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There have been a bunch of new filings on recap (http://archive.recapthelaw.org/ilnd/250791/)

We have motions in limine (motions to exclude testimony / evidence / expert reports from the trial).

Proposed pretrial orders.

Here is what CHS and GW propose: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.331.0.pdf - note some arguments in the footnotes.

Proposed jury instructions.


Here is what CHS proposes the jury hears about the case at the beginning of trial: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.332.0.pdf


It's basically a proposed blueprint of the trial.

That document is an excellent summary of most key points in copyright and trademark law.

It seems like every objection from Chapterhouse mentions 'Hey, you are ignoring what the judge ruled previously'.

I'd like to know what GW understands as "product design" for this case as it sounds like a nice catch-all for all the trademark claims the have been unable to prove until now.

M.

Judgment on shoulder pads - judge sticks by his earlier opinion, but sanctions GW for not turning over the letters.

In his more recent affidavit dated March 13, 2013, which GW’s attorney submitted with GW’s response to Chapterhouse’s second motion for reconsideration, he again states that as of January 4, he “still had received no substantive communication from the Copyright Office (only a promise to respond to my June 26, 2012 email) . . . .” Id. at 1. This statement does not appear to be accurate. Prior to Carol Frenkel’s January 4 letter denying GW’s application, GW’s attorney received several e-mails from various Copyright Office personnel, most of which commented on the copyrightability of the sculptured shoulder pad. Considering the circumstances, there is a strong indication that GW’s failure to disclose its correspondence with the Copyright Office was deliberate or at least reckless.

So, not a big win for CHS.

So, CH can't sell their shoulder pads anymore?

Sorry I can't download the doc on my phone.

Not quite - GW can copyright their shoulder pads. The jury trial still goes on to determine if CHS infringed that copyright / if they have a defence.


There is more to the judgment as well, but it is early and no coffee yet.

czakk wrote:
Not quite - GW can copyright their shoulder pads. The jury trial still goes on to determine if CHS infringed that copyright / if they have a defence.


There is more to the judgment as well, but it is early and no coffee yet.

Wait, so a random judge from Illinois can overturn a decision from a federal establishment who deals ONLY with copyright?

I thought his ruling was only that the pad claim was able to make it to trial, not that he was granting copyright to it.

The hell is the point of anything in this country if random judges can over turn any decision made by the government(or in other cases decisions made by a public vote)?

 Aerethan wrote:

Wait, so a random judge from Illinois can overturn a decision from a federal establishment who deals ONLY with copyright?

I thought his ruling was only that the pad claim was able to make it to trial, not that he was granting copyright to it.

The hell is the point of anything in this country if random judges can over turn any decision made by the government(or in other cases decisions made by a public vote)?

As far as I've understood that document, the previous ruling stood because the appeals process for the Copyright Office wasn't over yet, so their decision wasn't final yet.

Feel free to correct me, but that was my interpretation of it.

PhantomViper wrote:

 Aerethan wrote:

Wait, so a random judge from Illinois can overturn a decision from a federal establishment who deals ONLY with copyright?

I thought his ruling was only that the pad claim was able to make it to trial, not that he was granting copyright to it.

The hell is the point of anything in this country if random judges can over turn any decision made by the government(or in other cases decisions made by a public vote)?

As far as I've understood that document, the previous ruling stood because the appeals process for the Copyright Office wasn't over yet, so their decision wasn't final yet.

Feel free to correct me, but that was my interpretation of it.

GW forfeit their appeal in favor of the court decisions on IF it COULD be copyrighted, or at least that was my understanding of it.

I am unaware of courts being able to just grant copyright on something, which again, if that is the case then why have a copyright office instead of just a copyright court.

Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

Presumably Chapter House would be allow to appeal.

I am thinking that as the next step GW will sue the Soviet Union for stealing the shoulder pad design for use on the T-34 tank.

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.

[Leaving the wild I know nothing about us civil procedure speculation zone]




Aside from all that, CHS did get the judge to basically say 'Moskin lied to the court' (inaccurate, deliberate, reckless). Whether that amounts to anything down the line *shrug*.

It looks like the court allowed GW to strike almost all of CH's affirmative defenses as well.

czakk wrote:

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.
[Leaving the wild I know nothing about us civil procedure speculation zone]

The point I want to know is can a judge grant copyright, even after the CO said no? Does the CO have any obligation to accept his decision? Even if GW is granted the right to keep it in this case, could they sue for it again now that the CO officially declined it?

The balls alone for a judge to completely disregard the decision of a federal entity is pretty big. One would think the CO's opinion would be worth a pretty penny in a copyright case.

Does the failure to disclose give them a strong appeal process? Is sanction simply an informal damage to Moskin's reputation--or is there more to that?

I just simply cannot understand how a geometrical shape can be copyrighted.

I mean, the toecaps on heavy duty boots are the same shape. Once GW have the copyright, they can sue every working boot manufacturer in the world. It's insane.

Some of those affirmative defences were 'struck' because they aren't really affirmative defences.

And some of them CH pulled.

 Aerethan wrote:

czakk wrote:

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.
[Leaving the wild I know nothing about us civil procedure speculation zone]

The point I want to know is can a judge grant copyright, even after the CO said no? Does the CO have any obligation to accept his decision? Even if GW is granted the right to keep it in this case, could they sue for it again now that the CO officially declined it?

The balls alone for a judge to completely disregard the decision of a federal entity is pretty big. One would think the CO's opinion would be worth a pretty penny in a copyright case.

The copyright office doesn't grant copyright - it's a library / database of copyrighted material. Registering gives copyright holders certain advantages but isn't mandatory. They are there to catch obvious errors and keep complete nonsense out of the registry.

The ability to sue someone even if the registration is refused was deliberately built into the copyright scheme - that's why 17 USC 411 exists. How much deference a Judge gives a decision of the copyright office is apparently unclear*, but copyright is pretty squarely in the judge's jurisdiction. He's the person the law says gets to make decisions in copyright infringement cases.


* The law on reviewing / overturning administrative bodies like this is pretty complex and annoying - at least up here in Canada. But if you step back and consider the situation more broadly, the judge is probably in a better place to make a decision (Moskin was right about that).

1) He's had an opportunity to hear both sides.
2) He's had a lot more evidence / testimony.
3) He's impartial.
4) He's an expert in the law.

czakk wrote:

 Aerethan wrote:

czakk wrote:

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.
[Leaving the wild I know nothing about us civil procedure speculation zone]

The point I want to know is can a judge grant copyright, even after the CO said no? Does the CO have any obligation to accept his decision? Even if GW is granted the right to keep it in this case, could they sue for it again now that the CO officially declined it?

The balls alone for a judge to completely disregard the decision of a federal entity is pretty big. One would think the CO's opinion would be worth a pretty penny in a copyright case.

The copyright office doesn't grant copyright - it's a library / database of copyrighted material. Registering gives copyright holders certain advantages but isn't mandatory.

The ability to sue someone even if the registration is refused was deliberately built into the copyright scheme - that's why 17 USC 411 exists. How much deference a Judge gives a decision of the copyright office is apparently unclear*, but copyright is pretty squarely in the judge's jurisdiction.


* The law on reviewing / overturning administrative bodies like this is pretty complex and annoying - at least up here in Canada. But if you step back and consider the situation more broadly, the judge is probably in a better place to make a decision (Moskin was right about that).

1) He's had an opportunity to hear both sides.
2) He's had a lot more evidence / testimony.
3) He's impartial.
4) He's an expert in the law.

So a single little local judge can just declare basic geometric shapes as protectable by copyright? A VERY dangerous precedent to set IMO. BRB while I register a few things, namely squares and circles.

czakk wrote:

 Aerethan wrote:

czakk wrote:

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.
[Leaving the wild I know nothing about us civil procedure speculation zone]

The point I want to know is can a judge grant copyright, even after the CO said no? Does the CO have any obligation to accept his decision? Even if GW is granted the right to keep it in this case, could they sue for it again now that the CO officially declined it?

The balls alone for a judge to completely disregard the decision of a federal entity is pretty big. One would think the CO's opinion would be worth a pretty penny in a copyright case.

The copyright office doesn't grant copyright - it's a library / database of copyrighted material. Registering gives copyright holders certain advantages but isn't mandatory.

The ability to sue someone even if the registration is refused was deliberately built into the copyright scheme - that's why 17 USC 411 exists. How much deference a Judge gives a decision of the copyright office is apparently unclear, but copyright is pretty squarely in the judge's jurisdiction.

Of course it does, we can't have a system where a body of experts decide whether or not an item is copyrightable based on rational examination of the facts, that would interfere with a corporation's ability to choose a State and court friendly to corporations to help them game the system. Afterall, corporations are people too.

*sigh* I wonder if I can get another degree in an applied science in time for the Mars missions.

Exactly Czakk. Copyright is inherent. The US Copyright Office merely registers copyrights, which entitles the registrant to a presumption of validity, as well as statutory damages. GW is no longer pursuing statutory damages in this case, by the way.

Decisions by a US Copyright Office are typically given a strong degree of deference, but the only such decision that matters for the Copyright Office is a refusal to register. Registration already confers a presumption of validity. You could say that a refusal to register confers a presumption of invalidity, but the weight given to such refusals is entirely within the hands of a Judge.

Various districts in the US handle copyrights differently. In the 7th circuit, copyrightability is a mixed issue of law and fact. That makes it very wonky, sort of like the meaning of claim language in a patent. In other districts it is purely a factual issue. Being a fact issue the Court will only deal with it on Summary Judgment, which requires that if, when all facts are viewed in the light most favorable to the non-moving party, a reasonable jury could only interpret the facts in one way, the Court renders such a verdict.

It basically means that any decision by a jury to the contrary would be an unsupportable mistake, so there is "no genuine issue of material fact" for the jury to decide. Courts are often reluctant to dispose of claims on summary judgment. Copyrights are especially tough to dispose of on summary judgement because (A) copyright is inherent, and (B) copyright only requires a "minimal degree of creativity" under US law.

Now, one can only infringe a copyright if one unfairly appropriates original artistic expression, i.e. if your work of art is not terribly original, copyright protection is very narrow. Scope of copyright is a question of fact that is part of an infringement analysis.

1: Does the Plaintiff own a copyright? Does a copyright exist to own, if so, does the Plaintiff own that particular copyright?

2: What is the "protected expression" that constitutes such copyright, if any?

3: Comparing the two works side by side, fully aware of the scope of the copyright, does the accused work unfairly appropriate that which is protected expression such that the two works are "substantially similar?"

Copyrightability is part of an ownership determination, that's all. It is merely a precursor to a substantial similarity analysis. Finding that a work is not subject to copyright protection is tantamount to saying that it is not original in any meaningful way. Because that determination is so subjective, it is hard to get a Court to make it.

When you have a patent, validity is a much more explicit determination. Is the technology new, useful, and not obvious in light of the prior art? It can get weird when you are down to tiny, tiny advancements to existing technology, but it is almost always a much more objective analysis than determining the existence of a copyright, especially since you have to do something to get a patent.

As I said, copyright is inherent it exists as soon as you fix a work in a tangible medium of expression. This post is now potentially copyrighted, and I am the owner of said copyright. (Ignore the fact that this is a public forum, with various rules, etc. etc. etc. this is just an example) You don't give a copyright, so there is nothing to take away. You can only assert that it never existed in the first place. There is a very subtle, but very important difference between the two, which makes getting a Court to find that a work is not subject to copyright protection very, very difficult.

 Aerethan wrote:


So a single little local judge can just declare basic geometric shapes as protectable by copyright? A VERY dangerous precedent to set IMO. BRB while I register a few things, namely squares and circles.

Well, the flip side of that is can a federal clerk working at the copyright version of the local DMV do the same thing? They did let other shoulder pads through no problem.



Even though I don't like the decision, I can't really fault the process. On one hand you've got some highly regarded IP lawyers duking it out in front of a well respected judge vs mailing some photocopies to a clerk and saying 'hey, register this for me please', the clerk flipping to their desk manual, reading a section and saying, 'naaah, not today buddy, denied.'

If the judge really screwed up on the law, you will see an appeal from CHS.


You go through the same process with a tax audit, you send your forms and receipts in, they review them and say nope, you owe us a million dollars. Are you going to sit there and say 'oh, well, they are the tax people, I guess they are the experts, I'll pay up,'? No, you'll go to the relevant court and fight it out.

No one would say, 'how dare this puny tax judge overturn the mighty revenue agency'.

IIRC someone mentioned that in the UK space marine models are only covered by Design rights not artistic rights, and as such a company in the UK could do what CHS is doing without fear of recourse.

If that is the case, can we form a kickstarter to convince CHS to move it's base of operations there where there is no copyright issue? If Stormtrooper toys can be made willy nilly over there, I don't see why shoulder pads would be any different. The design for them was well over 15 years ago.

Love this part:

In his more recent affidavit dated March 13,
2013, which GW’s attorney submitted with GW’s response to Chapterhouse’s second
motion for reconsideration, he again states that as of January 4, he “still had received
no substantive communication from the Copyright Office (only a promise to respond to
my June 26, 2012 email) . . . .” Id. at 1. This statement does not appear to be accurate.
Prior to Carol Frenkel’s January 4 letter denying GW’s application, GW’s attorney
received several e-mails from various Copyright Office personnel, most of which
commented on the copyrightability of the sculptured shoulder pad. Considering the
circumstances, there is a strong indication that GW’s failure to disclose its
correspondence with the Copyright Office was deliberate or at least reckless.

To summarize what Weeble said:


When you make the first of something copyrightable, you automatically own that copyright. BAM. The second the product is finished, you own it, and any iterations of it.

Copyright Office keeps track of those, so in case two people invent the same thing without knowing about the other, we can determine which of them made it first. Or at least who registered it first. It supports copyright claims pretty heftily, but isn't an end-all-be-all.

This only works if what you're making is Copyrightable- and that's what this case is about. If the geometries and sizes are copyrightable, GW wins. If not, CH wins.

That's not even true - the basic shape of a shoulderpad might be copyrightable, but that'd be a very narrow copyright (because shapes aren't very creative). GW might "own" the basic shape, but that doesn't mean that CH is infringing with their other shoulderpads.

Gah. This is not good.

I'm gonna be honest, looking at where GW is going at the moment, I now actually hope they lose, not because I hate GW and I think "Yeah, stick it to the man, CH! Show that evil GW!" but because it would actually improve GW a tonne. Maybe they might learn their lesson, hopefully get rid of Kirby, tell the shareholders where they can put it, and return to the friendly neighborhood hobby company we all used to know and love.

Of course that could just be me being naive.

Anvildude wrote:
To summarize what Weeble said:


When you make the first of something copyrightable, you automatically own that copyright. BAM. The second the product is finished, you own it, and any iterations of it.

Copyright Office keeps track of those, so in case two people invent the same thing without knowing about the other, we can determine which of them made it first. Or at least who registered it first. It supports copyright claims pretty heftily, but isn't an end-all-be-all.

This only works if what you're making is Copyrightable- and that's what this case is about. If the geometries and sizes are copyrightable, GW wins. If not, CH wins.

Registration also puts the public on notice that your work exists.