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biccat wrote:
I read your post as saying GW should get 3x the value of each kit (say, assault marines, $50 or whatever they are now) for each bit?

This is incorrect, because the value of the individual bit CH copied is the actual loss by GW. Theoretically, people who buy the assault marine box will get additional value (7 marines, jump packs, whatever the heck is in the box). So GW would have to establish the value of the individual bit then sue CH for that value x however many sales GW lost out on.

Biccat is correct. What is interesting about this is that there has been some relatively recent precedent in patent law related to this issue in terms of microprocessors that goes back the other way. So let's say that I sell a microprocessor and one bit in it infringes some patent. Well the plaintiff is going to want a percentage of the sales of the microprocessor. But the processor involves a ton of stuff that does not infringe, and the plaintiff is not entitled to that revenue. In order to get the whole kit and caboodle, the plaintiff would have to show that the infringing bit was the single most important thing that drove sales of the product, i.e. people only buy it because of the infringing bit. If that is not the case, you have to use some calculus to determine how much the infringing bit is worth. In the realm of computer chips, one objective way to do this that has been held up in court is by calculating the percentage of space the bit takes up. So if the bit takes up 1% of space on the chip, and the plaintiff is entitled to a reasonable royalty of 3%, the plaintiff would get 1% of the 3% of total revenue from the microprocessor.

In civil cases, monetary damages are intended to make you whole; i.e. repair the damage done. If you cut down a tree of mine, what is the tree worth? So in cases where a company does not itself divide up a product , there has to be some calculus to determine the value of the "bit" outside of the context of the entire product. Generally, you need an expert to perform these sorts of analyses because they aren't done in house as they are very specific to the facts of a case.

Edit: I'll add here another point about the nature of copyright law. Copyright, as I have reiterated many times, protects against copies; i.e. the same exact thing. If a work is found to infringe upon the exclusive rights of a copyright holder to make and distribute copies of the asserted work, then legally it is the same thing; it is a copy.

If you sell prints of a painting and I copy your prints and sell them, I am selling prints of your painting. Copyright says I don't have a right to do that. Thus it essentially goes without saying that if someone bought my product, they were buying a print of your painting. So if one finds that the combi-weapon infringes one of the plaintiff's copyrights, the finding is that the combi-weapon is that product.


Automatically Appended Next Post:

notprop wrote:Biccat, but that I figured that GWs lost sale would be the actual retail value of the sale (sorry not up to speed on where the combi-weapon appears).

The 3x would be because the CH kit can cover 3 options, to cover 3 options there might be upto 3 kits required (assuming say that each combi weapon appeared in a different kit) to match that utility. I would suggest this is suitably OTT for an opening gambit. The (reasonable) resolution would be somewhat less that this.

As Biccat has said, before you get to damages in any civil case, you first have to determine liability. It may help if you consider whether the trouble you are having getting your head around issues related to damages has any relation to issues related to liability.

I don’t think I'm having trouble, just suggesting that 1 CH combi-weapon could be construed as preventing the sale of up to GW 3 kits.

I'll leave recent development in case law to those that know.

I've always wondered on what level of work does GW's copyright reside? Is the sprue the copywrite work? Or is each bit off the sprue, independent of every other piece?

Either way, by virtue of the insubstantial contribution to the overall "work," the sprue... or the independent work of a "combo-weapon" relative to the whole sprue its a small part. So small GW would be hard pressed to actually claim a loss equal to the whole kit. While gamers maybe irrational enough to buy kits for individual pieces, liability determinations have to follow a rational reasoning usually based in proportionality. This is because there is no way to issolate who'd buy just for that piece and who'd buy for just other pieces.

notprop wrote:I don’t think I'm having trouble, just suggesting that 1 CH combi-weapon could be construed as preventing the sale of up to GW 3 kits.

You keep saying 3 kits, but most kits that contain a Bolter-melta also contain a Bolter-plasma(Chaos Lord being an exception).

And I can't think of a kit outside of Chaos Terminators that includes a Bolter-flamer(which ALSO contains a Bolter-melta).

Still, 2 kits at most.

I think notporop means (or at least I gather from the post) that if you wanted 3 combi meltas you would need to buy the kit it comes in 3 times. I think that's what notporop's getting at.

I'd like to thank biccat and weeble1000 again for continuing to provide examples, clarifying different ideas and opinions expressed in this most riveting thread concerning law and practices in our corner of hobby land

mrwhoop wrote:I think notporop means (or at least I gather from the post) that if you wanted 3 combi meltas you would need to buy the kit it comes in 3 times. I think that's what notporop's getting at.

Makes a bit more sense that.

Shows how often I even think about building a squad with multiple combi-weapons.

Platuan4th wrote:And I can't think of a kit outside of Chaos Terminators that includes a Bolter-flamer(which ALSO contains a Bolter-melta).

Does UM Chaplain Cassius still come with his bolter-flamer?

Dysartes wrote:

Platuan4th wrote:And I can't think of a kit outside of Chaos Terminators that includes a Bolter-flamer(which ALSO contains a Bolter-melta).

Does UM Chaplain Cassius still come with his bolter-flamer?

He should last time I saw the model.

Please keep this thread on topic - thanks!

Just a quick question, but now that GW has released the new Tyranid stuff, won't CH's fight be a lot more difficult for them?

Squigsquasher wrote:Just a quick question, but now that GW has released the new Tyranid stuff, won't CH's fight be a lot more difficult for them?

Why? GW hasn't even stated what pieces CHS makes that are infringing in their copyrights so the two are completely unrelated.

Squigsquasher wrote:Just a quick question, but now that GW has released the new Tyranid stuff, won't CH's fight be a lot more difficult for them?

Not at all.

If CH's already-published items are within the scope of copyright infringement of GW's newly-published items, then it is CH, not GW, that owns the copyright to those items.

If CH's already-published items were already within the scope of copyright infringement of GW's preexisting works, then GW still has to make that case.

If GW suddenly put out Codex: Bears, it would be GW, not Joey, who is infringing a copyright.

So hypthetically, IF Gw loses this case and the walls come tumbling down, would Paulson have had a case against GW over the Thunderwolf Kits?

Cheers

Andrew

AndrewC wrote:So hypthetically, IF Gw loses this case and the walls come tumbling down, would Paulson have had a case against GW over the Thunderwolf Kits?

Probably not. I assume Paulson's settlement with GW included some waiver of copyright infringement for Paulson's works. At least, it would if I were GW.

If not, then yes, theoretically Paulson could have a case agaisnt GW. Depends on how similar the works are.

Platuan4th wrote:

notprop wrote:I don’t think I'm having trouble, just suggesting that 1 CH combi-weapon could be construed as preventing the sale of up to GW 3 kits.

You keep saying 3 kits, but most kits that contain a Bolter-melta also contain a Bolter-plasma(Chaos Lord being an exception).

And I can't think of a kit outside of Chaos Terminators that includes a Bolter-flamer(which ALSO contains a Bolter-melta).

Still, 2 kits at most.

Whilst I definitely think that GW have a point here and Im not one of the vocal CH supporters, I think that this is misleading as well. Its like people downloading music, if you download a CD for free, but you think the band are only half decent anyway, you got it cos its free, not because you would have paid £12 for it in a shop.

I mean, I bought loads of CH combi weapons, and I clearly think that they ARE making loads of cash thanks to GWs game, but that doesnt mean I would go out and buy ten Chaplain Cassius just to get ten combi flamers.

If CH didnt exist, I would probably buy 2 or 3 and then badly convert a bunch.

biccat wrote:
If GW suddenly put out Codex: Bears, it would be GW, not Joey, who is infringing a copyright.

Hmm... I think I have issues with this...

Cyporiean wrote:

biccat wrote:
If GW suddenly put out Codex: Bears, it would be GW, not Joey, who is infringing a copyright.

Hmm... I think I have issues with this...

Why do you have issues with biccat's example, unless you were intending to be humorous and I missed it?

Copyright exists (to the extent that a work is protectible) as soon as the work is fixed in a tangible medium of expression. It is an inherent right, and one that an author must specifically give up if he or she intends to do so. In other words, as soon as you make a work, you are entitled to copyright protection. The work must be original in order to be protected, and is (in simple terms) only protected to the extent that it is original.

The same rules apply to all works, so date of creation is significant. If I create a work before you, your work must be distinct from mine in order to avoid infringing my copyright. Access to a work is also significant, because as copyright protects against copying, you have to have access to a work in order to make a copy of it.

Access to a work can be inferred from a finding of substantial similarity. In other words, if your work is found to be the same as my work, we can logically infer that you had access to my work as how else would you have been able to make a copy? However, a defendant can rebut an inference of access with the affirmative defense of independent creation. The defendant can provide evidence to prove that he or she did not have access to the work, and thus the fact that the two works are the same is a matter of coincidence.

If you want to decide for yourself whether the GW Tervigon model infringes the CHS Tervigon Conversion Kit, and you are interested in applying the law to the facts as you find them, you would need to roughly go through the following steps:

Does CHS own the copyright (if any) inherent in the Tervigon Conversion Kit? CHS would have to show ownership of the work, date of creation, etc. You can't bring a copyright infringement suit without being able to prove ownership of a copyright. The burden of such proof therefore rests with the plaintiff. As with just about any legal case, the Defendant is allowed to present its own evidence on an issue, but the burden of proof on any issue rests with one party or another. In the above question it is the plaintiff's responsibility.

Is the CHS work protectible? Note that GW has claimed that the work itself infringes its copyright(s). If that were true, substantial similarity to GW's Tervigon kit would be a moot point as GW would control the CHS Tervigon Conversion Kit. It may be a protectible work, but if GW's claim is successful, it would be a copy of GW's protectible work. In theory, these issues would likely be tried together before a single jury as the facts are largely the same.

If the CHS work does not infringe a prior-created GW work, a determination must be made regarding whether the work is an original work of authorship, and if so, to what extent?

Armed with that finding, you would then need to determine whether the GW Tervigon model is substantially similar to the CHS Tervigon Conversion Kit, keeping in mind the scope of the copyright as defined by answering the above question.

If you found that the GW Tervigon model was substantially similar to the CHS Tervigon Conversion Kit, you could then infer that GW had access to the Tervigon Conversion Kit. However, in this specific theoretical example, there is ample public record demonstrating that GW has had access to the CHS Tervigon Conversion Kit. GW accused the kit of infringing its copyright(s), and it would be reasonable to expect that the kit, or an exemplar of it, has been produced in discovery regarding that issue. I don't think access gets much more clear than that. But there could be a question of when GW had access to the work in relation to when it fixed the Tervigon model work in a tangible medium of expression. Remember that date of creation is significant in any copyright infringement case.

I believe GW could rebut a finding of infringement under the above analysis (assuming that you found the works to be substantially similar) by providing evidence to prove a date of creation prior to the creation of the CHS Tervigon Conversion Kit. Before you stray too far afield, remember that access is required in order to find infringement, so even if GW could show that its Tervigon model was created prior to the CHS Tervigon Conversion Kit, the CHS work could only infringe that work if CHS had access to it prior to creating its work.

Those are basically the steps you would go through for any accusation of copyright infringement. Each step has its own complex nuances, but that is the gist. I think that example will give you an idea about the requirements of proving copyright infringement. The only quirky issue in the above example is that GW has accused the CHS Tervigon Conversion Kit of infringing a copyright that is not the GW Tervigon Model.

weeble1000 wrote:

Cyporiean wrote:

biccat wrote:
If GW suddenly put out Codex: Bears, it would be GW, not Joey, who is infringing a copyright.

Hmm... I think I have issues with this...

Why do you have issues with biccat's example, unless you were intending to be humorous and I missed it?

Mostly humorous, but it is incredibly close to my copyrights.

Cyporiean wrote:

weeble1000 wrote:

Cyporiean wrote:

biccat wrote:
If GW suddenly put out Codex: Bears, it would be GW, not Joey, who is infringing a copyright.

Hmm... I think I have issues with this...

Why do you have issues with biccat's example, unless you were intending to be humorous and I missed it?

Mostly humorous, but it is incredibly close to my copyrights.

You own the rights to Bears? Are you some kind of omnipotent being?

Veering off topic again.

Take all conversation not pertaining to this particular topic... elsewhere.

Thanks!

A Town Called Malus wrote:

Cyporiean wrote:

weeble1000 wrote:

Cyporiean wrote:

biccat wrote:
If GW suddenly put out Codex: Bears, it would be GW, not Joey, who is infringing a copyright.

Hmm... I think I have issues with this...

Why do you have issues with biccat's example, unless you were intending to be humorous and I missed it?

Mostly humorous, but it is incredibly close to my copyrights.

You own the rights to Bears? Are you some kind of omnipotent being?

Old words of wisdom say, "When someone Asks 'Are you a God?', you say Yes!"

Not to bears in particular, but I do own a copyright on Badgers using Claw based weapons who throw grenades while charging into close combat.

Which I would be happy to talk about in a different thread.

Cyporiean wrote:

Not to bears in particular, but I do own a copyright on Badgers using Claw based weapons who throw grenades while charging into close combat.

I am not trying to pick on you, but I think this is another good opportunity to discuss the nature of copyright law.

What you have described sounds like an unprotectible concept. This is a good example of the difference between a concept/idea and an expression within the context of copyright law. There are many different ways that one could express the idea of badgers using claw based weapons who throw grenades while charging into close combat. You could write a story about it. You could write 100 different stories about it, each deserving its own protection. You could draw pictures of it, sculpt it, compose a symphony about it, etc. And even within those categories there's an amazing potential for originality.

Copyright protects what you actually make and does not extend beyond that. The fact that two works are expressions of badger-inspired creatures that attack with claws and carry grenades does not mean that one has been copied from the other. Your own idea doubtless owes much to the unique work of other authors that came before you, and you, like any author, are well entitled to borrow from, take ideas from, and be inspired by the work of others. What the law says you can't do is copy the work of someone else.

Copying in this context is specifically relegated to the realm of works fixed in a tangible medium of expression. As subjective as copyright law can be, it needs some semblance of a concrete basis. That basis is tangible expression. Copyright remains grounded by being very specifically limited to the realm of things, and specifically excluding the intangible realm of ideas. It may be called "intellectual property" because the idea was formed in your mind, but the only way to measure that idea and compare it to others is in terms of how you fix that idea in a specific expression in a tangible medium. You effectively freeze it in time as a self-contained artifact and gain the limited exclusive right to prevent others from reproducing it.

But what is amazing is that you can do it again, and again, and again, however long you like. You can create and keep creating. Thousands of works can flow forth from your ideas and they are each potentially entitled to protection independently. Copyright helps to encourage this process by allowing an author a means to exert personal control over his creations. What copyright does not do is undermine this process by providing authors an indistinct zone of protection that extends beyond his or her work into the ether of unexpressed and unimagined ideas. Authors do not defend fiefdoms of ideas from within keeps built of tangible expressions. Or, at the very least, copyright law is not written in such a way that this would be a reasonable way to interpret it.

So, with an on-topic query - has there been any progress in the case so far this year?

You're free to follow the case at recap the law.

I'm not going to bother posting updates or anything else in this thread anymore, for personal reasons.

biccat wrote:You're free to follow the case at recap the law.

I'm not going to bother posting updates or anything else in this thread anymore, for personal reasons.

I'm sad to hear that biccat, I've found your posts to be highly informative and helped me to understand the legal wranglings behind this case.

*IMPORTANT*

Didn't feel like going through 70+ pages to find out if this has been covered but:

I was told by one of guys down at my local GW that the lawsuit fell through due to CH being such a small company compared to GW and the fact GW are Brits and CH are American (different judgment system).
GW can't sue them, but they did reach an agreement regarding copyright and that's why GW have only now released the Hive Tyrant with Wings and the Thunderwolves.

In reality, GW have had the 2nd wave Nids and Space Wolves sat on a shelf for quite some time now whilst the lawsuit was being filed.
Chapterhouse claimed that the intellectual property regarding Tyrant wings and Thunderwolves was written and only existed in written-form. Using this loophole, they *created* both items and claimed intellectual property on the models/model parts they'd created which is why GW couldn't release their versions as CH could then counter-sue them for using their intellectual property.

That's why the lawsuit fell through, considering the fact intellectual property isn't a patent or signed document stating what it actually regards.

Keep in mind, that's what I was TOLD by an inside source who visits HQ quite often as HQ is actually quite near my hometown.

Another piece of evidence that confirms this is the fact the Tyrant and other 2nd wave Nids are multi-part plastic and not Finecast. Same with the Thunderwolves. That's because they've been sat on a shelf since before Finecast was implemented which also matches the time CH have been selling Thunderwolves and Tyrant wings.

Again, sorry if this has been covered but there it is.

Knights-Abhorrent wrote:*IMPORTANT*

Didn't feel like going through 70+ pages to find out if this has been covered but:

I was told by one of guys down at my local GW that the lawsuit fell through due to CH being such a small company compared to GW and the fact GW are Brits and CH are American (different judgment system).
GW can't sue them, but they did reach an agreement regarding copyright and that's why GW have only now released the Hive Tyrant with Wings and the Thunderwolves.

In reality, GW have had the 2nd wave Nids and Space Wolves sat on a shelf for quite some time now whilst the lawsuit was being filed.
Chapterhouse claimed that the intellectual property regarding Tyrant wings and Thunderwolves was written and only existed in written-form. Using this loophole, they *created* both items and claimed intellectual property on the models/model parts they'd created which is why GW couldn't release their versions as CH could then counter-sue them for using their intellectual property.

That's why the lawsuit fell through, considering the fact intellectual property isn't a patent or signed document stating what it actually regards.

Keep in mind, that's what I was TOLD by an inside source who visits HQ quite often as HQ is actually quite near my hometown.

Another piece of evidence that confirms this is the fact the Tyrant and other 2nd wave Nids are multi-part plastic and not Finecast. Same with the Thunderwolves. That's because they've been sat on a shelf since before Finecast was implemented which also matches the time CH have been selling Thunderwolves and Tyrant wings.

Again, sorry if this has been covered but there it is.

It was already covered and disproven.

PhantomViper wrote:

Knights-Abhorrent wrote:*IMPORTANT*

Didn't feel like going through 70+ pages to find out if this has been covered but:

I was told by one of guys down at my local GW that the lawsuit fell through due to CH being such a small company compared to GW and the fact GW are Brits and CH are American (different judgment system).
GW can't sue them, but they did reach an agreement regarding copyright and that's why GW have only now released the Hive Tyrant with Wings and the Thunderwolves.

In reality, GW have had the 2nd wave Nids and Space Wolves sat on a shelf for quite some time now whilst the lawsuit was being filed.
Chapterhouse claimed that the intellectual property regarding Tyrant wings and Thunderwolves was written and only existed in written-form. Using this loophole, they *created* both items and claimed intellectual property on the models/model parts they'd created which is why GW couldn't release their versions as CH could then counter-sue them for using their intellectual property.

That's why the lawsuit fell through, considering the fact intellectual property isn't a patent or signed document stating what it actually regards.

Keep in mind, that's what I was TOLD by an inside source who visits HQ quite often as HQ is actually quite near my hometown.

Another piece of evidence that confirms this is the fact the Tyrant and other 2nd wave Nids are multi-part plastic and not Finecast. Same with the Thunderwolves. That's because they've been sat on a shelf since before Finecast was implemented which also matches the time CH have been selling Thunderwolves and Tyrant wings.

Again, sorry if this has been covered but there it is.

It was already covered and disproven.

Okay, fair enough but disproven how exactly?
Keeping in mind this is the interwebz and that disproving something could just mean if enough people debunk it then it's not truthz.
Seriously though, on what grounds was this disproven?
I doubt the guy who told me would have lied to me.

Does this mean in Future GW will not put any reference in it's fluff for stuff it hasn't yet produced? It would stop Third parties beating them to the punch, but it would also limit gamers abilities to make their own interpretations. An interesting premise don't you think?

Knights-Abhorrent wrote:
Okay, fair enough but disproven how exactly?
Keeping in mind this is the interwebz and that disproving something could just mean if enough people debunk it then it's not truthz.
Seriously though, on what grounds was this disproven?
I doubt the guy who told me would have lied to me.

You are correct in the fact that those kits are made and have been held back from release for quite some time now.
You are also correct in saying that the reason that they were held back was because GW was advised not to release them on the grounds that because CHS had released a Tervigon conversion kit and a Thunderwolf conversion kit, then CHS had a claim to those kits and could sue GW.

This was a blatant mistake on GWs legal team (if indeed it was advice by their legal team that lead to this). GW has since procured new and better legal advice and under that advice released these kits.

CHS had nothing to do with any part of this decision making process since it was all GWs internal dealings, and neither has any agreement been reached on the case as far as I can tell (from reading all the legalese court rullings), or if it has it hasn't been made public in which case I highly doubt your friend would be aware of it (unless he is a personal friend of Mister Kirby for instance).


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mwnciboo wrote:Does this mean in Future GW will not put any reference in it's fluff for stuff it hasn't yet produced? It would stop Third parties beating them to the punch, but it would also limit gamers abilities to make their own interpretations. An interesting premise don't you think?

No, it means no such thing. This has also been discussed already.