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Topic: My take on Stardock (Read 192221 times)
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Elestan
*Smell* controller
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There will still be a court of opinion, though. Discovery is still going to go on, and much of that will still be public. At some point (I think by July), if they haven't settled by then, Stardock will have to respond publicly to F&P's countercomplaint (they have to make a private response by the end of the month), and say why they think the 1988 agreement is still valid (if they plan to make that argument).
I think a settlement should be possible; the important points Brad talked about earlier in this thread don't seem so far from F&P's settlement proposal that a deal couldn't be reached. And this time, the magistrate will be there to help with talks. But it's never a sure thing.
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Elestan
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Thinking about the point of Trrademark infringment and what damages could be collected... I don't think there's much to collect. Reading up on the Lanham Act when it comes to recovering for violation of rights ( https://www.law.cornell.edu/uscode/text/15/1117 ), apart from costs of the taking action (legal fees, lawyer fees, and anything spent to take action against the infringement), damage seems to revolve around profits that were misdirected to the defendant from the plaintiff. Unless there's another clause that handles other aspects that could be considered damages, the defendants infringement has to be related to the "sale, offering for sale, or distribution of goods or services". An announcement of a possible product in the future that may or not may come into existence does not seem to fall into that category.
They're going for triple actual damages under 15 U.S.C. § 1117(b) for willful infringement, and statutory damages under 15 U.S.C. § 1117(c) for counterfeiting, as well as a number of other things. I assume they're thinking that a product announcement counts as "offering for sale".
How they prove actual damages on a game that isn't released yet is, indeed, tricky. I assume their lawyers have a plan.
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rosepatel
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No one forced Paul and Fred to announce their new game as a sequel to Star Control. No one forced them to double down and actively promote it as the "true" sequel to Star Control. No
one forced them to go out and begin attacking us publicly.
I mean, this is just a corollary of what I previously said: Stardock deeply needs P&F's public blessing to make SC:O more than "Star Control in name only". The same way that Stardock was asking for any collaboration to get some of P&F's shine, all of these actions by P&F cut pretty deeply towards keeping their own shine. Litigation aside, it takes Stardock's highest hopes, throws them in a dumpster, and lights them on fire.
Likewise, no one forced Stardock to match P&F's announcement about their own Star Control sequel by also calling it a Star Control sequel, let alone a "true" sequel.
It doesn't make sense if the primary concern is to supposedly protect IP. It would be incredibly boneheaded to basically cede your Trademark to someone else's product if your primary goal was to protect your Trademark. Even if you only made that mistake for a few weeks.
But this makes way more sense if Stardock's primary concern is to associate SC:O with Paul and Fred.
At the end of the day, the law is what it is, and lawyers can only argue what people are legally entitled to do. But Stardock seems far more concerned with P&F's refusal to validate SC:O, and, if anything, treating it with less approval than even Star Control 3.
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« Last Edit: March 31, 2018, 07:43:20 am by rosepatel »
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vok3
Zebranky food
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I disagree. The only way I see this ending in a settlement is if Stardock totally capitulates on the vast majority of its claims. Stardock has not been behaving as though they consider that an acceptable outcome.
I was discussing this case with someone yesterday who had just learned about it through the Leonard French youtube coverage. They asked, "Something I don't understand. Was making their own game in this a do-or-die move for Stardock? Did they have no choice but to bet the company on it?" I answered, "No, worst case they make the game and it isn't a commercial success - or they decide they can't make it with an expectation of a return on investment in which case they trash all the work they've done and move to a different project. That's fairly common in gaming; you take a loss but if you have a financial margin of some sort you move on, and Stardock has other business interests, so they should be able to absorb the loss - it'd be painful but not a bet-the-company move. What will be a bet-the-company move is if it goes to trial; if the jury finds against Stardock, the punitive damages could bankrupt them." To which the other person said: "Yeah, that was my take on the situation too, and I don't see how Stardock can win. Which is why I really don't understand why they went this way."
It would not surprise me at all if Ford & Reiche believe the jury will come to the same conclusions. If they have that belief, Stardock would have to offer them a very, very sweet deal to come to some sort of settlement. The problem, as rosepatel has been saying, is that Stardock has nothing Ford & Reiche particularly want, while Ford & Reiche have stuff that Stardock appears to desperately want and is trying to take.
The more I see of this whole affair the more I think that Stardock decided they really needed the SC2 IP associated in some way to assure their game's success, and decided they were going to get it no matter what. That, certainly, is a bet-the-company move, and the only explanation I can think of for why they went for it is that they never took seriously the possibility that they might lose.
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Elestan
*Smell* controller
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That's fairly common in gaming; you take a loss but if you have a financial margin of some sort you move on, and Stardock has other business interests, so they should be able to absorb the loss - it'd be painful but not a bet-the-company move.
Brad has said that a failure of SC:O would be ruinous to Stardock. Obviously, we can't know for sure; Stardock's finances are private, and they currently have an incentive to play up any losses they might suffer.
What will be a bet-the-company move is if it goes to trial; if the jury finds against Stardock, the punitive damages could bankrupt them.
Because Paul didn't register the copyright to SC2 until last December, Stardock is only liable for actual damages for infringements prior to that date, and those are unlikely to be more than a few thousand dollars. I suppose they could face punitive damages for keeping them up after that date, but even the punitive damages would only be in the hundreds of thousands; not enough to be a mortal threat. And I also notice that Stardock has just announced that they'll be taking them down, as an act of good faith. It could also be because if they think they're going to lose on that point, keeping them up increases their potential liability.
The threat of the trademark getting cancelled would be a bit more annoying, but even in the worst case I don't see why they couldn't just re-register it. They've already registered a separate service mark for "Star Control", and Paul's suit makes no claim that Paul should get ownership of the trademark.
The biggest threat I see to Stardock is to potentially have to start second-guessing their UI, artwork, or other creative aspects of the game to avert any legal risk of their being deemed "substantially similar" to Paul's copyrighted IP. It really sucks when lawyers start sticking their nose into your production and development teams' decisions.
EDIT: Actually, there's one other potential risk. When Stardock counter-noticed P&F's DMCA on GoG for SC1&2, that declaration was made under penalty of perjury. If a judge finds that it was not reasonable for them to think that they had a license, they could get in a fair bit of trouble.
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« Last Edit: March 31, 2018, 06:40:27 pm by Elestan »
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Lakstoties
Frungy champion
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"Yeah, that was my take on the situation too, and I don't see how Stardock can win. Which is why I really don't understand why they went this way."
Given Stardock's general attitude towards this situation, their efforts they have made to mass filing trademarks upon the elements from the old property, how they have been focusing significantly upon status of authorship of the copyrighted material, and that they amended their complain to include copyright infringement... I don't think they care that much about the trademark issue in comparison to their interests towards the copyrighted material from the classic games.
The Trademark issue ultimately wouldn't be a threat to Star Control: Origins getting released. Stardock is a big company, they have a significant fan base, and most of that fan base will pretty much go with whatever Stardock does at this point. Let's face it, the old Star Control community is maybe a thousand or so folks, total. Stardock's fandom is easily pushing a lot more than that. So, Stardock has fandom on their side. Before the launch of litigation, most the old community was at least interested in Star Control: Origins to give a try because it has been portrayed as a Star Control game in form and function, and the construction tools looked really cool. The Stardock fandom, it was another good looking space game from Stardock aligned with most of their preferences. With the Ghost of he Precursors announcement, I don't think that changed anything. The old Star Control fandom looked over and collectively thought, "Awesome! This might be finally happening! Finally continue the story where it left off AND I get to play around with Star Control: Origin's creation tools and adventure building platform. What a nice year!" Meanwhile, a healthy portion of the Stardock fandom didn't even notice that announcement happened, the remainder were still going to buy Star Control: Origins, and a segment of that were thinking along the same lines the old fandom "Cool, two games for things I like!".
So, the dramatic launch of litigation from Stardock after the DMCA Notice from Fred and Paul just feels WEIRD, especially with the trademark filing barrage from Stardock. Because, the copyright issue with selling the old games has happened before on record with Atari. Fred and Paul, Atari, and GOG.com rechecked everything and Atari realized that they were in the wrong, but they were all able to negotiate something. If Atari could rebuff Fred and Paul legal, they would have. Atari was still riding decently high at that point, so it would have been no thing to shutdown Fred and Paul if they had the legal grounds. So, the trademark infringement claim from Stardock is just kind of out of the blue, especially with the amount of association that Stardock itself had made to Fred and Paul's project in the past. Finally, the trademark filing upon "The Ur-Quan Masters" really got me, especially with the REALLY shoddy justification. (Sharing assets and content to the community is a copyright issue, not a trademark issue. Take a look t the open gaming license from Wizards of the Coast.) So... The old copyrights must hold a bit more weight than at first glance.
With Stardock's fandom and marketing/PR team, they could rename Star Control: Origin to Stardock: Origins and it would sell just as well under that name. From general impressions, most folks are attracted to the exploration, customization, modding, building, and other components rather than anything to deal with old Star Control elements. I was actually a lot more interested in the game just doing its own thing content wise, since I've been burned multiple time by the practice of other companies handling IP they've acquired. So, it was a bit refreshing to see someone doing their own take in the spirit of it all.
The What, Who, Where, and Hows have been explored really deeply throughout this whole scenario, but a lot of "Why"s remain unknown.
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vok3
Zebranky food
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Brad has said that a failure of SC:O would be ruinous to Stardock.
1) At this point I am not willing to consider any statements he makes regarding Stardock's finances in the absence of specific external evidence.
2) Last time I saw much discussion of Stardock's finances, games were a side thing for them and WindowBlinds was the primary income driver. Maybe that's changed.
3) There's different types of failure. SC:O could be exactly what everyone expected it to be - a stand-alone game with expansion potential with no connection whatsoever to SC2/UQM - and have success in the market ranging from "pretty good" to "meh". Where Stardock NEEDS it to be in order to make money is unknown to us; however, even a "meh" result would bring in SOME money. The marginal difference in the bottom line between tacking on the SC2 IP by virtue of legal force (with corresponding antagonizing of the most vocal and dedicated SC2 fans, the ones most likely to influence the buzz around SC:O), and not having any SC2 IP involved at all, is much much smaller than the marginal difference between winning and losing a court case. I expect the SC2 marginal benefit is significantly smaller than the cost of merely fighting the court case.
4) If SC:O's market performance without the addition of the SC2 IP is likely to endanger Stardock's continued existence, maybe that's something Brad should have thought about during the trademark auction and before spending a few million dollars more on it.
SC:O was entirely capable of ending in the ballpark of its best-case scenario without legal maneuvers - and every single thing Brad Wardell has posted has left me less convinced that Stardock has justification for its legal moves. If anything is ruinous to Stardock, it will be Stardock's own actions.
At this point I am not able to come up with a coherent explanation of what I've seen other than that Brad made all his calculations based on the assumption that he WOULD be able to use SC2 and that it was just a matter of asking often enough or nicely enough, and had absolutely no fallback plan to deal with the refusal.
Because Paul didn't register the copyright to SC2 until last December,
Copyrights don't need to be registered. They exist implicitly as soon as the work is created. IP infringement damages can be astronomical. I refer you to Silicon Knights and Too Human for an example. Unless further facts come to light, that type of outcome is well within the realm of possibility here.
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Frogboy
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Brad has said that a failure of SC:O would be ruinous to Stardock. 1) At this point I am not willing to consider any statements he makes regarding Stardock's finances in the absence of specific external evidence. 2) Last time I saw much discussion of Stardock's finances, games were a side thing for them and WindowBlinds was the primary income driver. Maybe that's changed. 3) There's different types of failure. SC:O could be exactly what everyone expected it to be - a stand-alone game with expansion potential with no connection whatsoever to SC2/UQM - and have success in the market ranging from "pretty good" to "meh". Where Stardock NEEDS it to be in order to make money is unknown to us; however, even a "meh" result would bring in SOME money. The marginal difference in the bottom line between tacking on the SC2 IP by virtue of legal force (with corresponding antagonizing of the most vocal and dedicated SC2 fans, the ones most likely to influence the buzz around SC:O), and not having any SC2 IP involved at all, is much much smaller than the marginal difference between winning and losing a court case. I expect the SC2 marginal benefit is significantly smaller than the cost of merely fighting the court case. 4) If SC:O's market performance without the addition of the SC2 IP is likely to endanger Stardock's continued existence, maybe that's something Brad should have thought about during the trademark auction and before spending a few million dollars more on it. SC:O was entirely capable of ending in the ballpark of its best-case scenario without legal maneuvers - and every single thing Brad Wardell has posted has left me less convinced that Stardock has justification for its legal moves. If anything is ruinous to Stardock, it will be Stardock's own actions. At this point I am not able to come up with a coherent explanation of what I've seen other than that Brad made all his calculations based on the assumption that he WOULD be able to use SC2 and that it was just a matter of asking often enough or nicely enough, and had absolutely no fallback plan to deal with the refusal. Because Paul didn't register the copyright to SC2 until last December, Copyrights don't need to be registered. They exist implicitly as soon as the work is created. IP infringement damages can be astronomical. I refer you to Silicon Knights and Too Human for an example. Unless further facts come to light, that type of outcome is well within the realm of possibility here.
You really should read the updated Q & A that includes the email correspondence. As a Star Control fan, I can empathize how important it must seem to include the old aliens in the new game or to have Paul and Fred's approval. But to the average person? It's not very important. Ask a typical gamer who remembers Star Control and their memories will be positive but vague. They don't know or care who Paul and Fred are. They may vaguely remember a caterpillar alien.
https://www.starcontrol.com/article/487690/qa-regarding-star-control-and-paul-and-fred
It should be pretty evident based on the emails here who has been truthful and who has not. These are unedited.
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Deus Siddis
Enlightened
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I have read over those emails a few times and I am having trouble seeing this dishonesty you refer to.
Things seem quite civil until #18, where your tone suddenly changes and you start talking about using their IP without their permission. You had not before threatened to do this or before expressed your belief that you held a license on their IP in perpetuity (which they believe they saw expire long before you or GoG came into the picture due to the sales term if nothing else). Before you sounded like an interested fan, proudly showing off your progress and asking them questions from a fan perspective, including if they will ever create a true sequel. But then when they answer your sequel question, you go suddenly 180 on them. That's the point where things get tense and escalate quickly.
That might have instead been a good opportunity for you to express your understanding of trademark law that you have expressed here and politely reminded them not to cross that line in their opening announcement. And then if you desired, offered to trade them some kind of license to use your Star Control trademark to advertise their project in exchange for a new (legally extant) license for you to use some of their copyrighted material (like the ur-quan or yehat) and/or in exchange for delaying their announcement by some number of months (or whichever condition(s) you most wanted from them).
Especially considering how FAR apart your games will be on their release schedules. You have so many years head start. Anyone interested in Origins is not going to clutch that extra 30 USD waiting 3 or 5 years for GotP to come out. They will buy your game first, then theirs years later when it becomes available.
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Elestan
*Smell* controller
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Things seem quite civil until #18, where your tone suddenly changes and you start talking about using their IP without their permission.
To be fair, I can understand Brad's reaction in #18; I think he was pretty blindsided by the announcement of their new game. Remember, from his perspective, he believed that he had the exclusive license to that IP, so he didn't legally need their permission to use it in his game; rather, they needed his permission to use it in their game, and they didn't even ask him.
So I don't blame Brad for being a bit put-out at that point. But then we get to the part that I can't make sense of, where Stardock and P&F are both looking at the 1988 agreement, and Stardock concludes that it's still active despite the termination clauses. I don't think I'll be able to make sense of Stardock's actions after this point until I understand what their rationale for that is.
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« Last Edit: April 01, 2018, 06:40:05 am by Elestan »
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