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


#3004

It defines what the legal usages are, but this has no bearing whatsoever on whether those usages are ethical. This is, again, a conversation about ethics, so I’m not sure why you keep going back to legal definitions.

I’m really not sure how to make this clearer, so I’m going to just bow out from this sub-thread.


#3005

I’m asking you what the ethical imperative is that requires a copyright holder to not enforce their rights given a good-faith belief that infringement has occurred (which is required by the statute). You keep asserting that you think it’s unethical but you haven’t (as near as I can tell, maybe I’m missing it) said clearly why.


#3006

I understand that you don’t disagree with some instances of the law being applied and that you personally draw a line in the realm of outright piracy. I clearly noted this in a prior post. I have not misrepresented your argument.

What I am saying is that takedowns of things like SC:O where infringement is “nebulous” is the very nature and purpose of the law, thus your disagreement is with the law itself.


#3007

I am not being mean but I, and I think others as well, do not understand your position even though we are honestly trying. You use terms like abusive without defining what that means. When asked to explain your reply shows a lack of understanding of what copyright law entails. When that is explained you seem to backtrack to your position that it the use is abusive and we are no further along in the discussion.

You go on to talk about ethics without pointing how how the use here is unethical. We do not understand if your issue is with the law itself or this specific application of it. I think you will have a lot of supporters for the former but may have to better explain if it is the latter.


#3008

Don’t. Make your argument about the ethics of it. Show that you have fully considered the logic of your position in regard to the DMCA and copyright law and why it is the most ethical one.

If a copyright holder has no recourse against an allegedly infringing party other than concluding an expensive lawsuit what are the implications of that?

If the DMCA process were to be modified to differentiate between “some infringement” and “piracy” how do you define what is DMCA’able in a way that it doesn’t require a judge or jury to make a call first?

Given that DMCA is not really about the rights holder or the allegedly infringing party, once judgement is made how should the sticky situation of a content host’s liability be resolved? They made money off the infringing content but they may not have been a knowing party to it. The DMCA is basically a process by which a host can insulate itself against liability, from either side in a dispute, by making sure they’ve done a minimum to verify the good faith nature of the notice or counter notice. How should that be reworked or replaced to have a more ethical system?


#3009

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:

  1. Sales were disrupted
  2. Only minor elements are copied
  3. 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.


#3010

What course of action would you have taken if you were Paul and Fred in place of the DMCA? If you feel it was immoral for them to have taken his step I think it’s fair for you to state what you believe would have been the proper course considering their current position.


#3011

You are introducing a subjective judgement when you say only minor element are copied.

Also you are ignoring a huge elephant in the room in this case in the public statements that display the intent to infringe. This isn’t a case of a game that just happened to have a few similar elements to another. There was public announcements that content currently in dispute will be included and some of it was.

The only potential precedent it sets is for other cases where the allegedly infringing party has made multiple public statements first saying they do not own certain things, and later that they do and they plans to include them in the product.


#3012

I see absolutely no reason they can’t just continue the ongoing lawsuit, and collect damages at the end of that. As far as I can tell, the DMCA had basically zero upside for them, since the game is still on sale, and there’s already a lawsuit to settle the question of infringement.


#3013

Okay, fair enough. You can’t taunt and then complain about the consequences.

I still maintain my general position on the DMCA. And I still think this DMCA was a bad move - it did little more than give Stardock ammo in the ongoing PR conflict.


#3014

The DMCA didn’t come up because they were bored that day, it was part of a defense strategy. It’s entirely possible P+F were also aiming to be the pursuers of the bullying lawsuit to solve the dispute, but that’s not where we ended up. P+F also did the DMCA after the judge of the case clearly stated their position isn’t nonsense, so I can’t see how it’s unethical to legally follow up on that.

Some lawyer correct if I’m speculating, but it makes it a little easier to go for willful infringement for treble damages.


#3015

Not only were there public statements with the intent to infringe, but Stardock also RELEASED THE GAME in the middle of a at-the-time 3/4th of a year long legal battle over the question of whether the game was infringing or not. That’s why the judge in question denied the preliminary injunction against the DMCA. They literally threw themselves onto the fire and opened themselves up to it when they released a potentially infringing game in the middle of the legal battle that involved its infringing.


#3016

Have you thought though the ethical implications of this where you are giving the party with deeper pockets not only the greater chance to prevail simply due to those deep pockets, but an avenue to have the infringing content fund the lawsuit against the content owners?

It also seems odd to dismiss the takedown on one hand, and find it unethical on the other.

The takedown was undoubtedly part of a legal strategy, so you are making an assumption about there being no possible upside for them and your conclusion that therefore it is unethical. Also the notion that something is only ethical if it has an upside for one’s self is an interesting one philosophically (forgive this one descent into sarcasm).

While there likely may have been an existing indemnification agreement, the DMCA resulted in firmly establishing that Stardock will be taking on the full liability for any judgement. That alone made it strategically worthwhile. There was always the slim possibility it would not go back up and there’s nothing unethical about taking small chances. Any disruption of sales, even if temporary, prevents more money going into the hands of the other party.


#3017

And a response:

  1. Sales disruption should not be a relevant factor. As the Judge of the case noted, Stardock quite clearly knew there was possible infringement and published anyway. The Judge refused to save them from a situation they themselves created. Furthermore, if retail is a component of whether a DMCA is abusive, are you suggesting that some of my rights as an owner be taken away because I only discovered the infringement after someone put it on the market? I fail to see how a disruption of sales should in any way be a factor in determining whether a DMCA takedown is abusive or not.

  2. This is a matter of opinion and again not a particularly good standard. In this case it is exceptionally disputable that the elements in question are minor. But even if I give you that they are, how many minor elements must be present before these elements add up to something major? In my example above, I listed a half dozen minor elements about Harry Potter, not a chapter (which was someone else’s example). None of those elements are major. None of those elements, in and of themselves, are infringing. But the combination quite clearly infringing. If I call my book “the magic school and the boy with the lightning scar”, there are no specifics that infringe Harry Potter but you can damn well be sure I will be hit with a lawsuit from JK Rowling toot-suite and rightfully so.

  3. Again, this is quite disputable. These elements are not really ambiguous when combined together. Furthermore, Stardock’s own actions like planning to release DLC packs with the alien names that they do not own are not ambiguous. If these elements were so ambiguous I believe the Judge would have granted the request for the injunction. But they did not and that is because the DMCA claim has merit.

I would argue it’s unethical in this case because P&F gain nothing from issuing this DMCA.

So I have to be able to gain something to enforce my rights as a copyright holder? I believe you are a bit out of sequence here. It seems you are arguing that someone must be awarded damages before they can submit a DMCA claim. They can only gain if and when they win their case.

Furthermore, sales for SC:O could be directly used to fund this lawsuit. Requiring gain seems to set a very dangerous precedent. Someone could release a clearly infringing product (meaning under your 1st point it should be allowed), collect the revenue and use it to bury the lawsuit from the DMCA holder. The Golden Rule should not be that he who has the gold makes the rules.

Is this a PR risk from P&F. Of course it is but it is far more risky to allow sales to continue of a mediocre product that may (or may not) infringe on your rights all the while allowing the potential infringer to collect the proceeds from that product and use it in a lawsuit in which the potential infringer’s actions clearly seem to driven by an attempt to unnecessarily bleed the defendants dry. Of which I hope the Judge also gets involved and bitch-slaps the plaintiff and their council for doing so. The longer this suit drags on the worse Stardock looks as they act more and more the bully.

Finally, note that this action is a reaction to being sued themselves. Stardock is neither innocent nor does it lack the financial resources to oppose the claim. In this case I also believe that the potential infringement is clearly not minor nor ambiguous. Again, if it were so minor as you wish to paint it I believe the Judge would have given much more consideration to Stardock’s requested injunction. Instead it was laughed out of court.

But as you say, this is as a general policy So if we apply this to someone with no money to oppose it could it be seen as an issue? Of course it could but that is no different than any other legal maneuver. If you are of limited means I could bury you with multiple state and federal lawsuits that you could not afford to defend. I fail to see how the DMCA is different than any other legal instrument which are all subject to abuse by those with means against those with none.


#3018

Okay, I see no reason why Stardock cannot show up to it’s depositions. If I was in the defendants’ shoes I would use every vehicle I could against an opponent that is using delay tactics, or other tactics, designed to bleed me of capital. I think that is a significant lapse of moral behavior in the eyes of justice, as is neglecting this behavior in an argument. These are morally grey areas used in litigation out of necessity. The method of addressing them lies within the law not the litigants.

Also, it’s important I think to note: your version of “minor infringement” is my and many others version of “major infringement”. In addition, I completely disagree that “supporters of P&F” recognize anything but a risk of the case going poorly for them. There is no moral assignment to a ruling against them that favors Stardock for some reason. This seems to be the consensus among this group.


#3019

I imagine they rightly considered any PR conflict issues as secondary to the real legal conflict issues since that is the only one that matters.

Given P&F statements that they wanted to do their game as a passion/retirement project I imagine they care far less about the PR battle or burning any bridges with publishers. They want to make a game for the fans and for themselves to get back to a beloved property, not to make the bottom line on the ledger. Even if Steam and GoG vow to never work with them in the future after this would they care much? If it’s a passion project they can self publish, or now they can go with the Epic store. If they can’t make GoTP at all they can always go back to printing money for Activation.


#3020

Yes, ethics is subjective. I’m not sure what y’all were expecting from that word.

Yes. But that cuts both ways. It also means you cut off small, innocent parties from the only income they could’ve used to defend themselves. I have no clue who has the deeper pockets in this case, so it seems like a wash.

That’s… certainly one way to misread the concept of “at least try to do more good than harm”…

If you’re polluting because you’re a mustache twirling villain out to kill the environment, then yes, that’s a lot more alarming than if you’re a billion dollar corporation doing it for profit incentives. They’re both still bad.


#3021

Your implication was that this made the billion dollar corporation more ETHICAL. Which, no, it doesn’t.

Also Stardock by far has the deeper pockets here, which is why they’re doing all these delay tactics to drain money from P&F who notably have to pull out of their personal pockets and not from corporate pockets for this.


#3022

An eye for an eye leaves the world blind. Perhaps you consider that a desirable state of affairs? I do not.


#3023

Uhhh how does this response makes sense? In any way?