Forum adverts like this one are shown to any user who is not logged in. Join us by filling out a tiny 3 field form and you will get your own, free, dakka user account which gives a good range of benefits to you: No adverts like this in the forums anymore. Times and dates in your local timezone. Full tracking of what you have read so you can skip to your first unread post, easily see what has changed since you last logged in, and easily see what is new at a glance. Email notifications for threads you want to watch closely. Being a part of the oldest wargaming community on the net. If you are already a member then feel free to login now.

 Sean_OBrien wrote:

As a result - I would guess that pretty much every single filing which they have done is actually incorrect.

Youch!

Would that actually invalidate them, or just adjust/reset the clock on many of them?

Which could, I suppose, then invalidate some of them...

 Alpharius wrote:

 Sean_OBrien wrote:

As a result - I would guess that pretty much every single filing which they have done is actually incorrect.

Youch!

Would that actually invalidate them, or just adjust/reset the clock on many of them?

Which could, I suppose, then invalidate some of them...

You don't need to register something to have copyright. A creation gets protection and the clock starts ticking as soon as it is created (for UK stuff). However, registering in the US is important because:

(a) if done within 5 years of publication, will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate, and
(b) if registration is made within three months after publica­tion of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

(a) shifts the burden of proof from the plaintiff (prove you actually own the copyright, prove it's actually copyrightable etc..) to the defendant (prove they don't own it, prove it isn't copyrightable).

(b) lets you get waaaaaay more money when you sue someone.


And I think if it is something created in the US you have to register it before you can sue someone for infringement.




As for incorrect / improperly done applications, I don't know if there are any avenues for a third party to get the copyright office to look at something again. I know the rightholder can submit corrections for a fee if they screw up an application and need to change something.


-Edit-
This would be the applicable regulation I think (but it seems a bit old, I don't know where you americans keep your up to date regulations online):
http://www.law.cornell.edu/copyright/regulations/201.7.html


Automatically Appended Next Post:
-------------------------------

Just some random thoughts I had after looking at the emails that were turned over. First, it looks like Mr. Moskin started off by sending stuff over, and then handed the job over to Mr. Keener around the time CHS made their complaint. Second, from Ms. Golinveaux's declaration, she seems to be asking Mr. Keener about disclosure rather than Mr. Moskin. Maybe lead counsel isn't talking to the other side right now.


Second, I wonder how much all the corrections, emails and correspondences back and forth with the copyright office added to GWs bill. One of the reasons you hire the 900 dollar an hour solicitor is that they get it right the first time and cost you less in the long run.

Czakk, thanks for your updates to this thread! I'm bummed the motion was withdrawn but hopefully the copyright office rules one way or the other and it's able to be re-filed at that time.

I had to smile when I looked at the exhibits. I see that GW have 'discovered' models that are positioned, painted and based in identical colours as the CHS website.

HM must have been busy?

Cheers

Andrew

GW has filed a letter they wrote to the copyright office (attached to this post).

Looks like the registrar / clerk has again refused to register the shoulder pads. I imagine we will be seeing the motion to reconsider popping up again.

I find the letter to be a bit odd. Mr Moskin is giving the copyright office notice of the lawsuit because registration has been refused. However, from my very brief reading of the statute, notice isn't required:

(17 USC § 411(a) - Registration and civil infringement actions - http://www.law.cornell.edu/uscode/text/17/411)

...no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

(b)
(1) A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—
(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and
(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.


(bolding mine)

Two issues leap to mind. The first is that these are not United States works, they were created in the UK. So this notice is unnecessary right? Of course I guess it doesn't hurt to give notice even if the section doesn't apply.

Second - if this section is triggered by gws lawsuit and registration or notice was necessary, then the application has to have been delivered in the proper form and or the certificate has to be correct. Does proper form mean the correct paperwork or does it mean accurate / correct - up thread we've seen that Mr. Moskin might be mistaken as to the correct dates for a number of the works in question.

So, is GW's case in trouble now? If they cannot copyright the pad doesn't that substantially harm the point they are making.

 fullheadofhair wrote:
So, is GW's case in trouble now? If they cannot copyright the pad doesn't that substantially harm the point they are making.

It is a set back but not anything fatal. It means that CHS will bring it's motion to reconsider the summary judgement again.

Then the judge can either say a) 'nope, I got it right, it's copyrightable', b) 'I got it wrong, it's not copyrightable' or (i think this is possible) c) 'this is more complicated than I thought, not suitable for summary judgement, we will deal with it at trial'.

b) would be the big win for CHS, it would knock out a lot of the shoulder pad claims. It would still leave other claims in the case though.
c) would be a win for CHS as well, gives them a second chance (well third really if you count the motion to reconsider) to knock down the copyrightability of the shoulder pad.

Presumably if we hit (a) again CHS will file an appeal.

Given that the judge already ruled it was copyrightable, a and c are more likely than b imho.




Rethinking the letter, perhaps the notice isn't that important and what is important is GWs waiver of their right to administrative review of the shoulder pads. *shrug*

czakk wrote:

 fullheadofhair wrote:
{snip] .

{snip]

Thanks for the explanation. It is, as always, greatly appreciated.

I think this just goes to show the importance of keeping on top of paperwork and I am sure GW is reviewing all these instances and rapidly playing catch to make sure it doesn't happen again.

I would need to double check the specific terms and application - but normally if you apply for something from the government and the government says no (or doesn't say anything at all) and then you enter into a lawsuit relating to your petition (in this case to register you copyright claim) you must give notice of the lawsuit to the appropriate authority.

That authority then has the option to support your legal claim or oppose it in the lawsuit based on their position. If you do not give proper notice in a timely manner - they get annoyed and can become a thorn in your side because you didn't "Respect my AUTHORITY!!" (said in the voice of Cartman).

GW didn't respect their authority when they started filing all of their copyright registrations so there is a good chance that a functionary at the USPTO will decide to take a dump in their Cherios.

So if the shoulderpad goes to trial, can CHS use the C/W office denial as evidence?

I can't help but think that'd be pretty damning to a layman.

We need an american barrister to know that. Whether something is admissible or not as evidence is tricky.

Wild ass guess off the top of my head - you can use the fact that something was registered as evidence that it is valid (http://www.law.cornell.edu/uscode/text/17/410).

(c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.

If you can use evidence of registration as proof of validity, it would make sense that a refusal to register could be lead to rebut validity.

-edit-

Actually I think we may have some discussion about this in GWs pleadings around the motion to reconsider (weight to be given to copyright office's findings). If I have time I'll go dig em up.

There is a part somewhere in this thread that judges are strongly urged to take the opinion of federal offices into serious consideration.

Which we made the point that if the judge had known beforehand about the refusal, he very well might not have passed the summary judgement that he did.

 fullheadofhair wrote:
So, is GW's case in trouble now? If they cannot copyright the pad doesn't that substantially harm the point they are making.

Hey, GW still has the copyright on fur, feathers, skulls, arrows, Roman numbers and the words human, elf, dwarf etc

czakk wrote:


Two issues leap to mind. The first is that these are not United States works, they were created in the UK. So this notice is unnecessary right? Of course I guess it doesn't hurt to give notice even if the section doesn't apply.

Second - if this section is triggered by gws lawsuit and registration or notice was necessary, then the application has to have been delivered in the proper form and or the certificate has to be correct. Does proper form mean the correct paperwork or does it mean accurate / correct - up thread we've seen that Mr. Moskin might be mistaken as to the correct dates for a number of the works in question.

Doesn't s work that is successfully registered in a country become a work of that country? There's original origin and then registered origin.

Interesting here though is what section 411 has this to say:

In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

I think we're more likely looking at option A here. More's the pity; I wouldn't mind GW's lawyers eating some crow.

A layman in IP issues should not be able to grant a company the copyright on arrows.

 Kroothawk wrote:
A layman in IP issues should not be able to grant a company the copyright on arrows.

Are you referring to the judge or the copyright office employee? The judge might have a degree in law but I doubt he specializes in copyright cases whereas the employee at the government office does that all day everyday. I don't think either one classifies as a layman.

I was referring to the judge who may or may not have granted GW the copyright over the generic shoulderpad form by a rash remark.

If such things are possible in the USA, I can understand why companies are starting hopeless IP lawsuits, hoping for a mistake by a non-IP trained judge granting them the copyright on everything under the sun.

A bit on the nose for a german to be complaining about US ip practices given the recent tendency of german courts to offer ex parte injunctions for ip stuff at the drop of a hat.



Anywhooo. A federal court judge is not a lay person. They will have a working knowledge of the types of matters that appear in their court. More importantly they will be an expert in the conduct of a fair trial, an expert in assessing evidence and testimony and an expert in evaluating jurisprudence. Their role is to act as the impartial decision maker, not an omniscient law-knower.

It is the lawyer's job to present the facts and explain what case law applies / doesn't apply. Their job is to fully and forcefully present evidence and legal arguments. If they do their job correctly, the judge has all the law at his disposal, all the facts, and the ability to make a fully informed decision.

People aren't starting crazy lawsuits in the US because the federal court judges are laypeople or incompetent, they are starting lawsuits because the statutory framework around ip is incredibly plaintiff friendly and litigation risks are very low (no costs shifting, crazy discovery rules). Take this lawsuit for instance - the judge in this case is reputed to be the best in the district (do a google search). However, even with a good judge if CHS had not been able to obtain pro bono representation, they'd be finished by now just because of the cost of going to trial.

Nothing exciting for us today but:

This docket entry was made by the Clerk on Tuesday, February 5, 2013:
MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held with attorneys for both sides by telephone. Telephone status hearing continued to 3/7/2013 at 08:45 AM.(or, )

So, that's a delay until March 7th for the status hearing, if I'm translating my bureaucracy to English correctly, yes?

OT and I am sorry for it, yet I wonder if this can go to a third year?

I'm pretty sure that all judges have a pool for how long they can keep suits open. What happened to my December trial?

 chaplaingrabthar wrote:
So, that's a delay until March 7th for the status hearing, if I'm translating my bureaucracy to English correctly, yes?

More likely to allow for each side to go over the new evidence and possibly do depositions and what not for the new claims in the second suit which was then joined to the first suit. While it shouldn't add nearly as much time as the first claims did - there are 30 or so new claims which CHS has to respond to and all the needed depositions, experts and related issues that are tied to those claims.

 Aerethan wrote:
I'm pretty sure that all judges have a pool for how long they can keep suits open. What happened to my December trial?

Got bumped for more important case on the judge's docket...and then GW filed the second lawsuit...

 Sean_OBrien wrote:

 chaplaingrabthar wrote:
So, that's a delay until March 7th for the status hearing, if I'm translating my bureaucracy to English correctly, yes?

More likely to allow for each side to go over the new evidence and possibly do depositions and what not for the new claims in the second suit which was then joined to the first suit. While it shouldn't add nearly as much time as the first claims did - there are 30 or so new claims which CHS has to respond to and all the needed depositions, experts and related issues that are tied to those claims.

 Aerethan wrote:
I'm pretty sure that all judges have a pool for how long they can keep suits open. What happened to my December trial?

Got bumped for more important case on the judge's docket...and then GW filed the second lawsuit...

Ah yes, I forgot that the judge rolled the new claims into the older one. Without going through the entire thread, are any of the new claims in the realm of the unprotectable shoulder pad?

 Kilkrazy wrote:
OT and I am sorry for it, yet I wonder if this can go to a third year?

Easily. After that there will be the appeals process.

 Aerethan wrote:
I'm pretty sure that all judges have a pool for how long they can keep suits open. What happened to my December trial?

Maybe we could get one going ourselves. If I was GW I'd try to make this as expensive as possible for ChapterHouses freebie council in the hopes that they would just want to give up. Then again, if I were ChapterHouse's council, I'd want it to go on as well because 1) it is costing GW real money and 2) the longer it goes on the more obvious it is that GWs council are a bunch of morons.

I'm going to guess there's another 2 years worth of garbage here before trial.

My understanding is that having taken a Pro Bono case, a firm cannot abandon it.

Of course you are right that it cuts both ways, and GW's legal bill cannot be hoped to be recovered from Chapter House.

I am not convinced GW's lawyers are morons. They seem to play a bit fast and loose with things, however that is probably the result of having a somewhat weak case to work with.

GW themselves come out as more incompetent, not having got proper copyright of artists' work, and so on.

As a non-lawyer I too am not convinced GW lawyers are morons, but GW law department is, and GWs lawyers are trying to cover their faults by dishonest tactics. I don't know what the law says, but morally, retconning is still conning, isn't it?

Kilkrazy wrote:OT and I am sorry for it, yet I wonder if this can go to a third year?

We already ARE in the 3rd year, the 26th month to be exact.

Kilkrazy wrote:Of course you are right that it cuts both ways, and GW's legal bill cannot be hoped to be recovered from Chapter House.

May I point at the prices of the last 3 months? GW has to feed more than one Kirby currently

 Kroothawk wrote:
GW has to feed more than one Kirby currently

Hey now, don't go trying to blame this on me!