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Topic: My take on Stardock (Read 197071 times)
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Frogboy
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BTW, the judge just issued an order enforcing Rule 408 (for those who wrongly thought it wasn't a big deal to post private settlement discussions, you have your answer).
The order is probably in the public documents now.
Needless to say, we will be complying with this.
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Elestan
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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.
So, I get that Paul wasn't communicating clearly about the situation, and that's on him. But the thing I don't understand is why, if you had the 1988 agreement, you needed any other proof. Your lawyer should have been able to read that agreement and tell you that it had expired - if not by the cessation of royalties in section 2.2, then by virtue of the bankruptcy trigger in section 7.1, or the 3-year deadline in Addendum 3 section 4.1. He should certainly have noticed the bankruptcy trigger, given that you were buying/had bought this at a bankruptcy auction.
So, my current assessment is that your lawyer was sloppy, didn't read the contract thoroughly, and gave you bad information, telling you that you still had an exclusive publishing license when it had in fact expired over a decade earlier. That information caused you to labor for four years under false assumptions, culminating in you sending that Oct 6, 2017 email to P&F, where you offended them by asserting that you had rights that you didn't actually own. Then they started getting hostile, because they saw you making claims that seemed clearly ludicrous to them.
So...I would have a serious talk with your lawyer. And if he f*cked up as badly as it seems, and it really was a mistake of legal understanding at Stardock that set off this mess, I would try to figure out what the best way was to put things right. I believe it's still probably possible to de-escalate, if you decide you want to do it.
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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. So, I get that Paul wasn't communicating clearly about the situation, and that's on him. But the thing I don't understand is why, if you had the 1988 agreement, you needed any other proof. Your lawyer should have been able to read that agreement and tell you that it had expired - if not by the cessation of royalties in section 2.2, then by virtue of the bankruptcy trigger in section 7.1, or the 3-year deadline in Addendum 3 section 4.1. He should certainly have noticed the bankruptcy trigger, given that you were buying/had bought this at a bankruptcy auction. So, my current assessment is that your lawyer was sloppy, didn't read the contract thoroughly, and gave you bad information, telling you that you still had an exclusive publishing license when it had in fact expired over a decade earlier. That information caused you to labor for four years under false assumptions, culminating in you sending that Oct 6, 2017 email to P&F, where you offended them by asserting that you had rights that you didn't actually own. Then they started getting hostile, because they saw you making claims that seemed clearly ludicrous to them. So...I would have a serious talk with your lawyer. And if he f*cked up as badly as it seems, and it really was a mistake of legal understanding at Stardock that set off this mess, I would try to figure out what the best way was to put things right. I believe it's still probably possible to de-escalate, if you decide you want to do it.
That remains to be seen. I've told you before, quit pretending you're an IP lawyer. There is a lot more nuance to these things than you believe.
What we knew for sure was that the games were on sale on GOG and Paul and Fred were cashing royalty checks for those sales and we have the aforementioned items. And I realize you've already made up your mind based on the very very limited data you have available but I just cannot understand how you can ignore the fact that they have some responsibility to discuss. Especially given the undeniable fact that they were walking on thin ice legally by announcing any sort of "Sequel" that could be construed as being related to Star Control.
Those early Fall weeks would have been a good time to get together for beers or something and walk through all this in a friendly way. I would hope that if you have even any objectivity left that you can look at the tone of my emails versus the tone of theirs. And from our perspective, we had the absolute legal high ground even as I was practically begging them to talk to me.
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Elestan
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And I realize you've already made up your mind based on the very very limited data you have available but I just cannot understand how you can ignore the fact that they have some responsibility to discuss.
Just to be clear, my mind isn't made up. When I say "my current assessment is..." I mean just that, and new information could change my opinion. I won't lock my opinions in until the case is over.
And I certainly do think that P&F have some responsibility to discuss; I think I've been pretty consistent in my opinion that they stepped on your trademark, and should pay some kind of penalty, and that they bear partial ethical responsibility for not clarifying the 1988 agreement's expiration in your 2013 email exchange. And I've always tried to give you full credit for making the offer to sell everything to them.
I would hope that if you have even any objectivity left that you can look at the tone of my emails versus the tone of theirs. And from our perspective, we had the absolute legal high ground even as I was practically begging them to talk to me.
Right...and that's where it seems like the problem happened: Both of you thought you had the absolute legal high ground. There's no question that you made it very clear that you had a lot of respect for them, and wanted to work with them to make the game, or see them buy the rights and make the game themselves. And they were equally clear when they rebuffed you, politely at first, but then with increasing brusqueness. I can tell from reading the emails that they were confusing the heck out of you, when you thought you were doing them a favor, offering them something they clearly had wanted for a long time.
I would love to see an explanation from them of what they thought when they got your emails, and why they didn't clarify their rights earlier way back in 2013.
So, let me put all of that on the record.
With that said, Stardock bore the primary responsibility to analyze and understand the rights it bought. It either made a mistake, or its lawyer found something very clever in the agreement that Accolade and Atari did not realize. If it made a mistake, I hope that it would acknowledge and correct it as soon as possible, rather than trying to litigate on it. If the lawyer was just really clever...well, I guess we'll find out in court.
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« Last Edit: March 29, 2018, 10:25:58 pm by Elestan »
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Elestan
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With that said, Stardock bore the primary responsibility to analyze and understand the rights it bought. It either made a mistake, or its lawyer found something very clever in the agreement that Accolade and Atari did not realize. If it made a mistake, I hope that it would acknowledge and correct it as soon as possible, rather than trying to litigate on it. If the lawyer was just really clever...well, I guess we'll find out in court. Stardock isn't litigating anything that is related to that contract. So I'm not sure what burden is on Stardock there.
The way I see it, claiming that agreement was still active is what put P&F on the warpath to begin with. They were polite and even supportive of you making a game right up to the point where you said you owned those rights. But after that their emails (that you've shown so far) got really frosty really fast, and I'm guessing it just got worse from there. If Stardock had realized that the 1988 agreement was void, I think this whole thing wouldn't have blown up. You wouldn't have told P&F that you owned the publishing rights, which means they wouldn't have gotten offended and worried about you using their IP without permission, and wouldn't have started trying to put SC:O under a magnifying glass to enforce their copyright to the limit. They probably would have been less likely to push your trademark boundaries with their GotP announcement as well.
Just to emphasize, I think there's responsibility both ways for this misunderstanding, but I put it 60/40 on Stardock, because I currently think that your lawyer made the initial mistake. Obviously, I'll reassess if I see an interpretation of the agreement that indicates he was right all along.
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« Last Edit: March 29, 2018, 11:30:26 pm by Elestan »
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Frogboy
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We can only speculate.
They are responsible for their own actions just like we are responsible for ours.
As I said in that email, it was academic because Stardock wasn't using any of their IP and we would have been happy to just agree to terminate that agreement provided that they, again, as I wrote in the unedited email you saw, worked with us to avoid any confusion.
If they had shown us, for instance, that Atari letter they posted (and they still haven't turned it over) back then, that would have been sufficient and I'd have made sure the old DOS games came down. But they refused to give any reason other than "We weren't paid royalties" (and as someone who has gotten advances on games, there are many times we don't get paid any new royalties) and then proceeded to begin making demands on our game.
There are a lot of people out there who just have no clue on IP. Sadly, at this point in my career, I've spent years in every type of IP litigation. Patent. Trademark. Copyright. We were once sued for WindowBlinds infringing on some FAX machine patent. All of this doesn't make me a lawyer by any means, but I've had years of first hand experience at IP litigation. This case is pretty straight forward which is why I am shocked that this wasn't settled in October or November in a way that would have made everyone reasonably happy.
I think what annoys me the most about Internet lawyers (and this time I'm not thinking of you) is that they can't even be bothered to Google.
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Elestan
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So far, I've made one not-a-lawyer mistake that I know about: I was not aware of fair use as it applied to trademarks. I may admit a second one relating to Rule 408 if I manage to get a look at the order that was issued today, but I do want to read it first.
As I said in that email, it was academic because Stardock wasn't using any of their IP and we would have been happy to just agree to terminate that agreement provided that they, again, as I wrote in the unedited email you saw, worked with us to avoid any confusion.
I think the trouble with your proposal was that (from their view) with the 1988 agreement terminated, you had no legal right to put any conditions at all on them, except that they not use your trademark. So telling them that they can't release within 90 days of you, or couldn't make certain statements, or any of those other 11 conditions in your proposal...all of that would have been just as offensive to them as their later demands clearly were to you.
I don't know what comes next in the email chain after what you've showed so far, but if I try to put myself in your shoes, given the stakes, I think my next move would have been to get a second lawyer's opinion on the 1988 agreement to make sure I was on really solid legal ground, and then if we decided it was still valid, have the lawyers write up a detailed explanation as to why it was still valid, and send it to P&F, so that they could understand my position. And if we realized it wasn't valid, I'd make sure to apologize. Because until there is agreement on whether or not that contract is active, there's no point in trying to talk about anything else: If it's active, you've got a ton of leverage. If it's not, you've got none (this is before they made their announcement post).
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Elestan
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I've just thought of a possible explanation for the way Paul responded to Brad in 2013. Brad had sent Paul an email, saying:
What we received were the trademark and all of Accolade's publishing rights for the original trilogy.
Crucially, Brad is looking at the 1988 Accolade contract, thinking it is still valid. That contract granted exclusive rights to the IP, including the right to develop sequels.
Paul gets the email, sees Brad's words, and replies:
...we aren't interested in the Star Control assets you purchased from Atari.
What's been bugging me since I saw these emails is why this didn't set off alarm bells in Paul's head, such that he would correct Brad. But I just realized:
Brad thinks he is telling Paul about the Accolade agreement, but Paul thinks Brad is talking about the GoG agreement, and the message could be read either way.
So at this point Brad thought that Paul had given tacit blessing to him having the exclusive sequel development rights in the 1988 agreement, and that he was doing Paul a favor by not using Paul's universe in the new game. Paul thought Brad was talking about the non-exclusive GoG sales agreement, which gave no new development rights, so he didn't think he was getting any favors, and really didn't care about it as long as he got his checks.
Throughout the later exchanges, they confirmed several times that they agreed on Paul's ownership of the copyright, but I suspect they never said anything that would have uncovered this misunderstanding about the publishing rights until Fall of 2017, when Brad was already heavily invested in SC:O. And then it all blew up, because each of them thought the other was making a property grab on their IP.
Seen this way, the whole thing makes sense, without having to assume that anyone was trying to be underhanded or deceptive.
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« Last Edit: March 30, 2018, 06:54:02 pm by Elestan »
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chapel
Zebranky food
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finally remembered my password after all these years.
How's everyone doing!?
...
oh.
how have I had this account for 7 years and this is my first post!?
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« Last Edit: March 30, 2018, 08:54:47 pm by chapel »
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Deus Siddis
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Brad thinks he is telling Paul about the Accolade agreement, but Paul thinks Brad is talking about the GoG agreement, and the message could be read either way.
Holy crap. That would explain A LOT to how everyone acted initially, especially the years of relative amicability between them. And drastic shift towards the defensive both sides took, recently. The contract schedule from Exhibit 8 in the counter-claim, coincides with that. Given the GOG.com agreement had been terminated 02/23/2016 in that schedule (which means it was received by Fred and Paul after that point), but the Accolade 1988 agreement was indicated as live... That means for almost 3 years, Stardock had the GOG.com agreement... So any discussion about distribution rights may have been assumed to have been the GOG.com agreement by Paul for AT LEAST that period of time, until receipt of that contract schedule. Meanwhile, Stardock assumes the Accolade 1988 agreement was still live based on it being a contract sold to them by Atari without rebuttal by Paul. That is VERY INTERESTING find. It explains so much.
Wow, that does sound highly likely. Excellent sleuthing, Elestan!
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