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Kroothawk wrote:GW: "We accuse Chapterhouse!"
Judge: "Of what?"
GW: "If we told you, we would have to kill you."

Guess GW is so used to secrecy, they won't stop this habit in court

OH GAK ME SIDEWAYS!!! THIS IS HILLARIOUS! Theory:
GW used secrecy to design sculpts for their upcoming releases. Investigation determined that CH produced parts already, and likely at cheaper cost to customers. GW cannot produce any evidence in court because a.) it shows to public what they wanted to keep secret and b.) because the papertrail will make it look more like a copy of the CH stuff because it post-dates CH.

oh man, if that is true....

Kroothawk wrote:GW: "We accuse Chapterhouse!"
Judge: "Of what?"
GW: "If we told you, we would have to kill you."

Guess GW is so used to secrecy, they won't stop this habit in court

I think the reality sounds a lot sadder...

GW: "We accuse Chapterhouse!"
Judge: "Of what?"
GW: "Trust us, they know what they did."
CH: "No. We don't."
GW: "Come on... come on... you know."
CH: "Errr... no. No we don't."

I, personally, don't believe GW ever really had a case... but I think many companies have done better jobs of pursuing cases with even fewer merits; they aren't really helping themselves.

The lawyers running GW management despise their customers and call them geeks and sheep. They never expected and prepared themselves for sheep that defend themselves. Guess now they have to face the consequences of that arrogance.

GW has many times in the past used its money and slap suit tactics to bully potential / actual competitors around into doing what they wanted. Now it seems that the competition is up to defending themselves and that leads them into the murky toxic swamp of where did GW borrow or plagiarize their alleged IP's and model designs. I wonder if it will turn out similarly to what went down with White Wolf in their suit against the the makers of the Underworld movies where in they accused the film company of taking their story from VTM and a novel published by them. The Judge however ruled in favor of the film company in such a way that White Wolf was left in a position that it could not really defend any of their other same themed works. Thusly they stopped publishing those anymore and moved to a new area of IP's. If things go badly for GW's case the collateral damage to the rest of their product line / IP's could be catastrophic.

a motion to dismiss (for whatever reason the lawyer can pull out of his butt) is always the first part of every legal defense.

It comes right between the judge saying "What is your defense" and "Motion denied."

This one is going all 15 rounds.

Yes, but I think we've already come to that conclusion in the previous 33+ pages.

Additionally, this 'motion to dismiss' actually yielded some fairly interesting results, beyond any sort of rubber stamp legal equivalent to 'whatever - we're continuing!" response.

A lot of times attorneys are required by the rules of civil procedure to file motions and request specific rulings because they raise affirmative actions that are required for an appeal, or might want to be addressed again later in the case. Failure to take an affirmative action means you lose that right on an appeal or to raise the issue later. This is why you will almost always see motions for directed verdict, motions to exclude certain things, motions to dismiss, etc., early on in a case, even when they are somewhat specious; because failure to ask for certain things at certain points in a trial means you lose the right to ask for them later down the road in a potential appeal, or even later in the case.

I'm reading the joint status report now. It is very interesting and more than a little amusing. I don't have time to summarize its content today (at least not until this evening). The document and attached exhibits is available on Pacer and download of such should cost something in the neighborhood of 4 dollars if anyone is interested in accessing it directly.


Chapterhouse Product
Tactical Rhino Doors with Skulls Kit

Games Workshop
Games Workshop sells products decorated with piles of skulls

That is an example of Games Workshop's response to this interrogatory from Chapterhouse Studios:

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

I think Chapterhouse is right to argue that this is non-responsive.

I'll go into detail about the status report this evening or tomorrow.

Well, weeble, we're all waiting with bated breath.

Zakiriel wrote:....If things go badly for GW's case the collateral damage to the rest of their product line / IP's could be catastrophic.

Ok, White Wolf's case was pretty bad. Seriously. And you don't sue a film production studio that just put eighty million dollars into a movie and expect them not to defend themselves.

I doubt that that is a direction that this case will go. Rather, I think that GW will simply have to start allowing conversion kits to be produced openly by third parties.

Now, I honestly don't get a lot of the dubious legal claims on GW's website. For example, the statement that converted miniatures are a sever violation of their IP- but they're so benevolent that they'll let you do it anyway... yeah.

weeble1000 wrote:I'm reading the joint status report now. It is very interesting and more than a little amusing. I don't have time to summarize its content today (at least not until this evening).

We'll be waiting!

And, of course, thanks for doing this - the summarizes into Layman's English are greatly appreciated!

I'm looking forwards to a good assessment of the docs.

@KK: Congratulations on making the 1000th reply on this thread. Who would've thought it would have lasted 3+ months and 1000+ posts without being locked.

Back on topic:

@Weeble: Is that really how GW answered the interrogatory? I'm no legal expert, but even I can see that this response is so absurdly vague and generalized as to be meaningless. Could this be a case that the lawyers representing GW right now really do not have a particularly strong understanding of what it is that GW does?

Well, it's often been said that GW is all about the skulls...Thus they are claiming copyright on anything decorated with skulls

The jokes write themselves at this point...

I can't help myself. I guess I'll be missing dinner tonight. Back to the grindstone!

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

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

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

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

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

GW's position is that it wants CHS to respond to its interrogatories because CHS is making an affirmative defense of independent creation. GW argues that "Chapterhouse has not provided any specific sources that Games Workshop believes will confirm direct copying and which might bear on Defendant’s independent creation defense." (emphasis added) GW feels that the case cannot move forward until it receives responses from CHS.

CHS position is that it cannot, in all fairness and with respect to moving the case forward efficiently, respond to GW's interrogatories until CHS receives adequate responses its interrogatories from GW. CHS intends to file a motion to compel later this week in this regard.

CHS feels that many of the accused products are simply not similar to the allegedly infringed works, and therefore believes that summary judgement by the Court will be sufficient to effectively narrow the claims or eliminate the case in its entirety once the Court is able to compare the accused products with the allegedly infringed works. Responding to Plaintiff's discovery prior to this judgement would be inefficient and unduly burdensome because it would effectively be a waste of everyone's time and money to proceed with discovery on claims regarding accused products that bear no similarity to the allegedly infringed works.

"While Defendant anticipates that Plaintiff will argue it requires discovery regarding all of Defendant’s influences in creating its works, such discovery is irrelevant if Defendant’s products are not similar to the products Plaintiff claims are infringed."

CHS further does not contest access to GW's works, so discovery regarding GW's interrogatory No. 1 (what GW works CHS has had access to) is unnecessary at this time. Further, CHS argues that GW is using this status report to re-argue its motion to compel. Not only is this improper and not directed to the purpose of the status conference, but such information regarding GW's interrogatory No. 2 (what sources were relied on, etc.) is irrelevant to a defense motion on the grounds that CHS's works are not similar to GW's allegedly infringed works.

CHS argues that "independent creation" is an affirmative defense and therefore discovery related to it is irrelevant to the question of substantial similarity, which is the purpose of the CHS interrogatory and its current position in the case (that the Court should compare the accused works with the allegedly infringed works and render summary judgement). As an affirmative defense, it is only relevant after the Plaintiff has established a case, i.e. after there is an open question of substantial similarity.

"Independent creation," as an affirmative defense, rebuts the Plaintiff's inference of copying. It works like this: The Plaintiff says that Defendant's work is a copy of Plaintiff's work. Access is required in order to prove copying but copying can be inferred if Defendant's work is substantially similar to Plaintiff's work. In other words, if the two things are the same, you can infer that one is a copy of the other. Once this is established, the Defendant can rebut this inference by proving that it did not have access to Plaintiff's work, i.e. that what looks for all the world like a copy was in fact "independently created," which is perfectly legal under copyright law.

Therefore, CHS argues discovery related to "independent creation" is irrelevant prior to the Court finding that substantial similarity survives as an issue of fact.

"Here, given how dissimilar Defendant’s products are, Plaintiff cannot raise an inference of copying. If Defendant does not prevail on its forthcoming dispositive motion, it will agree to promptly further supplement its response to this interrogatory to identify any sources it intends to rely on for purposes of arguing independent creation. Plaintiff will not be prejudiced by this timing, and in light of the number of products at issue, it will save Defendant significant burden in responding if it turns out no response is necessary."

The idea is that it isn't worth the time and effort, on the part of the Court and the Defense, to proceed with potentially irrelevant discovery.

Now, my opinion about all of this is that GW has not budged from the position it first took in this case: that CHS is copying its Warhammer and Warhammer 40,000 fictional universes and that because these universes are so broad and are embodied in so many disparate works, only the Defendant knows what works it infringed. This lack of specificity and strategy of burden shifting has not, in my opinion, been well received by the Court. Chapterhouse's position is that the case can be easily narrowed or even eliminated if the Court simply looks at what is accused of infringement and compares it to what it is supposed to be a copy of. Right now, this is impossible because GW has at all points evaded providing this specificity and attempted to shift the burden onto the Defendant. The key here is that I believe the Court is also striving to get some clarity on these issues. Therefore, Chapterhouse's position is, I believe, consistent with the Court's position whereas Games Workshop's position is stubbornly adverse to what the Court wants it to do. Judge Kennelly seems to wants this case to be over quickly. I don't think he wants it fouling his docket. All discovery is supposed to be completed by October 11th this year! That's pretty darn fast, but it aint gonna happen if the parties continue to be stuck at the same impasse that has existed basically from day 1. I predict that this status conference will go poorly for Games Workshop.

GW really is shooting itself in its foot by not getting its act together on this one. It almst feels like the lawyers have better things to do thatn steep themselves in nerdism, or are trying to keep GW's uncharted seas covered up, which is an excercise in futility. Then again, they could also be trying to cover their own ass in case it should crop up that the vast majority of their own IP is heavilly borrowed from other places too and are seeking to avoid any potential legal action from those they borrowed from themselves???

The way this is going, I see the judge getting right hacked off, and awarding costs to CHS?

Thanks for the input Weeble and for translating the legalese for us. It's a bit odd for GW's counsel to be stubbornly averse to the court's wishes; I would think this would only hurt their case.

I don't understand all the legal jargon however the basic point seems to be that GW are still complaining that "All of your base are belong to us".

I should have thought that the defence to the Rhino door with skulls on is that anyone in the world can make an octagonal plate of dimensions XYZ and put skulls on it. In other words, the "original" work (GW's is of such unoriginality that it does not merit any copyright.

Have GW actually identified a Rhino door with skulls on as a copyrighted work that has been copied? Are they just sort of claiming that no-one except them is allowed to put skulls on anything?

Kilkrazy wrote:I don't understand all the legal jargon however the basic point seems to be that GW are still complaining that "All of your base are belong to us".

I should have thought that the defence to the Rhino door with skulls on is that anyone in the world can make an octagonal plate of dimensions XYZ and put skulls on it. In other words, the "original" work (GW's is of such unoriginality that it does not merit any copyright.

Have GW actually identified a Rhino door with skulls on as a copyrighted work that has been copied? Are they just sort of claiming that no-one except them is allowed to put skulls on anything?

Seems to be more the latter (bolded)

Basically if i've been following this right GW is claiming most everythign CH does is infringing on thier IP but are refusing to specify exactly what and how... instead they are looking liek 5 year lods calling CH a big fat cheaty face and saying "they know what they stole and need to tell on themselves because we won't".

and definatly a bgi thank you to weeble for giving us all this info and wording it where even a feeble minded civil servant like myself can understand /salute

Kilkrazy wrote:

Have GW actually identified a Rhino door with skulls on as a copyrighted work that has been copied? Are they just sort of claiming that no-one except them is allowed to put skulls on anything?

Well, one can assume that's what GW means. There has been no specific product alleged to have been infringed by the "Tactical Rhino Doors with Skulls Kit." If GW's response is taken at face value, it essentially means that Chapterhouse created the accused product by copying GW's "products decorated with piles of skulls." I bet we could start a thread where folks post pictures of every single GW product that is "decorated with piles of skulls" and the "Tactical Rhino Doors with Skulls Kit" would not be substantially similar to any of them.

Note that "products decorated with piles of skulls" does not specifically mention that the kit is a copy of the Rhino tank model, or any part of it. The same is not true for other CHS Rhino conversion kits accused of infringement. Some reference #79 which states: "A Rhino is a Space Marine vehicle used by the Space Wolves Chapter." #33 also says: "Rhinos, Land Raiders, Drop Pods, and Land Speeders are Space Marine vehicles." But #96 includes no such reference to the Rhino vehicle. Neither does #97 which lists the CHS product "Rhino Tank Conversion Kit for Iron Snakes." The Games Workshop column states: "The three components on the top row have Iron Snakes icons. See product 17." Product 17 makes no mention of the Rhino vehicle.

So GW isn't even consistent. One Rhino conversion kit is based on the GW Rhino Space Marine vehicle and another isn't.

Weeble, thank you so much for that breakdown. That was a seriously interesting read Please, for the sake of us little people keep up with the translations.

weeble1000 wrote:
So GW isn't even consistent. One Rhino conversion kit is based on the GW Rhino Space Marine vehicle and another isn't.

Would it even matter if they did reference GW's Rhino door for their conversion kit? They didn't literally make a copy of a GW part, or even make a very similar rip-off. It's a distinct part that GW does not make, even if it does fit in the same place as their own Rhino door. Isn't this the idea behind aftermarket parts in a wide range of other industries?

It wouldn't take much to find images of items that were decorated with skulls long before GW adopted the motif.

Now that is a cool hat.

Down with GW!! Down with GW!! Down with GW!!

Alright I gotta go, need to grab a few more boxes of marines.

PS: This lawsuit is a joke. GW is a bully picking a fight with a MAA fighter. They won't win this one, and the ruling will be used for anyone to make GW parts.

I cannot believe that GW is this stupid.

I always thought the GW were a bunch of bullies to cover up how shaky their legal position was, but this really seems to be beyond the pale.

We use piles of skulls in our work so you can't nah na na nah nah!

I hope that their laywers had their fees paid up front!

Weeble, I would like to add my thanks to all the others, and I hope your dinner wasn't too spoiled/burnt/cold.

Cheers

Andrew

G00fySmiley wrote: a big fat cheaty face

Precisely this. Says everything one ever needed to know about GW.

So GW contend that only CH can identify what they have "stolen"? Surely the only response needed to that is: If you can't show what they have stolen, how do you know it IS stolen?

Kilkrazy wrote:It wouldn't take much to find images of items that were decorated with skulls long before GW adopted the motif.

I guess GW will just have to fire up the ol' finecast flux capacitor so they can time travel and sue long gone societies like pre-Inca South American ones who used decorative skulls in their art. Obviously, they willfully infringed on GW's IP.

Even if GW wanted to cut the ancient pre-columbian civilizations some slack for using their completely original IP, there is no question that they came up with decorative skulls on armored tracked military vehicles, right?



Crap... nope, they didn't come up with that either.

So let me get this straight...

GW: "CHS copies our stuff!"
CHS: "What stuff?"
GW: "All of it!"
CHS: "How are we supposed to respond to this?"
Judge: "CHS is right, WHAT are they copying?"
GW: "All of it!"
CHS: "Judge?"
HW: "All right, all right. YOU tell us what you are copying, okay?"
CHS: "Are you serious? Our position is that we don't copy. That's why we are HERE!"
GW: "You have skulls! Also, tell us what you are copying! JUDGE!!"

^thanks for that. I needed a good laugh.