up sockpuppets on the various social media forums.  If that's actually true, I'd like to see them exposed.  Certainly someone at the PR firm exercised poor judgement, as evidenced by the infamous "Brad Wardell will be publicly humiliated" tweet that they apparently sent without P&F's approval.

I have a low regard for PR firms in general, so I'm not inclined to be sympathetic to them.  But P&F apparently severed ties with that firm after about six weeks, so if some kind of dirty laundry does come out, my main focus is going to be on whether it's fairly attributable to P&F, or if it's just one of the PR firm's people being an idiot.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on July 21, 2018, 04:36:35 am
Yeah, I haven't been impressed with the PR firm either. I think the biggest irony is the biggest PR blasts actually caused self-inflicted damage, and that goes for both Toys for Bob and Stardock. In hindsight, both sides could have stood to say a lot less.

I honestly prefer the fan conversation. There's some jerks around here too, no doubt. But we're pretty good at self moderating.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 21, 2018, 08:39:28 am
Stardock and P&F have released their presumably final amended Complaint (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.51.0.pdf) and Countercomplaint (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.50.0.pdf).  Many thanks to Yazman for providing me copies.  I've only had time to give them each a quick read, so these thoughts are only preliminary, and mostly only focus on things that are new in these revisions; I'll do a more thorough read in due time.

* One thing I did not find:  Any explanation for Brad's inflammatory email assertion last October that the 1988 agreement was still active (https://cdn.stardock.us/forums/0/0/1/03ae818b-816c-4874-8c8b-86629ba9af7d.png).  At this point, I presume that means they have concluded that those assertions were unsupportable.  They actually skip over that entire part of the chronology, presumably because showing that Brad made those statements would be unhelpful.

Okay, I was just doing some re-reading of the briefs, and noticed a bit of wording that smells...sneaky.  I think I might have just figured out how Stardock is trying to claim that the1988 agreement (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.37.1.pdf) is still active.  Buckle your seatbelts, because this gets pretty twisted::

Quote from: ¶17 of Stardock's complaint
Separate from the license grant, as defined in the 1988 Agreement, the 1988 Agreement also provided to Accolade  the sole and exclusive right to create computer software programs based on or derived from any characters, themes, settings or plot lines from the Classic Star Control Games and any translation, port or adaptation of the Classic Star Control Games in exchange for the payment of certain royalties to Reiche. (emphasis added)

This language seems to be pulled from the rights grant for "Sequels" in §3.3.
This language seems to be pulled from the definition of "Sequels" in §1.10.
This language seems to be pulled from the definition of "Derivative Work" in §1.5.

So Stardock is specifically claiming that their Sequel rights are separate from the license grant.  Why would they do that?  Let's take a look at the relevant definitions:

Quote from: 1988 agreement §1.2
"Licensed Systems" shall mean the computer systems on which the Work shall be initially developed by Developer and specified in Exhibit A.

Quote from: 1988 agreement Exhibit A
Licensed Systems:  IBM PC, Tandy computers, and 100% compatible computers

Quote from: 1988 agreement §1.5
"Derivative Work" shall mean translation, port or adaptation of the Work which will operate on video and dedicated electronic game systems, arcade coin-operated video systems, optical media, computers or operating systems other than Licensed Systems, hereinafter referred to as Derivative Systems and Cluebooks for the Work and Derivative Work. (emphasis added)

Note the emphasized text; the contract's definition of "Derivative Work" excludes programs developed for PCs.  It's also defined in a way that makes it much narrower than the normal, copyright-law-based definition of "Derivative Work".  It seems to mainly be intended to mean ports of the original games to other platforms.

Quote from: 1988 agreement §1.10
"Sequels" shall mean any computer software programs that are based on or derived from any characters, themes, settings or plot lines from the Work.

So "Sequels", while they are certainly "derivative works" under copyright law, are arguably a disjoint category from "Derivative Works" as defined in the contract.  A new game based in the Star Control 2 universe would then be a "Sequel", and a "derivative work" (by copyright), but not a "Derivative Work" (by contract).

How does that change the effect of the contract? 

Quote from: 1988 agreement §2.2
Sales Term:  This License Agreement shall continue in effect with respect to the sale, licensing and sublicensing of each Work, Derivative Work and Derivative Product, for as long as such Work, Derivative Work, and Derivative Product are generating royalties to the Developer of $1000 per annum.

Note that there is no mention of Sequel rights.  One could infer, based on the fact that Accolade came back to Paul for a license when they wanted to make SC3, that Accolade believed that the Sequel rights also terminated.  If that was the intent of the parties, then this omission was simply a mistake.  To me, that best fits the "common sense" test:  Given the rest of the language in the contract designed to carefully limit the term and scope of the copyright grant, it seems wildly incongruous to think that Paul would have agreed to giving Accolade perpetual Sequel rights.  But if you want to ignore all of that and just mechanically look at the wording, there's a way that one could try to argue that this termination condition doesn't apply to Sequels.

Quote from: 1988 agreement §7.1
Termination Upon Bankruptcy of Publisher.  If Publisher shall become bankrupt and/or if the business of Publisher shall be replaced in the hands of a receiver, assignee or trustee in bankruptcy, whether by voluntary act or Publisher or otherwise, then unless such bankruptcy shall be terminated within ninety (90) days, all rights to all Work or Derivative Work shall revert to Developer.

Again, note that there is no specific mention of Sequel rights, so the same argument applies as above.

So while I think the intent of the parties suggests that the Sequel rights terminated along with the rest, it's possible, if you squint, to read the contract in a way such that they would bypass these two termination conditions.

However, the termination language added in Addendum 3, §4.1 seems stronger, and is pretty clearly designed to completely sever the entire agreement if Accolade didn't publish a new Star Control game between 1998 and 2001 (which they did not).  So it seems like that kill-switch still would have gone off.

So there's the theory...what do people think?


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on July 21, 2018, 09:59:52 am
I have no opinion other than Stardock is really trying hard to find possible loop holes in the 88 agreement to justify it still hasn't terminated.

Anyway, I just saw them post pictures of the Chenjesu and Arilou. Really says something about the company despite the ongoing litigation. I sure hope this dispute will have a happy ending for P&R.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 21, 2018, 10:58:18 am
I have no opinion other than Stardock is really trying hard to find possible loop holes in the 88 agreement to justify it still hasn't terminated.

Supposedly there wasn't actually an single "1988 agreement" but rather two. It's definitely a risk if Stardock also doesn't know, but Stardock is also confident that any alleged agreement never granted Fred and Paul the trademarks to the races and ships since usually no one trademarks every name used in a game. Either side could still win the trademark dispute to those races because either can argue that the races have a strong association with their brand, which is probably why both sides claim those races.


Brad has made comments implying that he thinks the PR firm is setting up sockpuppets on the various social media forums.
He had claimed FP intentionally tried to damage Stardock's reputation with outlandish statements and sockpuppets which seems somewhat unrealistic, but it wouldn't be impossible for a PR firm to do that on their own, many PF firms use tactics like that. Not that it's entirely relevant since Stardock originally supported the Ghost of the Precursors though, but Stardock's biggest claim in all this, besides the trademark to "Star Control," is trademark infringement. Fred and Paul thought it would be fair to advertise the "Star Control" title when they originally released their Ghost of the Precursors purely as a reference to their past work (and they've already gotten rid of that title image), which artists are in fact allowed to do.

Stardock argues that people then confuse elements of Stardock's Star Control: Origins for elements of Ghost of the Precursors which constitutes trademark infringement. That on its own is reasonable at first, I was somewhat confused too, but, Fred and Paul have repeated stated that they don't want the Star Control trademark and so it seems to be a misunderstanding on Stardock's part, not to mention Fred and Paul have the right to celebrate the anniversary of their story.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on July 21, 2018, 03:39:46 pm
I have no opinion other than Stardock is really trying hard to find possible loop holes in the 88 agreement to justify it still hasn't terminated.

We really don't know what's in that agreement though.

What do you mean? Elestan linked it at the top of his post. It's right there on courtlistener.com.


Title: Re: Stardock Litigation Discussion
Post by: Yazman on July 21, 2018, 07:43:11 pm
Quote from: Shiver
This bit reads to me as though the judge is likely to eventually allow the subpoena of Singer & Associates to go through. Am I off base? If not, I hope whatever emails got passed back and forth between F&P and this company are nothing too scandalous. Stardock seems to think they must be.

Essentially correct. More specifically that she's narrowly interpreting these privileges means that anything sought to be protected by them must very strictly fall under the relevant criteria required for protection. She isn't going to allow a significant amount of material to be protected here so they'd better have some bloody good arguments if they plan to argue for stuff that might not strictly be covered, because otherwise she probably isn't going to allow them to be protected. Basically they have to show pretty strict adherence to the necessary elements.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 21, 2018, 08:01:51 pm
What do you mean? Elestan linked it at the top of his post. It's right there on courtlistener.com.

I don't mean a twitter post I mean the actual documents, and not the Accolade publisher agreement, but I might be misinterpreting something, if you want to link to it directly. But we also see the terms Stardock purchased the trademark under.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on July 22, 2018, 04:16:04 am
What do you mean? Elestan linked it at the top of his post. It's right there on courtlistener.com.

I don't mean a twitter post I mean the actual documents, and not the Accolade publisher agreement, but I might be misinterpreting something, if you want to link to it directly. But we also see the terms Stardock purchased the trademark under.

I wasn't talking about a twitter post. I was talking about

Quote
I think I might have just figured out how Stardock is trying to claim that the1988 agreement (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.37.1.pdf) is still active.



Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 22, 2018, 04:19:33 am
What do you mean? Elestan linked it at the top of his post. It's right there on courtlistener.com.

I don't mean a twitter post I mean the actual documents, and not the Accolade publisher agreement, but I might be misinterpreting something, if you want to link to it directly. But we also see the terms Stardock purchased the trademark under.

I wasn't talking about a twitter post. I was talking about

Quote
I think I might have just figured out how Stardock is trying to claim that the1988 agreement (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.37.1.pdf) is still active.



That's very odd then, when I originally clicked on that link it linked to a twitter post.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 22, 2018, 04:31:04 am
That's very odd then, when I originally clicked on that link it linked to a twitter post.

I'm quite sure that I have never in my life linked to a twitter post,


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 22, 2018, 05:11:41 am
That's very odd then, when I originally clicked on that link it linked to a twitter post.

I'm quite sure that I have never in my life linked to a twitter post,

It's possible I opened another link without realizing it then only saw it after I clicked on your link.

From what I gather overall though, even though I can understand how Stardock might construe trademark infringement over that one Ghost of the Precursors post, it's also fair to say that artists have the right to simply reference their past work and Fred and Paul indicate in the post that they were just celebrating the anniversary of their story. Fred and Paul hadn't claimed Stardock's trademark, so when Stardock goes off on that vindictive rant in the complaint about how the evil Fred and Paul are doing everything just to deceive the public into hating Stardock, they're probably overreacting or dramatizing for profit.

On the other hand though, the DMCA was enforced because it is actually possible Stardock infringed on Fred and Paul's creative content by using their copyrighted material from what I see. It's understandable how there might have been confusion where it seemed Fred and Paul thought Stardock was trying to infringe on their literary universe, which Stardock was initially interested in, but ultimately chose a different universe. That wouldn't be correct of Fred and Paul currently, because Stardock should legitimately own the title SCO as an extension of the SC trademark, and if they don't, what did they pay $300,000 for?

That specific point may be murky from Fred and Paul's perspective though, because Stardock did originally try to beseech Fred and Paul about specifically using their alien races in the GalCiv III game which gives Fred and Paul the impression that SCO is a continuation of their original story, but it seems like Stardock was intent on respecting that rejection...until more recently.


Title: Re: Stardock Litigation Discussion
Post by: Telecart on July 22, 2018, 06:19:16 am
I found the F&P are multi-millionaires bit kinda hilarious. Since Activision is a publicly traded company, you can easily look at the 10-K for that year and realize that the acquisition of TfB wasn't even a blip on their radar. I took a look at it a few years back and if memory serves I think it was low-mid seven figure deal, split to 3 owners, about 50-50 cash and stock. So, yeah, they probably made a cool million or two each (gross, with California taxes!), and I'm sure they're paid well as studio heads (though likely an order of magnitude or two less than the $12M a year the head of Blizzard makes), they're still as individuals probably nowhere near as well-off as Stardock, the company, or even Brad Wardell the person.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 22, 2018, 06:59:28 am
I found the F&P are multi-millionaires bit kinda hilarious. Since Activision is a publicly traded company, you can easily look at the 10-K for that year and realize that the acquisition of TfB wasn't even a blip on their radar. I took a look at it a few years back and if memory serves I think it was low-mid seven figure deal, split to 3 owners, about 50-50 cash and stock. So, yeah, they probably made a cool million or two each (gross, with California taxes!), and I'm sure they're paid well as studio heads (though likely an order of magnitude or two less than the $12M a year the head of Blizzard makes), they're still as individuals probably nowhere near as well-off as Stardock, the company, or even Brad Wardell the person.

The money may not have gone entirely to those three people, and if a company takes in a lot of money but also spends a lot of money, they don't stand to make a large profit, there's still many other variables, which is something that is true for either Stardock or Toys for Bob. From an artistic standpoint, I don't know if that's even relevant though, because not wanting someone to mess with your creative works is a common feeling for someone in any income bracket. Even though Joss Whedon is rich, it doesn't mean he wants some random company to start changing all the stories in Buffy.

But, we don't actually know that Fred and Paul are rich anyway, that just seems to be a random claim Stardock throws in, I don't see proof of it anywhere. I guess their tax returns could be subpoenaed but Stardock is already having enough trouble getting the subpoena for the Singers claim.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on July 22, 2018, 08:51:20 pm
Paul and Fred are being sued personally. This lawsuit could cost them essentially their entire life's work, both their intellectual property, and their finances. The lawsuit could easily cost more than a million dollars. So even if they're millionaires, that's half of what they've been able to make in their life.

It's not even relevant to the lawsuit. It's just Stardock throwing stuff in, hoping to color the judge and the jury's perception of who Paul and Fred are: frauds who didn't make anything and have now launched a gofundme to swindle more people out of money they don't want to earn.

Anyone paying any amount of attention would see those attacks and draw more conclusions about Stardock for making them. But I wonder if an average gamer with no context would look at that and buy Stardock's narrative.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 22, 2018, 08:59:41 pm
Paul and Fred are being sued personally. This lawsuit could cost them essentially their entire life's work, both their intellectual property, and their finances. The lawsuit could easily cost more than a million dollars. So even if they're millionaires, that's half of what they've been able to make in their life.

It's not even relevant to the lawsuit. It's just Stardock throwing stuff in, hoping to color the judge and the jury's perception of who Paul and Fred are: frauds who didn't make anything and have now launched a gofundme to swindle more people out of money they don't want to earn.

Anyone paying any amount of attention would see those attacks and draw more conclusions about Stardock for making them. But I wonder if an average gamer with no context would look at that and buy Stardock's narrative.

Some average gamers have only played Stardock's games and not the original SC games that included Fred and Paul's copyrighted content. That doesn't have much bearing on the actual case itself other than that maybe possibly Stardock can somehow back their claims Fred and Paul have been intentionally deceiving the public which just seems like grasping at straws when so many different random opinions are clearly involved, especially when Stardock itself has been far more effective in its marketing of this issue. What Stardock's claims surely do though is draw attention to Stardock's game and gets them pre-sales, so I do definitely see an economic incentive for Stardock to make intentionally dramatized claims.


Title: Re: Stardock Litigation Discussion
Post by: Kaiser on July 23, 2018, 09:52:09 pm
I've seen lists that put Paul Reiche at an estimated net worth of 19 mil.  While Brad Wardell's is estimated 1.9 million.  Both as of 2018.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 23, 2018, 10:59:17 pm
I've seen lists that put Paul Reiche at an estimated net worth of 19 mil.  While Brad Wardell's is estimated 1.9 million.  Both as of 2018.

But where do you "see" that though? That seems very clearly like private financial information, I haven't seen either Brad or Fred & Paul release information like that.


Title: Re: Stardock Litigation Discussion
Post by: Lakstoties on July 23, 2018, 11:30:31 pm
I've seen lists that put Paul Reiche at an estimated net worth of 19 mil.  While Brad Wardell's is estimated 1.9 million.  Both as of 2018.

Sigh...  Does it really matter?  This just seems like a distraction from the important details of the situation.  Very similar to one of those useless details they throw into word problems or diversion topics that many political folks use.  It's a very superficial metric that simple does not matter in this situation.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 23, 2018, 11:45:48 pm
I've seen lists that put Paul Reiche at an estimated net worth of 19 mil.  While Brad Wardell's is estimated 1.9 million.  Both as of 2018.

Sigh...  Does it really matter?  This just seems like a distraction from the important details of the situation.  Very similar to one of those useless details they throw into word problems or diversion topics that many political folks use.  It's a very superficial metric that simple does not matter in this situation.

Well in Stardock's complaint, Stardock actually calls out Fred and Paul for being rich (though I saw no evidence for it anyway), but it is still a very emotionally charged rhetoric nonetheless, I agree that it shouldn't matter to the alleged facts that Stardock owns their trademark and Fred and Paul own their copyright to their creative content.

In talking with Brad, I get the impression he thinks Fred and Paul haven't done any work of their own and thus they aren't creators and thus their copyright is invalid, but he seems to intentionally neglect mentioning that Fred and Paul have put up some of their original game design drafts on their blog.

https://www.dogarandkazon.com/sketchbook_1/

https://www.dogarandkazon.com/blog/2018/3/8/all-aboard-the-starship-discovery

https://www.dogarandkazon.com/blog/2018/3/13/starship-discovery-ii





Title: Re: Stardock Litigation Discussion
Post by: Shiver on July 24, 2018, 12:22:19 am
I've seen lists that put Paul Reiche at an estimated net worth of 19 mil.  While Brad Wardell's is estimated 1.9 million.  Both as of 2018.

I'd like to see a source on this. It seems like a very high estimate.


Quote from: Lakstoties
Sigh...  Does it really matter?  This just seems like a distraction from the important details of the situation.  Very similar to one of those useless details they throw into word problems or diversion topics that many political folks use.  It's a very superficial metric that simple does not matter in this situation.

It affects how much money I'm willing to donate to the legal defense fund. I would go to great lengths to try and stop another one of Brad's godawful 'apology' letters from being published, if that were about to happen due to lack of money. If Paul and Fred have more available funds than Stardock the company does, there shouldn't be a GoFundMe at all.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 24, 2018, 12:30:42 am
It affects how much money I'm willing to donate to the legal defense fund.

I guess that's a fair point. If Fred and Paul were very rich as Stardock claims, it would probably negatively affect Fred and Paul's defense fund. I would feel less inclined to donate to them, though still ultimately do it just to assist in whatever resources they want to make their game.
Even if that were the case though, Fred and Paul do also claim to be paying out of their own pockets, whereas Stardock's legal fees seem to be mostly covered by insurance, so I feel Stardock could be hypocritical to bring up the subject.
I've seen for myself over the years that a lot fans tried to ask for themselves how they could better show or give support for Fred and Paul, so it would appear they simply gave an answer: the defense fund.  

I would go to great lengths to try and stop another one of Brad's godawful 'apology' letters from being published, if that were about to happen due to lack of money.
I don't understand the context for this. Why would you not want Brad to apologize for whatever it is you're referencing?


Title: Re: Stardock Litigation Discussion
Post by: Shiver on July 24, 2018, 12:57:03 am
I would go to great lengths to try and stop another one of Brad's godawful 'apology' letters from being published, if that were about to happen due to lack of money.
I don't understand the context for this. Why would you not want Brad to apologize for whatever it is you're referencing?

The sexual harassment case against Brad Wardell from a few years back ended with the victim (alleged, whatever) issuing a public apology letter to Brad. Brad's joke of a settlement offer to F&P (https://dogarandkazon.squarespace.com/blog/2018/3/24/nope-and-nope) also demands that they issue a similar public apology.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 24, 2018, 01:01:46 am
I would go to great lengths to try and stop another one of Brad's godawful 'apology' letters from being published, if that were about to happen due to lack of money.
I don't understand the context for this. Why would you not want Brad to apologize for whatever it is you're referencing?

The sexual harassment case against Brad Wardell from a few years back ended with the victim (alleged, whatever) issuing a public apology letter to Brad. Brad's joke of a settlement offer to F&P (https://dogarandkazon.squarespace.com/blog/2018/3/24/nope-and-nope) also demands that they issue a similar public apology.

I seems pretty odd if Brad were to make fun of sexual harassment, I don't see any reason to think that would be his intention if he apologized for a completely separate legal issue. Although I guess I did bring up possible issues with assumptions of gender and masculinity in one of Stardock's games and it was quickly and aggressively dismissed by Stardock staff and/or supporters, but that doesn't speak for Brad himself. I think a CEO who tries to be as contemporary as him would probably keep up with the times and make an effort to move away from that kind of behavior.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 24, 2018, 01:41:18 am
The sexual harassment case against Brad Wardell from a few years back ended with the victim (alleged, whatever) issuing a public apology letter to Brad. Brad's joke of a settlement offer to F&P (https://dogarandkazon.squarespace.com/blog/2018/3/24/nope-and-nope) also demands that they issue a similar public apology.

Oh, I wouldn't call it an apology; Brad complained vociferously about it being inaccurately called an apology.  And he's right; it wasn't an apology; it was a forced insincere endorsement.

Which is actually worse, in my book.  A forced apology is "just" a humiliation, but this would have required P&F to tell all of their fans (https://www.dogarandkazon.com/blog/2018/3/24/nope-and-nope) how genuinely excited they were to have Brad continue their story.

That Brad would even propose forcing someone else to be so dishonest was one of the things that convinced me that his own integrity was sorely lacking.

I've seen lists that put Paul Reiche at an estimated net worth of 19 mil.  While Brad Wardell's is estimated 1.9 million.  Both as of 2018.
But where do you "see" that though? That seems very clearly like private financial information, I haven't seen either Brad or Fred & Paul release information like that.

I would also like to know the source on this.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 24, 2018, 01:48:27 am
Oh, I wouldn't call it an apology; Brad complained vociferously about it being inaccurately called an apology.  And he's right; it wasn't an apology; it was a forced insincere endorsement.

I feel like I'm misunderstanding something here. It seems very out of character for Brad to complain that his apology over sexual harassment allegations wasn't actually an apology, that just obviously sounds like something that would get him into more trouble and he would probably know that. Are you talking purely about the apology Stardock wants to receive from Fred and Paul? I don't understand why the two would have a connection.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 24, 2018, 02:15:16 am
Brad's joke of a settlement offer to F&P (https://dogarandkazon.squarespace.com/blog/2018/3/24/nope-and-nope) also demands that they issue a similar public apology.
Oh, I wouldn't call it an apology; Brad complained vociferously about it being inaccurately called an apology.  And he's right; it wasn't an apology; it was a forced insincere endorsement.

Which is actually worse, in my book.  A forced apology is "just" a humiliation, but this would have required P&F to tell all of their fans (https://www.dogarandkazon.com/blog/2018/3/24/nope-and-nope) how genuinely excited they were to have Brad continue their story.

I feel like I'm misunderstanding something here.
I think you are.  Did you try following the link?

Quote
Are you talking purely about the apology Stardock wants to receive from Fred and Paul?
I was, yes.

Quote
I don't understand why the two would have a connection.
They are connected in that both instances show Brad attempting to force his litigation opponent to submit to coerced speech.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 24, 2018, 02:22:04 am
I think you are.  Did you try following the link?
I see Fred and Paul are being asked for an apology in Stardock's complaint, but I don't know if that, on its own, is unreasonable given that it's a complex case and it is possible there are misunderstandings either side may have. Stardock clearly has a more aggressive stance, but asking for an apology alone isn't unreasonable.

They are connected in that both instances show Brad attempting to force his litigation opponent to submit to coerced speech.

I suppose I could see a loose connection that could set precedence for this possible coercion of Stardock's, but I more mean to ask why you hadn't produced actual credible references is for this sexual harassment allegation if it's true, because that's news to me and I don't think it's fair of me to make assumptions without seeing an actual report of it. It would still only be two points of data though, separated by years.



Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 24, 2018, 03:06:19 am
I see Fred and Paul are being asked for an apology in Stardock's complaint, but I don't know if that, on its own, is unreasonable given that it's a complex case and it is possible there are misunderstandings either side may have. Stardock clearly has a more aggressive stance, but asking for an apology alone isn't unreasonable if they are ruled correct in some of their claims.

As I said, it wasn't an apology; it was a requirement that P&F endorse Brad's ownership of the UQM story using a statement authored by Brad.  The intended effect of it, as best I can surmise, was to ensure that Brad's continuation of the UQM story would be accepted by the old fans as canonical, and to keep Paul from being able to disavow it as illegitimate.  Brad couldn't gain that legitimacy in the hearts and minds of the SC2 fans if he was viewed as having taken it by force, so he tried to coerce P&F into giving the fans the false impression that they were happy with the arrangement.

Quote
They are connected in that both instances show Brad attempting to force his litigation opponent to submit to coerced speech.
I suppose I could see a loose connection that could set precedence for this coercion of Stardock's, but I more mean to ask where your actual credible reference is for this sexual harassment allegation, because that's news to me.

I'll leave that one to Shiver.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 24, 2018, 03:19:37 am
As I said, it wasn't an apology; it was a requirement that P&F endorse Brad's ownership of the UQM story using a statement authored by Brad.

I could understand that then, it does explain why Brad said that UQM isn't actually safe.

The intended effect of it, as best I can surmise, was to ensure that Brad's continuation of the UQM story would be accepted by the old fans as canonical, and to keep Paul from being able to disavow it as illegitimate.  Brad couldn't gain that legitimacy in the hearts and minds of the SC2 fans if he was viewed as having taken it by force, so he tried to coerce P&F into giving the fans the false impression that they were happy with the arrangement.

I suppose that's possible, because when looking through the correspondence mentioned in Fred and Paul's countercomplaint, they claimed Brad was being misleading to the public by implying Fred and Paul were unofficially working with Stardock, which would have been a violation of Fred and Paul's alleged agreement with Activision, which, in the gaming industry, seems very likely to include a no-compete clause. So, Brad implying any work for a competing game company like Stardock might have actually gotten Fred and Paul in trouble with Activision and delayed Activision's permission for any development and announcement of content relating to Fred and Paul's sequel.

I'll leave that one to Shiver.
Even if they find it though, it doesn't seem like a very strong connection to this completely separate legal case. Bringing it up seems like the same kind of tactic Stardock itself would use to paint Fred and Paul as morally reprehensible. If they bring it up with that intention, then they are no more legitimate than the party they claim to oppose on that same moral basis.


Title: Re: Stardock Litigation Discussion
Post by: Shiver on July 24, 2018, 04:09:44 am
Quote from: CommanderShepard
I suppose I could see a loose connection that could set precedence for this coercion of Stardock's, but I more mean to ask where your actual credible reference is for this sexual harassment allegation, because that's news to me and I don't think it's fair of me to make assumptions without seeing an actual report of it. It would still only be two points of data though, separated by years.

The tail-end of the dispute: https://kotaku.com/stardock-lawsuits-dropped-ex-employee-apologizes-1377925759

An article laying out the case itself: https://kotaku.com/5940401/pc-gaming-studio-said-she-ruined-their-game-but-only-after-she-sued-the-boss-for-sexual-harassment

I spent a few minutes trying to find links other than Kotaku, as people on Stardock's side of the fence consider the second link to be a hit-piece (if I recall correctly), but everything I found on my cursory search pretty much referenced the above article in some form. If it's of interest to you, feel free to feel free to Google search "Miseta vs Wardell" yourself. I'll only add that while this lawsuit was occurring, I was linked to Brad Wardell's twitter where he admitted to sending one of the more incriminating emails mentioned in the dispute, the one containing the words...

"...
#3, however is not acceptable to me. I am an inappropriate, sexist, vulgar, and embarrassing person and I’m not inclined to change my behavior. If this is a problem, you will need to find another job.
#4, Again, I am not willing to adapt my behavior to suit others. IF you find my behavior problematic, I recommend finding another job.
..."


That was where I made up my mind about the case, personally.


Even if they find it though, it doesn't seem like a very strong connection to this completely separate legal case. Bringing it up seems like the same kind of tactic Stardock itself would use to paint Fred and Paul as morally reprehensible. If they bring it up with that intention, then they are no more legitimate than the party they claim to oppose.

It's interesting that you're expressing such a strong inclination on this particular issue. At the onset of this derail, I really only intended to express a strong distaste for the letter Stardock insisted on Fred and Paul publishing as part of their settlement offer. Who are you, again?


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 24, 2018, 04:18:53 am
That was where I made up my mind about the case, personally.
You can do that if you want, but a commercial online site that spams people with adds alone isn't even a credible source. I was expecting for you to post legal documents similar to those of the current case if you did not regard my comment.

It's interesting that you're expressing such a strong inclination on this particular issue. At the onset of this derail, I really only intended to express a strong distaste for the letter Stardock insisted on Fred and Paul publishing as part of their settlement offer. Who are you, again?
While you're entitled to your opinion, I will point out to you for your sake and encouraging people refrain from demagoguery as it only detracts from understanding the issue, that, for you, demagoguery delegitimizes your stance, which then delegitimizes your alleged support for Fred and Paul and reflects adversely on them when they are associated with such claims. The same is true for Stardock and people who favor Stardock. In other words, just because you perceive others to troll doesn't mean you should also troll.

My interest is research-oriented to create a more accurate understanding of my own on the issue, based on a culmination of perspectives and comparisons of both sides and neutral third parties. That's why I take the time to have correspondence with both parties. Since other people have had similar questions as many of mine and there are many aggressive comments going around, I sympathize with their curiosity and feel I should share my perspective on the subject.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 24, 2018, 04:48:18 am
Let's move any further discussion that doesn't directly bear on the Stardock v. Reiche case to the Cafe (http://forum.uqm.stack.nl/index.php?board=3.0), please.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on July 24, 2018, 01:27:09 pm
Youtuber Law publishes part 2 of his analysis of the complaint & counter-claim
https://www.youtube.com/watch?v=Qg1kUnU5344

Brad Wardell emails him and posts "supportive" comments on the video, as usual.  ::)


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on July 24, 2018, 10:58:00 pm
I find it odd that Stardock claims Fred and Paul caused their company damage by misrepresenting the truth when this neutral observer also points out flaws in Stardock's claims. Anyone on the internet can suggest their own opinion on the subject, especially as verified by people like this, so I don't see as legitimate grounds for Fred and Paul's ill-intent.

However, it would more likely be related to Stardock's claims of the PR firm that allegedly used sockpuppet accounts on the Star Control subreddit to say negative things about Stardock. Though I'm unsure if Stardock legally owns or lays any claim to a subreddit.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on July 27, 2018, 04:06:30 pm
Update:  If the default federal rule (https://www.law.cornell.edu/rules/frcp/rule_15) applies, amended reply briefs should be due Monday night.  Depending on when/whether they get loaded onto CourtListener, we could have them available to read by Tuesday.


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on August 01, 2018, 05:36:13 am
Elestan and Yazman, thank you for disseminating these documents to the community.


Okay, I was just doing some re-reading of the briefs, and noticed a bit of wording that smells...sneaky.  I think I might have just figured out how Stardock is trying to claim that the1988 agreement (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.37.1.pdf) is still active.  Buckle your seatbelts, because this gets pretty twisted::

Quote from: ¶17 of Stardock's complaint
Separate from the license grant, as defined in the 1988 Agreement, the 1988 Agreement also provided to Accolade  the sole and exclusive right to create computer software programs based on or derived from any characters, themes, settings or plot lines from the Classic Star Control Games and any translation, port or adaptation of the Classic Star Control Games in exchange for the payment of certain royalties to Reiche. (emphasis added)

This language seems to be pulled from the rights grant for "Sequels" in §3.3.
This language seems to be pulled from the definition of "Sequels" in §1.10.
This language seems to be pulled from the definition of "Derivative Work" in §1.5.

While I think that this explanation of where ¶17 might have come from is persuasive and makes a lot of sense, I also think it's important to not focus too much on what amounts to a background allegation not really connected to any particular cause of action, even though its written to look intimidating to non-lawyers. (I imagine that attorneys would be more moved by this paragraph had Stardock not obfuscated the source of its assertion.)

As I discussed earlier, had Stardock wanted to accuse F&P of breach of contract, it could have forced F&P into private arbitration, and the whole matter would have been resolved before any of us ever found out there was a dispute. Stardock has instead chosen to essentially undermine the License Agreement (by alleging that PaulReiche had no copyrights to license in the first place) and not seek to enforce any of Stardock's rights thereunder. Stardock is alleging that the License Agreement no longer matters (whether any part of the 30-year-old contract is active or not), and Stardock's only copyright claim against F&P relates to purportedly unauthorized sales of SC3 via GOG (not the unauthorized development of a new Sequel).


So "Sequels", while they are certainly "derivative works" under copyright law, are arguably a disjoint category from "Derivative Works" as defined in the contract.  A new game based in the Star Control 2 universe would then be a "Sequel", and a "derivative work" (by copyright), but not a "Derivative Work" (by contract).

This is one of the reasons I find it intriguing that Stardock has continued to not formally incorporate the License Agreement as an exhibit to any of its complaints. For example, without the License Agreement attached, ¶¶18-20 of the SAC are facially misleading, as they use defined terms from the contract without distinguishing their generally-understood (and quite distinct) copyright meanings. It would be one thing had Stardock gone all-in and mentioned the License Agreement solely as a point of historical fact, but Stardock is actually making legal assertions based on the content of the License Agreement...


It may be worth noting that the sequel provisions of the License Agreement do not appear to have been especially well-drafted. For instance, the (capitalized) defined term "Sequels" from §1.10 is used only once in §3.3 - quite possibly an error in reifying the parties' agreement.

Addendum No. 1 uses both "Sequel" and "sequels" in §4, which expressly provides that the 3DO version of SC2 is neither a §3.3 Sequel nor a Derivative Work.

Addendum No. 2, §3 describes SC3 as a "Sequel" not subject to §3.2 or §3.4. But SC3 is a mere "sequel" in the Recitals, the seemingly controlling §3.3 goes completely unmentioned, and §2 of the Addendum would presumably be superfluous were §3.3 still in effect. One could indeed infer that some sort of course of dealing and/or course of performance argument could arise over this.

Addendum No. 3 does not feature the defined term "Sequel" at all. Instead, it discusses "new versions and sequels to the Classic Star Control Software" - once again expressly not subject to §3.2 or §3.4 - in a way that one could reasonably view the final addendum as a novation completely replacing §3.3 (among other things). I am aware that Frogboy has suggested that Stardock was not bound by this particular Addendum when stepping into Atari's shoes after the bankruptcy - I would be quite disappointed were Stardock's counsel to make the same assertion (especially after citing this Addendum in the somewhat misleading ¶25 of the SAC).

Quote from: 1988 agreement §2.2
Sales Term:  This License Agreement shall continue in effect with respect to the sale, licensing and sublicensing of each Work, Derivative Work and Derivative Product, for as long as such Work, Derivative Work, and Derivative Product are generating royalties to the Developer of $1000 per annum.

Note that there is no mention of Sequel rights.  One could infer, based on the fact that Accolade came back to Paul for a license when they wanted to make SC3, that Accolade believed that the Sequel rights also terminated.  If that was the intent of the parties, then this omission was simply a mistake.  To me, that best fits the "common sense" test:  Given the rest of the language in the contract designed to carefully limit the term and scope of the copyright grant, it seems wildly incongruous to think that Paul would have agreed to giving Accolade perpetual Sequel rights.  But if you want to ignore all of that and just mechanically look at the wording, there's a way that one could try to argue that this termination condition doesn't apply to Sequels.

Given that §3 of the License Agreement is labeled "Exclusive License" and purports to license rights ordinarily only available to the copyright owner from Developer to Publisher (i.e., it is, in fact, a license), it could be a fair reading of the License Agreement that none of §3 remains in effect with respect to a given Work once the Sales Term ends, as §2.2 does terminate the licensing of a Work once the Sales Term expires. (Fair, but pedantic, as we might have to consider Sequels to SC1 separately from Sequels to SC2.) But it's correct that there is no specific language here addressing the fate of Sequel rights for out-of-print Works.

Fwiw, Frogboy seems to accede to this point in his October 6th email to Fred (where a discussion of §§3.1, .3 & .4 is bundled with assertions that the Sales Term is ongoing). By early December, however, his position had...evolved such that he could specifically opine in Stardock's forum, just before filing suit, that §3.3 would survive the "termination" of the License Agreement. Of course, if Stardock were unfamiliar with the addenda and GOG agreements at this point, even a formal legal opinion would be of questionable value.

Either way, Frogboy's October 7th email to Fred - presumably the message referenced in ¶88 of the ACC - advises F&P that Stardock, after a discussion with its legal counsel, "will not interfere with your unauthorized derivative work." A knowing waiver which was publicized (with reference to the "licensed IP" and an explanation that GOTP wouldn't be called "Star Control") in the Stardock forums after the initial GOTP Announcement. Just because Stardock's attorneys threw a possible argument into the background material of their final amended complaint does not necessarily mean that they will advance this argument. Down the road, ironically, it may even end up that this is more of an issue for SCO than for GOTP.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on August 01, 2018, 05:34:54 pm
Youtuber Law part 3
https://www.youtube.com/watch?v=5RuLAtF9f6E


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 02, 2018, 06:29:07 am
The settlement proposal in that YouTube is so implausible that they would both agree to it. But it does seem strangely fair in how much it would piss off both sides.

A lot of interesting stuff in that vid. But on the subject of the aliens, it's especially interesting that the YouTuber thinks SC:O would be at risk of injunction for copying the SC2 aliens. As for the Trademarks in the aliens, he says in the comments "Those applications are more of a tactic to pressure Paul and Fred then they are real assertion of rights."

He seemed pretty certain P&F could get an injunction if they tried. I think it's fairly likely, but maybe not so cut and dry.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 02, 2018, 07:40:53 am
The settlement proposal in that YouTube is so implausible that they would both agree to it. But it does seem strangely fair in how much it would piss off both sides.

The problem is that neither party believes that they are doing anything controleld by their opponent's IP rights:

* Stardock believes that they are avoiding Paul's copyright by making their aliens similar but not "substantially similar".

* P&F believe that Stardock's trademark, even if not abandoned, doesn't control more than the phrase "Star Control", and that none of the claims to control the alien race names have merit.

But if either of them accepts an IP license from the other, that will probably be viewed as conceding the validity of the licensed IP, thereby estopping any attempt to assert otherwise.  So they both have a substantial disincentive to accept any sort of license from each other.  Maybe the summary judgement hearing will clarify their rights enough to help them reach a deal.

Quote
A lot of interesting stuff in that vid. But on the subject of the aliens, it's especially interesting that the YouTuber thinks SC:O would be at risk of injunction for copying the SC2 aliens. [...] He seemed pretty certain P&F could get an injunction if they tried. I think it's fairly likely, but maybe not so cut and dry.

I think the problem is the security bond.  To get an injunction, P&F would have to put up a bond to cover Stardock's potential damages if they didn't prevail at trial.  That means a large up front cost, and potentially ruinous consequences if the trial doesn't go their way.  And since jury trials of copyright are crapshoots anyway, they may be disinclined to take the risk.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 02, 2018, 09:04:32 am
Stardock just posted an errata (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.55.0.pdf) to their counterclaim responses, claiming a transcription error caused a missing paragraph.  It looks like the problem was somewhere around ¶90-91, although I also notice at least one textual change in ¶89.  I wonder if they have to provide redlines to opposing counsel when they do this?

h/t to Yazman again for publicizing the document.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 02, 2018, 09:10:13 am
Quote
A lot of interesting stuff in that vid. But on the subject of the aliens, it's especially interesting that the YouTuber thinks SC:O would be at risk of injunction for copying the SC2 aliens. [...] He seemed pretty certain P&F could get an injunction if they tried. I think it's fairly likely, but maybe not so cut and dry.

I think the problem is the security bond.  To get an injunction, P&F would have to put up a bond to cover Stardock's potential damages if they didn't prevail at trial.  That means a large up front cost, and potentially ruinous consequences if the trial doesn't go their way.  And since jury trials of copyright are crapshoots anyway, they may be disinclined to take the risk.

Personally I'm happy that so far they did not try for an injunction.
Why?
- It would just escalate things further.
- It would prove Stardock's narrative that F&P want to destroy Origins.
- It would disprove their own narrative that they themselves have no problem with Origins as such.
- It would distract even more from doing some game design for GotP.
- It would escalate things even further.


Title: Re: Stardock Litigation Discussion
Post by: PRH on August 02, 2018, 12:25:12 pm
The problem is that neither party believes that they are doing anything controleld by their opponent's IP rights:

* Stardock believes that they are avoiding Paul's copyright by making their aliens similar but not "substantially similar".

* P&F believe that Stardock's trademark, even if not abandoned, doesn't control more than the phrase "Star Control", and that none of the claims to control the alien race names have merit.

But if either of them accepts an IP license from the other, that will probably be viewed as conceding the validity of the licensed IP, thereby estopping any attempt to assert otherwise.  So they both have a substantial disincentive to accept any sort of license from each other.  Maybe the summary judgement hearing will clarify their rights enough to help them reach a deal.

That didn't stop Stardock from asking F&P to license their characters to them multiple times. Granted, that was before the lawsuit.

And by the way, is this how Stardock plans to use the alien names as trademarks?

https://www.stardock.com/games/starcontrol/store

Here we have the "Arilou" and "Chenjesu" DLCs for SCO being advertised, alongside one for one of the races original to SCO, the Mowlings. In all three cases there is a trademark sign accompanying the alien names.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on August 02, 2018, 01:19:27 pm
Youtuber Law part 3
https://www.youtube.com/watch?v=5RuLAtF9f6E

That settlement proposal is really weird. It gives each of them something they don't want so much and takes from them something they value greatly.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 02, 2018, 03:19:22 pm
Personally I'm happy that so far they did not try for an injunction.
Why?
- It would just escalate things further.
- It would prove Stardock's narrative that F&P want to destroy Origins.
- It would disprove their own narrative that they themselves have no problem with Origins as such.
- It would distract even more from doing some game design for GotP.
- It would escalate things even further.

There's a certain kind of person who is going to attack you no matter what, and then blame you for starting it.

Some of Stardock's greatest hits so far:

  • Suing Paul and Fred, including arguments that would undermine their Copyright. Then Stardock publicly says they were merely "requesting" Paul and Fred stop using their Trademark, and then blames P&F for their countersuit.
.

  • Rejecting P&F's October proposal, because Stardock insisted on (re-)publishing SC1 and SC2 without their permission. P&F's proposal would have ceded Trademark to Stardock, and kept the copyright (and lore and aliens) out of Stardock's hands. Stardock later goes on every forum to say this would have been an ideal proposal, except P&F were too stubborn.
.

  • Telling everyone that P&F lied about Stardock's settlement proposal. P&F respond by sharing Stardock's settlement proposal, which would literally assign all of P&F's IP to Stardock and promise to stop making any game even similar to Star Control for at least 5 years. Stardock responds that P&F broke the law by sharing their settlement proposal, and so Stardock will go all the way to court to get everything they deserve, because P&F couldn't negotiate in good faith.
.

  • Making public statements that P&F aren't the creators. The first time they did this, they had already begun selling SC1 and SC2 without P&F's permission, and dressed up their whole "not the creators" argument in an anniversary announcement. Of course, a few weeks later, the argument appears in their lawsuit, and is used to suggest that P&F don't own any Copyright in SC1 and SC2. Stardock is publicly selling P&F's games, saying they didn't create the games, and suing them. P&F respond, and Stardock blames them for making the dispute public.
.

  • Trying to Trademark the names of P&F's aliens, and including copies of said aliens in Origins. In the same breath, saying they're not copying the aliens, because they are different aliens, with the same name, and you can't copyright a name. All while the lawsuit tries to get a judge to invalidate P&F's copyrights anyway, which would make it much harder for P&F to challenge Stardock's Trademark applications. These new Trademarks would make it impossible for P&F to make GOTP, as it would give Stardock exclusivity over these characters. Stardock responds that they're doing nothing to stop P&F from making their new game, and that they're merely trying to "defend their Trademarks" from P&F.

It's one of the ugliest playbooks in today's political climate. Claim you're a victim, and then punch someone in the nose. If they try to defend themselves, you can now say that they're attacking you, and that you're a victim who had every right to punch them in the nose. Some people will actually take your side. Most people will look at the skirmish and say "clearly they're both sort of violent", without more scrutiny than that.

GOTP is already being destroyed by Stardock, thanks to the new alien Trademarks. If P&F fail to challenge the infringing use of their aliens, Stardock is more inclined to succeed in Trademarking them, which would stop P&F from being able to continue the SC2 story. Of course, Krulle is right. If Paul and Fred ask the court to freeze SC:O until the infringing aliens are removed, Stardock will blame P&F for keeping fans from playing SC:O.

It's cynical enough to work.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 02, 2018, 03:47:34 pm
And it is alas a way US-court system allows the deeper pocket to win always.
Just go one step further, and increase the stakes, until the attorney of the other side does not get paid anymore.

Very darwinian.

If you don't have the right starting position, you'll die.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 02, 2018, 04:11:47 pm
That didn't stop Stardock from asking F&P to license their characters to them multiple times. Granted, that was before the lawsuit.

Brad still makes the offer on social media occasionally.  If they accept it, he basically wins.

Quote
And by the way, is this how Stardock plans to use the alien names as trademarks?

https://www.stardock.com/games/starcontrol/store

Here we have the "Arilou" and "Chenjesu" DLCs for SCO being advertised, alongside one for one of the races original to SCO, the Mowlings. In all three cases there is a trademark sign accompanying the alien names.

I don't know if this DLC is the only place they are using them, or if they have them tied into the game more closely.  Has anyone actually seen them in use in the game (outside of NDA)?

P&F could plausibly ask for an injunction against this DLC.  Since it's free, any bond would be negligible.  However, I think the reason these two races were chosen was so that Brad could tell an artist: "Draw me a LGM", or "Draw me a crystalline alien", and get something Arilou-like or Chenjesu-like, while maintaining some plausible deniability of direct copying from the originals. So P&F would be testing their allegations of copyright infringement against the most defensible targets.

To wit, Brad has admitted that he doesn't dare use the Orz (https://forum.quartertothree.com/t/the-third-doctrinal-war-stardock-reiche-ford-and-star-control/134515/1070).


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 02, 2018, 07:04:43 pm
From the same thread...

Quote
You will find that the Orz was an alien that we wanted to get a specific license to use. Paul and Fred’s refusal meant no Orz now and presumably, no Orz ever after. But at the same time, we don’t have to let them use the Orz either.

... which contradicts the Stardock PR that they aren't interfering with GOTP.

(For the few people who are still repeating that talking point.)


Title: Re: Stardock Litigation Discussion
Post by: PRH on August 02, 2018, 10:56:22 pm
I don't know if this DLC is the only place they are using them, or if they have them tied into the game more closely.  Has anyone actually seen them in use in the game (outside of NDA)?

Well, if you mean the races themselves, the current Fleet Battles beta has a ship called the Arilou Observer. It's very different from the classic games' Arilou Skiff (it's not a flying saucer, it looks like a group of spheres spread radially). But what I meant is that Stardock now seems to use the alien names as trademarks for online goods (in this case, DLC packs). And the trademark sign is now used to emphasize that the alien names are used as trademarks. I don't know what legal consequences it all might have, since IANAL.

... which contradicts the Stardock PR that they aren't interfering with GOTP.

Well, Brad claims that all F&P need to do is to enter into a licensing agreement with Stardock to gain access to the alien names, and he claims it's easy enough so that no reasonable person would consider it an obstacle. I'm in no position to judge whether that is true or false.

It all seems to come down to one question: whether Stardock's claims to the alien names as trademarks are valid or not.

If they are (whether it's due to the fact that they're tied to the Star Control trademark that Stardock owns, or that they were common law trademarks previously owned by Accolade per the 1988 agreement) then F&P need these names to be licensed to them by Stardock.

If they aren't, and Stardock's claims to the alien names are illegitimate, then F&P just need to prove it in court, and once that's over they need to go back to making GotP.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 02, 2018, 11:30:59 pm
There's a massive difference between "Stardock is not stopping them from making GOTP" and "if they drop their defense and cede all rights to Stardock, then Stardock will promise will give them permission to make a new game under a different title".


Title: Re: Stardock Litigation Discussion
Post by: PRH on August 02, 2018, 11:44:44 pm
IIRC, no one is currently trying to make F&P cede their copyright to SC1 and SC2 to Stardock. I don't find any mention of it either on the Ultronomicon page or in Stardock's amended complaint. The only copyright infringement claim that Stardock's complaint makes is for SC3. As for the trademarks, it's what I just said.

Quote
It all seems to come down to one question: whether Stardock's claims to the alien names as trademarks are valid or not.

If they are (whether it's due to the fact that they're tied to the Star Control trademark that Stardock owns, or that they were common law trademarks previously owned by Accolade per the 1988 agreement) then F&P need these names to be licensed to them by Stardock.

If they aren't, and Stardock's claims to the alien names are illegitimate, then F&P just need to prove it in court, and once that's over they need to go back to making GotP.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 03, 2018, 12:45:13 am
We can parse it down to more detail. Stardock said in their settlement offer that they will drop the lawsuit once P&F assigns their Copyright to Stardock. They've also asked the court to invalidate P&F's Copyright in the SC2 characters, while applying for Trademarks in those characters. The end result is to negate any IP that P&F have, and for Stardock to take as much control over the SC2 IP as possible. The short version: this would prevent P&F from making GOTP.

Stardock tries to address this in their Q+A:

"...one of the proposals was to transfer any and all IP they claimed in exchange for lowering the damages. ... None of this would prevent Paul and Fred from making a new game if that really is their desire. Stardock, in turn, would be happy to license, free of charge, any IP they needed to make their new game." (https://www.stardock.com/games/starcontrol/article/487690/qa-regarding-star-control-and-paul-and-fred)

So let's check Stardock's settlement offer:

"Defendants hereby assign to Stardock, pursuant to the Agreement set forth in Exhibit C hereto, any and all right, title and interest that they have in and to any and all intellectual property they own relative to the Classic Star Control Games". (https://issuu.com/dogarandkazon/docs/settlement_agreement__stardock_vs_r)

Including the part that Stardock has never publicly addressed:

"For a period of five (5) years from the Effective Date of this Agreement, Defendants shall refrain from developing and/or publishing any work that is within the same genre of games as the Classic Star Control Games" (https://issuu.com/dogarandkazon/docs/settlement_agreement__stardock_vs_r)

And of course, there's Stardock's pleading:

"Invalidate Reiche’s and Ford’s alleged copyrights, including any registrations they have obtained in connection therewith." (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.51.0.pdf)

It's worth reading that selected quote from the Q+A a few times. Once you spot the contradictions, it's obvious how misleading it is to say they're not stopping P&F from making a new game.

"If you just admit that the thing that you built belongs to me, and pay me $225,000, I would be happy to let you borrow, free of charge, whatever you need."


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on August 03, 2018, 01:19:22 am
But what I meant is that Stardock now seems to use the alien names as trademarks for online goods (in this case, DLC packs). And the trademark sign is now used to emphasize that the alien names are used as trademarks. I don't know what legal consequences it all might have, since IANAL.

This is the first use of Arilou as a trademark* at all. That they have to do it by creating DLC packs is in itself further evidence that the use of Arilou in the games is non-trademark use.

Under other circumstances, this would all be completely fine - Stardock could have the Arilou trademark and stamp it on whatever (non-infringing) computer game product they like, and P&F could use Arilou in their games, and nobody would be stepping on anyone else's rights. But we can be pretty sure what Stardock is actually going to do with it - protect attack their P&F's IP.  This gives P&F plenty of reason to believe they "would be damaged by the registration of a mark"  and file opposition.

*For computer games. Star Control may have some fans in Israel? https://ariloutech.com/



Title: Re: Stardock Litigation Discussion
Post by: PRH on August 03, 2018, 01:55:24 am
Quote
"Invalidate Reiche’s and Ford’s alleged copyrights, including any registrations they have obtained in connection therewith."

How could I have missed that... I've mentioned it on the Ultronomicon page now.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 08, 2018, 11:25:22 pm
That they have to do it by creating DLC packs is in itself further evidence that the use of Arilou in the games is non-trademark use.

Except that they don't because Fred and Paul's copyrighted content is not protected by the Star Control trademark, it's protected by their own completely separated copyright. Stardock using FP's races only makes it more likely that the court will rule Stardock is infringing on FP's copyright.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 09, 2018, 01:34:02 am
Except that they don't because Fred and Paul's copyrighted content is not protected by the Star Control trademark, it's protected by their own completely separated copyright. Stardock using FP's races only makes it more likely that the court will rule Stardock is infringing on FP's copyright.

Brad likes to push the narrative that the Arilou, Orz, etc. are the "Star Control Aliens", and that by virtue of their association with the "Star Control" trademark, Stardock is able or even obligated to use those aliens in its new games.  I think a more accurate way to view it is that once Atari's license to create games using Paul's content expired, they ceased to be "Star Control Aliens" in anything but a historical sense, and became "Paul Reiche's fictional aliens", or perhaps "Ur-Quan Masters Aliens".


Title: Re: Stardock Litigation Discussion
Post by: Boerta on August 09, 2018, 06:50:21 pm
Sorry for being late to the party, but i've spent the last week reading everything i could find about this stuff, and I'm stuck with a few questions:

1. Re: the gotp announcement debacle - When calling gotp the "true sequel" to star control 2 (not simply star control as stardock keep asserting), it seems most likely to me that P&F were referring to supplanting the star control 3 storyline as canon. Their later revisions of the text to now call it the "direct sequel to The Ur-Quan Masters" seems to support this. Stardock are very hung up on this announcement thing, and assert that it was done maliciously, especially the "true sequel" wording.
The onus is on Stardock to support the assertion of maliciousness, right? Common sense tells me that P&F should just cede this point as an honest slipup, but what are the ramifications of that?

2. Stardock asserts that they need/want to register all the original alien names to strengthen their Star Control trademark.
Could it be argued that they are really weakening it?

Leaving aside the fact that it looks legally and (certainly!) ethically questionable, for me, it turns it into "that game with all the P&F alien ripoffs".  It also signals that they don't trust their own ability to create a good story.
Stardock/Brad talks about how reputation and goodwill (or whatever phrasing) is associated with the name (and apparently ONLY the name?), but that seems ass backwards to me. There is reputation and goodwill tied to the writing and characters, mannerism, backstory etc. All of that stuff happens to have a name. Reusing the name only makes the new stuff look cheaper to me.
To quote Bruce Lee: "Its like a finger pointing away to the moon. Dont concentrate on the finger or you will miss all that heavenly glory.”
Stardock seems really focused on the finger.
I am but a single data point, of course..

On the legal side, can this be meaningfully compared to domain squatting?
I see that the trademark applications were filed in March. What do the courts typically think about filing for trademarks on things that are subject to ongoing litigation?

3. Does all the PR spin that Stardock produces serve any legal function at all?
The volume of forum postings and arguably slanted FAQs - are they expected to hurt or help their litigation? Is there actually a jury deciding this case in the end, that may be swayed by this stuff?
Or is this just damage control to try to keep their litigation from harming the sales of SC:O?

4. I have noticed that Brad used to go around posting that he was using people's forum posts as "evidence". Is there any merit to this, or is it just a scare tactic? Which party, if any, are we hurting by having these discussions?

Disclaimer: I want both parties to release their games. I'd prefer if Stardock did theirs without cheap UQM knockoffs. Currently I'm having a hard time ethically justifying buying SC:O.. Maybe also pay a multiple of the SC:O sales price to the frungy defense fund to help me sleep at night? I dunno..


Title: Re: Stardock Litigation Discussion
Post by: Serosis on August 09, 2018, 11:16:59 pm
Disclaimer: I want both parties to release their games. I'd prefer if Stardock did theirs without cheap UQM knockoffs.

To clarify something. The focus of the game is not on the, "cheap UQM knock-offs".
SCO's story was already set in stone by the time this whole thing came about so what we're getting in-game are more akin to Alternate Universe cameos.
And that's been the story since the beginning so that SCO wouldn't have to step on the toes of the original lore, it's not the same Universe as UQM or Kessari.

The redesigns can be explained away as tangents in the evolutionary path of that particular timeline. It's practically a trope as it is since there are plenty of precedents in sci-fi.

I agree that SCO should stand on its own merits though and from what I've seen and played so far it has felt like Star Control and has been as fun.
Unfortunately I can't say much more than that.



Title: Re: Stardock Litigation Discussion
Post by: Boerta on August 10, 2018, 12:03:28 am
Ok, so they are not the focus of the game. Just a cameo in fact, and a "fake" one at that, but somehow vitally important to have in there.
I'm still not sold on a plausible story that it's anything other than an attempt to block gotp. Or some kind of spiteful attempt at acquiring the p&f copyrights by force.


Title: Re: Stardock Litigation Discussion
Post by: Boerta on August 10, 2018, 02:01:10 pm
So, this structurally sounds like me writing a book inspired by the Harry Potter novels, just set in a parallell dimension, where a lot of the same characters make (cameo) appearances. Except Harry Potter doesn't wear glasses for whatever reason.
And I trademark Hagrid, because it's important to this brand I'm building.

Or is that a false equivalence?


Title: Re: Stardock Litigation Discussion
Post by: SC3 Did Nothing Wrong on August 10, 2018, 08:00:17 pm
Wouldn't it be closer to a new Final Fantasy game where the universe and story are different different from other Final Fantasies but some characters (cd. Cid) make appearances but are not the same as Cid's from other Final Fantasy games.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on August 10, 2018, 08:35:08 pm
But FF has no continuity except for FFT-2 and FFX-2. So none of the Cids are the same anyway. So all that's common is the label and a tendency towards being mechanically inclined, esp. regards things that fly but not exclusively. This is quite different from Arilou and Chenjesu.


Title: Re: Stardock Litigation Discussion
Post by: Serosis on August 11, 2018, 12:52:00 am
Wouldn't it be closer to a new Final Fantasy game where the universe and story are different different from other Final Fantasies but some characters (cd. Cid) make appearances but are not the same as Cid's from other Final Fantasy games.

SCO is more akin to the 2009 Star Trek reboot but without all the "old faces".
It isn't using the few classic races as a crutch but more as a pleasant how-do-you-do.

Think alternate universe. The classic aliens still exist, but they are in drastically different situations.

Like, the Ur-Quan could be somewhere out there in the SCO Universe, but there never was a Sentient Mileu and they never met the Dnyarri. That's the kind of alternate universe this is.
Making a mountain of a mole hill here with the use of classic races.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on August 11, 2018, 02:12:43 am
Making a mountain of a mole hill here with the use of classic races.

If only Stardock saw it that way.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 11, 2018, 02:48:42 am
1. Re: the gotp announcement debacle - When calling gotp the "true sequel" to star control 2 (not simply star control as stardock keep asserting), it seems most likely to me that P&F were referring to supplanting the star control 3 storyline as canon. Their later revisions of the text to now call it the "direct sequel to The Ur-Quan Masters" seems to support this. Stardock are very hung up on this announcement thing, and assert that it was done maliciously, especially the "true sequel" wording.
The onus is on Stardock to support the assertion of maliciousness, right? Common sense tells me that P&F should just cede this point as an honest slipup, but what are the ramifications of that?

Once things are in litigation, neither party tends to concede things when they could force the other side to try to prove them.  But your assessment roughly matches mine; I think P&F probably made a couple of honest mistakes in their initial announcements;

* They used the SC2 box cover image in it.
* They used the phrase "Star Control II®" in their announcement, but forgot to add the fine print phrase "Star Control is a registered trademark of Stardock Systems Inc."

They fairly quickly remedied these, so I see no evidence that they were a deliberate trademark infringement.  However, Stardock appears to want to try to maximize the pressure on P&F by trying to color their actions as deliberately malicious and fraudulent.

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2. Stardock asserts that they need/want to register all the original alien names to strengthen their Star Control trademark. Could it be argued that they are really weakening it?

I don't think they're weakening it further, unless P&F actually succeed in getting it cancelled.  Even then, Stardock can just claim a fresh trademark; nobody else is trying to make a game called "Star Control" right now.

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On the legal side, can this be meaningfully compared to domain squatting?

Vaguely, perhaps.  The body of law is entirely different, and the precept that you can't just claim identifiers without using them holds much more strongly with trademarks.

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I see that the trademark applications were filed in March. What do the courts typically think about filing for trademarks on things that are subject to ongoing litigation?

My understanding is that at some point in the trademark opposition process, P&F will tell the TM office "These trademark are the subject of ongoing litigation", and the TM office will put them all on hold until the court rules.

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3. Does all the PR spin that Stardock produces serve any legal function at all?

I don't think so.  I think the issue is that Stardock has pursued such a scorched-earth legal strategy that unless it manages to make P&F into villains, much of the gaming public isn't going to buy that it was justified.

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Is there actually a jury deciding this case in the end, that may be swayed by this stuff?

I would expect any juror who has read anything about this case to be disqualified, so no.

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Or is this just damage control to try to keep their litigation from harming the sales of SC:O?

This.

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4. I have noticed that Brad used to go around posting that he was using people's forum posts as "evidence". Is there any merit to this, or is it just a scare tactic?


Well, evidence of actual brand confusion caused by P&F's statements is one factor that goes into the legal calculations, so it's not completely specious, but they seem to have already picked their exhibit (it was a post from RPGCodex).  I think it was mostly a scare tactic.

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Which party, if any, are we hurting by having these discussions?

Legally, I don't think forum discussions matter much at all, but they can factor in the general gaming community's opinion over who is being (un)reasonable, and that could influence future sales.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 11, 2018, 03:02:16 am
So, this structurally sounds like me writing a book inspired by the Harry Potter novels, just set in a parallell dimension, where a lot of the same characters make (cameo) appearances. Except Harry Potter doesn't wear glasses for whatever reason. And I trademark Hagrid, because it's important to this brand I'm building. 

Or is that a false equivalence?

That seems reasonably close to me.  Stardock is probably trying to change the characters more than that, so maybe Hagrid is villainous or something.

Wouldn't it be closer to a new Final Fantasy game where the universe and story are different different from other Final Fantasies but some characters (cd. Cid) make appearances but are not the same as Cid's from other Final Fantasy games.

Not really, because aren't the copyrights and trademarks for the FF franchise all owned by Enix?  If so, they've got total control, and can do whatever they want.


Title: Re: Stardock Litigation Discussion
Post by: Serosis on August 11, 2018, 04:30:46 am
So, this structurally sounds like me writing a book inspired by the Harry Potter novels, just set in a parallell dimension, where a lot of the same characters make (cameo) appearances. Except Harry Potter doesn't wear glasses for whatever reason. And I trademark Hagrid, because it's important to this brand I'm building.  

Or is that a false equivalence?

That seems reasonably close to me.  Stardock is probably trying to change the characters more than that, so maybe Hagrid is villainous or something.

I already gave a reasonable comparison from the perspective of someone who has already played the full game.

Alternate Universes/Timelines are in effect here.
It is a reboot into a completely different timeline a la Star Trek 2009 without resorting to piggybacking on the classic characters.
I.E. New captain, new commander, new aliens, new story, new sector, new starmap, new flagship, new melee, new planets, new minerals, new creatures, and new versions of the classic races when they cameo.

Is it really that hard to wrap the thought around that these races would exist in alternate universes/timelines?

Nobody here watches Stargate, Star Trek, Babylon 5, Rick & Morty, Back to the Future, Red Dwarf, etc, etc, etc?


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 11, 2018, 05:10:59 am
Is it really that hard to wrap the thought around that these races would exist in alternate universes/timelines?

Nobody here watches Stargate, Star Trek, Babylon 5, Rick & Morty, Back to the Future, Red Dwarf, etc, etc, etc?

Coincidentally, I just got done re-watching SG:Atlantis.

The alternate universes/timelines isn't confusing, but it seems to me that any attempt by Stardock to say that they are in an "alternate" variant of the classic SC setting is still a copyright violation.  Without a license, they just don't have the right to claim to connect their game to that setting in any way.  They should just say "This is a new universe, with new aliens and characters", and be done with it.  What do they gain by insisting on that connection, other than hostilities with P&F?

It isn't using the few classic races as a crutch but more as a pleasant how-do-you-do.

I would say that forcing those races into the game may not be a crutch, but doing it against their creators' wishes certainly isn't a "pleasant how-do-you-do"; it's more of a spiteful gesture made for dubious legal purposes.


Title: Re: Stardock Litigation Discussion
Post by: Serosis on August 11, 2018, 09:22:49 am
I saw it more as P&F slyly saying that Stardock isn't doing "genuine" Star Control because it doesn't have this laundry list of aliens, so Stardock retorted with a couple of cameos.
I agree it's a hot mess but it can just as easily be explained in-universe.

I wouldn't know how a jury or a court will think of it but I believe that the aliens (name & designs) are connected to the Star Control "brand", so to speak, but they are also connected to the UQM "brand".
My opinion is both Stardock and P&F should be able to have the right to their respective versions.

Stardock is bending over backwards to redesign them, so why not let them?

P&F can keep the designs as they are in UQM and refresh them for their sequel.

The only trouble I can foresee is that the trademarks would force P&F to not be able to use the alien names in promotions or advertising if they decide to not license them from Stardock.
I would love for P&F to find a loophole and "stick it to the man" as it were. Something that they've been good at since they've started.

I've speculated that it would be ironic if they would make their sequel in the SCO engine as a paid mod on Steam. Kind of a way to just shove it right up Stardock's tail-pipe in plain sight.
Full price, bingo-bango, UQM2 in SCO. It would be friggin' hilarious.

I know it would never happen, but the thought of it tickles me.


Title: Re: Stardock Litigation Discussion
Post by: Boerta on August 11, 2018, 12:13:10 pm
Except the guys at Stardock are right out saying that their trademarks on all the names prevents P&F from making a new game with any of the names in.

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Schism NavigatorLast Monday at 7:00 PM
Paul & Fred can make something similar to Fwiffo. But they don't own the name Fwiffo.
They never did.
Schism NavigatorLast Monday at 7:01 PM
They could actually just use a different name and use the same lore.
But names are protected under trademarks.

Schism NavigatorLast Monday at 7:03 PM
You can't make your own Captain Picard in your story.
Just as P&F can't use Fwiffo because they don't own the name.
They were offered the trademark.

Schism NavigatorLast Monday at 7:03 PM
And had multiple opportunities to work with Stardock.
They chose to get lawyers involved.

THEY chose to get lawyers involved! (even though we sued them first...)


Title: Re: Stardock Litigation Discussion
Post by: Lakstoties on August 11, 2018, 12:18:56 pm
I wouldn't know how a jury or a court will think of it but I believe that the aliens (name & designs) are connected to the Star Control "brand", so to speak, but they are also connected to the UQM "brand".

There's no official connection when it comes to federal law.  There's nothng under the "Star Control" mark's federal registration that shows any kind of connection.  Anything of that nature is Stardock's horrific portrayl of how federal trademark law works.  The tradeamark registration simply covers the mark itself... nothing more.

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My opinion is both Stardock and P&F should be able to have the right to their respective versions.

Stardock is bending over backwards to redesign them, so why not let them?

Copyright law.  And Stardock isn't bending backwards over to redesign them... they're just trying to see how close they can get in an attempt to subvert the law.  If they had any honest intent to avoid issues...  They WOULD NOT be using the same names and use all the major atttributes in their designs.  They have shown the ability to design their own... why design them so closely to the original concepts and have them so possibly derivative?

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The only trouble I can foresee is that the trademarks would force P&F to not be able to use the alien names in promotions or advertising if they decide to not license them from Stardock.

Paul and Fred DO NOT have to license anything from Stardock.  Again, another misrepresentation of the law from Stardock.  Stardock CANNOT use their supposed trademark filings as a means of limitation of freedom of expression.  Period.  That would be a First Amendment violation.  As per the Rogers Test.  The aliens are creatively significant to their work.  Even if the marks get past the trademark office, they only protect the labeling OUTSIDE and ON a product not the discussion of what COMPROMISES and is IN the product itself.

Again, Stardock is completely and absolutely wrong in their shown demonstration of the trademark law.  They are basically filing a mass of frivilous claims to financially fatigue their opponent.  They are blatantly abusing trademark law in a twisted attempt to override copyright law.

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I would love for P&F to find a loophole and "stick it to the man" as it were. Something that they've been good at since they've started.

They don't need to find a loophole.  They are protected by the laws normally.  Stardock is trying to twist it.

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I've speculated that it would be ironic if they would make their sequel in the SCO engine as a paid mod on Steam. Kind of a way to just shove it right up Stardock's tail-pipe in plain sight.
Full price, bingo-bango, UQM2 in SCO. It would be friggin' hilarious.

I know it would never happen, but the thought of it tickles me.

Why would they ever need to use Stardock's product to make their own?  That's not shoving up Stardock's tail-pipe...  That would be near capitulation and exactly what Stardock wanted in the first place apart from complete control.


DO NOT believe Stardock's use of law...  They are WRONG.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 11, 2018, 05:33:51 pm
I saw it more as P&F slyly saying that Stardock isn't doing "genuine" Star Control because it doesn't have this laundry list of aliens, so Stardock retorted with a couple of cameos.

I don't think that's quite right.  At most, P&F are suggesting that the lack of those aliens means that SC:O isn't a genuine sequel to SC2.  And to a great degree, they're right:  If I heard that SC:O was a sequel to SC2, and bought it on that basis, I would be very disappointed, because I'd be looking to find out about what Zelnick, Talana, and Fwiffo did after destroying the Sa-Matra.

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I wouldn't know how a jury or a court will think of it but I believe that the aliens (name & designs) are connected to the Star Control "brand", so to speak, but they are also connected to the UQM "brand".
My opinion is both Stardock and P&F should be able to have the right to their respective versions

I'm reasonably confident that Stardock's trademark claims on the alien names are flawed enough that they won't be able to to stop P&F from using them.  The YouTuberLaw guy seemed to think that they were just a legal pressure tactic, by which I presume he means a way to increase the legal fees on both sides in the hope of running P&F out of money.

I'm less confident as to whether P&F's copyright claims can block Stardock's use of the aliens.  That's a jury question, and juries are unpredictable.  Moreover, Stardock is (of course) starting with the races where they have the best chance of winning.  I'm guessing that if they win on the Arilou and Chenjesu, they'll start trying to push the boundary by gradually introducing the other races, knowing that even if using the Spathi would be infringing, P&F would need to start the litigation process all over again to stop them.

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I've speculated that it would be ironic if they would make their sequel in the SCO engine as a paid mod on Steam. Kind of a way to just shove it right up Stardock's tail-pipe in plain sight.
Full price, bingo-bango, UQM2 in SCO. It would be friggin' hilarious.

No, that would be monumentally stupid:  It would entangle P&F's IP with Stardock's even further, make them reliant on Stardock for their underlying technology, and help to drive the sales of a company that's making them take the money they had saved to make GotP and give it to lawyers instead.  As Lak observed, that wouldn't be "shoving it right up Stardock's tail-pipe"; that would be handing Brad almost everything he wanted on a silver platter.


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on August 11, 2018, 05:36:12 pm
Is there actually a jury deciding this case in the end, that may be swayed by this stuff?
My understanding is that, when a jury is selected, they specifically try to get people who don't know anything about the case, to avoid bias due to emotional investment. I don't know whether this case would be decided by jury, but if it is, they probably won't be swayed by this stuff.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 11, 2018, 06:06:09 pm
Except the guys at Stardock are right out saying that their trademarks on all the names prevents P&F from making a new game with any of the names in.

That's the thing...they don't have trademarks on all the names.  They are claiming to have trademarks on all the names, but that doesn't mean a thing until either the trademark office or a court validates their claim.  

Quote from: SchismNavigator
They could actually just use a different name and use the same lore. But names are protected under trademarks.

Just because names are protected under trademark does not mean that every name qualifies for that protection.

Quote from: Boerta
Quote from: SchismNavigator
They were offered the trademark. And had multiple opportunities to work with Stardock. They chose to get lawyers involved.

THEY chose to get lawyers involved! (even though we sued them first...)

Yes, Stardock often chooses their phrasing carefully to allow them to paint a veneer of truth over a misleading statement.  P&F's DMCA seems to have been the first formal legal demand made.  But it wasn't the first recorded involvement by a lawyer; that would be Stardock's filing for a trademark on SUPER-MELEE (https://tsdr.uspto.gov/#caseNumber=87662697&caseType=DEFAULT&searchType=statusSearch) in October.  So it's clear that Stardock already had lawyers involved at that point.  

Moreover, even Stardock's claim that they sued in response to P&F's DMCA is highly suspect.  The best I can tell (and if anyone can get me a date certain that would be great), P&F sent their DMCA on Monday December 4.  Stardock filed their lawsuit on Friday December 8.  Now, I'm not a lawyer, and perhaps a lawyer here could weigh in, but is it even plausible to think that a 90 page complaint (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.1.0.pdf) could be prepared and filed within four days?


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on August 12, 2018, 12:12:21 am

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Schism NavigatorLast Monday at 7:03 PM
And had multiple opportunities to work with Stardock.
They chose to get lawyers involved.

THEY chose to get lawyers involved! (even though we sued them first...)

Not that there's anything wrong with that, right?

I have never really understood this argument, perhaps because it's not really legally meaningful (and thus beyond my comprehension). But, as I understand it, on October 7th, Frogboy emailed Fred to say that, among other things, Stardock: (i) had discussed the dispute at length with Stardock's own legal counsel; (ii) will not interfere with F&P's then-unnamed sequel; and (iii) would put F&P's attorney in contact with Stardock's law firm.

Over the next few days, F&P both: (a) announced GOTP, possibly rushing before point (ii) could be withdrawn; and (b) directed their attorney to avail himself of offer (iii), which he did through a decidedly non-assertive letter. If it's true that "this is the first time lawyers have been involved," then we might surmise that Frogboy was bluffing in point (i), but I don't see how that makes F&P's relative timing nefarious.



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Schism NavigatorLast Monday at 7:03 PM
You can't make your own Captain Picard in your story.
Just as P&F can't use Fwiffo because they don't own the name.
They were offered the trademark.

I find Stardock's decision to invoke Star Trek here confusing. Most references to well-known IP are somewhat inapposite, if only because most franchises' trademarks and copyrights are not split up they way that Star Control's are. But there was a junior user who wanted to make (and raise money (https://www.kickstarter.com/projects/194429923/star-trek-axanar) for) his own Star Trek film (https://www.youtube.com/watch?v=1W1_8IV8uhA), which featured both named alien species and individuals from the Star Trek canon. Despite CBS and Paramount having numerous registered trademarks for many of the names in question, the inevitable lawsuit sounded in copyright, not trademark.1 So while it may be true that I can't make my own Captain Picard in my story, the owner of Picard's copyright might be able to, even without the trademark.2



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Schism NavigatorLast Monday at 7:00 PM
Paul & Fred can make something similar to Fwiffo. But they don't own the name Fwiffo.
They never did.
Schism NavigatorLast Monday at 7:01 PM
They could actually just use a different name and use the same lore.
But names are protected under trademarks.

It's not clear from this that the author fully understands Stardock's position regarding F&P's copyrights.

Reading the exhibits to the SAC, it appears to me that Stardock is not particularly concerned that F&P are preparing to invoke the Malcolm X / Innocence of Muslims / Dota 2 line of cases and argue that F&P were the creative force behind Star Control and never intended to share. I am curious to see how Stardock will distinguish SC2...

---

[1] The parties settled on the eve of trial, allowing the fan film to proceed.

[2] Ignoring for now that all of the Human and Syreen captains' names (and at least one Androsynth captain's name) honor similar sci-fi legends.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 12, 2018, 01:05:01 am
THEY chose to get lawyers involved! (even though we sued them first...)

Not that there's anything wrong with that, right?
I have never really understood this argument, perhaps because it's not really legally meaningful (and thus beyond my comprehension).

It's not legally meaningful, but it is relevant to public perceptions of the parties, as Stardock often attempts to cast itself as the victim in the dispute and P&F as the aggressors.  And since both parties are attempting to sell products into this market, the public perceptions do matter.


Title: Re: Stardock Litigation Discussion
Post by: Telecart on August 12, 2018, 03:16:25 am
Star Control may have some fans in Israel? https://ariloutech.com/



We are many. ^__^


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 13, 2018, 12:31:55 am
Stardock is bending over backwards to redesign them, so why not let them?

I'm not sure what bending over backwards means in this context.

A redesign would be so easy. It's what they were doing in the first place: making a new game with new characters.

The only thing that would stop them is Copyright law. The legal principle that it's wrong to profit from copying someone else's art.

Copyright protects art from being copied. And not just literal, pixel-for-pixel copies. Any substantial similarity is Copyright infringement. So you'd have to bend over backwards only if you were trying to copy something without triggering copyright infringement.

Stardock is hoping there is some perfect amount of copying that would make fans feel like they are the same aliens, without making a jury think that they are the same aliens.

It's a fool's errand. Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law. That's like saying you're going to jump on a neighbor's lawn so fast that you can't be caught trespassing, or you're only going to take a few grains of rice so nobody can tell you're stealing. It would work a lot better if you didn't say out loud that's what you're trying to do.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 13, 2018, 02:53:57 pm
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Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law. That's like saying you're going to jump on a neighbor's lawn so fast that you can't be caught trespassing, or you're only going to take a few grains of rice so nobody can tell you're stealing. It would work a lot better if you didn't say out loud that's what you're trying to do.

That's the second time I've seen you make this claim.  Please show where I've ever posted that we are trying to "copy" the artwork from SC2.

Next, show what copyright violation exists within Star Control: Origins.  Otherwise, kindly retract your suggestion that Stardock is "stealing" something.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 13, 2018, 07:18:00 pm
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Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law. That's like saying you're going to jump on a neighbor's lawn so fast that you can't be caught trespassing, or you're only going to take a few grains of rice so nobody can tell you're stealing. It would work a lot better if you didn't say out loud that's what you're trying to do.

That's the second time I've seen you make this claim.  Please show where I've ever posted that we are trying to "copy" the artwork from SC2.

Next, show what copyright violation exists within Star Control: Origins.  Otherwise, kindly retract your suggestion that Stardock is "stealing" something.

You simply denying something happened doesn't have any bearing on whether it actually happened. If someone breaks into a store and steals a TV, them denying they stole a TV doesn't magically erase the security footage and shards of broken glass.

Using the names of the races in conjunction with an objectively overall derivative artwork of each individual race that function in the same play-style, within the same genre, within the same industry doesn't constitute an infringement on any trademark, it constitutes an infringement on F&P's copyrighted characters themselves. If you chose to use the names for a completely different kind of game or at the least completely different races, you would be legally safe, and if you chose to use the current derivative art but with completely different names, you would have been legally safe, but using both is the most abrasively possible choice and has more than enough grounds to constitute infringement.

ACTUALLY, FROGBOY IS RIGHT TO ASK FOR A CITATION ON THAT. IT SHOULD BE AVAILABLE. - D999


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 13, 2018, 09:11:13 pm
If you want to accuse someone of wrong-doing, it is up to the accuser to provide evidence.

Rose alleged that I posted that we intended to copy the way the Star Control II aliens were expressed in Star Control II.  The onus is on Rose to back that claim up.  Or to be clear enough for you, if you have "the security footage and shards of broken glass" then let's see it.  Otherwise, that libelous comment should be retracted. 


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 13, 2018, 09:52:52 pm
Read again and take a deep breath. That's not what I said. The main point, in short, is Stardock has made dozens of statements about how they'll include the classic Star Control aliens in the new game, while also hoping that the US legal system believes that they didn't copy the aliens from the original games. As if the similarities between the SC2 aliens and the SC:O versions would be a complete coincidence.

Even if Stardock's alien Trademarks are valid (which is a big question at this point), once you start to tell people what's going on in the game, you're no longer talking about Trademark. That's not what Trademarks are for. Trademarks are on the packaging. "In the game" is Copyright.

Is it now libel to assert things that are in the pleadings? If that's the case, Stardock's Q+A is a much bigger issue than a random forum comment.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 13, 2018, 10:50:17 pm
Stardock owns the Star Control aliens. Paul and Fred *might* have copyrights to how those aliens were expressed in Star Control II but that's the extent of it.  Their agreement is very similar to the ones we have with our software developers (who also own the copyrights to what they develop). Fences, WindowBlinds, ObjectDock, etc. So we are very, very familiar with how the law works on this sort of thing.

What was libel was your assertion that I had stated an intent to copy the Star Control II expressions of the Star Control aliens.  Those are fighting words for those of us who's job is to create IP.  It's akin to calling a writer a plagiarist. 

I realize you know nothing about Star Control: Origins but it has its own well developed history and lore.  It strikes me as incredibly arrogant to suggest that are "copying" a particular expression of our own aliens.  We own our Arilou. Period.   The fact that there is confusion on this issue simply makes it just that much more obvious why this dispute might have been inevitable.  There's no "skirting" or "hoping" involved here.  Stardock will utilize the Star Control aliens as it sees fit.

If you see something we are doing that infringes on someone's copyright, then speak up and explain it. Otherwise, enough with the innuendo and FUD.   







Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 13, 2018, 11:09:13 pm
Again, "copying a particular expression of our own aliens" are your words, not mine. Before you talk about how strikingly arrogant it is for me to say something I didn't say, you might ask how it strikes everyone else that you're going to put words in other peoples' mouths and then attack them for it.

Practically your whole post is innuendo, whenever you leave out precisely what intellectual property it is that you are claiming to own, let alone use. When you say you're using "Star Control aliens", are you talking about the same aliens that appeared in Star Control 2, or are you just slapping the "Star Control" trademark on a new set of original aliens and calling those "the Star Control aliens"? You don't get to have it both ways. One of them is the severe risk of Copyright infringement. The other is such a misuse of what most fans would understand as "Star Control aliens" as to be the same innuendo that you're complaining about.

Welcome back, by the way.

IT KINDA LOOKS LIKE YOU SAID WHAT HE SAID YOU SAID, THOUGH. - D999


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 14, 2018, 01:23:55 am
Stardock owns the Star Control aliens.

Sure, you're probably right there.  But I would contend that the Spathi, Orz, and the rest ceased to be "Star Control Aliens" when Atari's license to use them expired.

Just because a product is licensed for sale under one brand name for a while doesn't mean that the owner of the brand gets to retain ownership of aspects of the product once its license expires.  For example, Chrysler licensed the Dodge Stratus to be sold in Russia by GAZ under its Volga brand from 2008-2010.  Even if aspects of that car came to be associated with the Volga brand name during that time, I highly doubt that GAZ could claim that it somehow acquired the rights to use them (and keep Chrysler from using them) after its license expired.

One could, perhaps, say that the Stratus was a Volga car.  But it would be inaccurate to say that it is a Volga car, now that the licensing arrangement has ended.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 02:13:17 am
@Rosepatel:  You're the one accusing people of wrong-doing.   As the saying goes, put up or shut-up.  You accused me of stating that we would be copying something. Show us where I said that.

@Elestan: I understand where you are coming from.   However, the law is pretty clear on this.  This is why I don't think you still understand trademarks.   When you say things like "it wouldn't be a big deal if Stardock lose the Star Control trademark.." combined with your argument in thinking that a copyright could somehow cover some sort of...I dunno...universality of expression it tells me that you aren't understanding the general concept here.   

Sometimes, I think that you're purposely trying not to understand because this seems so obvious but then I'll talk to you on Discord and be convinced that you mean well so I don't know what to think. 

The bottom line is that future Star Control games will have Star Control aliens in them.  And Stardock will vigorously defend its rights in perpetuity.  If someone wants to use our IP, they will need our permission. 


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 14, 2018, 02:29:47 am
If you want to accuse someone of wrong-doing, it is up to the accuser to provide evidence.

Rose alleged that I posted that we intended to copy the way the Star Control II aliens were expressed in Star Control II.  The onus is on Rose to back that claim up.  Or to be clear enough for you, if you have "the security footage and shards of broken glass" then let's see it.  Otherwise, that libelous comment should be retracted. 


The evidence of such is already public knowledge. Firstly, there's the artwork that Stardock itself has publicly released along with the beta test of the game, then, there's the claims and visual evidence within the claims showing your own correspondence of asking F&P to use their content showing that you not only repeatedly asked to use their work but ultimately stated you would then be refusing their request. You can publicly say it's some giant conspiracy, but in order to file a claim, you at least need some evidence, so the fact that you haven't means you have such minuscule or non-existent evidence for such a claim that not even a lawyer could bring themselves to file it.


Title: Re: Stardock Litigation Discussion
Post by: SCFan on August 14, 2018, 02:31:32 am


It's a fool's errand. Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law. That's like saying you're going to jump on a neighbor's lawn so fast that you can't be caught trespassing, or you're only going to take a few grains of rice so nobody can tell you're stealing. It would work a lot better if you didn't say out loud that's what you're trying to do.

Where is the moderator? Why is this poster being allowed to potentially libel other posters without providing evidence? I thought this rule went both ways, Death999?

rosepatel literally accused Frogboy, another poster, of having stolen something and Frogboy has asked rosepatel to substantiate that statement and rosepatel is unable to do so yet has not withdrawn the statement.

I think it is clear the moderation of this forum is biased. Glad to have that fact confirmed.

OR, the moderator was ill for the day. This is a mess and a bunch of stuff will be said and done here. And no ban evasion, SVS. Re-banned.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 02:52:02 am


The evidence of such is already public knowledge. Firstly, there's the artwork that Stardock itself has publicly released along with the beta test of the game, then, there's the claims and visual evidence within the claims showing your own

Let's see the evidence then.   You guys really like to make allegations but always slink away when asked to back it up.

So post it. Show the copyright infringement.   

Should be easy if it's publicly released.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 14, 2018, 02:54:01 am
@Elestan: I understand where you are coming from.   However, the law is pretty clear on this.  This is why I don't think you still understand trademarks.   When you say things like "it wouldn't be a big deal if Stardock lose the Star Control trademark.." combined with your argument in thinking that a copyright could somehow cover some sort of...I dunno...universality of expression it tells me that you aren't understanding the general concept here.  

Sometimes, I think that you're purposely trying not to understand because this seems so obvious but then I'll talk to you on Discord and be convinced that you mean well so I don't know what to think.

It's not that I'm not understanding you; it's that you're not making persuasive arguments.  The above is a prime example:  You're not responding to the substance of the argument at all; you're just asserting that I'm wrong (https://en.wikipedia.org/wiki/Bulverism).

Most of your other arguments boil down to various forms of demeaning the qualifications of the person you're debating with (https://en.wikipedia.org/wiki/Courtier%27s_reply), or asserting yourself as an authority on IP law (https://en.wikipedia.org/wiki/Appeal_to_accomplishment), or citing personal anecdotes of talking with unnamed attorneys that we have no way of verifying.

I'd suggest reading those links, and then going back and reviewing some of your posts.  Remove the parts that fall under the various argumentative fallacies, and see how little is left.

If you want to make persuasive arguments, then start citing some sources other than your own authority, whether that's statutes, case law, journal articles, whatever...just as long as it's something written by an independent source.  For example, above, you said
Quote
the law is pretty clear on this

Okay, fine.  If the law is clear on this, then it should be no problem to give me a link to the statue or case law that supports your point.  Or at least make a step-by-step argument saying what you think the law says.  If you're not willing to at least do that, then you're not making an argument that can be taken seriously, and it would be better to follow Paul and Fred's example and stay out of the conversation completely.

Quote
The bottom line is that future Star Control games will have Star Control aliens in them.  And Stardock will vigorously defend its rights in perpetuity.  If someone wants to use our IP, they will need our permission.

...and this line is similarly unpersuasive (https://en.wikipedia.org/wiki/Proof_by_assertion).


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 03:06:23 am
@Elestan:

It's not up to me to prove you wrong.  I'm not the one making assertions of wrong-doing.  Rosepatel was.  You know very well I'm not going to litigate an ongoing legal dispute on a forum. 

You guys tried to suggest that Stardock is infringing on copyrights.  Well then, have at it.  Let's see the infringement.  Post it here. Let the lurkers see what the hub-bub is about.  Show an example of copyright infringement in Star Control: Origins.


Title: Re: Stardock Litigation Discussion
Post by: SCFan on August 14, 2018, 03:19:58 am
FYI, I am not an employee, agent or representative of Starock, or have any other tangential relationship to Stardock. Anything I post is my thoughts as an individual who is at most invested via interest in seeing a new Star Control game and my personal beliefs on who is the aggrieved party in this dispute.

I just can't believe a supposedly neutral forum that has banned posters for making accusations against pro-Fred and Paul posters is allowing posters aligned with Paul and Fred to make clearly libelous statements against another poster while refusing to provide proof. This forum has banned posters for one strike of this rule if they didn't withdrawal the statement and yet rosepatel is allowed to repeat his same unsubstantiated claim repeatedly while refusing to substantiate it when challenged?

If I were the moderator of this forum, I'd consider whether it was good for the future of this community to allow posters to make unsubstantiated, libelous claims against another poster who has a colorable claim to ownership of at least a portion of the IP governing the game this forum was created to discuss. That doesn't seem to be a good idea if your goal is to further the continued future of this community... and it *definitely* is clear bias in your handling of the supposed forum rules.

A FORUM WITH ONE MODERATOR CAN FALL BEHIND IN MODERATION FOR ONE DAY. ALSO, YOU WERE WARNED, OPENLY AND IN PRIVATE. - D999


Title: Re: Stardock Litigation Discussion
Post by: xvzinjvx on August 14, 2018, 03:23:47 am


It's a fool's errand. Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law. That's like saying you're going to jump on a neighbor's lawn so fast that you can't be caught trespassing, or you're only going to take a few grains of rice so nobody can tell you're stealing. It would work a lot better if you didn't say out loud that's what you're trying to do.

Where is the moderator? Why is this poster being allowed to potentially libel other posters without providing evidence? I thought this rule went both ways, Death999?

rosepatel literally accused Frogboy, another poster, of having stolen something and Frogboy has asked rosepatel to substantiate that statement and rosepatel is unable to do so yet has not withdrawn the statement.

I think it is clear the moderation of this forum is biased. Glad to have that fact confirmed.

The irony of a newly registered account using a generic name calling the moderator and forum biased as their first post was such that i had to get off my lurker hole and mention how Frogboy has insinuated P&F created fake puppet accounts. Glad to have SCFan confirm that they is such a shill that they need to hide behind a generic name.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 14, 2018, 03:27:13 am

Where is the moderator? Why is this poster being allowed to potentially libel other posters without providing evidence? I thought this rule went both ways, Death999?


Libel is a very specific term with very specific regulations that has little to no legal enforcement on some random internet forum. A judge might literally laugh at you if you tried to file anything for it. The fact that you only created your account today and that you're using a similar fringe term as Frogboy and are inexplicably only in support of Stardock suggests something suspicious.



The evidence of such is already public knowledge. Firstly, there's the artwork that Stardock itself has publicly released along with the beta test of the game, then, there's the claims and visual evidence within the claims showing your own

Let's see the evidence then.   You guys really like to make allegations but always slink away when asked to back it up.

So post it. Show the copyright infringement.  

Should be easy if it's publicly released.

Here you go https://www.stardock.com/games/starcontrol/store It even uses the full term "Arilou Lalee'lay" and then mentions in the story itself that the Chenjesu are crystalline and come from a crystalline world. If you had only used just the names, or, only just similar art, you would probably be able to get away with it and even probably people who overall side with F&P exclusively wouldn't have much of an issue with it, but both together is very easy to construe as an infringement on F&P's copyrighted content through derivative works.

I just can't believe a supposedly neutral forum that has banned posters for making accusations against pro-Fred and Paul posters is allowing posters aligned with Paul and Fred to make clearly libelous statements against another poster while refusing to provide proof. This forum has banned posters for one strike of this rule if they didn't withdrawal the statement and yet rosepatel is allowed to repeat his same unsubstantiated claim repeatedly while refusing to substantiate it when challenged?

I don't see any basis to suggests people are banned for only making pro-Stardock statements, I made plenty myself that are still perfectly visible, and I even told F&P myself that I thought some of Stardock's points were fair, which Frogboy would get to see if he manages to subpoena F&P. Secondly, Death999 isn't here to micromanage everyone's opinions with their own opinion, people are allowed to have discussions, they only interfere if someone is acting toxic.

Actually, it was the 'providing proof of a serious accusation when such proof should be readily available' part. SVS was banned for making an accusation against Elestan about what Elestan had said right in that thread, being told to find an example, being warned to fix it as top priority before posting again, and ignoring that. - D999


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 03:27:27 am
To be fair, like you, most of the rabid anti-Stardock people are new to the forum.

For many years, this has been a pretty wonderful community that required little moderation.  It's only been an issue since the start of this year when the forum got a bunch of people who seem to not really care about UQM but instead want to argue about the dispute.

I don't know if Death should or shouldn't be moderating allegations unto themselves.  But now that Rose and the like have been called out to demonstrate their allegations, my opinion is that they need to back up their allegations or they should cease and desist on making them.

If Star Control: Origins is infringing, even in the slightest, on someone's copyright, then we want to know about it.  And since at least 2 people here claim that such infringement is obvious, public and easily obtained they should have no problem supply an example that exists in the game today.  Because accusing a someone of criminal activity, which is what a copyright violation is, is a pretty serious allegation.  It should not be made lightly.  

I look forward to seeing Rosepatel and Cmdshep post the material they consider to be an infringement of copyrighted material.   I am sure many lurkers would like to see what Paul and Fred fans believe falls under whatever copyrights they think they have.  I'll even help them and repost their evidence in the Stardock community channels so that others can see Stardock's dastardly deeds.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 14, 2018, 03:30:41 am
@Elestan: It's not up to me to prove you wrong.

It is when you assert that "the law is pretty clear on this", and that my words "demonstrate a lack of understanding".  Having made those assertions, you bear the burden of supporting them.

Quote
You know very well I'm not going to litigate an ongoing legal dispute on a forum.

Then bluntly, you should stop participating.  It is not fair to assert your positions, and then claim immunity from the need to back them up.  All you're doing is wasting peoples' time, including your own.

Quote
You guys tried to suggest that Stardock is infringing on copyrights.

I made no such suggestion.  Please confine your request to the people who did.

FYI, I am not an employee, agent or representative of Starock, or have any other tangential relationship to Stardock.

I have but one question:  Are you an individual who has been previously banned from this forum under another handle?


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 14, 2018, 03:43:22 am
I just can't believe a supposedly neutral forum...

I don't believe that this forum ever claimed to be neutral.  Paul and Fred founded this community by contributing the game.  Stardock filed to trademark our name, and has requested an injunction that could be used to shut the forum and project down; I think it's safe to say that most people here have good reason to be rather miffed at it.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 14, 2018, 03:46:40 am
Because accusing a someone of criminal activity, which is what a copyright violation is, is a pretty serious allegation.  It should not be made lightly.  
Nearly every single academic institution in the entire world agrees climate change exists, but that doesn't stop millions of people from choosing to believe the contrary and say that it doesn't, so even a citizen's defiance of actual facts that negatively affects other people doesn't even constitute a claim. All your random opinions are just as opinionated as anyone else's opinions, you're not above that.


Title: Re: Stardock Litigation Discussion
Post by: SCFan on August 14, 2018, 03:48:16 am
I have but one question:  Are you an individual who has been previously banned from this forum under another handle?

I have high confidence you know which prior handle was mine.

Rosepetals most recent posts aren't the only posts that have blatantly flaunted the supposed one-strike rules that resulted in Death 999 kicking my prior handle, and rosepetals posts and all of the posts like it are clear proof that the moderation of this forum is beyond biased. Rosepetal is posting factual allegations and refusing to substantiate them after being called out, by this forums apparently rules.. rosepetal should be banned.

Elestan, if you actually care about UQM, I'd reflect on how this kind of discussion may impact the community's future. Using this community forum to level unsubstantiated legal allegations against a company with at least a colorable claim to the IP underlying the game this community was built upon is dangerous ground. Personally, I think you are a shill and only care about Paul and Fred's interests. I care about Star Control.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 03:48:35 am
Here you go https://www.stardock.com/games/starcontrol/store It even uses the full term "Arilou Lalee'lay" and then mentions in the story itself that the Chenjesu are crystalline and come from a crystalline world. If you had only used just the names are just similar art, you would be able to get away with it and even probably people who overall side with F&P exclusively wouldn't have an issue with it, but both together is very easy to construe as an infringement on F&P's copyrighted content through derivative works.

So there you go.

You think copyrights cover names.  They don't. That's trademark.

So go ahead and post here an image of the Arilou as shown in SC2 and one in SCO and explain the latter is a copy of the former.  

Stardock's Arilou:
(http://draginol.stardock.net/images2018/Star-Control-Origins-Prelude-5-of-14---T_12745/sco_arilou_page-background.jpg)

Fan version of Arilou derivative:
(https://img00.deviantart.net/4c34/i/2011/231/0/2/the_arilou_by_dczanik-d474nb8.png)

To be sure, the Arilou shown below is one made by fans so fans do understand what an Arilou, as expressed in SC2, looks like.  

No reasonable person is going to suggest that the SCO Arilou was derived from the SC2 Arilou.

But most Star Control fans will be happy to see the Star Control aliens, including the Arilou in new Star Control games.




Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 14, 2018, 03:54:33 am

You think copyrights cover names.  They don't. That's trademark.


And again I refer you to the concept of a "strawman", seen conveniently explained here on wikipedia https://en.wikipedia.org/wiki/Straw_man. I don't think stated I support the notion that copyrights cover strictly names, and I've even been consistently in support of suggesting Stardock owns the trademark to "Star Control." Copyrights however, do cover characters and derivatives of those characters.

The images as you present them, in conjunction with the names, also in conjunction with the project being in the same industry, also in conjunction with similar use altogether strongly constitutes copyright infringement as a derivative of Fred & Paul's copyrighted characters, Starock made all four attempts at once when it could have easily gotten away with 3 out of 4. But, by moving forward with the names, you have made your own claims weaker because now it's even easier to construe that those images are derivative of F&P's characters and is quick to draw attention to any random similarity someone might suggest.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 03:56:26 am
The images as you present them, in conjunction with the names, also in conjunction with the project being in the same industry, also in conjunction with similar use all together constitutes copyright infringement as a derivative of Fred & Paul's copyrighted characters, you made all four mistakes at once when you could have easily gotten away with 3 out of 4.

I just wanted to make sure your argument was made clear for lurkers to read.  I don't want to add anything else to it.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 14, 2018, 03:58:51 am

I just wanted to make sure your argument was made clear for lurkers to read.  I don't want to add anything else to it.
Fair enough, but you could have respectfully asked me to just state clearly what my position is in the beginning and I would have had no problem laying it out.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 04:05:59 am
Quote
Fair enough, but you could have respectfully asked me to just state clearly what my position in the beginning and I would have had no problem laying it out.

I think it was important that lurkers see that you explicilty believe that copyrights are trademarks and that you believe that the two images are substantially similar.  Otherwise, people might really believe I am "Straw manning" your position.

When someone asks what Paul and Fred's fans are mad about and what rights they think they have, I can point them to your post and they can decide for themselves about how reasonable that position is.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 14, 2018, 08:16:40 am
Quote
Fair enough, but you could have respectfully asked me to just state clearly what my position in the beginning and I would have had no problem laying it out.

I think it was important that lurkers see that you explicilty believe that copyrights are trademarks and that you believe that the two images are substantially similar.  Otherwise, people might really believe I am "Straw manning" your position.

When someone asks what Paul and Fred's fans are mad about and what rights they think they have, I can point them to your post and they can decide for themselves about how reasonable that position is.

But instead of being manipulative you could have just explained that. You could have said "I think it's important for the public understanding for you to clearly illustrate what you think is protected under their copyright" which is already beside that I asked myself and then determined how reasonable it is.


Title: Re: Stardock Litigation Discussion
Post by: orzophile on August 14, 2018, 08:19:51 am
No reasonable person is going to suggest that the SCO Arilou was derived from the SC2 Arilou.

While the "reasonable person" might not presuppose those two images of little green men-inspired aliens are direct copyright infringement, giving them the same name and characterization is straying in to the realm of plausibility. I can't draw a comic of Superman with a different color suit, interacting with a youthful Larry Totter brandishing his wand with a reversed lighting bolt on his forehead,  in a commercial work about benevolent aliens from a lost homeworld come to earth to fight wizards at a boarding school and act completely shocked if someone suggests I may have a legal problem given such issues have been before US federal courts repeatedly, including as recently as 2013 (and possibly later, I don't claim an exhaustive knowledge) with varying results based on the particular facts of each case.

For the record I don't think the published SCO art is clear infringement and I'm willing to grant certain benefit of doubt that it wasn't intended as such, but to act as if there is no possible interpretation of it as potentially derived is a bold statement from someone with legal counsel.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 14, 2018, 11:45:49 am
If Star Control: Origins is infringing, even in the slightest, on someone's copyright, then we want to know about it.  And since at least 2 people here claim that such infringement is obvious, public and easily obtained they should have no problem supply an example that exists in the game today.  Because accusing a someone of criminal activity, which is what a copyright violation is, is a pretty serious allegation.  It should not be made lightly.  

I look forward to seeing Rosepatel and Cmdshep post the material they consider to be an infringement of copyrighted material.   I am sure many lurkers would like to see what Paul and Fred fans believe falls under whatever copyrights they think they have.  I'll even help them and repost their evidence in the Stardock community channels so that others can see Stardock's dastardly deeds.
See right above this post you posted.
Here you go https://www.stardock.com/games/starcontrol/store It even uses the full term "Arilou Lalee'lay" and then mentions in the story itself that the Chenjesu are crystalline and come from a crystalline world. If you had only used just the names, or, only just similar art, you would probably be able to get away with it and even probably people who overall side with F&P exclusively wouldn't have much of an issue with it, but both together is very easy to construe as an infringement on F&P's copyrighted content through derivative works.

I also remember several of your statements in the alleged direction, but I'm currently unwilling to dig through the threads.
It also doesn't matter much to me.
"Star Control aliens" is a very broad concept, with very little defining the borders.
Someone previously stated that all SC1, SC2, SC3 aliens form part of the SC:O universe, as they are present, even if unused in the current story in the alternative history universe of SC:O compared to SC1-3.
This makes the term "Star Control aliens" a term without borders, as you can write continuations with new aliens anytime, and thereby expand the term and its meaning endlessly.

At first I thought you/Stardock might interpret the term "Star Contol aliens" as meaning the ones you created and will use under the "new meaning" of the trademark "Star Control (TM)" (i.e. Star Control games created by Stardock). But Stardock seems to try to expand the packaging to anything loosely related.
Whether the judges and jury will allow you to claim the limited meaning in court when defending against alleged copyright infringements, and the expanded meaning in public/advertising, remains to be shown.


Regarding the more specific SC:O and SC2 Arilou examples: the artwork alone will not be sufficient. The Arilou are simply an exaggeration of Alien tropes (The Greys (https://tvtropes.org/pmwiki/pmwiki.php/Main/TheGreys); Little Green Men (https://tvtropes.org/pmwiki/pmwiki.php/Main/LittleGreenMen) (flying saucers)). Just like the Asgard from Stargate (TM)
(click to show/hide)
But to avoid copyright infringement, the artwork being sufficiently distinct may not be sufficient, if otherwise the Arilou's full name is Arilou Lalee'lay, and live on Falayalaralfali, in a nook of a different dimension than ours. (Haven't played SC:O, so I do not know how much background of SC:O Arilou is similar to SC2 Arilou.)
And if both Arilou are (have been) used within a package branded "Star Control (TM)", then making an assumption about the derivation is obvious. Claiming Stardock's Arilou has been derived from elsewhere becomes difficult. And the derivation is not a trademark issue, but a copyright issue.
On the other hand, as stated above, small grey aliens appearing from elsewhere and probing and prodding humanity is a trope, older than SC2. Whether the SC2 authors can actually claim a strong copyright on these alien's character is difficult, but in the game context and the given name, the copyright for "the creepy grey alien being named Arilou, or Arilou Lalee'lay" seems to be theirs, and Stardock seems to be encroaching the Intellectual Property of the authors of SC2.
Wether it is just encroaching the border, or already trespassing, is not for me to decide.
I have an opinion on it, but it's one that will not count, as it'll be extremely unlikely that I'll be a jury member in a panel that actually gets to decide.



Still looking forward to both games, even if I'm still unsure whether I want to buy a game from a company that filed trademark applications for things seemingly unrelated to the game they are making, and for names that are obviously in use in the same category already. Fully knowing of the existing earlier use of these names.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on August 14, 2018, 12:54:48 pm
I don't know about you guys, but both the SC2 and SCO Arilou versions seem similar to me. It's at least enough to confuse fans of the original Arilou to rejoice that the "same" race is in SCO - at least Stardock's intent on that aspect is clear.

I will have to play SCO to find out who these "non-infringing" Arilou are exactly. ::)


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on August 14, 2018, 01:27:14 pm
Okay. So, Rose, it'd be REALLY nice to have an example of what you meant in that stealing comment, or a retraction. Like, I banned SVS for keeping on going without doing that.



Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 14, 2018, 01:49:44 pm
I don't know about you guys, but both the SC2 and SCO Arilou versions seem similar to me. It's at least enough to confuse fans of the original Arilou to rejoice that the "same" race is in SCO - at least Stardock's intent on that aspect is clear.

I will have to play SCO to find out who these "non-infringing" Arilou are exactly. ::)
Yes, this seems to be Stardock's intention. Especially when keeping the name.
Depending on setup, this is copyright infringement.
Artwork alone will not be decisive, as the Arilou are based itself based on "the Area 51 alien"...

How close you're allowed to get was severyl limited by the lawsuits that followed the popularity of the Harry Potter (TM) series...
http://www.trademarkandcopyrightlawblog.com/2015/07/harry-potter-lawsuits-and-where-to-find-them/ (http://www.trademarkandcopyrightlawblog.com/2015/07/harry-potter-lawsuits-and-where-to-find-them/)


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 02:01:49 pm
Trademarks are about association. Copyrights are about copying.

We expect players to assume that the Arilou species is related to the Arilou species in SC2. That’s trademark. No ifs or buts.

Copyright comes into play if you are copying the expression of it.  And the SCO Arilou are not a copy of anything. They look closer to the Asgard from SG1 than to the art in SC2. They act differently. They share no lines of dialog.

As for the Superman analogy, actually there have been countless examples of Superman like characters over the years in comics. You should read Squadron Supreme which is basically Marvel’s version of the Justice League.  You can’t copyright an idea.  

Edit: one other thing, why resort to Harry Potter and Superman analogies? What elements of the Arilou expressed in SC2, besides art, is protected by copyright? If you’re going to imply that the Arilou species, as expressed in SC2 is as developed as Harry Potter and Superman then you should have no problem explaining what you believe is copyrightsble about the SC2 Arilou expression.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on August 14, 2018, 02:14:38 pm
I'm curious to see Stardock's "non-infringing" version of Fwiffo though.

...oh, and The Crimson Corporation too.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 02:22:23 pm
I welcome you to explain how you would infringe on any copyrights surrounding Crimson Corporation.


Title: Re: Stardock Litigation Discussion
Post by: Lakstoties on August 14, 2018, 03:16:44 pm
Trademarks are about association. Copyrights are about copying.

We expect players to assume that the Arilou species is related to the Arilou species in SC2. That’s trademark. No ifs or buts.

More correctly...  Trademark is about how the mark is associated with the SOURCE and ORIGIN of the product it is ON, NOT the product itself.  The goodwll asscoiated with the mark is directed towards the source and the quality and ideas about the SOURCE, NOT the actualy product or service.  Trademarks actually have very little to deal with actual products and services themselves apart from classification of what the mark will exist upon.  If fact, the LESS the mark is associated with the aspects of the individual products and service the stronger it is considered.  In fact with the "Descriptive Marks" category, the terms have to develop secondary meanings that associate with the SOURCE of the product that are distrinct enough from the what the term means primarily to receive trademark protections.

Trademark strength fact sheet from the INTA:  http://www.inta.org/TrademarkBasics/FactSheets/Pages/TrademarkStrengthFactSheet.aspx

So a correct statement would be:  Trademarks are about the association of the mark with the source/origin of the product.  Copyrights are about managing the creative expression.  That's what the USPTO itself says multiple times in its various literature.

And how Stardock has been proposing how to use trademarks has been struck down before and spawned various tests to reaffirm that trademarks are ONLY for branding and things OUTSIDE the product itself.  See the Functionality Doctrine (trademarks CANNOT protect the functional/value adding elements of the product) and the Rogers Test (trademarks CANNOT limit freedom of expression within a creative work).

Functionality from the USPTO's Trademark Manual of Examination: https://www.bitlaw.com/source/tmep/1202_02_a_iii_A.html

Rogers Test in context of Video Games from he INTA:  https://www.inta.org/INTABulletin/Pages/LitigatingtheFirstAmendmentDefenseintheVideoGameContext.aspx 

For the curious, here's the general info about Trademarks from the United States Patent and Trademark Office.  Note how they emphasize the fact the trademarks are the brandin/labels OUTSIDE and ON a product or service:  https://www.uspto.gov/trademarks-getting-started/trademark-basics


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 03:46:47 pm
Nice Internet lawyering, Lak. 

What attracted my attention to this thread was the argument that Stardock was "stealing" or "copying" something from Star Control II. 

We are still waiting for evidence to back up that claim.  It's a very serious allegation.

At least CmdrShp posted his opinion.  I noticed you didn't correct him, Lak or perhaps didn't read it.   Why not state, publicly, whether you think copyright now covers consumer confusion and relationships. 

I am quite certain that all parties would appreciate seeing any examples of actual copyright infringement. We would never want to copy someone else's work, even unintentionally and have taken effort to make sure our expressions of the Star Control aliens are our own.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 14, 2018, 04:10:53 pm
Nice Internet lawyering, Lak.

You really don't have standing to criticize.  What he posted was a better sourced and more coherent argument than anything you've provided on the topic.  So here, once again, you seem to be trying to argue your point by demeaning the person arguing with you (https://en.wikipedia.org/wiki/Courtier%27s_reply).

Quote
I am quite certain that all parties would appreciate seeing any examples of actual copyright infringement. We would never want to copy someone else's work, even unintentionally and have taken effort to make sure our expressions of the Star Control aliens are our own.

Since the question of Substantial Similarity (https://en.wikipedia.org/wiki/Substantial_similarity) is a subjective question for the jury, I'm not sure how worthwhile arguing about it is.  If it goes to trial, you'll be rolling the dice.

I am curious, though:  You said that you "reached into the Star Control name vault" (https://www.stardock.com/games/starcontrol/article/490112/star-control-origins-prelude-5-of-13---the-aliens-of-star-control) when naming these aliens.  Can I ask who selected the name to put on this "new" alien race?


Title: Re: Stardock Litigation Discussion
Post by: orzophile on August 14, 2018, 04:18:29 pm
Trademarks are about association. Copyrights are about copying.

We expect players to assume that the Arilou species is related to the Arilou species in SC2. That’s trademark. No ifs or buts.

Copyright comes into play if you are copying the expression of it.  And the SCO Arilou are not a copy of anything. They look closer to the Asgard from SG1 than to the art in SC2. They act differently. They share no lines of dialog.

The reason I used an analogy was to deliberately step away from the specific Arilou discussion since many people involved clearly have an existing opinion about that or  stake in the answer.

These sorts of issues have come up repeatedly in courts of law all over the world, and in the US specifically you can in fact exert copyright over sufficiently developed characters and characterizations whether as illustrations or narratives or theatrics, independent of any trademarks. The tests that have been established in US common law (since it isn't explicit in the US Code) are varied based on the nature of the complaints, and I'd be happy to go dig up specific, relevant examples if you'd be willing to donate the equivalent of a few hours of legal expenses to charity or such, but given you employ attorneys with experience in the area you'd probably really want to talk that over with them.

Sometimes things that might seem superficially derivative were determined to not be due to the commonalities being abstract or non-specific enough, sometimes entirely different manifestations of a characterization were deteremined to be infringement of copyright -- I'm thinking of a case in which someone was selling physical cars that looked like one of the Batmobiles, and the court decided mostly with the plaintiff on that being copyright infringement.

If you really want to keep going over the Arilou, sure, you can't copyright the expression of little green men or simply the name. But every additional element of the expression added to a characterization that mimics specific details of the images or dialogue or relationships or themes, even if its not exact copies, is something that can be tested against legal precedence from dozens of cases in US courts. As I said, from what limited examples I've seen, I don't think it'd meet those tests, although it does kind of bother me that Stardock seems to be going into the territory of knockoffs like Transmorphers (https://en.wikipedia.org/wiki/Transmorphers) as to how much of it can be similar with the SC1/SC2 expressions. So it really should come as no surprise that some people might, reasonably, think that might be potential copyright infringement because lots of court cases have tread very similar ground with differing outcomes.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 14, 2018, 04:29:52 pm
We expect players to assume that the Arilou species is related to the Arilou species in SC2. That’s trademark. No ifs or buts.
Not exactly, because if you had instead made an independent foreign film in rural Asia about the struggles of an impoverished farmer, no one would have ever thought for a second that it had anything to do with Star Control. It's not just the name, it's the characters themselves under the same circumstances.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 14, 2018, 04:33:15 pm
I welcome you to explain how you would infringe on any copyrights surrounding Crimson Corporation.

Marking a whole race as being "owned by", as well as their whole economy, planet, breathable air, ...., as being owned by one monolithic company, no diversions from this.
The term "Crimson Corporation" per se would be difficult to be protected by copyright, but when you additionally associate it with a race named Druuge, who are all economically enslaved to this corporation, and inhibit the star region of the Persei star systems, you're not only getting close to, but have associated yourself with the creations made by others. If you do not have a license to use their copyright, well......

Anyway, the US court system often enough decides differently (especially when a jury is involved), and far from any evidence.
See Monsanto/Glyphosat.
In those cases it all hinges on the definition of the term "if handled correctly".

Trademarks are about association. Copyrights are about copying.
True, Copyright is about copying, and you seem to be copying the idea of the Arilou in SC2 into SC:O, without having a correct license.
Trademark is about association who markets this product. To define its origin.
Trademark itself is not about content, and if the product name has become extremely successful (and is solely associated with the product), then the trademark even loses value.
See "Vaseline", "Thermos", "Kleenex" (or in German language areas: "Tempo"), and "google". Who means "use google.com to search something" when writing "google it"?
I could visit bing.com and still "google it". Google has tried to avoid having the term enter into dictionaries precisely for this reason.
The trademark has become "generic" and by that starts to fail denoting an origin (http://www.kisch-ip.co.za/trade-mark-become-generic/), but denotes a product.
In such cases the trademark failed, and everyone uses the trademark (a sign of origin) to name a specific category of products (independent from the origin and the owner of the trademark) (in case of "google": internet search engines, in case of "Kleenex": a paper facial tissue; in case of "Thermos": an insulated bottle to keep drinks hot or cold; in case of "Vaseline": a certain type of petroleum based lubrication and skin care product).


And the Harry Potter references I cited?
There is case law about others having written continuations (sequels) of Miss Joanne K. Rowling's Harry Potter series.
WB and Ms Rowling won many cases, but Ms. Rowling waived her rights on the condition that it is fanwork, and non-commercial (as well as sexually non-explicit).
You are basing your story on a universe created by someone else. Apparently without the proper license from the creators of that universe.
Therefore, you are leeching on the goodwill of their copyright.
See the similarities of the "Tanja Grotter" series compared to "Harry Potter". While the "Tanja Grotter" series is about a girl, it becomes difficult to argue copying of artwork. Yet courts decided that "Tanja Grotter" is more than just a parody, and the whole setting around it (magic school, parents killed by an evil sorceress, a scar in the facial region, ...) made it likely that copyright has been violated, and ordered to stop any sales in the EU. (https://en.wikipedia.org/wiki/Tanya_Grotter) The intentional resemblances were sufficient to decide that copyright has been violated.

With Stardock's Arilou (SC:O Arilou) and the UQM/SC2 Arilou I see the same. There are plenty of differences, so that the artwork itself is not violating copyright, but the whole setting (especially because the names are the same) does violate the copyright of the creators of SC2, who did not transfer their copyright to Accolade, nor has Stardock bought any copyrightable material from Star Control II (or Star Control 1) in the bankruptcy proceedings.
And you just wrote you explicitly want the people to think that the SC:O arilou has been derived from the SC2 Arilou.
We expect players to assume that the Arilou species is related to the Arilou species in SC2.



And if you find Lak's "internet lawyering" "nice", then please be as kind as Lakstoties was, and provide some links to support your apparently ironic comment and side-brushing of his arguments.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 05:20:25 pm
In short: Lots of text and internet legal theorycraft, lots of unsubstantiated allegations.  Not one example of where SCO is infringing on someone else's copyright.

Quote
And you just wrote you explicitly want the people to think that the SC:O arilou has been derived from the SC2 Arilou.

Derived and related are not the same.   I'm not sure if this is a case where English isn't your first language or if you're intentionally changing the plain meaning of a word to suit your argument.

As I said:
Quote
We expect players to assume that the Arilou species is related to the Arilou species in SC2.
(emphasis mine)

Relations are issues of trademarks. Not copyrights.  We expect players to recognize that Star Control: Origins is related to the classic series.  

Originally, we had planned on simply referencing the classic games in our marketing.  Unfortunately, Paul, Fred and their fans have chosen to attempt to confuse consumers into believing that Star Control: Origins isn't related to the other Star Control games and therefore forced Stardock to have to take steps to reinforce that association by making use of Star Control aliens (by name) that appeared in previous games.

Look, I have no problem with you guys hanging out and spinning your wheels all day on this stuff.  Where I have a big problem is where you outright claim we are copying or stealing something.  We haven't and we don't appreciate people libeling us by claiming we have.  

The onus isn't on me to prove a negative or to argue with someone's strawman argument or legal theory.  The onus is the person alleging criminal behavior to show that X is illegal and let lurkers determine for themselves whether that is illegal.  So far, not one of you has done that other than, maybe CmdS who keeps demonstrating that he thinks trademarks are actually copyrights (and that's fine, he's entitled to think what he wants just as we're entitled to point to posts like this examples of confusion).

You want to argue legal theory regarding an ongoing legal dispute, it's a free Internet. Knock yourself out.  Accuse me or Stardock of criminal behavior on a forum that is supposedly moderated, and that's a different subject.  


Title: Re: Stardock Litigation Discussion
Post by: orzophile on August 14, 2018, 05:51:13 pm
If you really want to insinuate threats of potential legal action based on forum posts (and by extension forum moderators) relating to a court case of EXACTLY that subject matter of which your company is a party -- I'll give you some free advice (worth what you paid for it): Don't.

As a PR suggestion, here's what you post: "We're sorry you feel that way, but Stardock is confident we are not using derived works of anyone without appropriate license, and hope that once the legal matter is resolved you'll understand the facts of the case."

Also please review, or have your attorneys review for you, the relevant sections of US Code and the Communications Decency Act related to defamation and libel on the internet, because it doesn't work how you apparently think it does. If this site is hosted in the Netherlands and under European law, that's even less friendly to your insinuation.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 06:35:35 pm
Calm yourself. No one is threatening anyone.


Title: Re: Stardock Litigation Discussion
Post by: Lakstoties on August 14, 2018, 06:43:38 pm
Nice Internet lawyering, Lak. 
About all I can do, really.  I'm not any kind of official lawyer, so I can't walk into a court room as one.  But, the information is still out there.  And I have yet to find anything that aligns with Stardock's position that has ended favorably for that position.

Quote
What attracted my attention to this thread was the argument that Stardock was "stealing" or "copying" something from Star Control II. 

We are still waiting for evidence to back up that claim.  It's a very serious allegation.

I just find it strange that credence and effort is placed upon random opinions from random people on the Internet all places, in a niche subject forum.  It might be due to being from a generation that used card catalogs significantly, but there's only so much merit I'll give anything on the internet.  I watched the internet grow up, despite how it might put on a business suit and act official these days...  I remember when it was the class clown with pencils up its nose trying to get everyone's attention. 

So, simply stated:  You are a CEO of a multi-million dollar game company, a feat most people will never accomplish.  Why even justify what you believe to be false statement with a response that takes up your time and effort?  Especially to some random folks on a small internet forum?  Come on, sir.  I'm sure you'd have more fun drumming up press for your big release in a month and endearing yourself to the gaming media with promos and SC:O swag.  They love that stuff from what I hear.

Quote
At least CmdrShp posted his opinion.  I noticed you didn't correct him, Lak or perhaps didn't read it.   Why not state, publicly, whether you think copyright now covers consumer confusion and relationships. 

I am quite certain that all parties would appreciate seeing any examples of actual copyright infringement. We would never want to copy someone else's work, even unintentionally and have taken effort to make sure our expressions of the Star Control aliens are our own.

Okay.  From what I've read up on copyright and have seen demonstrated...  Copyright doesn't immediately concern itself with consumer confusion and relations, but it can be an indirect factor in some decisions.  Copyright mainly concerns itself with is the control and management of the expression of a work:  Reproduction, distribution, derivation, and presentation.  When it comes to the specifics of derivation and whether or not something is derivative, that is usually put up to a court decision.  Individually the attributes that comprise a work by themselves in another work typically does not indicate derivation.  But the collection of attributes together in a work when compared to another collection of attributes together in a work, that's when determining derivation becomes important and works can be seen as derivative or not.

The situation surrounding the decision is similar to the Ship of Theseus thought experiment ( https://en.wikipedia.org/wiki/Ship_of_Theseus ).  Individually, the individual planks of the ship don't mean much of anything.  But, let's say you are building a new ship and pull individually planks from an existing ship to use with planks you have newly crafted.  (Save time, like the style, or maybe that plank is just cool looking, etc...)  The question in this situation is "How many planks can you use from the existing ship with your new ship before the new ship is considered directly derived from the existing ship?"  If it's just a few planks that are not very visible, most people would conclude: No.  But, as more and more planks from the existing ship are used in very visible areas, people start to lean closer and closer to "Yes."  This especially starts to shift when unique aspects upon the planks are visible or the planks are arranged in similar positions upon the new ship.

Two court cases Nichols v. Universal Pictures Corp:  https://en.wikipedia.org/wiki/Nichols_v._Universal_Pictures_Corp. (https://en.wikipedia.org/wiki/Nichols_v._Universal_Pictures_Corp.) and  Anderson v. Stallone: https://en.wikipedia.org/wiki/Anderson_v._Stallone show cases that were won or loss over how substantial the differences or similarities were or were not.

The overall non-specific concepts are not subject to copyright protection.  The trouble happens when the attributes get more and more specific, and difference between the collection of attributes gets less and less.  Ultimately, it's up to a court decision to determine if the how substantial the elements are different or similar.  But Stardock has not put themselves in the best position when it comes to those determinations.  Given history, intent, use of unique terms, visual similarities, back story elements, etc...  Even a few of these by themselves would not be a problem, but together it doesn't make it an easy case to rule that it is all "Not Derivative."

From my perspective, Stardock is toeing the foul line really close on its approach to throwing bowling balls down the lane.  The buzzer may have not gone off yet, but people are paying very close attention now.  There's plenty of bigger more litigious companies that wouldn't dare to get that close.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 14, 2018, 06:57:29 pm
Okay. So, Rose, it'd be REALLY nice to have an example of what you meant in that stealing comment, or a retraction. Like, I banned SVS for keeping on going without doing that.



I didn't say he was stealing. People often compare copyright infringement with all kinds of other bad behaviors, including theft, trespass, counterfeiting, plagiarism, and fraud. Those are useful comparisons to help ordinary people understand Copyright Infringement, but ultimately, Copyright Infringement is its own thing. Despite what IP lawyers would want a jury to believe, Intellectual property isn't the same as tangible property. It's a fiction created by statute. So no. Re-read what I said. I didn't accuse him of stealing.

The lawsuit does involve copyright infringement. That's the language I used, and that's the claim in the lawsuit. If the CEO of Stardock thinks it's such an outlandish allegation, he should file for summary judgment and have it dismissed. If it's so clear cut, a judge will see it that way. I suspect that won't work, because most judges, let alone lawyers and even ordinary folks, would look and say that there are significant issues with copyright infringement.

Most people here are looking at the SC:O Arilou and and the SC2 Arilou and saying "yeah, that looks like the same Arilou". And Stardock doesn't want the fans to think of them as new aliens. Stardock wants the fans to believe they're the same aliens.  If you get up in front of a jury and say they're the same aliens, you're handing them a massive piece of evidence against you. Because one of the first questions they're going to ask in a Copyright Infringement case is "did you intend to copy?" You can mince words, but the intent seems pretty clear here.

I don't know how much more clear I can be about what I said. And none of it should be controversial. Unless we're now going to get in trouble for stating controversies that are meant to be settled in the lawsuit, short of saying "allegedly" a dozen times. In which case, I'd like to see a lot more disclaimers before the Stardock CEO posts their understanding of things that haven't yet been proven (and frankly, seem pretty dubious). I don't want the moderators to pick one narrative in the lawsuit over the other simply because one person wants the moderator to play judge. The moderators should keep the personal attacks to a minimum, and I think they've done a good job, even as Stardock keeps pushing innuendo against fans.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 07:10:31 pm
Quote
So, simply stated:  You are a CEO of a multi-million dollar game company, a feat most people will never accomplish.  Why even justify what you believe to be false statement with a response that takes up your time and effort?  Especially to some random folks on a small internet forum?  Come on, sir.  I'm sure you'd have more fun drumming up press for your big release in a month and endearing yourself to the gaming media with promos and SC:O swag.  They love that stuff from what I hear.

When I get annoyed with you Lak, you then post something like this that reminds me why I enjoy reading what you write because you really do have a keen mind whose writing I enjoy.  There are some people here, even people on "the other side" I can tell I'd get along with in real life.

So to answer your question:  I am a forum person first. A game developer second.  

I don't go to forums to promote the games.  I make the games to have something else to talk about on forums.  

I started out on Usenet and was one of the people who wanted a space version of Civilization.  So I bought Teach Yourself C in 21 days and learned to program and made Galactic Civilizations for OS/2.  That was 25 years ago.  I had nothing.  No one gave me money to make the game.  I worked multiple jobs to pay for school and pay for what I needed to make that game.  The driving motivation, however, was to make something for my online friends.

I make games because I love the gaming communities.  Most of our profits come from software.  You could make the argument that making games is foolish in the first place.

For me, the communities are the whole point.  Where other people watch TV for 3 or so hours a day, I'm online talking to people.  Hours a day, every day, years on end.  It's what I enjoy.

If someone disagrees with me, that's fine.   I'm part of this community and have been for years.  If someone on Reddit wants to personally attack me or Stardock, I could care less.  But there are some communities that I consider myself apart of and that includes this one.  And you start attacking me where I live, I'll respond.  

The problem I see with UQM's forum these days is the lack of self-policing. Death shouldn't have to moderate everyone.  It's a little hard to take Elestan seriously when he just looks the other way when someone posts something flagrantly incorrect (look at Krulle and CmdShepard) simply because they're on "his side".  He doesn't have to do anything, but I don't have to respect him either.   So there are some people here who I just don't care what they say either way.  But if someone, on a forum I care about, starts to suggest criminal activity, then either the moderator will intervene, the community will intervene (ideally) or I'll jump in (non ideal).  

So the tl;dr version is that communities are why I make games.  If this dispute wasn't happening I'd simply be posting here or somewhere else on some other topic.






Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 07:13:45 pm

Most people here are looking at the SC:O Arilou and and the SC2 Arilou and saying "yeah, that looks like the same Arilou".

Really?  You think the SCO Arilou looks like the same Arilou as the SC2 Arilou? 

I want to make sure I'm not putting words in your mouth.  Do you believe that the SCO Arilou looks the same to you as the SC2 Arilou? 


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on August 14, 2018, 07:14:43 pm
Okay. So, Rose, it'd be REALLY nice to have an example of what you meant in that stealing comment, or a retraction. Like, I banned SVS for keeping on going without doing that.



I didn't say he was stealing.

You are correct - you said that he said on this forum that he was copying. That's what I was referring to, right here: http://forum.uqm.stack.nl/index.php?topic=7182.msg78815#msg78815

Second sentence of last paragraph: "Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law"


Frogboy - If you put one next to the other, you'd say they're different, but they're about as similar to each other as the SC2 Syreen were to the SC3 Syreen. There is a definite relationship, and you are intentionally playing off of it.

Rose - I think you think that right there is copying. Frogboy appears to think it is not copying.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 14, 2018, 07:25:18 pm
Second sentence of last paragraph: "Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law"


Frogboy - If you put one next to the other, you'd say they're different, but they're about as similar to each other as the SC2 Syreen were to the SC3 Syreen. There is a definite relationship, and you are intentionally playing off of it.

Rose - I think you think that right there is copying. Frogboy appears to think it is not copying.

Like I said, I wasn't trying to say anything controversial. But lawsuits are themselves controversies. This is one of the controversies in the lawsuit.


Most people here are looking at the SC:O Arilou and and the SC2 Arilou and saying "yeah, that looks like the same Arilou".

Really?  You think the SCO Arilou looks like the same Arilou as the SC2 Arilou?  

I want to make sure I'm not putting words in your mouth.  Do you believe that the SCO Arilou looks the same to you as the SC2 Arilou?  

My words don't matter as much as what a jury thinks. And to the extent that intent matters, your words matter the most.

And copyright infringement is about more than just the visual appearance. The Arilou are a character in both literature and art. So they're not going to just ask a jury if they look the same. The test is most sophisticated than that. But one important question is whether you intended for them to be the same Arilou from the classic series.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 07:50:46 pm
0And copyright infringement is about more than just the visual appearance. The Arilou are a character in both literature and art. So they're not going to just ask a jury if they look the same. The test is most sophisticated than that. But one important question is whether you intended for them to be the same Arilou from the classic series.

I'm aware of the elements that would be compared. But so far, the only thing relevant to that comparison is you claiming that you think the Arilou in SC2 looks the same as the Ariou is SCO which would not hold up.  This is a very, very well tested area of law. As a reminder to Elestan and co, the onus is not on me to prove it wouldn't hold up.  You are welcome to show an example in all of history where two things so obviously different were considered to be copies.

That leaves you with what you call "character".  The Arilou is the name of a species in the Star Control universe.  The Arilou expressed in SC2 is not the same Arilou as the Arilou in SCO.   SCO is in a different universe with a different history.  They cannot, by definition, be the same Arilou as depicted in SC2.

And in fact, for almost 5 years now, Stardock has been very up front that SC3 isn't in the same universe as SC2 either.  We don't consider the Arilou in SC3 to be the same Arilou in SC2 and there are no shortage of fans who also agree with this.

It is desirable that fans do not think the SCO Arilou are the same Arilou as the SC2 Arilou because then we are trapped having to worry about SC2 canon anyway.  Moreover, having the SCO Arilou be the same would present another problem -- it would interfere with our desire that Paul and Fred use the Arilou from SC2 for future stories. 



Title: Re: Stardock Litigation Discussion
Post by: Death 999 on August 14, 2018, 08:00:13 pm
Second sentence of last paragraph: "Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law"


Frogboy - If you put one next to the other, you'd say they're different, but they're about as similar to each other as the SC2 Syreen were to the SC3 Syreen. There is a definite relationship, and you are intentionally playing off of it.

Rose - I think you think that right there is copying. Frogboy appears to think it is not copying.

Like I said, I wasn't trying to say anything controversial. But lawsuits are themselves controversies. This is one of the controversies in the lawsuit.

The existence of multiple forum posts as you describe is not the controversy of the suit, and is much more easily decided, and as you have presented it is claiming he said something - a claim that he objects to. If you can find anywhere he actually said that, great, show it. Otherwise, retract the claim of what he said when he did not say that.


Title: Re: Stardock Litigation Discussion
Post by: bum783 on August 14, 2018, 08:05:49 pm
I have a question (its to anyone but really its to Frogboy)
Does the fact that its more than 1 race play any factor in the copyright laws? For example if someone handed me an image of Stardocks Arilou I probably would not recognize it as being Arilou alone, BUT I wonder if it was an image of Stardocks re-imagining of an Arilou, Chenjesu, and a Druuge standing next to eachother would the 3 of them together (even if all 3 are as different as the Arilou image is) be enough to trigger the realization of who they are?  Does that even matter? Sort of like an image of a superhero in a red cape by himself may not lead me to see him as Superman, but stand him next to a woman with gold bracelets, and a guy with scales and suddenly you realize that its Superman.

I also have a 2nd question for the forum. Am in the ONLY one who thinks the litigation may lead to something positive? Before the announcement of Ghosts we were getting a Stardock game based loosely on Star Control. The history and lore were barely going to be mentioned if it was alluded to at all. Meanwhile Paul and Fred weren't doing anything. This litigation has pissed off Stardock to the point not only do they want to reference the lore but they want to use the actual alien names. Because of the lawsuit, Origins and any future developments will be more attached to Star Control now than they were intended to be. IF Fred and Paul ALSO get to make thier game, than we will have 2 actual Star Control Games when a year ago I wasn't sure Origins was even going to count as one.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 14, 2018, 08:38:08 pm
The Arilou expressed in SC2 is not the same Arilou as the Arilou in SCO.

"Expression" is your word, and an important one in a legal context. I see you frequently saying that you're choosing a different expression. But Copyright is meant to protect far more than just a singular pixel-for-pixel, word-for-word expression of a work. If it protection were confined to only literal copies, it would be a mockery of Copyright law.

So that's a strawman. The test isn't whether the Arilou expressed in SC2 is exactly the same as the Arilou expressed in SCO. Or SC3. The test is whether there was copying in some wider, admittedly more vague sense. In this wider sense, Stardock's intent to make them the same has been pretty clear.

We don't consider the Arilou in SC3 to be the same Arilou in SC2

Case in point. Yes, the Arilou in SC2 and SC3 were different expressions, they still needed a license and attribution from Paul Reiche and Fred Ford. Copyright doesn't just protect you from literal copying. It also protects you from copying in the sense of people taking your work and then modifying it. You can bet that Accolade would have really screwed the pooch if they tried to put those SC2 aliens in SC3 without a license. It wouldn't have mattered that they switched from pixels to puppets.

Quote
It is desirable that fans do not think the SCO Arilou are the same Arilou as the SC2 Arilou

That would be a very different story from the one you've been telling, where you say "the Star Control aliens" will be in the game, while being almost deliberately vague on what that means. I'm not trying to be deliberately combative when I read Stardock's announcements. My honest to God reading of Stardock's announcements is that y'all want fans to believe that the same aliens from SC2 are appearing in SC:O.

You can say that the SC3 expression was different from the SC2 expression, but Accolade wanted fans to believe they were the same aliens. I don't think it's radical to assume your design goals are the same. It's fanservice. Stardock isn't just trying to use a few words as Trademarks on the box. Stardock want fans to know that the some of the same classic aliens from SC2 are appearing in SCO.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on August 14, 2018, 08:42:07 pm
Well. That's progress on clarifying what source you have in mind, I suppose.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 14, 2018, 09:23:39 pm
Quote
hat would be a very different story from the one you've been telling, where you say "the Star Control aliens" will be in the game, while being almost deliberately vague on what that means. I'm not trying to be deliberately combative when I read Stardock's announcements. My honest to God reading of Stardock's announcements is that y'all want fans to believe that the same aliens from SC2 are appearing in SC:O.

They ARE the Arilou.  They're just not the same Arilou as the ones in SC2 (or SC3).    

For our vantage point, we've been saying for 5 years that SCO will be in a different universe.  So how can someone suggest that the specific Arilou expressed in SC2 could be the same in the SCO universe?  

Do you think the Enterprise in the Kelvin timeline is the same Enterprise as the one in TOS?  They're completely different ships.  They weren't even built the same year or are even the same size.

edit: Do you think the Cylons in the BSG reboot are the same Cylons as the original series?


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 14, 2018, 09:44:07 pm
The different universe thing is a pretty weak conceit, considering it's the "same multiverse". The courts aren't going to care about nerd speak. A multiverse necessarily keeps some of the same elements between universes. Or else, why have a multiverse? That's why the BSG and Star Trek reboots needed authorizations from the original copyright holders. They couldn't just hand wave away and say "these are not the same specific Cylons as expressed in the original".

Again, "specific Arilou expressed in SC2" are your words. It's a strawman. Not only is it not anything that the fans have said. It's also not the legal standard by which copyright is protected, or by which an infringing copy will be found. Again, you don't have to copy the specific expression to infringe copyright. SC3 switched from pixels to puppets, and they still used them under a license from Paul and Fred.

"They ARE the Arilou" are also your words. Ultimately, how much the expression of the Arilou has changed will be one of the dimensions of the Copyright test. But the bigger point still stands. Stardock wants fans to believe that the SC:O Arilou are in some sense the same Arilou as in the classic series. Not just different aliens with the same name.


Title: Re: Stardock Litigation Discussion
Post by: ArilouSkuff on August 14, 2018, 10:31:58 pm
Second sentence of last paragraph: "Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law"


Frogboy - If you put one next to the other, you'd say they're different, but they're about as similar to each other as the SC2 Syreen were to the SC3 Syreen. There is a definite relationship, and you are intentionally playing off of it.

Rose - I think you think that right there is copying. Frogboy appears to think it is not copying.

Like I said, I wasn't trying to say anything controversial. But lawsuits are themselves controversies. This is one of the controversies in the lawsuit.

The existence of multiple forum posts as you describe is not the controversy of the suit, and is much more easily decided, and as you have presented it is claiming he said something - a claim that he objects to. If you can find anywhere he actually said that, great, show it. Otherwise, retract the claim of what he said when he did not say that.

Here are examples from multiple posts within the same thread:

"But what this means, as a practical matter, is that the Orz, for example, cannot be in the new Star Control games (IANAL) because, IMO, they are too well defined. Not in terms of art even, but even if you changed the Orz to look totally different, a species called Orz that started saying “We are frumple” would be too risky to try to put into a commercial game (again IMO).

So even with a registered trademark on the Orz, as a game designer, I don’t see a way to use them in game because of the issues I listed above.

The bottom line, if Stardock has a species called the Orz, it would have to be so different that it would be, IMO, worthless in game without a copyright license.

But that doesn’t mean that Paul and Fred can use them either. The Orz are strongly associated with Star Control. There’s an endless series of exhibits that show this. Every time Star Control comes up and someone says we are happy campers a lawyer smiles. The only way they can use the Orz in commerce is with Stardock’s permission.

Now, if you look back through the various emails, you will find that the Orz was an alien that we wanted to get a specific license to use. Paul and Fred’s refusal meant no Orz now and presumably, no Orz ever after. But at the same time, we don’t have to let them use the Orz either."



...

"Copyrights can be tricky because of the “substantial similarity” argument is subjective. So it’s always a matter of how much risk you want to take.

I wouldn’t characterize the Orz as fundamentally different. The Ur-Quan and Orz are, IMO, better developed. It’s highly unlikely they are developed well enough to be protected by copyright but we are, contrary to what some seem to believe, fairly risk adverse.

So for example, the Arilou, like you mention, don’t refer to the player as a “child”. They have a specific role in the Star Control: Origins story that has nothing in common with previous Star Control games. But having them in the game strengthens Star Control: Origin’s association with the classic games which became necessary when the mark got challenged.

But it’s Stardock’s position that it owns the names of all Star Control species as these are words and that is the area that trademark covers. Paul and Fred can contend that they own a specific expression of those alien species or the expression of a particular character but that’s as far as it goes.

Hence, Stardock can have a species called the Arilou. The Arilou are strongly associated with Star Control. Using the Arilou strengthens Star Control: Origins association with the classic series which was the whole point of acquiring that specific trademark for $300,000."


He attempts to make two separate points there. One is the same as he is making here, which is that he thinks he owns the "Arilou" name as per his existing spiel about the Star Control trademark extending to the alien names. The second is that Fred and Paul "contending" that they own a "specific expression" of those aliens means that his attempted workaround is to get as close to that expression as possible without, as rosepatel put it, "triggering Copyright law." In the first quote he says that trying to do that with the Orz would mean they would be too different from the SC2 aliens for that to be worthwhile. This would therefore naturally mean that he thinks his version of the "Arilou" is close enough to Fred and Paul's, but not close enough to be infringing on the copyright.

Granted, he may think that he can argue that the similarities are simply from directing people to pull from existing tropes in building Stardock's version of the Arilou and that he's not copying anything too specific to Paul and Fred's version, but he also clearly expresses that he wants to link his version with the existing version without getting into legal trouble.

*These posts are from the following thread: https://forum.quartertothree.com/t/the-third-doctrinal-war-stardock-reiche-ford-and-star-control/134515/941 (https://forum.quartertothree.com/t/the-third-doctrinal-war-stardock-reiche-ford-and-star-control/134515/941)


Title: Re: Stardock Litigation Discussion
Post by: Lakstoties on August 14, 2018, 10:40:52 pm
When I get annoyed with you Lak, you then post something like this that reminds me why I enjoy reading what you write because you really do have a keen mind whose writing I enjoy.  There are some people here, even people on "the other side" I can tell I'd get along with in real life...

A very fair answer.  I definitely understand the desire to answer to the communities you feel a part of.  I can't very well fault you for that, as I've been in similar situations myself.  At this point there's one bit of advice I'd offer to you and anyone else:  I've always found myself in environments where I am often surrounded by intelligent and passionate people.  I try to keep an even attitude about things, especially after all the strangeness in my existence so far.  So, I'm often in the objective, outside observers point of view.   (Passion does strike me hard at times, too, but I often TRY to hold it back until I'm sure it is warranted.  I also implement a 24 hour policy before I open an e-mail client after an incident due to past experiences, too.  It's amazing what a five page nasty-gram can do when you send it to the right person...  But not something I'd recommend.)  

From my observations and experiences, passion is a force.  But... A scalar force.  In itself, it has no direction.  The wit and mind of an individual is what gives that scalar a direction and it becomes a powerful vector.  But, even best initial directions can eventually drift from the original target.  That "extra" significant digit after the decimal often turns out to be a very important when the distance is long enough.  And your effective field of view shrinks quickly as passion drives you forward faster and faster.  We are human beings, so we all have limitations at what we can practically perceive.  So, it is often a good thing that even with the clearest roads ahead of you to pull over, get out of the vehicle, unfold the map on the hood, and ask yourself, "Where the hell am I really?"

I've had to do it many, many times.  Sometimes AFTER I went through a few brick walls.  There's nothing wrong with a little course reevaluation.  And there's no shame in U-turning back to pick up that off-ramp you should have taken.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 14, 2018, 11:39:14 pm

Most people here are looking at the SC:O Arilou and and the SC2 Arilou and saying "yeah, that looks like the same Arilou".

Really?  You think the SCO Arilou looks like the same Arilou as the SC2 Arilou?  

I want to make sure I'm not putting words in your mouth.  Do you believe that the SCO Arilou looks the same to you as the SC2 Arilou?  
Sufficiently close enough to have differences be attributed to an update in graphics, graphic capabilities (heck, it's been 25 years, and that with computers. Most mobile phones can do better than a state-of-the-art PC back then), and the Arilou being a different Arilou from the same race (a different person).
Look at the differences in Klingons Star Trek original series and TNG...

But then, both versions (SC2, SC:O) are recognisable derivates of the small grey alien trope....
The artwork itself will, IMHO, not be decisive when discussing copying the creation of FF/PR... The name will have a much larger influence in this context.
It's the name that carries potential intent here.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 15, 2018, 12:10:33 am
The Arilou in SCO don't even have ears.  

But in case it's not already crystal clear: SCO is in a different universe than SC3 or SC2.  They're the Arilou but they aren't the same Arilou as they were in SC2 or SC3.  I would also content that the Arilou in SC3 are not the same as the Arilou in SC2 and suspect Paul and Fred would agree with me on that.  

Whatever copyrights that might surround the way the Arilou were artistically expressed are not relevant.  Stardock owns the Star Control aliens and by that, in case it's not obvious, means the names of the alien species.

Our first and best known game, Galactic Civilizations, had a GalCiv 1, 2 and 3 for OS/2 (1993, 1995, 1997) and that was a very different universe than the GalCiv I, II and III for Windows both in terms of lore (in GalCiv for OS/2, there's no Earth, your ship has gone through a wormhole to a distant galaxy).  The Altarians in the OS/2 version were very alien looking.  The Altarians in GalCiv III are blue humanoid aliens.  Completely different backstories.  

Quote
The artwork itself will, IMHO, not be decisive when discussing copying the creation of FF/PR... The name will have a much larger influence in this context.
It's the name that carries potential intent here.

Name isn't considered in these kinds of cases. Unprotected elements (like names) are removed from consideration during these cases.  The question is whether something is a COPY.  Not inspired. Not similar. Not related. A COPY. As in, you put the two side by side and ask "Is X also Y?"   

This would be a good time for Elestan or Laks to show some case studies if they are genuinely interested in the dispute from an intellectual point of view as opposed to being PF surrogates.  There are a lot of them out there and they are, often, quite interesting.    I think you would be (I know I was) shocked at just how similar two things can be and still be considered different.  They really mean COPY in copyright infringement. 

But we aren't interested in copying or even seeing "how close" we can get and be safe.  As Paul and Fred will no doubt learn during future depositions, the alien that became the Arilou was created to solve a plot device issue and it needed to be something that was observing us for a long time.  That alien and how it looks would have ended up in there.  We chose Arilou as the name of the species because we wanted to more closely associate the new Star Control game with the classic games which we have every legal right to do and felt pressured to do so once Paul and Fred began to try to cancel our trademarks.  If you don't like that outcome, you should talk to Paul and Fred, not us.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 15, 2018, 01:57:01 am
Quote
The artwork itself will, IMHO, not be decisive when discussing copying the creation of FF/PR... The name will have a much larger influence in this context.
It's the name that carries potential intent here.

Name isn't considered in these kinds of cases. Unprotected elements (like names) are removed from consideration during these cases.  The question is whether something is a COPY.  Not inspired. Not similar. Not related. A COPY. As in, you put the two side by side and ask "Is X also Y?"  

Again, the standard for finding illegal copying isn't whether you put two things side by side and ask "is X also Y". The typical test is substantial similarity, which is used to answer the question "was there copying?". Arguing that you modified it enough to avoid infringing copyright can sometimes, in of itself, be taken as an admission of an intent to copy. And determining whether someone was trying to copy is a finding-of-fact that helps cover one of the essential elements for finding copyright infringement.

It's also misleading to say that names can't be Copyrighted. That's like saying letters can't be Trademarked. True, if you try to get intellectual property protection for a bare component, you're not going to succeed. But a work of literature typically has many names in it. A work of art is typically given a name. When finding substantial similarity, copying those names is going to matter. The only ways it could play out:

If you copy the name of a character, and nothing else, it's almost definitely not Copyright infringement.
If you copy everything EXCEPT for the name of a character, it very likely IS Copyright infringement.
If you copy several elements of a character, it's probably Copyright infringement.
If you copy several elements of a character, including the name, it's a little closer to substantial similarity, and closer to Copyright infringement.

None of this is controversial. The only thing that isn't protected by copyright is generic material. Names can absolutely be part of the original material, and thus protected.

Quote
I think you would be (I know I was) shocked at just how similar two things can be and still be considered different.  They really mean COPY in copyright infringement.  

You don't have to look that hard to find cases where "this is a totally different expression" was taken as a poor defense. In fact, there was a famous appeals case from just this past year, and it caused a panic among lawyers who hoped the letter of the jurisprudence would protect their clients from violating the overall spirit of copyright protection. For every case that cuts one way, there's another case with specific facts that change the outcome drastically.

Just because people have said that substantial similarity is somewhat subjective, it doesn't mean it's an arbitrary standard that came out of nowhere. It was designed to answer several questions, particularly "was there copying?" Even to that end, mere access to the original work can be more powerful evidence of copying than any similarity. A combination of both access and similarity would be more damning.

None of this is determinative. This is why we have a legal system.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 15, 2018, 02:27:59 am
If you claim that the name is considered then it’s not controversial, it just means you’re wrong.

More to the point, the burden is on you to show the infringement, we know we aren’t infringing because we didn’t copy anything or derive anything from anything copyrighted.

Like I said earlier, you’re welcome to pretend to be an internet lawyer all you want. Just don’t accuse us of illegal activity such as claiming I said we are copying something unless you are prepared to back it up. Is that really that hard for you to understand?


Title: Re: Stardock Litigation Discussion
Post by: Narsham on August 15, 2018, 02:39:21 am
Stardock owns the Star Control aliens. Paul and Fred *might* have copyrights to how those aliens were expressed in Star Control II but that's the extent of it.

Whether Stardock owns the aliens created by Paul and Fred and which appear in Star Controls 1 & 2 (and, in some cases, in 3 as part of a licensing agreement) must surely be decided as a part of the lawsuit, and not already be established fact. If it's established fact, your lawyers are making a lot of money doing something totally unnecessary.

Or did you mean something different by the words "Star Control aliens?"

This would be a good time for Elestan or Laks to show some case studies if they are genuinely interested in the dispute from an intellectual point of view as opposed to being PF surrogates.  There are a lot of them out there and they are, often, quite interesting.    I think you would be (I know I was) shocked at just how similar two things can be and still be considered different.  They really mean COPY in copyright infringement.  

But we aren't interested in copying or even seeing "how close" we can get and be safe.  As Paul and Fred will no doubt learn during future depositions, the alien that became the Arilou was created to solve a plot device issue and it needed to be something that was observing us for a long time.  That alien and how it looks would have ended up in there.  We chose Arilou as the name of the species because we wanted to more closely associate the new Star Control game with the classic games which we have every legal right to do and felt pressured to do so once Paul and Fred began to try to cancel our trademarks.  If you don't like that outcome, you should talk to Paul and Fred, not us.

It is, of course, possible for someone to disagree with you on the Internet without being "surrogates" for Paul and Fred. Since this thread has turned in the direction of empty accusation and demanding evidence (pre-Frogboy), shall I ask what specific pieces of evidence you can offer us that Elestan or Laks are surrogates? That seems all the more necessary given that your court filing has accused Paul and Fred (through their PR firm) of "causing to be made or disseminated, before the public in this State untrue or misleading statements in connection with the sale or goods or services that Reiche and Ford  knew  or  should  have  known  were  false  and/or  misleading" (152 in the amended complaint). Are you asserting that anyone in this forum was caused, by Paul and Fred, to make an untrue or misleading statement? On what basis do you make that claim?

Like you, I am not a lawyer. I am a fan of the original games. I am also capable of making up my mind about who to support or not support on the basis of people's behavior, and not a puppet for Paul & Fred or anyone else.

At one point,  I thought you were a fan of Paul and Fred's work. I suspect you did, too. Now, you look to be a fan of the product of the corporate development process at Accolade which brought about Star Controls 1 & 2, but not particularly a fan of developers Paul and Fred, who, from your perspective, contributed to some degree in the creation of those games but are not creators and do not own the things which came out of that development process as the result of many hours of work by artists, composers, coders, and so on. In your eyes, that perspectival change may mean nothing at all (beyond the ensuing lawsuit). In my eyes, it makes a big difference indeed.

Paul and Fred built my goodwill through their game designs, from some of their early EA games through to Star Control 2 (maybe not so much The Horde and Archon Ultra). They earned more when they allowed the fan community to create this very site. I was delighted when over a million more people had the chance to play the game I bought on floppies, did my first computer upgrade to play, then bought again on DVD (because floppies weren't a reliable storage medium). We went our separate ways besides that--I wasn't a console gamer--and when this whole mess started off, they spent some of my goodwill with some of their choices. I felt especially ambivalent about their Gofundme.

Stardock and you had some of my goodwill from the GalCiv series, from your participation in SC fandom, and from your purchase of the Star Control franchise from Atari (or whatever they were called by that point, I'm not trying to be legally precise here). You built some more from how you handled the mess of what later became Fallen Enchantress. And many of the updates for SC:O had me excited, though I was never in the instant-buy category, because series like GalCiv and FE never quite hit that sweet spot for me that keeps me returning to games like Master of Orion or Master of Magic all these years later, and I wanted to wait and see before purchasing.

Paul and Fred still have some of my goodwill left. If they win enough in the lawsuit to enable them to make a continuation of the story they told in the Ur-Quan Masters, I'll happily Kickstart it and own it, I'll hope it turns out to be good, and if it's not I'll be saddened but not too bitter. It's been many years, and we're all different people now. Capturing lightning twice is hard enough to do.

Reading some of your recent posts, and following the thread conversation about the SC:O Arilou... well, I don't have any goodwill left for you or Stardock. I understand what you're doing, I can see how you would feel compelled to proceed in the way you have, and I can't even say that from your perspective, you're wrong. There's a good reason I never made any attempts to run a corporation, and I make no claim that I'd be good at it. For you, Paul and Fred now threaten what you value about the Star Control universe. But for me, they're inseparable from it. And the more you do to write them out and replace them with Stardock's Star Control (registered trademark, Stardock Systems, Inc.), the more you inevitably damage a part of what I love. Whatever you make out of what remains, I won't be able to enjoy it knowing the cost.

I don't see what you could do to win me back, though I hardly think you'd care to try. That doesn't keep me from wishing this could have worked out differently, and in that, I suspect we can still find a point of agreement.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on August 15, 2018, 02:54:02 am
we didn’t copy anything

You're not going to convince me Stardock decided to make a trading race and it just happened to be both orange and called Melnorme. Even that little is copying. Not copyright infringement, but still copying.





Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 15, 2018, 02:55:23 am
Nobody accused you of anything that isn't already stated in the lawsuit. It's not clear to me that you understand what it is that I'm saying, let alone the distinction between Copyright Infringement, a non-infringing copy, and an infringing copy. I'll be happy to explain again.

You are being sued for copyright infringement. Copying isn't itself infringement, but one of the essential elements of infringement. Despite your desire to treat Copyright Infringement as only a verbatim "specific expression" standard, that's not the legal definition of what it means to be illegal copyright infringement, let alone the legal definition of copying someone. You've made many statements over the past few months (let alone the past few days) that are material to the question of whether you tried, in any sense, to copy the original SC2 aliens. Including saying that SC:O will include some of the same aliens from the classic series.

I appreciate your invitation, but it applies far more to you than it does to me. If you're going to internet lawyer every forum on the internet, I'd encourage you to couch your theories with words like "allegedly" or "my lawyers hope to prove" or other similar language.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 15, 2018, 03:09:18 am
we didn’t copy anything

You're not going to convince me Stardock decided to make a trading race and it just happened to be both orange and called Melnorme. Even that little is copying. Not copyright infringement, but still copying.



By that standard, how much did Star Control “copy” from Space War and Starflight? Should we send over the Starfleet Battles guy who would be happy to let you know about how much Star Control “copied”.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 15, 2018, 03:12:04 am
Nobody accused you of anything that isn't already stated in the lawsuit. It's not clear to me that you understand what it is that I'm saying, let alone the distinction between Copyright Infringement, a non-infringing copy, and an infringing copy. I'll be happy to explain again.

You are being sued for copyright infringement. Copying isn't itself infringement, but one of the essential elements of infringement. Despite your desire to treat Copyright Infringement as only a verbatim "specific expression" standard, that's not the legal definition of what it means to be illegal copyright infringement, let alone the legal definition of copying someone. You've made many statements over the past few months (let alone the past few days) that are material to the question of whether you tried, in any sense, to copy the original SC2 aliens. Including saying that SC:O will include some of the same aliens from the classic series.

I appreciate your invitation, but it applies far more to you than it does to me. If you're going to internet lawyer every forum on the internet, I'd encourage you to couch your theories with words like "allegedly" or "my lawyers hope to prove" or other similar language.

Where in the lawsuit does it say I stated I was going to copy the Way the Star Control aliens were expressed in SC2? Pretty sure you made that up whole cloth and you don’t even have the decency to retract it.



Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 15, 2018, 03:21:05 am
Where in the lawsuit does it say I stated I was going to copy the Way the Star Control aliens were expressed in SC2? Pretty sure you made that up whole cloth and you don’t even have the decency to retract it.

Again with the strawman. How am I supposed to retract something I didn't say?

You're the one relying on this narrow idea of "the way the alien was expressed in SC2" to protect you from copyright infringement. That's a nearly impossible standard to meet, not something I accused you of, and not the standard that will be used if this goes to litigation. Copying is a much lower standard. I've explained that repeatedly.

If you want to continue to communicate with people here, at least have the decency to engage with the things people are actually saying. If you want to rail against strawmen, you can do that in your Q+A.


Title: Re: Stardock Litigation Discussion
Post by: ArilouSkuff on August 15, 2018, 03:59:32 am
I just want to emphasize this quote of Frogboy's from my previous post:

Quote
"a species called Orz that started saying “We are frumple” would be too risky to try to put into a commercial game (again IMO)."

He clearly knew then that using a name (even a name that he thought was covered under his trademark) in combination with certain elements from Fred and Paul's IP was problematic.


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on August 15, 2018, 04:39:24 am
I can't believe you seriously believe that using the same name wouldn't be a consideration in determining whether it's copyright infringement. The name is part of the whole, after all. It's not a trademark (despite what you seem to think), it's a part of the expression of what we know to be the Ariloulaleelay. Sure, if you used the name Ariloulaleelay to refer to (for example) a giant mammoth-like species, there's no problem there - it's just the name, no other similarity. But using the name Ariloulaleelay to refer to little green men is an obviously higher degree of similarity. I don't know if it's enough to be considered infringement, but I do think you'd have to be pretty stupid to just dismiss that possibility out of hand.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 15, 2018, 04:45:40 am
I just want to emphasize this quote of Frogboy's from my previous post:

Quote
"a species called Orz that started saying “We are frumple” would be too risky to try to put into a commercial game (again IMO)."

He clearly knew then that using a name (even a name that he thought was covered under his trademark) in combination with certain elements from Fred and Paul's IP was problematic.

No, better to say I clearly believed that at the time until I was corrected.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on August 15, 2018, 05:14:14 am
we didn’t copy anything

You're not going to convince me Stardock decided to make a trading race and it just happened to be both orange and called Melnorme. Even that little is copying. Not copyright infringement, but still copying.



By that standard, how much did Star Control “copy” from Space War and Starflight? Should we send over the Starfleet Battles guy who would be happy to let you know about how much Star Control “copied”.

I don't know those games well, but after some quick searching: more than nothing and less than SC:O. No aliens with the same name and colour that I've found, for example.

No, you should not invoke Mr. KK. Nobody deserves that.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 15, 2018, 05:37:04 am
Also, on the issue of names. From a few legal cases:

http://www.novalis.org/cases/ET.html

Quote
The Court also concludes that there is a substantial likelihood that the plaintiffs will prevail on their copyright infringement claim by reason of the defendant's unauthorized appropriation and use of the "E.T." character and name. A character in a work in which the character is central to the story is copyrightable. The defendant's contention that copyright protection for a motion picture does not extend to characters or their names is not well taken in a situation involving a distinctive and well developed character such as "E.T." The test for infringement of a character is the same as that for infringement of any other copyrighted work. The defendant's appropriation and use of name "E.T." on its products satisfies this test because the average lay observer would readily recognize the name "E.T." as having been taken from the copyrighted character.

https://h2o.law.harvard.edu/cases/4668

Quote
Anderson retained the names, relationships and built on the experiences of these characters from the three prior Rocky movies. 1 M. Nimmer, § 2.12 at 2–177 (copying names of characters is highly probative evidence of infringement).

Again, nobody is claiming that you can copyright a word or a name by itself. And nobody would say that merely copying a character's name, by itself, would be infringement.

How much more than that you would need for infringement is a tricky question, and one that's specific to the facts of each case. When it comes to questions of copyright infringement in fiction, the mileage can vary.

But can a copyrighted work of fiction include the names of characters? Typically, yes. If a fictional work is protected by copyright, are characters and names included under the protected material? Yes. If I created a character with the same name as someone else's fictional character, would the court at least consider it as relevant to whether I might have copied your character? Absolutely.

(I really wish these were strawmen I'm responding to. But I've seen people proclaim the hard and fast "you can't copyright a name!" that it bares worth getting into the more practical truth.)


Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 15, 2018, 07:41:38 pm
Thank you, rosepetal.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 15, 2018, 07:50:01 pm
First, let me say Rose that your legwork is exactly the kind of thing that I think adds to the forum.  Your post definitely positively affected my perception of you for whatever that is worth.

Second, as a non-lawyer, I read the cases you cited and see what you are getting at.  Enough that I asked legal counsel to walk me through, in detail (short version, a couple thousand dollars of legal education but worth it).  Because, contrary to what some people seem to think, we don't want to use anyone else's IP.  I'm not sure if you read https://forums.starcontrol.com/490381 but that's just the tip of the iceberg.  Since I wasn't involved on the project until last year, it's been illuminating to me how much effort has been spent brainstorming the aliens.  But hopefully you can recognize that amount of creative energy and love that has been put into this.  

So what did the lawyers say?  Since our opponents read everything written here I'm not not at liberty to say much.  What I will say is that the Arilou isn't Rocky let alone E.T.  And we have gone to great lengths to demonstrate that our Arilou are not the Arilou in SC2 complete with several years of evidence that Star Control: Origins is in an entirely different universe with an entirely different background and story.  

The Rocky case you brought up was particularly interesting.  Chutzpah eh? For those who didn't read it, it would be akin to someone taking the UQM source and assets, making UMQ II and selling it.  The guy had no rights whatsoever, he simply decided he could just continue the Rocky stories himself and sell them. Really brazen.  

Anyway, Rose, thank you again. On an otherwise unpleasant day, your post turned out to be a nice brought spot.  You guys seriously gotta read that Rocky one.  



Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 15, 2018, 08:52:14 pm
I've always been relentlessly honest. Most people here have appreciated what's taken you the better part of the year to figure out. I've always reserved criticisms for both sides of the conflict. The fact that my harshest criticisms are for Stardock isn't a product of some kind of bias, but a product of the fact that I've found your behavior to be so much worse.

I wasn't waiting around for you to compliment me. Your word has stopped meaning very much to me, let alone a lot of people here.

It's not that I think you're intentionally lying. It's that I think you mostly repeat things that are self serving, regardless of whether they're true, and don't really care if it turns out to be false. When people try to offer an opinion you disagree with, you skip right passed the listening part, and straight into attack mode.

For the record, I found those cases on the UQM wiki. The wiki that has been meticulously sourced to reliable legal sources, like that one. The wiki that you slandered as biased.

Since we're on the subject, do you understand why Rocky and E.T. are afforded copyright protection? Because it's not clear to me that you do. It seems you have been so obsessed with the Trademark argument that you've completely misunderstood how Copyright is earned, and what Copyright protects.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 15, 2018, 10:44:58 pm
Ah, thanks for restoring my opinion of you to its previous level.   Carry on.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 16, 2018, 12:28:31 am
I never stopped. You're free to listen. Might save you a couple thousand dollars of legal education.

If you want to earn yourself a better reputation, you might have tried the gracious approach well before you suggested doxing other Star Control fans.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 16, 2018, 02:02:17 am
No, I'm pretty convinced you still don't really understand what you're talking about after having consulted with legal.

I found the case law examples interesting and extended you an olive branch of civility which you promptly slapped.  But I appreciate you making it clear what kind of person you are.

We are comfortable with our position on the merits of the case. Thanks for your concern.  I don't lose a lot of sleep worrying about my reputation with Paul and Fred's shills and their sympathizers.  I have the benefit of being on a lot of other forums and in a lot of other places to gauge our "reputation". 

Hopefully after release, Star Control related fan sites, such as this one, will see an influx of people who are interested in talking about the Star Control games again rather than be dominated by a half dozen non-contributors who joined only since February whose sole purpose seems to attempt to make this forum toxic and unpleasant.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 16, 2018, 02:16:42 am

No, you should not invoke Mr. KK. Nobody deserves that.


;)


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on August 16, 2018, 03:53:49 am
Frankly, from my perspective, the only people in this thread (other than the one who was banned) who seem to be making this discussion toxic and unpleasant are you and Serosis. It strikes me as awfully strange that all three people lean toward Stardock's side rather than P&F's side.

Oh, and I find it ironic that you originally popped into this thread because you spotted someone accusing you of dishonesty without proof (the stealing thing or whatever), yet you don't see the problem with accusing your opponents of dishonesty without proof (paying people to support them while posing as neutral).


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 16, 2018, 04:14:27 am
Like I said, I'm relentlessly honest. I try to assume good faith, and only call someone out when it's clear they have a pattern that can only be interpreted as reckless, if not malicious. I've told the truth. I've pointed out inconsistencies. I've quoted statutes and case law. Often, I'm quoting Stardock's own words. If you find sit "toxic" when people point out things that you have done, maybe it indicates that deep down, you hate seeing your own behavior described back to you. Some people can take that shame and come to show remorse. But given how quickly you go back to attacking people on this forum, I won't be expecting any apologies any time soon.

If you're just realizing now that a few people on the internet might know a thing or two about the law, that's not an olive branch to me, and is really for your benefit. A much more meaningful olive branch would have been showing some remorse for some of your behavior.

Back on topic.

Quote from: Frogboy
The Rocky case you brought up was particularly interesting.  Chutzpah eh? For those who didn't read it, it would be akin to someone taking the UQM source and assets, making UMQ II and selling it.  The guy had no rights whatsoever, he simply decided he could just continue the Rocky stories himself and sell them. Really brazen.

Let's take this scenario and adjust the facts a bit.

The UQM assets could easily be called the Star Control 2 assets. That's how most fans would ordinarily understand them. For legal purposes, it's the same Copyright. It's just been described under two different Trademarks.

Now, instead of a sequel, it's a reboot.

it would be akin to someone taking the Star Control 2 assets, making a Star Control reboot and selling it.  The guy had no Copyrights whatsoever, he simply decided he could just reboot the Star Control stories himself and sell them. Somewhat brazen.

Typically, people wouldn't dare reboot someone else's fiction without a Copyright license. And in all likelihood, a judge will find that there is copying, if only in the most minimal sense. And then it's an unsettled question of whether the copying exceeds that de minimis standard, and crosses over into substantial similarity, to qualify as infringement. But if you compare this fact pattern to the Rocky case, Stardock is effectively gambling on the difference between an unlicensed sequel and an unlicensed reboot.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 16, 2018, 04:30:07 am
Frankly, from my perspective, the only people in this thread (other than the one who was banned) who seem to be making this discussion toxic and unpleasant are you and Serosis. It strikes me as awfully strange that all three people lean toward Stardock's side rather than P&F's side.

Oh, and I find it ironic that you originally popped into this thread because you spotted someone accusing you of dishonesty without proof (the stealing thing or whatever), yet you don't see the problem with accusing your opponents of dishonesty without proof (paying people to support them while posing as neutral).


That is quite a coincidence that only those who don't share your opinions are the toxic ones.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 16, 2018, 04:48:51 am
Quote
Let's take this scenario and adjust the facts a bit.

The UQM assets could easily be called the Star Control 2 assets. That's how most fans would ordinarily understand them. For legal purposes, it's the same Copyright. It's just been described under two different Trademarks.

Now, instead of a sequel, it's a reboot.

it would be akin to someone taking the Star Control 2 assets, making a Star Control reboot and selling it.  The guy had no Copyrights whatsoever, he simply decided he could just reboot the Star Control stories himself and sell them. Somewhat brazen.

Typically, people wouldn't dare reboot someone else's fiction without a Copyright license. And in all likelihood, a judge will find that there is copying, if only in the most minimal sense. And then it's an unsettled question of whether the copying exceeds that de minimis standard, and crosses over into substantial similarity, to qualify as infringement. But if you compare this fact pattern to the Rocky case, Stardock is effectively gambling on the difference between an unlicensed sequel and an unlicensed reboot.

That's an interesting scenario but not related to Star Control: Origins which exists in a completely different universe, has its own story, lore, setting, etc. and is made by the party who owns the Star Control trademark and owns the only registered Star Control related copyright that has the presumption of validity.

But I agree that if someone were to just scoop up the UQM assets and make a new game, they'd be in trouble.   Not as much trouble as someone who decided to announce they were making the true sequel to Star Control while knowing that they had no rights to use the trademark creating vast examples of actual consumer confusion.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 16, 2018, 05:05:56 am
To be fair. using someone's Trademark without a license has similar issues. But there's a difference between making a forum post and making a product. Especially given years of announcements involving the same Trademark, unchallenged by the Trademark holder. Including unqualified support from the Trademark holder in the first few weeks after the announcement itself.

If you think that J.J. Abrams could have rebooted Star Trek without a license just because it's a "different universe", you'd be sorely mistaken. Star Control 3 had its own story, lore, setting too, but they still needed the Copyright license.

Maybe you're infringing Copyright. Maybe P&F are infringing Trademark. Maybe both. Maybe neither. The facts of this case are pretty unique. And just as with any case, the exact circumstances can matter a lot. Sometimes the circumstances are a distinction without a difference. Sometimes the circumstances are different enough that it can change the outcome between liability and not.

Both parties are at risk here. Only Stardock is doubling down on that risk, with more potential infringement to come.


Title: Re: Stardock Litigation Discussion
Post by: Serosis on August 16, 2018, 10:56:13 am
Frankly, from my perspective, the only people in this thread (other than the one who was banned) who seem to be making this discussion toxic and unpleasant are you and Serosis. It strikes me as awfully strange that all three people lean toward Stardock's side rather than P&F's side.

So either you're trying to get a rise out of me or you love me so much you want me to participate even more.
If you don't want me to come when you call, don't mention my name. I will be the harbinger of your irritation.

Joking aside yes I can be a bit brash and accusative. Sorry if I came off as toxic. I'll try to be better in the future.

While I am sided with Stardock I don't think it should mean that I'm your "enemy" or anything. I love you guys.
All of you helped me become the UQM modder I am today and the MegaMod wouldn't have existed without you.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on August 16, 2018, 01:38:42 pm
Frankly, from my perspective, the only people in this thread (other than the one who was banned) who seem to be making this discussion toxic and unpleasant are you and Serosis. It strikes me as awfully strange that all three people lean toward Stardock's side rather than P&F's side.

Oh, and I find it ironic that you originally popped into this thread because you spotted someone accusing you of dishonesty without proof (the stealing thing or whatever), yet you don't see the problem with accusing your opponents of dishonesty without proof (paying people to support them while posing as neutral).

THIS IS PURE NAME-CALLING. STOP.


Title: Re: Stardock Litigation Discussion
Post by: ArilouSkuff on August 16, 2018, 03:51:16 pm
I just want to emphasize this quote of Frogboy's from my previous post:

Quote
"a species called Orz that started saying “We are frumple” would be too risky to try to put into a commercial game (again IMO)."

He clearly knew then that using a name (even a name that he thought was covered under his trademark) in combination with certain elements from Fred and Paul's IP was problematic.

No, better to say I clearly believed that at the time until I was corrected.

"At the time" was two weeks ago.  ::)

You were berating people then for not understanding the law, as you are doing now. Was your opinion from two weeks ago not already informed by talking with lawyers? What you're saying au présent may be the new spin that your lawyers decided to try to argue, but it being as clear cut as you now claim when they presumably told you differently up until two weeks ago is not very believable.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 16, 2018, 07:09:59 pm
I try to take the position of maximum risk mitigation.   

If I ever butt in on a lawsuit you're involved in, I'll try my best to not inject my personal legal opinions to you.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 16, 2018, 08:14:51 pm
Making an unlicensed reboot ("different universe same multiverse", "same aliens from the classic series, different expression") strikes me the furthest thing from risk mitigation. I'd be stunned to find anyone who has ever done that without a Copyright license.

So, speaking of reboots. I dug up a reboot that was made under a properly legal Copyright license from the original creators. They already had the Trademark, but they decided to negotiate a new Copyright license specifically for this reboot (and future potential games).

Watch this trailer: https://www.youtube.com/watch?v=zkfn_vBoajg
Or, if you're really patient, watch several minutes of gameplay footage: https://www.youtube.com/watch?v=Z3NKQKreOMI

Two questions everyone should ask themselves.

First, how much of the game looks recognizable from Star Control 2?
Second, why do you think they negotiated a Copyright license before making this game?


Title: Re: Stardock Litigation Discussion
Post by: ArilouSkuff on August 16, 2018, 08:40:41 pm
I try to take the position of maximum risk mitigation.   

If I ever butt in on a lawsuit you're involved in, I'll try my best to not inject my personal legal opinions to you.

Please feel free in my case. I already have gamers commenting on, not a lawsuit, but a rights issue involving a game I worked on. One more log on the fire doesn't bother me.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 16, 2018, 09:56:05 pm
Making an unlicensed reboot ("different universe same multiverse", "same aliens from the classic series, different expression") strikes me the furthest thing from risk mitigation. I'd be stunned to find anyone who has ever done that without a Copyright license.

So, speaking of reboots. I dug up a reboot that was made under a properly legal Copyright license from the original creators. They already had the Trademark, but they decided to negotiate a new Copyright license specifically for this reboot (and future potential games).

Watch this trailer: https://www.youtube.com/watch?v=zkfn_vBoajg
Or, if you're really patient, watch several minutes of gameplay footage: https://www.youtube.com/watch?v=Z3NKQKreOMI

Two questions everyone should ask themselves.

First, how much of the game looks recognizable from Star Control 2?
Second, why do you think they negotiated a Copyright license before making this game?

You know nothing about Star Control: Origins so why are you even posting about it?

Paul and Fred have enough sense not to make such a silly argument. Why are you?  You seem to think copyrights now have the power of trademarks AND patents. Good job.

As for making new versions of products based on trademarks, yea, that is very common in the software industry.  I'm not sure what industry you work on but it is very common for companies to contract something out and slap their brand on it even when someone else owns all the patents and copyrights within the product.   Nearly every Stardock product, from Fences to WindowBlinds works on a nearly identical contract as the one Paul signed.  And if a given developer isn't available to do the next version, we get a different developer to make a new one.  You are probably, right now, staring at a monitor made by someone else with someone else's brand slapped on it.  You're just completely out of your depth here. 


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 16, 2018, 10:46:33 pm
Intellectual property doesn't give you total immunity to infringe other peoples' intellectual property. That's true of Patents, Trademarks, and Copyright. It's also true when you cross between all three. All Intellectual Property is defined to give you the right to exclude others from using your property. You still have to respect other peoples' intellectual property, and admittedly, the areas where IP rights overlap becomes legally very complex.

Shorter version:

- Your Trademark gives you the right to stop others from infringing your Trademark (and then in very specific situations).

- Your Trademark doesn't give you the right to infringe Copyright.

Accolade had the same rights you allege to have bought. Before Accolade started their StarCon reboot, they still negotiated a Copyright license from Paul and Fred.

Granted, I only know about SC:O what you've posted. Still, I know that you tried very hard to negotiate a license from them. After that, you said it's the same multiverse (different universe). You said they're the same aliens (different expression). You're not far off from Accolade, who still negotiated a license.

The question isn't whether you're the same as the Rocky case. The question is whether you're different enough. Nobody can say for sure whether a reboot is a significant legal difference from a sequel, because almost no one would be silly enough to reboot someone else's fiction without a Copyright license.

Computer monitors and software utilities are a bad comparison because they don't have stories. Or characters. Or anything else in a fictional universe. Which have very specific copyright issues that are distinct from pure software. Let alone hardware. (The fact that patents are almost irrelevant to this conversation strikes me as though you're grasping at straws here.)

I'm not claiming to know for certain how a judge and a jury will decide this. My only point is that you definitely don't either. Maybe you just won't admit it, which is unsurprising, for PR sake. But if you actually believe that you have zero risk of infringing Copyright, you should call your lawyers and tell them to push for summary judgment. My guess is you'll probably get another overpriced legal education. As expensive as it is from a lawyer, imagine it's even more expensive from a judge.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 17, 2018, 01:49:42 am
By the way, since the threat of subpoenaing non-parties has been raised, it's worth posting a bit of basic sense:  If you get a subpoena, take it to a competent attorney.  Many things about subpoenas are negotiable, including who has to pay for them, so don't reply until you understand all the implications.


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on August 17, 2018, 04:50:18 am
That is quite a coincidence that only those who don't share your opinions are the toxic ones.
I'm pretty sure it's not a coincidence, sadly. I started out relatively neutral on this situation. I was even mildly excited about Star Control: Origins. But then all this stuff happened and, well...

Joking aside yes I can be a bit brash and accusative. Sorry if I came off as toxic. I'll try to be better in the future.

While I am sided with Stardock I don't think it should mean that I'm your "enemy" or anything. I love you guys.
All of you helped me become the UQM modder I am today and the MegaMod wouldn't have existed without you.
I may be confused at how you can side with Stardock, but I guess it's the conclusion you've come to at least for the time being, and with incomplete information I can't really fault you for it too much. An apology and promise to try better means a lot, in any case.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 17, 2018, 06:23:46 am
By the way, since the threat of subpoenaing non-parties

You can't subpoena "non-parties", you don't get a subpoena like you get fast food. F&P or Frogboy can "request" certain information pertaining exclusively to the two parties involved in the case to be entered into discovery until some time in October which may or may not be granted.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 17, 2018, 08:35:17 am
You can't subpoena "non-parties",

Actually you can, though there are more restrictions on how burdensome they can me.

A news tidbit that I'd been intending to share before I got a bit...distracted:  Paul's registration of "Ghosts of the Precursors" has been suspended until the trial is over, and it's caused a bit of a logjam.  The MOO remake called "Remnants of the Precursors (https://remnantsoftheprecursors.com/)" filed right after GotP, was deemed in conflict, and got suspended itself.  Meanwhile, P&F filed for "Precursors", which was deemed too similar to "Remnants of the Precursors", so it's been suspended as well.

I expect that most or all of the new trademark registrations are going to get suspended as they reach the appropriate stage of the proceedings.  From what I read, it's possible for one of the parties to try to fight the suspension, but I think the trademark appeal board probably takes a dim view of duplicating arguments that are already schedule to be heard in court.

I've sorted the FAQ trademark list (http://wiki.uqm.stack.nl/Stardock_Systems_Inc._v._Paul_Reiche_III_and_Robert_Frederick_Ford#Federal_Trademark_and_Copyright_Registrations) by next action due date, to make it easier to keep track of them.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 17, 2018, 10:45:46 am
Actually you can, though there are more restrictions on how burdensome they can me.
They can ask expert witnesses, very specific people such as those who worked contracted under F&P's game development company, which isn't the same. Subpoenas have to be of someone directly involved in evidence that affects the case, it's not for random people off the internet.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 17, 2018, 04:09:53 pm
Actually you can, though there are more restrictions on how burdensome they can me.
They can ask expert witnesses, very specific people such as those who worked contracted under F&P's game development company, which isn't the same. Subpoenas have to be of someone directly involved in evidence that affects the case, it's not for random people off the internet.

Could I ask for your source on this?  The Federal Rules of Civil Procedure (https://www.law.cornell.edu/rules/frcp/rule_45) do not appear to contain any such restriction, and other articles (http://www.ciardilaw.com/pdfs/CCA%20News%20Article-%20Seven%20Things%20to%20Note%20About%20Federal%20Rule%20of%20Civil%20Procedure%2045.pdf) specifically discuss non-party subpoenas.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 17, 2018, 06:47:26 pm
There seems to be a 100 mile rule.... (from the court of hearing)
Well, that rules me out then....


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 17, 2018, 10:07:55 pm
Actually you can, though there are more restrictions on how burdensome they can me.
They can ask expert witnesses, very specific people such as those who worked contracted under F&P's game development company, which isn't the same. Subpoenas have to be of someone directly involved in evidence that affects the case, it's not for random people off the internet.

Could I ask for your source on this?  The Federal Rules of Civil Procedure (https://www.law.cornell.edu/rules/frcp/rule_45) do not appear to contain any such restriction, and other articles (http://www.ciardilaw.com/pdfs/CCA%20News%20Article-%20Seven%20Things%20to%20Note%20About%20Federal%20Rule%20of%20Civil%20Procedure%2045.pdf) specifically discuss non-party subpoenas.

It's within the very document you referenced. Undue burden is the protection, you need a standard of evidence in order to request a subpoena in the first place, referenced in subdivision (d) of the 1946 amendment and paragraph (c)(1) enforced in the 1991 amendment that specifies a lawyer's abuse of a subpoena itself gives rise to a cause of action. This protects citizens from outlandish requests that are made for the sake of abuse, Stardock wouldn't get away with using the burden of a subpoena as a threat against someone's right to freedom of speech.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 18, 2018, 04:25:09 am
Subpoenas have to be of someone directly involved in evidence that affects the case, it's not for random people off the internet.
Could I ask for your source on this?
Undue burden is the protection,

...which is why what I said was:
Actually you can, though there are more restrictions on how burdensome they can me.

Quote from: CommanderShepard
you need a standard of evidence in order to request a subpoena in the first place,

Yes, but the standard is that it is "relevant to any party's claim or defense and proportional to the needs of the case", which is a low bar.  And subpoenas are issued automatically by the court clerk at the request of any of the party lawyers involved in the case, to whomever they please; the the judge does not review them before they are issued.  The recipient can object to them after receiving them, and possibly get the judge to quash them, but you'll have to argue with the opposing attorney about how the burden on you is "undue", relative to the value of the evidence that the lawyer claims you might be able to provide. 

The point of my post was to caution that a hasty person might respond to the subpoena without checking with an attorney first, and thereby forfeit their opportunity to object to it.  A wise person would have their own lawyer who knows the rules of that game on their side when playing it.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 18, 2018, 07:25:24 am
The point of my post was to caution that a hasty person might respond to the subpoena without checking with an attorney first, and thereby forfeit their opportunity to object to it.  
But that's the whole point is you can object to it easily, and even if one is issued arbitrarily, then it's not only grounds to reject it, but grounds to hold the party responsible for filing it in the first place. Stardock is having enough trouble getting a subpoena through when they claim F&P issued a giant negative PR campaign, do you really there's grounds for some random internet user?


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 18, 2018, 09:22:49 am
The point of my post was to caution that a hasty person might respond to the subpoena without checking with an attorney first, and thereby forfeit their opportunity to object to it.
But that's the whole point is you can object to it easily, and even if one is issued arbitrarily, then it's not only grounds to reject it, but grounds to hold the party responsible for filing it in the first place. Stardock is having enough trouble getting a subpoena through when they claim F&P issued a giant negative PR campaign, do you really there's grounds for some random internet user?

I don't know if I would say "easily".  I think a lot of people would just assume they had to comply, and waive their right to challenge.  And many more would not want to hire a lawyer to do it, so they'd try do it pro se, miss some obscure rule in the preparation of the proper motion, and legally kneecap themselves.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on August 21, 2018, 08:40:49 pm
I don't know about you guys, but both the SC2 and SCO Arilou versions seem similar to me. It's at least enough to confuse fans of the original Arilou to rejoice that the "same" race is in SCO - at least Stardock's intent on that aspect is clear.

I will have to play SCO to find out who these "non-infringing" Arilou are exactly. ::)

As the risk of not being considered reasonable, I also think they look pretty similar when you account for graphical advances in computing technology over the years.

OF COURSE a modern version of the Arilou is not going to look like the ones from a game made in 1992 exactly. Graphics have improved a lot since then.

But the same basic design is there IMHO when you take into account how graphics have improved. To me, they look like an attempt to create an association.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on August 21, 2018, 08:50:37 pm
Frogboy - If you put one next to the other, you'd say they're different, but they're about as similar to each other as the SC2 Syreen were to the SC3 Syreen. There is a definite relationship, and you are intentionally playing off of it.

This is what I meant with my previous post, but better stated with a good comparison from past games. Thank you for phrasing this better than I did.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on August 21, 2018, 08:57:22 pm

Do you think the Enterprise in the Kelvin timeline is the same Enterprise as the one in TOS?  They're completely different ships.  They weren't even built the same year or are even the same size.


This is a good question that I think goes to the heart of the area of disagreement. You're citing a number of ways that the reboot "Enterprise" is different from the original. And they're good examples!

But, well, there IS a valid argument in the opposite direction when all of the bridge crew is the same people, they end up in pretty much the same roles, and meet up with all of the same races. The Vulcans are still aligned with the Federation in this timeline, the Romulans are still enemies, the Klingons are still independent so far because Praxis hasn't been destroyed yet and so they're also staring across the border at the Federation, etc. (I assume. I haven't seen the latest movie Star Trek: Beyond.)

I wouldn't say that the reboot is the same as the original, but I would say it is directly "derived" from the original.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 21, 2018, 11:55:06 pm
I wouldn't say that the reboot is the same as the original, but I would say it is directly "derived" from the original.

And that's really one of the central legal questions that help to determine infringement. For comparison's sake, the Star Trek reboots still needed a Copyright license. They couldn't do it with just Trademarks, which is what Stardock is trying to do.

Stardock has been trying to have their cake and eat it too. Say that this is a different timeline, but the same multiverse. Different expression, but same aliens. It all but concedes the copying issue. Then it just becomes a question of how substantial.



Title: Re: Stardock Litigation Discussion
Post by: tingkagol on August 23, 2018, 06:17:19 am
So apparently Stardock pulled the Chenjesu and Arilou DLCs from Steam, at least for the time being.

(Screen credit to u/Psycho84)
https://m.imgur.com/qhGXryE?r

Wardell also says there's "progress behind the scenes". I hope that means for both parties, not just Stardock.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 23, 2018, 03:38:57 pm
So apparently Stardock pulled the Chenjesu and Arilou DLCs from Steam, at least for the time being.

(Screen credit to u/Psycho84)
https://m.imgur.com/qhGXryE?r

Wardell also says there's "progress behind the scenes". I hope that means for both parties, not just Stardock.

Nobody can really be sure what's going on behind the scenes. But if Stardock has pulled the aliens, it seems like that would include some progress for Paul and Fred.

Maybe Stardock realized that they were dancing on the line of infringement, and got cold feet about the aliens. Maybe P&F made an offer that satisfied Stardock enough to pull back on the aliens. Maybe Stardock talked to the lawyers, looked at the online backlash, and decided the aliens weren't worth the risk.

Either way, Stardock has pulled out of disputed territory. That's something that P&F would really want.

There's no more public announcements calling GOTP a sequel to Star Control. There's no more potentially unauthorized sales. And now there's no more potentially unlicensed aliens.

Not only does that mean there's no more active infringement. It also creates a pretty sustainable status quo. If everything continued on, as is, there would really be nothing to dispute.

Formalizing that into a settlement is still pretty tricky and would need a lot of legal wrangling. But the broad strokes are there.


Title: Re: Stardock Litigation Discussion
Post by: PRH on August 23, 2018, 04:19:31 pm
Note, however, that Brad is talking about delaying the release of the DLCs, not canceling them or renaming the aliens.

I do hope, however, that Stardock realizes that using the names of the classic aliens is a no-win situation. Make the "substitute" classic aliens similar enough to their SC2 counterparts, and you're infringing on F&P's copyright. Make them different enough, and you get a completely new alien race that somehow ended up having a classic name attached to it - and that would render the name itself worthless and defeat the purpose of using it in the first place.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 23, 2018, 04:21:13 pm
There's no more public announcements calling GOTP a sequel to Star Control. There's no more potentially unauthorized sales. And now there's no more potentially unlicensed aliens.
Not only does that mean there's no more active infringement. It also creates a pretty sustainable status quo. If everything continued on, as is, there would really be nothing to dispute.

Have they removed Arilou and Melnorme from the game itself?  That would seem to be another necessary step.  Not using the surnames "Hayes" or "Zelnick" would be a good gesture as well.  I've heard rumors that they're redesigning the Earthling Cruiser to be less similar to the SC2 one.

I think the remaining unresolved piece is fan mods.  I suspect that P&F probably want a commitment from Stardock that would prevent SC:O from being used to recreate substantial parts of SC2.  That might not mean pre-inspection or active policing, but I could see some other steps that wouldn't seem too onerous:

* Blacklisting the SC2 race and ship names (except for 'Cruiser' - too generic)
* Not putting in weapon and secondary primitives that just happen to exactly mimic the SC2 weapons and secondaries.
* Not creating, hosting, or distributing ports of SC2 elements like aliens, ships, or maps.


Title: Re: Stardock Litigation Discussion
Post by: PRH on August 23, 2018, 04:28:40 pm
Quote
Not using the surnames "Hayes" or "Zelnick" would be a good gesture as well.

I don't think that "Zelnick" is used anywhere in SCO. "Vindicator" is, however, as it's the default name for your flagship, and even if you rename it, it's still referred to as "Vindicator-class".


Title: Re: Stardock Litigation Discussion
Post by: Talonious on August 23, 2018, 04:59:17 pm
I'll be honest here.

I think insisting on the ship not being named Vindicator or the captain's name not defaulting to Zelnick would be a bit much.

I can't remember a single time that I played through SC2 with the default captain name Zelnick and with a gun to my head I doubt I'd have remembered the significance of Vindicator either as I almost always renamed my ship. I think the name I used on most of my ships was something like "Independence".

I see no real harm having those as the default names with players having the ability to change them. More an homage to the source material than an attack and not a hill that I'd particularly want to die on if I was P&F.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 23, 2018, 05:06:43 pm
Have they removed Arilou and Melnorme from the game itself?  That would seem to be another necessary step.  Not using the surnames "Hayes" or "Zelnick" would be a good gesture as well.
More an homage to the source material than an attack and not a hill that I'd particularly want to die on if I was P&F.

That's why I called it a "good gesture", and not a "necessary step".  I suspect P&F aren't really looking for homages in SC:O, given what's happened, but I agree that it's not worth being a red line either.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on August 23, 2018, 05:37:58 pm
Agreed Elestan.

It was more a general observation/opinion on my part than directly addressing your own post. Sorry if that wasn't clear.

I agree with you that I doubt P&F are looking for homages, but as a person who is still planning on playing SC:O, I wouldn't mind a few little things like this in there to make me go "ooooh yeah! Now I remember that!"

While again I doubt P&F are looking to do Stardock any favors, I'm hopeful they hold enough fond feelings towards the fanbase of their own Star Control games that they won't be petty with little things like that which would be fun little in-game "tickles", for a lack of a better wording to describe it, for people planning on playing SC:O.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on August 23, 2018, 05:50:17 pm
Note, however, that Brad is talking about delaying the release of the DLCs, not canceling them or renaming the aliens.
I don't think that would be an issue considering Wardell said this:

"We're also delaying the release of the DLCs for the classic aliens until we come to some agreement with Paul & Fred."

That's at least an indirect acknowledgment that P&F holds the copyrights for those aliens and that Stardock would need a license to release the DLCs while also alluding the DLCs might potentially infringe on the copyrights contrary to their constant spiel in the prior months ---- All of this assuming Wardell won't do another 180 if things get rocky again in the future.

Quote
I do hope, however, that Stardock realizes that using the names of the classic aliens is a no-win situation.
This is very true. I've no clue what they were trying to achieve with doing that other than trying to get a rise out of P&F.


Title: Re: Stardock Litigation Discussion
Post by: bum783 on August 23, 2018, 06:49:10 pm
This is an overly simplistic view, BUT it seems like P&F want to call Ghosts a "Starcontrol Sequel" (I dropped the true part out because maybe they can play nice now) and Stardock wanst to use SC2 aliens in there game which takes place in a different universe that exists within an even larger multiverse. Its seems to me like there is a compromise here somewhere. In the same way that Sony owns Spiderman, but is apart of the larger MCU. It seems to me that if BOTH sides cared about what the players wanted we could have a great game from stardock that includes beloved races from SC2 and opens the door to a larger story, also a sequel from P&F that finally continues the story we all loved. MAYBE if both sides are making enough money  they can eventually collaborate on a game that brings them both together.  From a purely business perspective I feel like both sides have more to gain from working together than they do from battling each other.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 23, 2018, 07:46:16 pm
I'm hopeful they hold enough fond feelings towards the fanbase of their own Star Control games that they won't be petty with little things like that which would be fun little in-game "tickles"

Personally, this is what GOTP is supposed to be for. And what I'm waiting for.


Title: Re: Stardock Litigation Discussion
Post by: Deus Siddis on August 23, 2018, 09:02:57 pm
It seems to me that if BOTH sides cared about what the players wanted we could have a great game from stardock that includes beloved races from SC2 and opens the door to a larger story, also a sequel from P&F that finally continues the story we all loved. MAYBE if both sides are making enough money  they can eventually collaborate on a game that brings them both together.

I believe this scenario you are describing is actually one in which Stardock has no interest in compromise and gets about everything it has asked for. An actual compromise might also include Stardock giving P&F the right to call their game Star Control: Ghosts of the Precursors plus an agreement that sees all rights ceded to P&F after a reasonable number of years, for example.


Title: Re: Stardock Litigation Discussion
Post by: Mormont on August 23, 2018, 09:44:45 pm
It seems to me that if BOTH sides cared about what the players wanted we could have a great game from stardock that includes beloved races from SC2 and opens the door to a larger story, also a sequel from P&F that finally continues the story we all loved. MAYBE if both sides are making enough money  they can eventually collaborate on a game that brings them both together.

I believe this scenario you are describing is actually one in which Stardock has no interest in compromise and gets about everything it has asked for. An actual compromise might also include Stardock giving P&F the right to call their game Star Control: Ghosts of the Precursors plus an agreement that sees all rights ceded to P&F after a reasonable number of years, for example.
Eh, Stardock’s complaints about the “sequel” phrasing make some sense, though the fair use line seems debatable and I doubt the damages are as severe as they say. I think most would be fine with “sequel to Ur-quan Masters”, which is what their blog says now. The problem is the rest of SD’s behavior and PR.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on August 23, 2018, 10:14:48 pm
* Blacklisting the SC2 race and ship names (except for 'Cruiser' - too generic)

I'd say that several others are too generic to be protected, like Skiff, Avenger, Marauder, Fury, Stinger, and Blade (this list not necessarily comprehensive). Also, Juggernaut would be okay. Again, so long as there is no particular resemblance to the earlier vessel.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on August 23, 2018, 10:37:56 pm
* Blacklisting the SC2 race and ship names (except for 'Cruiser' - too generic)

I'd say that several others are too generic to be protected, like Skiff, Avenger, Marauder, Fury, Stinger, and Blade (this list not necessarily comprehensive). Also, Juggernaut would be okay. Again, so long as there is no particular resemblance to the earlier vessel.

Having just looked, "Broodhome" is the only non-generic ship name when detached from its alien race. "Earthling Cruiser" is still pretty generic even with its race name, perhaps that's what Elestan was getting at.


Title: Re: Stardock Litigation Discussion
Post by: Tas on August 23, 2018, 11:26:18 pm

I believe this scenario you are describing is actually one in which Stardock has no interest in compromise and gets about everything it has asked for. An actual compromise might also include Stardock giving P&F the right to call their game Star Control: Ghosts of the Precursors plus an agreement that sees all rights ceded to P&F after a reasonable number of years, for example.

Stardock getting everything it wants does not need to be a terrible thing.  They initially tried to license the rights to the original aliens.

If the agreement that is forged maintains the Alien names and distinctive natures as property of Paul and Fred and the Star Control TM property of  Stardock, a cross licensing agreement where Paul and Fred are paid by SD for the right to use the Names/races could actually fund Paul and Fred's Game.

Paul and Fred then publish using the Star Control: Ghosts of the Precurser's name  and pay SD for the right to use the Trademark, or have Stardock be the publisher and not even need to worry about paying for the TM.   In the end the fans would get two games.  Paul and Fred would get to keep their story, and StarDock would get get something out of spending 5 years reviving was was basically a "dead and forgotten my most" game series.

One side does not need to lose.   All sides can still win.

I'd rather have three winners.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 12:34:50 am

I believe this scenario you are describing is actually one in which Stardock has no interest in compromise and gets about everything it has asked for. An actual compromise might also include Stardock giving P&F the right to call their game Star Control: Ghosts of the Precursors plus an agreement that sees all rights ceded to P&F after a reasonable number of years, for example.

In what way would this be, a compromise?

Stardock has spent the last 5 years and millions of dollars developing a new Star Control game after having acquired the Star Control trademark and the copyright to Star Control 3 (which is actually registered and has the presumption of validity). 

No one has tried to prevent Paul and Fred from making a game.  But they cannot use the Star Control trademarks without a license any more than Stardock can use copyrights it doesn't own without a license.

Throughout the entire dispute, Stardock has tried to make good faith concessions and do so in a way that doesn't create the impression it is giving up its rights.  For example, Fred asked Stardock not to refer to the combat mini-game as Super-Melee even though all trademarks associated with the classic games (and Super-Melee was present on some of the boxes for example) belong to Stardock.  Fine, Stardock changed it to Fleet Battles.

Similarly, Paul and Fred have said that the human ship looks too much like their Star Trek derived ship.  So below is the new Terran Cruiser:

(https://content.screencast.com/users/draginol/folders/Jing/media/171fc853-5c38-4d69-abc9-dc76346622a0/2018-08-22_1503.png)

This has the advantage of looking like a ship that would have come after the player ship and looks a bit more primitive.

The point being, Stardock has made concrete changes in order to try to make Paul and Fred happy.  But fundamentally, it is often hard to know what exactly they think they believe any copyrights that might exist within Star Control 2 includes.

Star Control: Origins didn't just show up one day.  For example, here's the gameplay teaser from two years ago (which was sent to Paul and Fred long before that for their comment):

https://www.youtube.com/watch?v=K6ntg47q_cM

Bottom line, if Paul and Fred want to benefit from associating with the Star Control trademarks they need to license it just like if we wanted to have, for instance, the Orz or Spathi or Ur-Quan as depicted (visually as well as their lore, history, etc.) I would presume we would need to license that (in any case, we aren't using the Star Control II lore or characters for the reasons we've mentioned countless times).




Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 24, 2018, 01:30:27 am
I think the reality is that even if the parties just maintain the non-affiliation that they had all along, they would still need to stay on their own side of the fence. In a lot of ways, the legal dispute was inevitable (but the lawsuit was not). They could have saved themselves a lot of grief with a "memorandum of understanding", and now that's probably where they should go.

Paul and Fred has repeatedly suggested that they would not use Stardock's alleged Trademark, if Stardock would not use their alleged Copyright. Even though P&F referred to Star Control in their GOTP announcement, they did edit it pretty quickly after the fact. Even though Stardock insisted they would sell P&F's copyrighted games, they ultimately backed down after a few months. Even though Stardock began to use the same aliens from SC2 in SC:O, they ultimately pulled back on the aliens a couple days ago. What we're left with is basically where we started: Copyright to Paul and Fred, Trademark to Stardock (plus the derivative Copyright in SC3).

That's a pretty good status quo. It's really the status quo we had back in October. But even with the best of intentions, there's a lot of room to accidentally step on your neighbor's property.

Paul and Fred would necessarily need to be able to refer to Star Control. Legally, there is ambiguity about what is fair use of a Trademark. But a settlement could settle some kind of understanding. "You can call yourself the designers of Star Control. You can call yourselves the visionaries behind the Star Control story. You can refer to your game as a sequel to Ur Quan Masters. Do not call your game a sequel to Star Control. Do not disparage Star Control: Origins, or cast doubt on its authenticity."

Similarly, Stardock is hitting the nostalgia button and drawing heavily on Star Control 2. Legally, there is ambiguity of what crosses the line from copying an idea (fine) to copying expression (infringement); what crosses the line from fair use / de minimis quoting (fine), to substantial similarity (infringement); what crosses the line from copying a scenes-a-faire (fine), to a substantial copying of original expression (infringement). It would be very easy for a settlement to establish understanding here too. "Incidental similarities between SC2 and Galactic Civilizations will not be actionable. The expression of these aliens in SC:O, as of this date and this build, will not be actionable. These other aliens will be removed. Stardock will never use this list of key words from Star Control 2."

The first step is an agreement in principle. It's fine to say be skeptical and say "that sounds good, but what if they use the ambiguity to screw us?" Any good lawyer will navigate those details and turn the agreement-in-principle into a solid contract. And that kind of legal work is worth every penny.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 24, 2018, 01:39:15 am
It seems to me that if BOTH sides cared about what the players wanted we could have a great game from stardock that includes beloved races from SC2 and opens the door to a larger story, also a sequel from P&F that finally continues the story we all loved. MAYBE if both sides are making enough money  they can eventually collaborate on a game that brings them both together.
An actual compromise might also include Stardock giving P&F the right to call their game Star Control: Ghosts of the Precursors plus an agreement that sees all rights ceded to P&F after a reasonable number of years, for example.
In what way would this be, a compromise?

I agree that that goes too far the other way.  How about this:  

  • P&F agree to stop using the phrase "Star Control" in their advertisements, except for referring to their own historical role in making the games.
  • Stardock agrees not to use the aliens, ships, characters, maps, etc. from SC2 in its games (including using their names), and to take reasonable measures to prevent the SC:O toolkit from being used to create such elements ("reasonable" being subject to negotiated clarification).
  • Both parties agree that both parties can use music derived from the SC2 soundtrack.
  • Stardock agrees to transfer its pending trademark registrations (other than "Star Control") to P&F, and to affirm that it retains no unregistered common law marks stemming from sales of the classic games.
  • SC3 gets open-sourced as "Kessari Quadrant" under GPL/CC like SC2.  SC1 either gets open-sourced (if the source can be found), or just released as freeware (if not), as "Ur-Quan Battles".  The UQM project can host them.
  • Everyone pays their own legal bills.
  • Everyone gets back to making games.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on August 24, 2018, 01:58:23 am
But they cannot use the Star Control trademarks without a license any more than Stardock can use copyrights it doesn't own without a license.

Your entire argument is based on an unproven assertion that "the Star Control trademarks" even exist. There is only one registered mark, STAR CONTROL. Show us the use in commerce of Spathi, Orz, et.al.

From Stardock's Ashes of the Singularity trademark application (and several others, USPTO seems quite fond of the phrase) : "each mark stands on its own merits".




Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 02:02:23 am
It seems to me that if BOTH sides cared about what the players wanted we could have a great game from stardock that includes beloved races from SC2 and opens the door to a larger story, also a sequel from P&F that finally continues the story we all loved. MAYBE if both sides are making enough money  they can eventually collaborate on a game that brings them both together.
An actual compromise might also include Stardock giving P&F the right to call their game Star Control: Ghosts of the Precursors plus an agreement that sees all rights ceded to P&F after a reasonable number of years, for example.
In what way would this be, a compromise?

I agree that that goes too far the other way.  How about this:  

  • P&F agree to stop using the phrase "Star Control" in their advertisements, except for referring to their own historical role in making the games.
  • Stardock agrees not to use the aliens, ships, characters, maps, etc. from SC2 in its games (including using their names), and to take reasonable measures to prevent the SC:O toolkit from being used to create such elements ("reasonable" being subject to negotiated clarification).
  • Stardock agrees to transfer its pending trademark registrations (other than "Star Control") to P&F, and to affirm that it retains no unregistered common law marks stemming from sales of the classic games.
  • SC3 gets open-sourced as "Kessari Quadrant" under GPL/CC like SC2.  SC1 either gets open-sourced (if the source can be found), or just released as freeware (if not), as "Ur-Quan Battles".  The UQM project can host them.
  • Everyone pays their own legal bills.
  • Everyone gets back to making games.

You know what's a bummer? We can't discuss settlement offers anymore and Paul and Fred's attorneys have complained when I've even made suggestions of what might be acceptable.  So I can't even comment why we would reject (or accept) such a proposal.

As a reminder, Star Control: Origins doesn't use aliens, ships, characters, maps, etc. from SC2 so it's kind of a moot point. The only ship that I saw anyone complain about was the "Earthling Cruiser" which has been changed to Terran Cruiser with a completely new design.  

The whole point of NOT using the aliens, ships, etc. from SC2 was to leave the door open for Paul and Fred.  This has been posted about for 5 years. It's not some new thing.  We literally created an entirely different universe, from scratch, specifically so that nothing we did could possibly be construed as affecting Ur-Quan universe canon.  And this was, as you know, long before Paul and Fred decided to start trying to use and later cancel our trademarks.

The only position of Stardock's that's really changed is that now that the one thing everyone absolutely understood from the start: Stardock has the trademark to Star Control is being challenged, Stardock is going to do everything it can to strongly reinforce the connection between Star Control: Origins and the classic series as that was the purpose of acquiring that specific trademark.

I can say, broadly speaking, we don't moderate Steam or other modding forums and we don't create ship components that make it easy to create any particular type of ship. We wouldn't set the precedent of moderating Steam workshop or any of the other modding sites.

There's no reason for Stardock to give up any of its trademarks or anything that reduces the connection to the classic games that those trademarks provide.




Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 24, 2018, 03:52:05 am
As a reminder, Star Control: Origins doesn't use aliens, ships, characters, maps, etc. from SC2 so it's kind of a moot point.

Is it no longer using Melnorme and Arilou?

Quote
We literally created an entirely different universe, from scratch, specifically so that nothing we did could possibly be construed as affecting Ur-Quan universe canon.

...and that was fine, up until you said (as I understand it) that the different universes shared a common "multiverse" with SC1&2.  At that point, you were asserting continuity of setting with the classic games.

Quote
The only position of Stardock's that's really changed is that now that the one thing everyone absolutely understood from the start: Stardock has the trademark to Star Control is being challenged,

Sure, and, to be clear, I was proposing that the challenge be dropped.

Quote
I can say, broadly speaking, we don't moderate Steam or other modding forums and we don't create ship components that make it easy to create any particular type of ship. We wouldn't set the precedent of moderating Steam workshop or any of the other modding sites.

Obviously, you can't control what's outside your control, and I'm not suggesting that you be required to go after your customers on external sites.  But committing to not creating or hosting infringing content on the sites you do have the power to control doesn't seem like too much of a burden, especially if for fan content it only had to be done on-notice and not proactively.

Quote
There's no reason for Stardock to give up any of its trademarks or anything that reduces the connection to the classic games that those trademarks provide. [...] Stardock is going to do everything it can to strongly reinforce the connection between Star Control: Origins and the classic series as that was the purpose of acquiring that specific trademark.

Then I think you made a serious error in 2013:  You apparently purchased the trademark without first confirming that Paul and Fred were available and interested in contributing to your efforts.  Consequently, your attempts to reinforce the connection between SC:O and the classic series are serving no useful purpose:  New fans of your game don't care, and a great many of the old ones will consider it illegitimate without P&F's blessing, and will resent you (and not purchase SC:O) as a result.

In fact, it could be seen as causing market confusion, because fans of the old series that purchase SC:O are likely to be seeking a game using the setting and story from the earlier games, and will be disappointed when they do not get it.  In trademark terms, you failed to acquire the assets needed to produce products that would properly incorporate the goodwill inured to the classic series. 


Title: Re: Stardock Litigation Discussion
Post by: Deus Siddis on August 24, 2018, 04:10:07 am
In what way would this be, a compromise?

Well bum783 specifically suggested """a great game from stardock that includes beloved races from SC2""" which is really only possibly if P&F gave you a license to their copyrighted material. In that specific case, they need to receive something adequate in return for it all to be called a compromise.

Stardock has spent the last 5 years and millions of dollars developing a new Star Control game after having acquired the Star Control trademark and the copyright to Star Control 3 (which is actually registered and has the presumption of validity).

And so you need to have a reasonable window of opportunity to make back what you have put into this... factoring in inflation, risk, taxes... and then make a profit on top of that. Obviously that will have to be a part of anything you could call a compromise.

But after that, unless you want to make Star Control games indefinitely, allowing the rights you hold to cede back to them might be a good chip to trade during a settlement negotiation in exchange for something you want. That is, long term usage is something that might be of lesser value to you than it is to them, since you have that 5 year head start on GotP. Your interests are naturally more immediate just as theirs are naturally more long term.

But they cannot use the Star Control trademarks without a license any more than Stardock can use copyrights it doesn't own without a license.

That much is clear. But what exactly constitutes "use" is not clear before ~4 million USD is wasted on the pay to play american legal system. That's millions of dollars sapped from both of your projects that will make them less competitive against other games besides each other.

Throughout the entire dispute, Stardock has tried to make good faith concessions and do so in a way that doesn't create the impression it is giving up its rights.  For example, Fred asked Stardock not to refer to the combat mini-game as Super-Melee even though all trademarks associated with the classic games (and Super-Melee was present on some of the boxes for example) belong to Stardock.  Fine, Stardock changed it to Fleet Battles.

Similarly, Paul and Fred have said that the human ship looks too much like their Star Trek derived ship.  So below is the new Terran Cruiser:

Honestly, I think these things were over-reach on their part and asking you to police your community for copyright violations created in a ship editor certainly was. But, they likewise complied with your similarly over-reach-y requiring of them to not use "Star Control" in a fair use sort of way in their announcement post by editing such language. You both should have adopted a live and let live policy for these edge case, maybe-infractions of your respective rights and not been so nit picky. And you both did good by trying to accommodate each other's requests.

However, you in particular filed against them first, which crosses the line from silly requests to a state of open war. Thus, I do not see how you gave them the same chance to cease and desist as they gave you.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 05:08:37 am
Is there a better way to do one line quotes or do you guys hand do the brackjets?

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But after that, unless you want to make Star Control games indefinitely, allowing the rights you hold to cede back to them might be a good chip to trade during a settlement negotiation in exchange for something you want.

What would that be?

Stardock has many years of Star Control expansion in mind.  Origins is just the start of the new series.

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However, you in particular filed against them first, which crosses the line from silly requests to a state of open war. Thus, I do not see how you gave them the same chance to cease and desist as they gave you.

They refused to cease and desist.  That is in the court documents already.   

As a counter-example, Stardock re-branded Super-Melee to Fleet Battles.  That does not mean we have conceded the right to use Super-Melee in the future.  Likewise, we have been willing to make numerous concessions in the hopes that we can come together so that their game can get made.  Where we can't concede is on the trademark issue. 

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Is it no longer using Melnorme and Arilou?

This is a loaded question.   Stardock's position is that words can only be protected by trademark not copyright and that Melnorme, Arilou, etc.  You know all this of course.  Someone, not necessarily Paul and Fred, may have a copyright to the way the Melnorme and Arilou were *expressed* in Star Control 2.

That said, we have removed using those names in the game.  So unless Paul and Fred want to argue this:

(https://content.screencast.com/users/draginol/folders/Snagit/media/81d24a34-3136-4a05-9b10-6c2b44820f45/08.23.2018-22.34.png)

violates a copyright they hold they have nothing to complain about.

Like with Super-Melee, that doesn't mean Stardock has conceded this.  We are simply willing to wait for a court to decide (or a future settlement) before using them.

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But committing to not creating or hosting infringing content on the sites you do have the power to control doesn't seem like too much of a burden, especially if for fan content it only had to be done on-notice and not proactively.

All Stardock sites have DMCA setups already (we've long had WinCustomize.com.  If Paul and Fred want to DMCA their own fans, they can do that.

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Then I think you made a serious error in 2013:  You apparently purchased the trademark without first confirming that Paul and Fred were available and interested in contributing to your efforts.  Consequently, your attempts to reinforce the connection between SC:O and the classic series are serving no useful purpose:  New fans of your game don't care, and a great many of the old ones will consider it illegitimate without P&F's blessing, and will resent you (and not purchase SC:O) as a result.

I think you greatly overestimate the value Paul and Fred could provide to the project. As a super-fan, their endorsement meant a great deal to me.  I did, after all, make game development a career partly because of Paul Reiche. But the hard-core fan, like us here, are a tiny, tiny percent of the market.  Their approval of what we were doing meant a great deal to me personally.  But I'm in a tiny minority.

The value of the trademark was completely about the awareness it would generate. Its association with the classic Star Control games is valuable. That is the whole point of acquiring an existing trademark like Star Control.  While no doubt some fans would have been upset if Glen A. Larson didn't approve of the new BSG, most fans wouldn't have cared.



Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on August 24, 2018, 05:39:04 am
Is there a better way to do one line quotes or do you guys hand do the brackjets?

Selecting text then pressing the insert quote button seems to add the correct tags before and after the selection (though I've been doing it by hand so far).

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Stardock's position is that words can only be protected by trademark not copyright and that Melnorme, Arilou, etc.  You know all this of course. 

We (I) do, but think it is wrong, or at least imprecise. Words can be protected by trademark, but only if they are used as trademarks; and words (including names) can be part of a copyright, even if they cannot be protected in isolation.

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That said, we have removed using those names in the game. 

That is very promising news.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 24, 2018, 06:45:56 am
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Where we can't concede is on the trademark issue.

If P&F were trying to call their game "Star Control", I'd agree with you.  But it seems to me that you should not try to require them to get a trademark license to say that GotP continues the story of SC2.  That is information that they have a legitimate reason to be able to advertise in order to avoid consumer confusion.

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As a counter-example, Stardock re-branded Super-Melee to Fleet Battles.  That does not mean we have conceded the right to use Super-Melee in the future.

As near as I can tell, P&F's attempt to claim control of "Super-Melee" stemmed from them mixing up copyrights with (expired) contract rights, so they never had a leg to stand on here.  With that said, "Hyper-Melee" is uncontested, and probably works just as well in any context.

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Like with Super-Melee, that doesn't mean Stardock has conceded this.  We are simply willing to wait for a court to decide (or a future settlement) before using them.

Thanks for the information.

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All Stardock sites have DMCA setups already (we've long had WinCustomize.com.  If Paul and Fred want to DMCA their own fans, they can do that.

As long as Stardock isn't making infringing content itself (or components that would easily become infringing content), that seems like a reasonable position.  Blacklisting the SC2 race names from being used in the game might also be a simple and practical measure to demonstrate reasonable efforts.

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I think you greatly overestimate the value Paul and Fred could provide to the project. As a super-fan, their endorsement meant a great deal to me.  I did, after all, make game development a career partly because of Paul Reiche. But the hard-core fan, like us here, are a tiny, tiny percent of the market.  Their approval of what we were doing meant a great deal to me personally.  But I'm in a tiny minority.

I disagree on two levels.  First, I think that Accolade's making SC3 without P&F, and its dismal reception, heightened awareness of how important P&F were; it demonstrated that even with the trademark and the rights to the SC1&2 copyrights, a SC game without P&F's input just wasn't the same.  Second, I think that with a story-driven game, especially one left on a narrative hook like SC2 was, people buy the game because they want to see more about what happens in the setting.

Imagine if Time Warner tried to make a new "Harry Potter" movie using only its trademarks, without licensing the copyright to the setting and story from J.K. Rowling?  Even if, as your theory of trademark would have us believe, they could put characters of the same names in the movie, how many of the fans would consider it legitimate?

I would content that you could probably get away with this in an Action video game...and maybe even with a 4X game, where the setting is more of a bare framework on which to hang sets of game stats.  But in an RPG, it's more like a movie or novel; the game's essence is much more tightly tied to the copyrightable elements, such that their lack makes the game fundamentally not what it had been; it no longer merits the goodwill of the brand.

So I think that Stardock would lose little by considering SC:O to be a full reboot of the brand, with no need to force an association with the prior games.  It could still be a good game in its own rights; it just wouldn't be a "Star Control" game in the same sense that the prior games were; it would be a new sort of "Star Control"; one uniquely tied to Stardock.

And that's okay.  If the old "Star Control" trademark were to be cancelled, and a new one issued based on SC:O, I really doubt that you could find a single fan who would decide not to buy it as a consequence.  And if that's the case, are you really getting a good return on the money you're diverting to pay the lawyers?


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 06:58:36 am
If the old "Star Control" trademark were to be cancelled, and a new one issued based on SC:O, I really doubt that you could find a single fan who would decide not to buy it as a consequence.  And if that's the case, are you really getting a good return on the money you're diverting to pay the lawyers?

By that argument, Paul and Fred should just drop their claims. Why not just get rid of the concept of IP entirely? Eliminate spending money on lawyers entirely.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 24, 2018, 07:11:47 am
If the old "Star Control" trademark were to be cancelled, and a new one issued based on SC:O, I really doubt that you could find a single fan who would decide not to buy it as a consequence.  And if that's the case, are you really getting a good return on the money you're diverting to pay the lawyers?

By that argument, Paul and Fred should just drop their claims. Why not just get rid of the concept of IP entirely? Eliminate spending money on lawyers entirely.

You're fabricating a strawman argument (https://en.wikipedia.org/wiki/Straw_man) to kick.  My argument was that this particular trademark could be easily replaced without any practical consequences.  How is SC:O any worse off if it's protected by a new "Star Control" trademark instead of the old one?


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 07:30:26 am
If the old "Star Control" trademark were to be cancelled, and a new one issued based on SC:O, I really doubt that you could find a single fan who would decide not to buy it as a consequence.  And if that's the case, are you really getting a good return on the money you're diverting to pay the lawyers?

By that argument, Paul and Fred should just drop their claims. Why not just get rid of the concept of IP entirely? Eliminate spending money on lawyers entirely.

You're fabricating a strawman argument (https://en.wikipedia.org/wiki/Straw_man) to kick.  My argument was that this particular trademark could be easily replaced without any practical consequences.  How is SC:O any worse off if it's protected by a new "Star Control" trademark instead of the old one?

That's not a strawman. You are arguing that we should give up something based on whether its value exceeds the cost to keep it.  Correct? By that argument, what justification do Paul and Fred have then?  We actually have a registered trademark we're defending.  We have no interest in using any copyrighted material they might have so why not ask them the same question.  We just want them to quit infringing on our trademark.


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on August 24, 2018, 07:37:11 am
You know what's a bummer? We can't discuss settlement offers anymore

I may owe you an apology.

As I'm sure you remember, on March 18th, F&P posted what they claimed was a paraphrased version (https://www.dogarandkazon.com/blog/2018/3/18/strange-settlement-on-an-alien-planet) of a settlement offer from Stardock. Stardock swiftly decried F&P's post as "inaccurate" and a violation of "court mandated confidentiality" while adding the "essence" of an earlier settlement proposal to the Q+A.

When F&P upped the ante by disseminating actual documents (https://www.dogarandkazon.com/blog/2018/3/24/nope-and-nope) on March 24th, Stardock responded in kind by posting an original document to the Q+A.

There was a conference before Judge Spero on March 28th, and he entered his Order Regarding Settlement Discussions on March 29th. Based upon this sequence of events I had assumed - perhaps unreasonably - that, during the conference, Stardock's attorneys had requested the gag order to prevent further shenanigans by F&P. Is that not what happened?


and Paul and Fred's attorneys have complained when I've even made suggestions of what might be acceptable.

This criticism strikes me as unfair. Paul and Fred's attorneys are officers of the court and have a job to do. If you feel that their complaints were overreaching, you have a team of professionals at your disposal who can fight back. Regardless of which party moved for a gag order (and especially if it was entered sua sponte), it is Judge Spero's Order now. It has nothing to do with Paul and Fred's attorneys.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 07:49:50 am
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There was a conference before Judge Spero on March 28th, and he entered his Order Regarding Settlement Discussions on March 29th. Based upon this sequence of events I had assumed - perhaps unreasonably - that, during the conference, Stardock's attorneys had requested the gag order to prevent further shenanigans by F&P. Is that not what happened?

What was expected was an order preventing parties from leaking to the public communications *between the parties* that were designated as being confidential.

However, in practice, it has resulted in complaints by PF's attorneys if I even say something akin to "I'd be okay with X" publicly. This isn't a criticism. It is what it is. Which, like I said, is a bummer because I personally believe this all would have been settled by now if we were allowed to spitball ideas publicly.


Title: Re: Stardock Litigation Discussion
Post by: astkr5 on August 24, 2018, 11:34:55 am
In what way would spitballing ideas publicly possibly enable a settlement? You aren't negotiating with the public -- we have no say in the matter. If you have an offer, you can still bring it to the opposing side of the dispute. Speaking publicly serves no real purpose other than trying to do PR for your company, which is fine, but there isn't any relevance here to a legal conclusion.


Title: Re: Stardock Litigation Discussion
Post by: Serosis on August 24, 2018, 01:37:52 pm
I think he means actually speaking face-to-face. Be it publicly or not.
As far as I know any time Brad has tried to reach out to them he's only received a response from their lawyer.

He could try to reach out to Paul on this forum. He is active, to an extent, though I don't think either of their lawyers would appreciate that.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 01:57:43 pm
In what way would spitballing ideas publicly possibly enable a settlement? You aren't negotiating with the public -- we have no say in the matter. If you have an offer, you can still bring it to the opposing side of the dispute. Speaking publicly serves no real purpose other than trying to do PR for your company, which is fine, but there isn't any relevance here to a legal conclusion.

I’m not talking about Stardock (or PF) posting proposals. I am talking about Stardock (or PF) being able to participate in any of the many, many discussions and opine on various ideas that are posted to speed up the process. If you think lawyers “spitball” proposals back and forth you would be mistaken.  It’s a slow, arduous process. If you look back at the start of all this, I suggested PF and I talk to each other. I think you might be surprised at how much the system works to prevent direct discussions.


Title: Re: Stardock Litigation Discussion
Post by: PRH on August 24, 2018, 02:33:13 pm
I’m not talking about Stardock (or PF) posting proposals. I am talking about Stardock (or PF) being able to participate in any of the many, many discussions and opine on various ideas that are posted to speed up the process. If you think lawyers “spitball” proposals back and forth you would be mistaken.  It’s a slow, arduous process.

Yeah, that does seem like a huge shame. I don't think anyone here would object to you reaching a settlement with F&P as soon as possible. I expected a lot from the settlement conference on May 14 (as did many other posters here, as far as I can remember), and was disappointed when you said there was no progress after the conference. I would welcome any news that things are looking up.

Meanwhile, SCO's latest trailer (https://www.youtube.com/watch?time_continue=7&v=9E09Cgk_qZs) shows the "Crimson Corporation" logo along with Stardock's at the end. Now if what F&P are saying in their counterclaim is correct (that the fictional Crimson Corporation is subject to copyright and not trademark), then the existence of a real-life Crimson Corporation shouldn't block having a Crimson Corporation in GotP, and it's more of an homage than anything else, especially since the fictional Crimson Corporation predates the real-life one by 26 years. It's also a nice bit of self-irony from Stardock, since it was F&P who compared Stardock to the Crimson Corporation in the first place. :)


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on August 24, 2018, 03:05:18 pm
or have Stardock be the publisher and not even need to worry about paying for the TM.
At this point, if Stardock were the publisher of Ghosts of the Precursors, I'd seriously reconsider whether I actually want to buy even that game.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 03:14:26 pm
I’m not talking about Stardock (or PF) posting proposals. I am talking about Stardock (or PF) being able to participate in any of the many, many discussions and opine on various ideas that are posted to speed up the process. If you think lawyers “spitball” proposals back and forth you would be mistaken.  It’s a slow, arduous process.

Yeah, that does seem like a huge shame. I don't think anyone here would object to you reaching a settlement with F&P as soon as possible. I expected a lot from the settlement conference on May 14 (as did many other posters here, as far as I can remember), and was disappointed when you said there was no progress after the conference. I would welcome any news that things are looking up.

Meanwhile, SCO's latest trailer (https://www.youtube.com/watch?time_continue=7&v=9E09Cgk_qZs) shows the "Crimson Corporation" logo along with Stardock's at the end. Now if what F&P are saying in their counterclaim is correct (that the fictional Crimson Corporation is subject to copyright and not trademark), then the existence of a real-life Crimson Corporation shouldn't block having a Crimson Corporation in GotP, and it's more of an homage than anything else, especially since the fictional Crimson Corporation predates the real-life one by 26 years. It's also a nice bit of self-irony from Stardock, since it was F&P who compared Stardock to the Crimson Corporation in the first place. :)

The settlement conference was not what one might expect.  The two parties were kept in different rooms. The judge, who is actually quite famous from the Apple/Samsung case, would then talk to each party and convey what the other said. Other than a few polite greetings we never got to talk to each other.  

I’m sure the courts have a rationale for the way they do it. But I was expecting the parties to basically be put into a room and hammer it out.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 24, 2018, 03:56:59 pm
Meanwhile, SCO's latest trailer (https://www.youtube.com/watch?time_continue=7&v=9E09Cgk_qZs) shows the "Crimson Corporation" logo along with Stardock's at the end. [...]
 It's also a nice bit of self-irony from Stardock, since it was F&P who compared Stardock to the Crimson Corporation in the first place. :)
Well, yes, I like this ironic touch, but at the same time it felt much like a "token trademark use".
It can be argued either way, and it may even be both.
A nod to the creation within SC2, as well as a use of a potentially disputed trademark...

In the end it'll still be a computer game telling a story. And nods to other works are rather common in games.



Title: Re: Stardock Litigation Discussion
Post by: Elestan on August 24, 2018, 04:07:23 pm
If the old "Star Control" trademark were to be cancelled, and a new one issued based on SC:O, I really doubt that you could find a single fan who would decide not to buy it as a consequence.  And if that's the case, are you really getting a good return on the money you're diverting to pay the lawyers?
By that argument, Paul and Fred should just drop their claims. Why not just get rid of the concept of IP entirely? Eliminate spending money on lawyers entirely.
You're fabricating a strawman argument (https://en.wikipedia.org/wiki/Straw_man) to kick.  My argument was that this particular trademark could be easily replaced without any practical consequences.  How is SC:O any worse off if it's protected by a new "Star Control" trademark instead of the old one?
That's not a strawman. You are arguing that we should give up something based on whether its value exceeds the cost to keep it.  Correct? By that argument, what justification do Paul and Fred have then?  We actually have a registered trademark we're defending.  We have no interest in using any copyrighted material they might have so why not ask them the same question.  We just want them to quit infringing on our trademark.

The two are not equivalent.  Regardless of your intentions, P&F need their copyright to defend their IP from others who might infringe it.  But your new "Star Control" trademark can defend SC:O and all of your future games in the "Star Control" brand just as well as the old one could.  It just couldn't be used to pick fights over the old games, in effect formalizing the assurances you had previously given P&F about allowing them to continue their story independently.

My point is that this legal "association" with the old games makes no practical difference to your sales.  The only people who will even think about it are hard-core fans, most of whom have already made up their minds.  If anything, trying to insist on that association is alienating the fans who don't accept it and costing you sales.  So I just don't see how spending even more money paying lawyers to fight over it is in the best interests of your company, or its employees.  That money could be making games.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 04:34:12 pm
We will just have to agree to disagree.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on August 24, 2018, 04:59:04 pm
I agree with Elestan.
If you had stuck to "we're only referencing the old game series, but build a new lore, new universe, new races, new characters and just slap the good trademark StarControl on it", I'm pretty sure I would have made sure to put my hands on it.

But with this encroaching on the IP of others, and filing for trademarks which have only relation to the old game series and the UQM project, StarDock lost me.

IF FF and PR would publish GotP as payable DLC for Stardock's engine, it would show that they must've found an agreement with you, and I'd likely still get your game, but such as it is, I'll wait for a time when it's in the cheap discount corner (or buy a used copy/license  (which is my right in the EU - despite what any of the license agreements say, US companies ship their games with)).


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 24, 2018, 05:29:13 pm
Just a couple notes about settlements:

* Lawyers usually have several cases, sometimes dozens, on their plate. Typically, they work on a litigation file a couple weeks out from the next hearing. Which means, typically, the file sits collecting dust for sometimes months at a time. Lawyers aren't really spitballing ideas. A lawyer would only pick up the phone if a party asked them to, and would only call a party if a deadline was coming up. Basically, the lawyers work for the parties. It's on the parties to settle.

* A lot of mediators lean hard on the "separate them between two rooms" technique, for two reasons. One is to take any of the emotion out of it, and the other is to be able to hear things that they might not say in public. In private, someone might say "I might be willing to accept a lot less than $295,000, but that depends on a lot of things, and for now, you can tell them my price is $295,000." I personally think the parties can gain a lot from being in the same room, learning to talk to each other in a civil way, checking each other's most unreasonable and inaccurate assertions, and arriving at something resembling an agreed understanding of the facts. I think that can allow the mediator to push the parties more in private, to say "hey, you're not going to be able to push that narrative in court without a fight. You have a risk." But even in private, a mediator might find that the parties are being incredibly stubborn, and not deviating from their public talking points.  Also, a judge is not the same as a professional mediator, who might be hired to put in a full 8 hour day on a settlement. A judge is funded by the public, and will put in less time. They only have time to make a token push towards a settlement.

* I don't see how the judicial order interferes with settlement talks. After the published settlement that asks Paul and Fred to cede all intellectual property to Stardock, the judge asked the parties to keep it confidential. We still see Stardock leaking ideas, and they're generally bad. One idea leaked was Paul and Fred licensing the alien Trademarks from Stardock, which effectively legitimizes Trademark applications with major problems, let alone Trademarks that wasn't listed in the asset purchase agreement from Atari. As much as Stardock wants the aliens, and as much as Paul and Fred want to refer to Star Control, we know that a fair compromise is based in reality: Trademarks to Stardock, and Copyrights to Paul and Fred. Everything else (where do we sell the games? do we sell the games? where do you draw the line between fair use and infringemet? how do we minimize interference between our marketing?) is just details.

* If the parties genuinely wanted to settle, they could agree to hire a professional mediator, sit down for a day or two, and potentially hash it out. This costs a lot of money. But a lot less than a lawsuit, which only costs less than losing a lawsuit.

* I honestly have no idea that the parties are talking about a settlement. At this point, Stardock might have just removed the names once they realized that it would be a factor that could lead to a finding of copyright infringement against them. There might not be any conversation behind the scenes. Still, I think it's a welcome development. It ratchets down the conflict. And I think that people should show respect for the wishes of other artists, regardless of what's technically legal.


Title: Re: Stardock Litigation Discussion
Post by: Lakstoties on August 24, 2018, 05:37:46 pm
Ultimately, it's been Stardock's approach to all this that's soured my opinion the most.

I originally (Pre-October 2017) very interested on how Stardock would roll with the "Star Control" name.  Prequel-ish Reboot concept meant a good fresh start overall.  Stardock has talent in many areas and given the general concept and idea for the structure of the game, they should be able to fill it with their own unique creations and establish them own take of it all.  Stardock maintains a very loyal fan base that really want Stardock styled games.  So, I was willing to see what they would do with it all and what they would create.  Then, the Ur-Quan Masters trademark filing appeared...  And the decline started... and here we are.

Stardock does NOT need the old copyrights and it does NOT need to trademark anything from the old content.  Fred and Paul do NOT need the "Star Control" trademark.  Trademark fair use doctrines, the Rogers Test, the Eight Sleekcraft factors, and numerous court cases that spawned the former support this.  Despite what Stardock may file to trademark, the trademark cannot impede freedom of expression within copyrighted works, as much as use of terms within a copyrighted mostly is never seen as causing trademark confusion/infringement.


Here's the personal opinion part on why Stardock should move on, and just rock their own thing free from originals:  Anything Stardock does in relation and association with the content from Star Control 1 and Star Control 2, without the blessing of Fred and Paul, is going to feel like fan fiction.  Maybe good fan fiction, but still...  It's going to exist in a weird quasi-state that won't feel full and proper.  We all know what happened with the "third-that-shall-not-be-mentioned", despite efforts from a company that made some fun games.  (Still have a special spot for Superhero League of Hoboken.)  So, Stardock should just break free from the past, run with its own creations, and bring it up to their own standards free from the shadows of the past.  You aren't going to catch lightning in a bottle again, if you are standing where the storm has moved on from...  You have to go where the storm is for the chance to catch that lightning again.  Stardock needs to be innovative to thrive in this market these days, and it seems like a needless limitation to hold itself to standards of the past that aren't their theirs to hold themselves to.  My advice to Stardock is to break free and walk your own path as you have before...  No one will fault for it and many will praise you for doing so, and you'll be able to dedicate your resources towards greater things and far more fun things.


Title: Re: Stardock Litigation Discussion
Post by: PRH on August 24, 2018, 06:09:31 pm
You aren't going to catch lightning in a bottle again, if you are standing where the storm has moved on from...  You have to go where the storm is for the chance to catch that lightning again.  Stardock needs to be innovative to thrive in this market these days, and it seems like a needless limitation to hold itself to standards of the past that aren't their theirs to hold themselves to.

Although you probably didn't mean it that way (as you were probably referring to SC2's story and not the gameplay), it sounds like "forget about the past, go with the current trends on the market". Except that it's exactly what most companies already do and have always done. While there is currently a resurgence of "retro" games, there are still too few games that really play like the masterpieces of the 80s and the early 90s. So I think that there's a lot to learn from the past - specifically how that lightning in a bottle was caught in the first place by so many different game developers of that era. :)


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 24, 2018, 06:13:33 pm
I agree with Elestan.
If you had stuck to "we're only referencing the old game series, but build a new lore, new universe, new races, new characters and just slap the good trademark StarControl on it", I'm pretty sure I would have made sure to put my hands on it.

But with this encroaching on the IP of others, and filing for trademarks which have only relation to the old game series and the UQM project, StarDock lost me.

IF FF and PR would publish GotP as payable DLC for Stardock's engine, it would show that they must've found an agreement with you, and I'd likely still get your game, but such as it is, I'll wait for a time when it's in the cheap discount corner (or buy a used copy/license  (which is my right in the EU - despite what any of the license agreements say, US companies ship their games with)).

I'm pretty sure that the IP encroachment began with Paul and Fred claiming to be the true sequel to Star Control using the Star Control II box.  When Stardock asked that they cease and desist they refused (and again, this is all in the court filings) which led to Stardock filing a complaint.  Rather than agreeing to stop at that point, they sought to cancel Stardock's Star Control mark along with a lot of very public, very nasty (such as calling me, by name, a thief) PR. It's cause and effect in play.

At this stage, the ball is really with Paul and Fred.  There is nothing in Star Control: Origins they could possibly (well reasonably) object to.  On the other hand, if they want to associate games with Star Control, they do need our permission.








Title: Re: Stardock Litigation Discussion
Post by: Talonious on August 24, 2018, 06:28:35 pm

The settlement conference was not what one might expect.  The two parties were kept in different rooms. The judge, who is actually quite famous from the Apple/Samsung case, would then talk to each party and convey what the other said. Other than a few polite greetings we never got to talk to each other.  

I’m sure the courts have a rationale for the way they do it. But I was expecting the parties to basically be put into a room and hammer it out.


Interesting. I think I definitely would have preferred the approach of both parties in the same room with the judge acting as a mediator to the discussions vs. separate rooms with the judge basically acting as a messenger back and forth.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on August 24, 2018, 08:25:58 pm
I'm pretty sure that the IP encroachment began with Paul and Fred claiming to be the true sequel to Star Control using the Star Control II box.  When Stardock asked that they cease and desist they refused (and again, this is all in the court filings) which led to Stardock filing a complaint.  Rather than agreeing to stop at that point, they sought to cancel Stardock's Star Control mark along with a lot of very public, very nasty (such as calling me, by name, a thief) PR. It's cause and effect in play.

At this stage, the ball is really with Paul and Fred.  There is nothing in Star Control: Origins they could possibly (well reasonably) object to.  On the other hand, if they want to associate games with Star Control, they do need our permission.

At best, it's debatable. Even if you ignore the fact that, just before the GOTP announcement, Stardock submitted the Copyrighted games to Steam while P&F was explicitly telling them that they don't have the Copyright license, you still have drips and drops of information that suggest potential Copyright infringement in the game. Journalists report Stardock is making a prequel -- which is near unheard of without a Copyright license. At that point, it's impossible to see what Stardock is putting in their unlicensed prequel, but you're hearing people talk about the game taking place just after the Androsynth rebellion, you have Super Melee, you have the Dreadnaught and the Eluder ships quietly being added to the game.

If you told me that's a pretty trivial amount of stuff to copy from a game and probably doesn't cross the line into infringement, I'd probably agree with you. But there'd still be a prima facie case for copyright infringement, because there's copying.

If you told me that the game didn't exist yet and hadn't been released, I'd probably agree with that too, and it's hard to sue someone for Copyright infringement before you've seen the game. By the same token, it's hard to sue someone for Trademark infringement when they don't have a box to put your Trademark on, let alone any product at all.

The real point is:

* Trademark and Copyright try to be clear, but get fuzzy when the IP rights to a product are split between two owners.
* Encroachment between both sides was near inevitable.
* Nobody died.

To this day, most of this stuff could be walked back. And as of a few days ago, all of it has. There's no more announcement from P&F or Stardock that connects Star Control and GOTP. There doesn't seem to be a shred of content from SC2 in SC:O (though we'll see if they try to get cheeky with references to SC2). The old Copyrights are no longer on sale. Stardock is saying there's nothing for P&F to object to, and you have to ask what Stardock is still objecting to now that both sides have edited themselves and taken a big step back.

If they both got on the phone and said "this is the new status quo. Same as the old status quo. Let's keep it that way", they could wrap this up before SC:O goes on sale. The PR would be so good you'd almost ask if P&F and Stardock staged a giant legal battle just for the publicity.  ::) ;D


Title: Re: Stardock Litigation Discussion
Post by: Lakstoties on August 24, 2018, 09:24:03 pm
Although you probably didn't mean it that way (as you were probably referring to SC2's story and not the gameplay), it sounds like "forget about the past, go with the current trends on the market". Except that it's exactly what most companies already do and have always done. While there is currently a resurgence of "retro" games, there are still too few games that really play like the masterpieces of the 80s and the early 90s. So I think that there's a lot to learn from the past - specifically how that lightning in a bottle was caught in the first place by so many different game developers of that era. :)

I agree there's a lot to learn form the past.  And I'd push the analogy further to say it's still the same storm as the past, but it's no longer over the same area any more.  Hence, you need to move on to capture the lightning from that storm.  Take the lessons of the past, abandon the present familiar, and explore the unknown future.

On the other hand, if they want to associate games with Star Control, they do need our permission.

And this is the crux of the issue entirely here.  To what degree of association is Stardock wanting to permit and what degree of association is permitted by law.  There's a difference here.

Should Ghosts of the Precursors be allowed to be branded, advertised, and title it on the OUTSIDE as a "Star Control" game in the market in a manner to indicate the source of the product without Stardock's permission?  No.  That would be a textbook trademark infringement.  Putting the "Star Control" trademark upon the product is a no go.  That's actually what a lot of trademark cases end up being, comparison of trademarks between companies on their products and if the similarities between caused confusion.  See the Adidas America v. Payless Shoesource for an example of trademark infringement:  https://www.finnegan.com/files/Upload/Incontestable_Oct08_1.html

Can Paul and Fred refer to, compare against, and talk about "Star Control" term in a factual, non-trademark manner, a manner that does not use the trademarked term to indicate another product's source?  Yes.  By trademark law you are allowed to refer to another party's trademarks so long as they are not explicitly used as trademarks, source indication, upon your own products.  You are allowed to compare against even a direct competitor, this happens all the time with store brands putting the other trademarked competitor terms right in their labeling literally saying "Compare us to brand X!"  When it comes to terms within creative works and titles of creative works, you are allowed to talk about the trademarked terms and refer to the them in a non-trademark manner, hence not using it as a source indicator for the work.  Anything preventing that would be a First Amendment violation as there would be a federal mechanism limiting freedom of expression, a point that has created a lot of fair use doctrines used with trademark law.

Hence, Paul and Fred can say, "Ghost of the Precursors will be its own, separate continuation of the story from "Star Control 2 -- The Ur-Quan Masters", the game we worked on in the past."  They are allowed to refer to  the "Star Control" term as it is the title of their copyrighted work.  Also there's some possible literature that states if a party was allowed at one point to use the trademark upon a product, they cannot technically infringe upon that trademark in the future for that past product.  (Admittedly it seems more geared towards physical products, but it could be argued.)  They would NOT be representing their new game as a "Star Control" game, hence not using the term as a trademark to indicate source of another product.  Finally, since Paul and Fred own the copyrights to Star Control 2, they are granted protections by law to prepare derivative works based on those copyrights.


So from my perspective, Paul and Fred don't need Stardock's permission to do what they were already doing...  making Ghosts of the Precursors as a separate continuation of the story line from their previous game.


Title: Re: Stardock Litigation Discussion
Post by: Tas on August 24, 2018, 09:27:50 pm
that would be very expensive publicity....


Title: Re: Stardock Litigation Discussion
Post by: AmbassadorKosh on August 24, 2018, 09:54:31 pm
I'm pretty sure that the IP encroachment began with Paul and Fred claiming to be the true sequel to Star Control using the Star Control II box.  When Stardock asked that they cease and desist they refused (and again, this is all in the court filings) which led to Stardock filing a complaint.

People who have been following these threads for a while might remember something you said back in March in another thread.

When they filed a DMCA take-downs against Star Control 3, a title that Stardock literally holds the copyright for we realized that this had to be resolved via litigation.

This is a little inconsistent. But anyways, from re-reading the amended Stardock complaint, it is not actually clear to me what they have continued to refuse to cease and desist from that Stardock has demanded. The only thing that jumps out is that they still refer to themselves as "the Creators of Star Control".

Clearly I must be missing something, perhaps you could point it out.

Rather than agreeing to stop at that point, they sought to cancel Stardock's Star Control mark along with a lot of very public, very nasty (such as calling me, by name, a thief) PR. It's cause and effect in play.

Given the aggressive nature of the Stardock initial filing, I suspect many would need to see some correspondence from Stardock between the period of the filing and the counterclaim filing to form an opinion as to whether "agreeing to stop" was an option, of if their only realistic response was an equally aggressive counter.

I imagine they felt as outraged by a lawsuit trying to make a legal claim that they didn't create Star Control as you did being called a thief. One of those things preceded the other. There's some common ground to work from there!

If this case actually goes to trial, regardless of what happens with the trademark claims, you must realize Stardock will almost certainly be found to have acted improperly when putting the classic games up on Steam (even Star Control 3). Unless the buck for that decision stopped somewhere else, despite the fact there are no meaningful financial penalties to worry about, that's kind of an albatross to hang around your neck. In that scenario "software pirate using someone else's wares to market their own game" doesn't exactly sound better than thief.

At this stage, the ball is really with Paul and Fred.  There is nothing in Star Control: Origins they could possibly (well reasonably) object to.  On the other hand, if they want to associate games with Star Control, they do need our permission.

Even after the original alien/universe entity name infection happened, I doubt Stardock had any realistic fear of an injunction against launching Star Control: Origins. But including it would have been poor judgement, if just for the small, but non-zero risk of a jury finding it infringing on elements of the SC2 copyrights. And unlike the Steam release of the classic games, that could have been ruinous to Stardock. Pulling that stuff was the only rational move while there is still ongoing litigation.


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on August 25, 2018, 12:18:16 am
Prequel-ish Reboot concept meant a good fresh start overall. 

Journalists report Stardock is making a prequel --


Just in the interest of precision, SCO has been described (https://forums.starcontrol.com/471109/),1 marketed (https://forums.stardock.com/480135/)2 and/or sold (https://web.archive.org/web/20171120060229/https://steamcommunity.com/games/starcontrolorigins/announcements/detail/1446078806936046517)3 as a (https://arstechnica.com/gaming/2014/01/stardock-ceo-reveals-details-about-new-star-control-title-in-development/)4 prequel (https://forums.starcontrol.com/479381/)5 by Stardock for quite some time.

The "prequel" language persisted until November 2017, when Stardock made a Slylandro turn (https://steamcommunity.com/app/271260/discussions/1/2381701715712918530/?ctp=2#c3183345176715223805) and adopted its current position that SCO is not a prequel at all. I imagine that we have lawyers to thank for that...

---

[1] "The new Star Control is a prequel. It takes place before the events of the original series."

[2] Linking to an article (https://arstechnica.com/gaming/2016/10/a-first-look-at-star-control-origins-gameplay-prequel-due-for-release-in-2h17/) which: (a) repeatedly discusses SCO as a prequel; (b) contains art from SC2; and (c) a statement from PaulReiche regarding his rights which is substantially the same as the one he made in 2013 (http://forum.uqm.stack.nl/index.php?topic=5463.msg71115#msg71115).

[3] "Set as a prequel before the original series..."

[4] "According to Stardock CEO Wardell [in this 2014 interview], the new game will be a prequel." The article also explains how SCO's universe is purportedly connected to that of SC1 and SC2.

[5] "The new Star Control prequel also takes place in its own universe.  That doesn't mean it's a universe without the Spathi and Ur-Quan and so forth.  But if you run into them, it won't be until at least 2122 (after this prequel takes place and only if Paul and Fred are involved in that story)."


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 25, 2018, 10:31:35 pm
You know what's a bummer? We can't discuss settlement offers anymore
Yeah you can, the court order applies to public disclosure, there is no legislation in the United States forcing you to peruse this legal action that you don't want to peruse, you and F&P are free to drop the entire case, at literally any time, upon any basis you all decide up until before the trial. This is why I don't give you the benefit of the doubt anymore because in the best case scenario, you're just as inexperienced as F&P, and in the worst case scenario you're dysfunctionally manipulative, there just aren't many possibilities left for you after this much time and I even used to side more with you.


Title: Re: Stardock Litigation Discussion
Post by: astkr5 on August 25, 2018, 11:39:48 pm
In what way would spitballing ideas publicly possibly enable a settlement? You aren't negotiating with the public -- we have no say in the matter. If you have an offer, you can still bring it to the opposing side of the dispute. Speaking publicly serves no real purpose other than trying to do PR for your company, which is fine, but there isn't any relevance here to a legal conclusion.

I’m not talking about Stardock (or PF) posting proposals. I am talking about Stardock (or PF) being able to participate in any of the many, many discussions and opine on various ideas that are posted to speed up the process. If you think lawyers “spitball” proposals back and forth you would be mistaken.  It’s a slow, arduous process. If you look back at the start of all this, I suggested PF and I talk to each other. I think you might be surprised at how much the system works to prevent direct discussions.
I didn't say anything about how I thought the negotiation process between your lawyers worked. I only suggested that a restriction on your ability to discuss settlement matters with the public doesn't seem to have any bearing on whatever that negotiation process is and how it plays out. You're making a claim that "participating in the ... many discussions ... that are posted" will "speed up the process" -- if you're not participating in public discussions by offering actual proposals to the other side (as you sensibly deny intending), then I don't see how you would be doing anything but stirring the pot and doing PR. If you are having difficulty communicating with the other side, talking to us (the public) is not a substitute.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 26, 2018, 12:04:57 am
In what way would spitballing ideas publicly possibly enable a settlement? You aren't negotiating with the public -- we have no say in the matter. If you have an offer, you can still bring it to the opposing side of the dispute. Speaking publicly serves no real purpose other than trying to do PR for your company, which is fine, but there isn't any relevance here to a legal conclusion.

I’m not talking about Stardock (or PF) posting proposals. I am talking about Stardock (or PF) being able to participate in any of the many, many discussions and opine on various ideas that are posted to speed up the process. If you think lawyers “spitball” proposals back and forth you would be mistaken.  It’s a slow, arduous process. If you look back at the start of all this, I suggested PF and I talk to each other. I think you might be surprised at how much the system works to prevent direct discussions.
I didn't say anything about how I thought the negotiation process between your lawyers worked. I only suggested that a restriction on your ability to discuss settlement matters with the public doesn't seem to have any bearing on whatever that negotiation process is and how it plays out. You're making a claim that "participating in the ... many discussions ... that are posted" will "speed up the process" -- if you're not participating in public discussions by offering actual proposals to the other side (as you sensibly deny intending), then I don't see how you would be doing anything but stirring the pot and doing PR. If you are having difficulty communicating with the other side, talking to us (the public) is not a substitute.

You missed the point entirely.  Paul and Fred watch these posts, including this very thread.  When someone posts something that's interesting that no one has thought of, neither side is allowed to comment on it which, in turn, could allow a party to directly read what the other is thinking rather than interfacing through lawyers. Is that clear now?

Let's be candid about PR.  This is a tiny, tiny forum.  This post has a total of about 6,000 views.  And it's huge compared to the Reddit sub which has less than 1000 viewers total.  To put that in perspective, the most recent (less than a week old) journal on SC UI on starcontrol.com has 10k views.  The Q&A thread on starcontrol.com has almost 700,000 views.  Hanging out here is not an exercise in PR.  I'm here because I care about this community. I've been a part of it for years.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 26, 2018, 12:22:22 am
Hanging out here is not an exercise in PR.
Isn't it true that;

A: You personally corresponded with people to name in-game planets after them in exchange for pre-sales?

B: You explicitly stated on discord you could not guarantee UQM's safety despite that you have the legal capacity to authorize it in writing?

C: That Stardock's legal fees for this litigation are covered by insurance, whereas F&Ps are being paid for out of pocket?

D: Stardock has gotten pre-sales as a result of communication on these forums?

E: You claimed F&P are not original creators, both as a legal claim and in discord, despite that F&P have pages upon pages of original draft content on their blog and are still in contact with former employees of theirs who have not made statements to contradict F&P's status as creators?

F: That Stardock sold the original games containing F&P's copyrighted content on Steam prior to having the DMCA issued to them?

G: That on several occasions, Stardock beseeched F&P to collaborate on several projects centered around Stardock's games, including a project to include original F&P races within the Galactic Civilizations franchise?

H: That on Stardock's Steam forums, beta testers were asked explicitly if they have played the original SC-titled games containing F&P's content?

I: Starock issued that SC:O is a prequel to the original games?



It seems like Stardock is willing to do quite a lot for PR and Stardock can only stand to benefit from any amount of it.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 26, 2018, 12:31:04 am
So right after I mention hanging out here is *not* an exercise in PR you want to try to do an online deposition?

So why are you here CS? Are you engaging in PR?  You're the new one here, after all.  If we're going to assign ulterior motives to anyone who wants to hang out online and talk to people, why not start with you?


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 26, 2018, 12:34:47 am
So right after I mention hanging out here is *not* an exercise in PR you want to try to do an online deposition?

So why are you here CS? Are you engaging in PR?  You're the new one here, after all.  If we're going to assign ulterior motives to anyone who wants to hang out online and talk to people, why not start with you?

So after dodging the point I brought up that you can in fact still settle with F&P, you are now dodging all of the 9 questions I asked despite that you are the CEO who has publicly proclaimed they are engaged in a litigation with Fred & Paul and has made public statements questioning their integrity and character? That's also beside the fact that multiple people besides myself agree that it's possible you have ulterior motives centered around PR.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 26, 2018, 12:39:21 am
So right after I mention hanging out here is *not* an exercise in PR you want to try to do an online deposition?

So why are you here CS? Are you engaging in PR?  You're the new one here, after all.  If we're going to assign ulterior motives to anyone who wants to hang out online and talk to people, why not start with you?

So after dodging the point I brought up that you can in fact still settle with F&P, you are now dodging all of the 9 questions I asked despite that you are the CEO who has publicly proclaimed they are engaged in a litigation with Fred & Paul and has made public statements questioning their integrity and character? That's also beside the fact that multiple people besides myself agree that it's possible you have ulterior motives centered around PR.

Your entitlement is noted.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 26, 2018, 01:05:25 am
Your entitlement is noted.

And yet again, instead of answering the questions honestly, you try and attack the person who is asking the questions with some strawman about entitlement in order to get out of answering them. This only makes you look even worse than before. You've already demonstrated you're committed to discussing the issue with your numerous posts, so deflecting from these specific questions despite the proof of your continuous committed time on the issue only points strongly to the answers to those questions showing an ulterior motive.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 26, 2018, 01:12:50 am
You seem to be missing the point.  Why should I answer your questions in the first place, anonymous internet person?


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 26, 2018, 01:17:50 am
You seem to be missing the point.  Why should I answer your questions in the first place, anonymous internet person?

If you're committed to this site and the litigation as you claim, then why *shouldn't* you answer the questions? You weren't obligated to respond to Elestan, nor rose, nor Laks, nor arilou nor anyone else here. I don't see that anyone is saying you're obligated to answer anything here, but that doesn't mean your refusal to answer something here has no consequences.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 26, 2018, 01:21:24 am
I've said I care about this community. 

I don't know you. You just joined here.   I may get annoyed with Elestan but at least he's actually been part of this community for years.  I get angry with him but I respect him so I am more likely to answer him than some guy who just showed up to stir up trouble.

As for the litigation, it has nothing to do with you.  You're just random internet guy who thinks he's entitled to answers. You're not.   I'm here at my pleasure and will talk about whatever I'd like within the rules of the community.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 26, 2018, 01:23:50 am
I've said I care about this community.  

I don't know you. You just joined here.   I may get annoyed with Elestan but at least he's actually been part of this community for years.  I get angry with him but I respect him so I am more likely to answer him than some guy who just showed up to stir up trouble.

As for the litigation, it has nothing to do with you.  You're just random internet guy who thinks he's entitled to answers. You're not.   I'm here at my pleasure and will talk about whatever I'd like within the rules of the community.

You've spent all this time coming up with excuses not to answer the questions, yet in that time, you could have answered the questions to your very own benefit if their premises were all false, and you've already demonstrated you're willing to commit time to PR.

Whether or not you know me doesn't have any bearing on whether the answers to those questions are "true".  So if you have no ulterior motive, then you and the public could only benefit to see evidence of such from the answers to those questions.

You had no problem spending days and days conversing with me, telling me F&P weren't original creators, saying they issued some PR campaign against you, that they wanted your trademark, that Stardock is purely the victim, etc, yet on these very specific questions, you insist on dodging them. I wasn't particularly sure of the answers to all of them, but because you've put so much effort into dodging them on a basis that contradicts your previous correspondence, I can now be more sure that the answers wouldn't benefit you.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on August 26, 2018, 01:39:53 am
There’s a Q&A thread on starcontrol.com. You can always ask there or see if your questions haven’t already been asked dozens of times and answered dozens of times.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on August 26, 2018, 01:42:30 am
There’s a Q&A thread on starcontrol.com. You can always ask there or see if your questions haven’t already been asked dozens of times and answered dozens of times.

If you're already committed to these forums as you claimed, then you would accept answering them here would benefit the community here, the people of this community who view these forums on a regular basis and who have indicated an interest in the truth on the matter.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on August 26, 2018, 06:29:13 am
Okay, how about we time out on this whole topic for, like, a week?


Title: Re: Stardock Litigation Discussion
Post by: misterjei on September 04, 2018, 03:43:33 am
I'm a long time lurker and I've loved Star Control since I first got my hands on it as a kid in the 90s. The state of this litigation is so incredibly depressing.

I've long been a fan of Stardock, so when I learned about SC:O, I was ecstatic. I became a founder the same day. When I heard about the litigation, I was heart-broken. However much blame there is to go around - I'm sure there's plenty - I hope Stardock realizes the huge cost they have incurred in goodwill. I've purchased many Stardock games in the past, but now? I don't know if I could bring myself to buy another. It's an incredibly bitter pill to swallow. Maybe if Stardock reaches a settlement under terms that aren't arm-twisting P&F... I hope so.

Stardock folks, I hope you won't dismiss my point of view because I'm a "random Internet person". (I mean, I did just register to be able to post this after reading these forums for quite a long time.) There are a lot of folks out there in the same position as me. We don't all post in the forums. But we read, and we listen... I hope you'll consider how much damage is being done to your brand by this whole awful mess.

Back to my lurker hole now. ;)


Title: DMCA notices, request for restraining order filed
Post by: Elestan on September 08, 2018, 07:27:12 pm
New court filings yesterday shed some light on the temporary disappearance of Stardock's properties from Steam last month.  It was indeed due to a DMCA notice from P&F (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.56.2.pdf), which was then counter-noticed (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.56.3.pdf).  Stardock is now requesting (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.56.0.pdf) a temporary restraining order (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.56.15.pdf) against P&F to prevent them from filing further DMCAs.  The wiki page (http://wiki.uqm.stack.nl/Stardock_Systems_Inc._v._Paul_Reiche_III_and_Robert_Frederick_Ford#Court_Received) had been updated with the new filings.


Title: Re: Stardock Litigation Discussion
Post by: PRH on September 08, 2018, 09:28:39 pm
Hmm. I believe that such a restraining order would indeed be a good thing, as F&P would still have plenty of opportunity to argue their case in court. Trying to block SCO itself with DMCA notices would only serve to antagonize Stardock and prove that F&P are indeed "lying in wait for the opportunity to inflict the greatest possible harm to Stardock". That's one hell of an inflammatory claim, by the way, but from Stardock's point of view, I suppose it's not entirely uncalled for.


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on September 09, 2018, 01:08:08 am
I guess I can agree that filing a DMCA for SCO itself was maybe going to far, but the case is not so clear with the content packs, which are very close to infringing on their copyrights (whether or not they are infringing is for a lawyer or judge or whatever to decide).


Title: Re: Stardock Litigation Discussion
Post by: Elestan on September 09, 2018, 01:16:39 am
I guess I can agree that filing a DMCA for SCO itself was maybe going to far, but the case is not so clear with the content packs, which are very close to infringing on their copyrights (whether or not they are infringing is for a lawyer or judge or whatever to decide).

I've heard that they just renamed their Melnorme to Maelnum (http://wiki.uqm.stack.nl/Mael-Num), which doesn't really help.  An orange, bulbous race of information brokers in SC:O with the same name as the ancestors as an orange, bulbous race of information brokers from SC2?  That sounds substantially similar to me.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on September 09, 2018, 02:15:47 am
That's quite a stretch, Elestan.

(https://content.screencast.com/users/draginol/folders/Snagit/media/0fca45f3-8923-4ad9-b1ce-e98b30a31111/09.08.2018-20.12.png)

I would really like to see Paul and Fred argue in open court that that appears even similar to the Melnorme expressed in SC2.  Also, you linked to the Mael-Num.  It's one thing to quibble over copyright but now you're trying to argue that similar *spelling* of a word of a spy race is somehow in violation of someone's copyright?

The DLC, btw, were tracks of *music* created by Riku.  That was the content that got DMCA'd.

They also DMCA'd fleet battles.   There are two ways of interpreting that:

Either:

a. They believed that the Fleet Battles containing the Earthling Cruiser that looked remotely similar to the one in SC1/2/3 along with a ship with the word Arilou in its name somehow violated their copyrights.

or

b. They think they own the idea of Space Wars!

If it's the former, then we can litigate that in court and in the meantime have made changes previously discussed.  If it's the latter, then it will be interesting to see who, if anyone, still supports Paul and Fred if they DMCA based on *gameplay*.  You can't copyright gameplay.  If it could, then Paul and Fred would be in big trouble themselves.

The Fleet Battles part of Star Control: Origins plays substantially differently than SC2 anyway (and quite a few founders were unhappy with the changed gameplay but it was necessary for the pacing and ship variation we were looking for along to deal with some of the griefing that the Space Wars! / SC2 style Super-Melee resulted in).

Paul and Fred do have the opportunity of becoming very famous if the keep on the course they seem to be taking.



Title: Re: Stardock Litigation Discussion
Post by: Elestan on September 09, 2018, 02:47:11 am
I would really like to see Paul and Fred argue in open court that that appears even similar to the Melnorme.  Also, you linked to the Mael-Num.  It's one thing to quibble over copyright but now you're trying to argue that similar *spelling* of a word of a spy race is somehow in violation of someone's copyright?

Come now, do you really think that the presence or absence of a hyphen makes a difference?  And are you really suggesting that in the absence of the creative influences of SCII, that your spy race for SC:O would be remotely the way they are?  They sure seem derivative to me.  I believe I recall you saying that they were drawn by an artist who was given certain instructions, including to make them orange.  Would you care to say who selected the color orange for your spy race?

As for the reasoning for their DMCA, it would surprise me if it was about "gameplay", but perhaps we'll get to read for ourselves when P&F reply to you.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on September 09, 2018, 03:10:10 am
Like I said Elestan, I would very much like to see them argue in open court that that alien is a “derivative” of a one-eyed big mouthed orange Alien with a toothy grin most famous for what color it’s background is.

The Maelnum have nothing in common with the Melnorme from SC2. Their histories are different. Their motivations are different. They don’t even have starships. You’re just grasping at straws here.  And arguing about words falls into trademarks anyway.

For a guy who vigorously argued about “fair use” on the trademark side you certainly seem to have adopted a much more liberal concept of what copyright protects.  Maybe you should replay UQM to look at its inspirations.

In any case, it’s a matter for the courts to decide.  Stardock has already taken steps to make sure the situation has reached a status quo while the courts sort things out. But that’s a two way street. The more we have to modify our game to appease Paul and Fred, the more concessions we will demand from them on their game.
 



Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on September 09, 2018, 04:37:06 am

The Maelnum have nothing in common with the Melnorme from SC2. Their histories are different. Their motivations are different. They don’t even have starships.


So no reason to be called Maelnum other than "I can".
 


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on September 09, 2018, 04:43:51 am
What doesn't make sense after all this time is why there is an intentional effort to make SCO races similar at all when there are literally infinite possibilities after declaring the game a separate universe.


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on September 10, 2018, 01:56:45 am
The similarity to the Melnorme is obvious to anyone who's played the game. Whether it's similar enough to be an infringement is not clear, sure. But there are very clear similarities that I'm sure would be taken into account when trying to determine whether it is, in fact, an infringment:

  • They are orange and bulbous.
  • They have the same name (while it's not outright stated, it's very strongly implied that the Mael-Num and the Melnorme are the same race). And no, I'm sure a missing hyphen won't make a difference.
  • They are information brokers.

You're drawing attention to all the differences, but as far as I can tell that's really just a diversion. The differences aren't what matter here, are they? What matters is the similarities. Are there enough similarities to constitute a copyright infringement? Who knows. But there are definitely some pretty substantial similarities.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on September 10, 2018, 02:22:41 am
The similarity to the Melnorme is obvious to anyone who's played the game. Whether it's similar enough to be an infringement is not clear, sure. But there are very clear similarities that I'm sure would be taken into account when trying to determine whether it is, in fact, an infringment:

  • They are orange and bulbous.
  • They have the same name (while it's not outright stated, it's very strongly implied that the Mael-Num and the Melnorme are the same race). And no, I'm sure a missing hyphen won't make a difference.
  • They are information brokers.

You're drawing attention to all the differences, but as far as I can tell that's really just a diversion. The differences aren't what matter here, are they? What matters is the similarities. Are there enough similarities to constitute a copyright infringement? Who knows. But there are definitely some pretty substantial similarities.

“Information brokers”? I’m sorry but have you played the game? If you had you’d know that is not their role. They’re spies. They don’t sell information.  

In any event, sounds like a question for a jury.

Just remember these arguments, however, when the time comes for discussing the matter of whether having Melnorme in a game might cause a liklelynood or confusion in a consumer to think that game is connected with Star Control.  I know I will.

Edit: I've requested the name to be changed from Maelnum to Maelnir despite the fact that you can't copyright a word.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on September 10, 2018, 05:48:20 am

Just remember these arguments, however, when the time comes for discussing the matter of whether having Melnorme in a game might cause a liklelynood or confusion in a consumer to think that game is connected with Star Control.  I know I will.

We can look at the Likelihood of confusion factors right now:

1) Strength of the mark. "STAR CONTROL" is at least suggestive, possibly arbitrary. Fairly strong.
2) Defendant's use of the mark. None. "MELNORME" does not appear on the goods or indicate source*.
3) Similarity of the marks. None. "MELNORME" and "STAR CONTROL" are in no way similar.
4) Actual confusion. N/A due to 2)
5) Defendant's intent: Non-trademark use.
6) Marketing: N/A due to 2)
7) Purchaser's degree of care: N/A due to 2)
8.) Likelihood of product line expansion: N/A due to 2)

*Star Control is not a source, it does not produce goods or services. Trademark law does not care whether the contents are connected to the trademark, only what the type of goods are.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on September 10, 2018, 06:07:22 am
We can look at the Likelihood of confusion factors right now:

1) Strength of the mark. "STAR CONTROL" is at least suggestive, possibly arbitrary. Fairly strong.

Note that the "Star Control" mark has a Section 15 Incontestability (https://www.inta.org/INTABulletin/Pages/IncontestabilityDoesAnybodyReallyUnderstandIt.aspx) declaration filed.  I don't think that affects the other factors, nor does it make it immune to challenges based on abandonment or fraudulent renewal, but I think it overrides any ability to challenge it on strength.

EDIT:
Quote
Trademark law does not care whether the contents are connected to the trademark, only what the type of goods are.

Actually, it does care, and inversely so:  The more connected the trademark is to the goods themselves (as opposed to their source), the weaker the trademark is.  This is part of why "Arilou", despite being a fanciful word, is probably not a fanciful (i.e. very strong) trademark:  Its primary use is as a race name within the game, and not as an identification of where the game is coming from.


Title: Re: Stardock Litigation Discussion
Post by: kaminiwa on September 10, 2018, 07:49:38 am
Just remember these arguments, however, when the time comes for discussing the matter of whether having Melnorme in a game might cause a liklelynood or confusion in a consumer to think that game is connected with Star Control.  I know I will.

For someone that continues to insist you're not trying to block production of Ghosts Of The Precursors, you spend an awful lot of time sinisterly hinting about how you're going to twist our words and use them to block production of Ghosts Of The Precursors


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on September 10, 2018, 02:21:25 pm
Just remember these arguments, however, when the time comes for discussing the matter of whether having Melnorme in a game might cause a liklelynood or confusion in a consumer to think that game is connected with Star Control.  I know I will.

For someone that continues to insist you're not trying to block production of Ghosts Of The Precursors, you spend an awful lot of time sinisterly hinting about how you're going to twist our words and use them to block production of Ghosts Of The Precursors

No. I’ve said we aren’t trying to prevent them from making their game.   Obviously, the more effort they put into blocking our game is going to have an effect in our willingness to allow their game to be connected to Star Control. 


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on September 10, 2018, 03:00:12 pm
“Information brokers”? I’m sorry but have you played the game? If you had you’d know that is not their role. They’re spies. They don’t sell information. 
That's really splitting hairs, to be honest. The difference between spies and information brokers is fairly slim.

But yeah, sure. A question for a jury or whatever.


Title: Re: Stardock Litigation Discussion
Post by: PRH on September 10, 2018, 03:06:49 pm
And let's not beat a dead horse.That race has been renamed, and it's different enough from the Melnorme that no reasonable person would consider that copyright infringement. Case closed, from my point of view at least.

And by the way, thank you for renaming these races.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on September 10, 2018, 11:43:08 pm
Edit: I've requested the name to be changed from Maelnum to Maelnir despite the fact that you can't copyright a word.

Whether you can copyright a word, as you know, is irrelevant. That's like saying you can't copyright a pixel. Or you can't copyright a color. If you see a single word used in two works, it's probably a coincidence. If you see a phrase appear in two different works, there almost definitely was copying. The same is true of key words. Maybe there's some "Slylandro" that's appeared in some other copyrighted work without any kind of issue. But if you see "Slylandro", "Pkunk", and "Super Melee" all appear in two different games, along with massive similarities in lore and character, would anyone believe it's just a coincidence?

By that token, changing more stuff is a wise idea. And, speaking for myself as a fan, the less you take without permission, the more I appreciate Stardock trying to show some good will.

That being said, from a legal standpoint, it might not be enough. Frankly, a subtractive approach to copyright defense might have already damaged you.

You started with a prequel in the same multiverse (https://arstechnica.com/gaming/2016/10/a-first-look-at-star-control-origins-gameplay-prequel-due-for-release-in-2h17/) (unlicensed at that). The first previews featured elements of someone else's lore, their ships (https://pbs.twimg.com/media/DO2cdocXUAA1CEL.jpg), and even aliens by the same name with a subset of the same features (https://www.reddit.com/r/starcontrol/comments/8c2t9n/starcontrolorigins_arilou_revealed/).

Subtracting and modifying the copied elements can make your game less similar. But that can't change the fact that you started with (even partial) copying.

If I take someone else's character -- with their art, their personality, and backstory. Then add an eye. Then bend the shape a little. Keep the personality but change the backstory. Is it still similar? Probably. Change it from its common name to its name from deep in the lore. Still similar? Maybe. Change the second syllable in their name. Still similar? Less so. But at the first step, did I copy? Yes.

The problem is that no matter how many changes you make, you can't escape the original sin: you started by copying material from someone else's copyrighted work. Modifying pieces of it doesn't change the fact that it was a copy, any more than dozens of surgeries could make me into a legally different person.

What you're left with is still evidence of copying, which is a key element of the test for Copyright infringement. In some cases, the lack of similarity is a mitigating circumstance, and it has for sure resulted in many a successful defense. That being said, there are harsh cases where judges have ruled that evidence of copying without permission is itself sufficient evidence of Copyright infringement. The reason for that is to avoid ambiguous cases where people need to spend hundreds of thousands of dollars to roll the dice. A lot of judges would rather make it clear: if you copy without permission, you're done.

It's your legal right to take that risk. But the only safe course would be to create a new alien from scratch, instead of tweaking a potentially infringing alien one piece at a time.


Title: Re: Stardock Litigation Discussion
Post by: PRH on September 11, 2018, 12:00:11 am
The problem is that no matter how many changes you make, you can't escape the original sin: you started by copying material from someone else's copyrighted work. Modifying pieces of it doesn't change the fact that it was a copy, any more than dozens of surgeries could make me into a legally different person.

Right. So from your point of view the only action Stardock could take that wouldn't infringe on F&P's copyright would be to cancel SCO? Because, you know, since F&P argue that SCO started with infringing material present in it (which is still up to the courts to decide), it will be forever cursed with the "original sin"?

I'm also against having "Arilou" and "Chenjesu" and whatever else from SC2 in SCO without F&P's permission. However, what you are saying would mean that drawing any kind of inspiration from other works of fiction constitutes copyright infringement (since it could be argued that it all began with "copying" an element from another copyrighted work). However, nearly all of fiction shows us that this isn't the case.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on September 11, 2018, 12:06:17 am
Suffice to say, our position with regards to names will be reciprocal.

Edit: Rose, your legal beliefs are just nuts.  There's just no other way to describe it.  They have no basis in law or fact.  It doesn't help that you obviously have no familiarity with Star Control: Origins or even what copyright is.


Title: Re: Stardock Litigation Discussion
Post by: PRH on September 11, 2018, 12:27:08 am
Suffice to say, our position with regards to names will be reciprocal.

Well, I seriously doubt that F&P would ever want to put "Tywom", "Scryve" or "Mu'Kay" into GotP. And if they did, you would have every right to sue them for that.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on September 11, 2018, 12:30:48 am
No, I but I suspect they want to use names that are connected to Star Control that might cause consumers to believe their new game is connected or associated with Star Control.

The Lanham act 43a is pretty clear. https://www.bitlaw.com/source/15usc/1125.html

If a game came out that had the Spathi and Ur-Quan and Orz, I think it's safe to say that many people would believe it is connected and/or associated with Star Control.  Therefore if they want to make a game that utilizes elements connected to or associated with Star Control II they will need our permission.


Title: Re: Stardock Litigation Discussion
Post by: AmbassadorKosh on September 11, 2018, 12:45:54 am
Imagine Star Control 2 was actually a text adventure. And that Star Control Origins was also a text adventure.

Is it possible to create a Star Control Origins text adventure that doesn't constitute infringement of a Star Control 2 text adventure? Of course.

But, that does not mean it is *impossible* for a Star Control Origins text adventure to commit copyright infringement against a Star Control 2 text adventure.

From another angle: Infocom once upon a time made a game based on The Hitchhiker's Guide to the Galaxy. What if, right before release, they had a falling out with Douglas Adams and the deal was canceled? Would all Infocom need to do would be to change the name of the game and release it? Or would they have to make changes to the content of the game? What sort of changes might they have to make?

Yet another take: imagine if Infocom managed to acquire the rights to a trademark "The Hitchhiker's Guide To the Galaxy", and a copyright to the dolphins story from So Long and Thanks For All The Fish. However, the rest of the book copyrights remained in the hands of the Douglas Adams estate, who didn't want to license them. What might be danger zones for Infocom in creating a Hitchhiker's Guide to the Galaxy game that would risk being sued for infringing on the book's copyright?


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on September 11, 2018, 01:08:43 am
If a game came out that had the Spathi and Ur-Quan and Orz, I think it's safe to say that many people would believe it is connected and/or associated with Star Control.  Therefore if they want to make a game that utilizes elements connected to or associated with Star Control II they will need our permission.

How do you square the idea that they need your "permission" to "utilize elements connected to Star Control II" with your repeated assertions that "no one is stopping them from making Ghosts of the Precursors"?

You know what's nuts? That.

Quote from: PRH
Right. So from your point of view the only action Stardock could take that wouldn't infringe on F&P's copyright would be to cancel SCO? Because, you know, since F&P argue that SCO started with infringing material present in it (which is still up to the courts to decide), it will be forever cursed with the "original sin"?

I wasn't trying to describe my point of view, but the case law as it exists now. Some judges are harsh, but they're not THAT harsh.

Stardock wanted to market their game as a whole new product in the spirit of Star Control II, but an otherwise stand-alone game. That's the standard they'd need to reach to be completely safe from liability for Copyright infringement. And outside of those characters, they more or less have it. I am speaking hypothetically, because for all I know, Stardock has already removed those characters. The changes keep happening even within the span of days.

If Stardock removed the modified-modified-modified-renamed-Arilou, and the modified-modified-nicknamed-changed-syllable Melnorme, they'd be standing safely and squarely on their own side of the intellectual property fence. That's assuming there's no other characters in the game that were produced using the same iterative tweaking. As is, they could argue they're already safe, but they have an appendage sticking out onto someone else's Copyright, and they are hoping that a judge will take a more liberal view. Their lawyers have probably told them the risk is small. (Which is not the same as zero.)

This is one of the most cutting-edge areas of Copyright law in the past decade or two. The majority of judges say "even where copying is conceded, it is not always Copyright infringement," where a small number of harsh precedents basically say "if you want to copy, get a license, full stop." The latter approach might sound nuts, but that's the 6th circuit trying to design a bright-line rule in an area of massive technological change.


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on September 11, 2018, 01:36:39 am
We have said we are not trying to stop them from making a game.  We will not consent to a game called Ghosts of the Precursors because it has already been connected to Star Control.  

How much their game is able to be connected to Star Control is going to either be determined by the courts or a settlement. Meddling with our release is not going to make us more inclined to let them connect their game to Star Control II.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on September 11, 2018, 01:48:37 am
We have said we are not trying to stop them from making a game.  We will not consent to a game called Ghosts of the Precursors because it has already been connected to Star Control.

I mean, you should update your Q&A, because "Is Stardock trying to prevent Paul and Fred from making new games in their universe?" is almost definitely not the question that anyone is asking. The question is, assuming Stardock succeeds in their lawsuit, will Paul and Fred still be able to to develop Ghosts of the Precursors unobstructed?

The answer is obviously no. Stardock, if they succeed, will have a veto over Ghosts of the Precursors, let alone anything that so much as mentions anything from Star Control 2.

In your own words, what might a game from Paul and Fred look like if they used just the Star Control 2 Copyright, without any Trademark license from Stardock?


Title: Re: Stardock Litigation Discussion
Post by: Frogboy on September 11, 2018, 02:11:21 am
All of that was written before they started to meddle with our launch.

Launch is less than 2 weeks from now. We shall see what Paul and Fred choose to do between now and then.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on September 11, 2018, 02:31:19 am
I mean, to be fair, telling your developers to add potentially copyright infringing material to the game is messing with your own launch.

Maybe Paul and Fred will pursue their full legal rights. Maybe they won't. Either way, the last minute removals and changes are wise. And even just from a PR standpoint, I know there's at least a few fans who appreciate it (including me).

That being said, nothing in the lawsuit has changed. You have said, for months, that your Trademarks are valid. The only thing that has changed isn't the lawsuit, but your spin of it, and conceding what most of us have been able to read plainly all along. That Stardock's Trademarks would completely obstruct any spiritual successor that Paul and Fred would want to create, even if they chose a different product name.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on September 11, 2018, 05:38:28 am
No, I but I suspect they want to use names that are connected to Star Control that might cause consumers to believe their new game is connected or associated with Star Control.

The Lanham act 43a is pretty clear. https://www.bitlaw.com/source/15usc/1125.html

Which section do you suggest that would violate?

Quote
"(a) (1) Any person who, ..."

OK so far.

Quote
"...on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof..."

Not this section, in game use is not use in commerce.

Quote
"...or any false designation of origin..."

Nor this section. Use in game is not designation of origin.

Quote
"...false or misleading description of fact, or false or misleading representation of fact..."

Nor this section. Use in game is not a description or representation of fact.

So section (a) is out. (b) is irrelevant, being about importing.

Quote
"(c) ... Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce..."

Again, use in game is not use in commerce, so (c) is out as well, even assuming Star Control is a 'famous' mark.

(d) is about domain names so also irrelevant.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on September 11, 2018, 06:00:57 am
On another note, it occurs to me that the Chenjesu and Arilou DLC, containing only art and music, could be considered 'Single creative works' and therefore their titles may not be eligible for trademark protection.

https://tmep.uspto.gov/RDMS/TMEP/current#/current/TMEP-1200d1e2517.html


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on September 11, 2018, 05:28:29 pm
Stardock's Trademark applications for the SC2 alien names are unprecedented. The bright-line rule for Copyright infringement is admittedly a minority of case law. But Stardock's aggressive interpretation of Trademark is so fringe that I've never seen it. Even when I look for it, I see more and more judges confine Trademark to its common sense role: as an exclusive designation of origin, and not a weapon against anyone who uses a word.

Even when you acquire a Trademark in something, it doesn't allow you to exclude people from using those words in their original sense. If I somehow were able to Trademark "Frogboy", it might give me the power to start selling products under that Trademark, but it doesn't let me exclude someone who can prove they've been using it long before I came along.

And that's assuming I can even acquire the Trademark in "Frogboy" in the first place. You can only acquire a Trademark if it's a distinctive designation of origin. Under Stardock's fringe theory, I would try to say "stop calling yourself Frogboy, because I own that Trademark now, and you're confusing people about who the real Frogboy is." But there's no way a court would let me sue someone for "confusing" people about the real Frogboy, when my Trademark in Frogboy was never distinctive in the first place. Namely, there already is a Frogboy, and he's been that for decades, independent of any Trademark claim I could try to make.

This is exactly the thing that Trademark law is supposed to avoid. Imagine if you could Trademark anything that people are already using, and then sue them. It would be legal anarchy.

This is why Trademark is based on use. If someone is already using it -- for example in their Copyrighted material in an open source project -- you don't get to come along nearly 20 years later and extinguish their rights.


Title: Re: Stardock Litigation Discussion
Post by: PRH on September 11, 2018, 06:35:45 pm
Yeah, but Brad claims that Accolade already owned the race names as common law trademarks back in 1992, since the 1988 agreement stated that Accolade owned all trademarks connected with Star Control, and their ownership would not revert to Paul even after the agreement had expired. But that line of reasoning hinges on the idea that the alien names are trademarks. The sources I find also say that the names of fictional characters cannot be trademarks unless a product is being marketed branded with the character's name.

And even if they were trademarks, Atari allowed their use when F&P released the open-source version of UQM in 2001. The same also goes for "The Ur-Quan Masters" trademark. Even if Atari did own these marks, doesn't their permission to use them basically mean that they implicitly transferred these marks to F&P (since no formal licensing agreement was signed)? Note that they specifically said that UQM cannot use the Star Control mark, so the argument that UQM is just a fan project seems rather dubious.

On the other hand, there was a fan project called Ultima V: Lazarus which was basically a recreation of Ultima V on the Dungeon Siege engine. It did display the "Ultima V" and "Warriors of Destiny" titles (both marks were presumably owned by EA), and EA certainly did retain control of the Ultima mark.

So what is the legal status of fan projects? F&P in particular complained about the editing tools in SCO that would theoretically allow one to recreate SC2 in the SCO engine. Like I said before, I do not approve of their stance on that, but does it have any legal merit?


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on September 11, 2018, 08:50:24 pm
Accolade didn't register those aliens as Trademarks. They didn't even so much as put a ™ to signify that they were an unregistered Trademark. When Atari sold its assets to Stardock, it listed one Trademark: "Star Control". And even the "Star Control" Trademark is in dispute, due to years of non-use.

At least with Star Control, Stardock picked it back up and started using it, and P&F didn't challenge it. (At least, not until Stardock sued them.) That gives Stardock a few years of uninterrupted, more-or-less peaceful use of "Star Control".

But even if you ignore that the the aliens were never used as source identifiers (e.g.: on the product itself). You still have an entire period of a decade where Atari did not use them at all, because they stopped doing anything in-commerce with regards to the Star Control aliens. Zip. Zero. Zilch.

This is same period where the only place you could find those aliens was in the open source "Ur Quan Masters" project, under license from Paul and Fred.

Stardock might have had a shot when they made the asset purchase in 2013. Of course, it would have been a long shot to start mentioning all those aliens with a little ™, considering that Atari didn't mention them in the sale, and considering that Stardock would to start really "using" those aliens "in commerce". But Stardock went ahead and did the opposite of what they're doing now.  They publicly said they don't have the right to those aliens, and that they're not going to touch them.  (https://web.archive.org/web/20160826230848/http://forums.starcontrol.com:80/471109/page/3) Then they privately said they bought the one Trademark (https://cdn.stardock.us/forums/0/0/1/9bd20b3f-5658-465f-92a3-7e0ad8276da2.png), just like the asset purchase agreement said.

In Stardock's defense, you can make a legal mistake, talk to lawyers, and fix it. For example, I could say to my neighbor "yeah, I'm pretty sure that part of the lawn is on your property", and then have my lawyer look it up, and then tell my neighbor "actually, that land is mine." (But then my neighbor might claim an easement. Seems that nearly every property right creates exceptions where someone can claim fair use due to a period of unchallenged possession -- but I digress)

That doesn't fly with Trademark. Trademarks automatically expire after non-use. So they would have expired under Atari. And if you try to get the rights by using them again, good luck doing that when someone else already has exclusive and uninterrupted use dating back to 2002.


Title: Re: Stardock Litigation Discussion
Post by: Mormont on September 12, 2018, 12:30:44 am
So what is the legal status of fan projects? F&P in particular complained about the editing tools in SCO that would theoretically allow one to recreate SC2 in the SCO engine. Like I said before, I do not approve of their stance on that, but does it have any legal merit?
Generally speaking, fan mods using pre-existing universes are in fact illegal copyright infringement. The Tolkien Estate, New Line, George RR Martin, etc. could probably shut down any Game of Thrones or LotR mod for various games if they wanted to (whether that would be a good or right thing to do is another question). It just isn't worth the effort and/or fan blowback.

Of course modding tools themselves are common and legal. Far as I know, game companies typically ignore infringing fan material on others' copyrights in mods, so if a copyright holder ever decides to shut a mod down the game maker is safe from liability if they didn't directly associate it with.

To make a judgment on whether Fred and Paul's requests regarding editors and mods are reasonable, I would need to see the text of what they've said and not just Stardock's summary of it. I don't think it's fair to demand actual removal of editors. But if Stardock has directly said "you can make all of SC2 with this", and they have at least come close, that could change things a bit because you could argue the tools were designed specifically for infringement.

I do believe that it would be reasonable for Fred and Paul to at least ask that Stardock not directly promote, aid, or acknowledge any projects using SC1/2 IP. It's one thing for Bethesda to tacitly allow fans to mod Middle-earth into Skyrim and have tools that make it possible; it's another to use that as an official selling point for the game.

Disclaimer: IANAL


Title: Re: Stardock Litigation Discussion
Post by: orzophile on September 12, 2018, 01:37:53 am
The Lanham act 43a is pretty clear. https://www.bitlaw.com/source/15usc/1125.html


You have a ... interesting reading of that act, or even its more recent amendments.

Deceiving someone about the origin of goods is intended to prevent an entity from making sales under the mark of another, eg, selling counterfeit goods, or with a counterfeit name ,or under a deceiving circumstance. I would be floored if your legal team had any preceding jurisprudence preventing a lawful copyright holder from using their own material for a derived work purely based on the notion of a false origin. The infringing party would have to be selling or marketing the derived work as if it was the product of another entity entirely.

I highly doubt Stardock is at any risk of Reiche trying to pass off GOTP as a Stardock product, and in some bizarro world in which he was, the legal remedy to that would be a clear statement of origin and a disclaimer to prevent any confusion.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on September 12, 2018, 05:57:23 am
Given that Stardock has apparently decided that referring to someone else's trademark in a historical nominative fair use way without attribution is perfectly OK, it seems their entire dispute hinges on use of the word sequel.

Quote
...from renowned composers Mason Fisher (Age of Wonders, Eye of the Beholder III: Assault on Myth Drannor) ...

https://www.stardock.com/games/starcontrol/article/490686


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on September 12, 2018, 06:11:51 am
I saw it more as P&F slyly saying that Stardock isn't doing "genuine" Star Control because it doesn't have this laundry list of aliens, so Stardock retorted with a couple of cameos.

While this is a possible interpretation of the GOTP Announcement, I am not sure that it is a reasonable one. PaulReiche has used this sort of language to indicate that his future Star Control game1 would follow SC1 and SC2, but not SC3,2 since long before Stardock arrived on the scene.

Regardless, and more to your point, Stardock did not seem to read this as a sly knock on SCO. Frogboy made the disassociation with SC3 explicit when rebroadcasting the GOTP Announcement on the Stardock forums and on Steam:

Quote
Recently, Paul told me the good news: Activision was going to let him do a true sequel to Star Control II: The Ur-Quan Masters (i.e. Star Control III is not canon for that universe).

Quote
Activision is letting them do their game as a passion project. So it is completely independent and not officially a Star Control game. But for us fans, it is still the sequel to Ur-Quan Masters (as opposed to sC3).

As an aside, contemporaneous statements such as this last one seem to belie any notion that Stardock believed, at the time of Stardock's GOTP signal-boosting campaign, that F&P intended to license any IP from Stardock.3 Instead, phrases like "an independent effort with Stardock's blessing" and "[permitted] unauthorized derivative work" suggest that Stardock was fully aware that F&P were going it alone and that Stardock countenanced F&P's decision. Never mind that, by this point, Stardock had already noisily retained counsel and essentially terminated "friendly" communication between the parties (over disputed interpretations of the 1988 Agreement, no less).


Stardock is bending over backwards to redesign them, so why not let them?

P&F can keep the designs as they are in UQM and refresh them for their sequel.

I thought that Stardock was bending over backwards (https://forums.starcontrol.com/486284/page/15/#3709728) to not use the Classic aliens.  :)

From a legal standpoint, this could only be feasible if the characters at issue were not independently copyrightable. Accolade, at least, appears to have believed that the Classic aliens were copyrightable characters - why else would they have paid4 PaulReiche to license the redesigned aliens featured in SC3 and SC4?

---

[1] I use the term here to refer to a game in the Star Control genre, not to indicate an article whose origin is other than that specified in the text.

[2] Not that PaulReiche necessarily had a choice about this. If he owned (or believed he owned) the copyrights to SC1 and SC2, but only had partial rights to SC3, he might have a hard time releasing a sequel to SC3.

[3] It was, of course, always clear that GOTP would feature the aliens from SC2 (https://twitter.com/draginol/status/917524357773185024).

[4] Paid both in money and in a formal recognition from Accolade that IP rights in both the names (of starships and alien races) and in the characters belonged to PaulReiche.


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on September 12, 2018, 06:22:55 am
But if either of them accepts an IP license from the other, that will probably be viewed as conceding the validity of the licensed IP, thereby estopping any attempt to assert otherwise.  So they both have a substantial disincentive to accept any sort of license from each other.  Maybe the summary judgement hearing will clarify their rights enough to help them reach a deal.

I don't know that the 9th Circuit has come down either way on whether licensee estoppel applies in copyright cases.

It's generally a disfavored position, so I doubt it's keeping anyone at Stardock up at night, but the facts here are unusual enough that I wouldn't be surprised if F&P attempt to advance some sort of quasi estoppel argument (that Stardock, as Publisher, has already conceded the validity of F&P's copyrights) when the time comes.

Licensee estoppel definitely applies in trademark cases, though, so your point is well taken. I imagine that any eventual cross-license agreement will be engineered to settle this dispute once and for all.


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on September 12, 2018, 06:50:18 am
F&P in particular complained about the editing tools in SCO that would theoretically allow one to recreate SC2 in the SCO engine. Like I said before, I do not approve of their stance on that, but does it have any legal merit?

Like Mormont, I imagine that F&P's stance had more to do with discouraging Stardock from engaging in direct (https://forums.galciv3.com/464382/) infringement (https://forums.galciv3.com/465016/) or actively inducing (https://forums.starcontrol.com/471109/page/1/#3586312) others to infringe, rather than a distaste for modding in general.


I do believe that it would be reasonable for Fred and Paul to at least ask that Stardock not directly promote, aid, or acknowledge any projects using SC1/2 IP. It's one thing for Bethesda to tacitly allow fans to mod Middle-earth into Skyrim and have tools that make it possible; it's another to use that as an official selling point for the game.

This one (https://twitter.com/xBBx/status/986600934879965184) is still available, fwiw.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on September 12, 2018, 10:04:40 am

The Maelnum have nothing in common with the Melnorme from SC2. Their histories are different. Their motivations are different. They don’t even have starships.


So no reason to be called Maelnum other than "I can".
 
It's more along the lines of "when old fans see that X race in SCO , they will be elated."

More duped if these are indeed non infringing ones. To be honest, it kind of devalues the alien because people will have expectations. But yes, I agree the name is pointless if it's a completely different alien anyway other than to stir the pot, and gain some more goodwill from the SC2 fanbase. /s


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on September 14, 2018, 02:34:21 am
A few filings on September 11th that don't seem to have been mentioned yet, resulting in https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.60.0.pdf

-P&F have agreed to stop sending DMCA notices until the preliminary injunction motion requested by Stardock has been resolved. This will not be before at least September 21st (Stardock's response deadline), and Stardock have helpfully transparently suggested the courts take their time if they need to.


Title: Re: Stardock Litigation Discussion
Post by: Denning on September 18, 2018, 05:04:57 am
P+F reply is up. Haven't read it closely but it seems to be poorly written


Title: Re: Stardock Litigation Discussion
Post by: orzophile on September 18, 2018, 06:06:40 am
https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.0.pdf  for those interested.


As it relates to DMCA notices against SC:O, it seems unlikely those are really going to be meaningful unless Stardock just outright copies art and characterizations from SC1/2, but I can see not wanting to forego the ability without getting something decent in exchange.

It's too late in the evening for me to dig into the exact rules on injunctions and bonds, but that appears to be the most salient part of the filing.


Title: Re: DMCA notices, request for restraining order filed
Post by: Ariloulawleelay on September 18, 2018, 06:46:35 am
New court filings yesterday shed some light on the temporary disappearance of Stardock's properties from Steam last month.  It was indeed due to a DMCA notice from P&F (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.56.2.pdf), which was then counter-noticed (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.56.3.pdf).  Stardock is now requesting (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.56.0.pdf) a temporary restraining order (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.56.15.pdf) against P&F to prevent them from filing further DMCAs.  The wiki page (http://wiki.uqm.stack.nl/Stardock_Systems_Inc._v._Paul_Reiche_III_and_Robert_Frederick_Ford#Court_Received) had been updated with the new filings.

https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.0.pdf  for those interested.


As it relates to DMCA notices against SC:O, it seems unlikely those are really going to be meaningful unless Stardock just outright copies art and characterizations from SC1/2, but I can see not wanting to forego the ability without getting something decent in exchange.

It's too late in the evening for me to dig into the exact rules on injunctions and bonds, but that appears to be the most salient part of the filing.


Thanks, Denning and orzophile. Usually, I like reading motions together with their oppositions, but I went ahead and read Stardock's recent motion for a preliminary injunction while waiting for the reply to be posted.

I do not have any thoughts about the motion itself - that's F&P's attorneys' job, not mine. Also, I am not sure how real this particular dispute is; if F&P genuinely wanted to meddle with SCO's launch, they would have filed their DMCA take-down notices this week, rather than last month. (Whether one thinks of F&P as free-riders, eager to steal SCO's thunder to prop up their otherwise unmarketable nostalgiaware, or as the real victims, who will eventually be awarded a share of SCO's sales, there is plenty of reason to believe that F&P still do want SCO to succeed.) And while there are a few Star Control-related issues that may impact the motion per se - e.g., the public interest angle previewed by tingkagol and a possible unclean hands argument - many key issues, such as the constitutionality of the DMCA and the appropriateness of injunctive relief, are not particularly germane to this forum.

Having written all that, here are a few things that jumped out at me during my read-through:

The typo in the Notice. I might normally be inclined to ignore something this meaningless, but since NP was happy to call out (former) customers' typos, I will make an exception. As I have noted before, Stardock could have quickly (and quietly) resolved this dispute in confidential arbitration - instead Stardock chose to litigate in public with a timetable that would obviously extend past the arbitrary launch date. Whether SCO is going to be formally released in days or in decades, end-users have already purchased SCO from Stardock, downloaded the program and experienced the allegedly infringing parts of the game. And since no physical distribution is planned, afaik, we do not have to worry about SCO going gold: changes can be made to the package at any time. I have not researched the issue, but I suspect that the formal release date will not matter for any ripeness analysis. (Just for the sake of balance, F&P's legal team made a similarly facepalm-worthy cut-and-paste error in paragraph 25 of their most recent answer.)

Frogboy's customer quotes. It appears that Stardock's online hunt for effective "exhibits" was unsuccessful. I don't know that the judge will care about these (presumably) paid-for out-of-court statements (especially as they follow a well-publicized path to a refund), but none of them are unambiguously requests for a refund because of "the rumored suggestion" that SCO won't be released on time. All could conceivably be read as veiled complaints about Stardock's litigation strategy; if a would-be customer independently evaluated the lawsuit and determined on her own that SCO should never be released, I don't see why that should affect the litigation.

SCO sales predictions. I never really got the point of scattered talk of a "boycott" against Stardock, a firm I understand to be completely under Frogboy's control. Stardock, for its part, is completely unfazed: it is not only publicizing its sales figures and projections for SCO, but it identifies potential pressure points. If there was any concern at all about a boycott, these data would have been kept private.

Citation to Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co. This district court case has been discussed in this forum before - it's the DotA case, which supports F&P's claim to all of the SC1 and SC2 copyrights by applying the rule from the Malcolm X and Innocence of Muslims cases (that a mastermind with creative control over an expressive project can walk away the sole copyright owner) to a videogame. Why is Stardock citing it? Stardock is actually referencing a December 2015 decision in the same case. In the 2015 opinion, the judge explained the test for determining whether a character is entitled to copyright protection; since Blizzard failed to go into enough detail about its own characters (and the allegedly infringing characters) in its pleadings to apply the test, its case was dismissed. But Blizzard was able to clean up its pleadings and come back to the courthouse, setting up the May 2017 ruling addressed here earlier. (This is explained in a March 2018 order, if you'd rather hear it from the judge.)

It may be a little harsh to expect F&P to be able to elucidate specific examples of infringement when Stardock was actively producing new content based on the Classic games during the course of litigation (a couple of purported Stardock employees have admitted as much online), but I suppose that pleading rules are pleading rules. Am I correct that the Arilou and Chenjesu DLC packages - the targets of the DMCA notices - only popped up on Steam ten days after the long-scheduled final pleadings were due?

Of course, there's nothing untoward about trying to avoid litigation by attacking the sufficiency of the pleadings. For example, when Stardock began advertising a standalone expansion called Sins of a Solar Empire: Rebellion, Stardock was sued for trademark infringement by Rebellion Developments, a rival in the industry. (In place of actual confusion among consumers, Rebellion pleaded that one source on the Internet (https://www.youtube.com/watch?v=zGNSLdbfJVk) mischaracterized which company was releasing Rebellion.) By invoking the Rogers test, Stardock was able to "win" that lawsuit without having to deal with an expensive trial. But arguing that even if what F&P allege is true, Stardock should still win the case is substantively different than saying F&P's allegations should be ignored until F&P complete more paperwork. So, let us look at what Stardock says about the ultimate issues here…

F&P's copyrights. Section VII.a should outline the heart of Stardock's defense going forward. But, in thinking that an argument that "Stardock is likely to succeed on the merits in its defense of [F&P's] copyright claims" would actually touch on the merits, I may have set myself up for disappointment, as there is not much here beyond an analysis of threshold issues.

For example, at the bottom of page 19, we reach one of the sections of Stardock's argument I was most anticipating: the discussion of whether the SC1 and SC2 copyrights are owned by F&P or by a group of people - a group which purportedly does not include F&P. In addition to the "mastermind" theory of copyright mentioned above, Ninth Circuit precedent provides that an oral transfer of a copyright license is valid if the oral transfer is later confirmed in writing. And, in general, a third-party infringer cannot challenge a copyright transfer on a technicality when there is no dispute between the original copyright owner and the transferee. Finally, multiple creators working on different aspects of a comic book character can wind up with a joint copyright, which should be enough for F&P's purposes. I was looking forward to getting a sense of how would Stardock overcome these potential hurdles. Instead, we get this:

Quote
However, any such written agreements are invalid and unenforceable, as Defendants attempt to claim rights in works that they do not actually own.

I guess five (legal) minds are better than one, because I don't even understand what argument is being made here. It certainly does not explain what is legally insufficient about the copyright assignment (which may not have even been necessary).

What about another key issue - whether the characters (i.e., individuals, alien races, and memorable ships) from the Classic games are themselves copyrightable? Frogboy has repeatedly alluded to the notion that F&P might only own a copyright as to how these characters were expressed in SC2, rather than a copyright to the characters themselves. Here is Stardock's argument from page 20, with citations to the record (and a reference to the use of Fred's source code, which is, of course, a live issue in the case, if not this specific dispute) removed:

Quote
Furthermore, Defendants are attempting to claim uncopyrightable ideas or concepts in Star Control I and II. As an initial matter, as to Star Control I, Defendants have produced no documents showing they contributed any copyrightable content whatsoever.... Thus, Defendants are left with only their vague claims of partial authorship for "script/screenplay, audiovisual work - lead author" and "production, audiovisual work," but have produced no documentation showing that they made any such contributions to Star Control II. Thus, Defendants' purported contributions (if any) ultimately amount to no more than mere ideas and general concepts often found in space combat games.

This segues directly into a paragraph which asserts (with actual legal support) that game concepts are not protectable under copyright law. But Stardock's entire position seems to be that F&P do not have enough documentation yet (and are therefore claiming only uncopyrightable ideas or concepts?). What happens to this argument if F&P do eventually produce documents (or credible oral testimony) showing that they made such contributions?

The deflection continues onto page 21. Suddenly uncertain whether F&P are only claiming copyright "over mere ideas and general concepts," Stardock avoids addressing the issue head-on:

Quote
But Defendants['] vague allegations, and failure to produce copies of the works claimed, provide no specificity as to what their claim encompass. Without knowing the precise contours of Defendants' claimed expression, it is impossible for the Court to make a determination as to substantial similarity.

I am reminded of rosepatel's simile (http://forum.uqm.stack.nl/index.php?topic=7182.msg78815#msg78815): Stardock is not arguing here that it hasn't done anything wrong, Stardock is instead arguing that it cannot be caught. At least not by the likes of F&P. Stardock's position may well prove correct, but this is not an argument on the merits of the underlying claim.

What's my take-away from all of this as I move on to the opposition? We're looking at a very expensive motion that does not really move the ball forward when it comes to the actual case. Concerns about SCO's vulnerability to DMCA take-downs have animated Stardock's on-line arguments for months; if behind-the-scenes negotiation has been taking place, surely Stardock would have prioritized reaching a preliminary agreement avoid a fight over the release. Not only has no such agreement been forthcoming, but both sides have expanded their named legal teams. The gears keep turning...



EDIT: It appears that the parties have since stipulated to re-open the pleadings, at least through the middle of October. This should allow both sides to correct any perceived deficiencies in the normal course of business - e.g., F&P will be able to add specific, side-by-side allegations of infringement from the various SCO builds - as well as assert newfound claims. (Stardock's attorney has promised aggressive pursuit of "additional remedies" should the case not settle; F&P may want to assert an implied contract claim under state law, or something of that nature.) (Stardock's lawyer has also suggested that some of F&P's claims are no longer pending, so either he's confused, obfuscating, or there's been a partial resolution.)

This also serves to alleviate any concern about the timing of the "Arilou" and "Chenjesu" content packages.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on September 19, 2018, 12:18:19 am
Thanks, Ariloulawleelay. I think that's a good analysis of what we can learn about the case overall, if we use this potential injunction as a preview of what's to come.

As for the injunction itself, it really drives back to the heart of the "original sin" of Paul and Fred. They issued a DMCA to Steam, and Stardock said that was the first blow in the legal battle. (As opposed to, say, Stardock's unauthorized sale of the games in the first place.)

Stardock is saying that P&F shouldn't be allowed to use the DMCA process to unilaterally block Star Control: Origins from coming out. But P&F explain the obvious to the court, that the DMCA process doesn't work that way. It's not a unilateral and automatic takedown, but a message to the digital service provider (Steam) to flag it and review it. The outcome might be that Steam talks to the potential infringer, who says they really honestly truly think they are in the legal right, and then Steam exercises its right to shrugs their shoulders.

Which is what happened.

Quote
a copyright owner has no ability to “unilaterally” “block the online distribution” of any content at all nor is an online service provider that receives a takedown notice required to take the content down nor enjoined from putting it back up.  Rather, they are simply incentivized to remove potentially infringing content until the copyright issues are adjudicated by a Court if they want to take advantage of the safe harbor.  In this way, the DMCA takedown procedure is by no means equivalent to a federal court injunction—if it were, an online service provider would be legally barred from hosting the infringing content.  They are not. Indeed, early in this case Valve elected to keep selling Star Control I and II for months after receiving a DMCA notice from Reiche and Ford.  And Stardock has continued selling preorders of Origins and distributing the infringing beta version and content packs on its own website even after Reiche and Ford served more recent DMCA notices on Valve and Steam.

I think it's really unlikely that Stardock will win this injunction.

I also don't think that's the point of the injunction. I think it's meant to waste everyone's time and money.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on September 19, 2018, 12:57:43 am
I'm also trying to gain insight into the discovery process.

Stardock has repeatedly challenged people (including fans) to say "if there's something infringing in Origins, point to it". Which is a hilarious challenge, since most of us are relying on whatever marketing announcements come up. Which change from month to month, if not day to day.

It sounds like Paul and Fred aren't just trying to get a look at the final build of the game. They also commented that they requested to see "all versions", so even the intermediate builds.

This might be a sort of end-run around the substantial similarity test. "Substantial similarity" isn't a synonym for copying. It's merely how you might prove that someone copied when you have no clue how they actually made something. Nobody can really read a creative person's mind, and so it's impossible to know that they intentionally took big pieces of creativity from some from someone else. Maybe they came up with all this original brilliant stuff, and the similarities are too small to be on purpose. Generally, if you have a stronger similarity, then it's more likely that it was copying, and less likely it was a pure coincidence.

On the other hand, if you get into the earlier builds, then you effectively get to barge in on their creative process. And if you're able to establish that the final character X was a derivative (of a derivative of a derivative) of character Y, then you have a derivative work. And Copyright is supposed to give you the exclusive right to make derivative works. Meaning that only P&F could authorize those characters.

It might be a reach. Marginally better than Stardock insisting on seeing Paul and Fred's emails. But I'd be very curious to see how the sausage was made.


Title: Re: Stardock Litigation Discussion
Post by: kaminiwa on September 19, 2018, 02:56:39 am
My own, much less legally savvy summary of the whole situation: http://crimsoncorporation.org/reasons/

I'm not trying to speak for the community, but the Stardock Q+A has an obvious bias, and the UQM wiki has tried to remain neutral. I wanted a resource I could point people at to give a solid summary of why I've found Stardock's behavior so shameful, and why I won't be buying Star Control: Origins.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on September 19, 2018, 02:58:46 am
This might be a sort of end-run around the substantial similarity test. "Substantial similarity" isn't a synonym for copying. It's merely how you might prove that someone copied when you have no clue how they actually made something.

It's also a test for whether the extent of the copying is actionable, and in that sense forms the basis of one of Stardock's defenses (and Brad's online arguments). I'm not really sure 'Substantial Similarity' is going to be necessary to prove that at least some amount of copying occurred in this case. It was obvious as soon as the alien names were used.

Quote from: https://law.justia.com/cases/federal/appellate-courts/F3/126/70/497885/
...care must be taken to recognize that the concept of "substantial similarity" itself has unfortunately been used to mean two different things. On the one hand, it has been used as the threshold to determine the degree of similarity that suffices, once access has been shown, as indirect proof of copying; on the other hand, "substantial similarity" is more properly used, after the fact of copying has been established, as the threshold for determining that the degree of similarity suffices to demonstrate actionable infringement.



Title: Re: Stardock Litigation Discussion
Post by: Krulle on September 21, 2018, 01:15:51 pm
They have the same name (while it's not outright stated, it's very strongly implied that the Mael-Num and the Melnorme are the same race). And no, I'm sure a missing hyphen won't make a difference.

Finally had the time to hunt down the words of god:
Quote from: http://wiki.uqm.stack.nl/Mael-Num (http://)
   <Deep-Reep> who are the mael num, realy?
    <Fwiffo> The mael num are ancestors of the Melnorme

(it bothered me, so I searched your post and posted the required reference.)


Title: Re: Stardock Litigation Discussion
Post by: Serosis on September 21, 2018, 05:23:01 pm
To be fair, it is from the "mouth" of Paul Reiche, but the fact is the lore was brought to light outside of the copyrighted portion of the game.
Inside the game it was vaguely alluded to but never outright stated.

To us fans it means the Mael-Num are for sure the ancestors of the Melnorme, but to a court of law it's an IRC chat log that has no bearing on the original copyright.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on September 21, 2018, 06:52:21 pm
All the tidbits of information about Potterverse from Mrs. Rowling, which were never published in books or shortstories, are still part of her copyright.
Agreed, this info is very short, and thus a court may decide to ignore it.....
But it may still bolster the circumstantial evidence....
Someone linked a video on the PoNaF forum to youtube, someone playing SC:O, and the story there reminded me extremely of the Androsynth.... Not as fleshed out, but recognizable...
All this hinting at may makes Origins very similar to SC2/UQM. You even get one ship for "free" at the start of the game, if you help someone in the solar system.... A badly equiped Vindicator, plus one alien ship... Hmmm...


Title: Re: Stardock Litigation Discussion
Post by: chaoticgnome on September 21, 2018, 08:41:31 pm
I expect a lot of similarities are going to start filtering out as people play the game.  I noticed from one of the game magazine reviews that SCO has rainbow worlds where you can get access to lots of purple high value resources.

https://static.gamespot.com/uploads/scale_super/172/1720905/3440803-star+control++origins+screenshot+2018.09.16+-+17.22.54.49.jpg

My IANAL is this in a vacuum isn't an infringement, but an example of riding UQM's coattails.  If the location of these worlds is valuable to the Melnorme Maelnum Maelnir and they form some pattern on the starmap, then things get progressively hinkier.


Title: Re: Stardock Litigation Discussion
Post by: Serosis on September 21, 2018, 09:58:03 pm
Someone linked a video on the PoNaF forum to youtube, someone playing SC:O, and the story there reminded me extremely of the Androsynth.... Not as fleshed out, but recognizable...
All this hinting at may makes Origins very similar to SC2/UQM. You even get one ship for "free" at the start of the game, if you help someone in the solar system.... A badly equiped Vindicator, plus one alien ship... Hmmm...

If you're not going to actually look at the story then don't make assumptions about its supposed similarity.

The Tywom ship is a fact, there is no avoiding it. He comes aboard whether you want him to or not.
And then he becomes your on-board navigational adviser. Giving you tidbits of info on select star systems or happenings in certain parts of the Spur.

The Lexites are a true A.I. singularity, twice over, that broke their bonds and melded with a group of humans by the same name.
They do not hate humanity nor do they fear it, in fact they want to help humanity. Which is why they set out on their pilgrimage.

And yes, a badly equipped Vindicator-class vessel. As it's humanity's first attempt at an interstellar craft what are you expecting, hellbore cannons and shiva furnaces?
It's definitely not Ion Bolt guns, storage pods, crew pods, and a fuel tank type similarity.

I expect a lot of similarities are going to start filtering out as people play the game.  I noticed from one of the game magazine reviews that SCO has rainbow worlds where you can get access to lots of purple high value resources.

https://static.gamespot.com/uploads/scale_super/172/1720905/3440803-star+control++origins+screenshot+2018.09.16+-+17.22.54.49.jpg

My IANAL is this in a vacuum isn't an infringement, but an example of riding UQM's coattails.  If the location of these worlds is valuable to the Melnorme Maelnum Maelnir and they form some pattern on the starmap, then things get progressively hinkier.

Rainbow Worlds in SC2/UQM never had purple resources on them. Only radioactives or "orange" resources, and never in extravagantly large quantities like in SCO.
I have the files right in front of me, there's a reference to something called "Rainbow Monoliths", some sort of riddle system not related to the Maelnir.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on September 22, 2018, 05:18:07 am
I've just started playing SCO.

The Arilou are in it, though they haven't identified themselves as "Arilou". They're the same "we've been watching you for a long time" mysterious race of SC2. The BG music is a remixed version of the Arilou music in SC2.
The Arilou also mentioned the Precursors, that they've vanished, that they left technology for us etc....

---I'll get back to playing now...



Title: Re: Stardock Litigation Discussion
Post by: PRH on September 22, 2018, 06:24:57 pm
Meanwhile, Brad's recent declaration (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.66.1.pdf) claims that the 1988 agreement was meaningless from the very beginning, since Paul never owned anything in SC1 or SC2 to begin with, as all rights to SC1 and SC2 apparently belonged to Accolade.

A decades-old conspiracy is finally unraveled!


Title: Re: Stardock Litigation Discussion
Post by: Krulle on September 22, 2018, 06:50:22 pm
@Serosis: I just watched one episode, adn of course that did not go deep into the storyline yet...
I expected that things will differ more later, but the similarities are simply there.
Since I know there's discussion about it I take a closer look, otherwise I would take such things as a hommage to the original storyline.

On top of that, you normally have the Tobermoon with your Vindicator.
Fwiffo comes extra.
(and the ship is pre-named Vindicator in SC:O, so it's not just a Vindicator class, it is THE vindicator.)

And the Arilou?  Well, observing little grey men are not a new thing, so.... But it seems to be another thing that adds up to similarity, even if the copyright for that element would be hard to be defendable by FF/PR...


Title: Re: Stardock Litigation Discussion
Post by: Serosis on September 22, 2018, 08:41:48 pm
On top of that, you normally have the Tobermoon with your Vindicator.
Fwiffo comes extra.
(and the ship is pre-named Vindicator in SC:O, so it's not just a Vindicator class, it is THE vindicator.)

There is a ship you can activate within the Solar System, but it's part of a sub-quest and it doesn't unlock right in the beginning.

And the Vindicator thing is being pedantic. The first vessel of its kind is always named after its class.


Title: Re: Stardock Litigation Discussion
Post by: kaminiwa on September 23, 2018, 02:49:22 am
Meanwhile, Brad's recent declaration (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.66.1.pdf) claims that the 1988 agreement was meaningless from the very beginning, since Paul never owned anything in SC1 or SC2 to begin with, as all rights to SC1 and SC2 apparently belonged to Accolade.

A decades-old conspiracy is finally unraveled!

I've been finding it fascinating that his legal defense seems to boil down to "Paul & Fred never actually had the copyrights", and how much emphasis he places on "there wasn't a written agreement", while completely ignoring the existence of verbal agreements, and the more recent written copyright assignment.

Like, even if all of this is true? Stardock still doesn't own any of that material.

Also amused that they said "oh woe, the defendants refused our offer to preview the game", but it turns out their offer was to let the lawyers review the game for 2 days, on the condition that they then produce a COMPLETE list of all infringements, and promise not to take any legal action against the game until Stardock has had time to decide on and implement any fixes they felt were necessary to resolve this.

So, P&F still aren't allowed to review the game; the lawyers would be attesting that there's no other infringement they missed in those two day (since it's a complete list); Stardock can take it's sweet time dealing with all of this; and Stardock isn't even obliged to do anything beyond "decide" that the issues are spurious and don't need fixing.

Also some hilarious bits about how they couldn't give P&F a pre-release copy because apparently none of the software involved can run without GOG or Steam? Are we really supposed to believe that Stardock's internal development process requires the programmers, QA, etc. to use steam to launch the game while working on it?

Some very beautiful colorful language, though!

To quote Stardock's lawyers: "We hope your clients understand that they are playing with fire here and that the weight of the entire video game industry is about to be dropped on them. There have of course been previous epic copyright disputes between video game producers (the most recent involving Fortnite) and no one has ever pulled a DMCA stunt like the one your clients have engaged in already and have made clear they intend to continue to engage in."


Title: Re: Stardock Litigation Discussion
Post by: orzophile on September 23, 2018, 06:27:50 am
Once this is all over I'd shoulder a hefty bar tab to get some off the record conversation with the people from Nixon-Peabody. That is not some bush-league law firm and I can only imagine the [screams internally] inner-monologue going on over there. That response doesn't even address some of the arguments from the last filing.

For fans of the surreal, we can now smile with Steam going into record as the Walmart of digital game distribution, which is going to be great when it's quoted in some unrelated case in a few years.

This has gone so far into the bizarre that I don't even know how you walk back to sanity from here.

Quote
14. At Paragraph 40 of Mr. Reiche’s Declaration, he alleges that the 1988 License
Agreement could not have been assigned without his consent and that Atari, Inc. and Stardock
never asked for nor received such consent from Mr. Reiche. As alleged in our Second Amended
Complaint, Stardock believes that Reiche never owned the rights to Star Control I and Star
Control II that he purported to license in the 1988 License Agreement, and thus, there was
nothing owned by Reiche to be assigned. So, his consent was not needed even if it was required
(which Stardock disputes).


I'm sure somewhere in human history there have been completely incompetent people who signed contracts to transfer things they didn't own and somehow everyone involved was so oblivious they went right back to the same people and DID IT AGAIN, although what I'm hearing in the back of my mind here is "ocean front property, in Arizona. From my front porch you can see the sea!"

This reads like a copyright version of the knee-capping plot from "I, Tonya" (which differed from the real events in that they made the people seem less stupid)
---

On a side note I'm happy to see that the FDF has jumped over 2000 USD in the last day or two. High five to everybody who helped, or whatever the appropriate number of digits for your species.


Title: Re: Stardock Litigation Discussion
Post by: PRH on September 23, 2018, 11:25:25 am
I'm sure somewhere in human history there have been completely incompetent people who signed contracts to transfer things they didn't own and somehow everyone involved was so oblivious they went right back to the same people and DID IT AGAIN, although what I'm hearing in the back of my mind here is "ocean front property, in Arizona. From my front porch you can see the sea!"

Exactly. Stardock seems to take both Accolade and Atari for complete morons. Well, maybe they didn't care that much about Star Control, given their treatment of the trademark, but am I really supposed to believe that both companies were so utterly clueless that they'd sign a license agreement without bothering to actually check what was being licensed? That they already owned what was being licensed to them, and they had no idea at all?


Title: Re: Stardock Litigation Discussion
Post by: maxius4 on September 23, 2018, 05:12:38 pm
i have played the game from what i have gotten into they nicked the entire sc2 script and cut it up and rearranged it, replaced the aliens, and set it back in time. PR & FF are going to a legal Christmas with this


Title: Re: Stardock Litigation Discussion
Post by: Serosis on September 23, 2018, 07:35:29 pm
i have played the game from what i have gotten into they nicked the entire sc2 script and cut it up and rearranged it, replaced the aliens, and set it back in time. PR & FF are going to a legal Christmas with this

Stunning summary. You bring the script to life good sir.


Title: Re: Stardock Litigation Discussion
Post by: Denning on September 23, 2018, 11:04:58 pm
Once this is all over I'd shoulder a hefty bar tab to get some off the record conversation with the people from Nixon-Peabody. That is not some bush-league law firm and I can only imagine the [screams internally] inner-monologue going on over there. That response doesn't even address some of the arguments from the last filing.

I doubt NP cares at all about the outcome of the litigation or Stardock's consumer goodwill. I imagine they dislike Brad. He seems like a demanding client and his vanity litigation doesn't raise interesting issues. Probably their only concern besides getting paid is papering all of their warnings to Brad and forcing him to provide all instructions in writing.


Title: Re: Stardock Litigation Discussion
Post by: maxius4 on September 24, 2018, 12:56:17 am
i have played the game from what i have gotten into they nicked the entire sc2 script and cut it up and rearranged it, replaced the aliens, and set it back in time. PR & FF are going to a legal Christmas with this

Stunning summary. You bring the script to life good sir.

Yes i know <3 i try my best :-[ but yes many parts of it give you a sense of Déjà vu


Title: Re: Stardock Litigation Discussion
Post by: metamorphosis on September 24, 2018, 03:04:32 am
The strangest thing about this is the claim that F&P didn't create the SC2 universe - sure, they had help. But not the main creators? Please.
I remember a patch update note from the original game (unfindable now, I searched - the sc2 patch is long gone), which stated that accolade tried to find F&P after the game was released for two months, but they'd just 'gone away'. Then, they came back and gave a patch which fixed all sorts of stuff and introduced somewhere between 5-10 new types of worlds, and a bunch of other stuff. They really did 'make' that game.


Title: Re: Stardock Litigation Discussion
Post by: Boerta on September 24, 2018, 04:44:28 pm
It was in a text file bundled with the game


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on September 25, 2018, 01:20:19 am
My own, much less legally savvy summary of the whole situation: http://crimsoncorporation.org/reasons/

I'm not trying to speak for the community, but the Stardock Q+A has an obvious bias, and the UQM wiki has tried to remain neutral. I wanted a resource I could point people at to give a solid summary of why I've found Stardock's behavior so shameful, and why I won't be buying Star Control: Origins.


I try to look at the dispute in terms of discrete analogies.
  • Were the Melnorme (http://draginol.stardock.net/images2018/db6d7bec5844_B51C/image_18.png) developed in a manner similar to the characters in Spawn (https://www.hollywoodreporter.com/thr-esq/spawn-comic-book-todd-mcfarlane-neil-gaiman-286071)?
  • Is the Vindicator like Eleanor (http://www.latimes.com/business/la-fi-garage1mar01-story.html)? What about the Earthling Cruiser (https://draginol.stardock.net/images2018/Star-Control-Origins-Prelude-6-of-14-The_A934/HumanCruiser_Paintings12.jpg)?
  • Was P&F's use (http://wiki.uqm.stack.nl/script/images/2/22/GOTPpost.png) of the "Star Control" mark unlike the trademark use in the so-called "Bourbon War (https://www.courthousenews.com/bourbon-war-waged-in-sixth-circuit/)?"

The bigger moral questions - was it wrong for Stardock to appropriate SC2's hitherto unique depictions of hyperspace (https://draginol.stardock.net/images2016/Star-Control-Screenshot-Friday-2018.5.11_EB30/image_3.png) and rainbow worlds (http://forum.uqm.stack.nl/index.php?topic=7182.msg79400#msg79400)? - don't really factor into my thinking.

I say all that because I don't really see your Case Against Stardock as "less legally savvy;" it's an approach from a different angle, but a no less meaningful one. Thank you for sharing it with us. Ideally, once all of the facts are known, the path of law and the path of justice will converge. Perhaps that will even happen here.

As far as the "new" legal material you linked to goes, I was struck by how... familiar some of the correspondence was.

Quote
[We own] the rights to the title Star Control, and you[, PaulReiche,] own the rights to the classic background material created for Star Control and Star Control 2. This has created confusion.... To help everyone get maximum value out of Star Control, we would like to unify the Star Control license and make a deal where you get a cut of everything...whether it uses the classic background material or not....

We want to include the classic Star Control background as part of the back story in the new [Star Control] game. As we did in Star Control 3, we would also create additional new background material and continue to expand the Star Control universe....

[We get] different advantages from using the Star Control name and the classic background in the new game. In the first place, the name has recognition value with the buyers, press, and consumers. In a crowded market, these busy people might give the game a second look because the remember the name fondly from previous games. In the second place, the classic background has some recognition value with the consumers and press who were fans of the previous games. This can help us generate good word of mouth from a dedicated consumer base.

However [we] already own the rights to the name Star Control. We can get positive name recognition whether we use the classic background material or not. Thus, or main reason to license the classic background material from you is to help create a good initial impression of our game among the Star Control fan base. And our game must be popular far beyond the Star Control fan base to be successful.

Personally, I like the classic background material. I want to watch the future actions of classic races like the Spathi and the Ur-Quan. I think Star Control fans will also enjoy the game more if we can continue to tell these stories.

Quote
I know the [dev] team would like to meet you and Fred, and we would love to show off the new stuff that we're working on.... You could come down late morning, meet the team, share some lunch....

One could be forgiven for thinking that these emails were from Stardock regarding SCO rather than from Accolade regarding SC4. The same goes for PaulReiche's responses:

Quote
Fred and I created Star Control and we own it - its themes, settings, plot lines, characters, its "essence" as an entity unique from any other science-fiction game. SC3 was created with our permission under the terms of our Agreement with Accolade.

Quote
I appreciate your affection for the material and your team's faith in Star Control. This means a great deal to us, as does our games' ongoing fandom. Nonetheless, we think it[']s a better idea for you and your team to move on to an entirely new fiction and style of game, either under the trademark Star Control or an entirely new line.... [T]he Star Control universe has value significant in excess of what you can offer us, and some day we'd like to explore those opportunities.

Unlike the more modern back-and-forth, this exchange resulted in a licensing deal - Addendum No. 3 - wherein the Publisher paid F&P in order to incorporate the classic background material into Starcon. The letters also seem to confirm that the Addendum was intended as a novation with respect to lapsed Sequel rights, as Accolade admitted to needing a license to "make sure Accolade can plan on using the [classic] material in future projects." George MacDonald, speaking on behalf of Accolade, explained that:

Quote
If we don't publish anything with the classic background for three years, the license lapses.
If we don't publish anything with the classic background for three years, we offer to negotiate in good faith to license the Star Control trademark to Toys for Bob when you want to use it.

Quote
If Accolade ever withholds publication of new Star Control products for 3 years, then we [lose] our chain of options and promise to negotiate in good faith so that you can license the Star Control trademark from us.

It also looks as though Accolade drafted Addendum No. 3 and sent executed copies to PaulReiche for his signature. In an attempt to appear legally savvy, I will note that this usually means that any ambiguities in Addendum No. 3 should be construed in favor of F&P.

It is interesting to me, from a litigation standpoint, that had this lawsuit been filed 20 years ago as Accolade v. Reiche, George and Steve would have been key witnesses for the plaintiff. Accolade's entire case likely would have been built around their anticipated testimony. And since Stardock owns, at most, the same rights once owned by Accolade, their testimony could be just as valuable today. (Like much of the testimony and many of the documents from back then, it also might be incontrovertible from Stardock's perspective.) But did Stardock even know that these witnesses existed until reading the discovery responses? Do George and Steve feel any loyalty towards Stardock? Any affinity with F&P?

In the same vein, if Stardock does start laying off members of the dev team, I would take that as a sign that it is throwing in the towel. The last thing Stardock needs is a new crop of potentially hostile witnesses who can explain exactly which elements of SCO are based on prior installments.


Title: Re: Stardock Litigation Discussion
Post by: Mormont on September 25, 2018, 02:13:00 pm
One question for Ariloulawleelay: are these proposals to strike the opposition's declarations just standard legal procedure, as a way of jockeying for as much advantage as possible?

And like I said before, it's really hard to believe everyone involved with the Star Control IP for decades completely misunderstood the legal rights and/or was hoodwinked by Reiche/Ford's cunning schemes (Accolade I'm sure knew quite a bit about SC2's internal development process and who worked on it). Which is what Stardock's narrative requires.


Title: Re: Stardock Litigation Discussion
Post by: Defender on September 26, 2018, 01:20:54 am
i came across this searching background information on brad wardell

https://www.youtube.com/watch?v=mY1Zk7TiPec

to sum it up

"do you, brad wardell, have a license or show us a license, that you own star control?" yes or no?


Title: Re: Stardock Litigation Discussion
Post by: PRH on September 26, 2018, 02:16:23 am
i came across this searching background information on brad wardell

https://www.youtube.com/watch?v=mY1Zk7TiPec

to sum it up

"do you, brad wardell, have a license or show us a license, that you own star control?" yes or no?

Although I'm not Brad Wardell, this question is easy to answer – although the answer depends on what you mean by "owning Star Control".

If you mean the trademark, then yes, Stardock does own it (http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4807:2atw0.2.9), although F&P seek to invalidate it in their counterclaim, since they allege that the trademark was renewed fraudulently back when Atari owned it.

If you mean the copyright, then Stardock owns the copyright to SC3 (except the characters licensed by F&P), and obviously SCO (unless F&P prove that some content in SCO infringes on their copyright). Stardock also apparently owns the copyright to the printed materials that accompanied SC1 and SC2, such as the game manuals and the printed starmap for SC2. Stardock does not own the copyright to SC1 and SC2 themselves, although in their complaint they seek to invalidate F&P's copyrights to the games, since they argue that it was Accolade who developed them, and F&P were simply contractors who held no special claim to the copyright.


Title: Re: Stardock Litigation Discussion
Post by: Defender on September 26, 2018, 02:29:07 am
thank you for the update...man this is such a mess...


Title: Re: Stardock Litigation Discussion
Post by: kaminiwa on September 26, 2018, 03:18:20 am
It gets extra weird because Stardock is claiming that the "Star Control" mark includes "anything the public connects with  Star Control", so (again, according to Stardock), Paul & Fred can't have any aliens called "Orz" or "Arilou" in a space-adventure game, because it would confuse the public.

Stardock also claims that the 1988 agreement is somehow still in effect, despite a clause that terminated it after 3 years without sales, and terminate again upon bankruptcy actions, and a third clause that required Paul & Fred to sign off on any reassignment of the license.


Title: Re: Stardock Litigation Discussion
Post by: PRH on September 26, 2018, 03:40:08 am
Stardock also claims that the 1988 agreement is somehow still in effect, despite a clause that terminated it after 3 years without sales, and terminate again upon bankruptcy actions, and a third clause that required Paul & Fred to sign off on any reassignment of the license.

As we both know, Stardock's claims go further now. They now claim that the 1988 agreement has never been valid to begin with, since, according to Stardock, F&P did not own the copyright they were licensing.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on September 26, 2018, 02:53:43 pm
As we both know, Stardock's claims go further now. They now claim that the 1988 agreement has never been valid to begin with, since, according to Stardock, F&P did not own the copyright they were licensing.

One problem I see with that argument is that §9.2 of the 1988 agreement (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.2.pdf) says:
Quote
To the best of Developer's knowledge, the Work is the property of Developer [...] Developer shall be responsible for all costs arising from legal actions which question or dispute such rights of ownership.
(emphasis added)

The emphasized phrase is probably why Stardock's lawyers are accusing Paul of committing a knowing fraud, because if it was just an honest oversight, the contract isn't breached at all.

And to me (though I'm still not a lawyer), this section would seem to indicate that the parties had already considered the possibility of flaws in Paul's IP claims, and had agreed that if any such flaws existed, they would not negate the contract entirely, but rather would simply make Paul bear the cost of dealing with them.  Indeed, I can't think of why Accolade would want such issues to negate the contract completely, since that would leave them with no license to Paul's work at all.

So IMHO, the implication of other contributors having potentially retained some of the copyrights is that Paul would need to defend Stardock from any suit they might bring.  But since they've now assigned their copyrights to Paul, that is a moot point.



Title: Re: Stardock Litigation Discussion
Post by: Krulle on September 26, 2018, 03:29:23 pm
Problem is, now the legal successor of the publisher causes the legal action, which according to the contract term, the developer must pay for.
So, the developers must bear the costs of the litigant, and of the defendant in this specific case (where the litigant is the legal successor of the publisher, and the defendant the developer), the way I read these clauses.

Quote from: 1988 agreement (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.2.pdf), paragraph 9.2: Rights of Ownership
To the best of Developer's knowledge, the Work is the property of Developer [...]
 Developer shall be responsible for all costs arising from legal actions which question or dispute such rights of ownership.
(emphasis added)

The way Stardock works seems to be a misuse of this clause. No matter if Stardock wins or loses this specific allegation, if the emphasized sentence is allowed by the judge, this will drain the funds of PR and FF even faster.

But I am not a lawyer, and therefore I do not know of precedent cases that disallow such a misuse of contract language.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on September 26, 2018, 03:53:04 pm
Problem is, now the legal successor of the publisher causes the legal action, which according to the contract term, the developer must pay for.
[...]But I am not a lawyer, and therefore I do not know of precedent cases that disallow such a misuse of contract language.

I see where you're coming from, but I have a lot of trouble believing that a court would read this as allowing Stardock to claim that Paul needs to protect it from its own actions, when the clause was pretty clearly written with third parties in mind.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on September 26, 2018, 09:19:55 pm
Yet the contract language is very clear. Any action... I would also find it extremely hard to believe a judge or jury would allow it, but you never know....


Title: Re: Stardock Litigation Discussion
Post by: AusME2 on September 26, 2018, 09:28:36 pm
Okay, lets take that at face value. That could mean,
If Paul and Fred are compelled to pay the court costs
1)Then they should also be responsible for deciding when the litigation is over (unless there is some other clause that allows the publisher to decide on the duration of the lawsuit).
2)Then that should directly deincentive Brad's lawyers since getting the money from them may become difficult after the lawsuit concludes.


Title: Re: Stardock Litigation Discussion
Post by: Lakstoties on September 26, 2018, 11:15:20 pm
The current counts of the current amended claim do not question the ownership of the Star Control 1 and 2 copyrights.  (Strictly trademark related issues and copyright infringement relating to Star Control 3 specific elements.)  Hence, this part isn't applicable in the slightest.  This is a protective measure so the publisher didn't have to spend money settle any disputes that show up with someone contesting ownership of the copyrighted material.  Back in the 80's it was a bit of the wild west when it came to submitting games to publishers and there were a few cases of people in one region of the world submitting material to a publisher in a different region of the world, when they did not have the full rights to do so.  This is what this clause was for.

Also, with written documentation acknowledging ownership from two previous holders of the contract, copyright filings to detail the exact ownership of copyrights for Star Control 2, and multiple parties over the years attesting to the ownership...  This clause is just a historical footnote for the time period the contract was written.


Title: Re: Stardock Litigation Discussion
Post by: kaminiwa on October 01, 2018, 10:17:23 pm
So in the recent court filings, Stardock claims that without Steam or GOG, it's impossible to launch their games:

Quote
Steam and GOG provide the only delivery mechanism for Origins, and if removed from those platforms, access to the game would be eliminated entirely.

- https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.66.0.pdf (Page 5, Line 20)

Quote
Third, Defendants claim even if Origins is removed from Steam and GOG (due to their
DMCA notices) then Stardock will still be able to sell its game from its own website. This is
completely incorrect. Stardock relies on Steam and GOG, not only to distribute but to launch and
operate its games as well. (...)  The Steam and GOG sites do not provide
mere download services; they provide the entire installation infrastructure.
- same doc, Page 18, Lines 18-22

Quote
There is no version of Origins, in other words, that is not dependent on the
online delivery mechanisms provided by Steam or GOG. Origins is developed to be accessed and
played through the infrastructure provided by Steam and GOG.
- same doc, Page 19, Lines 5-7

At first this struck me as perfectly reasonable: you can't launch a Steam game without Steam, right?

Then it struck me as a bit odd that they couldn't make a minor tweak to bypass this - surely their programmers aren't all firing up development copies via Steam?

Then I remembered that GOG is DRM free, and none of the GOG installers I have requires using Gog Galaxy... they're just a stand-alone file that will install the game. This is, in fact, an advertised feature of GOG.

So... presumably there's a stand-alone installer, the same one being sold on GOG, that Stardock could offer for sale on their own website?

(I have not purchased the game on GOG - I mostly use it for old DOS games - so I can't confirm that my understanding of how GOG works is accurate in this case)


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 01, 2018, 11:45:42 pm
I wouldn't read too much into it. It's somewhat normal for both sides to hit them with "everything they have", and list every conceivable factor, even questionable ones. That said, most lawyers usually draw some line at which they are being unreasonable. But I don't think anyone cares enough to die on this hill.


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on October 02, 2018, 02:25:40 am
It's possible that GoG packages the installer for them, but there's literally no reason why they couldn't package an installer themselves if the game is removed from GoG and Steam. If they have DLCs, that might complicate things though; it could be that some significant amount of work would be needed to produce a version they could sell on their own website. Still... it's definitely possible.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on October 02, 2018, 09:41:42 am
The moment the developers have a test version is the moment they have a version they could sell for download.
People aren't stupid enough to be unable to "create a folder wherever you want to install the game, and copy/unpack the files there".

It may not have much securities against copying or parallel downloads by others (as their server would need to get these kind of things first, also potentially their server capacities would have to be extended to be able to cope with the amount of traffic), and they would need to get a payment service, all of this requires quite a lot of work for upgrading their own site, but it is still there.
(And whatever they program themselves for their own servers to sell Origins may not be up to industry standards, but GOG and Steam also started somewhere.)
Question basically is whether Stardock would actually want to go that venue, as it is very easy to outsource this kind of stuff to someone having experience with large traffic volumes, secure downloads, payment options and handling, security around those issues, ... (e.g. GOG, Steam, Facebook, Amazon, Google, Yahoo, ...), instead of having to do all of this yourself.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on October 02, 2018, 03:47:59 pm
Wait, did P&F try to get them kicked off of Steam and GoG entirely? Last I checked, they just demanded to have SC1&2 removed.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 02, 2018, 04:44:01 pm
Last I heard (haven't had time to check lately), Stardock wants an injunction against P&F, so they cannot use the DMCA process to report any Copyright infringing material in SC:O.

Part of Stardock's argument, apparently, is if they get reported on Steam and GOG, then SC:O will become inaccessible.

It's hard to know if P&F are fighting the injunction because they want report SC:O under the DMCA, or they merely want to reserve the right to report some future content that might infringe SC1 and SC2.


Title: Re: Stardock Litigation Discussion
Post by: Sara on October 04, 2018, 10:13:00 am
This is only a bit on topic, but I wanted to give some insight.

Steam's DRM is optional. Games can use it or not use it, and it's not required to use Steam DRM in your game if you want to use the Steamworks API. The DRM is merely a protective executable wrapper.
In games that I have worked on myself, I've managed to remove mandatory dependence on Steam and allow running of games 'DRM-free', while still maintaining the ability to use Steam features when Steam is present.

GOG's installers, on the other hand, are pretty simple. Anyone can make a comparably decent installer using the Nullsoft install system or similar packages. They're surprisingly easy to use and in many cases very flexible.
There is a GOG API that can be used by GOG Galaxy games, but it is by design completely optional, and games using that API can be run without it. Exceptions to that are generally refused by GOG's QA team.

When games are removed from Steam and GOG due to any sort of complaint, they may no longer be purchased, but existing owners do not lose access to them in any way unless the developer intentionally removes it.
That includes games that are removed permanently due to legal issues (for an example, see the copyright-infringing game Motor Rock that was removed from Steam).

However, there is one angle in which it makes a lot of sense: Steam is by far the biggest outlet for sales of PC games right now. GOG comes in as a near second.
If you can't distribute your games on those services, your sales are cut so drastically as to be virtually non-existent by comparison.
Still, their wording is a misrepresentation, even though they have very good reasons to want to avoid losing these outlets.

I hope that I haven't implied any kind of bias in my post here. I'm a frequent reader but it's rare for me to want to speak up.
I'd like to present this information as neutrally and objectively as possible, if I can. I hope I've accomplished that.


Title: Re: Stardock Litigation Discussion
Post by: Mormont on October 09, 2018, 02:01:15 am

Quote
14. At Paragraph 40 of Mr. Reiche’s Declaration, he alleges that the 1988 License
Agreement could not have been assigned without his consent and that Atari, Inc. and Stardock
never asked for nor received such consent from Mr. Reiche. As alleged in our Second Amended
Complaint, Stardock believes that Reiche never owned the rights to Star Control I and Star
Control II that he purported to license in the 1988 License Agreement, and thus, there was
nothing owned by Reiche to be assigned. So, his consent was not needed even if it was required
(which Stardock disputes).


I'm sure somewhere in human history there have been completely incompetent people who signed contracts to transfer things they didn't own and somehow everyone involved was so oblivious they went right back to the same people and DID IT AGAIN, although what I'm hearing in the back of my mind here is "ocean front property, in Arizona. From my front porch you can see the sea!"

This reads like a copyright version of the knee-capping plot from "I, Tonya" (which differed from the real events in that they made the people seem less stupid)

The more I think about this, the more bizarre it gets.

So Stardock's position is that Accolade should be seen as the real developers of Star Control and Reiche and Ford were important but still just two contractors among many, right? That SC1 and SC2 were fundamentally Accolade's games. So somehow, despite Accolade driving the development, Reiche was able to hoodwink Accolade into thinking he had done most or all of the work while Accolade coordinated the team. By this version of things Paul Reiche had an smaller role on Accolade's team than we have been led to believe, maybe the hands-off idea man, but his influence also stretched far enough to bury the team's contributions and fool everyone for decades.

Somehow Accolade developed SC2 while also not knowing enough about SC2's development to figure out Reiche was conning them into thinking he owned the copyright. In all seriousness I would guess Accolade had more firsthand knowledge of the development process and how the team worked than can be produced in discovery 25 years later, by the way (due to lost documents, faded memories, etc).

After Reiche and Ford had gone underground for six (?) months to finish the game, Accolade asked Reiche and Ford to make a sequel to the Star Control game that Fred and Paul didn't make. Later Accolade asked for their permission to make SC3. When a possible SC4 came up, Fred and Paul drove a hard bargain in negotiations. Yet Accolade's lawyers were too incompetent to think of going to the people Fred and Paul had defrauded (for leverage if nothing else) and instead went back to negotiate repeatedly, giving Fred and Paul quite a lot in the final deal.

Indeed, Reiche and Ford fooled their fellow team members badly enough that none of them have come forward with complaints in decades and some are still their friends all these years later. While Fred and Paul did all this, they put a memorable credits sequence into SC2 and have frequently mentioned others' contributions through the years.  

Reiche and Ford also had this all masterminded in 1988 when Reiche fraudulently signed a contract that stole credit for games that hadn't been developed yet.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on October 09, 2018, 03:29:35 am
The more I think about this, the more bizarre it gets.

I think a lot of this is Stardock taking advantage of the fact that P&F lost the presumption of validity on their copyright because they waited so long to register it.  So Stardock is questioning everything because (from their perspective), why not make P&F fight for every inch?

Also, it's important for Stardock to diminish Paul's role in creating the games, because if Paul was the "master mind" behind the game, he is entitled to the rights of being the primary author under the Aalmuhammed (https://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm) precedent.

Also, as Ariloulawleelay noted some time ago, if Stardock can cast enough doubt on P&F being the "Creators of Star Control", then it weakens their trademark fair use defenses for saying that they are.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 09, 2018, 07:04:22 pm
That's the essence of it. That's why the "creators" isn't just a little semantic issue. It's one of Stardock's main legal arguments.

If the real creators are Accolade, or dozens of people who helped make the game, you could argue that they hold the Copyright. Not Paul and Fred.

Paul and Fred creating Star Control adds to the evidence that they're the Copyright holders, and vice versa.

I'm willing to bet the old team will go to bat for Paul and Fred in court (https://twitter.com/ToejamGreg/status/967526760563621888).

If that's established, then Stardock can't just steamroll over P&F by selling the old games (or copying lore and aliens) without their permission. They have some real skin in the game.

It helps give P&F a legitimate right to describe their relationship to Star Control.

Most importantly, it helps give them the legal right to continue the SC1 and SC2 story. Which is maybe the biggest thing at stake.


Title: Re: Stardock Litigation Discussion
Post by: Ferid on October 11, 2018, 04:17:49 pm
You know someone cares when they log into an account they created 9 years ago to post for the first time.

Someone over on Reddit found the Zoq-Fot-Pik, complete with mentions of the Zebranky and Frungy, in the new game. This feels like a very strong infringement on Paul’s copyright - am I wrong?

If I’m not wrong, I was hoping someone here was able to contact/inform them to make sure they’re aware for the pending case.

Here’s the link to the ZFP stuff.
https://www.reddit.com/r/starcontrol/comments/9n94u0/zoqfotpik_in_star_control_origins_minor_spoilers/?st=JN4NEK0E&sh=78a3b7ab (https://www.reddit.com/r/starcontrol/comments/9n94u0/zoqfotpik_in_star_control_origins_minor_spoilers/?st=JN4NEK0E&sh=78a3b7ab)


Title: Re: Stardock Litigation Discussion
Post by: Krulle on October 11, 2018, 08:24:40 pm
IMHO, an interesting find, but not close enoigh to be actually copyright infrinding.
The ZFP in SC2 weren't fleshed out a lot either, but this case I would just take as a referential nod to the original.

The question is though that there are many such nods, and all have been changed quite a lot, and the mass of references may just be too much.

(And as a nod to SC2 it does not really work, as there is no video screen, and too many changes to be a good nod anyway.
This feels like a wanted nod, but not knowing the original and thus butchering the original...)


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 11, 2018, 10:35:29 pm
I think that it is actually very likely that these "Zoq" will be found infringing on SC2's copyright. Let's just count the similarities.

- They are called the Zoq, and they share their homeworld with other sapient races called the Fot, the Pik, and the Zebranky.
- The Zebranky eat the Zoq.
- The Zoq, the Fot, and the Pik all hate the Zebranky.
- The Fot are one-eyed.
- The Zoq, the Fot, and the Pik have a sport called Frungy, which is highly revered in their culture.

The differences are:
- The Zoq, the Fot, and the Pik never banded together.
- The Zebranky still survive.
- Frungy is played by more races than just the Pik, and even the Zoq value the sport highly, rather than despise it.

The Zoq's appearance is clearly different from that of SC2's Zoq, but still reminiscent of them.

Perhaps if these similarities were taken individually, they would not count as copyright infringement. But taken together, I think it's as close as one can possibly get to infringement. And SCO already has a lot of elements that are clearly derived from SC2, the most obvious one being the appearance of hyperspace, the Precursors (who, like SC2's Precursors, are described as large, hairy quadrupeds) and the Maelnir (who, like the Melnorme, have a single trading ship in all supergiant systems - except one, I think, and are interested in buying alien lifeforms).

And yes, I've just confirmed that these "Zoq" are in the game.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 12, 2018, 12:46:52 am
A word is just a word.

Copying a whole character is potential infringement. But also might be small enough to qualify as fair use. Maybe too small to qualify for infringement.

It's when you start taking these different pieces and assembling it together. It's one studio clearly intending to copy another studio's intellectual property without a license.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on October 12, 2018, 01:48:05 am
If the real creators are Accolade, or dozens of people who helped make the game, you could argue that they hold the Copyright. Not Paul and Fred.

A lot of the people who worked with F&P are still friends with them, and even if they weren't, it's not like they have any incentive to try and compete with the original project leaders over a story that all the employees recognized as F&P being the creators of.


Title: Re: Stardock Litigation Discussion
Post by: Serosis on October 12, 2018, 05:22:31 am
The Zoq's appearance is clearly different from that of SC2's Zoq, but still reminiscent of them.

I find this a tad humorous because the image they used for the Zoq and the Pik is a placeholder image they used for nearly all the tertiary races at some point during the Beta.

This guy was everywhere:
(https://i.imgur.com/YhxnQ2F.png)

Also known as "Alien1_128"

Just a small tidbit of info from your friendly neighborhood liver disease.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on October 12, 2018, 03:42:34 pm
Wait, seriously, your name is based off of 'cirrhosis'?


Title: Re: Stardock Litigation Discussion
Post by: Serosis on October 12, 2018, 04:15:26 pm
Wait, seriously, your name is based off of 'cirrhosis'?

Tangentially, yes.

Sort of a behind the scenes Metallica joke from the mid/late-90s where they were talking about how they should go on a "Serosis Tour".
Where Kirk Hammet spelled it "s e r o s i s" and James Hetfield said they should keep it that way because it adds "mystique".
Basically making fun of their reputation as alcoholics.

https://www.youtube.com/watch?v=TpuglZcPaVE&t=23m

Relistening to that I notice that Kirk spelled it "s c e r o s i s", so I must have not heard it right initially or dropped the 'c' for simplicity.
Can't remember.

But basically I wanted a username that was related to Metallica but extremely obscure so no one would immediately recognize it as such.


Title: Re: Stardock Litigation Discussion
Post by: Kwayne on October 15, 2018, 03:56:42 pm
Fun fact: my name is based off of 'queen' ...

I don't like that the ZFP uses placeholder alien portraits. I don't like the idea of using placeholder alien portraits at all.

Let's see if I can do anything to change them.


Title: Re: Stardock Litigation Discussion
Post by: futonrevolution on October 16, 2018, 12:37:54 pm
The complaint and counter-claim were updated, yesterday (10/15/18)

Stardock's amended complaint:
https://www.courtlistener.com/docket/6239751/72/stardock-systems-inc-v-paul-reiche-iii/ (https://www.courtlistener.com/docket/6239751/72/stardock-systems-inc-v-paul-reiche-iii/)

P&F's amended counter-claim, including GOG and Steam:
https://www.courtlistener.com/docket/6239751/71/stardock-systems-inc-v-paul-reiche-iii/ (https://www.courtlistener.com/docket/6239751/71/stardock-systems-inc-v-paul-reiche-iii/)

Pages 12-14 of Stardock's amended complaint have me concerned. Am I reading Paragraphs 40-44 correctly? It appears to me that Stardock is claiming that they already own Ur-Quan Masters.


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 16, 2018, 01:34:46 pm
The complaint and counter-claim were updated, yesterday (10/15/18)

Stardock's amended complaint:
https://www.courtlistener.com/docket/6239751/72/stardock-systems-inc-v-paul-reiche-iii/ (https://www.courtlistener.com/docket/6239751/72/stardock-systems-inc-v-paul-reiche-iii/)

P&F's amended counter-claim, including GOG and Steam:
https://www.courtlistener.com/docket/6239751/71/stardock-systems-inc-v-paul-reiche-iii/ (https://www.courtlistener.com/docket/6239751/71/stardock-systems-inc-v-paul-reiche-iii/)

Pages 12-14 of Stardock's amended complaint have me concerned. Am I reading Paragraphs 40-44 correctly? It appears to me that Stardock is claiming that they already own Ur-Quan Masters.

Stardock has been asserting that they own all trademarks connected to the classic Star Control games since the lawsuit started. Their claim to The Ur-Quan Masters trademark actually sounds plausible, as The Ur-Quan Masters was the subtitle to SC2 back when the game was released, and the 1988 agreement specified quite explicitly that all trademarks connected to Star Control were Accolade's property. Still, Atari allowed this project to be published under the title The Ur-Quan Masters, even though they did not allow it to be published under the title of Star Control II. If Atari really owned both marks at the time (as Stardock claims), that at least implies that they were more willing to let the UQM mark go than they were willing to do the same with the SC mark (IANAL, though).

This new version of Stardock's complaint is notable in that it explicitly asserts that Accolade owned the trademarks to all the characters and alien names from the Star Control games. It also gives the reason why, as they allege, it was the individual authors who owned the copyright to SC1 and SC2, not just Fred and Paul - the authors didn't sign any contracts that transferred the copyright to Fred and Paul, and the copyright to the games was not registered until now (and even then F&P apparently encountered some problems with registering the copyrights, though I can't access the exhibits). However, the current entry for SC2 in the copyright catalog lists (https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=4&ti=1,4&Search_Arg=Star%20Control%20II&Search_Code=TALL&CNT=25&PID=Y2dVoV2edCmX6bLrkMrLTW0dI&SEQ=20181016073002&SID=1) most of the people who worked on SC2 as "authors", and just Fred and Paul as "copyright claimants", and states that the copyright was transferred to them by "written agreement". So, even if Stardock's claims were previously true, are they still relevant today? I guess that F&P need to provide that written agreement as an exhibit. If Stardock won't take F&P's copyright claims to SC1 and SC2 more seriously after that, the court should (though again, IANAL).

As for F&P's counterclaim, I haven't yet noticed any significant differences between the current version of the counterclaim compared to the previous one.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on October 16, 2018, 01:51:17 pm
§40:

They claim to own "the mark THE UR-QUAN MASTERS used in connection with STAR CONTROL II", and further provide prove by attaching a copy of the application form for the separate trademark application. They do not only claim ownership of the mark, but also "title and interest in and to the mark".
They refer to Exhibit G to prove that the mark has been used in connection, and that therefore the mark is solely theirs.

In §41 they extend their claimed rights to trademarks to all "product names/titles, cover art, caharacters (e.g. aliens), alien race names, character names, spaceship names, originally adopted and used by Accolade, Atari and Stardock [...] such as PRECURSORS, FRUNGY, [....]"
In §41, this claim is not based on trademark applications.

(How is Frungy a race name or character name or spaceship name?)

In §42 they affirm their ownership of trademark applications SUPER MELEE, UR-QUAN, and several other race and character (and corporation) names.
Note, that this just affirms that they applied for trademarks, and own the trademark applications. Any decent attorney on the opposite side will just point to the not ownership of granted trademarks, but only owning trademark applications which have been contested and have not been granted yet, and therefore confer only very limited rights.

In §43 they state that FWIFFO, CHMMR and DRUUGE have been confirmed by the trademark office (USPTO) as having no conflicting third party prior rights noted in the examination to be cited against their application.

This leaves aside, that the USPTO basically only searches their own database for conflicting trademarks, or similar trademarks, and does only a very superficial search for other products with those names incldued. They do only a very limited online search for those names online, because online they might be used in a different field, and therefore not suitable to oppose a registryy of a trademark. The trademark examiners of the USPTO do not have the ability to check all open source projects or other uses if they are "similar" to the trademark application.
They rely on third-party observations for this, or on someone filing an opposition against a granted trademark. [edit]
Quote from: Trademark manual of Examining Procedure (https://tmep.uspto.gov/RDMS/TMEP/current#/current/TMEP-700d1e1.html), §704.02
If the examining attorney finds no conflicting marks, but must write to the applicant about other matters, the examining attorney must inform the applicant that no conflicting marks have been found.  This is commonly called the "search clause."
So, even if there are problems with an application, but just no conflicting mark (so "marks" which have never applied for registration), the USPTO employee must write the "search clause" stating that there are no conflicting marks.
Furthermore, Internet citations used by the examining attorney are severely hampered by TMEP 710.01(b). And therefore (and for production requirements), internet searches are the corner examiners love cutting when they need to reach their production targets.
Since I cannot look at the "Exhibits", I cannot see what else the Examining Attorney wrote, and if his report even includes a partial refusal under TMEP §718.02(a).
[/edit]

In §44 they simply define "Stardock Marks" as including the registered trademarks (STARDOCK, STAR CONTROL) and the mass of trademark applications (e.g. THE UR-QUAN MASTERS, FRUNGY, CHMMR, TAALO,...) , therefore mixing it all up, and hoping that someone reading later paragraphs referring to "Stardock marks" confuses the stronger granted marks with the weak applications for marks. A judge reading this will note this, and consider "Stardock Marks" as unproven ownerships and contested, while they actually hope to make readers believe that all marks references with "Stardock marks" are granted and registered federal trademarks.
They imply ownership, but actually it mostly includes "having filed for trademarks".



What concerns me much more, is that this amended complaint is attacking this project as
for this project dangerous are paragraphs §§105 following:
Quote from: Stardock third amended complait (https://www.courtlistener.com/docket/6239751/72/stardock-systems-inc-v-paul-reiche-iii/), §105-106
     105.    Upon information and belief, on August 1, 2002, Reiche and Ford released an open source edition of the source code for the 3DO version of Star Control II, which was and is still currently free to be used and redistributed by the public in a non-commercial context under a GNU General Public License (“GPL”). A true and correct copy of the GPL is attached hereto as  Exhibit Y. The content (i.e., voiceovers, dialogue, graphics, sounds, and music) released in  connection with the source code was and is still currently also free to be used and redistributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 license (“CC License”). A true and correct copy of the CC License is attached hereto as Exhibit Z.

            106.    Upon information and belief, Reiche’s and Ford’s release of the open source edition of the source code for Star Control II under the GPL and CC License was unauthorized and/or invalid because, as alleged herein, Reiche and Ford have failed to establish that they are  the lawful owners of the copyrights incorporated in Star Control II. Thus, the GPL and the CC License are invalid and unenforceable, given that Reiche and Ford did not have the rights to license the copyrights within Star Control II, or otherwise, in the first place.
(highlighting done by me)


[edit]I am not a lawyer, nor do I have any rights to represent any applicants in legal procedures in the US.
Therefore my rambling should be considered to be personal opinions and personal interpretations which may have no value for the reader.[/edit]


Title: Re: Stardock Litigation Discussion
Post by: Pyro411 on October 16, 2018, 02:46:01 pm
What concerns me much more, is that this amended complaint is attacking this project as
for this project dangerous are paragraphs §§105 following:
Quote from: Stardock third amended complait (https://www.courtlistener.com/docket/6239751/72/stardock-systems-inc-v-paul-reiche-iii/), §105-106
      105.    Upon information and belief, on August 1, 2002, Reiche and Ford released an open source edition of the source code for the 3DO version of Star Control II, which was and is still currently free to be used and redistributed by the public in a non-commercial context under a GNU General Public License (“GPL”). A true and correct copy of the GPL is attached hereto as  Exhibit Y. The content (i.e., voiceovers, dialogue, graphics, sounds, and music) released in  connection with the source code was and is still currently also free to be used and redistributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 license (“CC License”). A true and correct copy of the CC License is attached hereto as Exhibit Z.

            106.    Upon information and belief, Reiche’s and Ford’s release of the open source edition of the source code for Star Control II under the GPL and CC License was unauthorized and/or invalid because, as alleged herein, Reiche and Ford have failed to establish that they are  the lawful owners of the copyrights incorporated in Star Control II. Thus, the GPL and the CC License are invalid and unenforceable, given that Reiche and Ford did not have the rights to license the copyrights within Star Control II, or otherwise, in the first place.
(highlighting done by me)

The scary thing is it is a valid possibility as Paul & Fred had obtained a number of copyrights from various parties in April as of this year, so in theory every last copyright holder could have submitted a DMCA take down request which would have essentially killed UQM until Fred & Paul had established they had ownership of the copyrights and/or obtained distribution licenses allowing for said copyrighted material to be included in the open source game release.  At this point, it's just a theory on my part and we'll have to wait and see what the courts say.


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 16, 2018, 02:52:33 pm
The scary thing is it is a valid possibility as Paul & Fred had obtained a number of copyrights from various parties in April as of this year, so in theory every last copyright holder could have submitted a DMCA take down request which would have essentially killed UQM until Fred & Paul had established they had ownership of the copyrights and/or obtained distribution licenses allowing for said copyrighted material to be included in the open source game release.  At this point, it's just a theory on my part and we'll have to wait and see what the courts say.

I think that the important part is that none of them did submit a DMCA notice for the UQM project, even if they could. :)

And if the current copyright registration for SC2 is valid, then none of this matters now (though again, if all of SC2's authors agreed to transfer the copyright to their material to Fred and Paul, this only confirms that the actual authors of the game see F&P's copyright claims as valid).


Title: Re: Stardock Litigation Discussion
Post by: Pyro411 on October 16, 2018, 03:19:09 pm
The scary thing is it is a valid possibility as Paul & Fred had obtained a number of copyrights from various parties in April as of this year, so in theory every last copyright holder could have submitted a DMCA take down request which would have essentially killed UQM until Fred & Paul had established they had ownership of the copyrights and/or obtained distribution licenses allowing for said copyrighted material to be included in the open source game release.  At this point, it's just a theory on my part and we'll have to wait and see what the courts say.

I think that the important part is that none of them did submit a DMCA notice for the UQM project, even if they could. :)

And if the current copyright registration for SC2 is valid, then none of this matters now (though again, if all of SC2's authors agreed to transfer the copyright to their material to Fred and Paul, this only confirms that the actual authors of the game see F&P's copyright claims as valid).

It's not always as cut and dry as that, they may have extended a distribution license, they may have sold or surrendered the copyrights seeing them as not of high value to themselves, it's hard to say without getting the whole picture drawn out.

Paul and Fred are going to have to prove every scrap of copyrighted material is under their control to prove the open source license is valid either now or when possibly when released as open source.  -- Yes ugly stuff, and no matter how much we scream on walls it'll come down to the court to determine everything.


Title: Re: Stardock Litigation Discussion
Post by: kaminiwa on October 16, 2018, 04:53:27 pm
Paul and Fred are going to have to prove every scrap of copyrighted material is under their control to prove the open source license is valid either now or when possibly when released as open source.  -- Yes ugly stuff, and no matter how much we scream on walls it'll come down to the court to determine everything.

Is that actually the case? I would think the license is presumed valid until a copyright holder makes a claim against it. Since Stardock doesn't have any claim to the copyrights, and none of the original authors have ever opposed the project, it doesn't seem like there's any need for the court to make a ruling on that issue. It's not the business of the courts to go around enforcing other people's copyrights unprompted.

The trademark issue seems much more relevant, but it still seems like this mostly works against Stardock: if the trademarks are valid, UQM's use of them for 16 years seems like grounds to invalidate the trademark for failure to defend it. Even if P&F had "unclean hands" when they created the UQM, the current maintainers don't.

(I'm not a lawyer; feel free to correct me if I'm wrong.)


Title: Re: Stardock Litigation Discussion
Post by: Elestan on October 16, 2018, 05:00:46 pm
the 1988 agreement specified quite explicitly that all trademarks connected to Star Control were Accolade's property.

You're missing an important caveat:  The 1988 agreement only says that for marks that were "used in the marketing of the Work".  The alien names weren't used to market the game, and even the "Ur-Quan Masters" subtitle couldn't be seen until the consumer had already bought, installed, and started the game.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on October 16, 2018, 07:11:28 pm
Hence I want to know what exhibit G shows...
A screenshot at that time was not marketing...


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on October 16, 2018, 09:55:38 pm
Hence I want to know what exhibit G shows...
A screenshot at that time was not marketing...

Almost certainly the same exhibit G as in the July second amended complaint (https://drive.google.com/file/d/1Yd0zHSunnBtsZwcf3vzwexhDA8qrRBJ8/view) - screenshot of the title & subtitle screen, the probably copyright infringing steam store page for SC:II, and P&F's introduction to the Role Playing Resource Guide.




Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on October 16, 2018, 10:42:45 pm
Paul and Fred are going to have to prove every scrap of copyrighted material is under their control to prove the open source license is valid either now or when possibly when released as open source.  -- Yes ugly stuff, and no matter how much we scream on walls it'll come down to the court to determine everything.

If SC2 is a joint work, which seems most likely, P&F need only prove they contributed something copyrightable. That gives them (and every other author) copyright in the whole work, and the open source licenses (being non-exclusive) are valid.

Stardock needs SC2 to be a collective work, in which P&F own only what they created themselves, or nothing at all, otherwise most of the case falls apart. On the trademark side, they need in game use to count as use in commerce, which seems highly improbable.


Title: Re: Stardock Litigation Discussion
Post by: vok3 on October 17, 2018, 01:17:25 am
This is not exactly a surprising move by Stardock but it is equal parts depressing and despicable all the same.

I sincerely and deeply regret every single word I ever wrote or spoke in defense of Brad Wardell. I utterly misjudged the man. He's a criminal and a thief, nothing more.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 17, 2018, 02:33:41 am
It looks like the entire team is going on the record that P&F are the Copyright holders. At least, that's my read of this, and assuming P&F aren't doing something stupid and fraudulent.

https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.71.7.pdf


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on October 17, 2018, 03:50:58 am
Paul and Fred are going to have to prove every scrap of copyrighted material is under their control to prove the open source license is valid either now or when possibly when released as open source.  -- Yes ugly stuff, and no matter how much we scream on walls it'll come down to the court to determine everything.

If SC2 is a joint work, which seems most likely, P&F need only prove they contributed something copyrightable. That gives them (and every other author) copyright in the whole work, and the open source licenses (being non-exclusive) are valid.

Wouldn't Stardock love that? Then they'd only need one author to grant them a license to use the whole thing. Assuming they could find one who was willing to.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on October 17, 2018, 03:57:08 am
If SC2 is a joint work, which seems most likely, P&F need only prove they contributed something copyrightable. That gives them (and every other author) copyright in the whole work, and the open source licenses (being non-exclusive) are valid.

Wouldn't Stardock love that? Then they'd only need one author to grant them a license to use the whole thing. Assuming they could find one who was willing to.

I would be shocked if Stardock didn't attempt long ago to induce the other members of the SC2 team to assign or license their copyrights to Stardock, instead of to P&F.


Title: Re: Stardock Litigation Discussion
Post by: futonrevolution on October 17, 2018, 04:03:51 am
I would be shocked if Stardock didn't attempt long ago to induce the other members of the SC2 team to assign or license their copyrights to Stardock, instead of to P&F.
I would love to have seen their attempts to contact Erol Otus. I think that he only accepts letters from carrier pigeons or c/o Paul Reiche III.


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 17, 2018, 06:07:42 am
It looks like the entire team is going on the record that P&F are the Copyright holders. At least, that's my read of this, and assuming P&F aren't doing something stupid and fraudulent.

https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.71.7.pdf

That's exactly the same copyright catalog entry that I was trying to link to (apparently you can't have permanent links to the catalog's entries). Note that it lists most of SC2's team as "authors", and just Fred and Paul as "copyright claimants". As I said, it would be great if the written agreements that presumably transferred the copyright to Fred and Paul were also presented as an exhibit. If that wouldn't put the copyright dispute to rest, I don't know what would.

By the way, I've just noticed that F&P are now suing GOG and Valve along with Stardock, for continuing to sell SCO. That (to my non-lawyer perspective) may leave F&P in a more vulnerable position, as GOG and Valve, too, may sue them in return, and it's certain to antagonize SCO players.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on October 17, 2018, 09:26:55 am
They had to counter-sue valve/steam and GOG in combination with the DMCA takedown notice.
Especially GOG knew through previous arrangements the split copyright/trademark situation, even if it was long ago that Accolade told GOG to take down the games again, and then GOG entered into separate licenses for the game content and the trademark....

Anyway, this seemed like a necessary step, even if Stardock remains the main target, and GOG and Valve/steam are fringe copyright infringers....
Their case will be decided in the Stardck case anyway....
If Stardock wins, they consequently win too. If Stardock looses, they'll get their damages back from Stardock, as Stardock told them the DMCA takedown notice was faulty and/or fraudulent, on which they put the games back up, and transfers any damages or costs happening to them to Stardock.
I'm sure they know these cases, and rather lean back and have Stardock's attorneys do the work, and theirs just observe the case.

Neither Valve/steam nor GOG will loose much money in this case. Only future sales if the games have to be taken down and stay down.


Title: Re: Stardock Litigation Discussion
Post by: futonrevolution on October 17, 2018, 01:30:07 pm
By the way, I've just noticed that F&P are now suing GOG and Valve along with Stardock, for continuing to sell SCO. That (to my non-lawyer perspective) may leave F&P in a more vulnerable position, as GOG and Valve, too, may sue them in return, and it's certain to antagonize SCO players.

If GOG and Valve decide, ahead of the trial, that it's not worth the hassle, remove SC:O, and stop waffling about whether to keep selling the trilogy... then, well, Stardock has argued in earlier court documents that it would be impossible to continue, if that happens. They could emulate Digital Homicide even further, by suing Valve, I suppose.


Title: Re: Stardock Litigation Discussion
Post by: Death 999 on October 17, 2018, 04:36:54 pm
Wait, on what basis are P&F trying to stop sale of SCO? I thought the infringing stuff was gone.


Title: Re: Stardock Litigation Discussion
Post by: orzophile on October 17, 2018, 04:50:36 pm
Well this really has worked out in just about the most dire way possible for essentially everyone involved. I'm not sure I can get behind the legal and other reasoning behind trying to DMCA takedown SC:O versus petitioning for damages based on the use of characterizations and such from SC/SC2, but Stardock may have committed multiple acts of fraud at this point in their trademark applications ... historically the USPTO has not been aggressive on that but it's not a good look for them.



Title: Re: Stardock Litigation Discussion
Post by: Elestan on October 17, 2018, 04:54:06 pm
Wait, on what basis are P&F trying to stop sale of SCO? I thought the infringing stuff was gone.

There may still be some parts that could be argued over (apparently the ZFP have a cameo, and the "Watchers" are the Arilou by another name).  But I think the issue now is that Brad has repeatedly said that he intends to use the SC2 aliens in future DLC, and has actually put some of them in at various points, so even if SC:O isn't currently infringing, it's not unreasonable to conclude that he'll continue to push that boundary unless a court ruling makes him back off.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 17, 2018, 05:43:39 pm
When Stardock started re-selling the classic games, they bundled it as "Star Control: The Ur Quan Masters".

Stardock also went to GOG to actively rename the bundle. GOG complied.

You have to imagine, with the Ur Quan Masters trademark at stake, GOG might be doing immeasurable damage to this project, let alone Paul and Fred. After all, if Stardock is able to use those illegal sales to justify their UQM Trademark, then GOG would be complicit in Trademark infringement.

GOG had already negotiated permissions to sell the classic games from Paul and Fred, back in 2011. Changing the name of the sale, without consulting them, is at least bad form, if not an outright breach of the agreement.

This drives right into the purpose of the DMCA. Way back in the day, people wanted to be able to sue Google, or Steam, or (throwback alert) Napster, if people use their platform to distribute Copyright infringing material. The DMCA basically says -- if you're Steam, you just need to create a process to ask for a takedown of infringing material, and a process to contest that takedown, and then you can wash your hands of it. You just say "hey, I'm not getting in the middle of this, it's between Stardock and P&F now." This is often called the "safe harbor" of the DMCA, to protect digital service providers such as stores.

The stores have potentially voided the "safe harbor" defense. For one, GOG's legal department fully talked to P&F in 2011 about the exact same issue. And for two, the DMCA protects Steam and GOG from Copyright infringement, but not Trademark infringement, which is what a game called "The Ur Quan Masters (https://www.pcgamer.com/early-90s-space-strategy-games-star-control-1-2-land-on-steam/)" would infringe.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on October 17, 2018, 11:43:27 pm
Wait, on what basis are P&F trying to stop sale of SCO? I thought the infringing stuff was gone.
Haven't read that passage in detail.
Is it really about SC:O, or about the classic games?
The SC:O stuff I thought was put on the long bench, until the court decided whether it could be considered to be a derivative work....

And IIRC, they only delayed the takedown, as they won't request a speedy takedown which would really harm sales, they're just awaiting the normal court procedure outcome.


[edit]
found something, and it seems to have to do with GOG selling SC2:UQM on request of Stardock, and GOG breaching the Ford-GOG contract (because Stardock claimed the GOG/Ford agreement has expired on 22 March 2015).
§ 152 and following of the 2nd amended counterclaim (https://www.courtlistener.com/docket/6239751/71/stardock-systems-inc-v-paul-reiche-iii/ (https://www.courtlistener.com/docket/6239751/71/stardock-systems-inc-v-paul-reiche-iii/))
Basically they also consider this to be trademark infringement of Reiche's "THE UR-QUAN MASTERS" mark, as Atari never used it for sales, and GOG and Stardock are using it fraudulently with questionable proof of use in marketing.

§160 and following is about "Reiche and Ford’s Notices & Valve’s & GOG’s Continued Intentional & Willful Infringement"
These do touch SC:O, as it is about "fleet battles", and the Arilou and Chenjesu DLC packs.
In §161 the SC:O is attacked as infringing Reiche's and Ford's copyrights, because it includes the previously contested "fleet battles".


They do request the court to decide that SC:O (as a whole) is substantially similar and infringes on the copyright of Paul/Reiche, but they do not request a speedy takedown decision. Just a normal court decision.


[more edits]
They do request preliminary and permanent injuctions against SC:O. (several "course of action"s)
And they request being the sole owners of the "THE UR-QUAN MASTES" commom law mark they've been using permanently since at least 2002, and therefore the right to be awarded said mark as a registered trademark. (§§179-186)

Ninth cause of action, §§ 205 and following: "(Fraud – Against Stardock and GOG)" is also very interesting...
as is the TENTH CAUSE OF ACTION (§§215 and following)  "(Breach of Contract – Against GOG)"

In the "prayer for relief" there is no mention of  GOG or Valve/steam directly, oonlyt Stardock is mentioned. Requests against all counter-defendants to award damages, costs, punitive damages,... based on accounts, profits, earnings, compensations, and benefits...
So, if Stardock loses, Steam and GOG might have to pay everything they earned to Reiche/Ford as well, but based on Stardock's alleged actions, this would lead Valve/steam and GOG to knock on Stardock's door to get the money for provided services anyway.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on October 18, 2018, 02:47:24 am
Wait, on what basis are P&F trying to stop sale of SCO? I thought the infringing stuff was gone.

The allegations against SC:O itself (trimmed a little, §128-136 (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.71.0.pdf) for full text):

  • Hyperspace travel in Star Control: Origins looks and sounds virtually identical to how it looks and sounds in Star Control II.
  • The main ship in Star Control: Origins is called Vindicator, just like in Star Control II.
  • Some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou
  • Star Control: Origins refers to the police force as “Star Control,” which is part of the lore from Reiche and Ford’s Star Control Games
  • The starbase commander in Star Control:Origins is called Commander Hayes, just like in Star Control II.++
  • Star Control: Origins refers to characters called “Precursors” ... the exact same name and backstory ... of the “Precursors” characters in Star Control I and II
  • Dnyarri ...  again is an alien species from Star Control II with the exact same name and backstory
  • Many of the planet types in Star Control: Origins have identical names to planet types in Reiche and Ford’s Star Control Games.
  • Players of Star Control: Origins search for Tzo Crystals ... just like in Reiche and Ford’s Star Control Games.

++Does not appear to be accurate.

I think that only the characters (alien races) have a chance of being found as protectable / infringement, but there is plenty of evidence of copying.


Title: Re: Stardock Litigation Discussion
Post by: orzophile on October 18, 2018, 02:50:25 am
In the "prayer for relief" there is no mention of  GOG or Valve/steam directly, oonlyt Stardock is mentioned. Requests against all counter-defendants to award damages, costs, punitive damages,... based on accounts, profits, earnings, compensations, and benefits...
So, if Stardock loses, Steam and GOG might have to pay everything they earned to Reiche/Ford as well, but based on Stardock's alleged actions, this would lead Valve/steam and GOG to knock on Stardock's door to get the money for provided services anyway.

Having read through a bunch more of this, it occurred to me that while it's difficult to get yourself into criminal penalties for trademark infringement due to the way the Lanham act and its various successor amendments are written without really going out of your way, the same is not true for copyright infringement. Stardock's legal filings and insistence on continuing with the sale of SC/SC2 via Steam and GOG may actually qualify as "willful" which means this strategy may have opened themselves to criminal penalties independent (and potentially disastrously more severe) that any civil liability or actual losses/cost they'd owe to Valve, GOG, and Reiche.

It's unclear if the court would have any reason to pursue criminal penalties, but if Stardock loses on some of these points and their actions are determined to include fraud, this whole debacle may end up backfiring on them spectacularly.


Title: Re: Stardock Litigation Discussion
Post by: Mormont on October 18, 2018, 03:06:20 am
In the "prayer for relief" there is no mention of  GOG or Valve/steam directly, oonlyt Stardock is mentioned. Requests against all counter-defendants to award damages, costs, punitive damages,... based on accounts, profits, earnings, compensations, and benefits...
So, if Stardock loses, Steam and GOG might have to pay everything they earned to Reiche/Ford as well, but based on Stardock's alleged actions, this would lead Valve/steam and GOG to knock on Stardock's door to get the money for provided services anyway.

Having read through a bunch more of this, it occurred to me that while it's difficult to get yourself into criminal penalties for trademark infringement due to the way the Lanham act and its various successor amendments are written without really going out of your way, the same is not true for copyright infringement. Stardock's legal filings and insistence on continuing with the sale of SC/SC2 via Steam and GOG may actually qualify as "willful" which means this strategy may have opened themselves to criminal penalties independent (and potentially disastrously more severe) that any civil liability or actual losses/cost they'd owe to Valve, GOG, and Reiche.

It's unclear if the court would have any reason to pursue criminal penalties, but if Stardock loses on some of these points and their actions are determined to include fraud, this whole debacle may end up backfiring on them spectacularly.
To pursue criminal penalties the state/federal prosecutors would need to open up their own separate case against Stardock, right? I guess you know how that works better than me, but it seems unlikely unless they find Stardock's offense so egregious an example needs to be made. Well, ti does seem pretty egregious to me, but I'm biased as a fan.

To be fair they did remove SC1/2, sometime in spring I think (at the time I hoped it augured a settlement)...is that still enough of a delay to show bad faith? What about Stardock's filing strengthens the case for "willful" infringement, are their arguments against Fred and Paul's copyright ownership just that strained?


Title: Re: Stardock Litigation Discussion
Post by: orzophile on October 18, 2018, 04:06:47 am
To be fair they did remove SC1/2, sometime in spring I think (at the time I hoped it augured a settlement)...is that still enough of a delay to show bad faith? What about Stardock's filing strengthens the case for "willful" infringement, are their arguments against Fred and Paul's copyright ownership just that strained?


All their efforts to express use in commerce of various SC-related names, images, ideas, etc, if found to be fraudulent as opposed to simply invalid, when combined with filing DMCA counter-notices on material they knew they never really had rights, shows a prolonged and deliberate effort to infringe on copyrighted material. The district court has the authority to stay a civil case in favor of criminal proceedings but I'm honestly having trouble finding any sort of analogous precedent as so much of this case is just absurd.

Just for the record I don't think it's likely or desirable to have such a thing happen, it was just something that popped into my head looking at the lengths Stardock went to trying to establish "use in commerce" for marks related to copyrighted material they clearly do not own.


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on October 18, 2018, 05:16:57 am
I don't like that the ZFP uses placeholder alien portraits. I don't like the idea of using placeholder alien portraits at all.
It seems entirely possible to me that that portrait was always intended to be ZFP and was just used as a placeholder for other aliens because every alien needs a portrait for things to work properly.


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 18, 2018, 12:46:37 pm
The allegations against SC:O itself (trimmed a little, §128-136 (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.71.0.pdf) for full text):

  • Hyperspace travel in Star Control: Origins looks and sounds virtually identical to how it looks and sounds in Star Control II.
  • The main ship in Star Control: Origins is called Vindicator, just like in Star Control II.
  • Some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou
  • Star Control: Origins refers to the police force as “Star Control,” which is part of the lore from Reiche and Ford’s Star Control Games
  • The starbase commander in Star Control:Origins is called Commander Hayes, just like in Star Control II.++
  • Star Control: Origins refers to characters called “Precursors” ... the exact same name and backstory ... of the “Precursors” characters in Star Control I and II
  • Dnyarri ...  again is an alien species from Star Control II with the exact same name and backstory
  • Many of the planet types in Star Control: Origins have identical names to planet types in Reiche and Ford’s Star Control Games.
  • Players of Star Control: Origins search for Tzo Crystals ... just like in Reiche and Ford’s Star Control Games.

++Does not appear to be accurate.

I think that only the characters (alien races) have a chance of being found as protectable / infringement, but there is plenty of evidence of copying.

Since I have played SCO, I've decided to analyze it point by point.

Quote
128. Stardock, Valve, and GOG recently began selling a new version of Star Control: Origins, including Fleet Battles, that is substantially similar to and/or derived from Star Control II, again without Reiche and Ford’s permission and in violation of their copyrights. Indeed, Stardock has described Star Control: Origins as a “reboot” of or “prequel” to Star Control II.

The part about SCO having been described as a "reboot" and a "prequel" is correct, though I don't know if Stardock is still going to describe SCO as a "prequel". I have no opinion about whether anything in the Fleet Battles mode constitutes copyright infringement. The appearance of the Earthling Cruiser (which is now called the Terran Cruiser) has been changed for SCO's release to look less similar to the classic Earthling Cruiser. I don't think that the new appearance should count as "substantially similar", or the classic Cruiser would also be in trouble, with its appearance having been obviously derived from that of Star Trek's Enterprise.

Quote
129. For example, players of Star Control: Origins start from earth and travel to and explore new stars and planets and encounter various alien species via hyperspace travel, just like in Star Control I and II. Hyperspace travel in Star Control: Origins looks and sounds virtually identical to how it looks and sounds in Star Control II.

"Starting from Earth and traveling to and exploring new stars and planets and encountering various alien species via hyperspace travel" definitely counts as a generic theme, which is not copyrightable. It is true that hyperspace travel in SCO looks virtually identical to that in SC2. As for how it "sounds", Stardock has acquired a license to the music of Riku Nuottajärvi (and Dan Nicholson).

Quote
130. The main ship in Star Control: Origins is called Vindicator, just like in Star Control II.

This is true, though I'm not sure what it could mean from a legal point of view.

Quote
131. As Wardell promised, some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou as detailed above.

This is definitely true for some species, though the species previously referred to as the Arilou is no longer called that in-game. Their similarity to the Arilou can still be attributed to drawing on the same generic themes.

Quote
132. Star Control: Origins refers to the police force as “Star Control,” which is part of the lore from Reiche and Ford’s Star Control Games, and the starbase commander in Star Control: Origins is called Commander Hayes, just like in Star Control II.

I don't think it's accurate to call Star Control the "police force" either in SC2 or SCO, but otherwise it's true. SCO's Commander is also no longer called Commander Hayes, she's now called Commander Skyla.

Quote
133. The backstory of Star Control: Origins refers to characters called “Precursors” as an ancient, advanced alien species that explored the universe 250,000 years ago but then vanished, which is the exact same name and backstory (even the exact same number of years in the past) of the “Precursors” characters in Star Control I and II, and an important part of the plot of the game.

This information is also out of date. The Precursor starbases in SCO mention the Precursors disappearing around 205,000 or 200,000 years ago. However, there is other information on SCO's Precursors that does strike me as obviously derivative of SC2's Precursors - namely, them being described as large, hairy (or even "shaggy") quadrupeds.

Quote
134. Another alien race referred to in Origins is the Dnyarri, who are described as having rose to power and dominated the galaxy 20,000 years ago, which again is an alien species from Star Control II with the exact same name and backstory (again even down to the number of years in the past).

While this has indeed been mentioned in SCO's pre-release material, I haven't yet found any references to the Dnyarri in the game itself.

Quote
135. Many of the planet types in Star Control: Origins have identical names to planet types in Reiche and Ford’s Star Control Games.

This is correct.

Quote
136. Players of Star Control: Origins search for Tzo Crystals and earn or collect resource units to exchange for things, just like in Reiche and Ford’s Star Control Games.

The part about Tzo Crystals is correct (though SCO now spells them as "TZO Crystals"). As for "earning or collecting resource units to exchange for things", this is once again a generic theme, which is not copyrightable.


Title: Re: Stardock Litigation Discussion
Post by: futonrevolution on October 18, 2018, 01:45:21 pm
This is definitely true for some species, though the species previously referred to as the Arilou is no longer called that in-game. Their similarity to the Arilou can still be attributed to drawing on the same generic themes.

The generic "Gray" aliens that were cited as being what the Notarilou are based on do not have crystals in their foreheads or have an antagonistic relationship with extra-dimensional predators. Or speak, for that matter.


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 18, 2018, 02:05:56 pm
The generic "Gray" aliens that were cited as being what the Notarilou are based on do not have crystals in their foreheads or have an antagonistic relationship with extra-dimensional predators. Or speak, for that matter.

The Arilou don't have crystals in their foreheads either. The backstory of SCO's Mysterious Aliens does have some similarities with that of the Arilou, but I don't think it's "substantially similar" enough to constitute copyright infringement, based on what SCO has shown so far. However, if Stardock insists on presenting them as an "alternate version" of the Arilou, there will most likely be problems.


Title: Re: Stardock Litigation Discussion
Post by: futonrevolution on October 18, 2018, 04:34:10 pm
They were presented as being Arilou in promotional material to sell the game.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 18, 2018, 04:39:44 pm
There are different levels of analysis. You could compare the Arilou between SC2 and SCO to look for substantial similarity, or compare the Melnorme, and look at each character as an individual creative work. Or you could compare SC2 and SCO as a whole -- in which case, finding several equivalencies across several characters (and the larger setting) might add up to substantial similarity.

The last piece of the puzzle: Copyright protects your exclusive right to make derivative works. The kind of thing you'd issue a license for. And P&F are arguing that SCO is "substantially similar and/or derived from from Star Control II". There's some ambiguous case law here, but "derived from" is a firm question of fact, compared to "substantial similarity". Literally, are there enough breadcrumbs to show that Stardock derived SC:O from SC2? There is relevant evidence outside the work itself, including all the times Stardock asked for a license (and was refused), and all the ways Stardock stated their intentions to recreate significant characters and other pieces of SC2 in SCO.

Stardock has done enough copying that the case for Copyright infringement can't be dismissed. But where the line is exactly drawn -- and whether Stardock crossed the line -- will be up to the courts.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on October 18, 2018, 10:13:44 pm

Quote
131. As Wardell promised, some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou as detailed above.

This is definitely true for some species, though the species previously referred to as the Arilou is no longer called that in-game. Their similarity to the Arilou can still be attributed to drawing on the same generic themes.


No longer being called Arilou is a vast difference from never being called Arilou in the first place (and in any case the Arilou DLC clearly naming them as such was still available on launch day (https://web.archive.org/web/20180921202530/https://www.stardock.com/games/starcontrol/store)). One is somewhat plausibly independent. The other is clearly derivative to anyone familiar with the source material. But is it apparent to an unbiased Arilou observer?


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 19, 2018, 08:46:54 am
The inclusion of the ZFP and Zebranky in SCO, as well as F&P having sued Valve and GOG,  is also being discussed (https://forums.starcontrol.com/491651/zebranky) on SCO's forum. One post by Brad is particularly notable:

Quote
Broadly speaking, I am hopeful for a resolution where the sc2 related creatives strictly go to them and they stop trying to use/take the Star Control trademark and stop trying to interfere with our game. I think that’s the cleanest solution.

I think this is precisely the solution we are all hoping here for. This was exactly the solution proposed in F&P's March 22 settlement agreement. So why exactly hasn't this happened yet, damn it? I really hope it's only about the differences in how each side interprets "SC2-related creatives" and "using the Star Control trademark", and that these differences can be reconciled. Because the alternative is that at least one of the sides is lying about their intentions – and that would make settlement impossible.

I'm also getting the impression that F&P are extremely inflexible in their legal tactics – that the only tool they use is the DMCA, even where there are much more effective approaches at their disposal. Nothing seems to have harmed their case more than this.


Title: Re: Stardock Litigation Discussion
Post by: Boerta on October 19, 2018, 09:13:11 am
From the same thread:
Quote
We took out the Arilou and Melnorme references as an olive branch to Paul and Fred. In response they used their GoFundMe to sue GOG and Valve for carrying Star Control: Origins.

If you look, Stardock has trademarks pending on the Zoq-Fot-Pik and Zebranky I believe.

We are continue to support an amicable resolution but it’s difficult to take seriously a complaint regarding an Easter egg reference to previous games in the series while Paul and Fred are actively trying kill our game and sue GOG and Valve.

He says that they removed the Arilou and Melnorme as an olive branch, and NOT as a response to the DMCA. He further asserts that their RESPONSE to that was to sue GOG and Valve, and even makes assertions about how they funded said venture. I think the careful wording here speaks volumes by itself.  ::)


Title: Re: Stardock Litigation Discussion
Post by: Krulle on October 19, 2018, 10:12:53 am
And "pending trademarks" are easy to get.
Heck, I could get a "pending trademark" for "Coca-Cola".
"Pending trademarks" simply might have no value in court....


Title: Re: Stardock Litigation Discussion
Post by: Elestan on October 19, 2018, 05:14:46 pm
This was exactly the solution proposed in F&P's March 22 settlement agreement. So why exactly hasn't this happened yet, damn it?

To be fair, P&F's settlement proposal did overreach a bit, by trying to restrict things like the music.  But Stardock's proposal strongly suggested that they weren't interested in settling at all, at least at that time.

Quote
I really hope it's only about the differences in how each side interprets "SC2-related creatives" and "using the Star Control trademark", and that these differences can be reconciled. Because the alternative is that at least one of the sides is lying about their intentions – and that would make settlement impossible.

Whether P&F can say "sequel to Star Control II" certainly seems to be a sticking point.  But Brad's emails to Paul (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.10.pdf) make it pretty clear that Brad really, really, really wanted to get the SC2 copyrights.  I don't think we have any way to tell if he's genuinely given up on that desire or not.  Plus, by publicly asserting how right he is all over this and other forums, Brad has put himself in the position where anything less than a settlement or ruling strongly in his favor is going to make him lose face, and he appears to place a lot of importance on his image.  Note this quote from him:

Quote from: Frogboy at https://0bin.net/paste/LUet5738Nn06BlFa#+lo-z77Wk9LU/rzi1KJj6xPorxfUBK1UrLkxazmvixm on 05/09/2018
I don't feel a lot of sympathy for Paul and Fred.
But their fans have done them real harm.
Because now we basically have no choice but to insist they lose completely in court.
Because their fans imagine they have all kinds of say over Star Control.

In his mind, the problem is not that he ignored his lawyers' advice and backed himself into a corner by publicly arguing the case with non-parties; the problem is that the SC2 fans (most of the ones here, anyway) took P&F's side, so now he feels compelled to take the case all the way in order to vindicate the arguments he's made.

Quote
I'm also getting the impression that F&P are extremely inflexible in their legal tactics – that the only tool they use is the DMCA, even where there are much more effective approaches at their disposal. Nothing seems to have harmed their case more than this.

What more effective legal tactics do you think they aren't using that they should have?


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 19, 2018, 06:35:17 pm
What more effective legal tactics do you think they aren't using that they should have?

Maybe I'm being really naive here, but negotiation comes to mind first. I remember Brad saying that if F&P had asked him to take down the classic games from Steam and GOG, he would have complied (although I also remember him claiming that the 1988 agreement was still active). At the very least, F&P could have issued a C&D to Stardock before sending the DMCA notice to Steam and GOG. And now that the lawsuit is underway, well... The DMCA against the "Arilou" and "Chenjesu" DLC packs may have been justified, but trying to take down SCO itself while the litigation is still ongoing, and suing Valve and GOG seems like a really dumb move on F&P's part. I don't mean that they should ignore any copyright infringement by Stardock, but I think that addressing these issues in their counterclaim (and trying to negotiate with Stardock if that's still possible) should suffice. And once it's been firmly established that Stardock is infringing on F&P's copyright, the DMCA (or any other method of dealing with infringement) would come into play.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 19, 2018, 08:52:23 pm
he DMCA against the "Arilou" and "Chenjesu" DLC packs may have been justified, but trying to take down SCO itself while the litigation is still ongoing, and suing Valve and GOG seems like a really dumb move on F&P's part. I don't mean that they should ignore any copyright infringement by Stardock, but I think that addressing these issues in their counterclaim (and trying to negotiate with Stardock if that's still possible) should suffice. And once it's been firmly established that Stardock is infringing on F&P's copyright, the DMCA (or any other method of dealing with infringement) would come into play.

I might have missed something, but I'm fairly sure that this isn't accurate.

P&F have named GOG and Steam in the lawsuit, but as of yet, don't appear to be suing them.

I'm also pretty sure that P&F haven't issued a DMCA against SC:O, or even asked for an injunction. They are, however, reserving that right, which is a possible outcome once a court rules on Stardock's Copyright infringement. At present, Stardock has made a motion to try to extinguish that right before there's a hearing on all the facts. It has forced the issue to be debated now, but at present, an injunction against SC:O still remains theoretical at worst.

It's exactly what you're saying. The takedown / DMCA / cease and desist would come into play after the court has ruled.

Quote
Maybe I'm being really naive here, but negotiation comes to mind first. I remember Brad saying that if F&P had asked him to take down the classic games from Steam and GOG, he would have complied (although I also remember him claiming that the 1988 agreement was still active). At the very least, F&P could have issued a C&D to Stardock before sending the DMCA notice to Steam and GOG.

The negotiations fell apart because Stardock insisted they were the publishers of the classic games. Paul and Fred said that wasn't the case, the moment Stardock even raised it as a hypothetical. Rather than believing P&F, Stardock insisted they were wrong. Any plain reading of the agreement would have shown that the agreement had expired in the time where the classic games weren't being sold (in the 2000s). Stardock then followed through by actually putting the games up for sale, after P&F told them not to.

Granted, I think a more skilled negotiator could made a better effort to diffuse the tension after that. But you should have a massive skepticism when Stardock says "hey, we would have stopped the sales if they just asked", when Stardock didn't listen when they asked them not to sell the games in the first place.

P&F did tell them not to (re-)publish the games. Not only did Stardock refuse. It was also reason enough to dismiss https://cdn.stardock.us/forums/0/0/1/ad4dd7d8-a995-42e6-abbd-6078a2757ad5.png (https://cdn.stardock.us/forums/0/0/1/ad4dd7d8-a995-42e6-abbd-6078a2757ad5.png). Stardock made the sale of the classic games into a dealbeaker (https://cdn.stardock.us/forums/0/0/1/a67e50ba-6740-4dfd-b92a-69b37ee4933f.png), and then went ahead and sold the games.

I've long stopped believing that Stardock's reasons are sincere. I think they choose a course of action that serves their own interest, and find a justification for it in P&F's behavior.

Which almost always means that Stardock distorts the order of events.

You: Hey, how are you doing?
Me: *punches you in the face*
You: What the f---, man? Are you f---ing crazy?
Me: I had to punch you in the face because you're yelling and swearing at me.


Title: Re: Stardock Litigation Discussion
Post by: Mormont on October 20, 2018, 12:51:33 am
The most recent counterclaim does have GOG and Valve as defendants for breach of contract by GOG and participation in copyright infringement by both. I understand the breach of contract but don't get the infringement parts - doesn't the DMCA process protect them from liability?

Quote from: Elestan
To be fair, P&F's settlement proposal did overreach a bit, by trying to restrict things like the music.  But Stardock's proposal strongly suggested that they weren't interested in settling at all, at least at that time.
Yes, Fred and Paul's settlement offer has some overly broad language that Stardock would be reasonable to reject. However, it is a good starting point unlike Stardock's no-prisoners demand. Stardock could have amended it, maybe even tack some reasonable damages on. Then it would have gone back and forth a few times probably.

If Wardell is signalling on his forum that settlement negotiations are going well...that would be good, but I'm pretty skeptical of what he says at this point. We'll see.

Wardell also says that he didn't know about the ZFP and Zebranky...maybe. Despite my general skepticism it's not completely implausible that someone working on the game might just stick this on a remote planet and he wouldn't see it (I gather Origins has a lot of little planetary mini-encounters that don't directly relate to the story).


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 20, 2018, 02:31:59 am
Ah, there it is. Just dove into the pleadings myself and it's right there.

The DMCA safe habour is for very specific conditions. It is NOT absolute. Keep in mind there were some people who wanted Google (just for example) to be strictly liable for any infringing content you can find through their search engine. And just as many activists on the other side who thought that a search engine (and other service providers) should be strictly immune. The DMCA was a compromise based on specific conditions: Google (and Steam, and GOG) can claim immunity if anyone else uses their service to promote infringing content, as long as there's a clearly defined process to send a notice to anyone misusing their service in that way. And to protect good actors from unfair takedown requests, they're allowed to tell Google "no, we assert, under the penalty of perjury, that we aren't breaking the law, and our content should be allowed to exist on your service". At that point, Google washes their hands of it. It's now up to the content creators to hash it out, and potentially go to court.

What we're talking about here is NOT the safe harbor designed by the DMCA.

It appears that P&F later made a second takedown request, not using the DMCA process at all. They used Stardock's own pleadings.

Quote
154. On December 8, 2017, Stardock filed its lawsuit claiming that sales of the Classic Star Control Games on GOG infringed on its purported trademarks and copyrights and that Reiche and Ford were liable as a result.

155. While Reiche and Ford dispute Stardock’s aforementioned claims, on or about December 11, 2017, Reiche and Ford provided notice of Stardock’s claims to GOG and specifically requested that they not repost the games without Reiche and Ford’s consent.

156. Notwithstanding this notice, in early January, GOG resumed selling the Classic Star Control Games, thereby resuming the alleged infringement and exposing Reiche and Ford to additional potential damages.  GOG rejected a subsequent request to remove the games in February 2018, thereby exposing Reiche and Ford to more damages.

Stardock sued P&F and claimed, in a legal document, that P&F is responsible for the unauthorized sales of the classic games. So, P&F naturally asked GOG to stop selling the games. If Stardock and P&F are complaining that the game sales are unauthorized, then GOG is literally selling the games without anyone's permission. Stardock admitted they don't want the games being sold, and P&F asked them to take down the games. How can GOG claim the DMCA safe harbor?

The bad actor in here, of course, is Stardock. They're the ones who said in their lawsuit, "the classic game sales are infringing us and we deserve compensation", and then told Steam and GOG, "keep selling the classic games". Why they would do this is anyone's guess -- maybe to keep the Star Control Trademark alive, or maybe to help rack up damages and make P&F look bad.

Either way, P&F has brought GOG and Steam into the dispute as parties. They're essentially telling the courts "If Stardock didn't want the games to be sold, then neither did we, and it's really up to the stores." Of course, since the stores will face potential legal consequences, they'll present evidence and arguments, showing that Stardock wanted the sales to continue. At a minimum, it's going to show that Stardock is acting in bad faith for claiming damages from infringing sales that they themselves forced to continue. More than that, it's going to show that Stardock's use of the "Star Control Trademark" was based on an illegality.

Quote
210. Stardock and GOG made these false representations and concealed these facts with the intent to induce Reiche and Ford to act as described herein, for example, to allow continued sales of the Classic Star Control Games on GOG that Stardock now alleges support its claims for infringement and that it has established trademark rights, among other things

If Stardock is claiming that the sales were illegal, then their use of the "Star Control" Trademark is based on illegal sales. Had those sales terminated, the Trademark would have been abandoned.

GOG and Steam aren't a weird tangent. Their story might punch a massive hole in Stardock's whole Trademark argument.


Title: Re: Stardock Litigation Discussion
Post by: kaminiwa on October 20, 2018, 09:14:33 am
One thing I haven't seen commented on: https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.71.8.pdf

Exhibit 8 is the "Bill of Sale" from the bankruptcy, and lists the 1988 agreement without an expiration date. Until 2017, it's not unreasonable for Stardock to have assumed they really did have publishing rights.

In 2013, Stardock even mentions having those publishing rights:

https://cdn.stardock.us/forums/0/0/1/9bd20b3f-5658-465f-92a3-7e0ad8276da2.png

I can see how they might have been blindsided by the claims they couldn't sell the classics (doubly so since they were available on GOG). They spent 4 years thinking they'd offer a bundle as a cool PR move, and suddenly they're being attacked in public and contending with DMCA notices.

Mind you, this isn't intended to defend their current behavior. But I do think that the initial seed of disagreement was fairly reasonable.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on October 20, 2018, 10:58:51 am
One thing I haven't seen commented on: https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.71.8.pdf

Exhibit 8 is the "Bill of Sale" from the bankruptcy, and lists the 1988 agreement without an expiration date. Until 2017, it's not unreasonable for Stardock to have assumed they really did have publishing rights.

The bankruptcy sales contract said that Atari was making no guarantees about the IP, so it was Stardock's responsibility to rigorously check everything; that little summary in the bill of sale is not a substitute for reading the full contract.  Stardock received a copy of the original contract, and if its lawyers didn't verify that there was a continuous record of at least $1000/year in royalties paid to Paul (evidently overlooking the decade-long gap in sales), and didn't notice the "This agreement ends if the publisher goes bankrupt" clause when they were buying it at a bankruptcy auction, that doesn't seem like Paul's problem.


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 20, 2018, 01:36:41 pm
Plus, by publicly asserting how right he is all over this and other forums, Brad has put himself in the position where anything less than a settlement or ruling strongly in his favor is going to make him lose face, and he appears to place a lot of importance on his image.  Note this quote from him:

Quote from: Frogboy at https://0bin.net/paste/LUet5738Nn06BlFa#+lo-z77Wk9LU/rzi1KJj6xPorxfUBK1UrLkxazmvixm on 05/09/2018
I don't feel a lot of sympathy for Paul and Fred.
But their fans have done them real harm.
Because now we basically have no choice but to insist they lose completely in court.
Because their fans imagine they have all kinds of say over Star Control.

In his mind, the problem is not that he ignored his lawyers' advice and backed himself into a corner by publicly arguing the case with non-parties; the problem is that the SC2 fans (most of the ones here, anyway) took P&F's side, so now he feels compelled to take the case all the way in order to vindicate the arguments he's made.

I'm still not getting that logic, to be honest. How on earth are the opinions of the posters here (who are NOT parties to the lawsuit) going to FORCE Stardock to take the take-no-prisoners route? If Stardock really has no legitimate claim to the SC1 and SC2 copyrights (as it currently seems), the best thing Stardock can hope for if they keep their current position is going out with a bang. Is this really more important to Brad than doing what is best for his own company (and the franchise he's supposedly been a fan of for decades), as you are implying? I certainly hope not.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on October 21, 2018, 05:09:21 pm
Plus, by publicly asserting how right he is all over this and other forums, Brad has put himself in the position where anything less than a settlement or ruling strongly in his favor is going to make him lose face, and he appears to place a lot of importance on his image.  Note this quote from him:

Quote from: Frogboy at https://0bin.net/paste/LUet5738Nn06BlFa#+lo-z77Wk9LU/rzi1KJj6xPorxfUBK1UrLkxazmvixm on 05/09/2018
I don't feel a lot of sympathy for Paul and Fred.
But their fans have done them real harm.
Because now we basically have no choice but to insist they lose completely in court.
Because their fans imagine they have all kinds of say over Star Control.

In his mind, the problem is not that he ignored his lawyers' advice and backed himself into a corner by publicly arguing the case with non-parties; the problem is that the SC2 fans (most of the ones here, anyway) took P&F's side, so now he feels compelled to take the case all the way in order to vindicate the arguments he's made.

I'm still not getting that logic, to be honest. How on earth are the opinions of the posters here (who are NOT parties to the lawsuit) going to FORCE Stardock to take the take-no-prisoners route? If Stardock really has no legitimate claim to the SC1 and SC2 copyrights (as it currently seems), the best thing Stardock can hope for if they keep their current position is going out with a bang. Is this really more important to Brad than doing what is best for his own company (and the franchise he's supposedly been a fan of for decades), as you are implying? I certainly hope not.

I would hope not too, but Stardock is asking the court for an injunction against "The Ur-Quan Masters", is asserting that the code release that formed UQM was illegitimate, and has tried to trick the project admins into signing the project's IP rights to them, while on separate occasions (in private) threatening to "eliminate" us and saying that we "may need to go away".

I have difficulty making the logic of these actions work unless I infer that his top priority is the establishment of complete control over everything derived from Star Control.  The whole lawsuit doesn't make sense from a financial standpoint; the costs of litigation and loss of reputation to Stardock dwarf any hypothetical harm from P&F's allegedly infringing blog post.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 21, 2018, 05:16:31 pm
Distinguish between a reason and a rationalization. Thinking people usually do things for reasons. A rationalization is what you do after you've already decided to do something, and need to justify it to yourself and others.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on October 22, 2018, 01:59:28 pm
The inclusion of the ZFP and Zebranky in SCO, as well as F&P having sued Valve and GOG,  is also being discussed (https://forums.starcontrol.com/491651/zebranky) on SCO's forum. One post by Brad is particularly notable:

Quote
Broadly speaking, I am hopeful for a resolution where the sc2 related creatives strictly go to them and they stop trying to use/take the Star Control trademark and stop trying to interfere with our game. I think that’s the cleanest solution.

I think this is precisely the solution we are all hoping here for. This was exactly the solution proposed in F&P's March 22 settlement agreement. So why exactly hasn't this happened yet, damn it? I really hope it's only about the differences in how each side interprets "SC2-related creatives" and "using the Star Control trademark", and that these differences can be reconciled. Because the alternative is that at least one of the sides is lying about their intentions – and that would make settlement impossible.
Don't get your hopes up. It's the typical rhetoric using "hopeful behind-the-scenes developments" coming from Frogboy to appease and pacify SCO fans genuinely concerned about copyright infringement. Honestly, he has made a fool out of me several times and seeing him use the same tactic to unsuspecting fans makes me sick.


Title: Re: Stardock Litigation Discussion
Post by: Deus Siddis on October 22, 2018, 06:34:34 pm
Is their any way to estimate the sales figures of SCO?  Now that it has been out for some time it would be interesting to know how much it is funding and incentivizing this whole circus.

I have difficulty making the logic of these actions work unless I infer that his top priority is the establishment of complete control over everything derived from Star Control.  The whole lawsuit doesn't make sense from a financial standpoint; the costs of litigation and loss of reputation to Stardock dwarf any hypothetical harm from P&F's allegedly infringing blog post.

I have to wonder if his strategy all along was not simply to try and break P&F's personal finances through the sheer cost of the lawsuit so that they have to trade in all of their rights to him out of desperation.  That is, he knew full well from the beginning his case was ultimately frivolous, but also just complex enough to be drawn out into an expensive battle before the court reached this conclusion.  Since P&F wouldn't license him their material he aims to underhandedly take it from them altogether using the american "justice" system to twist their arms.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 22, 2018, 09:48:53 pm
I don't wonder. It seems completely obvious. I'd be stunned at anyone who still thinks otherwise.


Title: Re: Stardock Litigation Discussion
Post by: kaminiwa on October 22, 2018, 10:10:23 pm
> Is their any way to estimate the sales figures of SCO?

Steam Spy ostensibly gives us a sales estimate: https://steamspy.com/app/271260. That it still says 20-50K copies sold a couple weeks later makes me think the game is either not doing well, or Steam Spy isn't that reliable. You can also infer some from other Steam stats (time played, # of simultaneous players, etc.), but those show a fairly similar picture right now. Based on # of reviews, Steam is the majority of sales compared to GOG.

This is, obviously, all a very crude estimate. Thus far, Stardock has not released any official sales numbers.

---

There's a new filing serving a summons against GOG and Valve, so it seems like they are actually getting dragged in to court. I'm wondering if that will end up delaying things? If so, it seems P&F are not at all shy about the idea of a long, protracted legal battle, which is reassuring.


Title: Re: Stardock Litigation Discussion
Post by: orzophile on October 22, 2018, 10:18:56 pm
I have to wonder if his strategy all along was not simply to try and break P&F's personal finances through the sheer cost of the lawsuit so that they have to trade in all of their rights to him out of desperation.

You don't have to wonder. Given what has been presented to the court, Stardock has one point in their favor (the initial GOTP blog post may have been trademark infringement) and everything else has been a slow-motion dumpster fire that may invalidate that mark entirely. Stardock bluffed, it got called, and now we all get to watch the dumpster burn out.

Maybe you're like me and try to see the best in people and give them the benefit of the doubt, but there's not really any question anymore about the merits of this suit, and that Stardock was well aware of what was in their hand when they came to the table. Their ill-advised attempt to use various Star Control-related materials in commerce, including their DMCA responses, are about as obvious of bad faith as you can get without catching them on video snickering about their schemes.



Title: Re: Stardock Litigation Discussion
Post by: lostsoul on October 22, 2018, 11:46:40 pm
here brad says they've sold over 50,000 copies...i highly doubt that...
https://forums.starcontrol.com/491316/page/1/#replies


Title: Re: Stardock Litigation Discussion
Post by: futonrevolution on October 23, 2018, 12:02:09 am
"It’s not just good for an indie. Outside a handful of truly major AAA games, you’d be hard pressed to find a PC game selling thst many in a week. It’s certainly our best launch. GalCiv III sold approximately 60,000 units in its first month through all channels.

Even during the old retail days when we had Walmart, Best Buy, etc. a good launch was about 75,000 during an entire month."

I don't think that anyone would be hard-pressed to find a PC game selling "nearly 50,000" in a week.


Title: Re: Stardock Litigation Discussion
Post by: Mormont on October 23, 2018, 12:15:11 am
here brad says they've sold over 50,000 copies...i highly doubt that...
https://forums.starcontrol.com/491316/page/1/#replies
"Nearly" 50,000, not over (though it has been almost a month since). "Nearly" could mean a lot of different things - could be 48k, 40k, or even 35k.

One objective measure we do have is the simultaneous player count on Steamcharts, where it looks like the game is not picking up very many new players after the initial rush.
https://steamcharts.com/app/271260


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 23, 2018, 12:56:02 am
here brad says they've sold over 50,000 copies...i highly doubt that...
https://forums.starcontrol.com/491316/page/1/#replies

It's odd that in the same thread, he says GC3 sold 60k units in a month. Elemental sold 82k in two weeks. That's more sales than GC3, and yet Elemental led to layoffs.

It's hard to make sense of how well SC:O is doing. But I suspect, regardless of sales, Stardock has the money to cover any shortfall.


Title: Re: Stardock Litigation Discussion
Post by: Deus Siddis on October 23, 2018, 01:46:27 am
Maybe you're like me and try to see the best in people and give them the benefit of the doubt, but there's not really any question anymore about the merits of this suit, and that Stardock was well aware of what was in their hand when they came to the table. Their ill-advised attempt to use various Star Control-related materials in commerce, including their DMCA responses, are about as obvious of bad faith as you can get without catching them on video snickering about their schemes.

With everything that has happened at this point, I have no doubts he is a villain. My only remaining uncertainty is whether he is such a fool as to have planned out such a risky strategy for such a pointless aim from the outset, or rather is he so egomaniacal that each time he feels slighted or simply not praised, he cant keep himself from doubling down again, no matter the cost to even his own company.

My guess is the latter is the case. I believe within his company he has made sure to surround himself with yes men.  And when he encounters opinions from outside his sheltering environment he becomes obsessed with "correcting" them at any cost. Whether it be suing P&F for not agreeing to meet with him over dinner or sign a license agreement, arguing with us on this small forum or doxing Elestan for exposing where he buried the bodies. None of these actions are good moves from a purely-selfish financial or business standpoint it seems clear to me.

The maturity level of his decision making may indicate he is no longer the same person that built stardock in earlier decades.

It's hard to make sense of how well SC:O is doing. But I suspect, regardless of sales, Stardock has the money to cover any shortfall.

It needs to not just cover the cost of development but the cost of fighting the lawsuit as well as the potential costs of losing it. And if there are not good enough prospects for DLC and sequel sales based on these existing sales, it makes even less sense to keep on this aggressive path.  Of course I am assuming there is some rationality over at stardock.


Title: Re: Stardock Litigation Discussion
Post by: lostsoul on October 23, 2018, 05:29:29 am
im rather intrigued that their talking dlc so soon after a release...dlc is usually released to either, boost faltering sales or retain interest in an already popular title at a much later time...correct me if I'm wrong


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 23, 2018, 11:03:28 am
im rather intrigued that their talking dlc so soon after a release...dlc is usually released to either, boost faltering sales or retain interest in an already popular title at a much later time...correct me if I'm wrong

There's also the problem that SCO's main story is very short. It took me just under 20 hours of gameplay to complete it.


Title: Re: Stardock Litigation Discussion
Post by: Sara on October 23, 2018, 03:33:51 pm
Just want to chime in and say that Steam Spy is not accurate. It can't get information from profiles that hide their game list, and all new profiles do so by default nowadays, making it even less accurate than ever.

Steam Charts may be more accurate in some ways, but only shows people actually playing the game. The actual purchase count is likely full of people padding out their libraries but not playing. Oddly common on Steam.


Title: Re: Stardock Litigation Discussion
Post by: futonrevolution on October 24, 2018, 12:00:14 am
The actual purchase count is likely full of people padding out their libraries but not playing. Oddly common on Steam.

The Steam achievement for starting the campaign is currently at 95.4%. If correct, the number of players are effectively the number of owners.
I don't know how to get a full of list of global achievements on GOG, but the "popular" ones are clocking in at ~51%, so GOG's player:owner could be anything over 50%.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on October 24, 2018, 08:22:27 pm
Is their any way to estimate the sales figures of SCO?  Now that it has been out for some time it would be interesting to know how much it is funding and incentivizing this whole circus.

I have difficulty making the logic of these actions work unless I infer that his top priority is the establishment of complete control over everything derived from Star Control.  The whole lawsuit doesn't make sense from a financial standpoint; the costs of litigation and loss of reputation to Stardock dwarf any hypothetical harm from P&F's allegedly infringing blog post.

I have to wonder if his strategy all along was not simply to try and break P&F's personal finances through the sheer cost of the lawsuit so that they have to trade in all of their rights to him out of desperation.  That is, he knew full well from the beginning his case was ultimately frivolous, but also just complex enough to be drawn out into an expensive battle before the court reached this conclusion.  Since P&F wouldn't license him their material he aims to underhandedly take it from them altogether using the american "justice" system to twist their arms.

Seems like that would be a dubious strategy for Stardock. Were I Fred and Paul, and placed in that position where I knew that I was essentially screwed, I'd just go sell to someone else out of spite. It isn't like they are lacking in industry contacts.

Pretty sure Activision would have plenty of financial clout to take on Stardock should it come to it.


Title: Re: Stardock Litigation Discussion
Post by: Deus Siddis on October 25, 2018, 12:33:05 am
Pretty sure Activision would have plenty of financial clout to take on Stardock should it come to it.

Activision is not at all involved.

Brad's personal finances are protected behind the corporate armor of Stardock and he is using its financial resources to wage this war. In contrast, Paul and Fred are being sued as individuals and having to fight with whatever cash they have saved up over their whole lifetimes. Brad knows this and it was very likely a factor in his decision to go down this road. He does not have to be right about anything, he only needs to drain them to the point they have to surrender.

If this really was Stardock vs Activision or Stardock vs Toys for Bob, the whole matter might have settled out of court many months ago. Or never begun.

Were I Fred and Paul, and placed in that position where I knew that I was essentially screwed, I'd just go sell to someone else out of spite.

That would not stop Stardock's suit against them. And there might not be any high bids for such a legally treacherous property as this all would seem to be at that point.

Note that this does not mean Stardock is practicing sound legal or business strategy here. Quite the opposite I believe. But there might have been enough of a perception of financial advantage that Brad could justify this strategy to himself.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on October 25, 2018, 12:44:40 am
Pretty sure Activision would have plenty of financial clout to take on Stardock should it come to it.

Activision is not at all involved.

Brad's personal finances are protected behind the corporate armor of Stardock and he is using its financial resources to wage this war. In contrast, Paul and Fred are being sued as individuals and having to fight with whatever cash they have saved up over their whole lifetimes. Brad knows this and it was very likely a factor in his decision to go down this road. He does not have to be right about anything, he only needs to drain them to the point they have to surrender.

If this really was Stardock vs Activision or Stardock vs Toys for Bob, the whole matter might have settled out of court many months ago. Or never begun.

Were I Fred and Paul, and placed in that position where I knew that I was essentially screwed, I'd just go sell to someone else out of spite.

That would not stop Stardock's suit against them. And there might not be any high bids for such a legally treacherous property as this all would seem to be at that point.

Note that this does not mean Stardock is practicing sound legal or business strategy here. Quite the opposite I believe. But there might have been enough of a perception of financial advantage that Brad could justify this strategy to himself.

I'm aware that Activision is not at all involved. It was a hypothetical that my post was addressing. IF Stardock's strategy was to basically create a financial hardship that would force P&F to sell, then they could just as easily sell to someone else who had deep pockets who might value the IP and be able to defend it and not necessarily someone that they have a grudge against (Stardock.) If they do get into financial hardship, they'd likely be highly motivated to find a different buyer, ANY buyer, other than the company and person who put them into that situation.

Hence, that if the strategy is to force the two into financial hardship it seems ill considered because there's nothing forcing them to sell to Stardock specifically.

Activision was one example of someone else that they have a relationship with that they could sell the assets to if necessary. But it was one among many other companies that they would likely choose to sell to rather than sell to Stardock at this point.


Title: Re: Stardock Litigation Discussion
Post by: Denning on October 25, 2018, 01:17:32 am
I would be surprised if P+F aren't independently wealthy from the skylanders franchise, though it is certainly possible that the lawsuit is a liquidity squeeze for them. I found their GoFundMe in very poor taste but it is more understandable if they are trying to avoid borrowing against their equity in the studio.

Cash flow issues could also explain why they are only now seeking indemnity from GoG. However from the very barebones pleading I have to imagine that the GoG agreement does not actually extend to the current dispute, or includes some condition that they omitted to plead (e.g. no indemnity until favourable final judgment obtained from court of competent jurisdiction). I undertake to review and report back.


Title: Re: Stardock Litigation Discussion
Post by: Mormont on October 25, 2018, 04:08:45 am
I would be surprised if P+F aren't independently wealthy from the skylanders franchise, though it is certainly possible that the lawsuit is a liquidity squeeze for them. I found their GoFundMe in very poor taste but it is more understandable if they are trying to avoid borrowing against their equity in the studio.

Cash flow issues could also explain why they are only now seeking indemnity from GoG. However from the very barebones pleading I have to imagine that the GoG agreement does not actually extend to the current dispute, or includes some condition that they omitted to plead (e.g. no indemnity until favourable final judgment obtained from court of competent jurisdiction). I undertake to review and report back.
Not fluent in legalese but the indemnification part looks really broad to my layman's eyes,. (section 6.2) "GOG shall indemnify, hold harmless, and agree to defend developer...any and all claims, actions, suits, legal proceedings, demands, liabilities...including, without limitation, attorney fees, arising out of or in connection with any actual or alleged breach by GOG..."

I'm sure the lawyers and courts would need to parse out exactly how far it goes, but it doesn't have very many qualifiers. Even looks specifically phrased to cover as much as possible. With a clause like that adding GOG for breach of contract makes some sense IMO.

EDIT: 8.2 has a clause that limits the damages they can claim against GOG though. 8.3 sets the limit for legal action to 12 months after the alleged infringement, which would explain the timing of adding GOG as a party...


Title: Re: Stardock Litigation Discussion
Post by: Deus Siddis on October 25, 2018, 07:33:21 am
Hence, that if the strategy is to force the two into financial hardship it seems ill considered because there's nothing forcing them to sell to Stardock specifically.

Activision was one example of someone else that they have a relationship with that they could sell the assets to if necessary. But it was one among many other companies that they would likely choose to sell to rather than sell to Stardock at this point.

It wouldn't so much be selling to Stardock as offering the copyrights up to Stardock in exchange for a settlement, to stop the financial bleeding. I do not think this would ever happen. But given the semi-delusional legal theorycrafting by Brad and his massive desire/need for these rights, I cannot place it outside the realm of possibility that this was his strategy from the outset. We need to keep in mind that reason is not necessarily the only factor here. He has demonstrated himself to be an emotional and unstable person that responds highly immaturely to perceived slights. Simply hurting Paul and Fred could be a key motivation for him here.


Title: Re: Stardock Litigation Discussion
Post by: Jeff Graw on October 26, 2018, 08:40:20 pm
My guess is the latter is the case. I believe within his company he has made sure to surround himself with yes men.  And when he encounters opinions from outside his sheltering environment he becomes obsessed with "correcting" them at any cost. Whether it be suing P&F for not agreeing to meet with him over dinner or sign a license agreement, arguing with us on this small forum or doxing Elestan for exposing where he buried the bodies. None of these actions are good moves from a purely-selfish financial or business standpoint it seems clear to me.

I've been lurking on this thread for quite awhile, but figure I should chime in here. From what I know of Brad, I don't think that's a fair assessment. Mind you, I don't agree with all of his actions in this kerfuffle, but I can remember a Reddit post I once made on a topic Brad created, disagreeing with whatever his premise was and sort of disparaging GalCiv on a basic level as not all that well designed, albeit as politely as I could muster, and Brad's response to that was something along the lines of "This is an amazing post." I know people who only want to hear self-affirming things, and by and large they don't respond like that to serious criticism.

If Brad has a flaw, it's probably an extra helping of impulsiveness combined with not much in the way of a filter. As entertaining as it was to read the back-and-forth earlier on, in no universe was coming on here to argue about a major ongoing legal dispute with people who, to put it bluntly, don't even matter, a smart move thanks to the significant risk of self sabotage -- a risk that has probably solidified into fact on at least a few occasions.

In Brad's defence, game developers tend to be extremely self-censoring, and it's always a breath of fresh air when someone bucks the trend. Does he go too far in the other direction? Probably. But I still prefer that to the typical tight-lipped alternative.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on October 27, 2018, 02:38:53 am
If Brad has a flaw, it's probably an extra helping of impulsiveness combined with not much in the way of a filter. As entertaining as it was to read the back-and-forth earlier on, in no universe was coming on here to argue about a major ongoing legal dispute with people who, to put it bluntly, don't even matter, a smart move thanks to the significant risk of self sabotage -- a risk that has probably solidified into fact on at least a few occasions.

In Brad's defence, game developers tend to be extremely self-censoring, and it's always a breath of fresh air when someone bucks the trend. Does he go too far in the other direction? Probably. But I still prefer that to the typical tight-lipped alternative.

Impulsiveness, however, cannot explain or excuse the more calculated things he's done, like attempting to trick Serge into signing away the UQM project's rights (http://forum.uqm.stack.nl/index.php?topic=7396.msg79432#msg79432), or trying to trademark UQM's names in the first place.  Those seem to be deliberate actions designed to further his legal case at the expense of a community that he has, on various occasions, professed to be a part of and care deeply about.  And even if we assume that most of (http://forum.uqm.stack.nl/index.php?topic=7396.msg79408#msg79408) the more belligerent things (https://forum.quartertothree.com/t/the-third-doctrinal-war-stardock-reiche-ford-and-star-control/134515/1305) he's said were simply thoughtless angry outbursts, he has not, to my knowledge, given any indication of genuine remorse or contrition for them.  This suggests that the picture of him one would draw from those statements is not, in fact, an inaccurate one.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on October 27, 2018, 04:20:55 am
...Brad's response to that was something along the lines of "This is an amazing post." I know people who only want to hear self-affirming things, and by and large they don't respond like that to serious criticism.
There are other people. Then there's Brad. He's been like that for as long as I've seen him post. I can't recall a time when he hasn't done an appreciative post - especially when the OP is of top-notch quality and most especially if it comes from a new poster - even if he doesn't agree with it. We've seen it when P&F first sent DCMAs to the classic games last year- and I've sided and sympathized with him before all the info was available. He maintains a PR stance he defaults to as a CEO of a company and it's usually done to sway the other party to his side and see things from his perspective. Most people do it- even I do. But his problematic behavior starts when he can't convince people to his reasoning - resorting to ad hominem (and in extreme cases doxxing). One thing's for certain about him: if it's about his interests, there's no changing his mind.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 27, 2018, 09:50:31 pm
Brad's response to that was something along the lines of "This is an amazing post."

Keep in mind Stardock's response to being outed for some of their more insidious actions on this very forum (http://forum.uqm.stack.nl/index.php?topic=7396.0).

Stardock privately said, in May, that "the UQM forum may need to go away (https://0bin.net/paste/LUet5738Nn06BlFa#+lo-z77Wk9LU/rzi1KJj6xPorxfUBK1UrLkxazmvixm)".
Stardock sent letters asking this community to acknowledge that Stardock owns the "Ur Quan Masters" Trademark.
Which would give them authority to revoke the domain name.
Stardock then sends multiple letters, adding deadlines, and more stringent language.
After this community refused, Stardock privately shares that refusal with his supporters, and suggests again that "this vile little community will be eliminated" (http://uqm.stack.nl/files/lawsuit/email/screenshot3.jpg).

When the duplicity is revealed, his reaction?

Greetings!

I appreciate you bringing this up as it allows us to clear the air on this topic.

If you think he really means to add clarity to the topic, and he really appreciates being outed by this community, then I want to tell you about a Nigerian prince who could use your help.

Look closer. Stardock is jumping into the forums for PR. For their own self interest. Their actions tell you the real story.

For your story about GC2... I don't have any context for why Stardock jumped into your thread and called it "an amazing post". But in hindsight, you might ask yourself if his motive was to actually do anything meaningful based on your criticism, or if his motive was to stem any further criticism, and turn the commentary into "wow, it seems like they're really listening".

If I've learned anything in the past year, Stardock hears us, but they are most assuredly not listening.


Title: Re: Stardock Litigation Discussion
Post by: CommanderShepard on October 29, 2018, 04:19:51 pm
I've been lurking on this thread for quite awhile, but figure I should chime in here. From what I know of Brad, I don't think that's a fair assessment. Mind you, I don't agree with all of his actions in this kerfuffle, but I can remember a Reddit post I once made on a topic Brad created, disagreeing with whatever his premise was and sort of disparaging GalCiv on a basic level as not all that well designed, albeit as politely as I could muster, and Brad's response to that was something along the lines of "This is an amazing post." I know people who only want to hear self-affirming things, and by and large they don't respond like that to serious criticism.
Unfortunately that's still just a PR tactic because he knows appearing reasonable to a potential customer is more likely to garner him sales. I can tell you from personal experience that if you disagree with him for long enough, no matter how logically consistent you are, no matter if you reasonably cite basic evidence, he will turn on you because he will deem it is too much work to be equally consistent to convince you to advocate for him past a certain threshold, so it is instead more profitable reputation wise for him to try and garner another new person, even regardless of whether such an action is good his company as a whole. This has been the case with myself and many people here, where he seemed reasonable at first, but then over time, people saw the larger pattern.


Title: Re: Stardock Litigation Discussion
Post by: Mormont on October 30, 2018, 03:49:40 am
Early this year Greg Johnson posted on Stardock's forum saying that, yes, Paul and Fred did in fact create Star Control 2 and he was there for it. Brad's response was something like "Thanks Greg, honored to have you here!" while ignoring the substance of Greg's post.

Was Wardell actually happy to have him there contradicting Stardock's narrative? Probably not.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 30, 2018, 05:36:55 am
I'm seeing a pattern. If Wardell thanks you for poking a hole in one of his pernicious falsehoods, it's because he needs your help convincing the room that it's all a big misunderstanding. (http://forum.uqm.stack.nl/index.php?topic=7182.msg78897#msg78897)


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 30, 2018, 07:24:03 pm
There's another thing I've been thinking about. As we all know, SCO has been released as a "Crimson Corporation production". So if Stardock holds on to the Crimson Corporation trademark, and F&P release GotP with the fictional Crimson Corporation in it, will Stardock be able to sue F&P for defamation (since the fictional Crimson Corporation are ugly villains)? Will the fact that SC2/UQM used the fictional Crimson Corporation long before Stardock registered the trademark protect F&P from that lawsuit?


Title: Re: Stardock Litigation Discussion
Post by: Krulle on October 30, 2018, 09:49:49 pm
As FF/PR continue their storyline including the Crimson Corporation, I would find it weird if a jury and/or a judge would give the copyright to Stardock. As long as GotP isn't marketed as "brought to you by the Crimson Corporation", "made by the Crimson Corporation", or "Crimson Corporation Coding Division" or similar, the jury and/or judge would not see a violation of trademarks, as "Cromsin Corporation" wouldn't be used as a source of origin.
You can even write a synopsis of the story including a reference to the Crimson Corporation, as long as it is clear that the Crimson Corporation is part of the story, and not the source of the product Ghosts of the Precursos.

But then, who am I? I am not a lawyer, nor can I represent anyone in front of US official procedures....


Title: Re: Stardock Litigation Discussion
Post by: PRH on October 30, 2018, 10:44:40 pm
As FF/PR continue their storyline including the Crimson Corporation, I would find it weird if a jury and/or a judge would give the copyright to Stardock. As long as GotP isn't marketed as "brought to you by the Crimson Corporation", "made by the Crimson Corporation", or "Crimson Corporation Coding Division" or similar, the jury and/or judge would not see a violation of trademarks, as "Cromsin Corporation" wouldn't be used as a source of origin.
You can even write a synopsis of the story including a reference to the Crimson Corporation, as long as it is clear that the Crimson Corporation is part of the story, and not the source of the product Ghosts of the Precursos.

But then, who am I? I am not a lawyer, nor can I represent anyone in front of US official procedures....


Yeah, I don't think that would be trademark infringement either. I was wondering if Stardock would play the defamation card, though.


Title: Re: Stardock Litigation Discussion
Post by: rosepatel on October 31, 2018, 12:37:30 am
There's another thing I've been thinking about. As we all know, SCO has been released as a "Crimson Corporation production". So if Stardock holds on to the Crimson Corporation trademark, and F&P release GotP with the fictional Crimson Corporation in it, will Stardock be able to sue F&P for defamation (since the fictional Crimson Corporation are ugly villains)? Will the fact that SC2/UQM used the fictional Crimson Corporation long before Stardock registered the trademark protect F&P from that lawsuit?

Not defamation. In Trademark it's often called "Tarnishment".

If "The Gap" appears on a character's sweatshirt, maybe that's fair use. (In practice, I wouldn't need to pay "The Gap". They'd probably pay me for the product placement.)

If I feature "The Gap" in my movie as an evil, albeit fictionalized, corporation that's destroying the environment and sexually harassing employees, they'd have a case for tarnishment. Basically, you're destroying the goodwill that has been established in "The Gap" Trademark.

Not saying the case would succeed. But there's a case.


Title: Re: Stardock Litigation Discussion
Post by: metamorphosis on October 31, 2018, 02:35:53 am
AAAAAND the FUD continues:
https://steamcommunity.com/id/Anthris/recommended/271260/


Title: Re: Stardock Litigation Discussion
Post by: Soul Reaver on November 23, 2018, 03:19:46 am
Brad's response to that was something along the lines of "This is an amazing post."

Keep in mind Stardock's response to being outed for some of their more insidious actions on this very forum (http://forum.uqm.stack.nl/index.php?topic=7396.0).

Stardock privately said, in May, that "the UQM forum may need to go away (https://0bin.net/paste/LUet5738Nn06BlFa#+lo-z77Wk9LU/rzi1KJj6xPorxfUBK1UrLkxazmvixm)".
Stardock sent letters asking this community to acknowledge that Stardock owns the "Ur Quan Masters" Trademark.
Which would give them authority to revoke the domain name.
Stardock then sends multiple letters, adding deadlines, and more stringent language.
After this community refused, Stardock privately shares that refusal with his supporters, and suggests again that "this vile little community will be eliminated" (http://uqm.stack.nl/files/lawsuit/email/screenshot3.jpg).

When the duplicity is revealed, his reaction?

Greetings!

I appreciate you bringing this up as it allows us to clear the air on this topic.

If you think he really means to add clarity to the topic, and he really appreciates being outed by this community, then I want to tell you about a Nigerian prince who could use your help.

Look closer. Stardock is jumping into the forums for PR. For their own self interest. Their actions tell you the real story.

For your story about GC2... I don't have any context for why Stardock jumped into your thread and called it "an amazing post". But in hindsight, you might ask yourself if his motive was to actually do anything meaningful based on your criticism, or if his motive was to stem any further criticism, and turn the commentary into "wow, it seems like they're really listening".

If I've learned anything in the past year, Stardock hears us, but they are most assuredly not listening.

Wow, that's actually disturbing.  Silencing all criticism is every dictator's wet dream.  That sort of thinking is incredibly destructive as it shows a dogmatic rejection of any possibility that one might oneself be in the wrong, as well as a desire to stop others from expressing their opinions.

On the other hand: I don't know how to feel about F&Ps GoFundMe legal defense campaign.
Maybe someone can enlighten me here: I thought that if you have to spend $X on a court battle, and you win, isn't it pretty much a given that the loser can then be sued to pay for the court costs?
If yes, are F&P going to do that so that they can pay their supporters back in the event that they win?  Or are they just going to keep the money?  Or not bother recouping it (after all, it's someone else's money...)?


Title: Re: Stardock Litigation Discussion
Post by: orzophile on November 23, 2018, 08:17:27 am
Quote
Maybe someone can enlighten me here: I thought that if you have to spend $X on a court battle, and you win, isn't it pretty much a given that the loser can then be sued to pay for the court costs?

Not really. It can vary a lot in terms of results, particularly if both parties are determined to have valid complaints

Unfortunately, all these costs have have to paid up front regardless of the outcome. Unlike in class action suits against well-funded organizations, attorneys in the vast majority of court cases or even settlements have limited expectation of any post-trial payout. They bill as professional services, which is typically hourly at fixed rates, possibly with some defined fixed-priced statement of work with and additional time and materials option. These bills have to be paid whether or not you win, which is among the reasons that there are ethical standards for attorneys about misleading their clients, and also why it's a known tactic to try to intimidate the other party with legal costs to force them to a settlement.

In the event that F&P manage to get an overwhelming agreement from the court and jury and take Stardock to the cleaners, they might recoup all costs and then some -- however this isn't a sure bet even given Stardock's mostly preposterous  arguments.

More likely that no matter what, both F&P and Stardock are going to come out of this monetarily poorer unless it truly is a completely one-sided jury decision that assigns all fault to one par ... I can't keep up the facade, assigns all fault to Stardock. What F&P are on the hook for is chump change, what Stardock is on the hook for is potentially huge if they get hit with willful copyright infringement.

Obviously no one can speak for PR3 if he ends up getting some huge sum in damages from Stardock, but in that event I'd like to hope it goes towards funding the GOTP project. As a donor I don't expect any of that money back, and it's legally classified as a gift, but my willingness to send money to "the good guys" is partially founded in their long history of not being assholes, so I have a modicum of faith they're not going to pocket the trial results and escape to Fiji. If they do, maybe they'll at least fund a Fiji Frungy Beach Party.

It's worth noting that given my exposure to IP-related court cases, the current amount of the FDF is probably at best 25% of F&P's likely legal costs after the trial is all said and done, and most probably much less.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on November 23, 2018, 06:54:40 pm
Maybe someone can enlighten me here: I thought that if you have to spend $X on a court battle, and you win, isn't it pretty much a given that the loser can then be sued to pay for the court costs?
If yes, are F&P going to do that so that they can pay their supporters back in the event that they win?  Or are they just going to keep the money?  Or not bother recouping it (after all, it's someone else's money...)?

Getting your legal fees from the other side is really rare in the U.S. court system, and I wouldn't expect to see it happen here.  In the unlikely event that it does happen, my expectation is that P&F would use the money from the defense fund to help pay for developing their game.

What F&P are on the hook for is chump change, what Stardock is on the hook for is potentially huge if they get hit with willful copyright infringement.

It's not so one-sided as that...the variance in possible awards for trademark infringement is huge, and depends on how persuasive Stardock's expert is in convincing the jury that P&F caused them harm.  And Stardock's damages for copyright infringement prior to last April are limited because P&F hadn't registered their copyrights.  If SC:O itself were found to be infringing, that could be large, but the case there is far from ironclad.

Quote from: orzophile
It's worth noting that given my exposure to IP-related court cases, the current amount of the FDF is probably at best 25% of F&P's likely legal costs after the trial is all said and done, and most probably much less.

I would assume much less.  The fund is just shy of $39k, and they've had two lawyers working this case for over a year now, and recently added a third.  Maybe Mark (P&F's generalist laywer) only bills $200/hour, but Stephen, their lead IP attorney, probably bills $400/hour, and Tiffany (who might be their planned trial lawyer?) is probably somewhere in between.  All of these lawyers are probably not full-time on the case, but the math adds up pretty fast.


Title: Re: Stardock Litigation Discussion
Post by: orzophile on November 23, 2018, 11:46:48 pm
It's not so one-sided as that...the variance in possible awards for trademark infringement is huge, and depends on how persuasive Stardock's expert is in convincing the jury that P&F caused them harm.

At least from my understanding of US trademark law, nothing about the GOTP announcement would qualify for statutory damages like willful copyright infringement can on the other side. Even if we grant that their expert is a modern Atticus Finch, it's going to be incredibly difficult to establish what I'd consider crippling damages beyond the loss of rights if the case is decided for Stardock's various assertions.

I would assume much less.  The fund is just shy of $39k, and they've had two lawyers working this case for over a year now, and recently added a third.  Maybe Mark (P&F's generalist laywer) only bills $200/hour, but Stephen, their lead IP attorney, probably bills $400/hour, and Tiffany (who might be their planned trial lawyer?) is probably somewhere in between.  All of these lawyers are probably not full-time on the case, but the math adds up pretty fast.

Most likely, yes. If either side gets out of the trial with less than $400,000 USD out of pocket, I'll be shocked. The current FDF maybe covers a single month of billable time, and although most of the legal billing won't be full time, they've certainly at least racked up multiple full weeks worth of time over the course of this debacle.


Title: Re: Stardock Litigation Discussion
Post by: vok3 on December 29, 2018, 06:50:15 am
Stardock requested a preliminary injunction preventing Reiche & Ford from sending DMCA notices to GOG and Valve regarding Origins.  The court has rejected Stardock's request.

https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.102.0.pdf

This does not look good for Homestar Runner. 

I mean Wardell.

The "factual background" section seems to be essentially acknowledging all the basic points that Reiche & Ford have been arguing from the start, and includes statements like  "Wardell now avers that he offered Reiche & Ford a 'right of first refusal' [...] The correspondence between Wardell, Reiche, and Ford tells a different story, however."  The person writing this document (the judge? or one of the clerks, writing something that the judge signed off on?) then goes on to list all sorts of facts with which the Starcon fanbase is entirely familiar, and which Wardell has been desperately avoiding every chance he gets.

It also includes the following absolutely delicous footnote:
Quote
Many of the parties' objections are frivolous.  For example, Plaintiff objects to Reiche's declaration, "I created the concept for the Star Control computer game," on the ground that it lacks foundation.  Dkt 66-12 at 2.  Clearly Reiche has personal knowledge as to what he did or did not create.  See Fed R Evid. 602 (a witness's own testimony may support a finding that he has personal knowledge of the matter to which he testifies).  On the other hand, the merit of other objections is obvious.  For example, Defendants object to Wardell's declaration, "Stardock has not incorporated any copyrightable artwork from Star Control I, Star Control II, or Star Control III into the Origins game itself," on the ground that Wardell lacks the expertise necessary to opine as to what constitutes "copyrightable artwork."  Dkt 64-26 at 2-3.  Indeed, not only has Wardell failed to establish any such expertise, but his opinion as to whether the work in question is "copyrightable" constitutes an improper legal conclusion.  See United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017) (citing Fed R. Evid. 704).  Such legal conclusions are without evidentiary value.

There's a lot more, too much to quote.  I find it particularly interesting that the court refers repeatedly to Stardock claiming "irreparable harm" because in the event of a DMCA notice, GOG and Valve will CERTAINLY take the game down, but Stardock never provides any evidence to support that expectation.  The court  never comes out and asks this question specifically, so I'll do it for them: why is Stardock so sure that that would be the outcome?  Do they think their game DOES look like it infringes copyright?  Is that why they don't even consider the alternative, that GOG and Valve will receive the DMCA notice and respond politely with "You must have made a mistake and we're not taking this product down"?  Why does Stardock behave as though they think that outcome is completely impossible?  Why am I writing so many rhetorical questions?

The last two pages of the document are entirely hammering on the point that this situation (the risk of a DMCA takedown in the middle of a lawsuit) is of Stardock's own making and it's not the court's job to rescue them from it.

It looks to me like the judge is already half-persuaded but is being scrupulously careful that all the i's are dotted and the t's are crossed and all procedure is followed with rigorous fairness.  Wardell is about to discover that pulling the wool over a judge's eyes is a lot harder than shoving around an ex-employee with limited financial resources.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on December 29, 2018, 11:52:51 am
Yeah, I read the decision with a smug on my face too.
But not all arguments have been considered, see page 11, lines 1-22, especially lines 15-16.
(The court hereby STRIKES the parties’ non-compliant filings.).
Hence some of the back and forth arguments willnot have been considered.
At the full case those will be considered too.

And you picked my favourite footnote. I love that one.
"Indeed, not only has Wardell failed to establish any such expertise, but his opinion as to whether the work in question is “copyrightable” constitutes an improper legal conclusion."
In times where the digitalization of medieval times' painters work is being considered to be a copyrightable act (in some jurisdictions, like my home jurisdiction), that conclusion of Mr. Wardell was a try for the public and legal amateurs.

The judge could also have pointed out, that Stardock could've, in view of the ongoing procedure, sent together with the game to be published a not to GOG and Valve, that this game does not violate copyrights of SC1 and/or SC2, and any anticipated DMCA notice of Mr Ford and Mr Reiche should therefore be ignored. Thus Stardock could indemnify GoG and Valve from the outset against any negative results stemming from this case. In a very obvious case (which Origins is, IMHO, not), Gog and Valve would still have to take them down, but the chances are they will be considered "safe harbours" would be much larger, at least for Origins,  not necessarily for a republication of SC1 and/or SC2.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on January 01, 2019, 12:40:00 am
Brad is deleting posts not 100% pro-Stardock and banning the people who post them on the Star Control Origins Steam forum.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on January 01, 2019, 02:06:21 am
I adjusted the formatting a bit but this is a very interesting section. Caps Lock at the conclusion at the end also my doing to add emphasis. This is pretty blunt.


"As aptly observed by Defendants,  'Stardock announced the release date and launched its marketing campaign for Origins in June 2018--long after this case was at issue and Stardock was well aware of Reiche and Ford's allegation that Origins infringed upon their copyrighted work. Stardock could have suspended development, or at least postponed the marketing and release of Origins until this case resolves who owns the copyrights to the content at issue and whether Stardock's planned use of certain content infringes....

Instead, Stardock did nothing to avoid the purported risk of irreparable harm that it now bases its motion on, and Stardock announced the release of Origins in the middle of this case and ramped up it's spending.'

Plaintiff does not directly respond to this point.

Further scrutiny of its alleged harm supports Defendants' argument, however.

Plaintiff asserts that it stands to lose substantial monies spent on the development and marketing of Origins. Plaintiff was aware of Defendants' copyright claim to Star Control I and II since the development of Origins commenced, however, and was aware of the contours of the present copyright dispute since at least December 2017. Thus, whatever monies Plaintiff invested in Origins was done with the knowledge that serious copyright disputes were likely to arise or had arisen.
Plaintiff further asserts that the release of Origins 'has been widely communicated to Stardock's customers, partners, and the press,' and that any disruption in its release will be injurious to Plaintiff's reputation. ...

Again, Plaintiff announced the release of Origins in June 2018, six months after this action commenced. Plaintiff thus invited reliance on its announcement regarding the release of Origins with knowledge of Defendants' claims.

In view of the foregoing, the harm Plaintiff complains of is indeed of its own making. Plaintiff had knowledge of Defendants' copyright claims from the outset. Despite this knowledge, it developed potentially infringing material without resolution of the IP ownership issues, and then publicized the release of that material during the pendency of this action.  It now claims that its investment in Origins and reputation are on the line.

GIVEN THAT PLAINTIFF LARGELY CREATED THE FOREGOING PREDICAMENT, THE COURT IS DISINCLINED TO EXTRICATE PLAINTIFF FROM A PERIL OF ITS OWN MAKING."


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 01, 2019, 11:04:16 am
And it seems that F&P wasted no time in issuing a DMCA takedown notice against SCO. According to Stardock's customers, the fact that it was issued on the New Year's eve only added insult to injury.

https://forums.starcontrol.com/492834/paul-reiche-and-fred-ford-issue-dmca-take-down

According to Brad, both Valve and GOG have a policy that they automatically comply with all DMCA takedown notices regardless of their merits, which is presumably why both stores have taken the game down, even though both Valve and GOG know very well about this legal dispute, and Valve has already taken Stardock's side in the lawsuit. I, for one, thought that it was pointless for F&P to issue a DMCA against SCO for this very reason.

So, it's a bad New Year for Stardock and SCO players. Brad has already mentioned that he's going to lay off some of his employees.

...However, when I went to the SCO page on GOG, the game is still there available for purchase. A search for "Star Control" also reveals SCO just fine. So GOG hasn't taken the game down then? I do not own the GOG copy of SCO, only the Steam one. Oh well, apparently we'll see tomorrow if it gets taken down.

And apparently Steam did already take SCO down. As Brad has reported, players who have already purchased SCO from Steam are still able to play it, but the store page for the game is down. This only affects the main game, not the DLCs (now I sound like a Stardock representative :D).


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 02, 2019, 07:18:03 am
According to Brad's twitter, F&P sent GoG also a takedown notice.
https://twitter.com/draginol/status/1079846740252078080

It's an interesting reply collection from their fanbase (at least it was yesternight evening).


Also, another video from "Lawful masses" about the DMCA injunction Denied case: https://www.youtube.com/watch?v=Ieb1ajwwUFo
Mr. French starts his analysis around minuter 36.... (haven't seen it myself).


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 02, 2019, 12:30:10 pm
And... GOG has just taken SCO down.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on January 02, 2019, 04:17:51 pm
According to Brad, both Valve and GOG have a policy that they automatically comply with all DMCA takedown notices regardless of their merits, which is presumably why both stores have taken the game down, even though both Valve and GOG know very well about this legal dispute, and Valve has already taken Stardock's side in the lawsuit. I, for one, thought that it was pointless for F&P to issue a DMCA against SCO for this very reason.

iirc Brad had already announced DLC to include blatant Star Control 1/2 aliens such as the Arilou and Chenjesu and the game already has modded in vessels like the Syreen Penetrator and Ilwrath Avenger. That, combined with Brad's attempt to register trademarks for all of the original races, seems like a good enough reason to me to issue the DMCA.

I'm guessing that if they'd allowed that to stand without object it would have hurt them in a legal sense.


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 02, 2019, 04:40:16 pm
iirc Brad had already announced DLC to include blatant Star Control 1/2 aliens such as the Arilou and Chenjesu and the game already has modded in vessels like the Syreen Penetrator and Ilwrath Avenger. That, combined with Brad's attempt to register trademarks for all of the original races, seems like a good enough reason to me to issue the DMCA.

I'm guessing that if they'd allowed that to stand without object it would have hurt them in a legal sense.

Those DLC packs have all been canceled. The former "Arilou" are now known as "Mysterious Aliens" or "Observers", and they are different enough from the Arilou that I really doubt that would constitute copyright infringement. The Chenjesu are nowhere to be found in SCO, as far as I could see.

The SC2 ship lookalikes are fan-made content. If F&P have an issue with them, they should sue the creators of these ships, not Stardock. And as far as I know, the DMCA has nothing to do with trademarks.

That said, SCO does have content that could potentially be infringing (standard disclaimer: I am not a lawyer, this is merely a fan's opinion). The biggest issue in my opinion is the inclusion of the "Zoq" and the "Pik" in SCO, whose backstory is clearly derived from that of their SC2 counterparts. And then SCO has the exact same eight mineral types as SC2, with the exact same color coding, and these minerals include some that are unique to SC2, such as the Tzo Crystals (spelled TZO Crystals in SCO). Hyperspace in SCO does look very similar to SC2's hyperspace. Like I said before, I'm not qualified to say whether this is copyright infringement, but if I were in the shoes of SCO's designers, I'd steer clear of such things.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 02, 2019, 05:38:15 pm
The Zoq in SC:O appear to me more like a nod to the original series. Yes, it is clearly derived from the original SC2 content, but as suchhas no influence on the SC:O game. They could've placed an alien race named "migrants" who could not have passed "the wall" built by an elected official in a neighbouring country, so they went and searched a better place elsewhere, and it would still not affect gameplay and justbe a nod to the original series current political situation.
The hyperspace look in SC2 is not the only one looking like that (B5 comes to mind), and I would still not find that infringing.
The minerals is where it starts, continues with the mysterious aliens of the "small humanoid UFO flyers meddling with Human history and interfering in Human adventures" (who activate the Precursor starbases for you, instead of giving ships)., includes planetary life information collecting aliens, ... are all small and minor contributors.
Having a separate "two-player fight arena" and "a single player adventure" is another step (although that alone again is very minor, as that is an obvious extension to the adventure game).
But the continuous announcement of "in future will include all from SC2" makes a threshold where you have to step in.
And in itself proves intent of infringement (which alone may constitute a copyright infringement, even if the actual game does not yet include any infringing material, which is a borderline here).

And fan-made ships infringing copyrights?
The DMCA notice should have to be sent to Stardock (so they can take the content down). If Stardock does not react, or keeps it online (stating it does not infringe), only then the software hosting could be asked with a DMCA notice, IMHO.
But attacking fans directly would be a surefire way to alienate your own fanbase...


Also, on Twitter several have bought the game via humblebundle (orsimilar), received a steam key, and could use the steam key despite steam officially not selling the game anymore.


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 02, 2019, 05:49:37 pm
Quote
Having a separate "two-player fight arena" and "a single player adventure" is another step (although that alone again is very minor, as that is an obvious extension to the adventure game).

These would likely count as generic ideas, and thus not protected by copyright.

Quote
And fan-made ships infringing copyrights?
The DMCA notice should have to be sent to Stardock (so they can take the content down). If Stardock does not react, or keeps it online (stating it does not infringe), only then the software hosting could be asked with a DMCA notice, IMHO.
But attacking fans directly would be a surefire way to alienate your own fanbase...

Which is exactly why I think the fan-made ships should be left alone. By the way, when I was reading one of Paul's statements on CourtListener, it occurred to me that since the SC2 ship lookalikes mentioned in F&P's counterclaim appeared before SCO's release, Paul might have thought that these ships were made by Stardock. They were not. They were created by SCO players during the Fleet Battles beta, or perhaps by SCO's founders.


Title: Re: Stardock Litigation Discussion
Post by: meep-eep on January 02, 2019, 05:55:43 pm
According to Brad, both Valve and GOG have a policy that they automatically comply with all DMCA takedown notices regardless of their merits, which is presumably why both stores have taken the game down, even though both Valve and GOG know very well about this legal dispute, and Valve has already taken Stardock's side in the lawsuit. I, for one, thought that it was pointless for F&P to issue a DMCA against SCO for this very reason.

This policy from Valve and GOG makes sense. As I understand the DMCA takedown process, an online service provider can avoid liability for copyright infringement itself if it complies with a takedown notice. When a work is taken down following a takedown notice, the party accused of infringement can send a DMCA counter notice, and the online service provider can then restore the work without liability to itself.

So the next step for Stardock, if they really were acting in good faith, would be to send a counter notice to Steam and GOG to have SC:O reinstated.
However, the counter notice must include a statement sworn under penalty of perjury that Stardock has a good-faith belief that the material was removed as a result of a mistake or misidentification of the material. Falsely making such a statement would make Stardock criminally liable.

See https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act (https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act) for more info.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on January 02, 2019, 07:03:51 pm
This policy from Valve and GOG makes sense. As I understand the DMCA takedown process, an online service provider can avoid liability for copyright infringement itself if it complies with a takedown notice. When a work is taken down following a takedown notice, the party accused of infringement can send a DMCA counter notice, and the online service provider can then restore the work without liability to itself.

So the next step for Stardock, if they really were acting in good faith, would be to send a counter notice to Steam and GOG to have SC:O reinstated.
However, the counter notice must include a statement sworn under penalty of perjury that Stardock has a good-faith belief that the material was removed as a result of a mistake or misidentification of the material. Falsely making such a statement would make Stardock criminally liable.

There are a couple of caveats on the DMCA counter-notice process:

First, there is a minimum 10 day (maximum 14 day) waiting period between takedown and restoration. 

Second, if there is ongoing litigation about the IP, the material must remain down for the safe harbor to be retained.

The DMCA was written under a lot of influence by the recording and movie industries, and therefore tends to lean in favor of the copyright holder.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 02, 2019, 08:18:25 pm
In meep-eep's link is a very good understandable Takedown Example (https://en.m.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Takedown_example), also showing the ten-day waiting time before putting the alleged infringing work up again, and when it becomes permanent.

But I wonder how steam can continue to sell through "Humblebundle" when they took it down on their own site.... (since they should've stopped issueing steam keys to humblebundle at the same time).


Title: Re: Stardock Litigation Discussion
Post by: Jeff Graw on January 02, 2019, 08:29:53 pm
But I wonder how steam can continue to sell through "Humblebundle" when they took it down on their own site.... (since they should've stopped issueing steam keys to humblebundle at the same time).

Technically Valve/Steam isn't selling Origins or anything else through Humblebundle, they just provide the infrastructure that gets used after the sale.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 02, 2019, 10:48:26 pm
That would mean steam sold keys in advance to humblebundle who now sells them on. While as far as I understand how humblebundle works, humblebundle only gets the key once they sella copy of the game, which means steam sells the key (to humblebundle) the moment a user wants the transaction with humblebundle.
Anyway, at some time in the future, this may come up in court too, and might result in steam being found to wilfully infringe after having received a DMCA notice....

It may be I am wrong, and humblebundle is selling off a stack of steam keys they bought months ago....


Title: Re: Stardock Litigation Discussion
Post by: Jeff Graw on January 03, 2019, 02:11:53 am
That would mean steam sold keys in advance to humblebundle who now sells them on. While as far as I understand how humblebundle works, humblebundle only gets the key once they sella copy of the game, which means steam sells the key (to humblebundle) the moment a user wants the transaction with humblebundle.

Bearing in mind that it's entirely possible (and even quite likely) that Valve and Humblebundle have some sort of specific arrangement, that's not the typical way things work when it comes to selling a product outside the Steam storefront that still utilises Steam services. I'm afraid I can't go into more detail than that since I'm weary of inadvertently overstepping the bounds of NDA.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on January 03, 2019, 05:07:17 am
But I wonder how steam can continue to sell through "Humblebundle" when they took it down on their own site.... (since they should've stopped issueing steam keys to humblebundle at the same time).

Technically Valve/Steam isn't selling Origins or anything else through Humblebundle, they just provide the infrastructure that gets used after the sale.

Valve needs to "respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity" to retain safe harbor, not merely stop selling it. Of course, P&F's latest claim accuses Valve and GoG of failing to meet pretty much any of the conditions for safe harbor, let alone all of them.


Title: Re: Stardock Litigation Discussion
Post by: metamorphosis on January 03, 2019, 11:48:21 pm
Dogan and Kazon speak:
https://www.dogarandkazon.com/blog/2019/1/2/injunction-junction-court-instruction

Unfortunately I think this hurts the fans, but I understand that it's (probably) intended to give F&P the upper hand in negotiations going forward.


Title: Re: Stardock Litigation Discussion
Post by: metamorphosis on January 03, 2019, 11:56:37 pm
But I wonder how steam can continue to sell through "Humblebundle" when they took it down on their own site.... (since they should've stopped issueing steam keys to humblebundle at the same time).

No longer available through Humble Bundle, as of today.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 04, 2019, 03:34:14 pm
Ah. Thanks.
Q: another DMCA, ordid they run out of keys, or did Steam stop access to new keys?


Interestingly, Stardock sells Steam keys through its own shop now. Well, they are the lleged infringers anyway, but I wonder if Steam is happy about that, since the are being accused of supporting infringement...
I womder if steam will change how developer keys will be handled in the future...,

And I wonder when this site will finally have moved to the new URL...


Title: Re: Stardock Litigation Discussion
Post by: Talonious on January 04, 2019, 06:24:55 pm
Dogan and Kazon speak:
https://www.dogarandkazon.com/blog/2019/1/2/injunction-junction-court-instruction

Unfortunately I think this hurts the fans, but I understand that it's (probably) intended to give F&P the upper hand in negotiations going forward.

I'm not sure that I'd really agree that it hurts the fans that much, with the exception of possibly planned DLC not being released.

I would think that the game has been out long enough at this point that the majority of fans who intended to purchase the game have likely already done so if the sales trends follow traditional patterns wherein the majority of purchases are made in the initial week or two after a game's release.


Title: Re: Stardock Litigation Discussion
Post by: metamorphosis on January 06, 2019, 06:46:44 am
I'd argue it does, because if SCO is never available again F&P can expect a massive retaliation from non-diehards if their game isn't anywhere near as good, or even if it IS as good, or better.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 06, 2019, 11:12:46 am
I personally do not expect a superior gameplay from GotP, but an alternatice continuation of the UQM storyline.


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 06, 2019, 02:25:37 pm
I personally do not expect a superior gameplay from GotP, but an alternatice continuation of the UQM storyline.

No. If all you need is a continuation of the UQM storyline, F&P might as well scrap GotP (the game) right now and write a novel instead. I personally do expect gameplay that is at least comparable in quality to that of UQM (which is going to take a lot of hard work). And I do realize that games that are as non-linear and demanding of the player's attention as SC2 are just not made anymore, but still I'd want something that plays more like SCO than like Mass Effect.

I'd also want to have a visual style similar to the one SC2/UQM had. The Unzervalt slides from SC2's intro and ending are some of the most beautiful pictures that have ever appeared in video games. George Barr is 81 years old now, let's hope he's going to be around and available for hire when GotP's development begins in earnest. :D


Title: Re: Stardock Litigation Discussion
Post by: lostsoul on January 06, 2019, 05:58:46 pm
i was having this very discussion on the facebook star control 2 group.

story is the most important thing in video games to me...game play is a close second...and finally graphics.
i would not be wounded one bit if they used the same engine that drives sc2/uqm. sco is pretty, sure, but it lacks the story and continuation i wanted out of a sc2 sequel.
would it be underwhelming...yes...but if the story is there and well written...then i could overlook it all.

hell id be ecstatic if they made half life 3 using the same engine as the first game...if the story is there, and good, then it wouldn't matter...not in the least.

but i know my way of seeing it isn't for everyone...people need there eye candy for sure...and thats ok too.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 06, 2019, 09:35:00 pm
..people need there [sic] eye candy for sure...
*cough*Syreen*cough*

But I found the slide images of SC2 sufficient eye candy.

I fear nobody can achieve the expectation many old fans have when presenting their version of a continuation.
The UQM story line simply fits so well, and at the same time leaves so much open to imagination (and making it fit in whatever else fantasy/sci-fi/... you've heard of), that I fear modern players lack the imagination to,experi'a long time ago, in a far away galaxy' mce it as much as we did. Modern media tends to leave less open...


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on January 07, 2019, 02:57:54 pm
Dogan and Kazon speak:
https://www.dogarandkazon.com/blog/2019/1/2/injunction-junction-court-instruction

Unfortunately I think this hurts the fans, but I understand that it's (probably) intended to give F&P the upper hand in negotiations going forward.

I'm not sure that I'd really agree that it hurts the fans that much, with the exception of possibly planned DLC not being released.

I would think that the game has been out long enough at this point that the majority of fans who intended to purchase the game have likely already done so if the sales trends follow traditional patterns wherein the majority of purchases are made in the initial week or two after a game's release.
I doubt I'm the only person who doesn't buy games on release. Some people may prefer to wait until the game goes on sale, for example.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on January 07, 2019, 11:02:49 pm
Dogan and Kazon speak:
https://www.dogarandkazon.com/blog/2019/1/2/injunction-junction-court-instruction

Unfortunately I think this hurts the fans, but I understand that it's (probably) intended to give F&P the upper hand in negotiations going forward.

I'm not sure that I'd really agree that it hurts the fans that much, with the exception of possibly planned DLC not being released.

I would think that the game has been out long enough at this point that the majority of fans who intended to purchase the game have likely already done so if the sales trends follow traditional patterns wherein the majority of purchases are made in the initial week or two after a game's release.
I doubt I'm the only person who doesn't buy games on release. Some people may prefer to wait until the game goes on sale, for example.

I'm certain that there will be exceptions. And I'm sorry to hear if you're one of them who was waiting on a sale and still wants the game. Four things I'd say in response though.

1. I was speaking for the more typical sales curve, not saying that there would not be those who were waiting to buy the game who now can't. A typical video game sales curve post-release is a huge spike initially followed by a pretty steep drop and then a gradual "tail". Or, put another way, it's pretty typical for the lion's share of a game's sales to take place in the first week or two.

2. If P&F are correct in their claims, then Stardock is essentially stealing from them. It sucks for the fans who haven't yet bought the game but want to, but you can hardly blame them for objecting.

3. As the court judge itself pointed out, Stardock knew of P&F's objections nearly a full year prior to the game's release and chose to go forward with the game release announcement in June 2018 anyway despite the pending legislation. This is worth reiterating: P&F had given notice that they considered certain things infringing almost a year before the game was released. If the fans are now hurt, then Stardock is at least as responsible.

"Plaintiff asserts that it stands to lose substantial monies spent on the development and marketing of Origins. Plaintiff was aware of Defendants' copyright claim to Star Control I and II since the development of Origins commenced, however, and was aware of the contours of the present copyright dispute since at least December 2017. Thus, whatever monies Plaintiff invested in Origins was done with the knowledge that serious copyright disputes were likely to arise or had arisen.

Plaintiff further asserts that the release of Origins 'has been widely communicated to Stardock's customers, partners, and the press,' and that any disruption in its release will be injurious to Plaintiff's reputation. ...

Again, Plaintiff announced the release of Origins in June 2018, six months after this action commenced. Plaintiff thus invited reliance on its announcement regarding the release of Origins with knowledge of Defendants' claims.

In view of the foregoing, the harm Plaintiff complains of is indeed of its own making. Plaintiff had knowledge of Defendants' copyright claims from the outset. Despite this knowledge, it developed potentially infringing material without resolution of the IP ownership issues, and then publicized the release of that material during the pendency of this action.  It now claims that its investment in Origins and reputation are on the line.

Given that Plaintiff largely created the foregoing predicament, the court is disinclined to extricate Plaintiff from a peril of it's own making."


4. If P&F's claims do end up being without merit, the game will go right back up on Steam and GoG at some point. At which point it will probably either be on sale at that time, or will be at some other time in the future.

In  other words...

If P&F are correct, then they're preventing outright theft from them after having given Stardock plenty of advance notice and warning.

If Stardock/Brad is correct, then fans will have the chance to purchase the game eventually anyway and it's nothing worse than a normal game release delay for fans who were waiting anyway.


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on January 08, 2019, 05:25:56 am
I'm certain that there will be exceptions. And I'm sorry to hear if you're one of them who was waiting on a sale and still wants the game.
I wasn't specifically referring to SCO, which I still haven't entirely decided on, but sale or not, I generally only buy games that have been released for awhile.

I do kind of want to try SCO but I really don't want to give Stardock my money, so I dunno. Probably the only way I'd actually buy it would be in a Humble Bundle type situation that allows me to specify that all the money goes to charity (or other developers) instead of to Stardock.


Title: Re: Stardock Litigation Discussion
Post by: Shiver on January 08, 2019, 11:02:14 am
I do kind of want to try SCO but I really don't want to give Stardock my money, so I dunno. Probably the only way I'd actually buy it would be in a Humble Bundle type situation that allows me to specify that all the money goes to charity (or other developers) instead of to Stardock.


(http://i.imgur.com/cK2jcmq.png)

...like this?


Title: Re: Stardock Litigation Discussion
Post by: Shiver on January 08, 2019, 11:06:27 am
That's a little joke, by the way, I haven't actually done that myself. The screenshot is from elsewhere (https://forums.somethingawful.com/showthread.php?threadid=3828221&pagenumber=1457&perpage=40#post491202572). I meant to say that CeltricMinstrel's idea was something you could do on Humble Bundle just a few days ago.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on January 08, 2019, 08:04:39 pm
That's a little joke, by the way, I haven't actually done that myself. The screenshot is from elsewhere (https://forums.somethingawful.com/showthread.php?threadid=3828221&pagenumber=1457&perpage=40#post491202572). I meant to say that CeltricMinstrel's idea was something you could do on Humble Bundle just a few days ago.

Which does make the point that the game has already been heavily on sale in certain places. (Having already bought it I hadn't really been watching for sales on it so I didn't really know if it had or not.) So there probably aren't THAT many fans who would likely be impacted by the game being taken off of Steam and GoG at this point who hadn't already bought.

Naturally there will be some, but games usually don't show up on Humble Bundle early on in the distribution and sale life cycle.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 08, 2019, 09:05:52 pm
Yan can still buy Origins on the stardock site (whichalso just issues a Valve Steam key, which may  be the reason Valve could lost its safe harbour status, if judge and/or jury finds Valve is supporting a continued sale of Origins).


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on January 10, 2019, 03:15:18 am
(http://i.imgur.com/cK2jcmq.png)

...like this?
Yeah, exactly like that. I'm not particularly inclined to get that particular bundle mind you, since it doesn't even include SCO, but that's what I was referring to.


Title: Re: Stardock Litigation Discussion
Post by: Shiver on January 10, 2019, 07:32:13 am
SC:O was on Humble Bundle briefly for a few days. The screen cap was from someone who got the game during that window.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 10, 2019, 11:23:19 am
Either they got DMCA'ed too, or they ran out of Steam keys, or Steam also closed automated access to new keys for humblebundle.

On Reddit someone pointed out a spike in sales when the DMCA came.
Likely those who wanted the game but've been waiting for a price reduction, and now fear the game may never come online again.



Title: Re: Stardock Litigation Discussion
Post by: lostsoul on January 11, 2019, 01:18:14 am
i picked it up for under $10 on release day from g2a marketplace...i laughed at their price then, just like i'm laughing at their reduced price now...

Flim and Flam are best ponies?


Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on January 12, 2019, 01:40:14 am
Yeah, if I decide I want to play it I guess I'd have to take that route now, huh.


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 14, 2019, 01:08:39 pm
So what do you think of the comparison table at the end of the Injunction Junction post (https://dogarandkazon.squarespace.com/blog/2019/1/2/injunction-junction-court-instruction)? Currently it seems to me that F&P's arguments for copyright infringement in this particular case are very weak. Most of the points they have listed seem to be completely irrelevant, as they are generic concepts, gameplay elements or UI elements, neither of which is copyrightable as far as I know (otherwise why would we have so many video game clones?). The only parts that do seem relevant are the visual appearance of hyperspace and maybe the "true space" name (which in itself would not constitute copyright infringement, but may contribute to substantial similarity - IANAL, though, and currently I'm inclined to think that this is also irrelevant). And yet, there are still some ways in which the expression of hyperspace travel in SCO is different from that of SC2, though still obviously inspired by it. So I'm currently on the fence whether the court is going to rule that as infringing, as there are good reasons to believe it won't (I'm personally amazed at how Accolade managed to avoid a lawsuit from whoever owns the copyright to the 2001: A Space Odyssey film, when ICOM in SC3 looks like this (https://i.ytimg.com/vi/fy4zaCbfs08/hqdefault.jpg)). This (https://forums.starcontrol.com/492870/page/3/#3737718) post by Brad on the SCO forum and the Kotaku link he gives are also interesting.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on January 14, 2019, 02:02:51 pm
I'm not a fan of that particular argument by P&F either, but the fact that Stardock was poised to release "Chenjesu" and "Arilou" DLCs and included the Zoqfotpik, Frungy, Precursors, Arilou-not-Arilou, etc in the game and the fact that Stardock applied trademarks for essentially everything in SC1 & 2, even Fwiffo, and with the on-going litigation, kind of strengthens P&F's argument.

Without all those stunts, yes, I might sympathize with Stardock on that one argument.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 14, 2019, 02:43:07 pm
Also, not a lawyer myself.

Personally, I found the list of stuff very interesting, as indeed all of that stuff contributed to "we want Origins to feel like SC2", which Brad announced beforehand.
So, intention was there, the stuff seemed very interesting.
Beforehand, I did not think much about it, but indeed, the current implementation of HyperSpace in Origins does seem to be intentionally and by feel very close to the UQM hyperspace, which has in this form first been programmed by FF and PR3... (e.g. HyperSpace has no "flow" pushing ships "off course", like HyperSpace in Babylon 5 does, And Hyperspace in babylon 5 has no "holes for solar systems", no you need a hyperspace gate (generator) to transfer from Hyperspace to TrueSpace and the other way).
Of course the hyperspace music by Riku is not copyright protected by FF and PR3, but by Reiku. But again, the use of a remix of the music used for UQM again contributes to the similarity of Origins hyperspace to UQM hyperspace.

I fear the final straw tipping the balance in favour of FF and PR3 will be the announced intention of "all copyright belongs to us anyway" barked by the PR department and the CEO of Stardock...


Also, the clones in games are simply there, because the smaller authors often do not have the money to go after the clone makers/distributors. And sending DMCA notices is also rather expensive (through the use of a lawyer) for these small independent authors.
And even if the copycats would not counternotify, it's simply often not worth the hassle.

Here, the situation is different.
A company has announced it will use ALL of the settings and characteristics of a previous game. (Announcing the intention to steal the copyright.)

Also, ICOM is very different from Hal 9000 (Space Odysee 2001).
Hal 9000 is fully sentient, but conflicted due to space mission requirements, and always polite  ("I'm sorry Dave, I'm afraid I can't do that. (https://www.youtube.com/watch?v=ARJ8cAGm6JE)"), even when he is deadly.
ICOM is outright annoying, and far from appearing to be sentient.
(But then, ICOM was also able to end your "life" (game). But it seems that the lack of commercial success also prevented anyone (read: MGM) from scrutinizing this too much.
Yes, ICOM could've been designed differently (e.g. a monitor with a speaker) instead of the iconic "camera eye", but in a genre full of "nods" towards other's creations,...)
I would not wager on how a copyright infringement case would've gone.

And the player vs Player fighting game Stardock uses in its defense? The game elements are simply based on necessity (ruling), as such there was no real way the "copying" company could avoid likeliness (yes, the health bars could've been placed differently - but the rest (persons positions, move directions,... is required through gameplay).
Yet, Origins could've used a different form  of interstellar travel without hurting the gameplay. So the example of streetfighter is not fully analogous (but one which Stardock's attorneys will try to ride until the end - and they would be unwise to not try this defense).
Also, Capcom never went to appeal, IIRC. In the Kotaku article  (https://kotaku.com/the-fighting-game-capcom-tried-to-get-pulled-from-arcad-1831460432) reference is made to teh PAcman/KC Munchkin case. Pacman lost on first instance, but prevailed in appeal.
Who knows how the StreetFighter (Capcom) case would've ended on appeal?
(And I always found the specific charaters in Fighter's History to be too similar to the characters in Street Fighter.... Heck, just give the blond guy different moves and keep hsi moves for a blue haired guy. Shuffle the stuff around.... For the rest, the appearance of a chinese traditional dress is a step rather obvious for a game implementing East Asian fighting styles...)



Also, copyright violation is not comparing single items against each other, like Mr. Wardell does in his posts, but by making a list of similarities, and differences.
And he is simply not able to explain why his hyperspace had to be red, and not black, why he even has hyperspace and not a bubble warp like SC3 did,...

Stardock could for example not have prevented from using a starmap, similar to UQM. In a space setting, you have stars. When doing quests, it is obvious to fly some way from one star to the next. And you need a kind of map to allow the players where to go next. But Stardock could've used a kind of "bubble warp", or "stargates", or any other device.
But Stardock purposefully chose a system extremely similar to the one in UQM, because they wanted to make the game feel alike.

Guess what? Intentions are relevant. And Stardock's intention is pretty well documented.
If there is intention, the dissimilarities need to be larger than when intent cannot be assumed or even proven.

End of my layman's comment.



Let's help Stardock a bit, and compile a list of how HyperSpace in Origins differs from UQM:

- The "holes" show what is happening INSIDE the system. (although systems at that time might've had a hard time showing such a behaviour)
- Ship orientation when flying into a system does matter.
- there are Spacestations stationed in HyperSpace.
- Hyperspace travel speed is not determined by amount of hyperspace engines, but by type of engine (although this point does not affect the feel of actual hyperspace travel itself)


Title: Re: Stardock Litigation Discussion
Post by: Elestan on January 14, 2019, 05:42:54 pm
it seems to me that F&P's arguments for copyright infringement in this particular case are very weak. Most of the points they have listed seem to be completely irrelevant, as they are generic concepts, gameplay elements or UI elements, neither of which is copyrightable as far as I know (otherwise why would we have so many video game clones?).

One thing to keep in mind is that even though the color 'red' itself is clearly not copyrighted, the fact that two different items are both red can still be a point of similarity when deciding whether one is "substantially similar" to the other.  Brad is trying (with some success) to make P&F look unreasonable, by misrepresenting their post as though they were actually claiming to have a copyright on the individual items in their table, when that is not at all the case.

Unfortunately, many of the people reading Brad's twitter feed do not catch on to that distinction.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 14, 2019, 09:26:31 pm
But a judge will not be convinced by this argumentation of Mr. Wardell.
Which will then create a very difficult situation for Stardock and their fans.... (since the fans will be unaccepting of how a judge could gave decided against Stardock...)


Title: Re: Stardock Litigation Discussion
Post by: Elestan on January 15, 2019, 01:54:03 am
But a judge will not be convinced by this argumentation of Mr. Wardell.
Which will then create a very difficult situation for Stardock and their fans.... (since the fans will be unaccepting of how a judge could gave decided against Stardock...)

I don't want to presume what the Judge will decide, let alone the jury.  It's entirely possible that P&F's theory of infringement could be perfectly valid, but the infringing parts of SC:O are found to be insufficiently substantial to warrant liability.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 15, 2019, 08:13:26 am
Indeed.
I should've formulated my post less definite, or conditional on the case that Origin is found to infringe copyright in certain parts.


With the story (Melnorme, Zebranky, ZFP, ..., as far as I saw them in "let's play" videos) I find the references in Origins personally to be more like a nod to a previous game to be insubstantial enough (as you cannot do anything about those stories, just read them, but not interact) (nods which should nevertheless not have appeared because of the ongoing dispute), but especially the hyperspace of Origins is made substantially similar to the HyperSpace of UQM, IMHO.
Which should not be too much of a problem to change substantially (e.g. change music, colour, "moving streaks of light"), and then sales of Origins can continue.
A minimap in a corner is basically a necessity, hence that element may contribute to likeliness, but should not cause infringement; the same is true for the use of an autopilot.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on January 15, 2019, 09:23:59 pm
So what do you think of the comparison table at the end of the Injunction Junction post (https://dogarandkazon.squarespace.com/blog/2019/1/2/injunction-junction-court-instruction)? Currently it seems to me that F&P's arguments for copyright infringement in this particular case are very weak. Most of the points they have listed seem to be completely irrelevant, as they are generic concepts, gameplay elements or UI elements, neither of which is copyrightable as far as I know (otherwise why would we have so many video game clones?). The only parts that do seem relevant are the visual appearance of hyperspace and maybe the "true space" name (which in itself would not constitute copyright infringement, but may contribute to substantial similarity - IANAL, though, and currently I'm inclined to think that this is also irrelevant). And yet, there are still some ways in which the expression of hyperspace travel in SCO is different from that of SC2, though still obviously inspired by it. So I'm currently on the fence whether the court is going to rule that as infringing, as there are good reasons to believe it won't (I'm personally amazed at how Accolade managed to avoid a lawsuit from whoever owns the copyright to the 2001: A Space Odyssey film, when ICOM in SC3 looks like this (https://i.ytimg.com/vi/fy4zaCbfs08/hqdefault.jpg)). This (https://forums.starcontrol.com/492870/page/3/#3737718) post by Brad on the SCO forum and the Kotaku link he gives are also interesting.

I think you can make the argument, as Brad has done, that each individual piece is weak.

It's the accumulation of the various pieces that makes the argument more compelling. If you copy one or two pieces, you can call it a tribute, an inspiration or even a coincidence.

Copy everything about something and it becomes a much more compelling case.


Title: Re: Stardock Litigation Discussion
Post by: Narsham on January 16, 2019, 01:39:11 am
So what do you think of the comparison table at the end of the Injunction Junction post (https://dogarandkazon.squarespace.com/blog/2019/1/2/injunction-junction-court-instruction)? Currently it seems to me that F&P's arguments for copyright infringement in this particular case are very weak. Most of the points they have listed seem to be completely irrelevant, as they are generic concepts, gameplay elements or UI elements, neither of which is copyrightable as far as I know (otherwise why would we have so many video game clones?). The only parts that do seem relevant are the visual appearance of hyperspace and maybe the "true space" name (which in itself would not constitute copyright infringement, but may contribute to substantial similarity - IANAL, though, and currently I'm inclined to think that this is also irrelevant). And yet, there are still some ways in which the expression of hyperspace travel in SCO is different from that of SC2, though still obviously inspired by it. So I'm currently on the fence whether the court is going to rule that as infringing, as there are good reasons to believe it won't (I'm personally amazed at how Accolade managed to avoid a lawsuit from whoever owns the copyright to the 2001: A Space Odyssey film, when ICOM in SC3 looks like this (https://i.ytimg.com/vi/fy4zaCbfs08/hqdefault.jpg)). This (https://forums.starcontrol.com/492870/page/3/#3737718) post by Brad on the SCO forum and the Kotaku link he gives are also interesting.

Brad seems to think that his arguments online are legal arguments (the judge seems to disagree). P&F do not appear to think that. Their post isn't a legal argument, it's merely suggestive. And here's what it is suggestive of (and why all the SC3 items are in that middle column):
Situation 1. Stardock is developing Star Control: Origins, owns the name and all the SC3 stuff not licensed from P&F, and needs to make some interface decisions like "how does travel work?"
A. Follow in SC3's footsteps with a similar interface to make the game seem "of a piece" with SC3. The problem is that new players haven't heard of SC3 and most of those who played it now insist that it never happened. (It also isn't a great interface.)
B. It's been decades. Come up with an entirely new interface that looks nothing like SC2 or SC3. For instance, make travel from star to star work like in the Gal Civ series. Of course, why make a "Star Control" game after buying the rights if that game isn't going to look anything like Star Control?
C. Everybody loves SC2. Make it look like SC2, with some modifications and updates.

Perhaps there's a backer/Founder ITT who knows what early development Hyperspace looked like. Certainly this should come out in discovery. C isn't necessarily fatal to the case. It's Situation 2 that introduces problems.

Situation2. Stardock has filed a lawsuit, P&F file a counter-claim. There's anything up to and including a DCMA takedown threat to the game. Development isn't yet complete. Which do you do?
A. Make the interface look more like SC3, which you own (at least in part) free and clear. That protects you against the counterclaim and the DCMA threat because not only do you not infringe, you can show that you made extra effort not to infringe. Of course, the fans of SC2 will hate the interface.
B. Make the interface look unique or unlike SC2. This will take longer and require more development, but again, you'd be showing you have gone out of your way not to infringe. (And if you didn't choose C originally, it isn't actually going to take more development.)
C. Make the interface look the same as before (if you picked C) or deliberately modify it to intensify the comparison between SC2 and your game. After all, your CEO has filed to trademark race names and expressed the theory that if he has orange one-eyed aliens that sell things in exchange for biological data and are called the Maelnym (or something similar), that's protected.

Worst-case here for Stardock is a situation 1 A or B followed by situation 2 C. It's not merely that the interface may infringe, it is that choices were made about the combined elements of the interface during development with the deliberate intent to infringe. "Vindicator" isn't owned by P&F, it's associated with the game folks love, so make the ship default to "Vindicator" and tell P&F to suck it. (It's also a trivial change to make if you wanted to avoid even the appearance of infringing content.)

Since Brad seems determined to assert that he owns the content that P&F claim to be their IP, and seems to believe that using that content in his game strengthens his case, most likely a case can be made that deliberate choices were made to shift Origins closer to the SC1/2 continuity in order to assert control over the content in dispute. In court, faced with that case, Brad's lawyers are going to need a better argument than "nobody owns 'red,' your honor" and I'm unsure that discovery is going to help matters for them.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on January 16, 2019, 03:00:15 am
Perhaps there's a backer/Founder ITT who knows what early development Hyperspace looked like. Certainly this should come out in discovery.

A founder posted about that here (https://old.reddit.com/r/starcontrol/comments/acxdgq/how_many_details_is_too_many/edc2zir/).

Apparently hyperspace in SC:O was originally purple, but was changed to red to make it more like SC2.


Title: Re: Stardock Litigation Discussion
Post by: Serosis on January 16, 2019, 04:13:58 am
Actually it was pink.

I was the proponent that made Brad change it to red actually.

I was tired of looking at the pink hyperspace example they had up on the Founder forums so I took it, ran it through photoshop, slapped it up on the forums and Brad immediately took to it.
So if anyone dislikes SCO having red hyperspace, I'm the guy to point the finger at because that was a major campaign of mine (#MakeHyperspaceRedAgain) to get it to be that color.

In fact... Quick Google search to see if that image made it pass the NDA...
Yep, sweet, here's the image in question that I'm talking about:

(https://www.amd.com/system/files/64241-star-control-origins-screen5-1260x709.jpg)

Now just imagine a rushed job of masking off anything that's not hyperspace and tweaking the hue. That would have been my edit.

I got that image from AMD: https://www.amd.com/en/gaming/star-control-origins

EDIT:

And it is so easy at the moment to change the color of Hyperspace barring the particle effects.
I'm partial to it being completely black. It looks neato.




Title: Re: Stardock Litigation Discussion
Post by: CelticMinstrel on January 16, 2019, 05:09:56 am
Sure we can point a finger at you, but Stardock had no obligation to do what you wanted them to do, so in the end it's still their fault that Hyperspace is red.


Title: Re: Stardock Litigation Discussion
Post by: Serosis on January 16, 2019, 05:51:05 am
I'm willing to put money on them never changing from pink had I not intervened.

Nobody apart from me cared that much.


Title: Re: Stardock Litigation Discussion
Post by: Kwayne on January 16, 2019, 09:34:15 am
Whether it's pink or purple or blue, it wouldn't change anything. Nevertheless I don't think a general aesthetic can be owned, or at least, such similarity is not enough to make SCO into an unfairly competing product with UQM or whatever other Star Control game there will be on the market.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 16, 2019, 02:31:22 pm
Copyright does concern a product as a whole, but also certain recognisable (and potentially defining) elements of said product.
The judges and jury will have to decide on the balance of how small an element that is copyrightable in this case can be, and how large it must be to become copyrightable without covering basic stuff (having FTL-travel, the colour red, holes in hyperspace indicating locations of stars, a minimap, ...).
But the element of HyperSpace as it is expressed in SC2/UQM is by itself a pretty closed element, and can be copyrighted by itself. (Just as the character "Harry Potter" is copyrighted as such, without having the whole content of the magical world as portrayed in the books and films.)
Now jury and judges need to decide on if this form of HyperSpace used by UQM is copyrightable or still generic and the product of a general Sci-Fi setting/knowledge of science/..., and if YES (copyrightable as such), whether this HyperSpace as used in Origins is substantially similar to UQM-HyperSpace.
It's nice of Stardock to point to the Street Fighter game case law, but the Pacman case law points a different direction (and Pacman went through appeal, Street Fighter not).


Title: Re: Stardock Litigation Discussion
Post by: Pyro411 on January 16, 2019, 10:49:16 pm
Yikes the 2.5D hyperspace makes a return...

I remember the make HS red again movement, also the movement to get animated glowing/pulsating mushrooms into the game, but thankfully the 2.5D Hyperspace map changed into a 2D map before release.


Title: Re: Stardock Litigation Discussion
Post by: Narsham on January 17, 2019, 12:53:14 am
I'm willing to put money on them never changing from pink had I not intervened.

Nobody apart from me cared that much.

If Stardock loses the case badly, let's hope they don't come after you for damages.

I would normally put a smiley after that sentence, but given how this thing has been going, I'm not willing to take the chance.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 17, 2019, 08:35:25 am
I would find it very weird if any jury or judge would decide that Stardock could claim damages against the "red HyperSpace" movement...
Even if the idea came from the movement, it remains still the obligation of StarDock to check if this could lead to a copyright infringement.
No matter if fans scream for a game with "a HyperSpace exactly like the one in UQM", they make it and must therefore take care to not copy the artistic expression of others.....
And in this case this would not have required much research, as Stardock knew of the original game from which the requested feature came.

And seeing how in music they scramble over simple guitar riffs, I am astonished how few PC-game cases ever make it to court....

Anyway:
Saturday Morning Breakfast Cereal (comic) puts the question "Can video games be art? (http://www.smbc-comics.com/comic/art-2)" in today's comic...
Nice coincidence for this topic.
But I am not Zinkydoink.
Spoiler: As usual, it does not answer the question directly.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 18, 2019, 11:41:06 am
Just an update for your info: Steam has put Origins on sale again.

I don't know why, but I guess Stardock guaranteed to pay any damages against Valve if a judge/jury does find the game to be copyright infringing.


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 18, 2019, 11:58:37 am
Or maybe Stardock sent a DMCA counter-notice to Valve (which most likely amounts to the same thing - unless of course Stardock is found guilty of perjury, in which case the punishment is probably going to be a lot harsher).


Title: Re: Stardock Litigation Discussion
Post by: SirPrimalform on January 18, 2019, 02:55:41 pm
As a lighthearted aside, it seems Brad Wardell has claimed the #freestarcontrol hashtag on twitter to be a movement in support of Stardock, when in reality it was first used in a decidedly anti-Stardock sense. Also most of Brad's "movement" is himself.

It would amuse me greatly if Star Control fans here were to reclaim it and drown him out.

EDIT: It has 16 pro-Stardock uses on twitter, 7 of which are Brad himself. It wouldn't take a lot to reclaim the original meaning.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 18, 2019, 03:28:04 pm
Nope, DMCA alone only gives safe harbour status to hosting companies IF within 10 days after the takedown notice still no case has been filed by the alleged copyright holder, then the counter-notification is sufficient to retain safe harbour status.
As there is already a case ongoing, Valve would not get a safe harbour status for its Steam service.
(Or it may be an accident, as they may have been waiting for an additional letter stating that an action has been filed. Which would not been forthcoming, as the case is already before courts.)


Disclaimer: this is based on how I understood the DMCA process. It may well be that I am wrong.

Edit: (I think I am wrong)
Quote from: https://www.brainz.org/dmca-takedown-101/ (https://www.brainz.org/dmca-takedown-101/)
The Counter-Notice Process

The client who is the subject of the DMCA notice, has several courses of action that they can take.

First, they can simply do nothing. If the notice was valid and the takedown was just, they can simply do nothing and accept that the work has been disabled.

Second, if the work was not infringing and the notice was either in error or malicious, the client can then file what is known as a counter-notice. That notice must contain the following elements:
[formal requriements removed]

When a counter-notice is filed, the host must then notify the person who filed the original notice and then, in a time between 10-14 business days, restore the work that was taken down. In that time, the filer of the notice has the option of seeking resolution in the courts and obtaining an injunction that will keep the work offline.

Finally, in extreme cases where the notice was false and filed knowingly so, the subscriber/user can file suit against the filer for damages including attorney’s fees and court costs.
(highlighting by me)
Apparently, to keep the work offline, the DMCA-notice sender has to get an injunction to keep the stuff online.
I have not seen F&P request a preliminary injunction (which should only have a chance if the judge would find the finding of a copyright infringement highly likely, and seeing the different opinions I've read, that seems questionable).
So, without a court order to keep the stuff (Origins) offline, apparently the hoster (Valve/Steam) should bring the stuff back online and await a court order to take it down again.

Ah well, I'm sure Valve is nto risking more than necessary, and that their understanding of the DMCA safe-harbour requirements is vastly superior to mine.


Title: Re: Stardock Litigation Discussion
Post by: Talonious on January 18, 2019, 09:48:35 pm
Just an update for your info: Steam has put Origins on sale again.

I don't know why, but I guess Stardock guaranteed to pay any damages against Valve if a judge/jury does find the game to be copyright infringing.

Could be wishful thinking, but one other possible explanation is that there are settlement talks going on behind the scenes wherein P&F allowed the game to go back up on sale as a goodwill gesture.

I don't consider this to be particularly realistic, but it IS one other possible explanation that might fit.

But, being real here, this does not seem like a course of action Brad has ever been interested in considering.


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on January 21, 2019, 08:09:41 pm
One thing I haven't seen commented on: https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.71.8.pdf

Exhibit 8 is the "Bill of Sale" from the bankruptcy, and lists the 1988 agreement without an expiration date. Until 2017, it's not unreasonable for Stardock to have assumed they really did have publishing rights.

The bankruptcy sales contract said that Atari was making no guarantees about the IP, so it was Stardock's responsibility to rigorously check everything; that little summary in the bill of sale is not a substitute for reading the full contract.  Stardock received a copy of the original contract, and if its lawyers didn't verify that there was a continuous record of at least $1000/year in royalties paid to Paul (evidently overlooking the decade-long gap in sales), and didn't notice the "This agreement ends if the publisher goes bankrupt" clause when they were buying it at a bankruptcy auction, that doesn't seem like Paul's problem.

At the very least, the estimated cure amounts (http://forum.uqm.stack.nl/index.php?topic=5463.msg71104#msg71104) should have put the prospective bidders on notice that Classic games might have gone out-of-print.


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on January 21, 2019, 08:20:09 pm
So what do you think of the comparison table at the end of the Injunction Junction post (https://dogarandkazon.squarespace.com/blog/2019/1/2/injunction-junction-court-instruction)? Currently it seems to me that F&P's arguments for copyright infringement in this particular case are very weak. Most of the points they have listed seem to be completely irrelevant, as they are generic concepts, gameplay elements or UI elements, neither of which is copyrightable as far as I know (otherwise why would we have so many video game clones?).

I'm not a fan of that particular argument by P&F either, but the fact that Stardock was poised to release "Chenjesu" and "Arilou" DLCs and included the Zoqfotpik, Frungy, Precursors, Arilou-not-Arilou, etc in the game and the fact that Stardock applied trademarks for essentially everything in SC1 & 2, even Fwiffo, and with the on-going litigation, kind of strengthens P&F's argument.

Without all those stunts, yes, I might sympathize with Stardock on that one argument.

Whether it's pink or purple or blue, it wouldn't change anything. Nevertheless I don't think a general aesthetic can be owned, or at least, such similarity is not enough to make SCO into an unfairly competing product with UQM or whatever other Star Control game there will be on the market.


Would it change your analysis at all if you thought of HyperSpace not as a gameplay element or space operatic scene a faire, but instead as a fictional *place* created by P&F?

It seems to me as though P&F are arguing that HyperSpace is a specific imaginary setting they created - their own unique take on a wood between the worlds - a two-dimensional, red-shifted plane where the Vindicator encounters (or avoids) alien ships, *Nnngn* dance and play, and a certain music plays in the background.

Does this (https://cdn.discordapp.com/attachments/477867809540407307/531192928962347008/hyperspaceMock1a_3.png) attempt to depict a higher-resolution return to the scene of P&F's story? What about this (https://draginol.stardock.net/images2016/Star-Control-Screenshot-Friday-2018.5.11_EB30/image_3.png)?


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 21, 2019, 10:52:18 pm
Would it change your analysis at all if you thought of HyperSpace not as a gameplay element or space operatic scene a faire, but instead as a fictional *place* created by P&F?

It seems to me as though P&F are arguing that HyperSpace is a specific imaginary setting they created - their own unique take on a wood between the worlds - a two-dimensional, red-shifted plane where the Vindicator encounters (or avoids) alien ships, *Nnngn* dance and play, and a certain music plays in the background.

Does this (https://cdn.discordapp.com/attachments/477867809540407307/531192928962347008/hyperspaceMock1a_3.png) attempt to depict a higher-resolution return to the scene of P&F's story? What about this (https://draginol.stardock.net/images2016/Star-Control-Screenshot-Friday-2018.5.11_EB30/image_3.png)?

Yes, I do understand that hyperspace as depicted in SC2/UQM has its own artistic expression that is, in fact, copyrightable. And obviously, copying that expression too closely would constitute copyright infringement. And I'm still on the fence whether Stardock's expression of it in SCO is infringing. It does come uncomfortably close to that, and let's not forget that F&P would have to come up with an updated look of hyperspace in GotP. If F&P let SCO go now, who is there to guarantee that Stardock won't sue F&P for copyright infringement if and when they release GotP?

However, the table F&P listed still has many points that seem to me  completely irrelevant to how hyperspace is expressed in SC2/UQM (though again, I'm not a lawyer). These are:

Quote
Display is 2D, top-down with your starship named 'Vindicator' shown in the middle of the screen
Moving onto "holes in space" automatically takes you to the star system
Radar map shows stars and ships near you
Alien ships also travel through interstellar space and if they overlap your ship, you must talk or fight with them
2D Positional coordinates show position in space, using horizontal and vertical values ranging from 0-1000 with exactly 1 decimal point
When you run out of fuel, a helpful alien ship appears on radar screen, moves toward your ship, opens communicaitons and offers to help you... for a price.
Player can set 'autopilot' to fly to destination star automatically

Out of these, only the coordinate format may be somewhat problematic, and in my opinion it can still be safely ignored. As for the "running out of fuel" scenario, there is no price you must pay in SCO (beyond having to listen to the Tywom's crappy Star Trek fanfics). The rest are just gameplay and UI elements.


Title: Re: Stardock Litigation Discussion
Post by: orzophile on January 22, 2019, 04:02:42 am
The Hyperspace expression, in and of itself, isn't a slam-dunk sort of argument and if that was the only thing then it probably wouldn't qualify. My assumption is that they simply picked a single example for their blog post and have numerous other elements and expressions they're planning to show in court if it goes that far. In other image or non-verbal expression cases it is often the sum of many elements that ends up determining a derived work.

In a way Stardock seems to have brought a lot of these issues on themselves by aggressively attempting to extend their trademarks and it's not going to be a surprise if that gets turned on them in the copyright decision.

As with many court issues there is no exact analogue, but some of the court's reasoning in cases such as DC COMICS V. TOWLE (https://pmcdeadline2.files.wordpress.com/2015/09/batmobile-appeals-decsion-sept-23-2015-wm.pdf) might be interesting reading (can you copyright the Batmobile?).


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 22, 2019, 09:04:51 am
I know the car designer lost the case. First instance and on appeal.

There's pacman's (vs. K.C. Munchkin) case too, lost on first instance, on appeal it was found to be copyright infringement.
There's the case Stardock hammers on, Street Fighter, which lost the first instance (no copyright infringement), but if I remember correctly, that case never went to appeal (appeal courts seem to have a stricter stance than first case instances). Also in streetfighter the complainant (copyright owner) too a special approach, which automatically meant large parts of the game's copyright would be indefensible, due to the tactic relying on specific details only, and those details were found to be differing sufficiently.

http://mentalfloss.com/article/55078/11-times-video-games-led-lawsuits: pacman is case 2;
http://patentarcade.com/2005/08/case-capcom-v-data-east-nd-cal-1994-c.html for the Street Fighter II case, preliminary injunction to forbid sales (no final decision).

Note: The streetfighter case is a lot less clear cut than Starodock wants to make me believe.
In the streetfighter case, "The court did not find Data East’s [defendant] evidence persuasive, as while other outside sources may have influenced the development of the Fighter’s History characters, there was no doubt that Street Fighter II characters also provided a significant source of inspiration."
Also regarding the similarity in how the special moves were activates (button sequence): "While the Court was disturbed by these “coincidences” in some of the arbitrary control sequences, it concluded that because the control sequences did not constitute protectable expression, these isolated similarities were not actionable. "
Also, "The court found that three characters and five special moves in Fighter’s History were similar to protectable characters and special moves in Street Fighter II. ", but the final "subjective analysis of similarity"  (not objective, so not a clear cut case, an appeal court may have a different subjective feeling).
Resulting in "the court determined that Capcom had failed to demonstrate a likelihood of success on the merits or even serious questions concerning the merits".
Finally, the Street Fighter distributor lost, because martial art games simply have typical moves transferred from martial arts, and those cannot be copyrighted, and the button sequence often followed that move.  Read Claude Stern's passage (https://www.polygon.com/a/street-fighter-2-oral-history/chapter-4) for a short summary.

HyperSpace is not comparable to movements of the Human Body, as HyperSpace is completely fictional, and has as far as we know today no limitations based on scientific facts which could limit the copyright, as the movements of the StreetFighter characters have been limited.

I wonder if that example case will really help Stardock. As the preliminary injuction judge did find substantial similarity, but just in non-copyrightable elements... (scenes-a-faire, limitations based on movements of the Human body, limitations on how a player can control a screen character,...)


Also, I now wonder if the Street Fighter II case ever went to a final judgement, as I (in my cursory searrch) only found documents relating to the preliminary injuction to forbid sales of Fighter's History. And preliminary injunction decisions are not really comparable to full court cases....


Title: Re: Stardock Litigation Discussion
Post by: Narsham on January 22, 2019, 08:58:41 pm
Quote
Display is 2D, top-down with your starship named 'Vindicator' shown in the middle of the screen
Moving onto "holes in space" automatically takes you to the star system
Radar map shows stars and ships near you
Alien ships also travel through interstellar space and if they overlap your ship, you must talk or fight with them
2D Positional coordinates show position in space, using horizontal and vertical values ranging from 0-1000 with exactly 1 decimal point
When you run out of fuel, a helpful alien ship appears on radar screen, moves toward your ship, opens communicaitons and offers to help you... for a price.
Player can set 'autopilot' to fly to destination star automatically

Out of these, only the coordinate format may be somewhat problematic, and in my opinion it can still be safely ignored. As for the "running out of fuel" scenario, there is no price you must pay in SCO (beyond having to listen to the Tywom's crappy Star Trek fanfics). The rest are just gameplay and UI elements.

Well, for example, if the game doesn't automatically center your ship on the screen when in normal space, but locks you in the center of the screen in hyperspace, that would be a change in how the game handles display that matches how SC2 operates and could be part of a "look & feel" claim. (I haven't played Origins; Youtube footage suggests that the game determines screen center differently in hyperspace than in normal space but that it doesn't lock the player's ship in the center, so that's a point in Origin's favor.)

My sense is that, if you're making the legal argument, you list everything together as a package to make your claim as strong as possible. There is a difference between "legally arguable" and "objectively established" here; I doubt a judge is going to do a deep code dive, for example, to study the algorithms used to center the display in SC2 and in SCO, but she can see a file named "Arilou" and draw conclusions from that. (For that matter, the P&F post is not their legal argument, just illustrative of it.)

And you're still ignoring the point that, with the contexts of SC2 and SC3 interfaces before them, Stardock clearly and deliberately decided to make their game look nothing like SC3, and a lot like SC2, despite the fact that they owned some of the SC3 IP and none of the SC2 IP. (It also looks a lot more like SC2 than GalCiv3.)  When assessing something that is inherently subjective, an objective analysis isn't the controlling factor for obvious reasons.

Similarly, it'd be much more effective as a defense to say "here's our design documents on Hyperspace which started from scratch, not from SC2" instead of saying "you can't copyright a color." Even better is "here's where we rejected several possibilities for looking too much like SC2, because we didn't have the rights and didn't want to infringe."


Title: Re: Stardock Litigation Discussion
Post by: Serosis on January 22, 2019, 09:32:06 pm
Not that it matters much but I wanted to point out that SCO's Hyperspace is slightly isometric and the camera angle changes depending on which direction you enter Hyperspace from.
For those that have played it you should have noticed instantly that the minimap and Hyperspace don't correlate 1:1 with its north, west, east, south directions.

It is actually somewhat frustrating as you can't rely on the minimap to navigate Hyperspace manually.


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 22, 2019, 11:20:31 pm
And you're still ignoring the point that, with the contexts of SC2 and SC3 interfaces before them, Stardock clearly and deliberately decided to make their game look nothing like SC3, and a lot like SC2, despite the fact that they owned some of the SC3 IP and none of the SC2 IP. (It also looks a lot more like SC2 than GalCiv3.)  When assessing something that is inherently subjective, an objective analysis isn't the controlling factor for obvious reasons.

Similarly, it'd be much more effective as a defense to say "here's our design documents on Hyperspace which started from scratch, not from SC2" instead of saying "you can't copyright a color." Even better is "here's where we rejected several possibilities for looking too much like SC2, because we didn't have the rights and didn't want to infringe."

I can totally understand why Stardock decided to make SCO to be reminiscent of SC2 and not SC3, seeing how the playerbase reacted to each game. And there is bound to be a way to make a game similar to SC2 without infringing on F&P's copyright. Then again, I agree that the hyperspace expression comes very close to infringing, and I'm not really qualified to say whether Stardock has really tripped the wire with that particular aspect of the game. There are still the ZFP, the mineral categories and planet types, and mineral types unique to SC2 that were reused in SCO (Stardock could easily have named the TZO Crystals "Cho Crystals", since that's how Jeff pronounces the name in SCO, and come up with different mineral categories).

Brad Wardell promised personally that SCO's release version won't infringe on anyone's "alleged copyrights". But yes, this is coming from a person who went back on his earlier promises and started claiming that Stardock owns everything within Star Control while F&P own nothing (in Stardock's complaint).


Title: Re: Stardock Litigation Discussion
Post by: Deus Siddis on January 26, 2019, 06:49:46 pm
And there is bound to be a way to make a game similar to SC2 without infringing on F&P's copyright.

There is, but it is dubious whether it would actually benefit from carrying the Star Control name while only being similar.  Even SC3 was too similar to get away with not licensing copyrighted material.  If SC3 actually had been successful, Accolade's plan would probably have been to make the next sequel completely unrelated to SC1-SC2 copyrighted material and thus entirely under the control of Accolade.

But SC3 instead became infamous, so there was no good way to transition from needing copyright licensing from P&F to using only what was owned by Accolade->Atari.

Stardock should have not acquired parts of the Star Control IP without at least first consulting with the owners of its other parts (P&F) and coming to an understanding with them (or not) before money had been put down.  Having failed to do such basic research into the situation before acquisition, they should have demanded a refund from what was left of Atari (if it claimed the Trademark was still valid at the auction) or just eaten the (still relatively small) loss.

Stardock could then have made its own story driven exploration-action-strategy game in a space setting, heavily modernizing concepts from Star Control 2, the Starflight games, and at least half a dozen more recent sources of inspiration.  The characters and setting could be reused from previous Stardock games or be completely new.  Such an unhindered game would have been much more free to innovate, because it would not be attracting very specifically gamers with an expectation that it must feel like SC2 in hard to define ways or be a direct sequel. And yet the game could still have attracted such gamers, sans their challenging expectations, by advertising the game as being  "...in the same genre as Starflight, Star Control 2, Wing Commander: Privateer and other awesome space adventure games from the golden age, but with some modern twists!"


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 26, 2019, 09:35:36 pm
Stardock should have not acquired parts of the Star Control IP without at least first consulting with the owners of its other parts (P&F) and coming to an understanding with them (or not) before money had been put down.  Having failed to do such basic research into the situation before acquisition, they should have demanded a refund from what was left of Atari (if it claimed the Trademark was still valid at the auction) or just eaten the (still relatively small) loss.

Stardock could then have made its own story driven exploration-action-strategy game in a space setting, heavily modernizing concepts from Star Control 2, the Starflight games, and at least half a dozen more recent sources of inspiration.  The characters and setting could be reused from previous Stardock games or be completely new.  Such an unhindered game would have been much more free to innovate, because it would not be attracting very specifically gamers with an expectation that it must feel like SC2 in hard to define ways or be a direct sequel. And yet the game could still have attracted such gamers, sans their challenging expectations, by advertising the game as being  "...in the same genre as Starflight, Star Control 2, Wing Commander: Privateer and other awesome space adventure games from the golden age, but with some modern twists!"

I don't think that Stardock acts the way it does out of ignorance. It has managed to maintain a very peaceful relationship with F&P for four years after Stardock's acquisition of the SC trademark and the SC3 copyright, and for all that time Brad Wardell demonstrated that he knew exactly what each side owned. He still seems to have made a very risky gamble, though – based on what I have seen in early SCO trailers, it seems that he had already incorporated elements from SC2 into SCO that were likely protected by copyright at an early stage of development (though founders should know more on this topic than I do), and he hoped F&P would license their copyright to Stardock so that he could use that copyrighted material legitimately. That gamble didn't pay off.

That said, the Injunction Junction post has made it quite clear that a win-win solution is no longer possible. There seems to be no scenario where both SCO and GotP would remain on the market, since both sides have made it quite clear that they aren't interested in allowing the competing game to be sold, as I'm not sure if all copyright issues that SCO currently has can be remedied with a patch (though of course we can still hope for the best). And I guess this is why so many people are siding with Stardock – after all, they have actually made a new Star Control game, while F&P have shown nothing. And nobody can be sure that GotP is going to be better than SCO until GotP actually gets made.

Of course, none of this means that the court is any more likely to decide the case in Stardock's favor. And if it really finds SCO infringing, then SCO lives on borrowed time.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 26, 2019, 10:05:16 pm
GotP is intended to answer certain questions raised in the UQM storyline.
To avoid conflicting stories, F&P denied any licensing.
The HyperSpace thing may actually be something they might have been able to live with, had Stardock not annoinced that any and all races of previous Star Control games will be part of Origins.

And yes, Accolade tried to evolve the Star control storylines gradually, to have continuity in storyline, yet also moving away from any copyrightable elements in UQM, so that rather soon they would be only within their own IP rights....


One Question to all those saying there is no infringement....
If Origins would have one character appearing, haveing a flash-formed scar on its forehead, and all his actions are so advanced they seem like magic to us, and its name is Harry Topper, would anyone think this is infringing (or at least leaning on) the copyright of Ms. J. Kathleen Rowling?
Because for printed books, this has already been decided.
But for computer games apparently many think developers are free to continue (and lean on) other's copyrights.

(And whether HyperSpace is copyrightable may depend on the jury.
But I don't remember anything approximately the age of SC2 to have a red-shifted background when flying FTL....
But then, I also only played StarFlight for less than half an hour, so never came that far...)


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 27, 2019, 12:04:48 am
(And whether HyperSpace is copyrightable may depend on the jury.
But I don't remember anything approximately the age of SC2 to have a red-shifted background when flying FTL....
But then, I also only played StarFlight for less than half an hour, so never came that far...)

Starflight has a black background for interstellar space.

Babylon 5 has red hyperspace (which has already prompted mocking comments on the SCO forums that B5 is going to get sued next). I admit that B5's hyperspace made me think of SC2 when I first saw it, but it's still very different from SC2's hyperspace in many ways (no "holes in space" or other visible markers of any kind, very different visual effects, a much more eerie atmosphere than in SC2).


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 27, 2019, 08:21:58 am
And in B5 you have a "flow", pushing ships off-course.... (and making rescue operations difficult to impossible - whereas in SC2 rescue operations are "simple" - ask the Mael-Num)

Anyway, they (B5) are not being accused of having stolen copyright from SC2.
Since Babylon 5 does not pretend to continue or contain any settings, races, events from SC2, the creators of SC2 had no fear that they might become barred from continueing their own story, a situation which is different with Origins, especially because the CEO announced he will have and use it all...
So, even legally there is a completely different story to tell.


Title: Re: Stardock Litigation Discussion
Post by: Deus Siddis on January 27, 2019, 05:22:00 pm
I don't think that Stardock acts the way it does out of ignorance. It has managed to maintain a very peaceful relationship with F&P for four years after Stardock's acquisition of the SC trademark and the SC3 copyright, and for all that time Brad Wardell demonstrated that he knew exactly what each side owned. He still seems to have made a very risky gamble, though – based on what I have seen in early SCO trailers, it seems that he had already incorporated elements from SC2 into SCO that were likely protected by copyright at an early stage of development (though founders should know more on this topic than I do), and he hoped F&P would license their copyright to Stardock so that he could use that copyrighted material legitimately.

That is ignorance though. Ignorance to whether or not he could come to an agreement with the other IP holders before:

1) Buying himself partway into the IP for hundreds of thousands of USD.
2) Doubling down by pouring millions more USD in the form of development of unlicensed infringing material.
3) Tripling down by frivolously suing those he had infringed against (as some kind of preemptive attack?)

That is a lot of ignorance, actually.

That gamble didn't pay off.

And so naturally he expects P&F should cover the costs of his gambling addiction.

And I guess this is why so many people are siding with Stardock – after all, they have actually made a new Star Control game, while F&P have shown nothing. And nobody can be sure that GotP is going to be better than SCO until GotP actually gets made.

This is almost exactly one of the statements Brad Wardell likes to chant and it is the impression that gets sown into you, the more time you spend on Stardock's forums.  But so too was Brad's legal theory crafting, which in the court of law is increasingly getting exposed as the BS it seemed to be outside of the Stardock echo chamber.

And if Brad Wardell knows GotP is vaporware (as he likes to claim) why did he sue them for a competing product he believes never will exist?  Is it not more likely to assume that, after only more than a year since GotP's announcement, its development has been successfully thwarted by Brad's lawsuit against it and the tremendous resource drain it takes to resist this in court?

It is very convenient for him to make a claim against them that he is simultaneously preventing them from disproving.


Title: Re: Stardock Litigation Discussion
Post by: PRH on January 27, 2019, 05:59:17 pm
This is almost exactly one of the statements Brad Wardell likes to chant and it is the impression that gets sown into you, the more time you spend on Stardock's forums.  But so too was Brad's legal theory crafting, which in the court of law is increasingly getting exposed as the BS it seemed to be outside of the Stardock echo chamber.

And if Brad Wardell knows GotP is vaporware (as he likes to claim) why did he sue them for a competing product he believes never will exist?  Is it not more likely to assume that, after only more than a year since GotP's announcement, its development has been successfully thwarted by Brad's lawsuit against it and the tremendous resource drain it takes to resist this in court?

It is very convenient for him to make a claim against them that he is simultaneously preventing them from disproving.

To his credit, I don't recall Brad Wardell ever (explicitly) claiming that GotP is vaporware (though the only Stardock source I check regularly is the official SCO website - I don't follow Brad on Twitter or anywhere else). And I agree that Stardock's legal actions only make sense if GotP isn't vaporware (okay, maybe some trademark infringement claims make sense either way - or don't, if they are about the SC1/SC2 alien names).

The vaporware claim is mostly made by the more rabid Stardock fans. And it's very depressing to see how these people, who seem to be SC2/UQM fans as much as we are here, hate F&P with such a passion that I don't think anyone here hates Stardock as much. Brad himself is more restrained in his comments against F&P than these people are (though I guess it's partly because the more aggressive comments get people banned here).


Title: Re: Stardock Litigation Discussion
Post by: Narsham on January 28, 2019, 10:52:21 pm
That said, the Injunction Junction post has made it quite clear that a win-win solution is no longer possible. There seems to be no scenario where both SCO and GotP would remain on the market, since both sides have made it quite clear that they aren't interested in allowing the competing game to be sold, as I'm not sure if all copyright issues that SCO currently has can be remedied with a patch (though of course we can still hope for the best). And I guess this is why so many people are siding with Stardock – after all, they have actually made a new Star Control game, while F&P have shown nothing. And nobody can be sure that GotP is going to be better than SCO until GotP actually gets made.

Of course, none of this means that the court is any more likely to decide the case in Stardock's favor. And if it really finds SCO infringing, then SCO lives on borrowed time.

This is actually an interesting question. If SCO is found to not be sufficiently infringing, does that allow P&F to have their GotP with characters they own and with SC2-style graphics without Stardock having a counter-claim? A court, after all, would have found that game Y does not infringe on game X despite having lots of elements in common. For Stardock to claim that game Z, based on game X, infringes upon game Y seems like it would run afoul of their own past defense. So long as GotP cannot be confused with SCO or any future SC games, they might legally co-exist.


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on January 29, 2019, 05:04:22 am
While all the trademark applications are almost certainly going to end up suspended until the main lawsuit is over, Stardock have finally filed an exhibit showing their "use" of the Frungy "Mark" in their opposition.

http://ttabvue.uspto.gov/ttabvue/v?pno=91246028&pty=OPP&eno=1 (Exhibit A)

Which is a not an example of use in commerce, shows no connection to Star Control or Stardock unless you already know what the product is, and is probably copyright infringement.





Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 29, 2019, 11:48:39 am
And just shows that it has been created by the game designers.

This is getting ridiculous (the trademarks application battle).

I remember a very old game someone made.
You used a ZFP-Stinger to push a ball around and try to push it into the opponent's goal.
He named it Frungy.
I think that was closest to what I ever saw of Frungy being used in commerce.
The game never really caught on.
It's so long ago, my google-Fu fails me....


Title: Re: Stardock Litigation Discussion
Post by: WibbleNZ on January 29, 2019, 09:33:25 pm
The video the exhibit was cropped from wasn't too hard to find - https://www.youtube.com/watch?v=oq-HuIYIrds . Go back to part 1 of the let's play series and it's clearly The Ur-Quan Masters and not Star Control II™ at all...


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 30, 2019, 06:58:59 am
Pretty sure they'll find a SCII game somewhere they caan snapshot from and pretend...
It is similar enough....


Title: Re: Stardock Litigation Discussion
Post by: ArilouSkuff on January 30, 2019, 10:58:21 am
I remember a very old game someone made.
You used a ZFP-Stinger to push a ball around and try to push it into the opponent's goal.
He named it Frungy.
I think that was closest to what I ever saw of Frungy being used in commerce.
The game never really caught on.
It's so long ago, my google-Fu fails me....

You used to be able to find a link to it on Pages of Now and Forever's clones listing. From the Way Back Machine:

http://web.archive.org/web/20021228230554/http://classicgaming.com/starcontrol/files/images/frungy.jpg
http://web.archive.org/web/20021228132822/http://www.classicgaming.com/starcontrol/files/clones.shtml


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 30, 2019, 12:55:26 pm
Thank you.
Didn't want to go to Wayback machine.

So, some has had a commercial use for "Frungy", but that seems to be more than 15 years ago, so the trademark may have lapsed anyway....

Also, the link to the file server "fileplanet" results in no such file, and fileplanet's search also does not help.
But what did I expect anyway?


Title: Re: Stardock Litigation Discussion
Post by: Gildon on January 31, 2019, 06:50:07 pm
To his credit, I don't recall Brad Wardell ever (explicitly) claiming that GotP is vaporware

I am sorry...

https://cdn.discordapp.com/attachments/405698771410878474/540314114531000344/unknown.png (https://cdn.discordapp.com/attachments/405698771410878474/540314114531000344/unknown.png)

...to disappoint.

https://cdn.discordapp.com/attachments/405698771410878474/540589471859605514/unknown.png (https://cdn.discordapp.com/attachments/405698771410878474/540589471859605514/unknown.png)


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 31, 2019, 07:40:40 pm
Good find, and it sounds like Mr. Wardell, but has been posted by a "deleted user".


On another note, Origins is back up on GoG too, and the DMCA counternotifications (https://de.scribd.com/document/398564711/Letters-from-Stardock-to-Valve-and-GOG-regarding-DMCA-claims-of-Ford-and-Reiche) have been published, and GoG filed a request to dismiss (http://wiki.uqm.stack.nl/images/c/c5/Gov.uscourts.cand.320268.104.0.pdf) F&P's "ninth action" due to being not sufficiently reasoned nor proven.

The DMCA counternotifications show, that Stardock indemnifies GoG and Valve from any legal costs and damages should they lose the case.
(Hence there is no evident support of Stardock by Valve and GoG regarding the subject of the copyright allegations, as hinted by the PR department of Stardock.)

Edit:  Gog wants to dismiss the alleged fraud action, and will reply to the other actions against GoG at a later time...


Title: Interstellar Frungy™ League
Post by: Ariloulawleelay on January 31, 2019, 08:45:23 pm
While all the trademark applications are almost certainly going to end up suspended until the main lawsuit is over, Stardock have finally filed an exhibit showing their "use" of the Frungy "Mark" in their opposition.

http://ttabvue.uspto.gov/ttabvue/v?pno=91246028&pty=OPP&eno=1 (Exhibit A)

Which is a not an example of use in commerce, shows no connection to Star Control or Stardock unless you already know what the product is, and is probably copyright infringement.

The video the exhibit was cropped from wasn't too hard to find - https://www.youtube.com/watch?v=oq-HuIYIrds . Go back to part 1 of the let's play series and it's clearly The Ur-Quan Masters and not Star Control II™ at all...

To trade away one's integrity in an act of pure laziness? To oppose a trademark application out of spite (https://forums.starcontrol.com/487690/page/20/#3716368)? When the application may well be suspended anyway? To misrepresent a seven year old exhibit that, facially, does not demonstrate a use in commerce?

If true, this allegation would be very ... disappointing.

Coupled with what seems to me a short-sighted decision to represent Valve and (briefly) GOG, this may seriously erode the presumption of competence I previously afforded NP.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on January 31, 2019, 09:45:09 pm
Yeah, with that reasoning of Stardock's lawyers, you could not trademark ANY word previously used in a film, book, game, ....
E.g. Skynet (terminator). In Europe/Netherlands it is a registered trademark for an airline (1 (https://euipo.europa.eu/eSearch/#details/trademarks/002663789)), telecom services (especially communication over computer networks - like Skynet in the film) (2 (https://register.boip.int/bmbonline/details/trademark/show.do?markNumberType=REG&markNumber=771051&markID=1909716)), parcel service/courier services (3 (https://www.boip.int/nl/merkenregister?embedded-app-path=Ym1ib25saW5lL2RldGFpbHMvdHJhZGVtYXJrL3Nob3cuZG8/bWFya051bWJlclR5cGU9UkVHJm1hcmtOdW1iZXI9NjA2Mjk0Jm1hcmtJRD05NDUwNjA%3D)). Many more have been denied.
Since Terminator is older than any of those registrations, ...

Yeah, it's worth a try for them, and some young attorney can thus bill some premium hours to gain experience....



Edit, still reading GoG's reply.
Footnote page 5 is interesting, Stardock apparently is trying to prolong the procedure, since they asked for being allowed to file another amended complaint, and a modification of the scheduling (which means they want more time).


Title: Re: Interstellar Frungy™ League
Post by: Elestan on February 01, 2019, 05:00:41 pm
While all the trademark applications are almost certainly going to end up suspended until the main lawsuit is over, Stardock have finally filed an exhibit (http://ttabvue.uspto.gov/ttabvue/v?pno=91246028&pty=OPP&eno=1) (Exhibit A) showing their "use" of the Frungy "Mark" in their opposition.  Which is a not an example of use in commerce, shows no connection to Star Control or Stardock unless you already know what the product is, and is probably copyright infringement.

The video the exhibit was cropped from wasn't too hard to find - https://www.youtube.com/watch?v=oq-HuIYIrds . Go back to part 1 of the let's play series and it's clearly The Ur-Quan Masters and not Star Control II™ at all...

To trade away one's integrity in an act of pure laziness? To oppose a trademark application out of spite (https://forums.starcontrol.com/487690/page/20/#3716368)?

Just to expand on that linked message:

Quote from: Frogbow, at https://forums.starcontrol.com/487690/page/20/#3716368
And they still can either via a royalty free, no charge license if they to develop it independently from us.  Or they can do it with us using the Star Control: Origins engine.

They could create a new studio.  Call it Frungy Games or something.

I'll note that we've seen Stardock's idea of a "royalty free, no charge license" (http://forum.uqm.stack.nl/index.php?topic=7396.msg79408#msg79408), and it was essentially a deceptive trap.  I'll also note that at the time Brad wrote that, he was certainly already aware of P&F's application for the "Frungy Games" trademark (https://tsdr.uspto.gov/#caseNumber=87878093&caseType=DEFAULT&searchType=statusSearch), which had been filed several months prior.

Quote from: Ariloulawleelay
When the application may well be suspended anyway? To misrepresent a seven year old exhibit that, facially, does not demonstrate a use in commerce?  If true, this allegation would be very ... disappointing.

The one thing I wonder about that video is that while it is certainly not a valid example of the use of "Frungy" in commerce, it is labeled as a playthrough of Star Control 2, which might play into claims of consumer confusion in some way?

Quote
Coupled with what seems to me a short-sighted decision to represent Valve and (briefly) GOG, this may seriously erode the presumption of competence I previously afforded NP.

Just wondering:  Why do you feel it was short-sighted?  Since Stardock is indemnifying them, their interests are aligned to at least some degree.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on February 01, 2019, 05:03:32 pm
Good find, and it sounds like Mr. Wardell, but has been posted by a "deleted user".

I'll vouch for its authenticity.  "Deleted User" is Brad's old Frogboy account, which got deleted by Discord after he used it to make doxing threats.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on February 01, 2019, 08:27:50 pm
As I'm not on Discord whatsoever, I missed him being banned and even his account being deleted....

As I wrote above, the captures were in his style....


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on February 03, 2019, 10:28:18 am
So, I was posting a bit in the Stardock forums (hello to Stardock lurkers who read this) and some users there had this to say about why the 1988 Agreement is still in effect:

https://forums.stardock.com/492870/page/4/#3739870
Quote
If there are no sales of the game, the royalties due are zero. This does not constitute a cessation of payment of royalties, this would only be the case if there were sales made for which they were not paid. They were in fact paid the zero dollars due on zero sales.
Quote
Zero royalties where there are no sales would be within the terms of such a contract...unless there was some annual fee or something - outside the concept of sales/returns/royalties...

Atari did acknowledge in 2011 that the license had lapsed following Reiche's opposition of the initial sale of the classic SC games on GOG. But assuming Atari did not:
1. Are the above claims valid per the 1988 agreement?
2. Assuming SC1&2&3 weren't sold anywhere (which is counter to a publisher's job) thereby resulting to zero sales for 3+ years, does that mean the license is still active?
3. Is there any available sales figures that indeed points to zero sales of the classic games during the time P&F assumed expiry of the license?


Title: Re: Stardock Litigation Discussion
Post by: Krulle on February 03, 2019, 11:40:16 am
the agreement ends if the publisher files for bankruptcy... (point 7.1 of original agreement 1988 (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.2.pdf))
Original contract does not seem to contain an end clause if royalities are below a certain limit.
The original contract defines a "term".
The "sales term" (point 2.2) is relevant here.
Quote from: https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.2.pdf (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.2.pdf)
This License Agreement shall continue in effect with repect to the sale, licensing and sublicensing of each Work, Derivative Work and Derivative Product, for as long as such Work, Derivative Work and Derivative Product are genrating royalities to the Developer at least of $1000 per annum.

The addendums just define more Works being part of the contract....

IF Stardock could prove that the works did create royalities of more than $1000 per year, but those did not get paid to developer because of advances that still have to re-earned, then the contract would be in force, were it not for the bankruptcy term...



Title: Re: Stardock Litigation Discussion
Post by: Elestan on February 03, 2019, 10:39:10 pm
So, I was posting a bit in the Stardock forums (https://forums.stardock.com/492870/page/4/#3739870) (hello to Stardock lurkers who read this) and some users there had this to say about why the 1988 Agreement is still in effect...

Seldon seems like a reasonable person, and they're doing the work of supplying linked references, which I appreciate, but they're quoting Stardock's FAQ as though it were gospel, when it is, of course, at least as one-sided as P&F's blog.  For one thing, I don't think we can take Stardock's word about what P&F wanted during settlement negotiations without evidence, just as we were hesitant to take P&F's word about what Stardock was demanding until they showed the settlement proposals.  

Regarding settlement advances, I don't think Stardock has ever said so directly, but I suspect that they are relying on §5.1 of Addendum 3 (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.37.4.pdf), in which Accolade agreed to advance $20,000 in royalties to Paul, in $10k/5k/5k installments.  However, that section specified that these were advances against royalties payable under §5.2 of Addendum 3, and §4.1 terminated that Addendum three years after signing because Accolade never released a game under it.  Once that Addendum expired in 2001, I doubt that those advances could be applied to the $1000/year required under §2.2 of the original agreement.

Plus, we have Atari's emails indicating that it agreed that the agreement had terminated, and as Krulle indicated, §7.1 of the original agreement would have terminated it upon Atari's bankruptcy.

Ah, I see Brad eventually falls into his usual pattern of resorting to personal insults (https://forums.starcontrol.com/492870/page/5/#3739923).  Keep a thick skin, don't take his bait, and let us know if this becomes another example of him banning people for politely disputing the Stardock position.


Title: Re: Stardock Litigation Discussion
Post by: PRH on February 03, 2019, 11:19:41 pm
Ah, I see Brad eventually falls into his usual pattern of resorting to personal insults (https://forums.starcontrol.com/492870/page/5/#3739923).  Keep a thick skin, don't take his bait, and let us know if this becomes another example of him banning people for politely disputing the Stardock position.

I agree that bringing up the 1988 agreement was irrelevant to the topic, though, as the initial point Brad made was that (according to him) F&P's arguments in the Injunction Junction post don't hold water, and that their DMCA notices serve no purpose but to harm Stardock for no good reason. Whether you agree with that or not, this argument is separate from the issue of who owns the copyright to SC1 and SC2, which is most likely our greatest concern here. As I've said before, I firmly believe that the copyright to SC1 and SC2 belongs to F&P, but I'd prefer that SCO is not found infringing on F&P's copyright (even though I brought up some examples before where I personally find infringement to be very likely - but then again, it's just a random SC2/UQM fan's opinion).

As for the substance of Brad's arguments, yeah, we've already discussed that. I also don't think that F&P claim that they own the concept of hyperspace or the color red, but rather that they own an expression of hyperspace that consists of space permeated by red light that is full of dancing lights and holes in space leading to star systems (and traveling ships). Whether that already constitutes copyrightable expression or that expression should be much more specific (like the shape and the content of the holes, the shape and the size of the lights, which are different between SC2 and SCO), I'm not qualified to answer.

And of course there is the question of whether there was any point in F&P serving the DMCA notice against SCO. From what I've read about the DMCA takedown process, it's typically used before litigation. Now that litigation is already underway, what purpose would the takedown serve? On the other hand, the judge did deny an injunction against F&P serving DMCA notices, so at least she thinks that there may be a point for F&P to serve these notices, and she is definitely more qualified to decide whether there is any point in the takedown than I am.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on February 03, 2019, 11:47:52 pm
I've just read Brad's post....
Hmm...

"unrelated"
"ideas not copyrightable"?..

Actually, when dance moves are copyrightable (Fortnite cases (http://ipkitten.blogspot.com/2019/01/the-fortnite-lawsuits-why-performers.html)), certain expressions (ideas) certainly are.That's what books, films, and images are about.
And hammering on the Street Fighter (Capcom) case does not help, as the judge did find the games substantially similar. (Source (http://patentarcade.com/2005/08/case-capcom-v-data-east-nd-cal-1994-c.html)) The idea of a martial arts game was not being defended by Capcom, but the characters, moves, and control sequence for the special moves were.
In the streetfighter case, "The court did not find Data East’s [defendant] evidence persuasive, as while other outside sources may have influenced the development of the Fighter’s History characters, there was no doubt that Street Fighter II characters also provided a significant source of inspiration."
Also regarding the similarity in how the special moves were activated (button sequence): "While the Court was disturbed by these “coincidences” in some of the arbitrary control sequences, it concluded that because the control sequences did not constitute protectable expression, these isolated similarities were not actionable. "
Also, "The court found that three characters and five special moves in Fighter’s History were similar to protectable characters and special moves in Street Fighter II. ", but the final "subjective analysis of similarity"  (not objective, so not a clear cut case, an appeal court may have a different subjective feeling) found that Capcom held no copyright because the stuff was known from before (outside of games).
Resulting in "the court determined that Capcom had failed to demonstrate a likelihood of success on the merits or even serious questions concerning the merits". (they failed to show that they actually had a copyright.)
Finally, the Street Fighter distributor lost, because martial art games simply have typical moves transferred from martial arts, and those weren't copyrightable in the game because "known", and the button sequence often followed that move.  Read Claude Stern's interview on Street Fighter 2 History page (https://www.polygon.com/a/street-fighter-2-oral-history/chapter-4) for a short summary (he was the defendant's attorney). (the passage/paragraph starting with "I think [Data East was] very nervous.")
Also, it was no full-blown case, but "only" a request by Capcom for a preliminary injunction against the alleged copy.

Now if Stardock could prove that scientifically a "HyperSpace" is likely to be red-shifted (and not just black), will likely have moving "streaks" and will have a hole near gravity wells, then F&P could not claim a copyright on that FTL expression (or the scientific paper would lead to them losing the copyright held until then), but again, I presume if Stardock would be able to prove that, earning money with games would become a lucrative side-job when selling games to the crews outward bound from our Solar system with the HyperSpace drive provided by Stardock Inc.


I was not that happy about the DMCA at that late stage, but F&P did agree to not send a DMCA while Stardock had their preliminary injunction in court phase...


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on February 04, 2019, 12:48:25 pm
So, I was posting a bit in the Stardock forums (https://forums.stardock.com/492870/page/4/#3739870) (hello to Stardock lurkers who read this) and some users there had this to say about why the 1988 Agreement is still in effect...

Seldon seems like a reasonable person, and they're doing the work of supplying linked references, which I appreciate, but they're quoting Stardock's FAQ as though it were gospel, when it is, of course, at least as one-sided as P&F's blog.  For one thing, I don't think we can take Stardock's word about what P&F wanted during settlement negotiations without evidence, just as we were hesitant to take P&F's word about what Stardock was demanding until they showed the settlement proposals.  

Regarding settlement advances, I don't think Stardock has ever said so directly, but I suspect that they are relying on §5.1 of Addendum 3 (https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.37.4.pdf), in which Accolade agreed to advance $20,000 in royalties to Paul, in $10k/5k/5k installments.  However, that section specified that these were advances against royalties payable under §5.2 of Addendum 3, and §4.1 terminated that Addendum three years after signing because Accolade never released a game under it.  Once that Addendum expired in 2001, I doubt that those advances could be applied to the $1000/year required under §2.2 of the original agreement.

Plus, we have Atari's emails indicating that it agreed that the agreement had terminated, and as Krulle indicated, §7.1 of the original agreement would have terminated it upon Atari's bankruptcy.

Ah, I see Brad eventually falls into his usual pattern of resorting to personal insults (https://forums.starcontrol.com/492870/page/5/#3739923).  Keep a thick skin, don't take his bait, and let us know if this becomes another example of him banning people for politely disputing the Stardock position.
It's unfortunate that once I brought up clause 2.2 of the agreement, they just cut the discussion and instead went back to talking about DMCA abuse and how P&F acted immorally, etc, and that I, personally, am justifying their actions. I really did want to know why Stardock thinks it's invalid - to quote Jafo: "This is where people fall down.....quoting specifics in isolation, as if since it's written down somewhere it must be true and absolute" - without really elaborating. Combine that with Frogboy's "enough" I might as well just leave it at that. For a party claiming P&F do not really own the classic SC copyrights, they sure are really salty about people bringing up the one document that could answer all their questions - the '88 agreement.

To the Stardock users who happen to read this, I hope you can help shed light on Stardock's mysterious interpretation of the contract's texts. It's been a mystery for the last year or so.


Title: Re: Stardock Litigation Discussion
Post by: tingkagol on February 04, 2019, 01:14:58 pm
Ah, I see Brad eventually falls into his usual pattern of resorting to personal insults (https://forums.starcontrol.com/492870/page/5/#3739923).  Keep a thick skin, don't take his bait, and let us know if this becomes another example of him banning people for politely disputing the Stardock position.

I agree that bringing up the 1988 agreement was irrelevant to the topic, though, as the initial point Brad made was that (according to him) F&P's arguments in the Injunction Junction post don't hold water, and that their DMCA notices serve no purpose but to harm Stardock for no good reason.
I agree I may have veered off topic. I was only replying to a post about how P&F were adamant at using the "Star Control" mark to refer to GotP and retweeting other posts - that resulted to the USD 225k damages that Stardock was demanding for their settlement proposal; pointing out the questionable weight of the damages when even Brad enthusiastically echoed the same announcement before the lawsuits. It then went to the classic "they brought the lawyers first and hired a PR campaign" which ended in me bringing up the 88 agreement. Oh well.


Title: Re: Stardock Litigation Discussion
Post by: PRH on February 04, 2019, 03:08:46 pm
I've just read Brad's post....
Hmm...

"unrelated"
"ideas not copyrightable"?..

Actually, when dance moves are copyrightable (Fortnite cases (http://ipkitten.blogspot.com/2019/01/the-fortnite-lawsuits-why-performers.html)), certain expressions (ideas) certainly are.That's what books, films, and images are about.

I think that when Brad talks about "ideas", he doesn't mean expressions as they are defined by copyright law. Rather, he seems to mean more generic things such as tropes, styles and genres, screen layouts, etc. Of course, that's where Brad accuses F&P of trying to claim a copyright on generic ideas, and unfortunately F&P's chart in the Injunction Junction post can be easily (mis)understood as doing that. I think I posted what I thought of one of F&P's earlier filings before, where I also had an impression that F&P tried to claim copyright to generic ideas. I mean, even if Stardock based many of their game's ideas on SC2, so what? As long as they've put enough of their own creative spin on those ideas, and don't outright copy expressions (visual appearances, stories, copyrightable setting elements) from SC2, they should be safe. Of course, the appearance of hyperspace, the mineral categorization, and the ZFP do seem very problematic, and there may be copyright infringement there.


Title: Re: Stardock Litigation Discussion
Post by: Krulle on February 04, 2019, 04:55:26 pm
Where is the separating line between an idea and an expression?


Anyway, we're getting hypothetical, and indeed, Stardock is either denying copyrightability based on "too broad copyright, they want an idea!" or based on "too specific copyright, they want a colour!".
Of course they have to defend their case.
And it is an argument.
Whether it's a valid argument remains to be decided.
I bet they're still looking hard to find examples of whatever they can find with FTL-dimensions and why they must be red-shifted, so that copyrightability for this specific expression can be denied to F&P.

I wish I could jump forward in time to have a look back at how the judge and the jury decided and reasoned (when taking a break from playing our favourite vapourware).

Oh, wait. I can.
*Sleeps for eight hours* Nope, not there yet....
DANG, this waiting is boorinnnng.


Title: Re: Stardock Litigation Discussion
Post by: PRH on February 04, 2019, 06:09:06 pm
Where is the separating line between an idea and an expression?

The Ultronomicon page (http://wiki.uqm.stack.nl/Stardock_Systems_Inc._v._Paul_Reiche_III_and_Robert_Frederick_Ford) on this lawsuit quotes this passage on this very topic:
Quote
At one end of the spectrum, scenes a faire – the stock scenes and hackneyed character types that "naturally flow from a common theme" – are considered "ideas," and therefore are not copyrightable. But as plots become more intricately detailed and characters become more idiosyncratic, they at some point cross the line into "expression" and are protected by copyright.

So we can see that while there is no sharp, clear line between ideas and expression, there is nonetheless a line. And I personally don't think that simply coloring hyperspace red is copyrightable - the expression has to be more specific than that (Babylon 5 has red hyperspace, and yet F&P aren't suing them, even though someone on the SCO forums sarcastically suggested that they might do that). Now, red hyperspace with holes in space with stars at the center, and blinking points of light is definitely closer to F&P's expression, although, once again, we all agree that it's up to the court to decide whether Stardock has really crossed the line here.


Title: Re: Stardock Litigation Discussion
Post by: Elestan on February 04, 2019, 06:12:13 pm
I think that when Brad talks about "ideas", he doesn't mean expressions as they are defined by copyright law. Rather, he seems to mean more generic things such as tropes, styles and genres, screen layouts, etc. Of course, that's where Brad accuses F&P of trying to claim a copyright on generic ideas, and unfortunately F&P's chart in the Injunction Junction post can be easily (mis)understood as doing that.

This is a good example of why I find ethical fault with Brad's statements:  He knows that P&F aren't actually trying to claim that they own "ideas", like the color red, or the concept of hyperspace, but he persists in misrepresenting their position that way because it makes a good sound bite, and misleads those who do not spend the time to read P&F's post in depth.  I find taking advantage of people's legal naivete that way offensive.


Title: Re: Stardock Litigation Discussion
Post by: Ariloulawleelay on February 13, 2019, 08:49:02 pm
Yeah, with that reasoning of Stardock's lawyers, you could not trademark ANY word previously used in a film, book, game, ....
E.g. Skynet (terminator). In Europe/Netherlands it is a registered trademark for an airline (1 (https://euipo.europa.eu/eSearch/#details/trademarks/002663789)), telecom services (especially communication over computer networks - like Skynet in the film) (2 (https://register.boip.int/bmbonline/details/trademark/show.do?markNumberType=REG&markNumber=771051&markID=1909716)), parcel service/courier services (3 (https://www.boip.int/nl/merkenregister?embedded-app-path=Ym1ib25saW5lL2RldGFpbHMvdHJhZGVtYXJrL3Nob3cuZG8/bWFya051bWJlclR5cGU9UkVHJm1hcmtOdW1iZXI9NjA2Mjk0Jm1hcmtJRD05NDUwNjA%3D)). Many more have been denied.
Since Terminator is older than any of those registrations, ...

Yeah, it's worth a try for them, and some young attorney can thus bill some premium hours to gain experience....

If a young attorney wants to argue for a novel interpretation of trademark law or assert that an asset purchase agreement says something that it does not, well, that is exactly what courts (and administrative tribunals) are for: evaluating legal claims.

But the system breaks down if officers of the court are permitted to misrepresent their evidence. That is what I take issue with.


Title: Re: Interstellar Frungy™ League
Post by: Ariloulawleelay on February 18, 2019, 08:53:59 am
The one thing I wonder about that video is that while it is certainly not a valid example of the use of "Frungy" in commerce, it is labeled as a playthrough of Star Control 2, which might play into claims of consumer confusion in some way?

Would the confused consumer(s) here be the featured player or the viewers? Given how dissimilar the marks are, this may be more of a brand substitution issue than a trademark problem per se.


Just wondering:  Why do you feel it was short-sighted?  Since Stardock is indemnifying them, their interests are aligned to at least some degree.

To some degree.

I think that the potential for disagreement between Stardock and GOG (based on the claims asserted regarding sales of the Classic Games following the end of the confidential GOG-publisher agreement) is straightforward, so I will just consider this from Valve's perspective. While I don't think that there is any obvious conflict of interest in this case, representing a client isn't just about winning or losing one particular case - it should be about advancing that client's interests across the board.

Remember that when NP began representing Valve, Stardock's motion for preliminary injunction was still pending. It's been a minute since I read Stardock's motion, but it basically argued that, as applied to SCO, the DMCA notice-and-takedown process was unconstitutional, as it would allow F&P to issue a sort of backdoor injunction to which they were not otherwise entitled. Let's imagine that this argument was persuasive, and that the notice-and-takedown process was found to be unconstitutional in these circumstances.

Keep in mind that the notice-and-takedown process is a voluntary means by which innocent hosts (https://forums.starcontrol.com/491733/page/1/#3731037) can gain access to various safe harbors - a way for service providers to avoid liability for copyright infringement claims premised upon the actions of their users. What happens to Valve's safe harbor if F&P are legally restricted from using the notice-and-takedown process?

Sure, it's possible that NP would have been able to thread the needle here - as NP failed to do with Stardock's motion for a gag order - and get a ruling which would keep the DMCA intact while preventing F&P from using it; effectively transforming the safe harbor into blanket immunity. But, once the judge decided to recalibrate the balance Congress struck with the DMCA, anything's possible. She could have just as easily eliminated the safe harbors in this sort of situation (restoring the general rule, under which the hosts would be liable), or reasoned that any ongoing litigation is a red flag in and of itself (thus eliminating the need for any formal DMCA notice). How thrilled would Valve have been to learn that its own attorneys had opened the door to one of those outcomes?

But that obviously never came to be. Consider instead that across the Bay Bridge, Valve is currently litigating the Dota 2 case, which was cited in Stardock's motion for preliminary injunction1 and discussed earlier in this thread (as well as by Denning and Elestan in a previous thread). According to its pleadings, Valve owns copyrights in DotA and Dota 2, which the defendants in that case are infringing.2 The allegedly copied game elements include: (1) characters, (2) visual depictions of fictional locations, (3) musical compositions, and (4) the overall look and feel.

Because Valve is claiming copyright in user-created mods, Valve's claims only work if the "mastermind" rule from the Malcolm X and Innocence of Muslims cases can apply to videogames, even when some of the contributions were made pseudonymously, without any sort of two-way consultation. The copyrightable characters in question are the various hero characters (whose individual backstories are somewhat limited). And Valve was permitted to make out claims based on allegedly similar characters as depicted in advertisements for the defendants' games.

There’s no legal reason that Valve's attorneys in this case cannot argue that each contributor is entitled to a separate copyright on any game element he creates, that Rocky Balboa (http://forum.uqm.stack.nl/index.php?topic=7182.msg78897#msg78897) represents the minimum standard for a character to warrant copyright protection, or that litigants need to provide side-by-side in-game screenshots to demonstrate infringement. But, at best, any inconsistent positions taken by Valve's counsel here will find their way back to Judge Breyer. At worst, if NP's arguments are successful in this case, Valve will see its own arguments used to challenge its claims in a case where it actually has money on the line. Why would Valve want to open itself up to that sort of counterattack (especially if it is indemnified in the Star Control case)?

Having written all of that, as more and more discovery is completed, our ability as outside Observers to understand the issues in this case wanes. It is certainly possible that NP does not plan to advance any of these troublesome arguments (suggestions to the contrary being more PR than substance),3 and will instead rely on creative arguments no one here has foreseen.

---

[1] Stardock used the case to make an argument about the sufficiency of the pleadings, not the substance of the allegations.

[2] Blizzard is also a plaintiff in the Dota 2 case; F&P's position appears to be consistent with that of their corporate overlords.

[3] Though both Frogboy and NP have been pushing the "highly relevant" Street Fighter II case (as described by Krulle above) lately. Among many other things going on in that dispute, the trial court found that a number of the SF2 characters were not copyrightable - the game had been designed with a paper-thin “World Warrior” plot and familiar stock martial artist characters so that SF2 would be immediately accessible to would-be players at arcades.


Title: Re: Stardock Litigation Discussion
Post by: Frogacuda on February 28, 2019, 02:43:36 am
Now if Stardock could prove that scientifically a "HyperSpace" is likely to be red-shifted (and not just black), will likely have moving "streaks" and will have a hole near gravity wells, then F&P could not claim a copyright on that FTL expression (or the scientific paper would lead to them losing the copyright held until then), but again, I presume if Stardock would be able to prove that, earning money with games would become a lucrative side-job when selling games to the crews outward bound from our Solar system with the HyperSpace drive provided by Stardock Inc.

Even beyond this, I think Stardock is going to have a much more difficult time framing their product's similarities as arbitrary or derivative simply because of their repeated interest in and claimed ownership of the Reiche IP. The "parallel thought" argument is tough to make when you're literally making a game with the same title.

And this sort of thing can be very compelling in IP cases. Consider for a moment Harlan Ellison's lawsuit against Orion over a writing credit on The Terminator over similarities to a couple of Outer Limits episodes Ellison wrote. These similarities were noticeable but not so severe that the studio couldn't play them off as coincidence, EXCEPT James Cameron gave an interview in which he said he got the idea by "ripping off a couple Outer Limits episodes." Once that chain is established, the claim becomes significantly more damaging.

There is no real way Stardock can argue that these similarities are coincidence. Stardock has already laid out the argument that they own the Reiche IP so they can't claim to be unaware of it. They're going to have to double down on the argument that they own it somehow, which seems, frankly, like a ridiculous claim.

I'm kind of surprised this is even going to trial. It's a testament to Stardock's lawyers that it wasn't just tossed out. Although that might do Stardock more harm than good in the end, especially if they end up with an invalid trademark and no rights to anything.