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An alternative scenario is that whoever updated the website hadn't got the copy cleared for release and pushed the upload button by mistake. Horrorstruck, the directors of Chapter House took down the offending copy as soon as they noticed the error.

Either way, the Doomsayer is not part of the suit, so the judge presumably will ignore it.

Given their history and the current situation they find themselves in I can't believe this is anything more than another stunt. At the end of the day CHS isn't a big company, and I can't believe that they would be daft enough to write the offending material up without intent. My veiw maybe very myopic, but all I can see at the end of this is further justification for the action to take place. I would be very unsurprised if council didn't have a few choice words when it did go up

People do make mistakes, some also like to tweak the lions tale. Some don't make it back whole and some get away, but is that really a risk worth taking?

Kilkrazy wrote:If you look at their legal page, GW forbids people to mix universes. It's true they don't go after private individuals for doing it. I don't know whether GW actually have the legal right to stop people from cutting stuff up and bunging it together in new and interesting ways for personal use.

The only reason that is on their website is to protect themselves. It's there to prevent, say Lucasarts, from suing GW corporate because some guy is selling Darth Vader Space Marines on eBay. No one at GW honestly would care.

The line doesn't actually do a whole lot, legal wise, but it just shows that they do not officially support it as a company.

We need to see the result of the court case before we can take away any proper learnings.

nkelsch wrote:You can sell a case for IPOD but cannot sell an IPOD.

But you can sell something identical in purpose and technology, just not the same name.

Also they were selling GW's IP. The 'fluff' used to promote the figure was GW's IP and using GW's IP to increase sales of their figure by placing it directly in GW's universe to make it seem more official.

Firstly, you're right, they used a literary reference in a literary context. They shouldn't have.

This was the same as when people were trying to make official Blood Bowl Characters instead of generic fantasy football figures.

Sorry. but while I agree with the premise, I disagree with the intent. The BB Charade was GW at its' best handing out legal threats on all sides against 'lightweights', and I don't mean that disparagingly, who were not in a position to stand up for themselves legally.

I also disagree that GW's universe is as diluted IP as you claim it is. It is pretty established and unique in its modern form.

This is where the 'unclean hands' defence seems to be kicking in. It doesn't matter how you reach a specific point, but how you got there. Here's a really good lie to explain it. I steal a car and drive it away and keep it. Someone then crashes into it, I can't sue them for damages/compensation because I shouldn't have had the car in the first place. GW's Rogue Trader is/was a parody. (The stolen car) It was then established over 5 editions. (I keep it) CHS sells products relating to it. (The car crash!)

Almost all fantasy has directly from Tolkien, doesn't mean that fantasy IPs are indefensible and impossible to infringe upon. I do not see the 'DOOMSEER' as an unrealted generic space universe coming to similar results from similar source materials. That model is based off GW IP. The extensive eldar IP is unique and owned by GW and is just as defensible as Star Wars.

Tolkien stole his from earlier works as a matter of interest. Why do you draw the line at Doomseer but not at Cyberwolves? Genuinely interested to hear you answer, because both 'infringe' in the same way but you can accept one but not the other.

If they felt they *WERE* legal with the whole referencing GW for add on parts, then making official GW characters in the GW universe using GW IP to promote and sell it seems like a step in the wrong direction. Obviously *SOMEONE* thought they were wrong if they quickly changed it. This just goes to pattern of behavior and shows that if GW isn't vigilant that CH will continue to infringe more and more until they are selling officially named GW 40k models.

I don't think even CHS would go that far, but as long as GW only has a literary reference for an item, and CHS use it to produce a 3d model of it, then I see nothing illegal about it. Refering you to the earlier statement about freedom of expression between mediums.

There is a reason everyone else is not being sued. CH has brought everything they have done upon themselves because they choose to continue to find the line and try to push it for personal profit. CH could have avoid this by staying away from GW IP and just making their same models as generic minis.

Everyone else decided to play it very conservative because they were afraid. Look at it this way, if CHS had not got ProBono, would we be having this discussion? No, because everyone else, including CHS didn't have the financial clout to defend themselves. CHS got very, very lucky and got a respected and experienced lawyer and suddenly GW looks on very shaky ground. I would be prepared to bet that all the other third party producers, Scibor etc are watching this case very carefully, if not already subscribed to the court dockets page to see the outcome. Personal profit? why do you think these people produce the parts, there is a market out there and they want part of it.

You say that these people have woken a sleeping lion, I see it as the kings new clothes and CHS is the little boy who said "Look, the Kings got no clothes on"

Cheers

Andrew

AndrewC wrote:

nkelsch wrote:You can sell a case for IPOD but cannot sell an IPOD.

But you can sell something identical in purpose and technology, just not the same name.

Also they were selling GW's IP. The 'fluff' used to promote the figure was GW's IP and using GW's IP to increase sales of their figure by placing it directly in GW's universe to make it seem more official.

Firstly, you're right, they used a literary reference in a literary context. They shouldn't have.

This was the same as when people were trying to make official Blood Bowl Characters instead of generic fantasy football figures.

Sorry. but while I agree with the premise, I disagree with the intent. The BB Charade was GW at its' best handing out legal threats on all sides against 'lightweights', and I don't mean that disparagingly, who were not in a position to stand up for themselves legally.

I also disagree that GW's universe is as diluted IP as you claim it is. It is pretty established and unique in its modern form.

This is where the 'unclean hands' defence seems to be kicking in. It doesn't matter how you reach a specific point, but how you got there. Here's a really good lie to explain it. I steal a car and drive it away and keep it. Someone then crashes into it, I can't sue them for damages/compensation because I shouldn't have had the car in the first place. GW's Rogue Trader is/was a parody. (The stolen car) It was then established over 5 editions. (I keep it) CHS sells products relating to it. (The car crash!)

Almost all fantasy has directly from Tolkien, doesn't mean that fantasy IPs are indefensible and impossible to infringe upon. I do not see the 'DOOMSEER' as an unrealted generic space universe coming to similar results from similar source materials. That model is based off GW IP. The extensive eldar IP is unique and owned by GW and is just as defensible as Star Wars.

Tolkien stole his from earlier works as a matter of interest. Why do you draw the line at Doomseer but not at Cyberwolves? Genuinely interested to hear you answer, because both 'infringe' in the same way but you can accept one but not the other.

If they felt they *WERE* legal with the whole referencing GW for add on parts, then making official GW characters in the GW universe using GW IP to promote and sell it seems like a step in the wrong direction. Obviously *SOMEONE* thought they were wrong if they quickly changed it. This just goes to pattern of behavior and shows that if GW isn't vigilant that CH will continue to infringe more and more until they are selling officially named GW 40k models.

I don't think even CHS would go that far, but as long as GW only has a literary reference for an item, and CHS use it to produce a 3d model of it, then I see nothing illegal about it. Refering you to the earlier statement about freedom of expression between mediums.

There is a reason everyone else is not being sued. CH has brought everything they have done upon themselves because they choose to continue to find the line and try to push it for personal profit. CH could have avoid this by staying away from GW IP and just making their same models as generic minis.

Everyone else decided to play it very conservative because they were afraid. Look at it this way, if CHS had not got ProBono, would we be having this discussion? No, because everyone else, including CHS didn't have the financial clout to defend themselves. CHS got very, very lucky and got a respected and experienced lawyer and suddenly GW looks on very shaky ground. I would be prepared to bet that all the other third party producers, Scibor etc are watching this case very carefully, if not already subscribed to the court dockets page to see the outcome. Personal profit? why do you think these people produce the parts, there is a market out there and they want part of it.

You say that these people have woken a sleeping lion, I see it as the kings new clothes and CHS is the little boy who said "Look, the Kings got no clothes on"

Cheers

Andrew

The dark end of this is when my new novel is published. Its about a hotel caretaker who goes mad and tries to murder his family during a sand-storm. I call it "The Shurning."

precinctomega wrote:

As to why other companies use WWII orcs etc, watch this space if the court case goes CHS' way. Other companies didn't use them because they were scared of being sued. CHS decided they weren't going to be scared. nor beat about the issue, and so used terms that were clear, concise and delineated exactly what they should be used for.

This is the critical issue. If the ruling goes to CHS, then the floodgates are essentially thrown open, making it much, much harder for GW to enforce clamp downs on third parties making use of their IP.

From the other perspective, if GW win this case based on the very woolly criteria of their IP that they have now it might open the floodgates as you say to GW going after every other miniature producer that makes models suitable for use in WH or 40K.

Not sure I'm CHS' biggest fan - indeed neither side in this little sordid affair seems to have their hands completely clean, but my impression has been that GW is having trouble defining exactly where CHS have broken the law beyond "they're blantantly ripping off our stuff!" which, as I understand it, isn't a legally defensible position unless they can define exactly what is being ripped off.

I'm not sure a win for GW will represent a good thing for the customers - a bit of competition might result in GW winning over customers by making a decent product with reasonable pricing rather than just counting on the near monopoly they used to enjoy.

Ketara wrote:Errr....how would the Judge know precisely what was discussed at the Lawyers Office? Do they record all legal counsel or something?

Over here, I'm pretty sure you just ring your lawyer, and say you want to talk about something, he says, 'Ooookay, that'll be £345756 an hour', and he tells you what he thinks about the affair from behind his desk. The Judge has no way of knowing the contents of all the legal counsel you've had.

Right. Never put anything in writing that might be bad for the client. Because it might be discoverable at some point.

Sasori wrote:Isn't stuff like that covered by Attorney-client privilege?

I don't understand how a Judge could find out.

It could come out under direct or cross examination, or there are certain circumstances where attorney-client records might be discoverable.

edit (part 1): One element of copyright infringement is proof that the defendant had access to or knew of the original works (independent creation is a defense). By seeking a legal opinion about infringement, the defendant has proven he had access to the information.

edit (part 2): There's another "layer" of attorney/client privileged information called "work product." This includes any writings or information that were prepared in preparation for or during the course of actual litigation. These are almost never discoverable. However, it's my understanding that legal opinions regarding infringement are not generally considered work-product.

I am not an expert in litigation, discovery, or legal ethics. Most of my work is in IP, and I rely on other attorneys' opinions as guidance. There are some cases where attorney-client privilege has been waived or where pre-litigation written communications (such as infringement opinions) have gotten out in the discovery process. I'm not sure the exact process by which the information was released, but I know that these cases exist, so I try to avoid them.

notprop wrote:I appreciate allot of people contend that GW are stupid, have a poor business model, etc, but they are a reasonable well regarded company that has be trading well in poor market conditions. Knowing that they may have to follow through with a court case that they started will not come as a surprise to them.

This sentiment is all well and good, but it ignores the long list of evidence that strongly suggests Games Workshop did not expect to litigate this case. I am fairly confident that seeing Chapterhouse Studios acquire talented (and extremely aggressive) pro-bono representation did come as a surprise to Games Workshop, and a fairly startling one at that. We are both speculating, of course, since we have had no official comment about the case from Games Workshop, but I personally feel that my opinion is based on what has actually happened in the progress of this case as well as Games Workshop's past history of litigation, whereas your opinion is based on the fact that Games Workshop is a large, successful company.

You can assume that Games Workshop went into this case fully expecting to proceed through a jury trial, fully understood the risks that the company would be exposed to, and determined (with all fiduciary duty to the shareholders) that the rewards of succeeding in a lawsuit against Chapterhouse Studios outweighed the potential damage to the company that could result from it. I think the facts suggest either that this was not the case, or that Games Workshop grossly, and perhaps recklessly or negligently, underestimated both the financial cost and potential risks of this litigation.

To that end..since GW is a public traded company...can we expect in some future published results to see just how much this legal action cost GW?

biccat wrote:Unfortunately, it's a problem with US copyright law that it's not always a good idea to consult with an attorney before engaging in potentially infringing activities.

Without asking your lawyer:
D "Your honor, we honestly never thought that what we did was infringing"

With asking your lawyer:
D "Your honor, we honestly never thought that what we did was infringing"
J "If you didn't think it was infringing, why did you go to your lawyer"
D "Um...."

biccat, I don't see how consulting an attorney to understand the potential extent of a competitor's intellectual property rights and then acting on that advice in an effort to specifically avoid infringing activity could be considered a "bad" idea, or detrimental in a legal sense. In terms of copyright infringement, it is rather ironclad evidence of access, but that wouldn't have been a problem anyway, and usually isn't difficult to prove. I don't think Chapterhouse is going to be making an independent creation defense in this case anyway. In terms of willfulness, this demonstrates that the defendant knew its actions could constitute infringement, but it is also evidence that the defendant specifically intended to avoid causing infringement.

To a jury, consulting an attorney may cause some people to believe that Chapterhouse intended to copy Games Workshop's intellectual property, but in my experience this type of argument is typically made by less intelligent and/or less educated jurors (The two are not necessarily correlates. Smart people don't always go to college.), and particularly those with strong biases in favor of the plaintiff. Not only do I believe that Games Workshop is going to have an uphill battle to win hearts and minds during a jury trial, but jurors in the Northern District of Illinois are usually pretty intelligent, discerning, and reasonably well educated.

Now, it is true that judges are people too and it is impossible for them to be completely objective. However, I think it is safe to say that Federal Court judges tend to A) be very intelligent, B) be very well educated, and C) have significant experience in the legal profession. In that sense, I don't feel that Judge Kennelly is going to view Chapterhouse's legal consultation prior to starting its business as an indication that the company knew its actions were likely to cause infringement. I also don't think that Chapterhouse is going to be pleading ignorance here.

The narrative is likely to be that Chapterhouse Studios had a great idea for a business, one that was already being practiced by others for years without legal trouble from Games Workshop, but in an abundance of caution they made sure to consult an attorney specifically about copyright and trademark issues so that they would have a clear idea about how to practice the proposed business without infringing on Games Workshop's intellectual property rights, which they personally enjoy and have the utmost respect for. They understood that although Games Workshop had tacitly approved of similar business by failing to assert the rights it conveniently claims to currently possess, the company was well known to be litigious and so they felt it was safer to get legal advice rather than make assumptions. Chapterhouse therefore intended to avoid infringement, believes it is currently not infringing in any way, further believes that Games Workshop has no legal basis to make the claims it is making, and finally believes that Games Workshop knows its claims have no legal basis. Therefore, Chapterhouse Studios is the injured party, having had to engage legal representation subsequent to the filing of this lawsuit at significant cost, pay court fees, and put up with the aggressively intimidating tactics of Games Workshop's legal representation which Games Workshop has used before and is now continuing to use as a means to unfairly eliminate fair competition. Throughout this entire process, Chapterhouse has tried to be reasonable and accommodating, in spite of its strong belief that it has not engaged in any infringing activity. Not only did the company seek legal advice prior to starting its business, but it has tried to come to a reasonable settlement with the Plaintiff. Chapterhouse already moderated its use of the Plaintiff's marks and has attempted to negotiate with the Plaintiff. The Plaintiff, however, has only and ever maintained that the sole resolution it is willing to accept is the immediate ceasing of all allegedly infringing sales and the destruction of the means of production, i.e. the total destruction of Chapterhouse's business. Games Workshop has based these unreasonable and inflexible demands on claims that are demonstrably deficient. This lawsuit is clearly an attempt to unfairly manipulate the market at the expense of the Defendant and this Court.

ironicsilence wrote:To that end..since GW is a public traded company...can we expect in some future published results to see just how much this legal action cost GW?

If CH wins, you'll be able to see how much they get since they're asking for "reasonable attorney's fees" in their response.

I doubt GW will post how much this mess is costing them.

weeble1000 wrote:biccat, I don't see how consulting an attorney to understand the potential extent of a competitor's intellectual property rights and then acting on that advice in an effort to specifically avoid infringing activity could be considered a "bad" idea, or detrimental in a legal sense.

If you act on that advice, then you're right, it's not a bad idea. It's following the lawyer's legal advice.

The issue comes up when you think you may have a problem, but you want to go ahead with the product anyway. If you're not willing to abandon an idea if you receive negative legal advice, then don't seek legal advice.

See Knorr-Bremse v. Dana Corp.

As a general matter, a potential infringer with an actual notice of another's patent has an affirmative duty of care that usually requires the potential infringer to obtain competent legal advice before engaging in any activity that could infringe another's patent rights." Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1190 (Fed. Cir. 1998). In this regard, where, as here, an infringer refuses to produce an exculpatory opinion of counsel in response to a charge of wilful infringement [note: the infringer cited attorney/client confidentiality as the basis to refuse to produce the opinion], an inference may be drawn that either no opinion was obtained or, if it was, that it was an unfaboraple opinion. See Electro Medical Systems, S.A. v. Cooper Life Sciences, Inc., 34 F.3d 1048, 1056 (Fed. Cir. 1994).

(reversed in part on appeal)

When the attorney-client privilege and/or work-product privilege is invoked by a defendant in an infringement suit, is it appropriate for the trier of fact to draw an adverse inference with respect to willful infringement?

The answer is "no." Although the duty to respect the law is undiminished, no adverse inference shall arise from invocation of the attorney-client and/or work product privilege.

Note that this is just one case, and illustrates the issue that it is sometimes not a good idea to seek legal advice on a matter where wilfulness, knowledge, or access are important.

While the case was reversed on appeal, that reversal overturned a lot of precedent on the issue, so the lower court didn't make a mistake. Also, the Federal Circuit raised the issue sua sponte.

mikhaila wrote:

Kirbinator wrote:

RiTides wrote:Why is GW paying but not Chapterhouse? Both sides have to pay their legal expenses, right?

CH's lawyers are pro bono, GW isn't so lucky.

Lucky?) I'd much rather pick my lawyer than take what I can get for free.

Except that what they're getting for free is -as I understand it- a partner in one of the biggest firms in the biz. I think this is one yu'd be wishing you could get in that case, mik.

Eric

This is easy...

biccat wrote:Unfortunately, it's a problem with US copyright law that it's not always a good idea to consult with an attorney before engaging in potentially infringing activities.

Without asking your lawyer:
D "Your honor, we honestly never thought that what we did was infringing"

With asking your lawyer:
D "Your honor, we honestly never thought that what we did was infringing"
J "If you didn't think it was infringing, why did you go to your lawyer"
D "Um...."

"...because GW has a history of threatening and pursuing legal action against individuals for for "infringements" that seemed to be fair use; with the purpose of closing them down. We didn't want to be closed down; we don't have law degrees and thus took percaution in attempting to understand our rights."

aka_mythos wrote:This is easy...
"...because GW has a history of threatening and pursuing legal action against individuals for for "infringements" that seemed to be fair use; with the purpose of closing them down. We didn't want to be closed down; we don't have law degrees and thus took percaution in attempting to understand our rights."

You're assuming CH's lawyers said "Nope, no infringement here."

Sometimes people don't listen to their lawyers. In all of the cases I've seen on the issue, it ends somewhere between "very poorly" and "holy "

Then again, that may be a biased sample

biccat wrote:You're assuming CH's lawyers said "Nope, no infringement here."

Sometimes people don't listen to their lawyers. In all of the cases I've seen on the issue, it ends somewhere between "very poorly" and "holy "

Then again, that may be a biased sample

I just know for a fact that CH went to their lawyer explicitly to find out what was the legally acceptable way to phrase things on their website and to get an opinion on if their models and conversion kits were on sound ground with copyright. From what Nick told me they followed that advice.

The firm that has taken on the case pro bono, would they have checked the background including the advice CH received when preparing to start the business?

Do they have to make a decision to take it on pro bono without looking at the merits first?

aka_mythos wrote:I just know for a fact that CH went to their lawyer explicitly to find out what was the legally acceptable way to phrase things on their website and to get an opinion on if their models and conversion kits were on sound ground with copyright. From what Nick told me they followed that advice.

Well, it was a hypothetical. Like I said, unless you're serious about following your lawyer's advice, don't seek legal opinion. And even in some cases, it's not the best idea.

I suspect that Chapterhouse is being careful about new releases, but sometimes business needs are faster than legal processing.

Kilkrazy wrote:The firm that has taken on the case pro bono, would they have checked the background including the advice CH received when preparing to start the business?

Do they have to make a decision to take it on pro bono without looking at the merits first?

A: Probably not. Requesting the information without taking CH on as a client could have breached his attorney-client privilege with the original attorney who drafted the work. They probably did review any information related to the case prior to deciding to represent CH in the litigation.

B: Not really. Although they probably wanted to know what they were involved in before they filed anything in court.

In further detail:
I would assume that the lawyers took on CH pro-bono to provide "advice and consulting regarding pending litigation" (or some similar language). Then they could review all of the legal advice CH has received to-date without breaching the attorney-client confidentiality. After reviewing the information, they would have changed the representation agreement to "litigate the case on behalf of CH."

Although it probably wasn't that formal.

In effect it is a two stage process, to allow the lawyer to review the materials without making a commitment to take the case any farther.

Kilkrazy wrote:In effect it is a two stage process, to allow the lawyer to review the materials without making a commitment to take the case any farther.

Basically. Although usually it's more like:
email 1: "Yeah, we'd be happy to take on the case, send us what you have before we do anything else"
email 2: "Looks like you've got a good argument, see enclosed retention letter."

The representation formally started with the first email, since there was an agreement to take on the recipient as a client. The second one would be the modification of the agreement.

Yeah, the reason it's two step is that most state bars have rules about a lawyer quitting on a client after making a notice of appearance. It's not that it can't be done, it just technically requires leave of the court, and can be a mess.

If the understanding up front is that they're only going to handle some of the early stuff, than it's easier to quietly withdraw.

biccat wrote:Well, it was a hypothetical. Like I said, unless you're serious about following your lawyer's advice, don't seek legal opinion. And even in some cases, it's not the best idea.

My point was more that I'm not speaking hypothetically, but factually, in response to...

biccat wrote:You're assuming CH's lawyers said "Nope, no infringement here."

I'm making no assumptions. I heard it second hand directly from the head honcho at CH before and after they spoke with their lawyer. I know first hand why CH took it very seriously and how they had honest intentions when they originally sought out legal advice. I know they were responsive to that advice and that even after that adherence to those guidlines, GW still believe it has greater rights than it actually does. CH was running product names, descriptions, and website layout past their lawyer to ensure what they put up did not tread on GW's rights.

CH is like the kid who just got his learners permit, asking advice and trying to learn the rules of the road; GW's the 18-wheeler that just tried to run them off the road for getting in their lane.

.

Biccat,

I get your point. Asking for legal advice and then not following it could have adverse implications as that advice, or the fact that you received an opinion, could find its way into evidence. I should think that was relatively obvious. I'm operating on the assumption that Chapterhouse Studios followed the advice of counsel to the best of its knowledge, understanding, and ability.

Even so, willfulness is very difficult to prove. You have to go a long way to get to willful patent infringement. I expect that you have to go a bit farther to get to willful copyright infringement, at least in front of a jury. Not only are patents inventions, but they also come with a presumption of validity. This inevitably gives the patent-holder credibility as an innovator with the blessing of the Federal government. Additionally, patents are, as a rule, publicly available documents and oftentimes patent infringement litigation is preceded by a notice of infringement, whether you're talking about large corporations or a patent troll. All of this feeds into the concept of design around. If your non-infringement argument is that you attempted to change the product so that it was slightly different from, and therefore did not infringe, the narrow confines of the patent at issue, this folds nicely into a defense against willfulness. Even if you fail at such an effort to avoid infringement, and are therefore found to infringe, your access to the patents at issue and attempts to make deliberate changes usually goes a long way towards eliminating willfulness. How can you willfully infringe something if you honestly attempted to make changes to it, albeit unsuccessfully? Good anecdotal evidence for willfulness is usually something like aggressive marketing statements or internal motivational memos directing employees to "destroy" a competitor. (Incidentally, I wonder what discovery in the Chapterhouse case will net from Games Workshop's internal communications?)

I imagine that in the much more speculative and subjective world of copyrights, willful infringement would be even more difficult to prove, unless there's direct evidence of copying (there almost always isn't and I don't believe there will be any in this case). Legal advice regarding copyrights would, almost of necessity, be framed as speculation. No offense to any of the attorneys here, but lawyers usually don't like to commit themselves too far. Additionally, copyright law is incredibly vague and subjective, so who can say whether something would definitely infringe or definitely not infringe. Given this inherent subjective interpretation, it is very easy to argue that the defendant was acting under the belief that he/she/it was not infringing a copyright. Unlike patents, the extent of a copyright is not even known until litigation anyway, so how do you genuinely know that infringement is likely? There's plenty of room for evidence of willful copyright infringement to fall far, far short of "clear and convincing."

weeble1000 wrote:Biccat,

I get your point. Asking for legal advice and then not following it could have adverse implications as that advice, or the fact that you received an opinion, could find its way into evidence. I should think that was relatively obvious. I'm operating on the assumption that Chapterhouse Studios followed the advice of counsel to the best of its knowledge, understanding, and ability.

I should have made it clear that I was discussing the legal issue in general, and not specifically Chapterhouse. I don't know what legal advice they received, nor do I know (or have a professional opinion) that CH's new products infringe on GW's IP.

I have been trying to stay neutral on the issue and just discuss legal issues in general, and not specifically relating the facts of Chapterhouse to those issues.

I completely understand Biccat, but I wanted to bring it back to Chapterhouse. And when specifically related to copyright infringement I think the inherent subjectivity of copyrights blurs the line between following and not following legal advice. Do you have any thoughts on that? How much does a client's misapprehension of legal advice or the inherently unspecific nature of that advice factor into the relevance of that advice as evidence of willfulness? As the boundaries of copyrights cannot be known until those rights are asserted in court, how specific can legal advice be regarding copyright infringement, especially when compared to patents or even trademarks?

weeble1000 wrote:I completely understand Biccat, but I wanted to bring it back to Chapterhouse. And when specifically related to copyright infringement I think the inherent subjectivity of copyrights blurs the line between following and not following legal advice. Do you have any thoughts on that?

I don't think I would personally ever give a client a clear "this doesn't infringe" opinion, unless the two were so far different that a suit for infringement would be frivilous. If I were CH's attorney in this case, I would have given them a percentage chance of suit (25, 50, 75%) and let them weigh the risk against the potential business value of such an endeavor. As I tell my clients, I only give out legal advice, not business advice.

However, if I were litigating the case, I'm sure such an opinion would be great evidence of willful infringement: "your attorney said you were likely to infringe, yet you proceeded anyway, did you intend to copy GW's IP all along?"

weeble1000 wrote:How much does a client's misapprehension of legal advice or the inherently unspecific nature of that advice factor into the relevance of that advice as evidence of willfulness?

I don't think a client's misapprehension of legal advice would factor into the relevance at all. If the failure is in the attorney's communication, then that client will have an alternative avenue of recourse for any losses (malpractice). If the failure is in the client's understanding of that legal advice, he should have clarified the issue with his attorney.

weeble1000 wrote:As the boundaries of copyrights cannot be known until those rights are asserted in court, how specific can legal advice be regarding copyright infringement, especially when compared to patents or even trademarks?

That is a very good question, and I'm not sure that there's a good answer to that.

Here's a case I found in a brief search. If one element of the standard is "reckless disregard for the possibility of infringement," then a legal opinion would weigh against infringement. However, the required "knowledge of [plaintiff's] product line, and [a] failure to investigate the possibility of intellectual property violations" after notice, then a legal opinion may weigh in favor of infringement (the opinion proves you were well aware of the product and pointed out potentially infringing elements).

Speaking generally, no attorneys I know would ever write down a negative opinion for TM (and trade dress), copyright, or patent analysis. The typical course of action is to hand the item(s) to your attorney, ask "are these too close to <Exhibit A>?", and he'll call you back. If it's starting to look bad, your attorney should call and give you a chance to wave-off before he reaches a fully considered opinion.

Opinion letters only exist to say that something doesn't infringe, because of the enumerated reasons given in the opinion letter. But in my field (patents), opinion work has gotten pretty rare, what with changes in the standard of willfulness in recent years.

biccat wrote:
You're assuming CH's lawyers said "Nope, no infringement here."

Sometimes people don't listen to their lawyers. In all of the cases I've seen on the issue, it ends somewhere between "very poorly" and "holy "

Then again, that may be a biased sample

And do you have any reason to think that is not what their lawyers told them?