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Yeah. Really, I can only see GW being on top if the alpha juror is either a professional artist who likes big abusive companies (Since any artist who finds out about GW's reprinting without it being in the contract will be turned off by that) or some managerial-type person who supports big companies over little ones. And even then, I think it'll be a long shot for them.

 Sean_OBrien wrote:

Following the jury trial itself though, appellate courts are reluctant to overturn decisions which favor the defendant - though not so reluctant to overturn decisions which favor the plaintiff. Roughly 33% of appeals on behalf of the defendant are won, while only about 10% of plaintiff appeals win.

So only 43% of appeals have a resolution?

Or do you mean that when a defendant appeals they win 33% of the time and when a plaintiff appeals they only win 10% of the time?


I'd give anything to be in this jury.

 Aerethan wrote:
Or do you mean that when a defendant appeals they win 33% of the time and when a plaintiff appeals they only win 10% of the time?

This.

 Aerethan wrote:

 Sean_OBrien wrote:

Following the jury trial itself though, appellate courts are reluctant to overturn decisions which favor the defendant - though not so reluctant to overturn decisions which favor the plaintiff. Roughly 33% of appeals on behalf of the defendant are won, while only about 10% of plaintiff appeals win.

So only 43% of appeals have a resolution?

Or do you mean that when a defendant appeals they win 33% of the time and when a plaintiff appeals they only win 10% of the time?


I'd give anything to be in this jury.

Some Stats for you:

Outcome
1  Trial recorded as plaintiff win, no appeal 29.01%
2  Plaintiff wins at trial, defendant appeals and wins appeal 1.44%
3  Plaintiff wins at trial, defendant appeals and loses appeal 2.83%
4  Plaintiff wins at trial, defendant appeals and no decision on appeal 5.00%
5  Trial recorded as plaintiff win, plaintiff appeals and wins appeal 0.75%
6  Trial recorded as plaintiff win, plaintiff appeals and loses appeal 1.37%
7  Trial recorded as plaintiff win, plaintiff appeals and no decision on appeal 2.11%
8  Defendant wins at trial, no appeal 41.75%
9  Defendant Wins at Trial, plaintiff appeals and wins appeal 1.13%
10  Defendant Wins at trial, plaintiff appeals and loses appeal 8.05%
11  Defendant wins at trial, plaintiff appeals and no decision on appeal 6.56%


Total:
The plaintiff win rate on appeal is 16.57 percent while the defendant win rate on appeal is 33.72 percent.


Source:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1883599 - Why Do Plaintiffs Lose Appeals? Biased Trial Courts, Litigious Losers, or Low Trial Win Rates? - Page 5



*cough*
Interesting bit from their conclusion:

Nevertheless, our earlier work, Eisenberg and Farber (1997), provides a possible expla- nation for why plaintiffs tend to lose at trial. The short answer is that this results from the systematic selection of cases by plaintiffs for litigation. Our model is based on the idea that potential plaintiffs vary in their cost of litigation (or their litigiousness) and where the merits of a potential claim is distributed independently of the cost. Only those plaintiffs whose expected value of claim exceeds the litigation cost file a suit. Potential plaintiffs with the lowest litigation costs (most litigious) are those who file lawsuits, and these plaintiffs are willing (on average) to file relatively low quality cases. This is in contrast to defendants who, as the targets of plaintiffs, are selected close to randomly with regard to their litigation costs. The result of this asymmetric selection is a relatively low success rate in District Court for plaintiffs, and, as we show here, a relatively low success rate on appeal. [emphasis added]


Basically, they are arguing that the most likely explanation for the discrepancy is an excess of low quality suits filed by litigious idiots rather than systematic bias by trial or appellate courts.


Not sure where GW fits into their model - their initial suit was a full on strategic / predatory / nuisance, lawsuit, filed in Chicago, Paulson included as a plaintiff, jury trial, filed right before christmas, vague cause of action etc... Expected litigation cost would be low.

But since CHS didn't fold, their litigation costs have to be high and their hopes of recovery are pretty much nil (even if they win CHS won't have enough assets to pay them any damages). All those depositions must have cost a fortune and the motion practice around the evidence exhibits is going to expensive.

I don't understand why they didn't use their opportunity to amend their complaint to focus in on 2 or 3 absolutely winnable claims as soon as Winston and Strawn showed up. Now even if they win on some things they risk a judgement saying 'aftermarket bits are okay' or 'you can't copyright giger's art style". Maybe the upside of intimidating other 3rd parties was seen as being enough.

Fantastic stuff czakk. Sounds to me like GW fits the description of an overly litigious entity with a low quality case.

 Aerethan wrote:

 Sean_OBrien wrote:

Following the jury trial itself though, appellate courts are reluctant to overturn decisions which favor the defendant - though not so reluctant to overturn decisions which favor the plaintiff. Roughly 33% of appeals on behalf of the defendant are won, while only about 10% of plaintiff appeals win.

So only 43% of appeals have a resolution?

Or do you mean that when a defendant appeals they win 33% of the time and when a plaintiff appeals they only win 10% of the time?


I'd give anything to be in this jury.

Czakk well and good covered it - I don't recall where or when I had heard the stat...though it seems to either have changed a little or the numbers are a bit different from what I remember.

Remember though - a trial has three basic outcomes (many more variation there of...but each count can generally break down to one of the three). The court can rule for the plaintiff, they can rule for the defendant or they can not come to any ruling at all. No ruling can be retried in the case of the original case, though if an appellate court comes to no ruling it generally means that they concur with the lower courts rulings - it doesn't count as a win or a loss directly (in terms of the appeal).

So...

GW could have a count of a copyright on Skulls:

1) The jury might agree with them that they own all skulls.
2) The jury might disagree and say CHS can freely use skulls.
3) The jury might be split where half think that GW owns all skulls and the other half thinking that CHS can freely use skulls. This is effectively a win for CHS, however GW can sue again the very next day.

On appeal for each of those cases, the appellate court might decide that the jury decision was right or wrong on a number of different reasons. They may also agree in part, for example that GW might own skulls...however they might disagree with the specific penalty tied to that (damages for example). Gets to be a bit of a mess - but generally speaking, the defendant is favored on appeal.

Is there a statistic of how many plaintiffs won a case who used every trick in the trade to avoid stating what the defendend is actually accused of?

czakk wrote:

 Kroothawk wrote:

 odinsgrandson wrote:
So, trial.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...

Good luck for GW to find a jury that accepts that GW invented the skull and arrow and that second market is illegal per se and that GW doesn't have to prove copyright to unworthy underlings to win this case.

A juror who has aftermarket parts on their truck or car could make a real difference. That's an easy narrative to sell to folks even if they don't get the little toy soldiers part. For the conversion parts at least.

Any juror who hasn't ever gone specifically to their dealer for an oil change, tire, stereo, tune-up... any not OEM parts. "How many of the jury have Goodyear tires? Then you are breaking the law according to Games Workshop."

 judgedoug wrote:

czakk wrote:

 Kroothawk wrote:

 odinsgrandson wrote:
So, trial.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...

Good luck for GW to find a jury that accepts that GW invented the skull and arrow and that second market is illegal per se and that GW doesn't have to prove copyright to unworthy underlings to win this case.

A juror who has aftermarket parts on their truck or car could make a real difference. That's an easy narrative to sell to folks even if they don't get the little toy soldiers part. For the conversion parts at least.

Any juror who hasn't ever gone specifically to their dealer for an oil change, tire, stereo, tune-up... any not OEM parts. "How many of the jury have Goodyear tires? Then you are breaking the law according to Games Workshop."

This irks me every time it is brought up.

The parts for your car are not manufactured solely by the company selling you the car. They buy from companies like Good Year or Firestone for tires, and companies like Sirius or Bose for the parts for your stereo.

Also: oil changes and tune-ups are not "parts". They are "services". In any case, your example is not applicable to this situation.

 Kanluwen wrote:

 judgedoug wrote:

czakk wrote:

A juror who has aftermarket parts on their truck or car could make a real difference. That's an easy narrative to sell to folks even if they don't get the little toy soldiers part. For the conversion parts at least.

Any juror who hasn't ever gone specifically to their dealer for an oil change, tire, stereo, tune-up... any not OEM parts. "How many of the jury have Goodyear tires? Then you are breaking the law according to Games Workshop."

This irks me every time it is brought up.

The parts for your car are not manufactured solely by the company selling you the car. They buy from companies like Good Year or Firestone for tires, and companies like Sirius or Bose for the parts for your stereo.

Also: oil changes and tune-ups are not "parts". They are "services". In any case, your example is not applicable to this situation.

I'd agree that a tune-up is a service, and the act of doing an oil change is a service, but the oil could be viewed as an after-market component, given it isn't part of the good originally supplied.

Non-OEM parts might be an applicable comparison for the case, but unlicensed after-market mods such as body kits, which are made to fit with the existing chassis, certainly seem to be an applicable one - but I'm sure one of the IANYLs who turn up in here regularly might be able to cover similar scenarios from case law.

 Kanluwen wrote:

 judgedoug wrote:
Any juror who hasn't ever gone specifically to their dealer for an oil change, tire, stereo, tune-up... any not OEM parts. "How many of the jury have Goodyear tires? Then you are breaking the law according to Games Workshop."

This irks me every time it is brought up.

The parts for your car are not manufactured solely by the company selling you the car. They buy from companies like Good Year or Firestone for tires, and companies like Sirius or Bose for the parts for your stereo.

Also: oil changes and tune-ups are not "parts". They are "services". In any case, your example is not applicable to this situation.

Prepare to be irked continually.

I wonder who manufactured my Mitsubishi Oil Filter for my old 1997 Mitsubishi 3000GT SL that was specifically stated to be the only oil filter to be used on the car? Actually, Mitsubishi specifically did. And if I went to a Mitsubishi dealer, they used that specific one (Mitsubishi-manufactured brakes, too). Go to any other service center and they will use generic parts.

Ever had a new car with a new car warranty? My 2011 Chevrolet Camaro 2LT/RS has a 56,000 mile bumper to bumper warranty provided that any serviced parts used are OEM. Now, GM manufactures most of it's own OEM parts. If I use non-OEM parts, my warranty is voided (at least I don't get sued)

And you are correct, the parts are not manufactured soley by the company. Like GW doesn't manufacture the plastics or the paper used in their products. Both GM and GW's product is the sum of it's parts. The analogy stands, as me buying a carbon-fiber hood from a third party manufacturer my old 3000GT is exactly the same as Chapter House manufacturing a shoulder pad with a blood drop for a GW Space Marine. And the analogy works brilliantly in a courtroom to a pile of jurors, no matter how much it irks you. There will definitely be an "Ahhhhh... now I understand." moment from that jury.

If you want to get into the specifics:

GW may not "manufacture the plastics"(I'm assuming you're referring to the actual plastic) they use, but they do practically all the casting in house.

 Kanluwen wrote:
If you want to get into the specifics:

GW may not "manufacture the plastics"(I'm assuming you're referring to the actual plastic) they use, but they do practically all the casting in house.

Here is the fun part of a jury, they don't always care about what YOU think applies to the case.

If someone gives the car part analogy to a group of people who have never heard of GW or understand this market, it will be quite convincing to the other jurors.

And every mechanical part of ANY car can usually be found by a 3rd party company. You think AC Delco is the only company that makes spark plugs that fit in GM cars?

The fact remains that none of CHS's products are 1:1 copies. They are made to fit with another product, just like every company that makes 3rd party peripherals for any product: game consoles, cars, computers etc.

Dell can't start suing people for using HDMI connectors any more than GW can(successfully) sue someone for making shoulder pads for toy soldiers. And the evidence in the case clearly shows that CHS's shoulder pads are quite different from GW's.


And then there is the glaring fact that GW failed to produce most documents that show any kind of ownership of copyrights or use of trademarks in commerce, and what they did produce they brought in well after the deadlines for it, which if I was a judge I'd throw out because it would piss me off.

Anyone here work a job with deadlines? Does your boss just brush it off when you miss important ones by days and days?

The simple arguments that can be made to a jury against GW will be used, whether or not YOU think they apply. And to most people those arguments will make perfect sense.

 Aerethan wrote:

 Kanluwen wrote:
If you want to get into the specifics:

GW may not "manufacture the plastics"(I'm assuming you're referring to the actual plastic) they use, but they do practically all the casting in house.

Here is the fun part of a jury, they don't always care about what YOU think applies to the case.

Nor do they care what YOU think either.

If someone gives the car part analogy to a group of people who have never heard of GW or understand this market, it will be quite convincing to the other jurors.

You know that's why jury selection is such an important part of a jury, right?

If it does actually go to a jury trial, the likelihood of the jury containing people who will be swayed by that analogy alone is going to be fairly small. No matter how hard CHS' representation tries to make it certain.

And every mechanical part of ANY car can usually be found by a 3rd party company. You think AC Delco is the only company that makes spark plugs that fit in GM cars?

Of course not.

From my understanding, there are laws in place which prevent car parts such as spark plugs and tires cannot be patented/copywritten.

The fact remains that none of CHS's products are 1:1 copies. They are made to fit with another product, just like every company that makes 3rd party peripherals for any product: game consoles, cars, computers etc.

Except that argument stopped holding weight when CHS started selling Imperial Jetbikes, True Scale "Knight Praetorius", Dark Elf "Arch Torturess", etc.

Dell can't start suing people for using HDMI connectors any more than GW can(successfully) sue someone for making shoulder pads for toy soldiers. And the evidence in the case clearly shows that CHS's shoulder pads are quite different from GW's.

I love how every single argument in favor of CHS relies upon imperfect analogies or those which are just absolutely ridiculous.

Dell can't start suing people for using HDMI connectors, but if a company started up branding itself "The Source for Dell HDMI Connectors" and trading upon Dell's name--there almost would assuredly be issues.

And then there is the glaring fact that GW failed to produce most documents that show any kind of ownership of copyrights or use of trademarks in commerce, and what they did produce they brought in well after the deadlines for it, which if I was a judge I'd throw out because it would piss me off.

And if a judge behaved like that, there would be issues.

Anyone here work a job with deadlines? Does your boss just brush it off when you miss important ones by days and days?

Sure. However, my boss also realized that when you were dealing with outside entities you sometimes do not get contacted back with the information you required in a timely fashion.

The simple arguments that can be made to a jury against GW will be used, whether or not YOU think they apply. And to most people those arguments will make perfect sense.

No, they likely will not.

Maybe in the vacuum of GW not providing any kind of rebuttal they make perfect sense, but in a trial setting GW's representatives would be actively countering these arguments.

Unless of course the firm is just going to roll over and settle.

 odinsgrandson wrote:
So, trial.

My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.

It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...

Exactly, it's one of the main reasons the American justice system is viewed as such a joke by many. Often it is about whichever side is able to play the minds of the random bunch of people the best, instead of finding the actual facts & truth.

HDMI connectors are a poor analogy - they are standardized, licensed, and you can certainly be sued if you start using them without an appropriate license; but no, Dell doesn't control them.

After-market car parts, particularly body kits, are a pretty good analogy, or at least as good an analogy as there is in this case. There are some novel points of law at issue here, which is likely what made the case attractive to pro-bono counsel. (Spark plugs aren't - those are purely functional.)

For all the mocking of the US judicial system we hear, it is remarkable how well it does work. It's not perfect; it's just as close as anything we've seen.

And NONE of this is precisely on-topic. Let's stop rehashing the really old details; this thread is intended to cover ongoing news.

Except that argument stopped holding weight when CHS started selling Imperial Jetbikes, True Scale "Knight Praetorius", Dark Elf "Arch Torturess", etc.

Because none of those game console 3rd parties make controllers in the EXACT configuration as the OEM parts?

None of those items are direct copies of any product sold or any copyright owned.

And you can't say that CHS traded on GW's trademarks if GW can't prove ownership and use of the trademark, which they haven't.

And GW had months to provide the requested documentation and failed to. The argument about clients not responding in a timely fashion loses weight when you had months to prepare. When you say "the client took too long to reply" the first question is "when did you request the information?".

So whether the lack of timely documentation is GW's fault or their lawyers fault doesn't really matter to the court. If the case cannot abide by the rules set forth, it should be dismissed.

Of course at this point CHS doesn't want it dismissed, they want resolution, lest GW find lawyers who know wtf they are doing and come back with a proper suit.

Fanboy all you want, but GW will win this like Ron Paul will win the presidency. Sure it's possible, but it won't happen.

HDMI connectors actually are licensed?

Well, you learn something new everyday...

 Kanluwen wrote:

Of course not.

From my understanding, there are laws in place which prevent car parts such as spark plugs and tires cannot be patented/copywritten.

You are in fact quite wrong. There are several patents for spark plugs (Tesla has one along with a couple guys who's last names are Bosch and Champion who might sound familiar) and about everything that goes into a tire from the tread pattern to the compound can and are patented.

 Janthkin wrote:
For all the mocking of the US judicial system we hear, it is remarkable how well it does work. It's not perfect; it's just as close as anything we've seen.

I admire you for trying to defend the US justice system, but seriously now....

 TBD wrote:
I admire you for trying to defend the US justice system, but seriously now....

How about you get some first-hand experience with the U.S. legal system instead of getting it from television shows? By the way, didn't one of those "citizen judges" in the Breivik trial have to be replaced because he was biased? Or how about Italy where the court found scientists guilty of manslaughter because they didn't predict an earthquake?

 Breotan wrote:

 TBD wrote:
I admire you for trying to defend the US justice system, but seriously now....

How about you get some first-hand experience with the U.S. legal system instead of getting it from television shows? By the way, didn't one of those "citizen judges" in the Breivik trial have to be replaced because he was biased? Or how about Italy where the court found scientists guilty of manslaughter because they didn't predict an earthquake?

That last bit sounds like something that would happen in California.

California, Home of Frivolous Litigation.

 Janthkin wrote:

After-market car parts, particularly body kits, are a pretty good analogy, or at least as good an analogy as there is in this case. There are some novel points of law at issue here, which is likely what made the case attractive to pro-bono counsel.

What about the totally legal aftermarket resin/brass-photo etch/pewter kits for Tamiya/Italeri/etc models made by other manufacturers?

I guess it's like Mattel trying to sue another manufacturer for making 1/6 scale clothes that are compatible with Barbie dolls, and then failing to ever find proof that they registered Barbie doll as a trademark?


Automatically Appended Next Post:

 Kanluwen wrote:
Except that argument stopped holding weight when CHS started selling Imperial Jetbikes, True Scale "Knight Praetorius", Dark Elf "Arch Torturess", etc.

...so Star Wars, Foundation, and Michael Moorcock models?

As far as I'm concerned, and from what I can tell as far as the judge will likely be concerned, the only claims that will make it through this will be the trademark claims, but then GW hasn't shown any registration or proof on those trademarks.

The copyright claims are all baseless accusations. Inspiration isn't infringement, and none of the items in question are direct derivative works of any GW "originals".

2D pictures hold no copyright over 3D sculpts as they are entirely different mediums, and even the design of the two items in question is significantly different.

The other models are only inspired by prior works. And GW's own testimony thus far has gone a long way to damaging their own claims.

 Breotan wrote:

 TBD wrote:
I admire you for trying to defend the US justice system, but seriously now....

How about you get some first-hand experience with the U.S. legal system instead of getting it from television shows? By the way, didn't one of those "citizen judges" in the Breivik trial have to be replaced because he was biased? Or how about Italy where the court found scientists guilty of manslaughter because they didn't predict an earthquake?

Or how about the killer in Norway who murdered 77 people and only got 21 years in prison because that is the maximum sentence? If you think the US legal system is corrupt feel free to travel in the Middle East, South America or Asia anytime.

 Janthkin wrote:
HDMI connectors are a poor analogy - they are standardized, licensed, and you can certainly be sued if you start using them without an appropriate license; but no, Dell doesn't control them.

After-market car parts, particularly body kits, are a pretty good analogy, or at least as good an analogy as there is in this case. There are some novel points of law at issue here, which is likely what made the case attractive to pro-bono counsel. (Spark plugs aren't - those are purely functional.)

For all the mocking of the US judicial system we hear, it is remarkable how well it does work. It's not perfect; it's just as close as anything we've seen.

And NONE of this is precisely on-topic. Let's stop rehashing the really old details; this thread is intended to cover ongoing news.

How about we all re-read what Janthkin posted and get this thread back on topic?

Final public/general warning.

After this, sanctions will be applied!

Since it got lost in the pages of nonsense, when is trial set to start?

By which I mean opening arguments and all that, not jury selection.

 Aerethan wrote:
Since it got lost in the pages of nonsense, when is trial set to start?

By which I mean opening arguments and all that, not jury selection.

Specific date hasn't been set - though IIRC it should be mid December to begin the court procedures - though that will likely start off with the jury selection.

And can we expect a youtube link to be provided each day...
Or are we still living in the stone age of web transcripts!

Outside of a pilot program, I don't think they televise many federal trials in the US. Court tv is mostly state stuff I think.

Our best bet would be some intrepid chicagoan (chicagan? chicago-ite?) taking an interest and sitting in with a notepad. I think transcripts are slow to go up and cost a ton of money to get via pacer as well.