Thread by @dsmart

The legal battle between @draginol and P&F over Star Control, took a very interesting (tip: litigating your case in public is NEVER a good idea. EVER) .

gamesindustry.biz/articles/2019-…

@draginol P&F, in what I can only attribute to a serious lapse in judgment, wrote a blog (some of it is a rather dubious take on what constitutes copyright infringement) explaining their view of what is going on. It's quite the read.

dogarandkazon.com/blog/2019/1/2/…

Naturally, Brad published his response to that blog, which at this point, you have to wonder if they are actually listening to their attorneys - at all.

forums.starcontrol.com/492870/at-long…

I have no clue where this is going, but my guess is that if they don't figure out a way to settle this before it goes to trial, both sides are likely to be very disappointed by the end result. My guess is that whichever side "wins", it's likely to end up being a Pyrrhic victory

Stephen McArthur wrote a blog about 6 years ago which delves into cases like this which both sides were confident they would prevail in. Then they didn't - for the craziest reasons (IP law is weird + complex + nuts)

gamasutra.com/view/feature/1…

The sad part of all this is that the game, regardless of merit, has already turned out to be a commercial flop. And some people are foolishly attributing it to the law suit, as opposed to market conditions and the game itself.

It happens. I mean, Brad himself called the last big game flop, Elemental, a complete "fail". It happens. You win some, you lose some. And even if all the stars aligned and have you the best game out there, it can still flop. That's the nature of the biz.

Using the lawsuit as an excuse, as some are doing, is nonsense. And the DMCA that P&F pulled (their second try), isn't going to have that much of an impact on a game that's not selling. Plus, anyone who wants to buy the game, doesn't need Steam or GoG. Stardock has a store.

The focus shouldn't be on the spat between these two parties, but rather on the fact that DMCA take-downs, in all forms, are consistently abused because the law around it has enough loop holes to drive a truck through. And they rarely comes with consequences for the abusers.

The last big case like this was Silicon Knights v Epic Games. The latter prevailed in their counter-suit and only moved to have SK games pull from sale as part of their injunctive relief after they won.

Don't get me wrong, a DMCA is of course the best remedy for covered infringement, however, P&F opted to do (twice) that even before a ruling (of any kind) on the merits of their case. That's a form of abuse because those very same claims ARE what's being litigated.

Seeing as Brad has claimed in court papers that the game cost $10M, I have absolutely no idea how he plans on convincing the court that the claims against P&F affected the sales of the game.

Similarly, I have no idea what exactly it is that P&F expect to gain in damages even if they prevailed and are awarded damages.

Remember I said it: Pyrrhic victory

Issue here is that anyone who buys Stardock games and software, can go directly to them. It's where most of us have bought them. So that it flopped (according to metrics and $10M cost) on Steam and/or GoG, is immaterial. They could have made money from their own store.

That's why, to me, this DMCA, abuse aside, is more of an annoyance (to gamers who prefer Steam * GoG), and desire to piss Brad off, more than anything else. It's not as if they can DMCA the Stardock store. And if this were Microsoft store, they would NOT have pulled the game.

I had a thread about this last week where I was saying that Valve and GoG probably complied because, aside from them also being sued by P&F, an active lawsuit gave them additional cover to pull the game until the suit is resolved.

That is usually how these things work. Time and time again it has happened. You file. The other side disputes and/or sues, game goes back up until resolved. It's precisely how the system was designed to work. It's what Microsoft, Apple, Amazon and others do. Even Google.

It's also why the abuse tends to be curbed (at least in our industry) because more often than not, a side that INTENDS on suing for infringement, isn't going to waste time with an abusive DMCA.