I'm personally a little bit disappointed that SC1 and SC3 have gone commercial again rather than open-source.

The source code for those two don't exist anymore, well, at least for SC1.
Brad says he still hasn't been able to find the source code for SC3 and it's looking like it also may have been lost.

I guess you can't literally open source something without the source, but you can still CC-BY-NC-SA it.

The video the exhibit was cropped from wasn't too hard to find - https://www.youtube.com/watch?v=oq-HuIYIrds . Go back to part 1 of the let's play series and it's clearly The Ur-Quan Masters and not Star Control II™ at all...

While all the trademark applications are almost certainly going to end up suspended until the main lawsuit is over, Stardock have finally filed an exhibit showing their "use" of the Frungy "Mark" in their opposition.

http://ttabvue.uspto.gov/ttabvue/v?pno=91246028&pty=OPP&eno=1 (Exhibit A)

Which is a not an example of use in commerce, shows no connection to Star Control or Stardock unless you already know what the product is, and is probably copyright infringement.

But I wonder how steam can continue to sell through "Humblebundle" when they took it down on their own site.... (since they should've stopped issueing steam keys to humblebundle at the same time).

Technically Valve/Steam isn't selling Origins or anything else through Humblebundle, they just provide the infrastructure that gets used after the sale.

Valve needs to "respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity" to retain safe harbor, not merely stop selling it. Of course, P&F's latest claim accuses Valve and GoG of failing to meet pretty much any of the conditions for safe harbor, let alone all of them.

131. As Wardell promised, some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou as detailed above.

This is definitely true for some species, though the species previously referred to as the Arilou is no longer called that in-game. Their similarity to the Arilou can still be attributed to drawing on the same generic themes.

No longer being called Arilou is a vast difference from never being called Arilou in the first place (and in any case the Arilou DLC clearly naming them as such was still available on launch day). One is somewhat plausibly independent. The other is clearly derivative to anyone familiar with the source material. But is it apparent to an unbiased Arilou observer?

Wait, on what basis are P&F trying to stop sale of SCO? I thought the infringing stuff was gone.

The allegations against SC:O itself (trimmed a little, §128-136 for full text):

• Hyperspace travel in Star Control: Origins looks and sounds virtually identical to how it looks and sounds in Star Control II.
• The main ship in Star Control: Origins is called Vindicator, just like in Star Control II.
• Some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou
• Star Control: Origins refers to the police force as “Star Control,” which is part of the lore from Reiche and Ford’s Star Control Games
• The starbase commander in Star Control:Origins is called Commander Hayes, just like in Star Control II.++
• Star Control: Origins refers to characters called “Precursors” ... the exact same name and backstory ... of the “Precursors” characters in Star Control I and II
• Dnyarri ...  again is an alien species from Star Control II with the exact same name and backstory
• Many of the planet types in Star Control: Origins have identical names to planet types in Reiche and Ford’s Star Control Games.
• Players of Star Control: Origins search for Tzo Crystals ... just like in Reiche and Ford’s Star Control Games.

++Does not appear to be accurate.

I think that only the characters (alien races) have a chance of being found as protectable / infringement, but there is plenty of evidence of copying.

Paul and Fred are going to have to prove every scrap of copyrighted material is under their control to prove the open source license is valid either now or when possibly when released as open source.  -- Yes ugly stuff, and no matter how much we scream on walls it'll come down to the court to determine everything.

If SC2 is a joint work, which seems most likely, P&F need only prove they contributed something copyrightable. That gives them (and every other author) copyright in the whole work, and the open source licenses (being non-exclusive) are valid.

Stardock needs SC2 to be a collective work, in which P&F own only what they created themselves, or nothing at all, otherwise most of the case falls apart. On the trademark side, they need in game use to count as use in commerce, which seems highly improbable.

Hence I want to know what exhibit G shows...
A screenshot at that time was not marketing...

Almost certainly the same exhibit G as in the July second amended complaint - screenshot of the title & subtitle screen, the probably copyright infringing steam store page for SC:II, and P&F's introduction to the Role Playing Resource Guide.

Just to note where I think this plays into the case:

Stardock's application to register the "Ur-Quan Masters" trademark has recently been delayed because they have not been able to provide a valid proof of use in commerce.

It appears to be delayed because the specimens were not correctly accompanied by signed affidavits, because the use (sales of SCII) has been suspended, and queries about the ongoing litigation - but the specimens themselves were acceptable.

Almost true, but not quite.  My suggestion was to offer a unilateral license, not to try to get the UQM team to sign one:

I'm not sure that's actually possible. Both sides of a contract must give something for it to be a valid contract.

Considering that it is at least possible (despite Brad's insistence that the UQM project is not in commerce) that common law rights to the mark "The Ur-Quan Masters" (and alien names, if any count as marks) belong to Serge van den Boom, Mika Kolehmainen, Michael Chapman Martin, and Alex Volkov; signing anything before ownership details are settled sounds premature. Especially one that assigns any potential rights to Stardock.

The language of the proposed agreement "WHEREAS, Licensee is currently using the Marks..." implies that the UQM project is using them in commerce (that's what it means to be using a mark) and therefore has been, unopposed, since its creation.

This might be a sort of end-run around the substantial similarity test. "Substantial similarity" isn't a synonym for copying. It's merely how you might prove that someone copied when you have no clue how they actually made something.

It's also a test for whether the extent of the copying is actionable, and in that sense forms the basis of one of Stardock's defenses (and Brad's online arguments). I'm not really sure 'Substantial Similarity' is going to be necessary to prove that at least some amount of copying occurred in this case. It was obvious as soon as the alien names were used.

...care must be taken to recognize that the concept of "substantial similarity" itself has unfortunately been used to mean two different things. On the one hand, it has been used as the threshold to determine the degree of similarity that suffices, once access has been shown, as indirect proof of copying; on the other hand, "substantial similarity" is more properly used, after the fact of copying has been established, as the threshold for determining that the degree of similarity suffices to demonstrate actionable infringement.

A few filings on September 11th that don't seem to have been mentioned yet, resulting in https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.60.0.pdf

-P&F have agreed to stop sending DMCA notices until the preliminary injunction motion requested by Stardock has been resolved. This will not be before at least September 21st (Stardock's response deadline), and Stardock have helpfully transparently suggested the courts take their time if they need to.

Given that Stardock has apparently decided that referring to someone else's trademark in a historical nominative fair use way without attribution is perfectly OK, it seems their entire dispute hinges on use of the word sequel.

...from renowned composers Mason Fisher (Age of Wonders, Eye of the Beholder III: Assault on Myth Drannor) ...

https://www.stardock.com/games/starcontrol/article/490686

On another note, it occurs to me that the Chenjesu and Arilou DLC, containing only art and music, could be considered 'Single creative works' and therefore their titles may not be eligible for trademark protection.

https://tmep.uspto.gov/RDMS/TMEP/current#/current/TMEP-1200d1e2517.html

No, I but I suspect they want to use names that are connected to Star Control that might cause consumers to believe their new game is connected or associated with Star Control.

The Lanham act 43a is pretty clear. https://www.bitlaw.com/source/15usc/1125.html

Which section do you suggest that would violate?

"(a) (1) Any person who, ..."

OK so far.

"...on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof..."

Not this section, in game use is not use in commerce.

"...or any false designation of origin..."

Nor this section. Use in game is not designation of origin.

"...false or misleading description of fact, or false or misleading representation of fact..."

Nor this section. Use in game is not a description or representation of fact.

So section (a) is out. (b) is irrelevant, being about importing.

"(c) ... Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce..."

Again, use in game is not use in commerce, so (c) is out as well, even assuming Star Control is a 'famous' mark.

(d) is about domain names so also irrelevant.