Alpharius wrote:Maybe if we let them know that Andrew will be out of touch for the next 5 to 10 days?

I'm actually surprised it is moving as quickly as it is!

AndrewC wrote:

Alpharius wrote:Maybe if we let them know that Andrew will be out of touch for the next 5 to 10 days?

I'm actually surprised it is moving as quickly as it is!

That's low .

And I'm using someone elses machine here at the moment. Take pity, I'm about to move across half the planet to a place where internet access costs £120 per month on an account that has a download limit! So play nice.

I just thought that there was a status conference due either this or last week, thats all.

Cheers

Andrew

AndrewC wrote:
And I'm using someone elses machine here at the moment. Take pity, I'm about to move across half the planet to a place where internet access costs £120 per month on an account that has a download limit! So play nice.

Scammel wrote:Just noticed today (4th August) that there's been a string of new court documents since the last status hearing, but I can't access them - anybody know anything?
*Cranks up the Weeblesignal*

Most other gaming companies don't do that. Sure, Wizards of the Coast is not any better, but if you start looking into other gaming companies you'll find that Wyrd Miniatures, Privateer Press, Mantic Games, Corvus Belli, Reaper, Dark Age, Crocodile Games and others aren't seen that way. And for good reason.

Eldanar wrote:The only other item of interest as that both sides agreed to label certain discoverable items as sensisitive, and have them withheld or redacted from the public record.

Eldanar wrote:Basically, I think what this all means is that GW is going to have to specifically identify (at some point) what works it feels are infringed, and it cannot rely on the "its our universe and we own eveything in it" argument. CHS, on the other hand, must identify what works of GW's it had access to in producing its various figure lines. (I want to say that somewhere in there, CHS conceded it had access to everything, or close to it...but I could be wrong...)

notprop wrote:In the absence of any serious news I will add this gem; There's only one way to solve this issue - FIGHT!

Scammel wrote:There's been 2 hearings we don't know anything about - does anybody have a clue at all? Really, unless we get some new info nothing new can be said about this that hasn't been said over the last Lord-knows-how-many pages.

iamfanboy wrote:OK, here's what I've been able to glean:

GW and CHS fenced back and forth for a while, trying to get a better starting position. GW's attempts to get CHS to give their business records (so GW could look through them) was met with a claim of confidentiality that Kennelly upheld.

Kennelly referred both parties to another judge (dude named Gilbert) in an effort to either get their discovery over or to start on a settlement. And subtly recommends settlement.

GW filed for another extension, which Kennelly granted; but that didn't stop the off-the-record meeting with Gilbert. The meeting with Gilbert didn't go fruitfully (both sides probably stuck to their guns), but one outcome is that both sides have to meet with their clients and get, on paper, a letter stating what that client would consider a valid settlement.

Chances are, the side that puts out a more reasonable settlement offer will win a brownie point from Kennelly.

BTW the letters may be confidential, as they were to be filed by September 20th but haven't shown up in the record yet. Or maybe I'm just looking in the wrong place.



Analysis? Biased of course, but it seems as though Kennelly doesn't think one side or the other has an icicle's chance in the Hell of Boiling Oil and tried to bring in someone he knows is good at making both sides reach a settlement. Dude failed, and from the requirement of a letter filed that states the client's stances on settlement it seems that one attorney may not have had a clear idea what his client thought would BE a reasonable settlement.... which is probably GW, who won't accept anything less than a total victory lest their 'walled garden' prove to be more of an open fence.

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

aka_mythos wrote:

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

The only possible settlement I could imagine is one where GW were to offer an open license to CH to use GW's trademarked names.. this would maintain GW's assertion that they were right, but allow CH to continue doing what its doing. Of course they would force CH to sign a non-disclosure agreement, so that no one of would ever know how CH necessarily continues... and GW gets to maintain the illusion it has more rights than it necessarily does. Other than that CH has no real reason to settle than to get out of spending as much time dealing with GW in a court.

Howard A Treesong wrote:

aka_mythos wrote:

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

The only possible settlement I could imagine is one where GW were to offer an open license to CH to use GW's trademarked names.. this would maintain GW's assertion that they were right, but allow CH to continue doing what its doing. Of course they would force CH to sign a non-disclosure agreement, so that no one of would ever know how CH necessarily continues... and GW gets to maintain the illusion it has more rights than it necessarily does. Other than that CH has no real reason to settle than to get out of spending as much time dealing with GW in a court.

I suppose as CH are being defended pro-bono they will be directed towards a favourable settlement. Unless their defence don't mind spending the money to trash GW in court.

cygnnus wrote:

Howard A Treesong wrote:

aka_mythos wrote:

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

The only possible settlement I could imagine is one where GW were to offer an open license to CH to use GW's trademarked names.. this would maintain GW's assertion that they were right, but allow CH to continue doing what its doing. Of course they would force CH to sign a non-disclosure agreement, so that no one of would ever know how CH necessarily continues... and GW gets to maintain the illusion it has more rights than it necessarily does. Other than that CH has no real reason to settle than to get out of spending as much time dealing with GW in a court.

I suppose as CH are being defended pro-bono they will be directed towards a favourable settlement. Unless their defence don't mind spending the money to trash GW in court.

Well, that's a question, isn't it? Didn't someone early on suggest that the pro bono representation was driven, at least in part, by an interest in seeing a precedent set? If so, CHS's representation may have little incentive to settle as a settlement means no precedent is set... Of course they do have to act in their client's interests, but if they're looking to set some case law, they may want to push things as hard as they can.

But, hey, I'm certainly not a lawyer!

Valete,

JohnS

Mr Mystery wrote:I'd have thought it would be the opposite. CH, should they lose, won't be left in a good place. I don't know the ins and outs of it, but I suspect a settlement of somekind is about the best they could realistically hope for?

Mr Mystery wrote:By not go that way, do you mean GW are unlikely to lose, or more that they'll get the more favourable end of any settlement?

aka_mythos wrote:

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

The only possible settlement I could imagine is one where GW were to offer an open license to CH to use GW's trademarked names.. this would maintain GW's assertion that they were right, but allow CH to continue doing what its doing. Of course they would force CH to sign a non-disclosure agreement, so that no one of would ever know how CH necessarily continues... and GW gets to maintain the illusion it has more rights than it necessarily does. Other than that CH has no real reason to settle than to get out of spending as much time dealing with GW in a court.

odinsgrandson wrote:
That would be a pretty horrible settlement for them.

Agreements along those lines have limits in years- and after that time is up, they would be forced to close down Chapterhouse Studios. It would be a subtle win for GW in the long term.

Howard A Treesong wrote:The likely result for GW, assuming they lose, is that they have to cover costs and watch CH continue to make stuff. CH could then counter sue for them making a malicious prosecution I think.

The last big motion in the case - item 95 (the next 4 look to be minutes)

PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO AMEND PLEADINGS
Plaintiff Games Workshop Limited (“Games Workshop”) moves this Court for an Order
extending the deadline to amend pleadings through and until November 1, 2011. In support of
its motion, Games Workshop states as follows:
1. Pursuant to this Court’s order dated August 9, 2011 (Dkt. No. 82), the deadline
for amending pleadings is August 31, 2011.

2. Despite having commenced discovery more than five months ago, to date Games
Workshop has yet to receive any substantive responses to its first or second sets of
interrogatories and document requests (served March 25, 2011 and May 27, 2011, respectively),
notwithstanding the Court’s Order (Dkt. No. 66) directing Defendant Chapterhouse Studios LLC
(“Chapterhouse”) to respond to the first requests, and notwithstanding innumerable entreaties by
Games Workshop to obtain responses to the second set of requests without having to trouble the
Court with motion practice. Rather, Games Workshop only has received objections to the
Case: 1:10-cv-08103 Document #: 95 Filed: 08/30/11 Page 1 of 5 PageID #:739

2 CHIC_5496810.1
interrogatories and unfulfilled promises to produce documents. Since the date of Games
Workshop’s prior motion to extend the deadline to amend pleadings (Dkt. No. 74), Chapterhouse
has continued its all-but complete refusal to participate in discovery. Hence, for essentially the
same reasons set forth in Games Workshop’s prior motion, plaintiff must request again that the
deadline to amend pleadings be extended.

3. Games Workshop has identified 97 products of Chapterhouse that it believes to be
infringing based on the similarities of the products to original sources, and Games Workshop
contends that, as a result, Chapterhouse’s entire website (focused exclusively on trading on
Games Workshop’s popular WARHAMMER books and games) is an infringement.
Chapterhouse’s admits access and copying, and its entire business exists to trade on Games
Workshop’s original works. However, Games Workshop is aware of additional new products of
Chapterhouse that may need to be brought into this lawsuit, and before making any final
accusations of copying, Games Workshop had expected to have received at least some discovery
from Chapterhouse, including any evidence of independent creation (if there is any). In fact,
Games Workshop has received none despite the Court’s prior instructions.

4. Chapterhouse’s discovery failures also have raised the question of whether
additional parties will need to be named. Games Workshop questions whether it will need to add
as parties the individual designers and manufacturers of Chapterhouse’s accused products, but
because Chapterhouse has improperly designated such information (constituting the only
information it has produced to date in discovery) as “Confidential Attorneys-Eyes-Only”, the
undersigned counsel has been unable to confer even with in-house attorneys at Games Workshop
as to the roles of these third parties. Despite repeated (and increasingly insistent) reminders from
Games Workshop, Chapterhouse likewise has refused to produce in discovery any of its
Case: 1:10-cv-08103 Document #: 95 Filed: 08/30/11 Page 2 of 5 PageID #:740
3 CHIC_5496810.1
correspondence with these designers, suppliers and distributors, thus completely stalling progress
in the case and rendering impossible any efforts to understand the roles of these third parties.

5. The Court has remanded the case for proceedings before Magistrate Judge Gilbert
to resolve discovery disputes and assess whether the parties can engage in any meaningful
settlement discussions. Accordingly, although Games Workshop hopes that soon it will be
receiving the critical discovery that it needs to begin moving this case forward, and has been
seeking to resolve disputes without further motion practice, it fears that no further information or
documents will be forthcoming without additional Court orders.

6. Further, this Court has set the next status hearing for November 1, 2011, during
which time the parties will report to the Court the status of discovery and proceedings before
Magistrate Judge Gilbert.

7. Therefore, Games Workshop requests that the Court extend the deadline for
amending pleadings until the next status hearing, which is currently scheduled for November 1,
2011.

8. Counsel for Games Workshop notified counsel for Chapterhouse of its intent to
seek such an extension of time, yet counsel for Chapterhouse has not responded.
WHEREFORE, Games Workshop respectfully requests that this Honorable Court
extend the deadline to amend pleadings through and until November 1, 2011.

NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday, September 13, 2011:
MINUTE entry before Honorable Jeffrey T. Gilbert:Status hearing held. The Court
will not set a future status hearing date at this time. However, on or before 9/20/11,
counsel shall submit to the Court confidential letters outlining their clients'; settlement
positions and what information they believe is necessary to exchange in order to have a
productive settlement conference. Mailed notice(ep, )

I can truly say the folks at Winston & Strawn are not in this for money, from what I have learned about such cases, there is little chance for such payouts (somewhere in 10%). They are truly helpful and altruistic regarding this case.

If you guys want to see a really interesting bit of the argument, check out document 78 on Recap. From August 8, 2011.

In short, CHS was asking the court to sanction GW for their lack of response to CHS's requests.

On June 30th, CHS asked for examples - exemplars really (physical copies) -- of the works GW claimed were infringed so they could compare them to the CHS products in question. The request was granted by the court. Now, when exemplars are requested, you're comparing like to like. So if you say someone ripped off your color photo, you provide a color copy of your photo. If you claim they infringed your sculpture, you provide a copy of it. This is a requirement for copyright law. Not an option. A requirement.

GW gave a response that could be desribed as tepid at best, and laughable at worst. They provided electronic copies of a lot of documents -- most often in black and white. (The actual count was 11 of 20 documents they claimed were infringed.) So while they might try to argue that CHS had infringed by taking their color scheme, they didn't actually *show* anything with their color scheme. They started with just 1 document, but later brought it up to around 13 different books. They didn't submit a single miniature. In fact, GW didn't even present bad copies of a number of documents that they had previously claimed were infringed, and there were at least 30 items they had previously claimed that they didn't offer exemplars of. (That's right zero of 30 were provided.)

CHS had also asked for some very critical pieces of information in a copyright suit: proof that GW actually owns the copyrights it says it does. Because they had never registered these in the U.S., they're handled under UK law. Apparently UK law lacks one key provision that would have made things much easier for GW if they had registered U.S. copyrights as well. The "Work for hire" provision allows an employer to claim copyright on things created by it's employees. Lacking this in the UK, the copyrights remain with the creator (even an employee) until they specifically pass them on to someone else like an employer. So, for each copyright claim, GW needs to show first that it is indeed copyrighted, and then that they do, in fact, hold that copyright.

GW completely failed to do any of this. They didn't establish original authors, date of creation, and so on. They did, however, provide a statement saying they would do so, and then they produced a copyright that they held on one of their hobby catalogs, as if this gave them full copyright to everything listed in it. (For the record, this hobby catalog wasn't even referenced as an infringed work earlier.)

This is all critical stuff. To sue for copyright infringement, you have to show you own the copyright, otherwise you don't have a right to sue in the first place. If you do have the copyright, you've got to give the defendant copies of what you're claiming was ripped off.

CHS went for an aggressive attack and asked for the following:

1) Since GW didn't provide exemplars, only the 13 total items they submitted should be allowed to be considered in future hearings. (Reasoning: We said, "Give us copies of everything you think was copied." You gave us 13 things. Clearly, that's all you think was copied or you would have given us more.)

2) GW should be limited to using only what they provided in response to the request for proof of copyright when they try to assert their copyright claims. (Reasoning: We said, "Show us what you have that proves you own the copyrights in question." You gave us one copyright on a catalog. Apparently that's all you can prove copyright on.)

3) All other assertions of copyright should be denied.

Oh, and while you're at it, since you're not responding to this legal mess you started,

4) Pay us for our time.

They've moved from straight pro bono to going after GW for some money for this mess.

For GW, the fact that this is even on the table should be scary. They've shown a remarkable lack of sophistication in this entire process, and the pro bono attorney that originally was working just to defend CHS is now upping the ante. If GW is smart, they'll be figuring out how to end this gracefully and soon. We'll see if they can.

But, for those who care, you can officially say that Winston & Strawn may not be altruistic anymore. I think they smell blood in the water. After all, if this is the best GW can do in defending their copyright -- I forget if it was the moat or the fortress wall -- then they are in a world of trouble.

(...)
If you check document 78.13 on Recap (it's free) then it appears to name a number of specific attorneys @ Foley & Lardner there as being involved in the case. (At least, they've been served in relation to the case.)

To be fair, they're trying to put up a defense, and when you read their documents, they attempt to be aggressive with it. But if you compare their arguments vs. the ones provided by CHS's attorneys, it's fairly sad. Winston & Strawn are providing specific legal information in support of their positions and claims and counter-claims. Foley & Lardner's responses mostly tend to ignore whatever W&S has said*, and pretend that CHS is just stonewalling them and that's why they can't argue their case. They keep mentioning expanding the case, but the kind of defense they are mounting comes off more like a regular GW fan trying to defend GW's IP, not a legal team trying to build a solid case.


* For example. F&L might say something like, "Hey...we identified 97 separate items of theirs that violate GW's copyrights, but they won't give us everything we've asked for about how they made them!" They're ignoring where W&S has said, "OKay...you've identified our client's items that you think are a problem. Now, you have to show us what works of GW's have been infringed in order for the case to proceed. And, you need to prove that you even own the copyright in the first place. That's how copyright suits work. We're waiting."

(...)
Well, I stated before (as have others) that GW probably didn't expect this case to go anywhere. They set it up to be difficult to respond to and probably figured they'd get a quick judgement against a non-responsive small company, or get the company to fold under the threat of a lawsuit they couldn't afford to defend.

Once CHS got good legal help, it was a problem for GW and they don't really have many options other than stalling.

With the motions putting off further responses to all the prior motions until November, and the suggestion that sealed requests for a settlement be submitted, I have to think that GW is being advised to find some way out of this.

Even though they may settle their way out of it, so that it doesn't become part of an official ruling, they are still in a bad spot. Anything that doesn't result in CHS going away or being publicly slapped down will show GW's vulnerability, even if they get CHS to remain mum on a settlement.

Unless GW finds some way to completely crush CHS in court on this, I would expect that it will signal a huge shift in legal strategy for them going forward. I can't believe that a company that has made such a huge deal out of the value of it's IP to its survival as a going concern would be so utterly disorganized when it came to defending it.

Their IP may be less a moat or fortress than a Maginot Line.

Kroothawk wrote:GW is now afraid to make a tervigon model because Chapterhouse might claim copyright because it made the first model.
This is the reason for the 2nd Tyranid wave being set on hold. A side effect of the lawsuit.

Kroothawk wrote:GW is now afraid to make a tervigon model because Chapterhouse might claim copyright because it made the first model.
This is the reason for the 2nd Tyranid wave being set on hold. A side effect of the lawsuit.

rigeld2 wrote:

Kroothawk wrote:GW is now afraid to make a tervigon model because Chapterhouse might claim copyright because it made the first model.
This is the reason for the 2nd Tyranid wave being set on hold. A side effect of the lawsuit.

Proof/link?

-Loki- wrote:Highly doubtful. But if its true, I'll be endlessly pissed at Chapterhouse. Being responsible for GW holding back a legitimate wave of releases that an army needs is not a way to get into the communities good books, even if you're trying to 'sock it to the Man'.

JOHIRA wrote:If I was a huge multi-national gaming company that wanted to convince everyone in my niche market that my company represented the whole of the hobby (rather than a single company providing a single set of miniatures as part of the hobby), having a competitor providing cheap alternatives to my models would doubly-vex me. First, because the competitor is getting money and I'm not. But secondly, because players going to the competitor for the models I don't release are getting exposed to models for other games, and might eventually drive my players away from my game. (For the sake of this hypothetical lets assume I'm not aware that players are already fleeing my game in droves for rival companies' games.)

And if I was such a company, I would use my army of lawyers to ruthlessly harass any company whose products remotely resemble mine so as to protect myself from this. However, it would be very important that I not allow any case to go to court unless it results in a guaranteed win for my side. Because going to court would publish for all of my competitors exactly where the line they can't cross in being like my products is if I lose. And I don't want my rivals to know where that line is. I want them to err on the side of caution and stay well away from my designs. So I would want to bully other companies with the threat of lawsuits, but always get them to settle out of court.

But also, if there was ever a case where a rival got to a model design ahead of me, I would be very concerned about the risk of them taking me to court based on the similarity of our designs. Not, mind you, because I'd be afraid of them winning. My army of lawyers would have already informed me well ahead of this scenario of exactly where the legal line is. What would be problematic for me however is the prospect of me winning. Should such a case go to trial, my company winning a case of supposedly copying the designs of a rival company who release a model for my game before I did would publish where exactly the line that marks where tribute ends and copyright infringement begins just as clearly as if my rivals had won a case of copying my models. It would just as strongly invite rival companies to make products for my game and open the floodgates of 3rd party products that compete with my products. So it would be very important for me to find some way of dragging this process out until the rival runs out of money and we have to settle out of court.

Now, if during all of this, if either because of fear of being taken to court or because my company's busy release schedule had no room for the products anyway some models dearly desired by my customers weren't released, I wouldn't be above releasing a rumor (unofficially of course) that says the reason fans can't get models for two very popular lines is because of the legal concerns with the 3rd party companies. Of course the rumor would be absolute hogwash- no way would my powerful company making "the finest miniatures in the world" be dictated to by some petty upstart. But if it makes some of my fans think the reason they can't get the products they want is because a mean old rival keeps stealing my ideas, so much the better. Pretend to be a victim, make the 3rd party look like a bully that is hurting the fans. Maybe if I can turn enough sentiment against the rival, I can sink their business before my case even makes it to court.

I want to be clear, that's what I would do. In no way am I claiming this is what any company is actually doing.

Kroothawk wrote:FW also making a Rhino Mk I conversion kit is maybe testing the legal waters.

Kroothawk wrote:Please read again: I said GW is afraid, not that Chapterhouse plans to sue (and they never would have thought of it if GW hadn't sued them first without even having the copyright for the name AFAIK). GW legal is not of this world, so making others responsible for GW legal's views is missing the point. But technically, Chapterhouse couldn't copy a GW sculpt (because there is none), but GW could copy a Chapterhouse one. FW also making a Rhino Mk I conversion kit is maybe testing the legal waters.

-Loki- wrote:

Kroothawk wrote:Please read again: I said GW is afraid, not that Chapterhouse plans to sue (and they never would have thought of it if GW hadn't sued them first without even having the copyright for the name AFAIK). GW legal is not of this world, so making others responsible for GW legal's views is missing the point. But technically, Chapterhouse couldn't copy a GW sculpt (because there is none), but GW could copy a Chapterhouse one. FW also making a Rhino Mk I conversion kit is maybe testing the legal waters.

I didn't misunderstand you. I really don't give two hoots about chapterhouse - their stuff is pretty universally terrible. If them, and this lawsuit, is the reason for the Tyranid second wave being delayed, they're donkey-caves.

Howard A Treesong wrote:

How is it CH's fault? GW decide what to release. No one forced them to sue. No one is forcing them to withhold releases. They could have just left CH alone and not created this mess for themselves. No point in beating CH up over it.


I guarantee if the worst happens and GW lose and lose control of some copyrights there will be people moaning that mean nasty CH have stolen it off them. They'll ignore that it was fought fairly in court. If GW lose it means that they were claiming rights they weren't entitled to.

derek wrote:So is CHS also to blame for the horrible Nid FAQ? Or should we start blaming the INAT because they FAQ'd first?

Howard A Treesong wrote:I guarantee if the worst happens and GW lose and lose control of some copyrights there will be people moaning that mean nasty CH have stolen it off them. They'll ignore that it was fought fairly in court. If GW lose it means that they were claiming rights they weren't entitled to.

-Loki- wrote:

derek wrote:So is CHS also to blame for the horrible Nid FAQ? Or should we start blaming the INAT because they FAQ'd first?

Please point to where I previously mentioned the FAQ? Because I didn't think I did. I think you're attempting to put words in my post.

AgeOfEgos wrote:What I would be curious about is;

Are the attorneys for Games Workshop incompetent--or is Games Workshop's position simply untenable?

I ask, as if the posters are correct and the requests made by CH's firm rather expected--you would think Games Workshop would have answered all of these questions internally (and prepared to answer them).....before filing suit.

Howard A Treesong wrote:Perhaps GW really don't know who owns the copyright on their own stuff. Wouldn't be the first time they've lost information.

Kilkrazy wrote:

Howard A Treesong wrote:Perhaps GW really don't know who owns the copyright on their own stuff. Wouldn't be the first time they've lost information.

The copyright of individual sculpts would depend on the contractual arrangements made with the sculptor who made them. If GW engaged a freelance sculptor to do a range of models, they would have had to make a contract specifying that the copyright of the models would pass to GW, else it would rest with the freelancer.

I can well imagine that GW would have been a bit disorganised in the early days before they turned into a multi-million-pound international corporation, and thereby have lost the info concerning various models.

It comes to the same thing in the end, though. If they can't demonstrate their right to a copyright they can't accuse someone else of violating it.

StraightSilver wrote:And Eldar will be a ways off just yet. Ther are all sorts of legal issues with Eldar and Tyranids that has meant they have been delayed, but that is a complicated issue for another thread unfortunately.
(...)
A lot of GW releases are on hold until the whole Chapterhouse mess is resolved. There are issues over copyright which until resolved mean GW won't release some stuff until it's all over which won't be any time soon. This specifically relates to two models in the Chapterhouse range, but I don't want to derail this thread with that. However GW won't release some models but not others and so is having to hold off until they can release them all as a wave.

Morathi's Darkest Sin wrote:So wait, does that mean Tyranid players should be venting at the court case for a lack of a second wave.

H.B.M.C. wrote:Is that just speculation, or is that known for a fact?

I cannot obviously corroborate it, but I have heard that is the case from credible sources, but again stuff said over a pint isn't always that reliable, but these are people that would normally know.
And yes that is apparently why the Tyranid wave has been held up and also why GW may never make Thunderwolves. Basically the third party companies that got there first can now challenge GW over copyright, not something they would ever allow to happen.

MrMystery wrote:Source for that? Seems....odd. Given the time it takes GW to get from concept to shelf, I'd have thought releasing it would strengthen their case?
Unless of course Chapterhouse have suspiciously identical models? But this just my wild speculation!

As I say it may only be a rumour, and unfortunately I can't specifically say where most of my rumours have come from in case I drop anyone in it but they do work for the company and aren't a black or red shirt.
And it is specifically a couple of things, but these are fairly important ones.
It's just that Chapterhouse is attesting that it owns the copyright on a couple of GW concepts because it produced the models first. GW are challenging that but don't want to release their models in case Chapterhouse then challenge ownership.
Of course always take with a pinch of salt, but rumours are rumours I guess.

Kilkrazy wrote:

Skinnereal wrote:Names are copyrighted, but shapes aren't.
They can make a Space Marine, and call it a Galactic Soldier, but GW gets to stomp about and shout about it, like they are.

It's more complicated than that.
Take the Chapter House Doom Seer. It isn't part of the GW vs Chapter House case but it makes a good example.
There isn't a single element of the Doom Seer's design that isn't (a) different to the GW Far Seer models and (b) modelled on existing historical designs.
Despite that it is clearly a "not" Far Seer, based on its overall similarity to GW Far Seer models, if you have seen a GW Far Seer first.
The question the court must answer is whether GW's co-option of historical elements into an overall design is sufficiently original as to create an entirely new copyrightable work, and secondly if this has been achieved, have CH violated the putative copyright by copying the overall design with different individual elements.
You can see how complex these questions can be.

agnosto wrote:This just in. All car manufacturers are withholding releasing electric and hybrind cars because other companies make batteries. Energizer threatens to send bunny hit squad if cars are put into production.

AgeOfEgos wrote:What I would be curious about is;

Are the attorneys for Games Workshop incompetent--or is Games Workshop's position simply untenable?

I ask, as if the posters are correct and the requests made by CH's firm rather expected--you would think Games Workshop would have answered all of these questions internally (and prepared to answer them).....before filing suit.

warboss wrote:

AgeOfEgos wrote:What I would be curious about is;

Are the attorneys for Games Workshop incompetent--or is Games Workshop's position simply untenable?

I ask, as if the posters are correct and the requests made by CH's firm rather expected--you would think Games Workshop would have answered all of these questions internally (and prepared to answer them).....before filing suit.

It seems that GW's vaunted legal team is not made up of actual lawyers but instead consists of same rules lawyers that comprise their development team and make the air-tight and finely honed tourney quality rules we've come to love in YMDC. When the judge asked GW to clarify their position, the apparently provided their typical style FAQ/erratta which appears to be lacking the detail necessary to cover the questions asked (shocking, I know!). Perhaps Yak and the INAT council could help GW draft a revised court FAQ filing for GW. Apparently no one also mentioned to the judge that the most important rule should apply in court and that the opposing parties should just d6 the decision if they can't agree.

ToI wrote:


This is entirely unhelpful...

OT - I am interested to see what comes of this after the November court date for the suit. I am hoping that this case gets resolved sooner rather than later and that GW realizes they are losing more than they are gaining by doing this.

RiTides wrote:I don't understand what that means, weeble . The CH request for sanctions against GW was denied...? Or maybe the other way around...

agnosto wrote:This just in. All car manufacturers are withholding releasing electric and hybrind cars because other companies make batteries. Energizer threatens to send bunny hit squad if cars are put into production.

aka_mythos wrote:GW sues CH
GW tells CH show us how you've infringed
CH says, no that's your responsibility show us how you believe we've infringed.
...months later...
GW: we believe you've infringed 90 different places
CH, show us...
...months later

GW: To the court, CH still hasn't shown us how it's infringed
CH: GW still hasn't shown us any basis for it belief CH has infringed.

...months later
GW: We have a catalog; that's our proof
CH: You have to be more specific; show us the physical models to compare.
GW: We have photos.
CH: To court, GW still hasn't shown us where we've specifically infringed; they've failed to produced physical models for comparison; GW's shown such an insincere attempt at its case our Pro Bono lawyers will pursue legal fees from GW.

Ian Sturrock wrote:GW: We can't release the minis fans have been clamoring for for two years, because we're too busy making frivolous lawsuits.

aka_mythos wrote:CH: To court, GW still hasn't shown us where we've specifically infringed; they've failed to produced physical models for comparison; GW's shown such an insincere attempt at its case our Pro Bono lawyers will pursue legal fees from GW.

weeble1000 wrote:MINUTE entry before Honorable Matthew F. Kennelly:Motion to compel or for sanctions 78 is denied for the reasons stated in open court. Without that day's transcript, there's no indication as to why the motion was denied.

H.B.M.C. wrote:If they're going to throw their toys out of the pram then let them. It's only hurting them in the long run as we know that an actual Tervigon/Tyrannofex model would sell like hot-cakes.

theunicorn wrote:.... By setting guidelines like restricting the license to something like alternate pads/doors/whatever are fine but no copies of weapons like meltas or plasma guns. Or limiting how much of their original model must be used in each conversion product. .....

nkelsch wrote:Sad but that may be the position GW is taking because they feel that market for particular designs have been 'diluted'. Kill the unit and there is no issue.

H.B.M.C. wrote:If they're going to throw their toys out of the pram then let them. It's only hurting them in the long run as we know that an actual Tervigon/Tyrannofex model would sell like hot-cakes.

Alpharius wrote:This thread, remarkably, has made it to 44 pages - most of which have been filled with good information and discussion about the topic on hand.
It is starting to veer a bit off track.

StraightSilver wrote:
Once they moved away from creating after market products compatible with GW kits and started producing original sculpts based on GW IP they crossed a line.

In terms of US copyright a concept or idea cannot be copyrighted, so the idea of a Doom of Malantai model, or a Tervigon, or a jetbike seer council weren't protected until the models were released.

When Chapterhouse beat GW to it by making these models it appeared it may affect future GW releases and on legal advice GW held back some of their releases until they could prove unequivecally that they had total ownership.

StraightSilver wrote:
This of course will be decided in court, but in defence of GW Chapterhouse bought this on themselves, they were given the opportunity to comply with GW's requests, but chose instead to go to court.

I just wanted peopl to see the bigger picture where the Chapterhouse lawsuit was concerned. I don't want to demonise them, I just think if they had gone down the same path as other third party companies they could have avoided the litigation, but they decided to let it get to court, which wasn't GWs intention, but they felt they had no choice but to protect their interests.

StraightSilver wrote:However when a third party manufacturer starts selling Salamnder Shoulder pads, or Space Marine Black Templar Rhino doors they are crossing the line, but only to the point where GW would advise them to change their terminology on their online store and to stop using GW trademarks.

Unfortunately Chapterhouse flouted this, and even posted in the news section of their website that they were doing nothing wrong and that GW should essentially take them to court (I'm paraphrasing).

However that still wasn't the main problem with Chapterhouse.

Once they moved away from creating after market products compatible with GW kits and started producing original sculpts based on GW IP they crossed a line.

In terms of US copyright a concept or idea cannot be copyrighted, so the idea of a Doom of Malantai model, or a Tervigon, or a jetbike seer council weren't protected until the models were released.

When Chapterhouse beat GW to it by making these models it appeared it may affect future GW releases and on legal advice GW held back some of their releases until they could prove unequivecally that they had total ownership.

(...)

I just wanted peopl to see the bigger picture where the Chapterhouse lawsuit was concerned. I don't want to demonise them, I just think if they had gone down the same path as other third party companies they could have avoided the litigation, but they decided to let it get to court, which wasn't GWs intention, but they felt they had no choice but to protect their interests.

Kroothawk wrote:
2.) The use of names was immediately changed to something more cautious after GW sued them, no problem with that. But that was not what GW was after: They demanded the destruction of all moulds and a financial compensation. They just can't explain until this day why Chapterhouse should do that. And GW's expensive lawyers are working on that for almost a year now, while Chapterhouse's lawyers are free of charge.

3.) Chapterhouse did nothing wrong according to existing law, and GW was not prepared to actually make a concrete accusation. So if Chapterhouse said so on their website, they were right, no need to demonise them. If GW felt forced "to defend their rights", it was not consistent with US law. So unfortunately GW's claims are indeed unjustified and they will lose this expensive lawsuit, probably bringing less friendly manufacturers into the arena and creating a real problem for the first time. If GW now listens to their legal advisors, they should take into account, that these people have no clue and created problems GW never had before.

poda_t wrote:

candy.man wrote:(I don’t believe the Games Day spin).

??? what is this???

If its anything like the failcost or the price adjustments, or the 6th edition no more ward shenanigans then..... well.... im still curious

Makes the army almost unplayable

Captain Jack wrote:
I am amazed, do you really think that any company is going to be happy if another comes in and potentially takes the rights to their creation? Just look at the mobile phone wars between Apple and the rest for that. Whether CHS are fans or not is irelavant, the fact that they did what they did shows a lack of judgement for good or ill.

Captain Jack wrote:
Who's to say that they didn't listen to their legal team? There is a lot of huff and puff about GW legal, but they do have a history of also guiding third party manufacturers to a point where they are not infringing removing the need for court cases which are indeed expensive and wastefull. I can't remember who produced the near copy of the FW GUO, but they were helped and guided as an example

Captain Jack wrote:
I am know as being a detractor of the CHS miniatures, but this case need not have happened if CHS had followed the same routes as the other third parties. I haven't seen Kromlec or any of the third parties getting stiffed, and the Lammasu head is a nithing as it was only a last minute addon. Again it was solved amicably. Notice in all the cases we only hear one side of the story though.

aka_mythos wrote:Except that this case is more comparable to if Apple sued a company manufacting Iphone carrying cases or an accessory. While most companies make a point of making licenses to do so affordably available, those manufacturers aren't legally required since the shape of the phone is just geometry and the name is neccesary to the cases description.

aka_mythos wrote:CH has been insistent of the fact that in the US, it has legal precedent and right to do what it did. GW's uncompetitive and hurts the hobby, by being so overreaching. CH has enriched, if even in a small way, the hobby by putting out products people have wanted while GW has forced companies to cancel products that people really wanted.

Captain Jack wrote: I am amazed, do you really think that any company is going to be happy if another comes in and potentially takes the rights to their creation? Just look at the mobile phone wars between Apple and the rest for that. Whether CHS are fans or not is irelavant, the fact that they did what they did shows a lack of judgement for good or ill.

Captain Jack wrote:Who's to say that they didn't listen to their legal team? There is a lot of huff and puff about GW legal, but they do have a history of also guiding third party manufacturers to a point where they are not infringing removing the need for court cases which are indeed expensive and wastefull. I can't remember who produced the near copy of the FW GUO, but they were helped and guided as an example

I am know as being a detractor of the CHS miniatures, but this case need not have happened if CHS had followed the same routes as the other third parties. I haven't seen Kromlec or any of the third parties getting stiffed, and the Lammasu head is a nithing as it was only a last minute addon. Again it was solved amicably. Notice in all the cases we only hear one side of the story though.

-Loki- wrote:That analogy stops working when you consider they made a standalone Doom of Malantai model. And called it that. It's no longer only about add-on parts. It's them making a standalone model and claiming it to be the unit from the codex. If all they did was call it an alien brain or something like Troll Forged did, it would have saved a lot of hassle..

-Loki- wrote:The competency of their legal team isn't what I'm taking issue with, it's chapterhouse quite knowngly stealing IP.

Kroothawk wrote:

-Loki- wrote:That analogy stops working when you consider they made a standalone Doom of Malantai model. And called it that. It's no longer only about add-on parts. It's them making a standalone model and claiming it to be the unit from the codex. If all they did was call it an alien brain or something like Troll Forged did, it would have saved a lot of hassle..

Please don't make things up to "prove" your point. Chapterhouse never released a Doom model, so you can't say they claimed it to be that (they only made a green but there was no official name for it).

One of the priviledges of running Chapterhouse is the ability to use the minis we create before anyone else can. This last Saturday I was able to put on the table our first alien mini with my tyranid army. I used our "Doom of Malantai (SP?)" model. I have to say it was akin to dropping a nuke on the board. His 6 inch aura ability is lethal when you couple it with a mycotic spore drop.

Production will begin this week, he is a our FIRST single piece pewter model which easily mounts on a 40 mm base (he has 2 tabs to mount in holes) and stands at 90 mm tall (without the base). Take a look below to see the painted version.

So here is our "Doom of Malantai" miniature.

-Loki- wrote:Automatically Appended Next Post:

aka_mythos wrote:CH has been insistent of the fact that in the US, it has legal precedent and right to do what it did. GW's uncompetitive and hurts the hobby, by being so overreaching. CH has enriched, if even in a small way, the hobby by putting out products people have wanted while GW has forced companies to cancel products that people really wanted.

GW aren't being uncompetitive. They don't like their IP being stolen, like other companies. When all chapterhouse did was make conversion bits, GW let them go. Grudgingly, but they let them go. When they crossed the line and made standalone models that makes claim on GW's IP, they quite obviously, like any company would, got their legal team involved. The competency of their legal team isn't what I'm taking issue with, it's chapterhouse quite knowngly stealing IP.

If they want to make converison bits, great for them. If they want to piss off an entire portion of GW's playerbase by releasing terrible models that forces GW to hold their own back, they can rot.

Howard A Treesong wrote:You can't hold CH responsible for GW's reaction. CH don't control GW, they haven't made them do anything. If the court decides in the favour of CH then they were never doing anything wrong. GW had better be prepared to suck it up and move on.

Your attitude seems to be that if CH should throw their business under the bus to keep GW's customers happy. Sorry but that's absurd.

-Loki- wrote:Never said that at all. I've got no problems with chapterhouse as a business, they release bits GW never would. What pisses me off is when they release something terrible which affects a legitimate release.

They guided the talented people of Ultraforge out of the hobby, old products only sold by someone else since then.

Backfire wrote: Maybe I am still missing something, but I don't understand why this would be a concern for GW.

If I were a write a book called "Harry Potter and the return of Voldemort" and try to sell it to people, would JK Rowling's lawyers nail me in a heartbeat? They sure would. And certainly it wouldn't stop her later releasing book of the same name, even if I got there first. Because Rowling has copyright for "Harry Potter". The fact that she doesn't have a copyright for the underlying idea (wizard kid in a wiz school) is irrelevant.

GW does not have copyright for "scary biomechanical space monster" (indeed, they were the ones who copied the concept elsewhere). But they do have copyright for the names "Tyranid" or "Tervigon" used in that context.

aka_mythos wrote:Is that what a "sanction 78" is? I was under the impression its was just a motion to compel under sanction... where the court instead of just asking someone to do something basically adds "or else". CH was denied the "or else."

Dysartes wrote:Question for the lawyery types - do the court transcripts tend to turn up as accessible documents at any point?

Kilkrazy wrote:If GW rushed their complaint into the legal system at short notice because of the Doom of Malantai that would help explain why it was written up in such an apparently half-assed way

It normally would take at least a few weeks for a legal team to get all the facts and papers organised.

-Loki- wrote:That analogy stops working when you consider they made a standalone Doom of Malantai model. And called it that. It's no longer only about add-on parts. It's them making a standalone model and claiming it to be the unit from the codex. If all they did was call it an alien brain or something like Troll Forged did, it would have saved a lot of hassle.

-Loki- wrote:
GW aren't being uncompetitive. They don't like their IP being stolen, like other companies. When all chapterhouse did was make conversion bits, GW let them go. Grudgingly, but they let them go.

-Loki- wrote:
When they crossed the line and made standalone models that makes claim on GW's IP, they quite obviously, like any company would, got their legal team involved. The competency of their legal team isn't what I'm taking issue with, it's chapterhouse quite knowngly stealing IP.

Trasvi wrote:
Personally, I don't see why GW would be delaying its release of Tyranid second wave because of CHS. My reasoning:

1) If CHS is found guilty, then that would mean that GW had the rights to produce the mini all along.
2) If CHS is found not guilty, then that would mean it is ok to produce model inspired by another company's IP, which means GW had the right to produce that mini all along.
...

Kilkrazy wrote:Transcripts are transcripts and can be accessed via the means laid out by Weeble1000 a page or two above.

It probably takes a lawyer to interpret the legal terminology into everyday speech.

biccat wrote:
I wish GW's Memorandum in Opposition to motion for sanctions and Cross-Motion to Strike was available (#83) so we could see the arguments they made.

poda_t wrote:I am actually curious on this point. I suppose its a bit of a deviation from topic, but i suspect its still relevant. What is the difference between chapterhouse, a part manufacturer, and say, worthy painting, or blue table painting, which assemble(convert) and paint your armies for you, using GW's IP, and profiting off of it.

-Loki- wrote:

GW aren't being uncompetitive. They don't like their IP being stolen, like other companies.

AndrewC wrote:If that part of their evidence is accepted in court as valid, do the third party painting services have problems on their hands?

weeble1000 wrote:

biccat wrote:
I wish GW's Memorandum in Opposition to motion for sanctions and Cross-Motion to Strike was available (#83) so we could see the arguments they made.

It is. If you're following the link you posted earlier, maybe it is sending you to a less updated version of the Recap docket. Anyway, I just checked. The document is available through recap.

poda_t wrote:I am actually curious on this point. I suppose its a bit of a deviation from topic, but i suspect its still relevant. What is the difference between chapterhouse, a part manufacturer, and say, worthy painting, or blue table painting, which assemble(convert) and paint your armies for you, using GW's IP, and profiting off of it.

sourclams wrote:

AndrewC wrote:If that part of their evidence is accepted in court as valid, do the third party painting services have problems on their hands?

This is a big, monster 'if', isn't it? I mean, if you could legitimately lay claim to a color scheme, wouldn't pro sports teams have already done so? (And I realize you're not arguing this, it's more a rhetorical universal query).

It seems like colors are universal, and you need some other design work in order to claim copyright/trademark. I recall whoever the designer is that tried to claim shoes with red soles as a copyright getting shot down in court.

sourclams wrote:It seems like colors are universal, and you need some other design work in order to claim copyright/trademark. I recall whoever the designer is that tried to claim shoes with red soles as a copyright getting shot down in court.

aka_mythos wrote:The complexity of any side effects is why I'm sure Kroothawk felt it prudent to have a separate thread just for that topic.

Its a case of... sounds stupid enough to believe GW would do it. I tend to think its more a political play by GW, to make its fan base turn on 3rd party bitz makers for delaying their precious plastic crack.

aka_mythos wrote:It may not have been a plot... but rather just something one person said to the other just to get that individual fan on GW's side... for the sake of whatever conversation they were having beyond that point.

Chapterhouse wrote:
Interestingly enough Chapterhouse has its own fans in the GW workforce as well as its detractors (I have heard this from more then one person).

Platuan4th wrote:

Kroothawk wrote:Still, a lawyer filing a suit against someone else should be able to express within 3-4 months, what exactly the accused did wrong.
Failing to do that is just a sign of incompetence and wasting everybody's time.

Or a delaying tactic at best as they figure out how to go from here.

It really does smack of a fishing expedition as a result of, as biccat said, them filing to get CHS to back down and backpedaling as a result of actually having to go forward. Their history of "legal actions" doesn't have a lot(if any) examples of someone actually standing up to them. GW has bullied smaller companies and websites in the past, it's about time someone was able to call their bluff.

MagickalMemories wrote:The problem with that analysis is that GW is represented by US attorneys in this matter. They're well established and (presumably) know our legal system well.
They would not have the same issues with comprehension as you're referring to.

Eric

From stuff I have seen, the courts seem to be slightly weighed in favor of the big guys which is, perhaps, a leftover from the royalty/peasantry days.

timd wrote:
A most interesting thread folks. Please keep up the quality posting.

I am assuming that the suit is being driven from Nottingham by GW's UK lawyers. If most of their US IP suits have resulted in roll overs by the defendants, they do not have much actual US courtroom experience. The GWUK lawyers' experience in UK courts may be working to their disadvantage when trying to manage a long distance suit in the US.

The UK legal system and the US legal system are quite different. As an example, there is no Supreme court in the UK. The House of Lords is the "court of highest appeal". From stuff I have seen, the courts seem to be slightly weighed in favor of the big guys which is, perhaps, a leftover from the royalty/peasantry days. Successful lawyers for a fair sized UK corporation may be having a hard time figuring how US courts work, but they do seem to be getting an education through this case.

More UK/US justice system comparison here:
http://www.associatedcontent.com/article/259964/a_comparison_of_british_and_american.html

It seems like this case is being handled very badly. Is this caused by UK lawyers driving the case or by (what appears to be) gross negligence by their US lawyers?

Any UK solicitors reading this thread? Would things have happened differently in a UK courtroom?

Tim

Tailgunner wrote:
Bringing proceedings in a 'foreign' jurisdiction is actually a highly complex process, and will normally involve people from different sides of the business. There will often be UK-based lawyers involved, either advising the company or instructing the US counsel on behalf of the company. It's possible that GW in the US are running this litigation, and simply reporting back to head office, but it seems more likely that their head office would be running this. There will usually be differing points of view within the company, and the legal aspects of a case don't always mesh with the commercial issues. This means that steps may be taken against legal advice for commercial reasons (including simply posturing, or for reputational reasons - and remember that companies are concerned with their reputations beyond internet forums). For all anyone knows, GW is fully aware of any shortcomings in its claims, and has taken these steps for purely commercial reasons. It's also worth remembering that there hasn't been much litigation over gaming miniatures, so there's a degree of uncertainty over this area.

Tailgunner wrote:
There will often be UK-based lawyers involved, either advising the company or instructing the US counsel on behalf of the company.

Tailgunner wrote:
but it seems more likely that their head office would be running this.

timd wrote:Can't imagine there would be any question of this not being the case now. At this stage, this case is far too important to be left to the colonials, although it may not have started out that way. Could have started as a US only operation that very quickly got into deeper water than was anticipated.

Re "posturing": When "posturing" starts annoying the judge, its probably time to get the case back on track....

timd wrote:The UK legal system and the US legal system are quite different. As an example, there is no Supreme court in the UK. The House of Lords is the "court of highest appeal".

Trasvi wrote:1) How much can a company claim under derivative works? Lets say GW creates a Tyranid warrior and successfully copyrights the design. Then they create a Hie Tyrant - it uses the same elements that made the Warrior identifiable: head ridges, breathing holes, exoskeleton etc, but is bigger, has some other variations, and different weapons. Am I correct in saying that is a derivative work?

Trasvi wrote:GW then continues making more and more Tyranids, all the while keeping the same elements of head ridges, exoskeleton, carapace, further cementing their derivative status.
Then someone else makes a model with exactly the same elements. But GW has the exclusive rights to make a derivative work.... right?

Trasvi wrote:2) How are 'functional elements' regarded in artistic works? Ie, I draw a picture of a robot with a specific, fanciful and meaningless arrangement of gears and mechanics on its legs. Sure, a robot probably needs mechanics of some sort to work... but is what I drew really 'functional'? It doesn't function at all.

Trasvi wrote:3) If GW wins (on all points, which is unlikely), why does that define exactly what other companies can do? Wouldn't that define what other companies *can't* do? From what people are saying what happens if GW wins/loses, it sounds like GW sued CHS because GW were afraid they would lose... Is it possible for the case to be dismissed and thus not legally define anything if GW plays its case exactly right (or exactly wrong, however you look at it)?

weeble1000 wrote:biccat - A derivative work is by definition a new copyright. It never grants control of the underlying copyright, but as the preparation of derivative works is an exclusive right of the copyright holder, I believe the new copyright in the derivative work is also controlled by the holder of the underlying copyright.

weeble1000 wrote:Also to note regarding "functional" elements, copyright in theory does not grant the holder control over unprotectible elements, which would include elements drawn from the public domain, or that which is not protected by copyright, such as concepts, etc. Given this, I think it is important to point out that in the robot example, the copyright would not necessarily extend to, say, the gears, or the structure of the robot.

Tailgunner wrote:

timd wrote:
A most interesting thread folks. Please keep up the quality posting.

I am assuming that the suit is being driven from Nottingham by GW's UK lawyers. If most of their US IP suits have resulted in roll overs by the defendants, they do not have much actual US courtroom experience. The GWUK lawyers' experience in UK courts may be working to their disadvantage when trying to manage a long distance suit in the US.

The UK legal system and the US legal system are quite different. As an example, there is no Supreme court in the UK. The House of Lords is the "court of highest appeal". From stuff I have seen, the courts seem to be slightly weighed in favor of the big guys which is, perhaps, a leftover from the royalty/peasantry days. Successful lawyers for a fair sized UK corporation may be having a hard time figuring how US courts work, but they do seem to be getting an education through this case.

More UK/US justice system comparison here:
http://www.associatedcontent.com/article/259964/a_comparison_of_british_and_american.html

It seems like this case is being handled very badly. Is this caused by UK lawyers driving the case or by (what appears to be) gross negligence by their US lawyers?

Any UK solicitors reading this thread? Would things have happened differently in a UK courtroom?

Tim

I work for a UK-based law firm, and this isn't how things work at all, either in terms of the way the English legal system operates or the way a UK corporation instructs US counsel. The US legal system isn't that different from the UK system in substance; the nomenclature is different, and US attorneys tend to have a more 'in your face' approach, but the dynamics are very similar, as are the tactics. One you get past the jargon, US and UK lawyers usually find they have a lot in common. There is a perception that what happens 'in the courtroom' is decisive, but in civil litigation a lot of the important steps take place outside the courtroom (about 95% of civil claims settle before trial). So you can't assess what's really going on simply from what's publically available.

It's nonsense to suggest that UK courts are biased in favour of the big guys. Large corporations can afford to spend more on their legal teams, but judges regularly rule against powerful plaintiffs in the UK.

Bringing proceedings in a 'foreign' jurisdiction is actually a highly complex process, and will normally involve people from different sides of the business. There will often be UK-based lawyers involved, either advising the company or instructing the US counsel on behalf of the company. It's possible that GW in the US are running this litigation, and simply reporting back to head office, but it seems more likely that their head office would be running this. There will usually be differing points of view within the company, and the legal aspects of a case don't always mesh with the commercial issues. This means that steps may be taken against legal advice for commercial reasons (including simply posturing, or for reputational reasons - and remember that companies are concerned with their reputations beyond internet forums). For all anyone knows, GW is fully aware of any shortcomings in its claims, and has taken these steps for purely commercial reasons. It's also worth remembering that there hasn't been much litigation over gaming miniatures, so there's a degree of uncertainty over this area.

Eldanar wrote:But I think there is a discrepancy in the possible perceptions that develop between UK and U.S. based litigation. While I don't think the UK courts are any more or less biased than the U.S. counterparts, the over all system of jurisprudence does tend to (or at least appears to, to my outsiders eyes) favor the big boys in the UK possibly a little more, just due to the overarching structure of its legal system and its rules. Things like the loser paying for costs, the ability to purchase injunction-like restrictions, etc., are two very different things that come to mind, and which allow for a very different environment for the legal processes to go forward. These have nothing to do with the bias of a court, but rather are structural differences within the two legal systems (and I am sure there are others as well, both pro and con, depending on your point of view).

timd wrote:
A most interesting thread folks. Please keep up the quality posting.

I am assuming that the suit is being driven from Nottingham by GW's UK lawyers.

We are based in the South of France. We're a small boutique company, and work with great artists and partners from around the world.

odinsgrandson wrote:
Wow, I sure hope not. Unless they've passed the bar exam in the US, they would be in a lot of trouble. In fact, I doubt that they could even send the cease and desist letter on GW's behalf if they hadn't passed the bar.

odinsgrandson wrote:
Now, correct me if I'm wrong, but I've been under the impression that all of the Cease and Desist orders that they've thrown around have been against companies in the US. I mean, Mantic put up on their website that they're looking for names for their "dark eldar type" race, and openly selling minis to be used instead of GW ones. But Raging Heroes (a US company) needs to can their Lammasu head.

aka_mythos wrote:I believe Paralegals, who often have a similar but different certification, are allowed to draft C&D's in addition to a lawyer or a self representing party.

aka_mythos wrote:Thats why I said "draft"... a lawyer still has to sign off on it... even if they don't read it.

In the case of the C&D CH recieved from GW's UK legal team I believe that was one of many reasons why CH's lawyers told them it was invalid; it was only signed by the UK equivalent of a paralegal... despite the fact that in the UK they have a bit more authority than here.

aka_mythos wrote:In the case of the C&D CH recieved from GW's UK legal team I believe that was one of many reasons why CH's lawyers told them it was invalid; it was only signed by the UK equivalent of a paralegal... despite the fact that in the UK they have a bit more authority than here.

odinsgrandson wrote:Wow, I sure hope not. Unless they've passed the bar exam in the US, they would be in a lot of trouble. In fact, I doubt that they could even send the cease and desist letter on GW's behalf if they hadn't passed the bar.

odinsgrandson wrote:It is possible that the people instructing the lawyers have those problems, and I could see where some of these issues could come up. Although it is just as likely that GW is too large a company for anyone with actual power to be instructing the lawyers.

aka_mythos wrote:Thats why I said "draft"... a lawyer still has to sign off on it... even if they don't read it.

Infreak wrote:
I've been following this thread and I don't believe it's ever been mentioned that it was a C&D from GW UK. How do you know this? Or did I misunderstand and it's pure conjecture?

Chibi Bodge-Battle wrote:Just to get this straight, throughout CH have had legal advice of what they can get away with on their website?
In which case, those instances that have been cited above of CH flouting GW on their website had clearance according to that advice?

Kroothawk wrote:
Must have been a big shock for the Nottingham HQ that the colonies (including France) now have their independent law
Guess that's why their revised set of demands doesn't include flogging anymore

aka_mythos wrote:I know Nick the owner of CH, from producing a number of digital models for CH. He had initially kept me informed of his legal goings on, but all this stuff with the lawsuit has been relatively hands off and I really don't know anymore than you guys about this. I am however quite aware of the efforts he put into avoiding issues with GW by retaining a lawyer to ensure everything he was doing was within his rights. That his lawyer approved the wording and labeling of CH's products and was providing legal opinion on iconographical similarities of CH pieces relative to GW vs. patterns in the public domain. From what I know... GW, Nottingham a little over 2 1/2 years ago sent CH a C&D, that was, in the words of CH's lawyer at the time, "very poorly written." It cited British law while being poorly worded in addition to spelling mistakes (which in fairness I think could just have been differences between English and American spellings) and made a lot of demands outside the scope of what a C&D letter is meant to address while accusing CH of actions it had a protected right to do or hadn't even done at all. Writen and signed only by an uncertified GW paralegal, which is really no different than a legal secretary. CH's lawyer's response was that it was an improper communication from someone who if in the US wouldn't have had independent authorization to have sent it and that ignored jurisdictional consideration.

porkuslime wrote:From the get-go, Chapterhouse knew about the angry GW beast, and retained counsel to help them avoid potential issues.

Tailgunner wrote:Notwithstanding all the learned comment in this thread on the status of paralegals, a 'cease and desist' letter on GW notepaper (assuming that's what you mean by saying it was from a 'GW paralegal') is still a valid communication from GW. Whether the demands made were lawful/appropriate is another question - the point was that GW had an issue (rightly or wrongly) with what CH was doing. Do you ignore that and thumb your nose at them because it's not from a US attorney?

Tailgunner wrote:

Eldanar wrote:But I think there is a discrepancy in the possible perceptions that develop between UK and U.S. based litigation. While I don't think the UK courts are any more or less biased than the U.S. counterparts, the over all system of jurisprudence does tend to (or at least appears to, to my outsiders eyes) favor the big boys in the UK possibly a little more, just due to the overarching structure of its legal system and its rules. Things like the loser paying for costs, the ability to purchase injunction-like restrictions, etc., are two very different things that come to mind, and which allow for a very different environment for the legal processes to go forward. These have nothing to do with the bias of a court, but rather are structural differences within the two legal systems (and I am sure there are others as well, both pro and con, depending on your point of view).

You can obtain injunctions and other restrictive orders under US law as well.

The 'costs follow the event' principle is probably one of the most important differences between the US and English legal systems. I don't think it necessarily favours the big players, but that's a fair point. There are also restrictions under English law on how claims can be brought which tend to discourage class actions and individuals being funded by third parties, but these things cut both ways. Ultimately, litigation is costly, and that's an issue for both jurisdictions. When US and English lawyers discuss litigation, there are more similarities than differences, and the underlying tactics don't vary much. My original point is that it's not likely that any English lawyers advising GW have misunderstood the US position. If GW have over-reached then it's not necessarily due to bad legal advice or incompetence.

Tailgunner wrote:

Kroothawk wrote:
Must have been a big shock for the Nottingham HQ that the colonies (including France) now have their independent law
Guess that's why their revised set of demands doesn't include flogging anymore

Right. A US lawyer would only have demanded the death penalty, because every civilised legal system has that.

aka_mythos wrote:They don't have status to send such a letter. Its no different than if GW's janitor sent a letter. This isn't a case of CH choosing to ignore something so much as US law doesn't recognize it for what it was trying to be.

AndrewC wrote:

aka_mythos wrote:They don't have status to send such a letter. Its no different than if GW's janitor sent a letter. This isn't a case of CH choosing to ignore something so much as US law doesn't recognize it for what it was trying to be.

TBH I find that very hard to believe. What you are basically saying is that unless you have a lawyer then you have no recourse to the law? Having been in the situation of writing legal letters with regard to debt law, a correctly written letter, as long as the facts are correct, has as much 'weight' as a solicitors letter.

If GWs C&D letters clearly spell out the infringments then they should receive the same consideration as one written by Rumpole of the Bailey. Whether or not it was written or signed by the janitor. To ignore such a letter just because it wasn't signed by a solicitor, I would say is either risky, stupid or both.

Cheers

Andrew

aka_mythos wrote:They don't have status to send such a letter. Its no different than if GW's janitor sent a letter. This isn't a case of CH choosing to ignore something so much as US law doesn't recognize it for what it was trying to be.

Kilkrazy wrote:An order (or judgement) would come from the court, not a lawyer.

Platuan4th wrote:Yes, I know, but the point still stands that anyone can send a C&D Letter, regardless of how they stand with the bar.

Unless one of our resident Lawyers can show me something I haven't been able to find yet stating otherwise, of course.

Tailgunner wrote:Notwithstanding all the learned comment in this thread on the status of paralegals, a 'cease and desist' letter on GW notepaper (assuming that's what you mean by saying it was from a 'GW paralegal') is still a valid communication from GW. Whether the demands made were lawful/appropriate is another question - the point was that GW had an issue (rightly or wrongly) with what CH was doing. Do you ignore that and thumb your nose at them because it's not from a US attorney?

Chibi Bodge-Battle wrote:Beg pardon you are correct Eric,and I should have phrased it much better than I did.
It was not intended to insinuate CH

I was just a tad surprised by Aka_M's statement. This suggests that rather than CH overstepping the mark naming GW on the website and pushing things too far, CH had some concept of what was legitimate if the advice received is indeed sound.

The reference to "flouting" is to several comments made in posts above rather than CH and again I apologise if my wording did not make that clear.

Saldiven wrote:
In my understanding, such a letter must be signed by someone who has the authority to speak for the company. The janitor doesn't have authority, and a paralegal doesn't have authority. If the letter had come from the VP of Compliance, for example, or the CEO, it might be considered more relevant. When it comes from someone low down on the totem pole, there isn't even any way that the recipient of the letter can know that the position stated in the letter is the official position of the company who purportedly sent it.

MagickalMemories wrote:Time will show if CHS's legal-fu will be enough to bring down the bully a peg or if they were a bit overconfident in their katas. ; )

aka_mythos wrote:They don't have status to send such a letter. Its no different than if GW's janitor sent a letter. This isn't a case of CH choosing to ignore something so much as US law doesn't recognize it for what it was trying to be.

MagickalMemories wrote:Well, to be fair, I *was* trying to be as neutral as possible in the comment.
GW has no legal-fu. They're a fat kid on the playground with a big mouth. Now, they're got to put up or shut up & be shown for the blowhard that they are.

Tailgunner wrote: But if you do ignore them, you do so with the risk that they will in fact come after you - especially of they're actually making a point of substance. So you've either taken a calculated risk that hasn't paid off, or you've misjudged the situation badly.

Kroothawk wrote:

Tailgunner wrote: But if you do ignore them, you do so with the risk that they will in fact come after you - especially of they're actually making a point of substance. So you've either taken a calculated risk that hasn't paid off, or you've misjudged the situation badly.

Chapterhouse took the risk that GW made itself ridiculous in court ... and bam, GW actually did. Guess Chapterhouse can live with that.

Tailgunner wrote:
So if there was indeed a letter from 'a GW paralegal' (which is perfectly possible - GW presumably has a legal department which employes paralegals), then it wasn't invalid just because it wasn't signed by Tom Kirby. Now, you can ignore such a letter because you don't think they can or will go after you (perhaps because they're not in your jurisdiction), or because you think their allegations are bollocks (see above). But if you do ignore them, you do so with the risk that they will in fact come after you - especially of they're actually making a point of substance. So you've either taken a calculated risk that hasn't paid off, or you've misjudged the situation badly.

aka_mythos wrote:When something is written and sent by a legal secretary... there is the perception of a lack of sincerity on the part of the offended and greatly dwarfing party because it conveys a low level of concern and a diminished sense of the gravity of their demands. As I said this at most contributed to a decision, but was obviously not the only reasons.

Your reasoning seems irrational to me. IF you were a company going out of your way to follow your country's laws and you receive a letter from someone in another country threatening you with legal action in that other country, where you have no physical presence... where that letter is from a person who doesn't seem experienced enough to make the independent determinations in their country let alone ones based on the laws of a country other than their own... while demanding extreme actions and not just conciliatory ones... do you think anyone would anyone take that seriously?-They wouldn't, just as if a Sudanese imam told you to whip yourself for your violation of Sharia law in consuming alcohol, and assuming you aren't a Sudanese Muslim... you wouldn't actually have yourself whipped. Its a person who doesn't seem adequately capable, demanding you commit harm to yourself with no sense of the gravity of their demands. My opinion, the level of sincerity and effort GW put forth is only a marginal improvement from receiving a letter printed on the back of a cocktail napkin.

AndrewC wrote:

@Kilkrazy, not quite, while CHS has always operated within the limits set out to them by their legal checks, this part is about the last legal advice given, which was to ignore a letter based, apparently, on who signed it, not the contents/demands/threats*

AndrewC wrote: And yes, you do take such matters seriously, CHS did. They took it to legal advice, which IMO, failed them badly by, apparently, telling them the letter had no valid/legal standing and to ignore it.

AndrewC wrote:
I'm sorry, but a perceived lack of sincerity, on one side, does not equal a lack of concern by the other side.

AndrewC wrote:
Experience/age/whatever, when faced with such a measure, you don't just write it off because of that. And yes, you do take such matters seriously, CHS did. They took it to legal advice, which IMO, failed them badly by, apparently, telling them the letter had no valid/legal standing and to ignore it.

aka_mythos wrote:It speaks to diminished concern compounded by many other contributing factors. I think you're latching on to one small detail, others wanted expanded on, and you've taken that as having greater proportion than it actually does because of the additional clarification. What I've said is only as I understand it and not necessarily the way it was interpreted.

aka_mythos wrote:I think an aspect thats been ignored by everyone is even though GW has taken legal action it didn't follow through with its C&D. While GW has taken legal action its not in the specific way it threatend, because it never could do exactly it said. I think the fact that GW couldn't legally follow through with its specific threat shows precisely how dishonest and insincere its initial assertions were. They may have always sincerely wanted to destroy CHS, but that isn't the same as sincerely having a case. The difference in GW's exectution to me shows proof of the lack of quality in what GW originally wrote as it pertained to this specific situation. By going to court GW has shown it sincerely believes it does have a case, but has failed to rationalize that belief.

timd wrote:I am assuming that the suit is being driven from Nottingham by GW's UK lawyers.

odinsgrandson wrote:Wow, I sure hope not. Unless they've passed the bar exam in the US, they would be in a lot of trouble. In fact, I doubt that they could even send the cease and desist letter on GW's behalf if they hadn't passed the bar.

Eldanar wrote:And has been pointed out by many minds much more versed in U.S.-based and UK-based commercial codes than I am, there are some glaring differences to how the rules for copyrights, trademarks, fair use, etc., have been interpreted and applied in the two systems, and this is apparently where some of the disconnect is occurring.

AndrewC wrote:@Kroothawk, the failure I refer to is the inferred instruction to ignore a letter based on the legal authority of the signatory. Which has nothing to do with the ineptitude of GWs lawyers in constructing a case. Which in all likelyhood, is to do with GWs inability to write clear consise instructions, which doesn't rely on TMIR.

timd wrote:

timd wrote:I am assuming that the suit is being driven from Nottingham by GW's UK lawyers.

odinsgrandson wrote:Wow, I sure hope not. Unless they've passed the bar exam in the US, they would be in a lot of trouble. In fact, I doubt that they could even send the cease and desist letter on GW's behalf if they hadn't passed the bar.

I was referring to the strategy and tactics of the suit rather than the actual legal mechanics happening in the US.

Eldanar wrote:And has been pointed out by many minds much more versed in U.S.-based and UK-based commercial codes than I am, there are some glaring differences to how the rules for copyrights, trademarks, fair use, etc., have been interpreted and applied in the two systems, and this is apparently where some of the disconnect is occurring.

This is what I have been suggesting might be the problem: GWUK lawyers are setting the strategy and tactics of the suit (telling the US lawyers what to do) based on their knowledge and expectation of the way UK copyright law works and are perhaps having a hard time dealing with uppity colonial lawyers who are telling them that copyright does work the same way in the US...

Tim

AndrewC wrote:
But, if as everyone thinks it's a copy/paste proforma, it may not fit what GW wanted/meant to confer. But without the exact wording of the letter I can't/shouldn't comment.

Kroothawk wrote:

AndrewC wrote:@Kroothawk, the failure I refer to is the inferred instruction to ignore a letter based on the legal authority of the signatory. Which has nothing to do with the ineptitude of GWs lawyers in constructing a case. Which in all likelyhood, is to do with GWs inability to write clear consise instructions, which doesn't rely on TMIR.

Actually these two are linked. If CHS lawyers say, GW has no case, and GW laywers can't construct the case, it might be because GW has no case. Saying that CHS lawywers were just lucky is missing the point. Esp. when complying would have meant the destruction of all moulds and probably the end of Chapterhouse. You don't do that just because a secretary in UK asks you to.

aka_mythos wrote:This was a thought I had, but there may have been some intent in purposefully stating a course of action in the UK courts... a general counter to a C&D is for a recipient who believes themselve in the right is to go to a local court after they believe a suit is inevitable and seek a declaratory judgement to clear the air of impropriaty and have stated what legally can or can't be done... GW by making its suit imminent outside of the US could prevent a US company from seeking such relief from a US court.

AndrewC wrote:

aka_mythos wrote:This was a thought I had, but there may have been some intent in purposefully stating a course of action in the UK courts... a general counter to a C&D is for a recipient who believes themselve in the right is to go to a local court after they believe a suit is inevitable and seek a declaratory judgement to clear the air of impropriaty and have stated what legally can or can't be done... GW by making its suit imminent outside of the US could prevent a US company from seeking such relief from a US court.

Why couldn't CHS simply do that anyway. If they were prepared to pay for the Courts time and costs couldn't they simply have asked to courts judgement anyway?

Janthkin wrote:Costs aside, US law requires that there be an "actual case or controversy" before you can invoke the federal courts. Basically, it's not enough to know that someone might object to what you're doing, and could possibly sue you; you need a legitimate reason to believe that litigation is imminent before you can file a declaratory judgment suit. (Declaratory judgment is available to give you a legal recourse if someone is threatening to sue you, but hasn't done so; it lets the threatened party advance the process, rather than sitting there eternally anticipating a lawsuit.)

Lanrak wrote:Hi all.
Having read with great interest all the informed discusion about the C&D letter sent by GW , and the legal advice to ignore it by CH lawyer.

I am just wondering if the CH lawyer had simply replied to the letter pointing out the 'erroneous' statments and omitions.(EG parts that were not aplicable for a C&D letter for a company outside the UK etc.)
And Given GW plc an opportunity to send a 'properly' structured letter to CH.

Would this have helped the resolution of the process?
If GW recieved a letter from an American Lawyer stating CHs case clearly using current American IP Law.
Perhaps GW plc would have taken CH position more 'seriuosly' and delt with it in a more 'professional' way?

I use the words in ' ' as I am not sure the correct terminology, but I hope you understand what I mean...

TTFN

PhantomViper wrote:Of course, CHS should have shown GW how they could sue them more effectivelly and that would make everything go much faster, how did we miss that?

aka_mythos wrote:Seems like the the whole premise GW's advanced with its litigation. "Why don't you help us DESTROY you?"

Kroothawk wrote:This points to another problem:
GW might face a conviction to have waisted everybody's time by refusing to file a formally correct case.

AndrewC wrote:Did the meeting go ahead on Monday with the Judge?

AndrewC wrote:Continued to the 21st Nov it would appear. I guess someone rolled a six and so another turn takes place....

It looks like Paulson is in the clear though, did GW finally realise he wasn't involved to the extent they alledged?

Cheers

Andrew

fullheadofhair wrote:What is going to be interesting is how they disclose this in the accounts. If it is material enough to be disclosed (and the auditors will be the final arbitor of that) we will found out how significant GW deem the court case to be and the potential implications to the business if they lose.

NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Wednesday, October 26, 2011:

MINUTE entry before Honorable Matthew F. Kennelly: The 11/7/11 status
hearing before Judge Kennelly is vacated and reset to 11/21/11 at 9:30 a.m. (mk)

JOINT STIPULATION TO EXTEND FACT DISCOVERY

WHEREAS the deadline for the close of discovery under the Court’s scheduling order
dated February 28, 2011 (Dkt. No. 23) is October 31, 2011;

WHEREAS the Court, on August 16, 2011, referred the parties to Magistrate Judge
Gilbert to facilitate settlement discussions and to address certain discovery issues to facilitate a
meaningful settlement conference. (Dkt. No. 87);

WHEREAS, following a status conference before Judge Gilbert on September 1, 2011,
the parties have been regularly meeting with Judge Gilbert, and have now scheduled a settlement
and discovery conference on November 7, 2011, before Judge Gilbert (Dkt. No. 105);

WHEREAS the parties, under the direction of Judge Gilbert, have delayed certain
discovery and discovery motions in order to focus on issues most important to facilitate a
meaningful settlement conference with Judge Gilbert;

WHEREAS the Parties remain hopeful that the November 7, 2011 settlement conference
will help resolve some or all of the issues in the case and help streamline remaining discovery to
the extent the parties are unable to resolve this dispute, but nonetheless recognize that an
expressly contemplated purpose of the settlement and discovery conference is to schedule
completion of discovery that has been held in abeyance at the instruction of the Court;

IT IS HEREBY STIPULATED AND AGREED by all of the parties hereto, subject to the
approval of the Court, that the deadline to complete fact discovery be, and hereby is, extended
beyond the October 31, 2011 cutoff until such time as the Parties and the Court establish a new
deadline after completion of the settlement and discovery conference currently scheduled for
November 7, 2011.

SO ORDERED
this ___ day of _________, 2011
_______________________
United States District Judge