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Author Topic: Stardock Litigation Discussion  (Read 4251 times)
Shiver
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Re: Stardock Litigation Discussion
« Reply #60 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?
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CommanderShepard
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Re: Stardock Litigation Discussion
« Reply #61 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.
« Last Edit: July 24, 2018, 09:34:53 pm by CommanderShepard » Logged
Elestan
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Re: Stardock Litigation Discussion
« Reply #62 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, please.
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tingkagol
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Re: Stardock Litigation Discussion
« Reply #63 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.  Roll Eyes
« Last Edit: July 24, 2018, 01:34:29 pm by tingkagol » Logged
CommanderShepard
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Re: Stardock Litigation Discussion
« Reply #64 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.
« Last Edit: July 24, 2018, 11:17:20 pm by CommanderShepard » Logged
Elestan
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Re: Stardock Litigation Discussion
« Reply #65 on: July 27, 2018, 04:06:30 pm »

Update:  If the default federal rule 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.
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Re: Stardock Litigation Discussion
« Reply #66 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 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.
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tingkagol
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Re: Stardock Litigation Discussion
« Reply #67 on: August 01, 2018, 05:34:54 pm »

Youtuber Law part 3
https://www.youtube.com/watch?v=5RuLAtF9f6E
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rosepatel
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Re: Stardock Litigation Discussion
« Reply #68 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.
« Last Edit: August 02, 2018, 06:44:04 am by rosepatel » Logged
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Re: Stardock Litigation Discussion
« Reply #69 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.
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Elestan
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Re: Stardock Litigation Discussion
« Reply #70 on: August 02, 2018, 09:04:32 am »

Stardock just posted an errata 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.
« Last Edit: August 02, 2018, 04:32:36 pm by Elestan » Logged
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Re: Stardock Litigation Discussion
« Reply #71 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.
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Re: Stardock Litigation Discussion
« Reply #72 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.
« Last Edit: August 02, 2018, 12:30:38 pm by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #73 on: August 02, 2018, 01:19:27 pm »


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.
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Re: Stardock Litigation Discussion
« Reply #74 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.
« Last Edit: August 02, 2018, 03:36:43 pm by rosepatel » Logged
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