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weeble1000 wrote:
Merrett is saying, with a straight face, that Chapterhouse infringes because it copied an idea.

One of the basic tenets of copyright law is that you specifically cannot copyright ideas. How did this even make it to court?

 Breotan wrote:

weeble1000 wrote:
Merrett is saying, with a straight face, that Chapterhouse infringes because it copied an idea.

One of the basic tenets of copyright law is that you specifically cannot copyright ideas. How did this even make it to court?

Because in the US companies rule the roost and the little guy might as well just roll over when they come calling. Lucky for the little guy in this scenario another big guy came along and helped out.

Games workshop JMOL

[edit] Weird double post [/edit]

GWs Costs Reply

 Ketara wrote:

Goodwin Cross-Examination

Spoiler:

Q. Fine. And so, the Imperium, the civilization, that's the
setting in which this game is to take place; is that right?

A. Yep.

Q. And that game is an amalgamation of so many ideas that were
floating around, taken from sources like 2000 AD, right? Isn't
that true?

A. That just doesn't finish off the sentence, does it?

Q. Well, let's look at the rest of the sentence. Taken from
2000 AD and Michael Moorcock novels and real history all put
into a big pot and regurgitated by us. Do you see that?

A. Yes.

Q. Isn't that what Games Workshop did?

A. That's a very, very simplistic reading of it, yes.

Q. And that's in The Art of Warhammer book, right?

A. Yes.

MR. ALY: No further questions.

This is fantastic, but I'm still amazed that Judge Kennelly didn't dismiss the case from the onset, and especially after all of GW's stalling and patent office shenanigans

GWs opening.

Although Chapterhouse effectively conceded in the parties’ joint status report (Dkt 407) that it was not the prevailing party (and hence simply argued that the Court should exercise discretion to limit any award to Games Workshop), it has now created a fiction what this case was about; what were Games Workshop’s motives, and what was its outcome. It has also created a false standard of subjective satisfaction with achievement of goals as the supposed basis for awarding costs (in lieu of the actual standard whether substantial relief was obtained) and so proceeds to speculate as to Games Workshop’s motives in this action. In fact, Games Workshop is very tolerant of what its fans do with its intellectual property;

In fact, Games Workshop is very tolerant of what its fans do with its intellectual property.

They said, with a completely straight face.

 H.B.M.C. wrote:

In fact, Games Workshop is very tolerant of what its fans do with its intellectual property.

They said, with a completely straight face.

Yeah, let's recall the part where they're offended by the idea of getting a two headed eagle tattoo??


Been ROFLing over Goodwin's testimony.

Wow, I can't express how excited I get whenever I see this thread has been updated.

Is there anything the lawyery types need to break down here or was this update nice an simple?
It looked like CH are putting out a lot of good points in a somewhat aggressive manner while GW are just pushing the goal posts further and further back while acting as if they have (and had all along) the case in the bag.

Have I misinterpreted anything there or is that more or less what's happening?

 Breotan wrote:

weeble1000 wrote:
Merrett is saying, with a straight face, that Chapterhouse infringes because it copied an idea.

One of the basic tenets of copyright law is that you specifically cannot copyright ideas. How did this even make it to court?

Yea. Good question. If the case goes up on appeal, perhaps we'll see the appellate court asking Judge Kennelly the exact same thing.

I have to wonder- if it wasn't blatant bribery, or other corruption shenanigans, whether Kennelly didn't see that CH had Pro Bono major legal rep, and let it through to possibly get a ruling in the books that would help prevent this sort of Big Corp Bullying in the future- is that something Judges do?

The judge was pretty annoyed at the pre-trial conference at GW's team, IMO it gave the impression that he thought the case was probably a waste of time and and tax payer money. But if GW keeps demanding more and more rope to hang themself with he is under no obligation to throw out the case. Sometimes the best examples are set by a big company or other hot shot making a complete ass of themself in court and getting their teeth kicked in because they can't back up their arguements.

Sometimes a company needs to make a million dollar mistake before it wisens up and comes back down to reality. The defendent still loses in a way (due to fees) but i guess that's written off as just being fall out from the process. Maybe next time GW moves to sue somebody they'll apply a little bit more tact and sue over stuff they actually own, maybe they'll actually try and spend a bit of time discussing their grievence before they hit the giant red nuke button as it's proved very expensive and not particularly effective at resolving conflicts.


As far as keeping the jury from hearing that CH has pro bono representation it's because that fact could be used to create a bias in the jury and they are supposed to be weighing the case based on the arguments. Most people feel that pro bono work means the client gets everything scott-free and that only an innocent client would benefit awarded a pro bono defense. That is a false understanding of what pro bono services are and can create a bias due to the jury misunderstanding how those services are enacted. Even with pro bono services CH is still in debt for well over $100K for basic court costs yet most peopel that hear the words pro-bono associate it with "no costs at all".

Having been in the chambers during the opening discussion I could tell that Judge Kennelly was keenly aware of what GW was trying to do in this case and the amount of BS they were shovelling, he was very irritated with them but as flimsy and over reaching as it may have been GW did meet the minimum legal criteria for filing the suit. The judge's role is not to look at things in advance and say hey these are all going to be shot to pieces get them out of my sight, he is there to make sure the law is being applied correctly. If either side decides they want to go full derp (as GW did) and blow their side of the case after filing it's all on them.

Kenelly is a very sharp man and he knows his stuff, I was very impressed with his general knowledge of sci fi in general and his knowledge of cases of past sci-fi disputes. He was very straight and to the point and even gave GW plenty of warning about where the case might lead. (well before any of the pre-trials began) He certainly was not happy that the case couldn't be settled outside of trial and made no effort to conceal his dislike of GW's counsil. That said he also didn't let any of his personal opinion cloud what his job duty entails and followed everything as laid out by the law.

A misconception is that a judge has to be impartial, which is totally incorrect they are there to make sure the law is followed and that the jury is impartial. The judge can make his opninions very well known so long as it does not override his legal obligations. Which is why you hear about certain courts or judges being favorable or hard ass towards certain situations. However the jury is under a much tighter constraint or remaining impartial. That's why the mentioning of pro bono counsil was barred.

It's also why the jury typically isn't allowed to hear that expert witnesses are paid for their testimony as it can create a jury bias for or against an expert witness. Paying a expert witness for their time and travel to court etc is common place but it might cause jury members to falsely believe that the experts were being bribed for favorable testimony rather than being compensated for appearing.

John, Kennelly isn't that high-minded. You make a good point about him thinking the case is a waste of time and taxpayer money. Kennelly is a former prosecutor. It makes sense that he would take an extreme dislike to this case. He derided both parties, railed at them, and all but cursed the case repeatedly in what transcripts we have of the various status hearings and appearances.

Now, as Chapterhouse made clear in its opposition to GW's motion for costs, Chapterhouse Studios is the defendant. Games Workshop chose to bring this suit. Games Workshop chose to make hundreds of constantly changing claims. Games Workshop chose to drop claims during the trial.

Add to this that Judge Kennelly decided to allow Games Workshop to make copyright infringement claims that its own 30(b)(6) witness clearly disclaimed in deposition. "This thing is a copy of our idea, that's the best I can come up with." That should be a dismissed copyright infringement claim, period. At trial, Alan Merrett described that same claim as, "This is not one of our stronger claims" and proceeded to utterly fail to demonstrate what portion of the asserted work of art had been infringed by the accused product. Chapterhouse Studios won that claim in front of the jury. But that claim should not have been in a courtroom in the first place. It was subject to a motion for summary judgment, which Judge Kennelly denied.

Judge Kennelly made a sweeping ruling that the vast majority of Games Workshop's trademarks were valid and in use in commerce based on the fact that Chapterhouse was articulating a fair use defense and a 'trust me' statement by Andy Jones. This included the drawing of a white skull on a black background appearing amongst dozens of different icons on page 88 of a book.

Neither of these specific examples is giving someone rope with which to hang. What it is is not bothering to dissect the differences between more than 200 separate claims of copyright and trademark infringement. It is not spending the time and effort to go through a mountain of facts to sift the wheat from the chaff and throwing a jury to the wolves in a trial that lasted longer than Apple v Samsung, Abbott v Centocor, Pfizer v TEVA, and the capital murder trial in my home town last month.

The long and the short of it is that Judge Kennelly just wanted the parties to settle out and go home, and consequently he did not pay enough attention to the case. He repeatedly chastized the parties for failing to meet and confer. He declared that he would hear no more motions to compel, only later to sanction plaintiff's lead counsel for deliberately or at least recklessly withholding discoverable documents, which sort of suggests that maybe the prior motions to compel had some merit. He ordered the parties to have a settlement conference post trial for God's sake. Kennelly clearly wants the case to just settle out and go away, but as Judge Gilbert said, if GW's motive is "go away, die, and pay us whatever you can of our attorneys fees...that is not a basis for settlement."

Goodwin Cross-Examination

Q. Fine. And so, the Imperium, the civilization, that's the
setting in which this game is to take place; is that right?

A. Yep.

Q. And that game is an amalgamation of so many ideas that were
floating around, taken from sources like 2000 AD, right? Isn't
that true?

A. That just doesn't finish off the sentence, does it?

Q. Well, let's look at the rest of the sentence. Taken from
2000 AD and Michael Moorcock novels and real history all put
into a big pot and regurgitated by us. Do you see that?

A. Yes.

Q. Isn't that what Games Workshop did?

A. That's a very, very simplistic reading of it, yes.

Q. And that's in The Art of Warhammer book, right?

A. Yes.

MR. ALY: No further questions.

Wow.

 Alpharius wrote:

Goodwin Cross-Examination

Spoiler:

Q. Fine. And so, the Imperium, the civilization, that's the
setting in which this game is to take place; is that right?

A. Yep.

Q. And that game is an amalgamation of so many ideas that were
floating around, taken from sources like 2000 AD, right? Isn't
that true?

A. That just doesn't finish off the sentence, does it?

Q. Well, let's look at the rest of the sentence. Taken from
2000 AD and Michael Moorcock novels and real history all put
into a big pot and regurgitated by us. Do you see that?

A. Yes.

Q. Isn't that what Games Workshop did?

A. That's a very, very simplistic reading of it, yes.

Q. And that's in The Art of Warhammer book, right?

A. Yes.

MR. ALY: No further questions.

Wow.

Yea, that was a zinger. And I think Goodwin was, like, one of the last witnesses too. I think he was only put on as a rebuttal witness, which would have been at the end of the trial, though what order he was in I do not know. That is also paired, in Chapterhouse's briefs, with Jeff Naggy's testimony about large shoulder pads in 2000 AD, and then Alan Merrett also testified to GW having had a license to Judge Dredd at some point, and GW's artists therefore having access, within what would ostensibly be GW's "own" material, to 2000 AD. So there's a neat little nexus there, though one has to know the connection between 2000 AD and Judge Dredd.

If this case goes up on appeal, the appellate court is going to have a field day.

 Alpharius wrote:

Wow.

I guess they forgot they wrote that. I love how many times in court GW insisted they own the rights to everything and the moon. Clearly there never was a single reference to outside material by the deisgn team, yeah right.

I also love the discussion about Tau and it not having any outside reference in their design. None of their designers have any knowledge of anime or even robots in general? I'm pretty sure Blanche specifically mentions several such sources in the old WD interview he did around the time of their release. But that's a decade old so it can be swept under the rug as declared 100% original as well.

Also weren't some of the early free lance illustrators also directly involved with the 2000 AD comics and Dredd? Kinda hard to say nope never heard of them when your artists are regular illustrators of the comic and you're pimping out big shoudler pad wearing Dredd miniatures under lisc.


Edit: Grah ninja-ed by weeble

 paulson games wrote:

 Alpharius wrote:

Wow.

I guess they forgot they wrote that. I love how many times in court GW insisted they own the rights to everything and the moon. Clearly there never was a single reference to outside material by the deisgn team, yeah right.

I also love the discussion about Tau and it not having any outside reference in their design. None of their designers have any knowledge of anime or even robots in general? I'm pretty sure Blanche specifically mentions several such sources in the old WD interview he did around the time of their release. But that's a decade old so it can be swept under the rug as declared 100% original as well.

Also weren't some of the early free lance illustrators also directly involved with the 2000 AD comics and Dredd? Kinda hard to say nope never heard of them when your artists are regular illustrators of the comic and you're pimping out big shoudler pad wearing miniatures under lisc.


Edit: Grah ninja-ed by weeble

It's an insane mess. Merrett also testified on direct that the Tau were "redolent of classic science fiction." So, your designers got no inspiration from anything...and accidentally wound up with something that is "redolent of classic science fiction?" Tell me, Mr. M-E-Double R-E-Double T, what is it that makes something -classic- ? Oh, that's right, it existed before you! Yea, that's what classic means. In trying to pretend the Tau were not directly inspired by the anime references Chapterhouse's expert dug up, Merrett dug himself a bigger hole. That's just bad litigating on GW's part. Good prep Mr. Moskin!

GW should have listened pre-trial, mid trial, and after trial:


Don't post pics with words that our filters wouldn't allow you to post, please. --Janthkin




Sometimes people just have to push that button no matter how many signs are saying don't do it.

weeble1000 wrote:
John, Kennelly isn't that high-minded. You make a good point about him thinking the case is a waste of time and taxpayer money.

snip

This message was edited 17 times. Last update was at 2013/11/07 21:14:59

Edited 17 times!? Someone has been working very hard....

timd wrote:

weeble1000 wrote:
John, Kennelly isn't that high-minded. You make a good point about him thinking the case is a waste of time and taxpayer money.

snip

This message was edited 17 times. Last update was at 2013/11/07 21:14:59

Edited 17 times!? Someone has been working very hard....

It's late. I try to make my posts cogent and grammatically correct. I also have a habit of reviewing after submitting rather than proofing in the initial window. I proof, edit a bit, post, proof, edit another bit, save changes, read it over, maybe add a bit, etc. etc. Being late, the ol' fingers aren't typing as effectively and the noggin is not firing on all pistons.

Anyhoo,

I threw up in my mouth a bit when I read this:

As the Court in Plair stated, even for indigent clients, an award of costs should be considered as “the threat of costs requires indigent plaintiffs to exercise discretion and judgment in their litigious activity and accept the consequences of their costly lawsuits.” Id. Chapterhouse’s seemingly bottomless pit of free legal services removes the normal incentives that would counsel for discretion in litigation tactics and perhaps even reasonable settlement of disputes. Without Chapterhouse being taxed costs, Chapterhouse has no reason not to continue its behavior in the future.

While Chapterhouse certainly is not "indigent," this argument by GW is despicable.

'We sued a defenseless company and tried to bury it in legal fees, but because our case was such a pile of abusive BS, three of the finest, most well-respected firms in the country have taken on the case pro-bono. We've put this Nick guy through three years of Hell, beginning with when we blitz filed the lawsuit on Christmas Eve to scare the crap out of him, but it was his choice to be involved in this suit. I mean, he could have just done what we said and gone out of business. We were also characterized by the Magistrate judge as having the desire to completely obliterate Chapterhouse Studios to the point of making discussions of a settlement moot, but the real reason we are here is because this little turd has been deliberately orchestrating the acquisition of pro-bono counsel in a mad genius scheme to blatantly infringe our IP with impunity forever. He needs to be taught a lesson about getting sued by an 800 lbs. gorilla and having the incredible luck to find pro-bono representation in spite of the fact that he makes enough money to pay a lawyer for a week and a half. '

What the Hell GW. This is over the line, even for GW. This is way over the line. If anyone should be thinking about the costly consequences of their litigious activity it is GW.

This is like saying Alan Merrett killed his own mother to delay the trial date. It's that bad.

So, GW is taking a legal opinion that applied specifically to litigious indigent plaintiffs and is trying to apply it to a defendant?

Please tell me that the whoever is reading this is intelligent enough to see the logical disconnect....

It's also grossly misleading, as if defending this legal action hasn't cost Chapterhouse anything, where as it has been costly. The seek to perpetuate the myth that pro-bono means totally free and therefore CHS can keep going forever.

So GW are still going on as if everything CHS is doing is wrong and should be shut down, despite the court and jury not agreeing?

Of course they've got no reason to stop this behaviour in the future, they should continue their trend of not infringing on stuff for as long as they can.

If the court awarded costs against Games Workshop, would the pro bono firms acting for Chapter House give up the money to charities?

Herzlos wrote:
So GW are still going on as if everything CHS is doing is wrong and should be shut down, despite the court and jury not agreeing?

Of course they've got no reason to stop this behaviour in the future, they should continue their trend of not infringing on stuff for as long as they can.

What's more than that, GW is arguing that it is the prevailing party because it wasn't GW's goal to put Chapterhouse out of business, regardless of all of the indications to the contrary. GW also makes an argument that 'trial goals' is not a meaningful metric by which to determine the prevailing party, so bear that in mind.

GW seems to think that saying that it is not trying to be punitive is what counts, not the behavior it actually engages in. GW says it decided to not seek statutory damages because it was trying to be super-duper nice, but A) GW arguably waived stach TM damages via pre-trial error, B) Chapterhouse infringed no registered marks (and therefore would not have been exposed to stach damages), and C) seeking statutory damages would have opened a can of worms with respect to GW's bubkis trademark claims. Similarly, GW did not seek stach copyright damages because it asserted no registered copyrights!

GW's case is full of spin, selective recall, and gross mischaracterization of the facts. Do you all remember when something like 4 of the 5 elements GW claimed Chapterhouse's Tervigon Conversion Kit copied only existed in the Carnifex model kit pieces? Do you remember when GW claimed it did not have contact information for Gary Chalk while Gill Stevenson and Alan Merrett were repeatedly communicating with him? The problem is that GW buried tons of that BS in a mountain of constantly changing, unspecified claims.

GW asserted a giant case against Chapterhouse, forced Chapterhouse to go through ridiculous amounts of discovery wherein GW's counsel deliberately or at least recklessly withheld relevant documents, dropped claims left and right that the Court dismissed on the principle that you can't drag a party through two years of costly discovery and then abandon a claim without consequences, and now says that Chapterhouse Studios needs to face the threat of paying costs to prevent Chapterhouse's unreasonably litigious behavior?!?

That's why I vomited in my mouth. Defendants don't decide to keep litigating a case. Defendants defend themselves from a lawsuit in the control of the plaintiff. And in this case the plaintiff literally assertd claims it believed sounded crazy. Piles of skulls anyone?

I don't want to piss on you guys' barbeque or anything but you've all predicted that GW was about to get thrown out/humiliated/don't have a leg to stand on. Hitherto, you've been wrong, though obviously it's all open at the moment due to the appeals.

It's now actually quite amusing. Reminds me of when I used to frequent far-left forums and anything or everything that happened in the world was a pointer to the impending collapse of the capitalist system. I'll certainly be keeping an eye on proceedings.

 Kilkrazy wrote:
If the court awarded costs against Games Workshop, would the pro bono firms acting for Chapter House give up the money to charities?

American use of the word costs, so it only covers disbursements like toner aand photocopies. Not legal fees.
Highly unlikely they will donate anything to charity.

xruslanx wrote:
I don't want to piss on you guys' barbeque or anything but you've all predicted that GW was about to get thrown out/humiliated/don't have a leg to stand on. Hitherto, you've been wrong, though obviously it's all open at the moment due to the appeals.

It's now actually quite amusing. Reminds me of when I used to frequent far-left forums and anything or everything that happened in the world was a pointer to the impending collapse of the capitalist system. I'll certainly be keeping an eye on proceedings.

I find it entirely amusing that in every single one of your posts that I read, you manage to be completely and utterly wrong on each and every thing that you say... Amazing!

xruslanx wrote:
I don't want to piss on you guys' barbeque or anything but you've all predicted that GW was about to get thrown out/humiliated/don't have a leg to stand on. Hitherto, you've been wrong, though obviously it's all open at the moment due to the appeals.

It's now actually quite amusing. Reminds me of when I used to frequent far-left forums and anything or everything that happened in the world was a pointer to the impending collapse of the capitalist system. I'll certainly be keeping an eye on proceedings.

I'm sorry, can you please elaborate? How is losing more than 70% of your case, not including the dismissal of all Federal and State dilution claims by the way, considered to be a good thing?

Games Workshop prevailed on none of its registered marks; not Warhammer, not Warhammer 40,000, not Eldar, not Space Marine, not Tau, not Tyranid, not Games Workshop. Games Workshop demonstrated to the world that a jury says it is perfectly okay to have a business described as "Specializing in Custom Bits and Sculpts for Warhammer 40,000 and Fantasy." Games Workshop spent 7 figures to show that you can in fact have a home page with Eldar, Tyranid, Tau, Space Marine, Dark Eldar, and whatever other GW mark you like right down the left hand side in a series of product tabs. Games Workshop has yet to even secure an injunction. Games Workshop's lead counsel was personally sanctioned. Games Workshop dismissed its senior inhouse counsel. Games Workshop had more claims dismissed with prejudice by the Court than it prevailed on with the jury.

Please, explain to me how that is considered to be anything other than Games Workshop being humiliated. Games Workshop sunk more than a million dollars into a lawsuit against a company that had a combined total gross revenue over its entire existence of approximately $400,000.00 and that company remains in business today. Games Workshop is right now facing millions of dollars in potential exposure and a very real possibility of being dragged through an appeal kicking and screaming. Games Workshop's revenue has been flat since it filed this lawsuit in spite of massive cost cutting, price rises far in excess of inflation, and the release of Warhammer Fantasy 8th ed, Warhammer 40,000 6th ed, and The Hobbit. Barely a month out of trial Chapterhouse Studios raised more in a Kickstarter project for a limited line of products than the damages awarded by the jury.

The third party accessory market has grown since Games Workshop filed this lawsuit. The lawsuit has had the opposite effect Games Workshop desired. More companies are making shoulder pad accessories for Games Workshop Space Marine miniatures, not fewer. Tell me again how that is not embarrassing?

xruslanx wrote:
I don't want to piss on you guys' barbeque or anything but you've all predicted that GW was about to get thrown out/humiliated/don't have a leg to stand on. Hitherto, you've been wrong, though obviously it's all open at the moment due to the appeals.

Well, no - GW was absolutely humiliated. When you assert 100 facts and 71 of them are proven to be untrue, you've been humiliated.
When you spend 7 figures and are "awarded" $25,000 you have been humiliated.

It's now actually quite amusing. Reminds me of when I used to frequent far-left forums and anything or everything that happened in the world was a pointer to the impending collapse of the capitalist system. I'll certainly be keeping an eye on proceedings.

It's quite amusing that you can't see the forest because of all these damn trees getting in the way.