Kroothawk wrote:

rodmillard wrote:CHS are countersuing for Copyright Misuse, arguing that GW has been knowingly and deliberately claiming copyrights they do not (or in some cases can not) own and using C&D letters to drive competitors out of business. Which is true, but the tricky part will be proving intent.

PhantomViper wrote:

Thanks for the developments Kroothawk, but this has left me slightly confused so if some of the more legal oriented minds in Dakka could shed some light on this matter I would appreciate it.

If CHS got their legal representation pro-bono, then how and why are they filling this counter suit?

Is this just a normal litigation tactics to force a settlement or did CHSs lawyers smelled blood in the water and are now going after GW for a bigger pay check?

PhantomViper wrote:If CHS got their legal representation pro-bono, then how and why are they filling this counter suit?

biccat wrote:12/3/12 - Trial date

Howard A Treesong wrote:Civil cases can roll on as long as the lawyers wrangle while running up a large bill. Some legal battles can go on years and years. We could be having this conversation next year.

Trasvi wrote:As an aside: GW on their Space Marine trademark.
GW owns the trademark on 'Space Marine' because of the *game* "Space Marine" which they made, not necessarily because they feel like they invented the term. Similar to how other games companies would have a trademark on Battleship or Mousetrap.

Aduro wrote:I looked at the Trial date first. Thought aw crud that's a long ways away. Wait, maybe it's those freakish foreign dates and it's actually in March! Looked at the other dates, saw they wouldn't work out as actual foreign dates and thought aw crud that's a long ways away.

chaplaingrabthar wrote:Maybe I'm wrong (It has been known to happen, but isn't two years a perfectly reasonable time for a case of this nature? Particularly one that's liable to set some precedents in the field of IP law?

I'm not going to express an opinion on who I believe is in the right or wrong here, and just wish the best of look that the trials (if there is to be one) has the fairest and most beneficial outcome to us gamers as a whole.

aka_mythos wrote:GW does keep their own lawyers, but this case is being handled by an outside firm.

notprop wrote:I would suggest that GW has far more to loose by not going to trial and settling. A settlement would maintain the status quo which has been undermined by this case just being brought.

Win or loose at trial, this would at least establish the actual law of the situation and allow GW to trade/act accordingly in the future.

The costs of the case are a one off and GW has plenty on cash set aside for contingency. I dont see how the duration would be of great concern to GW versus the possibility of not testing their IP ascertions in court.

As I say knowing whether you are trading in a sustainable way i.e. C&D confetti knowing you on good founding, is far more preferable to spamming C&Ds out on the assumption you are right. Risk management the corner stone of any good/evil bureaucracy!

PhantomViper wrote:

Kroothawk wrote:

rodmillard wrote:CHS are countersuing for Copyright Misuse, arguing that GW has been knowingly and deliberately claiming copyrights they do not (or in some cases can not) own and using C&D letters to drive competitors out of business. Which is true, but the tricky part will be proving intent.

Thanks for the developments Kroothawk, but this has left me slightly confused so if some of the more legal oriented minds in Dakka could shed some light on this matter I would appreciate it.

If CHS got their legal representation pro-bono, then how and why are they filling this counter suit?

Is this just a normal litigation tactics to force a settlement or did CHSs lawyers smelled blood in the water and are now going after GW for a bigger pay check?

Llew wrote:It's not so much legal understanding, but just plowing through the text.

GW is saying the following things:

2.a) CHS is claiming to have independently created these items, even though they've conceded that they've had access to everything GW has ever produced. Therefore, if they want to use "Independent Creation", they need to provide information that proves this: e-mails, concept sketches, anything that might go towards building that defense, but they haven't done this.

2.b.) There's a bunch of other stuff we've asked for, but we're still trying to work out how to resolve getting it with CHS.

2.c.) We wanted to know who worked on the products that we claimed infringed our IP, so if need be we could go after them as well. CHS had these ruled as a proprietary secret so we couldn't get access to the names. However, GW isn't trying to hire these people away from CHS, but we're looking to see if anyone else is liable to be sued or called as a witness, so we think we should have access to this information. We didn't argue about it at the time since we were focused on a settlement, but we need this information now, so we're bringing it up.

CHS is saying:

3) All of their complaints aren't really relevant, since we've either given them the info allready, or we've agreed to get the information for them, we're just trying to work out the details.

4) GW still hasn't met what we've requested of them, and on top of that, they won't even agree to discuss it with us.

4.a.) GW hasn't produced examples of the works they claim are infringed. If they think CHS has violated their copyright, then it's up to them to show which works - specifically - have been infringed, and provide like-for-like examples so we can work on defending the case. Or, if they're claiming CHS was inspired by artwork, they're not providing relevant artwork, in a way that any meaningful examination can be made of it. What little they have provided often doesn't even appear to be related to items they're saying were infringed. We can't mount an effective defense if they won't tell us and show us what they're basing their claims on.

4.b.) They still haven't proven they have copyright on the materials in question. Step 1 in suing for copyright infringement is proving you own the copyright. They've admitted they really don't have any U.S. copyrights to speak of, so they need to do more groundwork to prove they own copyrights. For example, they need to provide names of who created specific items, artwork or text for them, and then prove that that person was an employee at the time of creation so they can make a basic claim to copyright. They haven't done it despite multiple requests by us, and have ignored a court order to do so.

4.c.) We want the same kinds of information about creation of their products that GW is asking from CHS to defend Independent Creation. Any of the items or concepts that are "public domain" can't be used to defend their copyright claims, or if GW lifted ideas from someone else. So we want to them to specify what source materials they've used to create their items in order to establish exactly what we have to defend, and which of their claims are undefendable because GW based their work on someone else's.

4.d.) GW is claiming that they don't have to have a U.S. copyright because their things were made in England. However, our law says that if you offered something for sale in the U.S. first, or at the same time as it was offered in other countries, then in order to enforce a U.S. copyright claim, you have to have filed for a U.S. copyright. GW hasn't produced any documentation proving that items were first offered for sale outside of the U.S. Therefore, a lot of their copyright claims are going to be completely invalid, since they never applied for copyright protection. They either need to prove things were offered for sale outside of the U.S. first, or they don't have a valid claim.

4.e.) GW has claimed trademark infringement, but they haven't provided any documentation that proves this, or that proves when they started using the trademarks in the U.S. to sell things. They've even admitted that some of the trademarks weren't actually used to sell product.

4.f.) We asked for all of their emails regarding CHS, and they provided 4, none of which were actually in-house at GW. So we're expected to believe that they launched a lawsuit with absolutely no internal written communication. GW is trying to say they can't search for the emails, since we've sealed some of the information, but it should actually be easy for them to find it. GW won't let us question the people in charge of finding these emails to determine if they've actually made a good attempt to find things.

GW says that:

5) Everything CHS is saying is a lie. We've done everything they've ever asked us, but they're the ones who are ignoring our requests. CHS already said they had access to everything we ever made, so why should we have to provide examples? (Although, we have. I don't know why they say we haven't.) Plus, CHS has admitted that if people work for a company and make something, UK law gives copyright to the company that employed them. There's only one instance where the item wasn't produced by an employee, and we're working on getting something to address the copyright issues with that one. AND CHS admitted on their own website that they thought we had copyright on all the stuff we said we did. We don't know what most of that other stuff is about because we've done everything we've been asked. And we don't know how we're supposed to search our email if they won't tell us what terms to search for.


My take on it:

CHS is continuing to mount an aggressive, specific attack on GW's claims. GW's claims mostly involve feigning helplessness in the face of an obstructive defendant. Others seem just...weird. For instance the, "Well, they *thought* we had copyright to the items, so whether or not we provide documentation proving our copyright claims, the very fact that they thought we had it gives us grounds to sue over it."

Reinholt wrote:

paddyalexander wrote:When you register a copyright you have to register each format that the work is going to appear in seperatly. So in this case if gwPLC had copyrighted art work or concept designs of a creature then that does not automaticly give them copyrights of that creature in different formats.

This is simply not true to the extent that you are stating it. Copyright is not purely a format-driven event; another company cannot go producing Space Marine t-shirts or action figures or video games without acquiring the rights from GW first simply because GW did not register a "space marine t-shirt" copyright. This is factually incorrect. This is ignoring the trademark issues, which are a separate issue.

paddyalexander wrote:The example in this case is the varient of the Carnifax that spawns smaller Tyranid models. gwPLC released rules & artwork in a book but failed to register the name for future use & so failed to copyright it. Under US copyright law game rules books & their contents are not copyrightable so publishing the rules & art work in a rules book gave them no protection. If they had registered the name of the product for future use it would have given them a period of time where they had ownership of the name without having to release a product.

The model was released by CHS using the name from the book before gwPLC did and because CHS was the first to release a model they now have a very strong claim to ownership of the copyright to models released under that name.

This is an opinion, not settled fact. Cite me a case where this is going to be clearly laid out and go against GW if you disagree. What you are making here is an argument that CH's lawyers will probably also make some variety of, but there are counter-arguments. We'll see how it shakes out.

One thing I can state is that CH will almost certainly not end up with the copyright to the tervigon model and a model using that name. At worst both GW and CH would be able to produce their own versions of it. The fact that GW independently created the concept, game rules, and artwork for the Tervigon, and the nature of their business will allow them to create the model, full stop. At question is if CH can do it. Your legal understanding is flawed to believe that CH will be able to front-run GW on this one.

I mean, consider: the worst case scenario for GW would be that CH somehow wins on a very narrow and specific interpretation (which, again, I think is extremely unlikely), and GW immediately republishes the Tyranid book with the new creature being a Coranax or some other name, changes the art, keeps the rules very similar, and produces a model. Guess what CH? You're <expletive deleted>ed.

Ignoring both the GW and CH hate in this thread, if you look at the filing it is relatively clear a few things are going on:

1 - Both parties are trying to push the discovery phase in their favor to set a frame for the later case that is to their benefit. CH wants things to be as narrow as possible, and GW wants them to be as broad as possible.

2 - CH is trying to protect their sources to avoid a settlement, as multiple smaller individuals would either all need to acquire pro-bono counsel as well (or be accepted by CH's), or they are going to have a strong incentive to settle with GW to avoid a protracted fight (which is probably the real reason behind the proprietary claim).

3 - Neither side wants to settle. I can assure you the lawyers GW are using are not a bunch of incompetent retards. This is not their in-house counsel unfamiliar with the ins and outs of US law. If their counsel thought GW had absolutely no case, they would have strongly advised a settlement by now (and it would be settled).

The fact that neither side is willing to settle at this juncture tells you that both sides probably have at least some claims they think have a high probability of sticking, or one side will suffer such catastrophic consequences from settling that there is no incentive to do so (one could argue this is the case for CH, as if they accede to most of GW's asks, they might have no business left).

Don't take this as GW boosting. I am just saying that if you pay attention the legal maneuvering in the filings that is clear both sides are jockeying for advantage here, not that one is screwed and the other is going to table them, to use some gaming speak.