[kode]

Originally posted by J3Vr6
Heh, they surely will.  And their next breath would be used to take down every little thing you guys have done here I think.

then we'll just say they misunderstood.

"we didn't say we were going to distribute it for free, we said we wanted to distribute it for free."

[J3Vr6]

lol, that excuse probably worked in elementary school, but not in big business.  All they have to do is read the boards or subpeona whatever site holds these boards to see the jokes as true intentions.

[kasperl]

the idea for finding out who owns the rights is simple, start selling the game, and see who sues your ass.

now, we need a target drone to start selling. please step forward.

/steps backward.

seriously though, what is the status on this?

[Kazan]

wait a second.. there is something in the law about if the owner of the copyright cannot be located.... *scurries off to check some things*

[Kazan]

I think we can declair the Copyright in a state of adandonment


an article dealing with trademark and copyright abandonment (speciallly radio here, but it's general copyright/trademark info)

http://www22.brinkster.com/paradio/pages1/abandon.htm

Since there have been some dogmatic assertions that copyrights cannot be abandoned, the following excerpt from Nimmer on Copyright, a favorite authority used by the courts, is given:

    §13.06 The Defense of Abandonment of Copyright

                Abandonment1 of the copyright by the plaintiff or his predecessor in interest obviously constitutes an effective defense in an infringement action. The plaintiff's claim of ownership2 is thereby countered. Despite imprecise usage in some of the cases, abandonment must be distinguished from forfeiture of copyright.2.1 The latter may occur as a consequence of publication without proper copyrignt notice3 and is effectuated by operation of law regardless of the intent of the copyright owner.4
                Abandonment occurs only if there is an intent by the copyright proprietor to surrender rights in his work.5 There is, moreover, strong authority holding that an overt act evidencing such an intent is necessary to establish abandonment.6 Such an overt act was held to have occurred by reason of the plaintiff's having destroyed its only copy of the work.7 (Pacific & S. Co. v. Duncan, 572 F. Supp 1186 (ND Ga. 1983), affirmed 744 F. 2d. 1490 (11th Cir., 1989), cert. denied 471 US 1004 (1983))

Nimmer does not support the idea that merely failing to object to unauthorized use constitutes abandonment, but it appears to be a part of the thinking of corporation law departments.

........

Corpus Juris Secundum, a legal encyclopedia found in many of the larger public libraries, and case citations are given in the footnotes referred to.

    1. Abandonment of property or of a right necessitates the concurrence of two elements; an intention to relinquish or give up such property or right, and an external act, or an omission to act, by which such intention is carried into effect (1 CJS §4, n.52)

    2. If the thing alleged to have been abandoned is shown to have been considered worthless by its owner and by the general opinion of the community, the presumption that the owner did not intend to abandon it cannot arise, and conduct on the part of the owner inconsistent with an intention to continue to the claim the property or right may in fact raise a presumption or inference of abandonment (1 CJS §9a, n. 35, 36)

    3. A abandonment of property or a right divests the title and ownership of the owner as fully and completely as would a conveyance (1 CJS §12, n. 71)

The FreeSpace trademark is considered abandoned under US Law as it has not been used comercically for three years
http://www.wyattfirm.com/useit.html



(more to follow)

[Lt.Cannonfodder]

Interesting.... if FS2 with SCP build could be legally downloaded, I would surely advertise it on every single forum I visit

[kasperl]

me too, and i'd start bruning even more FS2 disks. i can fit all of it on one disk though, just without mve cutscenes. and perhaps missing hi res art.

[Kazan]

Oh.. interplay is so burned

this information directly from the USPTO combined with their email saying they dont have the rights
http://tess2.uspto.gov/bin/gate.exe?f=doc&state=hejtuv.2.3
http://tess2.uspto.gov/bin/gate.exe?f=doc&state=hejtuv.2.2

that puts them in de facto abandonment of the copyright!

[kasperl]

so, :V: is free to make FS3?

and we are free to sell FS2, as long as we get permision from :V:?

[J3Vr6]

But the fact that volition and interplay continue to have freespace websites open still indicates that it still has the trademark towards the public:

A corporate name may become abandoned through long nonuse even if the corporation still uses the name for payment of taxes, declaring dividends, etc., and still holds corporate papers under that name. If the corporate name is not used before the buying public, it is not being used in such a way that furnishes a basis for preventing similar use by others.

Since the name is still used "before the buying public" means that it technically isn't abandoned.

Plus, someone here mentioned a while back that schools were able to buy freespace 2 (cuz the company he works for was burning them), so that alone tells me that it's still not abandoned.

[J3Vr6]

Plus the fact that you're mentioning trademarks (The freespace logo, etc) and not the intellectual property of what makes up the game, textures, etc.

[kasperl]

IIRC :V: owns the rights to the data, Interplay only own(ed/s) the name.

[Kazan]

J3Vr6: give documentation of that FreeSpace 2 purchase

yes they have them on the webpages - but unmaintained - as one legal site put it "simply locking a trademark in safety deposit box doesn't protect it" just like burrying it on Interplay's website, and an unmaintained [V] website

---

We do have permission from [V] to distribute the source code and anything derived as long as we don't charge, and Interplay says THEY DON'T OWN THE RIGHTS.  If the copyright holder (according to the USPTO) says they don't own the copyrights that is clear intent to abandon the copyright.

no matter what other things they've done

[Kazan]

kasperl is right - and we have V's permission, and the origional TaC clickthrough's distribution conditions are still the valid ones
interplay no longer owns the trademark, and we have permission from V to distribute.

I say we're ok to go -- i'd defer to professional lawyers opinions before doing it though, just to make sure i'm right

[J3Vr6]

Yeah, I'd definitely consult an attorney before doing anything.  A couple of kids behind their computers playing legal aid isn't going to hold up in court if something goes wrong.

Hopefully we'll be able to distribute freespace 2 to everyone and post it where ever we want.

Btw, Kazan, here's the link to that post Start Dragon said about his company burning the games for schools:

http://www.hard-light.net/forums/index.php/topic,18491.0.html

[Unknown Target]

Wait a minute, wait a minute.

Let me get this straight.

You are saying that...

After 5 years, the ONLY thing opposing the ENTIRE Freespace community from publishing their works, and getting real publicity for their stuff, has just been brushed aside?
Does anyone remember all the UT mods that went official? I can see Inferno and BWO doing that

Hell, if we got :V: on board, we could do FS3!

*is happy*

[Black Wolf]

Originally posted by Unknown Target
Wait a minute, wait a minute.

Let me get this straight.

You are saying that...

After 5 years, the ONLY thing opposing the ENTIRE Freespace community from publishing their works, and getting real publicity for their stuff, has just been brushed aside?
Does anyone remember all the UT mods that went official? I can see Inferno and BWO doing that

Hell, if we got :V: on board, we could do FS3!

*is happy*

Not true. Legal gobbeldigook aside, the real rules still apply -

"If it's not by [V], it's not FS3."

Learn it. Know it. Live it.

[Kazan]

10-29-2003?! that's well after interplay said they no longer had the rights! WTF

maybe someone else knows what we know! mwahahaha

[J3Vr6]

That link u posted about USPTO still showed that interplay had the rights and that it was still "live."  Maybe I read that wrong, but it still showed they had it.

[Kazan]

yes it shows that it's "live" -- the thing is someone has to tell the USPTO that interplay has abandonded the rights

but that's only really neccesarry if interplay tried to sue us/gamespy for posting the game -- their intent to abandon is more than enough defense in court