czakk wrote: There is an email chain from Moskin to the Copyright office. Basically, before the summary judgment the registrar says 'we can't register these shoulder pads'.
He doesn't disclose the emails to the court or CHS, despite emailing CHS to say he would disclose any correspondence with the copyright folks (as part of the discovery process).
Then, Moskin turns around and emails the copyright folks and says 'hey, there has been a ruling in a federal court that says we can copyright shoulder pads, please do it now'.
Generally speaking, and normally sanctionable - though the issues of what it means is somewhat more grey. There are specific laws which require disclosure of evidence during discovery for criminal cases - it is less firmly set out though for civil trials and generally ends up falling into the realm of contempt and similar local rules. If you take a look at Rule 26 of the Federal Rules of Civil Procedure it covers what must be disclosed by each side as well as some guidelines and related information on the timelines relating to discovery. Rules are squishy though, and if you break a rule...it isn't the same as breaking a law.
The bigger thing is that it makes GW seem even more like Lucille Ball, and it puts the judge in the position of Desi... Lucy, You got some 'splainin' to do. When the judge reconsiders if he should reconsider his summary judgement...unless GW can demonstrate some exceptional reason that they didn't pass on the information to CHS, it will be sitting in the back of the judge's head when he is contemplating the issues at hand.
How much of an impact it may have will really depend on how the judge is feeling. There is enough for the judge to hang his hat on for a complete reversal regarding the protectibility of the shoulder pads (and everything that is derived from the base shoulder pad design). He could stick with what he already ruled upon as well, since although the opinion of an expert agency should be given deference...it isn't mandatory that they agree with anything that the USCO says.
Moskin should be careful of FRCP rule 11(b) violations (dealing with truthful, accurate, and supportable representations to the court). Violation of rule 11(b) can quickly turn into professional sanctions under rule 11(c) against both him personally, his firm, or even GW itself.
It is funny that some of the text ads at the top of the page are for law firms. Maybe Dakka thinks GW is reading this thread, as they may want a new lawyer soon.
While we are waiting for the results of the motion hearing, here is something else of interest:
There is a 2007 case involving wineries and trademark issues where Mr. Moskin was one of the lawyers representing the defendant, Cantine Rallo. Again, there were issues with discovery. End result is this:
As described above, the discovery disputes in this case have been numerous. Neither party has been entirely without fault in adding to the costs of discovery. However, as pointed out above, Rallo has consistently and repeatedly failed to respond to discovery requests in a straightforward manner necessitating numerous and repeated motions to compel and requiring Gallo to expend tens of thousands of dollars in attorney fees. Furthermore, Rallo has failed to comply with very specific portions of this Court's November 8, 2007 Order.
Accordingly, the Court imposes sanctions against Rallo and counsel in the amount of $10,000.00 for its conduct in necessitating numerous motions to compel by Gallo which were granted by the Court and its specific failure to obey the Court's Order of November 8, 2006.
These sanctions are payable to Gallo's counsel within 20 days of service of this Order. As discussed in this Order, Rallo is also precluded from using at trial or in dispositive motions, evidence which has not been provided to Gallo in response to discovery.
IT IS SO ORDERED.
So, he could just play the game this way.
Automatically Appended Next Post: So, the results of today's motion hearing,
1) Ruling will be on the 14th of January.
2) Reply to the motion is due on the 10th
3) Lead counsel has to show up in court in person for the ruling. One, or both sides are in for an in person tuning up.
MINUTE entry before Honorable Matthew F. Kennelly: Ruling on motion for reconsideration, 267[RECAP] is reset to 1/14/2013 at 9:30 AM. Reply to motion is to be filed by 1/10/2013. Lead counsel is ordered to appear in person at the ruling. (or, ) (Entered: 01/08/2013)
Perhaps someone with more experience can say what is meant by the 'reply to motion' bit being due on the 10th. Does that mean CHS gets to submit a reply brief (a short answer to GWs reply) or does it mean the judge wants better / more from GW on the issue?
I guess we'll find out on thursday when it gets filed.
Perhaps someone with more experience can say what is meant by the 'reply to motion' bit being due on the 10th. Does that mean CHS gets to submit a reply brief (a short answer to GWs reply)
Of all the miniature companies that actually kinda win a legal battle with GW why is it the one with the most "meh" models...hopefully this opens the door for other companies.
czakk wrote: Accordingly, the Court imposes sanctions against Rallo and counsel in the amount of $10,000.00 for its conduct in necessitating numerous motions to compel
Is that all? $10,000 would be pittance for GW. Even for Moskin himself, I doubt it would break the bank. GW getting precluded from bringing forward any more new evidence would be interesting though. That would certainly put the kibosh on any future attempts to falsify and backdate stuff as they need it. They would actually have to have *gasp* a case planned out in advance. Very interesting.
czakk wrote: Accordingly, the Court imposes sanctions against Rallo and counsel in the amount of $10,000.00 for its conduct in necessitating numerous motions to compel
Is that all? $10,000 would be pittance for GW. Even for Moskin himself, I doubt it would break the bank. GW getting precluded from bringing forward any more new evidence would be interesting though. That would certainly put the kibosh on any future attempts to falsify and backdate stuff as they need it. They would actually have to have *gasp* a case planned out in advance. Very interesting.
True, but that was for the other case, and while I don't know the details, apparently it was between a couple wineries, to whom 10 grand may not have been back breaking, but to suddenly have to come up with may not have been pocket change either.
czakk wrote: Accordingly, the Court imposes sanctions against Rallo and counsel in the amount of $10,000.00 for its conduct in necessitating numerous motions to compel
Is that all? $10,000 would be pittance for GW. Even for Moskin himself, I doubt it would break the bank. GW getting precluded from bringing forward any more new evidence would be interesting though. That would certainly put the kibosh on any future attempts to falsify and backdate stuff as they need it. They would actually have to have *gasp* a case planned out in advance. Very interesting.
True, but that was for the other case, and while I don't know the details, apparently it was between a couple wineries, to whom 10 grand may not have been back breaking, but to suddenly have to come up with may not have been pocket change either.
10,000 is nothing to these lawyers. 50 hours worth of work at most, very likely much less. The reputational damage is much more important. Judges do not live in a vacuum, they absolutely know who the trustworthy and untrustworthy lawyers are.
DECLARATION OF JENNIFER A. GOLINVEAUX IN SUPPORT OF DEFENDANT CHAPTERHOUSE STUDIOS LLC’S MOTION TO WITHDRAW MOTION FOR RECONSIDERATION PENDING FINAL DETERMINATION ON REGISTRATION OR ABANDONMENT
I, Jennifer A. Golinveaux, declare as follows:
1. I am a partner with the law firm of Winston & Strawn LLP. I am a member in
good standing of the Bar of this Court. I have personal knowledge of the facts set forth herein and if called to testify could and would do so competently.
2. Attached hereto as Exhibit A is a true and correct copy of correspondence between Games Workshop Limited (“GW”) and the U.S. Copyright Office that GW produced on January 4, 2013, Bates labeled GW0011391-438.
3. GW has been vague about whether it has now compiled and produced all of its correspondence with the Copyright Office related to works-in-suit. After the Court appearance on January 7, 2013 I asked counsel for GW, Jason Keener, to confirm whether all correspondence had been produced. Keener responded that he would have to confer with lead trial counsel, Jonathan Moskin. GW has not further responded to CHS’s request to confirm it has now produced all correspondence with the Copyright Office regarding the works-in-suit.
4. A true and correct certified copy of the “Assault Squad Shoulder Pads” file from the Copyright Office is attached hereto as Exhibit B. This file contains several E-mails between GW’s lead trial counsel, Jonathan Moskin, and the Copyright Office regarding GW’s copyright application for that product. The Copyright Office responded to GW’s “Assault Squad Shoulder Pads” copyright application on June 7, 2012—two months before summary judgment motions were filed in this case.
5. Attached hereto as Exhibit C is a true and correct copy of Games Workshop Limited’s (“GW”) Second Revised Copyright Chart (“Second Rev. Claim Chart”), which it served on Chapterhouse Studios LLC (“CHS”) on August 3, 2012.
6. Attached hereto as Exhibit D is a true and correct copy of Games Workshop Limited’s (“GW”) Copyright Chart for the New Allegedly Infringed Products that were added in GW’s Third Amended Complaint (“New Products Claim Chart”), and which it served on CHS on December 12, 2012.
I declare under the penalty of perjury that the foregoing is true and accurate.
As for the rest, at 226 pages, I don't want to pay for it, so, have to wait until it shows up on RECAP.
Automatically Appended Next Post: -----------------------------------------
If I am reading the motion correctly Chapterhouse's lawyers basically say that Moskin was either strategically ignoring the copyright office and was abandoning copyright registrations without a fight, or was incompetently allowing them to be abandoned / having the files closed.
It's not clear from what GW has produced as to whether or not the copyright office has closed the file on the shoulder pads (you have 45 days to respond then they close it without the appeal process Moskin was talking about in his filing).
So CHS is withdrawing their motion until there is a final decision from the copyright office. Basically walking it back, while still calling Moskin out. Was this clever lawyering to get the issue in front of the judge as soon as possible, or did they go off half-cocked and just piss off the other side for no reason?
Automatically Appended Next Post:
9. Although CHS believes that the Copyright Office Registration Specialist’s repeated rejection of the sculptural element of the Assault Squad Shoulder Pads was highly relevant to the Court’s summary judgment ruling—and wrongfully withheld from consideration by GW—in light of the Court’s concerns about relying on potentially non-final rejections by the Copyright Office, CHS requests to withdraw its Motion and will seek to re-file it if and only if the Copyright Office Supervisory Specialist rejects the sculptural claim of the application, or if GW strategically allows that claim to become abandoned.
This docket entry was made by the Clerk on Monday, January 14, 2013:
MINUTE entry before Honorable Matthew F. Kennelly:Motion for reconsideration [267] is granted in part and withdrawn in part.
Motion to withdraw [272] is granted. (or, )
Pretty bare bones.
So, what was left in the motion for reconsideration after CHS withdrew the stuff in 272? Just the sanctions?
-Edit-
I think just this part from the end of 267 is left. I wonder if this means they got sanctions imposed.
This is from the end of CHS's motion for reconsideration, and I think the bit that didn't get withdrawn (so presumably the bit that could be granted in part).
sanction GW by awarding CHS costs for its independent investigation to uncover this improperly withheld evidence and directing GW to produce all correspondence between GW or GW’s counsel and the Copyright Office within seven days of entry of an order granting CHS’s motion.
How generous of the judge to pay the defendent his costs for uncovering criminal actions by the plaintiff. And the criminal action itself goes unpunished?
There may be sanctions later on against Moskin. As I understand it his client can also file complaints against him with his BAR. These are published each month, disbarments, sanctions, and reinstatements, in the back of their journal.
Haven't followed this story in a while. As I understand it nothing of any major significance has been settled...CHS has landed some blows, Gw has landed some.
The judge did say that GW could copywrite the shoulder pads though. Only to later find out that the copywrite office said "no, you can't, they are too small and indistinct." Only GW failed to disclose this to the judge, or to CHS's attorney.
While it appears there is some find of "fine" on the way for this, I cannot determine if the judge has backtracked on his/her previous statement of "yes you can" or if the cw office's decision has more weight on this than the judge's determination.
Is that the nuts and bolts? Am I missing anything?
Ouze wrote: Indeed, I too am confused about the final disposition of the shoulderpad issue - protectable, or not?
CHS asked the judge to reconsider his ruling on the shoulder pads (and to dismiss some claims, which GW agreed to) based on emails they obtained between Mr. Moskin and the copyright registrar. The copyright folks refused to register the shoulder pads.
GW brought up the fact that the copyright office's "no" wasn't necessarily a final answer, just an initial screening - there is an appeals process and what not to go through before it is final.
At the motion hearing the judge had concerns about revisiting his earlier decision based on what might not be final decision from the copyright office. If he went back and said 'no you can't copyright shoulder pads' and then the copyright office came back and said 'yes you can' he'll have wasted a bunch of time etc...I think he suggested CHS withdraw the motion until the copyright office's final decision.
CHS said, okay we understand your concerns judge, we'd like to delay you having a second look at your decision until the copyright office gives a final answer. Oh and by the way, because Mr. Moskin didn't reply to the copyright office for over 40 days, we think they will likely close the file without allowing an appeal.
Judge says, - okay, refile your motion when the copyright office gives a final answer.
As far as the sanctions and turning over of any emails between the copyright office and GW, we don't know for sure what happened and won't until either a written order is produced, or it is referenced in a future filing, or the transcripts are put up (which takes forever).
Ouze wrote: Indeed, I too am confused about the final disposition of the shoulderpad issue - protectable, or not?
CHS asked the judge to reconsider his ruling on the shoulder pads (and to dismiss some claims, which GW agreed to) based on emails they obtained between Mr. Moskin and the copyright registrar. The copyright folks refused to register the shoulder pads.
GW brought up the fact that the copyright office's "no" wasn't necessarily a final answer, just an initial screening - there is an appeals process and what not to go through before it is final.
At the motion hearing the judge had concerns about revisiting his earlier decision based on what might not be final decision from the copyright office. If he went back and said 'no you can't copyright shoulder pads' and then the copyright office came back and said 'yes you can' he'll have wasted a bunch of time etc...I think he suggested CHS withdraw the motion until the copyright office's final decision.
CHS said, okay we understand your concerns judge, we'd like to delay you having a second look at your decision until the copyright office gives a final answer. Oh and by the way, because Mr. Moskin didn't reply to the copyright office for over 40 days, we think they will likely close the file without allowing an appeal.
Judge says, - okay, refile your motion when the copyright office gives a final answer.
As far as the sanctions and turning over of any emails between the copyright office and GW, we don't know for sure what happened and won't until either a written order is produced, or it is referenced in a future filing, or the transcripts are put up (which takes forever).
Exalted. Thank you for taking the time to clarify.
I did a quick skim, didn't see anything new, other than the amount of amending / correcting that had to be done. The initial applications may have been rushed.
Wow. "The reason for this notation was the understanding of prior IP counsel at Games Workshop that it somehow broadened the scope of protection. Hence, every work during his tenure has the copyright notice covering the years 2000 to the date of actual publication."
GW's Legal Department sounds like a really interesting place to be. There are cases where you WOULD use a hyphenated copyright notice (e.g., websites usually use that notation, as the actual copyrights for content thereon will vary with when it was actually added, but nothing before the initial launch), but on EVERY work?
It would seem that Moskin still doesn't fully understand what he is actually dealing with...
The various Codex versions are seperate copyrightable works. Each of them should be copyrighted for the date that they are published (just because the title for Codex Space Marines has been the same for 15 some odd years doesn't mean it is the same book).
The copyright notice in the front (or back depending on the particular book) which has a date which might be annotated as 2000-2007 is put in place because portions of the book may end up going back to 2000. It might be artwork, story excerpts or pictures of the models themselves (though those should actually be the date of the photograph...not the date of the model design).
In a proper copyright filing, those portions which are excerpted from other works (either previously published in earlier Codixes or White Dwarf or short segments from things like Black Library books) should be annotated and excluded from the new filing. Those prior works are not protected based on the newest filing date - but the first filing date (or lack of filing...which would be the creation date).
As a result - I would guess that pretty much every single filing which they have done is actually incorrect.
As a result - I would guess that pretty much every single filing which they have done is actually incorrect.
Youch!
Would that actually invalidate them, or just adjust/reset the clock on many of them?
Which could, I suppose, then invalidate some of them...
You don't need to register something to have copyright. A creation gets protection and the clock starts ticking as soon as it is created (for UK stuff). However, registering in the US is important because:
(a) if done within 5 years of publication, will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate, and
(b) if registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
(a) shifts the burden of proof from the plaintiff (prove you actually own the copyright, prove it's actually copyrightable etc..) to the defendant (prove they don't own it, prove it isn't copyrightable).
(b) lets you get waaaaaay more money when you sue someone.
And I think if it is something created in the US you have to register it before you can sue someone for infringement.
As for incorrect / improperly done applications, I don't know if there are any avenues for a third party to get the copyright office to look at something again. I know the rightholder can submit corrections for a fee if they screw up an application and need to change something.
Automatically Appended Next Post: -------------------------------
Just some random thoughts I had after looking at the emails that were turned over. First, it looks like Mr. Moskin started off by sending stuff over, and then handed the job over to Mr. Keener around the time CHS made their complaint. Second, from Ms. Golinveaux's declaration, she seems to be asking Mr. Keener about disclosure rather than Mr. Moskin. Maybe lead counsel isn't talking to the other side right now.
Second, I wonder how much all the corrections, emails and correspondences back and forth with the copyright office added to GWs bill. One of the reasons you hire the 900 dollar an hour solicitor is that they get it right the first time and cost you less in the long run.
Czakk, thanks for your updates to this thread! I'm bummed the motion was withdrawn but hopefully the copyright office rules one way or the other and it's able to be re-filed at that time.
I had to smile when I looked at the exhibits. I see that GW have 'discovered' models that are positioned, painted and based in identical colours as the CHS website.
GW has filed a letter they wrote to the copyright office (attached to this post).
Looks like the registrar / clerk has again refused to register the shoulder pads. I imagine we will be seeing the motion to reconsider popping up again.
I find the letter to be a bit odd. Mr Moskin is giving the copyright office notice of the lawsuit because registration has been refused. However, from my very brief reading of the statute, notice isn't required:
...no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.
(b)
(1) A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—
(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and
(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.
(bolding mine)
Two issues leap to mind. The first is that these are not United States works, they were created in the UK. So this notice is unnecessary right? Of course I guess it doesn't hurt to give notice even if the section doesn't apply.
Second - if this section is triggered by gws lawsuit and registration or notice was necessary, then the application has to have been delivered in the proper form and or the certificate has to be correct. Does proper form mean the correct paperwork or does it mean accurate / correct - up thread we've seen that Mr. Moskin might be mistaken as to the correct dates for a number of the works in question.
fullheadofhair wrote: So, is GW's case in trouble now? If they cannot copyright the pad doesn't that substantially harm the point they are making.
It is a set back but not anything fatal. It means that CHS will bring it's motion to reconsider the summary judgement again.
Then the judge can either say a) 'nope, I got it right, it's copyrightable', b) 'I got it wrong, it's not copyrightable' or (i think this is possible) c) 'this is more complicated than I thought, not suitable for summary judgement, we will deal with it at trial'.
b) would be the big win for CHS, it would knock out a lot of the shoulder pad claims. It would still leave other claims in the case though.
c) would be a win for CHS as well, gives them a second chance (well third really if you count the motion to reconsider) to knock down the copyrightability of the shoulder pad.
Presumably if we hit (a) again CHS will file an appeal.
Given that the judge already ruled it was copyrightable, a and c are more likely than b imho.
Rethinking the letter, perhaps the notice isn't that important and what is important is GWs waiver of their right to administrative review of the shoulder pads. *shrug*
Thanks for the explanation. It is, as always, greatly appreciated.
I think this just goes to show the importance of keeping on top of paperwork and I am sure GW is reviewing all these instances and rapidly playing catch to make sure it doesn't happen again.
I would need to double check the specific terms and application - but normally if you apply for something from the government and the government says no (or doesn't say anything at all) and then you enter into a lawsuit relating to your petition (in this case to register you copyright claim) you must give notice of the lawsuit to the appropriate authority.
That authority then has the option to support your legal claim or oppose it in the lawsuit based on their position. If you do not give proper notice in a timely manner - they get annoyed and can become a thorn in your side because you didn't "Respect my AUTHORITY!!" (said in the voice of Cartman).
GW didn't respect their authority when they started filing all of their copyright registrations so there is a good chance that a functionary at the USPTO will decide to take a dump in their Cherios.
(c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.
If you can use evidence of registration as proof of validity, it would make sense that a refusal to register could be lead to rebut validity.
-edit-
Actually I think we may have some discussion about this in GWs pleadings around the motion to reconsider (weight to be given to copyright office's findings). If I have time I'll go dig em up.
There is a part somewhere in this thread that judges are strongly urged to take the opinion of federal offices into serious consideration.
Which we made the point that if the judge had known beforehand about the refusal, he very well might not have passed the summary judgement that he did.
Two issues leap to mind. The first is that these are not United States works, they were created in the UK. So this notice is unnecessary right? Of course I guess it doesn't hurt to give notice even if the section doesn't apply.
Second - if this section is triggered by gws lawsuit and registration or notice was necessary, then the application has to have been delivered in the proper form and or the certificate has to be correct. Does proper form mean the correct paperwork or does it mean accurate / correct - up thread we've seen that Mr. Moskin might be mistaken as to the correct dates for a number of the works in question.
Doesn't s work that is successfully registered in a country become a work of that country? There's original origin and then registered origin.
Interesting here though is what section 411 has this to say:
In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.
I think we're more likely looking at option A here. More's the pity; I wouldn't mind GW's lawyers eating some crow.
Kroothawk wrote: A layman in IP issues should not be able to grant a company the copyright on arrows.
Are you referring to the judge or the copyright office employee? The judge might have a degree in law but I doubt he specializes in copyright cases whereas the employee at the government office does that all day everyday. I don't think either one classifies as a layman.
I was referring to the judge who may or may not have granted GW the copyright over the generic shoulderpad form by a rash remark.
If such things are possible in the USA, I can understand why companies are starting hopeless IP lawsuits, hoping for a mistake by a non-IP trained judge granting them the copyright on everything under the sun.
A bit on the nose for a german to be complaining about US ip practices given the recent tendency of german courts to offer ex parte injunctions for ip stuff at the drop of a hat.
Anywhooo. A federal court judge is not a lay person. They will have a working knowledge of the types of matters that appear in their court. More importantly they will be an expert in the conduct of a fair trial, an expert in assessing evidence and testimony and an expert in evaluating jurisprudence. Their role is to act as the impartial decision maker, not an omniscient law-knower.
It is the lawyer's job to present the facts and explain what case law applies / doesn't apply. Their job is to fully and forcefully present evidence and legal arguments. If they do their job correctly, the judge has all the law at his disposal, all the facts, and the ability to make a fully informed decision.
People aren't starting crazy lawsuits in the US because the federal court judges are laypeople or incompetent, they are starting lawsuits because the statutory framework around ip is incredibly plaintiff friendly and litigation risks are very low (no costs shifting, crazy discovery rules). Take this lawsuit for instance - the judge in this case is reputed to be the best in the district (do a google search). However, even with a good judge if CHS had not been able to obtain pro bono representation, they'd be finished by now just because of the cost of going to trial.
This docket entry was made by the Clerk on Tuesday, February 5, 2013:
MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held with attorneys for both sides by telephone. Telephone status hearing continued to 3/7/2013 at 08:45 AM.(or, )
chaplaingrabthar wrote: So, that's a delay until March 7th for the status hearing, if I'm translating my bureaucracy to English correctly, yes?
More likely to allow for each side to go over the new evidence and possibly do depositions and what not for the new claims in the second suit which was then joined to the first suit. While it shouldn't add nearly as much time as the first claims did - there are 30 or so new claims which CHS has to respond to and all the needed depositions, experts and related issues that are tied to those claims.
Aerethan wrote: I'm pretty sure that all judges have a pool for how long they can keep suits open. What happened to my December trial?
Got bumped for more important case on the judge's docket...and then GW filed the second lawsuit...
chaplaingrabthar wrote: So, that's a delay until March 7th for the status hearing, if I'm translating my bureaucracy to English correctly, yes?
More likely to allow for each side to go over the new evidence and possibly do depositions and what not for the new claims in the second suit which was then joined to the first suit. While it shouldn't add nearly as much time as the first claims did - there are 30 or so new claims which CHS has to respond to and all the needed depositions, experts and related issues that are tied to those claims.
Aerethan wrote: I'm pretty sure that all judges have a pool for how long they can keep suits open. What happened to my December trial?
Got bumped for more important case on the judge's docket...and then GW filed the second lawsuit...
Ah yes, I forgot that the judge rolled the new claims into the older one. Without going through the entire thread, are any of the new claims in the realm of the unprotectable shoulder pad?
Aerethan wrote: I'm pretty sure that all judges have a pool for how long they can keep suits open. What happened to my December trial?
Maybe we could get one going ourselves. If I was GW I'd try to make this as expensive as possible for ChapterHouses freebie council in the hopes that they would just want to give up. Then again, if I were ChapterHouse's council, I'd want it to go on as well because 1) it is costing GW real money and 2) the longer it goes on the more obvious it is that GWs council are a bunch of morons.
I'm going to guess there's another 2 years worth of garbage here before trial.
My understanding is that having taken a Pro Bono case, a firm cannot abandon it.
Of course you are right that it cuts both ways, and GW's legal bill cannot be hoped to be recovered from Chapter House.
I am not convinced GW's lawyers are morons. They seem to play a bit fast and loose with things, however that is probably the result of having a somewhat weak case to work with.
GW themselves come out as more incompetent, not having got proper copyright of artists' work, and so on.
As a non-lawyer I too am not convinced GW lawyers are morons, but GW law department is, and GWs lawyers are trying to cover their faults by dishonest tactics. I don't know what the law says, but morally, retconning is still conning, isn't it?
I saw this post by GW on thier facebook page. Do you think this is in response to the current lawsuit? I think in part this and the other discussion about the Amazon eBook stuff. I think this our lawyers/barristers said something and now we have to clarify due to poor word choices.
Your thoughts as they aplly to the topic at hand. I'm rooting for CH.
Games Workshop owns and protects many valuable trademarks in a number of territories and classes across the world. For example, 'Warhammer' and 'Space Marine' are registered trademarks in a number of classes and territories. In some other territories and classes they are unregistered trademarks protected by commercial use. Whenever we are informed of, or otherwise discover, a commercially available product whose title is or uses a Games Workshop trademark without our consent, we have no choice but to take reasonable action. We would be failing in our duty to our shareholders if we did not protect our property.
To be clear, Games Workshop has never claimed to own words or phrases such as 'warhammer' or 'space marine' as regards their general use in everyday life, for example within a body of prose. By illustration, although Games Workshop clearly owns many registered trademarks for the Warhammer brand, we do not claim to own the word 'warhammer' in common use as a hand weapon.
Trademarks as opposed to use of a word in prose or everyday language are two very different things. Games Workshop is always vigilant in protecting the former, but never makes any claim to owning the latter.
It's to do with the fact that their Twitter was being spammed by people disgruntled with the 'space marine' trademarking fiasco. I don't look at it, but I'm guessing facebook was probably subject to similar treatment.
Looks like they are not backing down in any case over the attempt to trademark such generic a term as 'space marine'.
Yeah it's over them trying to block the use of Space Marine in a SF novel by MCA Hogarth. That attracted a lot more attention by a much wider range of people than the CHS lawsuit. When Neil Gaiman starts tweeting to his two million followers about a novel being pulled from amazon, gak gets noticed.
I maintain that generic terms should not be allowed to be trademarked for such a broad market as books.
Didn't GW also trademark 40,000 in that market? How can it be legal to trademark a number?
I'm going to trademark "the" and "of" in the book market, that'll teach em.
Is it possible for enough people to demand that a trademark be revoked and have it pass? It's nothing like a copyright or patent, as GW did not create "space marine".
I don't think they've got a very good position on the title thing.
USPTO wrote:The title, or a portion of a title, of a single creative work must be refused registration under Sections 1, 2 and 45 of the Trademark Act unless the title has been used on a series of creative works. 3 The title of a single creative work is not registrable on either the Principal or Supplemental Register. Herbko Inter'l, Inc. v. Kappa Books, Inc ., 308 F.3d 1156, 1162, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002) ("the title of a single book cannot serve as a source identifier"); In re Cooper, 254 F.2d 611, 615-16, 117 USPQ 396, 400 (C.C.P.A. 1958), cert. denied , 358 U.S. 840, 119 USPQ 501 (1958) ("A book title ... identifies a specific literary work ... and is not associated in the public mind with the publisher, printer or bookseller...."); In re Posthuma , 45 USPQ2d 2011 (TTAB 1998) (title of a live theater production held unregistrable); In re Hal Leonard Publishing Corp ., 15 USPQ2d 1574 (TTAB 1990) (INSTANT KEYBOARD, as used on music instruction books, found unregistrable as the title of a single work); In re Appleby , 159 USPQ 126 (TTAB 1968) (title of single phonograph record, as distinguished from series, does not function as mark).
They'd need a series of books with "Space Marine" as the series name, which (to my knowledge) doesn't exist. Or else they're trying to argue pure customer confusion, which brings you closer to a "famous mark" argument, which they just plain don't have.
But we're wandering off-topic. There is a thread to discuss this topic elsewhere.
jonolikespie wrote: So.. what are the odds this will completely blow up in GWs face and 3 years from now there will be a 120 page thread about the GW vs Hogarth case?
Slim to none. It seems things are resolved for the moment, unless GW decides to sue her as well. Does it strike anyone as odd that GW seems to make it's worst decisions around the Christmas holiday season? Also I liked the comment in the BBC article about them having a "blanket policy" of not speaking to the media. Must match their "blanket policy" on not advertising.
She has the publicity and offers of help now (a number of lawyers have offered pro bono services)- they may not materialize again a year from now or two. So she may decide to go for some form of declaratory relief rather than waiting for GW to send another take down or start a suit.
Still, the fact that major SciFi novelists and BBC are now aware of the incompetent bullies of GW legal is relevant to this lawsuit. Even if the details are not. Maybe someone could contact BBC and tell them about this lawsuit here
I love it how any GW legal bullying is immediately countered by a queue of pro bono lawyers Even if this causes prices for Codices go up to 100 US-$.
Wondering how much the Chapterhouse case has cost so far. Will there come a point that GW cannot afford to keep it going with CH having free representation.
They really can't expect to recover much of the legal fees back if they won, can they?
Most likely the cost is still in the 6 figure range.
If GW win's its not really the cost of counsel, GW considers this an investment in protecting their IP. I would be curious to see if this is mentioned in the investment report coming up.
As long as we keep buying GW can afford to keep this up forever.
If GW win's its not really the cost of counsel, GW considers this an investment in protecting their IP. I would be curious to see if this is mentioned in the investment report coming up.
As long as we keep buying GW can afford to keep this up forever.
If they thought they had a chance of winning, the costs would have been capitalized and included as an intangible asset as copyright/trademark. Last year's report (Where the trial was ongoing) had no such asset associated with the trial. Thus, they had to expense it.
If GW win's its not really the cost of counsel, GW considers this an investment in protecting their IP. I would be curious to see if this is mentioned in the investment report coming up.
As long as we keep buying GW can afford to keep this up forever.
If they thought they had a chance of winning, the costs would have been capitalized and included as an intangible asset as copyright/trademark. Last year's report (Where the trial was ongoing) had no such asset associated with the trial. Thus, they had to expense it.
That could occur under GAAP but we are talking about the UK which would likely be using IFRS standards. Could be slightly different accounting treat than US standards.
If GW win's its not really the cost of counsel, GW considers this an investment in protecting their IP. I would be curious to see if this is mentioned in the investment report coming up.
As long as we keep buying GW can afford to keep this up forever.
If they thought they had a chance of winning, the costs would have been capitalized and included as an intangible asset as copyright/trademark. Last year's report (Where the trial was ongoing) had no such asset associated with the trial. Thus, they had to expense it.
That could occur under GAAP but we are talking about the UK which would likely be using IFRS standards. Could be slightly different accounting treat than US standards.
IFRS is the same with regards to intangibles last I knew.
KingmanHighborn wrote: So for the layman what is the status? Who's winning? Where is CH's cheering section?
GW is losing (money), but CH isn't winning.
This is not something that GW can actually win at this point - they have sunk too much money into it. Even if a decision is made in their favor they will have lost more than they have gained.
A saner course might have been to officially license CH, but that has its own perils.
A saner course might have been to officially license CH, but that has its own perils.
That still suggests that CH need the permission of GW to make what they do, they claim not. So even if GW were to offer a licence, at a price be aide it wouldn't be free, CH are not obliged to accept it to stay in business. GW should have just ignored CH but their case against them came at the end of a campaign of C&Ds being handed out for all sorts of silly things.
Hi everybody i'm on the sick at the moment and bored out of my skull, as such I have read through the most recent pacer unlocks.
There is a large entry in which gw claim against all ch's remaining items, this includes wonderful entries such as a claim against a warhammer with feathers on because space marines use an eagle theme and there was a thunderhammer in the 2003 citadel catalouge that also had a feather on( all thoigh they cannont confirm who sculpted it and therfore if they actually have copyright).
Another favorite of mine is they list a set of chapter house combat claws released march 2012 and as part of there claim then show some fw lightning claws released in may.
The next item is a letter from gw tothe us copyright office in regatds to there declined copyright request. They advise the office of there ongoing legal action and acknowledgethere right to appeal. However they advise they will not be doing this asthey are getting the copyrights through the courts neh neh nee neh neh (I may have paraphrased the last part).
As such gw now appear to be hoping to get the required copyrights during the procedings they started against ch for breaking there copyrights.
While I am sure ch are not squeeky cleanin regards to the alligations I am a little worried regarding the most recentclaims by gw.
As these contain a lot of the generic psuedo historical yrappings they use such as eagles,helmet crests etc which f given copyrights would potentially allow gw to cause problems for historical and fantasy/scifi mimature makers.
Chapterhouse Studios LLC (“Chapterhouse”) writes to complete the record regarding a recent Games Workshop Limited (“GW”) submission. On January 31, 2013, GW submitted a “Notice of Filing” (Dkt. No. 275) to inform the Court that it had filed a letter with the U.S. Copyright Office responding to a refusal to register its Assault Squad Shoulder Pad because it “lack[ed] the authorship necessary to support a copyright claim.” Although GW attached its own letter to its Notice of Filing (“Games Workshop’s January 31 Letter”), it omitted the Copyright Office’s letter refusing registration (“Refusal Letter”), which is attached hereto as Exhibit A.
The Refusal Letter is dated January 4, 2013 and addressed to GW’s trial counsel in this action, Jonathan Moskin. At the January 14, 2013 hearing on Chapterhouse’s Motion for Reconsideration, Mr. Moskin represented that all correspondence with the Copyright Office had been produced, although ten days had passed since the Refusal Letter was sent. Moreover, although Chapterhouse’s counsel requested that it immediately be provided with the refusal letter once GW’s attorney received it, GW’s counsel refused to provide it until, as he put it, GW decided how to respond, and it was withheld from Chapterhouse’s counsel until January 31, 2013
They intend to refile the motion to reconsider the summary judgment.
Page 6 of the pdf has the copyright office's rejection letter -
We carmot register this work because it lacks the authorship necessary to support a copyright claim.
Copyright protects original works of authorship that are fixed in some physical form. See 17 U.S.C. §102(a). As used in the copyright context, the term “original” means that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least a minimal degree of creativity. See Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991).
To satisfy these requirements, a work of the visual arts must contain a thinimum amount of pictorial, graphic or sculptural authorship. Copyright does not protect familiar symbols or designs; basic geometric shapes; words and short phrases such as names, titles, and slogans; or mere variations of typographic ornamentation, lettering or coloring. See 37 C.F.R. §202.1. Further, copyright does not extend to any idea, concept, system, or process which may be embodied in a work. 17 U.S.C. § 102(b).
Neither the aesthetic appeal or commercial value of a work, nor the amount of time and effort expended to create a work are factors that are considered under the copyright law. See Bleistein v. Donaldson, 188 U.S. 239 (1903); Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991). The question is whether there is sufficient creative authorship within the meaning of the copyright statute and settled case law.
After careful consideration, we have determined that this particular work will not support a claim to copyright for 2-Dimensional artwork or sculpture under the standards described above.
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Also 278, 279, and 280 by GW. I believe they've decided to go on the offensive over CHS not turning over some forum posts and facebook pages...and some 'new post' email notifications. Sort of a... Dad! Dad! They did it toooooo! kind of vibe.
Plaintiff Games Workshop Limited (“Games Workshop”) respectfully submits this Memorandum in support of its motion to clarify now, while there may be time to remedy the matter during discovery, the consequences of Chapterhouse’s failure to comply with two prior Court orders in this case regarding discovery and its admitted failure to preserve documents. For the sake of brevity, Games Workshop has not included with this motion all correspondence seeking to resolve these matters without Court intervention.
Short version is that GW's legal team continue to make things hard from themselves, in this case either through incompetence or malice they did not provide all the information that they were required toand stated they had supplied it.
As such when the judge gave his decision GW had all ready been declined the copyright but they failed to mention this, CH's lawyers are now requesting that the decision be looked at again due to this.
I should state that I am not a lawyer I just have a lot of free time at the moment to sit and read Pacer and the inane claims made by GW in there 150 page submissions
Since the USPTO rejected their copyright application and GW decided that they wouldn't attempt to appeal the rejection...instead rely on the outcome of this case, CHS is taking that as a defacto acceptance of the rejection. As a result, they are going to refile the paperwork which they had filed previously regarding a reconsideration of the overall position of the court on the underlying shoulder pad shape.
2) Second being GW...
They say that CHS hasn't been forth coming with everything that GW wants to see. Part of the information is regarding communications with the designers and other company related information. Part of the information is regarding advertisements and other public communications (for example, the CHS thread here in the news section). They want the judge to slap their hand and make them show it (with the possibility of the judge doing more than just slapping their hands).
The majority of the document is just showing examples of posts and what not which GW tracked down that CHS didn't actually produce. While they are accurate in terms of a specific request to produce documents like those, in this day and age - companies who work online and interact with customers on forums like CHS does would generate hundreds of pages of documents each day (if not more depending on how they formatted them).
Of course, it is somewhat ironic considering that GW hasn't been able to show a single employment contract which actually shows copyright assignments and had only been able to gain assignments after the fact (which some could argue were gained under false pretense).
As always, thanks for breaking this down into non-attorney speak .
A couple of questions if you don't mind;
1) Since it appears GW didn't file this lack of disclosure until after CHS filed the trademark issues--is this really more a motion of spite? IE--usually as a professional courtesy, certain grey areas of disclosure is not brought up--but since you made me look bad in front of the judge...
2) How reasonable is GW's claim? As a non-attorney, it seems asinine to expect someone to constantly Google discussions regarding someone's product.
As always, thanks for breaking this down into non-attorney speak .
A couple of questions if you don't mind;
1) Since it appears GW didn't file this lack of disclosure until after CHS rose the trademark issues--is this really more a motion of spite? IE--usually as a professional courtesy, certain grey areas of disclosure is not brought up--but since you made me look bad in front of the judge...
2) How reasonable is GW's claim? As a non-attorney, it seems asinine to expect someone to constantly Google discussions regarding someone's product.
Thanks!
Some parts of GW's claim are very reasonable but they are buried in huge piles of rubbish, but in most cases they have been unable to provide any evidence of actually having any copyright prior to the case beginning. In the majority of cases there stating that because the item in question was in a copyrighted product such as the old citadel catalogues or the codex's and rulebooks then they are claiming copyright.
However as far as I am aware that's not how it works and individual items must be registered on there own merits and as such if ruled in this way then pretty much nothing GW has produced is copyrighted.
Also a big part of GW's claim is that there products are effectively art and as such should be treated as such legally, which then changes the rules regarding copyright.
This is also important in regards to a ruling in the English/European courts regarding toy soldiers,action figures etc being covered only by design rights and as such only being protected for 25 years as opposed to being sculptures which can be copyrighted indefinetly if you actually bother
This also the most likely reason this case is being fought in the US rather than UK courts.
In regards to your specific questions I don't think it's spite as much as trying to deflect attention away from there own lack of compliance, GW have made a number of rather awkward requests specifically trying to cause CH to fail to respond, there request for copies of conversations on 3rd party forums is just one of them.
2) Like I said, in today's age - I think it is a bit of a stretch to provide all of the information which they are requesting. Some of it isn't so much (discussions with designers for example) - however...if CHS were to request the same information from GW, they wouldn't be able to provide it either. With most the design work having had happened 30 some odd years ago, I think they would be hard pressed to produce a single design document.
BTW - it is important to note that CHS doesn't have to provide all discussions of their products...only the ones that they initiate or take part in. For example, if I were to write a blog post about them - they wouldn't need to produce that. However, if they were to participate in a discussion here about their products (answering a question about a release date or a size question perhaps) then by the letter of the discovery request - it would need to be produced. That is a bit over burdensome as I am sure that there are dozens of forums with hundreds of threads regarding their products and the vast majority of them will have mentioned GW in some way (also part of the discovery relevance criteria...).
1) Yes - it does appear that a lot of what GW is doing is simply out of spite. Though it isn't something which I find all that surprising - the current leadership of that company is a bit of that way...
1) Yes - it does appear that a lot of what GW is doing is simply out of spite. Though it isn't something which I find all that surprising - the current leadership of that company is a bit of that way...
Well tbh the whole case is out of spite as I doubt CH were having any effect on GW's sales other than increasing them as CH mostly sold additional parts that needed a GW product in the first place
As always, thanks for breaking this down into non-attorney speak .
A couple of questions if you don't mind;
1) Since it appears GW didn't file this lack of disclosure until after CHS rose the trademark issues--is this really more a motion of spite? IE--usually as a professional courtesy, certain grey areas of disclosure is not brought up--but since you made me look bad in front of the judge...
2) How reasonable is GW's claim? As a non-attorney, it seems asinine to expect someone to constantly Google discussions regarding someone's product.
Thanks!
Some parts of GW's claim are very reasonable but they are buried in huge piles of rubbish, but in most cases they have been unable to provide any evidence of actually having any copyright prior to the case beginning. In the majority of cases there stating that because the item in question was in a copyrighted product such as the old citadel catalogues or the codex's and rulebooks then they are claiming copyright.
However as far as I am aware that's not how it works and individual items must be registered on there own merits and as such if ruled in this way then pretty much nothing GW has produced is copyrighted.
Also a big part of GW's claim is that there products are effectively art and as such should be treated as such legally, which then changes the rules regarding copyright.
This is also important in regards to a ruling in the English/European courts regarding toy soldiers,action figures etc being covered only by design rights and as such only being protected for 25 years as opposed to being sculptures which can be copyrighted indefinetly if you actually bother
This also the most likely reason this case is being fought in the US rather than UK courts.
In regards to your specific questions I don't think it's spite as much as trying to deflect attention away from there own lack of compliance, GW have made a number of rather awkward requests specifically trying to cause CH to fail to respond, there request for copies of conversations on 3rd party forums is just one of them.
Yes. That is why it would be important to actually see what the copyright registration is given to. If you take a look at the rejection letter, it sites the warning text as being something which is copyrighted (can't think of the exact wording off the top of my head...but something along the lines of "This has small parts, don't feed it to children or imbeciles"). If each of the registrations are actually registering those aspects as opposed to the actual product - then GW could have significant problems...as no one is copying GW's packaging.
With the catalogs in particular it is noteworthy to understand that you can copyright a phone book - a directory of readily available facts. You can not however copyright the individual phones numbers, so anyone is able to take those numbers and create their own directory from them. Just because a copyright might have been granted to something like their catalog - it doesn't actually reflect that the material contained in would be copyright protected (much of it would be of course).
So far - the existing trial date is still standing AFAIK...April of this year. Effectively that will mean that both sides can continue doing what they are doing right up until then, at which point it goes into the specific trial aspects of jury selection and actual proceedings.
The cynic in me thinks that this type of a motion by GW this late in the game is somewhat of a stall tactic (if it wasn't for the new case being rolled into the old case, discovery would be closed and this wouldn't be allowed). Were GW to come into a few thousand additional pages of documents they needed to review - they might be able to push the trial date back again.
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What I think would be interesting though in light of this case as well as the Space Marine trademark fiasco would be for someone in the UK to file for a License of Right against GW. Would only end up costing £65.00 - and I am sure it would cause all sorts of butt clenching in Nottingham.
See, in the UK (and EU in general) you have 4 types of IP which are set out. Patents, Copyrights, Trademarks and Designs.
Generally speaking, patents deal with inventions of some form. If you create a new bit of software to allow for better file compression or a lightbulb which never burns out and uses half the power of an existing bulb - you could get a patent to protect that for a specific term (it varies based on the item and country - but for giggles lets just say 10 years).
If you are an artist and you write a book, paint a painting, compose a song or create some other form of artwork - you get a copyright. That lasts...well, it may as well last forever now. Your life span, plus 70 some odd years until the next extension of terms is legislated (again - the specific term varies some...though the Boerne convention dictates a minimum which is so long as to be irrelevant to this discussion).
If you are a company and sell stuff - for example, Games Workshop selling miniatures under the mark Citadel Miniatures you can get a trademark. Those last as long as you continue doing business with those names.
The important thing though is design rights. We don't have those in the US (it is all or nothing under copyrights for us). What the design right does is for products which are not art (in this case toy soldiers) the originator has an exclusive right to produce that product for 5 years (can be extended to 10 years with a renewal). After that period of time though - anyone can apply for a license of right to produce that product. After a period of 10 years (or 15 if they renew) the originator's design right expires and it becomes open to everyone without needing a license of right.
Unfortunately - because of our all or nothing approach, it doesn't become free for all here. Since we don't have laws covering design rights - the toys are covered by copyright laws...and as a result, this case continues. What may be possible though is to sue in the UK for a license right (or have the design right dispute adjucated by the IPO) and have those findings enforced in the US (as you would have contract law in play as well as copyright law - and generally contracts trump copyrights).
It may be one of the reasons why all the various knock-off companies in the UK and EU in general have been left alone by the GW dogs.
See, in the UK (and EU in general) you have 4 types of IP which are set out. Patents, Copyrights, Trademarks and Designs.
Generally speaking, patents deal with inventions of some form. If you create a new bit of software to allow for better file compression or a lightbulb which never burns out and uses half the power of an existing bulb - you could get a patent to protect that for a specific term (it varies based on the item and country - but for giggles lets just say 10 years).
If you are an artist and you write a book, paint a painting, compose a song or create some other form of artwork - you get a copyright. That lasts...well, it may as well last forever now. Your life span, plus 70 some odd years until the next extension of terms is legislated (again - the specific term varies some...though the Boerne convention dictates a minimum which is so long as to be irrelevant to this discussion).
If you are a company and sell stuff - for example, Games Workshop selling miniatures under the mark Citadel Miniatures you can get a trademark. Those last as long as you continue doing business with those names.
The important thing though is design rights. We don't have those in the US (it is all or nothing under copyrights for us). What the design right does is for products which are not art (in this case toy soldiers) the originator has an exclusive right to produce that product for 5 years (can be extended to 10 years with a renewal). After that period of time though - anyone can apply for a license of right to produce that product. After a period of 10 years (or 15 if they renew) the originator's design right expires and it becomes open to everyone without needing a license of right.
Unfortunately - because of our all or nothing approach, it doesn't become free for all here. Since we don't have laws covering design rights - the toys are covered by copyright laws...and as a result, this case continues. What may be possible though is to sue in the UK for a license right (or have the design right dispute adjucated by the IPO) and have those findings enforced in the US (as you would have contract law in play as well as copyright law - and generally contracts trump copyrights).
It may be one of the reasons why all the various knock-off companies in the UK and EU in general have been left alone by the GW dogs.
One question about the license of right; to whom is the application sent? The government or the originator?
Lordhat wrote: One question about the license of right; to whom is the application sent? The government or the originator?
Well, based on my understanding of the process (again - it isn't something we have in the US - and my contact with it is somewhat more casual) you would start by sending a letter to GW requesting a license of right if it would still be under their initial design right period. Technically speaking, if the design right had fully expired, you wouldn't even need to apply for the license of right...it is granted by default (but lack of the challenge prevents you from achieving the official ruling on the issue).
Alternatively, you can file with the IPO to determine the following:
Whether design right exists in the whole, or part, of an article.
When the design right came into force, and when it will expire.
The identity of the person who has the first claim to the design right.
In the case of GW, they would look at the product in question (say something like a Tau Crisis Suit) and determine if it is a design (in light of the LucasFilm ruling - it would be). They would then look at the initial release date of the product to see when the design right would have been established. Based on that, they would look to see if it was a registered design or an unregistered design and determine when the design right will expire (it would have expired 10 years after first sale since it is an unregistered design). If the design right is still in effect - they will tell you who has the design right (GW in this case).
If you send the letter to GW and they ignore it or say no - then you can file for a settlement of license of right through the IPO:
The ability to license the production rights is non-optional under UK law. If the period of time has expired, they have to consider licensing the product to you. If they do not, or if the terms of the license are unreasonable (say requiring unreasonable fees) than the IPO is authorized to intervene and set reasonable terms.
So in USA, if the relevant institution USPTO rejects a copyright claim for being too generic, the company can always opt for taking it to a local jury of layman to decide? So bombarding layman juries with absurd copyright claims makes sense, as once in a while, those laymen may overlook a thing that experts don't?
A couple of things reduce the number of bs trials:
1) Jury trials are fantastically expensive.
2) You need to put the copyright office on notice that you intend to go to trial despite their rejection. They have the option to show up at your trial and argue, or just file a motion saying 'We are the copyright office and this is bs'. Tends to be persuasive.
3) If it is a US work and it isn't registered you don't get the crazy statutory damages / remedies that would make a jury trial worthwhile.
czakk wrote: A couple of things reduce the number of bs trials:
1) Jury trials are fantastically expensive.
2) You need to put the copyright office on notice that you intend to go to trial despite their rejection. They have the option to show up at your trial and argue, or just file a motion saying 'We are the copyright office and this is bs'. Tends to be persuasive.
3) If it is a US work and it isn't registered you don't get the crazy statutory damages / remedies that would make a jury trial worthwhile.
Remember though, because of the way our system is set up - if a defendant fails to put up a defense, it is an effective win for the plaintiff (something which companies like GW count on). Very rarely will a judge intervene and say a suit is over reaching without a defense attorney saying that they are first.
So - a company like GW slaps a copyright/trademark claim down on paper. They issue a C&D. They file a suit in Tim-buck-too compared to where the defendant resides. The defendant shirks away in fear when they get a quote on the costs to put up a defense from an IP attorney. The judge finds in favor of the plaintiff since the defendant fails to show up.
The costs are minimal for GW in that regard (few thousand for the various fees relating to the initial court filings and what not) - and it creates an air around them that their IP is unassailable.
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rigeld2 wrote: And I'm guessing that someone in the US can't just apply for the design right in the UK.
I haven't seen anything in the law which specifically requires it - however, I also haven't found any prior history of it being done outside of the UK. It definitely would be easier in the UK...though I don't believe that is actually mandatory by statute.
Kroothawk wrote: So in USA, if the relevant institution USPTO rejects a copyright claim for being too generic, the company can always opt for taking it to a local jury of layman to decide? So bombarding layman juries with absurd copyright claims makes sense, as once in a while, those laymen may overlook a thing that experts don't?
Yes because in the UK and the US it's perceived that the courts should be able to hold Government agencies and the Government themselves to account. It's an excellent way of keeping them in check and making sure that an individual's rights don't get trampled by the executive.
Kroothawk wrote: So in USA, if the relevant institution USPTO rejects a copyright claim for being too generic, the company can always opt for taking it to a local jury of layman to decide? So bombarding layman juries with absurd copyright claims makes sense, as once in a while, those laymen may overlook a thing that experts don't?
Yes because in the UK and the US it's perceived that the courts should be able to hold Government agencies and the Government themselves to account. It's an excellent way of keeping them in check and making sure that an individual's rights don't get trampled by the executive.
Sure, but I doubt that it will change the USPTO's judgement of the matter, and if it does W&S have a valid claim of bribery against the USPTO as well as Moske and his firm, likely resulting in sanctions / disbarrments.
Whoops, sorry about that, I must have crossed my eyes. Duh.
(note to self: avoid breakfast cereals named 'stupid' and definately don't put it in a big bowl.)
Without waiving and subject to these objections and its general objections, Chapterhouse states that, in support of its affirmative defense that Plaintiff’s claims are barred because its copyright and trademark registrations were obtained through fraud on the Copyright Office or the Patent and Trademark Office, Chapterhouse relies upon each piece of correspondence with the Copyright Office or the Patent and Trademark Office that Games Workshop has, withheld from production or failed to timely produce in this lawsuit (which includes all correspondence with each administrative office to the best of Chapterhouse’s understanding).
Chronepsis wrote: Flying them in to testify as an expert witness isn't bribery.
Expert witnesses are paid for their services, so it is essentially impossible to bribe them (as in money they are not supposed to take), its all out there in the open.
Conflict of interest; you can't pay a government employee to appear in court. If they do so, it will be at the behest of the court and under the authority of their office.
Sort of - though you can fly a government agent in to testify as an expert in their field and only reimburse them for their expenses (travel, lodging, per diem) as well as any lost wages.
Chronepsis wrote: Flying them in to testify as an expert witness isn't bribery.
Expert witnesses are paid for their services, so it is essentially impossible to bribe them (as in money they are not supposed to take), its all out there in the open.
Ya'll might find the comments to this article interesting. The article is generally about the reliability of expert testimony and appeared in the January issue of The Jury Expert, which is a publication of the American Society of Trial Consultants. The commentator, who is the president-elect of the American Society of Trial Consultants, goes into what he has seen as a shift in the way that jurors perceive experts, and he talks in particular about the impact of the fees charged by hired experts, which always comes into evidence.
weeble1000 wrote: Ya'll might find the comments to this article interesting. The article is generally about the reliability of expert testimony and appeared in the January issue of The Jury Expert, which is a publication of the American Society of Trial Consultants. The commentator, who is the president-elect of the American Society of Trial Consultants, goes into what he has seen as a shift in the way that jurors perceive experts, and he talks in particular about the impact of the fees charged by hired experts, which always comes into evidence.
weeble1000 wrote: Ya'll might find the comments to this article interesting. The article is generally about the reliability of expert testimony and appeared in the January issue of The Jury Expert, which is a publication of the American Society of Trial Consultants. The commentator, who is the president-elect of the American Society of Trial Consultants, goes into what he has seen as a shift in the way that jurors perceive experts, and he talks in particular about the impact of the fees charged by hired experts, which always comes into evidence.
I think the most important thing is the belief (often rightly so) that testimony can be bought and paid for to reflect any position which you want it to reflect. In that regard, unpaid experts - especially if they are a disinterested party (not connected directly to either side of the case) quite often still are able to sway the jury by their testimony. That shift has been helped along with the various law shows which often show the "experts" as hacks for the evil side of the case.
My memory is foggy - but I seem to recall an article in a technology magazine by one of the EFF staffers (might have been a different group in the same vein though...) who mentioned that because most the work they are involved with is volunteer and unpaid (beyond the basics like travel/lodging) they are able to still leverage their expert witnesses. Since they are viewed as holding the position of rights and freedoms by many, there witnesses are given an altruistic view from a lot of jurors.
We have a procedure around here where the judge can order or appoint (or the parties can agree to having) joint experts to deal with the issue of tame experts.
But we don't really do jury trials for civil matters, so the issues are a bit different.
Anyhooo.... It would have been to GWs advantage to get the registration sorted ahead of time - now they don't get the luxury of administrative appeals / tribunals and instead get the fun of a hostile defendant and possibly a hostile copyright office lawyer.
This is not to deny that expert witnesses have a better knowledge of their subject than the ordinary person in the street, yet it does show that "even monkeys can fall from a tree" as the Japanese say.
There is a general attitude that science is a certainty, which is incorrect in both ways.
Am I right in thinking that the list of posts made by Nicholas Villacci and messages to him via facebook has been placed "under seal", so not viewable by us (the public)?
If so, why would this be? Surely they are already publicly viewable, aside from the "handful of" facebook messages?
So im very confused by this whole affair, can anyone give a synopsis of whats going on and what stage its at? (and whos 'in the lead' as it were), as this thread has become a bit of a monster and I don't really understand half of whats being said anyway. (so idiot speak please )
GW sued for X, CHS says "prove that you own X", GW fails to prove ownership.
Then a lot of things happened, items were added to the claim, bla bla bla.
Then in the last 8 months this happened: Then GW files for copyright on a blank SM shoulder pad. Copyright office declines the copyright. GW fails to mention this to the judge. Judge rules that shoulder pad can go to trial(many items were thrown out of the case). GW then takes that ruling to the Copyright office and says that they need to copyright it. GW still fails to report this to the judge. CHS finds out about this, tells judge. Judge says that CHS has to wait until Copyright office makes a final decision. Copyright office still says no. CHS refiles their motion to have the shoulder pad thrown out. GW stalls, and in doing so loses the option to appeal the Copyright offices' decision and leaves it solely in the hands of the trial, at which the Copyright Office will likely show up and explain how/why the shoulder can't be copyrighted.
All the while GW spends hundreds of thousands in legal fees, and CHS lulz and continues business.
Aerethan wrote: GW sued for X, CHS says "prove that you own X", GW fails to prove ownership.
Then a lot of things happened, items were added to the claim, bla bla bla.
Then in the last 8 months this happened:
Then GW files for copyright on a blank SM shoulder pad.
Copyright office declines the copyright.
GW fails to mention this to the judge.
Judge rules that shoulder pad can go to trial(many items were thrown out of the case).
GW then takes that ruling to the Copyright office and says that they need to copyright it.
GW still fails to report this to the judge.
CHS finds out about this, tells judge.
Judge says that CHS has to wait until Copyright office makes a final decision.
Copyright office still says no.
CHS refiles their motion to have the shoulder pad thrown out.
GW stalls, and in doing so loses the option to appeal the Copyright offices' decision and leaves it solely in the hands of the trial, at which the Copyright Office will likely show up and explain how/why the shoulder can't be copyrighted.
All the while GW spends hundreds of thousands in legal fees, and CHS lulz and continues business.
Aerethan wrote: GW sued for X, CHS says "prove that you own X", GW fails to prove ownership.
Then a lot of things happened, items were added to the claim, bla bla bla.
Then in the last 8 months this happened:
Then GW files for copyright on a blank SM shoulder pad.
Copyright office declines the copyright.
GW fails to mention this to the judge.
Judge rules that shoulder pad can go to trial(many items were thrown out of the case).
GW then takes that ruling to the Copyright office and says that they need to copyright it.
GW still fails to report this to the judge.
CHS finds out about this, tells judge.
Judge says that CHS has to wait until Copyright office makes a final decision.
Copyright office still says no.
CHS refiles their motion to have the shoulder pad thrown out.
GW stalls, and in doing so loses the option to appeal the Copyright offices' decision and leaves it solely in the hands of the trial, at which the Copyright Office will likely show up and explain how/why the shoulder can't be copyrighted.
All the while GW spends hundreds of thousands in legal fees, and CHS lulz and continues business.
More or less.
but as this will be a jury trial we have the added fun of real people who know nothing about copyright law (and may not pay attention in trial involved)
so they may do the unexpected (like letting GW win on all remaining counts)
whatever happens you can bet on more years of appeals
Aerethan wrote: GW sued for X, CHS says "prove that you own X", GW fails to prove ownership.
Then a lot of things happened, items were added to the claim, bla bla bla.
Then in the last 8 months this happened:
Then GW files for copyright on a blank SM shoulder pad.
Copyright office declines the copyright.
GW fails to mention this to the judge.
Judge rules that shoulder pad can go to trial(many items were thrown out of the case).
GW then takes that ruling to the Copyright office and says that they need to copyright it.
GW still fails to report this to the judge.
CHS finds out about this, tells judge.
Judge says that CHS has to wait until Copyright office makes a final decision.
Copyright office still says no.
CHS refiles their motion to have the shoulder pad thrown out.
GW stalls, and in doing so loses the option to appeal the Copyright offices' decision and leaves it solely in the hands of the trial, at which the Copyright Office will likely show up and explain how/why the shoulder can't be copyrighted.
All the while GW spends hundreds of thousands in legal fees, and CHS lulz and continues business.
More or less.
but as this will be a jury trial we have the added fun of real people who know nothing about copyright law (and may not pay attention in trial involved)
so they may do the unexpected (like letting GW win on all remaining counts)
whatever happens you can bet on more years of appeals
Very true. It's certainly a major flaw in the system that any random person can decide the fate of a matter than may be far beyond their own comprehension, like giving a child launch codes and the key.
Now what we have to hope for is that CHS's legal team does a proper job of explaining copyrights and the decision of the USPTO well enough that laymen understand it and are able to make a more informed ruling.
I'm not sure if the trial will have lawyers pointing out all the fun details like GW and Moskins shady practices in regards to this case, which is a shame because it certainly would affect ones opinion of then.
As I said before, this is one trial that I'd actually pay to be a juror on.
but as this will be a jury trial we have the added fun of real people who know nothing about copyright law (and may not pay attention in trial involved)
so they may do the unexpected (like letting GW win on all remaining counts)
whatever happens you can bet on more years of appeals
If it will be a jury trial, then the request for CHS' various internet postings may be to set-up character assassination. If they can't win based on the law or facts, make the jury be disgusted with CHS. Before the lawsuit, he was not viewed in the most positive light on some forums and was very combative and dismissive toward detractors.
Very true. It's certainly a major flaw in the system that any random person can decide the fate of a matter than may be far beyond their own comprehension, like giving a child launch codes and the key.
Hey now. It is easy to bash the American jury system, but it is the greatest system in the world. There is something to be said for collective wisdom, and if there are problems in the system, it is not that there are juries, it is far higher up the food chain. The system works 95% of the time, which is frankly an incredible achievement of democratic government. The 5% of times it does not work are conspicuous precisely because the system is a huge part of what keeps American citizens in the type of freedom that we enjoy every single day. It is painful to see injustice because we are used to seeing good justice done.
So don't be too quick to slam the jury system, especially if it is because you don't agree with a particular decision made by one jury. I'm not saying you have but if I am going to off-topic soap box I'm going to get it all out there. I see hundreds of people deliberate on wide ranging issues and it has increased my confidence in the system, rather than eroding it.
but as this will be a jury trial we have the added fun of real people who know nothing about copyright law (and may not pay attention in trial involved)
so they may do the unexpected (like letting GW win on all remaining counts)
whatever happens you can bet on more years of appeals
If it will be a jury trial, then the request for CHS' various internet postings may be to set-up character assassination. If they can't win based on the law or facts, make the jury be disgusted with CHS. Before the lawsuit, he was not viewed in the most positive light on some forums and was very combative and dismissive toward detractors.
No, the requests for CHS communications are fishing for statements like "Make this object look like the picture on page 46" or "Make that part look more like the helmet on 'Eldar Warlock with Witch Blade' as opposed to 'Eldar Farseer with Staff'". They are hoping to find words which amount to telling their sculptors to copy specific figures or pictures as opposed to using descriptions, styles and themes of the various miniatures to influence the sculptures.
Jury trials are a bit of a wild card - though you really are not necessarily better off having a bench trial where the judge decides everything as opposed to a jury trial. A judge can not really choose to ignore a law, no matter how dumb it might be - their job is the enforce them as they are written. A jury on the other hand is perfectly within their rights to say...they might have done something against that law, but the law is stupid - so I won't find against them. More often then not, the jury would be inclined to do that for a small group or individual as opposed to a much larger company.
In the realm of IP law, there are a lot of stupid things that your average person off the street wouldn't think is a good law and may be more willing to nullify.
Not directly...no. Because lawyers, like judges, are agents of the court (law) - they can't directly say that the law should be ignored. However, that doesn't stop it from happening with some frequency. I haven't looked at anything recently - but I recall in the late 1990s or early 2000s (still seems odd to type that) it was estimated to be around 5% or so of jury trials had been effectively nullified in one way or another (either outright acquittal or hung juries and the like).
I don't think any standing jury instructions include jury nullification, though I may be wrong on that. I know some courts really do not like the idea, though it has been recognized by the supreme court as valid (granted - I think that was a hundred years ago or so).
In this particular case it is important as even if the jurors believe for whatever reason that the GW lawyers demonstrate that CHS misused their trademarks - the jurors may well decide during deliberation that the misuse should actually be allowed because of the nature of CHS business. In the same way, certain copyright claims by GW may end up being proven...but the jurors may decide that the demand generated by GW introducing figures in their books but then not including figures to fulfill that (various tyranids, jetbike warlock/farseer...) position, the transgression should not be punished.
It's a bit of a shame jury nullification hasn't been given more attention. The notion of it is that its one our systems checks the against judicial and litigious tyranny. It's frowned upon because a jury is not trained in maters of law and it benefits the prestige of the system that law only be interpreted by those in legal professions. Examples of where it was intended to be used are to limit attempts to broadly stretch the interpretation of the letter of the law beyond the intended purpose or where mitigating circumstances make the execution of the law unjust.
An example of where scholars believe the principle should have been applied was a case where a nascar driver who lived on a ranch, got cought in a blizzard and in his attempt to survive and make it home got lossed and crossed into a wildlife reserve on his ATV... He was found guilty of trespass and operating a motor vehicle on a reserve and paid several tens of thousands of dollars in fines with mandatory jail time. In this way an anti-poaching law was used against someone who was just trying to not die, but the strict liability of these laws left no way besides jury nullification to say what he did was okay, but they weren't informed of that right.
I study juror and jury behavior for a living. Jurors by and large make good faith attempts to follow the law and their instructions from the Court. Problems can come in when jurors misunderstand a point of law, such as not understanding that something does not have to be patented to be prior art.
Now, that said, what you will find is that jurors can make a decision about a case that is motivated by something other than a legal theory, and then do their level best to make that decision fit within their role of applying the facts as they find them to the law. A statement of "I think the Plaintiff's expert is more convincing" is a perfectly rational and appropriate interpretation for a juror to make, but it may have been strongly colored by, say, a perception that the Defendant tried to take advantage of the Plaintiff.
It would be incredibly rare in the extreme for a juror to actually say that they want to find a certain way that is inconsistent with a law because the law is stupid, wrong, or unjust.
Most cases that go to trial involve disagreements over the interpretation of both the law and the facts such that whoever a juror wants to find for, proper tools exist to render such a verdict.
Where jurors will flagrantly disregard instructions from the Court is when it comes to determining monetary damages. First, damages are one of the clearest indications of a juror's emotional response to a case. Calculating damages allows for a great deal of variance and generally speaking, if a juror is mad as hell, damages will be higher. So too, if a juror feels that a case is weak, but feels compelled to find a certain way because of a point of law or a technicality, that juror will often want to moderate damages.
Now, once you factor in group dynamics, arriving at a damages amount almost never follows proper procedure. Put 12 people in a room who all feel that a different number should be awarded, some whose math is wrong, some who do not understand the evidence, some who disregard the evidence, some who compromised on liability but don't really agree with the decision, and you have a tough situation in which to create unanimous agreement.
So what happens is that the group finds a number that everyone can live with, regardless of how it was calculated. Sometimes they put it down without rationalizing how it was arrived at, other times they come up with a completely absurd calculation that produces the desired number by a process more akin to alchemy than mathematics. But whatever the process, the number is often a distillation of the various emotional reactions to a case.
Here is a fun story for ya'll to chew on. I once worked a case where the client was principally concerned about increasing the damages award in a case. We ran a project that involved a presentation to one group of participants who deliberated and following that the same presentation to a second group of participants.
In the first session the Plaintiff's damages request was, let's fake up a number and say $200,000. The participants returned an award of $100,000. The client comes to us between sessions lamenting the low award. I tell him that in his next session he should say $400,000 instead of $200,000. The participants come back at $200,000. You see, the participants wanted to give the Plaintiff half of what it asked for, it did not matter what the amount was or how it was calculated. The Plaintiff only deserved 50% in the minds of the participants.
Very true. It's certainly a major flaw in the system that any random person can decide the fate of a matter than may be far beyond their own comprehension, like giving a child launch codes and the key.
Hey now. It is easy to bash the American jury system, but it is the greatest system in the world. There is something to be said for collective wisdom, and if there are problems in the system, it is not that there are juries, it is far higher up the food chain. The system works 95% of the time, which is frankly an incredible achievement of democratic government. The 5% of times it does not work are conspicuous precisely because the system is a huge part of what keeps American citizens in the type of freedom that we enjoy every single day. It is painful to see injustice because we are used to seeing good justice done.
My missus is from California and as a result we spend most of our time there, so I'm not as used to this type of Greatest nation in the world flag waving nonsense that somewhat embarrassingly they appear to practice in other parts of the states, but I have to ask, are you actually being serious?
If you aren't I congratulate you on the mastery of sarcasm.
If you are, I suggest you Google the OJ Simpson trial, and then work your way on from there!
Very true. It's certainly a major flaw in the system that any random person can decide the fate of a matter than may be far beyond their own comprehension, like giving a child launch codes and the key.
Hey now. It is easy to bash the American jury system, but it is the greatest system in the world. There is something to be said for collective wisdom, and if there are problems in the system, it is not that there are juries, it is far higher up the food chain. The system works 95% of the time, which is frankly an incredible achievement of democratic government. The 5% of times it does not work are conspicuous precisely because the system is a huge part of what keeps American citizens in the type of freedom that we enjoy every single day. It is painful to see injustice because we are used to seeing good justice done.
My missus is from California and as a result we spend most of our time there, so I'm not as used to this type of Greatest nation in the world flag waving nonsense that somewhat embarrassingly they appear to practice in other parts of the states, but I have to ask, are you actually being serious?
If you aren't I congratulate you on the mastery of sarcasm.
If you are, I suggest you Google the OJ Simpson trial, and then work your way on from there!
Agreed, that came over as fairly jingo-istic. Also, a pretty illogical statement. If it was so easy to bash the system (which I agree, it is), how can it be the best system in the world? Surely one would expect such a system to be rather hard to attack, especially when compared to similar systems. And which other judicial systems did he check on during your research? There are at least 15 other countries with jury systems of some sort, most of which do not follow the anglo-saxon common law tradition, plus another 10-20 more or less democratic judicial systems without juries at all.
I am absolutely being serious. I believe whole-heartedly in the jury system. It is a cornerstone of American democracy. I work incredibly closely with the jury system on a daily basis and from what I have seen it works; not every time, not perfectly, but in an overwhelmingly, staggeringly huge margin it works precisely as it is intended to.
Like I said, the failures tend to be conspicuous because the system works so well. You mentioned OJ Simpson. One glaring example of a show trial that had a whole lot more going wrong than a failure of the jury system. And how old is that case now?
For every OJ Simpson there are thousands of cases where good justice is done. What about Casey Anthony, if you want to focus on conspicuous show trials? That case was a monumental failure of the criminal justice system that was saved by a group of jurors taking their task seriously and making a decision consistent with the law and the philosophy of justice that is a fundamental tenant of our democracy.
The US is by far not a perfect country, and there is a great deal to criticize about government today, but criticizing the jury system is like criticizing the US Constitution, which at its core I don't think anyone would say is a terrible idea, but rather the contrary.
Agreed- there's a lot that I'd want to say on that, but I think it's best left to it's own thread!
But thanks again to weeble and all the other folks who work as lawyers / in the area of law for continuing to interpret this case into plain english for us
Mannahnin wrote: Multiple off topic posts deleted. That's two moderators and two other members who've posted this reminder just this page. Seriously, guys.
Dudes, why dont you give the "delete button" a rest, let people talk, it might get off track a little, but it will get back on it as soon as there are updates to the main topic, every other post i see there is, mod warning, mod edit, mod deleted, mod closed...
This is a forum, discussion is implied, otherwise we would be reading blogs.
Mannahnin wrote: Multiple off topic posts deleted. That's two moderators and two other members who've posted this reminder just this page. Seriously, guys.
Dudes, why dont you give the "delete button" a rest, let people talk, it might get off track a little, but it will get back on it as soon as there are updates to the main topic, every other post i see there is, mod warning, mod edit, mod deleted, mod closed...
This is a forum, discussion is implied, otherwise we would be reading blogs.
Because a LOT of people are following this with e-mail alerts. Every time someone posts hundreds of people get an e-mail. It clogs up the servers and spams the people looking for news on this topic.
Please stay on topic. If anyone has a question about moderation, please PM a moderator. If you would like to discuss moderation, please make a new thread either in Dakka Discussions or in Nuts & Bolts. Thanks!
This docket entry was made by the Clerk on Thursday, February 14, 2013:
MINUTE entry before Honorable Matthew F. Kennelly:Hearing held on Motion to seal [284]. Motion is entered and continued generally. (or, )
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Feb 14 was GWs Motion to Enforce Prior Discovery Orders, and CHS's response - 284 was CHS's request to file this under seal:
CHS:
"Exhibit D is correspondence between Games Workshop and Stephen Smith. Games Workshop has designated the correspondence Highly Confidential – Attorneys’ Eyes Only under the protective order.
In order to provide this Court with all of the information relevant to Chapterhouse’s Opposition to Games Workshop’s Motion to Enforce Prior Discovery Orders, Chapterhouse requests that this Court grant it leave to file the above identified document under seal pursuant to L.R. 26.2."
So, in that link GW is stating that Chapter House didn't give them a full list of every site they made a statement about their goods on? Okay..
And that someone commenting on their posts stating that it looks like GW's stuff is material in some way? Again, okay..
I'm not sure why it matters if Bob in New Zealand thinks that a shoulder pad produced by Chapter House looks similar to a shoulder pad produced by GW or not. What matters is whether GW has an enforceable copyright on that shoulder pad and whether a judge/jury thinks it looks too similar.
Heck, CH had an expert state that a lot of GWs stuff was similar to preexistent armor and that was thrown out. Random Bob shouldn't have any more standing than a military history expert.
I think a lot of Games Workshop stuff looks like things that have been around for quite some time. Nids look like the creatures from Aliens or Starship troopers; necrons look like Terminators; marines look like power suited troopers on the covers of numerous sci-fi novels going way back... Should this matter? no.
But if it does, then CH or whoever can quote me that I think a lot of GWs stuff is neither new nor materially different from iconography established over the past couple thousand years of human history.
clively wrote: So, in that link GW is stating that Chapter House didn't give them a full list of every site they made a statement about their goods on? Okay..
And that someone commenting on their posts stating that it looks like GW's stuff is material in some way? Again, okay..
I'm not sure why it matters if Bob in New Zealand thinks that a shoulder pad produced by Chapter House looks similar to a shoulder pad produced by GW or not. What matters is whether GW has an enforceable copyright on that shoulder pad and whether a judge/jury thinks it looks too similar.
It matters because GW can say (and in fact, most of the premise of the case is) that someone could be confused and think that CH is offering a GW product thereby diluting GW's trademark.
Yes, they'd have to actually be granted the trademark in that case - but there are some things iirc that they actually do hold a valid trademark on. If someone mistakes a CH product for a GW product, GW can claim dilution.
It matters because GW can say (and in fact, most of the premise of the case is) that someone could be confused and think that CH is offering a GW product thereby diluting GW's trademark.
Yes, they'd have to actually be granted the trademark in that case - but there are some things iirc that they actually do hold a valid trademark on. If someone mistakes a CH product for a GW product, GW can claim dilution.
IANAL though, so that's just my understanding.
The only problem is the product sold. It requires the GW counterpart that it was modded for. Shoulderpads still dont come with the rest of the Space Marine. Tervigon parts still dont come with the Carnifex model, ect.
clively wrote: So, in that link GW is stating that Chapter House didn't give them a full list of every site they made a statement about their goods on? Okay..
And that someone commenting on their posts stating that it looks like GW's stuff is material in some way? Again, okay..
I'm not sure why it matters if Bob in New Zealand thinks that a shoulder pad produced by Chapter House looks similar to a shoulder pad produced by GW or not. What matters is whether GW has an enforceable copyright on that shoulder pad and whether a judge/jury thinks it looks too similar.
It matters because GW can say (and in fact, most of the premise of the case is) that someone could be confused and think that CH is offering a GW product thereby diluting GW's trademark.
Yes, they'd have to actually be granted the trademark in that case - but there are some things iirc that they actually do hold a valid trademark on. If someone mistakes a CH product for a GW product, GW can claim dilution.
IANAL though, so that's just my understanding.
The problem is that the suing company can have a sympathetic existing customer (to put it nicely) with a link to the suing company purposely claim confusion to help the company with their claim like what happened with Battlefoam's lawsuit prior to its being decided in the defendant's favor including paying the defandant's court costs.
In this instance though they'd be looking at people posting on CHS threads saying "it looks like GW's" but that's only an opinion and not an actual instance of confusion. By making a comparison these people must have an innate understanding which products are GW's and which are CHS'. Thus none of these statements are proof of confusion just the opinions of possible confussion.
rigeld2 wrote: Yes, fraud can happen.
That doesn't mean it always happens.
Yes - but it doesn't need to be fraud (at least not like it was in the Battlefoam case).
Here, the evidence that GW produced to support their claim of confusion came from people who clearly understood that CHS was not GW and was not selling GW products. They were not confused - they reported the activities of CHS to GW for whatever reason. In the threads, you don't find confusion - you find people who believe that CHS is copying GW (in terms of the people who go on about the comparison to GW/FW products).
Neither of those are evidence of confusion. For example, if I were to pop over to a site like Techcrunch and looked at news relating to MP3 players, tablets or phones - you would probably find mention of Apple, no matter what the core article might be about. It may be saying this product is faster than the Apple, it is heavier than the Apple, it is a better value than Apple... None of those comparisons are indicative of confusion between the product being discussed and the relevant Apple product to what they might be reviewing.
In the same way, you often see GW pop up in all discussions of miniatures. They may be comparing the size of the miniatures to GW figures (taller, shorter, slimmer, same sized...). They might be comparing price (better value, about the same price, cheaper than finecast). They might be comparing styles (more realistic, more cartoony, bigger shoulder pads...). None of those comparisons reflect a violation of GWs trademark, nor do they indicate confusion. Even if the company owner were to mention the GW product (we sculpt our stuff to be the same style/size as GW's stuff) that is still well within the realm of fair use and do not precipitate any confusion.
I think that was confusion regarding the comment on the Battlefoam case which is settled that was mentioned above. That one is over with - this one has a bit left in it.
Right - I'm aware of what is likely in the CHS threads, but I haven't bothered to read them so didn't want to say yea/nay. warboss mentioned a situation that would be fraud (to me). I was just originally pointing out what GW would be looking for (in my NAL opinion).
clively wrote: So, in that link GW is stating that Chapter House didn't give them a full list of every site they made a statement about their goods on? Okay..
And that someone commenting on their posts stating that it looks like GW's stuff is material in some way? Again, okay..
I'm not sure why it matters if Bob in New Zealand thinks that a shoulder pad produced by Chapter House looks similar to a shoulder pad produced by GW or not. What matters is whether GW has an enforceable copyright on that shoulder pad and whether a judge/jury thinks it looks too similar.
It matters because GW can say (and in fact, most of the premise of the case is) that someone could be confused and think that CH is offering a GW product thereby diluting GW's trademark.
Yes, they'd have to actually be granted the trademark in that case - but there are some things iirc that they actually do hold a valid trademark on. If someone mistakes a CH product for a GW product, GW can claim dilution.
IANAL though, so that's just my understanding.
It goes round and round in circles.
If GW do not "own" the copyright on a pauldron or the phrase "Space Marine", they can still legitimately own a TM on Space Marine and the sculptural design of a complete Space Marine model.
However if CH are merely offering compatible parts, the principle is well established in many markets, such as car parts, that they are allowed to refer to the original product in order to describe the use of their replacement part.
In other words, CH cannot say, "This is a Space Marine(TM) shoulder pad" but they can say, "This is a shoulder pad for a Space Marine(TM)".
If customers get confused thinking it is a GW part, that is GW's fault for producing items that are so generic that people get easily confused.
The individual parts are not trade-marked anyway.
Right from the beginning, GW's case essentially has been that anything they put into the 40K universe becomes their property when taken out of it. They argue from the general to the particular and then back to the general again.
I think GW's floundering in their case; that they have little if any evidence of trademark violation and little if any evidence of copyright infringement, but that they are hoping that combining very little proof of two distinctly seperate actions can exceed the burden of proof of either one. Maybe its GW's best shot, but it makes for a very nebulus and unfocused arguement, that lacks punch.
Some motions (discovery issues) are going to be ruled on.
Also, now that the copyright office has said "No" to GW and GW has waived its rights to appeal that decision, Chapterhouse will be refiling their motion to reconsider the summary judgement (trying to get the copyright on the shoulder pads thrown out), and then that will be ruled on at some point.
So while discussing this case with a GW friend of mine, his argument was thus: The case has zero to do with copyright and 100% to do with trademark.
He insists that the shoulderpad issue is a trademark issue and not a copyright issue, and that the lack of copyright on the pad is moot.
I didn't feel like arguing with him long on it, but his argument seemed way off. Can someone shed more light on the specifics of what it is GW is STILL suing over in regards to the pad itself(not the other items that are rolled into the case).
From my understanding, if the pad itself is not protected, than neither can the pad with basic geometric shapes added to it be protected by itself. I understand the entire space marine can be protected, but the pad itself cannot.
Furthermore, can basic geometric shapes be trademarked?
A fun point in the conversation which made me realize the blinders with which my friend lives his life was when he said that GW has NO competition. I tried to explain that negligible competition is still competition, and that ANY company that makes 28mm models and parts is in theory competition.
Aerethan wrote: So while discussing this case with a GW friend of mine, his argument was thus: The case has zero to do with copyright and 100% to do with trademark.
The majority of the claims are trademark related, and will be decided based on whether or not it is found that nominative use can be used in this manner (it has already been found to be a legal use of trademarks in the vast majority of other cases that it has been challenged in).
Aerethan wrote: He insists that the shoulderpad issue is a trademark issue and not a copyright issue, and that the lack of copyright on the pad is moot.
No. The shoulderpad shape and design is a copyright issue. That they are sold as "Shoulder Pads for Space Marines" is a trademark issue.
Aerethan wrote: I didn't feel like arguing with him long on it, but his argument seemed way off. Can someone shed more light on the specifics of what it is GW is STILL suing over in regards to the pad itself(not the other items that are rolled into the case).
If you dig through the documents you will find one which is the claims chart. That will state what GW finds offensive. More often than not, they don't say "Trademark" or "Copyright" rather they will point to a figure or picture that illustrates what is being sold. Sometimes it is clear that they are alleging trademark claims, other times you have to sort of use your melon. There are well over 100 claims, and only a small handful of them were dealt with in the initial summary judgement ruling (which may be back up in the air depending on what the judge decides to do regarding the USPTO issues).
Aerethan wrote: From my understanding, if the pad itself is not protected, than neither can the pad with basic geometric shapes added to it be protected by itself. I understand the entire space marine can be protected, but the pad itself cannot.
My lawyer speak is likely going to fail me at this hour...but the shoulder pad is generally what would be regarded as de minimus. They are too small to be covered under their own copyright and instead might be covered as part of a whole. Since the pad on its own doesn't actually reflect scale or proportions - those issues should not come into play (what looks large on a 28mm miniature would look to be about right on something like a 1/48 or 1/43 scale figure). The majority of the specific designs and patterns on the shoulder pads are not protectable either as they tend to be common markings or designs.
Even then, the whole figure might not have a strong copyright due to existing artwork prior to 40K as well as all the non-GW works which have come since then that have made various aspects standard features. They would be protected against straight copying/recasting - but provided that a new sculpture was created using comparable sizes and proportions - that new complete sculpture may not be deemed as infringing...though that is one of those things where it may, or it may not. There isn't a specific legal equation that is used to make the determination and as such, the opinions will vary.
Aerethan wrote: Furthermore, can basic geometric shapes be trademarked?
Yes. They can. The Triple Diamond logo for Mitsubishi, the Silver Arrow logo for Mercedes, Chevy's Bowtie, McDonald's Arches... All of those are just basic geometric shapes which are trademarked. However, GW doesn't make a claim to a graphical trademark in this case (they have one for the Citadel Miniatures logo...but I think the rest are plain word marks). The shoulder pad itself couldn't be trademarked, as it isn't a mark which is used for trade though (pretty basic stuff...isn't it). They might be able to make a claim on "Space Marine Shoulder Pad" provided that they sold a specific product under that name...which I am scratching my head, but I don't recall them ever selling anything under that name. However, if they did...and they did make the claim..."Space Marine Shoulder Pad" is different from "Shoulder Pad for a Space Marine" - and would put it back into the nominative use which I mentioned above.
Aerethan wrote: A fun point in the conversation which made me realize the blinders with which my friend lives his life was when he said that GW has NO competition. I tried to explain that negligible competition is still competition, and that ANY company that makes 28mm models and parts is in theory competition.
If he would like to assert that - then ask him if we should file an antitrust lawsuit against GW then. I would disagree with his assertion though, however - if a company has no competition, then it should be dealt with as any other Monopoly...they went after Microsoft for less.
I'm not a lawyer but wiki answers says:
"Trademark provides an individualized right to use a distinctive mark, sound, color, word, design, etc, to indicate a particular source and quality of branded goods or services. It is infringed when someone uses the brand to falsely indicate or suggest goods or services came from the rightful brand owner, and not the knock-off producer."
Chapterhouse have never claimed to be selling GW products, nor have GW claimed as much. GW are simply arguing that Chapterhouse have taken a design GW claimed they owned and used it without permission.
Also as to the competition thing, warmachine seems to have surpassed WHFB in most areas so while it has no relevance to the case it is hard for GW to keep pushing that mindset.
Sean_OBrien wrote: If you dig through the documents you will find one which is the claims chart. That will state what GW finds offensive. More often than not, they don't say "Trademark" or "Copyright" rather they will point to a figure or picture that illustrates what is being sold. Sometimes it is clear that they are alleging trademark claims, other times you have to sort of use your melon. There are well over 100 claims, and only a small handful of them were dealt with in the initial summary judgement ruling (which may be back up in the air depending on what the judge decides to do regarding the USPTO issues).
Given the performance of GW lawyers in this lawsuit, I wouldn't be surprised if they don't really know the difference, or hope that the judge and jury don't know the difference, so that some muck might stick by chance, like with the shoulder pad. GW is still in their "Lackay, make them stop their doings, they annoy us" mode.
I'm not a lawyer but wiki answers says:
"Trademark provides an individualized right to use a distinctive mark, sound, color, word, design, etc, to indicate a particular source and quality of branded goods or services. It is infringed when someone uses the brand to falsely indicate or suggest goods or services came from the rightful brand owner, and not the knock-off producer."
Chapterhouse have never claimed to be selling GW products, nor have GW claimed as much. GW are simply arguing that Chapterhouse have taken a design GW claimed they owned and used it without permission.
Also as to the competition thing, warmachine seems to have surpassed WHFB in most areas so while it has no relevance to the case it is hard for GW to keep pushing that mindset.
You are correct in your understanding - but that doesn't mean that they are not making that claim.
In the Matter of GAMES WORKSHOP LIMITED, v. CHAPTERHOUSE STUDIOS LLC and JON PAULSON d/b/a PAULSON GAMES Case Number: 1:10-cv-8103
AN APPEARANCE IS HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY FOR: CHAPTERHOUSE STUDIOS LLC
Imron T. Aly
From his online bio:
Imron Aly is a partner in the firm’s Chicago office. His practice focus is patent infringement and trade secret misappropriation litigation.
Mr. Aly's experience includes litigating and managing patent infringement and trade secret matters for pharmaceuticals, medical implants and devices, DNA arrays, mechanical production assemblies, computer business methods, and financial trading systems, among others. Before joining Winston & Strawn, Mr. Aly was a partner at Kirkland & Ellis LLP.
CHS refiled its motion for reconsideration, and a motion for summary judgment.
Automatically Appended Next Post: Oh, this motion for summary judgment is something special. See their undisputed facts document (290.0).
14. In the 1979 movie Alien, characters wore armored space suits with shoulder pads nearly the size of the actors’ heads:
17. Robert Heinlein provided a source of pre-existing references for the GW Space Marine, including with respect to oversized and disproportionately large shoulder pads:
18. Dr. Grindley provided several examples of non-GW futuristic miniature soldiers that were designed with oversized, disproportionately large shoulder pads, one of which (the Asgard miniature) was created in 1983, before any GW Space Marine:
etc....
Automatically Appended Next Post: ---------------
292 onwards is gws motion for summary judgment.
Judge Dredd might be mentioned in the expert's report - he apparently pointed out a number of comic book characters, but CHS chose to highlight the Marvel one.
“[C]ommon geometric shapes cannot be copyrighted.” Kelley, 635 F.3d at 303 (citing
Copyright Compendium II § 503.02(a)-(b)). The U.S. Copyright Office refuses to base
copyright registration on simple, basic three-dimensional shapes, such as the “size and shape” of
GW’s purportedly “iconic” shoulder pad, or other “common geometric figures or shapes in three
dimensional form, such as the cone, cube, or sphere . . . [T]he creative expression capable of
supporting copyright must consist of something more than the mere bringing together of two or
Case: 1:10-cv-08103 Document #: 289-1 Filed: 03/04/13 Page 11 of 17 PageID #:15819
11
three standard forms or shapes with minor linear or spatial variations.” Copyright Compendium
II § 503.02(a)-(b).
GW alleges it is additionally entitled to copyright protection for its shoulder pad product
at entry 156 for its “use of arrow and trim.” SUF 7; Cooper Decl. Ex. 1. However, the U.S.
Copyright Office has specifically refused to base copyright registration on “a standard symbol
such as an arrow or a five-pointed star . . . .” Copyright Compendium II § 503.02(a)-(b)
(emphasis added).
After careful consideration, the Copyright Office consistently determined that the
“sculpture portion” of GW’s Assault Squad Shoulder Pads was “too minimal” and therefore
Case: 1:10-cv-08103 Document #: 289-1 Filed: 03/04/13 Page 14 of 17 PageID #:15822
14
“lack[ed] the authorship necessary to support a copyright claim.” SUF 25-27. The Copyright
Office did not take its duty lightly or make this determination rashly. It involved multiple levels
of review over the course of six months and apparently included substantial back-and-forth (both
email and telephone conversations) between the Copyright Office and counsel for GW. Id. The
Copyright Office also had the benefit of reviewing the deposit materials submitted with the
application, whereas GW did not submit any sculptures into the record for the Court’s
examination on its First Phase summary judgment motion. SUF 27. CHS respectfully requests
that the Court consider and give deference to the Copyright Office’s careful and reasoned
decision here.
And here my local GW manager insists that this suit has zero to do with copyright, and only trademark issues. Some people and their white knight tunnel vision.
And here my local GW manager insists that this suit has zero to do with copyright, and only trademark issues. Some people and their white knight tunnel vision.
Now this where I find this comment rather amusing as as telling as how the GW propaganda machine is churning the current information about the lawsuit. 2 Years ago when this action took place I heard nothing about any trademark issues. Nothing. It was all about Chapterhouse infringing on the corporation's copyright material. Times have changed. Groping for straws.
As far as the White Knight tunnel vision comment? When a corporation indoctrinates their employees with Jargon from their products, such as "Virus bombing a store" (which means firing all employees at a given store/area). You get this type of stuff and mentality from some of their overzealous employees as well as management.
I really think that sums up the case for them at this point. They CLEARLY don't know what to do now that one of that little guys haven't backed off after the C&D letter and they seem to be unsure how much of their case was a bluff now that they actually have to press the issue. Or I suppose more specifically I get the feeling there is a big divide among the GW folks, some are fully aware they have no case without the trademarks but they have been telling the others that it is in the bag for such a long time they believe it.
I really think that sums up the case for them at this point. They CLEARLY don't know what to do now that one of that little guys haven't backed off after the C&D letter and they seem to be unsure how much of their case was a bluff now that they actually have to press the issue. Or I suppose more specifically I get the feeling there is a big divide among the GW folks, some are fully aware they have no case without the trademarks but they have been telling the others that it is in the bag for such a long time they believe it.
A few quotes from my local manager(I like the guy, but on this we disagree 100%):
"The case is a slam dunk, there is no way GW could lose"
"The case has nothing to do with copyright anymore, it is purely trademark infringement that is being argued"
"I went to college for trademark law"(unverified, but if so working at GW seems a tad lackluster for someone with a 4 year degree).
He also insists that since this is the internet, NONE of the people here are lawyers, and all advice or opinions given in this thread are those of laymen who don't understand what is happening.
Clearly, just from the few snippets I posted, one does not need a law degree to understand that the case very much includes copyright claims, and those claims are being hit hard by the defendant. It doesn't take a lawyer to understand "Copyright office said no, so the court should take that opinion under heavy consideration".
For some reason he also has it in his head that intent means something here. My understanding(which I'd like the legal ones to weigh in on) is that intent to infringe is a moot point if said infringement never actually happened.
If I say "I'm going to copy a space marine" and subsequently create something that(as far as the law is concerned) is NOT infringing on the protectable aspects of a space marine, then everything is in the clear. I've never heard of intent to infringe but failing to infringe being something that one could sue for and win.
In all honesty, intent to me doesn't matter, as the products are still different enough for me to distinguish which company made which product.
On the trademark claims, afaik some form of real popularity is required in order to say that X is stealing business from Y because they are using this massively recognized symbol or name. Astronomical odds against anyone in the jury knowing that a GW space marine is, let alone recognize the shoulder pad by itself. We're not talking McDonalds' arch here, we're talking about a single design element that is incomplete by itself. GW's logo is not a SM shoulder pad.
So how can you say someone is confusing the public, if most of the public doesn't even know who you are or what your product is, and those that do already know the difference between GW and CHS' products.
Aerethan wrote: On the trademark claims, afaik some form of real popularity is required in order to say that X is stealing business from Y because they are using this massively recognized symbol or name. Astronomical odds against anyone in the jury knowing that a GW space marine is, let alone recognize the shoulder pad by itself. We're not talking McDonalds' arch here, we're talking about a single design element that is incomplete by itself. GW's logo is not a SM shoulder pad.
So how can you say someone is confusing the public, if most of the public doesn't even know who you are or what your product is, and those that do already know the difference between GW and CHS' products.
He's quite entertaining. He caught the fact that GW was using photos of and comparing painted products when it's all sold unpainted.
And stuff like this:
1 A. There is an insignificant similarity in
2 that they both represent future soldiers but the
3 Chapterhouse products are female and the Games
4 Workshop products are male
Ouze wrote: What is the good Professor an expert on?
Dr. Grindley is a tenured associate professor of English at Eugenio Maria de Hostos Community College and consortial professor at The City University of New York. SUF 10. His academic training has included extensive research a nd publication on popular culture’s appropriation of Medieval tropes and he regularly teaches classes on science fiction literature and film.
Id. Thus, his analysis included historical military as well as contemporary science fiction and cinematic sources in evaluating the alleged creativity that went into producing GW’s shoulder pads.
Well, ok, I have another procedural question while I have you at hand (and thanks).
Why is the witness answering questions after an objection without the objection being ruled on first? This seems to happen fairly constantly. Are the rulings on the objections not part of the transcript?
There isn't a judge present, just a court reporter.
They are just registering that they think something is wrong with the question and they'll hash it out with the judge later as to whether the question is admissible or not. Sometimes it gets used to rattle the other lawyer or put your deponent on notice to answer carefully (although it isn't supposed to be). Pretty much the only question that you can tell a deponent not to answer is one that touches legally privileged information (that sort of happens at the start of this deposition).
And for what I've seen of US procedures in comparative law classes those objections tend to be made whenever there just might possibly in some viewpoint be a slight chance it could potentially make even the most miniscule of differences, so unless something is really obviously egregiously wrong, pretty much all of us not admitted to the relevant bar are best off just ignoring them completely.
Oooh, I didn't realize this was a deposition. Thanks.
11 Q. Do you believe Star Wars Episode I is
12 derived from Star Wars Episode II?
13 A. No, I would not. I would say Star Wars
14 Episode II and Star Wars Episode I are derived
15 from Star Wars Episode IV.
16 MR. COOPER: He got you there
Back to Prof. Grindley - he's clearly a nerd, clearly knows his sci fi and pop culture, and clearly isn't an idiot:
Q. Okay.
15 A. Now, more specifically, there are
16 examples, for example item 129, where the Games
17 Workshop Land Raider vehicle, that's on page 28 of
18 the exhibit, clearly as far as I'm concerned in my
19 opinion clearly derives from a Mark V tank.
20 Q. Let me rephrase my question here.
21 Is there any way for me, looking at
22 your report and your exhibits, to figure out for
23 which pictures in your expert opinion Games
24 Workshop must have seen and copied consciously or
Chapterhouse / Games Workshop
Unsigned
Page 97 - 100
97
Grindley, Carl 2/21/2013 9:09:00 AM 1 unconsciously and which pictures are just
2 representative of tropes in a genre?
3 A. That's also an impossible question to
4 answer because there are many, many pictures of
5 Mark V tanks and if I were in the United Kingdom I
6 would go to the Imperial War Museum and see one.
7 Q. Okay. But you could --
8 A. So it's impossible to say whether or
9 not a person saw a specific photograph of this
10 particular tank or merely saw a photograph or the
11 actual tank itself, but I would definitely say in
12 this specific situation of item 129 that Games
13 Workshop's designers must have definitely seen a
14 Mark V tank. There can be no other explanation
15 for that level of similarity.
16 Q. So you could have said that in your
17 report, right, Games Workshop must have seen a
18 Mark V tank, here are representative pictures of a
19 Mark V tank?
20 A. Indeed, I say in particular, a Games
21 Workshop Land Raider, there's a striking
22 resemblance to a British Mark V tank, and then I
23 produced a picture of the British Mark V tank.
And
Q. So if the person who came up with the
6 description flamer for Games Workshop testifies
7 that they have never read Starship Troopers --
8 A. All right.
9 Q. -- you would believe that would be
10 absurd?
11 A. I would believe that would not only be
12 absurd but probably a lie. I don't believe that
13 there would be anyone working in anything to do
14 with science fiction who has not, either as a
15 child or young adult or as an adult, not read this
16 novel.
17 Q. So if there were multiple people from
18 Games Workshop saying they have never read
19 Starship Troopers, you would call them all liars?
20 MR. COOPER: Objection.
21 THE WITNESS: No, I would not call
22 someone a liar.
23 BY MR. KEENER:
24 Q. You would believe they are lying?
Not that his deposition is going to change the world or anything, but at least someone is injecting a bit of reality into the affair.
Automatically Appended Next Post: Heheheh
Q. Are you aware whether the courts
2 addressed the issue of whether any specifics Games
3 Workshop items are original or not?
4 A. Oh, wait, I would like to change my
5 answer on that.
6 Q. Okay.
7 A. I don't think it's a court opinion so
8 maybe I'm not changing my answer, but I do know
9 that I think last week, because I read the BBC
10 News because I'm also a British citizen, I know
11 that last week in the United Kingdom, I believe --
12 I'm not entirely even sure if there was legal
13 proceedings involved in this but there was some
14 horrible scandal where Games Workshop attempted to
15 stop someone from distributing a book on Amazon
16 that used the term "space marine."
17 Q. Let's limit ourselves to the court in
18 this case. Have you read any opinions by the
19
j
udge in this case?
20 A. No
I agree on the liars, regarding Starship Troopers.
That being said, I made it to page 90 before giving up. Even with someone as witty as this it's just too dry to power through; I truly have no idea how people do this for a living. I'll content myself to read the highlight reels here.
czakk wrote: There isn't a judge present, just a court reporter.
They are just registering that they think something is wrong with the question and they'll hash it out with the judge later as to whether the question is admissible or not. Sometimes it gets used to rattle the other lawyer or put your deponent on notice to answer carefully (although it isn't supposed to be). Pretty much the only question that you can tell a deponent not to answer is one that touches legally privileged information (that sort of happens at the start of this deposition).
There can also be sticky issues with questions beyond the stated scope of deposition. I have seen a deponent walk out of a depo when counsel repeatedly asked personal questions flagrantly beyond the stated scope of the depo, but stuff like that is super rare.
It's just not cool to get someone under oath and then start asking questions that have nothing to do with the reason the deponent is being questioned.
Q. Okay, can something be partially original? A. No. Q. Why not? A. For the same reason you can't be partially pregnant. (This is in response to the same question being asked in several variations) A. How dead does a horse need to be? Q. Is that your answer? A. Yes. Once a horse is dead, it is needless to keep killing it. (More exasperation from Prof Grindley here) Q. Based on your research of prior military shoulder pads or other instances of models or pictures, have you identified any others that would fit on the arm of a space marine? A. Historically. Suits of armor have been very, very large and space marines are only an inch tall, so no.
Now I've given up reading it, 150 pages is a lot.
One thing that did stand out to me was that GW demanded CHS reference materials and got them, but GW didn't provide details of their reference materials to CHS/Prof Grindley. Anyone want to take a bet on whether Starship Troopers is there?
The book...probably not in the "official" library...no pictures. There official library though is likely to be rather sparse though. Instead they will rely on people watching movies, reading comics and books, watching TV and the like in their own time in order to provide material that GW derives their stuff from.
In that sense, what the good doctor is getting at is very important. The first Space Marines, done by Bob Naismith may have been derived from the Asgard miniatures which were derived from a magazine cover which was in turn derived from Starship troopers text. The redesign of the Space Marines by Jes would be derived from Bob's work...and subsequently the entire chain of things back to Starship Troopers.
Reading through all this, and I urge anyone to, it is surprising as an expat Brit, how similar the aggressive questions are similar to those in courtroom-based American TV shows. It is even more entertaining to see the Prof Grindley is quite obviously more intelligent than the lawyer (correct word?) is.
In discussing derivation:
Q. Do you believe Star Wars Episode I is
derived from Star Wars Episode II?
A. No, I would not. I would say Star Wars
Episode II and Star Wars Episode I are derived
from Star Wars Episode IV.
MR. COOPER: He got you there
Really entertaining. And in some part quite ridiculous.
Is it normal for an expert witness to be THAT aware of the various wordings and their significance, and having the philosophical wherewithal to know when a question is unanswerable?
Q. So if the person who came up with the
6 description flamer for Games Workshop testifies
7 that they have never read Starship Troopers --
8 A. All right.
9 Q. -- you would believe that would be
10 absurd?
11 A. I would believe that would not only be
12 absurd but probably a lie. I don't believe that
13 there would be anyone working in anything to do
14 with science fiction who has not, either as a
15 child or young adult or as an adult, not read this
16 novel.
17 Q. So if there were multiple people from
18 Games Workshop saying they have never read
19 Starship Troopers, you would call them all liars?
20 MR. COOPER: Objection.
21 THE WITNESS: No, I would not call
22 someone a liar.
23 BY MR. KEENER:
24 Q. You would believe they are lying?
As much as the guy's entertaining me, I've got to call BS. I was in my 30's before I'd ever heard of Heinlein, and my LATE 30's before I read anything by him. In fact, I read Friday before Starship Troopers!
I'd known about flame throwers before his books and, up to that point, GW had the only version of a hand held flamer (sans backpack) I'd ever seen. I may not be common, considering that I was never really into Sci Fi in my youth and, in fact, had no interest in it until AFTER I started playing 40K... but it's the truth.
[edit for clarity]
I didn't finish typing out what I was thinking...
I'd had independently created ideas in my head for a flame thrower with the tank attached to the "gun" since I was a kid. In fact, in my youth, upon seeing images of guys wearing traditional flame throwers, I remember thinking how crazy it was to wear that giant bomb strapped to your back. I thought (right or wrong), "One shot to the tank and you explode!" Seemed to me that it would be easier (and harder to hit with a bullet) if the tanks were smaller, attached to the gun, and replaceable, like co2 cartridges in BB guns.
As much as the guy's entertaining me, I've got to call BS. I was in my 30's before I'd ever heard of Heinlein, and my LATE 30's before I read anything by him. In fact, I read Friday before Starship Troopers!
I'd known about flame throwers before his books and, up to that point, GW had the only version of a hand held flamer (sans backpack) I'd ever seen. I may not be common, considering that I was never really into Sci Fi in my youth and, in fact, had no interest in it until AFTER I started playing 40K... but it's the truth.
You didnt actually read what you quoted, did you?
11 A. I would believe that would not only be
12 absurd but probably a lie. I don't believe that
13 there would be anyone working in anything to do 14 with science fiction who has not, either as a
15 child or young adult or as an adult, not read this
16 novel.
Working In Anything To Do With Science Fiction
If you were "never really into sci fi in your youth" then you cannot have been "working in anything to do with science fiction" and therefore you fall outside the group he says would be aware of Starship Troopers and your personal experience is utterly irrelevant to Professor Grindley's testimony
The other issue goes to the specific term used. While you might have heard of flame throwers in the past, the specific term "flamer" was used in the Starship Troopers book. Since GW uses that specific term, it is probable that the originator of the term in the 40K universe had gotten it from SST.
The design can be tied back more closely to those used in the Alien franchise. Those movies featured two different (that I can recall) flame thrower designs with the fuel cannister on the weapon itself. Due to the nature of those films being part of pop culture, it is even more likely that they are both conscious and unconsciously part of the designers collective knowledge.
Is it me or the good professor was quite fond of answering obtuse questions with obtuse answers? I'm on page 20 and this is incredble.
7 A. No, I want you to understand, too. I'm
8 trying to think of a way to phrase this so that
9 it's clear for you but it's very difficult to
10 phrase it in a way that you're willing to follow.
Well, Mr. Keener's job isn't to look smart, win an argument or impress the guy, it is to get him to say something that can be used to impeach him or his report, and to lock his story in so they don't get any surprises when he hits the witness stand.
And I suppose to get a read on how he'll come across to a jury if it comes to that.
Interesting to see the concern around Buzz Lightyear's legs and their similarity to SM power armor.
Q. Based on your research of prior military shoulder pads or other instances of models or pictures, have you identified any others that would fit on the arm of a space marine?
A. Historically. Suits of armor have been very, very large and space marines are only an inch tall, so no.
Q. So if the person who came up with the
6 description flamer for Games Workshop testifies
7 that they have never read Starship Troopers --
8 A. All right.
9 Q. -- you would believe that would be
10 absurd?
11 A. I would believe that would not only be
12 absurd but probably a lie. I don't believe that
13 there would be anyone working in anything to do
14 with science fiction who has not, either as a
15 child or young adult or as an adult, not read this
16 novel.
17 Q. So if there were multiple people from
18 Games Workshop saying they have never read
19 Starship Troopers, you would call them all liars?
20 MR. COOPER: Objection.
21 THE WITNESS: No, I would not call
22 someone a liar.
23 BY MR. KEENER:
24 Q. You would believe they are lying?
As much as the guy's entertaining me, I've got to call BS. I was in my 30's before I'd ever heard of Heinlein, and my LATE 30's before I read anything by him. In fact, I read Friday before Starship Troopers!
I'd known about flame throwers before his books and, up to that point, GW had the only version of a hand held flamer (sans backpack) I'd ever seen. I may not be common, considering that I was never really into Sci Fi in my youth and, in fact, had no interest in it until AFTER I started playing 40K... but it's the truth.
[edit for clarity]
I didn't finish typing out what I was thinking...
I'd had independently created ideas in my head for a flame thrower with the tank attached to the "gun" since I was a kid. In fact, in my youth, upon seeing images of guys wearing traditional flame throwers, I remember thinking how crazy it was to wear that giant bomb strapped to your back. I thought (right or wrong), "One shot to the tank and you explode!" Seemed to me that it would be easier (and harder to hit with a bullet) if the tanks were smaller, attached to the gun, and replaceable, like co2 cartridges in BB guns.
Eric
There was a hand flamer called a hand flamer in Laserburn, published by Bryan Ansell in about 1980. We don't know if he got the idea from Starship Troopers or invented it from fresh.
Naturally not everyone has read Starship Troopers, however it is difficult to believe that no-one ever employed in or by the 40K design studio from 1985 to 1990, while the look of Space Marines was formulated, had ever seen Star Wars or Aliens or read Starship Troopers or similar military SF books (Forever War pub.1974, etc.) It would beggar belief that a bunch of young men interested in SF and wargames would be completely unaware of those publications.
Ok, so the first 352 pages is GW's Mr Keener and then there's a handful pages of questioning by CH's Mr Cooper. This process has taken most of the day and I believe the ending stamp is 5:47 PM. Just before this ends we get this...
MR. COOPER: I have no further questions.
MR. KEENER: Recross. I have less than five minutes for you here.
THE WITNESS: This is not funny. I've got a kid waiting for me.
MR. KEENER: I understand. I have a flight to go to, too. Less than five minutes here.
THE WITNESS: I'm not getting paid for this. You are.
FURTHER EXAMINATION
BY MR. KEENER:
It's about another page on a pdf but still, gotta get that 5 minutes amirite? Seriously though I understand the GW side would have far more questions for the CH expert witness but geez that's a time sink.
Backing up though there's this bit on pg 267 (doc pg)
BY MR. KEENER:
Q. I'm going to show you what's been marked Plaintiff's Exhibit 193. I'm not going ask you to read all of this.
MR. COOPER: Well, I'm going to ask him to read it to the extent he needs to to answer any of your questions.
This leads into some reading of legal docs and the phrase "a unique combination of those elements" in case cites/legal definitions of 'art'. Eventually Mr Cooper instructs his witness to not answer Mr Keener's question (pg276). Very good read if I say so and also this 'define "blank" as legal or scholarly term happens more than once throughout questioning.
Also on pg 282 Mr Keener is trying to confirm assembly/fitting of CH bits on GW stuff but the witness only had pics to work with making his report. So Keener directs his line of questioning thusly:
Q.Why don't we look at page 12 of your chart. There is a shoulder pad which I believe is fitted on to a Games Workshop arm.
A.Is it fitted on the arm or is it fitted on the torso?
Q.My understanding is it's fitted on the arm.
A.Understanding or knowledge?
Q.My understanding is it's fitted on the arm.
A.So you don't know?
Q.I do. It's fitted on the arm.
A.Okay, so it's fitted on the arm. Then I guess it fits on the arm.
There was a hand flamer called a hand flamer in Laserburn, published by Bryan Ansell in about 1980. We don't know if he got the idea from Starship Troopers or invented it from fresh.
Naturally not everyone has read Starship Troopers, however it is difficult to believe that no-one ever employed in or by the 40K design studio from 1985 to 1990, while the look of Space Marines was formulated, had ever seen Star Wars or Aliens or read Starship Troopers or similar military SF books (Forever War pub.1974, etc.) It would beggar belief that a bunch of young men interested in SF and wargames would be completely unaware of those publications.
We don't really need to speculate on that though...
When I discovered fantasy, science and historical fiction in the 1960s Moorcock wasn't visible enough yet to make it into my local (Arnold) library. I was enthusiastic about Jack Vance, Clark Ashton Smith , Harry Harrison, Fritz Leiber, Keith Laumer, James Blish , Robert Sheckley, Brian Aldis , Edgar Rice Burroughs , Kurt Vonnegut, Robert Heinlein ,TH White, Cyril Judd, Fritz Leiber, Philip K Dick and others . Also Russell Thorndike, Rafael Sabatini, Hubert Cole, Alfred Duggan, Mary Renault, Henry Treece, Geoffrey Trease and Leslie Charteris.
Anyone who has read Heinlein, has likely read Starship Troopers...while he wrote other books, it was far and away his flagship book. I don't have access to my copies of Laserburn right now, but it used to actually be common practice for games developers to thank their various sources of inspiration in the front/back of their rules. He might have even referenced Starship Troopers there as well.
It is rather interesting that the guy who was pushing the creative side of things when 40K was being set down on paper (and lead) had no problem talking about the books and other artists he looked to for inspiration, while the guy who is the art director for GW references the weather and shopping centers.
Well, the line that GW are taking -- you can see this in the way their lawyer frames his questioning -- is that even if GW took inspirations from other sources -- e.g. hand flamer, shoulder pads -- once incorporated into the Space Marine model, that in itself is an original work of art and if deconstructed, the hand flamer and shoulder pad when separated are derivative of the whole model and thus are original GW properties that no-one else can use.
The expert witness's opinion seems to be that the vast mass of pre-existing popular culture depictions of space armour, weapons and styling is so widely known as to prevent any purely original depiction of a "future soldier" or Space marine from being made. And this point was reached by 1990 at the latest, but might have been before then.
Also on pg 282 Mr Keener is trying to confirm assembly/fitting of CH bits on GW stuff but the witness only had pics to work with making his report. So Keener directs his line of questioning thusly:
Q.Why don't we look at page 12 of your chart. There is a shoulder pad which I believe is fitted on to a Games Workshop arm.
A.Is it fitted on the arm or is it fitted on the torso?
Q.My understanding is it's fitted on the arm.
A.Understanding or knowledge?
Q.My understanding is it's fitted on the arm.
A.So you don't know?
Q.I do. It's fitted on the arm.
A.Okay, so it's fitted on the arm. Then I guess it fits on the arm.
Oh god that's brilliant.
I have only read like 20 pages of it but the whole thing seems to be the GW lawyer asking the same questions 4 to 6 times over hoping to get the witness to trip up on his wording so they can then turn around and take everything he says out of context but, like the case as a whole, GW seem entirely unprepared to deal with someone who knows what they are doing.
I have only read like 20 pages of it but the whole thing seems to be the GW lawyer asking the same questions 4 to 6 times over hoping to get the witness to trip up on his wording so they can then turn around and take everything he says out of context but, like the case as a whole, GW seem entirely unprepared to deal with someone who knows what they are doing.
Thats not really how I perceived it. It seemed more like a English professor who is obsessed with being precise in the meaning of the words that he uses, and won't agree that the sky is blue until the questioner defines what they mean by 'sky' 'is' and 'blue'. There were a lot of times when the questioner was asking 'do you know what X was thinking' and he replied 'that's impossible to answer'... or something similar.
From what I read, the good professor seems to have a good grasp of 'there is nothing new under the sun', but doesn't talk about or seem interested in the copyright concepts of protectable elements. GW's soldiers are wearing helmets; all soldiers wear helmets, therefore GW soldiers are 'derived from all soldiers (in language terms, not legal), regardless of whether the particular shape of GW's helms are unique, unusual or artistic. I find it actually a bit odd that a professor studying pop culture knows so little about copyright law, especially when he (incorrectly) references the Mona Lisa moustache (by Duchamp, not Salvador Dali)...
Whilst it was an entertaining read (as legal documents go), I'm not sure how much of it will be terribly useful in the courtroom. But IANAL, so, who knows.
He was discussing the subject from an academic viewpoint, which is the basis on which he was called as an expert witness. He would have been foolish to purport to have any knowledge about copyright and trademark law, when being questioned by an expert in that field.
As for the Mona Lisa point, it is irrelevant since his testimony to the court will all be based on his written report.
Thats not really how I perceived it. It seemed more like a English professor who is obsessed with being precise in the meaning of the words that he uses, and won't agree that the sky is blue until the questioner defines what they mean by 'sky' 'is' and 'blue'. There were a lot of times when the questioner was asking 'do you know what X was thinking' and he replied 'that's impossible to answer'... or something similar.
I got a VERY strong impression that the reason he did that was so that he couldn't have his testimony twisted around and used against him. I think it was in the first 10-20 pages somewhere where he is asked if the chapterhouse stuff looked like the GW stuff and danced around the topic and wouldn't answer because the GW lawyer insisted on a yes or no answer and he simply wouldn't give it. A yes would be taken out of context and used by GW to say 'hey look, the expert agrees with us' but an outright no is not technically accurate when they do share similarities.
And it would be pretty poor form to give an answer to 'do you know what X was thinking' when it is impossible and any answer he gives can be used in legal proceedings
Trasvi wrote: From what I read, the good professor seems to have a good grasp of 'there is nothing new under the sun', but doesn't talk about or seem interested in the copyright concepts of protectable elements. GW's soldiers are wearing helmets; all soldiers wear helmets, therefore GW soldiers are 'derived from all soldiers (in language terms, not legal), regardless of whether the particular shape of GW's helms are unique, unusual or artistic. I find it actually a bit odd that a professor studying pop culture knows so little about copyright law, especially when he (incorrectly) references the Mona Lisa moustache (by Duchamp, not Salvador Dali)...
Whilst it was an entertaining read (as legal documents go), I'm not sure how much of it will be terribly useful in the courtroom. But IANAL, so, who knows.
Again, GW guys are just men in powered armour, as are the chapterhouse ones, but that is not a concept invented by, or owned by, GW. It is not that GWs guys have helmets therefore they are soldiers end of story, is is that GW have helmets, CH have helmets, (almost) every other military uniform in real life and science fiction have helmets. He is not the person who gets to draw the line at where one helmet resembles another enough to infringe copyright so he is not going to be drawn into saying something the GW lawyers can then take out of context.
As much as the guy's entertaining me, I've got to call BS. I was in my 30's before I'd ever heard of Heinlein, and my LATE 30's before I read anything by him. In fact, I read Friday before Starship Troopers!
I'd known about flame throwers before his books and, up to that point, GW had the only version of a hand held flamer (sans backpack) I'd ever seen. I may not be common, considering that I was never really into Sci Fi in my youth and, in fact, had no interest in it until AFTER I started playing 40K... but it's the truth.
You didnt actually read what you quoted, did you?
11 A. I would believe that would not only be
12 absurd but probably a lie. I don't believe that
13 there would be anyone working in anything to do 14 with science fiction who has not, either as a
15 child or young adult or as an adult, not read this
16 novel.
Working In Anything To Do With Science Fiction
If you were "never really into sci fi in your youth" then you cannot have been "working in anything to do with science fiction" and therefore you fall outside the group he says would be aware of Starship Troopers and your personal experience is utterly irrelevant to Professor Grindley's testimony
If I hadn't read it, I couldn't have had anything near a response to it.
That said, I didn't make my point properly (yet again) which, considering my day yesterday, does not surprise me.
There is every chance that someone writing sci-fi never read Heinlein as a kid and was never into sci-fi in their youth. If, as I did, they got into it as an adult, they may have skipped over it.
It's like saying that JK Rowling HAD to have read Tolkein at some point, because she writes "fantasy" novels. Maybe she did or maybe not. It's not a sure thing, though.
What I was or was not into in my youth does not necessarily preclude me from working in that field as an adult. I mean, I wasn't into Banking or Computers as a kid (or, even, as a teen)... but here I am, anyway.
More than the testimony I'm really loving the cat scratching between the lawyers:
Spoiler:
22 Q. Let's look at the bottom of page 19 of 23 that same exhibit. It begins, "Chapterhouse has 24 presented a report from William F.M. Brewster, the 275 1 Curator of Collections for the First Division 2 Museum at Cantigny Park in Wheaton, who stated 3 that Games Workshop's shoulder pads are 'in 4 keeping' with previous examples of military-style 5 shoulder pads found throughout history." 6 Stopping there, is that similar to your 7 opinion that you believe the shoulder pads are 8 similar to or derived from other shoulder pads in 9 history? 10 MR. COOPER: Objection, this is a 11 question based on what William F.M. Brewster 12 has said, and Dr. Grindley has not read his 13 report, opined on it -- 14 MR. KEENER: Counsel, no speaking 15 objection, place an objection to form and 16 we'll continue. 17 DIMR. COOPER: No, I'm going instruct you 18 not to answer. Your question is absolutely 19 outside the scope and has nothing to do with 20 Dr. Grindley's opinion. 21 Don't answer that question. 22 MR. KEENER: You're instructing him not 23 to answer and it's not on a basis of 24 privilege; is that understood? Is that 1 correct? There's no privilege objection and 2 you're instructing the witness not to answer 3 in contrary to the rule; is that correct? 4 MR. COOPER: That is not correct, it is 5 not in contradiction to the rules. This is 6 absolutely outside the scope of his report. 7 MR. KEENER: You understand you can 8 only instruct him not to answer on the basis 9 of privilege, correct? 10 MR. COOPER: The objection here is you 11 cannot ask him to -- 12 MR. KEENER: Then place your objection. 13 Do not instruct him not to answer. 14 MR. COOPER: I am instructing him not 15 to answer. If you want to get to the court 16 and get the court to say he should answer a 17 question about what F.M. Brewster said and 18 opined on, then you can do that. You can get 19 court on the phone right now and the judge can 20 decide whether or not he's going to answer the 21 question. 22 BY MR. KEENER: 23 Q. Are you refusing to answer the 24 question? Chapterhouse / Games Workshop Unsigned Page 277 - 280 277 1 A. I'm refusing to answer the question.
Sean_OBrien wrote: The other issue goes to the specific term used. While you might have heard of flame throwers in the past, the specific term "flamer" was used in the Starship Troopers book. Since GW uses that specific term, it is probable that the originator of the term in the 40K universe had gotten it from SST.
The design can be tied back more closely to those used in the Alien franchise. Those movies featured two different (that I can recall) flame thrower designs with the fuel cannister on the weapon itself. Due to the nature of those films being part of pop culture, it is even more likely that they are both conscious and unconsciously part of the designers collective knowledge.
I find the notion that it's probable that he got the term from Heinlein to be wholly inaccurate. It's conceivable that the first guy within GW to coin the term "flamer" to describe the weapon had never read Heinlein. It's possible that he happened to come up with the idea and name separately from Heinlein. I already described how I'd thought up the design as a kid, with no knowledge of either subject (pre-40K, in fact), so it's easily conceivable that the name was independently created, as well.
Don't get me wrong, I'm still a CHS supporter. I just fail to fall in step with that one point.
There was a hand flamer called a hand flamer in Laserburn, published by Bryan Ansell in about 1980. We don't know if he got the idea from Starship Troopers or invented it from fresh.
Naturally not everyone has read Starship Troopers, however it is difficult to believe that no-one ever employed in or by the 40K design studio from 1985 to 1990, while the look of Space Marines was formulated, had ever seen Star Wars or Aliens or read Starship Troopers or similar military SF books (Forever War pub.1974, etc.) It would beggar belief that a bunch of young men interested in SF and wargames would be completely unaware of those publications.
Except that he's not talking about *anyone* employed by GW's design studio in that time. Just the guy who came up with the design for GW:
Q. So if the person who came up with the
6 description flamer for Games Workshop testifies
7 that they have never read Starship Troopers --
8 A. All right.
9 Q. -- you would believe that would be
10 absurd?
Lint wrote: More than the testimony I'm really loving the cat scratching between the lawyers:
Spoiler:
22 Q. Let's look at the bottom of page 19 of
23 that same exhibit. It begins, "Chapterhouse has
24 presented a report from William F.M. Brewster, the
275
1 Curator of Collections for the First Division
2 Museum at Cantigny Park in Wheaton, who stated
3 that Games Workshop's shoulder pads are 'in
4 keeping' with previous examples of military-style
5 shoulder pads found throughout history."
6 Stopping there, is that similar to your
7 opinion that you believe the shoulder pads are
8 similar to or derived from other shoulder pads in
9 history?
10 MR. COOPER: Objection, this is a
11 question based on what William F.M. Brewster
12 has said, and Dr. Grindley has not read his
13 report, opined on it --
14 MR. KEENER: Counsel, no speaking
15 objection, place an objection to form and
16 we'll continue.
17 DIMR. COOPER: No, I'm going instruct you
18 not to answer. Your question is absolutely
19 outside the scope and has nothing to do with
20 Dr. Grindley's opinion.
21 Don't answer that question.
22 MR. KEENER: You're instructing him not
23 to answer and it's not on a basis of
24 privilege; is that understood? Is that
1 correct? There's no privilege objection and
2 you're instructing the witness not to answer
3 in contrary to the rule; is that correct?
4 MR. COOPER: That is not correct, it is
5 not in contradiction to the rules. This is
6 absolutely outside the scope of his report.
7 MR. KEENER: You understand you can
8 only instruct him not to answer on the basis
9 of privilege, correct?
10 MR. COOPER: The objection here is you
11 cannot ask him to --
12 MR. KEENER: Then place your objection.
13 Do not instruct him not to answer.
14 MR. COOPER: I am instructing him not
15 to answer. If you want to get to the court
16 and get the court to say he should answer a
17 question about what F.M. Brewster said and
18 opined on, then you can do that. You can get
19 court on the phone right now and the judge can
20 decide whether or not he's going to answer the
21 question. 22 BY MR. KEENER:
23 Q. Are you refusing to answer the
24 question?
Chapterhouse / Games Workshop Unsigned Page 277 - 280
277
1 A. I'm refusing to answer the question.
(2) Objections. An objection at the time of the examination—whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
There are also probably local rules that govern what forms an objection can take as well.
30(d)(3) is a motion to terminate the deposition, which I guess Mr. Cooper was threatening when he made his objection:
(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.
The "speaking objection" Mr. Keener complains about is basically an objection that goes beyond what is necessary to give the grounds on which an objection is made - basically an objection that coaches or suggests an answer to the deponent.
This is the first time I've posted in this topic and I hope I'm not doing anything that's considered trolling or whatever but; can we please make this professor an honorary Dakka moderator and can someone please write a script for a film version of this testimony?I've never laughed so much recently, and it was even my birthday 5 days ago!!!
Slipstream wrote: This is the first time I've posted in this topic and I hope I'm not doing anything that's considered trolling or whatever but; can we please make this professor an honorary Dakka moderator and can someone please write a script for a film version of this testimony?I've never laughed so much recently, and it was even my birthday 5 days ago!!!
I agree that a reenactment of the finer points of the deposition would be entertaining, as text lacks all of the sarcastic intonation that you just know the professor is spouting.
Ask a stupid question, get a stupid answer, or in this case 150 pages of stupid questions and awesome answers.
If you want to see two year old behaviour you should see Mr. Moskin's Oh Oh Oh Mr. Oh comment that's buried like, 100 pages back.
-Edit-
Found it, making fun of the guys name, and doing that annoying simon-says copy cat gak that kids do:
8 MR. MOSKIN: The witness has agreed to give you
9 another 30 minutes. We are continuing the rest of
10 this deposition under protest. Please try to make use
of the time wisely.
12 MR. OH: Again for the record, 30 minutes is less than
13 the aggregate two hours that previously counsel agreed
14 to, and again we are conducting the rest of this
15 deposition under protest also.
16 MR. MOSKIN: You are? Okay, good. You have already
17 had more than 44 minutes that you requested when we
18 broke off Mr. Merrett's deposition. Let's go ahead.
19 Not to mention the time wasted yesterday when he was
20 available all day, all afternoon.
21 MR. OH: Mr. Moskin --
22 MR. MOSKIN: Oh, Mr. Oh, oh, oh, oh.
23 MR. OH: This is characteristic --
24 MR. MOSKIN: It is very characteristics of you.
25 MR. OH: Of you.
The line of questioning regarding originality dates (2000 vs. 1990) seemed like a bit of a misstep by the good Professor--specifically attributing those dates to the Aliens release (1996 vs. 1986)
Other than that, was a rather pugilistic (but still rather witty at times) read.
Generally, an attorney does not suggest calling up the Judge unless he or she is pretty well convinced that the Judge will agree. It is an aggressive posture to take, as judges do not like getting unscheduled phone calls when they have dozens and dozens of active cases on their plate.
Its like Leia pulling out the thermal detonator in front of Jabba. You want to play that way, things can get very real, very fast.
About 2/3 of the way through, very entertaining. I will say that it's a little disingenuous to suggest that the Professor is being purposefully obtuse in his answers, rather I would say he is being purposefully precise, and with good reason considering how often the GW lawyer attempts to switch between legal, common, and academic definitions of words and terms in order to attempt to confuse the deponent into giving an answer that can be taken as favourable to GW's case.
I think the most common thing the Chapterhouse lawyer says is "Objection: Misstates testimony", and not once frivolously that I can see so far.
Yodhrin wrote: About 2/3 of the way through, very entertaining. I will say that it's a little disingenuous to suggest that the Professor is being purposefully obtuse in his answers, rather I would say he is being purposefully precise, and with good reason considering how often the GW lawyer attempts to switch between legal, common, and academic definitions of words and terms in order to attempt to confuse the deponent into giving an answer that can be taken as favourable to GW's case.
I think the most common thing the Chapterhouse lawyer says is "Objection: Misstates testimony", and not once frivolously that I can see so far.
I have to agree with this. Especially early in the deposition, the GW attorney keeps trying to elicit a "yes or no" answer to a question worded deliberately such that either answer misstates the facts. For example, the deponent stated early on that he was asked to examine CHS and GW miniature pictures to look for significant similarities. The GW lawyer kept asking questions about whether or not there were similarities, but leaves out the word "significant."
AgeOfEgos wrote: The line of questioning regarding originality dates (2000 vs. 1990) seemed like a bit of a misstep by the good Professor--specifically attributing those dates to the Aliens release (1996 vs. 1986)
Other than that, was a rather pugilistic (but still rather witty at times) read.
He makes it clear that setting a closure date of 2,000 does not mean a closure date of 2,000, it means that 2,000 would be the latest possible closure date but it could have been earlier.
He then goes on to say that was thought of on the basis of Aliens being released in 1996, and on remembering it was actually released in 1986 he revises his closure date to 1990.
By closure date I mean the date by which it was no longer possible to have a truly original idea about a future soldier because the meme pool was so full of earlier examples.
The more I read of the deposition, the more I think the GW attorney doesn't understand exactly the professor's are of expertise. There's a section towards the beginning where the professor is being continuously asked whether or not a specific GW item was "derived" from a prior work. The professor keeps answering that there's no way for him to answer that. This professor's statements remind me a little of Joseph Campbell's works on comparative religion. Cultural ideas can become so prevalent that people are drawing from those ideas without even being aware that they are doing so.
I felt that a good answer to the question would be "yes GW and CHS figures are similar in the same way that a Land Rover and an Aston Martin are similar" In which case Mr H Fords' decendents will be suing just about...everybody.
I wonder why GW never went for Marvel for the HulkSmasher armour? (As if I didn't know!)
Saldiven wrote: The more I read of the deposition, the more I think the GW attorney doesn't understand exactly the professor's are of expertise. There's a section towards the beginning where the professor is being continuously asked whether or not a specific GW item was "derived" from a prior work. The professor keeps answering that there's no way for him to answer that. This professor's statements remind me a little of Joseph Campbell's works on comparative religion. Cultural ideas can become so prevalent that people are drawing from those ideas without even being aware that they are doing so.
I don't know GWs litigation strategy, but don't think of it as Mr. Keener not understanding the area of expertise. Think of him as trying to lock in exactly what the Dr's expertise is / what the report is saying and what it isn't saying by asking (obtuse at times) questions. He's not working solely off the top of his head, he has certain things he wants to try to get the Dr to say, and certain things he wants to find out and he's going to have a couple of different angles to try to get them said.
Incorporating all those pictures but not clearly saying what was similar about them and the GW product and saying things like "popular sci fi films and literature" leaves a lot of uncertainty about what he might say on the stand. If (completely hypothetically) Dr Grindley hits the stand at trial and says something like "GW's shoulder pad is clearly derived from this picture of Judge Dredd's pad in AD 2000 comics from 1978" they can go to the deposition and say, you said you couldn't tell that, under oath, are you lying now or were you lying then. Likewise, all those questions about what was in the report and what wasn't (which films, which pictures etc..). He mentions Buzz Lightyear and space marine legs and Mr. Keener jumps all over that for a while.
Automatically Appended Next Post: ----------------------------
One fun thing to think about - this was what, an 8 hour deposition? Add in half a day to prep for the deposition and half a day to read the report and that bit of back and forth between Dr. Grindley and Mr. Keener cost GW (16hrs * $400) $6,400 or more plus the costs of the court recorder.
I understand the Professors motivations for why he agree to do the depo unpaid (I read that far, about how hard it is for him to find opportunities for academic service) but I'd have a really hard time volunteering so many hours for the benefit of one for profit entity over the other for-profit entity.
AndrewC wrote: I felt that a good answer to the question would be "yes GW and CHS figures are similar in the same way that a Land Rover and an Aston Martin are similar" In which case Mr H Fords' decendents will be suing just about...everybody.
The problem with even that sort of a statement is that I wouldn't put it past GW to then use that statement in the case as "Yes, GW and CHS figures are similar", claiming that as indicating the witness agrees with their case.
Ouze wrote: I understand the Professors motivations for why he agree to do the depo unpaid (I read that far, about how hard it is for him to find opportunities for academic service) but I'd have a really hard time volunteering so many hours for the benefit of one for profit entity over the other for-profit entity.
Other than of course purely altuistic reasons...
Many schools actually have a requirement that staff perform X number of hours of community service per year. 120 some odd hours (done over 2 calendar years) should cover that quota and then some.
Anyone who has read Heinlein, has likely read Starship Troopers...while he wrote other books, it was far and away his flagship book.
I don't want to derail this train; however, there is an entire population of readers that would disagree with you. His flagship book was Stranger in a Strange Land. Starship Troopers, although great, isn't as well known.
Anyone who has read Heinlein, has likely read Starship Troopers...while he wrote other books, it was far and away his flagship book.
I don't want to derail this train; however, there is an entire population of readers that would disagree with you. His flagship book was Stranger in a Strange Land. Starship Troopers, although great, isn't as well known.
Not to be facetious in any way, But the Heinlein book that was made into a movie was called "Starship Troopers" not "Stranger in a strange land" I'll leave the reasoning exercise as to why that is unto yourself, But strictly speaking, I read ST before the movie came out, and I was number 200 something in the queue to read it at the local library, I'll not speculate if that was a local fluke or not.
Automatically Appended Next Post:
Spoiler:
10 Q. You don't believe that Games Workshop
11 new allegedly infringed works is a Games Workshop
12 product?
13 A. No, I believe that to be a reference to
14 the claims made so the capitalization of "New
15 Allegedly Infringed Works" to me is the claims
16 made by Games Workshop with relation to the
17 corresponding Chapterhouse products. That's how I
18 understand that to be and how I'd assume anyone to
19 understand that to be.
20 Q. So the infringed works would be the --
21 A. No, the infringed works, the way I
22 understand it, you can only have a product -- you
23 can only have an infringed product if there is a
24 corresponding product that infringes.
Q. Right. So the infringed product would
2 be the Games Workshop product?
3 A. No. In order to have something
4 infringed, there has to be a corresponding item
5 that infringes.
6 Q. So there's a Chapterhouse allegedly
7 infringing project and a Games Workshop allegedly
8 infringing product?
9 A. The way that works, you have to infer
10 the existence of A for the existence of B and the
11 existence of B for the existence of
The Prof. Sure does have an intrinsic relation to language, I am impressed.
Not to be facetious in any way, But the Heinlein book that was made into a movie was called "Starship Troopers" not "Stranger in a strange land" I'll leave the reasoning exercise as to why that is unto yourself, But strictly speaking, I read ST before the movie came out, and I was number 200 something in the queue to read it at the local library, I'll not speculate if that was a local fluke or not.
I'm assuming you've never read it; otherwise you'd understand that Stranger would never translate well into a movie. Of course, to compare to that number 200 in the queue at your library, in 2012 the Library of Congress named Stranger in a Strange land one of the 88 "Books that Shaped America". So... yeah, I'd say it's a bit more of Heinleins flagship that ST.
Not to be facetious in any way, But the Heinlein book that was made into a movie was called "Starship Troopers" not "Stranger in a strange land" I'll leave the reasoning exercise as to why that is unto yourself, But strictly speaking, I read ST before the movie came out, and I was number 200 something in the queue to read it at the local library, I'll not speculate if that was a local fluke or not.
I'm assuming you've never read it; otherwise you'd understand that Stranger would never translate well into a movie. Of course, to compare to that number 200 in the queue at your library, in 2012 the Library of Congress named Stranger in a Strange land one of the 88 "Books that Shaped America". So... yeah, I'd say it's a bit more of Heinleins flagship that ST.
See the tiny flag next to my avatar? That's the Swedish flag, i.e Not united states -- not even the same continent -- And i've read _everything_ by Heinlein, although I did read SiaSL around.. 20 years ago. But my reading habits are severely OT.
So back on track, Starship Troopers was made into a franchise, it was loosely based on the book. The franchise includes: 4 Movies 2 Games 1 TV Series and a few other spinoffs. All of these are sure to have sparked more than a passing interest in the book over the years. this link is of interest as well.
All of these are sure to have sparked more than a passing interest in the book over the years.
this link is of interest as well.
I understand; it just isn't enough. Add "stranger in a strange land" to the list of search terms; same time period. SiaSL had no movie, no games, no tv series and it still eclipses the searches for ST. So, I'm not entirely certain what it is your trying to show...
I'm not quite sure what you're aiming at either, But to answer your question, as far as popculture adoption and dissemination thereof, Starship Troopers holds a great deal of mindshare in mainstream culture. as per this Trends query, i'm still a bit flabberghasted by your claim.
I'd never heard of Stranger until today so I think xcasex has it right, it might be more important in a proper literary sense (I have no clue in that regard) but in this context (ie pop culture) Starship troopers is by far the more recognizable.
Anyway back on topic:
MisterMoon wrote: Can someone provide a decent Cliffs Notes version of this trial to date?
GW hit CH with a lawsuit for copyright infringement.
GWthen filed for the copyright on their shoulder pads.
Said copyright was rejected on the grounds it is simple geometric shapes.
GW failed to mention this before the judge made a summary judgment that they could be and the case went ahead.
At some point GW put forwards 20(ish) year old art saying they have owned that look for decades.
The artists of said art have claimed that GW doesn't actually own the art. GW insisted they did but lost the paperwork and tried to get the artists to sign it over (both refused and I believe one submitted a proper legal document says something to the effect of 'no that's bull gak, they never owned it').
GW got caught out hiding the emails between them and the copyright office and gave a middle school-y response of "No one ever got back to us about it so we thought it was dealt with" response. We have yet to have the judge comment on this afaik but there was mention of fines in the area of $10,000 if he decides GW were deliberately hiding evidence.
(I'm pretty sure it was only after that all came out) GW told the copyright office they will not appeal the decision, instead waiting to see the outcome of the case.
Then the next big thing to happen was this witness thing half of us are still trying to get through.
I'm sure I missed a lot and got at least one thing wrong but that's more or less what I recall since I jumped into this thread 20 odd pages back.
I know that the Professors report will be presented in court as evidence, but do the disposition records ever make it there?
The reason I ask is to do with a supplemental question on the Profs knowledge of GW. A jury is to consider only evidence/facts presented/heard inside the courtroom, but the GW 'Space Marine' issue was raised and left unchallenged. I wonder whether or not this may reinforce the big bad GW image.
One of the problems with GW's case is that so many things are included in the complaint that it would take a ridiculously long time to examine them all. That is why in the deposition cross-examination they concentrated on the shoulder pads in such depth -- the lawyer wanted to drill down and get a clear statement on one thing which presumably he would generalise to the rest of it. Also, they were attacking it from the copyright angle but a lot of the case is actually about trademarks.
TBH I don't recall if GW have complained about an infringement on Space Marine by CH. Remember this is a separate case to "Spots the Space Marine".
AndrewC wrote: I know that the Professors report will be presented in court as evidence, but do the disposition records ever make it there?
The reason I ask is to do with a supplemental question on the Profs knowledge of GW. A jury is to consider only evidence/facts presented/heard inside the courtroom, but the GW 'Space Marine' issue was raised and left unchallenged. I wonder whether or not this may reinforce the big bad GW image.
Cheers
Andrew
Depositions can be entered into evidencd in courtrooms...in whole or in part. They might not be entered in at all too.
The issue relating to the trademarks not being challenged in this case is actually because CHS doesn't want to invalidate GW's trademarks. They want the freedom to use them in a nominative fashion, just like any other aftermarket part or accessory supplier does in any number of industries. As a result, it is unlikely that we will see any of the claimed marks actually "invalidated" as those marks are what need to be used in order to identify the various bits and bobs sold by CHS.
Yes you're right, I wasn't very clear in my post. I am refering to the Spots carry-on.
I suppose I'm focusing on the "previous offences" question, where someone, who has a history of doing X, is tried for doing X again, but the jury isn't told about all the other Xs when deciding on guilt.
The Prof has raised the issue of GWs action over something that they didn't own. That subtle reminder of that fiasco may just tip a decision.
AndrewC wrote: Yes you're right, I wasn't very clear in my post. I am refering to the Spots carry-on.
I suppose I'm focusing on the "previous offences" question, where someone, who has a history of doing X, is tried for doing X again, but the jury isn't told about all the other Xs when deciding on guilt.
The Prof has raised the issue of GWs action over something that they didn't own. That subtle reminder of that fiasco may just tip a decision.
Cheers
Andrew
I think it is certainly an important point to make in regards to those trademarks. If GW was unable(for whatever reason) to defend a trademark that they ALLEGEDLY own, it is not a far stretch to apply that ruling here, and to bring up that case where GW tried to just throw their weight around regardless of any legal rights to the term would certainly shed light on exactly what happened here.
GW sent a C&D to someone, that person folds, but only because they can't afford to argue, not because they actually were breaking any laws. In the case of Spot the Space Marine, C&D's were sent, and legal action against GW was taken against GW for trying to claim they owned a term that existed in as early as 1930.
I think the jury has every right to know that GW sues anyone they can for anything they can. I think the jury should also know that when the defendants in those suits actually has the resources to fight back(in this case pro bono representation) that GW either backed down or lost.
I think the last few years paint a very negative image of GW to the public non playerbase(playerbase already had a bad image). They C&D's a lot of people into closing, they tried it with a damn Ebook and lost, they had the whole copyright after the fact fiasco, they lied about owning artwork rights, and they said that they own damn near every word that has ever been associated with their games.
To my knowledge GW still has not shown any legitimate ownership or registration of copyrights and trademarks on the majority of items, unless I missed something in the last 119 pages. How can you sue someone for something you claim to own, but you can't prove ownership of?
Just a note on the Spots issue, which can easily stray off topic (and there is a thread for it), if you look in that thread you'd find that GW did not send a C&D to the author, but rather a DMCA takedown to Amazon.com.
As I appreciate it, it came out that the DMCA did not cover trademarks, so Amazon did not get safe harbor from removing the content anyhow. Not surprisingly, Amazon put the content back up. GW did not actually threaten a lawsuit, and spurious as the trademark claim may have been, the resolution to the issue was quite unrelated to the strength of the alleged word mark, but rather to do with the nature of the DMCA.
weeble1000 wrote: Just a note on the Spots issue, which can easily stray off topic (and there is a thread for it), if you look in that thread you'd find that GW did not send a C&D to the author, but rather a DMCA takedown to Amazon.com.
As I appreciate it, it came out that the DMCA did not cover trademarks, so Amazon did not get safe harbor from removing the content anyhow. Not surprisingly, Amazon put the content back up. GW did not actually threaten a lawsuit, and spurious as the trademark claim may have been, the resolution to the issue was quite unrelated to the strength of the alleged word mark, but rather to do with the nature of the DMCA.
Fair enough. So GW throws out DMCA complaints without knowing what the DMCA actually is?
If a company can't figure out that, then it brings their understanding of most copyright and trademark issues under question. Clearly GW doesn't understand fair use laws in regards to product compatibility, nor do they seem to grasp the fact that basic geometry can't be copyrighted.
So here is a question:
IF the jury of non expert civilians decides that the shoulder can/should be protected under copyright, does the Copyright Office have any obligation to grant copyright?
To me, the USCO(or w/e their acronym is) has already declined it, and since they are experts then that decision should stand.
I wonder why the Professor didn't mention Alien as it had a handheld flamethrower and came out about the same time. One could also probably dig up WW2 or WWI flame throwers and use them for reference.
299 is up, the parties want a minor scheduling change. It isn't signed by the judge yet:
STIPULATION MODIFYING SUMMARY JUDGMENT BRIEFING SCHEDULE
WHEREAS the current scheduling order entered December 12, 2012 provides that the parties shall have one week to oppose summary judgment motions (to and until March 11, 2013) and two weeks thereafter to serve reply briefs (to and until March 25); and
WHEREAS the parties do not wish to change the end date for completion of briefing summary judgment motions but do want to alter the allocation of time for filing initial opposition briefs;
IT IS HEREBY STIPULATED AND AGREED, subject to the approval of the Court,
that the deadline to submit briefs in opposition to the pending motions for summary judgment
shall be March 14, 2013, with the March 25, 2013 date for submission of final reply briefs, if
any, remaining unchanged.
SO ORDERED
this ___ day of March, 2013
So dates to mark on your calendar - March 14 and March 25 there should be another set of documents for us to peruse.
IF the jury of non expert civilians decides that the shoulder can/should be protected under copyright, does the Copyright Office have any obligation to grant copyright?
To me, the USCO(or w/e their acronym is) has already declined it, and since they are experts then that decision should stand.
The Copyright Office doesn't grant copyright - it acts as a public record house for copyright ownership and works. An author gets copyright just by creating something copyrightable. A work is either covered by copyright or it isn't. It doesn't need registration like a patent.
Because the C.O. is staffed with experts (and to create an incentive to register stuff), registering with them gives you a bunch of bonuses - prima facie recognition that you own the copyright in something, and that it is a valid copyright, access to special statutory damages and legal costs awards.
What the C.O. has done in this case is reject GWs request to register - they don't think the shoulder pad is copyrightable so they aren't accepting it. They may (or may not) show up in this case to advance that argument / defend that position. However, their initial rejection isn't the final word.
Barfolomew wrote: I wonder why the Professor didn't mention Alien as it had a handheld flamethrower and came out about the same time. One could also probably dig up WW2 or WWI flame throwers and use them for reference.
A lot of these things were mentioned in his report. The deposition only covers what the GW lawyer felt a need to ask questions about. 289.6, page 24 covers the Alien flamethrowers. 289.7 starting at page 70 shows his table which includes a lot of other references that were used. That table actually goes through 289.9 page 56 (so lots of pages of stuff).
Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.
But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?
MisterMoon wrote: Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.
But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?
The question is not about intellectual property protection, but proper intellectual property protection. I don't think anyone in this thread would say that a gaming company does not deserve the right to protect its trademarks and artistic expressions. I am, for example, a very strong believer in copyright protection. But because I am such a strong believer in it, I find it galling when one attempts to overly broaden the scope of said protection in a way that undermines the fundamental purpose of the protection.
Copyright, for example, is intended to protect artistic expression, and therefore to cultivate it. Patents are intended to, as the US Constitution says, "promote the progress of science and the useful arts..." Trademarks are intended to promote fair competition in the market, and in fact US trademark law originates in President Harry Truman's anti-trust legislation.
These protections are useful and beneficial, but also dangerous and destructive if used improperly. Within US Copyright code you can find warning after warning after warning of the danger of overbroad protection. US 17 102(b): "Copyright protection for an original work of authorship does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
You don't get language much stronger than that: does not extend...to any...regardless. That limitation is there because overly broad copyright protection, just like overly broad patent protection or trademark protection, perverts the very purpose of the laws. If copyright protection covers an idea, it restricts the creation of new works of art. If patent protection is overly broad, it prevents others from building upon existing technology. If trademark protection is overly broad, it can create monopolies, rather than restrict their development.
Intellectual property is not intellectual because it only exists in your mind; it is intellectual because it is the product of your intellect.
It is not what you wish, or imagine, or desire, or what someone else has already done. It is what you actually create; what is unique to you and nothing, absolutely nothing, beyond that.
MisterMoon wrote: Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.
But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?
It is not GW against Chapterhouse, it is more GW legal and bean counters against every creative person working in the industry, including the GW design team. That's why I will answer with one of the founders of GW, as featured in a WD editorial:
Essential part:
It seems evidentthat nobody will gain from this strict enforcement of copyright laws, but the SF/F hobbyist will definitely lose.
Everyone responsible for GW growth knows this, everyone responsible for GW stagnation and shrinking customer base is not aware of this.
Barfolomew wrote: I wonder why the Professor didn't mention Alien as it had a handheld flamethrower and came out about the same time. One could also probably dig up WW2 or WWI flame throwers and use them for reference.
I think in Aliens the weapon was called an incinerator. GW's contention is that they own the trademark "flamer" for description of handheld flamethrower weapons in games, not the fundamental concept of the weapon.
MisterMoon wrote: Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.
But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?
I generally agree with Posner's approach to copyright (shorter terms, stronger fair use provisions, only copyright when it is a net benefit to society etc..). I don't think there is some moral right to copyright (aside from privacy rights in unpublished works). It is a tool to encourage creativity and innovation, not a device to enrich rent seekers or criminalize vast swathes of the population. Likewise trademark should be primarily used for consumer protection instead of tool to stifle competition.
Posner is an appeals court judge who may hear any appeals arising from this lawsuit.
Stuart Banner has a decent and approachable history of the development of intellectual property (and other property) in the US that while not directly answering your question, still shows how far things have drifted (American Property: A History of How, Why, and What We Own (Harvard University Press, 2011). Worth checking out from the library.
MisterMoon wrote: Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.
But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?
I generally agree with Posner's approach to copyright (shorter terms, stronger fair use provisions, only copyright when it is a net benefit to society etc..):
Posner is an appeals court judge who may hear any appeals arising from this lawsuit.
I've been involved with IP cases before Posner, and I have worked for clients on both ends of some of his, well, tough rulings. But I have to agree with his philosophy. IP is dangerous when it goes too far.
I read something about IP once. I forget the author, but it seemed spot on.
Corporations don't decide not to sue for a violation of IP because they are nice people, they decide not to sue because their legal team says they don't have a case. It seems that GW has taken this practice to it's logical and unfortunate conclusion.
Their summary seems to contradict what I've read in this thread and seems to imply GW already won.
Notably, from what I understand in this thread, the court rejected GW's claim that they can copyright the shoulderpad shape. Faeit212 seems to imply GW successfully won the right to copyright the shape.
It's a decent summary, but he obviously hasn't been following the case very closely - he missed the motion to reconsider and was unaware that CHS was being represented pro bono:
GonkyMarch 7, 2013 at 1:30 PM
I can tell you that it would be rare to take a case like this Pro Bono, as our annual pro bono hours would be run through in a matter of days in a complex litigation. How do you know this is pro bono?
-J.Mike
czakk wrote: It's a decent summary, but he obviously hasn't been following the case very closely - he missed the motion to reconsider and was unaware that CHS was being represented pro bono:
GonkyMarch 7, 2013 at 1:30 PM
I can tell you that it would be rare to take a case like this Pro Bono, as our annual pro bono hours would be run through in a matter of days in a complex litigation. How do you know this is pro bono?
-J.Mike
Besides not knowing about the pro-bono representation, he is right that those types of representations are rare in IP related cases.
Their summary seems to contradict what I've read in this thread and seems to imply GW already won.
Notably, from what I understand in this thread, the court rejected GW's claim that they can copyright the shoulderpad shape. Faeit212 seems to imply GW successfully won the right to copyright the shape.
GW prevailed in the summary judgment on that issue:
Upon independent examination, the Court finds that GW’s shoulder pads involve enough originality to afford them copyright protection. The unusually large proportional size of the shoulder pads as compared t o the Space Marine’s head ( depicted in GW’s product at entry 49) is a creative addition to the common shoulder pads sometimes worn by real -life soldiers in battle. The shoulder pads created to fit onto GW’s physical figurines, though more proportionally accurate, are nevertheless still larger and boxier than those typically found outside of the Warhammer 40,000 fantasy world. The Court thus concludes that GW is entitled to copyright protection as to the design of its shoulder pads.
This was a big win for GW. However, at the same time that the preliminary bits of the lawsuit were going on the copyright office rejected GWs application for some shoulder pads and GW didn't inform the court. This has given CHS a chance to get the judge reconsider his ruling.
GW also manage to get it's specific space wolf logo upheld as copyrighted - but that doesn't prevent bitz makers from making a different snarling wolf shape. And as J. Mike noted, the flesh tearer's icon was ruled not copyrightable.
Trademark claims:
He didn't mention CHS winning on the dilution front, which they did.
Fair use by CHS - he mentions CHS not winning on the fair use issue, what he means is that the court declined to rule on the fair use issue, this is going to trial. A bunch of the trademark issues are going to trial instead of CHS just getting them tossed in the summary judgment.
This BOLS article, written when the opinion was first posted, contains many of the substantive quotes. Not to be a huge jerk or anything, but the Faeit 212 article is incomplete, untimely (for news), uninformed, and consequently misleading.
MisterMoon wrote: Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.
But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?
Others have said it, but I will echo some things here. Current US IP laws (copyright in particular) do not encourage creativity...they encourage laziness. By providing defacto monopolies on creative works, artists have no motivation to do anything else. The term lasts till long after they are dead and buried. I will point to the specific example of "Happy Birthday to You" as to the issues with the copyright laws.
Shorter terms to protect works would encourage creativity. If the term expired afterm10 years or so...you would need to remain creative in order to make a living being creative. Companies would not be able to flog the dead horse and new authors would be able to create new works based on existing works while they are still more relevant (consider how much Cthulhu related material was not actually written by HP Lovecraft).
To some extent certain countries have been dealing with this already with the introduction of things like Design rights. These tend to be shorter in duration though limited to mass produced goods (in all liklihood this case would be trademark and design in the UK as opposed to copyright and the design terms would have been expired).
Barfolomew wrote: I wonder why the Professor didn't mention Alien as it had a handheld flamethrower and came out about the same time. One could also probably dig up WW2 or WWI flame throwers and use them for reference.
I think in Aliens the weapon was called an incinerator. GW's contention is that they own the trademark "flamer" for description of handheld flamethrower weapons in games, not the fundamental concept of the weapon.
Correct on the terminology, though GW also appear to be making a copyright claim in regards to the design which would be comparable to the Aliens design (though heroicly scaled).
MisterMoon wrote: Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.
But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?
While interesting, this is off-topic for this thread; please feel free to start a new thread if you want to discuss.
Their summary seems to contradict what I've read in this thread and seems to imply GW already won.
Notably, from what I understand in this thread, the court rejected GW's claim that they can copyright the shoulder-pad shape. Faeit212 seems to imply GW successfully won the right to copyright the shape.
This isn't a bad run down, but I wish it was more objectionable.
To mean, this suggests, that GW can probably stop other companies from molding/selling their own SM shoulder pads so long as they look enough like the GW pads. Yes – the plain should pads with no markings.
It seems anytime the court favored with GW, that the court's opinion was flawed in some way- injecting his (biased) opinion. The shoulder pads are large compared to the mask etal, and their dimensions as such promote a copyrightable pattern, the court says. He then criticizes "yes even the plain pads," which is an observation different from what the court said made them copyrightable. In other words he's leading the opinion away from it's main point.
Second, the court held that shoulder pads + chapter markings + specific color schemes are also protect-able under copyright law. After having said the first thing, the court didn't really need to say the second (and one wonders if the court actually understands the hobby, as bits aren't sold pre-painted).
But they are advertised painted on CHS website... right?
Second, the court held that shoulder pads + chapter markings + specific color schemes are also protect-able under copyright law. After having said the first thing, the court didn't really need to say the second (and one wonders if the court actually understands the hobby, as bits aren't sold pre-painted).
But they are advertised painted on CHS website... right?
in this case, i believe it has everything to do with presentation. Pads+markings+paintjob (so, specifically, lets say ultramarines) are protectable. It's a very specific image that is symbolic of GW product. So, say, CHS making an omegamarine pad, painting it to the same colors as the UM, there would be an issue. I see that it's the confluence of those three things that cause the problem, not the individual factors. It hasn't to do with the items being unpainted, but as advertised when painted. CHS doesn't sell pre-painted bits.
![[Disk]](/dakkaforum/templates/default/images/icon_disk.gif){kind=icon}
A bit on the nose for a german to be complaining about US ip practices given the recent tendency of german courts to offer ex parte injunctions for ip stuff at the drop of a hat.
... wait! 
)
