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News: Paul & Fred have reached a settlement with Stardock!

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Author Topic: My take on Stardock  (Read 71904 times)
Mormont
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Re: My take on Stardock
« Reply #660 on: April 25, 2018, 02:52:54 pm »

Quote from: Krulle
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.
To the best of my knowledge, intent and historical interpretation matter a lot to courts when deciding how to read a contract. If Paul and Fred have been saying "Star Control" for decades without Accolade or Atari objecting, Stardock is going to have a hard time arguing "any use" should be interpreted in a strict and absolute way that disallows fair use, IMO.

Now whether "sequel to Star Control 2" actually is fair use, I don't really know. I'm pretty sure "creators of Star Control 2" is, though. It was even used to promote a game in the llate 90s.
« Last Edit: April 25, 2018, 03:21:31 pm by Mormont » Logged
Elestan
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New Trademark Filings
« Reply #661 on: April 25, 2018, 03:52:44 pm »

Looks like Stardock has recently filed for trademarks on TAALO and DYNYARRI.  I suppose the Keel-Verezy will be next...
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Lakstoties
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Re: New Trademark Filings
« Reply #662 on: April 25, 2018, 04:31:48 pm »

Looks like Stardock has recently filed for trademarks on TAALO and DYNYARRI.  I suppose the Keel-Verezy will be next...

I get the very distinct feeling that as Stardock's writers are writing their alternative history for Star Control: Origins, they are filing trademarks for those unique names as they incorporate them.

This is such an abuse of the trademark system, especially for them to file DURING a lawsuit that contends whether or not they may have any grounds to file such trademarks.  (This isn't including the fact that NONE of these terms have been used to mark a product they have in trade.  These are story elements within the game, not the material used to label the product!)  I'm surprised that Paul and Fred's lawyers haven't ask for the court to impose an injunction on this practice.

This is bad faith attempts at trademark trolling by Stardock.  Because normally, you would establish the use in market... First... then file for the trademarks after some form of establishment.
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Ariloulawleelay
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Re: My take on Stardock
« Reply #663 on: April 25, 2018, 04:46:58 pm »

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.


I will try to not be duplicative of rosepatel's response here.1

Imagine that Julian Gollop, despite not owning the "X-COM" trademark, wants to describe himself as "the creator of X-COM" in connection with his Phoenix Point website. Before we even get to a nominative fair use analysis to determine if Gollop is permitted to call X-COM by its name while advertising a rival product, we have to determine if what he wants to communicate is truthful or if it is misleading. If it's misleading, the fair use test doesn't even come into play - one cannot use a mark to lie to consumers.

Basically, trademarks are part of our common language, and we all have some right to use them to communicate in truthful, non-misleading ways.

In this case,2 Stardock has taken the position that P&F's claims to be the "Creators of Star Control" are both false and misleading.3 If we accept Stardock's pleadings as true, it becomes clear that P&F's continued use of the "Star Control" mark in their new weblog and Twitter blurbs cannot possibly constitute nominative fair use.

The problem, of course, is that the License Agreement does have some language in it suggesting that developers do indeed "create" or "conceive" of software. By not integrating the License Agreement into their operative complaints, Stardock's attorneys can, at the very least, delay having to address this apparent incongruity.4 And so long as Stardock is able to argue that P&F are being dishonest, P&F will be on the defensive in responding that their nominative use of the "Star Control" mark is permitted as the most straightforward, obvious and truthful way to describe P&F's business.

---

[1] That's not, of course, to say that I necessarily agree with it 100%.  Smiley

Also, since it has been a few days, I will give this another go. I understand that there are some who consider this forum to be a place for advocacy or racking up points for one side or the other. I do not. I sincerely hope that no one is persuaded to change her mind about any issue on account of anything I might say here - quite frankly, I charge to deliver that experience. Instead, I hope that this is seen for what it is: a glimpse into my internal process of trying to understand the contours of some of the more interesting legal positions taken in this case. (Positions which have yet to be evaluated by any judge, fwiw.) I have questions about decisions made by all parties here, and I assume that when I don't get it, it's because the lawyers working on this case are more knowledgeable than I am and I'm missing something important. Think of me as an illusionist, watching a master in slow motion, trying to figure it all out. Accordingly, everything I say here is built upon hypotheses and assumptions about law and fact designed to isolate issues for self-educational purposes. It would be unreasonable to rely on anything here as legal advice. Real legal advice will be given to you in private, by someone whose name you know and who knows the facts of the case.

[2] Putting aside any discussion of copyright for the time being.

[3] Stardock's FAC ¶¶ 55, 56, 58. But cf. P&F's Counterclaim ¶¶ 4, 22.

[4] I recognize, after reading paragraphs 43-44, 69, 71-73, 75-76, 78-85, 88, 95, 98-99, 102, 108 and 132 of Stardock's Answer, in conjunction with paragraphs 11-12 of Stardock's FAC, that Stardock's goal here may be to selectively sidestep portions of the License Agreement. I don't recall that I have ever been in a position where I have wanted to challenge negotiated-for admissions made by a predecessor in an ancient document, so I am inclined to "watch and learn" rather than try to analyze any of this.
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Elestan
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Re: New Trademark Filings
« Reply #664 on: April 25, 2018, 04:48:37 pm »

These are story elements within the game, not the material used to label the product!

I think it's safe to say that Brad takes a much broader view on the utility of trademark, and a much narrower view on copyright.  He's been giving his views on a thread over in the Stardock forums.

It's also worth noting that he did not accept that the flash game Atari commissioned over a weekend was a token use of the "Star Control" trademark.
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rosepatel
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Re: My take on Stardock
« Reply #665 on: April 25, 2018, 05:59:23 pm »

To echo what Ariloulawleelay is saying, even judges are going to disagree exactly on how to interpret this, let alone lawyers. It's healthy to talk in possibilities and probabilities. I try to be careful about speaking in certainties, usually when we're talking about actual law, and things that aren't under dispute.

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.

Mormont basically nails it. When interpreting a contract, courts tend to look at the conduct of the parties to determine how the parties meant it. The fact that Paul and Fred have been openly talking about Star Control for decades would be important. But even more material: Atari never sued Paul and Fred for talking about Star Control, let alone calling themselves the creators, or talking about their planned sequel. We should also add that courts are unlikely to use Trademark to completely muffle free speech (I think it's in the constitution or something), so they try to draw a line around Trademark that applies strictly to commerce (hence fair use).

It's not to say that the GOTP announcement is definitely fair use. But the court will say that P&F have some leeway to mention Star Control, based most interpretations of the contract and Trademark law. The question will then be whether the announcement crosses that line.

This is also going to be material for the "Ur Quan Masters" Trademark. The UQM project existed since 2002, using "Ur Quan Masters" as name of the product. Most importantly, Atari (who inherited the Star Control Trademark from Accolade) never demanded the project stop using that name. Atari certainly didn't act like they owned the UQM Trademark. And even if they had resumed selling SC2 with UQM on the box (which they didn't), failing to enforce your Trademark against someone for more than a decade would certainly weaken your claim against them.

Here's the interesting part. You don't see "Star Control 2: Ur Quan Masters" used to sell a product until Stardock starts selling the games on Steam in late 2017, a few months ago. And then they try to claim the Trademark against someone who has been using it for more than a decade. I can't imagine a judge will like that. And if the judge finds that Stardock believed that their publishing and sales license had expired, which they had admitted more than a few times, but decided to start selling the games anyway, using a Trademark that someone else had been using for 15 years...

This is why I resent people who say it's the lawyer's job to be aggressive. If a lawyer goes too far, it can absolutely backfire.
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Lakstoties
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Re: New Trademark Filings
« Reply #666 on: April 25, 2018, 06:02:04 pm »

These are story elements within the game, not the material used to label the product!

I think it's safe to say that Brad takes a much broader view on the utility of trademark, and a much narrower view on copyright.  He's been giving his views on a thread over in the Stardock forums.

It's also worth noting that he did not accept that the flash game Atari commissioned over a weekend was a token use of the "Star Control" trademark.

I saw that post...  That post really confused me more than anything about Stardock's stance and understanding of the situation.  For as much experience that has been claimed, that's a very strange view of the way the system works.
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Serosis
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Re: My take on Stardock
« Reply #667 on: April 25, 2018, 06:14:54 pm »

To echo what Ariloulawleelay is saying, even judges are going to disagree exactly on how to interpret this, let alone lawyers. It's healthy to talk in possibilities and probabilities. I try to be careful about speaking in certainties, usually when we're talking about actual law, and things that aren't under dispute.

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.

Mormont basically nails it. When interpreting a contract, courts tend to look at the conduct of the parties to determine how the parties meant it. The fact that Paul and Fred have been openly talking about Star Control for decades would be important. But even more material: Atari never sued Paul and Fred for talking about Star Control, let alone calling themselves the creators, or talking about their planned sequel. We should also add that courts are unlikely to use Trademark to completely muffle free speech (I think it's in the constitution or something), so they try to draw a line around Trademark that applies strictly to commerce (hence fair use).

It's not to say that the GOTP announcement is definitely fair use. But the court will say that P&F have some leeway to mention Star Control, based most interpretations of the contract and Trademark law. The question will then be whether the announcement crosses that line.

I think timing will definitely have an impact on the ruling because P&F's announcement of Ghosts completely stepped on the toes of the Origins public beta release.
They knew exactly when the Origins beta was going to be released because Brad, foolishly, kept them in the loop.

Whether they can prove that it wasn't done to cause harm ¯\_(ツ)_/¯
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Elestan
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Re: My take on Stardock
« Reply #668 on: April 25, 2018, 06:19:53 pm »

In this case,2 Stardock has taken the position that P&F's claims to be the "Creators of Star Control" are both false and misleading.3 If we accept Stardock's pleadings as true, it becomes clear that P&F's continued use of the "Star Control" mark in their new weblog and Twitter blurbs cannot possibly constitute nominative fair use.

The problem, of course, is that the License Agreement does have some language in it suggesting that developers do indeed "create" or "conceive" of software. By not integrating the License Agreement into their operative complaints, Stardock's attorneys can, at the very least, delay having to address this apparent incongruity.4 And so long as Stardock is able to argue that P&F are being dishonest, P&F will be on the defensive in responding that their nominative use of the "Star Control" mark is permitted as the most straightforward, obvious and truthful way to describe P&F's business.

Thank you.  This sheds light both on why the facially absurd "Creators" argument was so important to Stardock, and on why they did not include the 1988 agreement, both of which had been perplexing me for some time.

It also makes me consider a difference I think I'm seeing between the two complaints.  When I read P&F's countercomplaint, even as a non-lawyer, it makes sense to me.  They provide exhibits, and make arguments that cite them, and I can usually follow along.  When I read Stardock's complaint, they're ofttimes making arguments (such as the "Creators" one) for which I have trouble divining the basis, intent, or both.  I've always assumed (and you've now confirmed) that this was because there were legal reasons that I just hadn't identified.  This is also why I've probably spent more time thinking/posting about Stardock's filings than P&F's: It seems like there's just more inobvious stuff to find there.

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[4] I recognize, after reading paragraphs 43-44, 69, 71-73, 75-76, 78-85, 88, 95, 98-99, 102, 108 and 132 of Stardock's Answer, in conjunction with paragraphs 11-12 of Stardock's FAC, that Stardock's goal here may be to selectively sidestep portions of the License Agreement. I don't recall that I have ever been in a position where I have wanted to challenge negotiated-for admissions made by a predecessor in an ancient document, so I am inclined to "watch and learn" rather than try to analyze any of this.

I won't claim the ability to properly analyze, but I'll just note a few things I see looking at those sections:
  • The 1988 agreement never specifically denotes Reiche as "Developer".
  • Stardock's FAC #11 says "...under the terms of the 1988 Agreement, Accolade developed and published Star Control" (emphasis added)
  • P&F's response to #11 says "Defendants deny that Accolade developed Star Control. [...] under the 1988 Agreement, Reiche was the “Developer”"

Hmm...here's a question for anyone:  In the 1988 agreement, the "Work" is defined as three products per its Exhibit A, which lists "A Fantasy RPG", "StarCon" (describing SC1), and "As yet unspecified".  Where is the language that incorporates SC2 into the agreement as part of the "Work"?
« Last Edit: April 25, 2018, 06:38:56 pm by Elestan » Logged
Krulle
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Re: My take on Stardock
« Reply #669 on: April 25, 2018, 09:50:32 pm »

"as yet unspecified"...
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Elestan
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Re: My take on Stardock
« Reply #670 on: April 25, 2018, 10:02:34 pm »

"as yet unspecified"...
Yes, but is there (and does there need to be) any kind of explicit statement that the "as yet unspecified" was agreed by Paul & Accolade to be "Star Control 2"?
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rosepatel
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Re: My take on Stardock
« Reply #671 on: April 25, 2018, 10:59:36 pm »

I won't claim the ability to properly analyze, but I'll just note a few things I see looking at those sections:
  • The 1988 agreement never specifically denotes Reiche as "Developer".
  • Stardock's FAC #11 says "...under the terms of the 1988 Agreement, Accolade developed and published Star Control" (emphasis added)
  • P&F's response to #11 says "Defendants deny that Accolade developed Star Control. [...] under the 1988 Agreement, Reiche was the “Developer”"


There's a couple other things that jump out of the 1988 agreement in that respect. At different points in the agreement, P&F are supposed to "design", "create", or "develop". Different assets are supposed to be developed, produced, and created. Paragraph 3.3 says they're supposed to work together to "create sequels".

Stardock has taken a lot of heat on this, and their story seems to change. Stardock's lawsuit says that Paul and Fred might not have substantially contributed anything to the game. Publicly, Stardock has avoided addressing this, and keep claiming that they only mean that P&F are the developers or designers. Which seems like a distinction without a difference, if not a way to dodge the issue that their lawsuit denies that Paul and Fred contributed to the games at all.

More recently, they've said that P&F calling themselves the creators is misleading, because it means fans will be misled about the fact that one of the original mod composers is working on Origins. I seriously question whether any reasonable fan hears "this is a new game from the creator of ____", and immediately assumes they're talking about the soundtrack.

Quote
Hmm...here's a question for anyone:  In the 1988 agreement, the "Work" is defined as three products per its Exhibit A, which lists "A Fantasy RPG", "StarCon" (describing SC1), and "As yet unspecified".  Where is the language that incorporates SC2 into the agreement as part of the "Work"?

The adendums seem pretty definitive, but come after the fact. The first Adendum appears after Star Control 2 is done. It talks about the three computer software programs developed in the past tense, and outlines a new agreement just around the 3D0 version. The second Adendum does something more specific for Star Control 3, including licensing the characters and other IP. The third adendum does another agreement for Star Control 4 and further sequels. It creates a license for Accolade for the purposes of creating sequels to the classic games (defined as 1-3), with the new sequels called "Star Control Derivative Works". They'd have a perpetual license to sell those Star Control Derivative Works, but only if they actually start selling it in three years. And if they don't, all rights revert to Paul, with the exception of Trademarks. We know how that turned out.

So while there is a gap in information about whether there was another agreement for Star Control 2, the adendums strongly imply that Star Control 2 was the third work that was previously unspecified.
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huhlig
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Re: My take on Stardock
« Reply #672 on: April 25, 2018, 11:22:58 pm »

"as yet unspecified"...
Yes, but is there (and does there need to be) any kind of explicit statement that the "as yet unspecified" was agreed by Paul & Accolade to be "Star Control 2"?

That should fall under derivative work created by developer. While it does not say explicitly that Paul Reiche III is the developer, it does specify this document is both between Accolade and Paul Reiche III and is between the publisher(explicitly defined as accolade) and the developer. It's not exactly ambigious. See here and here.
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Re: My take on Stardock
« Reply #673 on: April 25, 2018, 11:34:41 pm »


I won't claim the ability to properly analyze, but I'll just note a few things I see looking at those sections:
  • The 1988 agreement never specifically denotes Reiche as "Developer".
  • Stardock's FAC #11 says "...under the terms of the 1988 Agreement, Accolade developed and published Star Control" (emphasis added)
  • P&F's response to #11 says "Defendants deny that Accolade developed Star Control. [...] under the 1988 Agreement, Reiche was the “Developer”"

Reiche is denoted as 'Developer' by title, near his signature, on page 15. While there is no "Reiche (hereafter, 'developer')" or similar, there's no other entity it could reasonably be applied to.

To refer to Accolade as 'developing' Star Control appears (to me) to be at best an obfuscation via the common usage "to bring into being" rather than the software industry usage (roughly, "wrote the code for").
« Last Edit: April 25, 2018, 11:37:07 pm by WibbleNZ » Logged
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Re: New Trademark Filings
« Reply #674 on: April 26, 2018, 02:10:51 am »

These are story elements within the game, not the material used to label the product!

I think it's safe to say that Brad takes a much broader view on the utility of trademark, and a much narrower view on copyright.  He's been giving his views on a thread over in the Stardock forums.

It's also worth noting that he did not accept that the flash game Atari commissioned over a weekend was a token use of the "Star Control" trademark.

I saw that post...  That post really confused me more than anything about Stardock's stance and understanding of the situation.  For as much experience that has been claimed, that's a very strange view of the way the system works.

Is there any case law supporting Trademarks being somehow magically recursive for all names used within a creative work of media? Last I checked that was solely in the realm of copyright. Copyright protects creative works including descriptions and names. Trademarks are used to establish a source of origin for a product or service.
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