Scammel wrote:There's been 2 hearings we don't know anything about - does anybody have a clue at all? Really, unless we get some new info nothing new can be said about this that hasn't been said over the last Lord-knows-how-many pages.

iamfanboy wrote:OK, here's what I've been able to glean:

GW and CHS fenced back and forth for a while, trying to get a better starting position. GW's attempts to get CHS to give their business records (so GW could look through them) was met with a claim of confidentiality that Kennelly upheld.

Kennelly referred both parties to another judge (dude named Gilbert) in an effort to either get their discovery over or to start on a settlement. And subtly recommends settlement.

GW filed for another extension, which Kennelly granted; but that didn't stop the off-the-record meeting with Gilbert. The meeting with Gilbert didn't go fruitfully (both sides probably stuck to their guns), but one outcome is that both sides have to meet with their clients and get, on paper, a letter stating what that client would consider a valid settlement.

Chances are, the side that puts out a more reasonable settlement offer will win a brownie point from Kennelly.

BTW the letters may be confidential, as they were to be filed by September 20th but haven't shown up in the record yet. Or maybe I'm just looking in the wrong place.



Analysis? Biased of course, but it seems as though Kennelly doesn't think one side or the other has an icicle's chance in the Hell of Boiling Oil and tried to bring in someone he knows is good at making both sides reach a settlement. Dude failed, and from the requirement of a letter filed that states the client's stances on settlement it seems that one attorney may not have had a clear idea what his client thought would BE a reasonable settlement.... which is probably GW, who won't accept anything less than a total victory lest their 'walled garden' prove to be more of an open fence.

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

aka_mythos wrote:

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

The only possible settlement I could imagine is one where GW were to offer an open license to CH to use GW's trademarked names.. this would maintain GW's assertion that they were right, but allow CH to continue doing what its doing. Of course they would force CH to sign a non-disclosure agreement, so that no one of would ever know how CH necessarily continues... and GW gets to maintain the illusion it has more rights than it necessarily does. Other than that CH has no real reason to settle than to get out of spending as much time dealing with GW in a court.

Howard A Treesong wrote:

aka_mythos wrote:

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

The only possible settlement I could imagine is one where GW were to offer an open license to CH to use GW's trademarked names.. this would maintain GW's assertion that they were right, but allow CH to continue doing what its doing. Of course they would force CH to sign a non-disclosure agreement, so that no one of would ever know how CH necessarily continues... and GW gets to maintain the illusion it has more rights than it necessarily does. Other than that CH has no real reason to settle than to get out of spending as much time dealing with GW in a court.

I suppose as CH are being defended pro-bono they will be directed towards a favourable settlement. Unless their defence don't mind spending the money to trash GW in court.

cygnnus wrote:

Howard A Treesong wrote:

aka_mythos wrote:

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

The only possible settlement I could imagine is one where GW were to offer an open license to CH to use GW's trademarked names.. this would maintain GW's assertion that they were right, but allow CH to continue doing what its doing. Of course they would force CH to sign a non-disclosure agreement, so that no one of would ever know how CH necessarily continues... and GW gets to maintain the illusion it has more rights than it necessarily does. Other than that CH has no real reason to settle than to get out of spending as much time dealing with GW in a court.

I suppose as CH are being defended pro-bono they will be directed towards a favourable settlement. Unless their defence don't mind spending the money to trash GW in court.

Well, that's a question, isn't it? Didn't someone early on suggest that the pro bono representation was driven, at least in part, by an interest in seeing a precedent set? If so, CHS's representation may have little incentive to settle as a settlement means no precedent is set... Of course they do have to act in their client's interests, but if they're looking to set some case law, they may want to push things as hard as they can.

But, hey, I'm certainly not a lawyer!

Valete,

JohnS

Mr Mystery wrote:I'd have thought it would be the opposite. CH, should they lose, won't be left in a good place. I don't know the ins and outs of it, but I suspect a settlement of somekind is about the best they could realistically hope for?

Mr Mystery wrote:By not go that way, do you mean GW are unlikely to lose, or more that they'll get the more favourable end of any settlement?

aka_mythos wrote:

Howard A Treesong wrote:Why should CHS make a settlement if they feel they have a genuine case? If everyone made a settlement, you could just browbeat money out of people all the time. Yeah, that probably happens actually. But surely if CHS don't want to make a settlement then it won't go against them will it? They aren't obliged to give GW money for nothing.

The only possible settlement I could imagine is one where GW were to offer an open license to CH to use GW's trademarked names.. this would maintain GW's assertion that they were right, but allow CH to continue doing what its doing. Of course they would force CH to sign a non-disclosure agreement, so that no one of would ever know how CH necessarily continues... and GW gets to maintain the illusion it has more rights than it necessarily does. Other than that CH has no real reason to settle than to get out of spending as much time dealing with GW in a court.

odinsgrandson wrote:
That would be a pretty horrible settlement for them.

Agreements along those lines have limits in years- and after that time is up, they would be forced to close down Chapterhouse Studios. It would be a subtle win for GW in the long term.

Howard A Treesong wrote:The likely result for GW, assuming they lose, is that they have to cover costs and watch CH continue to make stuff. CH could then counter sue for them making a malicious prosecution I think.

The last big motion in the case - item 95 (the next 4 look to be minutes)

PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO AMEND PLEADINGS
Plaintiff Games Workshop Limited (“Games Workshop”) moves this Court for an Order
extending the deadline to amend pleadings through and until November 1, 2011. In support of
its motion, Games Workshop states as follows:
1. Pursuant to this Court’s order dated August 9, 2011 (Dkt. No. 82), the deadline
for amending pleadings is August 31, 2011.

2. Despite having commenced discovery more than five months ago, to date Games
Workshop has yet to receive any substantive responses to its first or second sets of
interrogatories and document requests (served March 25, 2011 and May 27, 2011, respectively),
notwithstanding the Court’s Order (Dkt. No. 66) directing Defendant Chapterhouse Studios LLC
(“Chapterhouse”) to respond to the first requests, and notwithstanding innumerable entreaties by
Games Workshop to obtain responses to the second set of requests without having to trouble the
Court with motion practice. Rather, Games Workshop only has received objections to the
Case: 1:10-cv-08103 Document #: 95 Filed: 08/30/11 Page 1 of 5 PageID #:739

2 CHIC_5496810.1
interrogatories and unfulfilled promises to produce documents. Since the date of Games
Workshop’s prior motion to extend the deadline to amend pleadings (Dkt. No. 74), Chapterhouse
has continued its all-but complete refusal to participate in discovery. Hence, for essentially the
same reasons set forth in Games Workshop’s prior motion, plaintiff must request again that the
deadline to amend pleadings be extended.

3. Games Workshop has identified 97 products of Chapterhouse that it believes to be
infringing based on the similarities of the products to original sources, and Games Workshop
contends that, as a result, Chapterhouse’s entire website (focused exclusively on trading on
Games Workshop’s popular WARHAMMER books and games) is an infringement.
Chapterhouse’s admits access and copying, and its entire business exists to trade on Games
Workshop’s original works. However, Games Workshop is aware of additional new products of
Chapterhouse that may need to be brought into this lawsuit, and before making any final
accusations of copying, Games Workshop had expected to have received at least some discovery
from Chapterhouse, including any evidence of independent creation (if there is any). In fact,
Games Workshop has received none despite the Court’s prior instructions.

4. Chapterhouse’s discovery failures also have raised the question of whether
additional parties will need to be named. Games Workshop questions whether it will need to add
as parties the individual designers and manufacturers of Chapterhouse’s accused products, but
because Chapterhouse has improperly designated such information (constituting the only
information it has produced to date in discovery) as “Confidential Attorneys-Eyes-Only”, the
undersigned counsel has been unable to confer even with in-house attorneys at Games Workshop
as to the roles of these third parties. Despite repeated (and increasingly insistent) reminders from
Games Workshop, Chapterhouse likewise has refused to produce in discovery any of its
Case: 1:10-cv-08103 Document #: 95 Filed: 08/30/11 Page 2 of 5 PageID #:740
3 CHIC_5496810.1
correspondence with these designers, suppliers and distributors, thus completely stalling progress
in the case and rendering impossible any efforts to understand the roles of these third parties.

5. The Court has remanded the case for proceedings before Magistrate Judge Gilbert
to resolve discovery disputes and assess whether the parties can engage in any meaningful
settlement discussions. Accordingly, although Games Workshop hopes that soon it will be
receiving the critical discovery that it needs to begin moving this case forward, and has been
seeking to resolve disputes without further motion practice, it fears that no further information or
documents will be forthcoming without additional Court orders.

6. Further, this Court has set the next status hearing for November 1, 2011, during
which time the parties will report to the Court the status of discovery and proceedings before
Magistrate Judge Gilbert.

7. Therefore, Games Workshop requests that the Court extend the deadline for
amending pleadings until the next status hearing, which is currently scheduled for November 1,
2011.

8. Counsel for Games Workshop notified counsel for Chapterhouse of its intent to
seek such an extension of time, yet counsel for Chapterhouse has not responded.
WHEREFORE, Games Workshop respectfully requests that this Honorable Court
extend the deadline to amend pleadings through and until November 1, 2011.

NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday, September 13, 2011:
MINUTE entry before Honorable Jeffrey T. Gilbert:Status hearing held. The Court
will not set a future status hearing date at this time. However, on or before 9/20/11,
counsel shall submit to the Court confidential letters outlining their clients'; settlement
positions and what information they believe is necessary to exchange in order to have a
productive settlement conference. Mailed notice(ep, )

I can truly say the folks at Winston & Strawn are not in this for money, from what I have learned about such cases, there is little chance for such payouts (somewhere in 10%). They are truly helpful and altruistic regarding this case.

If you guys want to see a really interesting bit of the argument, check out document 78 on Recap. From August 8, 2011.

In short, CHS was asking the court to sanction GW for their lack of response to CHS's requests.

On June 30th, CHS asked for examples - exemplars really (physical copies) -- of the works GW claimed were infringed so they could compare them to the CHS products in question. The request was granted by the court. Now, when exemplars are requested, you're comparing like to like. So if you say someone ripped off your color photo, you provide a color copy of your photo. If you claim they infringed your sculpture, you provide a copy of it. This is a requirement for copyright law. Not an option. A requirement.

GW gave a response that could be desribed as tepid at best, and laughable at worst. They provided electronic copies of a lot of documents -- most often in black and white. (The actual count was 11 of 20 documents they claimed were infringed.) So while they might try to argue that CHS had infringed by taking their color scheme, they didn't actually *show* anything with their color scheme. They started with just 1 document, but later brought it up to around 13 different books. They didn't submit a single miniature. In fact, GW didn't even present bad copies of a number of documents that they had previously claimed were infringed, and there were at least 30 items they had previously claimed that they didn't offer exemplars of. (That's right zero of 30 were provided.)

CHS had also asked for some very critical pieces of information in a copyright suit: proof that GW actually owns the copyrights it says it does. Because they had never registered these in the U.S., they're handled under UK law. Apparently UK law lacks one key provision that would have made things much easier for GW if they had registered U.S. copyrights as well. The "Work for hire" provision allows an employer to claim copyright on things created by it's employees. Lacking this in the UK, the copyrights remain with the creator (even an employee) until they specifically pass them on to someone else like an employer. So, for each copyright claim, GW needs to show first that it is indeed copyrighted, and then that they do, in fact, hold that copyright.

GW completely failed to do any of this. They didn't establish original authors, date of creation, and so on. They did, however, provide a statement saying they would do so, and then they produced a copyright that they held on one of their hobby catalogs, as if this gave them full copyright to everything listed in it. (For the record, this hobby catalog wasn't even referenced as an infringed work earlier.)

This is all critical stuff. To sue for copyright infringement, you have to show you own the copyright, otherwise you don't have a right to sue in the first place. If you do have the copyright, you've got to give the defendant copies of what you're claiming was ripped off.

CHS went for an aggressive attack and asked for the following:

1) Since GW didn't provide exemplars, only the 13 total items they submitted should be allowed to be considered in future hearings. (Reasoning: We said, "Give us copies of everything you think was copied." You gave us 13 things. Clearly, that's all you think was copied or you would have given us more.)

2) GW should be limited to using only what they provided in response to the request for proof of copyright when they try to assert their copyright claims. (Reasoning: We said, "Show us what you have that proves you own the copyrights in question." You gave us one copyright on a catalog. Apparently that's all you can prove copyright on.)

3) All other assertions of copyright should be denied.

Oh, and while you're at it, since you're not responding to this legal mess you started,

4) Pay us for our time.

They've moved from straight pro bono to going after GW for some money for this mess.

For GW, the fact that this is even on the table should be scary. They've shown a remarkable lack of sophistication in this entire process, and the pro bono attorney that originally was working just to defend CHS is now upping the ante. If GW is smart, they'll be figuring out how to end this gracefully and soon. We'll see if they can.

But, for those who care, you can officially say that Winston & Strawn may not be altruistic anymore. I think they smell blood in the water. After all, if this is the best GW can do in defending their copyright -- I forget if it was the moat or the fortress wall -- then they are in a world of trouble.

(...)
If you check document 78.13 on Recap (it's free) then it appears to name a number of specific attorneys @ Foley & Lardner there as being involved in the case. (At least, they've been served in relation to the case.)

To be fair, they're trying to put up a defense, and when you read their documents, they attempt to be aggressive with it. But if you compare their arguments vs. the ones provided by CHS's attorneys, it's fairly sad. Winston & Strawn are providing specific legal information in support of their positions and claims and counter-claims. Foley & Lardner's responses mostly tend to ignore whatever W&S has said*, and pretend that CHS is just stonewalling them and that's why they can't argue their case. They keep mentioning expanding the case, but the kind of defense they are mounting comes off more like a regular GW fan trying to defend GW's IP, not a legal team trying to build a solid case.


* For example. F&L might say something like, "Hey...we identified 97 separate items of theirs that violate GW's copyrights, but they won't give us everything we've asked for about how they made them!" They're ignoring where W&S has said, "OKay...you've identified our client's items that you think are a problem. Now, you have to show us what works of GW's have been infringed in order for the case to proceed. And, you need to prove that you even own the copyright in the first place. That's how copyright suits work. We're waiting."

(...)
Well, I stated before (as have others) that GW probably didn't expect this case to go anywhere. They set it up to be difficult to respond to and probably figured they'd get a quick judgement against a non-responsive small company, or get the company to fold under the threat of a lawsuit they couldn't afford to defend.

Once CHS got good legal help, it was a problem for GW and they don't really have many options other than stalling.

With the motions putting off further responses to all the prior motions until November, and the suggestion that sealed requests for a settlement be submitted, I have to think that GW is being advised to find some way out of this.

Even though they may settle their way out of it, so that it doesn't become part of an official ruling, they are still in a bad spot. Anything that doesn't result in CHS going away or being publicly slapped down will show GW's vulnerability, even if they get CHS to remain mum on a settlement.

Unless GW finds some way to completely crush CHS in court on this, I would expect that it will signal a huge shift in legal strategy for them going forward. I can't believe that a company that has made such a huge deal out of the value of it's IP to its survival as a going concern would be so utterly disorganized when it came to defending it.

Their IP may be less a moat or fortress than a Maginot Line.