Dheneb wrote: Does anyone think there's any chance of GW backing down and settling, now that there are some pretty big names coming to the table?
That would be the smart thing to do, which is why GW will double down and try anything to salvage the unsalvagable.
"Salvage the unsalvagable"? I don't know if you noticed but CHS lost the case. If you get tried with 20 counts of burglary and get found guilt of 10, the guy who's house you burgled won't give up just because the other guy has big names on his side.
Unless there's something I'm not aware of that would mean CHS was not guilty or that GW was about to lose the case or something, which I haven't seen.
Yeah no. GW lost this. **Edit, as Kilkrazy said below it's still in appeals, all I am saying it that so far this is how it has shaped up**
It was proven that GW do not in fact own the trademarks on even a quarter of the things they say they do. GWs layers failed to put Chapterhouse out of business and in fact laid out a nice set of guidelines for any other bits makers to follow in the future rather than scare them. GW exposed to the world that they DO NOT OWN THE TRADEMARK ON THEIR ICONIC SHOULDERPADS. GW wanted to shut down the after markets bitz market but instead they strengthened it. This was an embarrassing loss for them.
As Baragash pointed out this is not a criminal law case, having the jury side with GW on 1 count does not mean CH lost, especially when the jury sided with them for over 2/3rds of the issues that actually made it to trial (and a LOT were dropped before that).
Dheneb wrote: Does anyone think there's any chance of GW backing down and settling, now that there are some pretty big names coming to the table?
That would be the smart thing to do, which is why GW will double down and try anything to salvage the unsalvagable.
"Salvage the unsalvagable"? I don't know if you noticed but CHS lost the case. If you get tried with 20 counts of burglary and get found guilt of 10, the guy who's house you burgled won't give up just because the other guy has big names on his side.
Unless there's something I'm not aware of that would mean CHS was not guilty or that GW was about to lose the case or something, which I haven't seen.
Since it wasn't burglary, and anyway it is still in appeals, your point is worthless.
silent25 wrote: So the firm that led the failed defense of Apple's rounded corner patent is now leading the fight against another firm claiming generic geometric shapes? Someone is calling the kettle black.
Well, this is off topic, of course, and a rather unfair characterization. Apple won a 1.05 billion dollar verdict, so it is really hard to say that Apple's counsel failed. One of the many patents asserted was a design patent that specified rounded corners, among a combination of many specific design elements such as the home button, the placement of buttons, the edge to edge black glass, etc., This patent was not found to have been infringed. Neither was said design patent found to be invalid, merely not infringed. This finding of the jury nevertheless resulted in a 1.05 billion dollar verdict.
Feel how you like about design patents, but Apple asserted a design patent granted by the USPTO, which carries a presumption of validity. The jury made a decision about it. That's that. It was a small part of the case, and demonstrably insignificant to the damages award. Personally, I think comparing Apple's assertion of a design patent to, say, Games Workshop's assertion of an unspecifically slanted barrel shroud attached to anything vaguely gun-shaped is patently unfair, pun intended to lighten the mood.
Dheneb wrote: Does anyone think there's any chance of GW backing down and settling, now that there are some pretty big names coming to the table?
I doubt the other party would be willing to settle now, unless it was quite substantial.
Good point, from my (admittedly limited) understanding of how the case currently stands chapterhouse has no reason to listen even if GW wanted to settle.
GW have acted like bossy children determined to get their way from the get go, if I where in CHs shoes and GW offered a reasonable settlement I wouldn't take it out of spite.
Don't forget that Nick Villacci has stated that he would prefer to settle, and that he had settlement discussions with Games Workshop with offers on the table right up until the jury verdict came in, and we know the parties negotiated settlement in the past month or so. And also don't forget that it was of Games Workshop that Judge Gilbert said that if you consider this a zero sum game, go away, die, and pay us whatever you can of our attorneys' fees, there's no basis for settlement.
The extant evidence suggests it is Games Workshop that is unwilling to settle. In fact, Games Workshop's lead counsel has stated, for example, that a license is a non-starter. So what we actually know about points to Games Workshop taking things off of the table, rather than looking to settle. I'm sure if any of you were in a years long legal battle, you would rather it just be over so you could get along with your life.
Dheneb wrote: Does anyone think there's any chance of GW backing down and settling, now that there are some pretty big names coming to the table?
That would be the smart thing to do, which is why GW will double down and try anything to salvage the unsalvagable.
"Salvage the unsalvagable"? I don't know if you noticed but CHS lost the case. If you get tried with 20 counts of burglary and get found guilt of 10, the guy who's house you burgled won't give up just because the other guy has big names on his side.
Unless there's something I'm not aware of that would mean CHS was not guilty or that GW was about to lose the case or something, which I haven't seen.
More like 10 and 3. And a civil case is not the same as a criminal case. Neither Chapterhouse Studios nor Games Workshop are criminals. This is a case about competitors in a market. There is no "victim," though one can make a fine case that if there were a victim, it would be Chapterhouse Studios and Nick Villacci as Games Workshop has stated multiple times that Games Workshop has not suffered harm to its business as a result of Chapterhouse Studios.
"Salvage the unsalvagable"? I don't know if you noticed but CHS lost the case. If you get tried with 20 counts of burglary and get found guilt of 10, the guy who's house you burgled won't give up just because the other guy has big names on his side.
Unless there's something I'm not aware of that would mean CHS was not guilty or that GW was about to lose the case or something, which I haven't seen.
To make a more apt criminal comparison:..
Games Workshop: We accuse CHS of 12 counts of murder in the first degree, 14 counts of armed theft of Federation property, 22 counts of piracy in high space, 18 counts of fraud, 37 counts of rape and one moving violation.
Foreman of the Jury: we find CHS innocent of all charges, save the moving violation, which we find them guilty and sentence them to pay a $50 fine.
"Salvage the unsalvagable"? I don't know if you noticed but CHS lost the case. If you get tried with 20 counts of burglary and get found guilt of 10, the guy who's house you burgled won't give up just because the other guy has big names on his side.
Unless there's something I'm not aware of that would mean CHS was not guilty or that GW was about to lose the case or something, which I haven't seen.
To make a more apt criminal comparison:..
Games Workshop: We accuse CHS of 12 counts of murder in the first degree, 14 counts of armed theft of Federation property, 22 counts of piracy in high space, 18 counts of fraud, 37 counts of rape and one moving violation.
Foreman of the Jury: we find CHS innocent of all charges, save the moving violation, which we find them guilty and sentence them to pay a $50 fine.
Games Workshop: We won!
I am more inclined to think of it as a poker game -
GW had to buy a deck to get into the game, Chapterhouse got in free.
GW then lost two out of three games, and wasn't even allowed to play in some others. (You do know that is a Pinochle deck, don't you? You'll have to sit this one out.)
Now they want to play the same games again, using the same cards, and expect to win?...
It would really, really help if the folks at GW were playing according to Hoyle, but they have very little idea of how the game is even played. (No, you can't yell 'Go fish!'...)
That the person in charge of their IP did not know the difference between Trademark and Copyright... and may be a bit shaky on Trade Dress....
You can't really compare criminal and civil proceedings; apples and oranges. Sure, they're both share some characteristics but you can't say "win" or "lose" clearly like in criminal proceedings.
How do you keep score? Number of counts guilty vs. innocent?The number of items that Chapterhouse was found to be infringing was miniscule when compared to the number of items brought against them.
Money spent/lost? Chapterhouse was found to be infringing on a small number of items and the bill came up to about $25k sure but it cost GW, at best guess, several hundred thousand dollars (at least) to get that $25k. In he process they lost control of a great number of items that they've been able to bully small parts makers out of business over. So, who was hurt more? Chapterhouse stays in business and gets to continue making the majority of their goods that GW hated them being able to AND other bits makers are now protected if they make similar products.
Yeah, Chapterhouse won and so did every small-time GW compatible bit maker in the hobby.
I'm glad for this decision. In my opinion there are a lot of really artistic types in this hobby who probably know how to make some amazing accessories for GW mini's, but they don't because they don't want to be sued. This should open the door to allow those people to put up legitimate websites to sell great products. For instance I didn't even know about chapterhouse before reading this thread, but since going on their website I've found some amazing stuff that I've ordered.
More like 10 and 3. And a civil case is not the same as a criminal case. Neither Chapterhouse Studios nor Games Workshop are criminals. This is a case about competitors in a market. There is no "victim," though one can make a fine case that if there were a victim, it would be Chapterhouse Studios and Nick Villacci as Games Workshop has stated multiple times that Games Workshop has not suffered harm to its business as a result of Chapterhouse Studios.
Right but being guilty of *any* amount of crimes still makes you guilty. If Nick Vallacci didn't want to lose his business he shouldn't have started making money by illegally exploiting other company's IP. A lot of people seem to be assuming this will "damage" GW in some way but realistically, the number of people who have heard of this case, and the number of *them* who decide to check out CHS after reading about it, and the number of *them* who'll pay a few bucks for some shoulder pads...well it's not that large. Certainly not large enough to pay for the $25k fine.
More like 10 and 3. And a civil case is not the same as a criminal case. Neither Chapterhouse Studios nor Games Workshop are criminals. This is a case about competitors in a market. There is no "victim," though one can make a fine case that if there were a victim, it would be Chapterhouse Studios and Nick Villacci as Games Workshop has stated multiple times that Games Workshop has not suffered harm to its business as a result of Chapterhouse Studios.
Right but being guilty of *any* amount of crimes still makes you guilty. If Nick Vallacci didn't want to lose his business he shouldn't have started making money by illegally exploiting other company's IP. A lot of people seem to be assuming this will "damage" GW in some way but realistically, the number of people who have heard of this case, and the number of *them* who decide to check out CHS after reading about it, and the number of *them* who'll pay a few bucks for some shoulder pads...well it's not that large. Certainly not large enough to pay for the $50k fine.
First: $25k, not $50k. Second: the results from the recent Kickstarter campaign seem to suggest you are factually in error. Third: this is off-topic. Please don't derail the thread any further along this line of discussion.
xruslanx wrote: Right but being guilty of *any* amount of crimes still makes you guilty. If Nick Vallacci didn't want to lose his business he shouldn't have started making money by illegally exploiting other company's IP. A lot of people seem to be assuming this will "damage" GW in some way but realistically, the number of people who have heard of this case, and the number of *them* who decide to check out CHS after reading about it, and the number of *them* who'll pay a few bucks for some shoulder pads...well it's not that large. Certainly not large enough to pay for the $25k fine.
Chapterhouse have not been found guilty of any crime. As was just pointed out to you, criminal procedings are not the same as a civil suit.
agnosto wrote: it cost GW, at best guess, several hundred thousand dollars (at least) to get that $25k.
I just want to emphasize that GW has spent in the millions of dollars. GW's legal team was bigger and more senior than CHS'... Given that, there is absolutely no way, as of the time the jury made its decision, GW spent anything less than $5 Million to pursue all of this. I know CHS' representation spent a similar amount and it was a smaller less senior team. We're looking at GW getting a half of a percent of what they spent.
For anyone who still has doubt about the victor. If CHS "lost," then CHS would have to lose 200 more times for GW to "win".
More like 10 and 3. And a civil case is not the same as a criminal case. Neither Chapterhouse Studios nor Games Workshop are criminals. This is a case about competitors in a market. There is no "victim," though one can make a fine case that if there were a victim, it would be Chapterhouse Studios and Nick Villacci as Games Workshop has stated multiple times that Games Workshop has not suffered harm to its business as a result of Chapterhouse Studios.
Right but being guilty of *any* amount of crimes still makes you guilty. If Nick Vallacci didn't want to lose his business he shouldn't have started making money by illegally exploiting other company's IP. A lot of people seem to be assuming this will "damage" GW in some way but realistically, the number of people who have heard of this case, and the number of *them* who decide to check out CHS after reading about it, and the number of *them* who'll pay a few bucks for some shoulder pads...well it's not that large. Certainly not large enough to pay for the $25k fine.
It isn't a crime.
A crime results in a criminal prosecution. This is a civil case.
More like 10 and 3. And a civil case is not the same as a criminal case. Neither Chapterhouse Studios nor Games Workshop are criminals. This is a case about competitors in a market. There is no "victim," though one can make a fine case that if there were a victim, it would be Chapterhouse Studios and Nick Villacci as Games Workshop has stated multiple times that Games Workshop has not suffered harm to its business as a result of Chapterhouse Studios.
Right but being guilty of *any* amount of crimes still makes you guilty. If Nick Vallacci didn't want to lose his business he shouldn't have started making money by illegally exploiting other company's IP. A lot of people seem to be assuming this will "damage" GW in some way but realistically, the number of people who have heard of this case, and the number of *them* who decide to check out CHS after reading about it, and the number of *them* who'll pay a few bucks for some shoulder pads...well it's not that large. Certainly not large enough to pay for the $25k fine.
It isn't a crime.
A crime results in a criminal prosecution. This is a civil case.
Still, basing your business on something that is illegal makes it hard to have any sympathy for this guy.
Still, basing your business on something that is illegal makes it hard to have any sympathy for this guy.
Basing your business on something illegal gets you arrested and charged with a crime.
No matter how many times you try to find another way to say the same thing, this will still have been a civil suit, not a criminal trial, and Chapterhouse will still not have been convicted of anything illegal.
Still, basing your business on something that is illegal makes it hard to have any sympathy for this guy.
Not to mention that illegal does not always mean immoral.
Y'all have to forgive xruslanx. He's a Johnny-come-lately to this party. I'm fairly confident he hasn't bothered to read the 190 pages of this thread leading up to this point, so he really doesn't know what he's talking about. He doesn't know about GW trying to claim ownership of generic terms like "plasma" and "space marine." He doesn't know about how they tried to claim ownership of Roman numerals and arrows. He doesn't know about how they tried to claim ownership of things they didn't even invent, like the eight pointed chaos star. He doesn't know how they tried to claim ownership of terms from history, like "chimaera" and "haemonculus." He doesn't know that about a third of the claims were tossed from the suit before the suit even went to trial. He doesn't know about how GW was scrambling, a year plus into the case, to obtain written assignments of ownership of certain items from artists who created them 25 years ago.
There's a lot about this case xruslanx doesn't know. I'd suggest that he read the thread in its entirety, as extensive as it might be. He'll discover that the same objections he's making now about "illegality" were made three years ago and debunked by people who have expertise in the law, as well as by the actual overall outcome of the case.
Edit:
@X: Here's the most recent kickstarter from CHS. They've pretty much already made what they need to pay off the judgment, or at least the majority of it, from this one release:
Still, basing your business on something that is illegal makes it hard to have any sympathy for this guy.
Not to mention that illegal does not always mean immoral.
Y'all have to forgive xruslanx. He's a Johnny-come-lately to this party.
I'm fairly certain that xruslanx is anything but a newcomer here, though I am fairly certain that he does not understand what actually happened in this case, or what might yet actually happen as well.
Still, amazing to see the high powered law firms lining up to help out CHS, pro bono - this really must be a landmark IP case!
@Alph: I just meant that it doesn't appear that xruslanx has posted in this thread at any time prior to 10-1-2013, so it's unlikely that he's read the whole thing or been keeping up with it since the case began.
I agree that it's pretty interesting that a trio of such high-powered firms have all elected to represent CHS pro-bono. Even more interesting that such a big firm has chosen to step into the fray at this point in the process.
I'm really interested to see what kind of appeals are going to be made from both sides.
If so, that corporate resume is....impressive to say the least. At this point, given the amount of money Games Workshop has already sank into this and given the amount of money they are going to spend on an appeal--do we foresee a settlement? Or would CH even consider that at this point (Or is that even permissible--a settlement on appeal)? As a side note, if I understand that firm to the one linked---Robert Duvall played one of their attorneys in the movie A Civil Action? Haha--wow.
weeble1000 wrote: And this should therefore be taken not as Chapterhouse's confidence in the appeal process, but rather WilmerHale's confidence in the appellate issues. Firms like WilmerHale do not take a losing case pro-bono, and it goes without saying that in order to get approval through the firm's pro-bono committee, the merits of the case would have been evaluated.
Some nice quotes from the last page or so... man, that's a fantastic development in terms of drawing a line and saying GW cannot throw their legal weight beyond it. Because clearly, they're entering a whole new weight class now
It makes sense that these firms would have an interest in the case. It looks easy to get some big wins out of, and if it went the other way it would set a bad precedent for many other things. As it is, it might set an excellent precedent for what is and isn't allowable for 3rd party models / parts.
So just so that I understand, the main IP lawyer of choice for Apple, a company that is plagued by 3rd party rip offs and accessories is defending the right of CHS to produce 3rd party parts.
If even he(they) can see that this is legal, what is preventing GW management from seeing it too?
AndrewC wrote: So just so that I understand, the main IP lawyer of choice for Apple, a company that is plagued by 3rd party rip offs and accessories is defending the right of CHS to produce 3rd party parts.
If even he(they) can see that this is legal, what is preventing GW management from seeing it too?
Cheers
Andrew
Yeah GW seem to be so stubborn on this issue that its almost impressive. I don't think many people have been rooting for them in this case, and the more it goes on the more I want them to be ground to dust beneath the iron shod boots of some pro bono lawyer.
Yeah GW seem to be so stubborn on this issue that its almost impressive. I don't think many people have been rooting for them in this case, and the more it goes on the more I want them to be ground to dust beneath the iron shod boots of some pro bono lawyer.
As a past recipient of GW's overreaching 'screw the law, deploy lawyers!' approach to IP, I can say that I gleefully will embrace the idea of pro bono lawyers stomping on GW.
AndrewC wrote: So just so that I understand, the main IP lawyer of choice for Apple, a company that is plagued by 3rd party rip offs and accessories is defending the right of CHS to produce 3rd party parts.
If even he(they) can see that this is legal, what is preventing GW management from seeing it too?
Cheers
Andrew
Apple's lawyers are probably in the same position GWs are... The client says to do something and they have to try and do it, whether they agree with it or not.
AndrewC wrote: So just so that I understand, the main IP lawyer of choice for Apple, a company that is plagued by 3rd party rip offs and accessories is defending the right of CHS to produce 3rd party parts.
If even he(they) can see that this is legal, what is preventing GW management from seeing it too?
Cheers
Andrew
Apple's lawyers are probably in the same position GWs are... The client says to do something and they have to try and do it, whether they agree with it or not.
I don't think Apple is plagued by 3rd party ripoffs and unwanted accessories. Apple embraces aftermarket accessories. Hell, that's pretty much all apps are, and Apple makes the tools to create apps freely available.
Apple has reacted strongly against direct competitors copying its core technology, which is a whole other ballpark.
Remember that Apple has always been a computer technology company. It is only relatively recently that Apple got into cell phones when those technologies merged, thanks in part to innovations on the part of Apple engineers. Samsung has fingers in a lot of pies, but Samsung was a (latter) member of the MENS club (Motorola, Ericon, Nokia, Samsung [Samsung replaced Siemens]) that established and sought to control cellular technology. In this respect, Samsung was, and still is, a giant in the cell phone industry. Apple is a relative newcomer, and had to break through extremely harsh conditions to get into that market. Don't forget that Apple has been involved in numerous FRAND (Fair, reasonable and not discriminatory) cases with the likes of Motorola, Nokia, and Ericsson owing to the large cross-licensed cell phone patent portfolios among the MENS club and extant industry standards to which one must adhere.
Apple broke into that market nonetheless and offered consumers a type of product that literally changed the way we approach personal computing technology today. Apple tore up market share in the cell phone industry with a 20 dollar hardware module thrown into a suped up iPod. Those companies were out for blood, and as market share began to dwindle they started to cannibalize one another with aggressive patent litigation. Samsung looked at the writing on the wall, took the fast track, and copied Apple's method of success, including copying patented technology and spamming the market Apple had been dominating with lower cost devices that undercut Apple's products. That is why Samsung is sitting on top of a pile of rotting cell-company corpses today.
Now, some may feel that this is good for consumers, and this is a fine opinion. Some may feel that Apple's patents covered too much. Some may feel that Samsung did not take anything of measurable value. But whatever camp you are in, what is described above is the basis for the blood feud between Apple and Samsung. It really does not compare to Games Workshop and Chapterhouse Studios in any way, shape, or form. It is two giant companies viciously competing in a critical market with a ton of justifiable baggage over their heads.
czakk wrote: I think they want to do an appeal, and I think they must be interested in the costs decision and shaping some of the briefs - afaik that's going to be an opportunity for 'new law'. Being able to get costs for a mixed decision like this would be a boon for anyone doing defence work and might discourage the kind of litigation strategy employed in this case (claim everything in the world, win on only a few).
Question I have, could we see WH get a major victory, get a large portion of their costs paid by GW, but still CHS get stuck with some of the associated costs of the pro-bono work (copies, filings, etc)? Essentially a pyrrhic victory for CHS?
czakk wrote: I think they want to do an appeal, and I think they must be interested in the costs decision and shaping some of the briefs - afaik that's going to be an opportunity for 'new law'. Being able to get costs for a mixed decision like this would be a boon for anyone doing defence work and might discourage the kind of litigation strategy employed in this case (claim everything in the world, win on only a few).
Question I have, could we see WH get a major victory, get a large portion of their costs paid by GW, but still CHS get stuck with some of the associated costs of the pro-bono work (copies, filings, etc)? Essentially a pyrrhic victory for CHS?
Possible - but not likely.
Also possible is that CHS might be accountable for the costs of the counts that GW actually won, and GW responsible for CHS costs on the ones where GW lost.
More likely, null score - neither gets the other's costs.
The appeal... I very much doubt that much will be found in GW's favor.
In their shoes I would be backing away, slowly, not readying to charge my head into the wall, again.
STATUS Report Supplemental Joint Status Report regarding Entry of Injunction by Chapterhouse Studios LLC, Games Workshop Limited (Keener, Jason) (Entered: 10/22/2013)
STATUS Report Supplemental Joint Status Report regarding Entry of Injunction by Chapterhouse Studios LLC, Games Workshop Limited (Keener, Jason) (Entered: 10/22/2013)
GW: We are entitled to an injunction against all products that include an icon that was on the jury verdict form.
CH:GW is entitled to an injunction only to the extent of exactly what the verdict form presented, which is the combination of an icon and descriptive language.
Naturally enough, considering who's involved, the whole motion is a RAI/RAW argument. And the jury isn't available to FAQ it.
Not sure if this has been commented on yet, in a bit of a rush, but he's part of the appellate practice group.
Good catch czakk. I didn't notice that. He appears to be an associate, but as you say, a member of the firm's appellate and critical motions practice. I guess this means that Winston and Strawn is in for the appeal too. It is going to be a dogpile indeed! I guess its like a tag-team where you and your partner both dive on your opponent from the ring posts after he's down while the ref is busy yelling at his teammate for trying to bring a chair into the fight.
STATUS Report Supplemental Joint Status Report regarding Entry of Injunction by Chapterhouse Studios LLC, Games Workshop Limited (Keener, Jason) (Entered: 10/22/2013)
GW: We are entitled to an injunction against all products that include an icon that was on the jury verdict form.
CH:GW is entitled to an injunction only to the extent of exactly what the verdict form presented, which is the combination of an icon and descriptive language.
Naturally enough, considering who's involved, the whole motion is a RAI/RAW argument. And the jury isn't available to FAQ it.
Ironically, other bit sellers were telling CHS this years ago when they started selling bits. Don't list any of GW's names on the bits and GW wouldn't have anything to purse you with. Unfortunately there is now the risk that the court agrees with GW's interpretation of the verdict and they can start going after all bit sellers. At least till the appeal goes through and possibly changes that.
Automatically Appended Next Post: They start off pretty punchy.
Games Workshop (“GW”) brought this case to put Chapterhouse out of business. GW failed with the jury, which correctly rejected most of GW’s copyright and trademark claims. Now GW asks this Court to substitute its judgment for the jury’s, based on overgeneralizations and mischaracterizations of the law and the record.
There is no basis to overturn any of the challenged aspects of the jury’s verdict. First, there was ample evidence for the jury to find that GW failed to prove both that its products were original and that Chapterhouse copied them. Second, GW does not identify any proper grounds for striking the testimony of Chapterhouse’s experts related to the issue of scenes a faire, but regardless, that evidence is not necessary to support the jury’s verdict. Finally, GW fails to identify any evidence to undermine the jury’s copyright fair use and trademark fair use judgments—in most cases, GW fails to even address the specific products or marks at issue, let alone identify any evidence indicating that Chapterhouse’s use was not fair.
GW’s motion for judgment as a matter of law should be denied.
And the file attached to this post is Chapterhouse's exhibit A, a transcript excerpt. I grabbed that because transcripts are fun. Most of the other exhibits are just bits from the claims chart.
Automatically Appended Next Post: -----
It's been ages - have we seen this part of the Naismith depo?
Q. Are there any references you took inspiration from in
8 designing your models?
9 A. For which group, for the Fantasy or --
10 Q. For the Warhammer 40K.
11 A. For Warhammer 40K, not really, no. Warhammer 40K, again it
12 was because guys had been doing historical stuff who then
13 started doing fantasy stuff, who were then asked to do science
14 fiction stuff. Really, it was like a kind of logical extension
15 of all the things that we knew and understood about the logic of
16 military equipment and how it would go together, you know. That
17 is what we carried forward.
18 There would be extra information. You like -- we would
19 all like to read comics, we would all like to read books, we
20 would all like to watch movies, and we might bring some small
21 part of that into it, you know, more to do with the feel, you
22 know, because we knew that our customers were out there reading
23 the same books, reading the same comics, and watching the same
24 films. So, we wanted to make sure that people understood what
25 the model was about.
Q. Correct me if I'm wrong, did you say that you took an
2 overall feel from the references --
3 A. Yeah. Sometimes, yes, but not -- we didn't lift an entire
4 look from a movie or a book or anything. We would glean, as we
5 had done with the historical stuff, we would say, "That's a nice
6 touch, I like that. The way that descriptor of that -- the way
7 that helmet works in that comic, the way that glove looks or
8 that particular gun, that's got a nice mechanic to it."
9 And you would visually take that in, if you like. You
10 wouldn't say, "I'm going to photocopy that and file it." It
11 didn't work like that. It was just a case of you having an
12 ambient appreciation of what was going on outside.
13 Q. You referred to themes and overall flavors.
14 A. Yes.
15 Q. Would you say that Warhammer 40K falls into the realm of
16 science fiction?
17 A. Yes.
18 Q. Did you mention that you took inspiration from certain
19 movies, books, and comics that sculptors in the field generally
20 were aware of in the 1980s?
21 A. I can give you names of movies that were around at the time,
22 but they would only be examples of the general field of like,
23 say, science fiction movies. There were not that many science
24 fiction movies, so we tended to watch them all, you know, so you
25 would have watched things, like you would have watched Star
Automatically Appended Next Post:
-------
Mr. Keener knows his fantasy...
7 THE COURT: The first question is where in Tolkien --
8 what's the right pronunciation of that, anyway?
9 MR. KEENER: Tolkien.
Games Workshop (“GW”) brought this action to shut down—or, at a minimum, radically alter—the business of Chapterhouse, claiming in a letter to Chapterhouse that “all of the 106 products currently marketed on your website infringe in some way our client’s intellectual property rights.” Ex. A at 5. (DX-175.) See also Ex. B at 1 (requesting that Chapterhouse “cease all such sales”) (DX-639). But GW failed—Chapterhouse can still sell many of those products. And factoring in summary judgment, trial, and dropped claims, Chapterhouse won over two-thirds of GW’s copyright and trademark claims. GW was only successful in obtaining a small fraction of the damages it initially sought. Indeed, GW would not have invested in this case as heavily as it did simply to slap Chapterhouse on the wrist. Accordingly, it is Chapterhouse, not GW, that is the prevailing party. GW focuses only on the trial, but this is too narrow a view under the text of Rule 54 and the case law surrounding it.
It feels to me the CHS language is much more assertive than it was previously. Not in a spiteful, unprofessional manner--but for lack of a word--more aggressive. Is this typical in post-trial proceedings? Or just typical when attorney fees are in the equation?
AgeOfEgos wrote: It feels to me the CHS language is much more assertive than it was previously. Not in a spiteful, unprofessional manner--but for lack of a word--more aggressive. Is this typical in post-trial proceedings? Or just typical when attorney fees are in the equation?
Yeah, I'm seeing that, too. Or is it because there's a new firm involved... going for the jugular?
As a complete novice in this area, is that sort of language usual in these documents? GW's seemed pretty stale and legal, CHS's has more casual phrases like "slap on the wrist" and uses italics for effect.
As a complete novice in this area, is that sort of language usual in these documents? GW's seemed pretty stale and legal, CHS's has more casual phrases like "slap on the wrist" and uses italics for effect.
I'm not an american lawyer and styles vary. I view the language as a tad dramatic, similar to some of the turns of phrase used by GW in earlier findings, which I have also groused about.
However, maybe they felt the pleadings needed a little drama in order to prod the trial judge. It is certainly a deliberate choice (with so many eyes on the final document it would have to be). The tone of the pleadings have gotten steadily more and more emphatic as time went on, starting around christmas when Mr. Moskin's correspondence with the copyright office came to light. I can't recall if Hartzell and co came on board for CHS at that time.
"Consequently, most of Chapterhouse’s proposed costs are impermissible. But again, the
Court actually should not even look at such details because Chapterhouse is not entitled to any costs
because it is not the “prevailing party.”
It's the "prevailing party" wording that makes it look like GW is implying they "won" and CHS "lost".
Or did they actually come out on top in this? Or is this just GW posturing?
Is this wording normal and correct? It seems like they are wording it in such a way that the judge might see them as the "winners" and favor the appeal towards GW on that basis.
My limited experiences is that during this phase both parties are writing as if they are correct, as it makes it easier on the Judge to compose his decision... This is partially out of the hope that if his opinion is close enough to "your" party's position the Judge won't spend as much time rewording it, thus allowing these briefs to directly shape the language of the final opinion.
I can't help but get the feeling that GW is desperately trying to pretend they didn't step in a large, steaming pile of dog poo and tracked it across the carpet.
paulson games wrote: What I wouldn't give to hear the judge say "well this is certainly a muddy situation that nobody here agrees on, we'll just have to dice off".
That would be the most... cinematic approach, as they say.
prplehippo wrote: I can't help but get the feeling that GW is desperately trying to pretend they didn't step in a large, steaming pile of dog poo and tracked it across the carpet.
Read both statements - Chapterhouse make equally spurious claims, indeed the point of these documents seem to be to claim that they have won. CHS make it sound as if they won, GW make it sound as if they won:
Games Workshop (“GW”) brought this action to shut down—or, at a minimum, radically alter—the business of Chapterhouse, claiming in a letter to Chapterhouse that “all of the 106 products currently marketed on your website infringe in some way our client’s intellectual property rights... But GW failed—Chapterhouse can still sell many of those products. And factoring in summary judgment, trial, and dropped claims, Chapterhouse won over two-thirds of GW’s copyright and trademark claims. GW was only successful in obtaining a small fraction of the damages it initially sought. Indeed, GW would not have invested in this case as heavily as it did simply to slap Chapterhouse on the wrist.
Both are technically right to an extent; GW had some claims upheld, CHS had a lot of claims thrown out. So who won isn't clear, or how damages are awarded isn' t clear cut either.
GW is clinging to the idea that since the jury awarded GW reduced damages, that GW wins and can claim costs from CHS (and sink them), whilst CHS is taking the more reasonable view that the vast majority of claims were thrown out, especially if you consider the ones that didn't even make it to jury, so GW can't be regarded as having won.
Out of court, GW's aim was clearly to stop CHS trading (by burying them in legal costs regardless of the validity of the claims), and from that point of view they have completely lost; all they've done is weaken their IP and strengthened the protection for CHS and any other bits maker.
GW is operating under the assumption that their IP, though stolen from a dozen sources, is unassailable - what they have called their 'Fortress Wall and Moat'.
But the 'Fortress Wall' is made of paper, and the 'Moat' is filled with beer....
All of this feels like GW knows they are going to lose. But they are spending the cash now to delay as long as possible.
Their arguments come off as sketchy on purpose so more time has to be spent clarifying everything in front of the court. Just from reading the briefs and comparing them Chapterhouse defense is using a scalpel and GW is using a board with a bent nail stuck into it.
I think they know they are going to lose, but want to be seen as a company that'll viciously defend their IP* whatever the cost. It makes them look better to people they buy IP from, and keeps smaller companies paranoid.
If you knew GW was happy to spend $5m+ on a pretty spurious case and not back down until the court tells them to go away, would you rethink producing something that'll make them come at you next?
I thought I'd give you guys an interesting fact to mull over considering the dispute over costs between the parties.
GW says that it is the prevailing party because it got $25,000.00 in damages, which is "everything it asked for" in closing arguments, and has argued to the Court that this suspiciously round number was based on Chapterhouse's testimony of having an average profit margin of something between 10 and 15 percent.
Here is the fun fact:
Chapterhouse's gross revenue was $427,226.35. $25,000.00 is 5.8% of $427,226.35; not 10%, not 11%, not 12, 13, 14, or 15 percent. So if Games Workshop really did base its $25,000.00 number on accepting Chapterhouse's testimony regarding average profit margin (forgetting of course that it was Chapterhouse's sole burden to prove costs), why then did Games Workshop ask for $25,000.00 instead of at least $42,722.63, which is 10%?
Well, Games Workshop dropped claims against some products, right? But Games Workshop did not elicit testimony about itemized revenues, as far as I am aware. So where did $25,000.00 come from? What relationship does that have to any of the evidence before the jury?
Chapterhouse addresses some of the broader implications in finding Games Workshop the prevailing party on this basis, and this is particularly interesting:
As GW’s cited case acknowledges, “it may be proper for the trial court to award only low costs or no costs at all.” Shum v. Intel Corp., 629 F.3d 1360, 1367 n.8 (Fed. Cir. 2010). Further, courts enjoy the same discretion under Rule 26. See Fed. R. Civ. P. 26(b)(4)(E) (permitting courts to deny costs if “manifest injustice would result”). This Court should use its discretion to deny all costs to GW, as GW’s request would inflict a burden on Chapterhouse that far exceeds the outcome of the trial. A “court may decline to award costs when an award of costs would be inequitable under all the circumstances in the case.” Plair v. E.J. Brach & Sons, Inc., No. 94 C 244, 1995 WL 387789, at *1 (N.D. Ill. June 28, 1995) (internal quotation marks and citation omitted). In Plair, the court denied costs where the losing party was indigent and represented pro bono, even though the losing party was the plaintiff. Here, Chapterhouse is the defendant—it did not choose to litigate this case. And Chapterhouse is a small company; it was represented in this case pro bono. See Ex. F (Declaration of Bryce A. Cooper). In asking the jury for $25,000 in damages (all GW wanted, it now claims), GW claimed in its closing argument that it was “not looking to be punitive.” (Ex. E, Tr. 1765:20.) But it now seeks a cost award that is more than ten times greater than the damage award it requested. Such an award would inflict tremendous financial burden on Chapterhouse. It should be denied.
Also an interesting point, it is now on the official record that Chapterhouse's counsel was working pro-bono, so any lingering dispute about that can be put to bed:
2. Chapterhouse was represented pro bono by Winston & Strawn LLP. 3. Chapterhouse was represented pro bono by Marshall Gerstein & Borun. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
$25,000 sounds like a nice round figure that a jury might pick out of the air because they don't want to award nothing but they don't want to award anything serious.
Kilkrazy wrote: $25,000 sounds like a nice round figure that a jury might pick out of the air because they don't want to award nothing but they don't want to award anything serious.
My speculation, of course.
Yes, but Games Workshop actually asked for an award of $25,000.00 in its closing arguments. This was the first time that any mention was made of the figure during the trial. Moskin straight up told the jury that they should specifically award Games Workshop $25,000.00, no more, no less. Now Games Workshop says that because it was awarded $25,000.00, that means it won.
The question Chapterhouse poses in its motion is essentially whether you can claim to have prevailed just because you reduced what you were seeking by 95% at the last minute.
$25,000.00 is a nice, round number, sure, but it is a nice, round number that Games Workshop apparently picked out of a hat, with no evidentiary support in the record, that is 94.2% less than the amount being sought during the entirety of the litigation.
As you point out, maybe the jury picked $25,000.00 because they made a reasonable finding of fact with no relation to the plaintiff's argument. Certainly, the jury rejected more than 60% of the plaintiff's claims.
It is academically interesting that Games Workshop claims to have prevailed because the jury awarded everything it asked for in terms of damages. I have never, ever before seen nor heard about such a thing happening in closing arguments as Games Workshop did with that $25,000.00 numer, and I have seen a LOT of trials.
Hi everyone, I'm new to the forum, but I've been following this thread from the beginning.
Could anyone help me recap and clarify a few things?
There's a difference between Chapterhouse being found not to have infringed Games Workshop's intellectual property rights, and the court ruling that Games Workshop did not hold IP rights on something. So...
Which, if any, claims of IP by GW were found to be groundless (by the pre-trial hearing or during the trial)?
Which accepted items of GW IP was Chapterhouse found NOT to have infringed?
Which items of GW IP were they found to have infringed (I recall that a Dark Elf miature was one of these, and possibly also the Eldar personalities jetbike kit)?
How many of these disputes have been resolved by Chapterhouse changing the descriptions of their products from something like 'Space Marine Shoulder Pad' to 'Space Marine-Compatible Shoulder Pad'?
If you want my opinion, if Games Workshop claimed IP rights that it did not possess, it was either being incompetent or dishonest. Perhaps the company would be better off pursuing people who produce direct pirate copies of their products, difficult though that may be.
OsitioRojo wrote: Hi everyone, I'm new to the forum, but I've been following this thread from the beginning.
Could anyone help me recap and clarify a few things?
There's a difference between Chapterhouse being found not to have infringed Games Workshop's intellectual property rights, and the court ruling that Games Workshop did not hold IP rights on something. So...
Which, if any, claims of IP by GW were found to be groundless (by the pre-trial hearing or during the trial)?
Which accepted items of GW IP was Chapterhouse found NOT to have infringed?
Which items of GW IP were they found to have infringed (I recall that a Dark Elf miature was one of these, and possibly also the Eldar personalities jetbike kit)?
How many of these disputes have been resolved by Chapterhouse changing the descriptions of their products from something like 'Space Marine Shoulder Pad' to 'Space Marine-Compatible Shoulder Pad'?
If you want my opinion, if Games Workshop claimed IP rights that it did not possess, it was either being incompetent or dishonest. Perhaps the company would be better off pursuing people who produce direct pirate copies of their products, difficult though that may be.
I can't give you a list of IPs. But, when it come to descirption Chapterhouse now use "Space Marine" and other GW army names to to advertise there products.
There's a difference between Chapterhouse being found not to have infringed Games Workshop's intellectual property rights, and the court ruling that Games Workshop did not hold IP rights on something. So...
Which, if any, claims of IP by GW were found to be groundless (by the pre-trial hearing or during the trial)?
Which accepted items of GW IP was Chapterhouse found NOT to have infringed?
Which items of GW IP were they found to have infringed (I recall that a Dark Elf miature was one of these, and possibly also the Eldar personalities jetbike kit)?
1. Kits like the wheeled Chimera add-on kit and the rhino add-on kits were dropped pre-trial with the exception of iconographical add on kits. Some iconographical items GW asserted rights over then realized those CHS items they couldn't even assert a remote association.
2. A good number of iconography was considered by the jury too generic. The general shape of the shoulder pad, the jury also seemed to think was too generic... Shoulder pads and doors with icons they weighed predominantly on the relevance of the iconography.The use of names was largely regarded as fair use.
3. A lot of those character models were found by the jury to be too wholly similar. And specific pieces with iconography were also considered too similar. Those constituted the bulk of findings in GWs favor.
How many of these disputes have been resolved by Chapterhouse changing the descriptions of their products from something like 'Space Marine Shoulder Pad' to 'Space Marine-Compatible Shoulder Pad'?
None. GW sued without accepting a 3rd party market. They only asserted CHS wasn't doing enough once it was clear they'd have to accept the possibility of fair use.
The general finding was that it was fair use to use the names. The only thing beyond that was whether specific phrasing imparted confusion, but the fact that the website went out of its way to make it clear it wasn't GW, resulted in CHS favor. GW wanted a greater amount of disambiguity than CHS afforded but legally CHS provided enough. So as long as GW believed it wasn't getting what it wanted the possibility of dispute existed. Pretty much everything in GWs favor had nothing to do with naming. CHS simply changed the phrasing to show the court that if naming wasn't found fair use there was resolution that didn't require an end of CHS, but that was ultimately unnecessary.
'Gee folks we don't want to put them out of business, just give us a small amount'
Would the jury really be aware that by giving the award to GW they also give credence to the argument that CHS is liable for legal costs?
Compare that with;
'Gee folks we don't want to put them out of business, just give us a small amount and all our costs'
GW as the Plantiff can only assert the cost of successfully defending any of its registered works. They didn't really win on any registered works. The dispute over who Won is really because as the defendant CHS can fight back for legal costs if they are found the prevailing party and if GW's claims were found baseless. CHS isn't likely to get all its costs but they could get the cost of defending the items GW dropped its dispute of in pretrial and the items that GW was cought lying about it's copyright ownership. This is potentially exceeds 1/3 of the CHS' attorney's costs. There is something carmic about the potential for GWs unfocused and unresearched suit against CHS resulting in what GWs been awarded being wiped out because of GWs attempt at overreach and it's early vagueness of its claims.
What I meant to ask was, did the court actually rule that GW didn't have trademark or copyright on things that it said it did? I got the impression (from one reference to court documents) that the 'Chaos Star' symbol was not their trademark, as they claim on the legal page of their website. Did I get the wrong end of the stick on that one?
Thanks for the answer Mythos but I didn't phrase my question properly, I should have put [sotto voice] [/unsotto voice] around the last 4 words.
Would the jury be aware that in awarding damages to GW, GW would then be in a position to claim that they were the 'prevailing party' and as such were entitled to claim costs from CHS?
AndrewC wrote: Thanks for the answer Mythos but I didn't phrase my question properly, I should have put [sotto voice] [/unsotto voice] around the last 4 words.
Would the jury be aware that in awarding damages to GW, GW would then be in a position to claim that they were the 'prevailing party' and as such were entitled to claim costs from CHS?
Cheers
Andrew
I doubt they would have been made aware of the costs issue, same as how they weren't told about CHS being represented pro bono. It's an extraneous consideration, they are there to determine facts. I think there is a copy of the jury instructions on the recap archive (or at least the proposed instructions) if you felt like checking.
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OsitioRojo wrote: What I meant to ask was, did the court actually rule that GW didn't have trademark or copyright on things that it said it did? I got the impression (from one reference to court documents) that the 'Chaos Star' symbol was not their trademark, as they claim on the legal page of their website. Did I get the wrong end of the stick on that one?
Some stuff was withdrawn, some with prejudice, some tossed out, and some fair use defences accepted. It will be a bit muddled until the judge has his final say.
Also a bit muddled because the claims chart is a dog's breakfast. But you'll note CHS is still in business and still referencing GW.
I doubt they would have been made aware of the costs issue, same as how they weren't told about CHS being represented pro bono. It's an extraneous consideration, they are there to determine facts. I think there is a copy of the jury instructions on the recap archive (or at least the proposed instructions) if you felt like checking.
The pro bono was not to be mentioned, that I do remember, but the bit about prevailing party I though was a judicial rule that Weeble referenced a few pages back, especially when people have been arguing about it in post trial motions.
GW wanted CHS out of business, realised that they couldn't do it via this trial so asked for a low damages figure to ensure the prevailing party bit and put CHS into bankruptcy on the award of costs.
Of course I could also be completely paranoid and giving far to much credit to GW and that this is simply an unintended consequence that is being overthought by me.
OsitioRojo wrote: What I meant to ask was, did the court actually rule that GW didn't have trademark or copyright on things that it said it did? I got the impression (from one reference to court documents) that the 'Chaos Star' symbol was not their trademark, as they claim on the legal page of their website. Did I get the wrong end of the stick on that one?
No.
No marks were found to be invalid. In fact, it was not even teased out in the verdict form. Generally speaking, for a huge amount of marks, the Court affirmatively found them to be both valid and in use in commerce (including a drawing of a skull found only on page 88 of a book), so that was off of the table for the jury. Of the marks not affirmatively found to be valid and in use in commerce, the Court accepted a verdict form that only asked infringement (yes/no) fair use (yes/no). There was no question of validity explicitly on the verdict form. The jury might have found some marks to not be infringed because they found that the marks were not valid, but there is no way to know that from the verdict form.
Games Workshop did, however, drop plenty of claims for both copyrights and trademarks, some of which were dropped during the trial! Most of those dropped claims were dismissed with prejudice, meaning Games Workshop cannot assert them against Chapterhouse Studios again, but it also makes it more difficult to assert them in the US, especially in the 7th circuit.
For example, Games Workshop dropped claims to the "chaos star." Generally speaking, Games Workshop dropped claims that it could not support, such as when Games Workshop dropped claims related to the Mantis Warriors iconography after Gary Chalk swore an affidavit that he had never transferred ownership of the work. Games Workshop dropped that claim immediately, and in the giant context of the suit it was quickly forgotten by the Court.
Games Workshop says that these claims were dropped in order to "simplify" the case, but A) the Court has been unilaterally dismissing them with prejudice, and B) most claims have been dropped when evidentiary support is critically lacking, such as dropping the "Games Workshop" trademark during the trial and the Mantis Warrior example above.
This is one reason it will be interesting to see this case on appeal, because there have been a lot of squirly things going on in this litigation, such as Games Workshop counsel failing to produce correspondence with the copyright office and then using the Court's ruling (absent this communication) to try to overcome a rejection by the copyright office. Again, before this case even got to a jury there were some weird rulings and some bad behavior on the part of Games Workshop. That sort of stuff will likely get fresh attention at the appellate court should the case go up on appeal.
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czakk wrote: Undoubtedly this was a consideration when asking for 25k from the jury. If they had asked for a million, they would have looked insane.
The judge does have discretion whether or not to award costs. It's not automatic.
If you look at the case law cited by both parties, it is easy to see just how much discretion Courts have in awarding costs. The FRCP says that costs should be awarded to the prevailing party unless the Court thinks there is a reason not to. The case law is a ton of examples in which costs have/have not been awarded on various grounds.
Chapterhouse's argument is pretty clearly laid out in the brief:
1: Chapterhouse is the prevailing party and should get costs.
1a: Chapterhouse won 70% of all claims in the entire context of the trial and succeeded in its trial goal: being allowed to sell accessories for GW products using GW trademarks to identify fit and compatibility.
2: If Chapterhouse is not the prevailing party, neither is Games Workshop.
2a: At the very least, the verdict is mixed, and neither party should be awarded costs.
3: Even if GW is the prevailing party, it would be manifestly unjust to award GW costs.
3a: GW asked for 25K in damages, saying that it was not trying to be punitive, but now asks for 250K in costs. CHS is a defendant, and thus obligated to engage in a defense, and is essentially indigent in comparison to GW and was therefore represented pro-bono. GW clearly did not litigate with the goal of obtaining monetary damages, so an award of ten times the jury verdict would serve only to unduly burden CHS and therefore result in manifest injustice.
For its part, GW's argument runs thusly:
GW is the prevailing party because it won substantial relief. GW asked for 25K and got all of it. Further, if you look at the case in terms of products, not only were the top grossing CHS products among those found to infringe, but between copyright and trademark infringement, a majority of the CHS products infringed something.
Thanks to everyone who replied to my posts. It's a bit clearer now.
So, as I understand it, Games Workshop had some claims upheld and some dismissed, but only in relation to the relevant Chapterhouse products, and on certain claims they can never sue Chapterhouse again. GW can still sue other companies over the same copyrights and trademarks, albeit with possible precedent issues over the claims that were dismissed with prejudice (and then only in the US). Chapterhouse is still in business selling many, or most, of the products it was selling before, as we can all see from their website.
All in all, it doesn't sound to me like much has changed in the industry as a whole, although GW has been left with egg on its face.
What happened in the end about that infamous Space Marine shoulder-pad copyright(?) application? Has GW been successful? I'm no expert on law, but I assume that before one sues someone one should have all one's ducks in a row. That's what I meant about GW either being incompetent or dishonest: they were a bit of both in that episode.
Is there any indication that any of these rulings may be changed at the post-trial hearings, or are they just discussing costs? I read in recent posts that there were Judgement as a Matter of Law (JMOL) motions from both sides. I understand a JMOL to be something like a directed verdict in British (and American?) criminal law, except that it can also be applied retrospectively to a jury verdict: http://en.wikipedia.org/wiki/Judgment_as_a_matter_of_law
I suppose I should just shut up and wait for the final rulings. Who knows, maybe it'll all be over by Christmas.
Is there any indication that any of these rulings may be changed at the post-trial hearings, or are they just discussing costs? I read in recent posts that there were Judgement as a Matter of Law (JMOL) motions from both sides. I understand a JMOL to be something like a directed verdict in British (and American?) criminal law, except that it can also be applied retrospectively to a jury verdict: http://en.wikipedia.org/wiki/Judgment_as_a_matter_of_law
Judgment as a matter of law is the new term that United States Federal Rules of Civil Procedure use for directed verdict or rather, renewed judgment as a matter of law is the new term being used in place of directed verdict, so in some instances you're you're going to see caselaw referring to "directed verdict" even though the Federal Rules of Civil Procedure uses the term "renewed judgment as a matter of law."
Nowadays, the parties simply renew the motions for judgment as a matter of law that they made at the conclusion of the opposing parties case in chief. So, what you do is, you submit your judgment as a matter of law after the case in chief of the opposing party, and then after the conclusion of the trial you can within 30 days renew your motion for judgment as a matter of law.
In practice, what this does is allow the court some flexibility in giving the jury a chance to sort of do the right thing. What happens is that if there's a jury verdict, there's generally less room for a retrial than there would be if there was a mistake in the court's ruling. So, rather than ruling at the time during trial, the courts generally withhold their rulings because the parties can renew JMOL after the jury verdict. If the jury comes to the "right" verdict, then there's no need for the JMOL, and you have a jury verdict wrapped in a bow. If, on the other hand, the court had ruled on a JMOL during trial, and then was reversed on appeal, it would probably go to reman which we would require a whole new trial. So, what this whole process sort of does is protect the court and the public from the expense of repeated trials.
Thanks for the link. So, the pre-verdict JMOLs are still being contested, in fact with some changes.
Scenes a faire was a new term for me: basically a genre staple that no-one can claim exclusive use of. Would it be fair to say that it's analogous to 'state of the art' in patent law? http://en.wikipedia.org/wiki/Scenes_a_faire
I also found this article useful in explaining the concept: http://en.wikipedia.org/wiki/Idea-expression_divide. Basically you can copyright a specific text, piece of visual art, photograph, film, sculpture etc. (and fictional characters contained within a work), but you can't copyright the basic concept of the thing. Games Workshop could sue someone for making and and distributing scanned PDFs of their books, but they couldn't touch anyone for producing a generic rehash of Warhammer Fantasy Battle or 40K.
This has been interesting and instructive for me. I'm trying to write something and this gives me a better idea of where the boundaries on the use of ideas lies.
BaronIveagh wrote: My question is: how much of this becomes relevant precedent the next time GW plays this game? It seems like they're trying to minimize that atm.
My understanding is if GW pulls this again it won't be for the exact same parts so the defendant can't just say 'but in the chapterhouse case X' BUT it will mean GW will have an uphill battle going into it rather than the nice strong position it looked like they had waaaay back when this started.
I suppose the question is: how similar is a 'claim dismissed with prejudice' to a legal precedent in cases like this? The other rulings, for or against either party, are presumably only relevant to this particular case.
Personally I think that GW is claiming IP on a lot of things that are generic or 'scenes a faire'. For instance, a lot of 40K vehicles are obviously based on real-world designs. What if another company made a 28mm miniature of fantasy orcs in Nazi uniforms riding a Kettenkrad? Could GW make a cogent legal argument that their combination of the three generic elements made something original and unique?
Then there's the issue of the 'Chaos Device' which, as GW very well know, was invented by Michael Moorcock.
So, I think it would have been great if this case had resulted in a ruling that GW cannot claim IP on things they simply copied from other fictional and real-world sources, if only because their nonsense gets on my nerves. However, I can't see that it has.
Personally I think that GW is claiming IP on a lot of things that are generic or 'scenes a faire'. For instance, a lot of 40K vehicles are obviously based on real-world designs. What if another company made a 28mm miniature of fantasy orcs in Nazi uniforms riding a Kettenkrad? Could GW make a cogent legal argument that their combination of the three generic elements made something original and unique?
That is essentially Games Workshop's argument. What Games Workshop has argued is that because its works choose a specific combination of otherwise "generic" elements from a near infinite buffet, that combination of elements is itself a unique expression. For example, with regard to the Games Workshop Croxigors, Games Workshop argued that it is a unique combination of a bipedal reptile with mesoamerican weapons and jewelry.
Games Workshop said that this combination is a unique artistic expression, and therefore anything that uses a similar combination of elements is substantially similar, regardless of how those ideas(?) are expressed in the accused work. So long as you express a bipedal lizard with mesoamerican weapons and jewelry, that is substantial similarity so says GW, especially if you sell it on a website that violates GW's trademarks (which of course has nothing whatsoever to do with copyrights).
Now, bear in mind that copyright does not extend to ideas, but the idea/expression dichotomy is a bit muddled, so to speak, in the case law. Even so, the jury found that Chapterhouse's Lizard Ogre did not infringe Games Workshop's asserted croxigor/painted croxigor/drawing of weapons from the Lizardmen Army Book. But the jury did find several infringing products with respect to which Games Workshop made essentially the same type of argument.
There are several really important issues that arise from that. First, what exactly is Games Workshop's asserted expression? One of the Croxigor models, the set of the Croxigor models, the photograph of the painted Croxigor models, the drawing from the Lizardmen Army Book? Are those asserted in severality? And what is accused? The Lizard Orgre model, the picture of the painted Lizard Ogre model on the website, or some weird combination of both?
It is clear that Games Workshop asserted some mad, Frankenstein amalgam of all of those discrete expressions. How? Because Judge Kennelly said it was cool, that's how, over vehement objections by the defense. And moreover, the accused work was also some sort of mad combination of not only the actual physical Lizard Ogre model, but also the painted image on the website, and GW even put the NAME of its product on the copyright claims chart, which was also an asserted trademark! Did that cause some confusion among the members of the jury? Was that proper?
What would the infringing thing be? Is it the model in combination with the website photo? One of Games Workshop's specific arguments regarding infringement was GOLD jewelry, which is obviously only GOLD in the photograph of the painted model! So if that product had been found to infringe, what is the proper injunction? Is it JUST the model sold in combination with the website photo? Are both found to infringe separately? The evidence in the case, from numerous witnesses both from the plaintiff and defendant was that the products of both parties are sold unassembled and unpainted. The Lizard Ogre is not sold as shown in the website photo, though the website photo could in theory infringe copyright as it is a public display. But the Court ruled that the website photo was somehow part of the physical product.
And then in terms of trademarked icons, the icons are obviously in color (for the most part), as are the images of the painted Chapterhouse products. Now, if Chapterhouse was found to infringe an icon mark, that was asserted in color, and the evidence of infringement was a website photo of a painted shoulder pad product, does the physical product infringe the asserted trademark? The physical product is not in color. So can the product still be sold? What is the proper injunction on that? And what about the name of the icon, which was sometimes also an asserted word mark, and appeared in combination with the image of the icon on the verdict form?
All the verdict form said was Infringe (yes/no) Fair Use (yes/no).
These sorts of issues could wind up in front of the appellate court. Certainly, Chapterhouse objected to and argued against all of these rulings by the Court. Chapterhouse even objected to the verdict form.
Personally I think that GW is claiming IP on a lot of things that are generic or 'scenes a faire'. For instance, a lot of 40K vehicles are obviously based on real-world designs. What if another company made a 28mm miniature of fantasy orcs in Nazi uniforms riding a Kettenkrad? Could GW make a cogent legal argument that their combination of the three generic elements made something original and unique?
That is essentially Games Workshop's argument. What Games Workshop has argued is that because its works choose a specific combination of otherwise "generic" elements from a near infinite buffet, that combination of elements is itself a unique expression. For example, with regard to the Games Workshop Croxigors, Games Workshop argued that it is a unique combination of a bipedal reptile with mesoamerican weapons and jewelry.
Games Workshop said that this combination is a unique artistic expression, and therefore anything that uses a similar combination of elements is substantially similar, regardless of how those ideas(?) are expressed in the accused work. So long as you express a bipedal lizard with mesoamerican weapons and jewelry, that is substantial similarity so says GW, especially if you sell it on a website that violates GW's trademarks (which of course has nothing whatsoever to do with copyrights).
Now, bear in mind that copyright does not extend to ideas, but the idea/expression dichotomy is a bit muddled, so to speak, in the case law. Even so, the jury found that Chapterhouse's Lizard Ogre did not infringe Games Workshop's asserted croxigor/painted croxigor/drawing of weapons from the Lizardmen Army Book. But the jury did find several infringing products with respect to which Games Workshop made essentially the same type of argument.
...
...
A good example is the Doom Seer / Fate Seer / Far Seer figure.
GW’s Farseers are all male humanoids in plate armour with robes, and tall helmets.
CH’s figure was a female humanoid in plate armour with robes and a tall helmet. None of its individual elements replicated any of the individual elements of any of the GW models. The overall look was obviously similar, because arguably all figures in plate armour with robes and tall helmets have clear points of similarity.
Thus, GW now apparently own a copyright on such figures. Which IMO is wrong.
ORDER
The motions of Donald Steinberg, Louis Tompros, Kevin Goldman, and Elizabeth
Mooney to appear pro hac vice are all granted [dkt. nos. 441, 442, 443 & 444]. These
attorneys are directed to promptly contact the Clerk of Court to establish e-filing accounts
in this district.
"[Ms. Hartzell] And you testified that it was a wholly original Games Workshop design?
[Mr. Merrett] Wholly original Games Workshop idea, and therefore that's a copy of a Games Workshop idea, and the expression of the idea is illustrated opposite.
[Ms. Hartzell] On the right-hand side?
[Mr. Merrett] Yes."
To orient you, the GW products are on the right hand side of the exhibit Mr. Merrett and Ms. Hartzell are referring to, and the accused Chapterhouse products are on the left hand side. So here Mr. Merrett is specifically testifying that the asserted Games Workshop work is an expression of an idea, but that the accused product is a copy of a "Wholly original Games Workshop idea."
"In no case does copyright protection for an original work of authorship 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."
Merrett is saying, with a straight face, that Chapterhouse infringes because it copied an idea. The record is chock full of these little gems. I really should make a line of T-shirts.
Merrett is saying, with a straight face, that Chapterhouse infringes because it copied an idea. The record is chock full of these little gems. I really should make a line of T-shirts.
A cut down version of Chapterhouse's response with the legalese cut out for the work crowd:-
CHAPTERHOUSE STUDIOS’ REPLY IN SUPPORT OF ITS BILL OF COSTS
Spoiler:
Chapterhouse is the prevailing party in this case and thus is entitled to its costs. Games Workshop (“GW”) brought this action to shut down—or, at a minimum, radically alter—the business of Chapterhouse, claiming in a letter to Chapterhouse that “all of the 106 products currently marketed on your website infringe in some way our client’s intellectual property rights.” But GW failed—Chapterhouse can still sell many of those products. And factoring in summary judgment, trial, and dropped claims, Chapterhouse won over two-thirds of GW’s copyright and trademark claims. GW was only successful in obtaining a small fraction of the damages it initially sought. Indeed, GW would not have invested in this case as heavily as it did simply to slap Chapterhouse on the wrist.
Chapterhouse recognizes that this is a mixed judgment case and understands the Court’s view that in such a case, seeking attorney’s fees may not be warranted. Chapterhouse therefore did not seek fees in this case. But Chapterhouse is, on balance, the prevailing party and should be reimbursed out-of-pocket costs that were imposed based on GW’s overreaching claims.
I. Chapterhouse Is The Prevailing Party And Is Entitled To Costs. No matter how the case is sliced, Chapterhouse won substantial relief. GW suggests that the only thing that matters is that it won something at trial. Chapterhouse successfully defended against dozens of claims and hundreds of thousands of dollars in potential damages.Therefore, Chapterhouse is the prevailing party whether one considers the number of claims, the parties’ litigation goals, or the amount of damages.
A. Chapterhouse won the vast majority of the claims asserted.
Chapterhouse won over two-thirds of the copyright claims asserted in this action. More specifically, Chapterhouse won 34 copyright claims on summary judgment. At trial, Chapterhouse won an additional 67 copyright claims. All told, Chapterhouse can continue to sell, without modification, at least two-thirds of the accused products. Similarly, Chapterhouse won over 70% of the asserted trademark claims. Though GW added and dropped marks throughout the case, a comparison of its interrogatory responses reveals that GW asserted infringement of over 140 unique marks. But only 92 trademarks remained for trial. Of these, Chapterhouse won on 54. On sheer math alone, Chapterhouse is the prevailing party.
B. Chapterhouse, not Games Workshop, achieved its litigation goal.
By any metric, Chapterhouse met its litigation goal: it can still sell the vast majority of products GW had accused of copyright infringement and can still use GW’s trademarks to inform consumers that Chapterhouse products are compatible with GW products. In a case such as this, where a defendant in a copyright case has achieved “substantially all the benefits [it] hoped to achieve in defending the suit,” courts have not hesitated to consider it the prevailing party and award costs.
C. Games Workshop received only a small portion of the damages it originally sought.
GW makes much of the fact that the $25,000 jury award was precisely the amount of damages it had requested. But originally, GW sought far more. It elicited testimony from Nick Villacci that Chapterhouse “ha[d] sold $427,226.35 of materials” through January 8, 2013. This was all GW had the burden to do; the burden was on Chapterhouse to prove its expenses. GW let this Sword of Damocles hang over Chapterhouse throughout the thirty months of pretrial litigation and right up until closing argument.
But GW receded from its original demand after Chapterhouse established costs to offset its revenue. As GW now admits, Chapterhouse operated at a 10-15% profit margin. Realizing that it would not prevail on its request for $400,000, GW radically reduced its request to a closing argument plea for $25,000. Indeed, GW would not have incurred the expenses it did if its only goal was to give Chapterhouse a $25,000 slap on the wrist. GW’s allegedly taxable costs alone total over $250,000. And its attorneys’ fees likely reach seven figures, given the length and complexity of this litigation. GW cannot now claim that it received everything it wanted.
D. Games Workshop’s arguments are meritless.
GW’s principal theme is strikingly narrow: nothing else matters but the trial. The 370-plus pre-trial docket entries, the thirty months of pre-trial litigation, the multiple summary judgment decisions—these simply disappear from GW’s field of vision. All that matters, according to GW, is that “[t]he jury found that a majority of Chapterhouse’s products infringed either copyright or trademark or both.” But “substantial relief” requires an assessment of the entirety of the case, not just the claims actually brought to trial. Indeed, GW seeks costs for depositions that were not played at trial and depositions of witnesses that did not testify at trial. GW cannot now contend it is entitled to these costs based on the trial alone.
Finally, GW contends that thirteen of Chapterhouse’s top twenty products were found to infringe. There are two problems with this argument. First, it is irrelevant. Even if all of Chapterhouse’s top twenty products were found to infringe, GW asserted at least 150 total copyright claims. GW cannot escape the consequences of its decision to assert a multitude of meritless claims, whether these claims were “important” or not. GW did not prevail on the majority of its claims, and must now lie in the bed it made. Second, even if the Court were to take into account the relative “importance” of the accused products, that would be counterbalanced by Chapterhouse’s victory on all of GW’s core registered trademarks.
All told, over the course of summary judgment and trial, Chapterhouse won the majority of the claims asserted against it. Despite GW’s best efforts, Chapterhouse can still sell many of the accused products. Chapterhouse is the prevailing party and should be awarded costs accordingly.
II. If Chapterhouse Was Not The Sole Prevailing Party, The Parties Should Bear Their Own Costs.
Even if this Court were to accept GW’s arguments, the jury’s verdict was, at most, a mixed result. And “courts have especially broad discretion to award or deny costs in mixed result cases, including cases in which liability was established but recovery was nominal relative to what was sought.” This Court should use its discretion to deny all costs to GW, as GW’s request would inflict a burden on Chapterhouse that far exceeds the outcome of the trial. Here, Chapterhouse is the defendant—it did not choose to litigate this case. And Chapterhouse is a small company; it was represented in this case pro bono.
In asking the jury for $25,000 in damages (all GW wanted, it now claims), GW claimed in its closing argument that it was “not looking to be punitive.” But it now seeks a cost award that is more than ten times greater than the damage award it requested. Such an award would inflict tremendous financial burden on Chapterhouse. It should be denied. Further, GW won little of what it sought. GW has failed to cripple Chapterhouse’s business. And it lost on the majority of its originally asserted copyrights and trademarks. And it obtained only a small fraction of the damages it initially sought.
GW did not win substantial relief, and a cost award would hurt Chapterhouse far more than the verdict at trial. Accordingly, Chapterhouse respectfully requests that GW not be awarded costs.
CONCLUSION For the foregoing reasons, Chapterhouse should be awarded $134,097.31 in costs as the prevailing party. Chapterhouse can still sell many of the accused products, having won nearly 70% of the claims asserted by GW in this litigation, and GW did not win substantial relief.
Alternatively, the parties should bear their own costs.
Some of those witness depositions don't half make me laugh. Here are some of the juicier ones.
Merrett-Cross Examination
Spoiler:
Q So you don't believe that any external robots were
considered by any designer of any Tau product?
A Not to my knowledge, no.
Q But do you have knowledge what they referred to?
A Well, they didn't refer to anything. What we did is we
generated concept drawings, and the guys that were working on
the project brainstormed concepts of -- for the Tau idea.
Q And none of them had ever seen a robot?
A Well, that's preposterous to suggest, isn't it?
Q It is.
A Yeah, of course it is.
Q So the designers could have drawn inspiration from
existing robots?
A They could have done. They could have drawn inspiration
from the clouds in the sky.
Spoiler:
Q And you have never heard of any other miniatures or action
figures that used the word "Space Marine"?
A Not miniature. Well, no, not miniatures, and not action
figures or dolls or anything else like that.
Q Games Workshop --
Although you testified that at the time that you
created Warhammer 40K, Games Workshop did not maintain a
library of reference materials; you currently have reference
materials at Games Workshop, correct?
A We have -- well, in the 25 years subsequent to that, yes,
we have accumulated all kinds of reference materials, yes.
Q And many of those are not published by Games Workshop?
A Many of those are not published by Games Workshop, that's
correct.
Q And those books include books about military history?
A Yes.
Q And about heraldry?
A Yes.
Q And about weapons?
A Yes.
Q Each designer at Games Workshop has access to those books?
A No.
Q Many designers at Games Workshop have access to those
books?
A Yes.
Q And we talked a little bit earlier about the fact that
Games Workshop has licensed work from other science fiction
universes, right?
A Yes. Sorry, I have to just go back in time because it's a
long time ago. So I have to go back and think, were those
science fiction universes.
It's debatable whether some of them were or not, but,
yes.
Q And Games Workshop, as we already discussed, licensed
Michael Moorcock's Eternal Champions products?
A Yes.
Q And for a period of time, Games Workshop also licensed
Dungeons and Dragons miniatures?
A Yes, it's true.
Q And for a period of time, Games Workshop licensed Judge
Dread miniatures?
A Yes.
Q And for a period of time, Games Workshop licensed Lord of
the Rings miniatures?
A Yes.
Q So while during the periods of time that those were
licensed, Games Workshop designers had access to each of those universes?
A To a lesser or greater degree depending on their
involvement in the various projects, and for some of the
licenses, there were no reference materials.
Jones Cross examination
Spoiler:
Q. Games Workshop hasn't conducted any studies to determine the
brand recognition for any of its alleged trademarks, right?
A. Correct.
Q. And Games Workshop hasn't commissioned any market share
studies by any independent research service to evaluate its
trademarks in the U.S., correct?
A. Correct.
Q. And Games Workshop has not engaged an independent expert in
this case to give his or her opinion about the trademarks at
issue, correct?
A. Correct.
Q. Let's talk about another example. Games Workshop contends
that the word exorcist is one of its trademarks, right?
A. Um --
THE COURT: You have to say yes or no.
THE WITNESS: I'm sorry. Yes.
Q. Games Workshop has never received a trademark registration
for the term exorcist, right?
A. That's correct.
Q. And you understand that the term exorcist is used outside of
miniature tabletop board games?
A. Yes.
Q. You understand that the term exorcist has a generally
understood meaning of referring to individuals that remove
demons?
A. Yes.
Q. And in the Games Workshop universe, the exorcists are demon
hunters, correct?
A. Yes.
Goodwin Cross-Examination
Spoiler:
Q. Fine. And so, the Imperium, the civilization, that's the
setting in which this game is to take place; is that right?
A. Yep.
Q. And that game is an amalgamation of so many ideas that were
floating around, taken from sources like 2000 AD, right? Isn't
that true?
A. That just doesn't finish off the sentence, does it?
Q. Well, let's look at the rest of the sentence. Taken from
2000 AD and Michael Moorcock novels and real history all put
into a big pot and regurgitated by us. Do you see that?
A. Yes.
Q. Isn't that what Games Workshop did?
A. That's a very, very simplistic reading of it, yes.
Q. And that's in The Art of Warhammer book, right?
weeble1000 wrote: Merrett is saying, with a straight face, that Chapterhouse infringes because it copied an idea.
One of the basic tenets of copyright law is that you specifically cannot copyright ideas. How did this even make it to court?
Because in the US companies rule the roost and the little guy might as well just roll over when they come calling. Lucky for the little guy in this scenario another big guy came along and helped out.
Q. Fine. And so, the Imperium, the civilization, that's the
setting in which this game is to take place; is that right?
A. Yep.
Q. And that game is an amalgamation of so many ideas that were
floating around, taken from sources like 2000 AD, right? Isn't
that true?
A. That just doesn't finish off the sentence, does it?
Q. Well, let's look at the rest of the sentence. Taken from
2000 AD and Michael Moorcock novels and real history all put
into a big pot and regurgitated by us. Do you see that?
A. Yes.
Q. Isn't that what Games Workshop did?
A. That's a very, very simplistic reading of it, yes.
Q. And that's in The Art of Warhammer book, right?
A. Yes.
MR. ALY: No further questions.
This is fantastic, but I'm still amazed that Judge Kennelly didn't dismiss the case from the onset, and especially after all of GW's stalling and patent office shenanigans
Although Chapterhouse effectively conceded in the parties’ joint status report (Dkt 407) that it was not the prevailing party (and hence simply argued that the Court should exercise discretion to limit any award to Games Workshop), it has now created a fiction what this case was about; what were Games Workshop’s motives, and what was its outcome. It has also created a false standard of subjective satisfaction with achievement of goals as the supposed basis for awarding costs (in lieu of the actual standard whether substantial relief was obtained) and so proceeds to speculate as to Games Workshop’s motives in this action. In fact, Games Workshop is very tolerant of what its fans do with its intellectual property;
Wow, I can't express how excited I get whenever I see this thread has been updated.
Is there anything the lawyery types need to break down here or was this update nice an simple?
It looked like CH are putting out a lot of good points in a somewhat aggressive manner while GW are just pushing the goal posts further and further back while acting as if they have (and had all along) the case in the bag.
Have I misinterpreted anything there or is that more or less what's happening?
I have to wonder- if it wasn't blatant bribery, or other corruption shenanigans, whether Kennelly didn't see that CH had Pro Bono major legal rep, and let it through to possibly get a ruling in the books that would help prevent this sort of Big Corp Bullying in the future- is that something Judges do?
The judge was pretty annoyed at the pre-trial conference at GW's team, IMO it gave the impression that he thought the case was probably a waste of time and and tax payer money. But if GW keeps demanding more and more rope to hang themself with he is under no obligation to throw out the case. Sometimes the best examples are set by a big company or other hot shot making a complete ass of themself in court and getting their teeth kicked in because they can't back up their arguements.
Sometimes a company needs to make a million dollar mistake before it wisens up and comes back down to reality. The defendent still loses in a way (due to fees) but i guess that's written off as just being fall out from the process. Maybe next time GW moves to sue somebody they'll apply a little bit more tact and sue over stuff they actually own, maybe they'll actually try and spend a bit of time discussing their grievence before they hit the giant red nuke button as it's proved very expensive and not particularly effective at resolving conflicts.
As far as keeping the jury from hearing that CH has pro bono representation it's because that fact could be used to create a bias in the jury and they are supposed to be weighing the case based on the arguments. Most people feel that pro bono work means the client gets everything scott-free and that only an innocent client would benefit awarded a pro bono defense. That is a false understanding of what pro bono services are and can create a bias due to the jury misunderstanding how those services are enacted. Even with pro bono services CH is still in debt for well over $100K for basic court costs yet most peopel that hear the words pro-bono associate it with "no costs at all".
Having been in the chambers during the opening discussion I could tell that Judge Kennelly was keenly aware of what GW was trying to do in this case and the amount of BS they were shovelling, he was very irritated with them but as flimsy and over reaching as it may have been GW did meet the minimum legal criteria for filing the suit. The judge's role is not to look at things in advance and say hey these are all going to be shot to pieces get them out of my sight, he is there to make sure the law is being applied correctly. If either side decides they want to go full derp (as GW did) and blow their side of the case after filing it's all on them.
Kenelly is a very sharp man and he knows his stuff, I was very impressed with his general knowledge of sci fi in general and his knowledge of cases of past sci-fi disputes. He was very straight and to the point and even gave GW plenty of warning about where the case might lead. (well before any of the pre-trials began) He certainly was not happy that the case couldn't be settled outside of trial and made no effort to conceal his dislike of GW's counsil. That said he also didn't let any of his personal opinion cloud what his job duty entails and followed everything as laid out by the law.
A misconception is that a judge has to be impartial, which is totally incorrect they are there to make sure the law is followed and that the jury is impartial. The judge can make his opninions very well known so long as it does not override his legal obligations. Which is why you hear about certain courts or judges being favorable or hard ass towards certain situations. However the jury is under a much tighter constraint or remaining impartial. That's why the mentioning of pro bono counsil was barred.
It's also why the jury typically isn't allowed to hear that expert witnesses are paid for their testimony as it can create a jury bias for or against an expert witness. Paying a expert witness for their time and travel to court etc is common place but it might cause jury members to falsely believe that the experts were being bribed for favorable testimony rather than being compensated for appearing.
John, Kennelly isn't that high-minded. You make a good point about him thinking the case is a waste of time and taxpayer money. Kennelly is a former prosecutor. It makes sense that he would take an extreme dislike to this case. He derided both parties, railed at them, and all but cursed the case repeatedly in what transcripts we have of the various status hearings and appearances.
Now, as Chapterhouse made clear in its opposition to GW's motion for costs, Chapterhouse Studios is the defendant. Games Workshop chose to bring this suit. Games Workshop chose to make hundreds of constantly changing claims. Games Workshop chose to drop claims during the trial.
Add to this that Judge Kennelly decided to allow Games Workshop to make copyright infringement claims that its own 30(b)(6) witness clearly disclaimed in deposition. "This thing is a copy of our idea, that's the best I can come up with." That should be a dismissed copyright infringement claim, period. At trial, Alan Merrett described that same claim as, "This is not one of our stronger claims" and proceeded to utterly fail to demonstrate what portion of the asserted work of art had been infringed by the accused product. Chapterhouse Studios won that claim in front of the jury. But that claim should not have been in a courtroom in the first place. It was subject to a motion for summary judgment, which Judge Kennelly denied.
Judge Kennelly made a sweeping ruling that the vast majority of Games Workshop's trademarks were valid and in use in commerce based on the fact that Chapterhouse was articulating a fair use defense and a 'trust me' statement by Andy Jones. This included the drawing of a white skull on a black background appearing amongst dozens of different icons on page 88 of a book.
Neither of these specific examples is giving someone rope with which to hang. What it is is not bothering to dissect the differences between more than 200 separate claims of copyright and trademark infringement. It is not spending the time and effort to go through a mountain of facts to sift the wheat from the chaff and throwing a jury to the wolves in a trial that lasted longer than Apple v Samsung, Abbott v Centocor, Pfizer v TEVA, and the capital murder trial in my home town last month.
The long and the short of it is that Judge Kennelly just wanted the parties to settle out and go home, and consequently he did not pay enough attention to the case. He repeatedly chastized the parties for failing to meet and confer. He declared that he would hear no more motions to compel, only later to sanction plaintiff's lead counsel for deliberately or at least recklessly withholding discoverable documents, which sort of suggests that maybe the prior motions to compel had some merit. He ordered the parties to have a settlement conference post trial for God's sake. Kennelly clearly wants the case to just settle out and go away, but as Judge Gilbert said, if GW's motive is "go away, die, and pay us whatever you can of our attorneys fees...that is not a basis for settlement."
Q. Fine. And so, the Imperium, the civilization, that's the
setting in which this game is to take place; is that right?
A. Yep.
Q. And that game is an amalgamation of so many ideas that were
floating around, taken from sources like 2000 AD, right? Isn't
that true?
A. That just doesn't finish off the sentence, does it?
Q. Well, let's look at the rest of the sentence. Taken from
2000 AD and Michael Moorcock novels and real history all put
into a big pot and regurgitated by us. Do you see that?
A. Yes.
Q. Isn't that what Games Workshop did?
A. That's a very, very simplistic reading of it, yes.
Q. And that's in The Art of Warhammer book, right?
Q. Fine. And so, the Imperium, the civilization, that's the
setting in which this game is to take place; is that right?
A. Yep.
Q. And that game is an amalgamation of so many ideas that were
floating around, taken from sources like 2000 AD, right? Isn't
that true?
A. That just doesn't finish off the sentence, does it?
Q. Well, let's look at the rest of the sentence. Taken from
2000 AD and Michael Moorcock novels and real history all put
into a big pot and regurgitated by us. Do you see that?
A. Yes.
Q. Isn't that what Games Workshop did?
A. That's a very, very simplistic reading of it, yes.
Q. And that's in The Art of Warhammer book, right?
A. Yes.
MR. ALY: No further questions.
Wow.
Yea, that was a zinger. And I think Goodwin was, like, one of the last witnesses too. I think he was only put on as a rebuttal witness, which would have been at the end of the trial, though what order he was in I do not know. That is also paired, in Chapterhouse's briefs, with Jeff Naggy's testimony about large shoulder pads in 2000 AD, and then Alan Merrett also testified to GW having had a license to Judge Dredd at some point, and GW's artists therefore having access, within what would ostensibly be GW's "own" material, to 2000 AD. So there's a neat little nexus there, though one has to know the connection between 2000 AD and Judge Dredd.
If this case goes up on appeal, the appellate court is going to have a field day.
I guess they forgot they wrote that. I love how many times in court GW insisted they own the rights to everything and the moon. Clearly there never was a single reference to outside material by the deisgn team, yeah right.
I also love the discussion about Tau and it not having any outside reference in their design. None of their designers have any knowledge of anime or even robots in general? I'm pretty sure Blanche specifically mentions several such sources in the old WD interview he did around the time of their release. But that's a decade old so it can be swept under the rug as declared 100% original as well.
Also weren't some of the early free lance illustrators also directly involved with the 2000 AD comics and Dredd? Kinda hard to say nope never heard of them when your artists are regular illustrators of the comic and you're pimping out big shoudler pad wearing Dredd miniatures under lisc.
I guess they forgot they wrote that. I love how many times in court GW insisted they own the rights to everything and the moon. Clearly there never was a single reference to outside material by the deisgn team, yeah right.
I also love the discussion about Tau and it not having any outside reference in their design. None of their designers have any knowledge of anime or even robots in general? I'm pretty sure Blanche specifically mentions several such sources in the old WD interview he did around the time of their release. But that's a decade old so it can be swept under the rug as declared 100% original as well.
Also weren't some of the early free lance illustrators also directly involved with the 2000 AD comics and Dredd? Kinda hard to say nope never heard of them when your artists are regular illustrators of the comic and you're pimping out big shoudler pad wearing miniatures under lisc.
Edit: Grah ninja-ed by weeble
It's an insane mess. Merrett also testified on direct that the Tau were "redolent of classic science fiction." So, your designers got no inspiration from anything...and accidentally wound up with something that is "redolent of classic science fiction?" Tell me, Mr. M-E-Double R-E-Double T, what is it that makes something -classic- ? Oh, that's right, it existed before you! Yea, that's what classic means. In trying to pretend the Tau were not directly inspired by the anime references Chapterhouse's expert dug up, Merrett dug himself a bigger hole. That's just bad litigating on GW's part. Good prep Mr. Moskin!
weeble1000 wrote: John, Kennelly isn't that high-minded. You make a good point about him thinking the case is a waste of time and taxpayer money.
snip
This message was edited 17 times. Last update was at 2013/11/07 21:14:59
Edited 17 times!? Someone has been working very hard....
It's late. I try to make my posts cogent and grammatically correct. I also have a habit of reviewing after submitting rather than proofing in the initial window. I proof, edit a bit, post, proof, edit another bit, save changes, read it over, maybe add a bit, etc. etc. Being late, the ol' fingers aren't typing as effectively and the noggin is not firing on all pistons.
Anyhoo,
I threw up in my mouth a bit when I read this:
As the Court in Plair stated, even for indigent clients, an award of costs should be considered as “the threat of costs requires indigent plaintiffs to exercise discretion and judgment in their litigious activity and accept the consequences of their costly lawsuits.” Id. Chapterhouse’s seemingly bottomless pit of free legal services removes the normal incentives that would counsel for discretion in litigation tactics and perhaps even reasonable settlement of disputes. Without Chapterhouse being taxed costs, Chapterhouse has no reason not to continue its behavior in the future.
While Chapterhouse certainly is not "indigent," this argument by GW is despicable.
'We sued a defenseless company and tried to bury it in legal fees, but because our case was such a pile of abusive BS, three of the finest, most well-respected firms in the country have taken on the case pro-bono. We've put this Nick guy through three years of Hell, beginning with when we blitz filed the lawsuit on Christmas Eve to scare the crap out of him, but it was his choice to be involved in this suit. I mean, he could have just done what we said and gone out of business. We were also characterized by the Magistrate judge as having the desire to completely obliterate Chapterhouse Studios to the point of making discussions of a settlement moot, but the real reason we are here is because this little turd has been deliberately orchestrating the acquisition of pro-bono counsel in a mad genius scheme to blatantly infringe our IP with impunity forever. He needs to be taught a lesson about getting sued by an 800 lbs. gorilla and having the incredible luck to find pro-bono representation in spite of the fact that he makes enough money to pay a lawyer for a week and a half. '
What the Hell GW. This is over the line, even for GW. This is way over the line. If anyone should be thinking about the costly consequences of their litigious activity it is GW.
This is like saying Alan Merrett killed his own mother to delay the trial date. It's that bad.
It's also grossly misleading, as if defending this legal action hasn't cost Chapterhouse anything, where as it has been costly. The seek to perpetuate the myth that pro-bono means totally free and therefore CHS can keep going forever.
So GW are still going on as if everything CHS is doing is wrong and should be shut down, despite the court and jury not agreeing?
Of course they've got no reason to stop this behaviour in the future, they should continue their trend of not infringing on stuff for as long as they can.
Herzlos wrote: So GW are still going on as if everything CHS is doing is wrong and should be shut down, despite the court and jury not agreeing?
Of course they've got no reason to stop this behaviour in the future, they should continue their trend of not infringing on stuff for as long as they can.
What's more than that, GW is arguing that it is the prevailing party because it wasn't GW's goal to put Chapterhouse out of business, regardless of all of the indications to the contrary. GW also makes an argument that 'trial goals' is not a meaningful metric by which to determine the prevailing party, so bear that in mind.
GW seems to think that saying that it is not trying to be punitive is what counts, not the behavior it actually engages in. GWsays it decided to not seek statutory damages because it was trying to be super-duper nice, but A) GW arguably waived stach TM damages via pre-trial error, B) Chapterhouse infringed no registered marks (and therefore would not have been exposed to stach damages), and C) seeking statutory damages would have opened a can of worms with respect to GW's bubkis trademark claims. Similarly, GW did not seek stach copyright damages because it asserted no registered copyrights!
GW's case is full of spin, selective recall, and gross mischaracterization of the facts. Do you all remember when something like 4 of the 5 elements GW claimed Chapterhouse's Tervigon Conversion Kit copied only existed in the Carnifex model kit pieces? Do you remember when GW claimed it did not have contact information for Gary Chalk while Gill Stevenson and Alan Merrett were repeatedly communicating with him? The problem is that GW buried tons of that BS in a mountain of constantly changing, unspecified claims.
GW asserted a giant case against Chapterhouse, forced Chapterhouse to go through ridiculous amounts of discovery wherein GW's counsel deliberately or at least recklessly withheld relevant documents, dropped claims left and right that the Court dismissed on the principle that you can't drag a party through two years of costly discovery and then abandon a claim without consequences, and now says that Chapterhouse Studios needs to face the threat of paying costs to prevent Chapterhouse's unreasonably litigious behavior?!?
That's why I vomited in my mouth. Defendants don't decide to keep litigating a case. Defendants defend themselves from a lawsuit in the control of the plaintiff. And in this case the plaintiff literally assertd claims it believed sounded crazy. Piles of skulls anyone?
I don't want to piss on you guys' barbeque or anything but you've all predicted that GW was about to get thrown out/humiliated/don't have a leg to stand on. Hitherto, you've been wrong, though obviously it's all open at the moment due to the appeals.
It's now actually quite amusing. Reminds me of when I used to frequent far-left forums and anything or everything that happened in the world was a pointer to the impending collapse of the capitalist system. I'll certainly be keeping an eye on proceedings.
Kilkrazy wrote: If the court awarded costs against Games Workshop, would the pro bono firms acting for Chapter House give up the money to charities?
American use of the word costs, so it only covers disbursements like toner aand photocopies. Not legal fees.
Highly unlikely they will donate anything to charity.
xruslanx wrote: I don't want to piss on you guys' barbeque or anything but you've all predicted that GW was about to get thrown out/humiliated/don't have a leg to stand on. Hitherto, you've been wrong, though obviously it's all open at the moment due to the appeals.
It's now actually quite amusing. Reminds me of when I used to frequent far-left forums and anything or everything that happened in the world was a pointer to the impending collapse of the capitalist system. I'll certainly be keeping an eye on proceedings.
I find it entirely amusing that in every single one of your posts that I read, you manage to be completely and utterly wrong on each and every thing that you say... Amazing!
xruslanx wrote: I don't want to piss on you guys' barbeque or anything but you've all predicted that GW was about to get thrown out/humiliated/don't have a leg to stand on. Hitherto, you've been wrong, though obviously it's all open at the moment due to the appeals.
It's now actually quite amusing. Reminds me of when I used to frequent far-left forums and anything or everything that happened in the world was a pointer to the impending collapse of the capitalist system. I'll certainly be keeping an eye on proceedings.
I'm sorry, can you please elaborate? How is losing more than 70% of your case, not including the dismissal of all Federal and State dilution claims by the way, considered to be a good thing?
Games Workshop prevailed on none of its registered marks; not Warhammer, not Warhammer 40,000, not Eldar, not Space Marine, not Tau, not Tyranid, not Games Workshop. Games Workshop demonstrated to the world that a jury says it is perfectly okay to have a business described as "Specializing in Custom Bits and Sculpts for Warhammer 40,000 and Fantasy." Games Workshop spent 7 figures to show that you can in fact have a home page with Eldar, Tyranid, Tau, Space Marine, Dark Eldar, and whatever other GW mark you like right down the left hand side in a series of product tabs. Games Workshop has yet to even secure an injunction. Games Workshop's lead counsel was personally sanctioned. Games Workshop dismissed its senior inhouse counsel. Games Workshop had more claims dismissed with prejudice by the Court than it prevailed on with the jury.
Please, explain to me how that is considered to be anything other than Games Workshop being humiliated. Games Workshop sunk more than a million dollars into a lawsuit against a company that had a combined total gross revenue over its entire existence of approximately $400,000.00 and that company remains in business today. Games Workshop is right now facing millions of dollars in potential exposure and a very real possibility of being dragged through an appeal kicking and screaming. Games Workshop's revenue has been flat since it filed this lawsuit in spite of massive cost cutting, price rises far in excess of inflation, and the release of Warhammer Fantasy 8th ed, Warhammer 40,000 6th ed, and The Hobbit. Barely a month out of trial Chapterhouse Studios raised more in a Kickstarter project for a limited line of products than the damages awarded by the jury.
The third party accessory market has grown since Games Workshop filed this lawsuit. The lawsuit has had the opposite effect Games Workshop desired. More companies are making shoulder pad accessories for Games Workshop Space Marine miniatures, not fewer. Tell me again how that is not embarrassing?
xruslanx wrote: I don't want to piss on you guys' barbeque or anything but you've all predicted that GW was about to get thrown out/humiliated/don't have a leg to stand on. Hitherto, you've been wrong, though obviously it's all open at the moment due to the appeals.
Well, no - GW was absolutely humiliated. When you assert 100 facts and 71 of them are proven to be untrue, you've been humiliated. When you spend 7 figures and are "awarded" $25,000 you have been humiliated.
It's now actually quite amusing. Reminds me of when I used to frequent far-left forums and anything or everything that happened in the world was a pointer to the impending collapse of the capitalist system. I'll certainly be keeping an eye on proceedings.
It's quite amusing that you can't see the forest because of all these damn trees getting in the way.
I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
You have to forgive X. He has a big crush on GW, and didn't even join Dakka until after this whole case had been going for a while. I doubt he's bothered to read the 193 preceeding pages, and doesn't have any real idea as to how this case has played out.
I find it entirely amusing that in every single one of your posts that I read, you manage to be completely and utterly wrong on each and every thing that you say... Amazing!
I can't recall anyone in this thread saying anything other than "GW will lose every single thing in this case", that's all I'm saying. So I actually have a better record than most of the regular posters in this thread.
I'll bow out now anyway before I get flamed to death. I was just making a passing comment...I'll be back to gloat when CHS is bankrupted by costs
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Saldiven wrote: I doubt he's bothered to read the 193 preceeding pages, and doesn't have any real idea as to how this case has played out.
I have read most of the legal postings from the past few dozen pages. There is a gross discrepancy between their contents, and their contents as discussed in this thread.
xruslanx wrote: I'll bow out now anyway before I get flamed to death. I was just making a passing comment...I'll be back to gloat when CHS is bankrupted by costs
Will you be back to apologize if the appeal makes GW lose everything they asserted?
Or if Chapterhouse is awarded costs?
xruslanx wrote: I'll bow out now anyway before I get flamed to death. I was just making a passing comment...I'll be back to gloat when CHS is bankrupted by costs
Will you be back to apologize if the appeal makes GW lose everything they asserted?
Or if Chapterhouse is awarded costs?
Actually yes, I will. If the judge tells GW they were wasting everyone's time then I'll admit that I was wrong. However I think that's unlikely, some sort of boring compromise is the most likely outcome.
Saldiven wrote: You have to forgive X. He has a big crush on GW, and didn't even join Dakka until after this whole case had been going for a while. I doubt he's bothered to read the 193 preceeding pages, and doesn't have any real idea as to how this case has played out.
Oh I think you'll find he has been here a lot longer than his joining date would suggest, in one form or another. It's strange how the posters who complain most vociferously about how anti-GW and negative Dakka is, seem to be the ones who can't stay away
xruslanx wrote: I'll bow out now anyway before I get flamed to death. I was just making a passing comment...I'll be back to gloat when CHS is bankrupted by costs
Will you be back to apologize if the appeal makes GW lose everything they asserted? Or if Chapterhouse is awarded costs?
Actually yes, I will. If the judge tells GW they were wasting everyone's time then I'll admit that I was wrong. However I think that's unlikely, some sort of boring compromise is the most likely outcome.
The judge already said that, more than 40 times. When Judge Kennelly repeatedly dismissed claims with prejudice he did so because, as he stated, it was inappropriate to bring claims for years and drop them at the 11th hour. This is because doing so is in fact a waste of everyone's time.
I find it entirely amusing that in every single one of your posts that I read, you manage to be completely and utterly wrong on each and every thing that you say... Amazing!
I can't recall anyone in this thread saying anything other than "GW will lose every single thing in this case", that's all I'm saying. So I actually have a better record than most of the regular posters in this thread.
I don't think anyone's ever said that. Plenty of people have said they should lose every single thing, and it'd be great if they did lose every single thing. But so many decisions have been a bit odd so far, and there's a chance that GW will walk away from this with some minor claims upheld.
But there's no way GW can honestly claim it's been anything other than a disaster for them. Their sole aim was to shut down CHS, and 3 years and millions of dollars later they've succeeded in removing almost nothing from CHS's inventory whilst giving them much greater protection on almost everything else. At appeal level they stand to potentially lose some of what they did manage to get, as well as millions more in expenses.
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weeble1000 wrote: [
GW asserted a giant case against Chapterhouse, forced Chapterhouse to go through ridiculous amounts of discovery wherein GW's counsel deliberately or at least recklessly withheld relevant documents, dropped claims left and right that the Court dismissed on the principle that you can't drag a party through two years of costly discovery and then abandon a claim without consequences, and now says that Chapterhouse Studios needs to face the threat of paying costs to prevent Chapterhouse's unreasonably litigious behavior?!?
Ah I see what you mean, on re-reading it it does look like GW are saying CHS need to be prevented from continuing litigious behaviour (which is mind bending on it's own). It just makes me thing they're pulling a legal version of "I don't like what they're doing. They shouldn't be arguing with us. Make them stop."
I take it there's no sanctions for claims as inaccurate as that, and that worst case is that it makes them look bad?
weeble1000 wrote: 'We sued a defenseless company and tried to bury it in legal fees, but because our case was such a pile of abusive BS, three of the finest, most well-respected firms in the country have taken on the case pro-bono. We've put this Nick guy through three years of Hell, beginning with when we blitz filed the lawsuit on Christmas Eve to scare the crap out of him, but it was his choice to be involved in this suit. I mean, he could have just done what we said and gone out of business. We were also characterized by the Magistrate judge as having the desire to completely obliterate Chapterhouse Studios to the point of making discussions of a settlement moot, but the real reason we are here is because this little turd has been deliberately orchestrating the acquisition of pro-bono counsel in a mad genius scheme to blatantly infringe our IP with impunity forever. He needs to be taught a lesson about getting sued by an 800 lbs. gorilla and having the incredible luck to find pro-bono representation in spite of the fact that he makes enough money to pay a lawyer for a week and a half. '
What the Hell GW. This is over the line, even for GW. This is way over the line. If anyone should be thinking about the costly consequences of their litigious activity it is GW.
But if every little kid is constantly protected by parents and teachers, how will they ever learn to bow to the bully
Saldiven wrote: You have to forgive X. He has a big crush on GW, and didn't even join Dakka until after this whole case had been going for a while. I doubt he's bothered to read the 193 preceeding pages, and doesn't have any real idea as to how this case has played out.
Oh I think you'll find he has been here a lot longer than his joining date would suggest, in one form or another. It's strange how the posters who complain most vociferously about how anti-GW and negative Dakka is, seem to be the ones who can't stay away
You beat me to it filbert!
I've lost track - anyone have the important dates for the upcoming milestones?
There was a status hearing on the 7th. This was the result:
This docket entry was made by the Clerk on Thursday, November 7, 2013:
MINUTE entry before the Honorable Matthew F. Kennelly: Status hearing held on
11/7/2013. The Court will rule on pending post−trial motions at a later date.Mailed
notice.(pjg, )
So, looks like no oral argument. He'll rule (injunction, jmols, and costs), then the clock starts ticking on the appeal.
Ian Sturrock wrote: I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
So obvious as to be a triviality. I can't imagine anyone having looked at that at the time, and thought that they could be anything other than a reference to Manga/anime? Even the timing was correct, during an attempted expansion into Eastern markets.
You can draw similar lines through much of GW's stuff - but, funnily enough, it's something that most people wouldn't have had a problem with, in that so many fantasy conceptions are echoes of earlier offerings. Rogue Trader, and early Fantasy, were absolutely chock-full of it (in fact.. some of the artists were freelancers who worked on a variety of material) and the book's authors unapologetic fans of that other material.
The problem is that now big business, not the artistic originators of GW's work but the kind of sycophants and company drones you get in the form of people like Merrett, are trying to build an iron wall around ideas that were not their own to begin with.
Am glad the case has gone the way it has - anything other would have set a dangerous precedent, not just as far as GW is concerned, but for the rest of the industry and possibly beyond.
Ian Sturrock wrote: I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
Bickering on this forum won't affect the final outcome of the case, for which we just have to wait.
What interests me about this case is the scope of Games Workshop's intellectual property claims. Let me explain.
GW has a lot of properly registered, indisputable and valuable IP, for instance the texts of every book it has published, artwork (where GW paid the artist to transfer the copyright), The specific forms of all the miniatures that it has produced, and trademarks like Warhammer (but only in the context of wargaming and roleplaying - they can't stop someone opening a Warhammer café or Warhammer plumbers, unless they used the GW Warhammer logo).
All of this IP is unassailable, and no-one can legally make copies of these products (although presumably the books are all available on file-sharing sites).
GW also makes some IP claims that could be disputed, like the term 'Space Marine' which (it has been shown) they didn't originate as a science-fiction trope or even make first use of in tabletop wargaming. It remains to be seen whether anyone can successfully challenge GW over Space Marines within their core business, and it seems unlikely for now.
Then there are the more controversial IP claims by GW, such as owning the rights to the 'Chaos Device', a variation on the eight-pointed cross of medieval heraldry by sci-fi and fantasy writer Michael Moorcock. Another example are the various sci-fi versions of historical armies and vehicles. These things are generic.
Why does GW defend these tenuous IP claims so aggressively? I can't help drawing the conclusion that the company is abusing IP law in an attempt to restrict legitimate competition.
Games Workshop prospered in its early years (from the late-70s to the mid-80s) partly because it was able to use the IP of others (Michael Moorcock, 2000AD, the BBC's Doctor Who, TSR and Chaosium spring to mind) in its products. One could argue that GW wouldn't have survived until Warhammer and its other games really took off without those licensed products.
So it seems deeply hypocritical of GW to try to brush over that part of their history while suing other companies for making miniatures compatible with their games.
Of course, other members of this forum have made the same points earlier. But to me this is the broader significance of the case: Can one company use IP law in this way to exclude other companies from the market?
If they think they can get away with it an unscrupulous company will do this, to extend market place dominance and squeeze out competition, they hope it will lead to greater profits. GW are showing themselves to be quite a nasty company that uses intellectual and actual dishonesty to attack their opponents. Dishonesty in their attempts to deceive the court of their patent office communications and attempts to trick artists into retroactively signing away their rights to certain works. Dishonesty in claiming that all their stuff is original and studio artists just pulled stuff out their heads, whereas the inspiration for things is clearly obvious and staff have said in many interviews over the years that their direct inspiration was X or Y and how they had piles of reference books sitting around when working on projects. Further deceitful behaviour is the manner in which they attempt to move the goal posts after the trail to claim they did better than they did. Then trying this dirty trick that CHS are abusing pro-bono to needlessly drag the case out and hurt GW. WTF?! GW seriously think CHS should just roll over and take it to save them money.
They make me sick. They are a monster in this hobby that needs taking apart because unchallenged they will put the pressure on anyone they can. Or does the boast of the many hundreds of 'files' they claim to be building on certain individuals/companies they feel are infringing them not seem worrying to anyone else? This is why I don't buy GW any more, not for some years. I'm not funding them destroying the hobby so that the only thing you can buy are space marines in corporate GW stores.
Every time I log on to dakka something has happened in this thread, and every time it is something off topic... Except a court update that says: "no update"
Ian Sturrock wrote: I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
Back in 1998-1999 I worked for Hot Topic in Columbia Mall (part-time), during the day I worked for GW at the Glen Burnie HQ.
I remember one day, around Christmas, we got in a shipment of stickers I had to inventory and put out for sale at Hot Topic.
I thought it was really cool when I pulled out a stack of stickers of the Imperial Aquila (the two headed eagle), the Crux Terminatus and another stack of a skull (the skull was clearly a GW designed skull pulled from one of the books, but I cannot remember the artist).
As far as they knew HT didn't have any type of license to sell them, but GW never did anything about it. Later on we even had a t-shirt for sale at HT with the Crux Terminatus.
Maybe that as the difference between the US and UKGW headquarters, or maybe at the time GW wasn't as litigious as they are now, but nothing was ever done about it as far as I could find out.
Sorry if you think this is going off topic, but if this was just about whether ChapterHouse Studios stays in business and keeps making its models, perhaps the thread would never have reached 195 pages. Obviously there is a question of justice and fair play, and whether the big boy in the industry is bullying the underdog, but other members' post show that it goes beyond that.
As others have pointed out over and over again, many of Games Workshop's products are based on ideas lifted from popular works of fiction and historical sources, so they've got a bare-faced cheek suing others for doing the same thing.
The copyright, trademark and patent laws of various nations are what they are, and are not going to be altered by this case, or in response to this case. That said, I think it's reasonable to reflect on the state of these laws.
IP laws seem to have a lot of good sense in them. You can't copyright an idea, only a particular and unique expression of that idea, which means you can't copyright genre or general fiction 'tropes'. You can't patent something that everybody already knows about: just because no-one ever patented the wheel, it doesn't meant that you can and charge everyone royalties for making them.
However, there is a disparity in duration between different forms of IP. In some jurisdictions, trademarks cease to valid if they are not used for more than five years Patents are only valid for 20 years from the first date of filing in the EU and the USA, and perhaps in most of the world. Copyright generally endures for the life of the creator plus 50 to 100 years after their death, meaning that the author's 'estate', whoever owns the rights to it, retains the copyright.
What if the copyright holders of a work, such as a book, film or record, decide not to publish or release that work, making it unavailable to the public? J R R Tolkien died in 1973. Under current British copyright law his family have rights to his books for 70 years after his death (until 2043). What if they decide to stop all publication of The Hobbit, The Lord of the Rings and the rest? This is obviously detrimental to human culture as a whole (even if only to a small degree), but they would be perfectly within their rights under current copyright law.
Arguably there should be a change in copyright law so that works which are out of publication or release for longer than a certain period of time (say, 10 or 20 years) would become public domain, so anyone would be able to reproduce them. In the age of the internet (and of 3-D printing) that would effectively mean free access to those works.
Maybe that as the difference between the US and UKGW headquarters, or maybe at the time GW wasn't as litigious as they are now, but nothing was ever done about it as far as I could find out.
It's more likely that it was because HT had more income after taxes at the time than the entire net worth of Games Workshop. Big companies don't sue each other unless they have (or think they have) something to gain. In this case they both only stood to lose, so they just embraced the status quo.
Games Workshop prospered in its early years (from the late-70s to the mid-80s) partly because it was able to use the IP of others (Michael Moorcock, 2000AD, the BBC's Doctor Who, TSR and Chaosium spring to mind) in its products. One could argue that GW wouldn't have survived until Warhammer and its other games really took off without those licensed products.
...
...
To be fair to GW, they legally licensed those IP properties in order to make “official” games and localised versions.
My point was that those individuals and companies agreed to licence their IP to Games Workshop, which allowed them to produce some of their early products and get started as a business (at least, producing something other than the Fighting Fantasy game books).
GW HAS in fact licensed Fantasy Flight Games to produce the old Talisman board game, which is great. I think someone is also making a posh version of Battle for Armageddon under licence. However, GW doesn't want anyone else making miniatures compatible with Warhammer 40K, which is understandable since that's a core part of their business. This is arguably an anti-competitive attitude and this court case has shown that GW may have difficulty in stopping people from doing so.
I say that GW is being hypocritical because it benefited in its early days from a somewhat laissez-faire attitude towards copyright and trademark in the industry in those days, an attitude that the company no longer shares.
I was surprised that GW sued over Chapterhouse's Lizard Ogre, because WFB is so much more generic than 40K. Lizardmen appeared in the AD&D first edition Monster Manual in 1977:
Making a giant lizardman or giving it an Aztec or Mayan culture hardly makes GW's product unique, does it?
That is exactly what GW says. In fact, GW says that this combination of "elements" is what constitutes protected expression in its work, and that any other bipedal lizard with mesoamerican material culture therefore infringes its copyright in, well, in sort of Lizardmen in general as GW seems okay with asserting a mad amalgam of disparate works of art as a frankenstein monster of an original work of authorship. Sadly, Judge Kennelly allowed this to happen.
If the case goes on appeal, we'll see what the appellate court thinks about asserting a photograph of a painted set of three miniatures and a drawing of three different weapons (none of which the miniatures are wielding) as a single work of art. GW's entire claim chart was like this. You should look it up in the exhibits attached to the recent filings. Every entry in the table is a single claim, a single claim asserting an alleged work of original authorship that has allegedly been infringed.
Gw literally argued that its Croxigor was unique because it was a bipedal lizard with aztec-like weapons and gold jewelry. That's it. Anything that combines those elements, however it is expressed, is an infringement according to GW, because GW "uniquely" combined the common elements of bipedal lizard and mesoamerican material culture. No one else can do this, ever, in any way, because it belongs to GW now.
It strikes me that GW does not quite understand the idea/expression dichotomy. This case has the potential to shift copyright law. If the lower court's rulings are allowed to stand, copyright law will be changed as it is. If not, it will help to bring clarity to issues that have pretty much never been raised before.
Gw literally argued that its Croxigor was unique because it was a bipedal lizard with aztec-like weapons and gold jewelry. That's it. Anything that combines those elements, however it is expressed, is an infringement according to GW, because GW "uniquely" combined the common elements of bipedal lizard and mesoamerican material culture. No one else can do this, ever, in any way, because it belongs to GW now.
I know you're aware Weeble, but just to chime in for the benefit of those who aren't, that's gold jewellery on an unpainted model as sold.
Gw literally argued that its Croxigor was unique because it was a bipedal lizard with aztec-like weapons and gold jewelry. That's it. Anything that combines those elements, however it is expressed, is an infringement according to GW, because GW "uniquely" combined the common elements of bipedal lizard and mesoamerican material culture. No one else can do this, ever, in any way, because it belongs to GW now.
I know you're aware Weeble, but just to chime in for the benefit of those who aren't, that's gold jewellery on an unpainted model as sold.
Exactly! So what the Hell infringes? Not that GW won this claim, but it won similar claims, like the Doomseer and the Dark Elf Arch Torturess. But Kennelly ruled the website photos to be part of the works, even over mountains of testimony that the products of both parties are sold unpainted and unassembled. Color was a part of most of GWs claims. But the color was only in essentially advertising photos displaying what might arguably be derivative works. But should they rather be considered compilations?
Think about the implications for figure painters. Are their works the property of the model sculptor? Kennelly's ruling could be interpreted that way. I think he ruled based on the relationship of the photos to the commercial value of the products. But does the use to which someone puts a work implicate ownership? And what of injunction? If the products infringe in combination with the website photos, should CHS be enjoined only from that combination?
This case is a darn big mess that touches on scores of fundamental issues for the miniatures industry and beyond. In a few years people may be citing the Games Workshop case.
azreal13 wrote: I know you're aware Weeble, but just to chime in for the benefit of those who aren't, that's gold jewellery on an unpainted model as sold.
azreal13 wrote: I know you're aware Weeble, but just to chime in for the benefit of those who aren't, that's gold jewellery on an unpainted model as sold.
Funny. I painted mine to look like Jade.
Well you weren't doing it properly, were you. Those were GOLD bands, man. How dare you paint your unpainted unassembled miniature however you want to, using your own creative expression! How dare you, sir. You must not be a TRUE fan.
azreal13 wrote: I know you're aware Weeble, but just to chime in for the benefit of those who aren't, that's gold jewellery on an unpainted model as sold.
Funny. I painted mine to look like Jade.
Well you weren't doing it properly, were you. Those were GOLD bands, man. How dare you paint your unpainted unassembled miniature however you want to, using your own creative expression! How dare you, sir. You must not be a TRUE fan.
see, but i find that strange. What's the difference between someone who builds a miniature and someone who paints it? If both mimic GW's product, how is it that the commission painters are getting off? Technically speaking it's entirely possible to recycle massive armies wholesale without GW getting one penny from the process, and if the armies that are sold are all based on GW designs and color schemes.... .well...aren't the commission painters living off of GW? I don't see the difference between the two.
This case is a darn big mess that touches on scores of fundamental issues for the miniatures industry and beyond.
Which is the reason we have seriously high powered IP law firms standing in line to assist in this case. I suspect that huge amounts of IP law and practice come crashing down if the GW wins stand up on appeal.
azreal13 wrote: I know you're aware Weeble, but just to chime in for the benefit of those who aren't, that's gold jewellery on an unpainted model as sold.
Funny. I painted mine to look like Jade.
Well you weren't doing it properly, were you. Those were GOLD bands, man. How dare you paint your unpainted unassembled miniature however you want to, using your own creative expression! How dare you, sir. You must not be a TRUE fan.
see, but i find that strange. What's the difference between someone who builds a miniature and someone who paints it? If both mimic GW's product, how is it that the commission painters are getting off? Technically speaking it's entirely possible to recycle massive armies wholesale without GW getting one penny from the process, and if the armies that are sold are all based on GW designs and color schemes.... .well...aren't the commission painters living off of GW? I don't see the difference between the two.
Are you suggesting that painting a miniature is not a work of art? The Golden Demon competition itself disagrees with you. And color schemes themselves are generally not considered to be original works of authorship by the US copyright office. I think there are many many many miniature painters that would be seriously offended by your implications.
Copyright protects works that are at least minimally creative. Are you suggesting that painting a miniature does not involve at least a minimal degree of creativity? If painting a miniature is as you suggest, it would mean that the artist that sculpted the miniature owe and controls any way the such miniature is painted. And yet the painting of a miniature dramatically alters the nature of that work of art. Even if the exact same color scheme is used. The manner in which such an IDEA is EXPRESSED can be radically different because it involves substantive choices by the artist which are integral to the meaning and character of the work.
Besides, hasn't GW given an implied license to paint its miniatures? Hasn't any manufacturer of miniatures, which are designed and intended to be painted. Their purpose is to be painted, as is their value as a product to the consumer. In the UK, such miniatures themselves, being mass produced, would not qualify as artwork, and so the painting woe be the only extant work if art. Assembling a miniature as intended even involves creative choices if the miniature is posable. And those are creative choices the seller intends the customer to make, vacating any ownership or control over those choices, even if they could be owned by the manufacturer.
Just go and look at a Lysander miniature painted by 20 different people, all in the "appropriate" color scheme and tell me if you think there is no creative difference between those works.
Or he's GW exec who is planning where the next round of C&D's are going as soon as they replace Ms. Stevenson.
Talking of the erstwhile Ms. Stevenson, I had a thought recently. Didn't her departure just slightly pre-date the announcement of the involvement of those heavyweight IP lawyers?
Could the timing suggest desertion of a sinking ship, rat stylee, rather than termination?
Academic at best, as the outcome is the same, but that extra little bit of info could spin the situation slightly differently.
Or he's GW exec who is planning where the next round of C&D's are going as soon as they replace Ms. Stevenson.
Talking of the erstwhile Ms. Stevenson, I had a thought recently. Didn't her departure just slightly pre-date the announcement of the involvement of those heavyweight IP lawyers?
Could the timing suggest desertion of a sinking ship, rat stylee, rather than termination?
Academic at best, as the outcome is the same, but that extra little bit of info could spin the situation slightly differently.
If Gill Stevenson jumped ship from Games Workshop Ltd, I would think that she might have lined up a new job first, even a token position like of counsel for a firm so she could say she was never unemployed.
I checked her LinkedIn page just now to make sure Gill was still "looking for a new opportunity," and this was interesting:
Gill Stevenson commented on this update:
Dave Kerpen: If opportunity doesn't knock, build a door. - Milton Berle
5 days ago
I can't imagine being lead council in that affair was any fun. Indeed there could be all sorts of reasons other than a deliberate (or non-deliberate) "push". However, I do think it is highly unlikely that she and/or GW don't think her remaining with them would be a mistake. Either she no longer likes GW or they don't like her. One of those things must be true for her to be let go of. No one quits a job they like voluntarily for no money.
odinsgrandson wrote: I wonder if we're not reading too much into her departure and activities.
Anytime anyone significant leaves GW, we tend to read a lot into it. I'm not sure that that's always warranted.
That's possible, but then you have to consider Weeble's point from earlier in the thread, as a rule, professionals don't just up and quit without a new job at the point in their career she seems to be at.
Time may tell, but that one thought is very difficult to reconcile with any voluntary actions she might have made.
odinsgrandson wrote: I wonder if we're not reading too much into her departure and activities.
Anytime anyone significant leaves GW, we tend to read a lot into it. I'm not sure that that's always warranted.
That's possible, but then you have to consider Weeble's point from earlier in the thread, as a rule, professionals don't just up and quit without a new job at the point in their career she seems to be at.
Time may tell, but that one thought is very difficult to reconcile with any voluntary actions she might have made.
I think the most absurdly glaring point is that Gill Stevenson 'departed' Games Workshop Ltd. a month after the verdict in the Chapterhouse case. And before anyone says that she might just have been hanging around until the case was finished as a super nice favor to GW, keep in mind that the suit is not over, and losing senior in house legal counsel at this point in the case is a blow. As senior in house counsel, she would have been the mediator between the company and outside counsel. Now that she is gone, someone else has to come up to speed quickly because executives are going to be looking to their lawyers for advice when decisions have to be made.
And you might want to consider the reverse. If GW wanted to fire her, maybe they figured it would be best to wait until after she testified in court . Disgruntled employees do not make good witnesses.
If Gill Stevenson had planned to leave, why is she "looking for a new opportunity?" If she was handling the trial to close out her time with GW, shouldn't she have been using that time to find that opportunity?
At the end of the day, the simplest explanation is that Games Workshop was not happy with the jury verdict and put the blame on the one person at the company who was arguably the architect of the whole thing.
essentially, yes.
The entire premise was ridiculous, but at the same time, it just makes you scratch your head and wonder if maybe GW won't attempt some sort of jab at this. Obviously it's in GW's interests if it sells the army brand new, and not some other bloke who makes it his business to recycle used stuff. I know certain companies do use the trade of used armies to turn a profit, and if GW decides they don't like this policy, because somehow if follows the same trend as the trade of bits.... I'm pretty sure that those dealers also depend heavily on the sale of new boxes, and if GW sees the trade of used armies/parts badly, well, that business will likely not be getting any new orders filled by GW. That's the context under which I fail to see the difference, whether someone's copying GW's artistic works in refurbishing and selling their already sold product, or filling a gap in their product line or creating a third party rendition of what the model should look like if it wasn't stuck waiting for around 15+ years for an update/new sculpt.
mechanicalhorizon wrote: Back in 1998-1999 I worked for Hot Topic in Columbia Mall (part-time), during the day I worked for GW at the Glen Burnie HQ....
So over the last couple of pages people have been mentioning the appellate court, could a lawyery type explain to the rest of us what that means?
Obviously it deals with appeals but will a new judge/jury get involved or anything or are we more or less back to where we started with lawyers arguing only this time they both have the verdict to poke holes in/back them up?
No jury gets involved on appeal, no 'new' facts are entered into the record, and basically anything which isn't thrown out on appeal stands. Short and unlawyery enough?
It basically involves lawyers trying to convince a panel of judges that certain judgements made during the initial trial (and stuff leading up to it) were in error and should be reversed. Basically, it's where you finally get to make a decent legal argument without 12 complete and utter idiots involved. ...Though that might be a continental European perspective talking, here
So all those calls people on here have made about ideas not being copyrightable and stuff like that which the current judge has let slide, this is CH's chance to turn around and get that overruled because it's now multiple judges who are paying attention rather than waiting for one side to settle?
Bolognesus wrote: No jury gets involved on appeal, no 'new' facts are entered into the record, and basically anything which isn't thrown out on appeal stands. Short and unlawyery enough?
It basically involves lawyers trying to convince a panel of judges that certain judgements made during the initial trial (and stuff leading up to it) were in error and should be reversed.
Basically, it's where you finally get to make a decent legal argument without 12 complete and utter idiots involved.
...Though that might be a continental European perspective talking, here
Well you know the "12 complete and utter idiots" are a "Jury of our peers"......
Bolognesus wrote: I will refrain from posting anything mentioning the average American -- even when blatantly baited
The jury of peers is fine and well for criminal cases, but a case like this I honestly feel would be better served by having a jury of judges who understand the implications of the decisions being made for this type of case.
Imagine if there was no appeal process. Then 12 literally random people from Chicago decided how a massive part of IP law will function without any comprehensive understanding of the impact those decisions will have. This case is about far more than toy soldiers, as evidenced by the very large firms chomping at the bit to get in on it at this stage.
I do feel that the jury of peers works fairly well for criminal cases(at least when celebrity is not involved), but a case like this that is ALL "legal nonsense" should really be decided by those educated in the field.
My 2 copper on it at least.
I maintain the stand that I've had since day one: GW have spent millions and have everything to lose, CHS has spent just over $100k and have nothing further to lose. What is the worst that happens for CHS? They close and the owner gets a different job, life goes on. What is the worst that happens to GW? A billion smaller companies decide to open shop now that they know well defined boundaries in which they can create products(which only benefits us as consumers). CHS has no reason to settle except that they be bought out entirely by GW, but at this point I'd imagine that CHS's counsel is heavily advising against that since they are so well poised to win in appellate court.
Ian Sturrock wrote: I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
Not that the average GW staff have any authority to speak for the company. I do not speak for the guys I do contract work for despite regularly talking to the owner of the company. A guy working retail for a much larger corporation is in much the same boat.
Off topic - But it was pithy Bolognesus, it was pithy.
Oh, and Aerethan, where did you get that 100K number? I think as far as we know, Chapterhouse only spent ~$1,200.00 to pull some files at the copyright office, and Jonathan Moskin is required to pay that back on account of having failed to provide those documents in the first place. Other than that, there's probably a smattering of court fees, travel costs, and of course an immense amount of both time and mental anguish, but I daresay that 100K is way too big of an estimate of what Chapterhouse has actually spent on the litigation.
Now, the pro-bono firms have put in hundreds of thousands, if not millions in costs and lord knows what amount in terms of unpaid fees. I expect that whatever GW put into the case, Chapterhouse's counsel put in several times the amount.
And it also is not really an "investment" for Chapterhouse Studios, it is a matter of survival. It has always been a fight or die situation, if you remember Judge Gilbert intimating that GW's goal was "go away, die, and pay us whatever you can of our attorneys' fees." It is an investment for Chapterhouse's counsel, though only the firms know the exact nature of how they perceive that investment, which could be as simple as justice or the public good.
An appeal in the US Court of Appeals will take place before a panel of 3 Judges. Those three judges will be chosen randomly out of the 7th Circuit Court of Appeals. From there, a party can request an en banc hearing or rehearing, which brings the case to the whole bench, or all of the 7th Circuit Court of Appeals judges. This, however, can only be a request as it is not a right, and a court can make its own independent decision to hear or rehear a case en banc.
Matters before a court of appeals are typically issues of reversible error or arguments to vacate a judgment. An appellate panel could for example vacate all or part of a judgement, enter new judgment, reverse a lower court's ruling, or remand all or part of a case for re-trial. The rulings of a court of appeal tend to carry more weight and have more force as precedent.
Ian Sturrock wrote: I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
Not that the average GW staff have any authority to speak for the company. I do not speak for the guys I do contract work for despite regularly talking to the owner of the company. A guy working retail for a much larger corporation is in much the same boat.
But if it's such an obvious rip-off that their own retail staff are discussing it makes it harder to claim independent design, no?
Ian Sturrock wrote: I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
Not that the average GW staff have any authority to speak for the company. I do not speak for the guys I do contract work for despite regularly talking to the owner of the company. A guy working retail for a much larger corporation is in much the same boat.
But if it's such an obvious rip-off that their own retail staff are discussing it makes it harder to claim independent design, no?
Not really, if you are talking about what matters in a court of law.
What does tend to make things harder to support a claim is when a designated 30(b)(6) witness (as in a representative of the corporate entity on a particular subject - e.g. Alan Merrett, Andy Jones, and Gill Stevenson) say stupid stuff, such as explaining that the Tau are redolent of classic science fiction, describing the Dark Eldar aesthetic as spiky and evil, describing a claim as sounding crazy or not one of the strongest, saying that something is a copy of an idea, saying that one has provided no evidence of confusion, admitting that one has done no advertising in 30 years of business and has performed no consumer surveys or market research, and so forth.
As a general matter, plaintiffs have to bring a little thing called evidence when they make a claim. You will note that Chapterhouse's motions for judgment as a matter of law frequently describe a lack of such evidence, sometimes in its entirety. Now, those are just arguments the defendant is making, articulated in publicly available documents.
Indeed. Burden of proof is on the plaintiff. And GW has made the defense as easy as saying "they didn't provide any proof, which is the one thing they are supposed to do".
We've speculated since day 1 that GW threw out the C&D thinking it would work, and when it didn't they scrambled to throw together a case but did a piss poor job getting their gak together.
Aerethan wrote: Indeed. Burden of proof is on the plaintiff. And GW has made the defense as easy as saying "they didn't provide any proof, which is the one thing they are supposed to do".
We've speculated since day 1 that GW threw out the C&D thinking it would work, and when it didn't they scrambled to throw together a case but did a piss poor job getting their gak together.
GW registered hundreds of copyrights more than a year into the lawsuit, and then tried to pretend that it could seek statutory damages because its copyrights were registered, and then "deliberately or at least recklessly" failed to provide its communications with the copyright office to the defense knowing it has received refusals to register some of its works, and then used Judge Kennelly's summary judgment opinion of copyrightability in an attempt to overcome that refusal, all after swearing to the Court that it had produced or was in the process of producing all responsive documents.
I think it is fair to say that GW was not "ready" to actually litigate the case. That Judge Kennelly let so much of this type of behavior slide so easily is...well, let's just say I think it will be interesting to see how the 7th Circuit Court of Appeals reacts to the case if it goes to the appellate court.
Ian Sturrock wrote: I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
Not that the average GW staff have any authority to speak for the company. I do not speak for the guys I do contract work for despite regularly talking to the owner of the company. A guy working retail for a much larger corporation is in much the same boat.
Yes but even so it is obvious.
Like when they released Adeptus Teenytechicus at the height of the Battletech boom.
weeble1000 wrote: GW registered hundreds of copyrights more than a year into the lawsuit, and then tried to pretend that it could seek statutory damages because its copyrights were registered, and then "deliberately or at least recklessly" failed to provide its communications with the copyright office to the defense knowing it has received refusals to register some of its works, and then used Judge Kennelly's summary judgment opinion of copyrightability in an attempt to overcome that refusal, all after swearing to the Court that it had produced or was in the process of producing all responsive documents.
I think it is fair to say that GW was not "ready" to actually litigate the case. That Judge Kennelly let so much of this type of behavior slide so easily is...well, let's just say I think it will be interesting to see how the 7th Circuit Court of Appeals reacts to the case if it goes to the appellate court.
Isn't that sort of behaviour illegal? If not, then it probably should be. It sounds like Contempt of Court, Perversion of the Course of Justic, that sort of thing.
weeble1000 wrote: GW registered hundreds of copyrights more than a year into the lawsuit, and then tried to pretend that it could seek statutory damages because its copyrights were registered, and then "deliberately or at least recklessly" failed to provide its communications with the copyright office to the defense knowing it has received refusals to register some of its works, and then used Judge Kennelly's summary judgment opinion of copyrightability in an attempt to overcome that refusal, all after swearing to the Court that it had produced or was in the process of producing all responsive documents.
I think it is fair to say that GW was not "ready" to actually litigate the case. That Judge Kennelly let so much of this type of behavior slide so easily is...well, let's just say I think it will be interesting to see how the 7th Circuit Court of Appeals reacts to the case if it goes to the appellate court.
Isn't that sort of behaviour illegal? If not, then it probably should be. It sounds like Contempt of Court, Perversion of the Course of Justic, that sort of thing.
Games Workshop's lead counsel was personally sanctioned for it. It is within the discretion of the Court to impose sanctions. Not everyone always agrees with the way a particular Judge decides to handle a particular incident. If you want to know more about Mr. Moskin's record of behavior, check out E&J Gallo Winery v Cantine Rallo out in California 'roundabouts 2006-2007. Mr. Moskin was at White and Case at the time and was representing the defendant in that case, Cantine Rallo, against allegations of trademark infringement. It is interesting to see how, regardless of what side of a case he is on and regardless of the relative size of his client with respect to the opposing party, his behavior is very similar.
Note that Mr. Moskin is no longer with White and Case, and left that firm about a year after the Gallo v Rallo case was over.
Ian Sturrock wrote: I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
Not that the average GW staff have any authority to speak for the company. I do not speak for the guys I do contract work for despite regularly talking to the owner of the company. A guy working retail for a much larger corporation is in much the same boat.
Yeah. At the time, though, I wasn't a GW customer, but I was working with a company that worked quite closely with them in terms of discussing IP (Hogshead Publishing). So I wasn't generally chatting to retail staff...
Ian Sturrock wrote: I can remember several GW staff happily admitting that Tau were an attempt to cash in on the popularity of anime and manga, at the time of their release. Not that any design elements were borrowed from other art, obviously.
Not that the average GW staff have any authority to speak for the company. I do not speak for the guys I do contract work for despite regularly talking to the owner of the company. A guy working retail for a much larger corporation is in much the same boat.
Yeah. At the time, though, I wasn't a GW customer, but I was working with a company that worked quite closely with them in terms of discussing IP (Hogshead Publishing). So I wasn't generally chatting to retail staff...
Joint Status update Re: the Injunction, and some arguing.
The parties respectfully submit the following joint status report supplementing the prior July 12, 2013 and October 22, 2013 joint status reports in response to the Court’s request at the November 7, 2013 status conference that the parties clarify the language in the proposed injunction submitted on July 12 concerning development by Chapterhouse of derivative works. Attached as Exhibit A, the parties have added agreed language at the end of paragraph 1(b) that resolves the potential ambiguity raised by the Court.
Something tells me that if a bunch of schmucks off the street threw out the majority of GW's claims, a group of dedicated lawyers and judges are going to have a field day with what's left.
czakk wrote: Oh, and the bickering that is going on in these joint status updates. Judges hate this.
Yea, I don't really get it. Although I think, contrary to what GW says, there is ample reason to believe that GW will make any sort of claim at any point regardless of what it claimed previously. Merrett described his own claim as sounding crazy for God's sake. Clearly, GW is very willing to make claims even it feels are absurd and nonsensical. GW has filed multiple lawsuits against Chapterhouse Studios as well, and its counsel has engaged in sanctionable behavior. At the very least, I think it is fair to say that one cannot trust GW as far as one can throw it.
I mean, Moskin was sanctioned for failing to produce documents after Chapterhouse raised such significant concerns about document production that it asked for, and received, a court order to have lead counsel swear that document production was complete. And Chapterhouse even objected to the wording of Mr. Moskin's affidavit as being insufficient, and the Court agreed. Then it is later discovered that the documents Mr. Moskin failed to produce were in his hands the day before that affidavit was sworn.
Nor has it articulated any reason to believe that Games Workshop would in the future seek to hold Chapterhouse in contempt for copyright infringement simply for using random public domain materials such as an “X” on a flag, with nothing more.
Halberd. And the scores of claims withdrawn / dismissed with prejudice.
Automatically Appended Next Post: -----
Also just to pick some nits:
particularly as Chapterhouse has articulated no reason to fear that Games Workshop intends to seek rights in random such elements.
Kilkrazy wrote: Is there a law on "vexatious litigation" in the USA?
Normally taken care of by the inherent jurisdiction of the courts. Usually has a very high bar. Generally results in costs awards or curtaling the ability to bring lawsuits. I think California has a law though.
There are some common law torts, malicious prosecution and abuse of process. Again, very high bar.
Kilkrazy wrote: Is there a law on "vexatious litigation" in the USA?
Yea, but burden of proof is tough. I believe it is a state of mind issue. You have to prove that the plaintiff knew at the time that its claims had no reasonable basis. So it is pretty easy to circumvent. Hence you do not see them very often.
In this case GW (as a company) knew, and/or their lawyers knew, that they did not hold the copyright on a number of items they were claiming had been violated of copyright.
That looks a bit vexatious to me, though IANAL.
It would probably come to nothing, however the court may well end up spanking GW anyway. We shall see.
Kilkrazy wrote: Is there a law on "vexatious litigation" in the USA?
Yea, but burden of proof is tough. I believe it is a state of mind issue. You have to prove that the plaintiff knew at the time that its claims had no reasonable basis. So it is pretty easy to circumvent. Hence you do not see them very often.
GW do have a convincing argument that they didn't know what they were doing...
Kilkrazy wrote: Is there a law on "vexatious litigation" in the USA?
Yea, but burden of proof is tough. I believe it is a state of mind issue. You have to prove that the plaintiff knew at the time that its claims had no reasonable basis. So it is pretty easy to circumvent. Hence you do not see them very often.
GW do have a convincing argument that they didn't know what they were doing...
Kilkrazy wrote: Is there a law on "vexatious litigation" in the USA?
Yea, but burden of proof is tough. I believe it is a state of mind issue. You have to prove that the plaintiff knew at the time that its claims had no reasonable basis. So it is pretty easy to circumvent. Hence you do not see them very often.
GW do have a convincing argument that they didn't know what they were doing...
And, looking at those latest posts... still don't.
Do we have an eta on the next update? This has been fascinating for me. I'm not a lawyer but this has been quite interesting, and I'm learning a bit about this stuff. Thanks for all the people who actually know what they're talking about who break it down for us non-lawyer types.
CoI wrote: Do we have an eta on the next update? This has been fascinating for me. I'm not a lawyer but this has been quite interesting, and I'm learning a bit about this stuff. Thanks for all the people who actually know what they're talking about who break it down for us non-lawyer types.
We just have to wait on the Judge. All briefing has been submitted. There may be oral argument, but as far as I can tell from the docket that hasn't been scheduled. The court will eventually make rulings and the case will proceed from there.
Wolfun wrote: So, I don't really want to scroll through pages and pages of comments.
Last I heard was CHS mostly won. Has there been any appeals and what came of hem?
Just a friendly FYI, asking people to go to the time and trouble of summarising a very complicated situation on your behalf because you don't feel like reading what is already available, isn't likely to illicit the response you're hoping for.
EDIT
To try and be more helpful, find one of Weeble or Czaak's posts and click on filter thread, they're the two most legally minded people posting regularly posting in the thread, Czaak's posts probably have more links to the actual documents from the courtroom, some of which make entertaining reading. Should cut down in the reading needed to catch up.
Wolfun wrote: So, I don't really want to scroll through pages and pages of comments.
Last I heard was CHS mostly won. Has there been any appeals and what came of hem?
Just a friendly FYI, asking people to go to the time and trouble of summarising a very complicated situation on your behalf because you don't feel like reading what is already available, isn't likely to illicit the response you're hoping for.
I don't really have the time to go through the 30 pages of discussion on it.
I'm pretty sure someone can just say "GW appealed, lost". For example.
They're not that far along, I'm not familiar enough with US law to really give a qualified run down, check my edit of my last post for an easy way to get up to speed.
Is it worth having a Chapterhouse Lawsuit summary topic, regularly updated by... someone... who is keen on the case and who reads this thread regularly? (No, I'm not volunteering.) I agree that this thread isn't really the place for a summary, but maybe a Lawsuit Lite thread is.
A summary thread would just be a pain for the mods IMO. People will pile in to praise/bash GW/Chapterhouse and it will be just as busy as this thread. I don't think we should expect mods to police a second Chapterhouse thread just because some people don't want to deal with a wall of text.
The case went to trial earlier this year, on…what was it…July 6th or something? In any case, the lawsuit went to a jury trial. Before then, the Court had dismissed GW's state and federal trademark dilution claims and dismissed something like 40+ of GW's copyright infringement claims with prejudice. Going into the jury trial, the Court had also made a bunch of summary judgment rulings, finding that I think ~70 of GW's trademarks were valid and in use in commerce. GW dropped some claims right before tiral, and dropped more cliams during the trial itself. The Court allowed GW's claims to be considered in sort of an aggregate nature, and ruled that the website photos of Chapterhouse's products were part of the caims agaisnt the actual products as sold. In closing arguments, GW said that it only wanted a dmages award of 25K for copyright infringement.
The jury found that Chapterhouse infringed some of GW's copyrights and some of GW's trademarks, with Chapterhouse prevailing on ~60% of claims before the jury and at least 70% of claims in the context of the entire case, not including the dilution claims that were dismissed. The jury awarded 25K in damages. Winston and Strawn published a statement on its website essentially saying that the trial was successful. GW remained silent.
Subsequent to the jury verdict, the Court entered preliminary judgment essentially along the same lines as the jury verdict. Both parties have filed renewed motions for judgment as a matter of law, seeking to prevail on essentially all claims as a matter of law. The parties have disputed how an injunction should be worded. Both parties have moved to recover costs, and neither party has thus far moved for attorney fees.
Neither party has filed a notice of appeal, but at this point the Court has not entered final judgment, and it would be unusual to file a notice of appeal prior to final judgment. The Court still needs to rule on the motions for judgment as a matter of law, the injunction, and the motions for costs. Once the Court rules on those, the case will be over although it will be subject to appeal. The Court had ordered the parties to have a post verdict settlement negotiation, mediated by magistrate judge Gilbert. The parties have not settled so far as we know, and after something like a few months Judge Kennelly had ordered the parties to proceed with briefings on the above-refenced issues, which he had put on hold while the parties were engaging in obligatory settlement discussions.
The Court can take however long it wants to rule on the issues that it still needs to rule on, and without actually hearing what Judge Kennelly said in status conferences, it is imporrible to know when he intends to rule on those issues. Nevertheless, tbhese issues will get ruled on at some point and the case will proceed from there. The holdup right now is due to the Court.
MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 12/5/2013: For the reasons stated in this decision, the Court denies plaintiff's motion for judgment as a matter of law and defendant's motion for judgment as a matter of law or in the alternative for a new trial. (mk)
Automatically Appended Next Post: Costs denied to both parties:
This docket entry was made by the Clerk on Thursday, December 5, 2013:
MINUTE entry before the Honorable Matthew F. Kennelly: The Court has considered each party's request for an award of costs on the ground that it prevailed. The verdict in this case was decidedly mixed. Plaintiff obtained the damage award it sought at trial, though it was a relatively nominal amount, and it will obtain an injunction, but it lost on the majority of the claims that it presented to the jury. Defendant, for its part, will find itself barred from making and selling a good many of its products, and a party that faces a damage award and an injunction can by no means be considered to have prevailed in the overall scheme of things. In a case like this one in which the result is mixed, a court has the discretion to deny costs, and the Court is exercising that discretion here. See, e.g., Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999). Each side shall bear its own costs. (mk)
Injunction to be used:
MINUTE entry before the Honorable Matthew F. Kennelly: The Court has considered the parties' various submissions regarding entry of and the form of an injunction against defendant. The Court finds appropriate in substance and form the proposed injunction attached to the parties' second supplemental status report [dkt. no. 461] and will enter an injunction in that form. Plaintiff's counsel is directed to promptly provide a Word version of that draft injunction to the Court, via Judge Kennelly's proposed order e−mail address. (mk)
Also, Chapterhouse is asking to amend the injunction so that during the appeal process the moulds at issue can be sent to Chapterhouses' lawyers, instead of to GW.
Automatically Appended Next Post:
MR.KEENER: If I could briefly respond, your Honor?
22 THECOURT: Lord, can't you guys, like, have some
23 sort of a celebrity death match on whatever planet they play
24 the Warhammer 40K games on?
25 MR. KEENER: Yes.
THECOURT: I mean, seriously, is there no possibility of you --
Everybody had a trial, okay, and everybody won some and everybody lost some. It was a mixed bag, okay. It was real mixed bag. And I know that, you know, Games Workshop paid a lot of money for its lawyers, and I know that Chapterhouse is getting free lawyers from a very expensive law firm. And I know that the free lawyers who are doing this pro bono work for the very expensive law firm would probably love to continue to do this and argue and appeal and whatnot.
But can't you guys just come up with some way of calling it a day?
Hah, you think the judge is sick of this case or what?
Nothing is easy in this case, I guess. And I hope that you have hired large pack animals to bring over the chambers copies of the, you know, massive postverdict motions that apparently got filed yesterday.....
Go by his chambers. Tell him his worst nightmares have come to pass: You're back. Don't tell him that; I will tell him that........
You guys could fight until your kids --and you're both very young, okay -- until your kids are standing up here in front of me. You could still be fighting then.........
lol. They just don't know when to call it a day, do they? I don't feel too badly for the judge; he's played a large role in the snarled mess this case became.
The judge is annoyed because the lawyers in this case are squabbling instead of settling. And there is a lot of juvenile gak happening, like the argument over who holds onto the moulds.
TheAuldGrump wrote: I am not certain that who holds onto the mould is juvenile - I would be worried that GW would 'accidentally' drop those moulds into the incinerator.
Certainly GW's lawyers have shown a certain willingness to abridge the law in their favour, and GW is the ones that hired them....
The Auld Grump, heck, I might be surprised that if GW does hold on to the moulds then they don't have an 'accident'....
Who holds onto them isn't juvenile - you see both parties and the judge agreeing that CHS' lawyers will hold on to them for the appeals.
The issue is the behaviour that's going around behind the scenes about the wording of the injunction.
Automatically Appended Next Post:
You are correct that we previously agreed that there would be no need for Chapterhouse to surrender the goods to us. It suffices to certify that Winston & Strawn is holding the goods. As is typically the case, you find a need to point fingers when you might just as well accept >responsibility for not making the change yourself when we submitted the >prior joint status report. All we did was to follow Kennelly's instructions. Regardless, without any finger‐pointing whatsoever, you have our acknowledgment that substantial compliance with this term by certifying you hold the goods suffices. We think that is more efficient than changing the injunction because, at the end of the day, if there are appeals and if those appeals are exhausted, we would then have the right to a turnover of the infringing goods and means of making them
TheAuldGrump wrote: I am not certain that who holds onto the mould is juvenile - I would be worried that GW would 'accidentally' drop those moulds into the incinerator.
Certainly GW's lawyers have shown a certain willingness to abridge the law in their favour, and GW is the ones that hired them....
The Auld Grump, heck, I might be surprised that if GW does hold on to the moulds then they don't have an 'accident'....
Who holds onto them isn't juvenile - you see both parties and the judge agreeing that CHS' lawyers will hold on to them for the appeals.
The issue is the behaviour that's going around behind the scenes about the wording of the injunction.
Automatically Appended Next Post:
You are correct that we previously agreed that there would be no need for Chapterhouse to surrender the goods to us. It suffices to certify that Winston & Strawn is holding the goods. As is typically the case, you find a need to point fingers when you might just as well accept >responsibility for not making the change yourself when we submitted the >prior joint status report. All we did was to follow Kennelly's instructions. Regardless, without any finger‐pointing whatsoever, you have our acknowledgment that substantial compliance with this term by certifying you hold the goods suffices. We think that is more efficient than changing the injunction because, at the end of the day, if there are appeals and if those appeals are exhausted, we would then have the right to a turnover of the infringing goods and means of making them
And so on... since day one practically.
Good gravy... are you sure that GW hired professional lawyers, or did GW just... go with Barnum & Bailey?
I have been wondering that since the 'Mr Oh' incident....
Are the Chapterhouse lawyers as bad, or is Moskine & Co.just special?
*EDIT* The only incidents coming to mind have been by GW's pack, but I may well be biased.
SO, is there a possibility that the Judge himself never really took this case seriously from the start?
Some of his 'joke' comments seem to be... a bit much, and perhaps also a bit revealing, and not in a good, fair and impartial way - at least not for him.
Judges aren't required to be impartial. They make sure the law is followed and that the jury is impartial, beyond that Judges are free to inject all sorts of personal opinion and personal perspective into stuff.
A lot of his comments may read amusingly online but Judge Kennelly has a very no nonsense attitude and many of these were likely said through angry gritted teeth. Even in the pre-trial stuff you could see his forehead veins throbbing and at times he looked like he wanted to brain GW's lawyer with his gavel. Which I think summarizes his views of the trial since day one.
And for the woefully uninformed? What is going on here? From what I can make of it this CHS is being sued by GW for making bits?
Not overly interested, just kind of apathetically involved I suppose. Would be nice to see the little guy win. I mean, copyrighting a specific shape seems a little silly to me. Like the shoulder pads thing? Come on dudes, it's a lump of plastic. Maybe if GW was so fanatically overpriced then people wouldn't look elsewhere for their needs?
Who holds onto them isn't juvenile - you see both parties and the judge agreeing that CHS' lawyers will hold on to them for the appeals.
The issue is the behaviour that's going around behind the scenes about the wording of the injunction.
Yeah, I found the email exchange amusing--as Moskin appeared to be saying (IANAL)--"It's ok if the injunction implies we get ownership of the molds now--trust us when we say we won't press it until after appeal when we'll get them anyways. We're good for it, no need to change the wording"
Given the history of the case (and the fact that's a legal order entered into record)--I could see why CHS said "We'll pass on your offer of trust and get it changed legally."
darkcloak wrote: And for the woefully uninformed? What is going on here? From what I can make of it this CHS is being sued by GW for making bits?
Not overly interested, just kind of apathetically involved I suppose. Would be nice to see the little guy win. I mean, copyrighting a specific shape seems a little silly to me. Like the shoulder pads thing? Come on dudes, it's a lump of plastic. Maybe if GW was so fanatically overpriced then people wouldn't look elsewhere for their needs?
GW tried to sue Chapterhous, expecting them to fold under the threat of a costly lawsuit like many before them.
CH surprised GW by getting pro bono representation and GW were forced to back up their claims.
GW then went and tried to get shoulderpads copyrighted.
GW's legal team proved to be laughably ineffective thanks to the bull GW was trying to claim ownership of (stuff like fur, halberds, roman numerals and the word jetbike).
GW's legal team pulled a few dirty tricks/illegal moves like being deliberately vague about what they were suing over and swearing they handed over all relevant documentation while hiding emails to and from the copyright office telling them no, shoulderpads couldn't be copyrighted.
GW tried to steal artwork from a couple (several?) artists they hired years ago by telling everyone they owned the rights to the work and just 'lost' the documents and tried to get the artists to sign over the rights 'again'.
GW dropped something like a third of their claims just before the case went before the jury.
Despite going into this case with a single goal, to destroy Chapterhous and put them entirely out of business, in GWs closing statement they asked for only $30,000 or so in damages and won it as a few bits and several whole model kits of CH's were found to infringe GWs copyrights.
Chapterhouse won the other 2/3rds of the claims.
GW's head of legal left suddenly.
Both parties claimed victory and are now preparing for appeals because CH now has even more lawyers on side (who are very very good at this kind of thing apparently) and they mean to overturn things that legally the jury should not have awarded in GWs favour, while GW... I think at this point people at the top are still calling orders down the chain and the legal team are just doing what they are told.
Not the greatest recap but there you go.
Oh, and fun fact, GW clearly wanted to make an example of CH and discourage any other bitz makers in the future but instead there are now some very clear rules about how to go about starting a bitz company without gettign in trouble.
silent25 wrote: So with the denial of costs for both parties, does that mean CHS is stuck with the associated costs from the pro-bono defense?
The eat the costs for filing, printing, expert witnesses and all non "lawyer" fees really. Iirc someone threw out a number of about 125k for CHS's costs that they were seeking.
I do find it odd that the judge finds CHS to not have prevailed in general. GW's endgame from day 1 has been the dissolution of CHS. They failed at that, so by default if CHS walked away still in business then they prevailed since GW failed. It was far from a draw.
Part of the appeal will be an attempt to overturn the decisions in favour of GW, however if CH end up stiffed with a bunch of costs, they could make a "Grand High Inquisitioner" kit and probably sell a load of them.
paulson games wrote: Judges aren't required to be impartial. They make sure the law is followed and that the jury is impartial, beyond that Judges are free to inject all sorts of personal opinion and personal perspective into stuff.
That is a speciality of US (and British?) law. In Germany, a judge can be officially withdrawn from a case, when he is proven partial. Accusing a judge for being partial ("Befangenheitsantrag") is standard procedure in many major lawsuits here.
silent25 wrote: So with the denial of costs for both parties, does that mean CHS is stuck with the associated costs from the pro-bono defense?
The eat the costs for filing, printing, expert witnesses and all non "lawyer" fees really. Iirc someone threw out a number of about 125k for CHS's costs that they were seeking.
I do find it odd that the judge finds CHS to not have prevailed in general. GW's endgame from day 1 has been the dissolution of CHS. They failed at that, so by default if CHS walked away still in business then they prevailed since GW failed. It was far from a draw.
i find it hard to believe that you know how to interprit jury decisions better than a judge. He made it quite clear why chs were not the prevailing party - they received a fine and were banned from selling certain products. In no way could they be considered 'winners'.
Not that i would say gw were, though if they had not been so indescriminate in their original claims they may well have been ruled the prevailing party. Maybe in future they'll be more conservative with their claims.
agnosto wrote: lol. They just don't know when to call it a day, do they? I don't feel too badly for the judge; he's played a large role in the snarled mess this case became.
Yup! If Judge Kennelly didn't want to be holding this bag he could have done his job. Waiting and hoping that the parties will settle out is not the Court's job. If this goes up on appeal, Kennelly will likely find out exactly what the 7th Circuit Court of Appeals thinks about how he has handled this case, and it might not be rosy.
The judge is annoyed because the lawyers in this case are squabbling instead of settling. And there is a lot of juvenile gak happening, like the argument over who holds onto the moulds.
Why is that juvenile? Those are irreplaceable materials. If the case gets flipped on appeal, having those materials safely returned in good condition will be essential to seeing those products back in production. Moskin has been sanctioned by the Court already for reckless or deliberate mishandling of documents. If I were Chapterhouse, I wouldn't want to see irreplaceable materials put into the custody of opposing counsel that has behaved in the manner Jonathan Moskin has been behaving for three years.
Edit: Ninja'd. In any case, czakk has a point that most attorneys would have worked out stuff like this on the back end in a civil manner. This case has been anything but civil, and I have to agree with Grump that most of what I saw in terms of less than professional conduct was on the part of Games Workshop. If you look at the record from the Gallo v Rallo case, things become very, very clear. That record reads very similar to the GW v CHS case, and the constant between the two is Jonathan E Moskin.
The Court sanctioned Rallo and Rallo's counsel for $10,000.00 as well as other equitable remedies. The relevent decision is at the end of that long opinion, and is quoted here:
“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.
So there's that, for starters. Now in that context, and remember Moskin's sanction in the Chapterhouse case for "deliberately or at least recklessly" failing to provide discoverable documents, take a look at this (document 71):
This is from a declaration sworn by Moskin.
“Despite Ms. Thomas’ denial, the reason I terminated the meet and confer that I initiated on May 18 was her sarcastic comment to me, after I confirmed the delivery of the roughly 1,000 pages of documents referenced in my May 15 letter: ‘Right, The check is in the mail.’…I declined to continue the conversation after effectively being accused of lying.”(emphasis added)
So there you have Moskin hanging up the phone in protest over an oblique insinuation that he could not be trusted to deliver discoverable documents and then complaining about such treatment to the court...only later to have his firm sanctioned for $10,000.00 for just that sort of behavior. And of course Moskin was personally sanctioned in that case, in addition to the discovery-related sanction, for for being deliberately misleading in settlement negotiations, i.e. lying.
This is what lawyers call a "pattern of behavior." Cry to the heavens, whine to the Court, claim to be the aggrieved party, claim to have tried your best to act reasonably, claim that you are the one being professional, claim that this is totally unfair, that you have been insulted, that opposing counsel won't work with you and won't talk to you, claim that every time they go to the Court for help it is because they don't want to work things out like professionals....
Cry, complain, moan, and do everything to throw around enough muddied chaff that the Court doesn't have the patience to actually deal with what looks for all the world like a petulant food fight between juveniles. That's the MO. The sad thing is that it works...and that is a comment on our justice system.
Haha, certainly sounds like the Judge had a sense of humour.
The case had almost started to feel like a jilted separating husband and wife, with the one trying to take every last button off the other's shirt because things had become so personal.
But, this humour is rather black in nature - this is years of people's lives already, over something that you have to think could have been resolved amicably if it hadn't been (and what I'm sure is the case) for the sociopath(s) with a blank cheque on the GW side, and their law firm smiling, nodding and pocketing that cheque.
The bit that always stuck with me was the filing of the case on Xmas eve the one year.. they knew they were targeting a small company, a family man. That wasn't just down to random chance, I know it's only a small thing but it immediately disposed me against GW just because of the type of person who would decide to do something like that.
Not that i would say gw were, though if they had not been so indescriminate in their original claims they may well have been ruled the prevailing party. Maybe in future they'll be more conservative with their claims.
Yes, aside from hoping that there aren't any future trials of this nature, if the costs of this have been substantial enough hopefully it will at least make future legal actions more targeted and against particular, smaller elements.
Now is it possible that Moskin's pattern of behavior can be brought up in the appeal with the intent to say that we don't believe that he provided all the documents and evidence that he should have and that we can't be sure of the veracity of the ones that he did?
skyth wrote: Now is it possible that Moskin's pattern of behavior can be brought up in the appeal with the intent to say that we don't believe that he provided all the documents and evidence that he should have and that we can't be sure of the veracity of the ones that he did?
I don't think so. From what I understand, the appeal will look at specific concerns as a matter of law, based solely on facts and evidence established by the original trial. Someone please correct me if I am wrong.
paulson games wrote: Judges aren't required to be impartial. They make sure the law is followed and that the jury is impartial, beyond that Judges are free to inject all sorts of personal opinion and personal perspective into stuff.
That is a speciality of US (and British?) law. In Germany, a judge can be officially withdrawn from a case, when he is proven partial. Accusing a judge for being partial ("Befangenheitsantrag") is standard procedure in many major lawsuits here.
It is sort of splitting hairs, but the judge does not need to be impartial (he can believe one side is right/wrong or that a law is stupid), but he does need to be non-biased. What constitutes actual bias that can lead to recusal is a big grey area. Someone who has financial gain is usually clear cut. Other instances are cases where the judge had worked previously on a legal position or close personal relationships with plaintiffs/defendants.
Lawyers can make a motion requesting the judges recusal (though if they loose the motion, the judge might take that personally). Judges can recuse themselves voluntarily as well when they know that grounds exist, or they believe their interests might impact their ruling. Quite often though, judges are not impartial and believe in their heart that someone is guilty as sin, a sleeze ball who deserves to be tarred and feathered - but that doesnt prevent them from ruling on the matters of law and procedure in an unbiased manner.
skyth wrote: Now is it possible that Moskin's pattern of behavior can be brought up in the appeal with the intent to say that we don't believe that he provided all the documents and evidence that he should have and that we can't be sure of the veracity of the ones that he did?
I don't think so. From what I understand, the appeal will look at specific concerns as a matter of law, based solely on facts and evidence established by the original trial. Someone please correct me if I am wrong.
Something like his pattern wouldnt be for the appeal, though things like complaints to the bar or even seperate legal action by GW or CHS for legal malpractice or attorney misconduct (malpractice being a civil hearing, but misconduct being administrative).
The courts can also slap fines, fees and penalties of all sorts on the attorney should they see fit (such as the fine already levied - though other things like the court demanding all motions be made in person or cutting the amount of time allowed for discovery).
But thats the thing; what really will stop bit companies from making and labelling that their bits are designed for warhammer 40k if this wins? If this happens; GW will lose alot of money; and armies will recieve less support; maybe with some even being squatted.
Nobody wants that to happen.
Ummm... becouse every car company has gone out of business? Aftermarket product are a fact of business, period. If GW fails to use it to there advantage like other company in vastly different markets. Then they should suffer the same fate the company that couldn't.
TheAuldGrump wrote: I am not certain that who holds onto the mould is juvenile - I would be worried that GW would 'accidentally' drop those moulds into the incinerator.
Certainly GW's lawyers have shown a certain willingness to abridge the law in their favour, and GW is the ones that hired them....
The Auld Grump, heck, I might be surprised that if GW does hold on to the moulds then they don't have an 'accident'....
weeble1000 wrote: Why is that juvenile? Those are irreplaceable materials. If the case gets flipped on appeal, having those materials safely returned in good condition will be essential to seeing those products back in production. Moskin has been sanctioned by the Court already for reckless or deliberate mishandling of documents. If I were Chapterhouse, I wouldn't want to see irreplaceable materials put into the custody of opposing counsel that has behaved in the manner Jonathan Moskin has been behaving for three years.
Edit: Ninja'd. In any case, czakk has a point that most attorneys would have worked out stuff like this on the back end in a civil manner. This case has been anything but civil, and I have to agree with Grump that most of what I saw in terms of less than professional conduct was on the part of Games Workshop. If you look at the record from the Gallo v Rallo case, things become very, very clear. That record reads very similar to the GW v CHS case, and the constant between the two is Jonathan E Moskin.
GW wouldn't destroy the molds/masters even if they were told to.
Years back GW was able to take possession of a bunch of Demonblade molds and masters; some Orgg, a Commissar looking fellow and some kind of Orgg Dreadnought thingie.
When GW moved to Memphis the mold Supervisor found the box with the legal paperwork in it which clearly stated the materials were to be delivered to GW for destruction. IIRC there was even a date that the materials had to be destroyed by, that was several years past.
When some of the other GW staff found out about them they drooled over the models since they were pretty cool, but also rare now. He was asked by his new manager to cast a bunch up for them but he refused and said he was going to destroy the masters and molds like they should have been.
After lunch that day he was brought into an office, removed as the moldmaking/casting supervisor and put on suspension for the rest of the week for not following instructions and some other B/S I can't remember. When he came back to work the following Monday all the masters were gone and the molds were on a casting station with a few small bins with leftover parts in them. "Someone" who I cannot name here but still works for GW in Memphis had the caster spin a bunch up for him and his buddies (the caster didn't know what they were, just did as told).
He went ahead and tossed the molds in the bin after cutting them up, then melted down the remaining parts.
I do know a lot of them wound up on Ebay around the Summer of 2007 (August/September-ish).
I wouldn't be worried about CHS's masters or molds being destroyed, I'd be more worried about how many castings are going to be made of them when, or if, GW get's their hands on them.
prplehippo wrote: ...I'd be more worried about how many castings are going to be made of them when, or if, GW get's their hands on them.
Not many. A lot of CHS' stuff just isn't top tier.
If they are parts that CHS can no longer produce then they are "discontinued" models and therefore rare. People will pay a premium for them on Ebay. There's always someone who will.
I was amazed at what some gamers and collectors would pay for GW models when I left GW. I sold off my entire collection of rare, unreleased and discontinued models and pretty much funded my unemployment at the time. I wish I hadn't since I could use the money now!
Prplehippo, your story only shows just how disrespectful GW is of its legal responsibilities. A company that cannot destroy molds when it is contractually obligated to cannot really be trusted to maintain molds it is legally obligated to maintain.
Your story is full of gross negligence, laziness, disrespect for the law, and willful violation of intellectual property rights. It would be humorous but for the impact that GW's behavior has had on people's lives.
weeble1000 wrote: Prplehippo, your story only shows just how disrespectful GW is of its legal responsibilities. A company that cannot destroy molds when it is contractually obligated to cannot really be trusted to maintain molds it is legally obligated to maintain.
Your story is full of gross negligence, laziness, disrespect for the law, and willful violation of intellectual property rights. It would be humorous but for the impact that GW's behavior has had on people's lives.
I could tell you some stories.....
That's pretty tame compared to some of the stuff I've seen going on at GW in Baltimore and Memphis.
I've never understood the point of GW demanding that moulds used for metal or resin casting are handed over. While the moulds still cost money to reproduce, it is negligible compared to injection tooling where the mould costs tens of thousands. Even if GW were to acquire the master parts as well, first generation resin casts are fully appropriate as production masters. There's simply no way to stop a part from being reproduced if someone is hell bent on reproducing it (regardless of the legality). The relevance to this discussion is that I feel that the parties arguing what happens with the moulds is simply wasting time. It's a purely symbolic thing.
Mangozac wrote: I've never understood the point of GW demanding that moulds used for metal or resin casting are handed over. While the moulds still cost money to reproduce, it is negligible compared to injection tooling where the mould costs tens of thousands. Even if GW were to acquire the master parts as well, first generation resin casts are fully appropriate as production masters. There's simply no way to stop a part from being reproduced if someone is hell bent on reproducing it (regardless of the legality). The relevance to this discussion is that I feel that the parties arguing what happens with the moulds is simply wasting time. It's a purely symbolic thing.
Actually, it's one of the outcomes to winning a copyright infringement or counterfeiting case - you have the right to destroy the infringing materials.
Janthkin wrote: Actually, it's one of the outcomes to winning a copyright infringement or counterfeiting case - you have the right to destroy the infringing materials.
I understand that, but really in this kind of instance destruction of moulds is such a trivial thing, since the cost/effort required to make new moulds is so negligible. There are much more important things that both sides could be arguing about.
Janthkin wrote: Actually, it's one of the outcomes to winning a copyright infringement or counterfeiting case - you have the right to destroy the infringing materials.
I understand that, but really in this kind of instance destruction of moulds is such a trivial thing, since the cost/effort required to make new moulds is so negligible. There are much more important things that both sides could be arguing about.
It's wouldn't be limited to just the molds but all materials that could be used to make the infringing product, the original sculpts (if they still existed), the masters, RTV molds, vulcanized molds, leftover stock etc. that way CHS would not be able to produce new molds for the infringing product.
Yes, someone could always use existing production models to make new molds for those items but there would be no real reason to since they couldn't sell them.
Janthkin wrote: Actually, it's one of the outcomes to winning a copyright infringement or counterfeiting case - you have the right to destroy the infringing materials.
I understand that, but really in this kind of instance destruction of moulds is such a trivial thing, since the cost/effort required to make new moulds is so negligible. There are much more important things that both sides could be arguing about.
There's a difference between a "negligible cost" and "free," and negligible is relative. For a small company, the costs to re-create all of those materials could well be significant. Normally, as czakk pointed out, this sort of thing wouldn't be something the parties would really have to argue about. But GW has engaged in rather...questionable behavior throughout the course of the litigation. Taking GW's counsel at their word is simply demonstrably naive, and note the 14 day time period to deliver the materials in the Court's injunction as signed.
I wouldn't be surprised if all of those materials were in Winston's possession prior to the injunction, but getting them to Foley and Lardner during the holidays is not necessarily so easy. In any case, failing to comply with the injunction could spell trouble. As the emails seemed to indicate, that wording was apparently erroneous in the first place, and it was GW's counsel that sent in the electronic copy of the joint proposed injunction to the Court. So right there you have a further 'error' on the part of GW's counsel (like the 'error' of not receiving certified mail two weeks after it should have been delivered or the 'error' of not telling CHS that is had contact information for Gary Chalk, or the 'error' of Mr. Moskin not disclosing relevant discoverable documents after swearing an affidavit certifying the completion of discovery responses) that wound up getting the signature of a Federal Judge and potentially opening the door to a nit GW could later pick if it wasn't handled appropriately.
Consider GW filing a motion for sanctions after the new year citing Chapterhouse's failure to deliver the materials as ordered in the injunction. Is it better to handle it before GW has the opportunity to file a spurious motion for sanctions based on a potentially contrived error, or after?
Kilkrazy wrote: That is one view, an alternative is that she cleverly got out before things spiralled even further down the pan.
I don't credit Gill Stevenson with that kind of foresight. I heard she wasn't very pleased when the verdict was read, i.e. emotional. I think she might have known right then that her was grass. But if she had expected it and planned for it, she wouldn't be "looking for a new opportunity" which is not a positive thing for a lawyer to self-identify as.
This docket entry was made by the Clerk on Tuesday, December 10, 2013:
MINUTE entry before the Honorable Matthew F. Kennelly: Motion hearing held on 12/10/2013 regarding motion to amend/correct [466] and continued to 12/17/2013 at 9:30 a.m. Mailed notice.(pjg, )
--------
Odd that this is taking more than a day. Perhaps someone couldn't show up.
--- Edit ---
This is the oral part of the argument over what language goes into the injunction about the moulds. Unless they got slotted in at the end of the day it shouldn'thave taken very long.
Or he wants all counsel to be present in person....
IT is hereby stipulated and agreed, that notwithstanding the terms of the final injunction, the parties agree that pending the resolution of any timely filed appeals, counsel for Defendant Chapterhouse Studios LLC (“Chapterhouse” or “CHS”) may certify to Plaintiff Games Workshop Limited (“Games Workshop”) that Chapterhouse has delivered up to counsel for Chapterhouse all inventory, molds, masters, or other means of making the Chapterhouse products identified in paragraph 1(a) of the Injunction and/or that contain any of the infringed trademarks identified in paragraph 1(b) of the Injunction. After exhaustion of all appeals and to the extent such appeals are denied, counsel for Chapterhouse may then either provide the materials to counsel for Games Workshop for destruction or certify to Games Workshop that counsel for CHS has destroyed all of these materials.
I wonder if the second part of that stipulation("(counsel for CHS)certify to Games Workshop that counsel for CHS has destroyed all of these materials") was a goal of GW from the outset?
The long and the short of it is that this should never have been a 'dispute' in the first place. GW should have stipulated to such when drafting the proposed injunction without a fuss. It seems that GW did agree to such stipulation only to turn around and submit the incorrect proposed injunction, which was accepted by the Court, and then fought CHS's desire to either get a formal stiplation to such or change the text of the Court's injunction.
It should never really have been a week long issue. Getting someone to agree to do something they already agreed to do should not rerquire a slap fight, but it seems things are never easy when it comes to GW's counsel.
Normally, this would have taken a phone call.
'Hey, Bob, the Court's injunction requires that CHS deliver the materials to you. This is incoincistent with our discussions regarding the proposed injunction. Can we get a stipulation from you to the effect that our firm is allowed to hold the materials pending appeal?
'Sure Mike. It looks like we sent in the wrong copy of the proposed injunction by mistake. Rather than bother the Court with modifying the injunction as issued, we'll submit a stipulation to the Court tomorrow. Merry Christmas!'
Janthkin wrote: Pity they didn't check their list twice before filing suit.
They didn't care to check their actual copyrights, they didn't care to check that Paulson has nothing to do with Chapterhouse. So yeah, they just rage-sue..
Janthkin wrote: Pity they didn't check their list twice before filing suit.
I'm not confident they checked it once even.
It looked more like:
"Who makes models?"
"Other people"
"SUE THEM!!!"
"Ok, in the meantime we'll pretend to our customers that other people don't make models"
Do you mind clarifying your viewpoint for me - do you think that there should be no such thing as intellectual property, or do you think that gw shouldn't be able to take people to court who've broken the law?
I haven't seen gw sue Bolt Action or Warmahordes - argueably their biggest competitors - only the websites who seem to consciously and exclusively leech off GW's ip for profit.
Janthkin wrote: Pity they didn't check their list twice before filing suit.
I'm not confident they checked it once even.
It looked more like:
"Who makes models?" "Other people" "SUE THEM!!!" "Ok, in the meantime we'll pretend to our customers that other people don't make models"
Do you mind clarifying your viewpoint for me - do you think that there should be no such thing as intellectual property, or do you think that gw shouldn't be able to take people to court who've broken the law?
I haven't seen gw sue Bolt Action or Warmahordes - argueably their biggest competitors - only the websites who seem to consciously and exclusively leech off GW's ip for profit.
Well, Warlord Games and Privateer Press are both companies that have the resources with which to defend themselves and maintain relationships with former GW employees.
If you want to know GW's perspective on IP enforcement, just look at the most recent annual report:
Breach of intellectual property (IP) and counterfeit products. The risk is that we lose control of our IP and thus other people can take our market. There are two ways we mitigate this risk: product quality and IP protection. Product quality is the best defence. Our miniatures are of extraordinary detail and have very high costs associated with their production. We do the tooling and manufacturing here in Nottingham to ensure that quality. As it happens, even if we wanted to tool or manufacture elsewhere, we have never found anyone who can deliver the quality we need at the price we pay. In order to be able to duplicate that quality requires a level of capital investment that no one has, as yet, even tried to emulate. This also deals with the risk of counterfeit products. The few that are made are of poor quality and do not appeal to our customers.
Should that change, or we meet intransigent small infringers, we have copyright, trademark and passing off law to protect our imagery and we have never been shy of using legal redress if needed. Our legal department deals with dozens of cases each year with satisfactory results.
The scale upon which we do business is the biggest defence against this threat. The cases we deal with (and there are dozens each year) are nearly all single individuals or small businesses who ‘cease and desist’ as soon as they get the letter. Those who don’t should be stopped more because we need to ensure everyone knows we are serious about defending our IP rather than because of the immediate threat of damage to our profits.
So, GW's best and most important defense, allegedly, is simply to make the best products out there. This is called fair competition, and that's great! You want to be the best, make the best product. More power to you. Mind you that companies like Chapterhouse Studios sell products at higher prices than the nearest GW equivalent (to the extent that there is one), leading one to infer that any market for those products is based on quality/different aesthetics, i.e. fair competition.
So, when GW is confronted with "individuals and small businesses" producing higher quality, artistically different, more expensive products, GW threatens to sue and the "small infringers" "cease and desist as soon as they get the letter" because the scale at which GW does business dwarfs theirs and they consequently cannot stand up to such threats, unlike companies like Warlord and Privateer Press.
That is bald-faced IP bullying in its purest form: Sue individuals and small companies because they are too weak to resist in order to control the market, even though such companies do not cause one iota of harm to GW's bottom line, as Mr. Kirby has made abundantly clear in his above-quoted statement.
And by the way, "The cases we deal with (and there are dozens each year) are nearly all single individuals or small businesses who ‘cease and desist’ as soon as they get the letter," is an oblique reference to Chapterhouse Studios, which, unlike other "intransigent small infringers" did not "cease and desist as soon as they [got] the letter," causing GW to dig itself a 7 figure hole that is getting deeper every day.
I look forward to joeytestifyBryllCreamxruslanx's response.
And here I was about to ask weeble why he didn't just laugh at his post and walk away form the Troll/Fanboy. Guess the answer is sometime it fun to point and laugh.
I look forward to joeytestifyBryllCreamxruslanx's response.
And here I was about to ask weeble why he didn't just laugh at his post and walk away form the Troll/Fanboy. Guess the answer is sometime it fun to point and laugh.
Well, the answer was so readily available thanks to Mr. Kirby. He has gone a long way towards alleviating these sorts of discussions. That statement of his is not terribly ambiguous, and I have no earthly idea why he put it in the financial report. I mean, that is the only communication about the CHS case that GW has ever done excepting announcing its settlement with Paulson Games.
Plus, it's good to turn back to this subject every now and again, lest folks forget. I appreciate xruslanx's request for clarification on this point.
Janthkin wrote: Pity they didn't check their list twice before filing suit.
I'm not confident they checked it once even.
It looked more like:
"Who makes models?"
"Other people"
"SUE THEM!!!"
"Ok, in the meantime we'll pretend to our customers that other people don't make models"
Do you mind clarifying your viewpoint for me - do you think that there should be no such thing as intellectual property, or do you think that gw shouldn't be able to take people to court who've broken the law?
I haven't seen gw sue Bolt Action or Warmahordes - argueably their biggest competitors - only the websites who seem to consciously and exclusively leech off GW's ip for profit.
Well, Warlord Games and Privateer Press are both companies that have the resources with which to defend themselves and maintain relationships with former GW employees.
If you want to know GW's perspective on IP enforcement, just look at the most recent annual report:
Breach of intellectual property (IP) and counterfeit products. The risk is that we lose control of our IP and thus other people can take our
market. There are two ways we mitigate this risk: product quality and IP protection. Product quality is the best defence. Our miniatures are
of extraordinary detail and have very high costs associated with their production. We do the tooling and manufacturing here in Nottingham
to ensure that quality. As it happens, even if we wanted to tool or manufacture elsewhere, we have never found anyone who can deliver
the quality we need at the price we pay. In order to be able to duplicate that quality requires a level of capital investment that no one has,
as yet, even tried to emulate. This also deals with the risk of counterfeit products. The few that are made are of poor quality and do not
appeal to our customers.
Should that change, or we meet intransigent small infringers, we have copyright, trademark and passing off law to protect our imagery and
we have never been shy of using legal redress if needed. Our legal department deals with dozens of cases each year with satisfactory
results.
The scale upon which we do business is the biggest defence against this threat. The cases we deal with (and there are dozens each year)
are nearly all single individuals or small businesses who ‘cease and desist’ as soon as they get the letter. Those who don’t should be
stopped more because we need to ensure everyone knows we are serious about defending our IP rather than because of the immediate
threat of damage to our profits.
So, GW's best and most important defense, allegedly, is simply to make the best products out there. This is called fair competition, and that's great! You want to be the best, make the best product. More power to you. Mind you that companies like Chapterhouse Studios sell products at higher prices than the nearest GW equivalent (to the extent that there is one), leading one to infer that any market for those products is based on quality/different aesthetics, i.e. fair competition.
So, when GW is confronted with "individuals and small businesses" producing higher quality, artistically different, more expensive products, GW threatens to sue and the "small infringers" "cease and desist as soon as they get the letter" because the scale at which GW does business dwarfs theirs and they consequently cannot stand up to such threats, unlike companies like Warlord and Privateer Press.
That is bald-faced IP bullying in its purest form: Sue individuals and small companies because they are too weak to resist in order to control the market, even though such companies do not cause one iota of harm to GW's bottom line, as Mr. Kirby has made abundantly clear in his above-quoted statement.
I don't understand - you think GW should consciously allow other companies to make money by selling miniatures that infringe on gw's ip? Does your thinking apply to all ip law, or just gw?
Your argument seems to be that gw is wrong because they're big, and chs are right because they're small...despite that the judge saying that the only reason the case is continueing (iirc) was Chapterhouse's lawyers trying to save face. CHS has been caught out breaking the law and the fact that the party which bought this to court happens to be big, doesn't make what they did right.
weeble1000 wrote: Well, Warlord Games and Privateer Press are both companies that have the resources with which to defend themselves and maintain relationships with former GW employees.
Just a small observation about PP though, most of the former GW staff that used to work for them don't work for them anymore. The last time I was over there about a month ago, I didn't see any ex-GW staff. None that I knew of at least.
I also noticed that after working for both companies, from my observations, there seem to be far more disgruntled ex-PP staff than ex-GW staff. Ex-PP staff that I know and still talk to seem to be far more angry at PP than the people I know that used to work at GW. A lot of ex-PP staff just don't talk about PP, it's almost like they want to forget it from ever happening.
Most of the guys I know that used to work at GW still play GW games and buy their models and are very active in the gaming community. I only know of one guy that used to work at PP that still plays PP games and that's because he gets his stuff for free, a friend of his at PP uses his employee comp to get him stuff. That's just an observation from me though.
weeble1000 wrote: And by the way, "The cases we deal with (and there are dozens each year) are nearly all single individuals or small businesses who ‘cease and desist’ as soon as they get the letter," is an oblique reference to Chapterhouse Studios, which, unlike other "intransigent small infringers" did not "cease and desist as soon as they [got] the letter," causing GW to dig itself a 7 figure hole that is getting deeper every day.
Do we know who those "dozens" of companies are? DO they really send out that many C&Ds each year? Or is that just GW posturing for their shareholders?
xruslanx wrote: Do you mind clarifying your viewpoint for me - do you think that there should be no such thing as intellectual property, or do you think that gw shouldn't be able to take people to court who've broken the law?
I haven't seen gw sue Bolt Action or Warmahordes - argueably their biggest competitors - only the websites who seem to consciously and exclusively leech off GW's ip for profit.
GW has every right to go after companies that legitimately infringe on their IP rights.
However, GW is the company that took Paulson Games to court over a model that Paulson did not make, did not sell, and had nothing whatsoever to do with in any way.
GW is also the company that sent a takedown notice to Amazon because an author had published a book that used the name 'Space Marine'.
And lets not forget that GW is the company that has for at least a decade now claimed on their own legal information page that converting their models is an infringement of their IP...
This is not a company that is in any way in touch with reality.
xruslanx wrote: I don't understand - you think GW should consciously allow other companies to make money by selling miniatures that infringe on gw's ip? Does your thinking apply to all ip law, or just gw?
No, he's not saying that at all. Take off your white armor.
Your argument seems to be that gw is wrong because they're big, and chs are right because they're small...despite that the judge saying that the only reason the case is continueing (iirc) was Chapterhouse's lawyers trying to save face. CHS has been caught out breaking the law and the fact that the party which bought this to court happens to be big, doesn't make what they did right.
Which side was it that was sanctioned for essentially lying? Which side was it that (likely deliberately) provided the incorrect instructions to the court for the injunction?
GW was wrong on ~70% of the things they asserted. One could probably bring an IP infringement lawsuit from any company to any related company and get "lucky" with a third of the things you claim you own.
xruslanx wrote: I don't understand - you think GW should consciously allow other companies to make money by selling miniatures that infringe on gw's ip? Does your thinking apply to all ip law, or just gw?
We had this discussion dozens of times before in this thread.
Short answer is that
1.) GW forgot to steal the IP first before sueing, so they had to do it a year after the lawsuit began, but the artist copyright holders were clever enough to make this theft attempt public.
2.) Grenade launchers, fur, skulls, arrows etc. are NOT GW IP, even when they claim it. People should be allowed to use sculpts of grenade launchers, fur, skulls, arrows etc without paying GW.
xruslanx wrote: I don't understand - you think GW should consciously allow other companies to make money by selling miniatures that infringe on gw's ip? Does your thinking apply to all ip law, or just gw?
We had this discussion dozens of times before in this thread.
Short answer is that
1.) GW forgot to steal the IP first before sueing, so they had to do it a year after the lawsuit began, but the artist copyright holders were clever enough to make this theft attempt public.
2.) Grenade launchers, fur, skulls, arrows etc. are NOT GW IP, even when they claim it. People should be allowed to use sculpts of grenade launchers, fur, skulls, arrows etc without paying GW.
X doesn't seem to understand that a company actually needs to OWN the IP in question before having a legitimate reason to sue over potential infringement.
xruslanx wrote: Do you mind clarifying your viewpoint for me - do you think that there should be no such thing as intellectual property, or do you think that gw shouldn't be able to take people to court who've broken the law?
I haven't seen gw sue Bolt Action or Warmahordes - argueably their biggest competitors - only the websites who seem to consciously and exclusively leech off GW's ip for profit.
GW has every right to go after companies that legitimately infringe on their IP rights.
However, GW is the company that took Paulson Games to court over a model that Paulson did not make, did not sell, and had nothing whatsoever to do with in any way.
GW is also the company that sent a takedown notice to Amazon because an author had published a book that used the name 'Space Marine'.
And lets not forget that GW is the company that has for at least a decade now claimed on their own legal information page that converting their models is an infringement of their IP...
This is not a company that is in any way in touch with reality.
I know nothing about Paulson Games or Amazon...and they are not the subjects of this thread. This thread is about CHS, who have been found by a jury of peers to be infringing on GW's IP, with injunctions prohibiting the sale of items and a 25k fine.
I honestly think it's unfair to critisise gw for being too over-zealous when it comes to defending their ip when there are so many companies and people who *do* infringe on it. Just because gw was stupid for trying to stop Spots the Space Marine, it doesn't mean it's okay to steal gw's ip for profit.
X doesn't seem to understand that a company actually needs to OWN the IP in question before having a legitimate reason to sue over potential infringement.
So...the jury in this case was wrong? Seems like a no-brainer for an appeal then. Actually, how did it get to a jury verdict if GW never owned their ip in the first place?
xruslanx wrote: Do you mind clarifying your viewpoint for me - do you think that there should be no such thing as intellectual property, or do you think that gw shouldn't be able to take people to court who've broken the law?
I haven't seen gw sue Bolt Action or Warmahordes - argueably their biggest competitors - only the websites who seem to consciously and exclusively leech off GW's ip for profit.
Too add to what others have said, Warmachine/Hordes are extremely different in terms of IP, and just because they are competitors they both have different products. Games Workshop does not produce a skirmish level steampunk game in which a single general leads several steampowered machines and a retinue of infantry against an opponent blah blah blah. And PP would never go after GW for similar reasons. They both make table top games, but PP is self-described as a game company that makes models for their game and GW is self-described as a model company that makes a game for their models.
Bolt Action (made by Warlord) uses Osprey Publishing's artwork and is in the very, very, very open world of World War 2 miniatures, of which no one can claim IP ownership. GW has no reason to go after them, nor would they need to as again, both companies do two totally different things. Also, Bolt Action is small in the world of non-collectible minature games. The Top 5 companies on average are GW, PP, Wyrd, Battlefront and with the addition of X-Wing, FFG
The people that you are talking about consciously and exclusively leeching off GW's IP for profit are people who make various pieces for use with Games Workshop models. Yes, some of the pieces go a little too far (like the Space Elf Doomseer), but most of these companies make pieces in 1 of 2 ways. 1) Aftermarket parts: Shoulder Pads, head swaps, accessories (backpacks, weapons, etc...). These fit 28mm heroic scale models, and allow users to change the look of their army and still play the game they love. Often times these bits require you to own a GW model to place the bit on to, so GW isn't losing sales. 2) Genre specific models: These are things like Hi-Tech Minatures ArchFather Proturbo, leader of the Iron Giants. These are models made by companies that offer alternative choices for people to use as cool looking special characters, display pieces, etc...
These are both fair uses because the first is aftermarket pieces similar to buying aftermarket parts for a car, bike, etc... Generic enough that they can be used by anyone for the product and don't infringe on the product itself (which is why GW tried to get the geometric shape of their shoulderpads under copyright so that no one could use them, they failed in this btw).
Also, Paulson Games is prevalent to the discussion because he was part of the initial lawsuit that started this thread. And it serves as a good example that GW C&Ds first and checks the facts later.
Paulson Games is part of this thread. It and John Paulson were named in the original complaint and are indeed still named defendants on the case.
If you are going to act like you understand the issues being discussed, at least get your facts correct. Your argument is premised on GW infallibly identifying violations of its rights and pursuing only such claims.
Again, this is demonstrably incorrect. GW used its relative size to bring more than 100 claims against a small company that were either dismissed by the court prior to trial or found against by a jury. Arguably, GW made those claims because most of its targets "cease and desist as soon as they get the letter," not that GW sent CHS a C&D, by the way, opting instead to file a lawsuit on December 22nd.
Doing that is arguably incredibly inappropriate and event potentially actionable, though the bar is incredibly high on malicious litigation, abuse of process, and other such torts.
And more importantly, GW accused every CHS product, so if CHS had ceased and desisted "as soon as they got the letter," we know now that a manifest injustice would have resulted as more than 100 of said products may be fairly and legally produced and sold.
xruslanx wrote: Do you mind clarifying your viewpoint for me - do you think that there should be no such thing as intellectual property, or do you think that gw shouldn't be able to take people to court who've broken the law?
The problem is that GW does not bother to limit themselves to the law, or anything resembling it. Dark Reign received Cease and Desist notices from GW despite the fact that we were very much PROTECTED under the law.
So...the jury in this case was wrong? Seems like a no-brainer for an appeal then. Actually, how did it get to a jury verdict if GW never owned their ip in the first place?
Juries being wrong is not unknown, actually. It has happened in the past where the jury failed to understand something, or the 'facts' as the jury was told them were not fact at all.
GW adopted the shotgun approach in this case, claiming that everything and anything was in violation in the hopes that a few items were close enough that they could make something stick. They could quite easily do the same thing with Reaper, etc, because GW's designs are generic enough that almost every mini company out there has something that looks similar 'enough' to get a jury to find a few minis in violation. They don't sue them, however, because those companies have legal reps of their own, and could, and would, likely, fight back with counter suits.
xruslanx wrote: I know nothing about Paulson Games or Amazon...and they are not the subjects of this thread. This thread is about CHS, who have been found by a jury of peers to be infringing on GW's IP, with injunctions prohibiting the sale of items and a 25k fine.
I honestly think it's unfair to critisise gw for being too over-zealous when it comes to defending their ip when there are so many companies and people who *do* infringe on it.
I was named in the lawsuit by GW as being the designer for the SAW walker, and supposedly being a partner with Chapterhouse. Both of which are things that I had no connection to whatsoever, a 5 minute google search would have indicated who created that model and saved GW tens of thousands of dollars.
Furthermore GW never attempted to contact me, much less send a cease and desist notice. Instead of cross checking for any actual facts they instead decided to mash the "sue now" button and take me directly to court without any indication that there was even a grievance brewing. Even when informed of their mistake and that I had no connection with Chapterhouse they dragged their heels for over a year simply to run up the legal time clock and add to the bills, that way they could impose as many legal costs as possible against my company even when they KNEW I had nothing to do with Chapterhouse.
So they intentionally use the big stick of legal action to try and run smaller companies out of business, even if they have no legal basis. Because of their size they can afford to push another company into court and flounder around and delay as long as possible in effort to cause legal bills to pile up to the point it bankrupts the company, regardless of the claim being valid or not. GW does not need an actual "win" in the eyes of the law/court if they can bankrupt their opposition in the process.
I was on the receiving end of this very law suit because GW made completely false allegations of my company being connected to CH, so it's not simply a case that GW will only sue lawbreakers. They bend the legal system as much as they possibly can in order to undermine other companies. They made a number of false claims when filing the initial suit and several more under oath. If that isn't deplorable and intentional abuse of the legal system I don't know what is.
And for the record I was not found to be part of any infringement, yet GW still attempted to sue me. So the claim that GW only sues guilty people holds absolutely no water.
This docket entry was made by the Clerk on Tuesday, December 17, 2013:
MINUTE entry before the Honorable Matthew F. Kennelly: Motion to amend/correct [466] is terminated as moot based upon the parties' stipulation. The hearing set for 12/17/2013 is vacated.
Now we are back to waiting for the appeal to be filed.
gunslingerpro wrote: So Paulson, did you incur any cost as a result of this litigation? Or do you have recourse for impromper use of litigation?
There were significant costs, but it's certainly much less than what CH has dealt with. I was dropped from the suit before all the pre-trial work and depositions started which is where the bulk of the legal hours accrue. But they did keep me tied up with my lawyer for well over a year, when it was a situation that could have been resolved very quickly. (or avoided entirely had they done 5 min of facts checking)
Besides simple legal fees there's a secondary loss in the fact that the GW fanboy base withdraws their business as they see things as being found in contempt of GW and therefore being somehow toxic. There was a very sharp drop in business once suit was filed and that didn't come back even when I was removed some the case. So like I'd mentioned before GW doesn't need to win in court to get their desired goals. They bury you in bills and then the fan base shuns you which further eats away at the financial stability of the business.
While it wasn't enough to put my company under per say it did have an sizeable impact. The other major area that most people don't consider is the stress and emotional cost as it's not something you can measure in black and white terms. I got into doing miniatures because I love gaming and I love the creative process of making models. Lawsuits end up dominating and consuming your whole life, you might be functioning but your mind is always stressed and on the case and you need to devote a ton of additional time to dealing with your lawyer and reviewing materials etc. Regardless of if you win or lose it still takes a heavy toll.
I've found my personal enjoyment of gaming and hobby work greatly reduced as a result of the case and that's not something measureable in terms of money. As an artist I need to be passionate about my work and when you get that passion all but ground out of you it's very hard to reignite that creative spark and get back into the same mental groove that allowed you to be where you were before. I used to be an avid gamer and now I barely touch any games let alone anything GW related, it altered a lot of my gaming and artistic interests which has had a very big impact on the type of drive and mindset that I approach projects with. (It's not all negative but it's certainly different than how it previously was).
That's why there's laws in place allowing people to counter sue in cases of legal bullying or frivolous legal action. The damage that's done is usually far beyond just the dollar amount of the trials due to loss of business and emotional strain. The unfortunate aspect is that in most cases in order to counter sue you need to have judge dismiss the case or you have to fight it all the way through and be found clear of every claim. Settling and being removed from the case unfortunately doesn't meet that criteria. In CH's case they have a difficult challenge as they have hundreds of items that were in dispute and if they were found to be infringing on even just one item it can basically render them incapable of counter suit, which is why firms typically employ the everything and kitchen sink approach. You throw everything you can in the complaint hoping that you can get even one item to stick.
The secondary problem is that in order to counter sue that means you have to go through the process of having an entirely separate trial in addition to the one you just sat through, which means you can spend years if not a decade or more tied up in court, (when you consider both trials) which is a very exhausting process. Often the amounts you could get out of winning a counter suit aren't worth the personal toll it costs in order to pursue trying to recoup on legal costs. Also that second trial much like the first trial is not something that you can predict the results of, you could go in thinking you have a slam dunk counter-case only to get shot down by a unpredicted result from the jury.
Even after all of that if you win in court you still don't exactly "win" as the amount of effort makes it more a pyrrhic victory than a win that will make up for all the lost sales and lost time and stress.
I do feel for what Nick has been going through as it's much more extreme than what I've had to deal with. It does irritate me when people are quick to judge the case as it's incredible complex and they very rarely take into consideration what it means on a personal level to those that are involved. Lawsuits are not fun and games and I wouldn't wish them on anyone.
![[Disk]](/dakkaforum/templates/default/images/icon_disk.gif){kind=icon}
question. If the case goes up on appeal, perhaps we'll see the appellate court asking Judge Kennelly the exact same thing.
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