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

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Author Topic: Stardock Litigation Discussion  (Read 50001 times)
Elestan
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Re: Stardock Litigation Discussion
« Reply #255 on: August 24, 2018, 04:07:23 pm »

If the old "Star Control" trademark were to be cancelled, and a new one issued based on SC:O, I really doubt that you could find a single fan who would decide not to buy it as a consequence.  And if that's the case, are you really getting a good return on the money you're diverting to pay the lawyers?
By that argument, Paul and Fred should just drop their claims. Why not just get rid of the concept of IP entirely? Eliminate spending money on lawyers entirely.
You're fabricating a strawman argument to kick.  My argument was that this particular trademark could be easily replaced without any practical consequences.  How is SC:O any worse off if it's protected by a new "Star Control" trademark instead of the old one?
That's not a strawman. You are arguing that we should give up something based on whether its value exceeds the cost to keep it.  Correct? By that argument, what justification do Paul and Fred have then?  We actually have a registered trademark we're defending.  We have no interest in using any copyrighted material they might have so why not ask them the same question.  We just want them to quit infringing on our trademark.

The two are not equivalent.  Regardless of your intentions, P&F need their copyright to defend their IP from others who might infringe it.  But your new "Star Control" trademark can defend SC:O and all of your future games in the "Star Control" brand just as well as the old one could.  It just couldn't be used to pick fights over the old games, in effect formalizing the assurances you had previously given P&F about allowing them to continue their story independently.

My point is that this legal "association" with the old games makes no practical difference to your sales.  The only people who will even think about it are hard-core fans, most of whom have already made up their minds.  If anything, trying to insist on that association is alienating the fans who don't accept it and costing you sales.  So I just don't see how spending even more money paying lawyers to fight over it is in the best interests of your company, or its employees.  That money could be making games.
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Re: Stardock Litigation Discussion
« Reply #256 on: August 24, 2018, 04:34:12 pm »

We will just have to agree to disagree.
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Re: Stardock Litigation Discussion
« Reply #257 on: August 24, 2018, 04:59:04 pm »

I agree with Elestan.
If you had stuck to "we're only referencing the old game series, but build a new lore, new universe, new races, new characters and just slap the good trademark StarControl on it", I'm pretty sure I would have made sure to put my hands on it.

But with this encroaching on the IP of others, and filing for trademarks which have only relation to the old game series and the UQM project, StarDock lost me.

IF FF and PR would publish GotP as payable DLC for Stardock's engine, it would show that they must've found an agreement with you, and I'd likely still get your game, but such as it is, I'll wait for a time when it's in the cheap discount corner (or buy a used copy/license  (which is my right in the EU - despite what any of the license agreements say, US companies ship their games with)).
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rosepatel
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Re: Stardock Litigation Discussion
« Reply #258 on: August 24, 2018, 05:29:13 pm »

Just a couple notes about settlements:

* Lawyers usually have several cases, sometimes dozens, on their plate. Typically, they work on a litigation file a couple weeks out from the next hearing. Which means, typically, the file sits collecting dust for sometimes months at a time. Lawyers aren't really spitballing ideas. A lawyer would only pick up the phone if a party asked them to, and would only call a party if a deadline was coming up. Basically, the lawyers work for the parties. It's on the parties to settle.

* A lot of mediators lean hard on the "separate them between two rooms" technique, for two reasons. One is to take any of the emotion out of it, and the other is to be able to hear things that they might not say in public. In private, someone might say "I might be willing to accept a lot less than $295,000, but that depends on a lot of things, and for now, you can tell them my price is $295,000." I personally think the parties can gain a lot from being in the same room, learning to talk to each other in a civil way, checking each other's most unreasonable and inaccurate assertions, and arriving at something resembling an agreed understanding of the facts. I think that can allow the mediator to push the parties more in private, to say "hey, you're not going to be able to push that narrative in court without a fight. You have a risk." But even in private, a mediator might find that the parties are being incredibly stubborn, and not deviating from their public talking points.  Also, a judge is not the same as a professional mediator, who might be hired to put in a full 8 hour day on a settlement. A judge is funded by the public, and will put in less time. They only have time to make a token push towards a settlement.

* I don't see how the judicial order interferes with settlement talks. After the published settlement that asks Paul and Fred to cede all intellectual property to Stardock, the judge asked the parties to keep it confidential. We still see Stardock leaking ideas, and they're generally bad. One idea leaked was Paul and Fred licensing the alien Trademarks from Stardock, which effectively legitimizes Trademark applications with major problems, let alone Trademarks that wasn't listed in the asset purchase agreement from Atari. As much as Stardock wants the aliens, and as much as Paul and Fred want to refer to Star Control, we know that a fair compromise is based in reality: Trademarks to Stardock, and Copyrights to Paul and Fred. Everything else (where do we sell the games? do we sell the games? where do you draw the line between fair use and infringemet? how do we minimize interference between our marketing?) is just details.

* If the parties genuinely wanted to settle, they could agree to hire a professional mediator, sit down for a day or two, and potentially hash it out. This costs a lot of money. But a lot less than a lawsuit, which only costs less than losing a lawsuit.

* I honestly have no idea that the parties are talking about a settlement. At this point, Stardock might have just removed the names once they realized that it would be a factor that could lead to a finding of copyright infringement against them. There might not be any conversation behind the scenes. Still, I think it's a welcome development. It ratchets down the conflict. And I think that people should show respect for the wishes of other artists, regardless of what's technically legal.
« Last Edit: August 24, 2018, 05:36:20 pm by rosepatel » Logged
Lakstoties
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Re: Stardock Litigation Discussion
« Reply #259 on: August 24, 2018, 05:37:46 pm »

Ultimately, it's been Stardock's approach to all this that's soured my opinion the most.

I originally (Pre-October 2017) very interested on how Stardock would roll with the "Star Control" name.  Prequel-ish Reboot concept meant a good fresh start overall.  Stardock has talent in many areas and given the general concept and idea for the structure of the game, they should be able to fill it with their own unique creations and establish them own take of it all.  Stardock maintains a very loyal fan base that really want Stardock styled games.  So, I was willing to see what they would do with it all and what they would create.  Then, the Ur-Quan Masters trademark filing appeared...  And the decline started... and here we are.

Stardock does NOT need the old copyrights and it does NOT need to trademark anything from the old content.  Fred and Paul do NOT need the "Star Control" trademark.  Trademark fair use doctrines, the Rogers Test, the Eight Sleekcraft factors, and numerous court cases that spawned the former support this.  Despite what Stardock may file to trademark, the trademark cannot impede freedom of expression within copyrighted works, as much as use of terms within a copyrighted mostly is never seen as causing trademark confusion/infringement.


Here's the personal opinion part on why Stardock should move on, and just rock their own thing free from originals:  Anything Stardock does in relation and association with the content from Star Control 1 and Star Control 2, without the blessing of Fred and Paul, is going to feel like fan fiction.  Maybe good fan fiction, but still...  It's going to exist in a weird quasi-state that won't feel full and proper.  We all know what happened with the "third-that-shall-not-be-mentioned", despite efforts from a company that made some fun games.  (Still have a special spot for Superhero League of Hoboken.)  So, Stardock should just break free from the past, run with its own creations, and bring it up to their own standards free from the shadows of the past.  You aren't going to catch lightning in a bottle again, if you are standing where the storm has moved on from...  You have to go where the storm is for the chance to catch that lightning again.  Stardock needs to be innovative to thrive in this market these days, and it seems like a needless limitation to hold itself to standards of the past that aren't their theirs to hold themselves to.  My advice to Stardock is to break free and walk your own path as you have before...  No one will fault for it and many will praise you for doing so, and you'll be able to dedicate your resources towards greater things and far more fun things.
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Re: Stardock Litigation Discussion
« Reply #260 on: August 24, 2018, 06:09:31 pm »

You aren't going to catch lightning in a bottle again, if you are standing where the storm has moved on from...  You have to go where the storm is for the chance to catch that lightning again.  Stardock needs to be innovative to thrive in this market these days, and it seems like a needless limitation to hold itself to standards of the past that aren't their theirs to hold themselves to.

Although you probably didn't mean it that way (as you were probably referring to SC2's story and not the gameplay), it sounds like "forget about the past, go with the current trends on the market". Except that it's exactly what most companies already do and have always done. While there is currently a resurgence of "retro" games, there are still too few games that really play like the masterpieces of the 80s and the early 90s. So I think that there's a lot to learn from the past - specifically how that lightning in a bottle was caught in the first place by so many different game developers of that era. Smiley
« Last Edit: August 24, 2018, 06:15:31 pm by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #261 on: August 24, 2018, 06:13:33 pm »

I agree with Elestan.
If you had stuck to "we're only referencing the old game series, but build a new lore, new universe, new races, new characters and just slap the good trademark StarControl on it", I'm pretty sure I would have made sure to put my hands on it.

But with this encroaching on the IP of others, and filing for trademarks which have only relation to the old game series and the UQM project, StarDock lost me.

IF FF and PR would publish GotP as payable DLC for Stardock's engine, it would show that they must've found an agreement with you, and I'd likely still get your game, but such as it is, I'll wait for a time when it's in the cheap discount corner (or buy a used copy/license  (which is my right in the EU - despite what any of the license agreements say, US companies ship their games with)).

I'm pretty sure that the IP encroachment began with Paul and Fred claiming to be the true sequel to Star Control using the Star Control II box.  When Stardock asked that they cease and desist they refused (and again, this is all in the court filings) which led to Stardock filing a complaint.  Rather than agreeing to stop at that point, they sought to cancel Stardock's Star Control mark along with a lot of very public, very nasty (such as calling me, by name, a thief) PR. It's cause and effect in play.

At this stage, the ball is really with Paul and Fred.  There is nothing in Star Control: Origins they could possibly (well reasonably) object to.  On the other hand, if they want to associate games with Star Control, they do need our permission.






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Re: Stardock Litigation Discussion
« Reply #262 on: August 24, 2018, 06:28:35 pm »


The settlement conference was not what one might expect.  The two parties were kept in different rooms. The judge, who is actually quite famous from the Apple/Samsung case, would then talk to each party and convey what the other said. Other than a few polite greetings we never got to talk to each other.  

I’m sure the courts have a rationale for the way they do it. But I was expecting the parties to basically be put into a room and hammer it out.


Interesting. I think I definitely would have preferred the approach of both parties in the same room with the judge acting as a mediator to the discussions vs. separate rooms with the judge basically acting as a messenger back and forth.
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rosepatel
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Re: Stardock Litigation Discussion
« Reply #263 on: August 24, 2018, 08:25:58 pm »

I'm pretty sure that the IP encroachment began with Paul and Fred claiming to be the true sequel to Star Control using the Star Control II box.  When Stardock asked that they cease and desist they refused (and again, this is all in the court filings) which led to Stardock filing a complaint.  Rather than agreeing to stop at that point, they sought to cancel Stardock's Star Control mark along with a lot of very public, very nasty (such as calling me, by name, a thief) PR. It's cause and effect in play.

At this stage, the ball is really with Paul and Fred.  There is nothing in Star Control: Origins they could possibly (well reasonably) object to.  On the other hand, if they want to associate games with Star Control, they do need our permission.

At best, it's debatable. Even if you ignore the fact that, just before the GOTP announcement, Stardock submitted the Copyrighted games to Steam while P&F was explicitly telling them that they don't have the Copyright license, you still have drips and drops of information that suggest potential Copyright infringement in the game. Journalists report Stardock is making a prequel -- which is near unheard of without a Copyright license. At that point, it's impossible to see what Stardock is putting in their unlicensed prequel, but you're hearing people talk about the game taking place just after the Androsynth rebellion, you have Super Melee, you have the Dreadnaught and the Eluder ships quietly being added to the game.

If you told me that's a pretty trivial amount of stuff to copy from a game and probably doesn't cross the line into infringement, I'd probably agree with you. But there'd still be a prima facie case for copyright infringement, because there's copying.

If you told me that the game didn't exist yet and hadn't been released, I'd probably agree with that too, and it's hard to sue someone for Copyright infringement before you've seen the game. By the same token, it's hard to sue someone for Trademark infringement when they don't have a box to put your Trademark on, let alone any product at all.

The real point is:

* Trademark and Copyright try to be clear, but get fuzzy when the IP rights to a product are split between two owners.
* Encroachment between both sides was near inevitable.
* Nobody died.

To this day, most of this stuff could be walked back. And as of a few days ago, all of it has. There's no more announcement from P&F or Stardock that connects Star Control and GOTP. There doesn't seem to be a shred of content from SC2 in SC:O (though we'll see if they try to get cheeky with references to SC2). The old Copyrights are no longer on sale. Stardock is saying there's nothing for P&F to object to, and you have to ask what Stardock is still objecting to now that both sides have edited themselves and taken a big step back.

If they both got on the phone and said "this is the new status quo. Same as the old status quo. Let's keep it that way", they could wrap this up before SC:O goes on sale. The PR would be so good you'd almost ask if P&F and Stardock staged a giant legal battle just for the publicity.  Roll Eyes Grin
« Last Edit: August 24, 2018, 08:28:57 pm by rosepatel » Logged
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Re: Stardock Litigation Discussion
« Reply #264 on: August 24, 2018, 09:24:03 pm »

Although you probably didn't mean it that way (as you were probably referring to SC2's story and not the gameplay), it sounds like "forget about the past, go with the current trends on the market". Except that it's exactly what most companies already do and have always done. While there is currently a resurgence of "retro" games, there are still too few games that really play like the masterpieces of the 80s and the early 90s. So I think that there's a lot to learn from the past - specifically how that lightning in a bottle was caught in the first place by so many different game developers of that era. Smiley

I agree there's a lot to learn form the past.  And I'd push the analogy further to say it's still the same storm as the past, but it's no longer over the same area any more.  Hence, you need to move on to capture the lightning from that storm.  Take the lessons of the past, abandon the present familiar, and explore the unknown future.

On the other hand, if they want to associate games with Star Control, they do need our permission.

And this is the crux of the issue entirely here.  To what degree of association is Stardock wanting to permit and what degree of association is permitted by law.  There's a difference here.

Should Ghosts of the Precursors be allowed to be branded, advertised, and title it on the OUTSIDE as a "Star Control" game in the market in a manner to indicate the source of the product without Stardock's permission?  No.  That would be a textbook trademark infringement.  Putting the "Star Control" trademark upon the product is a no go.  That's actually what a lot of trademark cases end up being, comparison of trademarks between companies on their products and if the similarities between caused confusion.  See the Adidas America v. Payless Shoesource for an example of trademark infringement:  https://www.finnegan.com/files/Upload/Incontestable_Oct08_1.html

Can Paul and Fred refer to, compare against, and talk about "Star Control" term in a factual, non-trademark manner, a manner that does not use the trademarked term to indicate another product's source?  Yes.  By trademark law you are allowed to refer to another party's trademarks so long as they are not explicitly used as trademarks, source indication, upon your own products.  You are allowed to compare against even a direct competitor, this happens all the time with store brands putting the other trademarked competitor terms right in their labeling literally saying "Compare us to brand X!"  When it comes to terms within creative works and titles of creative works, you are allowed to talk about the trademarked terms and refer to the them in a non-trademark manner, hence not using it as a source indicator for the work.  Anything preventing that would be a First Amendment violation as there would be a federal mechanism limiting freedom of expression, a point that has created a lot of fair use doctrines used with trademark law.

Hence, Paul and Fred can say, "Ghost of the Precursors will be its own, separate continuation of the story from "Star Control 2 -- The Ur-Quan Masters", the game we worked on in the past."  They are allowed to refer to  the "Star Control" term as it is the title of their copyrighted work.  Also there's some possible literature that states if a party was allowed at one point to use the trademark upon a product, they cannot technically infringe upon that trademark in the future for that past product.  (Admittedly it seems more geared towards physical products, but it could be argued.)  They would NOT be representing their new game as a "Star Control" game, hence not using the term as a trademark to indicate source of another product.  Finally, since Paul and Fred own the copyrights to Star Control 2, they are granted protections by law to prepare derivative works based on those copyrights.


So from my perspective, Paul and Fred don't need Stardock's permission to do what they were already doing...  making Ghosts of the Precursors as a separate continuation of the story line from their previous game.
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Re: Stardock Litigation Discussion
« Reply #265 on: August 24, 2018, 09:27:50 pm »

that would be very expensive publicity....
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Re: Stardock Litigation Discussion
« Reply #266 on: August 24, 2018, 09:54:31 pm »

I'm pretty sure that the IP encroachment began with Paul and Fred claiming to be the true sequel to Star Control using the Star Control II box.  When Stardock asked that they cease and desist they refused (and again, this is all in the court filings) which led to Stardock filing a complaint.

People who have been following these threads for a while might remember something you said back in March in another thread.

When they filed a DMCA take-downs against Star Control 3, a title that Stardock literally holds the copyright for we realized that this had to be resolved via litigation.

This is a little inconsistent. But anyways, from re-reading the amended Stardock complaint, it is not actually clear to me what they have continued to refuse to cease and desist from that Stardock has demanded. The only thing that jumps out is that they still refer to themselves as "the Creators of Star Control".

Clearly I must be missing something, perhaps you could point it out.

Rather than agreeing to stop at that point, they sought to cancel Stardock's Star Control mark along with a lot of very public, very nasty (such as calling me, by name, a thief) PR. It's cause and effect in play.

Given the aggressive nature of the Stardock initial filing, I suspect many would need to see some correspondence from Stardock between the period of the filing and the counterclaim filing to form an opinion as to whether "agreeing to stop" was an option, of if their only realistic response was an equally aggressive counter.

I imagine they felt as outraged by a lawsuit trying to make a legal claim that they didn't create Star Control as you did being called a thief. One of those things preceded the other. There's some common ground to work from there!

If this case actually goes to trial, regardless of what happens with the trademark claims, you must realize Stardock will almost certainly be found to have acted improperly when putting the classic games up on Steam (even Star Control 3). Unless the buck for that decision stopped somewhere else, despite the fact there are no meaningful financial penalties to worry about, that's kind of an albatross to hang around your neck. In that scenario "software pirate using someone else's wares to market their own game" doesn't exactly sound better than thief.

At this stage, the ball is really with Paul and Fred.  There is nothing in Star Control: Origins they could possibly (well reasonably) object to.  On the other hand, if they want to associate games with Star Control, they do need our permission.

Even after the original alien/universe entity name infection happened, I doubt Stardock had any realistic fear of an injunction against launching Star Control: Origins. But including it would have been poor judgement, if just for the small, but non-zero risk of a jury finding it infringing on elements of the SC2 copyrights. And unlike the Steam release of the classic games, that could have been ruinous to Stardock. Pulling that stuff was the only rational move while there is still ongoing litigation.
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Re: Stardock Litigation Discussion
« Reply #267 on: August 25, 2018, 12:18:16 am »

Prequel-ish Reboot concept meant a good fresh start overall. 

Journalists report Stardock is making a prequel --


Just in the interest of precision, SCO has been described,1 marketed2 and/or sold3 as a4 prequel5 by Stardock for quite some time.

The "prequel" language persisted until November 2017, when Stardock made a Slylandro turn and adopted its current position that SCO is not a prequel at all. I imagine that we have lawyers to thank for that...

---

[1] "The new Star Control is a prequel. It takes place before the events of the original series."

[2] Linking to an article which: (a) repeatedly discusses SCO as a prequel; (b) contains art from SC2; and (c) a statement from PaulReiche regarding his rights which is substantially the same as the one he made in 2013.

[3] "Set as a prequel before the original series..."

[4] "According to Stardock CEO Wardell [in this 2014 interview], the new game will be a prequel." The article also explains how SCO's universe is purportedly connected to that of SC1 and SC2.

[5] "The new Star Control prequel also takes place in its own universe.  That doesn't mean it's a universe without the Spathi and Ur-Quan and so forth.  But if you run into them, it won't be until at least 2122 (after this prequel takes place and only if Paul and Fred are involved in that story)."
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Re: Stardock Litigation Discussion
« Reply #268 on: August 25, 2018, 10:31:35 pm »

You know what's a bummer? We can't discuss settlement offers anymore
Yeah you can, the court order applies to public disclosure, there is no legislation in the United States forcing you to peruse this legal action that you don't want to peruse, you and F&P are free to drop the entire case, at literally any time, upon any basis you all decide up until before the trial. This is why I don't give you the benefit of the doubt anymore because in the best case scenario, you're just as inexperienced as F&P, and in the worst case scenario you're dysfunctionally manipulative, there just aren't many possibilities left for you after this much time and I even used to side more with you.
« Last Edit: August 25, 2018, 10:51:50 pm by CommanderShepard » Logged
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Re: Stardock Litigation Discussion
« Reply #269 on: August 25, 2018, 11:39:48 pm »

In what way would spitballing ideas publicly possibly enable a settlement? You aren't negotiating with the public -- we have no say in the matter. If you have an offer, you can still bring it to the opposing side of the dispute. Speaking publicly serves no real purpose other than trying to do PR for your company, which is fine, but there isn't any relevance here to a legal conclusion.

I’m not talking about Stardock (or PF) posting proposals. I am talking about Stardock (or PF) being able to participate in any of the many, many discussions and opine on various ideas that are posted to speed up the process. If you think lawyers “spitball” proposals back and forth you would be mistaken.  It’s a slow, arduous process. If you look back at the start of all this, I suggested PF and I talk to each other. I think you might be surprised at how much the system works to prevent direct discussions.
I didn't say anything about how I thought the negotiation process between your lawyers worked. I only suggested that a restriction on your ability to discuss settlement matters with the public doesn't seem to have any bearing on whatever that negotiation process is and how it plays out. You're making a claim that "participating in the ... many discussions ... that are posted" will "speed up the process" -- if you're not participating in public discussions by offering actual proposals to the other side (as you sensibly deny intending), then I don't see how you would be doing anything but stirring the pot and doing PR. If you are having difficulty communicating with the other side, talking to us (the public) is not a substitute.
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