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 RiTides wrote:
Can someone translate

Short version is that GW's legal team continue to make things hard from themselves, in this case either through incompetence or malice they did not provide all the information that they were required toand stated they had supplied it.

As such when the judge gave his decision GW had all ready been declined the copyright but they failed to mention this, CH's lawyers are now requesting that the decision be looked at again due to this.

I'll try to do a summary later tonight.

Nothing earth shattering so far.

Thanks, SeanDrake / czakk!

I should state that I am not a lawyer I just have a lot of free time at the moment to sit and read Pacer and the inane claims made by GW in there 150 page submissions

There are actually two bits in there...

1) First being CHS...

Since the USPTO rejected their copyright application and GW decided that they wouldn't attempt to appeal the rejection...instead rely on the outcome of this case, CHS is taking that as a defacto acceptance of the rejection. As a result, they are going to refile the paperwork which they had filed previously regarding a reconsideration of the overall position of the court on the underlying shoulder pad shape.

2) Second being GW...

They say that CHS hasn't been forth coming with everything that GW wants to see. Part of the information is regarding communications with the designers and other company related information. Part of the information is regarding advertisements and other public communications (for example, the CHS thread here in the news section). They want the judge to slap their hand and make them show it (with the possibility of the judge doing more than just slapping their hands).

The majority of the document is just showing examples of posts and what not which GW tracked down that CHS didn't actually produce. While they are accurate in terms of a specific request to produce documents like those, in this day and age - companies who work online and interact with customers on forums like CHS does would generate hundreds of pages of documents each day (if not more depending on how they formatted them).

Of course, it is somewhat ironic considering that GW hasn't been able to show a single employment contract which actually shows copyright assignments and had only been able to gain assignments after the fact (which some could argue were gained under false pretense).

Hey Sean,

As always, thanks for breaking this down into non-attorney speak .


A couple of questions if you don't mind;

1) Since it appears GW didn't file this lack of disclosure until after CHS filed the trademark issues--is this really more a motion of spite? IE--usually as a professional courtesy, certain grey areas of disclosure is not brought up--but since you made me look bad in front of the judge...

2) How reasonable is GW's claim? As a non-attorney, it seems asinine to expect someone to constantly Google discussions regarding someone's product.

Thanks!

 AgeOfEgos wrote:
Hey Sean,

As always, thanks for breaking this down into non-attorney speak .


A couple of questions if you don't mind;

1) Since it appears GW didn't file this lack of disclosure until after CHS rose the trademark issues--is this really more a motion of spite? IE--usually as a professional courtesy, certain grey areas of disclosure is not brought up--but since you made me look bad in front of the judge...

2) How reasonable is GW's claim? As a non-attorney, it seems asinine to expect someone to constantly Google discussions regarding someone's product.

Thanks!

Some parts of GW's claim are very reasonable but they are buried in huge piles of rubbish, but in most cases they have been unable to provide any evidence of actually having any copyright prior to the case beginning. In the majority of cases there stating that because the item in question was in a copyrighted product such as the old citadel catalogues or the codex's and rulebooks then they are claiming copyright.

However as far as I am aware that's not how it works and individual items must be registered on there own merits and as such if ruled in this way then pretty much nothing GW has produced is copyrighted.
Also a big part of GW's claim is that there products are effectively art and as such should be treated as such legally, which then changes the rules regarding copyright.

This is also important in regards to a ruling in the English/European courts regarding toy soldiers,action figures etc being covered only by design rights and as such only being protected for 25 years as opposed to being sculptures which can be copyrighted indefinetly if you actually bother

This also the most likely reason this case is being fought in the US rather than UK courts.

In regards to your specific questions I don't think it's spite as much as trying to deflect attention away from there own lack of compliance, GW have made a number of rather awkward requests specifically trying to cause CH to fail to respond, there request for copies of conversations on 3rd party forums is just one of them.

2) Like I said, in today's age - I think it is a bit of a stretch to provide all of the information which they are requesting. Some of it isn't so much (discussions with designers for example) - however...if CHS were to request the same information from GW, they wouldn't be able to provide it either. With most the design work having had happened 30 some odd years ago, I think they would be hard pressed to produce a single design document.

BTW - it is important to note that CHS doesn't have to provide all discussions of their products...only the ones that they initiate or take part in. For example, if I were to write a blog post about them - they wouldn't need to produce that. However, if they were to participate in a discussion here about their products (answering a question about a release date or a size question perhaps) then by the letter of the discovery request - it would need to be produced. That is a bit over burdensome as I am sure that there are dozens of forums with hundreds of threads regarding their products and the vast majority of them will have mentioned GW in some way (also part of the discovery relevance criteria...).

1) Yes - it does appear that a lot of what GW is doing is simply out of spite. Though it isn't something which I find all that surprising - the current leadership of that company is a bit of that way...

 Sean_OBrien wrote:

1) Yes - it does appear that a lot of what GW is doing is simply out of spite. Though it isn't something which I find all that surprising - the current leadership of that company is a bit of that way...

Well tbh the whole case is out of spite as I doubt CH were having any effect on GW's sales other than increasing them as CH mostly sold additional parts that needed a GW product in the first place

SeanDrake wrote:

 AgeOfEgos wrote:
Hey Sean,

As always, thanks for breaking this down into non-attorney speak .


A couple of questions if you don't mind;

1) Since it appears GW didn't file this lack of disclosure until after CHS rose the trademark issues--is this really more a motion of spite? IE--usually as a professional courtesy, certain grey areas of disclosure is not brought up--but since you made me look bad in front of the judge...

2) How reasonable is GW's claim? As a non-attorney, it seems asinine to expect someone to constantly Google discussions regarding someone's product.

Thanks!

Some parts of GW's claim are very reasonable but they are buried in huge piles of rubbish, but in most cases they have been unable to provide any evidence of actually having any copyright prior to the case beginning. In the majority of cases there stating that because the item in question was in a copyrighted product such as the old citadel catalogues or the codex's and rulebooks then they are claiming copyright.

However as far as I am aware that's not how it works and individual items must be registered on there own merits and as such if ruled in this way then pretty much nothing GW has produced is copyrighted.
Also a big part of GW's claim is that there products are effectively art and as such should be treated as such legally, which then changes the rules regarding copyright.

This is also important in regards to a ruling in the English/European courts regarding toy soldiers,action figures etc being covered only by design rights and as such only being protected for 25 years as opposed to being sculptures which can be copyrighted indefinetly if you actually bother

This also the most likely reason this case is being fought in the US rather than UK courts.

In regards to your specific questions I don't think it's spite as much as trying to deflect attention away from there own lack of compliance, GW have made a number of rather awkward requests specifically trying to cause CH to fail to respond, there request for copies of conversations on 3rd party forums is just one of them.

Yes. That is why it would be important to actually see what the copyright registration is given to. If you take a look at the rejection letter, it sites the warning text as being something which is copyrighted (can't think of the exact wording off the top of my head...but something along the lines of "This has small parts, don't feed it to children or imbeciles"). If each of the registrations are actually registering those aspects as opposed to the actual product - then GW could have significant problems...as no one is copying GW's packaging.

With the catalogs in particular it is noteworthy to understand that you can copyright a phone book - a directory of readily available facts. You can not however copyright the individual phones numbers, so anyone is able to take those numbers and create their own directory from them. Just because a copyright might have been granted to something like their catalog - it doesn't actually reflect that the material contained in would be copyright protected (much of it would be of course).

So, I guess my question is at this point, the judge can see whats going on here right? At what point does he put a stop to this circus?

So far - the existing trial date is still standing AFAIK...April of this year. Effectively that will mean that both sides can continue doing what they are doing right up until then, at which point it goes into the specific trial aspects of jury selection and actual proceedings.

The cynic in me thinks that this type of a motion by GW this late in the game is somewhat of a stall tactic (if it wasn't for the new case being rolled into the old case, discovery would be closed and this wouldn't be allowed). Were GW to come into a few thousand additional pages of documents they needed to review - they might be able to push the trial date back again.
____________________________________

What I think would be interesting though in light of this case as well as the Space Marine trademark fiasco would be for someone in the UK to file for a License of Right against GW. Would only end up costing £65.00 - and I am sure it would cause all sorts of butt clenching in Nottingham.

http://www.ipo.gov.uk/pro-types/pro-design/d-law/d-law-designright/d-law-designright-form1.htm

And what exactly is a License of Right?

Gives you the right to produce the product.

See, in the UK (and EU in general) you have 4 types of IP which are set out. Patents, Copyrights, Trademarks and Designs.

Generally speaking, patents deal with inventions of some form. If you create a new bit of software to allow for better file compression or a lightbulb which never burns out and uses half the power of an existing bulb - you could get a patent to protect that for a specific term (it varies based on the item and country - but for giggles lets just say 10 years).

If you are an artist and you write a book, paint a painting, compose a song or create some other form of artwork - you get a copyright. That lasts...well, it may as well last forever now. Your life span, plus 70 some odd years until the next extension of terms is legislated (again - the specific term varies some...though the Boerne convention dictates a minimum which is so long as to be irrelevant to this discussion).

If you are a company and sell stuff - for example, Games Workshop selling miniatures under the mark Citadel Miniatures you can get a trademark. Those last as long as you continue doing business with those names.

The important thing though is design rights. We don't have those in the US (it is all or nothing under copyrights for us). What the design right does is for products which are not art (in this case toy soldiers) the originator has an exclusive right to produce that product for 5 years (can be extended to 10 years with a renewal). After that period of time though - anyone can apply for a license of right to produce that product. After a period of 10 years (or 15 if they renew) the originator's design right expires and it becomes open to everyone without needing a license of right.

Unfortunately - because of our all or nothing approach, it doesn't become free for all here. Since we don't have laws covering design rights - the toys are covered by copyright laws...and as a result, this case continues. What may be possible though is to sue in the UK for a license right (or have the design right dispute adjucated by the IPO) and have those findings enforced in the US (as you would have contract law in play as well as copyright law - and generally contracts trump copyrights).

It may be one of the reasons why all the various knock-off companies in the UK and EU in general have been left alone by the GW dogs.

Very interesting, thanks for explaining all that

 Sean_OBrien wrote:

Spoiler:

Gives you the right to produce the product.

See, in the UK (and EU in general) you have 4 types of IP which are set out. Patents, Copyrights, Trademarks and Designs.

Generally speaking, patents deal with inventions of some form. If you create a new bit of software to allow for better file compression or a lightbulb which never burns out and uses half the power of an existing bulb - you could get a patent to protect that for a specific term (it varies based on the item and country - but for giggles lets just say 10 years).

If you are an artist and you write a book, paint a painting, compose a song or create some other form of artwork - you get a copyright. That lasts...well, it may as well last forever now. Your life span, plus 70 some odd years until the next extension of terms is legislated (again - the specific term varies some...though the Boerne convention dictates a minimum which is so long as to be irrelevant to this discussion).

If you are a company and sell stuff - for example, Games Workshop selling miniatures under the mark Citadel Miniatures you can get a trademark. Those last as long as you continue doing business with those names.

The important thing though is design rights. We don't have those in the US (it is all or nothing under copyrights for us). What the design right does is for products which are not art (in this case toy soldiers) the originator has an exclusive right to produce that product for 5 years (can be extended to 10 years with a renewal). After that period of time though - anyone can apply for a license of right to produce that product. After a period of 10 years (or 15 if they renew) the originator's design right expires and it becomes open to everyone without needing a license of right.

Unfortunately - because of our all or nothing approach, it doesn't become free for all here. Since we don't have laws covering design rights - the toys are covered by copyright laws...and as a result, this case continues. What may be possible though is to sue in the UK for a license right (or have the design right dispute adjucated by the IPO) and have those findings enforced in the US (as you would have contract law in play as well as copyright law - and generally contracts trump copyrights).

It may be one of the reasons why all the various knock-off companies in the UK and EU in general have been left alone by the GW dogs.

One question about the license of right; to whom is the application sent? The government or the originator?

 Lordhat wrote:
One question about the license of right; to whom is the application sent? The government or the originator?

Well, based on my understanding of the process (again - it isn't something we have in the US - and my contact with it is somewhat more casual) you would start by sending a letter to GW requesting a license of right if it would still be under their initial design right period. Technically speaking, if the design right had fully expired, you wouldn't even need to apply for the license of right...it is granted by default (but lack of the challenge prevents you from achieving the official ruling on the issue).

Alternatively, you can file with the IPO to determine the following:

Whether design right exists in the whole, or part, of an article.
When the design right came into force, and when it will expire.
The identity of the person who has the first claim to the design right.

In the case of GW, they would look at the product in question (say something like a Tau Crisis Suit) and determine if it is a design (in light of the LucasFilm ruling - it would be). They would then look at the initial release date of the product to see when the design right would have been established. Based on that, they would look to see if it was a registered design or an unregistered design and determine when the design right will expire (it would have expired 10 years after first sale since it is an unregistered design). If the design right is still in effect - they will tell you who has the design right (GW in this case).

If you send the letter to GW and they ignore it or say no - then you can file for a settlement of license of right through the IPO:

http://www.ipo.gov.uk/pro-types/pro-design/d-law/d-law-designright/d-law-designright-form3.htm

The ability to license the production rights is non-optional under UK law. If the period of time has expired, they have to consider licensing the product to you. If they do not, or if the terms of the license are unreasonable (say requiring unreasonable fees) than the IPO is authorized to intervene and set reasonable terms.

Cool, thanks.

And I'm guessing that someone in the US can't just apply for the design right in the UK.

So in USA, if the relevant institution USPTO rejects a copyright claim for being too generic, the company can always opt for taking it to a local jury of layman to decide? So bombarding layman juries with absurd copyright claims makes sense, as once in a while, those laymen may overlook a thing that experts don't?

A couple of things reduce the number of bs trials:

1) Jury trials are fantastically expensive.

2) You need to put the copyright office on notice that you intend to go to trial despite their rejection. They have the option to show up at your trial and argue, or just file a motion saying 'We are the copyright office and this is bs'. Tends to be persuasive.

3) If it is a US work and it isn't registered you don't get the crazy statutory damages / remedies that would make a jury trial worthwhile.

czakk wrote:
A couple of things reduce the number of bs trials:

1) Jury trials are fantastically expensive.

2) You need to put the copyright office on notice that you intend to go to trial despite their rejection. They have the option to show up at your trial and argue, or just file a motion saying 'We are the copyright office and this is bs'. Tends to be persuasive.

3) If it is a US work and it isn't registered you don't get the crazy statutory damages / remedies that would make a jury trial worthwhile.

Remember though, because of the way our system is set up - if a defendant fails to put up a defense, it is an effective win for the plaintiff (something which companies like GW count on). Very rarely will a judge intervene and say a suit is over reaching without a defense attorney saying that they are first.

So - a company like GW slaps a copyright/trademark claim down on paper. They issue a C&D. They file a suit in Tim-buck-too compared to where the defendant resides. The defendant shirks away in fear when they get a quote on the costs to put up a defense from an IP attorney. The judge finds in favor of the plaintiff since the defendant fails to show up.

The costs are minimal for GW in that regard (few thousand for the various fees relating to the initial court filings and what not) - and it creates an air around them that their IP is unassailable.


Automatically Appended Next Post:

rigeld2 wrote:
And I'm guessing that someone in the US can't just apply for the design right in the UK.

I haven't seen anything in the law which specifically requires it - however, I also haven't found any prior history of it being done outside of the UK. It definitely would be easier in the UK...though I don't believe that is actually mandatory by statute.

 Kroothawk wrote:
So in USA, if the relevant institution USPTO rejects a copyright claim for being too generic, the company can always opt for taking it to a local jury of layman to decide? So bombarding layman juries with absurd copyright claims makes sense, as once in a while, those laymen may overlook a thing that experts don't?

Yes because in the UK and the US it's perceived that the courts should be able to hold Government agencies and the Government themselves to account. It's an excellent way of keeping them in check and making sure that an individual's rights don't get trampled by the executive.

 Holdenstein wrote:

 Kroothawk wrote:
So in USA, if the relevant institution USPTO rejects a copyright claim for being too generic, the company can always opt for taking it to a local jury of layman to decide? So bombarding layman juries with absurd copyright claims makes sense, as once in a while, those laymen may overlook a thing that experts don't?

Yes because in the UK and the US it's perceived that the courts should be able to hold Government agencies and the Government themselves to account. It's an excellent way of keeping them in check and making sure that an individual's rights don't get trampled by the executive.

... but by the executives of a wealthy company

I'd much prefer the opinion of a copyright professional than I would 10 people who have zero experience with copyright.

I sincerely hope that the USPTO shows up and reams GW something fierce in court about this.

 Aerethan wrote:
I'd much prefer the opinion of a copyright professional than I would 10 people who have zero experience with copyright.

I sincerely hope that the USPTO shows up and reams GW something fierce in court about this.

Yeah, the lawyers of CHS might even throw the USPTO a friendly notice of the trial date and offer to fly them in.....and maybe throw in a lunch too.



.....

Sure, but I doubt that it will change the USPTO's judgement of the matter, and if it does W&S have a valid claim of bribery against the USPTO as well as Moske and his firm, likely resulting in sanctions / disbarrments.

Whoops, sorry about that, I must have crossed my eyes. Duh.

(note to self: avoid breakfast cereals named 'stupid' and definately don't put it in a big bowl.)

Yes I agree with what you said.

Flying them in to testify as an expert witness isn't bribery.

See edit above.

In the big GW pdf I uploaded last page, on page 121 (exhibit 11) we get a little more about CHS's 'fraud' defence.

Direct link to just exhibit 11: http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.278.12.pdf

Without waiving and subject to these objections and its general objections, Chapterhouse states that, in support of its affirmative defense that Plaintiff’s claims are barred because its copyright and trademark registrations were obtained through fraud on the Copyright Office or the Patent and Trademark Office, Chapterhouse relies upon each piece of correspondence with the Copyright Office or the Patent and Trademark Office that Games Workshop has, withheld from production or failed to timely produce in this lawsuit (which includes all correspondence with each administrative office to the best of Chapterhouse’s understanding).

It continues on in that vein.