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Topic: My take on Stardock (Read 192236 times)
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rosepatel
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They can't misrepresent the settlement offer if they posted both of them online verbatim. The words are there as they've been used. (Unless you're alleging they manufactured the evidence. Which is I guess insanely possible, but a really obvious crime.)
I suppose we can nitpick the summary, but it seems to be pretty accurate by my eyes. (Is the IP being surrendered, or merely transferred? Are they apologizing or merely making a corrective statement?) The Stardock legal Q+A had more issues with accuracy. (Which did improve somewhat with time and scrutiny.)
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« Last Edit: March 28, 2018, 01:13:18 am by rosepatel »
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rosepatel
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If you look through the settlement offer Stardock sent, even though the lawyers were harsh about it (and yes, it was approved by Stardock but it did not involve apologies or demanding they never use certain words or involve them surrendering anything) it was designed to address the 5 points above.
Don't you mean... "let’s say the settlement offer they released that they represent as our entire proposal was true"?
First, it does absolutely tell them to stop using certain terms. For example:
(iv) refrain from any and all use of the term GHOSTS OF THE PRECURSORS and/or any variation thereof, as a trademark, service mark, business name, trade name, and/or social media username and/or with source identifying indicia whatsoever, including but not limited to any and all use of the wording GHOSTS OF THE PRECURSORS in connection with the marketing and promotion of any product or service including but not limited to any computer or video game;
And the next section does the same for "UR QUAN MASTERS".
"Any and all use" is very robust. "Including but not limited to" stresses that broadness.
Stardock then asks them to transfer all their intellectual property rights to Stardock:
Assignors hereby irrevocably and forever assign and transfer to Assignee, its successors, and assigns, the entire right, title and interest to any and all intellectual property associated with the Works including but not limited to any copyrights, trademarks, domain name and all other intellectual property rights
Stardock asks that they don't even begin developing a new game until 2023:
For a period of (5) years form the Effective Date of this Agreement, Defendants shall refrain from developing and/or publishing any work that is within the same genre of games as the Classic Star Control Games and Stardock’s New Star Control Game.
Optimistically, no continuation of the UQM storyline until 2025.
Stardock didn't just ask them to pick a different game title. Stardock asked them to transfer (but let's not call it a surrender) all of their intellectual property in the original games to Stardock. And then Stardock asks them to not begin making a game in the same genre for 5 years.
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« Last Edit: March 28, 2018, 01:16:19 am by rosepatel »
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Elestan
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The question isn't whether we will settle or not. The issue is that we won't be offering settlements because we clearly can't trust them not to misrepresent them (you have no idea what the discussions were before the first settlement offer was sent to please stop acting like you have even remotely the full picture).
It kind of seems like you're hiding behind a self-imposed confidentiality obligation here. P&F don't really have standing to complain about Stardock revealing settlement information when they've already leaked the settlement docs. So if you think there's anything you could reveal that would show Stardock in a better light, I would say to go ahead and do it...or publicly challenge P&F to tell you that they expect you not to. Either of those would be a PR win for Stardock.
Any settlement would have to cover these basics:
Obviously, I can't speak for Paul, but I can say what would seem reasonable to me. And I think the five points you mention are in a range where they invite negotiation, unlike Stardock's other settlement proposal.
1. Prevent any chance of this nonsense from ever happening again. We don't want, 3 years from now, to be dealing with Dogar posts complaining that the Tywom Juggernaut is too similar to some ship they made or demanding that we take features out of our games. If Star Control: Origins becomes a sensation, we don't want to be getting threatening letters demanding that we better pay up because they think they have some right to some element of our games.
So, I think this is reasonable, but it does require drawing up some dividing lines to define what's allowed and what's not. Would you be willing to commit to not using the following things from SC1&2?:
- Ships
- Alien Races/Creatures
- Characters
- Plotlines
- Unique names
- Any music that Paul can show was made under a work-for-hire arrangement, exclusive license grant, or copyright assignment.
For the ships in particular, because of the ship designer, Stardock is going to have an issue with people designing ships that infringe on copyrights owned by others. That's going to happen regardless of how this suit turns out. So, presuming that Stardock does have something in mind to keep from getting sued by Disney (maybe a DMCA-like procedure?), I would just suggest that Stardock essentially promise to handle a user-designed Ur-Quan Dreadnought the same way it would deal with the Millennium Falcon or the Enterprise.
2. Recognize the damage they have caused and the confusion they have caused and compensate us for that. We've lost months of marketing time and good will because of the confusion they created in the market (you yourself saw that guy's Reddit post, and yea, that's devastating to their case). And I'm not even getting into the public circus of the lawsuit itself. It will take market experts to determine how much in sales this has caused but I would guess probably around 5% at least.
I think some damages are reasonable, but I would suggest that such damages be based only on the actual damages Stardock can prove to the appropriate legal standard, and not include any statutory or punitive damages.
3. Recognize that we own the Star Control trademark and that means that yes, we will be associating it with the classic games. Star Control: Origins is just as much of a Star Control game as any other Star Control game.
I agree with your ownership of the trademark, and your right to call Origins a Star Control game; I think that comes with the trademark. You could call it "Star Control Zero" if you wanted to, and then go on to make your own "Star Control n" games, potentially even including a new "Star Control I" and "Star Control II" (although I'd suggest trying to avoid that, for sanity's sake). Paul passed up the chance to buy that right from you. But the UQM universe is a creative work that falls under Paul's copyright. Would you commit to fully dissociating the SC:O multiverse from the UQM continuity, rather than saying that they are connected in some way?
4. Cease associating any future games with Star Control. That means no calling their game a sequel to it and it also means they need to come up with a different game title because Ghosts is already too associated with it. I don't think think many people would object to them picking a different title.
On the sequel issue, I'd agree that they shouldn't call it a sequel to Star Control, but they should be able to call it a sequel to "The Ur-Quan Masters".
As for the name, I have no particular attachment to GotP, but they might. Since that name is not actually a threat to Stardock, I'd suggest that this probably doesn't need to be made into a dealbreaker, especially if they're paying damages for their post. Maybe part of their damages could be considered a fee for whatever goodwill they rubbed onto GotP?
5. Do not attempt any action that tries to block us from supporting the Ur-Quan Masters communities or any other well established Star Control related communities.
I certainly don't think they'd stop any contributions to UQM; their proposal even had the whole of SC1-3 being donated to UQM. What sort of action are you worried they might object to?
If you look through the settlement offer Stardock sent, even though the lawyers were harsh about it (and yes, it was approved by Stardock but it did not involve apologies or demanding they never use certain words or involve them surrendering anything) it was designed to address the 5 points above.
I agree that the required statement was not an apology, but it was a forced endorsement (it required them to say they were "genuinely excited" to play your new game), and it absolutely does demand (in sections 1(iv),(v),(vi)) that they not use certain words, and (in section 3.) that they surrender all of their IP rights to the classic games. Okay, it uses the word "assign" to mean "surrender", but I'll assume you're not trying to stand on that pedantic a distinction.
If they're willing to give you what you want above, would you be willing to commit to the following?:
- Cancel your new trademark filings relating to the classic games.
- Disclaim any common-law trademark interest in the classic games.
- Donate the code and license the copyright for SC3 to the UQM project under an open-source/Creative Commons license.
- Agree that that the classic games can't be sold unless you and Paul agree on the terms.
- Donate any profits Stardock has received from selling the classic games to a mutually agreeable charitable cause.
- Give Paul any materials Stardock got from Atari relating to SC1&2.
BTW, if they lose in court, they have to pay our attorney fees. I'm not sure if their attorneys have walked them through that. This is one of the few types of litigation where that is a factor to consider.
My understanding is that if their infringement is found to be willful or malicious, the court may require them to pay your fees, but it isn't automatic.
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« Last Edit: March 28, 2018, 08:45:51 pm by Elestan »
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SirPrimalform
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Elestan's suggestion seems very reasonable. All you need to do is work together (with your respective lawyers) to find the correct legal terminology for it in a way that isn't too vague.
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PRH
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I've been thinking some more about a "win-win" solution, and I think that reaching one, or at least something very close to one, is still possible. It would go like this:
The old Star Control franchise (SC1-3) is separated into two franchises: the Ur-Quan franchise (SC1+2, plus GotP and any future sequels), and the new Star Control franchise (SCO, plus possibly some plot elements or races from SC3, such as the K'tang or the Xchaggers). The concept of the "Star Control multiverse" may stay, but it will have to dissociate itself completely from the Ur-Quan franchise. Any races or (copyrightable) plot elements from SC1+2 are not part of it, unless F&P agree to share them with Stardock. And I acknowledge that this is one of the main points of contention in this dispute, as Brad and Stardock believe they hold the full copyright to the entire old SC franchise, and F&P are only entitled to royalties. And since F&P refused to buy the rights back, the solution is problematic, if possible at all.
However, policing Stardock for any fan-created content that may borrow from the Ur-Quan franchise (or anywhere else for that matter) is ridiculous, and I'm fully with Stardock on that matter. Nearly all games on the market that allow fans to create their own content have mods that borrow from copyrighted works. As far as I know, Stardock's other games (such as Galactic Civilizations) had Star Control-inspired mods. Stellaris has mods that introduce races from Starcraft and Mass Effect. As long as these mods are distributed non-commercially, and the authors of these mods acknowledge the original copyright of the works they borrow from, everything should be okay, and (unless he borrowing is really extensive, like copying a significant part of the original work) I've never heard of any copyright holders issuing C&D demands to the authors of the mods (let alone the developers of the game that hosted the mod). I admit though, that my knowledge on this matter is extremely limited.
As for the gameplay elements, I think that both sides should have the right to use gameplay mechanics from the old SC franchise, as all three classic SC games have used them. And I think that Stardock should be able to use "Super-Melee" (or any derivative of it, like SC3's "Hyper-Melee", or "Ultra-Melee", or something) as a name for its fleet battle mode. However, that is just a name, and changing a name won't change the gameplay.
Of course, all of the above assumes that both sides have the fans' interests as a priority, which is hardly a given. Both sides may have ulterior motives here.
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« Last Edit: March 28, 2018, 02:30:48 pm by PRH »
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rosepatel
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A lot of settlements are there in case someone operates in bad faith. This is where the lawyers really need to get involved.
I mean, I would like to think that Paul and Fred wouldn't be vindictive assholes. But I think it's valid for Stardock to protect themselves from P&F using their copyright as a sword. Imagine lawsuits about how GalCiv has ships that vaguely look Star Control-ish.
Similarly, I'm a healthy supporter of any mod community, and I think Stardock knows that a game with great mods will get more sales. But I think it's valid if Paul and Fred worry about Stardock actively supporting a team of modders to essentially port Star Control 2 material into SC:O. If they were really shitty, they could encourage porting the whole damn game, and it would get more people buying SC:O for sure.
If Israel and Palestine were to basically agree on the borders, the whole world would applaud. There would rightfully be mistrust on both sides, and they would need to work out a neutral way to police the borders so it doesn't lead to some weird land grab. But figuring that out would be more than half way there. AndpPeople would rightfully be mad if someone walked away from the negotiating table without an honest discussion about those details.
Frankly, the justice system is designed to punish people who walk away from the negotiating table -- it's designed to encourage settlement to save everyone money, including the courts and the taxpayers.
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« Last Edit: March 28, 2018, 07:20:04 pm by rosepatel »
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Mormont
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Look, I can understand why Stardock may be concerned about some overly broad terms in Fred and Paul's proposal. But that can be amended and tightened up. It is at least a good starting point for a compromise, even if it may need a few rounds of counter-offers back and forth.
Stardock's proposal, on the other hand, is absolutely draconian and doesn't look like someone at all interested in a good-faith compromise. Fred and Paul's summary was accurate - in fact, I found the actual text even more brutal. They literally have to delete their forum posts here and elsewhere! Nitpicking language like "transfer" vs. "surrender" or saying the written statement wasn't actually an apology (if anything, it's actually worse and more humiliating than merely "apologizing") isn't very convincing. Nor is using euphemistic language to make the demands sound less extreme.
Maybe neither offer is perfect, but they are not equivalent.
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« Last Edit: March 28, 2018, 07:53:17 pm by Mormont »
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Krulle
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I changed my hope.
I now hope, that Pr3 and FF will like the Origins engine and modability so much, that they and Stardock come to a licensing agreement, that makes GotP a paid extra content add-on for Origins.
IMHO, that would be the best outcome for all sides.
Question would be how much FF, PR3 and Stardock feel hurt and emotions getting in their way to do this.
And I also do not know if FF and PR3 would even consider downgrading their project from a full game to an add-on mod.
But with this, they could conceivably even market their game as Star Control : Ghosts of the Precursors.
I can dream, can't I?
I still wish to know the planned scope of GotP... Full, modern game, or "merely" a continuation of the storylines of SC2:UQM with as much game around it as needed....
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tingkagol
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Word is both parties are now working together to arrive at a settlement....
(just kidding)
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Elestan
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As a reminder, Stardock does have a Q&A which is frequently updated. You can see Paul and Fred's emails for yourself along with what Stardock originally proposed before lawyers got involved.
Thanks Brad, those emails provide some great additional context. One minor suggestion: It's a little hard to pick out what's been changed in such a large post, so highlighting the changes in some way would be very useful.
I do think Paul's demand about "Super-Melee" in #20 is not well-founded; I probably would have responded to it with a polite indication that the term was too generic for their copyright to apply. And if I were Paul, I would not have said that there is no need to debate legalities; it seems like more legal clarification is exactly what was needed.
So, with that said, you didn't actually respond to his key point:
- You had argued to him in #19 that "The fact that the product is available for sale now and you are collecting royalties makes clear that the publishing agreement is in effect"
- But Section 2.2 of the agreement clearly says that the sales term of the agreement only lasts as long as the agreement is generating $1000 in royalties, which it had stopped doing a long time ago.
- It seems like you may not have understood at that time that the GoG sales were under an entirely separate agreement.
- And in any case. once the sales term termination trigger goes off, the agreement doesn't just start up again because sales pick up. That parrot is dead.
- Yet you say that you just had the contract re-reviewed and your lawyer says that the agreement is still valid and enforceable
Certainly, if I were Paul, I'd wonder what your lawyer was smoking at this point, because his assessment seems to contradict every other reading of this contract, including by Accolade and Atari's own lawyers. If you want to claim something like that, you've got to explain your reasoning, or people are going to think you're just willfully denying reality.
So...can your lawyer explain his reasoning here? I'm open to the possibility that your lawyer initially mis-read the contract, and now that you're in litigation, you just don't want to admit the mistake. But if you can walk us through a plausible reading of the contract logic that would mean that it's still valid, it would make you sound a lot less crazy.
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« Last Edit: March 29, 2018, 06:40:19 pm by Elestan »
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Frogboy
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At the time we had:
1. The GOG agreement between Atari and GOG.
2. The email between Paul and me.
3. The game on GOG with us as publisher.
4. The 1988 agreement.
There was no email from Atari or any other reason for us to think that it had expired and they weren't interested in discussing it. That email from them is the last one before they sent their lawyer who also did not provide any sort of evidence.
If they had given us the Atari letter (and they still haven't btw, we have only the excerpts posted on their blog to go by) before the lawyers were involved, that would have satisfied me regarding the distribution of the old games. However, the sequels were not part of the sales term and would have survived I believe.
In any event, it should have been pretty easy to iron out...if...they...would...have...just...picked....up a phone. We're the ones with the registered trademarks and copyrights. They had nothing at the time on file. No documentation for anything. And they weren't even willing to discuss it.
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