Quote:
Originally Posted by ElAurens
Methinks you don't grasp just how expensive it would be.
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It might be cheaper to create a Kickstarter campaign to:
1) Hire attorneys to fight the issue (or possibly get someone like the Electronic Frontier Foundation interested) - assuming that 1c/UbiSoft is willing to revisit the issue and/or there is another case where the people involved in the suit can show "legal standing" (i.e., the right to bring the lawsuit).
2) Buy a lobbyist to buy U.S. lawmakers so that they change the law regarding patent and copyright trolling.
3) Buy the IL2 Franchise.
The ONLY ways to overturn the N-G agreement are:
A) N-G goes out of business. (We can hope! There are many reasons to wish it dead.)
B) Ubisoft/1C goes out of business. Whoever buys the rights to the IL2 1946 franchise isn't necessarily contractually bound by previous agreements. If nobody buys the rights, then it falls into the legally ambiguous area of "abandonware." In that case, N-G's interest in the case is nil, since there are no obvious targets to sue and no money to be gained by doing so.
C) UbiSoft/1C sells the IL2 1946 franchise. Whoever buys the rights isn't necessarily bound by the previous agreement. This, of course, would also invalidate TD's contract with UbiSoft/1c, which would be very bad.
D) The U.S. government passes laws to either specifically invalidate the N-G/UbiSoft agreement or to invalidate contracts like it. What N-G did is called "copyright trolling" or "trademark trolling" and it should be illegal under U.S. law. If you're a U.S. citizen, contact your congresscritters and/or favorite civil liberties organization and complain.
E) U.S. legal precedent overturns the agreement and UbiSoft revisits the case. That is, if a judge in another, similar case, rules that another company which did like N-G did acted improperly, and that precedent is allowed to stand (i.e., not appealed to a higher court, or sustained by higher courts), then UbiSoft's lawyers could easily get a court to declare the contract void.
F) An international treaty, signed by the president and ratified by the U.S. Senate, overturns the agreement or agreements like it.
Without somehow voiding the contract, it might be possible to fight the agreement in court.
I Am Not a Lawyer, but my ignorant opinion is that N-G's legal case is built on sand and they only got away with what they did by bullying 1c/UbiSoft into signing an ill-advised contract.
I AM NOT DISPUTING THAT 1c AND TD ARE CONTRACTUALLY BOUND BY THEIR AGREEMENT, but:
* N-G's claim to control visual representations and names of ships and planes built by the U.S. government is ridiculous. Unless the U.S. government says otherwise, anything it prints or produces is copyright and trademark free. This means that ships like the U.S.S. Arizona, which were produced by U.S. Navy shipyards, are in the public domain.
* Names and designations assigned to planes, ships or other equipment by the U.S. military, such as the "TBF Avenger" are usually in the public domain. (There are exceptions, such as the Jeep - which the government allowed the Willys-Overland Corporation to trademark in 1943, even though the term "Jeep" was slang for the vehicle before it was trademarked.)
* Typically, products designed by private companies specifically for the U.S. government go into the public domain. Unless the company's contract says otherwise, the U.S. government takes over patent, copyright and trademark rights along with the rights to modify or use the product as it sees fit. That means that, once the government no longer uses that equipment, all IP rights also go into the public domain.
Given the state of intellectual property law and the relationship between ship and aircraft manufacturers and the government in the U.S. during WW2, it's very likely that Grumman, and all the other companies that eventually got absorbed into N-G, probably were happy to give the government all IP rights to their products.
* Even if it was possible to claim trademark rights, courts require the plaintiff to prove continuous use and defense of those rights. Since there was no attempt by N-G or its precursors to defend its trademarks for at least 50 years, it wouldn't be that hard to prove them void. After all how many models, books and movies have been produced over the years which feature representations of the U.S.S. Arizona or the TBF Avenger?
* Additionally, copyrights once weren't as long-lasting as they are now, so copyright protection on names and images of planes and ships from the 1940s might have expired some time before 2005.
* Trademarks generally apply only to a specific product or class of product. For example, before the debut of the Ipod, for 20 years, Apple Computer and Apple Records coexisted peacefully, since Apple Records didn't make computers and Apple Computer wasn't involved in the music business. It would be easy to claim that a video game representation of a plane or ship was a different product than the actual hardware.
* Historically, U.S. courts have been lenient about "artistic representations" of commercial products. For example, Andy Warhol sold lithographs depicting cans of Campbell's Soup, but didn't need to pay royalties to the soup company, because he sold artistic representations of their products, not reproductions of actual soup cans or copies of their label art.
If 1c had actually been building and marketing a replica of the TBF Avenger, and calling it that, then I'd agree that N-G might have a valid trademark infringement case, but an "artistic representation" of that plane in a game is a totally different matter.
The only problem with the preceding thought exercise is that fans of the game don't have "legal standing." That is, we can't prove that we're in any way "materially damaged" by the N-G/Ubisoft contract.
And, no, not having our favorite ships and planes in the game isn't "materially damaged" since we incurred no financial losses or personal injury. Any competent judge would say, "This is a private deal between two companies. If you don't like it, go develop your own game."
Note to TD members: If you found any of this essay helpful, feel free to edit it or use it as you see fit as a sticky post discussing the N-G agreement.