The Ur-Quan Masters Home Page Welcome, Guest. Please login or register.
Did you miss your activation email?
July 02, 2020, 03:35:28 pm
Home Help Search Login Register
News: Paul & Fred have reached a settlement with Stardock!

+  The Ur-Quan Masters Discussion Forum
|-+  The Ur-Quan Masters Re-Release
| |-+  General UQM Discussion (Moderator: Death 999)
| | |-+  My take on Stardock
« previous next »
Pages: 1 ... 42 43 [44] 45 46 ... 68 Print
Author Topic: My take on Stardock  (Read 100567 times)
Telecart
Zebranky food
*
Offline Offline

Gender: Male
Posts: 30


No. I don't think so.


View Profile
Re: My take on Stardock
« Reply #645 on: April 24, 2018, 05:30:11 am »

I would assume it's an attempt inter alia to demonstrate that Stardock has the right to publish these games, by, in fact, publishing these games. Stardock's right to publish these games can only stem from the 1988 agreement which they acquired, and whose validity is what is subject to dispute between the parties. Therefore, I'm not sure P&F had a choice but to DMCA Steam and GoG when they became aware of the sales since a lack of action on their part might imply that they at least tacitly accept the continued applicability of the 1988 agreement.
Logged

Nihilistic mystics, apostolic alcoholics, messianic maniacs, cataclysmic and prolific.
Ariloulawleelay
Zebranky food
*
Offline Offline

Posts: 44



View Profile
Re: My take on Stardock
« Reply #646 on: April 24, 2018, 05:32:50 am »


Thank you for the very thoughtful post.  If you feel qualified to answer, I have a question about bankruptcy law that might hinge on the clause you cited, or one like it:

I know that bankruptcy judges have the power to break certain rules that are normally in force.  Can they override a clause such as the 1988 agreement's 7.1, which triggers rights reversion to Paul upon bankruptcy, and/or clause 12.1, which requires Paul's permission before assignment?  Feel free to answer generally if you don't want to opine on the particular contract language here.


While I am generally skeptical of the validity of any provision that purports to automatically forfeit a debtor's rights, my experiences with bankruptcy - fortunately or unfortunately - are quite limited. That's one rabbit hole I try to steer clear of.

So I cannot say whether any particular clause would be knocked-out of a contract pursuant to 11 U.S.C. § 541(c), nor do I have any idea whether it could be relevant under § 365(c) if debtor's counsel previously misrepresented an executory contract as being non-executory.

D999 - thank you?
Logged
Elestan
*Smell* controller
****
Offline Offline

Posts: 420



View Profile
Re: My take on Stardock
« Reply #647 on: April 24, 2018, 05:39:14 am »

Stardock's right to publish these games can only stem from the 1988 agreement which they acquired, and whose validity is what is subject to dispute between the parties.

Actually, there's a second source of that right:  The 2011 three-way GoG agreement with Paul and Atari was assigned to Stardock, and I'm not aware of any reason that that assignment wouldn't be valid up until Paul canceled it. 

There is a potential point of interest in that contract.  According to Brad, that publishing agreement was worded as though it was a two-party contract, with Atari having both full copyright and trademark to the games, giving its permission to GoG to republish them.  But according to the emails between Paul, Atari, and GoG, Atari should have just gotten a trademark licensing contract, because the copyright was part of a separate contract with Paul (it's in their countercomplaint exhibits).  So we'll have to look closely at those two GoG contracts and the surrounding emails once Atari(Stardock)'s contract is revealed.  Brad has said that they have that contract (though they haven't posted it yet), and that it will probably come out in discovery.
« Last Edit: April 24, 2018, 05:44:57 am by Elestan » Logged
Ariloulawleelay
Zebranky food
*
Offline Offline

Posts: 44



View Profile
Re: My take on Stardock
« Reply #648 on: April 24, 2018, 05:43:56 am »

There's a settlement conference next month, and while those need to be private, the court can absolutely penalize a party if there's evidence they didn't give it a good faith try.

Maybe, but I'm not so sure.  The whole Rule 408 thing seems to indicate that the events in settlement talks are strictly not allowed to influence any other part of the trial - the trial judge isn't even directly involved.  Would any litigation attorneys care to weigh in on the extent to which judges can pressure an uninterested party to settle?


Civil litigants in federal court can expect systematic direct and indirect pressure to reach a settlement, or to at least go through the motions towards that end.

If anyone here prefers dealing with math to dealing with the law, consider that Stardock Sys., Inc. v. Reiche was the 7025th civil action filed in the Northern District of California in 2017.1 There are a grand total of fourteen full-time, full-fledged judges assigned to that U.S. District Court.2 And these same judges are also responsible for criminal trials. Not everyone's getting a jury trial; the system needs cases to settle. Most do.

The actual ADR process is governed by local rules which are not really germane to our discussion of the substantive issues, but the spirit of FRE 408 is alive and well - the settlement judge will not disclose the substance of any settlement discussions to the assigned trial judge.

To answer any further would probably require some exploration of what is meant by "uninterested" and by "good faith try." I don't think one can get penalized for having a stubborn client, as long as one is doing all of the homework and complying with the ADR orders. And judges do understand that sometimes a party has a legitimate reason to not settle. Actual evidence of bad faith, willfulness, recklessness or gross negligence can be hard to come by, but could theoretically lead to proceedings under seal (before a new pair of judges) and, potentially, fee-shifting sanctions.3

---

[1] The case was filed in early December.

[2] There are also about a half-dozen semi-retired judges who can conduct trials, and about a dozen lower-level judges who cannot.

[3] I.e., the misbehaving party has to pay the other side's wasted attorney fees.
Logged
Ariloulawleelay
Zebranky food
*
Offline Offline

Posts: 44



View Profile
Re: My take on Stardock
« Reply #649 on: April 24, 2018, 05:56:51 am »

To anyone who may have sent me a PM: While I cannot offer legal advice, perhaps I can offer some perspective. It is possible that I'm just jaded, but I found the allegations in the various complaints to be ... mundane.

  • Yes, Stardock's attorneys forwent use of the 1988 License Agreement in order to undermine an anticipated nominative fair use defense. That was their decision to make.

  • After Stardock alleged trademark infringement, P&F's counsel responded with a colorable argument that the trademark at issue is invalid. This was inevitable: any less of a defense might have been legal malpractice. (This is not to say that such an argument is at all likely - or unlikely - to succeed on the merits, only that it is a plausible legal argument one could make without getting laughed out of the courtroom.)

  • And P&F's lawyers have taken an aggressive stance on contributory infringement. Good for them. Personally, I often recoil at the demands for access that accompany these sorts of allegations, but remember that the stereotypical defendant is not one half of a soured business relationship, but a seedy manufacturer of knock-off goods that will be back at it under a new name before the ink on the judgment is dry. Oversight demands are standard fare (and here would be generally consistent with what Accolade had previously agreed to).

All-in-all, this sort of stuff is not atypical. The complaints set forth the broad outlines of a business dispute, that's all. Allegations not supported by the evidence will fade away. In general, I am thrilled when I discover that an opposing counsel has built her case on such unfirm foundations.
Logged
Elestan
*Smell* controller
****
Offline Offline

Posts: 420



View Profile
Re: My take on Stardock
« Reply #650 on: April 24, 2018, 07:00:11 am »

To anyone who may have sent me a PM: While I cannot offer legal advice, perhaps I can offer some perspective.
And thanks so much for that perspective!

Quote
Yes, Stardock's attorneys forwent use of the 1988 License Agreement in order to undermine an anticipated nominative fair use defense. That was their decision to make.

Could you elaborate a bit on how that undermining works?  It's not obvious to me.

Quote
After Stardock alleged trademark infringement, P&F's counsel responded with a colorable argument that the trademark at issue is invalid. This was inevitable: any less of a defense might have been legal malpractice.

I thought that might be the case...which leaves us to wonder how to interpret Brad's claim that registering the alien race names was justified retaliation for P&F daring to attempt that argument.
Logged
Krulle
Enlightened
*****
Offline Offline

Gender: Male
Posts: 1042


*Hurghi*! Krulle is *spitting* again!


View Profile
Re: My take on Stardock
« Reply #651 on: April 24, 2018, 09:42:38 am »

More so since SC3 also used that name (under a license, although it is debateable whether a license for this one single element would've been necessary).

SC3 called it Hypermelee, not Supermelee.
Thanks for jogging my memory.

Well, that would've been a name available for Stardock's Origins.


I just looked quickly at youtube, and found "Supermelee"-named videos there. (e.g.this one).
Hence my confusion.
Logged
Mormont
*Smell* controller
****
Offline Offline

Posts: 250


I love YaBB 1G - SP1!


View Profile
Re: My take on Stardock
« Reply #652 on: April 24, 2018, 06:48:24 pm »

If Brad really wanted to be the most hated man in all of gaming history he would attack UQM.
But it isn't going to happen.

And in a worst case scenario even if he did attack we could just change the damn name to something else.

Like "The Path of Now and Forever" or "The Eternal Doctrine" to keep the Ur-Quan relation.
There is not a situation where the rights to the UQM source reverts to Stardock so nothing there would ever have to change.
I'll assume that Brad Wardell is sincere about not killing or taking over UQM. Regardless, the mere fact that Stardock theoretically could is a serious problem, no matter how much good will and generosity he might hold toward the project. Stardock's management could change, they could go bankrupt or get bought out, or Wardell might just change his mind (as he has with SC legal matters before) or start putting conditions on its continued existence. Even if he signs an airtight licensing contract, if someone else breaks it later down the road and enforces the trademark(s) against this project then as Lakstoties said who exactly is going to foot the time and money to fight it in court?

UQM has existed for decades now without any company interfering with it or being theoretically able to, and there's no reason for Stardock to get the trademark besides leverage against Reiche/Ford. Seems to me the best-case scenario is that these trademark filings are legal posturing to help push a more favorable settlement for Stardock.



Quote from: Ariloulawleelay
Yes, Stardock's attorneys forwent use of the 1988 License Agreement in order to undermine an anticipated nominative fair use defense. That was their decision to make.
Like Elestan, I'm curious what you mean here (by the way, what area of law do you practice?). The fair use question is something I'm not sure about. The provisions for what counts as nominative fair use look ambiguous enough to me that it could be argued both ways. IANAL and can't speak to the case law.

However, I think it is interesting to note that Fred and Paul said since at least 2006 or so "we want to make a sequel to Star Control 2" with the media reporting on it and no one objecting. This may not decide the question, since it wasn't an active IP then for a long time - though that also takes us back to the expired trademark, which is another thing that seems like it could go either way. But it seems like the fact that they had been describing their future project as a "sequel" for more than a decade would at least matter for determining intent and culpability. Stardock also used the same phrasing at first, though we don't know yet how their conversations were going in private then.

It's even possible that if it gets that far, the courts could rule that "sequel to Star Control 2" is fair use as an accurate description of the game's content but the boxart and #starcontrol tag were over the line. Or maybe they can use some awkward lawyerly phrasing like "the sequel to the story contained in Star Control 2."

Another thing I'm curious about is if Activision talked with Atari back when they were considering letting TFB make a sequel about ten years ago and if there is anything relevant to the case there.
« Last Edit: April 24, 2018, 08:20:45 pm by Mormont » Logged
rosepatel
*Many bubbles*
***
Offline Offline

Posts: 157



View Profile
Re: My take on Stardock
« Reply #653 on: April 24, 2018, 08:57:25 pm »

Quote from: Ariloulawleelay
Yes, Stardock's attorneys forwent use of the 1988 License Agreement in order to undermine an anticipated nominative fair use defense. That was their decision to make.
Like Elestan, I'm curious what you mean here (by the way, what are of law do you practice?). The fair use question is something I honestly don't know about. The provisions for what counts as nominative fair use look ambiguous enough to me that it could be argued both ways. IANAL and can't speak to the case law.

However, I think it is interesting to note that Fred and Paul said since at least 2006 or so "we want to make a sequel to Star Control 2" with the media reporting on it and no one objecting. This may not decide the question, since it wasn't an active IP then for a long time - though that also takes us back to the expired trademark, which is another thing that seems like it could go either way. But it seems like the fact that they had been describing their future project as a "sequel" for more than a decade would least matter for determining intent and culpability. Stardock also used the same phrasing at first, though we don't know yet how their conversations were going in private then.

It's even possible that if it gets that far, the courts could rule that "sequel to Star Control 2" is fair use as an accurate description of the game's content but the boxart and #starcontrol tag were over the line. Or maybe they can use some awkward lawyerly phrasing like "the sequel to the story contained in Star Control 2."

Keep in mind a lot of Trademark cases are about someone fully counterfeiting or false advertising. This is very different. Paul and Fred pushed their anniversary announcement together with their GOTP announcement, and reference Star Control a bunch. In most torts and crimes involving speech, falsehood is almost always a necessary part of the infringement. So if the game IS a sequel, and they ARE the creators, it's hard to suggest that the GOTP announcement did anything misleading. Which is why there's so much airtime about whether P&F are the creators, and whether that distinction is an actual semantic difference.

The fair use stuff has huge legal ambiguities, with multiple precedents in different jurisdictions. But the essence is P&F used "Star Control" to describe the actual original products, or whether it was used to inspire a mistaken belief that GOTP was affiliated with Stardock. You can fill in your own arguments here. But Stardock is going to try to produce evidence of confusion that consumers think Stardock has something to do with GOTP. It will absolutely be a material argument that Stardock themselves tried to tell consumers they were affiliated with P&F, called P&F the creators, and called P&F's game a sequel. And if you take us back more than a decade, you'll see journalists and fans that create a strong affiliation between P&F and Star Control, let alone a potential sequel.

The other place where the decade of history is going to matter is when it comes to damages. Even if Stardock gets passed the fair use defense and proves infringement, they're still going to have to prove that the damages came from the infringement. Keep in mind that P&F haven't even sold a product yet, so you can't measure the damage in terms of how P&F profited. That's why Stardock has been delaying their refunds until a buyer says something to blame Stardock's lost profits on P&F. And if P&F's lawyers are following those threads, let alone following up with fans, they'd probably put a hole in Stardock's evidence. Even if P&F's lawyers don't go that route, they will probably show a ton of other statements that have connected P&F and their potential game to the original "Star Control" Trademark, including journalists, fans, and Stardock themselves. All this to prove that the supposed "confusion" about Star Control was created over several years by many parties, and P&F aren't on the hook for very much, if anything.
Logged
PRH
*Many bubbles*
***
Offline Offline

Gender: Male
Posts: 206



View Profile
Re: My take on Stardock
« Reply #654 on: April 24, 2018, 10:02:33 pm »

Therefore, I'm not sure P&F had a choice but to DMCA Steam and GoG when they became aware of the sales since a lack of action on their part might imply that they at least tacitly accept the continued applicability of the 1988 agreement.

That may be true (although I'm not a lawyer). I also thought: if Atari and GOG had previously agreed back in 2011 that they also needed to sign an agreement with Fred and Paul in order to continue distributing the classic games, didn't that imply that they admitted that the 1988 agreement was no longer valid? And if that was true, how did that agreement get transferred to Stardock in 2013?
Logged
Telecart
Zebranky food
*
Offline Offline

Gender: Male
Posts: 30


No. I don't think so.


View Profile
Re: My take on Stardock
« Reply #655 on: April 25, 2018, 05:46:20 am »

Not a lawyer either, but that's certainly what is at least implied.
Logged

Nihilistic mystics, apostolic alcoholics, messianic maniacs, cataclysmic and prolific.
Krulle
Enlightened
*****
Offline Offline

Gender: Male
Posts: 1042


*Hurghi*! Krulle is *spitting* again!


View Profile
Re: My take on Stardock
« Reply #656 on: April 25, 2018, 08:28:00 am »

There are elements in the 1988 contract that do not end.
The licensing and distribution did end.
But there are clauses regarding the trademark that do not end. (And which may or may not invalidate any "fair use" approach of the defense of PR and FF.)
Logged
Elestan
*Smell* controller
****
Offline Offline

Posts: 420



View Profile
Re: My take on Stardock
« Reply #657 on: April 25, 2018, 08:49:31 am »

But there are clauses regarding the trademark that do not end. (And which may or may not invalidate any "fair use" approach of the defense of PR and FF.)

Technically, I suspect that it would not invalidate the "fair use" trademark defense, but it might give Stardock a separate breach of contract claim.
Logged
Krulle
Enlightened
*****
Offline Offline

Gender: Male
Posts: 1042


*Hurghi*! Krulle is *spitting* again!


View Profile
Re: My take on Stardock
« Reply #658 on: April 25, 2018, 11:01:40 am »

Well, the current USoA trademark law in its current form is from 2006 (latest amendmend concerned the "Trademark Dilution Revision Act" of 2006, and since Frogboy referred to trademark dilution through the GotP announcement, it may be of influence that the law is younger than the agreement (some contract clauses may have become superfluous, or even contradictory to amended law, and thus a judge might decide that the contract clause therefore is invalid). Even the "Federal Trademark Dilution Act of 1995" is younger than the agreement of 1988. Inbetween was also a "Anticybersquatting Consumer Protection Act of 1999", which can force domain name squatters to let go of well known trademarked names as domain names, if they cannot prove certain other connections with the registered name.
According to https://en.wikipedia.org/wiki/Trademark_Dilution_Revision_Act, the 2006 Trademark Dilution Revisiion Act "also amended the fair use defense".

A judge must decide which takes precedence, an amended law, or an older contract, if there are any contradictions now.


Found https://en.wikipedia.org/wiki/Federal_Trademark_Dilution_Act which explains briefly the difference between trademark infringement and trademark dilution.
Trademark dilution exists in US law only since the Federal Trademark Dilution Act (1995), which entered into force in 1996.
Even with the amendment of 2006, the law still protects only "famous marks".
Which "Star Control" may or may not be. The bar seems to be the general public, not someone in the field/niche the product is in.

In response to First Amendment concerns, the new law expressly exempts certain uses of a famous mark, in particular:

    (1) "fair use" of a mark in the context of comparative commercial advertising or promotion;
    (2) non-commercial uses, such as parody, satire and editorial commentary; and
    (3) all forms of news reporting and news commentary.
Well, the GotP announcement of FF and PR does not fall under the exemption of (3), but all the repetitions by the ezines, websites,... may fall under the exemption of (3). But then, the pr text on which those articles were writtenw ere provided by someone. So, the news reporting site did not commit trademark violations, but the one providing the pr text on which the article then was written may have been. But again, I am not competent to evaluate the broadness and limits of "all forms of news reporting and news commentary". It may well be that a judge decides that providing pr texts on which magazines, websites, blogs, newspapers,... base their texts are considered to be "news reporting" in itself. Otherwise associated press (and other newsagencies) might get into trouble.

Anyway,
The Federal Trademark Dilution Act of 1995 is a United States federal law which protects famous trademarks from uses that dilute their distinctiveness, even in the absence of any likelihood of confusion or competition.

[...]
[section conclusions:]
 Nevertheless, what constitutes a "famous" mark is likely to generate controversy in the courts and in the Trademark Office and may well slow the trademark clearance and registration process, as parties seek to settle what constitutes a "famous" mark. In addition, courts have traditionally dismissed state dilution claims unless there is also a finding of infringement or unfair competition based upon a likelihood of confusion. It remains to be seen how courts and the Trademark Office will interpret this new federal law, which has potentially far-reaching applications.
Within the range of computer games, "Star Control" is famous. But the bar is not computer games. It is the general public. Even those who do not own computers.
The example in the article is Kodak.
If however, another company started marketing KODAK brand pianos, there might be little or no customer confusion, because customers would probably recognize that Kodak is unlikely to branch into the piano business or to use its film brand name on pianos. So customers would probably recognize that the KODAK pianos come from a different source. However, the KODAK pianos might still harm Kodak, because it would lessen the strong association, which the company has spent billions of dollars creating, between the word KODAK and film. Some customers, upon seeing the mark KODAK, would no longer instantly think of film—some would think of pianos instead. This lessening of the association between "KODAK" and "film" is trademark dilution.
[edit]the section "definition" seems to use "blurring" for this kind of Trademark Dilution.[/edit]
Nearly anyone on the streets knew what KODAK products were. Well, Star Controls sequels "origins" and "Ghosts of the Precursors" will both be computer games. There will be no weakening of the association "Star Control" = "Computer game". The example may be a bad example, but I don't really see a dilution based on this example.
So far, no "Star Control" game has been released that may associate "Star Control" with "Stardock". Therefore this link can also not be diluted, IMHO.
Even more so since the first combination of "Stardock's Star Control" is still in beta phase, and may therefore not be considered to have become "famous" yet.

[section Definition of dilution:]
Courts have previously found that dilution can occur as a result of either "blurring" or "tarnishment". "Blurring" typically refers to the "whittling away" of distinctiveness caused by the unauthorized use of a mark on dissimilar products; while "tarnishment" involves an unauthorized use of a mark which links it to products that are of poor quality or which is portrayed in an unwholesome or unsavory context that is likely to reflect adversely upon the owner's product.
"Tarnishment" is what Stardock claims to have been done to their brand name, as "true sequel" may imply that any other game using that name or claiming to be "Star Control" is implicitly wrongly claiming to be a "Star Control" game. I'll leave it up to judges to decide if "Star Control" is a "famous" trademark.

Conclusion for me: there may have been a tarnishment of "Stardock's Star Control", thus indeed a dilution of the trademark. But whether it passes the bar for being "famous" is completely unknown to me, and therefore Stardock could be barred from using this against Fred Ford and Paul Reiche.
Logged
Krulle
Enlightened
*****
Offline Offline

Gender: Male
Posts: 1042


*Hurghi*! Krulle is *spitting* again!


View Profile
Re: My take on Stardock
« Reply #659 on: April 25, 2018, 11:15:05 am »

But there are clauses regarding the trademark that do not end. (And which may or may not invalidate any "fair use" approach of the defense of PR and FF.)

Technically, I suspect that it would not invalidate the "fair use" trademark defense, but it might give Stardock a separate breach of contract claim.
Well, the contract forbids them "any use". Not even "fair use" (which may or may not have existed in law or case law back in 1988). So, whatever "damages" they get out of with a successful "fair use" defense may be found to be a breach of the contract and thus be a contract claim damage.

A judge may decide that this clause has become invalid in the contract, as the law now regulates this "use of trademarks", but the same judge may well decide that the contract takes precedence over any law clauses, as both parties back then agreed to this specific limitation.


BTW, got me some tea and met some colleagues in the kitchen:
I asked them about their knowledge of a trademark called "Star Control" (Europe, so not relevant for US-judges who look at "famous" in the context of "within the USoA"): only one ever heard of "Star Control" asa computer game, but described the game more like being a Master of Orion clone, than the games I remember. The other 10 have never even heard of computer games with that name. This may be an indication of lack of being "famous".
(One heard of "Star Control" as an oil lubrication system: https://www.perma-tec.com/en/products/single-point-lubrication-systems-electromechanical/perma-star-control/, which they used with his former employer.)
The same 11 colleagues ALL associated the trademark KODAK for films, and foto cameras.
Logged
Pages: 1 ... 42 43 [44] 45 46 ... 68 Print 
« previous next »
Jump to:  


Login with username, password and session length

Powered by MySQL Powered by PHP Powered by SMF 1.1.21 | SMF © 2015, Simple Machines Valid XHTML 1.0! Valid CSS!