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

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Author Topic: Stardock Litigation Discussion  (Read 47613 times)
ArilouSkuff
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Re: Stardock Litigation Discussion
« Reply #165 on: August 14, 2018, 10:31:58 pm »

Second sentence of last paragraph: "Especially when there's multiple forum posts from the CEO saying they're trying to copy without triggering Copyright law"


Frogboy - If you put one next to the other, you'd say they're different, but they're about as similar to each other as the SC2 Syreen were to the SC3 Syreen. There is a definite relationship, and you are intentionally playing off of it.

Rose - I think you think that right there is copying. Frogboy appears to think it is not copying.

Like I said, I wasn't trying to say anything controversial. But lawsuits are themselves controversies. This is one of the controversies in the lawsuit.

The existence of multiple forum posts as you describe is not the controversy of the suit, and is much more easily decided, and as you have presented it is claiming he said something - a claim that he objects to. If you can find anywhere he actually said that, great, show it. Otherwise, retract the claim of what he said when he did not say that.

Here are examples from multiple posts within the same thread:

"But what this means, as a practical matter, is that the Orz, for example, cannot be in the new Star Control games (IANAL) because, IMO, they are too well defined. Not in terms of art even, but even if you changed the Orz to look totally different, a species called Orz that started saying “We are frumple” would be too risky to try to put into a commercial game (again IMO).

So even with a registered trademark on the Orz, as a game designer, I don’t see a way to use them in game because of the issues I listed above.

The bottom line, if Stardock has a species called the Orz, it would have to be so different that it would be, IMO, worthless in game without a copyright license.

But that doesn’t mean that Paul and Fred can use them either. The Orz are strongly associated with Star Control. There’s an endless series of exhibits that show this. Every time Star Control comes up and someone says we are happy campers a lawyer smiles. The only way they can use the Orz in commerce is with Stardock’s permission.

Now, if you look back through the various emails, you will find that the Orz was an alien that we wanted to get a specific license to use. Paul and Fred’s refusal meant no Orz now and presumably, no Orz ever after. But at the same time, we don’t have to let them use the Orz either."



...

"Copyrights can be tricky because of the “substantial similarity” argument is subjective. So it’s always a matter of how much risk you want to take.

I wouldn’t characterize the Orz as fundamentally different. The Ur-Quan and Orz are, IMO, better developed. It’s highly unlikely they are developed well enough to be protected by copyright but we are, contrary to what some seem to believe, fairly risk adverse.

So for example, the Arilou, like you mention, don’t refer to the player as a “child”. They have a specific role in the Star Control: Origins story that has nothing in common with previous Star Control games. But having them in the game strengthens Star Control: Origin’s association with the classic games which became necessary when the mark got challenged.

But it’s Stardock’s position that it owns the names of all Star Control species as these are words and that is the area that trademark covers. Paul and Fred can contend that they own a specific expression of those alien species or the expression of a particular character but that’s as far as it goes.

Hence, Stardock can have a species called the Arilou. The Arilou are strongly associated with Star Control. Using the Arilou strengthens Star Control: Origins association with the classic series which was the whole point of acquiring that specific trademark for $300,000."


He attempts to make two separate points there. One is the same as he is making here, which is that he thinks he owns the "Arilou" name as per his existing spiel about the Star Control trademark extending to the alien names. The second is that Fred and Paul "contending" that they own a "specific expression" of those aliens means that his attempted workaround is to get as close to that expression as possible without, as rosepatel put it, "triggering Copyright law." In the first quote he says that trying to do that with the Orz would mean they would be too different from the SC2 aliens for that to be worthwhile. This would therefore naturally mean that he thinks his version of the "Arilou" is close enough to Fred and Paul's, but not close enough to be infringing on the copyright.

Granted, he may think that he can argue that the similarities are simply from directing people to pull from existing tropes in building Stardock's version of the Arilou and that he's not copying anything too specific to Paul and Fred's version, but he also clearly expresses that he wants to link his version with the existing version without getting into legal trouble.

*These posts are from the following thread: https://forum.quartertothree.com/t/the-third-doctrinal-war-stardock-reiche-ford-and-star-control/134515/941
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Lakstoties
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Re: Stardock Litigation Discussion
« Reply #166 on: August 14, 2018, 10:40:52 pm »

When I get annoyed with you Lak, you then post something like this that reminds me why I enjoy reading what you write because you really do have a keen mind whose writing I enjoy.  There are some people here, even people on "the other side" I can tell I'd get along with in real life...

A very fair answer.  I definitely understand the desire to answer to the communities you feel a part of.  I can't very well fault you for that, as I've been in similar situations myself.  At this point there's one bit of advice I'd offer to you and anyone else:  I've always found myself in environments where I am often surrounded by intelligent and passionate people.  I try to keep an even attitude about things, especially after all the strangeness in my existence so far.  So, I'm often in the objective, outside observers point of view.   (Passion does strike me hard at times, too, but I often TRY to hold it back until I'm sure it is warranted.  I also implement a 24 hour policy before I open an e-mail client after an incident due to past experiences, too.  It's amazing what a five page nasty-gram can do when you send it to the right person...  But not something I'd recommend.)  

From my observations and experiences, passion is a force.  But... A scalar force.  In itself, it has no direction.  The wit and mind of an individual is what gives that scalar a direction and it becomes a powerful vector.  But, even best initial directions can eventually drift from the original target.  That "extra" significant digit after the decimal often turns out to be a very important when the distance is long enough.  And your effective field of view shrinks quickly as passion drives you forward faster and faster.  We are human beings, so we all have limitations at what we can practically perceive.  So, it is often a good thing that even with the clearest roads ahead of you to pull over, get out of the vehicle, unfold the map on the hood, and ask yourself, "Where the hell am I really?"

I've had to do it many, many times.  Sometimes AFTER I went through a few brick walls.  There's nothing wrong with a little course reevaluation.  And there's no shame in U-turning back to pick up that off-ramp you should have taken.
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Re: Stardock Litigation Discussion
« Reply #167 on: August 14, 2018, 11:39:14 pm »


Most people here are looking at the SC:O Arilou and and the SC2 Arilou and saying "yeah, that looks like the same Arilou".

Really?  You think the SCO Arilou looks like the same Arilou as the SC2 Arilou?  

I want to make sure I'm not putting words in your mouth.  Do you believe that the SCO Arilou looks the same to you as the SC2 Arilou?  
Sufficiently close enough to have differences be attributed to an update in graphics, graphic capabilities (heck, it's been 25 years, and that with computers. Most mobile phones can do better than a state-of-the-art PC back then), and the Arilou being a different Arilou from the same race (a different person).
Look at the differences in Klingons Star Trek original series and TNG...

But then, both versions (SC2, SC:O) are recognisable derivates of the small grey alien trope....
The artwork itself will, IMHO, not be decisive when discussing copying the creation of FF/PR... The name will have a much larger influence in this context.
It's the name that carries potential intent here.
« Last Edit: August 14, 2018, 11:52:49 pm by Krulle » Logged
Frogboy
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Re: Stardock Litigation Discussion
« Reply #168 on: August 15, 2018, 12:10:33 am »

The Arilou in SCO don't even have ears.  

But in case it's not already crystal clear: SCO is in a different universe than SC3 or SC2.  They're the Arilou but they aren't the same Arilou as they were in SC2 or SC3.  I would also content that the Arilou in SC3 are not the same as the Arilou in SC2 and suspect Paul and Fred would agree with me on that.  

Whatever copyrights that might surround the way the Arilou were artistically expressed are not relevant.  Stardock owns the Star Control aliens and by that, in case it's not obvious, means the names of the alien species.

Our first and best known game, Galactic Civilizations, had a GalCiv 1, 2 and 3 for OS/2 (1993, 1995, 1997) and that was a very different universe than the GalCiv I, II and III for Windows both in terms of lore (in GalCiv for OS/2, there's no Earth, your ship has gone through a wormhole to a distant galaxy).  The Altarians in the OS/2 version were very alien looking.  The Altarians in GalCiv III are blue humanoid aliens.  Completely different backstories.  

Quote
The artwork itself will, IMHO, not be decisive when discussing copying the creation of FF/PR... The name will have a much larger influence in this context.
It's the name that carries potential intent here.

Name isn't considered in these kinds of cases. Unprotected elements (like names) are removed from consideration during these cases.  The question is whether something is a COPY.  Not inspired. Not similar. Not related. A COPY. As in, you put the two side by side and ask "Is X also Y?"   

This would be a good time for Elestan or Laks to show some case studies if they are genuinely interested in the dispute from an intellectual point of view as opposed to being PF surrogates.  There are a lot of them out there and they are, often, quite interesting.    I think you would be (I know I was) shocked at just how similar two things can be and still be considered different.  They really mean COPY in copyright infringement. 

But we aren't interested in copying or even seeing "how close" we can get and be safe.  As Paul and Fred will no doubt learn during future depositions, the alien that became the Arilou was created to solve a plot device issue and it needed to be something that was observing us for a long time.  That alien and how it looks would have ended up in there.  We chose Arilou as the name of the species because we wanted to more closely associate the new Star Control game with the classic games which we have every legal right to do and felt pressured to do so once Paul and Fred began to try to cancel our trademarks.  If you don't like that outcome, you should talk to Paul and Fred, not us.
« Last Edit: August 15, 2018, 12:18:22 am by Frogboy » Logged
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Re: Stardock Litigation Discussion
« Reply #169 on: August 15, 2018, 01:57:01 am »

Quote
The artwork itself will, IMHO, not be decisive when discussing copying the creation of FF/PR... The name will have a much larger influence in this context.
It's the name that carries potential intent here.

Name isn't considered in these kinds of cases. Unprotected elements (like names) are removed from consideration during these cases.  The question is whether something is a COPY.  Not inspired. Not similar. Not related. A COPY. As in, you put the two side by side and ask "Is X also Y?"  

Again, the standard for finding illegal copying isn't whether you put two things side by side and ask "is X also Y". The typical test is substantial similarity, which is used to answer the question "was there copying?". Arguing that you modified it enough to avoid infringing copyright can sometimes, in of itself, be taken as an admission of an intent to copy. And determining whether someone was trying to copy is a finding-of-fact that helps cover one of the essential elements for finding copyright infringement.

It's also misleading to say that names can't be Copyrighted. That's like saying letters can't be Trademarked. True, if you try to get intellectual property protection for a bare component, you're not going to succeed. But a work of literature typically has many names in it. A work of art is typically given a name. When finding substantial similarity, copying those names is going to matter. The only ways it could play out:

If you copy the name of a character, and nothing else, it's almost definitely not Copyright infringement.
If you copy everything EXCEPT for the name of a character, it very likely IS Copyright infringement.
If you copy several elements of a character, it's probably Copyright infringement.
If you copy several elements of a character, including the name, it's a little closer to substantial similarity, and closer to Copyright infringement.

None of this is controversial. The only thing that isn't protected by copyright is generic material. Names can absolutely be part of the original material, and thus protected.

Quote
I think you would be (I know I was) shocked at just how similar two things can be and still be considered different.  They really mean COPY in copyright infringement.  

You don't have to look that hard to find cases where "this is a totally different expression" was taken as a poor defense. In fact, there was a famous appeals case from just this past year, and it caused a panic among lawyers who hoped the letter of the jurisprudence would protect their clients from violating the overall spirit of copyright protection. For every case that cuts one way, there's another case with specific facts that change the outcome drastically.

Just because people have said that substantial similarity is somewhat subjective, it doesn't mean it's an arbitrary standard that came out of nowhere. It was designed to answer several questions, particularly "was there copying?" Even to that end, mere access to the original work can be more powerful evidence of copying than any similarity. A combination of both access and similarity would be more damning.

None of this is determinative. This is why we have a legal system.
« Last Edit: August 15, 2018, 02:00:15 am by rosepatel » Logged
Frogboy
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Re: Stardock Litigation Discussion
« Reply #170 on: August 15, 2018, 02:27:59 am »

If you claim that the name is considered then it’s not controversial, it just means you’re wrong.

More to the point, the burden is on you to show the infringement, we know we aren’t infringing because we didn’t copy anything or derive anything from anything copyrighted.

Like I said earlier, you’re welcome to pretend to be an internet lawyer all you want. Just don’t accuse us of illegal activity such as claiming I said we are copying something unless you are prepared to back it up. Is that really that hard for you to understand?
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Narsham
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Re: Stardock Litigation Discussion
« Reply #171 on: August 15, 2018, 02:39:21 am »

Stardock owns the Star Control aliens. Paul and Fred *might* have copyrights to how those aliens were expressed in Star Control II but that's the extent of it.

Whether Stardock owns the aliens created by Paul and Fred and which appear in Star Controls 1 & 2 (and, in some cases, in 3 as part of a licensing agreement) must surely be decided as a part of the lawsuit, and not already be established fact. If it's established fact, your lawyers are making a lot of money doing something totally unnecessary.

Or did you mean something different by the words "Star Control aliens?"

This would be a good time for Elestan or Laks to show some case studies if they are genuinely interested in the dispute from an intellectual point of view as opposed to being PF surrogates.  There are a lot of them out there and they are, often, quite interesting.    I think you would be (I know I was) shocked at just how similar two things can be and still be considered different.  They really mean COPY in copyright infringement.  

But we aren't interested in copying or even seeing "how close" we can get and be safe.  As Paul and Fred will no doubt learn during future depositions, the alien that became the Arilou was created to solve a plot device issue and it needed to be something that was observing us for a long time.  That alien and how it looks would have ended up in there.  We chose Arilou as the name of the species because we wanted to more closely associate the new Star Control game with the classic games which we have every legal right to do and felt pressured to do so once Paul and Fred began to try to cancel our trademarks.  If you don't like that outcome, you should talk to Paul and Fred, not us.

It is, of course, possible for someone to disagree with you on the Internet without being "surrogates" for Paul and Fred. Since this thread has turned in the direction of empty accusation and demanding evidence (pre-Frogboy), shall I ask what specific pieces of evidence you can offer us that Elestan or Laks are surrogates? That seems all the more necessary given that your court filing has accused Paul and Fred (through their PR firm) of "causing to be made or disseminated, before the public in this State untrue or misleading statements in connection with the sale or goods or services that Reiche and Ford  knew  or  should  have  known  were  false  and/or  misleading" (152 in the amended complaint). Are you asserting that anyone in this forum was caused, by Paul and Fred, to make an untrue or misleading statement? On what basis do you make that claim?

Like you, I am not a lawyer. I am a fan of the original games. I am also capable of making up my mind about who to support or not support on the basis of people's behavior, and not a puppet for Paul & Fred or anyone else.

At one point,  I thought you were a fan of Paul and Fred's work. I suspect you did, too. Now, you look to be a fan of the product of the corporate development process at Accolade which brought about Star Controls 1 & 2, but not particularly a fan of developers Paul and Fred, who, from your perspective, contributed to some degree in the creation of those games but are not creators and do not own the things which came out of that development process as the result of many hours of work by artists, composers, coders, and so on. In your eyes, that perspectival change may mean nothing at all (beyond the ensuing lawsuit). In my eyes, it makes a big difference indeed.

Paul and Fred built my goodwill through their game designs, from some of their early EA games through to Star Control 2 (maybe not so much The Horde and Archon Ultra). They earned more when they allowed the fan community to create this very site. I was delighted when over a million more people had the chance to play the game I bought on floppies, did my first computer upgrade to play, then bought again on DVD (because floppies weren't a reliable storage medium). We went our separate ways besides that--I wasn't a console gamer--and when this whole mess started off, they spent some of my goodwill with some of their choices. I felt especially ambivalent about their Gofundme.

Stardock and you had some of my goodwill from the GalCiv series, from your participation in SC fandom, and from your purchase of the Star Control franchise from Atari (or whatever they were called by that point, I'm not trying to be legally precise here). You built some more from how you handled the mess of what later became Fallen Enchantress. And many of the updates for SC:O had me excited, though I was never in the instant-buy category, because series like GalCiv and FE never quite hit that sweet spot for me that keeps me returning to games like Master of Orion or Master of Magic all these years later, and I wanted to wait and see before purchasing.

Paul and Fred still have some of my goodwill left. If they win enough in the lawsuit to enable them to make a continuation of the story they told in the Ur-Quan Masters, I'll happily Kickstart it and own it, I'll hope it turns out to be good, and if it's not I'll be saddened but not too bitter. It's been many years, and we're all different people now. Capturing lightning twice is hard enough to do.

Reading some of your recent posts, and following the thread conversation about the SC:O Arilou... well, I don't have any goodwill left for you or Stardock. I understand what you're doing, I can see how you would feel compelled to proceed in the way you have, and I can't even say that from your perspective, you're wrong. There's a good reason I never made any attempts to run a corporation, and I make no claim that I'd be good at it. For you, Paul and Fred now threaten what you value about the Star Control universe. But for me, they're inseparable from it. And the more you do to write them out and replace them with Stardock's Star Control (registered trademark, Stardock Systems, Inc.), the more you inevitably damage a part of what I love. Whatever you make out of what remains, I won't be able to enjoy it knowing the cost.

I don't see what you could do to win me back, though I hardly think you'd care to try. That doesn't keep me from wishing this could have worked out differently, and in that, I suspect we can still find a point of agreement.
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Re: Stardock Litigation Discussion
« Reply #172 on: August 15, 2018, 02:54:02 am »

we didn’t copy anything

You're not going to convince me Stardock decided to make a trading race and it just happened to be both orange and called Melnorme. Even that little is copying. Not copyright infringement, but still copying.



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rosepatel
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Re: Stardock Litigation Discussion
« Reply #173 on: August 15, 2018, 02:55:23 am »

Nobody accused you of anything that isn't already stated in the lawsuit. It's not clear to me that you understand what it is that I'm saying, let alone the distinction between Copyright Infringement, a non-infringing copy, and an infringing copy. I'll be happy to explain again.

You are being sued for copyright infringement. Copying isn't itself infringement, but one of the essential elements of infringement. Despite your desire to treat Copyright Infringement as only a verbatim "specific expression" standard, that's not the legal definition of what it means to be illegal copyright infringement, let alone the legal definition of copying someone. You've made many statements over the past few months (let alone the past few days) that are material to the question of whether you tried, in any sense, to copy the original SC2 aliens. Including saying that SC:O will include some of the same aliens from the classic series.

I appreciate your invitation, but it applies far more to you than it does to me. If you're going to internet lawyer every forum on the internet, I'd encourage you to couch your theories with words like "allegedly" or "my lawyers hope to prove" or other similar language.
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Re: Stardock Litigation Discussion
« Reply #174 on: August 15, 2018, 03:09:18 am »

we didn’t copy anything

You're not going to convince me Stardock decided to make a trading race and it just happened to be both orange and called Melnorme. Even that little is copying. Not copyright infringement, but still copying.



By that standard, how much did Star Control “copy” from Space War and Starflight? Should we send over the Starfleet Battles guy who would be happy to let you know about how much Star Control “copied”.
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Frogboy
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Re: Stardock Litigation Discussion
« Reply #175 on: August 15, 2018, 03:12:04 am »

Nobody accused you of anything that isn't already stated in the lawsuit. It's not clear to me that you understand what it is that I'm saying, let alone the distinction between Copyright Infringement, a non-infringing copy, and an infringing copy. I'll be happy to explain again.

You are being sued for copyright infringement. Copying isn't itself infringement, but one of the essential elements of infringement. Despite your desire to treat Copyright Infringement as only a verbatim "specific expression" standard, that's not the legal definition of what it means to be illegal copyright infringement, let alone the legal definition of copying someone. You've made many statements over the past few months (let alone the past few days) that are material to the question of whether you tried, in any sense, to copy the original SC2 aliens. Including saying that SC:O will include some of the same aliens from the classic series.

I appreciate your invitation, but it applies far more to you than it does to me. If you're going to internet lawyer every forum on the internet, I'd encourage you to couch your theories with words like "allegedly" or "my lawyers hope to prove" or other similar language.

Where in the lawsuit does it say I stated I was going to copy the Way the Star Control aliens were expressed in SC2? Pretty sure you made that up whole cloth and you don’t even have the decency to retract it.

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rosepatel
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Re: Stardock Litigation Discussion
« Reply #176 on: August 15, 2018, 03:21:05 am »

Where in the lawsuit does it say I stated I was going to copy the Way the Star Control aliens were expressed in SC2? Pretty sure you made that up whole cloth and you don’t even have the decency to retract it.

Again with the strawman. How am I supposed to retract something I didn't say?

You're the one relying on this narrow idea of "the way the alien was expressed in SC2" to protect you from copyright infringement. That's a nearly impossible standard to meet, not something I accused you of, and not the standard that will be used if this goes to litigation. Copying is a much lower standard. I've explained that repeatedly.

If you want to continue to communicate with people here, at least have the decency to engage with the things people are actually saying. If you want to rail against strawmen, you can do that in your Q+A.
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ArilouSkuff
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Re: Stardock Litigation Discussion
« Reply #177 on: August 15, 2018, 03:59:32 am »

I just want to emphasize this quote of Frogboy's from my previous post:

Quote
"a species called Orz that started saying “We are frumple” would be too risky to try to put into a commercial game (again IMO)."

He clearly knew then that using a name (even a name that he thought was covered under his trademark) in combination with certain elements from Fred and Paul's IP was problematic.
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CelticMinstrel
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Re: Stardock Litigation Discussion
« Reply #178 on: August 15, 2018, 04:39:24 am »

I can't believe you seriously believe that using the same name wouldn't be a consideration in determining whether it's copyright infringement. The name is part of the whole, after all. It's not a trademark (despite what you seem to think), it's a part of the expression of what we know to be the Ariloulaleelay. Sure, if you used the name Ariloulaleelay to refer to (for example) a giant mammoth-like species, there's no problem there - it's just the name, no other similarity. But using the name Ariloulaleelay to refer to little green men is an obviously higher degree of similarity. I don't know if it's enough to be considered infringement, but I do think you'd have to be pretty stupid to just dismiss that possibility out of hand.
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Frogboy
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Re: Stardock Litigation Discussion
« Reply #179 on: August 15, 2018, 04:45:40 am »

I just want to emphasize this quote of Frogboy's from my previous post:

Quote
"a species called Orz that started saying “We are frumple” would be too risky to try to put into a commercial game (again IMO)."

He clearly knew then that using a name (even a name that he thought was covered under his trademark) in combination with certain elements from Fred and Paul's IP was problematic.

No, better to say I clearly believed that at the time until I was corrected.
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