Injunction Junction
Happy 2019 everyone! We thought we’d start off the New Year with a little litigation narration.
A few months back, Stardock requested an injunction against our serving new DMCA notices, and we agreed to refrain from doing so while the issue was before the judge. In case these terms are unfamiliar …
1. An injunction is a court order, given only under very specific circumstances, that restricts or compels specific actions by a person or company.
2. A DMCA notice is a letter from us to a company like Steam or GOG that informs them that we own copyrights to Star Control 1-2 (and Star Control 3 to the extent it incorporates content from 1-2) and we have a good faith belief that a product they are distributing online infringes our copyrights (like Star Control: Origins). The recipient is not required to act on a DMCA notice, but may be able to take advantage of certain ‘safe harbor’ provisions if they do so.
On December 27, the judge denied Stardock’s motion, as you can read here and noted that, among other things …
“[Stardock] objects to Reiche’s declaration, ‘I created the concept for the Star Control computer game,’ … Clearly Reiche has personal knowledge as to what he did or did not create. … [Reiche and Ford] object to Wardell’s declaration, ‘Stardock has not incorporated any copyrightable artwork from Star Control I, Star Control II, or Star Control III into the Origins game itself,’ on the ground that Wardell lacks the expertise necessary to opine as to what constitutes ‘copyrightable artwork.’ … Indeed, not only has Wardell failed to establish any such expertise, but his opinion as to whether the work in question is ‘copyrightable’ constitutes an improper legal conclusion. … Such legal conclusions are without evidentiary value.”
And ...
“Origins had not been released, nor had its release date been announced, when the instant action commenced in December 2017. … An alleged infringer cannot release purportedly infringing material in the midst of litigation and then reasonably ask the Court to hamstring the alleged copyright holder in its efforts to curb the alleged infringement.”
And finally …
“[T]he harm [Stardock] complains of is indeed of its own making. [Stardock] had knowledge of [Reiche and Ford’s] copyright claims from the outset. Despite that knowledge, it developed potentially infringing material without resolution of the IP ownership issues, and then publicized the release of that material during the pendency of this action. It now claims that its investment in Origins and reputation are on the line. Given that [Stardock] largely created the foregoing predicament, the Court is disinclined to extricate [Stardock] from a peril of its own making. See GEO Grp., Inc. v. United States, 100 Fed. Cl. 223, 229 (2011) (“[T]he court is ill-inclined, at this late hour, to pull [the plaintiff’s] chestnuts out of a fire sparked by its own ill-fated tactical decision.”).
So what now? As you might guess, we are going to continue defending our copyrights against what we feel and contend in the lawsuit is infringement by Stardock, so we served new DMCA notices late last week.
Brad Wardell has said repeatedly “you can’t copyright a word” which seems to mean that that if you break down creative work into its component parts, those component parts are too trivial to be protected. This could lead to…
1. If you cannot copyright a single word…
2. And Frank Herbert’s Dune classic science-fiction book is made of nothing but words…
3. I can make a substantially similar copy of Dune, because it’s just made of words! (Pure Mentat reasoning, am I right?)
Of course that’s crazy (and if you haven’t read Dune, do so pronto)! Copyright protects original literary and artistic works that are simply specific combination of words, or images, or other content.
Another bit of context is understanding what Stardock actually purchased in Atari’s bankruptcy auction, if anything. The name of the auction lot from Atari was “Star Control Franchise”, but what it contained was very limited – just:
1. The registration to the trademark “Star Control”, and
2. The copyright to the original parts of Star Control 3.
That’s it. The bankruptcy paperwork was very specific that anything not listed was excluded. Not SC1, SC2, the unreleased SC4, packaging art — none of that was included in the auction.
Our 1988 contract with Accolade and its addenda defined our relationship with Accolade, including the terms that allowed Accolade to use our copyrighted material in Star Control 3. Stardock received a copy of the contract and SC3 addenda so that they could understand the terms under which we had licensed our material for SC3. That contract does not give any additional property to Stardock, which now claims it holds all of Accolade’s rights. Also, Stardock has subsequently applied for tons of trademarks on names of aliens we invented in SC1 and SC2, but so far, they do not own any of those additional trademarks.
So, why do we contend that Star Control: Origins is substantially similar to and/or derivative of our copyrighted game, Star Control II? Besides the evidence of infringement identified in our most recent filings with the court, let’s compare the expression in a very limited part of the gameplay — interstellar travel. One would presume that Stardock would either make entirely new gameplay for Origins or base it upon the original parts of SC3. Let’s check that out…
It’s clear to us that Stardock chose to make Origins substantially similar to SC2 instead of using the original material they purchased in SC3. We don’t claim to have a copyright on all interstellar travel, but we do have a copyright on the specific way we expressed interstellar travel in Star Control II. We see many such examples in Star Control: Origins where its expression is substantially similar to and/or derivative of our copyright-protected work, without our permission.
