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Indeed.

Worthy diversion, but might be best to take further discussion on this topic to a new thread.

I know that the Professors report will be presented in court as evidence, but do the disposition records ever make it there?

The reason I ask is to do with a supplemental question on the Profs knowledge of GW. A jury is to consider only evidence/facts presented/heard inside the courtroom, but the GW 'Space Marine' issue was raised and left unchallenged. I wonder whether or not this may reinforce the big bad GW image.

Cheers

Andrew

Iirc both sides are free to ask the same question from his deposition and if his answer differs from his deposition, call him out on the change.

One of the problems with GW's case is that so many things are included in the complaint that it would take a ridiculously long time to examine them all. That is why in the deposition cross-examination they concentrated on the shoulder pads in such depth -- the lawyer wanted to drill down and get a clear statement on one thing which presumably he would generalise to the rest of it. Also, they were attacking it from the copyright angle but a lot of the case is actually about trademarks.

TBH I don't recall if GW have complained about an infringement on Space Marine by CH. Remember this is a separate case to "Spots the Space Marine".

 AndrewC wrote:
I know that the Professors report will be presented in court as evidence, but do the disposition records ever make it there?

The reason I ask is to do with a supplemental question on the Profs knowledge of GW. A jury is to consider only evidence/facts presented/heard inside the courtroom, but the GW 'Space Marine' issue was raised and left unchallenged. I wonder whether or not this may reinforce the big bad GW image.

Cheers

Andrew

Depositions can be entered into evidencd in courtrooms...in whole or in part. They might not be entered in at all too.

The issue relating to the trademarks not being challenged in this case is actually because CHS doesn't want to invalidate GW's trademarks. They want the freedom to use them in a nominative fashion, just like any other aftermarket part or accessory supplier does in any number of industries. As a result, it is unlikely that we will see any of the claimed marks actually "invalidated" as those marks are what need to be used in order to identify the various bits and bobs sold by CHS.

Yes you're right, I wasn't very clear in my post. I am refering to the Spots carry-on.

I suppose I'm focusing on the "previous offences" question, where someone, who has a history of doing X, is tried for doing X again, but the jury isn't told about all the other Xs when deciding on guilt.

The Prof has raised the issue of GWs action over something that they didn't own. That subtle reminder of that fiasco may just tip a decision.

Cheers

Andrew

 AndrewC wrote:
Yes you're right, I wasn't very clear in my post. I am refering to the Spots carry-on.

I suppose I'm focusing on the "previous offences" question, where someone, who has a history of doing X, is tried for doing X again, but the jury isn't told about all the other Xs when deciding on guilt.

The Prof has raised the issue of GWs action over something that they didn't own. That subtle reminder of that fiasco may just tip a decision.

Cheers

Andrew

I think it is certainly an important point to make in regards to those trademarks. If GW was unable(for whatever reason) to defend a trademark that they ALLEGEDLY own, it is not a far stretch to apply that ruling here, and to bring up that case where GW tried to just throw their weight around regardless of any legal rights to the term would certainly shed light on exactly what happened here.

GW sent a C&D to someone, that person folds, but only because they can't afford to argue, not because they actually were breaking any laws. In the case of Spot the Space Marine, C&D's were sent, and legal action against GW was taken against GW for trying to claim they owned a term that existed in as early as 1930.

I think the jury has every right to know that GW sues anyone they can for anything they can. I think the jury should also know that when the defendants in those suits actually has the resources to fight back(in this case pro bono representation) that GW either backed down or lost.


I think the last few years paint a very negative image of GW to the public non playerbase(playerbase already had a bad image). They C&D's a lot of people into closing, they tried it with a damn Ebook and lost, they had the whole copyright after the fact fiasco, they lied about owning artwork rights, and they said that they own damn near every word that has ever been associated with their games.

To my knowledge GW still has not shown any legitimate ownership or registration of copyrights and trademarks on the majority of items, unless I missed something in the last 119 pages. How can you sue someone for something you claim to own, but you can't prove ownership of?

Just a note on the Spots issue, which can easily stray off topic (and there is a thread for it), if you look in that thread you'd find that GW did not send a C&D to the author, but rather a DMCA takedown to Amazon.com.

As I appreciate it, it came out that the DMCA did not cover trademarks, so Amazon did not get safe harbor from removing the content anyhow. Not surprisingly, Amazon put the content back up. GW did not actually threaten a lawsuit, and spurious as the trademark claim may have been, the resolution to the issue was quite unrelated to the strength of the alleged word mark, but rather to do with the nature of the DMCA.

weeble1000 wrote:
Just a note on the Spots issue, which can easily stray off topic (and there is a thread for it), if you look in that thread you'd find that GW did not send a C&D to the author, but rather a DMCA takedown to Amazon.com.

As I appreciate it, it came out that the DMCA did not cover trademarks, so Amazon did not get safe harbor from removing the content anyhow. Not surprisingly, Amazon put the content back up. GW did not actually threaten a lawsuit, and spurious as the trademark claim may have been, the resolution to the issue was quite unrelated to the strength of the alleged word mark, but rather to do with the nature of the DMCA.

Fair enough. So GW throws out DMCA complaints without knowing what the DMCA actually is?

If a company can't figure out that, then it brings their understanding of most copyright and trademark issues under question. Clearly GW doesn't understand fair use laws in regards to product compatibility, nor do they seem to grasp the fact that basic geometry can't be copyrighted.

So here is a question:

IF the jury of non expert civilians decides that the shoulder can/should be protected under copyright, does the Copyright Office have any obligation to grant copyright?

To me, the USCO(or w/e their acronym is) has already declined it, and since they are experts then that decision should stand.

I wonder why the Professor didn't mention Alien as it had a handheld flamethrower and came out about the same time. One could also probably dig up WW2 or WWI flame throwers and use them for reference.

299 is up, the parties want a minor scheduling change. It isn't signed by the judge yet:

STIPULATION MODIFYING SUMMARY JUDGMENT BRIEFING SCHEDULE
WHEREAS the current scheduling order entered December 12, 2012 provides that the parties shall have one week to oppose summary judgment motions (to and until March 11, 2013) and two weeks thereafter to serve reply briefs (to and until March 25); and
WHEREAS the parties do not wish to change the end date for completion of briefing summary judgment motions but do want to alter the allocation of time for filing initial opposition briefs;
IT IS HEREBY STIPULATED AND AGREED, subject to the approval of the Court,
that the deadline to submit briefs in opposition to the pending motions for summary judgment
shall be March 14, 2013, with the March 25, 2013 date for submission of final reply briefs, if
any, remaining unchanged.
SO ORDERED
this ___ day of March, 2013

So dates to mark on your calendar - March 14 and March 25 there should be another set of documents for us to peruse.


Automatically Appended Next Post:

 Aerethan wrote:

So here is a question:

IF the jury of non expert civilians decides that the shoulder can/should be protected under copyright, does the Copyright Office have any obligation to grant copyright?

To me, the USCO(or w/e their acronym is) has already declined it, and since they are experts then that decision should stand.

The Copyright Office doesn't grant copyright - it acts as a public record house for copyright ownership and works. An author gets copyright just by creating something copyrightable. A work is either covered by copyright or it isn't. It doesn't need registration like a patent.

Because the C.O. is staffed with experts (and to create an incentive to register stuff), registering with them gives you a bunch of bonuses - prima facie recognition that you own the copyright in something, and that it is a valid copyright, access to special statutory damages and legal costs awards.

What the C.O. has done in this case is reject GWs request to register - they don't think the shoulder pad is copyrightable so they aren't accepting it. They may (or may not) show up in this case to advance that argument / defend that position. However, their initial rejection isn't the final word.

Barfolomew wrote:
I wonder why the Professor didn't mention Alien as it had a handheld flamethrower and came out about the same time. One could also probably dig up WW2 or WWI flame throwers and use them for reference.

A lot of these things were mentioned in his report. The deposition only covers what the GW lawyer felt a need to ask questions about. 289.6, page 24 covers the Alien flamethrowers. 289.7 starting at page 70 shows his table which includes a lot of other references that were used. That table actually goes through 289.9 page 56 (so lots of pages of stuff).

The only real thing I can say in defense of GW is that, at least, there's no way anyone can say they failed to attempt to protect their IP.
LOL

Eric

Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.

But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?

300 is up, it's a minute entry from the latest status hearing.

This docket entry was made by the Clerk on Thursday, March 7, 2013:

MINUTE entry before Honorable Matthew F. Kennelly:Rule 16(b) status hearing held with attorneys for both sides by telephone.

Response to motion for reconsideration is to be filed by 3/13/2013 and reply by 3/18/2013 [287].

The deadline for summary judgment responses is extended to 3/14/2013.

The reply date remains 3/25/2013 and will not be changed.

Ruling on all motions is set for 4/1/2013 at 9:30 am.

The motion hearing date of 3/12/2013 is vacated. (or, )

March 13 GW will file it's response to CHS motion to reconsider (the shoulder pad issue), and March 18th we'll get CHS's reply to GWs response.

We will get rulings on all the motions on April Fool's day.

 MisterMoon wrote:
Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.

But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?

The question is not about intellectual property protection, but proper intellectual property protection. I don't think anyone in this thread would say that a gaming company does not deserve the right to protect its trademarks and artistic expressions. I am, for example, a very strong believer in copyright protection. But because I am such a strong believer in it, I find it galling when one attempts to overly broaden the scope of said protection in a way that undermines the fundamental purpose of the protection.

Copyright, for example, is intended to protect artistic expression, and therefore to cultivate it. Patents are intended to, as the US Constitution says, "promote the progress of science and the useful arts..." Trademarks are intended to promote fair competition in the market, and in fact US trademark law originates in President Harry Truman's anti-trust legislation.

These protections are useful and beneficial, but also dangerous and destructive if used improperly. Within US Copyright code you can find warning after warning after warning of the danger of overbroad protection. US 17 102(b): "Copyright protection for an original work of authorship does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

You don't get language much stronger than that: does not extend...to any...regardless. That limitation is there because overly broad copyright protection, just like overly broad patent protection or trademark protection, perverts the very purpose of the laws. If copyright protection covers an idea, it restricts the creation of new works of art. If patent protection is overly broad, it prevents others from building upon existing technology. If trademark protection is overly broad, it can create monopolies, rather than restrict their development.

Intellectual property is not intellectual because it only exists in your mind; it is intellectual because it is the product of your intellect.

It is not what you wish, or imagine, or desire, or what someone else has already done. It is what you actually create; what is unique to you and nothing, absolutely nothing, beyond that.

 MisterMoon wrote:
Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.
But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?

It is not GW against Chapterhouse, it is more GW legal and bean counters against every creative person working in the industry, including the GW design team. That's why I will answer with one of the founders of GW, as featured in a WD editorial:

Essential part:

It seems evidentthat nobody will gain from this strict enforcement of copyright laws, but the SF/F hobbyist will definitely lose.

Everyone responsible for GW growth knows this, everyone responsible for GW stagnation and shrinking customer base is not aware of this.

Barfolomew wrote:
I wonder why the Professor didn't mention Alien as it had a handheld flamethrower and came out about the same time. One could also probably dig up WW2 or WWI flame throwers and use them for reference.

I think in Aliens the weapon was called an incinerator. GW's contention is that they own the trademark "flamer" for description of handheld flamethrower weapons in games, not the fundamental concept of the weapon.

 MisterMoon wrote:
Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.

But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?

I generally agree with Posner's approach to copyright (shorter terms, stronger fair use provisions, only copyright when it is a net benefit to society etc..). I don't think there is some moral right to copyright (aside from privacy rights in unpublished works). It is a tool to encourage creativity and innovation, not a device to enrich rent seekers or criminalize vast swathes of the population. Likewise trademark should be primarily used for consumer protection instead of tool to stifle competition.

http://cyber.law.harvard.edu/IPCoop/89land1.html

http://webcache.googleusercontent.com/search?q=cache:dRoR--wu8GwJ:www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html+&cd=1&hl=en&ct=clnk&gl=ca&client=firefox-a

Posner is an appeals court judge who may hear any appeals arising from this lawsuit.

Stuart Banner has a decent and approachable history of the development of intellectual property (and other property) in the US that while not directly answering your question, still shows how far things have drifted (American Property: A History of How, Why, and What We Own (Harvard University Press, 2011). Worth checking out from the library.

czakk wrote:

 MisterMoon wrote:
Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.

But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?

I generally agree with Posner's approach to copyright (shorter terms, stronger fair use provisions, only copyright when it is a net benefit to society etc..):

http://cyber.law.harvard.edu/IPCoop/89land1.html

http://webcache.googleusercontent.com/search?q=cache:dRoR--wu8GwJ:www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html+&cd=1&hl=en&ct=clnk&gl=ca&client=firefox-a


Posner is an appeals court judge who may hear any appeals arising from this lawsuit.

I've been involved with IP cases before Posner, and I have worked for clients on both ends of some of his, well, tough rulings. But I have to agree with his philosophy. IP is dangerous when it goes too far.

I read something about IP once. I forget the author, but it seemed spot on.
Corporations don't decide not to sue for a violation of IP because they are nice people, they decide not to sue because their legal team says they don't have a case. It seems that GW has taken this practice to it's logical and unfortunate conclusion.

For what it's worth, Faeit212 posted a summary of this ongoing case:
http://natfka.blogspot.com/2013/03/a-summary-of-gw-vs-chapterhouse.html

Their summary seems to contradict what I've read in this thread and seems to imply GW already won.
Notably, from what I understand in this thread, the court rejected GW's claim that they can copyright the shoulderpad shape. Faeit212 seems to imply GW successfully won the right to copyright the shape.

It's a decent summary, but he obviously hasn't been following the case very closely - he missed the motion to reconsider and was unaware that CHS was being represented pro bono:

GonkyMarch 7, 2013 at 1:30 PM

I can tell you that it would be rare to take a case like this Pro Bono, as our annual pro bono hours would be run through in a matter of days in a complex litigation. How do you know this is pro bono?
-J.Mike

czakk wrote:
It's a decent summary, but he obviously hasn't been following the case very closely - he missed the motion to reconsider and was unaware that CHS was being represented pro bono:

GonkyMarch 7, 2013 at 1:30 PM

I can tell you that it would be rare to take a case like this Pro Bono, as our annual pro bono hours would be run through in a matter of days in a complex litigation. How do you know this is pro bono?
-J.Mike

Besides not knowing about the pro-bono representation, he is right that those types of representations are rare in IP related cases.

 Absolutionis wrote:
For what it's worth, Faeit212 posted a summary of this ongoing case:
http://natfka.blogspot.com/2013/03/a-summary-of-gw-vs-chapterhouse.html

Their summary seems to contradict what I've read in this thread and seems to imply GW already won.
Notably, from what I understand in this thread, the court rejected GW's claim that they can copyright the shoulderpad shape. Faeit212 seems to imply GW successfully won the right to copyright the shape.

GW prevailed in the summary judgment on that issue:

Upon independent examination, the Court finds that GW’s shoulder pads involve enough originality to afford them copyright protection. The unusually large proportional size of the shoulder pads as compared t o the Space Marine’s head ( depicted in GW’s product at entry 49) is a creative addition to the common shoulder pads sometimes worn by real -life soldiers in battle. The shoulder pads created to fit onto GW’s physical figurines, though more proportionally accurate, are nevertheless still larger and boxier than those typically found outside of the Warhammer 40,000 fantasy world. The Court thus concludes that GW is entitled to copyright protection as to the design of its shoulder pads.

This was a big win for GW. However, at the same time that the preliminary bits of the lawsuit were going on the copyright office rejected GWs application for some shoulder pads and GW didn't inform the court. This has given CHS a chance to get the judge reconsider his ruling.

GW also manage to get it's specific space wolf logo upheld as copyrighted - but that doesn't prevent bitz makers from making a different snarling wolf shape. And as J. Mike noted, the flesh tearer's icon was ruled not copyrightable.


Trademark claims:
He didn't mention CHS winning on the dilution front, which they did.

Fair use by CHS - he mentions CHS not winning on the fair use issue, what he means is that the court declined to rule on the fair use issue, this is going to trial. A bunch of the trademark issues are going to trial instead of CHS just getting them tossed in the summary judgment.



--------------------------------------------------

On top of all of that, we have Phase II of the trial, GWs add-on lawsuit, so we will see another summary judgment before the trial.

http://www.belloflostsouls.net/2012/11/breaking-legalwatch-summary-judgement.html

This BOLS article, written when the opinion was first posted, contains many of the substantive quotes. Not to be a huge jerk or anything, but the Faeit 212 article is incomplete, untimely (for news), uninformed, and consequently misleading.

 MisterMoon wrote:
Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.

But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?

Others have said it, but I will echo some things here. Current US IP laws (copyright in particular) do not encourage creativity...they encourage laziness. By providing defacto monopolies on creative works, artists have no motivation to do anything else. The term lasts till long after they are dead and buried. I will point to the specific example of "Happy Birthday to You" as to the issues with the copyright laws.

Shorter terms to protect works would encourage creativity. If the term expired afterm10 years or so...you would need to remain creative in order to make a living being creative. Companies would not be able to flog the dead horse and new authors would be able to create new works based on existing works while they are still more relevant (consider how much Cthulhu related material was not actually written by HP Lovecraft).

To some extent certain countries have been dealing with this already with the introduction of things like Design rights. These tend to be shorter in duration though limited to mass produced goods (in all liklihood this case would be trademark and design in the UK as opposed to copyright and the design terms would have been expired).


Automatically Appended Next Post:

 Kilkrazy wrote:

Barfolomew wrote:
I wonder why the Professor didn't mention Alien as it had a handheld flamethrower and came out about the same time. One could also probably dig up WW2 or WWI flame throwers and use them for reference.

I think in Aliens the weapon was called an incinerator. GW's contention is that they own the trademark "flamer" for description of handheld flamethrower weapons in games, not the fundamental concept of the weapon.

Correct on the terminology, though GW also appear to be making a copyright claim in regards to the design which would be comparable to the Aliens design (though heroicly scaled).

 MisterMoon wrote:
Most people here seem to be taking side with CHS, which is fine. I certainly will not be a GW apologist, they are well known to quickly bust out the Scumbag Steve hat when it comes to IP.

But here's my question for everyone. What IP/copyright/patent (whichever, and I understand these are different things) should GW, or any other gaming company enjoy to remain profitable, and encourage creative development so future game companies can be profitable?

While interesting, this is off-topic for this thread; please feel free to start a new thread if you want to discuss.

 Absolutionis wrote:
For what it's worth, Faeit212 posted a summary of this ongoing case:
http://natfka.blogspot.com/2013/03/a-summary-of-gw-vs-chapterhouse.html

Their summary seems to contradict what I've read in this thread and seems to imply GW already won.
Notably, from what I understand in this thread, the court rejected GW's claim that they can copyright the shoulder-pad shape. Faeit212 seems to imply GW successfully won the right to copyright the shape.

This isn't a bad run down, but I wish it was more objectionable.

To mean, this suggests, that GW can probably stop other companies from molding/selling their own SM shoulder pads so long as they look enough like the GW pads. Yes – the plain should pads with no markings.

It seems anytime the court favored with GW, that the court's opinion was flawed in some way- injecting his (biased) opinion. The shoulder pads are large compared to the mask etal, and their dimensions as such promote a copyrightable pattern, the court says. He then criticizes "yes even the plain pads," which is an observation different from what the court said made them copyrightable. In other words he's leading the opinion away from it's main point.

Second, the court held that shoulder pads + chapter markings + specific color schemes are also protect-able under copyright law. After having said the first thing, the court didn't really need to say the second (and one wonders if the court actually understands the hobby, as bits aren't sold pre-painted).

But they are advertised painted on CHS website... right?

 MisterMoon wrote:

Second, the court held that shoulder pads + chapter markings + specific color schemes are also protect-able under copyright law. After having said the first thing, the court didn't really need to say the second (and one wonders if the court actually understands the hobby, as bits aren't sold pre-painted).

But they are advertised painted on CHS website... right?

in this case, i believe it has everything to do with presentation. Pads+markings+paintjob (so, specifically, lets say ultramarines) are protectable. It's a very specific image that is symbolic of GW product. So, say, CHS making an omegamarine pad, painting it to the same colors as the UM, there would be an issue. I see that it's the confluence of those three things that cause the problem, not the individual factors. It hasn't to do with the items being unpainted, but as advertised when painted. CHS doesn't sell pre-painted bits.