Alright, as requested:
My stance is that it’s abusive to use the DMCA to take down a work solely because some minor elements may rise to the level of “sufficiently similar”.
The critical distinctions here are that:
- Sales were disrupted
- Only minor elements are copied
- It’s ambiguous whether those elements are actually infringing
To be clear: all three must apply for my argument to be relevant; I’m not discussing situations where someone uploaded Star Control 1+2, or copied an entire chapter from Harry Potter.
I would argue it’s unethical in this case because P&F gain nothing from issuing this DMCA. They knew Stardock would issue a counternotice and/or indemnify GOG and Valve, so the work remains on sale. (If there’s some significant gain to P&F for doing this, please do correct me)
Assuming no significant gain, that means P&F are risking harm to a potentially-innocent party for literally no gain. I feel like it’s self-evident that risking harm to innocents is always bad, and that it rises to the level of “abusive” if there’s no counterbalancing reward to offset that risk.
I’d further argue that, as a general policy, using the DMCA against elements which are both minor AND ambiguous risks significant harm to innocent parties, especially those which don’t have the financial resources to issue a counternotice or otherwise oppose the action.