My thinking is that in the same way that rent seeking has been for years a motivator to stifle creativity and competition in software development - see the regular beefs between Samsung and Apple over stuff like gesture recognition - looks to me as likely that we can see similar behaviours in the video games world.
The precedent is that somebody has tested the ability of DMCA notices to remove access from digital storefronts without needing to have copyright registered (see the old games issue) or to have proved in a court infringement (yet, or ever).
Rent seekers will love this: claim prior art on whatever - and given the “maturity” of video games we can find a reasonably similar precedent for pretty much every game mechanic, UI gizmo or artistic take on a subject - by acquiring rights, issue DMCA notices and ask for a cut of the income.
This happens to general software, why not to video games? Especially when the barriers of entry to obtaining outcomes like denying incomes can be achieved with what are just purely administrative proceedings (see @SamS concerns above).
I will concede that I am a pessimist, but it’s not like there are reasons to walk around this world like Voltaire’s Candide.
PS: FWIW the Blurred Lines case is ironic and troubling too. It sets a precedent for copyright holders to seek compensation for, not just covers, but just vague stuff (in comparison,
see Led Zeppelin lifting chords from a Dutch prog rock ensemble). The irony is that the song in question is an awful rapey piece of derivative crap.
I could write a piece of music with every musical chord permutation, and likewise make a crap game with a short type of every kind of game dynamic, then live out my life in luxurious wealth as I sue everyone that makes anything forever. CR/TM/IP law is irrevocably broken in this country.
To address the last bit first, I totally agree about the blurred lines case. That actually sets a precedent that’s troubling.
I also agree that people are opportunistic and one should be wary of mechanisms that set up the possibility for abuse. My disagreement is that this sets a new precedent, or sets the stage for the types of abuse that concern you.
P&F did get all required copyright assignments last year. So this doesn’t set a precedent that someone without a registered copyright, or at least a well documented claim including literal copyright notices on the product. can file a DMCA. Also the courts didn’t actually uphold or even decide anything of this nature in the recent judgement, though the background did imply that P&F have the rights granted to them by the original contract including the copyrights. The bar has not been lowered or moved in any general way that would apply to people attempting to abuse the system with baseless DMCAs.
Also unless there’s been recent news I haven’t even heard that Stardock has filed a counter-notice. If and when they do, and if and when Steam and GoG deny it and keep the content down, that also is not a precedent that can be generally abused. If they do keep it down it is for two combined reasons, there’s a current existing lawsuit over the rights, and secondly and most importantly, Steam and GoG are party to those lawsuits. How this affects their safe harbor is vastly different from a situation that does not include those elements.
Heh. Good point. It is ironic that we’re talking about the defendants potential abuse of legal mechanisms when the whole case is about the plaintiff trying to capitalize on mention of prior products the defendants created into a “this will cost you so much you better just pay me and hand over everything” lawsuit. Especially when the offending blog post was already modified.
Well yeah I just bought the rights to Twilight Zone™ so now I can use the script and characters from the movie as well as any past episode. That’s how this is going to go down and if you don’t like it Mr. Scriptwriter I’ll sue you into oblivion. Also your merch is now mine.
And this thread moves from confusing copyright and trademark to confusing copyrights and patents. Your use of the term prior art is a giveaway.
Most of the litigious nonsense in non games software revolves around patents, precisely because the bar for copyright infringement in terms of the appearance and functionality of software has always been so high.
Just one more specific point. Generally DMCA notices happen before a court case. That is the nature of a DMCA notice. It’s typically stage 1, akin to a cease and desist letter. The vast majority of DMCA notices are for things that have not been decided in court to be infringing. There’s really no precedent here. This more than anything in your explanation is business as usual.
The thing that is unusual in this is not that a DMCA was filed for material not yet found by a court to be infringing, but that a company initiated a lawsuit during development, made so many public statements about their intent to use disputed material, then went ahead and released a product during the lawsuit.
Just thought I’d throw it out there that DEFCON 5 is actually the lowest possible state of defense readiness, and is essentially the military equivalent to the world leaders singing kumbaya around a campfire together. Though in all fairness it does sound more threatening than DEFCON 1, which is imminent nuclear war. :)
It’s weird to see people thinking that this is going to set some precident making DCMA claims easier. Right now robotic processes with no human oversight file them constantly.
In this case a Federal Judge ruled on an actual injunction saying it seemed like a good situation for a valid one. People think that is easier than having an automated process puke one out based off a keyword search???
I largley agree with this thread’s vibe… there really isn’t any substantial defense of Stardock here anymore and I get why.
But the DMCA thing I don’t get (although I get it as an instrument of ‘battle’…).
If copyright can’t protect game design, but only it’s execution/specific expression, like a sum of concrete implemented designs, how can one seriously argue for ‚same look and feel‘ or „mimic“ if you have played a 27 year old SC2 and 2018’s SC:O? Of course SC:O’s starmap does not look and feel like SC2. Load it up, play it. It’s clearly the same idea, the game is the same sum of ideas. But it is a game published 27 years later with just the ideas in common. (Or did I miss something that’s right away copied? Like: a copy. That would be just the music, but it doesn’t belong to Ford/Reiche. Right?)
(and: you can/are prompted to (re)name your ship – the suggested name: one would call it a homage.)
Are there really that many game designs overall? Nowadays most are mixed up, but it should not be necessary to go this way. I like a StarControl game - SC3 isn’t really one, or?
Between SC:O and SC2 the ‚problem‘ (to me, here) seems to be that StarControl 2 is a game design but that kind of design is rare/is vanished because it wasn’t very successful. It’s unique, it’s concrete - but you should not be able to copyright it: have a galaxy map, have star systems you can visit close up, have funny chat with aliens, fly around, do battles and gather resources, gear up, there might be some galaxy ruling boss. That’s a design, a general plot. Not some expression.
To me what Ford/Reiche showed was a comparison of ideas. Of course SC:O looks like SC:2 at first glance. But only if you see the idea first. If you let someone look who knows nothing about StarControl and it’s ideas/concepts I bet he/she would have a hard time to see resemblance. He/she must concentrate to identify the broad/abstract ideas/matches (which Forde/Reiche pointed out, like: red space, holes, 2D top down etc., the sum fits, but it’s hard to identify without the ideas).
There just wasn’t much evolution in the genre, hence one might think Ford/Reiche owns this design.
I disagree. And what Reiche/Ford are claiming to be their ‘artistic expressions’ is the idea of a StarControl-type-game. SC:O isn’t a HD remake. E.g. you can’t learn SC:O from playing SC2. The writing differs greatly, as do graphics and controls. That’s not TripleTown/Yeti Town. Look at it, not at the idea. Call it a StarControl(2)-like game. It hasn’t stolen the code, the writing, the unique plot twists (or?) or anything else that reassembles the source (like: “Oh, that just looks exactly like TripleTown but with snow. Even the buttons work the same…”)
I think an ‚expression‘ in the sense peterb unfolded should be something still relevant and very concrete – SC2’s expression isn’t relevant anymore (minus the writing/story). Only it’s ideas. It’s game design.
So to argue…
seems therefore inaccurate to me.
Well, that’s just the one point I don’t agree with the thread’s common sense.
@Thrag, is hard for me to decide whether you’re discussing in good faith or not, as depending on the post, you either come across in a very different light
First things first, right? There have been two DMCA notices involved: first, in November 2017, involving the old games (including SC3), the second, involving Star Control: Origins, now in January 2019.
In the first case, no copyrights had been formally assigned (other than notices on packaging and the games themselves, which may seem “obvious” but as this case reminds us, copyright can be sold and its ownership transferred, and old software and objects probably won’t be updated magically).
In the second case, as far as I understand, the fact of infringement hasn’t been adjudicated just yet.
If you think the above isn’t a new thing, please point me to a case, not involving direct asset stripping,that involves a online games distribution channels like Steam.
Then, you post this… so a “good point” is a worthless sarcastic comment that contributes zero to the discussion but somehow you agree with? Especially when I have been very clear about separating what P&F do to defend their rights, and what the case makes apparent about how one can stop a game from being sold with or without reason.
They are different things, yet they can be wielded in a similar fashion to make frivolous claims, make money or tighten peoples’ screws. A kitchen knife and a bayonet are different things too and they can be used in similar ways too.
So here we have two somewhat conflicting takes on DMCA notices. @Thrag says that actually most of the time there’s some oversight on the process to protect people from DMCA notices, @Lantz says that the process is most of the time an algorithmically driven process with no oversight. Is everybody - including myself - right then?
@Lantz I do not think that the precedent is about lodgement of a DMCA notice, but actually about how organisations react to such notices, implement them, and the impact they have. Certainly in the second case (see start of post) there has been a Federal judge involved.
How the inherent difference due to technology is handled when making comparisons is an interesting question. If someone remakes a movie that was original a small cast theater like production but this time with epic staging and cinematography, a cast of thousands, but basically copying everything else is the difference in production values enough.
In this case the situation with the split trademark and copyright is so atypical it’s not likely to set any precedents that can be applied universally. Also it is looking like this case will not come down to primarily a question of “how much is too much” in similarity but instead the deciding factor will likely be the public statements about intent to make things more like SC2.