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

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Author Topic: Stardock Litigation Discussion  (Read 50898 times)
Elestan
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Re: Discovery Order
« Reply #30 on: July 21, 2018, 03:40:35 am »

This bit reads to me as though the judge is likely to eventually allow the subpoena of Singer & Associates to go through. Am I off base? If not, I hope whatever emails got passed back and forth between F&P and this company are nothing too scandalous. Stardock seems to think they must be.

Brad has made comments implying that he thinks the PR firm is setting up sockpuppets on the various social media forums.  If that's actually true, I'd like to see them exposed.  Certainly someone at the PR firm exercised poor judgement, as evidenced by the infamous "Brad Wardell will be publicly humiliated" tweet that they apparently sent without P&F's approval.

I have a low regard for PR firms in general, so I'm not inclined to be sympathetic to them.  But P&F apparently severed ties with that firm after about six weeks, so if some kind of dirty laundry does come out, my main focus is going to be on whether it's fairly attributable to P&F, or if it's just one of the PR firm's people being an idiot.
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rosepatel
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Re: Stardock Litigation Discussion
« Reply #31 on: July 21, 2018, 04:36:35 am »

Yeah, I haven't been impressed with the PR firm either. I think the biggest irony is the biggest PR blasts actually caused self-inflicted damage, and that goes for both Toys for Bob and Stardock. In hindsight, both sides could have stood to say a lot less.

I honestly prefer the fan conversation. There's some jerks around here too, no doubt. But we're pretty good at self moderating.
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Elestan
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Re: Stardock Litigation Discussion
« Reply #32 on: July 21, 2018, 08:39:28 am »

Stardock and P&F have released their presumably final amended Complaint and Countercomplaint.  Many thanks to Yazman for providing me copies.  I've only had time to give them each a quick read, so these thoughts are only preliminary, and mostly only focus on things that are new in these revisions; I'll do a more thorough read in due time.

* One thing I did not find:  Any explanation for Brad's inflammatory email assertion last October that the 1988 agreement was still active.  At this point, I presume that means they have concluded that those assertions were unsupportable.  They actually skip over that entire part of the chronology, presumably because showing that Brad made those statements would be unhelpful.

Okay, I was just doing some re-reading of the briefs, and noticed a bit of wording that smells...sneaky.  I think I might have just figured out how Stardock is trying to claim that the1988 agreement is still active.  Buckle your seatbelts, because this gets pretty twisted::

Quote from: ¶17 of Stardock's complaint
Separate from the license grant, as defined in the 1988 Agreement, the 1988 Agreement also provided to Accolade  the sole and exclusive right to create computer software programs based on or derived from any characters, themes, settings or plot lines from the Classic Star Control Games and any translation, port or adaptation of the Classic Star Control Games in exchange for the payment of certain royalties to Reiche. (emphasis added)

This language seems to be pulled from the rights grant for "Sequels" in §3.3.
This language seems to be pulled from the definition of "Sequels" in §1.10.
This language seems to be pulled from the definition of "Derivative Work" in §1.5.

So Stardock is specifically claiming that their Sequel rights are separate from the license grant.  Why would they do that?  Let's take a look at the relevant definitions:

Quote from: 1988 agreement §1.2
"Licensed Systems" shall mean the computer systems on which the Work shall be initially developed by Developer and specified in Exhibit A.

Quote from: 1988 agreement Exhibit A
Licensed Systems:  IBM PC, Tandy computers, and 100% compatible computers

Quote from: 1988 agreement §1.5
"Derivative Work" shall mean translation, port or adaptation of the Work which will operate on video and dedicated electronic game systems, arcade coin-operated video systems, optical media, computers or operating systems other than Licensed Systems, hereinafter referred to as Derivative Systems and Cluebooks for the Work and Derivative Work. (emphasis added)

Note the emphasized text; the contract's definition of "Derivative Work" excludes programs developed for PCs.  It's also defined in a way that makes it much narrower than the normal, copyright-law-based definition of "Derivative Work".  It seems to mainly be intended to mean ports of the original games to other platforms.

Quote from: 1988 agreement §1.10
"Sequels" shall mean any computer software programs that are based on or derived from any characters, themes, settings or plot lines from the Work.

So "Sequels", while they are certainly "derivative works" under copyright law, are arguably a disjoint category from "Derivative Works" as defined in the contract.  A new game based in the Star Control 2 universe would then be a "Sequel", and a "derivative work" (by copyright), but not a "Derivative Work" (by contract).

How does that change the effect of the contract? 

Quote from: 1988 agreement §2.2
Sales Term:  This License Agreement shall continue in effect with respect to the sale, licensing and sublicensing of each Work, Derivative Work and Derivative Product, for as long as such Work, Derivative Work, and Derivative Product are generating royalties to the Developer of $1000 per annum.

Note that there is no mention of Sequel rights.  One could infer, based on the fact that Accolade came back to Paul for a license when they wanted to make SC3, that Accolade believed that the Sequel rights also terminated.  If that was the intent of the parties, then this omission was simply a mistake.  To me, that best fits the "common sense" test:  Given the rest of the language in the contract designed to carefully limit the term and scope of the copyright grant, it seems wildly incongruous to think that Paul would have agreed to giving Accolade perpetual Sequel rights.  But if you want to ignore all of that and just mechanically look at the wording, there's a way that one could try to argue that this termination condition doesn't apply to Sequels.

Quote from: 1988 agreement §7.1
Termination Upon Bankruptcy of Publisher.  If Publisher shall become bankrupt and/or if the business of Publisher shall be replaced in the hands of a receiver, assignee or trustee in bankruptcy, whether by voluntary act or Publisher or otherwise, then unless such bankruptcy shall be terminated within ninety (90) days, all rights to all Work or Derivative Work shall revert to Developer.

Again, note that there is no specific mention of Sequel rights, so the same argument applies as above.

So while I think the intent of the parties suggests that the Sequel rights terminated along with the rest, it's possible, if you squint, to read the contract in a way such that they would bypass these two termination conditions.

However, the termination language added in Addendum 3, §4.1 seems stronger, and is pretty clearly designed to completely sever the entire agreement if Accolade didn't publish a new Star Control game between 1998 and 2001 (which they did not).  So it seems like that kill-switch still would have gone off.

So there's the theory...what do people think?
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tingkagol
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Re: Stardock Litigation Discussion
« Reply #33 on: July 21, 2018, 09:59:52 am »

I have no opinion other than Stardock is really trying hard to find possible loop holes in the 88 agreement to justify it still hasn't terminated.

Anyway, I just saw them post pictures of the Chenjesu and Arilou. Really says something about the company despite the ongoing litigation. I sure hope this dispute will have a happy ending for P&R.
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CommanderShepard
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Re: Stardock Litigation Discussion
« Reply #34 on: July 21, 2018, 10:58:18 am »

I have no opinion other than Stardock is really trying hard to find possible loop holes in the 88 agreement to justify it still hasn't terminated.

Supposedly there wasn't actually an single "1988 agreement" but rather two. It's definitely a risk if Stardock also doesn't know, but Stardock is also confident that any alleged agreement never granted Fred and Paul the trademarks to the races and ships since usually no one trademarks every name used in a game. Either side could still win the trademark dispute to those races because either can argue that the races have a strong association with their brand, which is probably why both sides claim those races.


Brad has made comments implying that he thinks the PR firm is setting up sockpuppets on the various social media forums.
He had claimed FP intentionally tried to damage Stardock's reputation with outlandish statements and sockpuppets which seems somewhat unrealistic, but it wouldn't be impossible for a PR firm to do that on their own, many PF firms use tactics like that. Not that it's entirely relevant since Stardock originally supported the Ghost of the Precursors though, but Stardock's biggest claim in all this, besides the trademark to "Star Control," is trademark infringement. Fred and Paul thought it would be fair to advertise the "Star Control" title when they originally released their Ghost of the Precursors purely as a reference to their past work (and they've already gotten rid of that title image), which artists are in fact allowed to do.

Stardock argues that people then confuse elements of Stardock's Star Control: Origins for elements of Ghost of the Precursors which constitutes trademark infringement. That on its own is reasonable at first, I was somewhat confused too, but, Fred and Paul have repeated stated that they don't want the Star Control trademark and so it seems to be a misunderstanding on Stardock's part, not to mention Fred and Paul have the right to celebrate the anniversary of their story.
« Last Edit: July 24, 2018, 07:33:41 pm by CommanderShepard » Logged
Death 999
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Re: Stardock Litigation Discussion
« Reply #35 on: July 21, 2018, 03:39:46 pm »

I have no opinion other than Stardock is really trying hard to find possible loop holes in the 88 agreement to justify it still hasn't terminated.

We really don't know what's in that agreement though.

What do you mean? Elestan linked it at the top of his post. It's right there on courtlistener.com.
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Yazman
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Re: Stardock Litigation Discussion
« Reply #36 on: July 21, 2018, 07:43:11 pm »

Quote from: Shiver
This bit reads to me as though the judge is likely to eventually allow the subpoena of Singer & Associates to go through. Am I off base? If not, I hope whatever emails got passed back and forth between F&P and this company are nothing too scandalous. Stardock seems to think they must be.

Essentially correct. More specifically that she's narrowly interpreting these privileges means that anything sought to be protected by them must very strictly fall under the relevant criteria required for protection. She isn't going to allow a significant amount of material to be protected here so they'd better have some bloody good arguments if they plan to argue for stuff that might not strictly be covered, because otherwise she probably isn't going to allow them to be protected. Basically they have to show pretty strict adherence to the necessary elements.
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CommanderShepard
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Re: Stardock Litigation Discussion
« Reply #37 on: July 21, 2018, 08:01:51 pm »

What do you mean? Elestan linked it at the top of his post. It's right there on courtlistener.com.

I don't mean a twitter post I mean the actual documents, and not the Accolade publisher agreement, but I might be misinterpreting something, if you want to link to it directly. But we also see the terms Stardock purchased the trademark under.
« Last Edit: July 22, 2018, 03:41:22 am by CommanderShepard » Logged
Death 999
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Re: Stardock Litigation Discussion
« Reply #38 on: July 22, 2018, 04:16:04 am »

What do you mean? Elestan linked it at the top of his post. It's right there on courtlistener.com.

I don't mean a twitter post I mean the actual documents, and not the Accolade publisher agreement, but I might be misinterpreting something, if you want to link to it directly. But we also see the terms Stardock purchased the trademark under.

I wasn't talking about a twitter post. I was talking about

Quote
I think I might have just figured out how Stardock is trying to claim that the1988 agreement is still active.

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CommanderShepard
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Re: Stardock Litigation Discussion
« Reply #39 on: July 22, 2018, 04:19:33 am »

What do you mean? Elestan linked it at the top of his post. It's right there on courtlistener.com.

I don't mean a twitter post I mean the actual documents, and not the Accolade publisher agreement, but I might be misinterpreting something, if you want to link to it directly. But we also see the terms Stardock purchased the trademark under.

I wasn't talking about a twitter post. I was talking about

Quote
I think I might have just figured out how Stardock is trying to claim that the1988 agreement is still active.



That's very odd then, when I originally clicked on that link it linked to a twitter post.
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Elestan
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Re: Stardock Litigation Discussion
« Reply #40 on: July 22, 2018, 04:31:04 am »

That's very odd then, when I originally clicked on that link it linked to a twitter post.

I'm quite sure that I have never in my life linked to a twitter post,
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CommanderShepard
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Re: Stardock Litigation Discussion
« Reply #41 on: July 22, 2018, 05:11:41 am »

That's very odd then, when I originally clicked on that link it linked to a twitter post.

I'm quite sure that I have never in my life linked to a twitter post,

It's possible I opened another link without realizing it then only saw it after I clicked on your link.

From what I gather overall though, even though I can understand how Stardock might construe trademark infringement over that one Ghost of the Precursors post, it's also fair to say that artists have the right to simply reference their past work and Fred and Paul indicate in the post that they were just celebrating the anniversary of their story. Fred and Paul hadn't claimed Stardock's trademark, so when Stardock goes off on that vindictive rant in the complaint about how the evil Fred and Paul are doing everything just to deceive the public into hating Stardock, they're probably overreacting or dramatizing for profit.

On the other hand though, the DMCA was enforced because it is actually possible Stardock infringed on Fred and Paul's creative content by using their copyrighted material from what I see. It's understandable how there might have been confusion where it seemed Fred and Paul thought Stardock was trying to infringe on their literary universe, which Stardock was initially interested in, but ultimately chose a different universe. That wouldn't be correct of Fred and Paul currently, because Stardock should legitimately own the title SCO as an extension of the SC trademark, and if they don't, what did they pay $300,000 for?

That specific point may be murky from Fred and Paul's perspective though, because Stardock did originally try to beseech Fred and Paul about specifically using their alien races in the GalCiv III game which gives Fred and Paul the impression that SCO is a continuation of their original story, but it seems like Stardock was intent on respecting that rejection...until more recently.
« Last Edit: July 23, 2018, 11:57:29 am by CommanderShepard » Logged
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Re: Stardock Litigation Discussion
« Reply #42 on: July 22, 2018, 06:19:16 am »

I found the F&P are multi-millionaires bit kinda hilarious. Since Activision is a publicly traded company, you can easily look at the 10-K for that year and realize that the acquisition of TfB wasn't even a blip on their radar. I took a look at it a few years back and if memory serves I think it was low-mid seven figure deal, split to 3 owners, about 50-50 cash and stock. So, yeah, they probably made a cool million or two each (gross, with California taxes!), and I'm sure they're paid well as studio heads (though likely an order of magnitude or two less than the $12M a year the head of Blizzard makes), they're still as individuals probably nowhere near as well-off as Stardock, the company, or even Brad Wardell the person.
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Re: Stardock Litigation Discussion
« Reply #43 on: July 22, 2018, 06:59:28 am »

I found the F&P are multi-millionaires bit kinda hilarious. Since Activision is a publicly traded company, you can easily look at the 10-K for that year and realize that the acquisition of TfB wasn't even a blip on their radar. I took a look at it a few years back and if memory serves I think it was low-mid seven figure deal, split to 3 owners, about 50-50 cash and stock. So, yeah, they probably made a cool million or two each (gross, with California taxes!), and I'm sure they're paid well as studio heads (though likely an order of magnitude or two less than the $12M a year the head of Blizzard makes), they're still as individuals probably nowhere near as well-off as Stardock, the company, or even Brad Wardell the person.

The money may not have gone entirely to those three people, and if a company takes in a lot of money but also spends a lot of money, they don't stand to make a large profit, there's still many other variables, which is something that is true for either Stardock or Toys for Bob. From an artistic standpoint, I don't know if that's even relevant though, because not wanting someone to mess with your creative works is a common feeling for someone in any income bracket. Even though Joss Whedon is rich, it doesn't mean he wants some random company to start changing all the stories in Buffy.

But, we don't actually know that Fred and Paul are rich anyway, that just seems to be a random claim Stardock throws in, I don't see proof of it anywhere. I guess their tax returns could be subpoenaed but Stardock is already having enough trouble getting the subpoena for the Singers claim.
« Last Edit: July 22, 2018, 07:33:17 pm by CommanderShepard » Logged
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Re: Stardock Litigation Discussion
« Reply #44 on: July 22, 2018, 08:51:20 pm »

Paul and Fred are being sued personally. This lawsuit could cost them essentially their entire life's work, both their intellectual property, and their finances. The lawsuit could easily cost more than a million dollars. So even if they're millionaires, that's half of what they've been able to make in their life.

It's not even relevant to the lawsuit. It's just Stardock throwing stuff in, hoping to color the judge and the jury's perception of who Paul and Fred are: frauds who didn't make anything and have now launched a gofundme to swindle more people out of money they don't want to earn.

Anyone paying any amount of attention would see those attacks and draw more conclusions about Stardock for making them. But I wonder if an average gamer with no context would look at that and buy Stardock's narrative.
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