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 paulson games wrote:


The simple existence of a website being in operation it's not proof of anything, heck I can write up a list about 3 times as long of sites that offer directly recast GW product which certainly isn't legal or tolerated by GW but they are chugging along just fine and none of them have been sued yet. (much less shut down)

GW picked CHS because they saw a company that they disliked and thought they could bully into compliance, they didn't expect a full blown legal battle and as a result of this case it has stalled a lot of their planned efforts to go after other companies. how many C&Ds have been reported being issued on GW's behalf since this trial began? Even with a long list of known illegal recasters why hasn't there been another lawsuit filed by GW in the last three years? There were certainly quite a few floating before the trail, but not afterwards. Could it be that GW realized just how costly these battle are? Even with their size even a few dozen of these cases would easily sink GW. Did they discover that their castle moat strategy against the industry and their "rock solid IP" was unprotectable rubbish they stole from other sources?

I was wondering about that myself. If there are so many recasters out there and GW knows about them, why doesn't GW go after them instead? Wouldn't recasters of actual GW product cause more of a decline in sales because they are selling GW product at a lower price?

Why go after bitz makers who make product that for the most part requires GW product to be used?

 mechanicalhorizon wrote:


I was wondering about that myself. If there are so many recasters out there and GW knows about them, why doesn't GW go after them instead? Wouldn't recasters of actual GW product cause more of a decline in sales because they are selling GW product at a lower price?

Why go after bitz makers who make product that for the most part requires GW product to be used?

Paulson exaggerates slightly, and leaves out the problem that most of these recasters are based in China or Russia. GW finds it very difficult to nail them legally as a result. Most of the recasts are resin as well, as opposed to plastic, which means that unless its Forgeworld, it doesn't tend to be substantially cheaper.

Third Party component companies on the other hand, are usually EU/US based, and run by hobbyists. This makes them legally attackable if they edge into GW's perceived comfort zone.

 Ketara wrote:

Paulson exaggerates slightly, and leaves out the problem that most of these recasters are based in China or Russia. GW finds it very difficult to nail them legally as a result. Most of the recasts are resin as well, as opposed to plastic, which means that unless its Forgeworld, it doesn't tend to be substantially cheaper.

There's plenty of recast product available from sources in the US and UK, "discountforgeworld" or "forgediscount" a s their banner reads is UK based. I don't know where you live that 30% isn't a large cost savings, especially with GW/FW pricing. There's a lot of sites if you know where to look, and I won't repost them here due to dakka's policy. I've been able to find plenty of stuff from US sources that range from 30-50% off what GW retails for, it may be resin but who cares? When you get into stuff from Russia and China you go even deeper to a 60-70% cut off retail. If I were Gw that's where I'd be aiming my gunsights at, rather than spend my time and resources fighting with small 3rd party stuff.

The point about 3rd party vendors is typically in order to use their stuff you first need GW items which in end helps sell more GW product. Where as recasters directly eat into your sales base and should be the top priority. It's also highly amusing that most of these recasters do a better job then GW themselves. Their items are much more professionally cast than any of the finecast products and are on par (or better) than most FW stuff as well.


When stuff like the Centurions are selling at $75 for 3 models do you think the average consumer is going to care about resin if they can get 3 models for $35? As long as the casting is decent plastic and resin all looks the same once it's painted. Nowdays the recasters are doing some quality work and it's not like it was 5 years ago.


.

I can only speak from personal experience I suppose, but I've only ever run across about five or six UK/EU based forgeworld recasters, as opposed to around fifteen Russian/Chinese based fellows. I've also seen GW nail just about all of the UK/EU ones. It takes them anywhere between three months and a year, and sometimes the people pop up again elsewhere, but GW does generally try and do something about recasters.

EDIT:- Upon further investigation, it appears that particular website you mention is based in Russia, Paulson.

 Palindrome wrote:

weeble1000 wrote:
Arguably GW hasn't sued anyone else because they couldn't afford to do so on account of the Chapterhouse case.

I would like to think that GW has learned its lesson. I can understand them fighting this appeal because the consequences for them failing are so potentially dire but I can also see GW being highly selective with its C&Ds from now on, possibly going so far as to only use them on people who actually deserve to receive them.

GW would be extremely foolish to create a repeat of the CHS fiasco, especially if it is in another legal jurisdiction such as the UK. Logic is not something that is commonly associated with GW's management of course.

That has a danger of becoming a circular argument. We cannot assume that GW will only be so clever as to fight cases they deserve to win, or to flip it, we cannot assume that GW is correct when it chooses to fight a case.

While we know now that GW's claims against CH were largely baseless, there was a large body of opinion to that effect before the case was heard.

If a similar case should come up in Britain, UK courts can take note of relevant decisions in US courts.

 Ketara wrote:

Paulson exaggerates slightly, and leaves out the problem that most of these recasters are based in China or Russia. GW finds it very difficult to nail them legally as a result.

A large number of the 3rd party companies are in Poland or other areas, where GW also apparently has difficulty enforcing their trademarks. Yet you plugged a number of them as examples of sites being "ok by GW" as long as they don't claim to be GW ties in. It's much more likely that they exists because they are in a location that's more difficult to enforce, opposed to having GW's unofficial blessing.


The FWdiscounter has their contact info is listed as being based in the UK (with a London area code phone number), not sure how to look up and verify where ISPs are actually located. I'm certainly not Dude Mc Clue: sleuth of the internets, I'm hardly tech savy and if I can find 2 dozen recaster sites just through google and word of mouth it means there are a lot more of them out there. (not to mention all the torret files for GW books)

 paulson games wrote:
Weeble in regards to fantasy: try a google search on TSR and their lawsuit history and you'll see that they established a similar trend to what GW is on right now. They had built up much of their product on the backs of pre-existing imagery and concepts, when they hit a certain mass they became the typical corporate giant that felt it was unassailable and could do what they wanted. They started believing all the various internal hype and self delusion and opted to start using copyright enforcement as their weapon against those who'd dare participate in using "their" game and products.

They sued a number of fan publications and even tried to claim a trademark on the word "dragon" in order to keep other fantasy authors from using it. Sounds a bit like a certain double headed imperial eagle claim to me...

Rather than concentrate on making a superior and engaging product they went on a crusade against their own fans, much like GW has been doing in recent years. The result is that the drove away enough players that their fan base crumbled and the company ended up in bankruptcy before being bought out by WOTC. There's a lot of very interesting comparisons between what TSR did and what GW is currently doing. They were once an industry defining company but now they've become a boated corporate dinosaur unaware of how they once achieved their success through being creative and innovative, as a result will be largely unable to maintain success as they've cut ties with all the things that originally generated their customer base.

An interesting note about TSR is that during their collapse years they were being headed by a board member with actual psychological problems and paranoia issues, I wonder what GW's excuse is?

Yea, I know that Jon. The comparisons are pretty startling. I think GW's excuse is being headed by a board member with actual psychological problems and paranois issues .

 paulson games wrote:

A large number of the 3rd party companies are in Poland or other areas, where GW also apparently has difficulty enforcing their trademarks. Yet you plugged a number of them as examples of sites being "ok by GW" as long as they don't claim to be GW ties in. It's much more likely that they exists because they are in a location that's more difficult to enforce, opposed to having GW's unofficial blessing.

There are a surprising number of third party companies in Poland, but far from the majority of them. So I'm afraid I'm going to have to disagree with you that being based in Poland is what protects them. Here's a list of UK/US ones, to illustrate just how many 3rd party companies operate without the dubious legal protection of being Polish:



Some pre-date CHS, some do not. But the only thing that separates the above companies from Chapterhouse, is that Chapterhouse very openly jumped on GW's perceived IP. The above ones have not, and whilst I know a few of them have received C&D's and removed products as a response, in none of those cases did GW try, or even want particularly to shut them down.

The FWdiscounter has their contact info is listed as being based in the UK (with a London area code phone number), not sure how to look up and verify where ISPs are actually located. I'm certainly not Dude Mc Clue: sleuth of the internets, I'm hardly tech savy and if I can find 2 dozen recaster sites just through google and word of mouth it means there are a lot more of them out there. (not to mention all the torret files for GW books)

I just did a spot of net sleuthing and browsed across three or four threads relating to them. From what I can gather, the actual models are produced and shipped from the Ukraine, and there's an ex-Forgeworld employee based in England who takes the orders and makes the arrangements. That would explain as to why they've managed to operate since 2011 though. Like you said, many of them do pop up and down, but they do tend to be based in inaccessible locations.

Also, Paulson? I got a little snarky a couple of posts back. Having a slightly bad day here, but I shouldn't take it out on you. Apologies.

 Kilkrazy wrote:
We cannot assume that GW will only be so clever as to fight cases they deserve to win, or to flip it, we cannot assume that GW is correct when it chooses to fight a case.

I never do, in fact I thought that most/all of the C&Ds that I have heard about over the years were effectively baseless, or at best weak. I just think that GW has seen the error in this pervious strategy of C&D carpet bombing and will now be much, much more selective.

A ruling in the US may have some weight in the UK but no where near the extent that a ruling in the UK courts would. If GW repeats its CHS experience in the UK then it will have been foolish in the extreme.

 Palindrome wrote:

A ruling in the US may have some weight in the UK but no where near the extent that a ruling in the UK courts would. If GW repeats its CHS experience in the UK then it will have been foolish in the extreme.

Until they do so though, it does limit third party companies to the US somewhat.

Does the UK legal system allow for pro bono work in the same manner as the US system (at least in this case), would there be legal firms who would take on such pro bono work and would a UK court be likely to reach a similar verdict?

If the answer to all 3 of these is yes then all it would take is one bold company to push the boundaries and GW may be forced in to taking an action that it would later regret.

 Palindrome wrote:
Does the UK legal system allow for pro bono work in the same manner as the US system (at least in this case), would there be legal firms who would take on such pro bono work and would a UK court be likely to reach a similar verdict?

If the answer to all 3 of these is yes then all it would take is one bold company to push the boundaries and GW may be forced in to taking an action that it would later regret.

GW will never directly attack a company in the UK or EU with anything more the C&D's there's all ready been a ruling that toy soldiers can only be protected by design rights, this is why in the chapter house case GW refers to there products as collectors items and works of art rather than toy soldiers.
In fact I would guess that GW will never again refer to there products in public as toy soldiers or even game pieces and the cynic in me feels this might be the real reason that GW no longer consider themselves as a games company.

I obviously can't say how that would go over in a UK court, but over here in 'proper' Europe any half-decent attorney will have a field day on them if they ever try that argument in court. Now I know (from experience, by now...) that some of our good friends (not to say utter idiots ) of the MBA-variety have a tendency to regard their legal departments as the wizards who can tell them just what magic spell to pronounce, only then to figure that "hey, we can think of those ourselves, thus saving us the costs of actually having a competent legal department!", which might explain how they got to the conclusion you suspect - but it doesn't stand the most cursory of giggle tests, IMHO.

In Germany, such a lawsuit would have never started before GW could prove they actually own the IP they claim (and before they state what they actually claim). Such "just punish them without asking me why" lawsuits are rejected by the court before they even start.

SeanDrake wrote:
In fact I would guess that GW will never again refer to there products in public as toy soldiers or even game pieces and the cynic in me feels this might be the real reason that GW no longer consider themselves as a games company.

If only they could change their name to Art Workshop for the duration of the lawsuit

 Ketara wrote:

 mechanicalhorizon wrote:


I was wondering about that myself. If there are so many recasters out there and GW knows about them, why doesn't GW go after them instead? Wouldn't recasters of actual GW product cause more of a decline in sales because they are selling GW product at a lower price?

Why go after bitz makers who make product that for the most part requires GW product to be used?

Paulson exaggerates slightly, and leaves out the problem that most of these recasters are based in China or Russia. GW finds it very difficult to nail them legally as a result. Most of the recasts are resin as well, as opposed to plastic, which means that unless its Forgeworld, it doesn't tend to be substantially cheaper.

Third Party component companies on the other hand, are usually EU/US based, and run by hobbyists. This makes them legally attackable if they edge into GW's perceived comfort zone.

ahhh.... the IP fraud, i like how companies keep pushing with this, if they keep this fraud going, eventually all databanks and stuff like this is going to en up in China and then who is going to enforce their IP shenanigans.

 Kroothawk wrote:
In Germany, such a lawsuit would have never started before GW could prove they actually own the IP they claim (and before they state what they actually claim). Such "just punish them without asking me why" lawsuits are rejected by the court before they even start.

SeanDrake wrote:
In fact I would guess that GW will never again refer to there products in public as toy soldiers or even game pieces and the cynic in me feels this might be the real reason that GW no longer consider themselves as a games company.

If only they could change their name to Art Workshop for the duration of the lawsuit

Sorry, but that's flat-out untrue. Actually, there's a more robust way to dismiss unfounded claims in the US than in continental European systems (and the Dutch and German systems are so similar in this regard I'm pretty comfortable speaking for both as long as we're not delving into the real nitpicky details) and an allegation being unfounded would be handled at the end of the trial, not the start; we don't have much of a motion (or other mechanism) to dismiss other than for lack of jurisdiction (i.e. "please bring your claim in the right venue").
Easier to defend? Might well be. For all the good something like the US's broad discovery system does, it is an exquisite tool for making a small defendant incur costs he cannot possibly bear. Not having that is, in such cases, a good thing (and before weeble brings his hammer down on me again, I'm just saying in this very specific situation ).

However, I'm guessing you get your impression of the differences between the American and (continental!) European legal systems mostly from the telly (sorry...); which, TBH, isn't the best of sources in these matters.

 Bolognesus wrote:
For all the good something like the US's broad discovery system does, it is an exquisite tool for making a small defendant incur costs he cannot possibly bear. Not having that is, in such cases, a good thing (and before weeble brings his hammer down on me again, I'm just saying in this very specific situation ).

My hammer is mostly reserved for criticisms of the American jury system . I think there's been a prevailing idea that places like Germany and Poland have stronger protections for the author of a work, but that's a door that swings both ways. Judge Kennelly's view of ownership was basically, "If Merrett says they own the work, that's good enough for me. Feel free to prove otherwise..." Then having taken that position he pretty much ignored the Gary Chalk issue after GW dropped the Mantis Warriors claim in order to "simplify" the case. Yea, simplify your way out of a sanction and a malicious litigation counterclaim.

The issue was raised in a motion to compel and for sanctions, I believe. It burns me up a bit that Chapterhouse Studios could, on a pro bono case working thousands of hours of discovery across two continents, actually uncover a circumstance in which the plaintiff A) did not have any documentation to prove ownership of a work B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request), and C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information, only to have the Court do nothing about it merely because the plaintiff conveniently decided to drop that claim as soon as the motion was filed.

If that had been the ONLY claim in the case, I think it is very probable that GW would have been sanctioned, the claim would have been dismissed, and GW would have been shelling out attorneys fees in a malicious litigation counterclaim.

It is rare to catch a plaintiff red handed. Chapterhouse caught Games Workshop red handed several times, and only managed to get one personal sanction for discovery abuse to the tune of twelve hundred dollars. If anyone wants to point fingers at the American judicial system, there's a place ripe for pointing.

Is that a core feature of the US system, or a reflection on the judge in this particular case?

I mean if judges were required to ignore things that the plaintiffs drop, then there was nothing he could do.

 Kilkrazy wrote:
Is that a core feature of the US system, or a reflection on the judge in this particular case?

I mean if judges were required to ignore things that the plaintiffs drop, then there was nothing he could do.

Judges can mostly do what you ask them to do. I believe the Gary Chalk issue was part of a motion to compel and for sanctions that was denied by Judge Kennelly, but I'd have to consult the record to make double sure that is correct. In any case, the fact that we KNOW about it means it was raised before the Judge in some context or another, and I don't think it was a motion for summary judgment, but it could have been in that context as opposed to a motion to compel and/or a motion for sanctions. There were aplenty of them that Judge Kennelly denied like he was playing whack-a-motion.

weeble1000 wrote:

 Bolognesus wrote:
For all the good something like the US's broad discovery system does, it is an exquisite tool for making a small defendant incur costs he cannot possibly bear. Not having that is, in such cases, a good thing (and before weeble brings his hammer down on me again, I'm just saying in this very specific situation ).

My hammer is mostly reserved for criticisms of the American jury system . I think there's been a prevailing idea that places like Germany and Poland have stronger protections for the author of a work, but that's a door that swings both ways. Judge Kennelly's view of ownership was basically, "If Merrett says they own the work, that's good enough for me. Feel free to prove otherwise..." Then having taken that position he pretty much ignored the Gary Chalk issue after GW dropped the Mantis Warriors claim in order to "simplify" the case. Yea, simplify your way out of a sanction and a malicious litigation counterclaim.

The issue was raised in a motion to compel and for sanctions, I believe. It burns me up a bit that Chapterhouse Studios could, on a pro bono case working thousands of hours of discovery across two continents, actually uncover a circumstance in which the plaintiff A) did not have any documentation to prove ownership of a work B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request), and C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information, only to have the Court do nothing about it merely because the plaintiff conveniently decided to drop that claim as soon as the motion was filed.

If that had been the ONLY claim in the case, I think it is very probable that GW would have been sanctioned, the claim would have been dismissed, and GW would have been shelling out attorneys fees in a malicious litigation counterclaim.

It is rare to catch a plaintiff red handed. Chapterhouse caught Games Workshop red handed several times, and only managed to get one personal sanction for discovery abuse to the tune of twelve hundred dollars. If anyone wants to point fingers at the American judicial system, there's a place ripe for pointing.

...Heh. That probably explains why I distinctly remember getting into a bit of a comparative civpro tiff with you a while ago, even if I haven't a clue about what exactly anymore
Might have been me arguing that trained lawyers have it hard enough with complicated IP issues, so getting untrained average joes to give it a shot has a worse chance than a magic eight-ball - but I digress.
You're right, though. The fact that big players get away with a lot of gak because smaller parties simply don't have the means to uncover the morally dubious behaviour sufficiently is bad enough, but it's an almost inevitable result of us having to eat as well - but seeing them get away with this when caught red-handed is infuriating. Really, I'd be okay with the client in such cases 'getting away with it' more or less - but there should be *severe* sanctions for any attorney unethical enough to participate in such gak - And they should actually be imposed whenever one is caught in something like this.

As to Kilkrazy's question - it looks like a matter of trimming the docket: "Ah, at least something those f*(*&ers are finally dropping". Judicial efficiency is probably what he'd call it. Core feature of the US system? Certainly not. If anything, "expediency" and the like are taking to a much more frightening extent over here (I have a corker of an article of the then president of our supreme court arguing that, yes, American lawyers find our system of evidence scarily callous about completeness, but we do well enough and at least we're very efficient and cheap about it all. That one could probably make every hair on your body stand straight up ).
Of course as soon as a claim is brought the judge in that matter can bring the hammer of inherent authority down as if it were Mjollnir itself - getting one to do so however, it seems to me (especially in the US, but what I see of American litigation of course tends to be where gak goes real bad, not so much the day to day stuff!) is another matter entirely. Mostly, our noble colleagues on the other side of the bench tend to contend themselves with a feeling that, hey, at least it didn't *actually* go wrong (this time...).

TL;DR: effective (though certainly not admitted) feature of an actual court system anywhere in the western world, in practice. Given the laxity in enforcing some rules of professional conduct on attorneys at times, frankly I'm surprised we're all still doing this well.

So, we can add perjury to GW's list of sins?

How, specifically? In the end, AFAIK (again, not trained in the US...) it's the guy actually committing perjury getting dinged for that.
A meritless claim isn't usually immediately perjurious, though. First of all there's plenty of other ethical rules to deal with that and secondly, a lot of their completely ungrounded claims were based either on ridiculous legal theories ("we can own the concept of a skull") or were actual mistakes, seemingly ("F*ck, are you telling me we never actually acquired the rights to that?"). Neither classifies as perjury.

If there's one thing I recall at least coming close it's Moskin's (trivially sanctioned) blunder - but that's not even a director, authorized rep or assign or whatever of the company - that was their attorney. Furthermore, it seems like the kind of thing any half-way decent sleazeball attorney pulls without informing his client.

the plaintiff

A) did not have any documentation to prove ownership of a work

B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request),

C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information,

GW was caught lying in court? Or was it their lawyer?

weeble1000 wrote:

 TheAuldGrump wrote:

 MagickalMemories wrote:
I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.

Eric

Hard to say either way - because it was never on the table. (Sort of like wondering if the ACW would have happened if the Confederates hadn't fired on Fort Sumter, we will never know, because they did....)

The Auld Grump

All I have to say about this is that if you've never been sued; if you've never faced a lawsuit threatening your livelihood that goes on year after year after year, you can at least try to imagine what that is like.

Even with pro-bono representation the stress is monumental. Hell, remember what Paulson said, and he was out of the case quickly in comparison to Chapterhouse. We know that Nick testified to earning a salary of 3K per month from Chapterhouse Studios, and that total revenue for more than four years of sales, revenue mind you, was barely more than $400,000.00.

If that was you, and someone offered you half a million dollars in cash, right now, to close your business...would you stand on principle? Would you turn that down knowing that even if you stuck through years more litigation and had to sit through a trial in which you would be openly called a thief, you might still lose your whole business anyway?

We have no idea what happened behind the scenes, but there are glimpses in the public record. For example, Judge Gilbert intimated that GW viewed the case as a zero sum game and Jonathan Moskin said that a license was a non-starter. We know the parties could not work out a settlement in multiple pre and post trial efforts. We know that the Court felt that the parties had great difficulty communicating. And we know that Jonathan E Moskin was sanctioned in this case for withholding discoverable documents and sanctioned in a previous case for being deliberately misleading in settlement negotiations. We also know that Moskin swore in an affidavit that he hung up in the middle of a meet and confer over a quip expressing doubt about the veracity of his assurances as to document production in a case in which his firm was sanctioned for requiring opposing counsel to file repeated motions to compel discovery.

Those are all straight up facts well documented in the public record that have been discussed many times in this thread.

My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving.
That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.

Eric

 MagickalMemories wrote:

weeble1000 wrote:

 TheAuldGrump wrote:

 MagickalMemories wrote:
I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.

Eric

Hard to say either way - because it was never on the table. (Sort of like wondering if the ACW would have happened if the Confederates hadn't fired on Fort Sumter, we will never know, because they did....)

The Auld Grump

All I have to say about this is that if you've never been sued; if you've never faced a lawsuit threatening your livelihood that goes on year after year after year, you can at least try to imagine what that is like.

Even with pro-bono representation the stress is monumental. Hell, remember what Paulson said, and he was out of the case quickly in comparison to Chapterhouse. We know that Nick testified to earning a salary of 3K per month from Chapterhouse Studios, and that total revenue for more than four years of sales, revenue mind you, was barely more than $400,000.00.

If that was you, and someone offered you half a million dollars in cash, right now, to close your business...would you stand on principle? Would you turn that down knowing that even if you stuck through years more litigation and had to sit through a trial in which you would be openly called a thief, you might still lose your whole business anyway?

We have no idea what happened behind the scenes, but there are glimpses in the public record. For example, Judge Gilbert intimated that GW viewed the case as a zero sum game and Jonathan Moskin said that a license was a non-starter. We know the parties could not work out a settlement in multiple pre and post trial efforts. We know that the Court felt that the parties had great difficulty communicating. And we know that Jonathan E Moskin was sanctioned in this case for withholding discoverable documents and sanctioned in a previous case for being deliberately misleading in settlement negotiations. We also know that Moskin swore in an affidavit that he hung up in the middle of a meet and confer over a quip expressing doubt about the veracity of his assurances as to document production in a case in which his firm was sanctioned for requiring opposing counsel to file repeated motions to compel discovery.

Those are all straight up facts well documented in the public record that have been discussed many times in this thread.

My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving.
That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.

Eric

A fair enough point to say "GW COULD have tried to buy them for less."

I maintain that if GW offered Nick 500k up front to shut down and move on, and without knowing him personally, he likely would have accepted such an offer. At that price it would have been 13 years of what he was taking home from CHS sales. I'd be hard pressed to find someone who is willing to pass up that money just on principle.

I agree with Kroot that our system doesn't work well when people can say "I own X" and the judge then tells the defendant to prove otherwise. One would think that the court would say "prove you own X and we'll proceed with this" before even requiring the defendant to respond.

 Shadow Captain Edithae wrote:

the plaintiff

A) did not have any documentation to prove ownership of a work

B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request),

C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information,

GW was caught lying in court? Or was it their lawyer?

A) not having documentation to prove ownership is at most failure to (sufficiently, would this be required under plausibility pleading?) state a claim upon which relief can be granted. Grounds for dismissal, but hardly perjury. Generally, I'd say it's simply "not meeting your burden of evidence". Again, not unethical per se. Incompetent, yup. But that's not perjury.

B) I don't think dragging your feet / insufficiently cooperating in discovery is perjury per se. Additionally, I seem to remember that it's the attorney certifying that a discovery request has been met in some way, not the client. (Again, little more than anecdotal formal training w.r.t. US civpro)

C) Again, I think that one's on the attorney for procedural reasons. Too busy to look it up though, I'm sure either Weeble, Sean or Czakk will correct me harshly if I misremember here (as an aside, a proper lv.20 sleazeball can find a way or two to make this just-not-quite-actually-subject-to-sanctions-perjury, I'm guessing. Not that I'm attributing any kind of competence to GW's attorneys atm, but just saying )

 Shadow Captain Edithae wrote:

the plaintiff

A) did not have any documentation to prove ownership of a work

B) seemingly withheld known contact information for one of the artists in question (the subject of a discovery request),

C) get a sworn affadavit from said artist stating that he did not transfer ownership of the work in question and that he had been in contact with Games Workshop's 30B6 witness on copyright infringement well prior to the date on which Games Workshop had stated it did not have his contact information,

GW was caught lying in court? Or was it their lawyer?

Opsies. That's the typical response. A lie requires intent. For example, malicious litigation is a state of mind issue. Did you believe, at the time you filed that claim, that it was without merit? Thus, it is a very high bar and difficult to prove. You will note that Judge Kennelly said in his sanction that Jonathan E Moskin "deliberately or at least recklessly" withheld discoverable documents. So the judge in essence felt that it was possibly, perhaps even more likely than not, deliberate on the part of Mr. Moskin, but that it could have conceivably been a mistake committed due to some sort of reckless indifference to one's responsibilities.

This is why I feel, similar to Bolognesus, that if you actually get caught red handed, the punishment should be both swift and severe. If you got caught red handed once, you have probably been doing it a lot. Mr. Moskin, for example, has been personally sanctioned before in a case replete with failures on the part of his firm to live up to discovery obligations, or so the Court felt when it issued a 10K sanction for requiring opposing counsel to file repeated motions to compel that were granted by the Court. However, if you look at the docket of the E&J Gallo Winery v Cantine Rallo case you will notice that it took a looooooong time for the Court to get around to imposing a sanction, and there were many motions to compel that were denied by the Court. If you read Moskin's affadavits in that case, you will also note a tone of obsequiousness and righteous indignation very similar to the tone he employed in the Chapterhouse case when dealing with the Court. Why it works I will never understand, but it apparently does. The judge in the Gallo v Rallo case at least eventually realized who the bad actors were.

But, most lawyers are honest, mistakes do happen innocently, and sanctions from a Court can be career-ending. So Judges, who were often once lawyers of one sort or another, tend to be reluctant to go very far. Thus you have a system that can be taken advantage of by unscrupulous individuals. Again, this is why I think that when a lawyer actually gets caught having done something deliberately, the penalties should be swift and severe.


Automatically Appended Next Post:

 MagickalMemories wrote:


My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving.
That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.

Eric

Sure, but what is most likely? We just don't know what happened, but you can make inferences as to what is more or less likely. Put yourself in that position. You can't really do that, but you can try and maybe get to something approximating the state of mind. Someone offers you half a million dollars to swallow your pride and fold up a business that is making you $36,000.00 per year. You have pro-bono counsel spending a LOT of their own money on your behalf; money they wouldn't have to keep spending if you took a payout. Again, we have no idea an offer from GW ever occurred, nor do we really know what Chapterhouse would have done. But you can infer what most people would probably have done.

weeble1000 wrote:
But, most lawyers are honest, mistakes do happen innocently, and sanctions from a Court can be career-ending. So Judges, who were often once lawyers of one sort or another, tend to be reluctant to go very far. Thus you have a system that can be taken advantage of by unscrupulous individuals. Again, this is why I think that when a lawyer actually gets caught having done something deliberately, the penalties should be swift and severe.

From what I've experienced so far, though, the average lawyer's gossip round has the entire community of British tabloid editors looking like a bunch of baby-faced amateurs in this regard. Everyone **knows** who the sleazeballs are. Every judge **knows** which attorney has a habit of not-quite-entirely making up anything he feels he can comfortably get away with if it helps him win a case (with less effort, while still billing at least as many hours. Which of course no one will ever quite prove). A lot can be said but there's not too many idiots in these circles (at least in that regard. Try to explain high-school level chemistry to them and watch them try to retell it to a judge -- and cry in despair. But I digress).
The point is, we all know what sleazeball just never quite got caught yet. I just have a feeling that especially judges can be too reluctant in referring matters based on such knowledge. Of course you shouldn't issue a verdict (or grant a motion) on such feelings - but this is a referral for further, proper, investigation. They forget that. That, and however much they can be hard and righteous in an unknown party's cause - once their own circles are involved (and let's face it, the professional community often stops just short of actual inbreeding in that regard ), they don't want to be the bad guy.
Can't quite prove that, of course.

This is why I feel, similar to Bolognesus, that if you actually get caught red handed, the punishment should be both swift and severe. If you got caught red handed once, you have probably been doing it a lot. Mr. Moskin, for example, has been personally sanctioned before in a case replete with failures on the part of his firm to live up to discovery obligations, or so the Court felt when it issued a 10K sanction for requiring opposing counsel to file repeated motions to compel that were granted by the Court. However, if you look at the docket of the E&J Gallo Winery v Cantine Rallo case you will notice that it took a looooooong time for the Court to get around to imposing a sanction, and there were many motions to compel that were denied by the Court. If you read Moskin's affadavits in that case, you will also note a tone of obsequiousness and righteous indignation very similar to the tone he employed in the Chapterhouse case when dealing with the Court. Why it works I will never understand, but it apparently does. The judge in the Gallo v Rallo case at least eventually realized who the bad actors were.

A part of being a highly unpleasant person and an attorney at the same time (contrary to popular belief, folks, this is optional ) seems to be the capacity to be unpleasant in just such a way as to accomplish what you need. Everyone will hate you, but not quite say no. This is compounded by a tendency (for judges especially!) to not want to let one's feelings for an attorney of particularly odious character prejudice his or her's client's case. It's a sort of even-handedness, almost. "Hey, I F***ing hate the lad, but I'm granting the motion so at least it balances out.
I've seen studies (can't find them right now, but you're a jury consultant, right? I'm sure you know more about this than I do - again, I'm glad not to have to deal with a panel of twelve idiots after graduation ever, ever again ) which (sort of, wasn't the strongest correlation ever) showed that a person trying to be fair actually 'gives' more to the obnoxious idiot than to a decent guy, simply because they were afraid of letting the obnoxious idiot's character prejudice their "fair" judgment.
Can't help but feel that this is the response such attorneys prey on.

Swift and severe is one thing - I'd add very, very public to that. In the (sadly not as unlikely as it should be) case the ethics board stops short of disbarring the attorney, I'd like his name to get properly tarred at least. Let people know who they're dealing with. I'm not usually in favour of public shaming but unethical attorneys somehow evoke a very, very vindictive response in me.

 MagickalMemories wrote:


My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving.
That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.

Eric

Sure, but what is most likely? We just don't know what happened, but you can make inferences as to what is more or less likely. Put yourself in that position. You can't really do that, but you can try and maybe get to something approximating the state of mind. Someone offers you half a million dollars to swallow your pride and fold up a business that is making you $36,000.00 per year. You have pro-bono counsel spending a LOT of their own money on your behalf; money they wouldn't have to keep spending if you took a payout. Again, we have no idea an offer from GW ever occurred, nor do we really know what Chapterhouse would have done. But you can infer what most people would probably have done.

He has kids, right? Pretty sure what he'd have done. I've seen the cost of going to college around those parts and I'm still reeling

 Aerethan wrote:

 MagickalMemories wrote:

weeble1000 wrote:

 TheAuldGrump wrote:

 MagickalMemories wrote:
I've heard the "GW should've saved money and bought CHS" line a LOT in the years of this thread.
There's a lot of presumption in that statement. It assumes that CHS *would have* sold to GW. Any contract would, surely, have included a clause that he not go right back into business with his new start=up capital (LOL), which I have a hard time believing would've gone over with CHS.

Eric

Hard to say either way - because it was never on the table. (Sort of like wondering if the ACW would have happened if the Confederates hadn't fired on Fort Sumter, we will never know, because they did....)

The Auld Grump

All I have to say about this is that if you've never been sued; if you've never faced a lawsuit threatening your livelihood that goes on year after year after year, you can at least try to imagine what that is like.

Even with pro-bono representation the stress is monumental. Hell, remember what Paulson said, and he was out of the case quickly in comparison to Chapterhouse. We know that Nick testified to earning a salary of 3K per month from Chapterhouse Studios, and that total revenue for more than four years of sales, revenue mind you, was barely more than $400,000.00.

If that was you, and someone offered you half a million dollars in cash, right now, to close your business...would you stand on principle? Would you turn that down knowing that even if you stuck through years more litigation and had to sit through a trial in which you would be openly called a thief, you might still lose your whole business anyway?

We have no idea what happened behind the scenes, but there are glimpses in the public record. For example, Judge Gilbert intimated that GW viewed the case as a zero sum game and Jonathan Moskin said that a license was a non-starter. We know the parties could not work out a settlement in multiple pre and post trial efforts. We know that the Court felt that the parties had great difficulty communicating. And we know that Jonathan E Moskin was sanctioned in this case for withholding discoverable documents and sanctioned in a previous case for being deliberately misleading in settlement negotiations. We also know that Moskin swore in an affidavit that he hung up in the middle of a meet and confer over a quip expressing doubt about the veracity of his assurances as to document production in a case in which his firm was sanctioned for requiring opposing counsel to file repeated motions to compel discovery.

Those are all straight up facts well documented in the public record that have been discussed many times in this thread.

My point is that people are using that as fact... "GW could've bought CHS out for a lot cheaper." That's not necessarily factually true, as it factors in the presumption that CHS would've caved. The same presumption GW had when they sued in the first place. CHS has a demonstrated history of not caving.
That's my point... don't say it like it's fact. Saying "They could have tried to buy them for a lot less" would be factually accurate with the information we have available to us, but simply saying they could have done it is anything but factual, considering the info at hand.

Eric

A fair enough point to say "GW COULD have tried to buy them for less."

I maintain that if GW offered Nick 500k up front to shut down and move on, and without knowing him personally, he likely would have accepted such an offer. At that price it would have been 13 years of what he was taking home from CHS sales. I'd be hard pressed to find someone who is willing to pass up that money just on principle.

I agree with Kroot that our system doesn't work well when people can say "I own X" and the judge then tells the defendant to prove otherwise. One would think that the court would say "prove you own X and we'll proceed with this" before even requiring the defendant to respond.

The COULD I will grant you - but instead they went in with guns blazing, only to discover that they had loaded up with the wrong ammunition, and that Chapterhouse was in an improved position.

That is why I make the comparison with Fort Sumter - the South fully expected to win (we have the better generals!) and fully expected the war to be over quickly - that the Union would back down rather than face a prolonged war.

Instead the war was long, and the CSA lost. (Good generals could not make up for the difference in industrial capacity - and the generals were not as much better than the Union generals as they thought.)

GW thought that they had the better lawyers, and that Chapterhouse would close shop rather than face a prolonged legal battle.

And, like the CSA, they were wrong, and like the CSA, GW lost, after a long and expensive campaign.

Personally... If GW had made a similar offer to me to, oh, stop painting GW miniatures for commission, say, then I would take the money and never paint another GW miniature for as long as I lived.

It would be money in hand versus the possibility of money in the future vs. a long legal battle while GW tried to pull the brush out of my nervously twitching fingers.

And unless I had pro bono representation as Chapterhouse did then I would give up the brush, and take up scrapbooking or something.

Chapterhouse was damned lucky to get pro bono representation - without that representation it is almost certain that they would have folded, regardless of how meritless the case against them was. (In my opinion the case was pretty damned meritless - even before it was revealed that GW hadn't even bothered to register much of the IP to begin with....)

At some point GW should have pulled back and made an offer - but they were beset by the sin of hubris, from which the angels fall.

The Auld Grump

weeble1000 wrote:

Sure, but what is most likely? We just don't know what happened, but you can make inferences as to what is more or less likely. Put yourself in that position. You can't really do that, but you can try and maybe get to something approximating the state of mind. Someone offers you half a million dollars to swallow your pride and fold up a business that is making you $36,000.00 per year. You have pro-bono counsel spending a LOT of their own money on your behalf; money they wouldn't have to keep spending if you took a payout. Again, we have no idea an offer from GW ever occurred, nor do we really know what Chapterhouse would have done. But you can infer what most people would probably have done.

Putting myself in his position... I'd tell them to stuff it.
If I started a business like that, doing something I had a passion for, and presuming I still had that passion -which I think is a fair presumption, since he chose to fight, rather than slip silently into the night- then I don't want to be bought or bullied into submission. My passion and self respect are worth more than that to me.
In all honesty, I would not like looking myself in the mirror.

Now, if there was no clause prohibiting me from turning around and opening another similar business (like GW would've left that door open), then it's a different story.

Eric