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Topic: Making a video to help spread the word about the Frungy Fund and Stardocks greed (Read 8180 times)
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GorillaChilla
Zebranky food
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Posts: 6
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Hello. While this is my first post here I have played The Ur Quan Masters and have lurked here for some years now. I recently made a Star Control 2 retrospective (don't worry i'm not trying to promote myself) and in it I mentioned the legal battle but tried to be as unbiased as possible. After spending a few more days looking into things and seeing Stardock go back onto their word about not using the original aliens I was slowly convinced that it was Paul and Reich that are in the right. More than that I am becoming increasingly scared that Stardock is in fact trying to shut down Ghost of the Precursors or at least neuter it to the point where it can't even be connected to Star Control. On top of that with them trying to Trademark Ur Quan masters I am also scared that they might try DMCAing this great open source project to force people to buy it from them. What I want to know is if I am justified in believing this? I want to make a video explaining why people need to support the original creators and let Stardock know that we wont let them get away with this but at the same time I want to make sure I am not misunderstanding the situation if I do. While I have done my own research and saved/archived a lot of links I am not a legal expert. I want evidence showing that Stardock is easily in the wrong here or evidence that I am misunderstanding this and I shouldn't try getting angry over nothing. My goal is to release a video before the release of Origins so people can be informed and spread the word while getting Paul and Fred as much help as they can get.
So would anyone want to help convince me one way or the other? I promise I in no way want to "click bait" or misinform anyone and ask simply to make sure doing this would be the morally correct thing to do.
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Frogboy
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You might want to read the Q&A before jumping to conclusions.
https://forums.starcontrol.com/487690/
No one is preventing Paul and Fred from making a new game. Not being able to use the Star Control trademarks without permission is not exactly an obstacle any more than making any game requires acquiring licenses to things like Visual Studio, Unity, Unteal, etc.
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Elestan
*Smell* controller
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I am becoming increasingly scared that Stardock is in fact trying to shut down Ghost of the Precursors
Well, they're definitely trying to do that.
or at least neuter it to the point where it can't even be connected to Star Control.
So here you'd get two different answers from the two sides:
P&F would say that "Star Control" is just the brand name that their game was sold under, and that they don't want to sell GotP under that brand anyway. But they want the ability to say that it is a sequel to Star Control 2, because it continues the story from that game.
Stardock would say (EDIT: Well, you can read Frogboy's response for yourself).
On top of that with them trying to Trademark Ur Quan masters I am also scared that they might try DMCAing this great open source project to force people to buy it from them.
The trademark threat is real, but I don't see a DMCA happening. Stardock isn't claiming a copyright to anything in UQM.
I want to make a video explaining why people need to support the original creators
Sounds good.
and let Stardock know that we wont let them get away with this
I don't think we're in a position to be that bellicose. If you set up some kind of petition or boycott, and get a hundred thousand people signed up, then maybe you'll have some leverage. Until then, my advice is to avoid making threats you can't back up.
but at the same time I want to make sure I am not misunderstanding the situation if I do. While I have done my own research and saved/archived a lot of links I am not a legal expert.
To start to come up to speed, I would suggest the fan FAQ. In particular, if you check out the "Commentary from Lawyers" section there are links to commentary on the case from two different YouTube lawyers.
I want evidence showing that Stardock is easily in the wrong here or evidence that I am misunderstanding this and I shouldn't try getting angry over nothing.
I think there is good reason for people to be upset at Stardock. However, this is a complicated legal case involving multiple kinds of intellectual property and contract law, so you're unlikely to find evidence that is so obviously irrefutable that someone with no background on the case can be quickly convinced.
My goal is to release a video before the release of Origins so people can be informed and spread the word while getting Paul and Fred as much help as they can get.
I will say that you need to be very careful doing something with the specific intent to cost Stardock sales. If you say anything that is not true, Stardock could sue you for libel. Even if you say something that might not be true, depending on where you live, Stardock could file a SLAPP suit against you (that's a suit that they don't really plan to win, but merely want to shut you up by forcing you to hire lawyers).
If you decide to do this, and post your talking points here ahead of time, people can probably fact-check them to the best of our knowledge. However, only a few people here are actually lawyers, and they will almost certainly not offer input on something like this. You definitely should not take anything anyone here says as legal advice of any kind.
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« Last Edit: July 27, 2018, 06:40:34 am by Elestan »
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Frogboy
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Elestan, as a partisan please do not try to speak for Stardock. It is dishonest.
As the trademark holder, Stardock has the right to determine what products or services may associate with it. A third party may not claim to be a sequel to someone else’s mark without permission.
Stardock not allowing a competitor to promote their new game as a sequel to its mark is not tantamount to blocking their game. I may not announce my new game as a sequel to Halo. I cannot blame Microsoft if I don’t make a game.
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Elestan
*Smell* controller
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Elestan, as a partisan please do not try to speak for Stardock.
Sorry, Brad, I thought you'd left us. If I'd known you planned to reply, I certainly would have let you speak for yourself. For those who do not know, Frogboy is the CEO of Stardock.
No one is preventing Paul and Fred from making a new game. Not being able to use the Star Control trademarks without permission is not exactly an obstacle any more than making any game requires acquiring licenses to things like Visual Studio, Unity, Unteal, etc.
Your examples are using a false equivalency to mislead the reader. Those other properties have their IP rights firmly established, but Stardock's control of the alien race names rests on a bunch of unproven legal assertions, and seems to contradict the behavior of the previous owners of the franchise. Why don't you hold off on making these sorts of statements until you've actually proven the assumptions they rest upon?
A third party may not claim to be a sequel to someone else’s mark without permission.
Is this another unproven legal assumption, or are you willing to share any case law that addresses the question of whether a copyright holder using the word "sequel" in a literary sense to refer to their own work is a nominative fair use of the trademark?
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« Last Edit: July 27, 2018, 04:33:03 pm by Elestan »
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Frogboy
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Elestan, I’m not going to litigate the case here. My willingness or not doesn’t make it ethical for you to pretend to be some sort of neutral arbiter.
If Paul or Fred would like to post in a thread I’d be happy to engage with them. If they choose not to that’s their business. But in either case, I won’t represent my opinions as being their legal positions.
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Frogboy
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The post I linked earlier is a FAQ. If you are interested in Stardock’s position you can read it there as well as pages and pages of debate. 
Here is that link again: https://forums.starcontrol.com/487690/
Regardless of ones position, the comments within it have vigorous debate which should get you caught up.
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rosepatel
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There are more neutral summaries out there other than the one designed as part Stardock's PR blast. I highly recommend ignoring their Q+A, and diving into the pleadings yourself, and reading with your own eyes. Some issues won't be conclusive, but many issues are understandable in plain English. Warning: it's a lot of reading.
These forums also have a summary of the lawsuit on their wiki. Every sentence has been painstakingly verified to evidence, which can be followed by clicking through the in-text citations. At least for the most contentious issues under discussion.
I wouldn't accept the truth of Stardock's statement that they are not preventing Paul and Fred from making a new game. There are indeed several things they are doing that will make it impossible, if not very difficult, for Paul and Fred to continue the Star Control 2 story, even under a new Trademark.
Stardock is trying to apply for Trademarks in the Star Control 2 aliens. They were not explicitly included in the assets that Atari sold them, and are now the subject of new Trademark applications that have not yet been approved. They are currently at issue in the lawsuit. Regardless of the how you might feel about the likelihood of these applications (and I've heard some pretty baffled reactions to Stardock's positions from IP lawyers, except only for the ones Stardock hired) the alien Trademarks are not currently a settled issue. They won't be settled until the lawsuit is done, in court, or in a settlement.
If Stardock successfully Trademarks the aliens, Paul and Fred will not be able to make a game with those aliens. ... Except by the good grace of Stardock, which will come at a price, and I'm not saying that it will be measured in dollars.
There are more severe examples where Stardock has looked for legal means to dispossess Paul and Fred from their intellectual property. In Stardock's settlement offer, they literally ask Paul and Fred to assign "any and all right, title and interest that they have in and to any and all intellectual property they own relative to the Classic Star Control Games". (Paragraph 3) If you can understand plain English, that means Stardock would own all of Paul and Fred's IP. Which would leave Paul and Fred with no more Star Control IP. They would have no right to continue Star Control 2 in any way, even under a new Trademark (e.g.: a new title).
The same agreement (Paragraph 5), asks Paul and Fred to "refrain from developing and/or publishing any work that is within the same genre of games as the Classic Star Control Games," for 5 years. So even if Paul and Fred were able to start over and imagine a new, original universe for a space game, Stardock has asked that they don't start development on that until 2023.
Stardock has said to fans that these settlement offers are misleading, although I am trying to quote them as best I can. Stardock has alleged that we don't know what the settlement discussions were like. I don't know how those unknown discussions align with Stardock themselves posting email threads where they turned down Paul and Fred's suggestion that Stardock maintain their exclusive Trademark, and Paul and Fred maintain the copyright in the games / lore / art. Paul Reiche had suggested last October, "separation should fall along our respective rights, Stardock having purchased the Star Control trademarks, and Fred and I owning all the IP rights to the works we created".
If you find that quoting from Stardock's settlement offer doesn't have enough context, and you find that the failed discussions in the publicized emails might be missing something, then we can also look at quotes from Stardock's latest pleadings from a few weeks ago.
On page 40 of their legal complaint, Stardock asks the court to "Invalidate Reiche’s and Ford’s alleged copyrights" (among many other things). If you understand Copyright as the right to copy any significant part of a game or story, then you might understand that losing their Copyright would make it impossible for Paul and Fred to make anything related to Star Control 1 or 2. (Even under a new Trademark.)
Just to anticipate Stardock's inevitable criticism, I frequently try to be careful to quote the parties in their own words. So I'll also alert you to two tactics that I have seen Stardock deploy on several differnent platforms. One is Stardock trying to evade or disclaim responsibility for things they have been quoted as saying (which I encourage you to verify for yourself by following those links). The other is Stardock applying a double standard where everyone else is posting a biased opinion, but Stardock's opinion should be treated as fact.
I would encourage you to be equally critical of everyone. Including me, if that encourages you to dive into those documents yourself.
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« Last Edit: July 27, 2018, 07:40:30 am by rosepatel »
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CommanderShepard
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Seems like other people have had a fair chance to input, I can't necessarily speak to all the facts as the court needs to determine those, but I would say you should be more cautious before making vindictive claims as it makes the case muddier. You're of course entitled to make a video about your opinion about it, but it may appear biased, and there are already videos on the topic from neutral observers.
What I can offer is my perspective as someone who used to be in a similar situation as you with many questions, so I investigated including by corresponding personally with both parties and neutral observers.
(1) Summary:
Though I was originally more enthused about Stardock's public opinions as I perceived their initiative for making an SC game sooner, I see now the biggest dispute in the case comes down to that the culmination of classic SC characters (the ones Fred and Paul developed) in Stardock's Star Control: Origins are overall too similar to not to be considered derivative of those classic characters and therefore constitutes an infringement on Fred and Paul's copyright, while Fred and Paul used the SC title (trademarked by Stardock) in their Ghost of the Precursors poster and possibly over twitter and their blog that lead others to confuse their relationship with Stardock's Star Control trademark and their SCO game regardless of whether it was intentional or not.
Stardock then claims to justify the separate and newer trademarks to the names of Fred and Paul's races by using them within its game, which on its own would normally be acceptable since trademarks are dependent on current use, but in this case, because the basis for the claim to the trademarks is already an infringement on Fred and Paul's copyrighted work via derivative in the same industry, it is very improbable that Stardock's filing for those newer trademarks will be upheld by the court.
-There was a point where Stardock indicated they were not interested in using Fred and Paul's copyrighted characters when looking at the correspondence offered in Fred and Paul's countercomplaint.
->But, Stardock in the past asked Fred and Paul about using their characters for various projects multiple times, and Fred and Paul rejected Stardock every time.
->At a certain point, Stardock then stated they would no longer conform to Fred and Paul's wishes to avoid using their classic races, and eventually advertised DLC content using derivatives of some of Fred and Paul's characters and publicly stated plans to add all remaining Fred & Paul classic races to the SCO game.
(2) Majority win for Stardock
If Stardock were to win the majority of their claims, from what I see, it wouldn't necessarily be the end of the Ghost of the Precursors project, it would only put constraints on Fred and Paul's original plans.
In the worst case scenario for people who side with Fred and Paul,
->Stardock would win the trademarks to the names of Fred and Paul's characters and then refuse to license the right to use those names to Fred and Paul, preventing Fred and Paul from using them in commerce.
->In a more likely scenario, since one of Stardock's claims in their complaint is trademark infringement via confusion due to the original Ghost of the Precursors project, it would more likely lead the judge to decide that Fred and Paul will have to rename their game and/or pay damages for the trademark infringement.
->If Stardock were to win the majority of their claims, then it would be possible the current UQM as we know it would be shut down in some way on a similar basis as mentioned before, though not a guarantee either way as Stardock has made no legally binding promises.
->Fred and Paul would have the option to dispute Stardock's claims to the trademarks to the names of the classic SC races at the trademark office, but Fred and Paul may not have the money to dispute those claims and would already have to pay damages for the SC trademark infringement.
(3) Majority win for Fred and Paul
For Fred and Paul's side of the case, if they won a majority of their claims, then the worst for Stardock would be
->Stardock would lose the trademark to Star Control which seems highly improbable, and in that case most likely it would be ruled anyone could use it, including Stardock's competitors.
->Stardock would have to completely remove any derivative of Fred and Paul's races, by name, image and story.
->Stardock would pay damages for unfairly (legally unfair, not ethically) claiming the trademarks.
(4) Balanced ruling for both parties
To me, the most likely and most moderate scenario arising from this dispute seems to be:
->Stardock will have to change the races that Fred and Paul claim infringe on their own copyrighted characters, though not remove all of the content originally relating to them.
->Fred and Paul will have to rename their game due to the trademark confusion having already spread to the public, though not pay damages because they did not use the alleged infringement in commerce.
->50/50 toss up that Stardock will pay for damages.
->Stardock will definitely retain their Star Control trademark.
->Fred and Paul will definitely validate their copyright.
If you're wondering why both parties bother debating these highly probable or improbable scenarios, it's apparently because they're legally obligated to file such claims to the court if they want to mention them at all in any way for any grounds for any of their arguments. The legal representatives for both sides don't necessarily expect to win every claim and likely both advised their respective clients against some of the audacious claims. Fred and Paul will win some of their claims and Stardock will win the others.
So most likely, there is no reason for supporters of either side to panic, there are just a lot of aggressive opinions floating around.
And additionally, both parties can still agree to settle on their own terms at any time before the trial.
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« Last Edit: July 28, 2018, 09:39:54 am by CommanderShepard »
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Lakstoties
Frungy champion
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There's a bunch of strangeness with this case overall, but read the final amendent claim from Stardock and the amended counter-claim from Fred and Paul. (Key thing that is twisted from many Stardock sources, Stardock filed legally first.)
Stardock mispresents the scope and function of trademark ridiculously, often running in stark contrast to the United States Patent and Trademark Office's presentation of them, the Lanham Act itself, and the Trademark Manual of Examination Procedure. You can't have a sequel to a trademark... Because a trademark does NOT denote any kind of content at all. Period. It's a mark used in trademark to denote the source/origin of a product... Nothing to do with the product itself. In fact, direct association of the mark with aspects of the product it is on often weakens the mark greatly. And Fred and Paul DO NOT need anything from Stardock to make their game, despite Stardock waving the "Star Control" mark around. Ghost of the Precursors before this lawsuit could have been made without issue, so long as the product was NOT BRANDED with the Star Control mark. You can talk about a Trademark, reference it, and do many other non-trademark uses... You just can't use it to mispresent where your goods and services come from by using it as a brand/mark upon your products and services. Companies talk about each other's trademarks all the time and even have advertising on the product to directly challenge the other trademarked term. It's pretty common place. Just check out the store brand labels.
Also, trademark cannot limit freedom of expression. That would be a first amendment violation as a federal law would prevent freedom of expression. Given how Stardock has been trademarking the alien races from Star Control 2... which they have NOT even done for their own races from Galactic Civilizations despite how much power of protection they claim trademark is... Limitation of expression seems to be their angle with the mass filing of these trademarks. It is made even more apparent when the trademarks for "Crimson Corporation" and "Fwiffo" were filed by Stardock a few days AFTER Fred and Paul posted their GoFundMe page that used those two unique terms in the literature. This shows intent. Fwiffo is a copyrighted character name used within the product and Crimson Corporation is another unique name used within the product... Why file for them immediately after your opponent puts them on a legal defense fund raiser page and not before with the rest? These terms aren't new, the product has existed for 25+ years, so all the names have been known... Why after the GoFundMe page? Limitation of expression, in direct opposition of what years of law and court precedence that exists to prevent trademark from doing so. Stardock seeks to misuse trademark to silence opposition.
These trademarks that Stardock keeps filing for have NEVER been used as trademarks... Period. Accolade never used them. Atari never used them. They're not even common law trademarks. And if ANYONE has the rights to claim them as even common law trademarks... It's the UQM Project, not Stardock. They were never transferred to Stardock, as the bankruptcy sale manifest listed NONE of them. Trademarks have to be explicitly transferred, even common law ones... Especially common law ones.
And the counts Stardock's amendent claim have huge holes in them. Going over the laws and looking at other cases that have used those laws successfully... There's a night and day difference. The laws barely at best seem applicable, but further examination... it falls apart. Fred and Paul's use of the "Star Control" mark can easily be seem as nominative use and they have yet to use that mark in the context of an actual trademark. Remember, Star Control 2 -- The Ur-Quan Masters is the full name of their copyrighted work. So... Unless they are specifically branding a product with the mark... it's not being used as a trademark.
Check at the end of the wiki page for laws and examples of trademark material: http://wiki.uqm.stack.nl/Stardock_Systems_Inc._v._Paul_Reiche_III_and_Robert_Frederick_Ford
After looking the Likelihood of Confusion factors, the Rogers Test, Trademark Fair Use, Functionality Doctrine, and Trademark Strengths... Stardock's claims disintergrate. And the copyright infringment claim for Star Control 3 from Stardock? Fred and Paul had an agreement with Atari for the GOG.com distribution... that Stardock assumed as part of their purchase of Atari's part of the Star Control 3 rights. Hence, I question if that whole claim can be seen as prejury. So, how can they violate copyright for something that had an agreement for?
There's a lot that Stardock has done to betray their own narrative, even their final amended claim itself runs directly counter to their FAQ. Ultimately, they could have literally done nothing and been better off. Focus on their game, let Fred and Paul do whatever they wanted. Because no one was really challenging who owned the Star Control mark and Stardock has a game coming out that would establish the mark as indicative of Stardock as the source, Star Control: Origins. Stardock has self-harmed themselves in far more elaborate ways than Fred and Paul even could have ever done with referencing the "Star Control" nominatively in talking about their work Star Control 2 -- The Ur-Quan Masters.
But, Stardock WANTS the whole thing regardless of what laws exist. They are not right... But they are trying to financially fatigue their opponent into capitulation. It's a tactic they've used before. It's why they keep pushing themselves so strongly and blatantly, shock and awe. It's why their "settlement" offer was so one sided. They fully expected their opponent to roll over after such a strong initial stance. Stardock tried to bully over their opponent. It hasn't worked and they are scrambling for any other option as evidence rises to show how wrong they are. They had a limited time window for such a tactic to work, and it's past that point. As more scrutinity looks at their case and behavior overall... it starts to grow more and more obvious the problems in their position.
I wasn't so strongly against Stardock... I was very interested in what Stardock would do with the title... Then, they quietly filed for "The Ur-Quan Masters" mark and every alarm bell went off in my mind and many people started to look at Stardock closely. And many found fault after as they continued looking and Stardock's behavior started to get stranger and stranger. Now... Here we are.
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