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

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Author Topic: Stardock Litigation Discussion  (Read 41517 times)
orzophile
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Re: Stardock Litigation Discussion
« Reply #465 on: November 23, 2018, 11:46:48 pm »

It's not so one-sided as that...the variance in possible awards for trademark infringement is huge, and depends on how persuasive Stardock's expert is in convincing the jury that P&F caused them harm.

At least from my understanding of US trademark law, nothing about the GOTP announcement would qualify for statutory damages like willful copyright infringement can on the other side. Even if we grant that their expert is a modern Atticus Finch, it's going to be incredibly difficult to establish what I'd consider crippling damages beyond the loss of rights if the case is decided for Stardock's various assertions.

I would assume much less.  The fund is just shy of $39k, and they've had two lawyers working this case for over a year now, and recently added a third.  Maybe Mark (P&F's generalist laywer) only bills $200/hour, but Stephen, their lead IP attorney, probably bills $400/hour, and Tiffany (who might be their planned trial lawyer?) is probably somewhere in between.  All of these lawyers are probably not full-time on the case, but the math adds up pretty fast.

Most likely, yes. If either side gets out of the trial with less than $400,000 USD out of pocket, I'll be shocked. The current FDF maybe covers a single month of billable time, and although most of the legal billing won't be full time, they've certainly at least racked up multiple full weeks worth of time over the course of this debacle.
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Re: Stardock Litigation Discussion
« Reply #466 on: December 29, 2018, 06:50:15 am »

Stardock requested a preliminary injunction preventing Reiche & Ford from sending DMCA notices to GOG and Valve regarding Origins.  The court has rejected Stardock's request.

https://www.courtlistener.com/recap/gov.uscourts.cand.320268/gov.uscourts.cand.320268.102.0.pdf

This does not look good for Homestar Runner. 

I mean Wardell.

The "factual background" section seems to be essentially acknowledging all the basic points that Reiche & Ford have been arguing from the start, and includes statements like  "Wardell now avers that he offered Reiche & Ford a 'right of first refusal' [...] The correspondence between Wardell, Reiche, and Ford tells a different story, however."  The person writing this document (the judge? or one of the clerks, writing something that the judge signed off on?) then goes on to list all sorts of facts with which the Starcon fanbase is entirely familiar, and which Wardell has been desperately avoiding every chance he gets.

It also includes the following absolutely delicous footnote:
Quote
Many of the parties' objections are frivolous.  For example, Plaintiff objects to Reiche's declaration, "I created the concept for the Star Control computer game," on the ground that it lacks foundation.  Dkt 66-12 at 2.  Clearly Reiche has personal knowledge as to what he did or did not create.  See Fed R Evid. 602 (a witness's own testimony may support a finding that he has personal knowledge of the matter to which he testifies).  On the other hand, the merit of other objections is obvious.  For example, Defendants object to Wardell's declaration, "Stardock has not incorporated any copyrightable artwork from Star Control I, Star Control II, or Star Control III into the Origins game itself," on the ground that Wardell lacks the expertise necessary to opine as to what constitutes "copyrightable artwork."  Dkt 64-26 at 2-3.  Indeed, not only has Wardell failed to establish any such expertise, but his opinion as to whether the work in question is "copyrightable" constitutes an improper legal conclusion.  See United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017) (citing Fed R. Evid. 704).  Such legal conclusions are without evidentiary value.

There's a lot more, too much to quote.  I find it particularly interesting that the court refers repeatedly to Stardock claiming "irreparable harm" because in the event of a DMCA notice, GOG and Valve will CERTAINLY take the game down, but Stardock never provides any evidence to support that expectation.  The court  never comes out and asks this question specifically, so I'll do it for them: why is Stardock so sure that that would be the outcome?  Do they think their game DOES look like it infringes copyright?  Is that why they don't even consider the alternative, that GOG and Valve will receive the DMCA notice and respond politely with "You must have made a mistake and we're not taking this product down"?  Why does Stardock behave as though they think that outcome is completely impossible?  Why am I writing so many rhetorical questions?

The last two pages of the document are entirely hammering on the point that this situation (the risk of a DMCA takedown in the middle of a lawsuit) is of Stardock's own making and it's not the court's job to rescue them from it.

It looks to me like the judge is already half-persuaded but is being scrupulously careful that all the i's are dotted and the t's are crossed and all procedure is followed with rigorous fairness.  Wardell is about to discover that pulling the wool over a judge's eyes is a lot harder than shoving around an ex-employee with limited financial resources.
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Krulle
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Re: Stardock Litigation Discussion
« Reply #467 on: December 29, 2018, 11:52:51 am »

Yeah, I read the decision with a smug on my face too.
But not all arguments have been considered, see page 11, lines 1-22, especially lines 15-16.
(The court hereby STRIKES the parties’ non-compliant filings.).
Hence some of the back and forth arguments willnot have been considered.
At the full case those will be considered too.

And you picked my favourite footnote. I love that one.
"Indeed, not only has Wardell failed to establish any such expertise, but his opinion as to whether the work in question is “copyrightable” constitutes an improper legal conclusion."
In times where the digitalization of medieval times' painters work is being considered to be a copyrightable act (in some jurisdictions, like my home jurisdiction), that conclusion of Mr. Wardell was a try for the public and legal amateurs.

The judge could also have pointed out, that Stardock could've, in view of the ongoing procedure, sent together with the game to be published a not to GOG and Valve, that this game does not violate copyrights of SC1 and/or SC2, and any anticipated DMCA notice of Mr Ford and Mr Reiche should therefore be ignored. Thus Stardock could indemnify GoG and Valve from the outset against any negative results stemming from this case. In a very obvious case (which Origins is, IMHO, not), Gog and Valve would still have to take them down, but the chances are they will be considered "safe harbours" would be much larger, at least for Origins,  not necessarily for a republication of SC1 and/or SC2.
« Last Edit: December 29, 2018, 12:07:17 pm by Krulle » Logged
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Re: Stardock Litigation Discussion
« Reply #468 on: January 01, 2019, 12:40:00 am »

Brad is deleting posts not 100% pro-Stardock and banning the people who post them on the Star Control Origins Steam forum.
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Re: Stardock Litigation Discussion
« Reply #469 on: January 01, 2019, 02:06:21 am »

I adjusted the formatting a bit but this is a very interesting section. Caps Lock at the conclusion at the end also my doing to add emphasis. This is pretty blunt.


"As aptly observed by Defendants,  'Stardock announced the release date and launched its marketing campaign for Origins in June 2018--long after this case was at issue and Stardock was well aware of Reiche and Ford's allegation that Origins infringed upon their copyrighted work. Stardock could have suspended development, or at least postponed the marketing and release of Origins until this case resolves who owns the copyrights to the content at issue and whether Stardock's planned use of certain content infringes....

Instead, Stardock did nothing to avoid the purported risk of irreparable harm that it now bases its motion on, and Stardock announced the release of Origins in the middle of this case and ramped up it's spending.'

Plaintiff does not directly respond to this point.

Further scrutiny of its alleged harm supports Defendants' argument, however.

Plaintiff asserts that it stands to lose substantial monies spent on the development and marketing of Origins. Plaintiff was aware of Defendants' copyright claim to Star Control I and II since the development of Origins commenced, however, and was aware of the contours of the present copyright dispute since at least December 2017. Thus, whatever monies Plaintiff invested in Origins was done with the knowledge that serious copyright disputes were likely to arise or had arisen.
Plaintiff further asserts that the release of Origins 'has been widely communicated to Stardock's customers, partners, and the press,' and that any disruption in its release will be injurious to Plaintiff's reputation. ...

Again, Plaintiff announced the release of Origins in June 2018, six months after this action commenced. Plaintiff thus invited reliance on its announcement regarding the release of Origins with knowledge of Defendants' claims.

In view of the foregoing, the harm Plaintiff complains of is indeed of its own making. Plaintiff had knowledge of Defendants' copyright claims from the outset. Despite this knowledge, it developed potentially infringing material without resolution of the IP ownership issues, and then publicized the release of that material during the pendency of this action.  It now claims that its investment in Origins and reputation are on the line.

GIVEN THAT PLAINTIFF LARGELY CREATED THE FOREGOING PREDICAMENT, THE COURT IS DISINCLINED TO EXTRICATE PLAINTIFF FROM A PERIL OF ITS OWN MAKING."
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Re: Stardock Litigation Discussion
« Reply #470 on: January 01, 2019, 11:04:16 am »

And it seems that F&P wasted no time in issuing a DMCA takedown notice against SCO. According to Stardock's customers, the fact that it was issued on the New Year's eve only added insult to injury.

https://forums.starcontrol.com/492834/paul-reiche-and-fred-ford-issue-dmca-take-down

According to Brad, both Valve and GOG have a policy that they automatically comply with all DMCA takedown notices regardless of their merits, which is presumably why both stores have taken the game down, even though both Valve and GOG know very well about this legal dispute, and Valve has already taken Stardock's side in the lawsuit. I, for one, thought that it was pointless for F&P to issue a DMCA against SCO for this very reason.

So, it's a bad New Year for Stardock and SCO players. Brad has already mentioned that he's going to lay off some of his employees.

...However, when I went to the SCO page on GOG, the game is still there available for purchase. A search for "Star Control" also reveals SCO just fine. So GOG hasn't taken the game down then? I do not own the GOG copy of SCO, only the Steam one. Oh well, apparently we'll see tomorrow if it gets taken down.

And apparently Steam did already take SCO down. As Brad has reported, players who have already purchased SCO from Steam are still able to play it, but the store page for the game is down. This only affects the main game, not the DLCs (now I sound like a Stardock representative Cheesy).
« Last Edit: January 01, 2019, 02:14:24 pm by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #471 on: January 02, 2019, 07:18:03 am »

According to Brad's twitter, F&P sent GoG also a takedown notice.
https://twitter.com/draginol/status/1079846740252078080

It's an interesting reply collection from their fanbase (at least it was yesternight evening).


Also, another video from "Lawful masses" about the DMCA injunction Denied case: https://www.youtube.com/watch?v=Ieb1ajwwUFo
Mr. French starts his analysis around minuter 36.... (haven't seen it myself).
« Last Edit: January 02, 2019, 07:28:33 am by Krulle » Logged
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Re: Stardock Litigation Discussion
« Reply #472 on: January 02, 2019, 12:30:10 pm »

And... GOG has just taken SCO down.
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Re: Stardock Litigation Discussion
« Reply #473 on: January 02, 2019, 04:17:51 pm »

According to Brad, both Valve and GOG have a policy that they automatically comply with all DMCA takedown notices regardless of their merits, which is presumably why both stores have taken the game down, even though both Valve and GOG know very well about this legal dispute, and Valve has already taken Stardock's side in the lawsuit. I, for one, thought that it was pointless for F&P to issue a DMCA against SCO for this very reason.

iirc Brad had already announced DLC to include blatant Star Control 1/2 aliens such as the Arilou and Chenjesu and the game already has modded in vessels like the Syreen Penetrator and Ilwrath Avenger. That, combined with Brad's attempt to register trademarks for all of the original races, seems like a good enough reason to me to issue the DMCA.

I'm guessing that if they'd allowed that to stand without object it would have hurt them in a legal sense.
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Re: Stardock Litigation Discussion
« Reply #474 on: January 02, 2019, 04:40:16 pm »

iirc Brad had already announced DLC to include blatant Star Control 1/2 aliens such as the Arilou and Chenjesu and the game already has modded in vessels like the Syreen Penetrator and Ilwrath Avenger. That, combined with Brad's attempt to register trademarks for all of the original races, seems like a good enough reason to me to issue the DMCA.

I'm guessing that if they'd allowed that to stand without object it would have hurt them in a legal sense.

Those DLC packs have all been canceled. The former "Arilou" are now known as "Mysterious Aliens" or "Observers", and they are different enough from the Arilou that I really doubt that would constitute copyright infringement. The Chenjesu are nowhere to be found in SCO, as far as I could see.

The SC2 ship lookalikes are fan-made content. If F&P have an issue with them, they should sue the creators of these ships, not Stardock. And as far as I know, the DMCA has nothing to do with trademarks.

That said, SCO does have content that could potentially be infringing (standard disclaimer: I am not a lawyer, this is merely a fan's opinion). The biggest issue in my opinion is the inclusion of the "Zoq" and the "Pik" in SCO, whose backstory is clearly derived from that of their SC2 counterparts. And then SCO has the exact same eight mineral types as SC2, with the exact same color coding, and these minerals include some that are unique to SC2, such as the Tzo Crystals (spelled TZO Crystals in SCO). Hyperspace in SCO does look very similar to SC2's hyperspace. Like I said before, I'm not qualified to say whether this is copyright infringement, but if I were in the shoes of SCO's designers, I'd steer clear of such things.
« Last Edit: January 02, 2019, 04:46:40 pm by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #475 on: January 02, 2019, 05:38:15 pm »

The Zoq in SC:O appear to me more like a nod to the original series. Yes, it is clearly derived from the original SC2 content, but as suchhas no influence on the SC:O game. They could've placed an alien race named "migrants" who could not have passed "the wall" built by an elected official in a neighbouring country, so they went and searched a better place elsewhere, and it would still not affect gameplay and justbe a nod to the original series current political situation.
The hyperspace look in SC2 is not the only one looking like that (B5 comes to mind), and I would still not find that infringing.
The minerals is where it starts, continues with the mysterious aliens of the "small humanoid UFO flyers meddling with Human history and interfering in Human adventures" (who activate the Precursor starbases for you, instead of giving ships)., includes planetary life information collecting aliens, ... are all small and minor contributors.
Having a separate "two-player fight arena" and "a single player adventure" is another step (although that alone again is very minor, as that is an obvious extension to the adventure game).
But the continuous announcement of "in future will include all from SC2" makes a threshold where you have to step in.
And in itself proves intent of infringement (which alone may constitute a copyright infringement, even if the actual game does not yet include any infringing material, which is a borderline here).

And fan-made ships infringing copyrights?
The DMCA notice should have to be sent to Stardock (so they can take the content down). If Stardock does not react, or keeps it online (stating it does not infringe), only then the software hosting could be asked with a DMCA notice, IMHO.
But attacking fans directly would be a surefire way to alienate your own fanbase...


Also, on Twitter several have bought the game via humblebundle (orsimilar), received a steam key, and could use the steam key despite steam officially not selling the game anymore.
« Last Edit: January 02, 2019, 11:09:37 pm by Krulle » Logged
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Re: Stardock Litigation Discussion
« Reply #476 on: January 02, 2019, 05:49:37 pm »

Quote
Having a separate "two-player fight arena" and "a single player adventure" is another step (although that alone again is very minor, as that is an obvious extension to the adventure game).

These would likely count as generic ideas, and thus not protected by copyright.

Quote
And fan-made ships infringing copyrights?
The DMCA notice should have to be sent to Stardock (so they can take the content down). If Stardock does not react, or keeps it online (stating it does not infringe), only then the software hosting could be asked with a DMCA notice, IMHO.
But attacking fans directly would be a surefire way to alienate your own fanbase...

Which is exactly why I think the fan-made ships should be left alone. By the way, when I was reading one of Paul's statements on CourtListener, it occurred to me that since the SC2 ship lookalikes mentioned in F&P's counterclaim appeared before SCO's release, Paul might have thought that these ships were made by Stardock. They were not. They were created by SCO players during the Fleet Battles beta, or perhaps by SCO's founders.
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Re: Stardock Litigation Discussion
« Reply #477 on: January 02, 2019, 05:55:43 pm »

According to Brad, both Valve and GOG have a policy that they automatically comply with all DMCA takedown notices regardless of their merits, which is presumably why both stores have taken the game down, even though both Valve and GOG know very well about this legal dispute, and Valve has already taken Stardock's side in the lawsuit. I, for one, thought that it was pointless for F&P to issue a DMCA against SCO for this very reason.

This policy from Valve and GOG makes sense. As I understand the DMCA takedown process, an online service provider can avoid liability for copyright infringement itself if it complies with a takedown notice. When a work is taken down following a takedown notice, the party accused of infringement can send a DMCA counter notice, and the online service provider can then restore the work without liability to itself.

So the next step for Stardock, if they really were acting in good faith, would be to send a counter notice to Steam and GOG to have SC:O reinstated.
However, the counter notice must include a statement sworn under penalty of perjury that Stardock has a good-faith belief that the material was removed as a result of a mistake or misidentification of the material. Falsely making such a statement would make Stardock criminally liable.

See https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act for more info.
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Re: Stardock Litigation Discussion
« Reply #478 on: January 02, 2019, 07:03:51 pm »

This policy from Valve and GOG makes sense. As I understand the DMCA takedown process, an online service provider can avoid liability for copyright infringement itself if it complies with a takedown notice. When a work is taken down following a takedown notice, the party accused of infringement can send a DMCA counter notice, and the online service provider can then restore the work without liability to itself.

So the next step for Stardock, if they really were acting in good faith, would be to send a counter notice to Steam and GOG to have SC:O reinstated.
However, the counter notice must include a statement sworn under penalty of perjury that Stardock has a good-faith belief that the material was removed as a result of a mistake or misidentification of the material. Falsely making such a statement would make Stardock criminally liable.

There are a couple of caveats on the DMCA counter-notice process:

First, there is a minimum 10 day (maximum 14 day) waiting period between takedown and restoration. 

Second, if there is ongoing litigation about the IP, the material must remain down for the safe harbor to be retained.

The DMCA was written under a lot of influence by the recording and movie industries, and therefore tends to lean in favor of the copyright holder.
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Re: Stardock Litigation Discussion
« Reply #479 on: January 02, 2019, 08:18:25 pm »

In meep-eep's link is a very good understandable Takedown Example, also showing the ten-day waiting time before putting the alleged infringing work up again, and when it becomes permanent.

But I wonder how steam can continue to sell through "Humblebundle" when they took it down on their own site.... (since they should've stopped issueing steam keys to humblebundle at the same time).
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