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Topic: Stardock Litigation Discussion (Read 136188 times)
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Elestan
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This was exactly the solution proposed in F&P's March 22 settlement agreement. So why exactly hasn't this happened yet, damn it?
To be fair, P&F's settlement proposal did overreach a bit, by trying to restrict things like the music. But Stardock's proposal strongly suggested that they weren't interested in settling at all, at least at that time.
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.
Whether P&F can say "sequel to Star Control II" certainly seems to be a sticking point. But Brad's emails to Paul make it pretty clear that Brad really, really, really wanted to get the SC2 copyrights. I don't think we have any way to tell if he's genuinely given up on that desire or not. Plus, by publicly asserting how right he is all over this and other forums, Brad has put himself in the position where anything less than a settlement or ruling strongly in his favor is going to make him lose face, and he appears to place a lot of importance on his image. Note this quote from him:
I don't feel a lot of sympathy for Paul and Fred.
But their fans have done them real harm.
Because now we basically have no choice but to insist they lose completely in court.
Because their fans imagine they have all kinds of say over Star Control.
In his mind, the problem is not that he ignored his lawyers' advice and backed himself into a corner by publicly arguing the case with non-parties; the problem is that the SC2 fans (most of the ones here, anyway) took P&F's side, so now he feels compelled to take the case all the way in order to vindicate the arguments he's made.
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.
What more effective legal tactics do you think they aren't using that they should have?
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« Last Edit: October 19, 2018, 05:28:13 pm by Elestan »
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PRH
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What more effective legal tactics do you think they aren't using that they should have?
Maybe I'm being really naive here, but negotiation comes to mind first. I remember Brad saying that if F&P had asked him to take down the classic games from Steam and GOG, he would have complied (although I also remember him claiming that the 1988 agreement was still active). At the very least, F&P could have issued a C&D to Stardock before sending the DMCA notice to Steam and GOG. And now that the lawsuit is underway, well... The DMCA against the "Arilou" and "Chenjesu" DLC packs may have been justified, but trying to take down SCO itself while the litigation is still ongoing, and suing Valve and GOG seems like a really dumb move on F&P's part. I don't mean that they should ignore any copyright infringement by Stardock, but I think that addressing these issues in their counterclaim (and trying to negotiate with Stardock if that's still possible) should suffice. And once it's been firmly established that Stardock is infringing on F&P's copyright, the DMCA (or any other method of dealing with infringement) would come into play.
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« Last Edit: October 19, 2018, 07:08:40 pm by PRH »
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rosepatel
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he DMCA against the "Arilou" and "Chenjesu" DLC packs may have been justified, but trying to take down SCO itself while the litigation is still ongoing, and suing Valve and GOG seems like a really dumb move on F&P's part. I don't mean that they should ignore any copyright infringement by Stardock, but I think that addressing these issues in their counterclaim (and trying to negotiate with Stardock if that's still possible) should suffice. And once it's been firmly established that Stardock is infringing on F&P's copyright, the DMCA (or any other method of dealing with infringement) would come into play.
I might have missed something, but I'm fairly sure that this isn't accurate.
P&F have named GOG and Steam in the lawsuit, but as of yet, don't appear to be suing them.
I'm also pretty sure that P&F haven't issued a DMCA against SC:O, or even asked for an injunction. They are, however, reserving that right, which is a possible outcome once a court rules on Stardock's Copyright infringement. At present, Stardock has made a motion to try to extinguish that right before there's a hearing on all the facts. It has forced the issue to be debated now, but at present, an injunction against SC:O still remains theoretical at worst.
It's exactly what you're saying. The takedown / DMCA / cease and desist would come into play after the court has ruled.
Maybe I'm being really naive here, but negotiation comes to mind first. I remember Brad saying that if F&P had asked him to take down the classic games from Steam and GOG, he would have complied (although I also remember him claiming that the 1988 agreement was still active). At the very least, F&P could have issued a C&D to Stardock before sending the DMCA notice to Steam and GOG.
The negotiations fell apart because Stardock insisted they were the publishers of the classic games. Paul and Fred said that wasn't the case, the moment Stardock even raised it as a hypothetical. Rather than believing P&F, Stardock insisted they were wrong. Any plain reading of the agreement would have shown that the agreement had expired in the time where the classic games weren't being sold (in the 2000s). Stardock then followed through by actually putting the games up for sale, after P&F told them not to.
Granted, I think a more skilled negotiator could made a better effort to diffuse the tension after that. But you should have a massive skepticism when Stardock says "hey, we would have stopped the sales if they just asked", when Stardock didn't listen when they asked them not to sell the games in the first place.
P&F did tell them not to (re-)publish the games. Not only did Stardock refuse. It was also reason enough to dismiss https://cdn.stardock.us/forums/0/0/1/ad4dd7d8-a995-42e6-abbd-6078a2757ad5.png. Stardock made the sale of the classic games into a dealbeaker, and then went ahead and sold the games.
I've long stopped believing that Stardock's reasons are sincere. I think they choose a course of action that serves their own interest, and find a justification for it in P&F's behavior.
Which almost always means that Stardock distorts the order of events.
You: Hey, how are you doing?
Me: *punches you in the face*
You: What the f---, man? Are you f---ing crazy?
Me: I had to punch you in the face because you're yelling and swearing at me.
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rosepatel
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Ah, there it is. Just dove into the pleadings myself and it's right there.
The DMCA safe habour is for very specific conditions. It is NOT absolute. Keep in mind there were some people who wanted Google (just for example) to be strictly liable for any infringing content you can find through their search engine. And just as many activists on the other side who thought that a search engine (and other service providers) should be strictly immune. The DMCA was a compromise based on specific conditions: Google (and Steam, and GOG) can claim immunity if anyone else uses their service to promote infringing content, as long as there's a clearly defined process to send a notice to anyone misusing their service in that way. And to protect good actors from unfair takedown requests, they're allowed to tell Google "no, we assert, under the penalty of perjury, that we aren't breaking the law, and our content should be allowed to exist on your service". At that point, Google washes their hands of it. It's now up to the content creators to hash it out, and potentially go to court.
What we're talking about here is NOT the safe harbor designed by the DMCA.
It appears that P&F later made a second takedown request, not using the DMCA process at all. They used Stardock's own pleadings.
154. On December 8, 2017, Stardock filed its lawsuit claiming that sales of the Classic Star Control Games on GOG infringed on its purported trademarks and copyrights and that Reiche and Ford were liable as a result.
155. While Reiche and Ford dispute Stardock’s aforementioned claims, on or about December 11, 2017, Reiche and Ford provided notice of Stardock’s claims to GOG and specifically requested that they not repost the games without Reiche and Ford’s consent.
156. Notwithstanding this notice, in early January, GOG resumed selling the Classic Star Control Games, thereby resuming the alleged infringement and exposing Reiche and Ford to additional potential damages. GOG rejected a subsequent request to remove the games in February 2018, thereby exposing Reiche and Ford to more damages.
Stardock sued P&F and claimed, in a legal document, that P&F is responsible for the unauthorized sales of the classic games. So, P&F naturally asked GOG to stop selling the games. If Stardock and P&F are complaining that the game sales are unauthorized, then GOG is literally selling the games without anyone's permission. Stardock admitted they don't want the games being sold, and P&F asked them to take down the games. How can GOG claim the DMCA safe harbor?
The bad actor in here, of course, is Stardock. They're the ones who said in their lawsuit, "the classic game sales are infringing us and we deserve compensation", and then told Steam and GOG, "keep selling the classic games". Why they would do this is anyone's guess -- maybe to keep the Star Control Trademark alive, or maybe to help rack up damages and make P&F look bad.
Either way, P&F has brought GOG and Steam into the dispute as parties. They're essentially telling the courts "If Stardock didn't want the games to be sold, then neither did we, and it's really up to the stores." Of course, since the stores will face potential legal consequences, they'll present evidence and arguments, showing that Stardock wanted the sales to continue. At a minimum, it's going to show that Stardock is acting in bad faith for claiming damages from infringing sales that they themselves forced to continue. More than that, it's going to show that Stardock's use of the "Star Control Trademark" was based on an illegality.
210. Stardock and GOG made these false representations and concealed these facts with the intent to induce Reiche and Ford to act as described herein, for example, to allow continued sales of the Classic Star Control Games on GOG that Stardock now alleges support its claims for infringement and that it has established trademark rights, among other things
If Stardock is claiming that the sales were illegal, then their use of the "Star Control" Trademark is based on illegal sales. Had those sales terminated, the Trademark would have been abandoned.
GOG and Steam aren't a weird tangent. Their story might punch a massive hole in Stardock's whole Trademark argument.
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kaminiwa
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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.
In 2013, Stardock even mentions having those publishing rights:
https://cdn.stardock.us/forums/0/0/1/9bd20b3f-5658-465f-92a3-7e0ad8276da2.png
I can see how they might have been blindsided by the claims they couldn't sell the classics (doubly so since they were available on GOG). They spent 4 years thinking they'd offer a bundle as a cool PR move, and suddenly they're being attacked in public and contending with DMCA notices.
Mind you, this isn't intended to defend their current behavior. But I do think that the initial seed of disagreement was fairly reasonable.
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Elestan
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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.
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« Last Edit: October 20, 2018, 11:00:51 am by Elestan »
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PRH
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Plus, by publicly asserting how right he is all over this and other forums, Brad has put himself in the position where anything less than a settlement or ruling strongly in his favor is going to make him lose face, and he appears to place a lot of importance on his image. Note this quote from him: I don't feel a lot of sympathy for Paul and Fred.
But their fans have done them real harm.
Because now we basically have no choice but to insist they lose completely in court.
Because their fans imagine they have all kinds of say over Star Control. In his mind, the problem is not that he ignored his lawyers' advice and backed himself into a corner by publicly arguing the case with non-parties; the problem is that the SC2 fans (most of the ones here, anyway) took P&F's side, so now he feels compelled to take the case all the way in order to vindicate the arguments he's made.
I'm still not getting that logic, to be honest. How on earth are the opinions of the posters here (who are NOT parties to the lawsuit) going to FORCE Stardock to take the take-no-prisoners route? If Stardock really has no legitimate claim to the SC1 and SC2 copyrights (as it currently seems), the best thing Stardock can hope for if they keep their current position is going out with a bang. Is this really more important to Brad than doing what is best for his own company (and the franchise he's supposedly been a fan of for decades), as you are implying? I certainly hope not.
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« Last Edit: October 20, 2018, 01:39:03 pm by PRH »
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Elestan
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Plus, by publicly asserting how right he is all over this and other forums, Brad has put himself in the position where anything less than a settlement or ruling strongly in his favor is going to make him lose face, and he appears to place a lot of importance on his image. Note this quote from him: I don't feel a lot of sympathy for Paul and Fred.
But their fans have done them real harm.
Because now we basically have no choice but to insist they lose completely in court.
Because their fans imagine they have all kinds of say over Star Control. In his mind, the problem is not that he ignored his lawyers' advice and backed himself into a corner by publicly arguing the case with non-parties; the problem is that the SC2 fans (most of the ones here, anyway) took P&F's side, so now he feels compelled to take the case all the way in order to vindicate the arguments he's made. I'm still not getting that logic, to be honest. How on earth are the opinions of the posters here (who are NOT parties to the lawsuit) going to FORCE Stardock to take the take-no-prisoners route? If Stardock really has no legitimate claim to the SC1 and SC2 copyrights (as it currently seems), the best thing Stardock can hope for if they keep their current position is going out with a bang. Is this really more important to Brad than doing what is best for his own company (and the franchise he's supposedly been a fan of for decades), as you are implying? I certainly hope not.
I would hope not too, but Stardock is asking the court for an injunction against "The Ur-Quan Masters", is asserting that the code release that formed UQM was illegitimate, and has tried to trick the project admins into signing the project's IP rights to them, while on separate occasions (in private) threatening to "eliminate" us and saying that we "may need to go away".
I have difficulty making the logic of these actions work unless I infer that his top priority is the establishment of complete control over everything derived from Star Control. The whole lawsuit doesn't make sense from a financial standpoint; the costs of litigation and loss of reputation to Stardock dwarf any hypothetical harm from P&F's allegedly infringing blog post.
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rosepatel
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Distinguish between a reason and a rationalization. Thinking people usually do things for reasons. A rationalization is what you do after you've already decided to do something, and need to justify it to yourself and others.
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tingkagol
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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: 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. |
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« Last Edit: October 22, 2018, 02:03:45 pm by tingkagol »
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rosepatel
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I don't wonder. It seems completely obvious. I'd be stunned at anyone who still thinks otherwise.
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kaminiwa
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> Is their any way to estimate the sales figures of SCO?
Steam Spy ostensibly gives us a sales estimate: https://steamspy.com/app/271260. That it still says 20-50K copies sold a couple weeks later makes me think the game is either not doing well, or Steam Spy isn't that reliable. You can also infer some from other Steam stats (time played, # of simultaneous players, etc.), but those show a fairly similar picture right now. Based on # of reviews, Steam is the majority of sales compared to GOG.
This is, obviously, all a very crude estimate. Thus far, Stardock has not released any official sales numbers.
---
There's a new filing serving a summons against GOG and Valve, so it seems like they are actually getting dragged in to court. I'm wondering if that will end up delaying things? If so, it seems P&F are not at all shy about the idea of a long, protracted legal battle, which is reassuring.
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