Hmm… good response. It made me reconsider my position.
Thank you for saying so. It’s nice to know my points are coming through.
Good point. While cries of abuse surrounding the DMCA are being pushed by Stardock, and they are falsely claiming that P&F say they own the idea of hyperspace, Stardock is abusing the trademark system to directly wrest control of the Ur-Quan masters universe from P&F and to prevent them from making an independent sequel.
In this matter, instead of relying on in the intentional misrepresentations of one party in the dispute about what the other side claims it owns, we can look at trademark filings made under penalty of perjury as to what Stardock claims to own.
Specifically: “Orz”, “Melnorme”, “VUX”, “Yehat”, “Taalo”, “Dnyarri”, “Pkunk”, “Chenjesu”, “Spathi”, “Ur-Quan”, “Arilou”, “Ilwrath”, “Syreen”, “Androsynth”, “The Ur-Quan Masters”, “Fwiffo”, “Druuge”, “Chmmr”, “Crimson Corporation”, “SUPER-MELEE”
Stardock claims the “Star Control” trademark also gives it trademarks and thus exclusive use of all those terms.
Can you cite a source for that? My understanding is that the vast, vast majority of DMCA claims are concerned with full-on piracy (uploading the full copyrighted work with no significant alterations), and very rarely concerned with situations where it’s merely alleged infringement.
What are the facts of the DMCA? P&F are alleging copyright violations. There’s a couple of minor elements like the Zoq-Fot-Pik and the Tzo Crystals, plus their public claims about owning this particular expression of hyperspace. That seems like it obviously falls under “infringing only a small portion of the total work”, not “actual piracy”
I don’t have an explicit source that lays things out in the terms you are using. However it’s a standard part of the process that a DMCA usually comes before a lawsuit, which was my point. After a lawsuit if something is found to be infringing it would likely be a court order to take it down. A DMCA is basically a more formal cease and desist letter that is the prelude, not the result of, a lawsuit.
Also it’s always alleged infringement until a court has made a decision. So simply by nature of the law and the process DMCA notices are generally over alleged infringement. Again, if it’s no longer alleged, we’re past the point of a DMCA.
The judgement of "infringing only a small portion of the total work” vs. “actual piracy”isn’t really made. That’s up to a court to decide if the parties involved in the DMCA want to take it that far.
Also "infringing only a small portion of the total work” is still called “infringement”. It’s not like a plagiarist could argue “look, I only lifted one chapter from Harry Potter, the other 42 were my own”. That’s not a defense, that’s a guilty plea.
Just because this was news to me until Shuma pointed it out in passing: Paul & Fred filed for a trademark on the name “Frungy Games.” I’m guessing this will be the entity under which they will make Ghosts of the Precursors apart from Toys for Bob.
Let’s not bicker over terminology: I think we can both agree that uploading the latest pop song is obviously infringing, whereas SC:O is a significantly more nebulous situation.
Have you not encountered the concept of fan-fiction? That’s… basically the entirety of their defense, and they’ve been thriving lately.
I realize that you’re legally correct, but once again: that has absolutely no bearing on what I’m discussing. No one is claiming the DMCA was illegal. They are claiming it was abusive.
Perhaps you should define what you mean by “abusive” because it frankly isn’t clear. Does “abusive” just mean “I don’t like it when people use this law in the exact way it was intended to be used,” or something else?
I already did: For the purposes of this conversation, “abusive” is using the system to target nebulous situations, and those where only a small portion of the work is actually infringing. The actual intended purpose is held to be taking down clearly-infringing work, such as whole-sale piracy.
If you can provide some source saying that the intent of the law was indeed to use it to resolve nebulous edge-cases where a small portion of a work might be infringing, I’d be happy to reconsider my stance.
If you can show this is a nebulous edge-case, I would be happy to consider your position.
Nebulous: The question of whether hyperspace, or any other element in SC:O, rises to the level of actual copyright infringement is an open question, and even pro-P&F supporters agree to this assessment.
Obvious: If I try to sell Star Control 1 & 2.
I’m really not sure what else you need?
Yes, SC:O is not like literally reselling SC2. If that’s your line, if you hold the opinion that any DMCA over not literal piracy is abuse, you are free to feel that way. I’m not going to agree with it.
Abuse typically means exploiting something to do negative things outside the bounds of the spirit and intent of the thing. The DMCA was used properly in regards to the intent and spirit of the law, not just the technicalities. This isn’t anything like a case where a video gets a takedown for a song picked up faintly in the background.
Your issue seems to be with the DMCA itself, and current copyright law in general. Infringing a little is still infringing. Try to publish your fan fiction for profit and you very likely will get sued. You can disagree with that, but that doesn’t make it abuse. If you want to argue the nature the DMCA and copyright law that’s all well and good but not liking the current laws doesn’t make using them properly abuse.
Fair enough. I had never previously encountered the notion that simply because something was legal, it was also ethical and moral. We obviously disagree strenuously there, and I think your logic extrapolates to a lot of abhorrent conclusions, but at least we’ve identified the source of disagreement.
Your entire premise is flawed. Here is the issue per your own words:
“any other element in SC:O”
This has nothing to do with any singular element. It has to do with the combination of all similarities and how the whole comes together. This is not as simple as reselling (stealing) someone’s entire product or lifting a rift from a song. This is much more like the Blurred Lines case where multiple borrowed elements come together to create a possible infringement. If you insist on considering everything separately then your analysis is being performed inconsistently with the way the laws are written.
EDIT: To try to provide an example, if I write and sell a book about a boy wizard, a boy with a lightning bolt scar, a magical school, a boy named Harry, an evil dark wizard or a boy who is orphaned none of these are infringing upon Harry Potter. However, they certainly do when combined together.
But…but…that’s not what the law…says?
The DMCA doesn’t say it only applies to “clearly-infringing work”, or anything of the sort. The DMCA’s intent is to balance the rights of copyright holders and of service providers. To this end, it specifies exactly what is required (a good faith belief of infringement, notification requirements) and even provides for procedures to be used when the situation is nebulous, which is why there are provisions for counter-notifications. If it was only intended to be used when works were “actually infringing” (by which I’m inferring you mean something like “It’s totally obvious!”) then the law wouldn’t need those provisions. But it does need those provisions. Because determining copyright infringement is often nebulous.
Lastly, the DMCA provides penalties for misrepresentations! So we don’t have to make up our own personal examples of what we, personally, think are abuse - the law defines what abuse is by saying “if you misrepresent something in your infringement notification or your counter-notice, you’re liable for damages.” Given that F+P haven’t been found liable for such damages (nor will they, at least on this particular issue), my position is that your characterizing this as “DMCA abuse” simply has no basis in fact.
Look, I can be critical of slave-owners even if that slavery is legal. My qualm is with both them, personally, as individuals, AND the system of slavery as a whole. I would go so far as to say that owning slaves is, yes, abusive, immoral, and unethical.
I realize the DMCA is on a vastly different scale than slavery, I’m just trying to communicate the concept that “legality has nothing to do with morality”. Please stop explaining the law to me. I know what the law says.
You are kinda misrepresenting people’s positions here when people are being rather polite in explaining their positions. Nobody has stated that just because something is legal it is ethical and moral. In fact verbiage has been dedicated to separate the technically legal from the completely within the letter and spirit of the law. Don’t do what you are doing here.
Your issue with not with this use of the DMCA, but with the DMCA itself. It is designed as a mechanism to give safe harbor to publishers in situations of alleged infringement. Your disagreement is with the very purpose of the law.
If you have “abhorrent conclusions” to discuss go ahead. Lay them out. Change people’s minds. I know that seems a crazy notion on the internet, but we have proof of it happening just above (I’m just as amazed as the rest of you).
No, I have no qualms with the DMCA being used to take down Star Control 1+2. My objection is to the usage in taking down SC:O. Please stop misrepresenting my position.
Copyright is positive, not natural, law, by which I mean that copyright only exists because statutes define what it is and how it works. To the extent a statute permits a copyright holder to take a certain action, it literally defines what the proper use of it is. This is why I asked you to expand on what you mean by “abusive”, because I don’t believe your current use of that term is sensible in the context of copyright law.