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Author Topic: My take on Stardock  (Read 27362 times)
WibbleNZ
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Re: My take on Stardock
« Reply #825 on: May 22, 2018, 05:54:34 am »

Since I haven't seen any new information on the trademark side for a while, I've been looking into some other areas and found two things of interest.

1. The 7.1 Clause of the 1988 agreement is probably useless to P&F. 11 U.S. Code § 365 (e) says roughly that such clauses cannot be used to cancel a contract based only on the bankruptcy. See also various information about "ipso facto" clauses.

2. On the other hand, the question of Copyright assignment under bankruptcy is not clear. The Ninth circuit's current view appears to be based on Gardner vs Nike Inc; where it was decided that copyright licenses, exclusive or otherwise, cannot be assigned without the permission of the owner - even absent a clause such as 12.1 - and therefore 11 U.S. Code § 365 (c) (contracts may not be assigned if there is an applicable law preventing it i.e. copyright law) may apply. Other circuits have ruled differently, including that an exclusive copyright license is in effect a copyright assignment, which would be very bad for P&F. The question does not seem to have made it to the supreme court.

http://www.curtis.com/siteFiles/Publications/PDF_%20Showstoppers_%20The%20Effect%20of%20Bankruptcy%20on%20Intellectual%20Property%20Licenses.PDF

Neither of which matters if the contract was already terminated. I haven't yet found anything I feel is relevant to the other termination clauses yet - I feel like Atari's agreement that it was ended is a pretty strong argument.
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Elestan
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Re: My take on Stardock
« Reply #826 on: May 22, 2018, 05:57:47 am »

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;

Take another look at Stardock's First Amended Complaint, paying particular attention to allegations concerning GoG (such as those in paragraphs 59 and 61, as well as in the specific causes of action relating to the Classic SC Games). Try to take all of the allegations at face value (even if you think you know better). Does that affect your thinking on this issue?

Okay, I do see the complaint, and I know that P&F's position is that GoG was supposed to have a side agreement with Atari over the trademark, to permit those sales.  But wouldn't the trademark clause in section 11.5 of the 1988 agreement still preclude P&F gaining any trademark from the GoG sales?  It seems like those sections might survive the expiration of the sales term.
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WibbleNZ
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Re: My take on Stardock
« Reply #827 on: May 22, 2018, 06:06:17 am »


I presumed that this was why Stardock stopped selling them; I'm not sure how many sales there would have been in the couple of months after the copyright was registered and before the games got pulled; it might not be enough to be scary.

About $10,000. Also includes the claim of perpetual license to the characters which I am having a hard time finding the argument for.

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Elestan
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Re: My take on Stardock
« Reply #828 on: May 22, 2018, 06:08:35 am »

1. The 7.1 Clause of the 1988 agreement is probably useless to P&F. 11 U.S. Code § 365 (e) says roughly that such clauses cannot be used to cancel a contract based only on the bankruptcy. See also various information about "ipso facto" clauses.

Nice find.  I was wondering if there might be a bankruptcy law twist in play there.

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Other circuits have ruled differently, including that an exclusive copyright license is in effect a copyright assignment, which would be very bad for P&F.

Per the paper you linked, that's only for irrevocable exclusive licenses though, which wouldn't be the case here.
« Last Edit: May 22, 2018, 06:40:28 am by Elestan » Logged
Elestan
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Re: My take on Stardock
« Reply #829 on: May 22, 2018, 06:12:43 am »

I presumed that this was why Stardock stopped selling them; I'm not sure how many sales there would have been in the couple of months after the copyright was registered and before the games got pulled; it might not be enough to be scary.

About $10,000.

That's Brad's estimate of the actual Steam sales.  But for sales after the copyright was registered in December, it's possible (though I'm not certain) that statutory damages could also apply, which could be much larger.
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WibbleNZ
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Re: My take on Stardock
« Reply #830 on: May 22, 2018, 06:24:02 am »

Other circuits have ruled differently, including that an exclusive copyright license is in effect a copyright assignment, which would be very bad for P&F.

Per the paper you linked, that's only for irrevocable exclusive licenses though, which wouldn't be the case here.

I assume you're talking about just this final sentence? Stardock seem to be claiming they've found such a license in the contract so I'm not ready to rule it out yet. I would expect the very existence of 12.1, and the clear language throughout that Paul wished to retain copyright ownership, would be strong factors in any decision about the assignability, should it come up.
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Elestan
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Re: My take on Stardock
« Reply #831 on: May 22, 2018, 06:39:18 am »

Many of Stardock's positions make more sense to me if I imagine that they were conceived of by someone who was unaware that the Addenda existed. Someone who thought that Accolade went forward with SC3 and StarCon on its own, without negotiating new licenses from (and paying additional royalties to) F&P. Someone who had not even considered what Accolade might have bargained away in Section 4.1 of Addendum No. 3.

That...is very interesting.  On its face, it seems to rip up the 1988 agreement completely...although the use of the term "revert" would still imply that it's not transferring ownership of anything that wasn't P&F's to begin with (such as the trademark).
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huhlig
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Re: My take on Stardock
« Reply #832 on: May 22, 2018, 06:52:39 am »

I presumed that this was why Stardock stopped selling them; I'm not sure how many sales there would have been in the couple of months after the copyright was registered and before the games got pulled; it might not be enough to be scary.

About $10,000.

That's Brad's estimate of the actual Steam sales.  But for sales after the copyright was registered in December, it's possible (though I'm not certain) that statutory damages could also apply, which could be much larger.

Except that Brad has mentioned many many times in numerous documents and forums he was well aware of the copyright existing. The lack of registration merely allows for "innocent infringement" as a defense. There is plenty of evidence that Stardock was well aware of the copyright prior to registration.

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Why do the U.S. Copyright Laws put such an emphasis on registration?
Constructive notice. By registering your work with the U.S. Copyright Office others are put on constructive notice that you are claiming copyright to a particular work of authorship. This constructive notice precludes potential infringers from claiming that they innocently infringed your original work. In other words, if your work is registered these potential infringers cannot copy your work and then later claim that they did not know the author of the work they copied was claiming a copyright. Because innocent infringement is an affirmative defense, if a potential infringer can prove to a court that he/she truly did not know an author was claiming a copyright, the potential infringer may escape liability for copying that author's work.

Many times, if a work is not registered a claim of innocent infringement amounts to a "he said, she said" battle. That is, the potential infringer claims he/she did not know the author was claiming a copyright, while the author claims he/she did. Meanwhile, neither side has any real proof of either claim. Thus, the Copyright Laws provide for stiff penalties (i.e., the preclusion of statutory damages) to encourage registration and help avoid the "he said, she said" scenarios.
« Last Edit: May 22, 2018, 06:54:56 am by huhlig » Logged
Elestan
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Re: My take on Stardock
« Reply #833 on: May 22, 2018, 07:47:07 am »

Except that Brad has mentioned many many times in numerous documents and forums he was well aware of the copyright existing. The lack of registration merely allows for "innocent infringement" as a defense. There is plenty of evidence that Stardock was well aware of the copyright prior to registration.

Check out 17 USC 412(1):
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In any action under this title...no award of statutory damages or of attorney’s fees...shall be made for—

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration

There are some exceptions, which might or might not apply, but in general, infringements before registration can't collect statutory damages.
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huhlig
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Re: My take on Stardock
« Reply #834 on: May 22, 2018, 04:45:50 pm »

Except that Brad has mentioned many many times in numerous documents and forums he was well aware of the copyright existing. The lack of registration merely allows for "innocent infringement" as a defense. There is plenty of evidence that Stardock was well aware of the copyright prior to registration.

Check out 17 USC 412(1):
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In any action under this title...no award of statutory damages or of attorney’s fees...shall be made for—

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration

There are some exceptions, which might or might not apply, but in general, infringements before registration can't collect statutory damages.

Examine your quote though. Emphasis Added. It IS a published work. You might also find this interesting Skip the Copyright Office and Proceed Directly to Suit?
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Ariloulawleelay
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Re: My take on Stardock
« Reply #835 on: May 22, 2018, 07:11:12 pm »

Stardock doesn't need to "prove" the existence of any co-authors - all of SC2's authors are listed in the game's credits.

I should have been more clear and written "unique copyright owners" rather than "co-authors" - I apologize. It may well be that the two lists are coextensive, but I doubt either party would concede that just yet.

Brad did say that Stardock had apparently come across some information that F&P don't own as much IP as they had claimed, but he doesn't want to share that information while the litigation is still underway.

If Stardock came across this information in discovery, then F&P have seen it (if they weren't the source of the information to begin with).

However, Brad also claims that since Stardock owns the Star Control trademark, there is simply no way for F&P to release GotP other than through entering into a licensing agreement with Stardock. If that is true, then the copyright disputes are barely relevant here.

Yes, I imagine that if either party wins the current lawsuit outright, the non-prevailing party will seek to enter into a licensing agreement rather than go through this a second time.  Sad

Frogboy, of course, believes that Stardock will win outright, which means that F&P will end up having to go through Stardock if they want to create GotP as described. Conversely, if F&P win out here, Stardock would likely seek a license from them in order to protect its interest in SCO.
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Ariloulawleelay
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Re: My take on Stardock
« Reply #836 on: May 22, 2018, 07:29:28 pm »

Brad has already opined that copyright infringement damages are "trivial" - https://forums.starcontrol.com/487690/get;3712896. Perhaps Stardock is quite happy to bury 10 separate claimants in lawsuits it can afford but they can't.

The risk to Stardock would be that each of the 10 claimants could turn around and file a DMCA take-down notice against SCO whenever he believes he sees his copyright being infringed upon. My understanding is that one of the reasons Stardock filed this lawsuit was to avoid having to deal with that possibility. And I can't imagine that, with cancellation on the table, a putative trademark owner would want to argue that every single article labeled "Star Control" has been published in violation of copyright law. Which brings us to ...


I'm finding it very difficult to take the allegations at face value (particularly when Stardock misleadingly redefine the Star Control 3 copyright as "The Star Control Copyrights", it's hard to work out what the face value is) - those paragraphs reference Exhibit N, wherein P&F indicate the GoG and Atari arranged a trademark contract.

Pursue your whirling thoughts and find ruin. Only by fully embracing the Complaint can one fully appreciate the defensive nature of the trademark counterclaim. It only succeeds under the facts as alleged by Stardock.


Had Paul and Fred simply titled their game as Ghosts of the Precursors and never referenced or used the Star Control name what Lakstoties says would probably be true.

The issue is they called it the Sequel to Star Control  without stating that SC is R Stardock, so now everyone links GotP with SC directly and there is a confusion in the market which is exactly what a Trademark is intended to prevent.

Calling it a sequel to Star Control II, and calling it Star Control: Ghosts of the Precursors, are indeed problems - whether or not they attribute the trademark. Those statements have been removed. Stardock may or may not be able to prove damages for those; Escalating straight past 'cease and desist' to claim damages seems abusive.

Calling GOTP a sequel to SC2 has certainly caused some headaches for F&P, but it was not necessarily against the law. Among other things, the Copyright Act grants the owner of a copyright the exclusive right to prepare or authorize derivative works based upon her copyrighted work. Essentially, a copyright owner has the right to create sequels or prequels of her original communicative product, along with the right to exclude anyone else from doing the same.

So, if F&P did hold the copyright to SC2, and they decided to exercise their exclusive right to prepare a sequel using the aliens and story elements which, at the time, everyone agreed that F&P owned, how else could they describe what they were doing? Their statements were essentially expressing that they owned the copyright to SC2 and were finally going to be using it. This is the essence of the nominative fair use argument.


Can you back up the idea that "association" of a product with a mark is relevant without referencing something from Stardock? Stardock appears to be the only source of this idea. The Lanham act constantly refers to 'use in commerce', both to be a trademark, and to infringe on trademark. The only association it appears to care about is the good will associated with the mark itself (not the product), and the association of the mark (not the product) with the owner.

False representations concerning the origin, association, or endorsement of goods through the wrongful use of another's distinctive mark can indeed give rise to a "false association" claim. Take a look at § 43(a)(1)(A). I think that the real issue here is - assuming that F&P exceeded the scope of nominative fair use in their announcement - whether that association was actually false. (I suppose one could argue that F&P were not engaged in interstate commerce when using the "Star Control" mark, but that's usually a losing battle.) As rosepatel suggested, statements describing GOTP as "a true sequel to Star Control II: The Ur-Quan Masters" and "an independent effort with Stardock's blessing" might lead one to conclude that the representations were substantially true.
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WibbleNZ
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Re: My take on Stardock
« Reply #837 on: May 22, 2018, 11:55:56 pm »


False representations concerning the origin, association, or endorsement of goods through the wrongful use of another's distinctive mark can indeed give rise to a "false association" claim. Take a look at § 43(a)(1)(A). I think that the real issue here is - assuming that F&P exceeded the scope of nominative fair use in their announcement - whether that association was actually false. (I suppose one could argue that F&P were not engaged in interstate commerce when using the "Star Control" mark, but that's usually a losing battle.) As rosepatel suggested, statements describing GOTP as "a true sequel to Star Control II: The Ur-Quan Masters" and "an independent effort with Stardock's blessing" might lead one to conclude that the representations were substantially true.


I think I can now see a reading of  § 43(a)(1)(A) and associated remedies which might prevent future use of GotP as a trademark, assuming other things go Stardock's way.

Turning things around, is there precedence for action taken against anyone for use of their own mark?

e.g. Any person (Stardock) who ... uses in commerce ... any term (STAR CONTROL) ... which is likely to cause confusion ... as to affiliation of such person (Stardock) with another person (Paul Reiche) ... shall be liable in a civil action by any person (Paul Reiche) who believes that he or she is likely to be damaged by such an act.


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Re: My take on Stardock
« Reply #838 on: May 23, 2018, 01:53:50 am »

Turning things around, is there precedence for action taken against anyone for use of their own mark?

e.g. Any person (Stardock) who ... uses in commerce ... any term (STAR CONTROL) ... which is likely to cause confusion ... as to affiliation of such person (Stardock) with another person (Paul Reiche) ... shall be liable in a civil action by any person (Paul Reiche) who believes that he or she is likely to be damaged by such an act.
Far as I understand as a layman, that would fall under the category of "unfair competition" rather than TM law specifically. Which is indeed one of the items in the counterclaim. Unfair competition appears to be a pretty broad and nebulous concept, but it can include misleadingly associating your products with others.

By the way, while we should all be free to give our opinions, when we give interpretations of the law I think it is good to qualify it that it is just our best judgment without formal education (with the obvious exception of Ariloulawleelay).
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Lakstoties
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Re: My take on Stardock
« Reply #839 on: May 23, 2018, 04:40:32 am »

False representations concerning the origin, association, or endorsement of goods through the wrongful use of another's distinctive mark can indeed give rise to a "false association" claim. Take a look at § 43(a)(1)(A). I think that the real issue here is - assuming that F&P exceeded the scope of nominative fair use in their announcement - whether that association was actually false. (I suppose one could argue that F&P were not engaged in interstate commerce when using the "Star Control" mark, but that's usually a losing battle.) As rosepatel suggested, statements describing GOTP as "a true sequel to Star Control II: The Ur-Quan Masters" and "an independent effort with Stardock's blessing" might lead one to conclude that the representations were substantially true.


For reference  § 43(a)(1)(A): ( https://www.bitlaw.com/source/15usc/1125.html )
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(a) Civil action

(1) Any person who, 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, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities,


Hmm...  I agree that could be a bit sticking point.  Though the context of the rest of the section seems to in reference to mak vs. mark comparisons.  Even in the Additional Remedies, seems to be in reference to using a confusing mark that is similar to another mark.  And there's also the "willingly" requirement.

But looking at the Exclusions:
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(3) Exclusions

The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:

(A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services, including use in connection with—

(i) advertising or promotion that permits consumers to compare goods or services; or

(ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

(B) All forms of news reporting and news commentary.

(C) Any noncommercial use of a mark.

It was a sentence on a blog post, so I'm curious as to what all applies.  I would argue that A-ii applies in the fact that they were commenting upon the famous mark's good...  Star Control (R) 2 -- The Ur-Quan Masters.
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