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Topic: Stardock Litigation Discussion (Read 130029 times)
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PRH
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Yeah, but Brad claims that Accolade already owned the race names as common law trademarks back in 1992, since the 1988 agreement stated that Accolade owned all trademarks connected with Star Control, and their ownership would not revert to Paul even after the agreement had expired. But that line of reasoning hinges on the idea that the alien names are trademarks. The sources I find also say that the names of fictional characters cannot be trademarks unless a product is being marketed branded with the character's name.
And even if they were trademarks, Atari allowed their use when F&P released the open-source version of UQM in 2001. The same also goes for "The Ur-Quan Masters" trademark. Even if Atari did own these marks, doesn't their permission to use them basically mean that they implicitly transferred these marks to F&P (since no formal licensing agreement was signed)? Note that they specifically said that UQM cannot use the Star Control mark, so the argument that UQM is just a fan project seems rather dubious.
On the other hand, there was a fan project called Ultima V: Lazarus which was basically a recreation of Ultima V on the Dungeon Siege engine. It did display the "Ultima V" and "Warriors of Destiny" titles (both marks were presumably owned by EA), and EA certainly did retain control of the Ultima mark.
So what is the legal status of fan projects? F&P in particular complained about the editing tools in SCO that would theoretically allow one to recreate SC2 in the SCO engine. Like I said before, I do not approve of their stance on that, but does it have any legal merit?
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« Last Edit: September 11, 2018, 07:03:38 pm by PRH »
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rosepatel
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Accolade didn't register those aliens as Trademarks. They didn't even so much as put a ™ to signify that they were an unregistered Trademark. When Atari sold its assets to Stardock, it listed one Trademark: "Star Control". And even the "Star Control" Trademark is in dispute, due to years of non-use.
At least with Star Control, Stardock picked it back up and started using it, and P&F didn't challenge it. (At least, not until Stardock sued them.) That gives Stardock a few years of uninterrupted, more-or-less peaceful use of "Star Control".
But even if you ignore that the the aliens were never used as source identifiers (e.g.: on the product itself). You still have an entire period of a decade where Atari did not use them at all, because they stopped doing anything in-commerce with regards to the Star Control aliens. Zip. Zero. Zilch.
This is same period where the only place you could find those aliens was in the open source "Ur Quan Masters" project, under license from Paul and Fred.
Stardock might have had a shot when they made the asset purchase in 2013. Of course, it would have been a long shot to start mentioning all those aliens with a little ™, considering that Atari didn't mention them in the sale, and considering that Stardock would to start really "using" those aliens "in commerce". But Stardock went ahead and did the opposite of what they're doing now. They publicly said they don't have the right to those aliens, and that they're not going to touch them. Then they privately said they bought the one Trademark, just like the asset purchase agreement said.
In Stardock's defense, you can make a legal mistake, talk to lawyers, and fix it. For example, I could say to my neighbor "yeah, I'm pretty sure that part of the lawn is on your property", and then have my lawyer look it up, and then tell my neighbor "actually, that land is mine." (But then my neighbor might claim an easement. Seems that nearly every property right creates exceptions where someone can claim fair use due to a period of unchallenged possession -- but I digress)
That doesn't fly with Trademark. Trademarks automatically expire after non-use. So they would have expired under Atari. And if you try to get the rights by using them again, good luck doing that when someone else already has exclusive and uninterrupted use dating back to 2002.
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« Last Edit: September 11, 2018, 08:59:19 pm by rosepatel »
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Mormont
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So what is the legal status of fan projects? F&P in particular complained about the editing tools in SCO that would theoretically allow one to recreate SC2 in the SCO engine. Like I said before, I do not approve of their stance on that, but does it have any legal merit?
Generally speaking, fan mods using pre-existing universes are in fact illegal copyright infringement. The Tolkien Estate, New Line, George RR Martin, etc. could probably shut down any Game of Thrones or LotR mod for various games if they wanted to (whether that would be a good or right thing to do is another question). It just isn't worth the effort and/or fan blowback.
Of course modding tools themselves are common and legal. Far as I know, game companies typically ignore infringing fan material on others' copyrights in mods, so if a copyright holder ever decides to shut a mod down the game maker is safe from liability if they didn't directly associate it with.
To make a judgment on whether Fred and Paul's requests regarding editors and mods are reasonable, I would need to see the text of what they've said and not just Stardock's summary of it. I don't think it's fair to demand actual removal of editors. But if Stardock has directly said "you can make all of SC2 with this", and they have at least come close, that could change things a bit because you could argue the tools were designed specifically for infringement.
I do believe that it would be reasonable for Fred and Paul to at least ask that Stardock not directly promote, aid, or acknowledge any projects using SC1/2 IP. It's one thing for Bethesda to tacitly allow fans to mod Middle-earth into Skyrim and have tools that make it possible; it's another to use that as an official selling point for the game.
Disclaimer: IANAL
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« Last Edit: September 12, 2018, 03:24:12 am by Mormont »
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orzophile
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You have a ... interesting reading of that act, or even its more recent amendments.
Deceiving someone about the origin of goods is intended to prevent an entity from making sales under the mark of another, eg, selling counterfeit goods, or with a counterfeit name ,or under a deceiving circumstance. I would be floored if your legal team had any preceding jurisprudence preventing a lawful copyright holder from using their own material for a derived work purely based on the notion of a false origin. The infringing party would have to be selling or marketing the derived work as if it was the product of another entity entirely.
I highly doubt Stardock is at any risk of Reiche trying to pass off GOTP as a Stardock product, and in some bizarro world in which he was, the legal remedy to that would be a clear statement of origin and a disclaimer to prevent any confusion.
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Ariloulawleelay
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I saw it more as P&F slyly saying that Stardock isn't doing "genuine" Star Control because it doesn't have this laundry list of aliens, so Stardock retorted with a couple of cameos.
While this is a possible interpretation of the GOTP Announcement, I am not sure that it is a reasonable one. PaulReiche has used this sort of language to indicate that his future Star Control game1 would follow SC1 and SC2, but not SC3,2 since long before Stardock arrived on the scene.
Regardless, and more to your point, Stardock did not seem to read this as a sly knock on SCO. Frogboy made the disassociation with SC3 explicit when rebroadcasting the GOTP Announcement on the Stardock forums and on Steam:
Recently, Paul told me the good news: Activision was going to let him do a true sequel to Star Control II: The Ur-Quan Masters (i.e. Star Control III is not canon for that universe).
Activision is letting them do their game as a passion project. So it is completely independent and not officially a Star Control game. But for us fans, it is still the sequel to Ur-Quan Masters (as opposed to sC3).
As an aside, contemporaneous statements such as this last one seem to belie any notion that Stardock believed, at the time of Stardock's GOTP signal-boosting campaign, that F&P intended to license any IP from Stardock.3 Instead, phrases like "an independent effort with Stardock's blessing" and "[permitted] unauthorized derivative work" suggest that Stardock was fully aware that F&P were going it alone and that Stardock countenanced F&P's decision. Never mind that, by this point, Stardock had already noisily retained counsel and essentially terminated "friendly" communication between the parties (over disputed interpretations of the 1988 Agreement, no less).
Stardock is bending over backwards to redesign them, so why not let them?
P&F can keep the designs as they are in UQM and refresh them for their sequel.
I thought that Stardock was bending over backwards to not use the Classic aliens. 
From a legal standpoint, this could only be feasible if the characters at issue were not independently copyrightable. Accolade, at least, appears to have believed that the Classic aliens were copyrightable characters - why else would they have paid4 PaulReiche to license the redesigned aliens featured in SC3 and SC4?
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[1] I use the term here to refer to a game in the Star Control genre, not to indicate an article whose origin is other than that specified in the text.
[2] Not that PaulReiche necessarily had a choice about this. If he owned (or believed he owned) the copyrights to SC1 and SC2, but only had partial rights to SC3, he might have a hard time releasing a sequel to SC3.
[3] It was, of course, always clear that GOTP would feature the aliens from SC2.
[4] Paid both in money and in a formal recognition from Accolade that IP rights in both the names (of starships and alien races) and in the characters belonged to PaulReiche.
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WibbleNZ
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A few filings on September 11th that don't seem to have been mentioned yet, resulting in https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.60.0.pdf
-P&F have agreed to stop sending DMCA notices until the preliminary injunction motion requested by Stardock has been resolved. This will not be before at least September 21st (Stardock's response deadline), and Stardock have helpfully transparently suggested the courts take their time if they need to.
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Denning
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P+F reply is up. Haven't read it closely but it seems to be poorly written
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orzophile
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https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.0.pdf for those interested.
As it relates to DMCA notices against SC:O, it seems unlikely those are really going to be meaningful unless Stardock just outright copies art and characterizations from SC1/2, but I can see not wanting to forego the ability without getting something decent in exchange.
It's too late in the evening for me to dig into the exact rules on injunctions and bonds, but that appears to be the most salient part of the filing.
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« Last Edit: September 18, 2018, 06:09:54 am by orzophile »
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Ariloulawleelay
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https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.64.0.pdf for those interested. As it relates to DMCA notices against SC:O, it seems unlikely those are really going to be meaningful unless Stardock just outright copies art and characterizations from SC1/2, but I can see not wanting to forego the ability without getting something decent in exchange. It's too late in the evening for me to dig into the exact rules on injunctions and bonds, but that appears to be the most salient part of the filing.
Thanks, Denning and orzophile. Usually, I like reading motions together with their oppositions, but I went ahead and read Stardock's recent motion for a preliminary injunction while waiting for the reply to be posted.
I do not have any thoughts about the motion itself - that's F&P's attorneys' job, not mine. Also, I am not sure how real this particular dispute is; if F&P genuinely wanted to meddle with SCO's launch, they would have filed their DMCA take-down notices this week, rather than last month. (Whether one thinks of F&P as free-riders, eager to steal SCO's thunder to prop up their otherwise unmarketable nostalgiaware, or as the real victims, who will eventually be awarded a share of SCO's sales, there is plenty of reason to believe that F&P still do want SCO to succeed.) And while there are a few Star Control-related issues that may impact the motion per se - e.g., the public interest angle previewed by tingkagol and a possible unclean hands argument - many key issues, such as the constitutionality of the DMCA and the appropriateness of injunctive relief, are not particularly germane to this forum.
Having written all that, here are a few things that jumped out at me during my read-through:
The typo in the Notice. I might normally be inclined to ignore something this meaningless, but since NP was happy to call out (former) customers' typos, I will make an exception. As I have noted before, Stardock could have quickly (and quietly) resolved this dispute in confidential arbitration - instead Stardock chose to litigate in public with a timetable that would obviously extend past the arbitrary launch date. Whether SCO is going to be formally released in days or in decades, end-users have already purchased SCO from Stardock, downloaded the program and experienced the allegedly infringing parts of the game. And since no physical distribution is planned, afaik, we do not have to worry about SCO going gold: changes can be made to the package at any time. I have not researched the issue, but I suspect that the formal release date will not matter for any ripeness analysis. (Just for the sake of balance, F&P's legal team made a similarly facepalm-worthy cut-and-paste error in paragraph 25 of their most recent answer.)
Frogboy's customer quotes. It appears that Stardock's online hunt for effective "exhibits" was unsuccessful. I don't know that the judge will care about these (presumably) paid-for out-of-court statements (especially as they follow a well-publicized path to a refund), but none of them are unambiguously requests for a refund because of "the rumored suggestion" that SCO won't be released on time. All could conceivably be read as veiled complaints about Stardock's litigation strategy; if a would-be customer independently evaluated the lawsuit and determined on her own that SCO should never be released, I don't see why that should affect the litigation.
SCO sales predictions. I never really got the point of scattered talk of a "boycott" against Stardock, a firm I understand to be completely under Frogboy's control. Stardock, for its part, is completely unfazed: it is not only publicizing its sales figures and projections for SCO, but it identifies potential pressure points. If there was any concern at all about a boycott, these data would have been kept private.
Citation to Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co. This district court case has been discussed in this forum before - it's the DotA case, which supports F&P's claim to all of the SC1 and SC2 copyrights by applying the rule from the Malcolm X and Innocence of Muslims cases (that a mastermind with creative control over an expressive project can walk away the sole copyright owner) to a videogame. Why is Stardock citing it? Stardock is actually referencing a December 2015 decision in the same case. In the 2015 opinion, the judge explained the test for determining whether a character is entitled to copyright protection; since Blizzard failed to go into enough detail about its own characters (and the allegedly infringing characters) in its pleadings to apply the test, its case was dismissed. But Blizzard was able to clean up its pleadings and come back to the courthouse, setting up the May 2017 ruling addressed here earlier. (This is explained in a March 2018 order, if you'd rather hear it from the judge.)
It may be a little harsh to expect F&P to be able to elucidate specific examples of infringement when Stardock was actively producing new content based on the Classic games during the course of litigation (a couple of purported Stardock employees have admitted as much online), but I suppose that pleading rules are pleading rules. Am I correct that the Arilou and Chenjesu DLC packages - the targets of the DMCA notices - only popped up on Steam ten days after the long-scheduled final pleadings were due?
Of course, there's nothing untoward about trying to avoid litigation by attacking the sufficiency of the pleadings. For example, when Stardock began advertising a standalone expansion called Sins of a Solar Empire: Rebellion, Stardock was sued for trademark infringement by Rebellion Developments, a rival in the industry. (In place of actual confusion among consumers, Rebellion pleaded that one source on the Internet mischaracterized which company was releasing Rebellion.) By invoking the Rogers test, Stardock was able to "win" that lawsuit without having to deal with an expensive trial. But arguing that even if what F&P allege is true, Stardock should still win the case is substantively different than saying F&P's allegations should be ignored until F&P complete more paperwork. So, let us look at what Stardock says about the ultimate issues here…
F&P's copyrights. Section VII.a should outline the heart of Stardock's defense going forward. But, in thinking that an argument that "Stardock is likely to succeed on the merits in its defense of [F&P's] copyright claims" would actually touch on the merits, I may have set myself up for disappointment, as there is not much here beyond an analysis of threshold issues.
For example, at the bottom of page 19, we reach one of the sections of Stardock's argument I was most anticipating: the discussion of whether the SC1 and SC2 copyrights are owned by F&P or by a group of people - a group which purportedly does not include F&P. In addition to the "mastermind" theory of copyright mentioned above, Ninth Circuit precedent provides that an oral transfer of a copyright license is valid if the oral transfer is later confirmed in writing. And, in general, a third-party infringer cannot challenge a copyright transfer on a technicality when there is no dispute between the original copyright owner and the transferee. Finally, multiple creators working on different aspects of a comic book character can wind up with a joint copyright, which should be enough for F&P's purposes. I was looking forward to getting a sense of how would Stardock overcome these potential hurdles. Instead, we get this:
However, any such written agreements are invalid and unenforceable, as Defendants attempt to claim rights in works that they do not actually own.
I guess five (legal) minds are better than one, because I don't even understand what argument is being made here. It certainly does not explain what is legally insufficient about the copyright assignment (which may not have even been necessary).
What about another key issue - whether the characters (i.e., individuals, alien races, and memorable ships) from the Classic games are themselves copyrightable? Frogboy has repeatedly alluded to the notion that F&P might only own a copyright as to how these characters were expressed in SC2, rather than a copyright to the characters themselves. Here is Stardock's argument from page 20, with citations to the record (and a reference to the use of Fred's source code, which is, of course, a live issue in the case, if not this specific dispute) removed:
Furthermore, Defendants are attempting to claim uncopyrightable ideas or concepts in Star Control I and II. As an initial matter, as to Star Control I, Defendants have produced no documents showing they contributed any copyrightable content whatsoever.... Thus, Defendants are left with only their vague claims of partial authorship for "script/screenplay, audiovisual work - lead author" and "production, audiovisual work," but have produced no documentation showing that they made any such contributions to Star Control II. Thus, Defendants' purported contributions (if any) ultimately amount to no more than mere ideas and general concepts often found in space combat games.
This segues directly into a paragraph which asserts (with actual legal support) that game concepts are not protectable under copyright law. But Stardock's entire position seems to be that F&P do not have enough documentation yet (and are therefore claiming only uncopyrightable ideas or concepts?). What happens to this argument if F&P do eventually produce documents (or credible oral testimony) showing that they made such contributions?
The deflection continues onto page 21. Suddenly uncertain whether F&P are only claiming copyright "over mere ideas and general concepts," Stardock avoids addressing the issue head-on:
But Defendants['] vague allegations, and failure to produce copies of the works claimed, provide no specificity as to what their claim encompass. Without knowing the precise contours of Defendants' claimed expression, it is impossible for the Court to make a determination as to substantial similarity.
I am reminded of rosepatel's simile: Stardock is not arguing here that it hasn't done anything wrong, Stardock is instead arguing that it cannot be caught. At least not by the likes of F&P. Stardock's position may well prove correct, but this is not an argument on the merits of the underlying claim.
What's my take-away from all of this as I move on to the opposition? We're looking at a very expensive motion that does not really move the ball forward when it comes to the actual case. Concerns about SCO's vulnerability to DMCA take-downs have animated Stardock's on-line arguments for months; if behind-the-scenes negotiation has been taking place, surely Stardock would have prioritized reaching a preliminary agreement avoid a fight over the release. Not only has no such agreement been forthcoming, but both sides have expanded their named legal teams. The gears keep turning...
EDIT: It appears that the parties have since stipulated to re-open the pleadings, at least through the middle of October. This should allow both sides to correct any perceived deficiencies in the normal course of business - e.g., F&P will be able to add specific, side-by-side allegations of infringement from the various SCO builds - as well as assert newfound claims. (Stardock's attorney has promised aggressive pursuit of "additional remedies" should the case not settle; F&P may want to assert an implied contract claim under state law, or something of that nature.) (Stardock's lawyer has also suggested that some of F&P's claims are no longer pending, so either he's confused, obfuscating, or there's been a partial resolution.)
This also serves to alleviate any concern about the timing of the "Arilou" and "Chenjesu" content packages.
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« Last Edit: September 25, 2018, 01:26:21 am by Ariloulawleelay »
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rosepatel
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Thanks, Ariloulawleelay. I think that's a good analysis of what we can learn about the case overall, if we use this potential injunction as a preview of what's to come.
As for the injunction itself, it really drives back to the heart of the "original sin" of Paul and Fred. They issued a DMCA to Steam, and Stardock said that was the first blow in the legal battle. (As opposed to, say, Stardock's unauthorized sale of the games in the first place.)
Stardock is saying that P&F shouldn't be allowed to use the DMCA process to unilaterally block Star Control: Origins from coming out. But P&F explain the obvious to the court, that the DMCA process doesn't work that way. It's not a unilateral and automatic takedown, but a message to the digital service provider (Steam) to flag it and review it. The outcome might be that Steam talks to the potential infringer, who says they really honestly truly think they are in the legal right, and then Steam exercises its right to shrugs their shoulders.
Which is what happened.
a copyright owner has no ability to “unilaterally” “block the online distribution” of any content at all nor is an online service provider that receives a takedown notice required to take the content down nor enjoined from putting it back up. Rather, they are simply incentivized to remove potentially infringing content until the copyright issues are adjudicated by a Court if they want to take advantage of the safe harbor. In this way, the DMCA takedown procedure is by no means equivalent to a federal court injunction—if it were, an online service provider would be legally barred from hosting the infringing content. They are not. Indeed, early in this case Valve elected to keep selling Star Control I and II for months after receiving a DMCA notice from Reiche and Ford. And Stardock has continued selling preorders of Origins and distributing the infringing beta version and content packs on its own website even after Reiche and Ford served more recent DMCA notices on Valve and Steam.
I think it's really unlikely that Stardock will win this injunction.
I also don't think that's the point of the injunction. I think it's meant to waste everyone's time and money.
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rosepatel
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I'm also trying to gain insight into the discovery process.
Stardock has repeatedly challenged people (including fans) to say "if there's something infringing in Origins, point to it". Which is a hilarious challenge, since most of us are relying on whatever marketing announcements come up. Which change from month to month, if not day to day.
It sounds like Paul and Fred aren't just trying to get a look at the final build of the game. They also commented that they requested to see "all versions", so even the intermediate builds.
This might be a sort of end-run around the substantial similarity test. "Substantial similarity" isn't a synonym for copying. It's merely how you might prove that someone copied when you have no clue how they actually made something. Nobody can really read a creative person's mind, and so it's impossible to know that they intentionally took big pieces of creativity from some from someone else. Maybe they came up with all this original brilliant stuff, and the similarities are too small to be on purpose. Generally, if you have a stronger similarity, then it's more likely that it was copying, and less likely it was a pure coincidence.
On the other hand, if you get into the earlier builds, then you effectively get to barge in on their creative process. And if you're able to establish that the final character X was a derivative (of a derivative of a derivative) of character Y, then you have a derivative work. And Copyright is supposed to give you the exclusive right to make derivative works. Meaning that only P&F could authorize those characters.
It might be a reach. Marginally better than Stardock insisting on seeing Paul and Fred's emails. But I'd be very curious to see how the sausage was made.
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« Last Edit: September 19, 2018, 12:59:36 am by rosepatel »
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