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:
Ironically a group of people who believed that software should be free started this. Linnux coming out of this; even though it was originally made to learn the 386 better. Their biggest backers have been businesses the power they were supposed to fight. I'm not even sure you guys; even new of the motto that started in the eighties. You guys would be grouped with these people; even, if you did not know of this.
This seems very unlikely to me. Stardock would have to release the SC:O game engine under the GPL, and I think they've got way too much money invested in it to do that anytime soon.
That gesture is appreciated...but honestly, I'm not sure there is enough interest in SC3 for it to be picked up. It wasn't very popular, the aliens mostly looked awful, and both Brad and Paul&Fred have said that they are going to pretend the events in it never happened.
I think you may be misinformed: Star Control 4 was not a fan project; it was an Accolade product that was never released. The major fan projects have been UQM (derived from SC2), P6014 (derived from UQM), UQM-HD (derived from UQM), and MegaMod (derived from UQM-HD with other assorted fan patches).
There isn't a lot of other story to tell. SC1 was an action/strategy game, and while it established the setting, it didn't have any story progression. SC3 had a story, but as mentioned above, most people want to forget it ever happened. And SC4 was never released. So the story aspect of this universe is really centered on SC2.
It may also be unlikely if Paul, and Fred hold the copy right to star control 1 and 2. You know if you had star control 3 you could try and fix it.
Well, I've been using Linux since the 1990s, so I'm pretty aware of it.
I could try...but I don't think I'd want to. For one thing, the art would all need to be redone, and I'm a programmer, not an artist. But also, I liked the story from SC2, and I'd rather see it continued by its original author (Paul). However, if Stardock releases SC3, and there are other people with the right skills who liked it enough to try to rehabilitate it, I wish them well.
Forgive me if this is a question that's obvious to everyone else, but when there's talk about "What if Stardock (or anyone else) sued UQM?", who is it, exactly, that would be sued? It seems to me like that's hard to answer. And that difficulty makes it just as hard to suggest that Stardock sign legal paperwork allowing UQM to continue; other than Stardock, who would be able to sign for the other side of that agreement?
I assume that as an open source project there's nobody like a company's CEO who could credibly claim in a court to be able to limit the actions of developers on the project and be meaningfully accountable for their decisions and actions. Without any person or entity having control and accountability, I don't understand how there could be an agreement.
I trust Brad at his word that he doesn't have any interest in shutting down UQM, but if a future rights-holder wanted to shut it down, I'd guess they direct their legal focus at webhosts and similar distribution mechanisms, rather than any individual who volunteered programming time on the project.
Can someone help me explain what I'm missing here?
If such a thing were to happen, it would probably never actually reach the lawsuit stage. There would be Cease & Desist letters sent to the developers, the website/code hosts, or both. Most of them, not having the resources to fight a legal battle with a corporation, would simply comply.
In reality, it might not even get to that stage. Just having a company make a plausible argument that it could shut a project down is a deterrent to people working on it. Nobody wants to invest a lot of unpaid personal time and effort working on a project that a CEO might kill on a whim. That's why legal independence is so important to open-source projects.
I responded to that question in the prior thread (replies #648 & #650). The short version is that there have been some prior examples of unilateral IP releases, but an IP attorney would (of course) need to be consulted to confirm that they could be used here. However, the first step would have to be Brad indicating a willingness to try. Lacking that, it's not worth spending the time and/or money to look into the details.
Can you elaborate more? I can see how it *would* be interesting and important to open source projects that are derived from another project, as in this case. But I don't think I understand yet how any of the projects I'm familiar with, UQM and others, actually *have* any realistic level of legal independence and surety.
Based on my limited understanding, all I see are signaling tactics (like removing the name of the original source but leaving absolutely no confusion as to where it all came from) that leave the project and the rights-holders with a plausible storyline to follow since both groups generally want the same thing. But it seems like the key part of that is that both groups do legitimately want the same thing to begin with; if there was no alignment but the same fig leaf of "this totally isn't actually Star Control <wink><wink>", I think the resultant argument would be rather one-sided and brief. Years ago I knew a judge (not practicing in IP matters) who said something along the lines of "some of my longest days at work are when a lawyer tries to convince me that it's my job to be naive."
If that's true, then it suggests that the goodwill is the most important (only important?) part of this. Which is still great news! Since for Stardock (or Atari, or any other well-managed company), they have a strong vested interest in having UQM be successful. I remember seeing elsewhere some discussion about models for what results in well-spent marketing dollars on a project of this scale, and spending zero dollars to have all of the fan passion for Star Control get ignited by UQM is a huge bargain
Technically the first step would be Stardock or Brad seeing any point to it. Based on what Brad has posted thus far, it can be inferred that he really doesn't. You, the person that is proposing it, would have to make the case otherwise, since Brad's position seems to basically boil down to, UQM is not engaged in commerce and will not cause confusion for Stardock's projects, therefore trademark law doesn't care about it, therefore there's nothing for Stardock to even do. As a "good faith" gesture it would be literally an empty gesture, since Stardock would still be the owner of the trademark, and they're the only ones that can decide whether to take action if they suspect infringement. No agreement is going to change that, because that power is fundamentally part of what being the trademark owner means.
Nor would any hypothetical agreement protect UQM in the way you seem to keep hoping for. Any agreement's terms would at best be a formalization of the current status quo, which is so long as UQM does not engage in commerce and does not cause confusion for Stardock's own works, it gets left alone. But the moment it does either of those, Stardock reserves the right to shut it down. And who gets to determine what constitutes engaging in commerce or causing confusion? Ultimately the courts, but as you yourself pointed out, most projects don't even have the resources to get that far. Stardock is never going to waive the ability to sue in such an agreement, nor should they, since again, that's a pretty fundamental part of their ownership of the trademark, their ability to act against what they regard as infringement.
That question really revolves around whether trademark protection really is as expansive as Brad has suggested. If it is, then I'd be inclined to agree: Any open-sourced release of a game would need to forever fear litigation from its trademark rightsholder.
I'm not a lawyer, and we won't know the real answer to this question until it goes before a judge. However, I suspect that Brad's arguments are stretching the limits of what trademark is supposed to do. If that trademark argument gets shot down, open-source projects will be able to be reasonably confident in their independence as long as their copyright issues are in order, and they aren't clearly stepping on a name or mark used to establish the brand of their corporate originator.
I'm not so sure. Copyright, not trademark, is what prohibits distributing actual copies of digital works, and Stardock doesn't have the copyright. It kind of feels to me like the argument you describe would require stretching trademark law to make it do what copyright law is intended for.
To put it another way, trademark law is what stops another company from putting the Nike logo on a pair of shoes, regardless of what those shoes look like. But as long as the company doesn't use Nike's logo, it doesn't matter that the shoe is otherwise identical to what Nike sells. What Stardock is trying to do is like claiming that the tread, the weave, the color, and other functional aspects of the shoe are also covered by their trademark, and I don't think that's right (they could be covered by patents, but that's also not applicable here). But, as I said, we'll see what the court has to say when the time comes.
I don't know the law very much. Maybe not at all. But I know people a little bit.
The argument "This project is exactly like Star Control for every way that matters, and for every person out there who may want to play it. Except for lawyers and judges; for them this has no relation at all to Star Control" is the sort of getting-away-with-a-technicality approach that seems like it might make people look for any excuse to rule against them.
Is there a standing set of counter-examples that suggests that, in practice and with budgets being what they are, that approach of being a stickler for the rules can win against the human component? It seems like it would be nice if there is, but I'm not hopeful.
My experience leads me to want to look at possible futures based on the way things work instead of the way I'd prefer that things worked.
If that's correct, then I agree with you. But I believe this question requires a real IP attorney to answer.
The benefit to Stardock would be that they could say to the UQM community: "We're waiving any claim to be able to control you, other than by enforcing the NC license that you are already subject to". That contrasts with their current position, which appears to be: "We've decided to turn a blind eye to any court precedents that say that distributing free software counts as engaging in commerce...at least for now. But we reserve the right to shut you down if we change our minds, which we could do at any time."
One of these two positions is much more supportive than the other, and would net them a windfall of goodwill if they were to take it. But only Stardock can decide the relative value of keeping that control, vs. the value of the goodwill gained by giving it up.
It seems to me that if a company didn't want to allow this, they should have insisted on keeping the copyright, in addition to the trademark. By not doing so, they have conceded that someone else owns the right to control duplication of the digital work. Far from being a technicality, this seems like exactly what should happen when the two kinds of IP (copyright and trademark) are split.
To be sure, sometimes the little guy just gets stepped on; I certainly don't have a set of counterexamples conveniently at my fingertips. But judges are supposed to be sticklers for the rules; the complexity comes in because the rules sometimes hinge on subjective factors like the intent of parties to a contract.
That is most definitely not their current position. Their position is that the purpose of UQM's activities does not constitute engaging in commerce and that those activities do not cause confusion. They are not turning a blind eye to anything, Brad made a very deliberate determination here, likely taking into full consideration the fact that there have been cases where distribution of free software counted as engaging in commerce. Stardock has however determined that UQM's activities do not cross that line, and if they ever believe otherwise, the only recourse UQM has to contest that determination would be to fight it out in court.
Again, there is nothing for Stardock to actually waive. If UQM is not engaged in commerce or causing confusion with Stardock's trademarks, trademark law doesn't impact its activities and Stardock has no standing to try to interfere. There are no claims for Stardock to waive, because what UQM is doing, as Brad has stated repeatedly, does not infringe upon Stardock's trademark. Without that infringement, trademark law doesn't even come into play. If Stardock however ever does believe UQM is engaging in commerce or causing confusion with its trademarks, as the trademark owners, they have basically an obligation to take legal action to prevent their trademark from being so misused in order to protect it.
You need to really stop premising your arguments around the notion that Stardock assumes some sort of implicit control over UQM. They don't. In fact Brad has stated quite clearly that they don't. His remarks about being able to shut UQM down are on the basis of UQM infringing upon Stardock's trademark. If UQM does not infringe however, that power doesn't exist. This is literally no different from any other trademark out there. Possession of a trademark does not give you any power over something that isn't using that trademark. Conversely, it gives you a lot of power over anything that does.
I would like to hear Brad's reasoning though (or at least an "I can't say due to pending litigation", I can totally accept that). So far I've only seen what amounts to "because I said so" and/or "it is self evident".
I contend that there is: Presuming its current registrations are approved, Stardock will have potential trademark claims against any "use in commerce" of the alien races. Informal reassurances about what Stardock considers "use in commerce" are welcome, of course, but are not binding enough to instill confidence. I am advocating that they formally waive the right to make such claims for any uses that are permitted under the CC-NC license. This would mean that the CC-NC license would continue to be the sole determinant of what can be done with the UQM code base, instead of developers needing to additionally worry about potential trademark risks.
Informally then, Stardock's trademark applications don't even meet the requirements right now - the application(s) have no date of first use anywhere, no date of first use in commerce, and no specimens. Assuming nothing else changes, in about a month the USPTO will send Stardock's lawyer a letter asking for those to be fixed. 6 months after that with no further activity, and the registration gets declined. Can you provide an example of where any of the race names has been used to identify a computer game, computer game software, or video game (on or before Feb 26 2018)? Do you think Stardock can?
I really at this point dont think you will believe him no matter what he says. You just dont trust him. This asking for a gnu is at a bad time you shouldve waited untill after the trial. How many years does it take before you will realise this is not going to happen.
If you are really concerned rename the aliens, redo the alien art, and rewrite the storyline. There is no point behind this, but you think so. All that is going to happen if stardock wins is you will get a real old dos based game, and all three games will get a new modernised engine, unless paul, and freds copyright prevents you from modernising the game. You still wont trust him, even if he has no reason for this. I bet dimes to dollars he supports what you are doing about making a free game.
I am presuming that Stardock does not believe that they are filing a fraudulent trademark application, though of course I have no more information than was provided on the application. Brad has made statements here that indicate that he considers the races to be part of the games' product identity. I don't think I agree, but I am not a trademark examiner.
I have no reason to doubt his support for the UQM project, but in matters of legal risk, I believe that it is prudent not to rely on informal assurances.
By virtue of the simple fact that UQM's adherence to the NC-CC terms are not sufficient to necessarily preclude it from causing confusion or even in a roundabout way being found to have engaged in commerce, Stardock would never use the NC-CC standard to define what constitutes as in-commerce from their perspective. The standard that they would use and are using now is the limit of what trademark law itself allows.
The NC-CC license is not set up to guarantee anything about trademark usage, especially if that trademark is owned by someone else. If UQM isn't touching upon Stardock's trademark, adhering to NC-CC does not provide a continued guarantee that UQM will continue not touching that trademark. If UQM is touching that trademark, the terms of NC-CC are insufficient limits on UQM's operational independence to allow Stardock to let it keep operating without intrusive editorial control. Recall that as Brad has stated numerous times, trademarks are about point of origin. If UQM is touching upon Stardock's trademark, that means people can reasonably presume Stardock to be responsible for UQM's output. If that happens, Stardock literally cannot let UQM continue without imposing direct editorial control. Doing anything less would constitute non-enforcement of the trademark and weaken it.
You want the NC-CC license to offer protection against trademark related legal action. It can't, because trademark law and the NC-CC are not equivalent. Adherence to one does not guarantee adherence to the other.
So, it sounds like you are asserting that it is impossible for Stardock to do as I suggest without harming its ability to enforce its trademark even against projects not covered by CC-NC. If that assertion is true, then I agree with you that it is not a plausible option. However, it could also be the case that it is possible for Stardock to waive its trademark rights for a well-defined category of uses, without sacrificing its ability to enforce them elsewhere.
This is a technical enough point of law that I don't think we armchair lawyers should assume we know the right answer without input from a real IP attorney. But that would cost money (or at least favors), so it's not worth looking into unless Stardock says that it would be willing to do so if it were possible.
No, that is not what I am saying. I am saying that adherence to the NC-CC by UQM is not the metric by which infringement of the trademark would be judged. UQM could be completely adhering to NC-CC conditions, but still be found to have infringed upon Stardock's trademark. The creative commons license is a COPYRIGHT license, not a TRADEMARK license. Therefore its impact on whether UQM infringes upon Stardock's trademark is nil. And if UQM was infringing, any terms that UQM would be given by Stardock would not be using NC-CC as a basis. A lot of your arguments are based on the application of copyright conventions on trademark matters. Those two bodies of law aren't interchangeable like that, and that's what Brad and other people at Stardock has been trying to get through to you.
I agree, but Stardock still has the discretion to grant permission to use its trademark if it so desires. My argument is that it can choose to grant permission for these trademarks to be used in cases where the CC-NC license is being adhered to, just as it could decide to only grant such permission to projects founded on Tuesdays. It would essentially be voluntarily subordinating its trademark claims to a copyright test, such that it would bar itself from pursuing them in that particular corner case. This couldn't broaden the scope of its trademark claims, but it could narrow them.
No, they emphatically do not have that discretion, because what you're proposing amounts to surrendering the sort of editorial control they would need to ensure the trademark is not made less valuable. The terms of copyright licenses in general, and CC-NC in particular, do not provide the type of safeguards necessary to keep someone from screwing up a trademark's worth. You are again conflating two separate issues, when trademark infringement occurs and the harm that infringement does. Confusion and in-commerce clauses are for identifying infringement, and as I and others, and even you yourself, have already pointed out, even in that regard CC-NC is inadequate as delimiters for what constitutes infringement.
In the case of infringement harm, or the prevention thereof, it does even less. As Brad has stated, trademarks are identifiers of origin. That means anything that uses Stardock's trademarks are identifiable as things Stardock has created or allowed to be created. With that identification comes a certain degree of responsibility for what that product does, how it does it, and any problems that might arise. Stardock has to be willing to metaphorically stick its neck out for anything that carries its trademark, which is why it is essential that they control exactly what does and does not use their trademark. And for the things that do use a Stardock trademark, they obviously need to have control over what that thing can and cannot do. Nowhere in a license like CC-NC is that kind of editorial oversight granted to Stardock, because copyright law doesn't deal with those sorts of requirements. Without that kind of control, it would be irresponsible of Stardock to let their trademark be used, because they're the ones that gets left holding the bag if something the public identifies as coming from them does something wrong.
If you want Stardock to grant some sort of legal guarantee they won't go after UQM on trademark grounds, and this constitutes effectively a license to those trademarks, Stardock would need to assume editorial control. If you want UQM to maintain editorial independence, you cannot have a license to Stardock's trademarks or otherwise encroach/infringe upon those trademarks.
The original Star Control did not have a story mode. The only included story/lore elements in it were contained in the manual. The entirety of SC1's story can be summed up as follows...
"Well, humanity had reached the stars and was chilling when these crystal dudes showed up in Earth's orbit. They told some really bad dudes were coming, and bringing friends. They then asked us to join with them and some other races because human ships were really tough against the enemy's flying pickles. We said we weren't sure, then they told us the clones we used to have, the ones we used to beat up and steal their lunch money, joined up with the baddies, and their flaming tennis-ball ships can wreck ours. Well, being conquered didn't sound like fun, so we said 'Sign us up!', and the rest is history."
That's it, all of SC1's story!
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