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Topic: My take on Stardock (Read 224722 times)
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metamorphosis
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Regardless of who's in the legal "right" here, both parties lose and continue to lose.
IMO Brad shouldn't've done the whole spreading his arms out like a bear "I'M BIGGER THAN YOU" with the initial countersuing bullcrap, but then Fred and Paul probably could've reacted less to the initial sales fiasco.
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Elestan
*Smell* controller
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BTW, if there's anyone wondering why I don't reply to Brad in the latest discussion on the Stardock boards, it's because my posting access appears to have been revoked after Brad made his last reply. If anyone feels like taking a risk, feel free to drop in on the thread and bid them farewell for me.
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« Last Edit: June 18, 2018, 04:36:46 am by Elestan »
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Elestan
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Well, you were being a right pain in the ass.
[...]
Regardless of whatever you think you were saying, you pissed off the CEO, on purpose, on a forum he owns.
Well, he seems to want to be able to engage newcomers to the story with a one-sided narrative that paints Stardock as a completely innocent victim. If my focusing attention on what appears to be the actual first shot fired in this war angers him enough to ban me, I'm unlikely to lose sleep over it.
EDIT: Looks like he's now claiming that SC3 had "undisclosedunspecified copyrighted material in it" to explain why Stardock was blindsided by P&F's DMCA. I guess the license notice on the box cover and the game disk must have been too small for their lawyers to read.
EDIT2: I see Brad still reads this forum, as he edited his post to say "unspecified" instead of "undisclosed". He dismisses this change as pedantic, but it's really not, because after making it, it can't sustain Stardock's position anymore. Remember, Stardock has been using P&F's DMCA of SC3 as an example of how P&F "forced" Stardock to file a lawsuit. At first they claimed that the DMCA was completely invalid because P&F had no IP in SC3. Once Paul's claim on the SC2-derived elements in SC3 became clear (or at least highly plausible), they changed their argument to say that the DMCA was unreasonable, because Stardock had no way to know about the IP. Now even that has been shown to be without merit, because the license notice was right on the box and disc. Saying that it was "unspecified" is immaterial; their knowledge that SC3 contained any materials licensed from Paul should have been enough to put them on notice of the risks. Moreover, their argument misallocates the responsibility: When you buy assets at a bankruptcy auction, it's the buyer's responsibility to check the provenance of the assets. If Stardock's lawyers didn't foresee the risk of a DMCA when they entered hostilities with Paul, that's not Paul's problem.
Also, it seems to me that If Stardock genuinely thought that P&F's DMCA was fraudulent, they would have mentioned it in their legal complaint, and asked for relief. The fact that they didn't leads me to believe that all the noise Stardock has made about getting DMCA-ed is just a public relations smokescreen to try to paint Stardock as the victim, rather than the aggressor.
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« Last Edit: June 19, 2018, 01:35:09 am by Elestan »
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Lakstoties
Frungy champion
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Stardock is well within their rights to throw someone out of their own house. I will fully agree Stardock has the right to patrol their forum as they see fit. Truthfully, the Stardock forums have been very tolerant of the internet legal squabbling, but there's a limit to everything. And as the court case progresses and certain legal avenues are explored, I do get the feeling there's certain topics that Stardock doesn't want explored upon their own forums. But, it's their forums at the end of the day. I've pushed it to the edge myself, but I more than said my peace on the matter over there. There are many dedicated folks over there that have determined their opinion on the matter using the information they feel appropriate. At this point, it's their forum and they have the right to believe what they want on that forum. I will admit it is frustrating to literally have the text of the law stating "X" on one monitor and peeking over on those forums on the other monitor to see the reasoning behind Stardock's stance being "Antithesis of X". Thankfully, I've grown a near-reflex of moving my nice keyboard out of the way before dropping my head on the desk.
Any effort I put forth now, I've been putting towards more entertaining avenues of understanding the law.
For an entertaining case about trademark (I have to give it up to the judge on this one... That judge had to walk into that court room with knowledge of the basis of the case.): https://www.youtube.com/watch?v=mOTlj4MARbo&t=0s
Also, looking into a previous Stardock trademark case with Rebellion entertainment ( https://scholar.google.com/scholar_case?case=705020582613657328 ), I learned about the Rogers Test. ( https://www.inta.org/INTABulletin/Pages/LitigatingtheFirstAmendmentDefenseintheVideoGameContext.aspx ) Not only that, just how broadly it can get used, see PDF p. 16, Document p. 207: http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1027&context=jipl
So, fascinating read so far and it does grant that a lot needs to be decided in the court rooms. But frankly, there's some minor extrapolations of logic that could prove very dangerous for Stardock... That I personally wouldn't want to open up the possibility for by engaging in litigation.
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Ariloulawleelay
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Couldn't Stardock claim indemnification for any such damages under section 9.3 of the 1988 agreement?
Okay, I do see the complaint, and I know that P&F's position is that GoG was supposed to have a side agreement with Atari over the trademark, to permit those sales. But wouldn't the trademark clause in section 11.5 of the 1988 agreement still preclude P&F gaining any trademark from the GoG sales? It seems like those sections might survive the expiration of the sales term.
You've identified the salient portions of the License Agreement - the Publisher could certainly make plausible arguments here based on the provisions you have cited.
But section 9.2 in particular seems rather poorly written from the Publisher's perspective.
Let us imagine that, to some extent, the SC1 game is a "joint work" for copyright purposes, as its creators intended that their individual contributions be merged into a single, unitary game. Whether n==2 or n>=10, I'll refer to these hypothetical joint owners as "co-owners."
As a general rule, each of the co-owners would have an independent right to exploit the entire joint work, e.g. by licensing it to a publisher, or by suing a third party for copyright infringement, so long as he: (a) shares the proceeds of such exploitation with the other co-owners, and (b) does not exclusively license the work to a third party. Part b is important because each of the co-owners has an undivided interest in the entire joint work; if just one of the co-owners, acting alone, could enter into an exclusive license agreement, he would unfairly restrict the rights of the other co-owner(s).
Turning back to SC1, it appears that Accolade assumed that PaulReiche was one of the co-owners.
When PaulReiche specified that the SC1 copyright notice should include two names, alarm bells should have gone off at Accolade: the License Agreement was only with PaulReiche, and PaulReiche alone could not convey an exclusive license to a joint work. Accolade should have either: (i) made each co-owner sign the License Agreement, and/or (ii) taken steps to confirm that there was some agreement between the co-owners that PaulReiche could exclusively license SC1 on everyone's behalf. If Accolade blundered by doing neither, then it might have been able to rely upon sections 9.2 and 9.3 to partially protect itself had another co-owner licensed SC1 to EA (or something of that nature).
Fortunately for those of us who dislike mysteries, it is my understanding that Stardock was distributing the Classic Star Control Games as recently as last month. As the Copyright Act ... discourages knowingly placing a false notice of copyright on an article, there is someone out there who purchased these games and now has a pretty good sense of whom Stardock believed owned the copyright to each of the Classic Star Control Games, at least as of when the games were purchased. I presumed that this was why Stardock stopped selling them; I'm not sure how many sales there would have been in the couple of months after the copyright was registered and before the games got pulled; it might not be enough to be scary.
This point was interesting to me not because of any potential damages, but because Stardock's employees can say whatever they like about who owns various copyrights when they're posting to Internet forums. Meanwhile, however, with every sale, Stardock was voluntarily making a formal admission as to whom Stardock believed owned the relevant copyright(s). To me, those admissions would be worth something, even if Stardock only sold one copy of each of the classic games.
For example, it seems as though Stardock is arguing (at least online) that SC2 is not a joint work but rather a "collective work," wherein individual elements such as the music, artwork, and characters all were intended to constitute separate and independent works in themselves, which were later assembled into a collective whole.
No outsider really has enough information to know whether to agree with this assertion, but we can ask whether Stardock actually agrees with it. Do the copyright notices on the copies of SC2 reproduced and distributed by Stardock reflect this position? Were the individual elements upon which SC3 was derived separately licensed by Stardock?
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Lakstoties
Frungy champion
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Do the copyright notices on the copies of SC2 reproduced and distributed by Stardock reflect this position?
Would you believe the copyright notice appears to support Stardock's claim that Paul & Fred were not the creators? "Star Control II is a trademark of Accolade, Inc. Portions (c) 1992 Paul Reiche III and Fred Ford. Game (c) 1992 by Accolade, Inc."
Interesting... On what was that notice located? Because this back of the box image shows different: http://wiki.uqm.stack.nl/script/images/7/7d/Image_thumb_3.png
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WibbleNZ
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Do the copyright notices on the copies of SC2 reproduced and distributed by Stardock reflect this position?
Would you believe the copyright notice appears to support Stardock's claim that Paul & Fred were not the creators? "Star Control II is a trademark of Accolade, Inc. Portions (c) 1992 Paul Reiche III and Fred Ford. Game (c) 1992 by Accolade, Inc." Interesting... On what was that notice located? Because this back of the box image shows different: http://wiki.uqm.stack.nl/script/images/7/7d/Image_thumb_3.png
This is in README.TXT, MANUAL.TXT, and manual.pdf for Star Control 2, and also identically worded but (c) 1990 in the manual.pdf for Star Control 1. It's obviously not the original release of SC2 as it also has references such as "This CD includes one of the most critically acclaimed sci-fi games of all time." and to Windows 95 which wasn't out at the time, but it seems unlikely that the manuals would have been rewritten. Does anyone have a GoG or even original version to compare? Accolade appear to have been rather inconsistent.
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Mormont
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Do the copyright notices on the copies of SC2 reproduced and distributed by Stardock reflect this position?
Would you believe the copyright notice appears to support Stardock's claim that Paul & Fred were not the creators? "Star Control II is a trademark of Accolade, Inc. Portions (c) 1992 Paul Reiche III and Fred Ford. Game (c) 1992 by Accolade, Inc." Interesting... On what was that notice located? Because this back of the box image shows different: http://wiki.uqm.stack.nl/script/images/7/7d/Image_thumb_3.pngThis is in README.TXT, MANUAL.TXT, and manual.pdf for Star Control 2, and also identically worded but (c) 1990 in the manual.pdf for Star Control 1. It's obviously not the original release of SC2 as it also has references such as "This CD includes one of the most critically acclaimed sci-fi games of all time." and to Windows 95 which wasn't out at the time, but it seems unlikely that the manuals would have been rewritten. Does anyone have a GoG or even original version to compare? Accolade appear to have been rather inconsistent. |
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Mormont
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This point was interesting to me not because of any potential damages, but because Stardock's employees can say whatever they like about who owns various copyrights when they're posting to Internet forums. Meanwhile, however, with every sale, Stardock was voluntarily making a formal admission as to whom Stardock believed owned the relevant copyright(s). To me, those admissions would be worth something, even if Stardock only sold one copy of each of the classic games.
For example, it seems as though Stardock is arguing (at least online) that SC2 is not a joint work but rather a "collective work," wherein individual elements such as the music, artwork, and characters all were intended to constitute separate and independent works in themselves, which were later assembled into a collective whole.
No outsider really has enough information to know whether to agree with this assertion, but we can ask whether Stardock actually agrees with it. Do the copyright notices on the copies of SC2 reproduced and distributed by Stardock reflect this position? Were the individual elements upon which SC3 was derived separately licensed by Stardock?
Honestly, this is the single biggest reason I have a hard time accepting Stardock's story. Their explanation of what a trademark means also seems off to me, but IANAL and could be missing something. But what I can see as a layman is the historical conduct of the parties. Like...no one before 2017, including Stardock, behaved as if Star Control's copyright was scattered between a bunch of different people or as if Accolade/Atari/Stardock owned the alien names. They behaved as if Reiche/Ford's understanding of the IP was essentially correct, besides the recent development of attempting to cancel the TM anyway.
Just one of many examples: the addendum for the 3DO version (your speculation that Stardock was unaware of the addenda seems plausible, btw) spells out very clearly that Reiche gets full copyright. They get Accolade's permission to use the "Star Control" and "Star Control 2" trademarks for the 3DO version, but they don't need permission for "Spathi" or even "Ur-quan Masters."
That, and as someone who has a little experience with music recordings I have never heard of collaborative efforts resulting in the split copyright ownership Stardock describes. Certainly various nasty lawsuits happen in the music industry, and ownership can be separate between songwriting and recording...but the idea that a guest musician or producer on your recording owns a piece of it is something I've never heard of happening (not getting paid is another matter, but that's more of a contractual thing than actual ownership). Maybe it's very different in the software industry, but it doesn't sound right.
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« Last Edit: June 19, 2018, 01:58:04 pm by Mormont »
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Death 999
Global Moderator
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We did. You did. Yes we can. No.
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Do the copyright notices on the copies of SC2 reproduced and distributed by Stardock reflect this position?
Would you believe the copyright notice appears to support Stardock's claim that Paul & Fred were not the creators? "Star Control II is a trademark of Accolade, Inc. Portions (c) 1992 Paul Reiche III and Fred Ford. Game (c) 1992 by Accolade, Inc." Interesting... On what was that notice located? Because this back of the box image shows different: http://wiki.uqm.stack.nl/script/images/7/7d/Image_thumb_3.png This is in README.TXT, MANUAL.TXT, and manual.pdf for Star Control 2, and also identically worded but (c) 1990 in the manual.pdf for Star Control 1. It's obviously not the original release of SC2 as it also has references such as "This CD includes one of the most critically acclaimed sci-fi games of all time." and to Windows 95 which wasn't out at the time, but it seems unlikely that the manuals would have been rewritten. Does anyone have a GoG or even original version to compare? Accolade appear to have been rather inconsistent.
Then maybe that notice is referring to the manual itself? Because that'd leave the game itself ©PR+FF, but the other materials ©Accolade, as we expected from everything else. But putting a copyright notice for the manual in the README.TXT would be kind of odd.
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« Last Edit: June 19, 2018, 02:36:54 pm by Death 999 »
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