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

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Author Topic: Stardock Litigation Discussion  (Read 42050 times)
SirPrimalform
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Re: Stardock Litigation Discussion
« Reply #525 on: January 18, 2019, 02:55:41 pm »

As a lighthearted aside, it seems Brad Wardell has claimed the #freestarcontrol hashtag on twitter to be a movement in support of Stardock, when in reality it was first used in a decidedly anti-Stardock sense. Also most of Brad's "movement" is himself.

It would amuse me greatly if Star Control fans here were to reclaim it and drown him out.

EDIT: It has 16 pro-Stardock uses on twitter, 7 of which are Brad himself. It wouldn't take a lot to reclaim the original meaning.
« Last Edit: January 18, 2019, 03:01:07 pm by SirPrimalform » Logged
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Re: Stardock Litigation Discussion
« Reply #526 on: January 18, 2019, 03:28:04 pm »

Nope, DMCA alone only gives safe harbour status to hosting companies IF within 10 days after the takedown notice still no case has been filed by the alleged copyright holder, then the counter-notification is sufficient to retain safe harbour status.
As there is already a case ongoing, Valve would not get a safe harbour status for its Steam service.
(Or it may be an accident, as they may have been waiting for an additional letter stating that an action has been filed. Which would not been forthcoming, as the case is already before courts.)


Disclaimer: this is based on how I understood the DMCA process. It may well be that I am wrong.

Edit: (I think I am wrong)
The Counter-Notice Process

The client who is the subject of the DMCA notice, has several courses of action that they can take.

First, they can simply do nothing. If the notice was valid and the takedown was just, they can simply do nothing and accept that the work has been disabled.

Second, if the work was not infringing and the notice was either in error or malicious, the client can then file what is known as a counter-notice. That notice must contain the following elements:
[formal requriements removed]

When a counter-notice is filed, the host must then notify the person who filed the original notice and then, in a time between 10-14 business days, restore the work that was taken down. In that time, the filer of the notice has the option of seeking resolution in the courts and obtaining an injunction that will keep the work offline.

Finally, in extreme cases where the notice was false and filed knowingly so, the subscriber/user can file suit against the filer for damages including attorney’s fees and court costs.
(highlighting by me)
Apparently, to keep the work offline, the DMCA-notice sender has to get an injunction to keep the stuff online.
I have not seen F&P request a preliminary injunction (which should only have a chance if the judge would find the finding of a copyright infringement highly likely, and seeing the different opinions I've read, that seems questionable).
So, without a court order to keep the stuff (Origins) offline, apparently the hoster (Valve/Steam) should bring the stuff back online and await a court order to take it down again.

Ah well, I'm sure Valve is nto risking more than necessary, and that their understanding of the DMCA safe-harbour requirements is vastly superior to mine.
« Last Edit: January 18, 2019, 03:39:13 pm by Krulle » Logged
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Re: Stardock Litigation Discussion
« Reply #527 on: January 18, 2019, 09:48:35 pm »

Just an update for your info: Steam has put Origins on sale again.

I don't know why, but I guess Stardock guaranteed to pay any damages against Valve if a judge/jury does find the game to be copyright infringing.

Could be wishful thinking, but one other possible explanation is that there are settlement talks going on behind the scenes wherein P&F allowed the game to go back up on sale as a goodwill gesture.

I don't consider this to be particularly realistic, but it IS one other possible explanation that might fit.

But, being real here, this does not seem like a course of action Brad has ever been interested in considering.
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Re: Stardock Litigation Discussion
« Reply #528 on: January 21, 2019, 08:09:41 pm »

One thing I haven't seen commented on: https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.71.8.pdf

Exhibit 8 is the "Bill of Sale" from the bankruptcy, and lists the 1988 agreement without an expiration date. Until 2017, it's not unreasonable for Stardock to have assumed they really did have publishing rights.

The bankruptcy sales contract said that Atari was making no guarantees about the IP, so it was Stardock's responsibility to rigorously check everything; that little summary in the bill of sale is not a substitute for reading the full contract.  Stardock received a copy of the original contract, and if its lawyers didn't verify that there was a continuous record of at least $1000/year in royalties paid to Paul (evidently overlooking the decade-long gap in sales), and didn't notice the "This agreement ends if the publisher goes bankrupt" clause when they were buying it at a bankruptcy auction, that doesn't seem like Paul's problem.

At the very least, the estimated cure amounts should have put the prospective bidders on notice that Classic games might have gone out-of-print.
« Last Edit: January 22, 2019, 09:13:30 pm by Ariloulawleelay » Logged
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Re: Stardock Litigation Discussion
« Reply #529 on: January 21, 2019, 08:20:09 pm »

So what do you think of the comparison table at the end of the Injunction Junction post? Currently it seems to me that F&P's arguments for copyright infringement in this particular case are very weak. Most of the points they have listed seem to be completely irrelevant, as they are generic concepts, gameplay elements or UI elements, neither of which is copyrightable as far as I know (otherwise why would we have so many video game clones?).

I'm not a fan of that particular argument by P&F either, but the fact that Stardock was poised to release "Chenjesu" and "Arilou" DLCs and included the Zoqfotpik, Frungy, Precursors, Arilou-not-Arilou, etc in the game and the fact that Stardock applied trademarks for essentially everything in SC1 & 2, even Fwiffo, and with the on-going litigation, kind of strengthens P&F's argument.

Without all those stunts, yes, I might sympathize with Stardock on that one argument.

Whether it's pink or purple or blue, it wouldn't change anything. Nevertheless I don't think a general aesthetic can be owned, or at least, such similarity is not enough to make SCO into an unfairly competing product with UQM or whatever other Star Control game there will be on the market.


Would it change your analysis at all if you thought of HyperSpace not as a gameplay element or space operatic scene a faire, but instead as a fictional *place* created by P&F?

It seems to me as though P&F are arguing that HyperSpace is a specific imaginary setting they created - their own unique take on a wood between the worlds - a two-dimensional, red-shifted plane where the Vindicator encounters (or avoids) alien ships, *Nnngn* dance and play, and a certain music plays in the background.

Does this attempt to depict a higher-resolution return to the scene of P&F's story? What about this?
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Re: Stardock Litigation Discussion
« Reply #530 on: January 21, 2019, 10:52:18 pm »

Would it change your analysis at all if you thought of HyperSpace not as a gameplay element or space operatic scene a faire, but instead as a fictional *place* created by P&F?

It seems to me as though P&F are arguing that HyperSpace is a specific imaginary setting they created - their own unique take on a wood between the worlds - a two-dimensional, red-shifted plane where the Vindicator encounters (or avoids) alien ships, *Nnngn* dance and play, and a certain music plays in the background.

Does this attempt to depict a higher-resolution return to the scene of P&F's story? What about this?

Yes, I do understand that hyperspace as depicted in SC2/UQM has its own artistic expression that is, in fact, copyrightable. And obviously, copying that expression too closely would constitute copyright infringement. And I'm still on the fence whether Stardock's expression of it in SCO is infringing. It does come uncomfortably close to that, and let's not forget that F&P would have to come up with an updated look of hyperspace in GotP. If F&P let SCO go now, who is there to guarantee that Stardock won't sue F&P for copyright infringement if and when they release GotP?

However, the table F&P listed still has many points that seem to me  completely irrelevant to how hyperspace is expressed in SC2/UQM (though again, I'm not a lawyer). These are:

Quote
Display is 2D, top-down with your starship named 'Vindicator' shown in the middle of the screen
Moving onto "holes in space" automatically takes you to the star system
Radar map shows stars and ships near you
Alien ships also travel through interstellar space and if they overlap your ship, you must talk or fight with them
2D Positional coordinates show position in space, using horizontal and vertical values ranging from 0-1000 with exactly 1 decimal point
When you run out of fuel, a helpful alien ship appears on radar screen, moves toward your ship, opens communicaitons and offers to help you... for a price.
Player can set 'autopilot' to fly to destination star automatically

Out of these, only the coordinate format may be somewhat problematic, and in my opinion it can still be safely ignored. As for the "running out of fuel" scenario, there is no price you must pay in SCO (beyond having to listen to the Tywom's crappy Star Trek fanfics). The rest are just gameplay and UI elements.
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Re: Stardock Litigation Discussion
« Reply #531 on: January 22, 2019, 04:02:42 am »

The Hyperspace expression, in and of itself, isn't a slam-dunk sort of argument and if that was the only thing then it probably wouldn't qualify. My assumption is that they simply picked a single example for their blog post and have numerous other elements and expressions they're planning to show in court if it goes that far. In other image or non-verbal expression cases it is often the sum of many elements that ends up determining a derived work.

In a way Stardock seems to have brought a lot of these issues on themselves by aggressively attempting to extend their trademarks and it's not going to be a surprise if that gets turned on them in the copyright decision.

As with many court issues there is no exact analogue, but some of the court's reasoning in cases such as DC COMICS V. TOWLE might be interesting reading (can you copyright the Batmobile?).
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Re: Stardock Litigation Discussion
« Reply #532 on: January 22, 2019, 09:04:51 am »

I know the car designer lost the case. First instance and on appeal.

There's pacman's (vs. K.C. Munchkin) case too, lost on first instance, on appeal it was found to be copyright infringement.
There's the case Stardock hammers on, Street Fighter, which lost the first instance (no copyright infringement), but if I remember correctly, that case never went to appeal (appeal courts seem to have a stricter stance than first case instances). Also in streetfighter the complainant (copyright owner) too a special approach, which automatically meant large parts of the game's copyright would be indefensible, due to the tactic relying on specific details only, and those details were found to be differing sufficiently.

http://mentalfloss.com/article/55078/11-times-video-games-led-lawsuits: pacman is case 2;
http://patentarcade.com/2005/08/case-capcom-v-data-east-nd-cal-1994-c.html for the Street Fighter II case, preliminary injunction to forbid sales (no final decision).

Note: The streetfighter case is a lot less clear cut than Starodock wants to make me believe.
In the streetfighter case, "The court did not find Data East’s [defendant] evidence persuasive, as while other outside sources may have influenced the development of the Fighter’s History characters, there was no doubt that Street Fighter II characters also provided a significant source of inspiration."
Also regarding the similarity in how the special moves were activates (button sequence): "While the Court was disturbed by these “coincidences” in some of the arbitrary control sequences, it concluded that because the control sequences did not constitute protectable expression, these isolated similarities were not actionable. "
Also, "The court found that three characters and five special moves in Fighter’s History were similar to protectable characters and special moves in Street Fighter II. ", but the final "subjective analysis of similarity"  (not objective, so not a clear cut case, an appeal court may have a different subjective feeling).
Resulting in "the court determined that Capcom had failed to demonstrate a likelihood of success on the merits or even serious questions concerning the merits".
Finally, the Street Fighter distributor lost, because martial art games simply have typical moves transferred from martial arts, and those cannot be copyrighted, and the button sequence often followed that move.  Read Claude Stern's passage for a short summary.

HyperSpace is not comparable to movements of the Human Body, as HyperSpace is completely fictional, and has as far as we know today no limitations based on scientific facts which could limit the copyright, as the movements of the StreetFighter characters have been limited.

I wonder if that example case will really help Stardock. As the preliminary injuction judge did find substantial similarity, but just in non-copyrightable elements... (scenes-a-faire, limitations based on movements of the Human body, limitations on how a player can control a screen character,...)


Also, I now wonder if the Street Fighter II case ever went to a final judgement, as I (in my cursory searrch) only found documents relating to the preliminary injuction to forbid sales of Fighter's History. And preliminary injunction decisions are not really comparable to full court cases....
« Last Edit: January 22, 2019, 09:10:16 am by Krulle » Logged
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Re: Stardock Litigation Discussion
« Reply #533 on: January 22, 2019, 08:58:41 pm »

Quote
Display is 2D, top-down with your starship named 'Vindicator' shown in the middle of the screen
Moving onto "holes in space" automatically takes you to the star system
Radar map shows stars and ships near you
Alien ships also travel through interstellar space and if they overlap your ship, you must talk or fight with them
2D Positional coordinates show position in space, using horizontal and vertical values ranging from 0-1000 with exactly 1 decimal point
When you run out of fuel, a helpful alien ship appears on radar screen, moves toward your ship, opens communicaitons and offers to help you... for a price.
Player can set 'autopilot' to fly to destination star automatically

Out of these, only the coordinate format may be somewhat problematic, and in my opinion it can still be safely ignored. As for the "running out of fuel" scenario, there is no price you must pay in SCO (beyond having to listen to the Tywom's crappy Star Trek fanfics). The rest are just gameplay and UI elements.

Well, for example, if the game doesn't automatically center your ship on the screen when in normal space, but locks you in the center of the screen in hyperspace, that would be a change in how the game handles display that matches how SC2 operates and could be part of a "look & feel" claim. (I haven't played Origins; Youtube footage suggests that the game determines screen center differently in hyperspace than in normal space but that it doesn't lock the player's ship in the center, so that's a point in Origin's favor.)

My sense is that, if you're making the legal argument, you list everything together as a package to make your claim as strong as possible. There is a difference between "legally arguable" and "objectively established" here; I doubt a judge is going to do a deep code dive, for example, to study the algorithms used to center the display in SC2 and in SCO, but she can see a file named "Arilou" and draw conclusions from that. (For that matter, the P&F post is not their legal argument, just illustrative of it.)

And you're still ignoring the point that, with the contexts of SC2 and SC3 interfaces before them, Stardock clearly and deliberately decided to make their game look nothing like SC3, and a lot like SC2, despite the fact that they owned some of the SC3 IP and none of the SC2 IP. (It also looks a lot more like SC2 than GalCiv3.)  When assessing something that is inherently subjective, an objective analysis isn't the controlling factor for obvious reasons.

Similarly, it'd be much more effective as a defense to say "here's our design documents on Hyperspace which started from scratch, not from SC2" instead of saying "you can't copyright a color." Even better is "here's where we rejected several possibilities for looking too much like SC2, because we didn't have the rights and didn't want to infringe."
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Re: Stardock Litigation Discussion
« Reply #534 on: January 22, 2019, 09:32:06 pm »

Not that it matters much but I wanted to point out that SCO's Hyperspace is slightly isometric and the camera angle changes depending on which direction you enter Hyperspace from.
For those that have played it you should have noticed instantly that the minimap and Hyperspace don't correlate 1:1 with its north, west, east, south directions.

It is actually somewhat frustrating as you can't rely on the minimap to navigate Hyperspace manually.
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Re: Stardock Litigation Discussion
« Reply #535 on: January 22, 2019, 11:20:31 pm »

And you're still ignoring the point that, with the contexts of SC2 and SC3 interfaces before them, Stardock clearly and deliberately decided to make their game look nothing like SC3, and a lot like SC2, despite the fact that they owned some of the SC3 IP and none of the SC2 IP. (It also looks a lot more like SC2 than GalCiv3.)  When assessing something that is inherently subjective, an objective analysis isn't the controlling factor for obvious reasons.

Similarly, it'd be much more effective as a defense to say "here's our design documents on Hyperspace which started from scratch, not from SC2" instead of saying "you can't copyright a color." Even better is "here's where we rejected several possibilities for looking too much like SC2, because we didn't have the rights and didn't want to infringe."

I can totally understand why Stardock decided to make SCO to be reminiscent of SC2 and not SC3, seeing how the playerbase reacted to each game. And there is bound to be a way to make a game similar to SC2 without infringing on F&P's copyright. Then again, I agree that the hyperspace expression comes very close to infringing, and I'm not really qualified to say whether Stardock has really tripped the wire with that particular aspect of the game. There are still the ZFP, the mineral categories and planet types, and mineral types unique to SC2 that were reused in SCO (Stardock could easily have named the TZO Crystals "Cho Crystals", since that's how Jeff pronounces the name in SCO, and come up with different mineral categories).

Brad Wardell promised personally that SCO's release version won't infringe on anyone's "alleged copyrights". But yes, this is coming from a person who went back on his earlier promises and started claiming that Stardock owns everything within Star Control while F&P own nothing (in Stardock's complaint).
« Last Edit: January 22, 2019, 11:55:08 pm by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #536 on: January 26, 2019, 06:49:46 pm »

And there is bound to be a way to make a game similar to SC2 without infringing on F&P's copyright.

There is, but it is dubious whether it would actually benefit from carrying the Star Control name while only being similar.  Even SC3 was too similar to get away with not licensing copyrighted material.  If SC3 actually had been successful, Accolade's plan would probably have been to make the next sequel completely unrelated to SC1-SC2 copyrighted material and thus entirely under the control of Accolade.

But SC3 instead became infamous, so there was no good way to transition from needing copyright licensing from P&F to using only what was owned by Accolade->Atari.

Stardock should have not acquired parts of the Star Control IP without at least first consulting with the owners of its other parts (P&F) and coming to an understanding with them (or not) before money had been put down.  Having failed to do such basic research into the situation before acquisition, they should have demanded a refund from what was left of Atari (if it claimed the Trademark was still valid at the auction) or just eaten the (still relatively small) loss.

Stardock could then have made its own story driven exploration-action-strategy game in a space setting, heavily modernizing concepts from Star Control 2, the Starflight games, and at least half a dozen more recent sources of inspiration.  The characters and setting could be reused from previous Stardock games or be completely new.  Such an unhindered game would have been much more free to innovate, because it would not be attracting very specifically gamers with an expectation that it must feel like SC2 in hard to define ways or be a direct sequel. And yet the game could still have attracted such gamers, sans their challenging expectations, by advertising the game as being  "...in the same genre as Starflight, Star Control 2, Wing Commander: Privateer and other awesome space adventure games from the golden age, but with some modern twists!"
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Re: Stardock Litigation Discussion
« Reply #537 on: January 26, 2019, 09:35:36 pm »

Stardock should have not acquired parts of the Star Control IP without at least first consulting with the owners of its other parts (P&F) and coming to an understanding with them (or not) before money had been put down.  Having failed to do such basic research into the situation before acquisition, they should have demanded a refund from what was left of Atari (if it claimed the Trademark was still valid at the auction) or just eaten the (still relatively small) loss.

Stardock could then have made its own story driven exploration-action-strategy game in a space setting, heavily modernizing concepts from Star Control 2, the Starflight games, and at least half a dozen more recent sources of inspiration.  The characters and setting could be reused from previous Stardock games or be completely new.  Such an unhindered game would have been much more free to innovate, because it would not be attracting very specifically gamers with an expectation that it must feel like SC2 in hard to define ways or be a direct sequel. And yet the game could still have attracted such gamers, sans their challenging expectations, by advertising the game as being  "...in the same genre as Starflight, Star Control 2, Wing Commander: Privateer and other awesome space adventure games from the golden age, but with some modern twists!"

I don't think that Stardock acts the way it does out of ignorance. It has managed to maintain a very peaceful relationship with F&P for four years after Stardock's acquisition of the SC trademark and the SC3 copyright, and for all that time Brad Wardell demonstrated that he knew exactly what each side owned. He still seems to have made a very risky gamble, though – based on what I have seen in early SCO trailers, it seems that he had already incorporated elements from SC2 into SCO that were likely protected by copyright at an early stage of development (though founders should know more on this topic than I do), and he hoped F&P would license their copyright to Stardock so that he could use that copyrighted material legitimately. That gamble didn't pay off.

That said, the Injunction Junction post has made it quite clear that a win-win solution is no longer possible. There seems to be no scenario where both SCO and GotP would remain on the market, since both sides have made it quite clear that they aren't interested in allowing the competing game to be sold, as I'm not sure if all copyright issues that SCO currently has can be remedied with a patch (though of course we can still hope for the best). And I guess this is why so many people are siding with Stardock – after all, they have actually made a new Star Control game, while F&P have shown nothing. And nobody can be sure that GotP is going to be better than SCO until GotP actually gets made.

Of course, none of this means that the court is any more likely to decide the case in Stardock's favor. And if it really finds SCO infringing, then SCO lives on borrowed time.
« Last Edit: January 26, 2019, 11:55:32 pm by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #538 on: January 26, 2019, 10:05:16 pm »

GotP is intended to answer certain questions raised in the UQM storyline.
To avoid conflicting stories, F&P denied any licensing.
The HyperSpace thing may actually be something they might have been able to live with, had Stardock not annoinced that any and all races of previous Star Control games will be part of Origins.

And yes, Accolade tried to evolve the Star control storylines gradually, to have continuity in storyline, yet also moving away from any copyrightable elements in UQM, so that rather soon they would be only within their own IP rights....


One Question to all those saying there is no infringement....
If Origins would have one character appearing, haveing a flash-formed scar on its forehead, and all his actions are so advanced they seem like magic to us, and its name is Harry Topper, would anyone think this is infringing (or at least leaning on) the copyright of Ms. J. Kathleen Rowling?
Because for printed books, this has already been decided.
But for computer games apparently many think developers are free to continue (and lean on) other's copyrights.

(And whether HyperSpace is copyrightable may depend on the jury.
But I don't remember anything approximately the age of SC2 to have a red-shifted background when flying FTL....
But then, I also only played StarFlight for less than half an hour, so never came that far...)
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Re: Stardock Litigation Discussion
« Reply #539 on: January 27, 2019, 12:04:48 am »

(And whether HyperSpace is copyrightable may depend on the jury.
But I don't remember anything approximately the age of SC2 to have a red-shifted background when flying FTL....
But then, I also only played StarFlight for less than half an hour, so never came that far...)

Starflight has a black background for interstellar space.

Babylon 5 has red hyperspace (which has already prompted mocking comments on the SCO forums that B5 is going to get sued next). I admit that B5's hyperspace made me think of SC2 when I first saw it, but it's still very different from SC2's hyperspace in many ways (no "holes in space" or other visible markers of any kind, very different visual effects, a much more eerie atmosphere than in SC2).
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