If true, is that typical in a copyright dispute? I don’t think I’ve ever heard of going after a store’s ISP after the content goes back up due to a counterclaim. Maybe I just haven’t watched enough play out?
Edit:
I thought, maybe naively, that the process usually went: File DMCA, content removed, file counterclaim, content restored until lawsuit plays out. Is it typical for the content owners to start working their way up the hierarchies of ISPs instead of relying on the lawsuit to settle things?
Yes, it’s typical. You don’t hear about it in the cases we’re most familiar with because the content host is often someone like YouTube/Google, that is large enough to effectively be its own ISP (and any business that large even if it’s not its own ISP undoubtedly has standing indemnification clauses with whoever they are buying bandwidth from.)
Invert your perspective on the DMCA. It’s not “a tool to take down content”. It’s “a tool to free the ISP from liability for carrying the content.” The takedown notice/counterclaim-indemnity freed GOG from (certain) liabilities if Stardock loses. That doesn’t necessarily apply to GOG’s ISP. (An open question, which I don’t know the answer to, is whether that ISP would have to be given an counterclaim by GOG, or by Stardock. I suspect the former, but I don’t know.)
That makes sense. I guess I’d been thinking that the buck stops with GOG, as it were. Once they’ve been indemnified by Stardock, the ISP would be effectively protected by default by GOG’s good faith belief they’re not infringing. I can see why that wouldn’t be the case, it just seems odd too me.
A few times now I’ve said something along the lines of “Brad Wardell did this to his own company.” Let me unpack that a little bit using this as an example.
For most copyright disputes of this nature, the limiting factor on pursuing DMCA takedowns is “How much money and more importantly effort do I, the copyright owner, want to spend squishing the mice underneath this carpet.” In the common case, the answer is going to be “not much.” You send a C+D letter, hope it works, and forget about it.
In this case, by (a) initiating a lawsuit and (b) acting as if no reasonable settlement is possible, Stardock has created a situation where the downside risk of F+P using the DMCA to its fullest extent approaches zero. The costs of DMCAing everyone who is even tangentially related to Star Control: Origins is basically a rounding error compared to what they are having to pay to stay in the court case at all. It was an absolutely predictable result that anyone in F+P’s position would take this step (although I should note it’s not predictable how companies that receive a DMCA notice will react.)
@peterb thanks for all the explanations along the way. It’s been interesting to follow how much more accurate of a view you’ve had on the case based on the limited to public information available due to your knowledge versus people with far more private information available to them.
Turns out being an expert in something is far more useful that googling some legal phrases.
I can’t take any credit. Litigation is all about uncertainty. To the extent I’ve been right luck is playing a major part.
The only thing I’m really confident saying is "Since litigation is all about uncertainty, you try really hard to avoid it and don’t bet your company on it, unless you’re a complete bonehead.
The twitter chain involves the person complaining about being subpeona’d and the Wardell acting like they don’t know each other, while the person complaining about being subpeona’d is the head of Stardock’s PR firm.
https://twitter.com/AgentTinsley/status/1093345902939394048 Wardell is at the bottom, agreeing that P&F is subpeonaing ‘random twitter users’ and then later acting like she is completely uninvolved and thus shouldn’t have been dragged in by being subpeona’d.
EDIT: Also I posted the wrong link, and tried like a jerk to pretend I didn’t.
AgentTinsley is the former (contract) PR rep for Stardock. Maybe she started up with Stardock again, but IIRC she bailed right around the time I resigned from Brad’s marketing department. Which would be…2015? A while back, anyway. I don’t think even the teaser-iest videos for SCO had been released publicly at that point.
Totally going off my top-of-the-head recollection here. Please don’t hold my feet to any fires.
I’m probably just blind but I didn’t see in the thread where he was acting like he didn’t know her, just that he thought it was ridiculous how many subpoenas they were sending.
Stardock should probably update their press contacts listing then, as she’s listed as it right now!
Maybe I’m misreading but the whole “random twitter users” thing that Wardell is agreeing with really comes off as ‘pretending there isn’t a connection’, especially since I don’t think anywhere in there I would have known just who this lady was if someone didn’t point out https://www.stardock.com/press/press%20contacts.pdf
Alexandra Miseta is the person who filed the sexual harassment lawsuit back in uh, 2009?
e: 2010. Literally the first Google result for “miseta stardock”, please don’t pillory me.
I don’t think that’s a terribly current page. Though you’re right that Stardock should absolutely take it down, given that it’s ridiculously out of date.
I don’t know, he says directly to her “I’m so sorry they’re dragging you into this”. To me that sounds more familiar than trying to play her off as a random stranger or something.
To give the benefit of the doubt, it sounds like they at some point did PR for Stardock but their involvement in anything SC:O related may be minimal. Getting a subpoena is indeed stressful and annoying and potentially costly. Someone with peripheral involvement in a suit certainly isn’t going to be happy about it. Of course their involvement may have been minimal from their perspective, but from P&F’s it’s an unknown that they’d been foolish not to investigate.
In the construction suit I’m unfortunately a plaintiff in the defense subpoenaed every contractor who ever even looked at the place for any reason at all. I felt bad for them all, since some of they were just guys who came in and looked at the damage and said they couldn’t help me since it was a bit beyond their expertise. However from the defense’s perspective I understand why they did it.
In discovery I had to hand over any and all emails that had to do with any construction or remodeling of the property, even if they were just requests for someone to come take a look and maybe bid on some work. The defense’s attorneys would be remiss in their responsibilities as attorneys if they didn’t pursue any and every avenue to find someone other than their client to blame for the defect, so they all got subpoenas.
In the light of this particular suit Stardock subpoenaed a guy who, as far as I can tell, is only involved via giving the GDC interview in 2015 and making one set of pro-P&F tweets. So while the recipient of the subpoena has a right to whine a bit about it, Stardock trying play it for PR is laughable at best.
That’s actually what made me think they were trying to play it off as her not being connected, to be, if only 'cuz it’s being said over Twitter and it comes off as performative, especially since I don’t see anyone mentioning who the lady is in context.
EDIT: And like, Wardell has a habit of using misleading context and omitting important information for his PR efforts.
When did the whole ‘P&F are not the creators of Star Control’ bit start up? As a part of the complaint mentioned was Stardock’s false claims against P&F, which I assume is why she was subpeona’d.
