Paulson's post is the final post along the lines of malicious litigations/over-broad litigation strategy/anything similar. It's not appropriate for this thread.
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.
Motion 466 was the one in reference to the caretaking of the molds and masters, correct?
I do wish this would close so we'd have a finite answer, but I imagine the appeals process is going to take as long to resolve (if not longer) than the whole case has taken so far.
It probably will take that long... but in the end, I don't really mind. The fact that it's open-ended is OK, from the standpoint that CHS has pro-bono representation, and they are making sure that GW does not lay claim to more than they should.
As a result of this case, GW's sometimes unreasonable claims will have been slightly reigned in. The fact that it is ongoing actually highlights the fact that that is happening, and I would think may make GW less likely to bite off another such case while it is still having to deal with this one.
In other words, I don't think the appeals process stretching out is necessarily going to be a bad thing for CHS / companies like them, or for the more general "what is protected" question that is being legally determined through this process.
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.
Motion 466 was the one in reference to the caretaking of the molds and masters, correct?
I do wish this would close so we'd have a finite answer, but I imagine the appeals process is going to take as long to resolve (if not longer) than the whole case has taken so far.
Yes that was the moulds issues. That was afaik the only live issue left.
The appeals process should go faster than the trial. Appeals courts operate on fairly tight timelines and the scope of the hearing is narrower than the trial. Could be finished in a year.
We should see the notice of appeal by CHS in mid January - depending on how the court counts days.
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.
Motion 466 was the one in reference to the caretaking of the molds and masters, correct?
I do wish this would close so we'd have a finite answer, but I imagine the appeals process is going to take as long to resolve (if not longer) than the whole case has taken so far.
Appeals are actually pretty quick in comparison. It's sort of like litigation by mail. There's few appearances and no discovery; mostly consisting of research and briefing.
Automatically Appended Next Post:
RiTides wrote: The fact that it is ongoing actually highlights the fact that that is happening, and I would think may make GW less likely to bite off another such case while it is still having to deal with this one.
By the blood of our people are your lands kept safe...
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.
.
QFT... :( The loss of passion and drive is hard to register. Having gone through a huge personal loss during the time of the trial as well... lets just say its been very hard.
John, is correct about everything he has posted regarding the impact.
Best of luck to chapterhouse. I look forward to seeing more companies openly announce what they sell parts for, you'll be revolutionaries.
P.s: I had to spell that word three times before I got it right. Lol.
Chapterhouse has started the appeals process by filing its notice of appeal.
Appeal Number 14-1027 in the 7th circuit.
Transcript is due on the 21st of January.
Chapterhouse's brief is due the 18th of February. I imagine there are a bunch of SOs who are going to have a late Valentines day.
NOTICE IS HEREBY GIVEN that Chapterhouse Studios LLC, defendant in the above
named case, hereby appeals to the United States Court of Appeals for the Seventh Circuit from: (1) the Judgment in a Civil Action entered in this action on June 27, 2013 (Dkt. No. 403), including all prior and underlying interlocutory orders; (2) the Order on Post-Trial Motions entered in this action on December 5, 2013 (Dkt. No. 462); and (3) the Permanent Injunction entered in this action on December 5, 2013 (Dkt. No. 465), as modified by the Plaintiff and Defendant’s joint Stipulation Regarding Disposition of Materials on December 13, 2013 (Dkt. No. 469).
Dated: January 6, 2014
Wilmer Hale has joined Winston & Strawn as counsel for Chapterhouse.
Donald R. Steinberg
Louis W. Tompros
Kevin A. Goldman
Elizabeth C. Mooney
of
WILMER CUTLER PICKERING
HALE AND DORR LLP
So, let me get this straight. In addition to the team from Winston&Strawn, we now have an additional team from a firm that has offices in England and is sending members like Steinberg who is the Chair of their IP department.
Tompros who seems to be their appeal linchpin.
Both of these guys graduated from Harvard Law, cum laude. Tompros clerked for the Supreme Court of Mass. and the Federal Circuit Court of Appeals (didn't say which one).
Goldman has written books on copy protection and is a fair use specialist.
And Mooney, the cheerleader....I mean associate.
You know, at some point you almost have to pity GW.
This is like a bad story line on a WWE event and now other 'good guy' wrestlers are coming in from the changing room and starting to hit the baddies with chairs.
This is not going to go well. These people would not be joining unless they were fairly certain they would win. No-one joins a losing case, right?
My understanding was that they aren't jumping on for the certain win, they are jumping on because if GW wins with such sweeping, general claims then that could create a precedent that would hurt IP law as a whole and endanger actual, paying, clients of these firms.
This is like a bad story line on a WWE event and now other 'good guy' wrestlers are coming in from the changing room and starting to hit the baddies with chairs.
Congratulations, that's probably the funniest thing anyone has written in the 200 pages or so of this thread
This is like a bad story line on a WWE event and now other 'good guy' wrestlers are coming in from the changing room and starting to hit the baddies with chairs.
This is not going to go well. These people would not be joining unless they were fairly certain they would win. No-one joins a losing case, right?
This is nonsense. Go back through the thead and read what the judge said about chs lawyers.
Howard A Treesong wrote: It's not a certain win so best not get carried away, however many big names CHS has on their side.
Few things are ever certain. In this case though things are not looking good for GW. The gathering pool of apparently heavyweight lawers, all of whom are essentially working for free, are unlikely to be fighting this case for fun or to stand up for the little guy.
This is like a bad story line on a WWE event and now other 'good guy' wrestlers are coming in from the changing room and starting to hit the baddies with chairs.
This is not going to go well. These people would not be joining unless they were fairly certain they would win. No-one joins a losing case, right?
This is nonsense. Go back through the thead and read what the judge said about chs lawyers.
Can you quote something that makes you think that statement was nonsense?
I've been following this from the start and don't recall ever seeing CHS being referred to by the judge a way that implies they are they bad guy, but there's been plenty of objections and open contempt for GW, including when they were caught out lying.
This is like a bad story line on a WWE event and now other 'good guy' wrestlers are coming in from the changing room and starting to hit the baddies with chairs.
This is not going to go well. These people would not be joining unless they were fairly certain they would win. No-one joins a losing case, right?
This is nonsense. Go back through the thead and read what the judge said about chs lawyers.
Can you quote something that makes you think that statement was nonsense?
I've been following this from the start and don't recall ever seeing CHS being referred to by the judge a way that implies they are they bad guy, but there's been plenty of objections and open contempt for GW, including when they were caught out lying.
+1
I've been reading this thread for at least the last year and I have no idea what you're referring to..
I am fairly happy about seeing CH get this kind of representation. Money begets money and the little guy usually pays the price. I understand that all of these attorneys are in it for something, but it does my heart good to see a over-reaching company get pushed around a little bit, instead of being the one that does the pushing. I am not a lawyer or anything, but I did stay at a Holiday Inn last week!
This is like a bad story line on a WWE event and now other 'good guy' wrestlers are coming in from the changing room and starting to hit the baddies with chairs.
This is not going to go well. These people would not be joining unless they were fairly certain they would win. No-one joins a losing case, right?
This is nonsense. Go back through the thead and read what the judge said about chs lawyers.
I must be missing the bits you think are important, or I am completely misunderstanding your post. CHS lawyers have not been sanctioned by the court or 'put down' by the court. Perhaps you could explain what you meant by your comment?
This is like a bad story line on a WWE event and now other 'good guy' wrestlers are coming in from the changing room and starting to hit the baddies with chairs.
This is not going to go well. These people would not be joining unless they were fairly certain they would win. No-one joins a losing case, right?
This is nonsense. Go back through the thead and read what the judge said about chs lawyers.
Can you quote something that makes you think that statement was nonsense?
I've been following this from the start and don't recall ever seeing CHS being referred to by the judge a way that implies they are they bad guy, but there's been plenty of objections and open contempt for GW, including when they were caught out lying.
+1
I've been reading this thread for at least the last year and I have no idea what you're referring to..
I would also like to see to what X is referring.
I've been following this thread since post #1 (just checked, my first post in this thread was post #9; been following this for a looooong time), and the only negative things I can recall Judge Kennely saying about an attorney were directed towards Moskin (attorney for GW).
He's probably referring obliquely to various of Kennelly's 'a pox on both your houses' remarks, such as the quote I read on here somewhere about the Judge complaining about the attorneys' kids arguing the case in front of him.
It is no secret that Kennelly is not pleased with either party's representation in this case, and I think he even suggested that CHS was being needlessly pugilistic or reticent to compromise because it is being represented pro-bono.
That may be what he was talking about. A judge fussing at lawyers from the bench about a case not settling out is not much of an indictment and he didn't single anyone out.
However, he did sanction Jonathan E Moskin personally for "deliberately or at least recklessly" withholding discoverable documents.
You know, this thread's third birthday is in a bit over two months. (First post was 3-23-2011.)
Since we're just starting the appeals process, does that mean we have another 2.5+ years to wait for final resolution, or is the longest part of the process behind us?
weeble1000 wrote: He's probably referring obliquely to various of Kennelly's 'a pox on both your houses' remarks, such as the quote I read on here somewhere about the Judge complaining about the attorneys' kids arguing the case in front of him.
It is no secret that Kennelly is not pleased with either party's representation in this case, and I think he even suggested that CHS was being needlessly pugilistic or reticent to compromise because it is being represented pro-bono.
That may be what he was talking about. A judge fussing at lawyers from the bench about a case not settling out is not much of an indictment and he didn't single anyone out.
However, he did sanction Jonathan E Moskin personally for "deliberately or at least recklessly" withholding discoverable documents.
That is what i was referring to. The judge reckons chs' lawyers ard prolonging the case to save face, or words to that effect.
Not that gw's lawyers are innocent, there are few who are. But this really isn't black and white.
Actually, I don't think that's what he implied at all xruslanx. He was mad that they didn't settle and get it off his docket. The judge was pretty immature in that regard, I think... he really didn't do his job all that well in my opinion, and I hope the appeals court says as much.
The result of the case is an absolute mess as it currently stands, and he didn't seem to really aid in the lessening of that in any way, once it became clear that the parties weren't going to settle.
jonolikespie wrote: My understanding was that they aren't jumping on for the certain win, they are jumping on because if GW wins with such sweeping, general claims then that could create a precedent that would hurt IP law as a whole and endanger actual, paying, clients of these firms.
I don't know anything about law, but this seems like an entirely sensible post.
Saldiven wrote: You know, this thread's third birthday is in a bit over two months. (First post was 3-23-2011.)
Since we're just starting the appeals process, does that mean we have another 2.5+ years to wait for final resolution, or is the longest part of the process behind us?
Should go much faster than the trial. A year, year and a half to a decision tops.
If CHS come to some agreement with GW to settle it will likely hit them in the wallet and they'll have to lose some products. You don't just settle with people because they make a lot of noise, you have every right to fend off aggressive legal action. GW could drop the action if they want, they choose not to.
If everyone were to settle halfway to make judges' lives easier, then companies like GW could trump up any rubbish against anyone and get freebies when the defendant inevitably meets halfway for settlement. That is in fact what some malicious companies do. They bully other companies with threats of total destruction to force a settlement that still leaves them in a bad way. To criticise a defendant for not settling with an IP bully is a total nonsense. It might just be childish toy soldiers to Judge Kennelly who is expressing his irritation, but people's businesses hang on this and there are wider implications relating to intellectual property.
CHS have no reason to settle while their lawyers are willing to support them, if the case lacks merit they won't continue to get pro-bono support on demand, you don't just get endless free legal support whenever you like. Even if CHS won everything they are still out of pocket after fighting this for the last three years, no settlement is likely to compensate CHS for their losses.
Rather than criticise CHS for dragging this case out 'because they have pro-bono', ask why their lawyers feel it is worthwhile to continue supporting them? If they are fuelling a hopeless case, then they should be criticised, not CHS for accepting their advice and support. But I don't believe this is a hopeless case, and that's why it's pressing ahead.
weeble1000 wrote: He's probably referring obliquely to various of Kennelly's 'a pox on both your houses' remarks, such as the quote I read on here somewhere about the Judge complaining about the attorneys' kids arguing the case in front of him.
It is no secret that Kennelly is not pleased with either party's representation in this case, and I think he even suggested that CHS was being needlessly pugilistic or reticent to compromise because it is being represented pro-bono.
That may be what he was talking about. A judge fussing at lawyers from the bench about a case not settling out is not much of an indictment and he didn't single anyone out.
However, he did sanction Jonathan E Moskin personally for "deliberately or at least recklessly" withholding discoverable documents.
And remember this is a judge that used the phrase 'whatever planet they play Warhammer 40K on'. He really and truly does not care about the danged game!
He just wanted the whole thing out of his courtroom.
The judge was not looking at the greater scope of the results from this trial - he wanted the case finished, everybody to settle out of court, and go way. He was annoyed that the case was taking place in his court, not concerned about why the case had garnered so much pro bono attention.
But, while he was annoyed with all the lawyers in this case, it was GW's lawyers that actually got sanctioned - not Chapter House.
And what X has not noticed is that the amount of pro bono attention the case has been getting has not gone down after the trial....
It was not the quick win that the lawyers are after, it is a chance to help shape IP law via precedent.
Given that CHS made back a big chunk the payment to GW via their Kickstarter a while back, and that they're appealing which might even remove the payment entirely, I think that's a pretty big "no."
Sorry Weeble, the previous two posts had me confused as to whether I had imagined the previous decision. They seemed to intimate that CHS had a bigger bill to pay to GW.
I had a smile at Doc 462 in which the Judge accused CHS of a 'Laundry list' of objections. Shame he didn't exercise the same discretion with GWs' list of infringments.
AndrewC wrote: Sorry Weeble, the previous two posts had me confused as to whether I had imagined the previous decision. They seemed to intimate that CHS had a bigger bill to pay to GW.
I had a smile at Doc 462 in which the Judge accused CHS of a 'Laundry list' of objections. Shame he didn't exercise the same discretion with GWs' list of infringments.
Ah well, onward and upward.
Just how high can this eventually go?
Cheers
Andrew
I can't imagine it would go higher than the 7th circuit court of appeals, although conceivably it could go en banc. From there the only appeal is the Supreme Court, which wouldn't accept this case I don't think.
weeble1000 wrote: From there the only appeal is the Supreme Court, which wouldn't accept this case I don't think.
On what grounds would this get to the Supreme Court? I thought these days they only accepted cases that have Constitutional issues in them.
Going offtopic, I think, but to here it looks as if US Supreme Court looks outside of constitution of US. As an example is a case from june where patentability of genetic code was looked at.
RiTides wrote: Actually, I don't think that's what he implied at all xruslanx. He was mad that they didn't settle and get it off his docket. The judge was pretty immature in that regard, I think... he really didn't do his job all that well in my opinion, and I hope the appeals court says as much.
The result of the case is an absolute mess as it currently stands, and he didn't seem to really aid in the lessening of that in any way, once it became clear that the parties weren't going to settle.
Agreed. The judge was expressing annoyance at BOTH parties for not settling this dispute prior to trial. There was no denigration pointed directly at CHS's attorneys over GW's attorneys. It was a blanket complaint that there was no reason that they shouldn't have come to a resolution on their own.
Additionally, GW's attorneys were the only ones that received an actual, specific, and recorded sanction.
weeble1000 wrote: From there the only appeal is the Supreme Court, which wouldn't accept this case I don't think.
On what grounds would this get to the Supreme Court? I thought these days they only accepted cases that have Constitutional issues in them.
Copyright is a Constitutional issue. "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...."
They usually take one IP case a session or so. I don't expect this will ever be amongst those, though.
RiTides wrote: Actually, I don't think that's what he implied at all xruslanx. He was mad that they didn't settle and get it off his docket. The judge was pretty immature in that regard, I think... he really didn't do his job all that well in my opinion, and I hope the appeals court says as much.
The result of the case is an absolute mess as it currently stands, and he didn't seem to really aid in the lessening of that in any way, once it became clear that the parties weren't going to settle.
I somewhat disagree. I think the Judge predicted this outcome right at the very start, encouraged the parties to settle to this outcome at an early stage, and after three years of bitter argument, expense and court time, we've ended up exactly where he predicted in the first place.
Asking the parties to sort it out between themselves is exactly the most professional thing that he could have done at the time. Unfortunately while it may be in the client's best interest to settle, it's not always in the short term interest of their legal team.
Looking back, clearly GW should have chosen the 'settle' option, which would included a generous offer to CHS in order to buy them out and shut them down.
Still, here we are today - and GW has spent far more than that on this case, and without the satisfactory results they were thinking they were going to get.
RiTides wrote: Actually, I don't think that's what he implied at all xruslanx. He was mad that they didn't settle and get it off his docket. The judge was pretty immature in that regard, I think... he really didn't do his job all that well in my opinion, and I hope the appeals court says as much.
The result of the case is an absolute mess as it currently stands, and he didn't seem to really aid in the lessening of that in any way, once it became clear that the parties weren't going to settle.
I somewhat disagree. I think the Judge predicted this outcome right at the very start, encouraged the parties to settle to this outcome at an early stage, and after three years of bitter argument, expense and court time, we've ended up exactly where he predicted in the first place.
Asking the parties to sort it out between themselves is exactly the most professional thing that he could have done at the time. Unfortunately while it may be in the client's best interest to settle, it's not always in the short term interest of their legal team.
However, a judge shouldn't be pissed off just because a suit isn't settled out of court and he actually has to work on it, it's kinda what he's paid to do. I don't get pissed off when I get in to work and people haven't cancelled their insurance claims even though they won't like they payout they get. I'm paid to handle those claims regardless of what happens with them down the line. Do I have other claims to deal with? Of course, but to me every one is equally valid so long as the client wants them handled(and for the judge, the public is the client).
I very much agree with Alpharius that GW has really botched this whole thing. They could have easily bought out CHS with an NDA early on. GW should have realized that the second that CHS got pro bono representation. They could have easily outlined the potential costs to CHS to continue, looked at their past sales, and offered will under the amount they've spent to make it all go away quietly.
Instead, they've spent well over 1mil and are no better off. They've shattered a large portion of their reputation, and they've pissed off a decent chunk of their customers in the process. They are very well poised to lose more in appeals than they did in trial.
GW should have realized from day one that CHS had very little to lose by fighting, and had everything to gain. GW on the other hand had very little to gain from this and potentially everything to lose. Just the trademark fair use issues that were ruled on were a huge loss to GW's perceived iron fist. They sued over a shoulder pad that was similar, and in doing so lost protection over their own pad's design. They won a scant few claims, a few products were pulled. But as the magistrate said at the beginning of this mess, for GW it's a zero sum game. The ONLY way GW will be satisfied it seems is for CHS to fold entirely, which just isn't going to happen. Even if CHS lost EVERYTHING in this claim, they have new products rolling out that are well outside the scope of GW's supposed IP.
However, a judge shouldn't be pissed off just because a suit isn't settled out of court and he actually has to work on it, it's kinda what he's paid to do. I don't get pissed off when I get in to work and people haven't cancelled their insurance claims even though they won't like they payout they get. I'm paid to handle those claims regardless of what happens with them down the line. Do I have other claims to deal with? Of course, but to me every one is equally valid so long as the client wants them handled(and for the judge, the public is the client).
Judges don't get pissed when they have to work on a file - most judges love their jobs. Judges do get pissed when parties waste taxpayer money and court time on childish issues or matters that should have been settled between counsel like professionals.
For whatever reason the parties in this case went the scorched earth route and seemed to be unable to work out even simple issues without court intervention. You will see the judge's frowny face when this happens and for good reason. Every hour spent in court on this stuff costs YOU the taxpayer money - the registrar, the transcriber, the judge, the use of the facilities, security, clerk time spent researching etc... all cost money (lots of money) and means that another case isn't getting the time and attention it deserves or is being delayed, which costs those parties money and delays the resolution of their case.
However, a judge shouldn't be pissed off just because a suit isn't settled out of court and he actually has to work on it, it's kinda what he's paid to do. I don't get pissed off when I get in to work and people haven't cancelled their insurance claims even though they won't like they payout they get. I'm paid to handle those claims regardless of what happens with them down the line. Do I have other claims to deal with? Of course, but to me every one is equally valid so long as the client wants them handled(and for the judge, the public is the client).
Judges don't get pissed when they have to work on a file - most judges love their jobs. Judges do get pissed when parties waste taxpayer money and court time on childish issues or matters that should have been settled between counsel like professionals.
For whatever reason the parties in this case went the scorched earth route and seemed to be unable to work out even simple issues without court intervention. You will see the judge's frowny face when this happens and for good reason. Every hour spent in court on this stuff costs YOU the taxpayer money - the registrar, the transcriber, the judge, the use of the facilities, security, clerk time spent researching etc... all cost money (lots of money) and means that another case isn't getting the time and attention it deserves or is being delayed, which costs those parties money and delays the resolution of their case.
I don't see that it should be a waste of time when neither side will settle. Now if GW had offered a settlement(other than "close and go away entirely" and CHS wasn't taking it because they felt they could get more from trial, sure, I can understand the frustration, and vice versa.
However, a judge shouldn't be pissed off just because a suit isn't settled out of court and he actually has to work on it, it's kinda what he's paid to do. I don't get pissed off when I get in to work and people haven't cancelled their insurance claims even though they won't like they payout they get. I'm paid to handle those claims regardless of what happens with them down the line. Do I have other claims to deal with? Of course, but to me every one is equally valid so long as the client wants them handled(and for the judge, the public is the client).
Judges don't get pissed when they have to work on a file - most judges love their jobs. Judges do get pissed when parties waste taxpayer money and court time on childish issues or matters that should have been settled between counsel like professionals.
For whatever reason the parties in this case went the scorched earth route and seemed to be unable to work out even simple issues without court intervention. You will see the judge's frowny face when this happens and for good reason. Every hour spent in court on this stuff costs YOU the taxpayer money - the registrar, the transcriber, the judge, the use of the facilities, security, clerk time spent researching etc... all cost money (lots of money) and means that another case isn't getting the time and attention it deserves or is being delayed, which costs those parties money and delays the resolution of their case.
You do realize how many motions to dismiss this judge denied, right? He ruled that a picture of a skull on page 88 of a book was a valid trademark used in commerce. He allowed a claim to proceed to trial when the 30b6 witness said, "this thing is a copy of our idea, that's the best I can come up with," when asked to describe the nature of a copyright claim. Whether or not you agree that those decisions and others were correct, Judge Kennelly made them. He made them. Him. It was his responsibility to do so.
Jude Kennelly decided that the claims in this case were both proper and involved triable issues of fact. Having made such decisions by repeatedly denying both motions to dismiss and motions for summary judgement, can he really be upset that one or more of the parties exercised their rights to a jury trial?
However, a judge shouldn't be pissed off just because a suit isn't settled out of court and he actually has to work on it, it's kinda what he's paid to do. I don't get pissed off when I get in to work and people haven't cancelled their insurance claims even though they won't like they payout they get. I'm paid to handle those claims regardless of what happens with them down the line. Do I have other claims to deal with? Of course, but to me every one is equally valid so long as the client wants them handled(and for the judge, the public is the client).
Judges don't get pissed when they have to work on a file - most judges love their jobs. Judges do get pissed when parties waste taxpayer money and court time on childish issues or matters that should have been settled between counsel like professionals.
For whatever reason the parties in this case went the scorched earth route and seemed to be unable to work out even simple issues without court intervention. You will see the judge's frowny face when this happens and for good reason. Every hour spent in court on this stuff costs YOU the taxpayer money - the registrar, the transcriber, the judge, the use of the facilities, security, clerk time spent researching etc... all cost money (lots of money) and means that another case isn't getting the time and attention it deserves or is being delayed, which costs those parties money and delays the resolution of their case.
You do realize how many motions to dismiss this judge denied, right? Did you read his summary judgment opinions. He was ignorant of basic facts in the case. He ruled that a picture of a skull on page 88 of a book was a valid trademark used in commerce. He allowed a claim to proceed to trial when the 30b6 witness said, "this thing is a copy of our idea, that's the best I can come up with," when asked to describe the nature of a copyright claim.
And a defendant cannot extricate itself from a case without approval from the plaintiff or a ruling from the court. Just keep that in mind.
Which is kinda what I was getting at. GW pushed this. CHS tried to have the nonsense thrown out, and the judge let it sit. Hell even the shoulder pad copyright, which by all reasoning should have been dismissed with prejudice based on both the denied copyright registration and then GW hiding said denial, was left in the case at trial.
It seems that Judge Kennely did very little to try and par down the size of this case, hoping that it would just go away and he could focus on what he felt were more important cases, again as Weeble said earlier, despite the huge implications that this case might have in myriad other industries and cases.
The judicial snark that started this particular line of conversation had to do with the insessant motion practice and inability of counsel to work trivial matters out between themselves - you will be arguing this when my kids are grown up or words to that effect were uttered after the jury verdict and the trial was basically over.
That's not to say the case couldn't have been managed differently or narrowed in scope judicially. But it is important to distinguish between a judge saying "Why are you here" with regards to the case as a whole and "why are you here bothering me with this" for a particular argument or spat between counsel or more globaly when counsel have shown an inability to agree on even the most basic of things like that stipulation wrt to who would hold on to the molds. That sort of behaviour needs to be discouraged, and snark is one of the tools the bench has to do it. Especially in the absence of legal costs awards on all these motions and hearings.
czakk wrote: The judicial snark that started this particular line of conversation had to do with the insessant motion practice and inability of counsel to work trivial matters out between themselves - you will be arguing this when my kids are grown up or words to that effect were uttered after the jury verdict and the trial was basically over.
That's not to say the case couldn't have been managed differently or narrowed in scope judicially. But it is important to distinguish between a judge saying "Why are you here" with regards to the case as a whole and "why are you here bothering me with this" for a particular argument or spat between counsel or more globaly when counsel have shown an inability to agree on even the most basic of things like that stipulation wrt to who would hold on to the molds. That sort of behaviour needs to be discouraged, and snark is one of the tools the bench has to do it. Especially in the absence of legal costs awards on all these motions and hearings.
Excellent point. I believe we wandered off in a different direction based on phrasing at some point.
I agree that it's reasonable for a judge to be frustrated at lawyers arguing and being petty.
I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
MagickalMemories wrote: I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
Eric
Hard to say either way - because it was never on the table. (Sort of like wondering if the ACW would have happened if the Confederates hadn't fired on Fort Sumter, we will never know, because they did....)
MagickalMemories wrote: I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
Eric
A buyout settlement could have included a non compete clause that says CHS can't reform and create another company in direct competition within X years I'd imagine.
With how much GW has spent, if I were CHS and someone offered me a million to go quietly, I'd do it in a heartbeat and move on to other games or hobbies. But then again that's me.
The bigger point remains that GW didn't even consider a single settlement option that was presented because those offers didn't shut CHS down entirely for no money.
MagickalMemories wrote: I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
Eric
Hard to say either way - because it was never on the table. (Sort of like wondering if the ACW would have happened if the Confederates hadn't fired on Fort Sumter, we will never know, because they did....)
The Auld Grump
All I have to say about this is that if you've never been sued; if you've never faced a lawsuit threatening your livelihood that goes on year after year after year, you can at least try to imagine what that is like.
Even with pro-bono representation the stress is monumental. Hell, remember what Paulson said, and he was out of the case quickly in comparison to Chapterhouse. We know that Nick testified to earning a salary of 3K per month from Chapterhouse Studios, and that total revenue for more than four years of sales, revenue mind you, was barely more than $400,000.00.
If that was you, and someone offered you half a million dollars in cash, right now, to close your business...would you stand on principle? Would you turn that down knowing that even if you stuck through years more litigation and had to sit through a trial in which you would be openly called a thief, you might still lose your whole business anyway?
We have no idea what happened behind the scenes, but there are glimpses in the public record. For example, Judge Gilbert intimated that GW viewed the case as a zero sum game and Jonathan Moskin said that a license was a non-starter. We know the parties could not work out a settlement in multiple pre and post trial efforts. We know that the Court felt that the parties had great difficulty communicating. And we know that Jonathan E Moskin was sanctioned in this case for withholding discoverable documents and sanctioned in a previous case for being deliberately misleading in settlement negotiations. We also know that Moskin swore in an affidavit that he hung up in the middle of a meet and confer over a quip expressing doubt about the veracity of his assurances as to document production in a case in which his firm was sanctioned for requiring opposing counsel to file repeated motions to compel discovery.
Those are all straight up facts well documented in the public record that have been discussed many times in this thread.
weeble1000 wrote: From there the only appeal is the Supreme Court, which wouldn't accept this case I don't think.
On what grounds would this get to the Supreme Court? I thought these days they only accepted cases that have Constitutional issues in them.
Going offtopic, I think, but to here it looks as if US Supreme Court looks outside of constitution of US. As an example is a case from june where patentability of genetic code was looked at.
Pardon me for the OT, but that case does deal with the U.S. Constitution, specifically Art. I. § 8, Clause 8. There is a long-running body of U.S. patent law on being unable to patent anything from nature. Thus, you cannot patent a gene that is naturally occurring in the human body, but you CAN patent a gene you create. (cDNA v rDNA)
Sorry, law school nerd hat came out. I'll go back to lurking now.
How many genes have actually been 'created' though? Typically you import them from another species. Maybe the 'novel' combination of a certain gene from a bacteria into a specific plant could be protected, but not the genetic sequences themselves.
weeble1000 wrote: From there the only appeal is the Supreme Court, which wouldn't accept this case I don't think.
On what grounds would this get to the Supreme Court? I thought these days they only accepted cases that have Constitutional issues in them.
Going offtopic, I think, but to here it looks as if US Supreme Court looks outside of constitution of US. As an example is a case from june where patentability of genetic code was looked at.
Pardon me for the OT, but that case does deal with the U.S. Constitution, specifically Art. I. § 8, Clause 8. There is a long-running body of U.S. patent law on being unable to patent anything from nature. Thus, you cannot patent a gene that is naturally occurring in the human body, but you CAN patent a gene you create. (cDNA v rDNA)
Sorry, law school nerd hat came out. I'll go back to lurking now.
I'm not from US so I have no idea of US constitution, merely was assuming that IP things would not be in it. However being a person involved in DNA sequencing, I can say that cDNA is a naturally created DNA. It is copying a section of DNA using natural enzymes (eg. even those are either pure natural enzymes or modified versions of them). Only part that is artificial is the selection of which bit to copy (mutagenesis aside of course).
I would have no problem is continuing this in other thread though if wanted .
The patenting of DNA is an interesting topic in law and science, however this thread is about the GW vs Chapter House case.
I don't think GW ever considered offering Chapter House a settlement. As far as we know, GW simply issued an ultimatum, without prior consultation or offers of recompense, requiring CH to close their business, on their general principle of "All of your SF are belong to us".
Kilkrazy wrote: The patenting of DNA is an interesting topic in law and science, however this thread is about the GW vs Chapter House case.
I don't think GW ever considered offering Chapter House a settlement. As far as we know, GW simply issued an ultimatum, without prior consultation or offers of recompense, requiring CH to close their business, on their general principle of "All of your SF are belong to us".
There's a meme I haven't heard in a long time.
Having said that, the CATS/Captain dialogue is almost a carbon copy of the GW/Chapterhouse positions so far.
Chapterhouse Employee wrote:Main screen turn on.
Villacci wrote:It’s you !!
GW wrote:How are you gentlemen !!
All your base are belong to us.
You are on the way to destruction.
Villacci wrote:What you say !!
GW wrote:You have no chance to survive make your time.
Howard A Treesong wrote: How many genes have actually been 'created' though? Typically you import them from another species. Maybe the 'novel' combination of a certain gene from a bacteria into a specific plant could be protected, but not the genetic sequences themselves.
Its way off topic but the patents are essentially method patents that were written to read on genes, e.g. methods of identifying/isolating specific genes. You can't really 'create' a gene, you can discover that it exists and find a way to make that discovery a useful tool for doing things. Only the science to make said discovery is very expensive. It's a conflict between the nature of what should be patentable versus providing inventors with the financial incentive to advance "the progress of science and the useful arts" in a free market democracy.
Ultimately it is a constitutional issue because as several have said already, patent and copyright are embedded in the US Constitution.
MagickalMemories wrote: I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
Eric
A buyout settlement could have included a non compete clause that says CHS can't reform and create another company in direct competition within X years I'd imagine.
With how much GW has spent, if I were CHS and someone offered me a million to go quietly, I'd do it in a heartbeat and move on to other games or hobbies. But then again that's me.
The bigger point remains that GW didn't even consider a single settlement option that was presented because those offers didn't shut CHS down entirely for no money.
But if they settled and GW bought them out, what message would that sent to all the other 3rd party bit sites? CHS was the most brazen with associating their goods with GW. That would have sent a message that GW will write you a big fat check to get rid of you. All it would have done is encourage more bit sites, not less. There are sculptors on this board that are debating the merits of starting bit sites. If you knew that there was a fat check from GW if got too big, what would you do?
MagickalMemories wrote: I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
Eric
A buyout settlement could have included a non compete clause that says CHS can't reform and create another company in direct competition within X years I'd imagine.
With how much GW has spent, if I were CHS and someone offered me a million to go quietly, I'd do it in a heartbeat and move on to other games or hobbies. But then again that's me.
The bigger point remains that GW didn't even consider a single settlement option that was presented because those offers didn't shut CHS down entirely for no money.
But if they settled and GW bought them out, what message would that sent to all the other 3rd party bit sites? CHS was the most brazen with associating their goods with GW. That would have sent a message that GW will write you a big fat check to get rid of you. All it would have done is encourage more bit sites, not less. There are sculptors on this board that are debating the merits of starting bit sites. If you knew that there was a fat check from GW if got too big, what would you do?
I have to disagree.
If GW had bought out CHS as part of a settlement to the lawsuit, GW would have required CHS and it's principals to sign a Non-disclosure Agreement preventing them from discussing the terms of the settlement under threat of serious financial penalties. After paying off the principals, GW would have then simply shut down CHS, closed its web site, and gone on their merry way. GW would likely have made some sort of small announcment indicating that they had gotten their way and someone they felt was infringing on their IP was no longer in business. For all that the general public would have known, GW flexed it's legal might and CHS went away.
MagickalMemories wrote: I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
Eric
A buyout settlement could have included a non compete clause that says CHS can't reform and create another company in direct competition within X years I'd imagine.
With how much GW has spent, if I were CHS and someone offered me a million to go quietly, I'd do it in a heartbeat and move on to other games or hobbies. But then again that's me.
The bigger point remains that GW didn't even consider a single settlement option that was presented because those offers didn't shut CHS down entirely for no money.
But if they settled and GW bought them out, what message would that sent to all the other 3rd party bit sites? CHS was the most brazen with associating their goods with GW. That would have sent a message that GW will write you a big fat check to get rid of you. All it would have done is encourage more bit sites, not less. There are sculptors on this board that are debating the merits of starting bit sites. If you knew that there was a fat check from GW if got too big, what would you do?
Non-disclosure agreement, stipulation to infringement, joint statement. Solves those problems nicely. You can't talk about getting paid, you admit to infringing, and you publicly state that you have admitted to infringement and agreed to cease all sales. All of GW's goals would have been met. A settlement like that might cost more because it would be harder to swallow, but money talks, doesn't it. Pay me 5 times what my business is worth and I'll say whatever you want.
Ultimately, however it went down, the industry has benefited from the failure to settle.
If GW had bought out CHS as part of a settlement to the lawsuit, GW would have required CHS and it's principals to sign a Non-disclosure Agreement preventing them from discussing the terms of the settlement under threat of serious financial penalties. After paying off the principals, GW would have then simply shut down CHS, closed its web site, and gone on their merry way. GW would likely have made some sort of small announcment indicating that they had gotten their way and someone they felt was infringing on their IP was no longer in business. For all that the general public would have known, GW flexed it's legal might and CHS went away.
Except that all the other bit sites are still there and the problem remains. GW would have to go through the same process for each of them and pay those other sites off as well. Even with NDA's, I don't see how this would have discouraged other sites. At best it would have kept the status quo. There were plenty of sculptors who were telling CHS to not be so blatant with their associating with GW figs and that he was asking for trouble. They would assume that was what got CHS and they would continue to operate as normal. GW went after CHS because it was seen as the easiest target. If they had won in court, they would have gone after all the other sites with legal ruling in hand. By making CHS go away through settlement, they wouldn't have that threat to work with.
weeble1000 wrote:
Ultimately, however it went down, the industry has benefited from the failure to settle.
Can't disagree with that. Hopefully we will continue to see an increase in the quality on the third party front.
If GW had bought out CHS as part of a settlement to the lawsuit, GW would have required CHS and it's principals to sign a Non-disclosure Agreement preventing them from discussing the terms of the settlement under threat of serious financial penalties. After paying off the principals, GW would have then simply shut down CHS, closed its web site, and gone on their merry way. GW would likely have made some sort of small announcment indicating that they had gotten their way and someone they felt was infringing on their IP was no longer in business. For all that the general public would have known, GW flexed it's legal might and CHS went away.
Except that all the other bit sites are still there and the problem remains. GW would have to go through the same process for each of them and pay those other sites off as well. Even with NDA's, I don't see how this would have discouraged other sites. At best it would have kept the status quo. There were plenty of sculptors who were telling CHS to not be so blatant with their associating with GW figs and that he was asking for trouble. They would assume that was what got CHS and they would continue to operate as normal. GW went after CHS because it was seen as the easiest target. If they had won in court, they would have gone after all the other sites with legal ruling in hand. By making CHS go away through settlement, they wouldn't have that threat to work with.
weeble1000 wrote:
Ultimately, however it went down, the industry has benefited from the failure to settle.
Can't disagree with that. Hopefully we will continue to see an increase in the quality on the third party front.
It's unlikely that those other bits makers would have gotten the pro-bono representation that CHS received. That free representation is the only reason that CHS didn't fold up 3 years ago. If they had folded up, or if a settlement full of non-disclosures had ended as Weeble described, the situation would be back to the status quo of 3+ years ago, which GW was apparently moderaly ok with. A settlement where CHS couldn't reveal the terms and had to "admit" to infringement would not have resulted in an explosion of new bits makers as some have postulated.
The point about Chapter House is that they had taken legal advice on the use of trademarks and so on, and they believed they were legally in the clear. The other bits sites dodged the issue by making bits that look like GW bits but aren't named anything like them.
GW attacked Chapter House, lost most of their claims and won a few of them. The results are going to appeal and it may happen that GW lose the points they won in the first round.
Except that all the other bit sites are still there and the problem remains. GW would have to go through the same process for each of them and pay those other sites off as well. Even with NDA's, I don't see how this would have discouraged other sites. At best it would have kept the status quo. There were plenty of sculptors who were telling CHS to not be so blatant with their associating with GW figs and that he was asking for trouble. They would assume that was what got CHS and they would continue to operate as normal. GW went after CHS because it was seen as the easiest target. If they had won in court, they would have gone after all the other sites with legal ruling in hand. By making CHS go away through settlement, they wouldn't have that threat to work with.
.
CHS was unique amongst the third party bit companies in that they were openly displaying their components as being 'GW compatible'. Had they appeared to have been squashed legally(regardless of what actually happened behind the scenes), it would have dissuaded others from following their footsteps and listing their products in that style.
GW doesn't mind the likes of Scibor, Maxmini, or even Anvil too much. They've never tried to obviously piggyback off of GW, or associate with the GW IP. GW would rather they didn't exist, but they are a minor annoyance at best. It's the Chapterhouse style of 'conversion kits' that worries GW. It makes it waaaay too easy for people to make alternative versions for models in their Universe, and market them as such.
I mean, can you imagine if Vic miniatures listed her Victorian Guard as 'Praetorians', and packaged them in GW style boxes to be sold in hobby shops, with 'GW compatible' stamped on the side? Or a Heavy Support Mortian Battle-Tank with 'Leman Russ Alternative' printed on the side?
That, my friend, is GW's worst nightmare. Other products, openly associated with their IP, sold in gaming stores, competing with their own range, and making them absolutely no profit whatsoever. Or in other words, a free and competitive market.
CHS was unique amongst the third party bit companies in that they were openly displaying their components as being 'GW compatible'. Had they appeared to have been squashed legally(regardless of what actually happened behind the scenes), it would have dissuaded others from following their footsteps and listing their products in that style.
It's the Chapterhouse style of 'conversion kits' that worries GW. It makes it waaaay too easy for people to make alternative versions for models in their Universe, and market them as such.
I mean, can you imagine if Vic miniatures listed her Victorian Guard as 'Praetorians', and packaged them in GW style boxes to be sold in hobby shops, with 'GW compatible' stamped on the side? Or a Heavy Support Mortian Battle-Tank with 'Leman Russ Alternative' printed on the side?
That, my friend, is GW's worst nightmare. Other products, openly associated with their IP, sold in gaming stores, competing with their own range, and making them absolutely no profit whatsoever. Or in other words, a free and competitive market.
And that, if anything, is exactly and undeniably what Chapterhouse won at trial. The jury verdict explicitly demonstrates that 'compatible with Games Workshop X' is fair use.
"Eldar compatible bits" did not infringe the Eldar mark
"Tyranid compatible bits" did not infringe the Tyranid mark
"Space Marine compatible bits" did not infringe the Space Marine mark
"Specializing in Custome Bits and Sculpts for Warhammer 40,000 and Fantasy" did not infringe the Warhammer mark nor the Warhammer 40,000 mark
Whenever the use of a mark was qualified, it was found to be fair use.
Take a look at chapterhousestudios.com. That website is compliant with the Court's injunction. Really. Go take a look. All of the bits makers should go take a look at a website compliant with the permanent injunction in the Chapterhouse case.
CHS was unique amongst the third party bit companies in that they were openly displaying their components as being 'GW compatible'. Had they appeared to have been squashed legally(regardless of what actually happened behind the scenes), it would have dissuaded others from following their footsteps and listing their products in that style.
It's the Chapterhouse style of 'conversion kits' that worries GW. It makes it waaaay too easy for people to make alternative versions for models in their Universe, and market them as such.
I mean, can you imagine if Vic miniatures listed her Victorian Guard as 'Praetorians', and packaged them in GW style boxes to be sold in hobby shops, with 'GW compatible' stamped on the side? Or a Heavy Support Mortian Battle-Tank with 'Leman Russ Alternative' printed on the side?
That, my friend, is GW's worst nightmare. Other products, openly associated with their IP, sold in gaming stores, competing with their own range, and making them absolutely no profit whatsoever. Or in other words, a free and competitive market.
And that, if anything, is exactly and undeniably what Chapterhouse won at trial. The jury verdict explicitly demonstrates that 'compatible with Games Workshop X' is fair use.
"Eldar compatible bits" did not infringe the Eldar mark
"Tyranid compatible bits" did not infringe the Tyranid mark
"Space Marine compatible bits" did not infringe the Space Marine mark
"Specializing in Custome Bits and Sculpts for Warhammer 40,000 and Fantasy" did not infringe the Warhammer mark nor the Warhammer 40,000 mark
Whenever the use of a mark was qualified, it was found to be fair use.
Take a look at chapterhousestudios.com. That website is compliant with the Court's injunction. Really. Go take a look. All of the bits makers should go take a look at a website compliant with the permanent injunction in the Chapterhouse case.
I dont think this ruling hurst GW as much, as it actually does FW. FW its a strictly bits and accessories company.
Court ordered settlement conference, that's lawyer speak for "I still don't want to have to deal with this case, it's a waste of the courts time, SETTLE IT YOURSELVES ALREADY" right?
jonolikespie wrote: Court ordered settlement conference, that's lawyer speak for "I still don't want to have to deal with this case, it's a waste of the courts time, SETTLE IT YOURSELVES ALREADY" right?
It depends. Settlement conferences are usually run by experienced judges or senior lawyers. It can be a chance to get an honest third opinion from an expert about your chances and an opportunity to have someone mediate without all the formalities of court. It can also be a waste of time if neither party wants to settle or pare down the issues or agree on facts to speed up the trial. Then it can drag the whole litigation process out and increase costs (pay your lawyer to go to the settlement conference, and then pay them to go to the trial).
Mandatory case conferences and settlement hearings are the rage nowadays. It likely has nothing to do with this case in particular, and is just part of a trend of mandating settlement conferences. Unless one of the parties requested it confidentially.
GW doesn't mind the likes of Scibor, Maxmini, or even Anvil too much. They've never tried to obviously piggyback off of GW, or associate with the GW IP. GW would rather they didn't exist, but they are a minor annoyance at best. It's the Chapterhouse style of 'conversion kits' that worries GW. It makes it waaaay too easy for people to make alternative versions for models in their Universe, and market them as such.
I disagree with that assertion. Those sites make alternatives and GW compatible parts. GW goes after any sources they see as threats to their sales and that they think they can squash. Blight Wheel got a C&D for a free figure they were giving away at Salute because it looked similar to a GW design. Things like changing terms of service so stores can't sell bits from GW kits are proof GW is looking at threats for very minor sources. These sites were not safe in any way.
From what I have seen of them, various European based companies like Bits Pudlo and Scibor make models that are in the style of GW/FW models, including complete figures and parts like heads and weapons. For example, Scibor's range of SF Knights.
The key difference between them and Chapter House is that Chapter House used the GW trademark terms in their product descriptions, and the Polish guys don't.
Kilkrazy wrote: From what I have seen of them, various European based companies like Bits Pudlo and Scibor make models that are in the style of GW/FW models, including complete figures and parts like heads and weapons. For example, Scibor's range of SF Knights.
The key difference between them and Chapter House is that Chapter House used the GW trademark terms in their product descriptions, and the Polish guys don't.
That's part of it. The other part has to do with IP laws and courts in Poland. As long as these Polish companies aren't explicitly using GW's trademarks to sell their products there isn't a lot GW can do to shut them down. In America or the UK, GW could go after small shops that make conversion bits even if they don't use GW trademarks to sell. That's why the outcome of the GW v. Chapterhouse lawsuit is so important here.
GW doesn't mind the likes of Scibor, Maxmini, or even Anvil too much. They've never tried to obviously piggyback off of GW, or associate with the GW IP. GW would rather they didn't exist, but they are a minor annoyance at best. It's the Chapterhouse style of 'conversion kits' that worries GW. It makes it waaaay too easy for people to make alternative versions for models in their Universe, and market them as such.
I disagree with that assertion. Those sites make alternatives and GW compatible parts. GW goes after any sources they see as threats to their sales and that they think they can squash. Blight Wheel got a C&D for a free figure they were giving away at Salute because it looked similar to a GW design. Things like changing terms of service so stores can't sell bits from GW kits are proof GW is looking at threats for very minor sources. These sites were not safe in any way.
Then how do you explain the survival of the following websites?
In that little list there, I have everything from torsos and titans, to fullblown vehicles and battlesuits, to conversion kits aimed at GW sets. Yet none of these stores have been closed down. It's also mainly US and UK companies. What's more, I could make that list three times as large, I just got bored of clicking the URL button.
Yes, GW does issue C&D's to companies other than CHS. That does not counteract my basic premise, which is that the main reason that they went after CHS was because CHS blatantly associated and listed their product alongside what GW consider to be their IP.
The vast, vast majority of third part bits are safe from litigation, because GW has to have something to assert in court, and 'you can glue it to our product' is not sufficient for that purpose. To get a C&D from them, you usually always needed to either:
A) Produce something that was far too aesthetically close to the GW miniature, allowing them to invoke IP/copyright laws.
B) Publicly or openly associate your miniature/component with the GW brand.
CHS have gone to court, and have now had it defined that a company is free to do the latter without fear of repercussion. They didn't quite pull off the former, but are currently working on it. If they succeed, then GW's legal policy begins to fall apart.
IF CHS manages to pull off the next count, that makes things very dicey for GW indeed. It means that in the US at least, companies like Kromlech could genuinely package their stuff up with the words 'GW compatible', and have it stuck on the shelf of every FLGS over there next to the GW brand. That is an absolute worst case scenario for GW with regards to third party market, and is why they are frantically pouring money in and hoping to stop that ever being a possibility.
To recap, they can never squash all third party bits (legally speaking), and the sales of them are usually web-based and small enough not to step on their toes. But in the US especially, where the FLGS rules(as opposed to GW stores), if those kits start hitting them shelves with their name on, however much in the small print, it will dent their profits.
After all, why buy a GW chimera for my guardsmen, when I can buy a clearly marked Ramshackle 'Counts As' Chimera for less money? I mean, it even has a Hellhound and Hydra variant to keep the aesthetic!
A stand of those, marked as 'GW Compatible' sat next to the GW stand? Sign me, and a lot of people up I think. Add on another two or three cheaper alternate chimeras(they already exist), and then all of a sudden, the GW Chimera kit loses 80% of its sales from that store.
What's more, it means that when GW announces its annual price hike, and the GW chimera goes up to £24.00 each, more and more people begin to buy the £20.00 Ramshackle one, simply because it's there and cheaper.
Make no mistake, GW wishes to avoid such a free market economy. But in the US at least, they may be looking at it within a few years. All thanks to CHS.
Heaven forbid the land of the free enforce a free market economy. Healthy competition will be good for GW; one might argue that it's already forced them to innovate to an extent. Some recent ventures they've undertaken will possibly have negative consequences for them but it at least shows that they're finally shaking things up. Now if they can just get rid of top management that seem to have no idea an industry exists outside of GW and we might see some "great news".
Arguably GW hasn't sued anyone else because they couldn't afford to do so on account of the Chapterhouse case. Financially, GW straight up can't handle two big cases. If GW filed another lawsuit and one of the firms that had offered CHS pro bono representation but didn't get on the case wanted to jump on the destroy GW bandwagon, GW would have been in massive trouble.
The risk for GW us now that there is a roadmap to beating GW in court. There are expert witnesses with experience. There are reports on the public record. Alan Merrett authenticated a miniatures game called "Space Marine" that made it into evidence. Rejections of shoulder pads are in the public record.
If GW files a case in the US that looks anything like GW v CHS, GW is opening that can of worms all over again, and if there is an appellate court ruling unfavorable to GW, you can absolutely forget it.
GW doesn't even have a good reason to deny venue in the seventh circuit.
GW sued CHS. I submit that this was always intended to be the first of many cases and it got stopped COLD, first time out of the gate like we were all waiting for GW to make the mistake. GW hasn't sued anyone else because it can't afford to, because a few hours of lawyer bills turned into a multi-million dollar years long lawsuit that ain't over yet.
weeble1000 wrote: Arguably GW hasn't sued anyone else because they couldn't afford to do so on account of the Chapterhouse case.
I would like to think that GW has learned its lesson. I can understand them fighting this appeal because the consequences for them failing are so potentially dire but I can also see GW being highly selective with its C&Ds from now on, possibly going so far as to only use them on people who actually deserve to receive them.
GW would be extremely foolish to create a repeat of the CHS fiasco, especially if it is in another legal jurisdiction such as the UK. Logic is not something that is commonly associated with GW's management of course.
GW doesn't mind the likes of Scibor, Maxmini, or even Anvil too much. They've never tried to obviously piggyback off of GW, or associate with the GW IP. GW would rather they didn't exist, but they are a minor annoyance at best. It's the Chapterhouse style of 'conversion kits' that worries GW. It makes it waaaay too easy for people to make alternative versions for models in their Universe, and market them as such.
I disagree with that assertion. Those sites make alternatives and GW compatible parts. GW goes after any sources they see as threats to their sales and that they think they can squash. Blight Wheel got a C&D for a free figure they were giving away at Salute because it looked similar to a GW design. Things like changing terms of service so stores can't sell bits from GW kits are proof GW is looking at threats for very minor sources. These sites were not safe in any way.
Then how do you explain the survival of the following websites?
::Snip::
Just because there are companies out there making product does not mean they aren't taking liberties with GW's IP. Claiming they are on the up and up simply because GW hasn't slapped them yet doesn't hold much water. If you have a busy highway with thousands of motorists and only one traffic cop working it do all the speeding motorist have a sanction to go as fast as they want simply because the cop can only pull over one car at a time?
The simple existence of a website being in operation it's not proof of anything, heck I can write up a list about 3 times as long of sites that offer directly recast GW product which certainly isn't legal or tolerated by GW but they are chugging along just fine and none of them have been sued yet. (much less shut down)
GW picked CHS because they saw a company that they disliked and thought they could bully into compliance, they didn't expect a full blown legal battle and as a result of this case it has stalled a lot of their planned efforts to go after other companies. how many C&Ds have been reported being issued on GW's behalf since this trial began? Even with a long list of known illegal recasters why hasn't there been another lawsuit filed by GW in the last three years? There were certainly quite a few floating before the trail, but not afterwards. Could it be that GW realized just how costly these battle are? Even with their size even a few dozen of these cases would easily sink GW. Did they discover that their castle moat strategy against the industry and their "rock solid IP" was unprotectable rubbish they stole from other sources?
Yes, GW does issue C&D's to companies other than CHS. That does not counteract my basic premise, which is that the main reason that they went after CHS was because CHS blatantly associated and listed their product alongside what GW consider to be their IP.
The vast, vast majority of third part bits are safe from litigation, because GW has to have something to assert in court, and 'you can glue it to our product' is not sufficient for that purpose. To get a C&D from them, you usually always needed to either:
A) Produce something that was far too aesthetically close to the GW miniature, allowing them to invoke IP/copyright laws.
B) Publicly or openly associate your miniature/component with the GW brand.
A lot of the other companies have stuff that is just as "offending" as CHS does, they just haven't been slapped yet, most of those companies have also started up after the start of the GW/CH trial. Since many of them came along after the fact it's hard to say who's being the most blatant. Heck Victoria openly refers to her models as being "Not-Cadians or Acadians". It's like coming in with a company that creates "IePhones" and not-IPhones while following the same design. Just because people make stuff with a nod and a wink for what it's uses are intended to be doesn't mean they aren't fully riding on the coat tails of GW IP. Just because they haven't gotten a C&D (yet) doesn't mean they won't end up in court. Also there's no requirement to get a "friendly" C&D before you end up in court, my first communication ever with GW was when I received a summons notice.
So much of this case is being focused on in the legal world because the line needs to be drawn and asserted for the industry, GW has run roughshod and twisted the legal system to their advantage for years and that finally came back and bit them on the ass as several large law firms have taken notice and aren't willing to let them continue making claims outside what is protected by law.
This case has definitely caused GW a bloody nose and made them do a double take and re-examine just how freely they hand out threats of impending legal action.
I frankly wish the same lesson could be taught to Palladium Books as their policy of sending C&D letters to people who post conversions into and out of their games seems to be about as far reaching as GW's and just about as hated.
It is strange how much different the fantasy wargaming market is from historical wargaming. The setting of a fantasy game is definitely important and well worth protecting to a reasonable degree.
But at the same time so much of what we experience in the various sci-fi/fantasy genres is powered by longstanding tropes and classic imagery. This does not mean you can't do anything unique, just that what you do that is unique is often very narrow.
GW seems to have a huge problem with people wanting to engage in its fictional universes without being 100% beholden to an exclusively Games Workshop ecosystem of products. Not that GW was always this way of course, but it has been for the past decade.
GW seems to dislike a customer buying a product from another manufacturer to use with its game or with its related products, and it seems that the only way GW can conceive of to prevent that is to rely on copyright law to close off access to its expansive, open-ended, trope fueled and derivative fictional universes.
The problem comes in where lines are properly and justifiably drawn in a way that serves the public good. Those answers are sorely lacking within the corpus of American jurisprudence, as well as in other western countries.
This case may help to draw those lines a little bit more clearly, not only for the fantasy table top wargaming industry, but far beyond. Historical wargaming benefits from the clear line of military material being firmly rooted in the public domain. And so there's little enough bickering.
So too is there little enough bickering in the fantasy wargaming market when those with a stake in it are content to compete by engaging with customers, and when that happens, we as customers win. You want my money, show me something worth buying.
Victoria Lamb, for example, should be able to tell her customers that her unique sculpts would, in her opinion, make excellent alternative models for Games Workshop Imperial Guard armies. Is her artwork any less unique just because Games Workshop has a part in creating a demand for ~28mm futuristic soldiers? Does Games Workshop own any expression of a futuristic soldier styled after British soldiers of the Anglo-Zulu wars just because they created one at some point in the past?
And what about that expression of Games Workshop? Where is the line drawn in terms of the protected expression ? GW did not invent pith helmets, for exmple, and GW drew a well-established combination of elements from what we all know is solidly ensconced in the public domain.
But GW was the first to throw in a laser rifle and sell it, maybe. GW has sold it off and on for a long time. Does the fact that GW has made money selling it obfuscate the dearth of originality in the work of art itself? Does the work of art gain some sort of greater intrinsic value because it is part of a broader fictional universe?
It may be true that Victoria Lamb saw what GW did, saw that there was a market for it, saw that said market was not being supplied, and took advantage of that. Undeniably she took something from Games Workshop. But did she take something that belonged exclusively to Games Workshop? Did she unfairly appropriate the property of Games Workshop?
Games Workshop would be content to say yes just because Victoria Lamb looked first to Games Workshop's artwork before creating her own. But isn't that exactly what GW did in the first place; look first to the work of someone else to create its own art?
Just because there are companies out there making product does not mean they aren't taking liberties with GW's IP. Claiming they are on the up and up simply because GW hasn't slapped them yet doesn't hold much water.
As you yourself know though Paulson, what GW considers to be their IP, and what is actually their IP are two very separate kettles of fish. Scibor does fellows that look a lot like space marines. This does not however, mean that they are space marines. There's enough variation that pretty much any lawsuit aimed in their direction would most likely flop.
If you have a busy highway with thousands of motorists and only one traffic cop working it do all the speeding motorist have a sanction to go as fast as they want simply because the cop can only pull over one car at a time?
GW has a legal department. They're not just one guy, if they wanted to launch lawsuits, they could have done plenty before this case. I remember when CHS popped into existence, they're not that old. The Kromlech.eu page on ebay has been functioning since 2004, so GW had plenty of time to nail them prior to CHS even existing. The same goes for Maxmini, Hitechminiatures, and several other names.
The question is, what made GW choose to nail CHS, whilst all these other similar stores had often existed quite happily with C&D's for years? The answer is that out of all them, CHS were the first ones to openly affiliate their product with GW IP.
The simple existence of a website being in operation it's not proof of anything,
It's proof of the fact that long before CHS reared its head out of the water, other companies were performing a similar role in the market and not being dragged to court for it.
heck I can write up a list about 3 times as long of sites that offer directly recast GW product which certainly isn't legal or tolerated by GW but they are chugging along just fine and none of them have been sued yet. (much less shut down)
Please do, if they're UK/EU based. I think you'll find that those which operate anywhere near a jurisdiction GW can nail them in, they've done their best to do so. As a Swapmod, I've dealt with many cases of recast product in the UK, and even had discussions with Forgeworld over a few of them.
Anything like that, GW stamps on with both feet.
GW picked CHS because they saw a company that they disliked and thought they could bully into compliance, they didn't expect a full blown legal battle and as a result of this case it has stalled a lot of their planned efforts to go after other companies.
I agree that they didn't expect CHS to fight it out or get pro bono. But had CHS folded and gone under, there is no doubt in my mind that Scibor or Bitspudlo would still be functioning today. They're unique enough that unless the owners start openly printing, 'made for use with GW' on the side of their product boxes, GW can't generally touch them.
how many C&Ds have been reported being issued on GW's behalf since this trial began?
A few. Some were seemingly spurious, others not so much.
Even with a long list of known illegal recasters why hasn't there been another lawsuit filed by GW in the last three years? There were certainly quite a few floating before the trail, but not afterwards.Could it be that GW realized just how costly these battle are? Even with their size even a few dozen of these cases would easily sink GW. Did they discover that their castle moat strategy against the industry and their "rock solid IP" was unprotectable rubbish they stole from other sources?
Because nobody else has either a) chosen to fight a legal action against any C&D actions issued, and b) nobody else has yet infringed upon GW's perceived (or at least, by GW) IP to the extent that CHS studios did. There has been a general trend in that direction of edging towards it, with the arrival of PuppetsofWar, WarChimera and the like, but nobody else has yet to push that particular boat as far as CHS did. They're simply trading small scale for the time being, and waiting to see the outcome of the trial, I should think.
In terms of C&D's issued pre-CHS, there were a few individual model cases, but nothing major. If you're trying to say that the GW C&D rate has gone down after the CHS trial started, I'd be inclined to disagree.
A lot of the other companies have stuff that is just as "offending" as CHS does, they just haven't been slapped yet,most of those companies have also started up after the start of the GW/CH trial.
I repeat, none of those companies have stamped, 'Made for use with GW models' on the product description, inside web categories labelled by Warhammer 40K factions. None of them. The closest you'll get are PuppetsofWar, who still word obliquely. Hence they haven't been nailed by lawsuits.
I do actually partially agree with you, but only the premise of aesthetic. I heard that PuppetsofWar were nailed with a C&D or two for individual products, but they just removed the relevant products from sale. They're still in business, and I daresay still would be even if CHS had never happened. Companies in general are skating closer to the line in terms of aesthetic, but even then, most have never been quite as obvious as the 'Doomseer'.
Since many of them came along after the fact it's hard to say who's being the most blatant. Heck Victoria openly refers to her models as being "Not-Cadians or Acadians".
In private posts in a personal capacity, not in the product descriptions. And even then, 'not-cadian' is still infinitely more oblique then 'Model designed to be used with Games Workshop Cadians!!!'
Just because people make stuff with a nod and a wink for what it's uses are intended to be doesn't mean they aren't fully riding on the coat tails of GW IP.
I think that one has to assume in a case like this, that the 'Hobby' consists of more than GW soldiers. I might be doing the same as Blight Wheel Miniatures, and making 'Grants Spectres'. Now those components might well be totally compatible with GW Cadians, but at the end of the day, its still my 'human sci fi soldiers' miniatures line. That's not GW IP. Ramshackle's flame tank might well be usable as a GW Hellhound, but its still Ramshackles 'Flame Tank'.
Sure, their stuff can be used with GW. It might even have been designed specifically so that it could. But nothing about it treads directly on GW's toes. It most certainly isn't labelled 'Death Angel Doors', and placed in a category marked 'Space Marines Compatible'.
Just because they haven't gotten a C&D (yet) doesn't mean they won't end up in court.
I doubt that they would. GW simply does not overly care regarding the likes of HiTechminiatures. If a product comes up they're edgy about aesthetically, they sometimes demand that that product is removed. But I doubt that they would ever demand EVERYTHING removed for a single model that edges slightly over the line aesthetically. Why? Because that backs the owner into a corner. It makes it likely that they might resort to court if they can fund it. If its just one model? They'll just take it down. And that in turn keeps their stuff on the internet, not too visibly similar to GW product, and in no way openly affiliated with GW or what they perceive to be 'their' aesthetic. GW wins what they're after at the cost of a piece of paper, and the third party store is kept on a shelf where GW is comfortable with them being.
But CHS didn't just edge slightly over the line of GW's comfort zone, they ran across it Rambo style guns blazing. So GW, like fools, turned on the pressure hose, and expected him to wilt. If they were a little smarter, they would have sent him a little letter, telling him to remove a few products, and rename his webstore categories, and he probably would have done it, rather than sit in court. Unfortunately for them, they miscalculated.
They've yet to try this approach with anyone else, because nobody else has yet done a CHS. They haven't needed to. The other third party companies are all watching and waiting to see how this ends, and won't take any precipitate action until then. That's when we'll see if GW have learned the lesson or not.
Weeble in regards to fantasy: try a google search on TSR and their lawsuit history and you'll see that they established a similar trend to what GW is on right now. They had built up much of their product on the backs of pre-existing imagery and concepts, when they hit a certain mass they became the typical corporate giant that felt it was unassailable and could do what they wanted. They started believing all the various internal hype and self delusion and opted to start using copyright enforcement as their weapon against those who'd dare participate in using "their" game and products.
They sued a number of fan publications and even tried to claim a trademark on the word "dragon" in order to keep other fantasy authors from using it. Sounds a bit like a certain double headed imperial eagle claim to me...
Rather than concentrate on making a superior and engaging product they went on a crusade against their own fans, much like GW has been doing in recent years. The result is that the drove away enough players that their fan base crumbled and the company ended up in bankruptcy before being bought out by WOTC. There's a lot of very interesting comparisons between what TSR did and what GW is currently doing. They were once an industry defining company but now they've become a boated corporate dinosaur unaware of how they once achieved their success through being creative and innovative, as a result will be largely unable to maintain success as they've cut ties with all the things that originally generated their customer base.
An interesting note about TSR is that during their collapse years they were being headed by a board member with actual psychological problems and paranoia issues, I wonder what GW's excuse is?
The simple existence of a website being in operation it's not proof of anything, heck I can write up a list about 3 times as long of sites that offer directly recast GW product which certainly isn't legal or tolerated by GW but they are chugging along just fine and none of them have been sued yet. (much less shut down)
GW picked CHS because they saw a company that they disliked and thought they could bully into compliance, they didn't expect a full blown legal battle and as a result of this case it has stalled a lot of their planned efforts to go after other companies. how many C&Ds have been reported being issued on GW's behalf since this trial began? Even with a long list of known illegal recasters why hasn't there been another lawsuit filed by GW in the last three years? There were certainly quite a few floating before the trail, but not afterwards. Could it be that GW realized just how costly these battle are? Even with their size even a few dozen of these cases would easily sink GW. Did they discover that their castle moat strategy against the industry and their "rock solid IP" was unprotectable rubbish they stole from other sources?
I was wondering about that myself. If there are so many recasters out there and GW knows about them, why doesn't GW go after them instead? Wouldn't recasters of actual GW product cause more of a decline in sales because they are selling GW product at a lower price?
Why go after bitz makers who make product that for the most part requires GW product to be used?
I was wondering about that myself. If there are so many recasters out there and GW knows about them, why doesn't GW go after them instead? Wouldn't recasters of actual GW product cause more of a decline in sales because they are selling GW product at a lower price?
Why go after bitz makers who make product that for the most part requires GW product to be used?
Paulson exaggerates slightly, and leaves out the problem that most of these recasters are based in China or Russia. GW finds it very difficult to nail them legally as a result. Most of the recasts are resin as well, as opposed to plastic, which means that unless its Forgeworld, it doesn't tend to be substantially cheaper.
Third Party component companies on the other hand, are usually EU/US based, and run by hobbyists. This makes them legally attackable if they edge into GW's perceived comfort zone.
Paulson exaggerates slightly, and leaves out the problem that most of these recasters are based in China or Russia. GW finds it very difficult to nail them legally as a result. Most of the recasts are resin as well, as opposed to plastic, which means that unless its Forgeworld, it doesn't tend to be substantially cheaper.
There's plenty of recast product available from sources in the US and UK, "discountforgeworld" or "forgediscount" a s their banner reads is UK based. I don't know where you live that 30% isn't a large cost savings, especially with GW/FW pricing. There's a lot of sites if you know where to look, and I won't repost them here due to dakka's policy. I've been able to find plenty of stuff from US sources that range from 30-50% off what GW retails for, it may be resin but who cares? When you get into stuff from Russia and China you go even deeper to a 60-70% cut off retail. If I were Gw that's where I'd be aiming my gunsights at, rather than spend my time and resources fighting with small 3rd party stuff.
The point about 3rd party vendors is typically in order to use their stuff you first need GW items which in end helps sell more GW product. Where as recasters directly eat into your sales base and should be the top priority. It's also highly amusing that most of these recasters do a better job then GW themselves. Their items are much more professionally cast than any of the finecast products and are on par (or better) than most FW stuff as well.
When stuff like the Centurions are selling at $75 for 3 models do you think the average consumer is going to care about resin if they can get 3 models for $35? As long as the casting is decent plastic and resin all looks the same once it's painted. Nowdays the recasters are doing some quality work and it's not like it was 5 years ago.
I can only speak from personal experience I suppose, but I've only ever run across about five or six UK/EU based forgeworld recasters, as opposed to around fifteen Russian/Chinese based fellows. I've also seen GW nail just about all of the UK/EU ones. It takes them anywhere between three months and a year, and sometimes the people pop up again elsewhere, but GW does generally try and do something about recasters.
EDIT:- Upon further investigation, it appears that particular website you mention is based in Russia, Paulson.
weeble1000 wrote: Arguably GW hasn't sued anyone else because they couldn't afford to do so on account of the Chapterhouse case.
I would like to think that GW has learned its lesson. I can understand them fighting this appeal because the consequences for them failing are so potentially dire but I can also see GW being highly selective with its C&Ds from now on, possibly going so far as to only use them on people who actually deserve to receive them.
GW would be extremely foolish to create a repeat of the CHS fiasco, especially if it is in another legal jurisdiction such as the UK. Logic is not something that is commonly associated with GW's management of course.
That has a danger of becoming a circular argument. We cannot assume that GW will only be so clever as to fight cases they deserve to win, or to flip it, we cannot assume that GW is correct when it chooses to fight a case.
While we know now that GW's claims against CH were largely baseless, there was a large body of opinion to that effect before the case was heard.
If a similar case should come up in Britain, UK courts can take note of relevant decisions in US courts.
Paulson exaggerates slightly, and leaves out the problem that most of these recasters are based in China or Russia. GW finds it very difficult to nail them legally as a result.
A large number of the 3rd party companies are in Poland or other areas, where GW also apparently has difficulty enforcing their trademarks. Yet you plugged a number of them as examples of sites being "ok by GW" as long as they don't claim to be GW ties in. It's much more likely that they exists because they are in a location that's more difficult to enforce, opposed to having GW's unofficial blessing.
The FWdiscounter has their contact info is listed as being based in the UK (with a London area code phone number), not sure how to look up and verify where ISPs are actually located. I'm certainly not Dude Mc Clue: sleuth of the internets, I'm hardly tech savy and if I can find 2 dozen recaster sites just through google and word of mouth it means there are a lot more of them out there. (not to mention all the torret files for GW books)
paulson games wrote: Weeble in regards to fantasy: try a google search on TSR and their lawsuit history and you'll see that they established a similar trend to what GW is on right now. They had built up much of their product on the backs of pre-existing imagery and concepts, when they hit a certain mass they became the typical corporate giant that felt it was unassailable and could do what they wanted. They started believing all the various internal hype and self delusion and opted to start using copyright enforcement as their weapon against those who'd dare participate in using "their" game and products.
They sued a number of fan publications and even tried to claim a trademark on the word "dragon" in order to keep other fantasy authors from using it. Sounds a bit like a certain double headed imperial eagle claim to me...
Rather than concentrate on making a superior and engaging product they went on a crusade against their own fans, much like GW has been doing in recent years. The result is that the drove away enough players that their fan base crumbled and the company ended up in bankruptcy before being bought out by WOTC. There's a lot of very interesting comparisons between what TSR did and what GW is currently doing. They were once an industry defining company but now they've become a boated corporate dinosaur unaware of how they once achieved their success through being creative and innovative, as a result will be largely unable to maintain success as they've cut ties with all the things that originally generated their customer base.
An interesting note about TSR is that during their collapse years they were being headed by a board member with actual psychological problems and paranoia issues, I wonder what GW's excuse is?
Yea, I know that Jon. The comparisons are pretty startling. I think GW's excuse is being headed by a board member with actual psychological problems and paranois issues .
A large number of the 3rd party companies are in Poland or other areas, where GW also apparently has difficulty enforcing their trademarks. Yet you plugged a number of them as examples of sites being "ok by GW" as long as they don't claim to be GW ties in. It's much more likely that they exists because they are in a location that's more difficult to enforce, opposed to having GW's unofficial blessing.
There are a surprising number of third party companies in Poland, but far from the majority of them. So I'm afraid I'm going to have to disagree with you that being based in Poland is what protects them. Here's a list of UK/US ones, to illustrate just how many 3rd party companies operate without the dubious legal protection of being Polish:
Some pre-date CHS, some do not. But the only thing that separates the above companies from Chapterhouse, is that Chapterhouse very openly jumped on GW's perceived IP. The above ones have not, and whilst I know a few of them have received C&D's and removed products as a response, in none of those cases did GW try, or even want particularly to shut them down.
The FWdiscounter has their contact info is listed as being based in the UK (with a London area code phone number), not sure how to look up and verify where ISPs are actually located. I'm certainly not Dude Mc Clue: sleuth of the internets, I'm hardly tech savy and if I can find 2 dozen recaster sites just through google and word of mouth it means there are a lot more of them out there. (not to mention all the torret files for GW books)
I just did a spot of net sleuthing and browsed across three or four threads relating to them. From what I can gather, the actual models are produced and shipped from the Ukraine, and there's an ex-Forgeworld employee based in England who takes the orders and makes the arrangements. That would explain as to why they've managed to operate since 2011 though. Like you said, many of them do pop up and down, but they do tend to be based in inaccessible locations.
Also, Paulson? I got a little snarky a couple of posts back. Having a slightly bad day here, but I shouldn't take it out on you. Apologies.
Kilkrazy wrote: We cannot assume that GW will only be so clever as to fight cases they deserve to win, or to flip it, we cannot assume that GW is correct when it chooses to fight a case.
I never do, in fact I thought that most/all of the C&Ds that I have heard about over the years were effectively baseless, or at best weak. I just think that GW has seen the error in this pervious strategy of C&D carpet bombing and will now be much, much more selective.
A ruling in the US may have some weight in the UK but no where near the extent that a ruling in the UK courts would. If GW repeats its CHS experience in the UK then it will have been foolish in the extreme.
A ruling in the US may have some weight in the UK but no where near the extent that a ruling in the UK courts would. If GW repeats its CHS experience in the UK then it will have been foolish in the extreme.
Until they do so though, it does limit third party companies to the US somewhat.
Does the UK legal system allow for pro bono work in the same manner as the US system (at least in this case), would there be legal firms who would take on such pro bono work and would a UK court be likely to reach a similar verdict?
If the answer to all 3 of these is yes then all it would take is one bold company to push the boundaries and GW may be forced in to taking an action that it would later regret.
Palindrome wrote: Does the UK legal system allow for pro bono work in the same manner as the US system (at least in this case), would there be legal firms who would take on such pro bono work and would a UK court be likely to reach a similar verdict?
If the answer to all 3 of these is yes then all it would take is one bold company to push the boundaries and GW may be forced in to taking an action that it would later regret.
GW will never directly attack a company in the UK or EU with anything more the C&D's there's all ready been a ruling that toy soldiers can only be protected by design rights, this is why in the chapter house case GW refers to there products as collectors items and works of art rather than toy soldiers.
In fact I would guess that GW will never again refer to there products in public as toy soldiers or even game pieces and the cynic in me feels this might be the real reason that GW no longer consider themselves as a games company.
I obviously can't say how that would go over in a UK court, but over here in 'proper' Europe any half-decent attorney will have a field day on them if they ever try that argument in court. Now I know (from experience, by now...) that some of our good friends (not to say utter idiots ) of the MBA-variety have a tendency to regard their legal departments as the wizards who can tell them just what magic spell to pronounce, only then to figure that "hey, we can think of those ourselves, thus saving us the costs of actually having a competent legal department!", which might explain how they got to the conclusion you suspect - but it doesn't stand the most cursory of giggle tests, IMHO.
In Germany, such a lawsuit would have never started before GW could prove they actually own the IP they claim (and before they state what they actually claim). Such "just punish them without asking me why" lawsuits are rejected by the court before they even start.
SeanDrake wrote: In fact I would guess that GW will never again refer to there products in public as toy soldiers or even game pieces and the cynic in me feels this might be the real reason that GW no longer consider themselves as a games company.
If only they could change their name to Art Workshop for the duration of the lawsuit
I was wondering about that myself. If there are so many recasters out there and GW knows about them, why doesn't GW go after them instead? Wouldn't recasters of actual GW product cause more of a decline in sales because they are selling GW product at a lower price?
Why go after bitz makers who make product that for the most part requires GW product to be used?
Paulson exaggerates slightly, and leaves out the problem that most of these recasters are based in China or Russia. GW finds it very difficult to nail them legally as a result. Most of the recasts are resin as well, as opposed to plastic, which means that unless its Forgeworld, it doesn't tend to be substantially cheaper.
Third Party component companies on the other hand, are usually EU/US based, and run by hobbyists. This makes them legally attackable if they edge into GW's perceived comfort zone.
ahhh.... the IP fraud, i like how companies keep pushing with this, if they keep this fraud going, eventually all databanks and stuff like this is going to en up in China and then who is going to enforce their IP shenanigans.
Kroothawk wrote: In Germany, such a lawsuit would have never started before GW could prove they actually own the IP they claim (and before they state what they actually claim). Such "just punish them without asking me why" lawsuits are rejected by the court before they even start.
SeanDrake wrote: In fact I would guess that GW will never again refer to there products in public as toy soldiers or even game pieces and the cynic in me feels this might be the real reason that GW no longer consider themselves as a games company.
If only they could change their name to Art Workshop for the duration of the lawsuit
Sorry, but that's flat-out untrue. Actually, there's a more robust way to dismiss unfounded claims in the US than in continental European systems (and the Dutch and German systems are so similar in this regard I'm pretty comfortable speaking for both as long as we're not delving into the real nitpicky details) and an allegation being unfounded would be handled at the end of the trial, not the start; we don't have much of a motion (or other mechanism) to dismiss other than for lack of jurisdiction (i.e. "please bring your claim in the right venue").
Easier to defend? Might well be. For all the good something like the US's broad discovery system does, it is an exquisite tool for making a small defendant incur costs he cannot possibly bear. Not having that is, in such cases, a good thing (and before weeble brings his hammer down on me again, I'm just saying in this very specific situation ).
However, I'm guessing you get your impression of the differences between the American and (continental!) European legal systems mostly from the telly (sorry...); which, TBH, isn't the best of sources in these matters.
Bolognesus wrote: For all the good something like the US's broad discovery system does, it is an exquisite tool for making a small defendant incur costs he cannot possibly bear. Not having that is, in such cases, a good thing (and before weeble brings his hammer down on me again, I'm just saying in this very specific situation ).
My hammer is mostly reserved for criticisms of the American jury system . I think there's been a prevailing idea that places like Germany and Poland have stronger protections for the author of a work, but that's a door that swings both ways. Judge Kennelly's view of ownership was basically, "If Merrett says they own the work, that's good enough for me. Feel free to prove otherwise..." Then having taken that position he pretty much ignored the Gary Chalk issue after GW dropped the Mantis Warriors claim in order to "simplify" the case. Yea, simplify your way out of a sanction and a malicious litigation counterclaim.
The issue was raised in a motion to compel and for sanctions, I believe. It burns me up a bit that Chapterhouse Studios could, on a pro bono case working thousands of hours of discovery across two continents, actually uncover a circumstance in which the plaintiff A) did not have any documentation to prove ownership of a work B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request), and C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information, only to have the Court do nothing about it merely because the plaintiff conveniently decided to drop that claim as soon as the motion was filed.
If that had been the ONLY claim in the case, I think it is very probable that GW would have been sanctioned, the claim would have been dismissed, and GW would have been shelling out attorneys fees in a malicious litigation counterclaim.
It is rare to catch a plaintiff red handed. Chapterhouse caught Games Workshop red handed several times, and only managed to get one personal sanction for discovery abuse to the tune of twelve hundred dollars. If anyone wants to point fingers at the American judicial system, there's a place ripe for pointing.
Kilkrazy wrote: Is that a core feature of the US system, or a reflection on the judge in this particular case?
I mean if judges were required to ignore things that the plaintiffs drop, then there was nothing he could do.
Judges can mostly do what you ask them to do. I believe the Gary Chalk issue was part of a motion to compel and for sanctions that was denied by Judge Kennelly, but I'd have to consult the record to make double sure that is correct. In any case, the fact that we KNOW about it means it was raised before the Judge in some context or another, and I don't think it was a motion for summary judgment, but it could have been in that context as opposed to a motion to compel and/or a motion for sanctions. There were aplenty of them that Judge Kennelly denied like he was playing whack-a-motion.
Bolognesus wrote: For all the good something like the US's broad discovery system does, it is an exquisite tool for making a small defendant incur costs he cannot possibly bear. Not having that is, in such cases, a good thing (and before weeble brings his hammer down on me again, I'm just saying in this very specific situation ).
My hammer is mostly reserved for criticisms of the American jury system . I think there's been a prevailing idea that places like Germany and Poland have stronger protections for the author of a work, but that's a door that swings both ways. Judge Kennelly's view of ownership was basically, "If Merrett says they own the work, that's good enough for me. Feel free to prove otherwise..." Then having taken that position he pretty much ignored the Gary Chalk issue after GW dropped the Mantis Warriors claim in order to "simplify" the case. Yea, simplify your way out of a sanction and a malicious litigation counterclaim.
The issue was raised in a motion to compel and for sanctions, I believe. It burns me up a bit that Chapterhouse Studios could, on a pro bono case working thousands of hours of discovery across two continents, actually uncover a circumstance in which the plaintiff A) did not have any documentation to prove ownership of a work B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request), and C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information, only to have the Court do nothing about it merely because the plaintiff conveniently decided to drop that claim as soon as the motion was filed.
If that had been the ONLY claim in the case, I think it is very probable that GW would have been sanctioned, the claim would have been dismissed, and GW would have been shelling out attorneys fees in a malicious litigation counterclaim.
It is rare to catch a plaintiff red handed. Chapterhouse caught Games Workshop red handed several times, and only managed to get one personal sanction for discovery abuse to the tune of twelve hundred dollars. If anyone wants to point fingers at the American judicial system, there's a place ripe for pointing.
...Heh. That probably explains why I distinctly remember getting into a bit of a comparative civpro tiff with you a while ago, even if I haven't a clue about what exactly anymore Might have been me arguing that trained lawyers have it hard enough with complicated IP issues, so getting untrained average joes to give it a shot has a worse chance than a magic eight-ball - but I digress.
You're right, though. The fact that big players get away with a lot of gak because smaller parties simply don't have the means to uncover the morally dubious behaviour sufficiently is bad enough, but it's an almost inevitable result of us having to eat as well - but seeing them get away with this when caught red-handed is infuriating. Really, I'd be okay with the client in such cases 'getting away with it' more or less - but there should be *severe* sanctions for any attorney unethical enough to participate in such gak - And they should actually be imposed whenever one is caught in something like this.
As to Kilkrazy's question - it looks like a matter of trimming the docket: "Ah, at least something those f*(*&ers are finally dropping". Judicial efficiency is probably what he'd call it. Core feature of the US system? Certainly not. If anything, "expediency" and the like are taking to a much more frightening extent over here (I have a corker of an article of the then president of our supreme court arguing that, yes, American lawyers find our system of evidence scarily callous about completeness, but we do well enough and at least we're very efficient and cheap about it all. That one could probably make every hair on your body stand straight up ).
Of course as soon as a claim is brought the judge in that matter can bring the hammer of inherent authority down as if it were Mjollnir itself - getting one to do so however, it seems to me (especially in the US, but what I see of American litigation of course tends to be where gak goes real bad, not so much the day to day stuff!) is another matter entirely. Mostly, our noble colleagues on the other side of the bench tend to contend themselves with a feeling that, hey, at least it didn't *actually* go wrong (this time...).
TL;DR: effective (though certainly not admitted) feature of an actual court system anywhere in the western world, in practice. Given the laxity in enforcing some rules of professional conduct on attorneys at times, frankly I'm surprised we're all still doing this well.
How, specifically? In the end, AFAIK (again, not trained in the US...) it's the guy actually committing perjury getting dinged for that.
A meritless claim isn't usually immediately perjurious, though. First of all there's plenty of other ethical rules to deal with that and secondly, a lot of their completely ungrounded claims were based either on ridiculous legal theories ("we can own the concept of a skull") or were actual mistakes, seemingly ("F*ck, are you telling me we never actually acquired the rights to that?"). Neither classifies as perjury.
If there's one thing I recall at least coming close it's Moskin's (trivially sanctioned) blunder - but that's not even a director, authorized rep or assign or whatever of the company - that was their attorney. Furthermore, it seems like the kind of thing any half-way decent sleazeball attorney pulls without informing his client.
A) did not have any documentation to prove ownership of a work
B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request),
C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information,
GW was caught lying in court? Or was it their lawyer?
MagickalMemories wrote: I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
Eric
Hard to say either way - because it was never on the table. (Sort of like wondering if the ACW would have happened if the Confederates hadn't fired on Fort Sumter, we will never know, because they did....)
The Auld Grump
All I have to say about this is that if you've never been sued; if you've never faced a lawsuit threatening your livelihood that goes on year after year after year, you can at least try to imagine what that is like.
Even with pro-bono representation the stress is monumental. Hell, remember what Paulson said, and he was out of the case quickly in comparison to Chapterhouse. We know that Nick testified to earning a salary of 3K per month from Chapterhouse Studios, and that total revenue for more than four years of sales, revenue mind you, was barely more than $400,000.00.
If that was you, and someone offered you half a million dollars in cash, right now, to close your business...would you stand on principle? Would you turn that down knowing that even if you stuck through years more litigation and had to sit through a trial in which you would be openly called a thief, you might still lose your whole business anyway?
We have no idea what happened behind the scenes, but there are glimpses in the public record. For example, Judge Gilbert intimated that GW viewed the case as a zero sum game and Jonathan Moskin said that a license was a non-starter. We know the parties could not work out a settlement in multiple pre and post trial efforts. We know that the Court felt that the parties had great difficulty communicating. And we know that Jonathan E Moskin was sanctioned in this case for withholding discoverable documents and sanctioned in a previous case for being deliberately misleading in settlement negotiations. We also know that Moskin swore in an affidavit that he hung up in the middle of a meet and confer over a quip expressing doubt about the veracity of his assurances as to document production in a case in which his firm was sanctioned for requiring opposing counsel to file repeated motions to compel discovery.
Those are all straight up facts well documented in the public record that have been discussed many times in this thread.
My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving.
That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.
MagickalMemories wrote: I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
Eric
Hard to say either way - because it was never on the table. (Sort of like wondering if the ACW would have happened if the Confederates hadn't fired on Fort Sumter, we will never know, because they did....)
The Auld Grump
All I have to say about this is that if you've never been sued; if you've never faced a lawsuit threatening your livelihood that goes on year after year after year, you can at least try to imagine what that is like.
Even with pro-bono representation the stress is monumental. Hell, remember what Paulson said, and he was out of the case quickly in comparison to Chapterhouse. We know that Nick testified to earning a salary of 3K per month from Chapterhouse Studios, and that total revenue for more than four years of sales, revenue mind you, was barely more than $400,000.00.
If that was you, and someone offered you half a million dollars in cash, right now, to close your business...would you stand on principle? Would you turn that down knowing that even if you stuck through years more litigation and had to sit through a trial in which you would be openly called a thief, you might still lose your whole business anyway?
We have no idea what happened behind the scenes, but there are glimpses in the public record. For example, Judge Gilbert intimated that GW viewed the case as a zero sum game and Jonathan Moskin said that a license was a non-starter. We know the parties could not work out a settlement in multiple pre and post trial efforts. We know that the Court felt that the parties had great difficulty communicating. And we know that Jonathan E Moskin was sanctioned in this case for withholding discoverable documents and sanctioned in a previous case for being deliberately misleading in settlement negotiations. We also know that Moskin swore in an affidavit that he hung up in the middle of a meet and confer over a quip expressing doubt about the veracity of his assurances as to document production in a case in which his firm was sanctioned for requiring opposing counsel to file repeated motions to compel discovery.
Those are all straight up facts well documented in the public record that have been discussed many times in this thread.
My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving.
That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.
Eric
A fair enough point to say "GW COULD have tried to buy them for less."
I maintain that if GW offered Nick 500k up front to shut down and move on, and without knowing him personally, he likely would have accepted such an offer. At that price it would have been 13 years of what he was taking home from CHS sales. I'd be hard pressed to find someone who is willing to pass up that money just on principle.
I agree with Kroot that our system doesn't work well when people can say "I own X" and the judge then tells the defendant to prove otherwise. One would think that the court would say "prove you own X and we'll proceed with this" before even requiring the defendant to respond.
A) did not have any documentation to prove ownership of a work
B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request),
C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information,
GW was caught lying in court? Or was it their lawyer?
A) not having documentation to prove ownership is at most failure to (sufficiently, would this be required under plausibility pleading?) state a claim upon which relief can be granted. Grounds for dismissal, but hardly perjury. Generally, I'd say it's simply "not meeting your burden of evidence". Again, not unethical per se. Incompetent, yup. But that's not perjury.
B) I don't think dragging your feet / insufficiently cooperating in discovery is perjury per se. Additionally, I seem to remember that it's the attorney certifying that a discovery request has been met in some way, not the client. (Again, little more than anecdotal formal training w.r.t. US civpro)
C) Again, I think that one's on the attorney for procedural reasons. Too busy to look it up though, I'm sure either Weeble, Sean or Czakk will correct me harshly if I misremember here (as an aside, a proper lv.20 sleazeball can find a way or two to make this just-not-quite-actually-subject-to-sanctions-perjury, I'm guessing. Not that I'm attributing any kind of competence to GW's attorneys atm, but just saying )
A) did not have any documentation to prove ownership of a work
B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request),
C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information,
GW was caught lying in court? Or was it their lawyer?
Opsies. That's the typical response. A lie requires intent. For example, malicious litigation is a state of mind issue. Did you believe, at the time you filed that claim, that it was without merit? Thus, it is a very high bar and difficult to prove. You will note that Judge Kennelly said in his sanction that Jonathan E Moskin "deliberately or at least recklessly" withheld discoverable documents. So the judge in essence felt that it was possibly, perhaps even more likely than not, deliberate on the part of Mr. Moskin, but that it could have conceivably been a mistake committed due to some sort of reckless indifference to one's responsibilities.
This is why I feel, similar to Bolognesus, that if you actually get caught red handed, the punishment should be both swift and severe. If you got caught red handed once, you have probably been doing it a lot. Mr. Moskin, for example, has been personally sanctioned before in a case replete with failures on the part of his firm to live up to discovery obligations, or so the Court felt when it issued a 10K sanction for requiring opposing counsel to file repeated motions to compel that were granted by the Court. However, if you look at the docket of the E&J Gallo Winery v Cantine Rallo case you will notice that it took a looooooong time for the Court to get around to imposing a sanction, and there were many motions to compel that were denied by the Court. If you read Moskin's affadavits in that case, you will also note a tone of obsequiousness and righteous indignation very similar to the tone he employed in the Chapterhouse case when dealing with the Court. Why it works I will never understand, but it apparently does. The judge in the Gallo v Rallo case at least eventually realized who the bad actors were.
But, most lawyers are honest, mistakes do happen innocently, and sanctions from a Court can be career-ending. So Judges, who were often once lawyers of one sort or another, tend to be reluctant to go very far. Thus you have a system that can be taken advantage of by unscrupulous individuals. Again, this is why I think that when a lawyer actually gets caught having done something deliberately, the penalties should be swift and severe.
My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving.
That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.
Eric
Sure, but what is most likely? We just don't know what happened, but you can make inferences as to what is more or less likely. Put yourself in that position. You can't really do that, but you can try and maybe get to something approximating the state of mind. Someone offers you half a million dollars to swallow your pride and fold up a business that is making you $36,000.00 per year. You have pro-bono counsel spending a LOT of their own money on your behalf; money they wouldn't have to keep spending if you took a payout. Again, we have no idea an offer from GW ever occurred, nor do we really know what Chapterhouse would have done. But you can infer what most people would probably have done.
weeble1000 wrote: But, most lawyers are honest, mistakes do happen innocently, and sanctions from a Court can be career-ending. So Judges, who were often once lawyers of one sort or another, tend to be reluctant to go very far. Thus you have a system that can be taken advantage of by unscrupulous individuals. Again, this is why I think that when a lawyer actually gets caught having done something deliberately, the penalties should be swift and severe.
From what I've experienced so far, though, the average lawyer's gossip round has the entire community of British tabloid editors looking like a bunch of baby-faced amateurs in this regard. Everyone **knows** who the sleazeballs are. Every judge **knows** which attorney has a habit of not-quite-entirely making up anything he feels he can comfortably get away with if it helps him win a case (with less effort, while still billing at least as many hours. Which of course no one will ever quite prove). A lot can be said but there's not too many idiots in these circles (at least in that regard. Try to explain high-school level chemistry to them and watch them try to retell it to a judge -- and cry in despair. But I digress). The point is, we all know what sleazeball just never quite got caught yet. I just have a feeling that especially judges can be too reluctant in referring matters based on such knowledge. Of course you shouldn't issue a verdict (or grant a motion) on such feelings - but this is a referral for further, proper, investigation. They forget that. That, and however much they can be hard and righteous in an unknown party's cause - once their own circles are involved (and let's face it, the professional community often stops just short of actual inbreeding in that regard ), they don't want to be the bad guy. Can't quite prove that, of course.
This is why I feel, similar to Bolognesus, that if you actually get caught red handed, the punishment should be both swift and severe. If you got caught red handed once, you have probably been doing it a lot. Mr. Moskin, for example, has been personally sanctioned before in a case replete with failures on the part of his firm to live up to discovery obligations, or so the Court felt when it issued a 10K sanction for requiring opposing counsel to file repeated motions to compel that were granted by the Court. However, if you look at the docket of the E&J Gallo Winery v Cantine Rallo case you will notice that it took a looooooong time for the Court to get around to imposing a sanction, and there were many motions to compel that were denied by the Court. If you read Moskin's affadavits in that case, you will also note a tone of obsequiousness and righteous indignation very similar to the tone he employed in the Chapterhouse case when dealing with the Court. Why it works I will never understand, but it apparently does. The judge in the Gallo v Rallo case at least eventually realized who the bad actors were.
A part of being a highly unpleasant person and an attorney at the same time (contrary to popular belief, folks, this is optional ) seems to be the capacity to be unpleasant in just such a way as to accomplish what you need. Everyone will hate you, but not quite say no. This is compounded by a tendency (for judges especially!) to not want to let one's feelings for an attorney of particularly odious character prejudice his or her's client's case. It's a sort of even-handedness, almost. "Hey, I F***ing hate the lad, but I'm granting the motion so at least it balances out. I've seen studies (can't find them right now, but you're a jury consultant, right? I'm sure you know more about this than I do - again, I'm glad not to have to deal with a panel of twelve idiots after graduation ever, ever again ) which (sort of, wasn't the strongest correlation ever) showed that a person trying to be fair actually 'gives' more to the obnoxious idiot than to a decent guy, simply because they were afraid of letting the obnoxious idiot's character prejudice their "fair" judgment. Can't help but feel that this is the response such attorneys prey on.
Swift and severe is one thing - I'd add very, very public to that. In the (sadly not as unlikely as it should be) case the ethics board stops short of disbarring the attorney, I'd like his name to get properly tarred at least. Let people know who they're dealing with. I'm not usually in favour of public shaming but unethical attorneys somehow evoke a very, very vindictive response in me.
My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving. That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.
Eric
Sure, but what is most likely? We just don't know what happened, but you can make inferences as to what is more or less likely. Put yourself in that position. You can't really do that, but you can try and maybe get to something approximating the state of mind. Someone offers you half a million dollars to swallow your pride and fold up a business that is making you $36,000.00 per year. You have pro-bono counsel spending a LOT of their own money on your behalf; money they wouldn't have to keep spending if you took a payout. Again, we have no idea an offer from GW ever occurred, nor do we really know what Chapterhouse would have done. But you can infer what most people would probably have done.
He has kids, right? Pretty sure what he'd have done. I've seen the cost of going to college around those parts and I'm still reeling
MagickalMemories wrote: I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.
Eric
Hard to say either way - because it was never on the table. (Sort of like wondering if the ACW would have happened if the Confederates hadn't fired on Fort Sumter, we will never know, because they did....)
The Auld Grump
All I have to say about this is that if you've never been sued; if you've never faced a lawsuit threatening your livelihood that goes on year after year after year, you can at least try to imagine what that is like.
Even with pro-bono representation the stress is monumental. Hell, remember what Paulson said, and he was out of the case quickly in comparison to Chapterhouse. We know that Nick testified to earning a salary of 3K per month from Chapterhouse Studios, and that total revenue for more than four years of sales, revenue mind you, was barely more than $400,000.00.
If that was you, and someone offered you half a million dollars in cash, right now, to close your business...would you stand on principle? Would you turn that down knowing that even if you stuck through years more litigation and had to sit through a trial in which you would be openly called a thief, you might still lose your whole business anyway?
We have no idea what happened behind the scenes, but there are glimpses in the public record. For example, Judge Gilbert intimated that GW viewed the case as a zero sum game and Jonathan Moskin said that a license was a non-starter. We know the parties could not work out a settlement in multiple pre and post trial efforts. We know that the Court felt that the parties had great difficulty communicating. And we know that Jonathan E Moskin was sanctioned in this case for withholding discoverable documents and sanctioned in a previous case for being deliberately misleading in settlement negotiations. We also know that Moskin swore in an affidavit that he hung up in the middle of a meet and confer over a quip expressing doubt about the veracity of his assurances as to document production in a case in which his firm was sanctioned for requiring opposing counsel to file repeated motions to compel discovery.
Those are all straight up facts well documented in the public record that have been discussed many times in this thread.
My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving.
That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.
Eric
A fair enough point to say "GW COULD have tried to buy them for less."
I maintain that if GW offered Nick 500k up front to shut down and move on, and without knowing him personally, he likely would have accepted such an offer. At that price it would have been 13 years of what he was taking home from CHS sales. I'd be hard pressed to find someone who is willing to pass up that money just on principle.
I agree with Kroot that our system doesn't work well when people can say "I own X" and the judge then tells the defendant to prove otherwise. One would think that the court would say "prove you own X and we'll proceed with this" before even requiring the defendant to respond.
The COULD I will grant you - but instead they went in with guns blazing, only to discover that they had loaded up with the wrong ammunition, and that Chapterhouse was in an improved position.
That is why I make the comparison with Fort Sumter - the South fully expected to win (we have the better generals!) and fully expected the war to be over quickly - that the Union would back down rather than face a prolonged war.
Instead the war was long, and the CSA lost. (Good generals could not make up for the difference in industrial capacity - and the generals were not as much better than the Union generals as they thought.)
GW thought that they had the better lawyers, and that Chapterhouse would close shop rather than face a prolonged legal battle.
And, like the CSA, they were wrong, and like the CSA, GW lost, after a long and expensive campaign.
Personally... If GW had made a similar offer to me to, oh, stop painting GW miniatures for commission, say, then I would take the money and never paint another GW miniature for as long as I lived.
It would be money in hand versus the possibility of money in the future vs. a long legal battle while GW tried to pull the brush out of my nervously twitching fingers.
And unless I had pro bono representation as Chapterhouse did then I would give up the brush, and take up scrapbooking or something.
Chapterhouse was damned lucky to get pro bono representation - without that representation it is almost certain that they would have folded, regardless of how meritless the case against them was. (In my opinion the case was pretty damned meritless - even before it was revealed that GW hadn't even bothered to register much of the IP to begin with....)
At some point GW should have pulled back and made an offer - but they were beset by the sin of hubris, from which the angels fall.
Sure, but what is most likely? We just don't know what happened, but you can make inferences as to what is more or less likely. Put yourself in that position. You can't really do that, but you can try and maybe get to something approximating the state of mind. Someone offers you half a million dollars to swallow your pride and fold up a business that is making you $36,000.00 per year. You have pro-bono counsel spending a LOT of their own money on your behalf; money they wouldn't have to keep spending if you took a payout. Again, we have no idea an offer from GW ever occurred, nor do we really know what Chapterhouse would have done. But you can infer what most people would probably have done.
Putting myself in his position... I'd tell them to stuff it.
If I started a business like that, doing something I had a passion for, and presuming I still had that passion -which I think is a fair presumption, since he chose to fight, rather than slip silently into the night- then I don't want to be bought or bullied into submission. My passion and self respect are worth more than that to me.
In all honesty, I would not like looking myself in the mirror.
Now, if there was no clause prohibiting me from turning around and opening another similar business (like GW would've left that door open), then it's a different story.
czakk wrote: Two new filings, court ordered settlement conference and an extended briefing timeline as a result.
I want to make sure I'm following this correctly.
There was one (or maybe more) court ordered pretrial settlement conferences, which at least made sense to me and can serve the purpose of reducing case load & conserving court resources.
After those failed we had the trial and then the jury verdict,after which the judge ordered another settlement conference.
The judge then rendered the official verdict, took post trial motions and has now ordered yet another settlement conference?
Is this even normal after the verdict has been delivered since the case should be done for him after the verdict?
Different court - this is the appeals court mandating a settlement hearing now.
CIRCUIT RULE 33. Prehearing Conference
At the conference the court may, among other things, examine its jurisdiction, simplify and define issues, consolidate cases, establish the briefing schedule, set limitations on the length of briefs, and explore the possibility of settlement.
czakk wrote: Different court - this is the appeals court mandating a settlement hearing now.
RULE 33. APPEAL CONFERENCES
The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.
That's the rule under which the conference has been ordered by the appellate court. One will note that the order came down from the "Conference Committee" or some such at the 7th Circuit Court of Appeals, so what is probably going on is a 'standard' court mandated settlement conference after the initiation of proceedings. I am not terribly familiar with appellate procedure, as that's not really my bailiwick, and I don't know whether the 7th Circuit Court of Appeals does this with every new case, but it seems like that is probably what is going on.
wildger wrote: I have no desire to go through 205 pages. Can anyone summarize the verdict for me? Thanks.
In short?
No.
There has only been a preliminary verdict from trial, as that is going through the appeals process. Factoring the number of claims that didn't even make it to court, CHS won on approximately 2/3-3/4 of the claims GW made. There's a whiff of arbitrariness about the jury rulings though, and with the new law firm on board, that may well go up under appeal.
wildger wrote: I have no desire to go through 205 pages. Can anyone summarize the verdict for me? Thanks.
In short?
No.
There has only been a preliminary verdict from trial, as that is going through the appeals process. Factoring the number of claims that didn't even make it to court, CHS won on approximately 2/3-3/4 of the claims GW made. There's a whiff of arbitrariness about the jury rulings though, and with the new law firm on board, that may well go up under appeal.
Judgment has been entered Az. The jury verdict was accepted as is by the trial Judge.
Here is the judgement. It was broken into 5 different documents for some reason.
In a nutshell, considering the entire case, Chapterhouse Studios prevailed on over 70% of the asserted claims.
This is from Chapterhouse's opposition to GW's motion for 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.” 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.
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. (Judgment, Dkt. No. 403-1 at 1.) 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. See Ex. C, Pl.’s Second Supplemental Resp. to Def.’s Interrogs. Set Four (listing asserted marks); Ex. D, Pl.’s Fourth Supplemental Resp. to Def.’s Interrogs. Set Four (same). But only 92 trademarks remained for trial. Of these, Chapterhouse won on 54. (Judgment at 1.) And Chapterhouse won summary judgment on GW’s federal and state dilution claims.
Chapterhouse was found to not infringe any of GW's registered marks, including: Space Marine, Eldar, Tyranid, Tau, Warhammer, Warhammer 40,000, and Warhammer 40K.
Chapterhouse was found to infringe various marks, mostly those found to be valid and in use in commerce by Judge Kennelly, and marks that were used without qualifiers. "Space Wolf Rhino Doors" infringed, "Mycetic Spore Pod" infringed, etc. In terms of copyright, Chapterhouse mostly lost on whole models, such as the Dark Elf Arch Torturess and the Doomseer. Chapterhouse did not lose on the Lizard Ogre. Chapterhouse did not lose on the Heresy-era shoulder pads, either in terms of copyright or trademark. Chapterhouse did lose on the Tervigon Conversion Kit. Chapterhouse did not lose on the Storm Raven and Razorback weapon options.
Those are just a few examples.
Games Workshop was awarded $25,000.00 in damages, which is precisely what Games Workshop asked the jury for in closing arguments, after Chapterhouse had no ability to respond and with absolutely no direct testimonial support from the trial. The number $25,000.00 had never been spoken by a living soul in the courtroom until it came out of the mouth of Jonathan E. Moskin in closing arguments. I emphasize those facts because otherwise the number might seem really, really odd. Because the jury was not required to parse out how it determined damages on the verdict form, there's really no way to know how that number was arrived at mathematically.
Does that help?
By the way, in looking over the opposition to GW's motion for costs just now, I noticed this little gem. Take a look at that. Folks have been going round and round trying to figure out where this whole lawsuit started. Well, there it is. Read the email chain. It is enlightening.
czakk wrote: Different court - this is the appeals court mandating a settlement hearing now.
RULE 33. APPEAL CONFERENCES
The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.
That's the rule under which the conference has been ordered by the appellate court. One will note that the order came down from the "Conference Committee" or some such at the 7th Circuit Court of Appeals, so what is probably going on is a 'standard' court mandated settlement conference after the initiation of proceedings. I am not terribly familiar with appellate procedure, as that's not really my bailiwick, and I don't know whether the 7th Circuit Court of Appeals does this with every new case, but it seems like that is probably what is going on.
I'm on my phone, but there is a brief summary attached. There is a better longer explanation of the history of rule 33 but I don't have it on hand.
Yeah, sorry, being a layperson I more meant by preliminary in that it isn't settled yet due to the appeal and could change, rather than the actual, correct use of the term!
azreal13 wrote: Yeah, sorry, being a layperson I more meant by preliminary in that it isn't settled yet due to the appeal and could change, rather than the actual, correct use of the term!
Yeah, the final judgment is out and in effect but it could be overturned in whole or part as a result of the appeal. The trial decision was not stayed (delayed or paused from going into effect) other than the destruction of the molds, which are being kept by Winston and Strawn currently.
After reading that e-mail exchange, Mr. Moskin sounds like someone with whom I would not willingly associate on a social basis.
(That's the most polite way I can describe the impression I get from his tone on those e-mails.)
I love how he asks Mr. Villacci to turn over financial records when he knows the guy does not yet have proper legal counsel. That's classy.
'Hey, since you have no idea what is going on here, why don't you turn over discoverable documents to me. That would totally help to get this thing settled out.'
jonolikespie wrote: Would it be too much to ask for someone to post what was in those emails for the workblocked?
I've attached the pdf.
It is nothing earth shattering. Bit of back and forth between Moskin and Villacci. Villacci asks what terms GW might be willing to settle on. Moskin reminds Villacci he should talk to an attorney, tells Villacci he'll discuss any offer he makes with his client (GW) but says any settlement is going to depend on an evaluation of CHS's sales numbers of infringing product. He asks Villacci for those numbers, which he is allowed to do.
We appear to be missing at least one email in the chain (Dec 22).
czakk wrote: Bit of back and forth between Moskin and Villacci. Villacci asks what terms GW might be willing to settle on. Moskin reminds Villacci he should talk to an attorney, tells Villacci he'll discuss any offer he makes with his client (GW) but says any settlement is going to depend on an evaluation of CHS's sales numbers of infringing product. He asks Villacci for those numbers, which he is allowed to do.
Which he is...sort of...allowed to do. Most attorneys I know would have advised Mr. Villacci to get representation and held off any additional contact until such time as he had engaged representation.
When an attorney is communicating with an unrepresented party regarding litigation, there's an inherent disparity in sophistication, i.e. the non-lawyer does not know as much about the laws, rules, procedures, etc. as the lawyer. Thus the lawyer is in a position to take advantage of the party without representation. Just by saying anything other than, 'you should get yourself a lawyer' the attorney has strayed into treacherous water.
What you have in that email exchange appears to be a lawyer, Mr. Moskin, communicating with a party that he knows does not have representation, highlighting the unrepresented party's ignorance of the law, asking him to provide discoverable documents that would enable Mr. Moskin's client to establish potential damages, and saying that he, the lawyer, cannot see any way to resolve the matter without getting everything, up front, that his client could possibly get at trial.
I haven't worked with a single lawyer that would do such a thing. Just because you can get a 10 year old's lollipop by asking for it doesn't mean you didn't just steal candy from a baby.
He's doing it about a single paragraph after advising him to get some proper professional advice, and in response to a suggestion from Villaci that he might want to discuss working something out without getting an attorney involved on his part.
It's a very sleazy thing to do per se, but if an unrepresented party expresses an interest in trying to settle matters without counsel, without being prompted to do so, at some point it does cease to be your problem. After all, you have a client's interests to keep in mind as well and again, Villaci indicated he'd rather discuss matters further without counsel.
Furthermore, he could have gone for it in a much sleazier way.
I'm not sure here. I certainly wouldn't do something like that myself (unless dealing with a clearly pro se litigant for a protracted period of time already - at some point, it just becomes their problem, not yours anymore - ) but I would argue there's more than a few mitigating factors here as well.
My first instinct with Moskin, by now, is to look for sleaziness and I was going for this one at first, too - but in this case I'd say it's a bit more of a judgment call.
What would have been better is to advise Nick to seek council, again, in that specific context - but asking the question itself is acceptable, IMO.
Furthermore (and I'll admit that what little formal education I've had w.r.t. discovery as in the U.S. amounts to just that - very little), with a bunch of infringement claims which could at least withstand a 12(b)6 motion (and at that point, many of them certainly still could!), getting sales figures for allegedly infringing products is one of the safest discovery requests possible, right? From what I can see there isn't a snowball's chance in Hell that that information could not be obtained as soon as discovery took off properly.
Asking for something you'll pretty much guaranteedly get in discovery anyway is a lot less sleazy than asking for stuff which has a pretty decent chance of not being obtainable through discovery.
Let's face it, if you forget about their general litigation strategy and dubious claims (which is simply an entirely different issue), not wanting to settle without seeing sales figures is basically the kind of advice you'd give a client in any similar case, unless a stellar amount were offered (and that, again, could just make you wonder...). Since GW was intent on litigating the matter, it's information that they would have gotten anyway. Sorry weeble, I can see a lot of deplorable behaviour in the record as a whole, but the more I think about this issue, the more of a non-issue it feels like.
Again, if I'm making grave mistakes w.r.t. likely scope of discovery, feel free to correct this poor furriner
Again, we are missing the earlier email where Moskin apparently laid out GWs position and told Villacci to get a lawyer for the first time, but, even in the email where he asked for documents he'd be well onside of the legal ethics rules for dealing with unrepresented persons up here, the main issue is always making sure you tell the other side to get a lawyer and that you aren't their lawyer or working for them.
To me, asking for the discoverable documentation wasn't the most indicative thing about Moskin's and GW's attitude.
Look at his last correspondence. He is communicating with someone who is exploring opportunities for a settlement. His response is to say that everything on CHS's website infringes upon GW's IP and, "we candidly do not know how to resolve this matter without your agreement to cease all such sales." He then goes on to say, "my client and I are disappointed that you have declined the offer."
GW's entire position from the get go was to have CHS stop selling 100% of it items on their website. They weren't interested in any sort of settlement from the very beginning.
Anyone who tries to spin that GW "won" this case in any manner have no understanding of what GW's goal was in bringing the suit.
To be clear, I'm not saying Jonathan Moskin crossed a line here. What I'm saying is that for any lawyer, that type of communication is murky water at best. You said yourself, Bolognesus, that it isn't something you would do.
I agree that at a certain point it isn't your problem anymore, but this email chain appears to be the first communications between the parties since written notification of the lawsuit was sent to Chapterhouse Studios, dated December 22nd if I recall correctly. The lawsuit was filed on December 21st, which says something all on its own (and note that Moskin was apparently out of the country over the Christmas holidays until January 6th).
That email chain starts on December 31st, a date on which Moskin says the complaint hasn't even been served.
And the Court obviously does not consider these communications to constitute confidential settlement negotiations. This document is an exhibit in a post-trial motion, meaning it had to have been on the trial record. If you look on the list of defense exhibits, it's there. Settlement negotiations don't get into the trial record.
So if this isn't a settlement negotiation, that took place before the complaint had been served and before Chapterhouse Studios had legal counsel, what is it? I think Saldiven's characterization is pretty accurate: 'Go out of business, that's the only way to dig yourself out of the mess you're in.'
If Chapterhouse Studios had acquiesced at that point, what a cheap lawsuit that would have been for GW. Blindly sue someone in a venue 1,000 miles away, notify them about it on December 22nd telling them that they have 20 days to respond, then leave the country and decline to discuss the matter until January 6th (16 days after the first communication), and then say that there's no way to resolve it unless your target goes out of business.
Since the appeal has been officially submitted, might it be worth locking this thread and starting a new one with all the suitable links listed in the first message? Given every several pages there is a "what happened in the last hundred pages" question?
One thought on the settlement, is it likely that CHS' lawyers do not want to settle either? Reason being that the initial ruling currently sets a bad precedent for IP law in their view.
silent25 wrote: Since the appeal has been officially submitted, might it be worth locking this thread and starting a new one with all the suitable links listed in the first message? Given every several pages there is a "what happened in the last hundred pages" question?
Won't make a difference, because we will still have "I don't have time to read the other thread, can you give me a summary of what happened" posts...
Would be just as easy to update the OP of this one.
silent25 wrote: Since the appeal has been officially submitted, might it be worth locking this thread and starting a new one with all the suitable links listed in the first message? Given every several pages there is a "what happened in the last hundred pages" question?
One thought on the settlement, is it likely that CHS' lawyers do not want to settle either? Reason being that the initial ruling currently sets a bad precedent for IP law in their view.
The judge reckoned that CHS lawyers were prolonging the case, I'll try and find the exact quote if you'll give me a sec.
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?
Bolded the part that relates directly to your question. Though obviously the judge isn't actually basing that on his knowledge of the CHS and GW legal teams, I should point out.
Early communications with an attorney always start off so innocuously. Look how quickly things stop being reasonable once he asserts his client's property rights.
The judge reckoned that CHS lawyers were prolonging the case, I'll try and find the exact quote if you'll give me a sec.
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?
Bolded the part that relates directly to your question. Though obviously the judge isn't actually basing that on his knowledge of the CHS and GW legal teams, I should point out.
Wow, man. Reading for comprehension should be higher on your "to do" list.
He didn't say anything that indicates he thinks they were prolonging the case. He was saying he believed the WOULD be willing to do it. And so what if they would? They want to win the case for their client and believe they have the ability to. If I was them, I'd argue the case to the very last minute.
What he did NOT say in that quote, however, is that they WERE prolonging the case.
You have to look at the whole transcript and the context of this hearing - he's not saying either side is stretching out the case. They are having a pretty involved argument over the injunction, something that should not really have required judicial intervention (this injunction required another motion and hearing later on).
He's frustrated and saying -
I know you GW lawyers have been paid a ton of money, and want to squeeze everything you can out of this injunction and this trial decision to justify your fees.
I know you pro bono lawyers have given up a ton in fees in order to do this pro bono and want to appeal this in the hopes it becomes a leading case (to justify all the billable hours you've given up).
But why can't both parties just stop arguing and arguing?
Everybody won some, everybody lost some. Everybody should be walking away from this saying, okay, I won some and I lost some. Do I really keep fighting over whether I won on 43 things as opposed to 47 or as opposed to 38?
czakk wrote: You have to look at the whole transcript and the context of this hearing - he's not saying either side is stretching out the case. They are having a pretty involved argument over the injunction, something that should not really have required judicial intervention (this injunction required another motion and hearing later on).
He's frustrated and saying -
I know you GW lawyers have been paid a ton of money, and want to squeeze everything you can out of this injunction and this trial decision to justify your fees.
I know you pro bono lawyers have given up a ton in fees in order to do this pro bono and want to appeal this in the hopes it becomes a leading case (to justify all the billable hours you've given up).
But why can't both parties just stop arguing and arguing?
I think Kennelly's frustration is understandable, but that far into the case, it is also fair to say that Kennelly had a large part to play in how the case wound up at that point.
silent25 wrote: Since the appeal has been officially submitted, might it be worth locking this thread and starting a new one with all the suitable links listed in the first message? Given every several pages there is a "what happened in the last hundred pages" question?
One thought on the settlement, is it likely that CHS' lawyers do not want to settle either? Reason being that the initial ruling currently sets a bad precedent for IP law in their view.
The judge reckoned that CHS lawyers were prolonging the case, I'll try and find the exact quote if you'll give me a sec.
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?
Bolded the part that relates directly to your question. Though obviously the judge isn't actually basing that on his knowledge of the CHS and GW legal teams, I should point out.
Of course they are prolonging the case. They reckon on winning, and you can't do that by caving in.
czakk wrote: It would be interesting to get the dockets from some of his other big trials and see if he just favours a hands off approach.
That it would be, but with respect to Kennelly, his role in the case is done unless it gets remanded by the appellate court.
His does seem to be pretty emotional though. But it seems to be bark more than bite. Remember when he threatened that rulings would flow like a river or some such about a year or so ago? That did not materialize.
If the legal bills are as large as they are thought to be, a not insignificant chunk of GW's revenue has been diverted into fighting and losing this pointless case.
Even if GW won everything they could never recover their huge costs from CHS, and the reality is the CHS don't harm GW or steal their profits. GW have inflicted all this upon themselves for little gain even if they won everything, and they actually lost a lot.
Heck, CH probably gaveGW some business, with exactly the things that GW actually won on- the Tervigon Conversion kit required a GW model, and was one of the easiest ways to get a not-in-production model for a long time- I have to wonder how many of the Carnifex Kit sales GW owes to CH between when they released the codex containing that unit and actually released the official model.
Anvildude wrote: Heck, CH probably gaveGW some business, with exactly the things that GW actually won on- the Tervigon Conversion kit required a GW model, and was one of the easiest ways to get a not-in-production model for a long time- I have to wonder how many of the Carnifex Kit sales GW owes to CH between when they released the codex containing that unit and actually released the official model.
That's an assumption. I could just as easily have pulled mine apart, or, depending on how I built my previous ones, I could use the extra parts to finish off the conversion kit into a complete model. I used to be on-side with the "but they generated sales for GW as well", and while it's certainly the case that CHS product probably encouraged purchases from GW as well, the number of purchases may not be significant enough to warrant the correlation. Even if that correlation exists, how are you going to establish it? You'd need to have people come forward that could produce a pair of receipts that were dated closely enough together, and maybe the model in question as well, to establish that it was mutually beneficial... And then you'd have to hope that the argument would even be accepted in court.
Anvildude wrote: Heck, CH probably gaveGW some business, with exactly the things that GW actually won on- the Tervigon Conversion kit required a GW model, and was one of the easiest ways to get a not-in-production model for a long time- I have to wonder how many of the Carnifex Kit sales GW owes to CH between when they released the codex containing that unit and actually released the official model.
That's an assumption. I could just as easily have pulled mine apart, or, depending on how I built my previous ones, I could use the extra parts to finish off the conversion kit into a complete model. I used to be on-side with the "but they generated sales for GW as well", and while it's certainly the case that CHS product probably encouraged purchases from GW as well, the number of purchases may not be significant enough to warrant the correlation. Even if that correlation exists, how are you going to establish it? You'd need to have people come forward that could produce a pair of receipts that were dated closely enough together, and maybe the model in question as well, to establish that it was mutually beneficial... And then you'd have to hope that the argument would even be accepted in court.
It's also technically immaterial when it comes to copyright infringement.
Anvildude wrote: Heck, CH probably gaveGW some business, with exactly the things that GW actually won on- the Tervigon Conversion kit required a GW model, and was one of the easiest ways to get a not-in-production model for a long time- I have to wonder how many of the Carnifex Kit sales GW owes to CH between when they released the codex containing that unit and actually released the official model.
That's an assumption. I could just as easily have pulled mine apart, or, depending on how I built my previous ones, I could use the extra parts to finish off the conversion kit into a complete model. I used to be on-side with the "but they generated sales for GW as well", and while it's certainly the case that CHS product probably encouraged purchases from GW as well, the number of purchases may not be significant enough to warrant the correlation. Even if that correlation exists, how are you going to establish it? You'd need to have people come forward that could produce a pair of receipts that were dated closely enough together, and maybe the model in question as well, to establish that it was mutually beneficial... And then you'd have to hope that the argument would even be accepted in court.
It's also technically immaterial when it comes to copyright infringement.
aren't damages awarded on whether or not copyright was infringed? or did i miss something there. Or is that just an extra that's slapped on once it's proven?
aren't damages awarded on whether or not copyright was infringed? or did i miss something there. Or is that just an extra that's slapped on once it's proven?
Sure, except that whether your product makes the Plaintiff any money is irrelevant. There's statutory damages, lost profits, and defendant's profits. Statutory is set by statute: X amount per act of infringement. Defendant's profits are defendant's gross revenue minus expenses. Lost profits are the profits the Plaintiff would have made but for the sales of the infringing products, although even in that circumstance I don't think the infringing product being value-adding is relevant.
It may be from an equity standpoint, and it is relevant to the question of copyright fair use, or at least that was so in the CHS trial. Fair use has a lot of factors, part of which, put simply, is impact on the market for the infringed work. Another of which is whether the purpose or character of the infringing work.
So--to the attorneys in the thread--how costly is an appeal process for Games Workshop vs. the initial case? I would assume less expensive, since time on discovery, etc. is already (for the most part), taken care of...or? I ask, as given their latest financial disclosure, dropping another million or so pounds on the case may make them reconsider a settlement?
AgeOfEgos wrote: So--to the attorneys in the thread--how costly is an appeal process for Games Workshop vs. the initial case? I would assume less expensive, since time on discovery, etc. is already (for the most part), taken care of...or? I ask, as given their latest financial disclosure, dropping another million or so pounds on the case may make them reconsider a settlement?
Appeals aren't very expensive compared to trials, and it depends on what firm you use, how much effort you put into it, etc.
But it would be hard to do it for less than six figures. Maybe a couple hundred thousand, a little more for a cross appeal. Still way more than GW probably wants to spend at a time like this.
AgeOfEgos wrote: So--to the attorneys in the thread--how costly is an appeal process for Games Workshop vs. the initial case? I would assume less expensive, since time on discovery, etc. is already (for the most part), taken care of...or? I ask, as given their latest financial disclosure, dropping another million or so pounds on the case may make them reconsider a settlement?
Appeals aren't very expensive compared to trials, and it depends on what firm you use, how much effort you put into it, etc.
But it would be hard to do it for less than six figures. Maybe a couple hundred thousand, a little more for a cross appeal. Still way more than GW probably wants to spend at a time like this.
GW filed a cross appeal.
NOTICE OF CROSS-APPEAL
NOTICE IS HEREBY GIVEN that plaintiff, Games Workshop Limited, hereby crossappeals
to the United States Court of Appeals for the Seventh Circuit from: (1) the Judgment in a
Civil Action entered in this action on June 27, 2013 (Dkt. No. 403), including all prior and
underlying interlocutory orders; (2) the Order on Post-Trial Motions entered in this action on
December 5, 2013 (Dkt. No. 462); and (3) the Permanent Injunction entered in this action on
December 5, 2013 (Dkt. No. 465).
So... between them is there anything GW and CH are leaving as is or are we basically getting each side saying they are appealing every decision that went the other sides way?
Is everything that has already been decided back up in the air at this point or just some of it?
The exceptions are going to be the ones that GW removed prior to the trial.
The time taken is almost certainly going to be less - there is no jury, just a hearing followed by a judgement from the court of appeals and after that this whole mess will be done - while there can be further appeals, the likely answer to such requests will be 'no'.
The judge(s) can ask for material that expands upon the information available, but the whole process is likely to take much less than a year, assuming they can get it scheduled. (There is a shortage of judges on some circuits, but I think that Ill. is well provided for the appeals.)
I really and i mean really feel bad for the judge that has to sit down and read over this shlock. Even if its a cliff notes version their heads will be swimming after the first 6 months.
Also no surprise on the cross appeal, this isn't the first time GW has doubled down on horrible decisions.
Warboss Gubbinz wrote: I really and i mean really feel bad for the judge that has to sit down and read over this shlock. Even if its a cliff notes version their heads will be swimming after the first 6 months.
Also no surprise on the cross appeal, this isn't the first time GW has doubled down on horrible decisions.
Good counsel will narrow things down and summarize for the judges. Part of how you win an appeal is being able to give the court a fair, concise and aaccurate summary of the record below so the judges can focus on the legal argument.
Good counsel will narrow things down and summarize for the judges. Part of how you win an appeal is being able to give the court a fair, concise and aaccurate summary of the record below so the judges can focus on the legal argument.
Yeah, but if the court's only going by what the lawyers give them as an accurate summary... Who here really believes that GW's summary will be accurate? The only way the judge will know the difference, presuming they lie/misrepresent the truth, is to go back and look at the case. Right? In other words, he's still got to do the work.
Appellant's factum
Respondent's factum
Appellant's reply
If either party inaccurately or unfairly summarizes the facts or record the other side has a chance to call them on it. Things might be framed differently, but there shouldn't be much disagreement. Forcing the appeals judges to go back and check (or have their clerks check) would be a colossal feth up.
Good counsel will narrow things down and summarize for the judges. Part of how you win an appeal is being able to give the court a fair, concise and aaccurate summary of the record below so the judges can focus on the legal argument.
Yeah, but if the court's only going by what the lawyers give them as an accurate summary... Who here really believes that GW's summary will be accurate? The only way the judge will know the difference, presuming they lie/misrepresent the truth, is to go back and look at the case. Right? In other words, he's still got to do the work.
Eric
Presumably the judge might look at five disputed points and if he found that in four of them one side's lawyers had lied/cheated/misrepresented/been economical avec le verite, then he would decide not to waste any more time and just find for the other side on everything.
Please note that I am not making any statement about the behaviour of either side's lawyers in this specific case.
I really hope the appeals go in favor of Chapterhouse. Games Workshop's levels of greed are staggering. At this rate I would not be surprised to see them filing for bankruptcy in the next few years as the price themselves right out of business.
czakk wrote: On an appeal the written submissions typically go
Appellant's factum
Respondent's factum
Appellant's reply
If either party inaccurately or unfairly summarizes the facts or record the other side has a chance to call them on it. Things might be framed differently, but there shouldn't be much disagreement. Forcing the appeals judges to go back and check (or have their clerks check) would be a colossal feth up.
Given the previous behavior of GW's counselors... has anybody set up a betting pool yet?
This is pretty standard. Pretty much anyone can offset expenses of various kinds against income and reduce tax liability. In very general terms it's referred to as "itemizing deductions" in the US.
I do it all the time. For example, we pay tuition for my wife and offset that tuition expense against my income and therefore pay less in taxes. In a very real way, the American people are helping pay for my wife to go to college.
Baragash wrote: Maybe the rules are different for big companies, but for any company with annual turnover below £1.5m you can't offset legal expenses against tax.
It's in the non-allowable pool (alongside things like depreciation, disallowable entertaining, losses on sale of fixed assets etc).
I haven't done anything in relation to corporation tax for many years now, but 20 years ago when I was studying I seem to remember legal expenses (one can incur legal expenses for all sorts of things, and protecting one's IP, even aggressively, is clearly in the company's interests when it comes to demonstrating the matter to HMRC) being an allowable expense, but it was fines and penalties that were not. Of course things may well have changed, or my memory may be suspect as its not an area I have any current experience.
Kilkrazy wrote: There is even a provision that will let them offset their legal expenses against profits and reduce their tax bill.
So UK citizens pay part of GW's bill?
Yes, but only a part, and indirectly.
The deduction comes off of their total revenue, which thereby reduces the amount of taxes owed. It's not any different than writing off any other expense or allowable deduction on a tax return.
Baragash wrote: Maybe the rules are different for big companies, but for any company with annual turnover below £1.5m you can't offset legal expenses against tax.
It's in the non-allowable pool (alongside things like depreciation, disallowable entertaining, losses on sale of fixed assets etc).
I haven't done anything in relation to corporation tax for many years now, but 20 years ago when I was studying I seem to remember legal expenses (one can incur legal expenses for all sorts of things, and protecting one's IP, even aggressively, is clearly in the company's interests when it comes to demonstrating the matter to HMRC) being an allowable expense, but it was fines and penalties that were not. Of course things may well have changed, or my memory may be suspect as its not an area I have any current experience.
Like I said, I only do it for a company below £1.5m turnover, and the rules may be different, but the current list of profit adjustments (additions in favour of HMRC) are: Depreciation, Disallowable Entertainment, Donations, Legal and Professional Fees, Net Loss on Sales of Fixed Assets, Penalties and Fines, Unpaid Employee's Renumeration.
TBH I've not had to look into the detail through the course of doing it, so maybe "legal fees" =/= "legal expenses" and some of the cost can be offset against tax, but not all of it.
I do it all the time. For example, we pay tuition for my wife and offset that tuition expense against my income and therefore pay less in taxes. In a very real way, the American people are helping pay for my wife to go to college.
Slinging this off topic, but that's one way to look at it. The other way is that you are reducing the amount of your assets that are forcibly removed and redistributed as others see fit. In a very real way, you are attempting to protect the theft of your wealth.
czakk wrote: On an appeal the written submissions typically go
Appellant's factum
Respondent's factum
Appellant's reply
If either party inaccurately or unfairly summarizes the facts or record the other side has a chance to call them on it. Things might be framed differently, but there shouldn't be much disagreement. Forcing the appeals judges to go back and check (or have their clerks check) would be a colossal feth up.
Given the previous behavior of GW's counselors... has anybody set up a betting pool yet?
The Auld Grump
I didn't know GW was seeking therapy....
When you're talking about legal matters, it's counsel. When it's therapy, it's a counselor.
A betting pool for what? Really, given the conduct, it's anyone's guess what GW is going to pull out of their Finerump. I'm more surprised they're not going to try to settle this out-of-court to make this go away.
czakk wrote: I have learned that Mr. Moskin has been mailing out the permanent injunction to sculptors and artists involved with CHS.
Appeals wise, the last time I checked nothing new had been filed - which is to be expected.
Czakk.. what does that mean, exactly?
It SOUNDS to me like he is frivolously firing off letters to see if people will fold immediately and do GW bidding...
-P
That's the impression I got as well, that he wants to throw legalese at people who won't understand it to make it look like GW have a strong position to go after individual sculptors if they don't stop making things even remotely like anything GW produces.
Which sounds despicable, and in line with everything we know about him.
czakk wrote: I have learned that Mr. Moskin has been mailing out the permanent injunction to sculptors and artists involved with CHS.
Appeals wise, the last time I checked nothing new had been filed - which is to be expected.
If you are comfortable saying, where did you learn that?
Edit: Do you have any details? Which artists/sculptors? Does anyone have a copy of the communications? Is this direct from someone who received such a communication, or did you hear it second hand?
Can't say anything more unfortunately. Not trying to be mysterious.
Re: Injunctions
Short answer - nothing hinky is going on with Mr. Moskin sending letters. It's a procedural step.
An injunction is a court order. Like any court order, you have to serve people with it. Otherwise they won't have any idea it exists (other than CHS). If you read the injunction, the beginning goes like this:
Whereas this action was tried by a jury with Hon. Matthew F. Kennelly presiding, and the jury rendered a verdict on June 14, 2013 finding infringement of certain copyrights and trademarks of Games Workshop Limited (“Games Workshop”), and whereas the Court entered Judgment on June 27, 2013, the Court now issues this Permanent Injunction against Chapterhouse Studios LLC (“Chapterhouse”):.
1. Chapterhouse, its agents, representatives, employees, assigns, and suppliers, and all persons acting in concert or privity with them, are hereby permanently enjoined from:
a. Reproducing, distributing, displaying, preparing derivative works, selling or otherwise infringing any of Games Workshop’s copyrights with respect to the below Chapterhouse products...
From the bolded part you can see that the order actually applies to more than just CHS and GW. 3rd party suppliers, artists, (former) employees etc... are also caught by the order and you would want to serve them with the order.
czakk wrote: Can't say anything more unfortunately. Not trying to be mysterious.
Short answer - nothing hinky is going on.
Re: Injunctions An injunction is a court order. Like any court order, you have to serve people with it. If you read the injunction, the beginning goes like this:
Whereas this action was tried by a jury with Hon. Matthew F. Kennelly presiding, and the jury rendered a verdict on June 14, 2013 finding infringement of certain copyrights and trademarks of Games Workshop Limited (“Games Workshop”), and whereas the Court entered Judgment on June 27, 2013, the Court now issues this Permanent Injunction against Chapterhouse Studios LLC (“Chapterhouse”):.
1. Chapterhouse, its agents, representatives, employees, assigns, and suppliers, and all persons acting in concert or privity with them, are hereby permanently enjoined from:
a. Reproducing, distributing, displaying, preparing derivative works, selling or otherwise infringing any of Games Workshop’s copyrights with respect to the below Chapterhouse products...
From the bolded part you can see that the order actually applies to more than just CHS and GW. 3rd party suppliers, artists, (former) employees etc... are also caught by the order and you would want to serve them with it.
FRCP 65(d)(2) Injunctions and Restraining Orders:
(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:
(A) the parties;
(B) the parties’ officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).
Note that the header of the case is "Games Workshop Limited v Chapterhouse Studios LLC."
czakk wrote: In general non-parties aren't bound but (C) can catch 3rd parties who know about the injunction. work with chapterhouse, and violate the injunction.
Yea, who are in "active participation or concert" with the party.
Rule 65(d)(2) clarifies two ambiguities in former Rule 65(d). The former rule was adapted from former 28 U.S.C. §363, but omitted a comma that made clear the common doctrine that a party must have actual notice of an injunction in order to be bound by it.Amended Rule 65(d) restores the meaning of the earlier statute, and also makes clear the proposition that an injunction can be enforced against a person who acts in concert with a party's officer, agent, servant, employee, or attorney.
czakk wrote: In general non-parties aren't bound but (C) can catch 3rd parties who know about the injunction. work with chapterhouse, and violate the injunction.
Yea, who are in "active participation or concert" with the party. The key word there, the very important word there, the essential word there, is "active."
Are you suggesting that one of Chapterhouse's contractors is violating the injunction? Was this communication a C&D?
Nope, not trying to suggest anything at all - just trying to explain why people other than CHS would get served with an injunction. To be more clear, the extent of the information I have is that the injunction is being mailed to people.
This is in response to people wondering about why Mr. Moskin would send out letters and suggesting something nefarious was up. He's just working through what ever list of contacts he's got and sending everyone a letter to ensure that everyone has been served and put on notice.
czakk wrote: On an appeal the written submissions typically go
Appellant's factum
Respondent's factum
Appellant's reply
If either party inaccurately or unfairly summarizes the facts or record the other side has a chance to call them on it. Things might be framed differently, but there shouldn't be much disagreement. Forcing the appeals judges to go back and check (or have their clerks check) would be a colossal feth up.
Given the previous behavior of GW's counselors... has anybody set up a betting pool yet?
The Auld Grump
I didn't know GW was seeking therapy....
When you're talking about legal matters, it's counsel. When it's therapy, it's a counselor.
A betting pool for what? Really, given the conduct, it's anyone's guess what GW is going to pull out of their Finerump. I'm more surprised they're not going to try to settle this out-of-court to make this go away.
Counselor is, in point of fact, an accepted term for attorney - you may want to look it up before correcting somebody, next time.
While the full term is 'counselor at law' it is most often shortened to 'counselor' in general conversation.
While counselor is a somewhat anachronistic term for lawyer, it remains in use, and is, in some jurisdictions, preferred to the full term of counselor at (or 'of') law.
A therapist is also a counselor - one that gives counsel.
Counsel is the advice that a counselor gives their client - whether legal, medical, political, or mental health related.
The Auld Grump, then did the king give thanks to his counselors for their wise counsel....
*EDIT* Back on topic....
Is Moskin & Co being as scattershot with their notices as they were with the initial complaints, or are they limiting their targets to the ones actually named in the course of the trial?
For any other representatives it would go without saying, but after Paulson got pulled in the first time....
I can confirm that Moskin has emailed numerous artists with a court injunction, I spoke firsthand with somebody who received an injunction notice stating that he was required to hand over any materials for destruction and named off the offending items. Which is amusing because the guy who got this email didn't actually create or work on anything specifically named in the list, (he did provide a model to CH, however it wasn't named in the list) which seems that it was just a blanket email sent to all of the artists. Since many of the items are still in appeal it indicates to me that he's fishing to see who gets spooked and hands over models or molds for destruction?
Seemed rather shady that GW/Moskin would be hitting up the individual artists to hand over materials which the court hasn't finalized on yet. If I'm not mistaken it's up to CH to turn over those items and not the individuals? (also assuming that the appeals didn't delay such an order)
However I find a few things confusing (as I'm not a lawyer) the injunction is from Judge Kennelly. There's a line about GW's consul holding items for destruction, but not destroying them until all appeals have been exhausted. Which I'm sure CH's team is still protesting to prevent any potential "oops you won appeal but... it got lost or eaten by puppies while it was in our possession" results.
Does an email notice qualify as proper legal notification? Or does it also have to be provided in confirmed physical copy ala court summons style?
paulson games wrote: I can confirm that Moskin has emailed numerous artists, I spoke firsthand with somebody who received a notice stating that he was required to hand over any materials for destruction and named off the offending items. Which is amusing because the guy who got this email didn't actually create or work on anything named in the list, (he did provide a model to CH, however it wasn't named in the list) which seems that it was just a blanket email sent to all of the artists. Since many of the items are still in appeal it indicates to me that he's fishing to see who gets spooked and hands over models or molds for destruction.
Seemed rather shady that GW/Moskin would be hitting up the individual artists to hand over materials which the court has finalized on yet. If I'm not mistaken it's up to CH to turn over those items and not the individuals (also assuming that the appeals didn't delay such an order)
I would love to see one of those letters he has sent out.
So:
1.) In USA, the court is not required to inform the persons who got an injunction?
2.) This injunction is "permanent" even before appeals are dealt with?
Kroothawk wrote: So: 1.) In USA, the court is not required to inform the persons who got an injunction? 2.) This injunction is "permanent" even before appeals are dealt with?
There's nothing sinister about the injunction Kroot. The Court informed the parties to which the injunction is binding, i.e. the parties named in the lawsuit.
A permanent injunction is simply not a preliminary injunction. It is not intended to be temporary. It would not be overturned absent an appeal, and was issued prior to the current appellants filing their appeals. So, unless a higher court overturns the injunction, it is permanent, and essentially enjoins Chapterhouse from continuing any infringing conduct.
Also, Chapterhouse's counsel is retaining the materials. There was a fight about this a little while ago.
I am curious about where GW got the contact information for the person(s) being contacted.
Jon, you are saying that a person you have heard from was not involved in the creation of any of the works found to infringe, right? If you don't mind my asking, was this individual involved in the creation of any works accused in the lawsuit? I'm trying to noodle around where this "list" GW has been emailing came from.
Also, paulson is saying that the injunction says that GW has to hold molds. As you said, that was corrected - is GW distributing an incorrect injunction? Possibly deliberately?
paulson games wrote: I spoke firsthand with somebody who received an injunction notice stating that he was required to hand over any materials for destruction and named off the offending items.
Just what materials would GW think they still have? Whenever I've done a sculpt I send it to the company that commissioned it. The keep the original. So what materials would the artists have to send?
puma713 wrote: I've been scanning various pages, but haven't really been able to find this figure:
What did this suit cost GW, in terms of dollars?
You won't find that figure. You can only estimate. The only hard numbers come from GW's motion for trial costs (which was denied). But to put that in some context, GW paid 6 figures in printing just for the trial alone.
An attorney like Jonathan Moskin probably bills out at something north of $400/hour, and probably more than that. His associate, Jason Keener, could very well bill that much. There's no way to know what their billing rates to GW are, if they were working on a flat fee arrangement, if there were any incentives or bonuses, or anything about the exact nature of GW's financial relationship with Foley and Lardner.
However, it is reasonable to assume that GW has spent at least 7 figures all told thus far. A floor of 1 million dollars is pretty reasonable to assume, unless F&L was being really thrifty or giving GW a sweet deal. Thousands of hours were probably poured into the lawsuit over the years.
Jon, you are saying that a person you have heard from was not involved in the creation of any of the works found to infringe, right? If you don't mind my asking, was this individual involved in the creation of any works accused in the lawsuit? I'm trying to noodle around where this "list" GW has been emailing came from.
One of his models was included in the list of complaints and was included in the trial. However it's not named in the list of infringing items that was provided within in the injunction itself. The list within the injunction appears to be the same as the items that jury found infringing. (but I haven't gone over it with a fine tooth comb yet so I might be incorrect).
Which is so odd as to why he would receive a copy of it, our earlier theory is that Moskin group emailed everyone potentially involved. This appears it may not to be the case as MechanicalHorizon (who's also worked for CH) pointed out he didn't receive a mass email and I think some of his pieces may actually be on the list. (but not 100% sure) So that means that my contact was emailed accidentally or it's deliberate. Either way it's odd as the model isn't on the list, either the injunction one or the jury's list.
I'd post the contents of the injunction but I'm not sure if that would get anyone in any hot water as it apparently hasn't hit public record yet and I'm not sure what the legality of reposting this stuff is. There's no confidentialty or gag statement in it and it was given to him by opposing/hostile consul so I don't think it contains anything that's sensitive?
This was the header on it which might help locate it if/when it gets listed Case: 1:10-cv-08103 Document #: 465 Filed: 12/05/13 PageID #:25884 - 25887
rigeld2 wrote: Also, paulson is saying that the injunction says that GW has to hold molds. As you said, that was corrected - is GW distributing an incorrect injunction? Possibly deliberately?
The document states that all masters and other means for making the infringing items (molds) are to be surrendered to GW's counsel for destruction. And that they are to hold onto the listed items and not destroy them until the appeals process is complete.
How that lines up with the custody appeal from CH's counsel I'm not sure. This was dated dec 5th and there's been several motions in the meantime. I'm a bit confused by where the current state of affairs is at.
I think there is some justified concern as to the nature of the notice and in CH's case concern on turning over such items should their appeals succeed. In a perfect world GW would simply hold onto the items and return any that are found not to be infringing. But we've already seen Moskin sanctioned in court for the shoulder pad ownership claims, which certainly casts some doubt on what he says. One might question if he (or GW) would be reliable in handling the disputed items or if they'd meet with "accidents" or get "lost" in the process where they'd be unable to be returned after any appeals.
Not everyone who's worked for CH has followed the case, even for people who have been it's difficult to understand all the legal speech and what is or isn't decided at this point.
Moskin has already asked for (or demanded) access to company information that wasn't expressly required by the court. (for example asking for income and sales records before pre-trial even began) Part of his tactics so far have been to push for the defense to surrender info in advance of the defense (or artists) having legal representation in place. Basically using the target's general lack of legal knowledge against them in order to appear to have legal leverage and bluff his position in hopes they will comply with demands/requests when they are under no legal obligation to do.
paulson games wrote: The document states that all masters and other means for making the infringing items (molds) are to be surrendered to GW's counsel for destruction. And that they are to hold onto the listed items and not destroy them until the appeals process is complete.
See, this (to me) seems "bad". It goes against what CHS fought (and won) to get the order changed to. In essence, isn't Moskin lying again (although he'll claim the "original" was emailed by mistake)?
The order was not changed - the parties stipulated to a side deal where CHS would hang on to the moulds but the text of the injunction was not changed.
czakk wrote: The order was not changed - the parties stipulated to a side deal where CHS would hang on to the moulds but the text of the injunction was not changed.
Exactly. It's just that the stipulation is in the record, as opposed to a less formal agreement between the parties, which is the way it would normally go. Which, coincidentally, is why we know about it at all.
Interesting that Moskin didn't bother including the stipulation when he sent out the emails. Wonder if he's going to hold on to anything sent him or if he's going to let CHS counsel hold them.
Interesting that Moskin didn't bother including the stipulation when he sent out the emails. Wonder if he's going to hold on to anything sent him or if he's going to let CHS counsel hold them.
You know, that is an extremely interesting point you have there.
GAMES WORKSHOP LIMITED, Plaintiff - Appellee, Cross - Appellant, v. CHAPTERHOUSE STUDIOS LLC, Defendant - Appellant, Cross - Appellee.
Originating Case Information: District Court No: 1:10-cv-08103 Northern District of Illinois, Eastern Division District Judge Matthew F. Kennelly
Pursuant to Circuit Rule 33, briefing in this consolidated appeal is SUSPENDED pending further court order.
From Rule 33:
To enable counsel to devote their full attention to discussions of settlement, the briefing schedule will be extended. An order setting forth the new briefing schedule will follow under separate cover. The scheduling of a Rule 33 conference does not relieve the parties of their obligation to comply in a timely manner with all other court filing requirements. Until Rule 33 proceedings are concluded, counsel are directed to send the Settlement Conference Office copies of all papers they file with this Court.
i.e. Filing dates have been extended again under Rule 33, meaning extended due to ongoing settlement discussions. In this context, SUSPENDED basically means extended until the Court decides that the clock is running again.
loki old fart wrote: Does this mean the court has decided they need to talk, or the lawyers have decided they want to talk. ?
The Court already mandated settlement discussions, which is standard under 7th Circuit Court of Appeals Rule 33. A scheduled telephonic settlement conference already took place, following which the Court suspended the extant briefing schedule. Presumably, settlement discussions are ongoing, hence the additional extension of the briefing schedule, though whether this continuation was mandated by the Court or requested by the parties is impossible to know from the extant record.
You just don't know. All you know is that the briefing schedule has been suspended on the basis of Rule 33, which pertains to an obligatory prehearing settlement conference, from which one can infer that the parties remain engaged in prehearing settlement discussions. That's the extent to which one can make a reasonable inference. Anything else is reading tea leaves.
The key here is prehearing settlement conference. This is all intended to take place before the parties start arguing their appellate case to the Court. The briefing schedule outlines the dates on which the parties are required to submit their various arguments to the Court.
In other words, the game hasn't started yet. It was scheduled to start on X date and that date got pushed pack so the players could have a pre-game discussion. Now the start date has been suspended pending reinstatement by the Court which gives the parties more time for their pre-game discussion.
Jonathan Moskin, a partner who specializes in intellectual property at Foley & Lardner, said big companies are often better off letting the infringement slide—especially if action is likely to bring negative attention. “These are usually lose-lose propositions for brand owners,” he said. “If they win, they’re seen as beating up on an artist, and if they lose, then they come away with a black eye.”
Jonathan Moskin, a partner who specializes in intellectual property at Foley & Lardner, said big companies are often better off letting the infringement slide—especially if action is likely to bring negative attention. “These are usually lose-lose propositions for brand owners,” he said. “If they win, they’re seen as beating up on an artist, and if they lose, then they come away with a black eye.”
lol. Personal experience? If these are his true thoughts on the matter then any doubts about why this case has been dragging on have been dispelled (as if there really were any).
Ya know, someone should absolutely make sure that gets sent into GW, to make sure they know both what they're doing wrong, and what their lawyer is saying to others rather than to them. We wouldn't want them to miss it
This just made my day. So that would imply that GW's counsel did suggest they leave CHS alone? That's how I read it, assuming Moskin had this same view before this suit was filed.
You know, his quote (assuming it's an honest opinion of his) reinforces the idea that I've had since the beginning of this lawsuit that GW doesn't really have a strong grasp of the big picture where third party bits manufacturers are concerned.
Aerethan wrote: This just made my day. So that would imply that GW's counsel did suggest they leave CHS alone? That's how I read it, assuming Moskin had this same view before this suit was filed.
That would only be an assumption.
Automatically Appended Next Post: I find it interesting that Mr. Moskin chose to use the word "artist."
“These are usually lose-lose propositions for brand owners,” he said. “If they win, they’re seen as beating up on an artist, and if they lose, then they come away with a black eye.”
Aerethan wrote: This just made my day. So that would imply that GW's counsel did suggest they leave CHS alone? That's how I read it, assuming Moskin had this same view before this suit was filed.
That would only be an assumption.
Automatically Appended Next Post: I find it interesting that Mr. Moskin chose to use the word "artist."
“These are usually lose-lose propositions for brand owners,” he said. “If they win, they’re seen as beating up on an artist, and if they lose, then they come away with a black eye.”
I agree it's an assumption, but if that is really his opinion over IP then, to me at least, it seems that he would have warned GW about his exact statement. Best case scenario they walked away the bully and tarnished an already fragile reputation.
I find it interesting that Mr. Moskin chose to use the word "artist."
“These are usually lose-lose propositions for brand owners,” he said. “If they win, they’re seen as beating up on an artist, and if they lose, then they come away with a black eye.”
Could it be because Dumb Starbucks is claiming to be "performance art"?
I find it interesting that Mr. Moskin chose to use the word "artist."
“These are usually lose-lose propositions for brand owners,” he said. “If they win, they’re seen as beating up on an artist, and if they lose, then they come away with a black eye.”
Could it be because Dumb Starbucks is claiming to be "performance art"?
Possibly, sure. Nevertheless, he chose to use that word, and it fits real well with the bulk of GW's IP enforcement activities.
“These are usually lose-lose propositions for brand owners,” he said. “If they win, they’re seen as beating up on an artist, and if they lose, then they come away with a black eye.”
Or, in the case of the Chaperhouse suit they’re both seen as beating up on an artist AND coming away with a black eye at the same time.
timd wrote: “These are usually lose-lose propositions for brand owners,” he said. “If they win, they’re seen as beating up on an artist, and if they lose, then they come away with a black eye.”
Or, in the case of the Chaperhouse suit they’re both seen as beating up on an artist AND coming away with a black eye at the same time.
T
Is that a lose-lose-lose-lose proposition? Hey GW, your share price wants a word with you.
The "Spots The Space Marine" case was definitely a loss for GW. Although it didn't make the mainstream media, it got out of the wargames ghetto, and the coverage was completely negative towards GW.
Kilkrazy wrote: The "Spots The Space Marine" case was definitely a loss for GW. Although it didn't make the mainstream media, it got out of the wargames ghetto, and the coverage was completely negative towards GW.
The problem is that everybody knows that the average consumer forgets that kind of stuff inside of a week...or in the case of GW, until the next new shiney comes out and everybody runs to buy it. Seriously, look at the Imperial Knights thread; half the people in there start out as hipsters "I haven't bought anything GW since Jesus walked to Galilea." and wind up "Squeee, I must gets mah precious!"
Kilkrazy wrote: The "Spots The Space Marine" case was definitely a loss for GW. Although it didn't make the mainstream media, it got out of the wargames ghetto, and the coverage was completely negative towards GW.
The problem is that everybody knows that the average consumer forgets that kind of stuff inside of a week...or in the case of GW, until the next new shiney comes out and everybody runs to buy it. Seriously, look at the Imperial Knights thread; half the people in there start out as hipsters "I haven't bought anything GW since Jesus walked to Galilea." and wind up "Squeee, I must gets mah precious!"
Except it does damage goodwill. The effects are like a drug with a long half life. It sticks around and builds up and builds up and builds up. We're still referencing Spots, for example, and even if the average customer 'forgets' about it, it remains a negative association with the brand. GW has been piling them up like cord wood, and it has definitely started to show.
Chapterhouse is also the gift that keeps on giving for GW. GW filed that case on December 21st 2010! It has been more than three years and the stink of it is still hanging around. The case is still going on. Even if people forget about it in a week, they keep getting reminders.
Except it does damage goodwill. The effects are like a drug with a long half life. It sticks around and builds up and builds up and builds up. We're still referencing Spots, for example, and even if the average customer 'forgets' about it, it remains a negative association with the brand. GW has been piling them up like cord wood, and it has definitely started to show.
Chapterhouse is also the gift that keeps on giving for GW. GW filed that case on December 21st 2010! It has been more than three years and the stink of it is still hanging around. The case is still going on. Even if people forget about it in a week, they keep getting reminders.
That's a good point and I agree but it's hard to pinpoint what causes the most damage, GW's predatory IP policies or their predatory pricing policies.
agnosto wrote: That's a good point and I agree but it's hard to pinpoint what causes the most damage, GW's predatory IP policies or their predatory pricing policies.
It's a mix of both, of course, but if GW had done before what Moskin is advocating in that interview now, would GW be in as bad a position today?
What is the total value GW lost in the stock drop, for example? How much of that could be attributed to GW's goodwill tarnishing activities, such as its IP enforcement strategy? That's an interesting thought experiment.
And keep in mind of course that GW still has the opportunity to "let the infringement slide." So far GW has decided to forge ahead against Chapterhouse Studios.
Saldiven wrote: You know, his quote (assuming it's an honest opinion of his) reinforces the idea that I've had since the beginning of this lawsuit that GW doesn't really have a strong grasp of the big picture where third party bits manufacturers are concerned.
Ya that kinda happens when you hire people not for skill but for how well you respond to brainwashing.
Kilkrazy wrote: The "Spots The Space Marine" case was definitely a loss for GW. Although it didn't make the mainstream media, it got out of the wargames ghetto, and the coverage was completely negative towards GW.
wowsmash wrote: Ya that kinda happens when you hire people not for skill but for how well you respond to brainwashing.
Getting a job at GW has gotten do much harder over the years as well.
A friend of mine is applying for a FW sculpting position, you wouldn't believe the hoops they are making him jump through. I mean, he has to do freelance work to make money so he can eat. He can't spend hours each day for a month sculpting 4-5 models for a job he might not even get.
You'd think they would be able to look at a sculptors portfolio of work and be able to judge their sculpting ability from that, especially if those sculpts had been put into production for sale. You'd be able to have the physical model on your desk to look at to say "Wow, this is a great sculpt".
At least in the programming world that's what we do. I can't recall a single instance of us asking a prospective employee to write a few programs so we can see if he's good enough. We'll look at his resume and existing projects theyve worked on to see if they have the necessary qualifications.
I recall reading an article about how there is an increased "ego" or "arrogance" with companies that makes them feel they need the "best and brightest" so their hiring practices get overly strict. In reality they wind up turning away perfectly good potential staff because they set the bar at such a high level. Because of that they think they are hiring "Only the best of the best" when in reality they are discouraging people who are qualified and have the talent from even applying.
The article was written about Apple and Microsoft, but it could apply to GW as well.
Kilkrazy wrote: The "Spots The Space Marine" case was definitely a loss for GW. Although it didn't make the mainstream media, it got out of the wargames ghetto, and the coverage was completely negative towards GW.
Since when was the BBC not mainstream media?
I am unable to speak of things of which I am unconscious. AFAIK it wasn't on the BBC, however if it was, the BBC is of course mainstream media.
There are a lot of other blog posts, forum discussions and a solid couple weeks of Tweets, but that page has a good collection of articles from various news sources of various levels of mainstream weight.
Considering GWs lack of advertising, well, they managed to shoot their goodwill squarely in the foot.
Also of note, GWs actions are now immortalized on their Wikipedia page. Might not seem like much, but it will show up when anyone goes to everyone's favorite reference site from now on.
Kilkrazy wrote: Most of us agree that GW have royally screwed up their IP enforcement activities, but we are getting off the main topic of the Chapter House case.
Okay, let's talk about how GW has royally screwed up this lawsuit
I lost touch with this a while ago, did'nt realise it was still rumbling on, would anyone mind bringing me up to speed? (i got as far as GW won some things and lost some, although if anyone is willing to give me an overview of where they won/lost that would also be appreciated). Thanks
GW lost the substantial majority, many claims didn't get to jury.
CHS did have to pay damages, but ran a Kickstarter and likely made enough.
Both sides have filed for appeal.
CHS continue to receive pro bono representation, not only from the original law firm, but additionally from another firm with a strong track record in IP law, and an individual from that firm who appears to be somewhat of an IP law ninja.
The important part now though is that both sides are contesting quite a lot (pretty much everything between them?) in appeals, except that GW seem to be going into the appeals with little more than the same brawn before brain mentality that started the case while CH have brought on some apparently very well respected IP lawyers who specialize in appeals.
Automatically Appended Next Post: Oh, I just thought I should point out this part of the BoLS pos:
some guy on BoLS wrote:Thoughts and Implications:
It's looking like however CHS as an entity comes out of this ruling, the implications for the 3rd party industry are profound.
-The ruling of no infringement for the use of the underlying shape and size of GW shoulderpads is now on the legal record.
-Possibly more important is not guilty verdicts on the use of GW trademarks and terms on the CHS website.
-While certain CHS products themselves may disappear from the Earth in the aftermath of this case, it looks like the verdict may have provided a clear blueprint for the 3rd party accessory bits market. One that allows legal use of certain GW trademarks and terms in a way that goes way beyond what Nottingham themselves ever wished to allow.
Again this has been discussed but that was a while back now.
The really important part of the ruling so far are these. Assuming it doesn't change in appeals there seem to be some very clearly defined rules now for what 3rd party manufactures can do.
GW went into the case trying to send a clear message of 'try to make money off our stuff and we'll ruin you', but the verdict, as it currently stands, seems to allow CH (and anyone else) to create shoulderpads and market them as 'shoulderpads compatible with GW space marines'.
Sirius42 wrote: Thanks jono and Az
so now both sides are disputing , and essentially we wait another age to see where this goes ?
I'm not a lawyer but from what people where saying it sounds like it won't, all the facts are known, all the arguments made, all that is needed now is for some other judges to go in and see if any calls where made that didn't make sense or if the jury said one thing while the law actually said something different.
The long part is over, we just need someone to check over it all.
A friend of mine is applying for a FW sculpting position, you wouldn't believe the hoops they are making him jump through. I mean, he has to do freelance work to make money so he can eat. He can't spend hours each day for a month sculpting 4-5 models for a job he might not even get.
You'd think they would be able to look at a sculptors portfolio of work and be able to judge their sculpting ability from that, especially if those sculpts had been put into production for sale. You'd be able to have the physical model on your desk to look at to say "Wow, this is a great sculpt".
I hate to point this out, but GW is most likely scamming him. I dunno if anyone else has noticed this, but GW has a little clause that states that they are the sole owner of all materials submitted to them and that you surrender all IP rights to them by submitting them. Effectively, he's giving them four or five free sculpts per month without them having to pay him.
azreal13 wrote: ...and an individual from that firm who appears to be somewhat of an IP law ninja.
To be honest I thought of this case when I saw a scene in a recent Marvel comic with a hoard of faceless, nameless lawyer representing a major corproatoon.. and in the other corner is Jennifer Walters, Esq, aka She Hulk.
A friend of mine is applying for a FW sculpting position, you wouldn't believe the hoops they are making him jump through. I mean, he has to do freelance work to make money so he can eat. He can't spend hours each day for a month sculpting 4-5 models for a job he might not even get.
You'd think they would be able to look at a sculptors portfolio of work and be able to judge their sculpting ability from that, especially if those sculpts had been put into production for sale. You'd be able to have the physical model on your desk to look at to say "Wow, this is a great sculpt".
I hate to point this out, but GW is most likely scamming him. I dunno if anyone else has noticed this, but GW has a little clause that states that they are the sole owner of all materials submitted to them and that you surrender all IP rights to them by submitting them. Effectively, he's giving them four or five free sculpts per month without them having to pay him.
Considering GW/FW have slews of "test sculpts" from people that they refuse to release, I don't think you're right.
That nonsense has been going around since their painting contest. They had a legal statement that submitting will grand them a non-exclusive license to use your image for promotional purposes.
So people have been saying that "GW owns everything you submit to them" even though the same legal stuff also made it clear that you retain complete ownership of the pictures.
d-usa wrote: That nonsense has been going around since their painting contest. They had a legal statement that submitting will grand them a non-exclusive license to use your image for promotional purposes.
So people have been saying that "GW owns everything you submit to them" even though the same legal stuff also made it clear that you retain complete ownership of the pictures.
Exactly, expecting a prospective artist to spend hours creating something solely for the purpose of trying to gain employment with you, under no assurances they'll get it, has its own problems, but this isn't it.
Sirius42 wrote: Thanks jono and Az so now both sides are disputing , and essentially we wait another age to see where this goes ?
I'm not a lawyer but from what people where saying it sounds like it won't, all the facts are known, all the arguments made, all that is needed now is for some other judges to go in and see if any calls where made that didn't make sense or if the jury said one thing while the law actually said something different.
The long part is over, we just need someone to check over it all.
Appeals are comparatively quick. The appeal is on hold right now while the parties are engaged in mandatory settlement discussions with a court-appointed mediator. In the 7th Circuit Court of Appeals these mandatory mediated conferences are standard upon filing an appeal.
To be a little bit more precise, the facts are known, but the appellate arguments have not been made yet. Both parties are wedded to the trial record in an appeal, so you skip the lengthy discovery process. If it didn't come into the trial, it isn't an issue on appeal. The closest you get to something outside the scope of the trial itself would be a reversible error argument regarding the Court's decision to keep something out of the trial, e.g. the trial judge erred in granting X, Y, Z motions in limine, or the trial judge erred in granting summary judgment.
What you do on appeal is take the trial record to the appellate court and argue for why something should be reversed or remanded for a new trial. Those arguments will be made in the form of back and forth briefs and probably some form of oral argument on a schedule that is set by the Court of Appeals. Appellate work tends to be confined to research and the writing of briefs, but what is important about an appeal is that is sets stronger precedent, and that is what will be of principle interest to the industry in this case.
When it comes to appellate rulings, the decisions of one circuit court are not binding on another circuit court, but are generally given a great deal of weight. When it comes to copyright and trademark law, the 7th Circuit Court of Appeals has a strong record, and decisions that come down from the 7th Circuit regarding copyright and trademark law are generally given more weight. The 7th Circuit Court of Appeals is the one that recently made a ruling upholding a Fair Use dismissal in the South Park case. It is an exciting venue for an appeal, not only because of the deference the 7th Circuit is given regarding copyright and trademark law, but also because the 7th Circuit contains several judges that take intellectual property law very seriously. Without a doubt, this case will get keen attention from the 7th Circuit which will appreciate the broader implications of the lawsuit.
The next most exciting thing to wait for is finding out which three judges will be on the panel.
To be a little bit more precise, the facts are known, but the appellate arguments have not been made yet. Both parties are wedded to the trial record in an appeal, so you skip the lengthy discovery process. If it didn't come into the trial, it isn't an issue on appeal. The closest you get to something outside the scope of the trial itself would be a reversible error argument regarding the Court's decision to keep something out of the trial, e.g. the trial judge erred in granting X, Y, Z motions in limine, or the trial judge erred in granting summary judgment. .
Do you think we could see something like this come up considering some of the questionable calls the trial judge made?
Out of curiosity (and I can't remember) did the fact that GW was sending letters to artists asking for them to sign over rights during the trial come up during the trial?
rigeld2 wrote: Out of curiosity (and I can't remember) did the fact that GW was sending letters to artists asking for them to sign over rights during the trial come up during the trial?
I thought with a bit of bluster from Moskin they managed to get it removed from trial along with their deceit over the patent office applications.
rigeld2 wrote: Out of curiosity (and I can't remember) did the fact that GW was sending letters to artists asking for them to sign over rights during the trial come up during the trial?
Yes. In fact, it came up specifically with regard to Gary Chalk, whose Mantis Warriors artwork GW had asserted against Chapterhouse Studios. Chapterhouse had a discovery request pertaining to the contact information GW had for any of the artists of the asserted works of art. GW provided none, claiming that it did not have any such contact information.
Chapterhouse Studios performed an independent investigation in order to contact such artists. One such artist was Gary Chalk. When contacted, Gary Chalk swore an affadavit not only asserting that he had never signed over his rights to GW, but that he was not in fact an employee of GW as Alan Merrett had testified, but was rather an independent contractor. Further, he provided communications (via both mail and email) that both Gill Stevenson and Alan Merrett had with him, specifically concerning the asserted Mantis Warriors artwork and asking him to sign a document certifying that he had in fact signed over his rights. These contacts occurred prior to GW telling Chapterhouse Studios that it did not have contact information for Gary Chalk.
Gary Chalk did not sign this instrument and attached a copy of said communications to his affidavit.
Games Workshop dropped the Mantis Warrior claim and the Court denied Chapterhouse's motion to dismiss and for sanctions, choosing instead to dismiss the claim with prejudice.
Good job on that one Judge Matthew F. Kennelly. Later, Jonathan E. Moskin was sanctioned for withholding discoverable communications, a fact which Chapterhouse had to uncover, again, with its own independent investigation. Judge Kennelly awarded sanctions limited to the fees Chapterhouse paid to have the documents expedited as part of its investigation.
This is from the American Bar Association Model Rules for Imposing Disciplinary Action (Rule 10 commentary) if you want to know how the American legal profession views sanctions. Quoted below is a list of aggravating factors to consider when imposing a sanction:
“The following lists of aggravating and mitigating circumstances are found in Standard 9. Aggravating factors include: prior disciplinary offenses; dishonest or selfish motive; a pattern of misconduct; multiple offenses; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; submission of false evidence, false statements or other deceptive practices during disciplinary process; refusal to acknowledge wrongful nature of conduct; vulnerability of victim; substantial experience in the practice of law; and indifference to making restitution.”
d-usa wrote: That nonsense has been going around since their painting contest. They had a legal statement that submitting will grand them a non-exclusive license to use your image for promotional purposes.
So people have been saying that "GW owns everything you submit to them" even though the same legal stuff also made it clear that you retain complete ownership of the pictures.
I know this is starting to get ot, but this is GW current submission policy taken directly from GW.
Games Workshop Submissions Policy wrote:
For legal reasons we will only accept your submission if you agree to assign all intellectual property rights in it to us. This means that by making a submission you automatically give Games Workshop ownership and exclusive rights to use your submission for any purpose. It is important that you are comfortable with this before making a submission to us. Please do not make a submission if you do not agree to this.
FFG had change the rules to one of their contests AFTER submissions were in because anything you submit to FFG for a GW licensed product is also property of GW.
I didn't mean to derail the conversation, what I had to say I thought was relevant to a few comments about GW as it is today.
They are now essentially at that point where they are believing their own propaganda, for lack of a better word.
Many companies are like this. They have the "Rah, Rah we're the best" attitude and to say otherwise would show that you aren't a team player or as Kirby's Red Book would say "Not a good fit".
In the end staff just go along with it because they might be afraid to make waves and lose their jobs. For all we know people within GW might have said "We should probably reduce our claims" or "We really don't own everything we say we do" etc.
I'd bet money that this lawsuit got as far as it did due to GW staff probably being too afraid to speak out and go against the "Company line". "You don't believe in the company, FINE. We'll find someone who will".
They think they are doing what is in the best interest of themselves and the company, but in the end they are really hurting the company, which this lawsuit IMHO has done.
Going back to the sculpting example, I've known many sculptors who are excellent at what they do but just can't spend the time to go through GW's hoops to get a job there even though they would love to work for GW.
GW's own procedures and policies are hurting them and it's likely the same issues crop up in other departments like HR, Manufacturing and Legal. Not just the Studio.
Shandara wrote: Well, that submissions policy is deftly hidden. I don't think I've ever seen it when emailing them.
Most of them just say 'All submissions to GW are subject to our submissions policy'. You actually have to go look up their submissions policy that's posted on their website. It's a fairly long read, but has that down toward the end, past the sections on if you can get your submissions back afterward (in a nutshell: maybe, if we feel like it).
weeble1000 wrote: Fun fact if you're right: Gill Stevenson towed the company line and still lost her job.
But that's publicly, which is expected. It's not like she's going to publicly say "Yeah I told them they have no real case and this will go badly for them, but they didn't listen".
Do we really know what she was advising to her superiors behind closed doors?
weeble1000 wrote: Fun fact if you're right: Gill Stevenson towed the company line and still lost her job.
But that's publicly, which is expected. It's not like she's going to publicly say "Yeah I told them they have no real case and this will go badly for them, but they didn't listen".
Do we really know what she was advising to her superiors behind closed doors?
She actually can't say what she told them, attorney client privilege and all. That said, she was the pooh bah of GW legal, being GW's only in house counsel until she hired three more attorneys to work for her.
She might have advised GW to not do it, but you'd have to assume Tom Kirby is ABSOLUTELY bonkers if you also believe Jonathan Moskin advised against it. You'd have to believe Kirbry ignored his in house counsel and ignored his outside counsel. That begins to defy credulity, even for GW.
What is more likely is that management handed down a dictum "destroy 3rd party manufactures," that dictum was implemented aggressively by Gill Stevenson who hired an aggressive lawyer to handle it aggressively once they had found their first target.
At some point both of them may have covered their butts with an "analysis of risks" email, but the case was handled so aggressively, and continues to be, by GW that it is extremely unlikely management was fighting an uphill battle against well meaning detractor for three years.
My bet is that Moskin was telling GW, 'We are going to crush them, don't worry. We'll get the in the next brief, we'll nail them on summary judgement, we cN whip them at trial, don't worry, we'll get them on appeal.' Gill was probably taking that advice right back to HQ IF and WHEN they asked about the case, which was probably almost never. Stay the course. They'll run out of money eventually. This won't REALLY go to trial, etc.
And bear in mind that Moskin had basically zero substantive trial experience before the CHS trial, so he may have had his own motivations for taking the case to trial. If you want to come off like a big, important trial lawyer , you've got to have trials under your belt.
How long does it normally take someone in Stevenson's position to get a new job?
Is it unusual at all for her to be back in the game already and if so could that suggest she left willingly (jumped ship)?
weeble1000 wrote: Fun fact if you're right: Gill Stevenson towed the company line and still lost her job.
[pedand] toe the line [/pedant]
On that front, Ms. Stevenson appears to have bounced back and found another in house counsel position.
Spoiler:
Now we wait to see if there is a dramatic uptick in design patent lawsuits in the shoe retailer business.....
You misspelled the first "Pedant".
Hoisted with my own petard.
Automatically Appended Next Post:
jonolikespie wrote: How long does it normally take someone in Stevenson's position to get a new job?
Is it unusual at all for her to be back in the game already and if so could that suggest she left willingly (jumped ship)?
[speculation zone]
Lining up a job in 6 months isn't unusual at all. She was an established professional, hopefully with a network of contacts to work.
The unusual bit was leaving and not having a job lined up ahead of time. This suggests that the parting was unexpected and little or no heads up was given (also she was let go about a month after the CHS verdict came down which suggests it was tied to that event). If I was jumping ship in this economy, I'd wait until I had secured employment first.
weeble1000 wrote: The 7th Circuit Court of Appeals is the one that recently made a ruling upholding a Fair Use dismissal in the South Park case.
I can only imagine the face of the judge as he/she had to preside over a case that centers around "what what in the butt". While I can see serious aspect of the legal issue driving the case, the subject manner would be like having a Jerry Springer Show set in the courtroom. Way to stay classy America
My phone won't let me quote for some dumb reason but the talk of the 'chilling effect' and 'copyright trolls' in that south park link makes reminds me greatly of GWs entire MO throughout this case.
Would it be wrong to say that the views of the 7th circuit are highly favourable for CH given that they threw that case out?
weeble1000 wrote: Fun fact if you're right: Gill Stevenson towed the company line and still lost her job.
Fun fact: All redshirts, blackshirts and all foreign HQs towed the company line and still lost their job.
Actually, the only one safe is the one defining the company line.
Which is true for every company, really. The one in charge never takes the blame for failure even when they're directly responsible, someone always has to take the blame, and they really don't care how loyal you are or if you were just doing what you were told.
jonolikespie wrote: My phone won't let me quote for some dumb reason but the talk of the 'chilling effect' and 'copyright trolls' in that south park link makes reminds me greatly of GWs entire MO throughout this case. Would it be wrong to say that the views of the 7th circuit are highly favourable for CH given that they threw that case out?
That case was about parody, but you should take a look at some of the other 7th Circuit decisions, or read what Judge Posner has to say about copyright and trademark law. Generally, certain judges on the 7th Circuit favor narrowing and more sharply defining copyright, trademark, and patent protection. Posner in particular seems to have a view that protecting business interests is important, but not so far that it harms someone else's ability to have an equally legitimate business or perverts the intention of the law. And Posner dislikes frivolous or predatory lawsuits.
The South Park case is interesting because although it was an upholding of Fair Use (in that case a dismissal on the basis of fair use), the opinion is pretty strongly worded, and it did involve a for profit use of the asserted copyrights. The Chapterhouse Studios lawsuit involves a substantial amount of copyright fair use and trademark fair use, and Games Workshop has already argued to the lower court that Chapterhouse should not have been allowed to articulate its copyright fair use defense, and doubtless this will be a very important argument for Games Workshop on appeal. As you point out though, the wording of the opinion comes down pretty hard on the potential harm done by the plaintiff in filing the suit and essentially lauds the lower court for dismissing a totally BS case, preventing it from doing even more harm.
Games Workshop's argument is essentially that if you are selling something, you don't get to claim fair use as a defense when it comes to copyrights. This is different from the South Park case because Chapterhouse never claimed that the purpose or character of the use was parody; it was merely commercial, though purpose or character of use is only one of several factors to consider and Chapterhouse has cited Supreme Court precedent stating that commercial use is not dispositive of a fair use defense in and of itself.
Games Workshop's arguments lead down a very concerning path, because GW would seek to make it so that the only relevant factor to consider in determining fair use is the purpose or character of the use. Games Workshop has basically argued that it doesn't matter what the degree of copying was; it doesn't matter what effect the copying had on the value of the asserted work; all that matters is that your goal is to make money selling something that in any way to any degree copies some part of the owner's work of art. That would be a substantial shift in copyright law, and if GW loses that argument on appeal, the wording of the opinion will be incredibly significant for artists and copyright holders across the board because how and why the appellate court denies GW's appeal on that basis (assuming it does) would be very important.
Toy soldiers could very well have a significant effect on copyright and trademark case law.
On that front, Ms. Stevenson appears to have bounced back and found another in house counsel position.
Spoiler:
Now we wait to see if there is a dramatic uptick in design patent lawsuits in the shoe retailer business.....
Spoiler:
Have you not heard of patent leather shoes?
It’s kinda fun to watch our tiny little hobby shaking the roots of copyright law. I wonder if future law students will get into the hobby after having to study GW vs. CHS in class?
It’s kinda fun to watch our tiny little hobby shaking the roots of copyright law. I wonder if future law students will get into the hobby after having to study GW vs. CHS in class?
We'll have to see if the appeal even goes forward. Right now the parties are still discussing settlement. If it does go forward, chances are the decision of the appellate court, whatever that decision is, will be significant.
And your pun was much appreciated.
Spoiler:
And as an aside: Let's hope that Gill lands on her feet, and that Macintosh Fashion knows what they are getting into.
weeble1000 wrote: Fun fact if you're right: Gill Stevenson towed the company line and still lost her job.
[pedant] toe the line [/pedant]
On that front, Ms. Stevenson appears to have bounced back and found another in house counsel position.
Spoiler:
Now we wait to see if there is a dramatic uptick in design patent lawsuits in the shoe retailer business.....
6 Degrees of Kevin Bacon - according to Linkedin, Gill Stevenson is a 3rd link from me - i.e. I am linked to someone who is linked to someone who is linked to Gill Stevenson - do I try and link to her on that basis??
richred_uk wrote: 6 Degrees of Kevin Bacon - according to Linkedin, Gill Stevenson is a 3rd link from me - i.e. I am linked to someone who is linked to someone who is linked to Gill Stevenson - do I try and link to her on that basis??
I'd love to buy her a few drinks and talk about working for GW as in-house counsel.
weeble1000 wrote: Fun fact if you're right: Gill Stevenson towed the company line and still lost her job.
[pedant] toe the line [/pedant]
On that front, Ms. Stevenson appears to have bounced back and found another in house counsel position.
Spoiler:
Now we wait to see if there is a dramatic uptick in design patent lawsuits in the shoe retailer business.....
6 Degrees of Kevin Bacon - according to Linkedin, Gill Stevenson is a 3rd link from me - i.e. I am linked to someone who is linked to someone who is linked to Gill Stevenson - do I try and link to her on that basis??
Lol, yea, she's not more than a few links from me either. The world is small and I think Gill and/or some of the folks down the chain from me have lots of links.
Unless you can relate the relevance of Scientology to CHS vs GW and how that will impact the case or ruling, or how the pretence of a discussion with GW's former in-house staff while feeding them prodigious amounts of alcohol to satisfy ulterior motives contributes to the case, can it.
poda_t wrote: Unless you can relate the relevance of Scientology to CHS vs GW and how that will impact the case or ruling, or how the pretence of a discussion with GW's former in-house staff while feeding them prodigious amounts of alcohol to satisfy ulterior motives contributes to the case, can it.
Well, let us see now - Scientology sued over the 'secrets of their religion' being given out.
The secrets of their religion was that ancient aliens of stupidity once came down from the sky and spread stupidity by their deaths by volcanoes.
If they had laughed it off then all would have been fine - instead they sued, and it turned out that Scientology really is about ancient aliens of stupidity having once come down from the sky, and spreading stupidity by their deaths by volcanoes.
The point - for the lyrically challenged, is that sometimes leaving well enough alone is better than admitting that, 'Oh yeah, our religion really is about the ghosts of aliens of stupidity'.
Or, as the case may be, 'Oh yeah, we didn't actually have a trademark on Roman numerals and fur' or 'Oh yeah, we didn't actually invent Space Marines, did we?'
There - not only have I canned it - I have put a nice big label on the can, labeled 'Aliens of Stupidity' and put it on the shelf, for all to see - feeling better now?
Sometimes there really is a point to the snarky comment - this was one of those times.
GWhas shown that they are willing to go to court over stupid things, and things that they actually had no grounds to go to court over - as has Scientology. Maybe Kirby is channeling the spirits of Xenu?
The Auld Grump
*EDIT* Added a link about Xenu, for the sake of completion....
*EDIT 2* And, for the record, Ms Stevenson really would not be allowed to talk about confidential information - the joke is that GW would be willing to sue over being a bunch of as if it were a secret... when everybody already knows....
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) of the MBA-variety have a tendency to regard their legal departments as the wizards who can tell them just what magic spell to pronounce, only then to figure that "hey, we can think of those ourselves, thus saving us the costs of actually having a competent legal department!", which might explain how they got to the conclusion you suspect - but it doesn't stand the most cursory of giggle tests, 
they were!