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


#3084

I would argue that P&F have a moral and ethical right to use all legal means necessary in this case since they feel their rights are being violated. Using the DMCA, however temporary it was, is one of the few legal means they haf to potentially reduce the sales. By reducing the potential sales, they are being ethical because it shows they are not in this for the gains they may receive if they prevail and are awarded damages based on the sales. They just want them to stop using any of their stuff. Which is morally just.

For those that don’t know, she is the one who wrote
http://crimsoncorporation.org/reasons/ and while some don’t agree with her tendency to play devil’s advocate, I usually see her point.


#3085

Natural law theory goes back to Aristotle and to Thomas Aquinas. It rests on the idea that human beings have objective common natures and ends, and acting in concert with them is acting rightly, while violating them is acting wrongly. Anyway, peterb’s point is that you probably don’t derive good copyright law from questions of innate human nature.


#3087

Yeah the fact that she wrote that is why I said she was being contrarian on this point.


#3088

Some new documents posted today.

(1) The court orders the depositions scheduled for Feb. 11, 13, and 14 to go forward in Michigan. This is a setback for Stardock.

(2) Reiche and Ford’s lawyers file their opposition to GOG’s motion to dismiss. It’s an OK pleading but nothing really earth-shaking in either direction.


#3089

Still, it’s good to see these details spelled out plainly. According to P&F, in 2011, GOG cut a parallel deal with Atari to license the SCI&II trademark rights, to go with the copyrights they licensed from P&F. But the details of the Atari TM license were kept confidential, and never disclosed to P&F (nor to us; it was apparently filed under seal), so when it apparently expired in 2015, they had no way to know.

This expiration became important last year, because Stardock amended its complaint to say that it means that P&F were violating its trademarks from 2015-2017, as well as its copyrights on SC3. P&F reacted by invoking an indemnification clause in their contract with GOG, and GOG refused to honor it. So P&F added GOG to the lawsuit, saying that any liability to Stardock is the result of GOG’s failure to disclose material information to them.

There’s something odd about Stardock’s accusations here. Stardock is using those GOG sales as exhibits in its trademark applications, including images taken after it edited the store pages in 2017 to add “The Ur-Quan Masters” subtitle to the SCII page. But if Stardock had the power to edit the games’ store pages, and was accruing the trademark rights from their sales, then how can it simultaneously claim that P&F were the ones selling the games, and therefore liable to it for trademark/copyright violations?

EDIT: I also just noticed that the schedule of assumed contracts from Atari to SD shows the GOG deal’s dates as 3/10/2010 - 2/23/2016, which does not quite match the 2015 dates being talked about. It also only shows the agreement pertaining to SC3, and does not mention SCI&II.


#3090

From the minutes of the teleconference over the latest delaying motion.

The court orders the depositions scheduled for 2/11/19, 2/13/19 and 2/14/19 to go forward in Michigan.

Oh to be a fly on the wall.

One of the enduring mysteries of the star control universe is why the Melnorme’s bridge turned from the color red to the color purple. I wonder if one of the mysteries delved during deposition will be the reason why hyperspace turned from purple to red. You know there are going to be various forms of the question “Did you instruct anyone to make SC:O more similar to SC2?” asked during the deposition.


#3091

So, ballpark figure on what the legal fees must look like at this point?


#3092

It’s near impossible to estimate the actual number of hours either team would have spent. While the number and page count of filings might provide some insight into a minimum number of billable hours, we can’t know how many hours have been spent in client meetings, what kind of time has been spent going through discovery documents, and the myriad other things involved in a legal battle.

An IP attorney is going to run at least in the $200-300 an hour range and could be as high as $500 for a really highly experienced and regarded attorney. Consider that at $300 an hour, a single 40 hour work week bills out at $12k. It adds up very quickly.

I think I read something about one of the earlier depositions taking seven hours. And that’s just the time the attorney spent in the deposition itself. Preparing for a deposition, and the work afterwards of parsing and examining all the answers, can be a multiple of the time in the deposition itself. Just look at how much paper the suit has already generated in this still somewhat early stage. Each one of the significant filings on the courtlistener page likely cost at least in the thousands of dollars.


#3093

Yeah. For Nixon Peabody IP attorneys, your numbers are way short.


#3094

Yeah, they are likely at or near that $500 figure an hour for the lawyer’s time. P&F’s attorneys are also SF based which is a high priced market. I am being intentionally a bit conservative with the 200-300 ballpark.


#3095

I think you are being way conservative, given that $200 is less than the billing rate for a first year associates at a lot of major law firms.


#3096

Randomly googling things gives an article from 2015 about big firms in Boston and their average partner rates. It puts NP at $520 (which is actually the lowest of the firms the article compares).

https://www.bizjournals.com/boston/news/2015/01/11/heres-what-partners-charge-at-some-of-bostons.html

Though that is for partners. I don’t know what level the various attorneys involved on the NP side are. This seems like the type of case where a partner would be maybe supervisory rather than the principal. Still, I agree, I am likely way over-correcting in my attempt not to blow things out of proportion.


#3097

When it comes to estimates, the only thing I think it’s safe to say is that the out of pocket costs for the defense have certainly exceeded the ~$43k the defense fund raised.

The only question is the multiple.


#3098

Yeah, I’m just going from my experience as a partner in a large law firm. ;)

I do agree with you that we have no real way of knowing how they’re staffing it, or anything like that. Just pointing out that $200 an hour is the rate of a junior associate at these types of firms (just because, as mentioned, I have some insight there given my own background).


#3099

I appreciate the correction.


#3100

Given your background, out of curiosity what would you ballpark the number of billable hours that goes into a document like the original counter-complaint?

I’ve spent half my career creating software for lawyers so I have a passing familiarity with the law and how law practices (though mainly small ones) operate. My wife is a lawyer, but a corporate one not a litigator. I can ask her how many hours it might take to redline a complicated lease, but not so much a pleading in an IP case. I know things can vary greatly from one practice area to another so it might be hard, for example, for a PI lawyer to estimate an IP case. Still, what kind of time would you figure just putting together one of those docs might be?


#3101

I wouldn’t want to venture an estimate. Not my side of the house. I just stepped in because I know the hourly rates of large shops. 🙂


#3102

While we don’t know how many hours people are putting in, we do know the players:

Nixon Peabody, representing Stardock:

Bartko, Zankel, Bunzel & Miller, representing Paul Reiche III and Fred Ford:

Palmerlex, representing Paul Reiche III and Fred Ford:

  • Mark S. Miller, General Counsel. Handling USPTO filings.

Frankfurt Kurnit Klein & Selz, representing GOG:

I think it’s safe to say that Stardock is outspending P&F.


#3103

Exactly the response I expected from a lawyer!

As to the original question, quantification is near impossible. Descriptively it’s probably somewhere between “yeah, that’s going to impact my retirement” and “enough to make a grown man cry”.


#3104

Status report on the case, indicating what discovery has been done so far.