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

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Author Topic: My take on Stardock  (Read 61237 times)
rosepatel
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Re: My take on Stardock
« Reply #735 on: May 08, 2018, 09:26:15 am »

By the way, do you think that the Ur-Quan universe can really be divorced from the Star Control trademark, either legally or in terms of actual public perception?

Honestly, this is why the whole thing is a clusterfuck of massive proportions. Split IP cases are rare and usually settled out of court.

This is like someone owning a baby's head, and the other owning the baby's body. Whoever wins, the baby loses.

To put it succinctly, Copyright protects what's in the box, and Trademark protects what's ON the box.

(That's crude, because for sure you might hear the Trademark a bunch of times in the game, and the box might have Copyrighted images on it.)

Stardock is trying VERY hard to extend the Trademark to what's IN the box. Some of their arguments verge on absurd, IMO, but it's an ambiguous enough area of law that it's hard to completely rule it out.

For example, they're now claiming (1) that Atari owned dozens of unregistered common law Trademarks (e.g.: Trademarks established by "use" and not by a paper application), and (2) that Atari's sale of the "Star Control Franchise" implies that they sold all those Trademarks to Stardock. That's in spite of the fact that Atari never used any of those terms in commerce (they are in the box, not on the box), and that's in spite of the one document that says they only sold the "STAR CONTROL" Trademark.

Even if that interpretation of the Trademarks is true, and I think I'm being kind when I call it a stretch, they're using those Trademarks to help protect stuff that's in the game. So owning "Spathi" gives you more than the power to sell a game called "Spathi" (which nobody has ever done, including Atari who they bought it from). They're saying the "Spathi" mark gives them the power to put Spathi in the game. And then they're going to copy elements of the Spathi characters, and go on the record that they're doing it, and hope that the judge thinks it's not plagiarism because they didn't copy it exactly. There's actually a ton of case law where people get in trouble for copying bits and pieces of someone else's work.

"How much Copyrighted material can we get away with copying?" is a legal minefield that very few reputable companies would test.
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Lakstoties
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Re: My take on Stardock
« Reply #736 on: May 08, 2018, 10:22:29 am »


To put it succinctly, Copyright protects what's in the box, and Trademark protects what's ON the box.

(That's crude, because for sure you might hear the Trademark a bunch of times in the game, and the box might have Copyrighted images on it.)

From what I've read, that pretty much summarizes it.  Trademark is literally the mark you put upon a product in trade.  It's suppose to be a product identification mark, that can use copyrighted material to compromise the mark itself.

Quote
Stardock is trying VERY hard to extend the Trademark to what's IN the box. Some of their arguments verge on absurd, IMO, but it's an ambiguous enough area of law that it's hard to completely rule it out.

I'm going to say this because after reading all shapes and forms of law and legal codes...   I don't know if Stardock really understands how Trademarks and Copyrights work at this point.  Because what they leverage and argue runs right in the face of every description and summary I find on many government and law school websites.  And their only response to questioning their stance is that non-lawyers shouldn't question them.

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For example, they're now claiming (1) that Atari owned dozens of unregistered common law Trademarks (e.g.: Trademarks established by "use" and not by a paper application), and (2) that Atari's sale of the "Star Control Franchise" implies that they sold all those Trademarks to Stardock. That's in spite of the fact that Atari never used any of those terms in commerce (they are in the box, not on the box), and that's in spite of the one document that says they only sold the "STAR CONTROL" Trademark.

From everything I've read about trademarks, common law trademarks are NOT transferrable.  Only registered trademarks can be transferred.  Common law trademarks are just legal precedences that have to be maintained by active use as a trademark and typically don't survive transerrance to another company.

Quote
Even if that interpretation of the Trademarks is true, and I think I'm being kind when I call it a stretch, they're using those Trademarks to help protect stuff that's in the game. So owning "Spathi" gives you more than the power to sell a game called "Spathi" (which nobody has ever done, including Atari who they bought it from). They're saying the "Spathi" mark gives them the power to put Spathi in the game. And then they're going to copy elements of the Spathi characters, and go on the record that they're doing it, and hope that the judge thinks it's not plagiarism because they didn't copy it exactly. There's actually a ton of case law where people get in trouble for copying bits and pieces of someone else's work.

"How much Copyrighted material can we get away with copying?" is a legal minefield that very few reputable companies would test.

They are willfully and intentfully trying to subvert copyright with trademark at this point.  I don't know how else to explain this strange tactic.  None of the recent filings have been used as proper trademarks...  even after filing them. 

At this point, either Stardock's legal team isn't very good at IP lawyering (or they are seriously trolling the system hard) OR they are just taking Stardock's money upfront and proctoring whatever Stardock tells them to do, no matter what happens.
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WibbleNZ
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Re: My take on Stardock
« Reply #737 on: May 08, 2018, 11:56:42 am »

"How much Copyrighted material can we get away with copying?" is a legal minefield that very few reputable companies would test.

This is how much Stardock appears to care about copyright:

https://forums.starcontrol.com/487690/get;3712896

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Serosis
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Re: My take on Stardock
« Reply #738 on: May 08, 2018, 12:07:43 pm »

You're right, Astrobia has a bit of a point there.
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Re: My take on Stardock
« Reply #739 on: May 09, 2018, 02:31:05 am »


To put it succinctly, Copyright protects what's in the box, and Trademark protects what's ON the box.

(That's crude, because for sure you might hear the Trademark a bunch of times in the game, and the box might have Copyrighted images on it.)

From what I've read, that pretty much summarizes it.  Trademark is literally the mark you put upon a product in trade.  It's suppose to be a product identification mark, that can use copyrighted material to compromise the mark itself.
This is interesting because as I recall there's actually precedent for this sort of thing in the trademark on "hobbit", but what you're saying here seems to suggest that's not a valid use of trademark? (Unless they're selling Bilbo and Frodo plushies or something similar.) And yet as far as I know the hobbit trademark has been held up several times.
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WibbleNZ
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Re: My take on Stardock
« Reply #740 on: May 09, 2018, 03:58:19 am »


To put it succinctly, Copyright protects what's in the box, and Trademark protects what's ON the box.

(That's crude, because for sure you might hear the Trademark a bunch of times in the game, and the box might have Copyrighted images on it.)

From what I've read, that pretty much summarizes it.  Trademark is literally the mark you put upon a product in trade.  It's suppose to be a product identification mark, that can use copyrighted material to compromise the mark itself.
This is interesting because as I recall there's actually precedent for this sort of thing in the trademark on "hobbit", but what you're saying here seems to suggest that's not a valid use of trademark? (Unless they're selling Bilbo and Frodo plushies or something similar.) And yet as far as I know the hobbit trademark has been held up several times.

As best I can tell from searching the USPTO site, "Hobbit" and/or "The Hobbit" are registered trademarks in the US for a ton of things* but not fantasy adventure books. Compare "Dragonlance". "books on fantasy" doesn't look like it would count. "Hobbit" is also so famous that it is protected from trademark dilution (https://en.wikipedia.org/wiki/Trademark_dilution), not just trademark infringement.

*The ones I could find just under class US 038 (Prints and publications): printed matter, namely, posters[, art prints, postcards], Figures of cardboard, strategy guides for games; posters, Albums for trading cards; albums for stickers; arts and craft clay kits; arts and craft paint kits; binders; books featuring photographic prints, books for role-playing, books on fantasy, books on myths, posters, maps, song books, gift books in the field of games, films and fantasy, strategy guides for games; manuals used for computer games and interactive games, non-electronic personal planning books; children's arts and crafts paper kits; coin albums; commemorative stamp sheets, postage stamps; decals; figures made of paper; animation cells; wall charts, stationery, calendars; playing cards; paper cake decorations, trading cards; bookmarks; stickers; sticker books; art prints; printed holograms, photos and cells from fantasy games sold as a unit, lithographic prints. writing paper; note books; note pads; note cards, postcards, folders, instructional and teaching materials in the field of games films and fantasy, magazines in the fields of games, films and fantasy, book ends, letter openers, paperweights; pencils, pens, erasers, and pencil cases.
« Last Edit: May 09, 2018, 04:06:30 am by WibbleNZ » Logged
Lakstoties
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Re: My take on Stardock
« Reply #741 on: May 09, 2018, 04:11:10 am »

This is interesting because as I recall there's actually precedent for this sort of thing in the trademark on "hobbit", but what you're saying here seems to suggest that's not a valid use of trademark? (Unless they're selling Bilbo and Frodo plushies or something similar.) And yet as far as I know the hobbit trademark has been held up several times.

That's actually more of a copyright issue due to the unique term "hobbit" in Tolkien's world.  I don't think it has actually ever gone to court, but many writers of tabletop role playing games evaded the possibility by avoiding "hobbit" and using "halfling" instead.
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Re: My take on Stardock
« Reply #742 on: May 09, 2018, 08:33:07 am »

Is this conference the point where a settlement most commonly occurs in litigation?  Or do they tend to stagger in unpredictably during later proceedings?

I am not sure that I can really give you a relevant, meaningful answer (beyond repeating the notion that very few cases actually make it to trial). Whether a chaperoned meeting between PaulReiche and Frogboy at this juncture would be productive or a power-keg is dependent on case-specific factors which, for us, are mostly unknowable.

Some judges employ a facilitative approach - think of it like group therapy for lawyers - whereas others engage in an evaluative process akin to a mini-trial (without witnesses, but with calling out nonsense). Some lawyers engage in real negotiation up to the day of the conference, so that everyone walks in knowing what the real sticking points are and where the path forward begins; other advocates treat the conference as an opportunity to show their clients how tough and aggressive they can be. Sometimes parties just want their day in court, where they can tell their story to an impartial audience and actually be heard; other times parties have clear expectations about the outcome of the case and think of settling as part of a zero-sum game.

When you have a situation where informal settlement talks have, at least temporarily, broken down amid mutual allegations of bad faith, it can be easy to become pessimistic about the prospect of an agreement. And if the attorneys have not been managing their clients' expectations, such that one party feels that it's cruising towards a seven-figure verdict, or such that one party thinks it has a reasonable shot at being declared the copyright owner (and thus have the right to block distribution of an unlicensed derivative work promoted as a sequel or prequel), while the other party doesn't even see those scenarios as being on the table, it may well be that the parties are so far apart that there needs to be a ruling or two to grease the wheels for further negotiation. All I can say is that ADR is integral part of federal litigation and designed to overcome these sorts of difficulties. It can be very expensive (in terms of legal fees), but it may well be the first time that: (i) a judge reads the pleadings, and (ii) the parties aren't able to simply talk past one another. It is not at all uncommon for settlements to be born out of these conferences, though other major events (such as significant hearings or discovery, or the advent of trial) can also instigate agreement.

One reason to be optimistic: the parties will ideally walk into the courthouse having completed at least some basic discovery. Was there a period of time in which royalty payments to F&P were <$1000/year? Have F&P collecting double royalties (once from GOG, once from the publisher) as of late? As outsiders, all we have are conflicting statements and circumstantial evidence from the bankruptcy docket. At the settlement conference, the parties should agree about those answers (even if they disagree as to their legal implications).

Similarly, I would hope that the parties will be on the same page about whatever concessions may have been made by Stardock's predecessors during the Starcon and GOG negotiations, the authenticity of the Addenda, whether Stardock has any written instruments reflecting its ownership of any copyrights, and who drafted the License Agreement. Although the parties may remain far apart as to key issues, such as the nature of the market(s) for SCO and GOTP (such that negotiating any new license agreement in good faith might remain difficult), in general, the loss of information asymmetry will at least bring the lawyers closer together as they explore possible outcomes at the conference.

And on that note, I'm going to push back against one of Lakstoties's comments a little bit. If you've followed recent events in US politics, you will have noticed that the arguments lawyers make in public are not always the same ones that they make in court. Here, Stardock's legal team have made no public statements, and their pleadings may have been drafted without knowledge of the Addenda. I think that they deserve some benefit of the doubt.

Unlike us (or maybe just unlike me), Stardock's lawyers are not trying to ascertain how the law should be applied to a set of tricky facts. They're trying to describe a world where Stardock wins its lawsuit. (Or gets control of the Classic aliens, whatever outcome Stardock wants here.) Presumably, their preparation for the settlement conference will include reevaluating Stardock's positions, responding to F&P's positions, and getting a handle on potential damages. In line with what rosepatel wrote, speculation as to what they may argue in the future is just that, even if Stardock employees are the ones doing the speculation.
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Re: My take on Stardock
« Reply #743 on: May 09, 2018, 08:39:31 am »

There is another, more serious problem with this whole situation, it seems. Another Stardock employee implied that Fred and Paul may be facing criminal charges for their DMCA takedown attempts. How likely do you think that is?

To ride on the coattails of rosepatel's more timely response, I will add that I have never personally heard of anyone being subjected to criminal liability as a result of misrepresentations made in a DMCA takedown notice, even in circumstances which struck me as abusive. This likely because OCILLA (the particular part of DMCA at issue here) specifically provides for monetary sanctions for such misconduct, notwithstanding the usual consequences of perjury. Had Congress wanted to threaten violators with criminal prosecution, Congress knows how to do that. Compare 17 U.S.C. § 512(f) with § 506. I think it's a sensible distinction, too, as the harm from a false takedown request should be very temporary and easily traceable by the victim.

Bottom line: this is an ordinary business dispute. There is not going to be a duel, and from what I've seen, no one should fear facing criminal charges, regardless of the civil case's outcome.
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rosepatel
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Re: My take on Stardock
« Reply #744 on: May 09, 2018, 04:03:18 pm »

Maybe this is a bad assumption... but I'm less inclined to believe the Stardock forum posts compared to what they're actually saying in the pleadings.

Easy to make all kinds of wild arguments in front of an audience that (a) doesn't know the law and (b) won't ever have a chance to hold you accountable in front of a judge.

Just look at Stardock's settlement offer, which is way more aggressive than what they're trying to claim in court. It's the kind of tactic that literally cannot work, unless the other side is too poor or stupid to hire a competent lawyer.

If you know you have to go up in front of a judge, you tend to confine it to just what you feel you can actually prove. (And even then, you might have trouble proving it.)
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PRH
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Re: My take on Stardock
« Reply #745 on: May 12, 2018, 02:18:29 pm »

Even if that interpretation of the Trademarks is true, and I think I'm being kind when I call it a stretch, they're using those Trademarks to help protect stuff that's in the game. So owning "Spathi" gives you more than the power to sell a game called "Spathi" (which nobody has ever done, including Atari who they bought it from). They're saying the "Spathi" mark gives them the power to put Spathi in the game. And then they're going to copy elements of the Spathi characters, and go on the record that they're doing it, and hope that the judge thinks it's not plagiarism because they didn't copy it exactly. There's actually a ton of case law where people get in trouble for copying bits and pieces of someone else's work.

What Stardock (or Brad at least) currently argues is that the use of unique names that were previously used in a trademarked work (especially if you're using several of those names together) associates the new work with the trademark. Thus, using just "Spathi" in your new work may or may not be legal, but if you're using "Spathi", "Arilou" and "Ur-Quan" together, it would automatically imply a connection to the Star Control games and cause trademark confusion, and therefore infringe on the Star Control trademark even if the new product is not marketed under that trademark (and objectively, there is a connection too, as a sequel to UQM is obviously a sequel to Star Control II, as they're one and the same game). Who owns the copyright to the previous works with the Spathi, Arilou, and Ur-Quan is therefore irrelevant (although Stardock also argues that they also own the copyright to the classic Star Control games too, minus the parts created personally by Fred and Paul). Is there anyone here competent enough who can say whether this is true or false?
« Last Edit: May 12, 2018, 02:52:17 pm by PRH » Logged
Krulle
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Re: My take on Stardock
« Reply #746 on: May 12, 2018, 03:00:25 pm »

I think case law will have to be created with this case to show whether it is true or not....
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Elestan
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Re: My take on Stardock
« Reply #747 on: May 12, 2018, 04:02:10 pm »

Stardock also argues that they also own the copyright to the classic Star Control games too, minus the parts created personally by Fred and Paul

Note that they're playing some word games in their First Amended Complaint, where, in #32, they define the "Star Control Copyrights" solely as the registered copyright for Star Control 3.  My impression is that they are trying to leave the SC1&2 copyrights as unmentioned and undefined as possible, so as to place the burden of proving them on P&F.  If you've seen them make a claim to the SC1/2 copyrights, can you point to it?
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Re: My take on Stardock
« Reply #748 on: May 12, 2018, 04:39:51 pm »

If you've seen them make a claim to the SC1/2 copyrights, can you point to it?

Brad's forum posts, such as the one I gave the link to previously on Stardock's forums:

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Paul and Fred have no rights to Star Control beyond what specific copyrights (common law or otherwise) they can show to hold. This might include DOS source code, alien paintings, ships (maybe, if 32x32 pixel ships can be covered). So far, we’ve seen no evidence to support any of the above. Their one copyright, filed a couple months ago, has none of this. It does include the user manual.

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Future Star Control games will have the classic Star Control aliens in them. For years, our position was that we would not use the classic Star Control aliens.  I’ve even previously said that PF had common law copyrights on them (because like most people here, I believed their claims).

We held this position because PF asked us not to and said they wanted to continue their story and we wanted that too. But it was always assumed that even if they wanted to work on it themselves, they’d do so as an authorized Star Control game. When they made it obvious that they didn’t believe we have rights to the Star Control aliens (not just what they might have copyrights to but even the names) we had no choice but to defend our rights. 

Only the most unreasonable person would argue that Star acontrol games can’t have Star Control aliens simply because an independent contractor of Accolade’s claims rights to names he may or may not of randomly generated 28 years ago. Sorry, I can admire someone’s work without instilling upon him extralegal rights.

Someone might argue that PF “created” the Orz but the evidence actually doesn’t indicate they did.  However, even if they had, it was as an independent contractor for Accolade and all they would have is any copyright over the expression of the Orz. It wouldn’t prevent Accolade (or us) from having Orz in our game, it would only prevent a derivative of that artistic expression of the Orz.
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Elestan
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Re: My take on Stardock
« Reply #749 on: May 12, 2018, 05:19:36 pm »

If you've seen them make a claim to the SC1/2 copyrights, can you point to it?
Brad's forum posts, such as the one I gave the link to previously on Stardock's forums:

I don't see Brad claiming that Stardock owns the copyrights there.  I see him disputing whether P&F own those copyrights, and saying that Stardock has the right to control the names via trademark.

Stardock's strategy on the SC1&2 copyrights doesn't appear to be to claim them, but rather to muddy the waters around them as much as possible.  Hence Brad's assertions there and elsewhere that "the IP in SC2 is messy (lots of creators)", while trying to portray Stardock's trademark claims as being very straightforward ("We have a valid federal trademark for Star Control which means there are statutory damages"), and ignoring or dismissing any questions about it ("We don’t have to “prove” anything regarding its validity because it is already assumed valid").
« Last Edit: May 12, 2018, 05:45:20 pm by Elestan » Logged
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