The "Stardock Response to Paul and Fred" thread has gotten a bit long-in-the-tooth, and the moderator suggested that it might be a good idea to split discussion that isn't actually Stardock responding to P&F over to a new thread.
So, I've set up this thread to discuss the litigation more generally. Since people understandably have strong feelings on this topic, I'd like to suggest a few guidelines:
So, let me try to paraphrase again: Are you saying that "It is impossible to ever do a blanket license or waiver of trademark rights, because trademark rights, unlike other forms of IP rights, impose an editorial control burden that must be actively enforced on a case-by-case basis."
If so, my response is the same as I gave in #46: This needs an IP attorney's evaluation.
That aside, this whole mess is just depressing. Sadly, things have deteriorated to the point where Stardock Legal is running around with a label-maker slapping "Mine!" labels on everything they can while P&F are pointing and yelling, "No! No! You can't use the alphabet in Origins, because the alphabet can be used to spell Ur-Quan, Vux, Orz and others...and those races are ours!"
*sigh*
SC2 remains one of my favorite games of all-time, and this past year I had the honor of introducing it to my teenage son via UQM-HD. It is now one of his favorite games as well.
What I'm wondering is if SC1 and 3 can be released in such a way that free remakes could be done via UQM? I mean SC1 didn't even have a story mode, just Melee which already exists in its entirety in UQM, and some small planet/space station type meta game. SC3 meanwhile, has been disowned by all parties. It's like that drunken relative that embarasses you at reunions. Everyone reluctantly admits they're part of the family, but really wishes they weren't and want to associate with them as little as possible.
So, let me try to paraphrase again: Are you saying that "It is impossible to ever do a blanket license or waiver of trademark rights, because trademark rights, unlike other forms of IP rights, impose an editorial control burden that must be actively enforced on a case-by-case basis."If so, my response is the same as I gave in #46: This needs an IP attorney's evaluation.
Take a look at a typical Trademark licensing contract: https://www.contractstandards.com/public/contracts/trademark-license-agreement
There are plenty of clauses, like #3, that I would expect the UQM project would not want to commit to, and that Stardock could not waive without significantly weakening their trademark. Stardock also could not issue an "open-source" style trademark license, such a thing would make no sense and would essentially be equivalent to abandoning the mark.
Correct, that is exactly what I am saying. That has also been what Brad and other people from Stardock have been insinuating in many of their posts on the topic. If you do not believe them and still think that consultation with an IP lawyer is warranted, it is up to you to come up with the resources to contract one to do an analysis to demonstrate otherwise. From their perspective you are asking for something that is effectively impossible. Since they consider it impossible, from their perspective there is nothing for them to demonstrate willingness for.
Stardock is also certainly not going to expend resources on something that could materially harm their control over their trademark or make them accountable for something they do not have oversight over. The editorial burden exists for a reason, and is not something that can be merely waived. I'm not sure why you have such trouble with that concept, since while UQM is not a registered trademark controlled by the project, I somehow doubt the project would allow anyone else to use the project's name or claim to represent the project and do whatever they want without the community's leadership, in whatever form it might take, having no means of making sure they don't misrepresent UQM or get it involved into problems they want no part in. The restrictions and oversight that UQM would likely want in such a situation would be the minimum that Stardock would require for an actual, registered trademark they control. And considering the much greater commercial stakes, Stardock would almost certainly demand greater control, and rightly so.
Ever since I first proposed this idea, it's always been framed as being contingent on finding a way to do it without harming Stardock's ability to otherwise enforce its trademarks. If Stardock believe that to be impossible, then agreeing to the idea in principle (subject to that condition) costs it nothing, but still provides a demonstration of benign intent.
I'm curious how this fits with your earlier arguments. Do you think that UQM actually has any common-law trademark rights that would give it the power to disallow such behavior?
stardock is demanding no control over anything regarding Ur Quan Masters. They have merely only answered some questions stating that all they might do is give you a game, and modernised others for your use to freely distribute. That you guys are doing none thing wrong referring to the Ur Quan masters. In response you guys have asked for a GNU at the worst timing claiming that they are taking over on games they just don't care about.
Their benign intent is already explicit in them declaring UQM does not infringe upon their trademark. I would argue that that declaration represents a far more meaningful gesture, one with actual legal standing, than the gesture that you are asking for.
I do not believe UQM has any trademark rights, nor should any such inference have been made from my example. I even explicitly stated UQM is not a trademark controlled by the project. My prior remark was to note what I consider to be a major double standard on your part, in which you are asking Stardock to make concessions that UQM itself would be unwilling to make if some third party wanted to associate themselves with UQM or assert some sort of control over UQM's activities. Your continued emphasis on UQM's "independence" is ultimately indicative of that unwillingness, since this entire chain of arguments started because you inferred some sort of threat to UQM's ability to decide for itself what to do and whom to associate with.
I've mostly been lurking and watching the conversation since I had nothing useful to contribute to the back-and-forth legalese but on this point I think I can chime in.
I am fonder of SC3 than most. I personally found most of the new alien races interesting, many (but far from all) of the new alien design looks to be "okay" as a modernazation of the previous game's graphics and the continuation of the story interesting. I liked how it resolved a lot of the lingering questions from the previous game.
Having said all that...
As has been mentioned, most everyone else who has played the game felt that the biggest issues were in the story and lore aspects so I am a part of a very tiny minority here. Certainly there were other broken and buggy elements aplenty, but when most people who have played it disavow the game it is because they did not like the direction the story was taken afterward.
That is, to say the least, a difficult thing to fix via a community action. I suspect that would ultimately lead to a large "to many cooks in the kitchen" scenario where everyone had their own ideas on what the correct direction of the story should have been. Mods that fix technical bugaboos or update graphics or tweak stats of ships or what not tend to be broadly accepted. Mods that completely rewrite the story of a story heavy game generally speaking don't work out well, particularly if it isn't ONE writer of a mod but a hundred or so.
That last post jogged my memory of something I'd been meaning to ask about from a legal standpoint.
A couple of times both here and on the UQM forums I'd seen posts by Brad of pictures of the same alien race but in several different games over time as an example of how you can change a race's look and therefore have enough substantial dissimilarity to be able to use them and pass legal muster.
A thought I've had both times but had been to absorbed in the present conversation to ask about was how graphics change over time in games and how that impacts things from a legal perspective. Essentially, graphics naturally get better over time. That's just par for the course as technology improves and modern gpu's can handle more horse power.
Taking the examples used in the other thread of the Ur-Quan and the Spathi, my first thought of why everyone accepted them as...Ur-Quan and Spathi...is that they both just looked like a reasonable progression of the graphical improvements or merely just changed art styles between games.
So I guess what I wonder about is where is the legal line drawn between just updating a race's look based on improved modern graphics and making them "substantially dissimilar" enough to be fair to use and still call by the race's name.
As far as I can tell, the law does not draw a line so much as it puts things in front of a Jury (which will have no knowledge of either game) and says "are these the same thing?". So nobody here is sufficiently unqualified to predict how that will go
What do you mean by "legal standing" here? Do you mean that you think it actually has an effect that Stardock could not simply reverse if it were to change its mind? That's a necessary criterion to be "meaningful" here, IMHO.
I don't believe I ever made any statement about what UQM would or wouldn't "accept". But if UQM did have the alien race trademarks Stardock is claiming, and if it were up to me (and it's not, just to be clear), I would certainly be willing to apply the same conditions: If Stardock (or anyone else) wanted to make a game using the alien races, and was willing to do it under a copyright license that was compatible with UQM's, I would do everything I could to make sure that the trademark didn't stand in their way.
By the way, if you don't mind my asking, do you happen to be an attorney? I ask because you've been speaking on matters of trademark law in a manner that I (as a non-lawyer) would hesitate to do without adding explicit disclaimers.
What you're asking for offers no safeguards against Stardock changing its mind either. As the owner of the trademark, Stardock would have the authority to revoke any license at near will. Unless UQM wants to take the fight to court, UQM is SOL under either situation. The main difference between the two situations is that Stardock's declaration of UQM not infringing upon its trademark is compatible with trademark law. Your request to apply a copyright standard to what is a trademark matter falls outside the bounds of what trademark law sets as a standard, which makes its legal worth questionable at best.
If UQM did possess a trademark and was willing to extend such terms, it would probably be against the advice of any IP lawyer and to the ultimate detriment of the project. You still don't seem to grasp that the trademark implies association, and therefore approval, by the trademark holders, of however the trademark is used. Copyright grants no oversight over that usage beyond the terms of distribution and redistribution. It does not provide editorial oversight, which is the power that a trademark grants. And surrendering that editorial oversight is tantamount to surrendering control of the trademark, since the right to exercise that oversight is the means by which a trademark holder controls association.
I, like Brad, am not an IP lawyer. However, also like Brad, I've had to deal with trademarks and copyright in the past due to my work. Including in using that trademark to shut down third parties that tried to create an unauthorized association with the trademark owners. I've also had to deal with a lot of people who were far too blasse about the responsibilities that come with being a trademark holder without recognizing why trademark holders do the things they do, and whom confuse trademarks with copyrights. They are often used in conjunction with each other, but they protect different things.
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