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It's claimed that the head with tentacles is 'a reference to' the Ymgarl in the RT book. But that drawing didn't have tentacles, it had a face like a leech, or like the plastic chaos spawn, it looked nothing like the Cthulhu head they currently have.


Automatically Appended Next Post:
Oh, and if you want to see some aggressive questioning look at pages 161-162 of the document Sean_OBrien linked to in which the lawyers starts a 'yes he did', 'no he didn't' argument.

Is it possible to aquire the rights on the protocols of this lawsuit?
Would make a fine base for a sitcom

At the very least it would make for a decent dramedy movie. I can't see a serious movie about IP law selling well. But if it were done as a comedy in a serious enough way, perhaps.

When I read the Jes' deposition, I imagine him sitting there all snug and superior like the main character of the movie 'Social Network' during his depositions. Except in this case the character would be losing terribly instead of paying the annoying people to go away.

Goodwin might not be that snarky, but his attitude from what bits I've read was less than helpful. Saying that he's never seen a face with tentacles outside of 40k is ludicrous. Might as well have said that he'd never seen an octopus.

I still sympathize with Jes. He is in a awkward situation, when his superiors instructed him that being inspired by anything is a crime. He answers frankly enough to bring the not-of-this-world-view of GW's legal team into trouble, so they want to stop the protocol from being published.

Another proof that the design team are basically nice folks cursed with a crazy higher management.

 Kroothawk wrote:
I still sympathize with Jes. He is in a awkward situation, when his superiors instructed him that being inspired by anything is a crime. He answers frankly enough to bring the not-of-this-world-view of GW's legal team into trouble, so they want to stop the protocol from being published.

Another proof that the design team are basically nice folks cursed with a crazy higher management.

A fair enough point. Alas, most artistically creative people prefer not to have to deal with the business of their art. Some people just want to make things that look cool.

I wonder how much creativity at GW is stifled by management demanding more space marines and skulls on everything. Perhaps the skulls are just from sculptors who are tired of doing grimdark, so they do it sarcastically, thinking that there's no way the designs would get approved. A year later GW releases a gaming board with skull pits built into it. And what will you put on your skull table? Why a skull tower of course. And then a skull altar, with skull rocks.

Castle Greyskull was more creative than any of this latest nonsense.

 SickSix wrote:


But it is far more entertaining seeing how incompetent GW's lawyers are and how abysmally awful their case is!

They do seem to be doing a pretty good job with the Emperor/no clothes thing...

Tim

 Kroothawk wrote:
Is it possible to aquire the rights on the protocols of this lawsuit?
Would make a fine base for a sitcom

Didn't White Dwarf make it to The Big Bang Theory? Perhaps they can make use of it?

Cheers

Andrew

 AndrewC wrote:

 Kroothawk wrote:
Is it possible to aquire the rights on the protocols of this lawsuit?
Would make a fine base for a sitcom

Didn't White Dwarf make it to The Big Bang Theory? Perhaps they can make use of it?

Cheers

Andrew

White Dwarf made it into Peep Show. Admittedly it was in the line "I'm cancelling. Cancelling out of shame. Like my subscription to White Dwarf!" so it wasn't exactly a good thing

So it looks like on the latest ones you need to purchase from pacer the court gave GW some breathing room to change their statements:

Pursuant to the August 21, 2012 hearing and the Court’s Minute Entry dated August 23,
2012 (Dkt. 219), the Court granted, in part, Plaintiff Games Workshop’s Motion for Leave to
File its Unredacted Memorandum, Statement of Facts, and Exhibits Under Seal (Dkt. 206) in
support of Games Workshop’s Motion for Summary Judgment (Dkt. 213). Subsequent to the
hearing, the parties identified the specific portions of the subject documents that require
redaction pursuant to the Court’s order.
Plaintiff Games Workshop hereby files under seal an unredacted version of Games
Workshop’s Memorandum in Support of Plaintiff’s Motion for Summary Judgment; a redacted
version of Games Workshop’s Statement of Undisputed Material Facts; unredacted versions of
Exhibits 16, 21-22, and 107, and redacted versions of Exhibits 17, 24-26, 34-35, 37, 41-47, 53-
59, 64, 66, 69, 70, 73-75, 82-85, 96-102, 104-106, 115, and 119-121.
Plaintiff Games Workshop is simultaneously filing the unredacted versions of these
exhibits.

OK, so what the heck does that mean?

Warboss Gubbinz wrote:
So it looks like on the latest ones you need to purchase from pacer the court gave GW some breathing room to change their statements:

No.

If you follow the bouncing ball...both parties filed large parts of their evidence under seal. They then had to justify why the court should keep those items out of evidence. The judge agreed in part and disagreed in other parts. They then had to file the evidence to be entered into the record with the appropriate portions redacted in compliance with the judges determination. No new evidence would be allowed to be entered in regarding their filings for summary judgement (though they can normally continue to file additional information in their filings against each others summary judgement requests).

 Sean_OBrien wrote:

Warboss Gubbinz wrote:
So it looks like on the latest ones you need to purchase from pacer the court gave GW some breathing room to change their statements:

No.

If you follow the bouncing ball...both parties filed large parts of their evidence under seal. They then had to justify why the court should keep those items out of evidence. The judge agreed in part and disagreed in other parts. They then had to file the evidence to be entered into the record with the appropriate portions redacted in compliance with the judges determination. No new evidence would be allowed to be entered in regarding their filings for summary judgement (though they can normally continue to file additional information in their filings against each others summary judgement requests).

So all of that egg on GW's face from the CHS response will stay? Awesome.

 Aerethan wrote:

 Sean_OBrien wrote:

Warboss Gubbinz wrote:
So it looks like on the latest ones you need to purchase from pacer the court gave GW some breathing room to change their statements:

No.

If you follow the bouncing ball...both parties filed large parts of their evidence under seal. They then had to justify why the court should keep those items out of evidence. The judge agreed in part and disagreed in other parts. They then had to file the evidence to be entered into the record with the appropriate portions redacted in compliance with the judges determination. No new evidence would be allowed to be entered in regarding their filings for summary judgement (though they can normally continue to file additional information in their filings against each others summary judgement requests).

So all of that egg on GW's face from the CHS response will stay? Awesome.

Pretty much. BTW - for those who are looking to get back on the timeline...the pertinent info can be found here:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.219.0.pdf

Basically what I said above. GW will be filing and the documents will be filtering out through the Recap site over the next little while (because of the way that it works - it is hard to say exactly how long it will take before they are available for download though).

Additional filings can be made in support of claims or for consideration (like the Geiger Image which CHS entered in), but the original record stands (just as all the various complaints, dropped complaints, new complaints and everything else that GW has flip flopped about on). All of that stuff can be called upon later as it is part of the record and can be used to show things like overreaching claims and what not...some Judges really do not like plaintiffs that try to overreach in their complaints and it can hurt the party in question later on.

So wait, anything that GW may have conceded defeat on will still be part of the evidence? Basically once something is entered in it can't be taken back?

If that is the case, then good Lord I can't wait for this to move forward. The judge gets to see GW pass their own products as CHS ripoffs, and then that evidence gets passed around in court. Love it.


Question, what would happen if GW decided to withdraw at this point in the case(not saying that they would, but devils advocate and all that)? Would CHS have any recourse against GW for starting all this?

Obviously both parties have every reason to see this through to the end and beyond, I'm just interested in what would happen if GW more or less wanted this all to go away.

Sean,

Thanks for the clarification. My guess is that GW feels they have enough case law that all the "egg" will not matter. I personally don't see it that way but i'm not a lawer so that point is moot.

I cannot fathom what is going thru Judge Kearny's head on this one. I've read his statements and the motions thru the case. At best he treats this as a unique case and judges it on its merits (not alan's either). At worst he agrees with GW and says the current case law is enough to overlook all the discrepancies.

Either way GW will appeal this and continue to throw money at it until it gets to the highest court possible. I just hope CHS's pro bono continues for the appeal process.


edit* me no speel gud

 Aerethan wrote:
So wait, anything that GW may have conceded defeat on will still be part of the evidence? Basically once something is entered in it can't be taken back?

If that is the case, then good Lord I can't wait for this to move forward. The judge gets to see GW pass their own products as CHS ripoffs, and then that evidence gets passed around in court. Love it.


Question, what would happen if GW decided to withdraw at this point in the case(not saying that they would, but devils advocate and all that)? Would CHS have any recourse against GW for starting all this?

Obviously both parties have every reason to see this through to the end and beyond, I'm just interested in what would happen if GW more or less wanted this all to go away.

No take backs, no redos... Well sort of, they can petition the court and say...Oops, we goofed. Mind if we change that picture which shows our plastic shoulder pad which we have marked as theirs?

Remember though, the summary judgement will be entirely on the basis of law and facts. CHS disputes all the facts which GW puts forward...at the same time, GW disputes pretty much all the Law which CHS puts forward. The judge will make a determination if any of the disputes put forward are in fact invalid and make rulings based on that. There are several points which the judge will likely deal with, but the larger portion would move forward to the jury trial.

If for some reason GW were to back out of this case (as opposed to try to settle out of court with a shut up and go away sum of money), CHS would likely file for a Declaratory Judgement. Normally you file for one of those when they first send a C&D letter - though all it requires is the belief that one party may well attempt legal action against you in the future (for the most part...again, not a legal scholar...just been involved in a fair amount of these and married to one - but the actions taken by GW in general would likely allow it to apply to the controversy clause). Depending on the judge, the circumstances and the specifics of the case - the result can range fairly broadly.

Honestly - if I were a bits maker in the US (or an army builder software seller...or dealt with any product GW sniffs at on a commercial level) I would probably file for a declaratory judgement yesterday. The worst thing that could happen is the court could decide that you are not under threat of litigation. The best thing that could happen is the court could rule that your actions are perfectly legal under existing laws and you can move forward regardless of attempts by GW to stifle you (sending C&D letters or threats of suit). They would need to appeal the courts ruling first to get back into the game to sue you - though at that point, jurisdiction is established, so you don't have to worry about them choosing a court which is on the other side of the country from you.

Can this even go to summary judgement without GW providing evidence that they own the trademarks and copyrights in question? Because they still don't bother to supply the court with the necessary info for an IP case like this. And when asked, acknowledge that almost none of their claims have any merits. I am still baffled that this pseudo case is still going on.

 Kroothawk wrote:
Can this even go to summary judgement without GW providing evidence that they own the trademarks and copyrights in question? Because they still don't bother to supply the court with the necessary info for an IP case like this. And when asked, acknowledge that almost none of their claims have any merits. I am still baffled that this pseudo case is still going on.

That is one of the issues which the judge will address in terms of Facts in Evidence. There are varying levels of proof which are excepted for the various IP types. Registered Copyrights and Trademarks have more weight - however if you have an old notebook with a story in it...you have a copyright on that story even if no one has ever read it. Trademarks require use in commerce. Although GW doesn't actually have proof of the specific date used in commerce or registered trademarks on many of their claims - they have definitely sold certain things (that is part of why they entered in their entire 2007 Catalog as evidence earlier). Other claims though are without merit. If a product is not sold that is called "Excorcist Space Marines" blah blah - then that particular mark has not been used in trade. It was used in a book, or on a website...but until it is used to identify a product it can not be considered a trademark. An attempt could be made to say it is copyrighted and the icons related to them are copyrighted, but that is more difficult.

The other issue of course is that in large part - the existing Trademarks, registered or not, may well be deemed irrelevant. If no copyright violation is found regarding the designs of items that CHS is selling, than the use of GW marks is acceptable to identify CHS products as being compatible for use with the corresponding GW products. You see the same thing happen with all manner of aftermarket products. It is also an acceptable use of a Trademark to say "Our stellar assault troops are better than Games Workshop's Space Marines" provided that you don't violate a copyright claim that is held up. Again, you see this all the time in the Coke versus Pepsi commercials or State Farm versus Geico versus Progressive Insurance commercials. A trademark doesn't prohibit anyone from using the mark - it only ensures that they are not attempting to do business under that mark (if it is held up as well).

Lots of the marks though will likely not be held up. They are too generic or have been used descriptively in fiction, mythology and history over the years.

So based on what your saying, would it be too far a stretch to assume GW at this point is just hoping the case gets thrown out without prejudice?

Warboss Gubbinz wrote:
So based on what your saying, would it be too far a stretch to assume GW at this point is just hoping the case gets thrown out without prejudice?

Never happen, this late in the proceedings.

Warboss Gubbinz wrote:
So based on what your saying, would it be too far a stretch to assume GW at this point is just hoping the case gets thrown out without prejudice?

At this point, GW is probably trying to find out what CHS magic number is...you know, everyone has a price and all that.

After that, they are probably hoping that they will get a good pull on the jury, as that can make or break a case as much as any actual legal standing or facts can.

If you have watched various cases like these over the years, you will have seen some surprising results happen from a jury. Sometimes they are held up on appeal, sometimes they are thrown out on appeal - but jury trials are something which it is hard to predict no matter how much right is on the side of either side of a case.

 Sean_OBrien wrote:

After that, they are probably hoping that they will get a good pull on the jury, as that can make or break a case as much as any actual legal standing or facts can.

Yes juries can be unpredictable, but I really can't imagine that GW's lawyers would want to bring this case (big thuggish Redcoat English company goes after a little US guy working out of his garage with pro bono legal help) before a US jury, especially with what little will be left of this case after the judge sorts out all of the GW shenanigans in the MSJ phase.

I'm still thinking that this case is being run from Nottingham and that the people running it think they are in an English court, not a US court. Really looking forward to reading the MSJ decisions...

Tim

I've never wished for jury duty, but man I'd pay good money to be in that jury. Hell even being in the room would suffice. I just want to hear word for word GW's case explained to the jury. Then to hear CHS's defense, which at this point could be effortless.


I might just have to make a trip to Chicago for this.

Sean_OBrien wrote:At this point, GW is probably trying to find out what CHS magic number is...you know, everyone has a price and all that.

After that, they are probably hoping that they will get a good pull on the jury, as that can make or break a case as much as any actual legal standing or facts can.

After all what GW has done to Chapterhouse, there will be no magic number. Esp. as it would mean Chapterhouse going out of business, the GW case being so extraordinary weak and CHS's defense being pro bono.

And GW laywers show no social or legal competence at all to positively impress a jury, they rather alienate them from the start with their claim of owning the copyright of the world. Can't think of normal people having that much patience as the current judge.

Aerethan wrote:I've never wished for jury duty, but man I'd pay good money to be in that jury. Hell even being in the room would suffice. I just want to hear word for word GW's case explained to the jury. Then to hear CHS's defense, which at this point could be effortless.
I might just have to make a trip to Chicago for this.

More enjoyable and insightful than Games Day Chicago for sure

 Aerethan wrote:
I've never wished for jury duty, but man I'd pay good money to be in that jury.

I have a feeling that GW doesn't want any well informed 40K player in the jury box, not even the so-called "white knights". Considering how they're trying to push the "confusion" aspect as part of their case, they'd want uninformed non-players ruling.

I'm interested in seeing the jury selection questions when it comes time.

IF CHS can bring up the "Compatible car parts are legal" argument to the jury and frame it in that light, I think GW will be in deep gak. No matter how they try to frame it, most laypersons will see them as selling toys (Fancy toys, but toys nonetheless) and not art pieces, so if CHS frames it as "We're making toys that are compatible with their toys," GW is sunk imo.

 darkPrince010 wrote:
IF CHS can bring up the "Compatible car parts are legal" argument to the jury and frame it in that light, I think GW will be in deep gak. No matter how they try to frame it, most laypersons will see them as selling toys (Fancy toys, but toys nonetheless) and not art pieces, so if CHS frames it as "We're making toys that are compatible with their toys," GW is sunk imo.

Part of the issue that CHS lawyers have been stressing is that GW's copyright is limited based on what UK's laws recognize... since the UK wouldn't categorize GW's products as "art" (mostly because of production volume) the US court can't consider their copyright in that light since the copyrights are held in the UK. This limits the extent GW can claim these copyrights, implying simply that few if any of them are actually held by GW even before the scrutiny of US law is applied. The bar for how transformative a distinct product has to be to be uniquely different from their inspiration, is lowered as a result... while the standard for the specificity of "copying" is raised. This makes it more difficult for GW to say they have a claim to everything that seemingly looks like their products.

It is also important to note that various aspects of the CHS defense will pivot when they go from pretrial to the actual jury trial.

Right now, they want to get as much thrown out as possible based on the law. For that purpose, they are attempting to disprove the marks were used in commerce and failing that that the marks were used in a manner which is allowed under the law. If the judge bites and agrees with them - those portions will be removed from the complaint by the summary judgement action.

In the same way, they are attempting to establish that GW doesn't own certain copyright claims which they have made (by establishing that some design work was done by freelance artists or prior to the...I think 1989 rewrite of UK copyright laws - don't quote me on the date for that as I am very unfamiliar with UK law). Failing that, they want the courts to consider them as manufactured goods under UK law as they will have almost no protection at this point (the design right expires after 10 years or something along those lines). Failing that, they want to establish that the copyrights are of too broad and generic of concepts to be held up against anything other than an exact copy (based on their expert witness testimony). Failing that, they want to establish that the components which CHS sells are not infringing on the whole of the GW product (see the Tervigon example for the most poignant claim). If the judge bites on any of those hooks - those claims could be thrown out during the summary judgement action.

Once they get to trial though, they will likely look at their chosen jury pool and figure out which way is the best way to handle it. While there will definitely be law figured into things - don't overlook things like the "Big Bad Evil Foreign Company Trying to Smash the Fun Loving Local Boy who Just Wants to Make Toys for the Children" defense.

While that aspect won't likely be enough to win the case outright for them, it would go a long way in tipping the scales in the favor of CHS over GW (one of the reasons why all the silly superlatives in the intro to all the GW complaints may end up biting them in the butt later on).

 Sean_OBrien wrote:

Failing that, they want the courts to consider them as manufactured goods under UK law as they will have almost no protection at this point (the design right expires after 10 years or something along those lines).

Wow... just wow. So one possible result of this suit is that any GW figures/models made before 2002 would no longer have any copyright protection in the UK and USA?
If so, this is pretty mind boggling in terms of GW legal strategy fail and what would happen in the realm of garage production and eBay sales.

I wonder if Forge World models would retain their copyrights. Their lower production numbers might save them...

Tim

timd wrote:

 Sean_OBrien wrote:

Failing that, they want the courts to consider them as manufactured goods under UK law as they will have almost no protection at this point (the design right expires after 10 years or something along those lines).

Wow... just wow. So one possible result of this suit is that any GW figures/models made before 2002 would no longer have any copyright protection in the UK and USA?
If so, this is pretty mind boggling in terms of GW legal strategy fail and what would happen in the realm of garage production and eBay sales.

While that sounds great for recasters I find it unlikely that it'll actually work like that. Seems just a bit too easy that the right to use and reproduce the design of something just becomes a free-for-all after only 10 years especially when the original is still in production.