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Topic: My take on Stardock (Read 196958 times)
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Elestan
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What "provably wrong statements" is Stardock currently pushing?
A few other misleading or dishonest items, past and present:
* Claiming on Reddit that they weren't trying to stop P&F from making a game, on the day that they gave Paul the settlement demand that he stop making a game.
* Claiming that they aren't trying to stop P&F from making a game, while not being clear that they insist that he concede their control over the alien names to do it (they either don't mention it, or couch it in inoffensive generalities about their trademark).
* Claiming that Paul's DMCA was illegal because Paul had no copyright to SC3, when his license claim was on the box and disc.
* Later changing that wording to imply that there was a problem with that DMCA because Paul and Fred didn't work on SC3 (technically true, but definitely misleading).
* Repeatedly insisting that the 1988 agreement was live to Fred in the email chain that started all this.
* Claiming that Paul agreed to the 1988 agreement being live in his emails, when Brad failed to describe it in a way that would distinguish it from the 2011 GoG agreement, and when it was Stardock's lawyers' responsibility to review it anyway.
* Trying to reframe Brad's repeated disclaiming of control over the aliens by saying that they were really only not using the aliens because they thought Paul would eventually license their trademark.
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« Last Edit: June 28, 2018, 04:06:55 am by Elestan »
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Narsham
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Taking a dive back into this mess... I see things have gotten even worse. My heart sank when I opened up the GoFundMe page.
It's pretty pointless speculating on the legal end of things now, though I'm afraid that Stardock has every reason to make this court fight as expensive and drawn-out as legally possible in the hopes of exhausting P & F's budget and thus winning in the same way that patent trolls do.
Even in the best-case framing for this affair, Brad's coming across to me as someone who can still read the opening chapters of Ender's Game and look on Ender's behavior as reasonable: end a threat now via overwhelming and disproportionate response. This site might survive a Stardock victory, in theory, but that seems unlikely following the assertion of ownership over SC race names, whatever Brad's assurances to us now. If it were so easy to just allow someone to use a trademark unchallenged, why doesn't Brad immediately allow this site to use "Star Control" again? He has uncontested right to that name and could grant this site a perpetual license to employ it.
My thoughts again turn back to the early days after Stardock acquired "Star Control" and we discussed the implications with Brad online. Why did he sometimes seem to imply that he had the rights to use the classic races and lore, sometimes claim that he legally couldn't, and sometimes claimed that while he could, he would choose not to out of respect for P & F?
1. He himself wasn't sure. That either conflicts with his more recent claims to have known clearly what he was legally acquiring, or suggests that he was aware of the ambiguities in the contracts defining what he could purchase from Atari and what remained in P & F's legal possession.
2. He knew, or believed he knew, that he'd purchased all the rights and could use the races and lore if he wanted. If so, why in the world would he ever have written that he didn't own them?
3. He knew, or believed he knew, that he did not have the rights. Why would he ever imply that he did, then?
4. What he knew changed over the course of the discussion. That might fit with early communications with P & F, where the ownership question arises and they assert that they hold the rights to the races and lore and are not inclined to provide them. That implies either that Brad found out post-acquisition that he hadn't gotten everything he thought, OR (and I think this most likely of all these possibilities) that he knew he needed to make a deal with P & F in addition to owning "Star Control" and that his claims about the new game being able to feature the same lore were wishful thinking predicated on a deal with them which he badly wanted and which they showed no interest in whatsoever.
Most likely, to my mind, is that Brad did not believe at that time that he possessed the rights (or all of the rights) which his lawsuit now asserts. Why, then, assert them now? Given the necessity for a lawsuit and the likely need to spend millions of dollars, why not? Winning in court or through default means Stardock will acquire the rest of what Brad wanted to continue making stories in the Star Control universe. It's another transaction, of sorts. Or, to be less generous to Brad, this is an expression of vindictive retaliation. He's shown he cares more (millions of dollars more) about SC than P & F, he gave them the chance to tell another story, and they went from cold to hostile and tried to undercut his product, suddenly (after 20 years) deciding to keep telling their own story but going out of their way to say it had nothing to do with him. (It's a "no true Scotsman" situation, this.) I can understand why he'd feel wronged. But the response to the offense is disproportionate unless it is aimed, not at the offense done to Stardock Games, but to Brad himself. P & F hurt him and he's going to make sure they can never hurt him again.
I don't see how I can support someone who is effectively confronted with the planetary multiple-choice from the Gal Civ series and picking the Drengin-appropriate responses.
To quote from Doctor Who: "There should have been another way."
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Ariloulawleelay
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Claims that are less clear-cut wrong:
4) They claim that P&F's posting of the settlement was illegal. I think this is *very* likely to be wrong, since no judge has ordered them to take them down.
5) They claim that P&F lack both the copyrights AND trademarks that would have been required to legally publish The Ur-Quan Masters: Stardock says that P&F don't actually own some/most of the copyrights to the game, and that use of the alien race names would require a trademark license.
I believe that others have already addressed this, but in case any doubt remains, only a judge can unilaterally make these kinds of documents confidential. Regardless of Stardock's intentions, unless there was a prior agreement between the parties, F&P were free to publicly disclose Stardock's Proposed Settlement Agreement.
In fact, it's not all that uncommon for lawyers to troll litigants who make subjectively unreasonable settlement demands by publicizing the terms of their proposals.
What about Rule 408? Rule 408 is a federal rule of evidence which limits settlement documents' admissibility at trial, not their extrajudicial disclosure for other purposes. You can think of Rule 408 as making settlement discussions confidential from the jury,1 not from the public at large. Just as one is free to post hearsay on the Internet, one does not violate any U.S. federal rule by uploading settlement proposals.
Accordingly, before Judge Spero entered his Order Regarding Settlement Discussions on March 29th, both sides were quite vocal about what was going on in their negotiations. (To be more specific, F&P disclosed two of the parties' Proposed Settlement Agreements, Stardock revealed the contents of once-private back-and-forth negotiation,2 and Frogboy has continued addressing both past and potential future settlement terms on Reddit.)
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Having said all of that, you make a good point - judges can order unlawful posts taken down. Consider, for example, the recent Happytime Murders litigation, which was a trademark suit against an original creator for allegedly using the plaintiff's mark in advertising an upcoming, unrelated film.3 Rather than ask for money damages,4 the plaintiff initiated its lawsuit by seeking a temporary restraining order which would have required the defendants to stop using the plaintiff's marks.
While the revised GOTP Announcement no longer identifies Ghosts of the Precursors as "a direct sequel to Star Control II -- The Ur-Quan Masters," it does still use the phrase "The Ur-Quan Masters," as well as a laundry list of alien names. If Stardock's lawyers really believed that "The Ur-Quan Masters" and the alien names were trademarks (and that these trademarks are owned by Stardock), why hasn't Stardock sought a TRO mandating the removal of the GOTP Announcement? If Frogboy really believed that Stardock purchased the exclusive right to use "The Ur-Quan Masters" as a source identifier, how could he opine that F&P "could have just called [GOTP] Ur-Quan Masters II and the hard-core fans would have known what it was."?5
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[1] That's not to say that there are no circumstances where the finder of fact could take a peek at these documents. For example, let's imagine that F&P accuse Stardock of violating the License Agreement by refusing to negotiate in good faith a license for F&P to use the "Star Control" mark. Not to say that such a claim would be meritorious, but that might be a situation where settlement communications become relevant evidence.
[2] I.e., emailed statements and informal proposals made during compromise negotiations about the claim, not formal settlement offers.
[3] https://www.youtube.com/watch?v=-eks8LG72uo (nsfw)
[4] There were pro forma demands for damages, but they appear to have been unsupported and were ultimately abandoned.
[5] As a side question, Frogboy (along with Stardock) here and elsewhere specifically claims that F&P promoted GOTP "as 'the true sequel to Star Control'." Have F&P actually said this, rather than specifically referencing SC2?
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« Last Edit: July 02, 2018, 02:37:52 am by Ariloulawleelay »
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Elestan
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In other news, I just noticed a new(-ish) copyright registration from Paul & Fred; it's PA0002107340, registered 2018-04-19, and appears to have copyright assignments from Greg Johnson, George Barr, Erol Otus, Mathias K. Genser, Leonard Robel, Robert Leyland, Kyle Balda, Armand Cabrera, and Iain McCaig.
So that's certainly the majority of the creative talent involved. According to the credits, that leaves:
Writers: Tomi Quintana and John Estes
Artists: Jeff Rianda,Taunya Shiffer, and Greg Hammond
...as the remaining people with a potential copyright interest in SC2's original material. It will be interesting to hear what the situation is with them...were they unable to be located? Passed away? Or did they decline to grant assignment? And which elements of the game did they do?
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Denning
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P&F may very well have held all (or most) of the relevant copyrights this whole time as joint authors (with all the aforementioned contributors) of anything independently copyrightable going into the joint work of SC2. That would be a fact driven analysis that is sort of meaningless to attempt pre-discovery. However, what doesn't need to wait for discovery is P&F's copyright in SC2 itself, which I think is established trivially.
These assignments are presumably prophylactic against a challenge that the intellectual property contributed by independent contractors was not captured by work for hire. It could be completely superfluous if all the assignors were in fact employees of TfB or their contract agreements had the proper stipulations.
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« Last Edit: June 30, 2018, 07:34:57 pm by Denning »
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wparker1339
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So that's certainly the majority of the creative talent involved. According to the credits, that leaves: Writers: Tomi Quintana and John Estes Artists: Jeff Rianda,Taunya Shiffer, and Greg Hammond ...as the remaining people with a potential copyright interest in SC2's original material. It will be interesting to hear what the situation is with them...were they unable to be located? Passed away? Or did they decline to grant assignment? And which elements of the game did they do?
Looks like at least some are still out there. The writers aren’t really easy to find via Google, but the artists are. The writers only show up in IMDB.
Jeff Rianda: https://www.linkedin.com/in/jrianda
Taunya Gren (Shiffer): http://www.taunyagren.com
Greg Hammond was listed as QA so I don’t know that he would have any copyright at all on SC2. http://www.mobygames.com/developer/sheet/view/developerId,1744/
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Elestan
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So what does that mean in terms of sending DMCAs and dragging Stardock into a copyright battle when they didn't even have the proper copyrights until April 2018?
I don't think it makes a difference with regard to Stardock's Steam sales; they were selling the entire game, so as long as P&F have a copyright claim on at least a piece of it, that's good enough. Where it could make a difference is in attempts to enforce claims against particular elements as they are used in SC:O; if Greg Johnson did everything related to the Orz, then P&F would need to get his copyright assignment before they could sue Stardock over it.
All of this presumes that SC2 is treated as a "collective work", where the authors own their respective contributions. If it's a "joint work", then they all have a shared right to the whole thing, and what their individual contributions were doesn't really matter; any of them could sue for any of it. (My understanding, not a lawyer, etc., etc.,)
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Denning
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So what does that mean in terms of sending DMCAs and dragging Stardock into a copyright battle when they didn't even have the proper copyrights until April 2018? I don't think it makes a difference with regard to Stardock's Steam sales; they were selling the entire game, so as long as P&F have a copyright claim on at least a piece of it, that's good enough. Where it could make a difference is in attempts to enforce claims against particular elements as they are used in SC:O; if Greg Johnson did everything related to the Orz, then P&F would need to get his copyright assignment before they could sue Stardock over it. All of this presumes that SC2 is treated as a "collective work", where the authors own their respective contributions. If it's a "joint work", then they all have a shared right to the whole thing, and what their individual contributions were doesn't really matter; any of them could sue for any of it. (My understanding, not a lawyer, etc., etc.,)
There is no way that SC2 is a collective work.
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Elestan
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All of this presumes that SC2 is treated as a "collective work", where the authors own their respective contributions. If it's a "joint work", then they all have a shared right to the whole thing, and what their individual contributions were doesn't really matter; any of them could sue for any of it. (My understanding, not a lawyer, etc., etc.,) There is no way that SC2 is a collective work.
I think that joint work is a better fit too. If that's the case, then (as I understand it) Stardock's arguments about who created what are mostly irrelevant, since any of the copyright holders can sue over any distribution of the games. So that would actually cement P&F's ability to sue Stardock.
I think it would also have some interesting side effects regarding the historical distribution of the prior games, since exclusive license rights could only be granted by unanimous consent of all of the copyright holders. Accolade's exclusive license from Paul would have been invalid, so all sales of SC2/SC3 would technically be infringing, and Paul would be on the hook to indemnify them from any claims. But since that IP has since gone through bankruptcy, I doubt any claims could still be made against Stardock, and since both the UQM license and the GoG sales license were non-exclusive, they wouldn't be affected.
As always, IANAL.
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Denning
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SC2 is a joint work co-authored by P & F. There have not even been allegations that other contributors had the requisite control over SC2 to be a co-author, or that either of P or F intended to be co-authors with these other contributors. For a more extensive and binding analysis of how to assess the authorship of joint works, see Aalmuhammed v. Lee https://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm
To understand why SC2 is undoubtedly a joint work (and for a demonstration of how to apply Aalmuhammed to a video game), see Blizzard Entertainment, Inc. v. Lilith Games (Shanghai) Co. Ltd. https://scholar.google.com/scholar_case?case=11006776606406352622
The other contributors may have rights in individually copyrightable components of SC2, held independently or jointly with P & F.
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« Last Edit: June 30, 2018, 10:16:46 pm by Denning »
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Elestan
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w00t! Case law to read!
...but I've got a party to go to, so maybe tomorrow. But thanks!
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Elestan
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These assignments are presumably prophylactic against a challenge that the intellectual property contributed by independent contractors was not captured by work for hire. It could be completely superfluous if all the assignors were in fact employees of TfB or their contract agreements had the proper stipulations.
So, let me see if I'm absorbing the implications of the case law properly:
* Paul&Fred, by virtue of their supervisory positions, and the fact that they were credited as sole copyright holders, are the only 'authors' of the joint work "Star Control 2", while the other people involved are considered 'contributors', but not 'authors', and therefore have no copyright in the joint work.
* If any of the contributors felt that they should have been considered 'authors', the statute of limitations gave them three years to dispute it.
* As the only authors of the joint work, P&F have the power to license derivative works of the whole, which necessarily includes the power to license any of its separately copyrightable components.
* The only difference that the lack of a work-for-hire relationship would seem to make is that without it, the contributors would maintain the right to license their respective contributions separately, if they so desired.
Does this seem about right?
One other question: Pretend that Fred didn't exist (sorry Fred), How (if at all) would that change the legal picture? With only one 'author', it seems like this would no longer be a 'joint work'. Would the same rules still apply for multiple 'contributors' providing individually copyrightable elements under the umbrella of a single 'author'?
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« Last Edit: July 01, 2018, 08:57:02 pm by Elestan »
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