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Well, I just learnt a lot. Thanks weebl.

After reading this thread as it has developed I actually feel myself getting a little smarter.

Thanks!

Reading some threads in 40k General or Background will compensate for that

Kroothawk wrote:Reading some threads in 40k General or Background will compensate for that

Ha!

weeble1000 wrote:They did not "hunt" this case. They were hunted in the sense that the Defendant was seeking out any pro-bono representation. I guarantee that W&S had no idea this case existed until the firm was contacted by the Defendant or someone representing the Defendant's interests, possibly an acquaintance or not for profit organization like Lawyers for the Creative Arts.

My guess is that Winston and Strawn took this case because the IP group had some pro-bono time to fill, the issues seemed interesting, the case seemed winnable, and the attorneys likely felt some measure of personal moral imperative.

Sorry I guess I misunderstood some of the, much, earlier comments when there was the various discussions on the aspects of IP law that the case was bringing to the fore. I was under the impression that there several firms interested in representing CHS.

Ah well my mistake, no harm done.

Andrew

AndrewC wrote:

weeble1000 wrote:They did not "hunt" this case. They were hunted in the sense that the Defendant was seeking out any pro-bono representation. I guarantee that W&S had no idea this case existed until the firm was contacted by the Defendant or someone representing the Defendant's interests, possibly an acquaintance or not for profit organization like Lawyers for the Creative Arts.

My guess is that Winston and Strawn took this case because the IP group had some pro-bono time to fill, the issues seemed interesting, the case seemed winnable, and the attorneys likely felt some measure of personal moral imperative.

Sorry I guess I misunderstood some of the, much, earlier comments when there was the various discussions on the aspects of IP law that the case was bringing to the fore. I was under the impression that there several firms interested in representing CHS.

Ah well my mistake, no harm done.

Andrew

I don't think you misunderstood those posts. I do think that Winston and Strawn took this case partially because of the very interesting legal issues. However, I wanted to both clarify that the law firm most likely did not go looking for Chapterhouse Studios and emphasize that setting precedent is in all likelihood not the firm's primary objective in this case.

I wanted to emphasize the former because I think it is important for the wargaming community to recognize its agency in securing pro-bono representation for the Defendant. I assure you that had this community not existed, I don't believe Chapterhouse Studios would have found Winston and Strawn.

As to the second part, I think it is important because the attorneys at Winston and Strawn are, as far as I know, upright, ethical, and professional. Their ultimate goal in this case is to protect the interests of their client, as it should be and as others have indicated. I just wanted to head off the potential connotation that the firm is somehow using Chapterhouse Studios to effect some ulterior motive. I don't think that was your intent, but I thought this potential misconception was a possible interpretation. Were that true, I think it would reflect poorly on the firm. To be sure, the firm has personal interests in the case, such as filling up pro-bono time for example. It might have an interest in seeing a verdict come out of this case and it might not, but I believe that whatever interests there may be are secondary to the bests interests of Chapterhouse Studios.

That said, I also have a deep respect for Foley and Lardner. I don't think that this case has been handled very well thus far, and I think the actions of Mr. Moskin have reflected poorly on the reputation of his partners, but I do believe that like Winston and Strawn, Foley and Lardner is attempting to represent the best interests of its client.

Going back to the "Artistic Works" bit... this has to do not so much with copyright, but with what's generally termed "moral rights", which have to do with the right of an artist to be atributed when his work is shown, also his right not to have a piece destroyed, modified, etc without permission.

In the UK and other places, it's a broadly granted, hence GW's magnanimous grant of permission to convert models, which I believe they've stated would otherwise be a "major infringement" In the US, those rights are reserved for the pieces that fit that aforequoted bit of legalese, the "200 castings or less, signed by the artist" knocking GW minis out of the category of "artistic works"

Forgive me for being a newcomer to the news, but can someone give me a brief summary of what is going on? I tried to skim through the thread, but there are over a thousand posts.

I'm curious on if it's safe to order from them yet or not. In so much as them getting shut down, leaving my money in dreaded limbo.

Holy_doctrine wrote:I'm curious on if it's safe to order from them yet or not. In so much as them getting shut down, leaving my money in dreaded limbo.

If you mean Chapterhouse Studios, yea, it is perfectly fine to order from the company. I haven't personally ordered anything, but since I've started following this case I've met Nick, the owner, and business is chugging along perfectly well as far as I understand. Orders are being filled as usual and new products are still being released.

[Edit] I don't imagine that there's going to be an injunction, so nothing is stopping Chapterhouse from conducting business as usual. Since there also won't really be any damages, however the case turns out, it isn't as if Chapterhouse is expanding its potential liability by continuing to sell products. Now, releasing new products is a different story. So far, Chapterhouse has been releasing a few new products. I hope that these have been cleared by the company's counsel, but, again, it won't have a direct impact on customers. In fact, if you think the company will get shut down, now is the time to legally acquire the products that you want.

weeble1000 wrote:

Holy_doctrine wrote:I'm curious on if it's safe to order from them yet or not. In so much as them getting shut down, leaving my money in dreaded limbo.

If you mean Chapterhouse Studios, yea, it is perfectly fine to order from the company. I haven't personally ordered anything, but since I've started following this case I've met Nick, the owner, and business is chugging along perfectly well as far as I understand. Orders are being filled as usual and new products are still being released.

Thank you very much for the answer.

LumenPraebeo wrote:Forgive me for being a newcomer to the news, but can someone give me a brief summary of what is going on? I tried to skim through the thread, but there are over a thousand posts.

No problem. I'll give you the short, short version.

This is from my post on page 34:

To bring us up to speed, GW filed its complaint and CHS submitted a motion to dismiss. The Court required GW to amend the complaint and GW filed the First Amended Complaint, adding 4 paragraphs to the original complaint. CHS made another motion to dismiss. The Court denied the motion but required GW to respond to early discovery aimed at clarifying its copyright infringement claims. Accordingly, CHS sent interrogatories to Games Workshop, which included:

"Identify each infringement of your copyrights for which you claim Chapterhouse is liable, by identifying (a) the copyright infringed; (b) the allegedly infringing product or products; (c) the exclusive right or rights of the copyright owner, as set forth in 17 U.S.C. Section 106, that you claim has been infringed; and (d) the specific conduct that constitutes the infringement."

Meanwhile, GW had sent interrogatories to CHS requesting information regarding all GW products in the possession, control, etc. of CHS. GW also requested discovery regarding any and all sources relied on, etc. by CHS to produce the accused products.

These interrogatories were objected to by CHS on grounds that they were overly burdensome, unduly vague, etc. GW submitted a motion to compel to the Court requesting that CHS answer the interrogatories that were properly directed to CHS affirmative defense of independent creation.

The status conference is intended find a way to move the case forward efficiently. i.e. how the heck is this case going to go forward when the claims are so broadly unspecific and the parties have heretofore be quite unable to amiably find a solution to this problem.

Chapterhouse Studios just submitted a motion to compel asking the Court to require Games Workshop to respond to its interrogatories and request for production, basically asking for Games Workshop to show "exemplars" or copies of the works alleged to be infringed, specify the dates of creation and other relevant information, describe what is alleged to infringe these alleged copyrights and the manner of that infringement. All of this is directed towards requesting the Court to compare the accused products with the asserted works to see if any substantial similarity exists. Chapterhouse Studios believes that no substantial similarity will be found and the claims can therefore be disposed of.

That should get you up to speed. If you want some more detail about the joint status report, read the entirety of my post on page 34. The last few posts I've made also discuss copyrights generally as well as derivative works.

Eventually there will be a status conference and the Court will rule on the parties' motions to compel. The outcome of the status conference and the Court's rulings on the motions to compel will largely dictate how the case moves forward.

Wow... I think this is the longest conversation I've ever started on any forum. Should we be celebrating the 1000th post? I can't help but think that if the court system were as fast as it looks on TV we wouldn't have gotten past 10 or so.

weeble1000 wrote: I predict that this status conference will go poorly for Games Workshop.

I'm still wondering if GW wants to win this case at all. I mean, I think that CHS is in the right here, but at the same time I could make a 10x stronger argument than what they're making.

I mean, really. If they're going on with this case, they really do need to go through the whole CHS catalog and accuse each product in turn.

I actually think a good strategy might be to list hundreds of items infringed for each piece of infringing work- when you're accusing the salamander/dragon shoulderpads, bring up every instance of the Salamander shoulders in every painted miniature and every piece of artwork you've got out there.

The only thing I can think of is that they want CHS to divulge the works by GW that they've been exposed to first so that CHS cannot claim that they never actually saw the work they're accused of copying.

But Chapter House haven't been accused of copying anything.

That's the key flaw in the GW case so far.

odinsgrandson wrote:
I'm still wondering if GW wants to win this case at all. I mean, I think that CHS is in the right here, but at the same time I could make a 10x stronger argument than what they're making.

I mean, really. If they're going on with this case, they really do need to go through the whole CHS catalog and accuse each product in turn.

I actually think a good strategy might be to list hundreds of items infringed for each piece of infringing work- when you're accusing the salamander/dragon shoulderpads, bring up every instance of the Salamander shoulders in every painted miniature and every piece of artwork you've got out there.

The only thing I can think of is that they want CHS to divulge the works by GW that they've been exposed to first so that CHS cannot claim that they never actually saw the work they're accused of copying.

Well, there is a logical reason for GW to avoid specifying the claims. First, GW is arguing that its fictional universe has been infringed, and specifying the claims in the way that the Defense is fighting for would substantially undermine that position. Second, Games Workshop can always specify the claims at a later date if it is forced to by the Court. Third, Games Workshop could also be trying to get the case dismissed without prejudice.

I think the drawback to this strategy is the potential for it to antagonize the Court and strengthen the Defendant's position. Because the defense is pro-bono, drawing this fight out does not make it harder for Chapterhouse to defend itself, and Winston and Strawn has already effectively communicated that it is taking this case seriously and is going to advocate aggressively for its client, so I think Games Workshop has little to gain by waiting for Winston and Strawn to blink.

I wouldn't put Games Workshop's current position down to inept or careless advocacy (I think there's different indications of that). Instead, I would look at it as an awkward position that's being argued as well as it can be. My lawsuit experience is very focused on trial strategy (things like overall case narrative, jury selection, opening and closing arguments, witness prep, visual evidence, teaching technology, etc.) so I'm not the best best person to be commenting on the relative merits of Games Workshop's current strategy at this rather preliminary point in the case. So while I do think Games Workshop is making inherently flawed arguments, the Plaintiff's current position in the case probably has some strategic benefit.

As I stated above, I have some guesses about what Games Workshop may hope to gain from resisting definition of its claims, but there may be some strategic benefit that I haven't considered.

As far as Games Workshop throwing everything at Chapterhouse, I think there's at least two potential risks with that. First, because Judge Kennelly is trying to move this case along quickly and efficiently, he might find such an action frustrating. If Judge Kennelly gets really pissed off, he might end up dismissing the case with prejudice, but I think he'd have to be very, very pissed off to do that. Second, it would put a great deal of Games Workshop's copyrights at risk. The Court could, for example, rule that the Black Templar's heraldry is simply not protectable by copyright as a matter of law. Is that likely? Probably not as much as summary judgement as to non-infringement on the basis of substantial similarity, but it is a possibility.

odinsgrandson wrote:...I actually think a good strategy might be to list hundreds of items infringed for each piece of infringing work- when you're accusing the salamander/dragon shoulderpads, bring up every instance of the Salamander shoulders in every painted miniature and every piece of artwork you've got out there...

I don't believe the court would be happy with that. If anything it helps the defense show that their concept for their shoulderpad isn't in and unto itself based on any one work, if any. The copyright protects the individual interpretation present in the work, not necessarily the variation on a theme.

Could it be that Games Workshop is just so used to people folding to it's bullying that it doesn't know how to prosecute an actual case?

skyth wrote:Could it be that Games Workshop is just so used to people folding to it's bullying that it doesn't know how to prosecute an actual case?

Yepp, that's the point.

Kilkrazy wrote:But Chapter House haven't been accused of copying anything.

That's the key flaw in the GW case so far.

Yeah, I'm really not sure how GW is expecting to win this case without actually making a substantial claim. But then again, they probably don't.

If they are trying to win this case, then they're probably trying to hold off as long as they can on making some particular claim of infringement.


Now, in order to keep the courtroom happy, could they make the case that "we have hundreds of pieces of artwork like this?" That way, when the defendant makes the case that he never saw that particular artwork of a salamander, GW has plenty of room to pull up another one (and another one, and another one).


On the other hand, if they do make a specific claim against each and every work by CHS, it is entirely possible that the court will have to look at them on a case by case basis (ultimately, that means that they can rule that one or two are copies, and other works are fair game). And their goal was to bury CHS forever, right?

Yeah... it is just a really bad position to take. I mean, come on!

odinsgrandson wrote:Now, in order to keep the courtroom happy, could they make the case that "we have hundreds of pieces of artwork like this?" That way, when the defendant makes the case that he never saw that particular artwork of a salamander, GW has plenty of room to pull up another one (and another one, and another one).

No, because copyright infringement has to be of a specific copyrighted work. There are basically 4 ways you can respond to a charge of copyright infringement:

1 - It's not a valid copyright. (validity)
2 - We didn't see it, so we couldn't copy it. (access)
3 - If we did see it, we didn't copy it. (infringement)
4 - If we did copy it, it was fair use. (fair use)
(note that there are others).

In order for CH to be able to adequately respond, they have to know what they are being accused of copying. Once they know, then they can make their case and the court will determine (1) if it's a valid copyright; (2) whether defendants had access to the work; (3) whether the work is a copy; and (4) whether the defendant has proven fair use.

Otherwise, you're asking the court to take GW's word for the fact that they copied, and placing the burden of proving noninfringement on CH.

Thnak you for that summary!

You can almost start to see the reasoning behind GW's hesitancy...

Precisely Biccat. This is why I don't think Games Workshop's current position is tenable. The Defendant really isn't in a position to evaluate the Plaintiff's claims and cannot intelligently respond to them. This business of, "only defendant knows which of the foregoing works (including the twenty works identified in the complaint) defendant accessed and consulted as inspiration for his 106 works in issue…." is bordering on absurd.

I sincerely hope that the Court will require Games Workshop to define its claims. I also think that the Defendant is reasonable in arguing that the Plaintiff's discovery requests should be delayed until after the Defendant's request for production has been fulfilled and its interrogatories answered.

At the end of the day, the Plaintiff's position can be boiled down to essentially "I don't know what has been infringed, but it is clear that something has been infringed." How can the Plaintiff, for example, state that the Tyranid Codex has been infringed? What part? Is the Defendant accused of infringing one, some, or all of the works of art included within the Tyranid Codex? If so, how have they been infringed? How can the Defendant begin to evaluate the validity of the asserted works when the Tyranid Codex does not provide any of the relevant information with regard to most, if not all, of the works of art reproduced in the book? When were the works created? By whom? Were they in the employ of Games Workshop at that time?

All of that information is essential to both proving and defending a claim of copyright infringement. And I do not think the Defendant should be burdened with tracking that information down when the Plaintiff has not even provided a sufficient starting point, let alone actually specified a claim. And all of this is taking place while the Plaintiff is attempting to get access to the private records of the Defendant. If that isn't a fishing expedition, I don't know what is.

"I don't know what has been infringed, but it is clear that something has been infringed."

If this is the case, surely it is not enough of a basis to take a claim to court?
Appreciate that the last umpteen pages have been pretty much devoted to the ambiguity of GW's postion but it seems astonishing that someone can clutter up the courts with,"We want to sue someone, and btw we will let you know the specifics anon when the defendant lets us know what he did wrong."

Chibi Bodge-Battle wrote:

If this is the case, surely it is not enough of a basis to take a claim to court?
Appreciate that the last umpteen pages have been pretty much devoted to the ambiguity of GW's postion but it seems astonishing that someone can clutter up the courts with,"We want to sue someone, and btw we will let you know the specifics anon when the defendant lets us know what he did wrong."

Obviously Judge Kennelly thinks that the case has some sort of merit as he was unwilling to dismiss it out of hand. That said, it isn't unusual for the Court to allow a Plaintiff a few cracks at amending a complaint. Judge Kennelly opted to allow early discovery presumably in lieu of giving Games Workshop a second chance to amend the complaint. At this point, we haven't seen any other substantive rulings by the Court, so everything that has gone on between the denial of the renewed motion to dismiss and now is basically Games Workshop's second crack at amending its claims. Chapterhouse's motion to compel has in effect asked the Judge to make another ruling on this issue. Now we're waiting to see how Judge Kennelly rules.

The GW lawyers remind me of Ash on the graveyard: "Klatou Berada cough mumble." Only that they get a second and third chance to actually do it right.

Kroothawk wrote:The GW lawyers remind me of Ash on the graveyard: "Klatou Berada cough mumble." Only that they get a second and third chance to actually do it right.

Ash Ketchup?
Or Asherian?

Do you really not know who "Ash" is in relation to that quote?

For shame!

Time to see some classics, and quick.

Opinions will vary, but I still say the theatrical cut of "Army of Darkness" is the best of the bunch!

On topic - no way the next meeting before the Judge goes well if GW doesn't deliver what's asked...

Kroothawk wrote:The GW lawyers remind me of Ash on the graveyard: "Klatou Berada cough mumble." Only that they get a second and third chance to actually do it right.

No kidding. Imagine if Microsoft or Apple tried this approach when defending their stuff.

Anyone else wondering if GW hire their lawyers the same way they hire their writers?

"Don't worry about consistency, guys, or little errors. This is a beer and pretzels game. If any disputes arise, the players can just roll off, or ask a redshirt. Wow, nice use of washes on your Ultramarines army! You're hired."

Ian Sturrock wrote:Anyone else wondering if GW hire their lawyers the same way they hire their writers?

"Don't worry about consistency, guys, or little errors. This is a beer and pretzels game. If any disputes arise, the players can just roll off, or ask a redshirt. Wow, nice use of washes on your Ultramarines army! You're hired."

Did you see the job requirements for their IP Lawyer job opening? It was posted here quite a while a go. It was fethin' hilarious. Having been in the position to hire and fire employees, the job description/requirements were quite laughable. I could have done a better job at writing stoned.