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

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Author Topic: Stardock Litigation Discussion  (Read 42186 times)
Krulle
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Re: Stardock Litigation Discussion
« Reply #405 on: October 17, 2018, 11:43:27 pm »

Wait, on what basis are P&F trying to stop sale of SCO? I thought the infringing stuff was gone.
Haven't read that passage in detail.
Is it really about SC:O, or about the classic games?
The SC:O stuff I thought was put on the long bench, until the court decided whether it could be considered to be a derivative work....

And IIRC, they only delayed the takedown, as they won't request a speedy takedown which would really harm sales, they're just awaiting the normal court procedure outcome.


[edit]
found something, and it seems to have to do with GOG selling SC2:UQM on request of Stardock, and GOG breaching the Ford-GOG contract (because Stardock claimed the GOG/Ford agreement has expired on 22 March 2015).
§ 152 and following of the 2nd amended counterclaim (https://www.courtlistener.com/docket/6239751/71/stardock-systems-inc-v-paul-reiche-iii/)
Basically they also consider this to be trademark infringement of Reiche's "THE UR-QUAN MASTERS" mark, as Atari never used it for sales, and GOG and Stardock are using it fraudulently with questionable proof of use in marketing.

§160 and following is about "Reiche and Ford’s Notices & Valve’s & GOG’s Continued Intentional & Willful Infringement"
These do touch SC:O, as it is about "fleet battles", and the Arilou and Chenjesu DLC packs.
In §161 the SC:O is attacked as infringing Reiche's and Ford's copyrights, because it includes the previously contested "fleet battles".


They do request the court to decide that SC:O (as a whole) is substantially similar and infringes on the copyright of Paul/Reiche, but they do not request a speedy takedown decision. Just a normal court decision.


[more edits]
They do request preliminary and permanent injuctions against SC:O. (several "course of action"s)
And they request being the sole owners of the "THE UR-QUAN MASTES" commom law mark they've been using permanently since at least 2002, and therefore the right to be awarded said mark as a registered trademark. (§§179-186)

Ninth cause of action, §§ 205 and following: "(Fraud – Against Stardock and GOG)" is also very interesting...
as is the TENTH CAUSE OF ACTION (§§215 and following)  "(Breach of Contract – Against GOG)"

In the "prayer for relief" there is no mention of  GOG or Valve/steam directly, oonlyt Stardock is mentioned. Requests against all counter-defendants to award damages, costs, punitive damages,... based on accounts, profits, earnings, compensations, and benefits...
So, if Stardock loses, Steam and GOG might have to pay everything they earned to Reiche/Ford as well, but based on Stardock's alleged actions, this would lead Valve/steam and GOG to knock on Stardock's door to get the money for provided services anyway.
« Last Edit: October 18, 2018, 12:38:47 am by Krulle » Logged
WibbleNZ
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Re: Stardock Litigation Discussion
« Reply #406 on: October 18, 2018, 02:47:24 am »

Wait, on what basis are P&F trying to stop sale of SCO? I thought the infringing stuff was gone.

The allegations against SC:O itself (trimmed a little, §128-136 for full text):

  • Hyperspace travel in Star Control: Origins looks and sounds virtually identical to how it looks and sounds in Star Control II.
  • The main ship in Star Control: Origins is called Vindicator, just like in Star Control II.
  • Some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou
  • Star Control: Origins refers to the police force as “Star Control,” which is part of the lore from Reiche and Ford’s Star Control Games
  • The starbase commander in Star Control:Origins is called Commander Hayes, just like in Star Control II.++
  • Star Control: Origins refers to characters called “Precursors” ... the exact same name and backstory ... of the “Precursors” characters in Star Control I and II
  • Dnyarri ...  again is an alien species from Star Control II with the exact same name and backstory
  • Many of the planet types in Star Control: Origins have identical names to planet types in Reiche and Ford’s Star Control Games.
  • Players of Star Control: Origins search for Tzo Crystals ... just like in Reiche and Ford’s Star Control Games.

++Does not appear to be accurate.

I think that only the characters (alien races) have a chance of being found as protectable / infringement, but there is plenty of evidence of copying.
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Re: Stardock Litigation Discussion
« Reply #407 on: October 18, 2018, 02:50:25 am »

In the "prayer for relief" there is no mention of  GOG or Valve/steam directly, oonlyt Stardock is mentioned. Requests against all counter-defendants to award damages, costs, punitive damages,... based on accounts, profits, earnings, compensations, and benefits...
So, if Stardock loses, Steam and GOG might have to pay everything they earned to Reiche/Ford as well, but based on Stardock's alleged actions, this would lead Valve/steam and GOG to knock on Stardock's door to get the money for provided services anyway.

Having read through a bunch more of this, it occurred to me that while it's difficult to get yourself into criminal penalties for trademark infringement due to the way the Lanham act and its various successor amendments are written without really going out of your way, the same is not true for copyright infringement. Stardock's legal filings and insistence on continuing with the sale of SC/SC2 via Steam and GOG may actually qualify as "willful" which means this strategy may have opened themselves to criminal penalties independent (and potentially disastrously more severe) that any civil liability or actual losses/cost they'd owe to Valve, GOG, and Reiche.

It's unclear if the court would have any reason to pursue criminal penalties, but if Stardock loses on some of these points and their actions are determined to include fraud, this whole debacle may end up backfiring on them spectacularly.
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Re: Stardock Litigation Discussion
« Reply #408 on: October 18, 2018, 03:06:20 am »

In the "prayer for relief" there is no mention of  GOG or Valve/steam directly, oonlyt Stardock is mentioned. Requests against all counter-defendants to award damages, costs, punitive damages,... based on accounts, profits, earnings, compensations, and benefits...
So, if Stardock loses, Steam and GOG might have to pay everything they earned to Reiche/Ford as well, but based on Stardock's alleged actions, this would lead Valve/steam and GOG to knock on Stardock's door to get the money for provided services anyway.

Having read through a bunch more of this, it occurred to me that while it's difficult to get yourself into criminal penalties for trademark infringement due to the way the Lanham act and its various successor amendments are written without really going out of your way, the same is not true for copyright infringement. Stardock's legal filings and insistence on continuing with the sale of SC/SC2 via Steam and GOG may actually qualify as "willful" which means this strategy may have opened themselves to criminal penalties independent (and potentially disastrously more severe) that any civil liability or actual losses/cost they'd owe to Valve, GOG, and Reiche.

It's unclear if the court would have any reason to pursue criminal penalties, but if Stardock loses on some of these points and their actions are determined to include fraud, this whole debacle may end up backfiring on them spectacularly.
To pursue criminal penalties the state/federal prosecutors would need to open up their own separate case against Stardock, right? I guess you know how that works better than me, but it seems unlikely unless they find Stardock's offense so egregious an example needs to be made. Well, ti does seem pretty egregious to me, but I'm biased as a fan.

To be fair they did remove SC1/2, sometime in spring I think (at the time I hoped it augured a settlement)...is that still enough of a delay to show bad faith? What about Stardock's filing strengthens the case for "willful" infringement, are their arguments against Fred and Paul's copyright ownership just that strained?
« Last Edit: October 18, 2018, 03:13:04 am by Mormont » Logged
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Re: Stardock Litigation Discussion
« Reply #409 on: October 18, 2018, 04:06:47 am »

To be fair they did remove SC1/2, sometime in spring I think (at the time I hoped it augured a settlement)...is that still enough of a delay to show bad faith? What about Stardock's filing strengthens the case for "willful" infringement, are their arguments against Fred and Paul's copyright ownership just that strained?


All their efforts to express use in commerce of various SC-related names, images, ideas, etc, if found to be fraudulent as opposed to simply invalid, when combined with filing DMCA counter-notices on material they knew they never really had rights, shows a prolonged and deliberate effort to infringe on copyrighted material. The district court has the authority to stay a civil case in favor of criminal proceedings but I'm honestly having trouble finding any sort of analogous precedent as so much of this case is just absurd.

Just for the record I don't think it's likely or desirable to have such a thing happen, it was just something that popped into my head looking at the lengths Stardock went to trying to establish "use in commerce" for marks related to copyrighted material they clearly do not own.
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Re: Stardock Litigation Discussion
« Reply #410 on: October 18, 2018, 05:16:57 am »

I don't like that the ZFP uses placeholder alien portraits. I don't like the idea of using placeholder alien portraits at all.
It seems entirely possible to me that that portrait was always intended to be ZFP and was just used as a placeholder for other aliens because every alien needs a portrait for things to work properly.
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Re: Stardock Litigation Discussion
« Reply #411 on: October 18, 2018, 12:46:37 pm »

The allegations against SC:O itself (trimmed a little, §128-136 for full text):

  • Hyperspace travel in Star Control: Origins looks and sounds virtually identical to how it looks and sounds in Star Control II.
  • The main ship in Star Control: Origins is called Vindicator, just like in Star Control II.
  • Some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou
  • Star Control: Origins refers to the police force as “Star Control,” which is part of the lore from Reiche and Ford’s Star Control Games
  • The starbase commander in Star Control:Origins is called Commander Hayes, just like in Star Control II.++
  • Star Control: Origins refers to characters called “Precursors” ... the exact same name and backstory ... of the “Precursors” characters in Star Control I and II
  • Dnyarri ...  again is an alien species from Star Control II with the exact same name and backstory
  • Many of the planet types in Star Control: Origins have identical names to planet types in Reiche and Ford’s Star Control Games.
  • Players of Star Control: Origins search for Tzo Crystals ... just like in Reiche and Ford’s Star Control Games.

++Does not appear to be accurate.

I think that only the characters (alien races) have a chance of being found as protectable / infringement, but there is plenty of evidence of copying.

Since I have played SCO, I've decided to analyze it point by point.

Quote
128. Stardock, Valve, and GOG recently began selling a new version of Star Control: Origins, including Fleet Battles, that is substantially similar to and/or derived from Star Control II, again without Reiche and Ford’s permission and in violation of their copyrights. Indeed, Stardock has described Star Control: Origins as a “reboot” of or “prequel” to Star Control II.

The part about SCO having been described as a "reboot" and a "prequel" is correct, though I don't know if Stardock is still going to describe SCO as a "prequel". I have no opinion about whether anything in the Fleet Battles mode constitutes copyright infringement. The appearance of the Earthling Cruiser (which is now called the Terran Cruiser) has been changed for SCO's release to look less similar to the classic Earthling Cruiser. I don't think that the new appearance should count as "substantially similar", or the classic Cruiser would also be in trouble, with its appearance having been obviously derived from that of Star Trek's Enterprise.

Quote
129. For example, players of Star Control: Origins start from earth and travel to and explore new stars and planets and encounter various alien species via hyperspace travel, just like in Star Control I and II. Hyperspace travel in Star Control: Origins looks and sounds virtually identical to how it looks and sounds in Star Control II.

"Starting from Earth and traveling to and exploring new stars and planets and encountering various alien species via hyperspace travel" definitely counts as a generic theme, which is not copyrightable. It is true that hyperspace travel in SCO looks virtually identical to that in SC2. As for how it "sounds", Stardock has acquired a license to the music of Riku Nuottajärvi (and Dan Nicholson).

Quote
130. The main ship in Star Control: Origins is called Vindicator, just like in Star Control II.

This is true, though I'm not sure what it could mean from a legal point of view.

Quote
131. As Wardell promised, some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou as detailed above.

This is definitely true for some species, though the species previously referred to as the Arilou is no longer called that in-game. Their similarity to the Arilou can still be attributed to drawing on the same generic themes.

Quote
132. Star Control: Origins refers to the police force as “Star Control,” which is part of the lore from Reiche and Ford’s Star Control Games, and the starbase commander in Star Control: Origins is called Commander Hayes, just like in Star Control II.

I don't think it's accurate to call Star Control the "police force" either in SC2 or SCO, but otherwise it's true. SCO's Commander is also no longer called Commander Hayes, she's now called Commander Skyla.

Quote
133. The backstory of Star Control: Origins refers to characters called “Precursors” as an ancient, advanced alien species that explored the universe 250,000 years ago but then vanished, which is the exact same name and backstory (even the exact same number of years in the past) of the “Precursors” characters in Star Control I and II, and an important part of the plot of the game.

This information is also out of date. The Precursor starbases in SCO mention the Precursors disappearing around 205,000 or 200,000 years ago. However, there is other information on SCO's Precursors that does strike me as obviously derivative of SC2's Precursors - namely, them being described as large, hairy (or even "shaggy") quadrupeds.

Quote
134. Another alien race referred to in Origins is the Dnyarri, who are described as having rose to power and dominated the galaxy 20,000 years ago, which again is an alien species from Star Control II with the exact same name and backstory (again even down to the number of years in the past).

While this has indeed been mentioned in SCO's pre-release material, I haven't yet found any references to the Dnyarri in the game itself.

Quote
135. Many of the planet types in Star Control: Origins have identical names to planet types in Reiche and Ford’s Star Control Games.

This is correct.

Quote
136. Players of Star Control: Origins search for Tzo Crystals and earn or collect resource units to exchange for things, just like in Reiche and Ford’s Star Control Games.

The part about Tzo Crystals is correct (though SCO now spells them as "TZO Crystals"). As for "earning or collecting resource units to exchange for things", this is once again a generic theme, which is not copyrightable.
« Last Edit: October 18, 2018, 12:54:43 pm by PRH » Logged
futonrevolution
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Re: Stardock Litigation Discussion
« Reply #412 on: October 18, 2018, 01:45:21 pm »

This is definitely true for some species, though the species previously referred to as the Arilou is no longer called that in-game. Their similarity to the Arilou can still be attributed to drawing on the same generic themes.

The generic "Gray" aliens that were cited as being what the Notarilou are based on do not have crystals in their foreheads or have an antagonistic relationship with extra-dimensional predators. Or speak, for that matter.
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Re: Stardock Litigation Discussion
« Reply #413 on: October 18, 2018, 02:05:56 pm »

The generic "Gray" aliens that were cited as being what the Notarilou are based on do not have crystals in their foreheads or have an antagonistic relationship with extra-dimensional predators. Or speak, for that matter.

The Arilou don't have crystals in their foreheads either. The backstory of SCO's Mysterious Aliens does have some similarities with that of the Arilou, but I don't think it's "substantially similar" enough to constitute copyright infringement, based on what SCO has shown so far. However, if Stardock insists on presenting them as an "alternate version" of the Arilou, there will most likely be problems.
« Last Edit: October 18, 2018, 02:08:18 pm by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #414 on: October 18, 2018, 04:34:10 pm »

They were presented as being Arilou in promotional material to sell the game.
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Re: Stardock Litigation Discussion
« Reply #415 on: October 18, 2018, 04:39:44 pm »

There are different levels of analysis. You could compare the Arilou between SC2 and SCO to look for substantial similarity, or compare the Melnorme, and look at each character as an individual creative work. Or you could compare SC2 and SCO as a whole -- in which case, finding several equivalencies across several characters (and the larger setting) might add up to substantial similarity.

The last piece of the puzzle: Copyright protects your exclusive right to make derivative works. The kind of thing you'd issue a license for. And P&F are arguing that SCO is "substantially similar and/or derived from from Star Control II". There's some ambiguous case law here, but "derived from" is a firm question of fact, compared to "substantial similarity". Literally, are there enough breadcrumbs to show that Stardock derived SC:O from SC2? There is relevant evidence outside the work itself, including all the times Stardock asked for a license (and was refused), and all the ways Stardock stated their intentions to recreate significant characters and other pieces of SC2 in SCO.

Stardock has done enough copying that the case for Copyright infringement can't be dismissed. But where the line is exactly drawn -- and whether Stardock crossed the line -- will be up to the courts.
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Re: Stardock Litigation Discussion
« Reply #416 on: October 18, 2018, 10:13:44 pm »


Quote
131. As Wardell promised, some of the alien species that players encounter in Star Control: Origins are substantially similar to and/or derived from characters in Star Control II, including the Arilou as detailed above.

This is definitely true for some species, though the species previously referred to as the Arilou is no longer called that in-game. Their similarity to the Arilou can still be attributed to drawing on the same generic themes.


No longer being called Arilou is a vast difference from never being called Arilou in the first place (and in any case the Arilou DLC clearly naming them as such was still available on launch day). One is somewhat plausibly independent. The other is clearly derivative to anyone familiar with the source material. But is it apparent to an unbiased Arilou observer?
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Re: Stardock Litigation Discussion
« Reply #417 on: October 19, 2018, 08:46:54 am »

The inclusion of the ZFP and Zebranky in SCO, as well as F&P having sued Valve and GOG, is also being discussed on SCO's forum. One post by Brad is particularly notable:

Quote
Broadly speaking, I am hopeful for a resolution where the sc2 related creatives strictly go to them and they stop trying to use/take the Star Control trademark and stop trying to interfere with our game. I think that’s the cleanest solution.

I think this is precisely the solution we are all hoping here for. This was exactly the solution proposed in F&P's March 22 settlement agreement. So why exactly hasn't this happened yet, damn it? I really hope it's only about the differences in how each side interprets "SC2-related creatives" and "using the Star Control trademark", and that these differences can be reconciled. Because the alternative is that at least one of the sides is lying about their intentions – and that would make settlement impossible.

I'm also getting the impression that F&P are extremely inflexible in their legal tactics – that the only tool they use is the DMCA, even where there are much more effective approaches at their disposal. Nothing seems to have harmed their case more than this.
« Last Edit: October 19, 2018, 09:15:47 am by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #418 on: October 19, 2018, 09:13:11 am »

From the same thread:
Quote
We took out the Arilou and Melnorme references as an olive branch to Paul and Fred. In response they used their GoFundMe to sue GOG and Valve for carrying Star Control: Origins.

If you look, Stardock has trademarks pending on the Zoq-Fot-Pik and Zebranky I believe.

We are continue to support an amicable resolution but it’s difficult to take seriously a complaint regarding an Easter egg reference to previous games in the series while Paul and Fred are actively trying kill our game and sue GOG and Valve.

He says that they removed the Arilou and Melnorme as an olive branch, and NOT as a response to the DMCA. He further asserts that their RESPONSE to that was to sue GOG and Valve, and even makes assertions about how they funded said venture. I think the careful wording here speaks volumes by itself.  Roll Eyes
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Re: Stardock Litigation Discussion
« Reply #419 on: October 19, 2018, 10:12:53 am »

And "pending trademarks" are easy to get.
Heck, I could get a "pending trademark" for "Coca-Cola".
"Pending trademarks" simply might have no value in court....
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