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Author Topic: Stardock Litigation Discussion  (Read 39904 times)
Elestan
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Re: Stardock Litigation Discussion
« Reply #555 on: February 01, 2019, 05:03:32 pm »

Good find, and it sounds like Mr. Wardell, but has been posted by a "deleted user".

I'll vouch for its authenticity.  "Deleted User" is Brad's old Frogboy account, which got deleted by Discord after he used it to make doxing threats.
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Krulle
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Re: Stardock Litigation Discussion
« Reply #556 on: February 01, 2019, 08:27:50 pm »

As I'm not on Discord whatsoever, I missed him being banned and even his account being deleted....

As I wrote above, the captures were in his style....
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tingkagol
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Re: Stardock Litigation Discussion
« Reply #557 on: February 03, 2019, 10:28:18 am »

So, I was posting a bit in the Stardock forums (hello to Stardock lurkers who read this) and some users there had this to say about why the 1988 Agreement is still in effect:

https://forums.stardock.com/492870/page/4/#3739870
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If there are no sales of the game, the royalties due are zero. This does not constitute a cessation of payment of royalties, this would only be the case if there were sales made for which they were not paid. They were in fact paid the zero dollars due on zero sales.
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Zero royalties where there are no sales would be within the terms of such a contract...unless there was some annual fee or something - outside the concept of sales/returns/royalties...

Atari did acknowledge in 2011 that the license had lapsed following Reiche's opposition of the initial sale of the classic SC games on GOG. But assuming Atari did not:
1. Are the above claims valid per the 1988 agreement?
2. Assuming SC1&2&3 weren't sold anywhere (which is counter to a publisher's job) thereby resulting to zero sales for 3+ years, does that mean the license is still active?
3. Is there any available sales figures that indeed points to zero sales of the classic games during the time P&F assumed expiry of the license?
« Last Edit: February 03, 2019, 10:38:27 am by tingkagol » Logged
Krulle
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Re: Stardock Litigation Discussion
« Reply #558 on: February 03, 2019, 11:40:16 am »

the agreement ends if the publisher files for bankruptcy... (point 7.1 of original agreement 1988)
Original contract does not seem to contain an end clause if royalities are below a certain limit.
The original contract defines a "term".
The "sales term" (point 2.2) is relevant here.
This License Agreement shall continue in effect with repect to the sale, licensing and sublicensing of each Work, Derivative Work and Derivative Product, for as long as such Work, Derivative Work and Derivative Product are genrating royalities to the Developer at least of $1000 per annum.

The addendums just define more Works being part of the contract....

IF Stardock could prove that the works did create royalities of more than $1000 per year, but those did not get paid to developer because of advances that still have to re-earned, then the contract would be in force, were it not for the bankruptcy term...

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Elestan
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Re: Stardock Litigation Discussion
« Reply #559 on: February 03, 2019, 10:39:10 pm »

So, I was posting a bit in the Stardock forums (hello to Stardock lurkers who read this) and some users there had this to say about why the 1988 Agreement is still in effect...

Seldon seems like a reasonable person, and they're doing the work of supplying linked references, which I appreciate, but they're quoting Stardock's FAQ as though it were gospel, when it is, of course, at least as one-sided as P&F's blog.  For one thing, I don't think we can take Stardock's word about what P&F wanted during settlement negotiations without evidence, just as we were hesitant to take P&F's word about what Stardock was demanding until they showed the settlement proposals.  

Regarding settlement advances, I don't think Stardock has ever said so directly, but I suspect that they are relying on §5.1 of Addendum 3, in which Accolade agreed to advance $20,000 in royalties to Paul, in $10k/5k/5k installments.  However, that section specified that these were advances against royalties payable under §5.2 of Addendum 3, and §4.1 terminated that Addendum three years after signing because Accolade never released a game under it.  Once that Addendum expired in 2001, I doubt that those advances could be applied to the $1000/year required under §2.2 of the original agreement.

Plus, we have Atari's emails indicating that it agreed that the agreement had terminated, and as Krulle indicated, §7.1 of the original agreement would have terminated it upon Atari's bankruptcy.

Ah, I see Brad eventually falls into his usual pattern of resorting to personal insults.  Keep a thick skin, don't take his bait, and let us know if this becomes another example of him banning people for politely disputing the Stardock position.
« Last Edit: February 04, 2019, 10:12:09 am by Elestan » Logged
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Re: Stardock Litigation Discussion
« Reply #560 on: February 03, 2019, 11:19:41 pm »

Ah, I see Brad eventually falls into his usual pattern of resorting to personal insults.  Keep a thick skin, don't take his bait, and let us know if this becomes another example of him banning people for politely disputing the Stardock position.

I agree that bringing up the 1988 agreement was irrelevant to the topic, though, as the initial point Brad made was that (according to him) F&P's arguments in the Injunction Junction post don't hold water, and that their DMCA notices serve no purpose but to harm Stardock for no good reason. Whether you agree with that or not, this argument is separate from the issue of who owns the copyright to SC1 and SC2, which is most likely our greatest concern here. As I've said before, I firmly believe that the copyright to SC1 and SC2 belongs to F&P, but I'd prefer that SCO is not found infringing on F&P's copyright (even though I brought up some examples before where I personally find infringement to be very likely - but then again, it's just a random SC2/UQM fan's opinion).

As for the substance of Brad's arguments, yeah, we've already discussed that. I also don't think that F&P claim that they own the concept of hyperspace or the color red, but rather that they own an expression of hyperspace that consists of space permeated by red light that is full of dancing lights and holes in space leading to star systems (and traveling ships). Whether that already constitutes copyrightable expression or that expression should be much more specific (like the shape and the content of the holes, the shape and the size of the lights, which are different between SC2 and SCO), I'm not qualified to answer.

And of course there is the question of whether there was any point in F&P serving the DMCA notice against SCO. From what I've read about the DMCA takedown process, it's typically used before litigation. Now that litigation is already underway, what purpose would the takedown serve? On the other hand, the judge did deny an injunction against F&P serving DMCA notices, so at least she thinks that there may be a point for F&P to serve these notices, and she is definitely more qualified to decide whether there is any point in the takedown than I am.
« Last Edit: February 04, 2019, 02:38:33 pm by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #561 on: February 03, 2019, 11:47:52 pm »

I've just read Brad's post....
Hmm...

"unrelated"
"ideas not copyrightable"?..

Actually, when dance moves are copyrightable (Fortnite cases), certain expressions (ideas) certainly are.That's what books, films, and images are about.
And hammering on the Street Fighter (Capcom) case does not help, as the judge did find the games substantially similar. (Source) The idea of a martial arts game was not being defended by Capcom, but the characters, moves, and control sequence for the special moves were.
In the streetfighter case, "The court did not find Data East’s [defendant] evidence persuasive, as while other outside sources may have influenced the development of the Fighter’s History characters, there was no doubt that Street Fighter II characters also provided a significant source of inspiration."
Also regarding the similarity in how the special moves were activated (button sequence): "While the Court was disturbed by these “coincidences” in some of the arbitrary control sequences, it concluded that because the control sequences did not constitute protectable expression, these isolated similarities were not actionable. "
Also, "The court found that three characters and five special moves in Fighter’s History were similar to protectable characters and special moves in Street Fighter II. ", but the final "subjective analysis of similarity"  (not objective, so not a clear cut case, an appeal court may have a different subjective feeling) found that Capcom held no copyright because the stuff was known from before (outside of games).
Resulting in "the court determined that Capcom had failed to demonstrate a likelihood of success on the merits or even serious questions concerning the merits". (they failed to show that they actually had a copyright.)
Finally, the Street Fighter distributor lost, because martial art games simply have typical moves transferred from martial arts, and those weren't copyrightable in the game because "known", and the button sequence often followed that move.  Read Claude Stern's interview on Street Fighter 2 History page for a short summary (he was the defendant's attorney). (the passage/paragraph starting with "I think [Data East was] very nervous.")
Also, it was no full-blown case, but "only" a request by Capcom for a preliminary injunction against the alleged copy.

Now if Stardock could prove that scientifically a "HyperSpace" is likely to be red-shifted (and not just black), will likely have moving "streaks" and will have a hole near gravity wells, then F&P could not claim a copyright on that FTL expression (or the scientific paper would lead to them losing the copyright held until then), but again, I presume if Stardock would be able to prove that, earning money with games would become a lucrative side-job when selling games to the crews outward bound from our Solar system with the HyperSpace drive provided by Stardock Inc.


I was not that happy about the DMCA at that late stage, but F&P did agree to not send a DMCA while Stardock had their preliminary injunction in court phase...
« Last Edit: February 03, 2019, 11:53:01 pm by Krulle » Logged
tingkagol
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Re: Stardock Litigation Discussion
« Reply #562 on: February 04, 2019, 12:48:25 pm »

So, I was posting a bit in the Stardock forums (hello to Stardock lurkers who read this) and some users there had this to say about why the 1988 Agreement is still in effect...

Seldon seems like a reasonable person, and they're doing the work of supplying linked references, which I appreciate, but they're quoting Stardock's FAQ as though it were gospel, when it is, of course, at least as one-sided as P&F's blog.  For one thing, I don't think we can take Stardock's word about what P&F wanted during settlement negotiations without evidence, just as we were hesitant to take P&F's word about what Stardock was demanding until they showed the settlement proposals.  

Regarding settlement advances, I don't think Stardock has ever said so directly, but I suspect that they are relying on §5.1 of Addendum 3, in which Accolade agreed to advance $20,000 in royalties to Paul, in $10k/5k/5k installments.  However, that section specified that these were advances against royalties payable under §5.2 of Addendum 3, and §4.1 terminated that Addendum three years after signing because Accolade never released a game under it.  Once that Addendum expired in 2001, I doubt that those advances could be applied to the $1000/year required under §2.2 of the original agreement.

Plus, we have Atari's emails indicating that it agreed that the agreement had terminated, and as Krulle indicated, §7.1 of the original agreement would have terminated it upon Atari's bankruptcy.

Ah, I see Brad eventually falls into his usual pattern of resorting to personal insults.  Keep a thick skin, don't take his bait, and let us know if this becomes another example of him banning people for politely disputing the Stardock position.
It's unfortunate that once I brought up clause 2.2 of the agreement, they just cut the discussion and instead went back to talking about DMCA abuse and how P&F acted immorally, etc, and that I, personally, am justifying their actions. I really did want to know why Stardock thinks it's invalid - to quote Jafo: "This is where people fall down.....quoting specifics in isolation, as if since it's written down somewhere it must be true and absolute" - without really elaborating. Combine that with Frogboy's "enough" I might as well just leave it at that. For a party claiming P&F do not really own the classic SC copyrights, they sure are really salty about people bringing up the one document that could answer all their questions - the '88 agreement.

To the Stardock users who happen to read this, I hope you can help shed light on Stardock's mysterious interpretation of the contract's texts. It's been a mystery for the last year or so.
« Last Edit: February 04, 2019, 12:54:08 pm by tingkagol » Logged
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Re: Stardock Litigation Discussion
« Reply #563 on: February 04, 2019, 01:14:58 pm »

Ah, I see Brad eventually falls into his usual pattern of resorting to personal insults.  Keep a thick skin, don't take his bait, and let us know if this becomes another example of him banning people for politely disputing the Stardock position.

I agree that bringing up the 1988 agreement was irrelevant to the topic, though, as the initial point Brad made was that (according to him) F&P's arguments in the Injunction Junction post don't hold water, and that their DMCA notices serve no purpose but to harm Stardock for no good reason.
I agree I may have veered off topic. I was only replying to a post about how P&F were adamant at using the "Star Control" mark to refer to GotP and retweeting other posts - that resulted to the USD 225k damages that Stardock was demanding for their settlement proposal; pointing out the questionable weight of the damages when even Brad enthusiastically echoed the same announcement before the lawsuits. It then went to the classic "they brought the lawyers first and hired a PR campaign" which ended in me bringing up the 88 agreement. Oh well.
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Re: Stardock Litigation Discussion
« Reply #564 on: February 04, 2019, 03:08:46 pm »

I've just read Brad's post....
Hmm...

"unrelated"
"ideas not copyrightable"?..

Actually, when dance moves are copyrightable (Fortnite cases), certain expressions (ideas) certainly are.That's what books, films, and images are about.

I think that when Brad talks about "ideas", he doesn't mean expressions as they are defined by copyright law. Rather, he seems to mean more generic things such as tropes, styles and genres, screen layouts, etc. Of course, that's where Brad accuses F&P of trying to claim a copyright on generic ideas, and unfortunately F&P's chart in the Injunction Junction post can be easily (mis)understood as doing that. I think I posted what I thought of one of F&P's earlier filings before, where I also had an impression that F&P tried to claim copyright to generic ideas. I mean, even if Stardock based many of their game's ideas on SC2, so what? As long as they've put enough of their own creative spin on those ideas, and don't outright copy expressions (visual appearances, stories, copyrightable setting elements) from SC2, they should be safe. Of course, the appearance of hyperspace, the mineral categorization, and the ZFP do seem very problematic, and there may be copyright infringement there.
« Last Edit: February 04, 2019, 03:25:05 pm by PRH » Logged
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Re: Stardock Litigation Discussion
« Reply #565 on: February 04, 2019, 04:55:26 pm »

Where is the separating line between an idea and an expression?


Anyway, we're getting hypothetical, and indeed, Stardock is either denying copyrightability based on "too broad copyright, they want an idea!" or based on "too specific copyright, they want a colour!".
Of course they have to defend their case.
And it is an argument.
Whether it's a valid argument remains to be decided.
I bet they're still looking hard to find examples of whatever they can find with FTL-dimensions and why they must be red-shifted, so that copyrightability for this specific expression can be denied to F&P.

I wish I could jump forward in time to have a look back at how the judge and the jury decided and reasoned (when taking a break from playing our favourite vapourware).

Oh, wait. I can.
*Sleeps for eight hours* Nope, not there yet....
DANG, this waiting is boorinnnng.
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Re: Stardock Litigation Discussion
« Reply #566 on: February 04, 2019, 06:09:06 pm »

Where is the separating line between an idea and an expression?

The Ultronomicon page on this lawsuit quotes this passage on this very topic:
Quote
At one end of the spectrum, scenes a faire – the stock scenes and hackneyed character types that "naturally flow from a common theme" – are considered "ideas," and therefore are not copyrightable. But as plots become more intricately detailed and characters become more idiosyncratic, they at some point cross the line into "expression" and are protected by copyright.

So we can see that while there is no sharp, clear line between ideas and expression, there is nonetheless a line. And I personally don't think that simply coloring hyperspace red is copyrightable - the expression has to be more specific than that (Babylon 5 has red hyperspace, and yet F&P aren't suing them, even though someone on the SCO forums sarcastically suggested that they might do that). Now, red hyperspace with holes in space with stars at the center, and blinking points of light is definitely closer to F&P's expression, although, once again, we all agree that it's up to the court to decide whether Stardock has really crossed the line here.
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Elestan
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Re: Stardock Litigation Discussion
« Reply #567 on: February 04, 2019, 06:12:13 pm »

I think that when Brad talks about "ideas", he doesn't mean expressions as they are defined by copyright law. Rather, he seems to mean more generic things such as tropes, styles and genres, screen layouts, etc. Of course, that's where Brad accuses F&P of trying to claim a copyright on generic ideas, and unfortunately F&P's chart in the Injunction Junction post can be easily (mis)understood as doing that.

This is a good example of why I find ethical fault with Brad's statements:  He knows that P&F aren't actually trying to claim that they own "ideas", like the color red, or the concept of hyperspace, but he persists in misrepresenting their position that way because it makes a good sound bite, and misleads those who do not spend the time to read P&F's post in depth.  I find taking advantage of people's legal naivete that way offensive.
« Last Edit: February 04, 2019, 06:32:14 pm by Elestan » Logged
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Re: Stardock Litigation Discussion
« Reply #568 on: February 13, 2019, 08:49:02 pm »

Yeah, with that reasoning of Stardock's lawyers, you could not trademark ANY word previously used in a film, book, game, ....
E.g. Skynet (terminator). In Europe/Netherlands it is a registered trademark for an airline (1), telecom services (especially communication over computer networks - like Skynet in the film) (2), parcel service/courier services (3). Many more have been denied.
Since Terminator is older than any of those registrations, ...

Yeah, it's worth a try for them, and some young attorney can thus bill some premium hours to gain experience....

If a young attorney wants to argue for a novel interpretation of trademark law or assert that an asset purchase agreement says something that it does not, well, that is exactly what courts (and administrative tribunals) are for: evaluating legal claims.

But the system breaks down if officers of the court are permitted to misrepresent their evidence. That is what I take issue with.
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« Reply #569 on: February 18, 2019, 08:53:59 am »

The one thing I wonder about that video is that while it is certainly not a valid example of the use of "Frungy" in commerce, it is labeled as a playthrough of Star Control 2, which might play into claims of consumer confusion in some way?

Would the confused consumer(s) here be the featured player or the viewers? Given how dissimilar the marks are, this may be more of a brand substitution issue than a trademark problem per se.


Just wondering:  Why do you feel it was short-sighted?  Since Stardock is indemnifying them, their interests are aligned to at least some degree.

To some degree.

I think that the potential for disagreement between Stardock and GOG (based on the claims asserted regarding sales of the Classic Games following the end of the confidential GOG-publisher agreement) is straightforward, so I will just consider this from Valve's perspective. While I don't think that there is any obvious conflict of interest in this case, representing a client isn't just about winning or losing one particular case - it should be about advancing that client's interests across the board.

Remember that when NP began representing Valve, Stardock's motion for preliminary injunction was still pending. It's been a minute since I read Stardock's motion, but it basically argued that, as applied to SCO, the DMCA notice-and-takedown process was unconstitutional, as it would allow F&P to issue a sort of backdoor injunction to which they were not otherwise entitled. Let's imagine that this argument was persuasive, and that the notice-and-takedown process was found to be unconstitutional in these circumstances.

Keep in mind that the notice-and-takedown process is a voluntary means by which innocent hosts can gain access to various safe harbors - a way for service providers to avoid liability for copyright infringement claims premised upon the actions of their users. What happens to Valve's safe harbor if F&P are legally restricted from using the notice-and-takedown process?

Sure, it's possible that NP would have been able to thread the needle here - as NP failed to do with Stardock's motion for a gag order - and get a ruling which would keep the DMCA intact while preventing F&P from using it; effectively transforming the safe harbor into blanket immunity. But, once the judge decided to recalibrate the balance Congress struck with the DMCA, anything's possible. She could have just as easily eliminated the safe harbors in this sort of situation (restoring the general rule, under which the hosts would be liable), or reasoned that any ongoing litigation is a red flag in and of itself (thus eliminating the need for any formal DMCA notice). How thrilled would Valve have been to learn that its own attorneys had opened the door to one of those outcomes?

But that obviously never came to be. Consider instead that across the Bay Bridge, Valve is currently litigating the Dota 2 case, which was cited in Stardock's motion for preliminary injunction1 and discussed earlier in this thread (as well as by Denning and Elestan in a previous thread). According to its pleadings, Valve owns copyrights in DotA and Dota 2, which the defendants in that case are infringing.2 The allegedly copied game elements include: (1) characters, (2) visual depictions of fictional locations, (3) musical compositions, and (4) the overall look and feel.

Because Valve is claiming copyright in user-created mods, Valve's claims only work if the "mastermind" rule from the Malcolm X and Innocence of Muslims cases can apply to videogames, even when some of the contributions were made pseudonymously, without any sort of two-way consultation. The copyrightable characters in question are the various hero characters (whose individual backstories are somewhat limited). And Valve was permitted to make out claims based on allegedly similar characters as depicted in advertisements for the defendants' games.

There’s no legal reason that Valve's attorneys in this case cannot argue that each contributor is entitled to a separate copyright on any game element he creates, that Rocky Balboa represents the minimum standard for a character to warrant copyright protection, or that litigants need to provide side-by-side in-game screenshots to demonstrate infringement. But, at best, any inconsistent positions taken by Valve's counsel here will find their way back to Judge Breyer. At worst, if NP's arguments are successful in this case, Valve will see its own arguments used to challenge its claims in a case where it actually has money on the line. Why would Valve want to open itself up to that sort of counterattack (especially if it is indemnified in the Star Control case)?

Having written all of that, as more and more discovery is completed, our ability as outside Observers to understand the issues in this case wanes. It is certainly possible that NP does not plan to advance any of these troublesome arguments (suggestions to the contrary being more PR than substance),3 and will instead rely on creative arguments no one here has foreseen.

---

[1] Stardock used the case to make an argument about the sufficiency of the pleadings, not the substance of the allegations.

[2] Blizzard is also a plaintiff in the Dota 2 case; F&P's position appears to be consistent with that of their corporate overlords.

[3] Though both Frogboy and NP have been pushing the "highly relevant" Street Fighter II case (as described by Krulle above) lately. Among many other things going on in that dispute, the trial court found that a number of the SF2 characters were not copyrightable - the game had been designed with a paper-thin “World Warrior” plot and familiar stock martial artist characters so that SF2 would be immediately accessible to would-be players at arcades.
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