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News: Paul Reiche and Fred Ford want to continue the story they started when they created Star Control II — The Ur-Quan Masters. «Happy days and jubilation!» «But wait!» «There is something wrong here... something which makes my sheath retract and my talons ooze.» «Please, Captain, we need your help!»

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Author Topic: Stardock Litigation Discussion  (Read 19655 times)
Elestan
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Stardock Litigation Discussion
« on: July 18, 2018, 06:45:45 am »

I'm starting a new thread for this, because the prior one 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 and Countercomplaint.  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.  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.
« Last Edit: July 18, 2018, 03:50:42 pm by Elestan » Logged
Elestan
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Re: Stardock Litigation Discussion
« Reply #1 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.
« Last Edit: July 18, 2018, 03:44:28 pm by Elestan » Logged
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Re: Stardock Litigation Discussion
« Reply #2 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.
« Last Edit: July 18, 2018, 11:20:08 am by CommanderShepard » Logged
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Re: Stardock Litigation Discussion
« Reply #3 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?
« Last Edit: July 18, 2018, 09:13:34 am by dss » Logged
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Re: Stardock Litigation Discussion
« Reply #4 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.
« Last Edit: July 18, 2018, 08:06:35 pm by CommanderShepard » Logged
Elestan
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Re: Stardock Litigation Discussion
« Reply #5 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.
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rosepatel
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Re: Stardock Litigation Discussion
« Reply #6 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.
« Last Edit: July 18, 2018, 07:34:37 pm by rosepatel » Logged
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Re: Stardock Litigation Discussion
« Reply #7 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.
« Last Edit: July 19, 2018, 12:43:28 am by CommanderShepard » Logged
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Re: Stardock Litigation Discussion
« Reply #8 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.   
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Re: Stardock Litigation Discussion
« Reply #9 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.
« Last Edit: July 19, 2018, 12:44:49 am by CommanderShepard » Logged
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Re: Stardock Litigation Discussion
« Reply #10 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.
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Re: Stardock Litigation Discussion
« Reply #11 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.
« Last Edit: July 19, 2018, 06:01:46 am by CommanderShepard » Logged
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Re: Stardock Litigation Discussion
« Reply #12 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.
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Re: Stardock Litigation Discussion
« Reply #13 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.
« Last Edit: July 18, 2018, 11:03:15 pm by CommanderShepard » Logged
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Re: Stardock Litigation Discussion
« Reply #14 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
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