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Author Topic: My take on Stardock  (Read 30920 times)
PRH
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Re: My take on Stardock
« Reply #750 on: May 12, 2018, 06:20:51 pm »

I don't see Brad claiming that Stardock owns the copyrights there.  I see him disputing whether P&F own those copyrights, and saying that Stardock has the right to control the names via trademark.

Stardock's strategy on the SC1&2 copyrights doesn't appear to be to claim them, but rather to muddy the waters around them as much as possible.  Hence Brad's assertions there and elsewhere that "the IP in SC2 is messy (lots of creators)", while trying to portray Stardock's trademark claims as being very straightforward ("We have a valid federal trademark for Star Control which means there are statutory damages"), and ignoring or dismissing any questions about it ("We don’t have to “prove” anything regarding its validity because it is already assumed valid").

Well, I assume that whatever is not owned by Fred and Paul personally would have been owned by Accolade (and would therefore be owned by Stardock now).

As for the trademark, the case does seem pretty straightforward to me too. There is no disputing who currently owns the Star Control trademark (Stardock does). Sadly, that would indeed mean that since GotP is by definition a sequel to SC2, F&P would require Stardock's permission to develop GotP. But that also means that Stardock won't be able to use any of F&P's copyrighted material in their own Star Control games without F&P's permission. And it seems to me (a layman who is unaffiliated with either F&P or Stardock) that copyright is the only issue in dispute here.
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huhlig
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Re: My take on Stardock
« Reply #751 on: May 12, 2018, 06:45:54 pm »

I don't see Brad claiming that Stardock owns the copyrights there.  I see him disputing whether P&F own those copyrights, and saying that Stardock has the right to control the names via trademark.

Stardock's strategy on the SC1&2 copyrights doesn't appear to be to claim them, but rather to muddy the waters around them as much as possible.  Hence Brad's assertions there and elsewhere that "the IP in SC2 is messy (lots of creators)", while trying to portray Stardock's trademark claims as being very straightforward ("We have a valid federal trademark for Star Control which means there are statutory damages"), and ignoring or dismissing any questions about it ("We don’t have to “prove” anything regarding its validity because it is already assumed valid").

Well, I assume that whatever is not owned by Fred and Paul personally would have been owned by Accolade (and would therefore be owned by Stardock now).

As for the trademark, the case does seem pretty straightforward to me too. There is no disputing who currently owns the Star Control trademark (Stardock does). Sadly, that would indeed mean that since GotP is by definition a sequel to SC2, F&P would require Stardock's permission to develop GotP. But that also means that Stardock won't be able to use any of F&P's copyrighted material in their own Star Control games without F&P's permission. And it seems to me (a layman who is unaffiliated with either F&P or Stardock) that copyright is the only issue in dispute here.

Actually the trademark is in dispute due to years of lack of use and it's both dilution and assignment in gross. It is quite possible the trademark is invalid, which would put Stardock's entire case in jeopardy. Also even if Stardock retains the right to star control, they have no good recourse as to P&Fs historical nominative fair use unless the Judge expressly decides against it.  Given Stardocks behavior of manipulation, misleading statements, historical misrepresentation, and willing infringement of copyrighted assets, express statements that they will continue to infringe, and by both providing tools to infringe and encouraging the community to secondarily infringe with said tools. This indicates a behavior of Intentional Tort.
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Elestan
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Re: My take on Stardock
« Reply #752 on: May 12, 2018, 06:53:21 pm »

Well, I assume that whatever is not owned by Fred and Paul personally would have been owned by Accolade (and would therefore be owned by Stardock now).

That's not the case, though...and it doesn't need to be the case to serve Stardock's purposes.  This goes back to the burden of proof issue.  Because the SC1&2 copyrights were registered late, Stardock doesn't need to prove who owns them...all they need to do is create enough doubt that P&F didn't do enough of it themselves.  That's why Stardock keeps trying to focus on the other people that were involved.

For a specific example, Greg Johnson has been acknowledged as creating a lot of the Orz material...maybe most of it.  So if Stardock puts the Orz in their game, that means that P&F can't sue them; only Greg Johnson can.  By raising a lot of unspecified doubt over the question of exactly who created what in SC2, Stardock is making more work for P&F and their lawyers.  Presumably, P&F are trying to get copyright assignments from as many members of the original team as possible.

In this case, Stardock probably (I think) wouldn't want to claim that Accolade created any part of SC1&2 itself, because there is pretty clear language in the 1988 agreement giving P&F ownership of such copyrights.  If Stardock were to successfully claim that Accolade created anything, P&F could point to the agreement and say that Accolade gave those copyrights to them.  So instead, Stardock is citing the existence of unnamed co-creators who are not party to the suit.

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As for the trademark, the case does seem pretty straightforward to me too. There is no disputing who currently owns the Star Control trademark (Stardock does).

P&F are claiming that the trademark ceased to be used in commerce during the early 2000s, and therefore was fraudulently renewed.  I don't know how likely their argument is to prevail, but this is certainly a disputed point.  There's also, I think, a real question about Stardock's assertion that the "Star Control" trademark can control elements within the game.

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Sadly, that would indeed mean that since GotP is by definition a sequel to SC2, F&P would require Stardock's permission to develop GotP.

The word 'sequel' is central to another point of dispute.  'Sequel' could be read as either a sequel to the franchise, or a sequel to the story, and since the franchise and story have different owners, the legal implications of using the word are...beyond my ability to guess.  P&F initially claimed that GotP was a sequel to SC2, but then backed off that claim.
« Last Edit: May 12, 2018, 06:59:40 pm by Elestan » Logged
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Re: My take on Stardock
« Reply #753 on: May 12, 2018, 07:42:41 pm »

Actually the trademark is in dispute due to years of lack of use and it's both dilution and assignment in gross. It is quite possible the trademark is invalid, which would put Stardock's entire case in jeopardy. Also even if Stardock retains the right to star control, they have no good recourse as to P&Fs historical nominative fair use unless the Judge expressly decides against it.  Given Stardocks behavior of manipulation, misleading statements, historical misrepresentation, and willing infringement of copyrighted assets, express statements that they will continue to infringe, and by both providing tools to infringe and encouraging the community to secondarily infringe with said tools. This indicates a behavior of Intentional Tort.

Not only would it put Stardock's case in jeopardy if this is true, it would also put the entire SCO project in jeopardy. And I don't want that to happen - not just because four years of work and millions of dollars on Stardock's part would go to waste, but I personally want to play Origins, too. So yes, I do recognize that Fred and Paul were disputing the legitimacy of the Star Control trademark in their counterclaim (which was a terrible move on their part, in my opinion), but I personally wouldn't want that claim of theirs to succeed - that would not be a "win-win" in any way. And F&P were also willing to concede that point in their settlement offer.

As for "providing the tools [to SCO's players] to infringe [on F&P's copyright]", I think this was also a bad move on F&P's part to bring up that point. I'm fundamentally opposed to any game developers attacking the players' right to create their own content in any given game. There are countless games around with tons of player-created content that pays homages to other copyrighted works, and none of them seem to be in any trouble. So why should SCO be any different? Yes, players have already created SC2 ship lookalikes in SCO - just as they have created a Millennium Falcon lookalike and a TARDIS lookalike.
« Last Edit: May 12, 2018, 07:48:43 pm by PRH » Logged
Elestan
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Re: My take on Stardock
« Reply #754 on: May 12, 2018, 08:50:50 pm »

Actually the trademark is in dispute due to years of lack of use and it's both dilution and assignment in gross. It is quite possible the trademark is invalid, which would put Stardock's entire case in jeopardy.
Not only would it put Stardock's case in jeopardy if this is true, it would also put the entire SCO project in jeopardy.

I don't see how; P&F aren't claiming to own the trademark themselves.  Even if Stardock's trademark was cancelled, they could still release SC:O.

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As for "providing the tools [to SCO's players] to infringe [on F&P's copyright]", I think this was also a bad move on F&P's part to bring up that point.

I see this as an enforcement of the non-commercial spirit that the content of UQM was released under.  If Stardock was to release SC:O's engine as an open-source project like UQM, this would be indisputably legal.  But adapting P&F's copyrighted material into a form that requires buying SC:O means that the UQM story could be used to drive Stardock's commercial sales.  So I can't really blame them for trying to limit this.  I do think that there is a middle ground that could be found here, though.
« Last Edit: May 12, 2018, 08:52:42 pm by Elestan » Logged
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Re: My take on Stardock
« Reply #755 on: May 12, 2018, 10:54:02 pm »

Actually the trademark is in dispute due to years of lack of use and it's both dilution and assignment in gross. It is quite possible the trademark is invalid, which would put Stardock's entire case in jeopardy.
Not only would it put Stardock's case in jeopardy if this is true, it would also put the entire SCO project in jeopardy.

I don't see how; P&F aren't claiming to own the trademark themselves.  Even if Stardock's trademark was cancelled, they could still release SC:O.

If a Judge decides that Accolade/Atari let the Trademark effectively lapse or that it was assigned in gross separating it from the assets it represents. P&F should legally have priority of use given that they own the assets that the mark represents. Unlike a brand trademark representing a companies goodwill, a product trademark represents a given products goodwill. Without that product the goodwill doesn't transfer and the trademark is likely invalid and the purchaser is left high and dry.

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As for "providing the tools [to SCO's players] to infringe [on F&P's copyright]", I think this was also a bad move on F&P's part to bring up that point.

I see this as an enforcement of the non-commercial spirit that the content of UQM was released under.  If Stardock was to release SC:O's engine as an open-source project like UQM, this would be indisputably legal.  But adapting P&F's copyrighted material into a form that requires buying SC:O means that the UQM story could be used to drive Stardock's commercial sales.  So I can't really blame them for trying to limit this.  I do think that there is a middle ground that could be found here, though.

It's also not the tools themselves that are at issue; it's brads suggesting multiple times people should use them to infringe on others copyrighted work to benefit himself financially. This is  indirect infringement and he bears contributory liability for the acts others commit on his suggestion especially if he is perceived as benefiting financially (as he owns the company he would).
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Re: My take on Stardock
« Reply #756 on: May 12, 2018, 11:10:52 pm »

If a Judge decides that Accolade/Atari let the Trademark effectively lapse or that it was assigned in gross separating it from the assets it represents. P&F should legally have priority of use given that they own the assets that the mark represents.

Do you mean that the GoG sales would be deemed to be P&F using the "Star Control" mark in commerce?  That seems like a stretch to me; the 1988 agreement makes it pretty clear that if there is a valid trademark covering the classic games, Accolade and its successors would own it.  The two plausible outcomes I see are that either Stardock owns it, or it's invalid and nobody owns it.  And in the latter case, Stardock has a newly filed "Star Control" mark, and they're clearly using "Star Control" in commerce in connection with their current game, so they could just get a fresh one.  That might block their ability to prosecute P&F for infringement, but it wouldn't block SC:O's release.
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Re: My take on Stardock
« Reply #757 on: May 13, 2018, 08:59:10 pm »

If a Judge decides that Accolade/Atari let the Trademark effectively lapse or that it was assigned in gross separating it from the assets it represents. P&F should legally have priority of use given that they own the assets that the mark represents.

Do you mean that the GoG sales would be deemed to be P&F using the "Star Control" mark in commerce?  That seems like a stretch to me; the 1988 agreement makes it pretty clear that if there is a valid trademark covering the classic games, Accolade and its successors would own it.  The two plausible outcomes I see are that either Stardock owns it, or it's invalid and nobody owns it.  And in the latter case, Stardock has a newly filed "Star Control" mark, and they're clearly using "Star Control" in commerce in connection with their current game, so they could just get a fresh one.  That might block their ability to prosecute P&F for infringement, but it wouldn't block SC:O's release.

If the 1988 Agreement is taken into account while the trademark was transferred from Accolade to Atari, it would have elapsed due to lack of use. Stardock would need to argue it somehow didn't meet the 10 year criteria. If it has lapsed, P&F would have priority of use given that they have a copyrighted product originally sold under that name. Stardocks would be a new attempt to use the name. P&F could easily snap the trademark up if the judge decides it's out of date. Stardock does not yet have a product in commerce attached to the name and they would be competing with an EXISTING product that was sold under that name causing confusion. Honestly given the damage that Brad has done to Stardock's reputation they are better off just naming it Stardock: Origins and calling it a day but what do I know.
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Re: My take on Stardock
« Reply #758 on: May 13, 2018, 09:46:32 pm »

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Stardock does not yet have a product in commerce attached to the name

Then what the heck is this?

https://www.gog.com/game/star_control_origins

https://store.steampowered.com/app/271260/Star_Control_Origins/

It's already out in the market and people have been playing it since October of last year.
It has been in Founder's hands for years before that.

Star Control: Origins is here to stay whether you like it or not. There is no way P&F can stop it from happening at this point.

And before you tell me a public beta can't be used to hold a trademark take a stroll through Steam and count how many trademarked open betas there are.
PUBG comes straight to mind as the last open beta fad of recent memory.
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Re: My take on Stardock
« Reply #759 on: May 13, 2018, 10:51:55 pm »

If it has lapsed, P&F would have priority of use given that they have a copyrighted product originally sold under that name.

I don't see how this would work, given that P&F have no product in the market named "Star Control".  The name that it was originally sold under doesn't matter, AFAIK.  They might have a chance of snagging the trademark for "Ur-Quan Masters" (which they've already filed for), but that wouldn't stop SC:O from being released.
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Re: My take on Stardock
« Reply #760 on: May 13, 2018, 11:42:00 pm »

If the 1988 Agreement is taken into account while the trademark was transferred from Accolade to Atari, it would have elapsed due to lack of use. Stardock would need to argue it somehow didn't meet the 10 year criteria. If it has lapsed, P&F would have priority of use given that they have a copyrighted product originally sold under that name. Stardocks would be a new attempt to use the name. P&F could easily snap the trademark up if the judge decides it's out of date. Stardock does not yet have a product in commerce attached to the name and they would be competing with an EXISTING product that was sold under that name causing confusion. Honestly given the damage that Brad has done to Stardock's reputation they are better off just naming it Stardock: Origins and calling it a day but what do I know.

Priority is determined by use in commerce (as a mark on goods), the copyright has absolutely nothing to do with it. In Stardock's absolute worst case scenario, the mark was abandoned and the SC:O founder's program is now the first use in commerce.
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Re: My take on Stardock
« Reply #761 on: May 15, 2018, 06:43:19 pm »

There is a case to be made that the Trademark wasn't properly renewed, and lapsed/expired/cancelled somehow. There's over a solid decade between the brick-and-mortar sale of Star Control, and its eventual resurrection at GOG. That's a lot of years were Star Control was essentially invisible at commerce. (Not counting journalists tying the legacy to P&F.)

If the Trademark expired, use of the words "Star Control" fall into common law behavior and implied agreements. You'd still have Atari picking up the ball in 2011 or so. You'd have Stardock's supposed purchase (which is tricky if it's not actually a properly registered Trademark), and even so, you'd have Stardock walking around calling their game Star Control with no objection from anyone else. Similarly, you have Paul and Fred talking about being the "creators of Star Control" and wanting to make a sequel to Star Control for 20 years without any objection.

If the Trademark really did lapse, the de facto position has been years of consensual use by two different parties. Paul and Fred could talk about being the creators of the game and making a sequel, whereas Stardock can call their game Star Control (assuming they'd still want to). The court could either try to imply some sort of agreement based on the de facto behavior, or could just cancel the Trademark, making it open season, subject to any new registrations.

All this is to say that it's very unlikely that P&F get exclusive control the Trademark, nor is that something they're arguing for in their lawsuit. (Though, maybe if the old registration is cancelled, there might be another legal battle over a new registration.)

Which is also to say, Stardock can release their game regardless of what happens with the Trademark.
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Re: My take on Stardock
« Reply #762 on: May 15, 2018, 11:06:52 pm »

First post here...   sorta a lurker since the whole explosion of all things angst hit last winter...

So random thought after playing the fleet battles thing for SC:O   personally it feels very similar to the feel of the battles in UQM.

In a perfect world all sides come to terms and both games get made.

I'm curious what people think the likelyhood of either game being really crazy good.. vrs just meh.


A lot of remakes and revivals as of late have just failed to do anything and left a sour taste in my mouth.

SC:O is going to be made and released.  May not be altered and delayed but it will be released....    GotP is more threatened by ongoing legal battles.            Even if the battle ended today...  do you folks still see GotP being made?

Does it help or hurt GotP if SC:O is a great game.... or flip it a horrible game?

Thoughts on something other than the legal battle anyone?
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Re: My take on Stardock
« Reply #763 on: May 16, 2018, 12:03:10 am »

I think that:

1) if either one is bad, the other will not suffer from the association.

2) If they're both good, they will both benefit from the halo of the other one.

3) If one is noticeably better than the other, the less good one will suffer.

So each side would want the other to produce a game just as good as their game - not any better, but not much worse. This is more achievable than it sounds, if they're aiming to be slightly different things.
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Re: My take on Stardock
« Reply #764 on: May 16, 2018, 12:08:23 am »

Thank you for replying...

What's your thoughts on the likelihood of GotP being made?       When all this got announced last fall and how Frogboy was seemingly so upbeat about it I just assumed that StarDock would be publishing whatever Paul and Fred made... but now it seems that was a silly pipe dream.

Given what little P&F have posted, what differences do you expect in their goals/focus in the games?       from the screenshots and stuff Stardock has posted SC:O looks like at the very very least a homage to SCII.
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