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If I was to boil all of this down to the simplest statement possible, I might say that CHS is arguing that GW hasn't yet demonstrated a case.

I don't think there's any substantive question that the specific works alleged to be infringed have not yet been identified. Games Workshop says that the Defendant knows what works it infringed and Chapterhouse Studios says that it is the Plaintiff's responsibility to plead a colorable claim of infringement.

Given the untenable nature of this position, I had assumed Games Workshop would eventually move away from it. To some extent it has, although Chapterhouse is still arguing that nothing is really different. Its arguing, for example, that the Plaintiff's response to interrogatory No. 1 is non-responsive. And it is quite clear that nobody yet knows what specific works the accused products are accused of infringing.

We'll see what happens when Judge Kennelly rules on these motions. As for upcoming developments, look for Chapterhouse's motion to compel and the Court's ruling on both the Plaintiff's and the Defendant's motions to compel.

Hopefully we'll see Chapterhouse's motion upheld and then motions for summary judgement. Those should be very interesting, especially if we get a written opinion from Judge Kennelly.

So... wait a minute...

GW are suing CHS without saying what they are suing them for?

That makes TOTAL SENSE.
Well played GW. <comment redacted; some words are not to be used on Dakka as pejoratives --Janthkin>

Korraz wrote:So let me get this straight...

GW: "CHS copies our stuff!"
CHS: "What stuff?"
GW: "All of it!"
CHS: "How are we supposed to respond to this?"
Judge: "CHS is right, WHAT are they copying?"
GW: "All of it!"
CHS: "Judge?"
HW: "All right, all right. YOU tell us what you are copying, okay?"
CHS: "Are you serious? Our position is that we don't copy. That's why we are HERE!"
GW: "You have skulls! Also, tell us what you are copying! JUDGE!!"

Judge: "sigh.... " *facepalm* "FML"

Could GW make a legally sound argument that CHS is infringing copyright by making a product that both is intended to fit GW's models and is definitely in the GW style?
Because that's the only thing I can see them moving towards-it's a Rhino door, and GW makes stuff that looks like that.

weeble1000 wrote:

So GW isn't even consistent. One Rhino conversion kit is based on the GW Rhino Space Marine vehicle and another isn't.

Wait, so you're saying that GWs lawyers have been writing their rules?! Now it all makes sense!!!!

don, what I think is being said is that GW isn't being consistent even with their own lawyers.

Best of luck to them, I think they're going to need it! (The lawyers, and I hope they get their fees prepaid!)

Cheers

Andrew

Ordznik wrote:Could GW make a legally sound argument that CHS is infringing copyright by making a product that both is intended to fit GW's models and is definitely in the GW style?
Because that's the only thing I can see them moving towards-it's a Rhino door, and GW makes stuff that looks like that.

GW would have to define the GW style. The issue at the moment is the lack of definition of the copyrights that CH has allegedly violated.

GW need to make a specific claim so that CH can defend it.

Zakiriel wrote:GW has many times in the past used its money and slap suit tactics to bully potential / actual competitors around into doing what they wanted. Now it seems that the competition is up to defending themselves and that leads them into the murky toxic swamp of where did GW borrow or plagiarize their alleged IP's and model designs. I wonder if it will turn out similarly to what went down with White Wolf in their suit against the the makers of the Underworld movies where in they accused the film company of taking their story from VTM and a novel published by them. The Judge however ruled in favor of the film company in such a way that White Wolf was left in a position that it could not really defend any of their other same themed works. Thusly they stopped publishing those anymore and moved to a new area of IP's. If things go badly for GW's case the collateral damage to the rest of their product line / IP's could be catastrophic.

As much as I like to beat down on White Wolf for the decesion to drop the WoD for the nwod. The announcement that the WoD was coming to an end, and would be replaced by something else had already happened long before the whole White Wolf v's Underworld began.

Also the judge didn't rule anything, it was settled out of court. Rumour is White Wolf would have suffered if it had gone to the Judges call, but it didn't happen. No one really knows what the settlement is, but the fact neither side has made a big thing of it, I doubt White Wolf got what they wanted.

I personally have my own reasoning to why the WoD ended, and I think it has a lot more to do with Mark Rein-Hagen and royalties, than any other factor.

An out of court settlement normally involves a gagging clause on both parties. That is part of the point of it. Settlements in court are on the public record.

The other point about settling out of court is that no legal precedent is established.

KK, would it come to that though?

Lets face it, CHS hasn't exactly been reticent about their opinions on the matter, would they actually back down when they seem to have a good chance of beating GW?

Yes I can see GW wanting a settlement, but I think that the only way CHS would take a settlement is if they get some serious compensation either in licence to produce add-ons to kits or financial restitution. And lets also face it, if CHS continues to trade, we all know that they "won".

The stated aim of the GW court case was to smash CHS as a company and concept, their doggedness in clinging to the same mantra doesn't seem to allow them to back down, and a settlement is exactly that.

Precedent or not, a settlement is a tear in the paper tiger.

I would be inclined to anticipate a court decision rather than a settlement.

Cheers

Andrew

(I am not a lawyer.)

I do not think CH want to settle out of court. I think they and their lawyers want a clear legal decision in favour of CH.

I could see GW being very anxious to settle out of court, if things keep going badly for them. A tear in the paper tiger is not as bad as the whole mask being torn off.

An out of court settlement probably favored White Wolf, and probably consisted of something along the lines of "we'll give you the amount of money this would cost to beat you in court if you just leave us alone." Or something along those lines.

AndrewC wrote:KK, would it come to that though?
Lets face it, CHS hasn't exactly been reticent about their opinions on the matter, would they actually back down when they seem to have a good chance of beating GW?

Well, the problem there is that GW has left them no choice. In order to avoid a court case, CHS would have to cease production of everything it does and go out of business completely.

Especially with the Pro-Bono representation, CHS literally has nothing to lose by waiting for the judge's decision.

I don't think they should get a license to do what they've been doing. I don't think they need a license legally, though. But if they obtained one, then they'd have to stop when the license agreement ran out (because at that point, they've acknowledge that it is required for their business practices).

Yeah, granting a license would be a long term win for GW.

I agree odin, CHS has no choice but to continue with this and press every advantage they have. Weeble opined that the best outcome for GW is a settlement, but I really don't see CHS, or their lawyers, buying into that.

Because of the all or nothing approach by GW, I can also see CHS demanding such a high level concession from GW such as a 'life' licence so that

1, GW gets to try and protect its IP and
2, CHS has the licence to produce within (or without) reason, products marketed explicitly, which its competitors don't.

Which would GW take, loss of IP rights or being forced to licence without restriction to a third party firm with no end date?

Cheers

Andrew

Chapterhouse Studios should settle the case out of court. It is in its best interests to do so.

I would love to see this case go to trial, but Chapterhouse Studios would be best served by an amiable out of court settlement, assuming Games Workshop is willing to be reasonable in negotiations.

Taking this case through trial doesn't serve much purpose for Chapterhouse Studios, unless Games Workshop is completely unwilling to negotiate a reasonable settlement. I believe that Chapterhouse Studios wants to stay in business and be allowed to freely continue in that business for the foreseeable future. I'm willing to bet that Chapterhouse Studios also doesn't want any more grief from Games Workshop and doesn't want to sacrifice creative control over any future products.

All of this can theoretically be achieved in an out of court settlement. There's no rational reason for this case to go to trial. Games Workshop filed it irrationally and has stubbornly refused to budge from what is apparently a losing position. Chapterhouse Studios is defending itself, but if a fair and reasonable settlement can be negotiated, there's no rational reason for Chapterhouse Studios to waste good time and money going through the stress and hassle of an ultimately unpredictable jury trial.

I think Nick has already suffered enough from this screwed up situation. I don't think it is fair for Games Workshop to have abused Chapterhouse Studios and our legal system by filing this lawsuit and I'd like to see the company pay for that abuse, but I can't in good conscience say that it is the responsibility of Chapterhouse Studios to do it. This case should never have been filed in the first place and ultimately I think the best thing for Nick is to be rid of it so he can get on with his life.

The best thing our community can do for Chapterhouse Studios is to offer whatever support we can and hope for a good result for Nick. In terms of Games Workshop we can use this lawsuit as a wake up call to the kind of deplorable action Games Workshop is willing to perpetrate on its fans and customers. We can work to help out any other victim of Games Workshop's legal abuse, and we can communicate to the company that as a community we won't tolerate this kind of behavior. What we shouldn't be doing is sitting back and hoping that Nick does it all by himself.

That's just my personal opinion about this issue. Obviously, not everyone would agree with me, but I think those people that do believe there's something wrong with this situation should realize that the best way to do something about it is to get involved in any capacity, even if its just talking about the lawsuit. It sounds cheesy, but Chapterhouse Studios didn't bump into pro-bono representation by accident. I think we need to recognize our own agency in this situation because that is the best way to stop it from happening in the future, even if Chapterhouse Studios decides that settling out of court is in its best interests.

Kicker: what kind of jury is really going to be worked up about plastic toys?

And no, I dont think anything about license issue will be involved unless its in an out of court settlement. The claim is just about copy-right infringement and orders to cease and desist, so as romantic of a view we have that some sort of a license deal might be forced in court, the judge's only responsibility is to answer to the issue before him as written on paper, which doesn't have anything to do about allowing the defendant to carry on doing what they please while making them pay a lump sum and royalties to the plaintiff.

If GW doesn't fix its position, it stands to reason that CHS has a good chance in court, and while not necessarily in their own interest, as KK pointed out, tearing the face off the tiger is going to have wide-reaching impacts across the states. Since the british commonwealth more or less share the same precedent based system as with the states, this could see a surge of other daredevils rear their heads if CHS wins, and that could begin to spell: a.) the doom of GW, or b.) the smartening up of GW. I am looking at a 20 year timeline for this to happen if CHS wins...

...allow me to explain GW's problem with investment and how it treats consumers: I found out that when the molds for the necron monolith first popped up, GW stores globally were instructed to sell 10 each in the first year, in order for the molds to have paid for themselves. Factor in that they were already counting on web and FLGS sales too, and their goal is to see the molds pay themselves off in the first year. Problem? No long-term goals, everything is targeted for immediate payoff. In this case it looks like they want to do everything they can to shut down the "after-market" goods dealers for their lines of products so they can continue abusing their customer base.

Granted, I am raging at GW, but I still buy their stuff now and again. I can also see from their perspective with regard to others profiteering from their IP as well, but there are better ways of going about reclaiming that lost profit than what GW is doing here. I agree with OP over in the Letter to Mark Wells thread, that GW left themselves open by leaving holes in their product line for others to exploit. Just because a Casio and a Spare Parts watch look similar does not make one a ripoff of the other...

GW is in a tougher spot than most think though: after the bad rep over the past few years, how well does everyone think the public will respond to GW with a ruling in their favor? And then we will have a week and a half of threads popping up about people raging about GW beating on the little man if they reach an out of court settlement, and then a ruling in CHS' favor will stab holes in GW's IP ship in the states, which could have interesting ramifications on the prices of their product line, or their continuity in north america....

poda_t wrote:Kicker: what kind of jury is really going to be worked up about plastic toys?

This isn't a jury trial, surely? Its not a criminal case...

filbert wrote:

poda_t wrote:Kicker: what kind of jury is really going to be worked up about plastic toys?

This isn't a jury trial, surely? Its not a criminal case...

It's up to the Court (and IIRC, the Defendant/Plaintiff if either requests it) to decide. However, from what I understand(which isn't too much, mind), these types of cases tend to be Judge decisions unless it's larger companies involved(ie. Microsoft, Sony, Walmart, etc.).

In this matter, I don't see the Court itself requesting a jury. It seems to me doing so would be a waste of time and money, especially since everything points to the Judge wanting this over quickly.

filbert wrote:

poda_t wrote:Kicker: what kind of jury is really going to be worked up about plastic toys?

This isn't a jury trial, surely? Its not a criminal case...

US law not UK. Civil and Criminal cases can be handeld by Juries.

Edit: Ninja'd!

Same in canada, people are shocked and stunned when they realize that if they go to court they won't get a jury for a civil claim (incredibly rare to do so)...

It isn't likely that its going to jury at all, i was just commenting on Weebl's remark about going before a jury. It's not like either party wants to go before a jury because who are you going to populate it with? The goal is to get as many sympathisers to your cause on that jury, so what you end up with are pro and contra GW gamers, and yet both will likely be in favor of keeping a wider range of products available, so.... as far as i can tell, its not in GW's favor to get a jury, nor is it sensible for any party involved to do so.

Games Workshop has rights to a jury trial and has made that demand. If Judge Kennelly does not toss the case it will go before a jury.

My impression is that for a case like this to be a bench trial, both parties would have to agree to it as each has rights to a jury trial.

JURY DEMAND
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury as to
all issues so triable in this action.

That's from the First Amended Complaint

(b) Demand.
On any issue triable of right by a jury, a party may demand a jury trial by:

(1) serving the other parties with a written demand — which may be included in a pleading — no later than 14 days after the last pleading directed to the issue is served; and

(2) filing the demand in accordance with Rule 5(d).

As to whether a jury demand was a good idea on Games Workshop's part, juries are by nature less predictable than judges but they also tend to be less discriminating. In a case where Games Workshop's claims are spurious at best, I don't think they'd want to be at the sole mercy of a Federal Court Judge. I'll also speculate that a jury demand is potentially more favorable in terms of the inevitable dispositive motions given that with issues as complicated and subjective as copyrights, it is easy for a Judge to simply pass the buck to the jury and stay away from ruling on copyright issues as a matter of law. I don't think Games Workshop was thinking that far though.

In terms of who you'll see on the jury, Chicago jurors tend to be fairly well educated. I doubt you'd find anyone that knows much about wargaming in the jury pool unless someone has a child that plays. Questions about wargaming would likely make it through into juror questionnaires and voir dire, and I'd expect that Foley and Lardner would be smart enough to strike anyone that knows anything abut wargaming. I don't think knowledge about wargaming would be good for Games Workshop. I also don't think that the jurors would be predisposed to give a crap about little plastic men, but jurors have an amazing ability to be serious about a case when they're sitting in the jury box. Courtrooms are designed to be intimidating and impressive for a reason, although I've never personally been in Judge Kennelly's courtroom.

What you'd likely see is jurors making decisions abut the issues based on broad themes and pre-conceived biases. In this case you've got a large, foreign corporation trying to put a small, American business owner out of business. It helps that Nick Villacci is a nice guy with a young daughter that works out of his garage, etc. etc. On Games Workshop's side you'd have intellectual property rights. Games Workshop is the Plaintiff, and you could expect that artists, photographers, musicians, small business owners, and the like would tend to favor a Plaintiff attempting to defend itself from someone copying its ideas. However, there's a wrench here because Chapterhouse Studios is also made up of creative, hard-working artists, and these artists have a decided underdog advantage. There's also the apparent pointlessness of the whole thing. There's functionally no damages and for most of the accused works, the customer has to purchase the Plaintiff's product to use it. Given that the jurors will likely not give two craps about plastic men, they very well might be disposed to wonder what all of the fuss is about and be upset at GW for bringing the case in the first place.

I personally think it would be easy to build a profile of a juror disposed to be adverse to Chapterhouse Studios and then strike them. I don't think you'd find a great many jurors predisposed to favor Games Workshop, so my guess is that the Defense would have an easier time getting a favorable jury. After that, its a matter of controlling the narrative. There's few opportunities to put a black hat on Chapterhouse Studios and too many ways to mitigate the damage. There is a wondrous variety of ways to put a black hat on Games Workshop simply from the facts as they exist now. discovery very well might produce some particularly damning thematic evidence, such as e-mails about destroying competition. Hell, Games Workshop's financial reports are enough to start coloring the company as a bunch of D-bags that want to dominate the industry. Fortress Wall? That would only play well with jurors that already thought Games Workshop was justified in defending its rights. It would likely really piss off any adverse jurors. And then there's always the possibility that Games Workshop will make big mistakes like denigrating the quality of the Chapterhouse Studios products. They might do the job of making GW look like a bully without help from the Defense.

As to the issues, Chapterhouse has a problem with the trademark and copyright claims. Jurors would tend to conflate the two and it would look bad for Chapterhouse. There's certainly ways to repair such damage and at the end of the day, I think the thematics strongly favor the Defense. The themes are frankly more important the the factual issues. I could find that I'm wrong after a little research, but I would be surprised if that's the case.

Games Workshop's current argument rests on the idea that the Chapterhouse Studios products fit within the context of Warhammer 40,000. The problem with that position is that the jurors will know basically nothing about the Warhammer 40,000 universe. So to them, a Rhino tank is just another tank like any other tank in the world. A combi-melta is a weird-looking space gun. They won't likely look at a Chapterhouse combi-melta and think, "oh, that's clearly a melta." It'll be a grey plastic space gun and a white metal space gun bit. They might look similar, but one will not look like a copy of the other. Then again, Games Workshop could spin this more favorably by saying that Chapterhouse used its trademarks. Like I said, that's the worst fact for Chapterhouse. But, it doesn't necessarily smack of a knock off because it is labeled "for use with X" and "for X players." This could look less like a knock off than a "Space Knight" that looks for all the world like a Space Marine.

I see, well thanks for the elucidation.

poda_t wrote:Same in canada, people are shocked and stunned when they realize that if they go to court they won't get a jury for a civil claim (incredibly rare to do so)...

It isn't likely that its going to jury at all, i was just commenting on Weebl's remark about going before a jury. It's not like either party wants to go before a jury because who are you going to populate it with? The goal is to get as many sympathisers to your cause on that jury, so what you end up with are pro and contra GW gamers, and yet both will likely be in favor of keeping a wider range of products available, so.... as far as i can tell, its not in GW's favor to get a jury, nor is it sensible for any party involved to do so.

Actually, it's probably MORE in favor of GW to go with a Jury(and it appears they have requested such). Here's why: Juries can be instructed all day on Copyright and IP laws and the like, the problem is them actually understanding it. With only a minimal understanding of the laws involved(many people may have a base working knowledge of criminal laws, but business law and the like is very niche for people not involved in it every day), for the jury it would probably come down to "Does this product(by CHS) look like it was made by GW? Would it be easy for Product A to confuse a consumer as Product B(by GW)?" more than just the merits of the arguments made by both side's lawyers. I have a feeling this is what Weeble was getting at when he said that it's in CHS best interests to settle.

weeble1000 wrote:Chapterhouse Studios should settle the case out of court. It is in its best interests to do so.

I would love to see this case go to trial, but Chapterhouse Studios would be best served by an amiable out of court settlement, assuming Games Workshop is willing to be reasonable in negotiations.

Taking this case through trial doesn't serve much purpose for Chapterhouse Studios, unless Games Workshop is completely unwilling to negotiate a reasonable settlement. I believe that Chapterhouse Studios wants to stay in business and be allowed to freely continue in that business for the foreseeable future. I'm willing to bet that Chapterhouse Studios also doesn't want any more grief from Games Workshop and doesn't want to sacrifice creative control over any future products.

Absolutely. You don't take "bet the company"-style cases to trial, unless you have no other choice.

As one of my more cynical colleagues once put it, "why would you put the future of your company in the hands of 12 people who weren't smart enough to get out of jury duty?"

It's called aftermarket. JC Whitney car catalog would be a prime example. They do not manufacture the car but they make parts that fit the car...fair use. GW will lose this case as the precedent has already been set. If they won the case then all of the manufacturers could sue the aftermarket manufacturers for infringing on their IP. It doesn't make sense there is no real need to argue than simply out of semantics. I mean since you ahve to buy the product from GW in order to USE the product that CH makes is simple free market economics in a shining example of fairness, one market subsists on and boosts the other. In many ways the free market unregulated is a cesspool of greed this is ONE OF THE FEW areas that shines. GW is greedy simply stated. They make their own aftermarket parts with FW so in essence that industry can have competition allowing places like CH to exist, even though they may not be officially licensed. Like MadCatz making controllers for the various video game consoles; they are not endorsed or supported by Microsoft, Sony, or Nintendo, but with fair use laws they are allowed to make things that work with the system. I've shot my wad on the subject. Carry on.

weeble1000, what do you think Chapter House should look for in an out of court settlement?

What I don't clearly understand is that it is legal to make parts for goods in other industries that clearly fit in the exact spot that they are supposed to. If CHS made a whole rhino that they called a rhino and looks similar to a rhino... ok now we have an issue, but in this case it is a door for a Rhino so I can't see that as being a clear copy. A jury I can imagine would see the shape of the door as an issue as they would be match in the place they can go in.

That said, their latest editions like the warlock bikers, farseer, etc... ok those are asking to get sued.

Seems an odd position for GW to take. They are claiming to have had their products copied, but not specifying what has been copied?

I have no legal background, but wouldn't it have made sense to establish this beforehand?

"We'll say they've copied our products."
"Which ones?"
"Oh, I don't know. We'll work something out."

I had assumed GW would be arguing that CHS are infringing their IP, by making products consistent with their universe and products, arguably a messier and more complex case to prove.

So maybe this is a longshot - "Well, if we can get them to slip up and admit to something, it'll make things a lot easier."

And if CHS have made a point of making components distinct from GW products, then the copying issue is key to their position.

Out of interest, in what way is this different from, for example, a company making printer cartridges for others' printers, or components for others' computers, or parts for their cars?

Edit: Ninja'd on the last question.

doctorludo wrote:
Out of interest, in what way is this different from, for example, a company making printer cartridges for others' printers, or components for others' computers, or parts for their cars?

it's not really... most thier kits still require a base GW model.

You hit the nail on the head with the car parts or print cartrages. in a free market economy competition breeds quality improvments and variety. As an example I am overhauling my truck atm it is a nissan frontier (1998 230,000 miles and still strong with no major problems just clutch needing replacment ... excellent truck). replacing the pilot bearing, clutch, pressure plate and throwout bearing. In the GW world they seem to think that since my truck CAME with a Nissan Clutch I can only replace it with a nissan clutch or perhaps a nismo (nissan's performance line) for the sake of this argument nismo would be forgeworld. Now nissan wants about $500 for the listed components from the factory, or about $800 for thier nismo performance kit. OR I buy a Beck and Arley a wellknown good maker of components and they are generally better than factory for $200 ... Now is Nissan (GW) really losing out as i had to buy thier truck to begin with to install my aftermarket clutch (CH)?

The "after market parts" comparison is one of the most interesting legal questions about the case.

On the one hand, yes - there are plenty of examples of legal after market/replacement parts for things like cars. (There are also numerous examples of makers that went too far, and ended up infringing, but leave those alone for now.)

On the other hand, GW's figures aren't cars - they are individual sculptures, which are subject to copyright. Modifying them by adding "after market" parts is creating a derivative work of the original sculpture, a right usually exclusively reserved to the copyright holder.

Printer cartridges, replacement mufflers, and the like tend to be functional elements - as copyright law isn't intended to protect the function of an item, some of the "after market parts" caselaw has evolved along the lines of "you can't prevent someone from repairing their car using copyright." GW's figures don't have functional elements. But they are mass-produced, in pieces, by a company with a long history of encouraging users to swap bits around and/or sculpt things themselves, which could be interpreted as an implied license to the purchaser to make their own derivative works.

No, there's plenty of interesting legal stuff to discuss in this case. But I doubt we're going to get that far - GW doesn't seem to want to make it past Summary Judgment, given their behavior during the early stages.

Janthkin wrote:As one of my more cynical colleagues once put it, "why would you put the future of your company in the hands of 12 people who weren't smart enough to get out of jury duty?"

As much as that is a sad comment on the state of our judicial system, it is hilarious. Seriously though, jury duty is a civil responsibility. People should serve if they can...says the trial consultant that will never be on a jury...

That's not my fault though. I'd just never make it through selection.