The Third Doctrinal War -- Stardock, Reiche/Ford, and Star Control


#2421

As a lawyer who practices some IP law in other common law countries (UK/Aus) this case has been an interesting insight into how the US legal system works (which I have no idea about). If the case was running here then it would be split up into at least two causes of action - a copyright claim for infringement of the “works”, plus a “passing off” case. The copyright claim would be relatively straight forward - identify the actual “works” that P+F had copyright in (e.g the SC2 races) and identify where SD had used them.

The passing off case would be more complex in that you would have to establish SD was representing to the ordinary customer purchasing SC:O that the game was being made by (or at least legally endorsed by) the owners of the copyright holders of the works. That is a much more nuanced case that goes into things like the table of comparisons that P+F outlined. As part of that case, you need to establish who the “ordinary customer” is - and that they would be reasonably familiar with the original SC/SC2 to recognise all the things in SC:O that were the same or similar. I could see that being one of the weaker points of the P+F claim as SC/SC2 are pretty old games and there would be a reasonable argument that most purchasers would not be familiar with the old titles. Although it would require SD to argue they are spending all this money so as to capitalise on market recognition for an old series no one is familiar with.

The DMCA injunction was very weird from my perspective - especially the judge effectively saying any damages from the takedown were the risk SD took when it developed the game without settling the copyright first. Normally in injunction proceedings here that question would never even come up - the primary question to be considered is what prejudice would arise from granting the injunction against not granting it. In this case, is the ongoing infringement against P+F’s copyright more prejudicial than the loss of sales SD would incur by having it removed from Steam/GOG? I could see a judge say that the infringement is more prejudicial as that is a more intangible loss that is hard to quantify, whereas lost sales are just money which P+F would have to undertake to make good to SD should they lose on the main claim. But the DMCA law is very different so how that figures into it I have no idea.

Anyway, just my 2c worth from a different perspective which has no relevance whatsoever to the actual case.


#2422

The DMCA is a very weird law that basically everyone but megacorp copyright squatters hates. 'Murica!


#2423

The simple answer here is to consider the case where Stardock is innocent of copyright infringement: do we really want a precedent that games can be removed from the market just because they MIGHT be infringing? The DMCA merely requires a good faith belief that some small portion of the product is infringing - YouTube videos have gotten taken down because the actual rain in the background was too close to a copyrighted soundtrack of rainy day ambiance.

A lot of people also consider the DMCA a bad law writ large, because it’s so ripe for abuse. Invoking a bad, easily abused system might be legal, but that doesn’t make it ethical.

The fact that this is one of those easily abused corner cases where 90% of the game is clearly non-infringing doesn’t help.

I’m still honestly not sure how I feel about it myself. I dislike the DMCA, and I especially dislike the use of the DMCA in ambiguous situations where it’s mostly original content. That said, Stardock went out of their way to advertise infringing content, and is still waging a massive PR war. If anyone was ever “asking for it”, it’s certainly Stardock, but I’m not sure I’m entirely comfortable supporting the “they were asking for it” rationale.

(I think the DMCA is perfectly legal, just to be clear - this is solely an ethical judgment, and I tried not to get in to the tactical/PR side of things.)


#2424

No, they are most certainly not separate issues. In war, an army that cannot eat is an army that cannot fight. This is a war of a different type but the rules still apply. A lawsuit cannot succeed when that army cannot afford to pay the lawyers for it. Brad has gone after their livelihood and their money. The DMCA takedown goes after Brad’s ability to do so in a small way. They are in no way separate issues.


#2425

The DCMA claim is not an injunction that bars Stardock from selling the game. I think that is a makes this confusing for a lot of people. Stardock can and is still selling the game.

Valve is still able to list the game and sell the game if they decided to. The DCMA claim just opens them up to liability if SC:O is infringing.


#2426

The distinction is P+F’s behaviour, while occasionally incompetent or confrontational, doesn’t really break any taboos or laws. Shuma outlines the mistakes they have made.

Brad on the other hand has openly and transparently lied with Trumpian fervour. He’s put together some frankly bizarre legal theory and launched a lawsuit apparently in an attempt to bully P+F into giving him the copyrights he wants in a settlement. He’s acted as if by even trying to protect their rights P+F are harming his poor employees, when really the costs are to his business and a result of his actions, and if he chooses to lay off people as a result it’s entirely his responsibility.

All he had to do was produce SC:O without trying to copy anything he didn’t have the rights to (i.e. not be a plagiarising thief) and not sue P+F. (Threatening to sue to get them to agree to stop using language like “direct sequel to SC2” is absolutely fine). If he had done that - none of this would have happened.

This right here is classic victim blaming language and it deserves to be called out. We all know what this means. We all know what someone is trying to do when they say “It takes two to tango”. So, @Grifman, please stop pretending otherwise with your baseless allegations of hypocrisy.


#2427

The thought experiment here I’m trying to get at is: if you had a good faith belief that the company that was suing you personally and trying to financially harm you had infringed your copyright, would you think filing a takedown was unethical?

My answer to that question is “for me, no”.

It’s really easy to say that someone else should be ethical and suffer a harm for it. But I think it’s sort of a strange position to take that someone who is in a legal battle should voluntarily forego a valuable defense tool because uninvolved third parties don’t like that tool.


#2428

This is a great point - and given the revenue split, if Valve were confident SC:O was not infringing it would actually make good financial sense for Valve to ignore the takedown. And as has been pointed out the case law on this puts the bar for copyright infringement in terms of “look and feel” and “game design” pretty high (in comparison to the bar for actual duplicated art or text or code)


#2429

For a complete layman who somehow knows more about American IP law than European (well, all the popular cases are American, so it’s not that odd), it’s interesting how the principals are similar, but the implementations differs a bit more.

I am very much for curtailing IP rights (thanks to Lessig, way, way back), but one way or the other, there is going to be legislation to quickly censor something infringing out of the internet, especially if it’s making money. What we have might be a (extremely) blunt instrument, but it is all that is available that takes effect in a short period to prevent further infringement. Seeing as an actual judge unmistakably considers it’s not a silly notion that there’s something wrong, I don’t see using the DMCA as unethical, despite my strong disrespect, in general, for the actual law.
On the other hand, I’ve found I’m much more emotionally biased than I have any reason to (which is close to zero), so I may be fooling myself.


#2430

Random thought, has there ever been a case where the defendant is the one who files a DMCA takedown?


#2431

This 100%. I can’t believe people are still crying “both sides!” about this situation.


#2432

I’ll second this one. In one of the youtube lawyer videos this came up and they mentioned they didn’t try to get the mark cancelled for disuse mainly because of ignorance that they could. They only realized when this whole thing started and they had to get lawyers involved. They had made active efforts in the past to get permission to do an Ur-Quan Masters follow up, so it’s not like they weren’t thinking about it at all. It was really stupid to let thing lie for so long and not familiarize themselves with the circumstances under which a trademark can be invalidated for non-use earlier when there was always the possibility of the trademark issue interfering with their plans.

Of course to actually get the trademark invalidated would have been a costly legal battle in and of itself which would likely have been counterproductive to undertake at a point when they were not free to use the mark themselves and thus couldn’t register or retain it. Still, they should have been actively considering such action and monitoring for opportunities.

And in general thank you for your post. As I’m sure is obvious I’m pretty sick of the both sides are bad crap and the constant accusations of things like “demonizing” one side that never seem to get backed up when challenged. It’s like seeing a mugging and hearing people excuse it by saying “well, it takes two to tango”.


#2433

I believe Brad tried to declare me their #1 advocate, but one of my first posts here was talking about mistakes they made. I also agree with Shuma’s points.


#2434

While SC2 has been one of my favorite games for decades, I honestly didn’t even know the guy’s names until I learned them from reading about this suit. When it comes to the notion of P&F fanboys I have to question if such a thing really exists. Is anyone here invested in any way because you are big followers of them personally?

The things they have worked on since have been rather far removed from SC2 in genre, platform, and audience. I’ve read a lot of internet about this case and I’ve yet to see someone chime in because they were a big fan of the creators of Skylanders (another thing I was unaware of prior to reading about this suit, not that they created it, but that it existed).


#2435

It’s weird given the number of lies told directly to people on this site who were originally supportive of the idea of the project that we still have so much talk about this where the Stardock narrative is given so much weight.

I don’t mean it to imply that there should be a knowledge barrier to comment because I 100% welcome all discussion. But you don’t have to read the legal documents or forensic dive through Reddit. You can just read the shifting narrative from the CEO right here plain as day.


#2436

To be fair, this is a really long thread and seeing the post count ping up recently there are likely people coming to it for the first time ever or in a while. There is that root for the underdog nature in most of us. Seeing sentiment seemingly so one sided without knowing the cause for that imbalance triggers that reflex.

However it’s one thing to ask why things seem so one sided. After being told why to then ignore all explanation and just to throw out a thought terminating cliche like “it takes two to tango” should be called out.


#2437

So earlier today I bought some popcorn and went and figured out how to use this twitter thing (I’m not even kidding about the popcorn).

From Stardock’s CEO just recently:

“It’s a reboot of the franchise. It can’t be a prequel because the events are completely different.”

Is it me, or didn’t he call it a prequel for the longest time?

Edit: It seems someone already replied showing him his own words calling it a prequel and his reply was.

“But we are talking timelines right? Whether it was called a prequel or a reboot is semantics. The question is, the timeline and story derivative? And it’s obviously not.”

Oh dear god.

Speaking of multiverses, in an alternate timeline in a more Snow Crash like universe his lawyers are hiring a hit man as we speak.


#2438

Yes, they are. From a legal standpoint (which is what matters under the law), what someone does with their money is their business (as long as it’s not illegal)… DMCA says absolutely nothing about part of it’s purpose being to prevent funds being used in a lawsuit against the person making a DMCA takedown.


#2439

Ugh, I wasn’t going to comment further since I can see it will be pointless but… for the record.

This isn’t about a victim and a perpetrator regardless of whatever narrative you’ve decided to create for yourself. It’s simply about two parties who are having a dispute and whatever legal and/or PR barbs they can throw at each other. It takes two to tango because it takes two parties to have a dispute.

One party sold a piece of the cake 25+ years ago and another party subsequently bought it. Now they’re arguing about who owns the cake.

I can understand being upset at the behavior at one of the parties but the level of vitriol is surprising. Reading through even just recent posts I don’t think demonizing is too strong a word. What I don’t understand is the level of fervor.

I think this is the root cause of our differing point of view. I see no victim here, only millionares having a schoolyard fight.


#2440

If we are back to a legal standpoint not a “dick move or not” standpoint then you are correct, it does not matter either way. Also if we are back to a legal standpoint I’m going to have to point out the DMCA was within the letter and spirit of the law and thar Stardock’s CEO personally gave them ample good faith belief in the notion that SC:O infringes on their copyrights by his own public statements and actions.