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Topic: My take on Stardock (Read 192114 times)
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rosepatel
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I sometimes forget that people aren't working with even a basic understanding of IP.
This is a bit of an oversimplfiication, but there's a presumption that an employer owns the Copyright created by all of its employees. If you want the employees to own any copyright, you write an agreement to the contrary. We haven't seen even the slightest hint that P&F's employees would have had that. But we do see that Accolade's employees (namely P&F) were guaranteed the Copyright in everything they produce while under contract for them. In either event, a judge would assume that P&F own the Copyrights from anyone who worked for them, unless there was some evidence to the contrary.
Furthermore, anything recorded in tangible form is protected by copyright. Those essays you wrote in high school? Protected by copyright. Those doodles in your notebook? Protected by copyright.
Short version: a game company automatically owns the game copyright, without the need for any registration or contract.
So why register? Why make an agreement? For clarity, mostly. So there can be no mistake about when the work was produced (which should factually be before any copy). So that an employee can't come along later and say "actually, we made a handshake deal that this one character would be my Copyright". And in terms of writing down the obvious, you even see people writing contracts about things that happened years ago (e.g.: a release agreement) to clarify the past.
Stardock is trying to use these new release agreements to say that the employees owned copyrights until a few months ago (really unlikely). Unless there's some massive smoking gun that we're not seeing, this is probably as bad as Stardock trying to say that P&F broke the law by posting their settlement, or P&F lied about having copyright in the Star Control 3 game.
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gnunk
Zebranky food
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I sometimes forget that people aren't working with even a basic understanding of IP. That's not nearly as bad as people working without an understanding of the most basic fact of all in this equation. What am I talking about? Well...
But we do see that Accolade's employees (namely P&F) Stop. Right there. Just stop. They weren't employees of Accolade. You could've figured that out from reading the recitals in Paul's original 1988 licensing agreement with Accolade:
Publisher is in the business of developing and publishing computer software programs. Developer is in the business of developing recreational computer software programs, and desires Publisher's expertise and assistance in marketing Developer's products. -- Licensing Agreement between Accolade, Inc. and Paul Reiche III, October 7, 1988
and later in Section 12.6 where both parties expressly characterize their relationship as involving that of Independent Contractors:
Developer will be deemed to have the status of an independent contractor, and nothing in this Agreement will be deemed to place the parties in the relationship of employer-employee... -- Licensing Agreement between Accolade, Inc. and Paul Reiche III, October 7, 1988
Also, please note: While there is a presumption of authorship on the part of employers for the works of their employees, the same is not true of independent contractors when it comes to software. Unless you have an agreement specifying the transfer of intellectual property rights from the contractor to the contractee, all rights to said work remain with the contractor.
Short version: a game company automatically owns the game copyright, without the need for any registration or contract.
Registration is requisite in order to sue for damages in federal court. However, that's not at all what the recent registration was about. The work in question was already registered, but rather what was recently recorded was a transfer of rights over all audiovisual and textual materials (i.e. everything other than the source code) from the several authors responsible to Paul and Fred, i.e. registration# PA0002107340 which transfers "by written agreement" the rights of the listed authors to the listed copyright claimants. This is intended to undercut the argument by StarDock that this was some kind of joint work and/or that Paul & Fred were employees of Accolade rather than independent contractors (this being a claim StarDock has made in an attempt to ensure that their purchase of the Star Control trademark and its backing assets would include Star Control 2).
Stardock is trying to use these new release agreements to say that the employees owned copyrights until a few months ago (really unlikely).
Were they employees of Paul & Fred, or were they themselves independent contractors? I have a feeling the answer is "we didn't document anything very well", hence the necessity of this assignment (which they didn't have to do and was very nice of them, I might add). That, however, doesn't change anything as far as what rights StarDock has: if they were employees of Paul & Fred then Paul & Fred own it all per the terms of their licensing agreement, and if not then they owned everything severally and Accolade had no legal right to any of the audiovisual or textual assets used.
TL;DR You're wrong on some points, and if I come off sounding like a dick it's only because your post could cause confusion to the detriment of Dogar and Kazon, so apologies in advance.
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Shiver
Frungy champion
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Sheesh, the amount of people who only joined the UQM forums to circlejerk on the settlement case disturbs me. Any of you only-one-post-histories want to talk about UQM, HD-Mod, HD-Remix, UQM-Extended, or the MegaMod? How about the new custom border system I've been cooking up to make modding easier? Or has the UQM forums become the sister site to the subreddit where the only discussion that gets any traction is bitching about Stardock?
For most of us, nothing much has happened for many years and this is the only news. I am not disparaging your work. The bulk of our visitors in the past were people new to the series trying UQM at a friend's recommendation, or using it to re-play SC2 one more time. Mods and other fan content appeal to only a fraction of the visitors, and most of the ones who do try other things don't stick around long. I had to get used to this too back when #uqm-arena was semi-active. Net melee was very, very niche.
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Elestan
*Smell* controller
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Posts: 431
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Sheesh, the amount of people who only joined the UQM forums to circlejerk on the settlement case disturbs me. Any of you only-one-post-histories want to talk about UQM, HD-Mod, HD-Remix, UQM-Extended, or the MegaMod? How about the new custom border system I've been cooking up to make modding easier?
While this thread has more or less become the armchair lawyer water-cooler, there are others; feel free to start one. :-)
Or has the UQM forums become the sister site to the subreddit where the only discussion that gets any traction is bitching about Stardock?
While I understand your frustration as MegaMod's maintainer, this lawsuit is by far the most significant event since the UQM project was founded, and if Brad were to successfully get all the trademarks he's claiming, he could potentially order this forum shut down and kill the project. So, I think it's only to be expected that the lawsuit will continue to dominate discussions here until it is concluded.
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gnunk
Zebranky food
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Posts: 7
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Sheesh, the amount of people who only joined the UQM forums to circlejerk on the settlement case disturbs me. Any of you only-one-post-histories want to talk about UQM, HD-Mod, HD-Remix, UQM-Extended, or the MegaMod? How about the new custom border system I've been cooking up to make modding easier? Or has the UQM forums become the sister site to the subreddit where the only discussion that gets any traction is bitching about Stardock? For most of us, nothing much has happened for many years and this is the only news. I am not disparaging your work. The bulk of our visitors in the past were people new to the series trying UQM at a friend's recommendation, or using it to re-play SC2 one more time. Mods and other fan content appeal to only a fraction of the visitors, and most of the ones who do try other things don't stick around long. I had to get used to this too back when #uqm-arena was semi-active. Net melee was very, very niche.
This. In my case I picked up SC2 from a retail store (back when that was still a thing) around '94 or so. This was also back when the lander bug was still a thing. I played it through, had my fun, and back to the shelf it went, only to come down maybe once a year to do a playthrough because its still fun. Fast forward to a few years ago when I started using Debian full time and found out about UQM, the HD mod, and more recently Project 6041. I've been lurking the forums ever since. It took the lawsuit to get me to sign up, though, but only because there's so much bullshit flying around I just had to say something. In any case, if people don't want to talk about it, then be the change you want to see.
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rosepatel
*Many bubbles*
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Posts: 157
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TL;DR You're wrong on some points, and if I come off sounding like a dick it's only because your post could cause confusion to the detriment of Dogar and Kazon, so apologies in advance.
Everything you posted was right. I was trying to simplify it and it was ultimately sloppy. My overall point is that when people do work for each other, they write agreements to remove all doubt about their respective roles. If P&F hadn't signed anything with Accolade, there might be an assumption that they were employees. Since they signed something, they clarified that they weren't employees, that they were independent contractors, and even clarified that P&F would own the copyright.
There's nothing in writing for the people who did work under Paul and Fred, so that's a presumption that once again works in P&F's favor. The fact that these third parties signed something a few months ago doesn't mean these third parties ever owned Copyright, only that they are removing all doubt that P&F own the Copyright.
General comment to who it may concern: I think people have been pretty courteous and focused, with most trolling getting checked. If anyone is annoyed by the legal discussion, this is really the main thread (and one of the only threads) about it. No one is spamming. No one is making you read it. It is very easy to just not read this thread if you're not interested.
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« Last Edit: July 11, 2018, 07:24:29 am by rosepatel »
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Elestan
*Smell* controller
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Returning to the main topic of this thread (sorry Serosis), it looks like we have our first formal opposition at the trademark office; it's Stardock, opposing P&F's "Ghosts of the Precursors" trademark.
Their opposition argument is about what one would predict from the discussion to date; they claim common-law trademark on the word "Precursors" stemming from the sales of the original games:
2. Since the release of the Classic Star Control Games in as early as 1990, the PRECURSORS Mark has been in use in U.S. commerce through the publishing and sale of the games, as first distributed by Accolade and then by Atari. Stardock has continued to use the PRECURSORS Mark in U.S. commerce via its own marketing, advertising, promotion, distribution and/or sale of the Classic Star Control Games. The rights and goodwill established from such use has inured to Stardock’s benefit. Such use of the PRECURSORS Mark in connection with at least one of the Classic Star Control Games is exemplified in Exhibit A attached hereto and incorporated herein by reference.
Exhibit A is a page from the Star Control 3 manual; I'm not sure how strong a demonstration of trademark use use a mention in the interior of a manual is, but I would think that materials not visible to the purchaser prior to their purchase would be less compelling.
So it seems that they are actually attesting to these marks being in continuous use. It will be interesting to see how they support this, given the lack of sales from 2001-2010.
However, proceedings at the trademark board may not go very far; one of the documents pointed at a section of that trademark proceeding rules indicating that proceedings may be suspended if there is litigation in progress - a sensible measure, given that they would essentially be trying the same facts.
In other news, amended pleadings are due on Monday. For anyone familiar with litigation, would it be expected to see significant revisions to their earlier filings? Are there any limits to the extent of such revisions? That is, is there any rule prohibiting a party's earlier briefs from being entirely irrelevant or misleading, allowing them to blindside the opposing parting with their final submission? Or would a judge slap them down for that and/or give the opposing party an extra chance to revise their arguments to match?
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