Games Workshop v Chapterhouse Studios - Post Trial Events

[weeble1000]

The parties filed Rule 50 and 59 motions.

You can find them here (http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.docket.html).

They are documents 408 (GW) and 410 (CHS).

Exhibit K on 410 is a collection of trial transcript excerpts.

Games Workshop's Argument (http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.408.0.pdf)

Chapterhouse's Argument (http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.410.0.pdf)

Trial Transcript Excerpts (http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.410.14.pdf)

[Mr Mystery]

Hold on...I asked about the appeals process in the previous thread, and was given the impression (which to be fair, could stem from me being a bit thick at times) that whilst both parties have the right to appeal, the affect would be negligible?

[Psychosplodge]

oh goody more :D

[DrLove42]

Jesus can't we just shut up with this stuff.

Its over. The verdict is in. It may have been wrong in my opinion, but thats besides the point.

Just leave it in the dust...

[Caitsidhe]

The results of an appeal "might" be negligible. They could also be wildly successful. Appeals are different from the main trial since all the weight is on the party appealing. Appeals fail more often than they bear fruit. That doesn't mean they won't be successful, however, so this could easily become a case of... "Same Bat-Time... Same Bat-Channel..." with the sequel seeing the Dynamic Duo (Chapterhouse & Team Pro-Bono) extricating themselves from the initial ruling. We will have to wait and see.

[GravesDisease]

So the verdict was announced, what was the actual ruling though? Has that even happened yet? If this was an episode of "The Good Wife" when would the jubilant music kick in and everyone actually start celebrating?

[eldargal]

Oh, great, another thread for people to rant at each other in for months until it is settled again.

[Fizzybubela]

Oh, great, another thread for people to rant at each other in for months until it is settled again.
My favourite. :p

[40kGamer]

Spread the hate... I mean cheer. :D

[Herzlos]

Oh, great, another thread for people to rant at each other in for months until it is settled again.

At least you know not to read it.

I'm still interested in what's happening with this, as a lot of the jury judgements don't seem to make sense (some shoulder pads being OK whilst near Identical ones aren't), and there's still quite a lot at stake here; for CHS, GWS and the gaming industry at large.

There are also a lot of quotes coming out of the documents that are pure gold.

[eldargal]

If only it were that simple, sadly it nearly always spills over into other topics where it shouldn't be.

[Psychosplodge]

Plus it's like picking a scab, you can't not do it as much as you should know better...

[Caitsidhe]

I actually find it pretty interesting, although I agree it needs to stay in threads that are clearly marked so those that don't want to read about it can skip.

[lattd]

Am i the only one finding it hilarious that the chapterhouse witnesses admitted that they have no clue about this subject so cannot be experts but the judge let them enter anyway? Really interesting seeing the differences between English courts and US courts. Such bias and unnecessary costs for the rather pointless experts would not have been allowed in England. Note in england the experts have to show the court the instructions they have received.

[weeble1000]

Hold on...I asked about the appeals process in the previous thread, and was given the impression (which to be fair, could stem from me being a bit thick at times) that whilst both parties have the right to appeal, the affect would be negligible?

Who gave you that impression?

Motion for summary judgment is done pre-trial.

Motion for judgment as a matter of law is done during trial.

Renewed motion for Judgment as a matter of law is done post trial.

These are renewed motions for JMOL and motions for a new trial. Both parties moved for JMOL and in the alternative a new trial.

Only after the Court enters final judgment, having ruled on the parties JMOL motions, will the parties then have (I believe) 30 days to file a notice of appeal. That's the process under the US Federal Rules of Civil Procedure.

If the parties appeal, that's a whole other ball game. It will go to the Seventh Circuit Court of Appeals.

Now, as an aside, the Court just referred the parties to Magistrate Judge Gilbert for the purpose of settlement.

"Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Jeffrey T. Gilbert for the purpose of holding proceedings related to: settlement conference on post judgment matters.(pjg, )Mailed notice. (Entered: 07/16/2013)"

Judge Gilbert is the guy who handled settlement previously and who told Games Workshop:


THE COURT: And so let's say for the sake of argument
and only for the sake of argument and not as any finding or
anything else that for at least some of your items you're
going to be able to show they're substantially similar and
you're going to be able to put together whatever
circumstantial or even direct evidence in terms of the types
of things you're asking for from the defendant of copying,
okay? And for others it's going to be a little bit dicier.
You're not going to be able to show that they're that similar
and you're not going to be able to -- and maybe the defendant
is going to be able to articulate from whatever diaries he has
or whatever that he came up with the Shakespeare sonnet pretty
much on his own and it's going to be a bit of a reach.
But let say you're going to win on some of this stuff
after you go through all your discovery. What then? If Games
Workshop Limited's goal is to put Chapterhouse Studios out of
business, a death knell, cease and desist, go away, die, and
pay us whatever you can of our attorneys' fees, then you're
right, there is no basis to sit down and settle this case.
However, if you would like to work out some agreement
with Chapterhouse Studios, and I haven't yet heard whether
Chapterhouse is willing to do that, short of "We'll go away
roll up and die," but that allows both of you to go on and
attempt to continue to operate in the areas, the space that
you're operating in in some way without one or the other
having to give up, in the world I live that's called a
settlement, right?

and


- and I'll add in also I would bet with 97 or however
many works we are talking about here that defendant is going
to win some too.
So defendant is going to get some ruling someplace from
Judge Kennelly if this goes all the way through that you don't
have any protectable interest in certain of your works. You
know, there may be some figures, there may be some other
things if you get into a battle on this, that lo and behold
Chapterhouse, which has a profitable business on this, there
is going to be a ruling on the record public in federal
district court in Chicago that you don't have rights to
certain things that you're now asserting rights in.
So let's assume that all that goes down. But with
respect to the things that you win on, what do you want? Do
you want Chapterhouse to cease and desist production of those
items, period? Would you be satisfied if Chapterhouse owned
by a fan paid you a royalty of some, or your client a royalty
of some amount in order to do that or some other type of
relief that you could negotiate with them now? Or is the only
way [Games Workshop] is satisfied here is it proves its case, it
wins, and it puts Chapterhouse out of business.

and


I think it
would be a shame for both sides here, one side is paying their
lawyers, one side is doing it for free, but it seems to me
both sides have risk in the litigation and it can be an
extremely expensive litigation...

I mean, I will tell you I had a trademark case last, a
couple weeks ago, maybe a month ago now, that was very -- it
was also a zero sum game, it was very hotly fought. The
principals came in, the settlement discussion for hours was
very hot, but in sitting with both parties I learned that the
principals really had a lot of animosity against each other
because of some prelitigation telephone calls that were had
and things that were said on those calls.
And one of the principals took it upon himself to say to
the other principal, "I'm sorry. I'm sorry about how I
reacted when we had a phone call. I'm sorry for saying that I
was going to bury you, that I was going to put you out of
business, that this was going to cost you too much and you
could not fight us. And I have respect for your business,
your plan, your model and I would like to try and resolve
this." The case got resolved.

Now, before you ask, yes, the parties can come to a settlement even after a jury verdict. In fact, that is pretty typical. This is because there's a whole range of issues that are still floating around, not the least of which is the potential for one or both parties to appeal.

[weeble1000]

If only it were that simple, sadly it nearly always spills over into other topics where it shouldn't be.

And whose fault is that? I'm not suggesting it is yours, of course, but if people can't manage to stay on topic themselves, that is where the moderators should step in.

[eldargal]

Yes, it just gets incredibly tedious. Both sides tend to be extremely partisan and most know nothing about how the legal system works so it's just lots of angry nonsense everywhere. My issue isn't with this topic but with the ongoing issue in general and the impact on the community.

[weeble1000]

Am i the only one finding it hilarious that the chapterhouse witnesses admitted that they have no clue about this subject so cannot be experts but the judge let them enter anyway? Really interesting seeing the differences between English courts and US courts. Such bias and unnecessary costs for the rather pointless experts would not have been allowed in England. Note in england the experts have to show the court the instructions they have received.

Actually, Judge Kennelly largely considered opinions about copyrights to be within the scope of lay opinion, which is why Mr. Merrett was allowed to testify about things like substantial similarity.

It would do you well to actually read the documents and familiarize yourself with the proceedings if you are going to criticize them so strongly. There seems to be plenty to criticize, as many individuals have made some very informed criticisms of the proceedings, but such uninformed criticism is hyperbolic at best and largely not constructive.

[weeble1000]

Yes, it just gets incredibly tedious. Both sides tend to be extremely partisan and most know nothing about how the legal system works so it's just lots of angry nonsense everywhere. My issue isn't with this topic but with the ongoing issue in general and the impact on the community.

I think the discussion of this case has been of immense benefit to the community, and plenty of people have been able to maintain very long, very informed, and very constructive discussion about the case which has, I think, led to a substantial increase in the familiarity community members have with copyright and trademark law. In an art-intensive and art-driven hobby and industry like this, a more informed understanding of important legal issues is a good thing.

And as an aside, you are doing pretty much exactly what you are criticizing; dragging the discussion off topic and focusing on irrelevant vitriol rather than a discussion of the actual topic.

[eldargal]

Not really, no, hardly anyone actually pays any attention to the facts and just stick with their partisan opinions. A few people paying attention is nice and all but don't kid yourself into thinking the community as a whole cares about learning, 40% want to b!tch about GW and 40% want to b!tch about CHS and they will find an excuse to do that no matter what reasoned arguments you put forward.

I thought you just said the effect on the community was important, now it's vitriol?:rolleyes: Also to be accurate I was being critical of the partisan rantings, which is not what I am engaging in. Regardless I'm not going to post anymore, I really don't give a **** what people think about CHS vs GW anymore.

Edit: Yes, I'm cranky, it's nothing personal.

P.S. Weeble, clear your PM inbox.:p

[lattd]

Weeble ive been following this case from the start that wasn't hyperbolic opinion that was strong legal opinion based on the documents and if you have read my other comments you would know I have the knowledge to back up my opinion.

Confusion after the case is a non issue though its confusion before the case which leads to legal action. If people have been confused by the use before the trial then GW can and did claim, successfully I might add, that there is infringement. I would also note that my opinion on what GW would appeal was spot on, I stated they would appeal on misdirection of law to the jury which is the case here, and I strongly agree with it, I can see CHS side but I really do feel it is clutching at straws.

[weeble1000]

Weeble ive been following this case from the start that wasn't hyperbolic opinion that was strong legal opinion based on the documents and if you have read my other comments you would know I have the knowledge to back up my opinion.

Confusion after the case is a non issue though its confusion before the case which leads to legal action. If people have been confused by the use before the trial then GW can and did claim, successfully I might add, that there is infringement. I would also note that my opinion on what GW would appeal was spot on, I stated they would appeal on misdirection of law to the jury which is the case here, and I strongly agree with it, I can see CHS side but I really do feel it is clutching at straws.

I am not aware of any case law from any Berne convention country that establishes any sort of standard for an objective analysis of whether an element is standard in a subject or genre. I've just never seen that. I think the CHS case is broaching new ground when it comes to expert testimony in a copyright case. So, really, the question is an academic one and has a great deal to do with whether there can actually be expert testimony in a copyright case. Certainly, there's case law about experts in copyright cases involving technical diagrams. So, one can at least say that at some point a line is crossed an a lay person must be educated by an expert in order to make a determination of what is or is not protected by copyright.

Where is that line? Does the average person on the street know about the vast world of science fiction? How can the average person on the street look at an expression of a "future soldier" and identify what elements are standard, common, or indispensable? Certainly you yourself are well educated in the subject, but I daresay even you are probably woefully ignorant of the vast array of prior existing works in even the relatively tiny science fiction fantasy table top wargaming industry. What if you were asked to sit on a case about...say...romance novels? What about...postmodern reinterpretations of African tribal artwork? Are jurors always assumed to be perfectly familiar with popular culture? What if it isn't popular culture?

It is assumed that technical drawings are outside the scope of an average person's everyday experience. How different is fantasy table-top wargaming, or any other narrow artistic niche?

[lattd]

I agree an expert in the field will be difficult as this is a tiny area. However someone who admits to knowing nothing about the area has no idea what is common and his only research into the area was the charts given to him is woefully under qualified. Whilst the other expert broke down the the items too far caused confusion and then the judge failed to correct the problem. It should be the overall design not the individual elements which happened.

At first i thought GW had really poorly run this case, looking through the documents it seems the judge and CHS's experts have caused the jurors series confusion.

An appropriate expert would be a toy expert or another model designer?

[Mr Mystery]

In regards to my initial post, it's just from the answers I gathered on the previous thread. I'm happy to admit I don't my arse from my elbow in this realm!

I've read through part of GW's argument, and my eyes glazed, so gave up.

But beware folks, I will be (attempting) to follow the thread, and may chime in from time to time asking for clarification!

[GrauGeist]

Jesus can't we just shut up with this stuff.

Its over. The verdict is in. It may have been wrong in my opinion, but thats besides the point.

Just leave it in the dust...

Um, that's not how the law works. The law is a very involved and expensive process, which is why you don't want to sue (or be sued) if you can settle. It's why GW was generally successful asserting IP until CHS found compentent pro bono representation (tho expenses were still high).

Until all appeals are exhausted, this isn't over. Amounts can be reduced, and errors can be corrected. Expect more time, as it's a civil case that can't just go away.

[GrauGeist]

I am not aware of any case law from any Berne convention country that establishes any sort of standard for an objective analysis of whether an element is standard in a subject or genre. I've just never seen that. I think the CHS case is broaching new ground when it comes to expert testimony in a copyright case. So, really, the question is an academic one and has a great deal to do with whether there can actually be expert testimony in a copyright case. Certainly, there's case law about experts in copyright cases involving technical diagrams. So, one can at least say that at some point a line is crossed an a lay person must be educated by an expert in order to make a determination of what is or is not protected by copyright.

Where is that line?

Go look at the Playmates Exo-Force case, which is largely similar in concept. Similar details and analysis over Sci-Fi IP.

[Denzark]

Ever since Weeby first started spouting on this, and I worked out how to use the ignore list, debates on this subject have been far less tedious.

[Mr Mystery]

Time for a quick recap for people like me, the hard of understanding.....

GW are appealing on account the Expert Witnesses brought by CH to the trial weren't in fact experts, and this would only have misled/confused the jury (remember legal peeps, I'm a pleb. Don't worry about the exact words I've used!)

CH from what I grasp, are stating this doesn't matter, as no expert witness is required?

[lattd]

CHS are also stating that GW didn't even make a case and didn't prove anything. GW have also stated that the judge advised the jury wrongly in this case which was further exasperated by the non-expert expert witnesses.

So GW argument is the judge applied the law wrong, the experts caused confusion, which the judge did not help clarify and the experts where not experts. Finally GW have asked for a retrial on some of the issues because the jury found the basic shoulder pad is copyright able as such is use in any of the other products means they automatically infringe, however the jury the said that some of the pads where different enough but GW are stating that the jury was mislead in how much difference is needed whcich was compounded by the poor experts.

CHS are stating GW didn't make out there case. Which is basically the weakest defence you can make out. There experts really didn't help there case by stating I don't know what's common in this field, this screams that as it cannot be confirmed as common then it infers u I queens which confirms copyright and this means it's infringing to use it.

[Herzlos]

CHS are stating GW didn't make out there case. Which is basically the weakest defence you can make out. There experts really didn't help there case by stating I don't know what's common in this field, this screams that as it cannot be confirmed as common then it infers u I queens which confirms copyright and this means it's infringing to use it.

Is it that weak? Take the likelihood to cause confusion stuff, CHS are asserting that in order to have been found likely to cause confusion, GWS must have provided some evidence that it was likely, whereas they seem to have managed to refuse their own case by stating that it wasn't likely. Surely that's a reasonable claim?

[lattd]

Well saying the claimant hasn't proved their case for the infringement i was taught is a last ditch defence, it is effectively saying we may have copied but you haven't shown it. The confusion stuff comes down to the experts not being experts and causing juries to be misled and wasting time which inflates cost. If GW have their appeal accepted which mean CHS loose there's I expect a retrial will be granted CHS experts testimony struck out and CHS being given a cost in any event order so they have to pay GW some money for wasting time and causing greater costs than necessary.

Only on goodwill trademarks do GW have to prove confusion, for everything else they just have to show that you used it without a right to do so.

[Caitsidhe]

Games Workshop has a harder field to hoe. In short, Chapterhouse is appealing and saying that the Jury got the verdict wrong (it is more complex than this but that is what it boils down to). Games Workshop is appealing saying the JUDGE got it wrong, i.e. that he is incompetent and allowed witnesses that should not be allowed and instructed the Jury incorrectly.

My bias isn't in effect here. I'm just laying it on the line as I did before (wherein I predicted the outcome correctly I might add). The Court system likes to believe that it has good people that make it up. Appealing because you are saying the Judge screwed up has to overcome that bias. Judges don't overturn other Judges lightly. There really has to be clear and unequivical problems or they are going to go with the Judge on the scene. By contrast (fair or not) Judges tend to look at appeals based on Jury mistakes with a more open mind. Judge are human and it is much more natural for them to assume the Jury will make a mistake, or more correctly they would prefer it to be that way.

Given this is a case involving international disputes over important issues, I fully expect the appeals to be accepted and go forward. I don't expect Games Workshop to get anywhere because trying to argue about the "subjective" nature of experts is a non-starter, and trying to argue the Judge didn't advise the Jury properly is tantamount to saying we want a retrial because don't like the outcome. Chapterhouse, by contrast, is likelyt o get a great deal. Team Pro-Bono will be able to pick apart the final rulings before Judges and "rules lawyer" and ask why this particular image is different from this one? The thing with the copyright office will return to haunt Games Workshop. In short, the Jury trial was good for Games Workshop because they managed to get at least a few things thrown their way. In Civil cases, a Jury is very loathe not to toss a few bones. This has been shown statistically. Judges, by contrast, make their rulings based entirely yes or no and generally don't care about making sure everyone gets something.

I'm making another batch of popcorn, putting my feet up, and getting ready for another LONG... but somewhat entertaining ride. Chapterhouse has nothing to lose by appealing since Team Pro-Bono is on board (and they wouldn't be unless they felt certain they were going to win). Games Workshop, by contrast, is likely so spend twice (or more) on the appeals process than it did on the initial legal proceedings.

[lattd]

Agreed GW has the harder starting point but the stronger grounds due to precedent and statements from the original trial, where as CHS have an easier starting point they have a much weaker argument due to a lack of precedence and there argument is somewhat the judge got it wrong by advising the jury that GW had made their case.

[weeble1000]

[QUOTE=lattd;330535 It should be the overall design not the individual elements which happened.[/QUOTE]

Patently incorrect. The overall design cannot be considered without an understanding of what is and is not protected expression, precisely because it is protected expression, and only protected expression that constitutes the scope of a copyright.

Protected expression is only that which is original in a work of art. It does not extend to any idea or concept, it does not include that which is standard, indispensable, or common in the treatment of a subject. A fact finder must approach a substantial similarity analysis by making a determination of what is and is not protected expression in the asserted work.

To do otherwise would extend copyright far beyond its very specific, very narrow confines and undermine the entire purpose of copyright law so as to be inherently self-defeating.

[weeble1000]

An appropriate expert would be a toy expert or another model designer?

A) The vast majority of the asserted works were not models or toys. So, I don't think a model designer or a toy expert would be of much use when discussing the asserted works.

B) The artistic genre is science fiction, not toys. By GW's own admission 40K is "Taken from 2000 AD and Michael Moorcock novels and real history all put into a big pot and regurgitated by us." Bob Naismith said "There were not that many science fiction movies, so we tended to watch them all." Regarding the connection of medieval heraldry to 40K John Blanche said "Particularly Space Marines and their color schemes and their symbols on their shoulder pads, et cetera, that would be a strong part of their specific chapter heraldry." Those were precisely the works asserted by Games Workshop: Space Marine color schemes, heraldry, and the art of Warhammer; not models or toys. And that art comes out of a broad science fiction genre.

[weeble1000]

Go look at the Playmates Exo-Force case, which is largely similar in concept. Similar details and analysis over Sci-Fi IP.

There were no experts in that case, unless I am wildly incorrect. FASA v Playmate has very similar facts, and has been cited by the defendant, but in terms of expert testimony FASA v Playmate simply has nothing to offer.

[weeble1000]

edited: unnecessary

[weeble1000]

Agreed GW has the harder starting point but the stronger grounds due to precedent and statements from the original trial, where as CHS have an easier starting point they have a much weaker argument due to a lack of precedence and there argument is somewhat the judge got it wrong by advising the jury that GW had made their case.

What precedent? GW cited precious little in its motion. You can't just say they GW has precedent on its side. Where does that come from?

[lattd]

Weeble can I ask what your legal background is before your starting commenting on what is defined precedent. GW referenced case law citing specific instances which set the law saying you take the design as you see it not the individual components so I'm not sure how I'm patently incorrect? Secondly the precedent comes from the cases citied in the motion.

[weeble1000]

Weeble can I ask what your legal background is before your starting commenting on what is defined precedent. GW referenced case law citing specific instances which set the law saying you take the design as you see it not the individual components so I'm not sure how I'm patently incorrect? Secondly the precedent comes from the cases citied in the motion.

I have pretty extensive experience in civil litigation, little in criminal, some civil rights. In terms of civil litigation, most of my experience is in intellectual property litigation, primarily patents (high tech, medical device, pharma, etc.), although I do have experience in both trademark and copyright cases. But, those sorts of cases don't generally go to trial, and patent litigation is both more prevalent and more lucrative, so it is what it is. My experience is very much focused on litigation and controversy.

You were "patently" incorrect in saying "It should be the overall design not the individual elements which happened." While individual elements aren't technically severed from an overall design, and are considered in the context of an overall design, under for example the Atari case, copyright only extends to "protected expression," which of necessity requires one to delve into 'elements' of a work. One must determine what, if anything, constitutes protected expression in an asserted work, for only the unfair appropriation of protected expression infringes.

So, what I meant was that your statement seemed to misleadingly suggest that a whole work is protected, and it is therefore only the "overall design" of an asserted work that should be compared to an allegedly infringing work.

As to cited case law, I was particularly referring to the qualification of an expert to testify in a copyright case.

you said:


Agreed GW has the harder starting point but the stronger grounds due to precedent and statements from the original trial, where as CHS have an easier starting point they have a much weaker argument due to a lack of precedence and there argument is somewhat the judge got it wrong by advising the jury that GW had made their case.

Now, if I remember the arguments you made earlier correctly, you were essentially saying that GW's arguments are related to the defendant's expert's testimony; that the expert was not qualified and was confusing. So, I reiterate, where is the precedent?

I know one can find cited precedent in a motion, but as I said above, "GW cited precious little in its motion." (emphasis added)

With regard to qualifications as an expert, it seemed to me (I'm not double checking at the moment, so feel free to correct me if I am wrong) that GW was essentially reiterating its Daubert motion. Now, Daubert would be precedent, yes, hence the name which references the case: Daubert v. Merrell Dow Pharmaceuticals (really the Daubert trilogy but I'm sure you know what I'm talking about). Now, citing Daubert is just citing the case law under which an expert may be disqualified for a variety of reasons.

Leave aside for the nonce the fact that the plaintiff articulated this argument thrice and was thrice denied by the Court, only to make it a fourth time in the most recent motion. That is beside the point, really. This is because the point I am making is that there is little in the way of case law that has anything to do with qualifying (or disqualifying) experts in copyright cases.

Consequently, GW's argument is just that: an argument. It is an argument articulated by plaintiff counsel, and note I make no judgement here about the merits of the argument other than to say that it is not supported, from what I saw, by any fact-similar case law. The plaintiff is making an argument, under Daubert, that defendant's expert did not demonstrate "scientific knowledge" due to deficiencies in methodology. But the arguments about why the methodology is deficient have been dreamed up by plaintiff counsel, and are as unsupported by any authority as the expert testimony it seeks to disqualify.

That does not, ipso facto, mean the argument itself is wrong or illogical, but it does mean that it is new territory, so making a conclusion that the plaintiff is supported by strong precedent is rather illogical, wouldn't you say?

I also think that it is far better to judge an individual's credibility by the quality of the argument rather than by stated references, so I hope that we can move past that.

[lattd]

Ahh I see where the confusion has come from it's hard to type on a phone which is what I'm using ATM. Agreed there is no precedence in what an expert is I meant there is precedence in the judge advising the jury which was questionable.

In relation to the design that was slightly misleading, when comparing the infringing copyright you take the total copyright able design and compare it to the infringing act. The issue here was the expert admitted he could not define what that amounted to and said that he could not be sure what is common. Now here's where it gets confusing a chevron in its self is common in military models, however we are looking at a chevron on a shoulder pad that has been deemed as copyright, so is the chevron on that shoulder pad common well no and that's where the expert caused confusion in my view.

[weeble1000]

Ahh I see where the confusion has come from it's hard to type on a phone which is what I'm using ATM. Agreed there is no precedence in what an expert is I meant there is precedence in the judge advising the jury which was questionable.

In relation to the design that was slightly misleading, when comparing the infringing copyright you take the total copyright able design and compare it to the infringing act. The issue here was the expert admitted he could not define what that amounted to and said that he could not be sure what is common. Now here's where it gets confusing a chevron in its self is common in military models, however we are looking at a chevron on a shoulder pad that has been deemed as copyright, so is the chevron on that shoulder pad common well no and that's where the expert caused confusion in my view.

The jury was instructed by the Judge that the GW shoulder pad was copyrightable. The Court also instructed the jury that a sawblade symbol in combination with a teardrop shape was not protectable, but that it could be protectable on a shoulder pad. Also note that according to the parties' proposed judgments, most of the pads were found to infringe, but fall within the limits of fair use.

Also remember that the CHS underlying pad was ACCUSED of copying the copyrightable GW pad. That was only a claim in the case, not a finding by the Court. Thus a fact finder could certainly have found that the CHS underlying pad did not infringe the GW pad. Remember that all the jury answered was Infringement (yes or no) and if yes, Fair Use (yes or no), as we see from the attached verdict form (http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.410.15.pdf).

For any pad found to infringe, the jury could have found the pad to infringe, the design on the pad to infringe, that the unique combination of the design on the pad infringed even though the pad itself does not infringe, that both the pad and the design infringe, or even that the pad is fair use, the design is fair use, but the combination of the design on the pad is not fair use.

As you can see from the document, the verdict form does not break out any of those questions discretely. The only information provided by the verdict form is Infringement (yes or no) and if yes, Fair Use (yes or no).

For any shoulder pad claim for which the jury answered "No" to the question of infringement, the jury could have found that the underlying pad itself did not infringe.

So what you have is a set of potential scenarios such there is a possible scenario in which the jury consistently found the underlying CHS pad to not infringe the GW pad.

Here's one way it could work:


For those pads found to infringe, the jury could have found that the pad did not infringe, but the design in combination with the non-infringing pad is what infringed.

For those that infringed, but fell within fair use, the jury could have found the above, but found that in that specific set of facts, the copying fell within the limits of fair use.

For those that did not infringe, the jury could have found that the design in combination with a non-infringing pad did not infringe.

GW's arguments in the motion suggest that the CHS pads are literal copies of the GW pads. But that was not a finding by the Court, nor is it explicit in the jury verdict given the brevity of the questions. That the CHS pads are literal copies of the GW pads is therefore simply a statement made by plaintiff counsel, not a fact.

The jury verdict simply does not provide that information. That is a fact. It was not a finding by the Court. That is a fact. If there was an admission of such by a witness, I did not see it referenced or quoted in the GW Rule 50/59 motion.

[Mike Dunford]

Games Workshop has a harder field to hoe. In short, Chapterhouse is appealing and saying that the Jury got the verdict wrong (it is more complex than this but that is what it boils down to). Games Workshop is appealing saying the JUDGE got it wrong, i.e. that he is incompetent and allowed witnesses that should not be allowed and instructed the Jury incorrectly.

My bias isn't in effect here. I'm just laying it on the line as I did before (wherein I predicted the outcome correctly I might add). The Court system likes to believe that it has good people that make it up. Appealing because you are saying the Judge screwed up has to overcome that bias. Judges don't overturn other Judges lightly. There really has to be clear and unequivical problems or they are going to go with the Judge on the scene. By contrast (fair or not) Judges tend to look at appeals based on Jury mistakes with a more open mind. Judge are human and it is much more natural for them to assume the Jury will make a mistake, or more correctly they would prefer it to be that way.

Actually, you have it almost exactly backward.

In appellate law, there are what are known as "standards of review." If and when this case is appealed, you will see a fair amount of discussion of the appropriate standard in each of the appellate briefs, and it's possible (if not likely) that there will be some dispute about the appropriate standard. Those arguments will be fairly technical.

There are some general rules that apply pretty much across the board. Appeals courts recognize that they were not present at the trial, did not see the witnesses, watch reactions first hand, and so forth. Therefore, appeals courts generally apply a standard of review known as "clear error" to findings of fact, and will only overturn a finding of fact if they are definitely and firmly convinced an error has been committed. Appeals courts also know, however, that they know the law at least as well as the trial court (and probably better). A trial court's findings of law are reviewed to what's known as a de novo standard, with no deference being given to the trial court's findings.

Generally, someone who is appealing a decision wants to be in the position of arguing that the judge got the law wrong. Arguing that there was not enough evidence to support the jury's verdict is not at all the position you want to be in.


Given this is a case involving international disputes over important issues, I fully expect the appeals to be accepted and go forward. I don't expect Games Workshop to get anywhere because trying to argue about the "subjective" nature of experts is a non-starter, and trying to argue the Judge didn't advise the Jury properly is tantamount to saying we want a retrial because don't like the outcome. Chapterhouse, by contrast, is likelyt o get a great deal. Team Pro-Bono will be able to pick apart the final rulings before Judges and "rules lawyer" and ask why this particular image is different from this one? The thing with the copyright office will return to haunt Games Workshop. In short, the Jury trial was good for Games Workshop because they managed to get at least a few things thrown their way. In Civil cases, a Jury is very loathe not to toss a few bones. This has been shown statistically. Judges, by contrast, make their rulings based entirely yes or no and generally don't care about making sure everyone gets something.

The appeal in this case will be accepted. The circuit appeals courts do not have discretion to pick and choose cases the way the Supreme Court does.

[Mike Dunford]

So what you have is a set of potential scenarios such there is a possible scenario in which the jury consistently found the underlying CHS pad to not infringe the GW pad.


Here's one way it could work:

For those pads found to infringe, the jury could have found that the pad did not infringe, but the design in combination with the non-infringing pad is what infringed.

For those that infringed, but fell within fair use, the jury could have found the above, but found that in that specific set of facts, the copying fell within the limits of fair use.

For those that did not infringe, the jury could have found that the design in combination with a non-infringing pad did not infringe.

Unfortunately for that scenario, the jury found that Chapterhouse's "generic power armor shoulder pad" infringed GW's copyrights. The jury also found that several of the other relatively unadorned pads infringed, including the assault squad, dev squad, smooth pad, and the studded pad.

http://www.scribd.com/doc/151425027/Games-Workshop-v-Chapterhouse-Judgment-part-1
http://www.scribd.com/doc/151425023/Chapterhouse-vs-Games-Workshop-Judgment-part-2

A jury finding that the Chapterhouse unadorned generic pad infringed is difficult to reconcile with a jury finding that the underlying Chapterhouse pad did not infringe. I'm interested in seeing how Chapterhouse addresses that issue in their response to GW's motion.

Separate question: I see from the PACER docket that Chapterhouse has filed a bill of costs. In your experience, do you think they have any chance of being ruled the prevailing party for the purposes of costs, or are they just trying to position themselves in advance of the settlement conference?

[Caitsidhe]

Actually, you have it almost exactly backward.

We shall see. :) I'm talking about bias and psychology. You are talking about intellectual ideas. It is the difference between seating a jury and hiring a jury consultant. I don't disagree with anything you stated intellectually, but I stand by my statement just the same. Human psychology and bias always tells.

[jonsgot]

I'd love to hear a recording of how the jury decided their outcome. There are some products that infringed like the conversion beamer, and Dark Eldar mistress which I couldn't understand, and then other products which I was shocked CH are still able to produce, like the shoulder pads.

[weeble1000]

Unfortunately for that scenario, the jury found that Chapterhouse's "generic power armor shoulder pad" infringed GW's copyrights. The jury also found that several of the other relatively unadorned pads infringed, including the assault squad, dev squad, smooth pad, and the studded pad.

http://www.scribd.com/doc/151425027/Games-Workshop-v-Chapterhouse-Judgment-part-1
http://www.scribd.com/doc/151425023/Chapterhouse-vs-Games-Workshop-Judgment-part-2

A jury finding that the Chapterhouse unadorned generic pad infringed is difficult to reconcile with a jury finding that the underlying Chapterhouse pad did not infringe. I'm interested in seeing how Chapterhouse addresses that issue in their response to GW's motion.

Separate question: I see from the PACER docket that Chapterhouse has filed a bill of costs. In your experience, do you think they have any chance of being ruled the prevailing party for the purposes of costs, or are they just trying to position themselves in advance of the settlement conference?

Ah, you are correct it seems. I thought that it was just the one with the ridge, and not the "smooth" pad, but it appears that both were found to infringe. Still though, it does not follow that the pad is a literal copy of the asserted GW artwork, as was the statement in the plaintiff's motion, stated as if it was a fact.

Again, a finding of infringement does not in any way mean "literal copy" as the law does not require literal copying in order for there to be infringement.

There is also the Court's ruling that the size and shape of the GW pad is copyrightable, though the Court declined to establish the scope of that copyright, failing to define what is and is not considered to be "protected expression" in the GW pad. The Court is silent other than to stress that the work met the very low bar of a "minimal degree of creativity."

Infringement (yes or no) if yes Fair Use (yes or no). That was the verdict form.

The verdict form was not:

Does GW own a valid copyright in the asserted work of art?

Does the X product unfairly appropriate protected expression from the asserted work?

Does the X product infringe the plaintiff's exclusive right to prepare derivative works?

Does the image of X product from the CHS website unfairly appropriate...

Jury deliberations are a black box, and the only information available is the verdict form within the context of all evidence presented, which for virtually all accused products includes images on the website and in many cases multiple asserted works. What you have in this case are claims in which a product is accused of infringing one or more disparate works of art in which publicized images of the painted and assembled product (sometimes in combination with the asserted works of art) are submitted as evidence of infringement. You have a list of exclusive rights, any of which the defendant may have infringed, including distributing or even merely publicly displaying a copy of the asserted work of art.

So you have images on a public website, some of which display the asserted works, and remember that the act of displaying the asserted works alone can infringe exclusive rights of the copyright holder. You have physical products sold, images of those products displayed painted, and claims in which asserted elements are found within sometimes as many as 10 separate works of art. There was a whole lot going on here.

All you have to determine what decisions the jury made are two questions:

Infringement (yes or no) if yes, Fair Use (yes or no).

[weeble1000]

I'd love to hear a recording of how the jury decided their outcome. There are some products that infringed like the conversion beamer, and Dark Eldar mistress which I couldn't understand, and then other products which I was shocked CH are still able to produce, like the shoulder pads.

No one ever gets to hear it. It is a black box, and the system is designed that way for a good reason. Were it otherwise, how could a case ever reach a reliable final judgment? There would be a mass of information to dissect, and arguments would go on and on forever. Jury verdicts are difficult to overturn unless one can find that no jury could have found X, Y, or Z. If no jury in the world, appropriately applying the law to the facts as they found them, could possibly come to such a conclusion, then you can say a conclusion other than X is incorrect without ever trying to open that black box. The black box just doesn't open. It isn't supposed to.

[Mike Dunford]

Disclaimer - I am a law student, but not a lawyer.

Some new documents have turned up on the court's docket since this thread was last updated. Both sides are seeking costs under Federal Rule of Civil Procedure 54(d)(1), which says:


(1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party.

To be clear, costs do not include attorneys' fees. Costs include things like filing fees, transcript fees, witness expenses, and so forth.

Chapterhouse has submitted a bill of costs (http://www.scribd.com/doc/159079391/GW-v-Chapterhouse-Chapterhouse-Bill-of-Costs) totaling $139,005.60. Games Workshop has submitted a bill of costs (http://www.scribd.com/doc/159079432/GW-v-Chapterhouse-GW-bill-of-costs) totaling $177,762. In addition, GW seems to also be requesting an additional $78,360 under a different rule (Rule 26) to cover expenses related to one of their experts.

Both sides have presented their arguments as to why costs are appropriate. Chapterhouse included their argument (http://www.scribd.com/doc/159080401/GW-v-Chapterhouse-Joint-report-on-judgment) in an earlier filing, and Games Workshop submitted their argument (http://www.scribd.com/doc/159079425/GW-v-Chapterhouse-GW-Motion-for-Costs) along with their bill of costs.

I've read both sets of arguments, and a number of the cases cited in each argument. GW has a much stronger argument for costs than Chapterhouse. The rule is that costs should be allowed to the prevailing party, and GW has a much better claim than Chapterhouse. Chapterhouse prevailed on some claims in the sense that they were found to have not infringed, but the majority of the products put in front of the jury were found to either infringe copyright, infringe trademark, or infringe both. The damage award was what GW ultimately requested from the jury, and GW will be granted a permanent injunction barring the continued manufacture of some Chapterhouse products.

I would be surprised if Chapterhouse's attorneys are expecting to obtain costs. My guess is that Chapterhouse is hoping the judge will order each side to bear its own costs. I don't know if they succeed. And even if the costs are drastically reduced, Chapterhouse may be on the hook for costs in excess of the jury verdict.

[lattd]

Interesting cost in England include legal fees. But have the basic principle that the loosing party pays, whoever gets costs is only likely to receive 60-80%.

[Mike Dunford]

Interesting cost in England include legal fees. But have the basic principle that the loosing party pays, whoever gets costs is only likely to receive 60-80%.

The American Rule is that each side bears its own attorneys fees. (There are exceptions to the rule, including in some intellectual property cases, but this is extremely unlikely to be one of them.) On the one hand, the American Rule does lead to more litigation. On the other, it makes it possible for individual plaintiffs to sue large companies that have wronged them, without fear of crippling expense if they lose.

I can see the logic and benefit to the European model, but I like the access to justice that the American system provides.

[Mr Mystery]

In the UK, we're even looking at banning 'no win, no fee' stuff, simply because a lot of it is entirely frivolous, due to the complete lack of risk to one side.

Used to work in car insurance, and so many 'whiplash' claims were paid out simply because it would cost more to defend than to cough up. All because the person not at all injured in any way, shape or form literally couldn't lose, as they had precisely no financial stake.

Sooner the better if you ask me.

[lattd]

Yep should be changing in the next year, to the American style where the lawyer gets a percentage of the winnings.

[Mr Mystery]

Yep should be changing in the next year, to the American style where the lawyer gets a percentage of the winnings.

As long as it poo-poos bogus PI claims, and indeed bogus cases in general... After all, if your claim is properly legitimate, you shouldn't fear losing.

British PI laws are mental though. Did you know that a doctor is not allowed to say that you're not actually injured, and are talking out of your nipsy in the hope of some cashmonies? Now I'm sure there's a decent reason (professionally liability should they misdiagnose no doubt being a substantial one) but it has lead to wholesale abuse!

[weeble1000]

These are the latest minute entries from the docket:

10/04/2013 436 MINUTE entry before Honorable Jeffrey T. Gilbert: Continued telephonic settlement discussions held with both parties. Mailed notice (mr, ) (Entered: 10/04/2013)

10/07/2013 437 MINUTE entry before Honorable Jeffrey T. Gilbert: Telephone conference with Defendant's counsel concerning settlement negoations held on 10/7/13. Mailed notice (mr, ) (Entered: 10/07/2013)

10/07/2013 438 MINUTE entry before Honorable Jeffrey T. Gilbert: Telephone conference held with Plaintiff's counsel concerning settlement negotiations on 10/7/13. Mailed notice (mr, ) (Entered: 10/08/2013)

10/09/2013 439 MINUTE entry before Honorable Jeffrey T. Gilbert: Continued settlement discussions held telephonically with counsel for both parties. All agree that, at this point, the settlement discussions are not not likely to be successful. Accordingly, the parties are will turn their attention to post-trial matters before the District Judge. The settlement referral will remain open in the event the parties would like to reconvene with the Magistrate Judge to pursue settlement of this case. Mailed notice (mr, ) (Entered: 10/09/2013)

10/10/2013 440 MINUTE entry before the Honorable Matthew F. Kennelly: Rule 16(b) status hearing held on 10/10/2013 with attorneys for both sides. Supplement to joint status report regarding injunction is to be filed by 10/22/2013. Briefs opposing post trial motions and bills of costs are due by 10/24/2013; replies are due by 11/7/2013. Status hearing set for 11/7/2013 at 09:30 a.m. Mailed notice. (pjg, ) (Entered: 10/10/2013)

Rule 16(b) just means a scheduling hearing, during which those dates were discussed with the parties and scheduled by the court.

[weeble1000]

HOLY CRAP!

10/15/2013 441 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752-8829389. (Mooney, Elizabeth (http://www.wilmerhale.com/elizabeth_mooney/)) (Entered: 10/15/2013)
10/19/2013 442 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752-8845548. (Goldman, Kevin (http://www.wilmerhale.com/kevin_goldman/)) (Entered: 10/19/2013)
10/19/2013 443 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752-8845563. (Tompros, Louis (http://www.wilmerhale.com/louis_tompros/)) (Entered: 10/19/2013)

Chapterhouse Studios is being represented by WilmerHale! Elizabeth Mooney is listed under defense counsel, so WilmerHale is definitely in for Chapterhouse Studios.

This is crazy, and a HUGE development. This means that now Chapterhouse Studios is being represented by 3 major, top-rated US law firms. A new firm at this point, given the supposed break down in settlement negotiations, probably also means that Chapterhouse is planning on an appeal, with at least WilmerHale working on it, if not all three firms.

Wilmer, Cutler, Pickering, Hale, and Dorr (WilmerHale) is a serious US law firm with a substantial track record in IP litigation. If any of you folks remember, Apple's counsel in the Apple v Samsung case was Morrison Foerster and WilmerHale.


Mr. Tompros's practice focuses on intellectual property matters at the trial and appellate levels. He has represented clients in patent disputes involving a variety of technologies, including smartphones, semiconductors, networking, alternative energy, pharmaceuticals, blood and bone marrow treatments, power converters, digital imaging, video compression, mobile multimedia, hard drive testing and plastic storage devices. He has also represented companies in design patent, trademark, trade dress, unfair competition, trade secret, contract, antitrust and products liability matters. His practice has encompassed all facets of litigation, including discovery, settlement, alternative dispute resolution, trials, injunction proceedings and appeals. His trial experience includes bench and jury trials in federal and state courts, and before administrative agencies including the International Trade Commission, and his appellate experience includes argument before the United States Court of Appeals for the Federal Circuit.

Pro bono representation is also an important part of Mr. Tompros's practice. Through the Volunteer Lawyers for the Arts, he represented an artist whose artwork had been damaged on loan to a museum. He has also represented local Boston non-profit organizations, including the Charlestown Nursery School. He has represented terminated employees in unemployment insurance claims and appeals, and public housing tenants facing eviction. Mr. Tompros also represented a group of gay and lesbian service members challenging the constitutionality of the military's "Don't Ask, Don't Tell" policy, in association with the Servicemembers Legal Defense Network.

Wow, put that in your pipe GW! It's a trifecta!

[Mr Mystery]

Yes. On absolutely no account must the originator of anything retain rights to their designs. That's just communism....

[Psychosplodge]

That'd be the apple vs samsung case they lost in Germany, had thrown out here and won in the US? Very clear cut...

[eldargal]

That'd be the apple vs samsung case they lost in Germany, had thrown out here and won in the US? Very clear cut...
Was that the one widely condemned as being a victory for US protectionism?

[Mr Mystery]

Was that the one widely condemned as being a victory for US protectionism?

I'd imagine so.

[weeble1000]

I'd imagine so.

The point is that WilmerHale is one of the firms Apple decided to hire in its largest, most significant legal battle of the decade. If Chapterhouse was being represented by Quinn Emanuel, Samsung's counsel in that case, I would have said the exact same thing. All of the firms involved in that trial are powerhouse firms with a giant price tag and proven track records in tough cases.

Chapterhouse is being represented by a law firm that Apple decided to hire, Apple being a company that could hire any damn firm it pleases.

Do you get the point?

[eldargal]

WilmerHale have come down in the world seems like the point to me.:p No offense intended to CHS but they aren't Apple.

[Mr Mystery]

Can't say it matters. Judge has made a ruling, and now it's quibbly quibbly over the details, from what I gather (never did get a straight answer as to whether either party can make things better/worse for themselves at this stage).

[weeble1000]

Can't say it matters. Judge has made a ruling, and now it's quibbly quibbly over the details, from what I gather (never did get a straight answer as to whether either party can make things better/worse for themselves at this stage).

Well, the straight answer is "yes."

Both parties have rule 50 motions in front of the Court. Both rule 50 motions could see the entire case go one party's way or the other. However the Court rules on those, the case can go up on appeal, and it seems that it is highly likely Chapterhouse will appeal as it just secured representation from another crazy huge law firm.

The Court has not left "quibbly details" and has not made substantive, issue ending rulings. The rulings by the Court resulted in a jury trial and the dismissal of some 40% of Games Workshop's claims. The jury verdict says Chapterhouse prevailed on some 65% of the remaining claims. Now both parties are arguing to have the Court set aside portions of the jury verdict that will allow one party or the other prevail on ~100% of the claims at issue in the trial. Dismissed claims are for all intents and purposes dead.

However the Court rules on those motions, the parties have the opportunity to appeal. Many of the appellate issues are likely related to issues raised in the rule 50 motions.

It is pretty simple. What is happening is that you have made up your mind about the case and you are frustrated about not seeing the case over with a full victory for Games Workshop. Cool your jets, bro. It aint over yet, and you could eventually see a full victory for Games Workshop.

But you could also see a full victory for Chapterhouse Studios, and you should note that WilmerHale, just like W&S and Marshal, Gerstein, and Borun, didn't take the case because it was a loser. WilmerHale's involvement should signal that a major, powerful firm like WilmerHale thinks the appellate issues are either good, or that a significant principle of law is at stake, neither bodes well for Games Workshop.

[Mr Mystery]

Well, working in the financial complaints industry, I'm quite familiar with the scattergun complaints approach, which I'd imagine GW have taken here. If you're gonna sue, sue big, on account you likely won't be able to sue again on historical stuff, win or lose (I believe. Could be wrong).

Important thing here, is that regardless of whether on all counts, GW won the initial case, and CH was judged to have infringed copyright. And now they're appealing.

And from Dakka, original CH reps were meant to just wipe the floor with GW, who I believe have a significant law firm working for them, yes?

[weeble1000]

Well, working in the financial complaints industry, I'm quite familiar with the scattergun complaints approach, which I'd imagine GW have taken here. If you're gonna sue, sue big, on account you likely won't be able to sue again on historical stuff, win or lose (I believe. Could be wrong).

Important thing here, is that regardless of whether on all counts, GW won the initial case, and CH was judged to have infringed copyright. And now they're appealing.

And from Dakka, original CH reps were meant to just wipe the floor with GW, who I believe have a significant law firm working for them, yes?


Seriously, pull your head out and actually pay attention to the facts.

It is relatively simple.

Games Workshop won some claims, yes. However, Games Workshop lost on more claims than it won on, and had a huge chunk of claims dismissed with prejudice.

Games Workshop did not succeed in putting Chapterhouse out of business.

Games Workshop stands to lose everything it won on. Chapterhouse stands to lose everything it won on at trial. The dismissed claims are dead as a door nail.

Chapterhouse had very, very good counsel, and achieved a major success in front of a jury with a tough case and very plaintiff-friendly rulings by the Court. Those ruling by the Court are subject to appeal, as is the jury verdict. A major US law firm has apparently looked at the appeal issues and decided that it is worth it to argue the case to the 7th circuit court of appeals.

Look, can you at least admit that you are not a partner at WilmerHale billing out at $500+ an hour? If you can admit that, then you can admit that someone with more knowledge and experience than yourself views the issues in a significantly different way. I'm not saying you are wrong to have your opinion, but I am saying it is naive of you to be spouting off like this thing was and will be a total victory for Games Workshop.

[Nabterayl]

Calm down, weeble. If we can't discuss this thing without resorting to the level of ... strenuous declarations it's headed towards, it's not worth discussing.

Games Workshop stands to lose everything it won on. Chapterhouse stands to lose everything it won on at trial. The dismissed claims are dead as a door nail.
Well, of course it does. A Rule 50 motion ("Motion for a Directed Verdict," for those of our readers who can't cite the Federal Rules of Civil Procedure chapter and verse) can always present that risk.* As long as money is no object, you should always file a Rule 50 motion as to anything you lose. But do you have a sense of what the briefs actually say? My own impression was that there was nothing about the jury trial that really warranted setting aside the verdicts. The questions at trial seemed like proper things for a jury to decide, and while they may have been decided incorrectly, I didn't see anything that indicated to me that this is anything other than the routine post-trial hail Mary. Did you?


Chapterhouse had very, very good counsel, and achieved a major success in front of a jury with a tough case and very plaintiff-friendly rulings by the Court.
Sure, everybody has good people representing them (in answer to your question, Mystery, yes, GW also has "very, very good counsel." I'm glad to hear it. It's an interesting legal issue, and we'll all be better for having the issue done to death by the very best. But I don't see this as evidence that something is about to radically change. It's hardly unusual for a new law firm to be brought in to handle appellate issues.


* For those same readers - a Rule 50 motion can take two forms. The first form is for the court to override the jury verdict and enter what the court believes to be the correct verdict. This power is obviously directly contrary to the whole point of the jury system, and so the FRCP specify that it is only to be used if "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis" to find the way it did.

The second form is for the court to set aside the jury verdict but order a brand new jury trial. Of course, the conceit is that all juries are broadly the same (if you don't mostly believe that, then you don't believe in the jury system at all), so this is not to be used simply because the court disagrees with the way the jury came out on the issues submitted to it.

You can easily imagine situations where it would be very important to have these powers available - suppose a jury clearly ignores an overwhelming mountain of evidence, or is found to have been compromised in some way. In extreme situations like that, the legal system obviously needs to provide a remedy. But Rule 50 is not supposed to be used (and I doubt in this case it will be used) to get a do-over in less extreme cases. It's the nature of litigation in the real world that lots of very smart, very learned people are going to think the jury got it wrong, no matter what the jury does. Rule 50 is not a remedy for cases where merely a lot of very smart, very learned people think the jury got it wrong - not even if the judge is one of those people. There needs to be something more extreme than, "Well if I were making the call, I would have decided differently."

[weeble1000]

Nab, I agree with you for the most part.

Mystery has a habit of rolling in and declaring the thing over, which readers pick up on and walk away with. My point was essentially yours, that the case is not over.

I do disagree with you about the rule 50 issues. There are substantive questions involved, such as Chapterhouse's argument about Games Workshop's failure to provide evidence of protected expression. I can't speak to the merits of that argument, and the Court has made no decision on it, but if granted it would set very interesting precedent and overturn any findings of copyright infringement.

That is an issue to watch closely, in post-trial and on appeal if the issue is brought to the appellate court. It has implications for copyright litigation in general.

Games Workshop has attacked the fair use findings, and has made arguments about the inconsistency of the jury verdict. Fair use is fact intensive, so take that as you will. Chapterhouse has made some noise about the verdict form, which does not provide much insight into the nuances of the jury's decision.

The jury verdict is sort of opaque in this regard. The fact issues the jury was required to decide were many and complex (you can take a look at the jury instructions, for example), but the verdict form was very, very simple. So what does a finding of infringement as indicated on the verdict form even mean? In lots of cases multiple works of art were asserted and the physical exemplars were considered side by side with the photographs on the website, which were argued to be part of an infringement analysis (which was objected to by the defense). So does that mean a work only infringes in combination with a photograph on the website? If so, will the Court issue an injunction as to only the product in combination with the website photo?

Then on appeal, should the case get there, a lot of the Court's rulings were objected to by the defense, such as the ruling that vast swaths of marks had been used in commerce as valid marks. Those rulings took out substantive questions of fact for the jury. Then there was the Court's handling of 'expert' testimony, which again has implications for copyright litigation in general as an appellate issue.

There's a lot in this case, and if it goes on appeal, one way or another I think it stands to create precedent, and out of the 7th circuit too.

[DrLove42]

The whole thing is disgusting to me. CHS won enough last time....they got the right to continue to use someone elses ideas for their own ****ty products

And they decide to appeal cos they can't use some of their direct ripped off models? If this case was anywhere but the states it'd have been over before it even got to court

[weeble1000]

The whole thing is disgusting to me. CHS won enough last time....they got the right to continue to use someone elses ideas for their own ****ty products

And they decide to appeal cos they can't use some of their direct ripped off models? If this case was anywhere but the states it'd have been over before it even got to court

As I mentioned, there are substantive issues involved in this case and principles of law that go beyond Chapterhouse and Games Workshop. You can feel about it however you like, but I recommend that you be careful about dismissing the case out of hand. There's important stuff going on here. As I said, if nothing else, WilmerHale's involvement in the case is suggestive of this.

Do you think attorneys of the caliber of those involved in this lawsuit have worked on it pro-bono despite the fact that the defense was meritless BS? I think if nothing else it is more reasonable to say that a lawyer being paid will be more likely to take a case with less than stellar merit than a lawyer who is not being paid.

Your opinion suggests that Winston & Strawn, Marshal, Gerstein & Borun, and WilmerHale are disreputable firms, which is way off the mark. Those firms have excellent records, and WilmerHale is rated well in the UK as well as the US. In contrast, Games Workshop's lawyer was personally sanctioned twice in his career, once in this very case.

And were this case taking place in the UK, I think it would be a strong bet that it would have been over rather quickly, if you take a look at Professor Bently's expert report. Games Workshop squeaked by with a finding that its products were protected under US copyright laws. Many of them very well may not be in the UK. So the US provides Games Workshop with more protection than it would otherwise have in the UK.

Food for thought.

[gcsmith]

It seems that with these big companies behind them, that CHS is just trying to steal GW IP. Anyone who was aware of the situation should be aware of how CHS was advertising some of their products. I remember when their Doom of Malantai model was advertised as a Doom of malantai, not an alien brain thing, A doom of malantai, blatant IP theft.

Sight, sure GW shouldn't be able to copyright things like maltese cross. But for CHS to keep fighting when all they want to do is make money from GW's hard work just seems petty.

[weeble1000]

It seems that with these big companies behind them, that CHS is just trying to steal GW IP. Anyone who was aware of the situation should be aware of how CHS was advertising some of their products. I remember when their Doom of Malantai model was advertised as a Doom of malantai, not an alien brain thing, A doom of malantai, blatant IP theft.

Sight, sure GW shouldn't be able to copyright things like maltese cross. But for CHS to keep fighting when all they want to do is make money from GW's hard work just seems petty.

Phew...okay...

Chapterhouse did not have anyone behind it at that time. In fact, Chapterhouse Studios did not have anyone behind it when Games Workshop filed a suit on December 21st with no warning whatsoever.

And sure, the prospective product was referred to informally using a name from a Games Workshop book. First, it wasn't offered for sale under any such mark and second, Games Workshop did not sell any such product under that mark. It was a made up word in a book. That is not a trademark.

How in the Hell can you infringe something that isn't a trademark without even using it in connection with a product offered for sale? Bear in mind that this was not part of the Games Workshop v Chapterhouse Studios case. The company that self-described its claim on the lasgun barrel shroud as "crazy" while under oath did not even make that claim in the lawsuit.

I get your point GC, but why don't you think about the implications of being able to claim trademark protection on something that you write in a book? Trademark law would cease to function overnight and neither Chapterhouse nor Games Workshop would enjoy its protections. It cannot work that way.

Have you taken the time to actually look at the claims Games Workshop has made? How about claiming copyright protection on a barrel shroud with an unspecific slanted angle attached to anything vaguely gun-shaped? Even Alan Merrett laughed at that one when he was staring a jury in the face.

If you go to the convenience store to buy a bottle of soda and the clerk tells you that you owe him $1.25 and your pants, are you going to give him your pants just because it is reasonable to pay for your soda? I certainly hope not. Just because Games Workshop made some sensible claims amidst hundreds of bogus ones does not mean Games Workshop should get a free pass on its bogus, overreaching claims.

You yourself say that Games Workshop should not be able to copyright things like the maltese cross. Well, have you considered that this is why Chapterhouse Studios is continuing to fight? Have you considered that it is claims like these, that Games Workshop is now arguing it should have won, that are the reason another highly respected US law firm has taken the case?

[Nabterayl]

I might point out that, while the lay internet tends to go all OMFG LOOK AT HOW GOOD CHAPTERHOUSE'S LAWYERS ARE SQUEEEEEE!!!!!!!!!!, GW's lawyers are just as good. Neither side is getting bullied owing to lack of legal talent here.

[chicop76]

All I got to say I want to see them both burn honestly. CHS for being so brazen before the court case and GW for being GW. I do hope that this case benefit other companies that are doing the same as CHS, but not being so obvious about it.

[Wise Ol Bird]

Read this earlier today and thought of this case
http://lileks.com/bleats/archive/13/1013/102113.html
(Skip halfway down to where he is Talking about B Vampire movies)

... the cheap studios started cranking out the thrillers as fast as they could. It wasn’t as if there were copyrights on ancient concepts; no one owned the idea of a vampire. But no one wanted to stray too far from the proven winner. If you’re going to do monster horror, it had best be set in some undefined mittle-europa locale where the basics of the genre are in full supply: castles, villages, villagers, and gloom. So:

[daboarder]

there's a big difference between, hey heres some sci-fi stuff.....

and **** it this is a tervigon....

I mean tervigon is completely made up it has no historical context.

[chicop76]

If all else fails CHS can say they copied off Star Ship Troopers. Funny how 40k came out after Aliens and looks and sounds very similar to SST.

[weeble1000]

I might point out that, while the lay internet tends to go all OMFG LOOK AT HOW GOOD CHAPTERHOUSE'S LAWYERS ARE SQUEEEEEE!!!!!!!!!!, GW's lawyers are just as good. Neither side is getting bullied owing to lack of legal talent here.

Except:

A) GW's lead counsel has been personally sanctioned twice, so not a stellar career there.
B) Foley and Lardner has a comparatively dimmer reputation than Winston and Strawn and WilmerHale, though not by much. Foley is a top tier firm. It is in the major leagues, but it isn't the Yankees.
C) Four top-rated firms have now worked on this case pro-bono, counting Paulson's counsel. Four. Nab, at some point I think anyone has to admit that the defense case has plenty of merit when bright, successful partners at influential powerhouse firms look at this case over and over and over and keep saying, "yea, this is worth our time and investment," and when the pro-bono committees at those firms approve the case and approve millions of dollars of work.

It is fair to say that Games Workshop is being represented by a large reputable firm, but plaintiff's defense counsel is not a terribly good representative of that firm.

[daboarder]

If all else fails CHS can say they copied off Star Ship Troopers. Funny how 40k came out after Aliens and looks and sounds very similar to SST.

have you read starship troopers chico? because honestly theres a shed tonne of difference between that and 40k.

So SM's, genetically modified superhumans, who are immortal and live only for war....yeah thats not in Heinlein

And Nids? Those are dinosaurs in space, they are based upon lizardmen more than they are xenomorphs or arachnids, hell its in their name TYRANid

not to mention that there is a massive difference between a homage and a rip.

again, please point to me where the tervigon ever existed before GW published it?

oh and remember GW has a new head of legal department.

[Learn2Eel]

The last two pages of this thread = http://www.midwestsportsfans.com/wp-content/uploads/2011/06/mj-laughing.gif Not gonna say why though :p

[lattd]

What intrigues me is why are chapterhouse on their 4th law firm? are they being dropped?

[Rev. Tiberius Jackhammer]

What intrigues me is why are chapterhouse on their 4th law firm? are they being dropped?Well, all 4 have been working pro bono (for free). Legal defenses are expensive - more likely the other 3 just couldn't afford to stay on pro bono any longer.

[Mr Mystery]

Quick question about Pro Bonio stuff in general....

Where you obtain a Pro Bonio defence counsel, are they allowed to drop out at any pot? Note, categorically not stating this is what may have happened to CH. This is yet another open question to understand Pro Bonio representation.

So, imagined scenario....

Pro Bonio counsel starts defense. Finds something about case they feel will swing it for the other side. Are they allowed to pull out of the Pro Bonio, or do they have to stay the course until that trial is done?

[lattd]

The only reason I know a solicitor could cease to act is if there is a conflict of interest, note this is in England and wales. This is why i raised the question. Have the lawyers found something that means they have misled the court asked chapter house if they can reveal this CH obviously say no and then the law firm has no choice but to withdraw.

[weeble1000]

No lawyers nor any firms have withdrawn from the case other than those that no longer work for the firms. The list is very short, even between both parties, and amounts to a handful of associates that have left their respective firms for reasons unrelated to the case. For example, one of the Winston and Strawn associates first on the case left the firm to take a job at Google about a year and a half in.

I repeat, not a single lawyer has withdrawn from the case for reasons other than discontinuing employment with their respective firm, which requires termination from the case.

So Chapterhouse Studios has not actually lost any counsel. In fact, the lead Winston and Strawn counsel, Jennifer Golinveaux, is still on the case, participated in the trial, and was interviewed about the outcome of the case by Law 360.

Marshal, Gerstein, and Borun was brought into the case when Games Workshop filed its second case against Chapterhouse Studios, which was consolidated with the first case. Imron Aly, Bryce Cooper, and several other W&S attorneys from the Chicago office were brought into the case about 2/3 the way through. Imron Aly gave the opening statement and closing argument at trial.

Different lawyers are good at different things, and any lawyer that is doing pro-bono work probably also has billable work going at the same time for other clients. When Games Workshop filed a second lawsuit against Chapterhouse, the Court ordered an additional 6 months of discovery, which requires a great deal of work. It was at that time that Marshal, Gerstein, and Borun were retained by Chapterhouse, and note also that Julianne Hartzell, the partner at Marshal on the case, participated in the trial, taking several witnesses and crossing Alan Merrett.

Now WilmerHale has been brought into the case at a time when an appeal process is likely, and additional counsel from Winston and Strawn has also been added to the case. Again, different lawyers are good at different things. Mr. Tompros (the partner at WilmerHale on the case) has appellate experience according to his bio.

So, to repeat, no firm nor any lawyer has withdrawn from the case other than for reasons of employment.

[chicop76]

have you read starship troopers chico? because honestly theres a shed tonne of difference between that and 40k.

So SM's, genetically modified superhumans, who are immortal and live only for war....yeah thats not in Heinlein

And Nids? Those are dinosaurs in space, they are based upon lizardmen more than they are xenomorphs or arachnids, hell its in their name TYRANid

not to mention that there is a massive difference between a homage and a rip.

again, please point to me where the tervigon ever existed before GW published it?

oh and remember GW has a new head of legal department.

They couldn't rip off material too blatant like space and war craft. Even still characters like Sentry, Hyperion, and Gladiator for example are direct copies , but none of them work for the daily planet. Of course some story and characters woukd be changed to actually look original.

All Im saying it's silly for GW to steal and use material from other sources and than come down on others for doing the same. I think they should had spend a lot of time sueing Blizzard than CHS.

[AirHorse]

Are you seriously suggesting GW should've gone after blizzard? :/

[chicop76]

Are you seriously suggesting GW should've gone after blizzard? :/

Not really, but I would had more respect for them if they did. If they went after blizzard and than went after CHS I would be more on GW side on this. Not to say I am on any side. I hate them both, but would had more respect for GW.

[AirHorse]

Don't really understand how you can compare the two situations if I'm honest, they are totally different!

I also find it funny that there is such hate at a company for defending its IP and equally so much hate for another company for trying to find gaps in the market.

Chapterhouse overstepped the mark with some things, that is clear. But equally there was a gap in the market, I am fairly sure we aren't going to see many new units invented that don't have models from GW now!

[Mr Mystery]

I dislike CH due to the shonky nature of his sculpts, and the dude's general 'my poop don't stink' attitude, as demonstrated on Dakkadakka on numerous occasions....

[chicop76]

My point is if Blizzard made Warhammer Fantasy instead of Warcraft and only made cosmetic differences than GW would be up their butts. Now GW dropped the ball with Blizzard and now losing out because of it.

I had no problem with CHS until GW told them to stol and next you km ow yoh start seeing space marine and other names being used. On the sird instead of high tech marine pads.

CHS decided to anger GW instead of playing nicely.

On the bright side companies like Zealot miniatures and Battld Wagon really bdenefit from CHS taking a stand.I don't have a problem with CHS making space marine pads. By doing so both companies benefit since you still buy GW producs to use what CHS is selling. My issue with them is to make money off GW and tell GW frick off. Fighting GW in court is the right thing for them to do, but the stuff they did in the months before they went to court was stupid.

[Rev. Tiberius Jackhammer]

Quick question about Pro Bonio stuff in general....This is actually the first time I've commented on a spelling thing on the internet :P
http://i262.photobucket.com/albums/ii82/racheloffley/Compton-BonioAdvert005-1.jpg?t=1258984418
Pro Bonio!

[Mr Mystery]

Oh it was quite deliberate!

Bonio...like him out of U2. Yeah. The pretentious, self righteous little...oh hello language filter! :p

[chicop76]

Oh I hate GW for crapping on retail stores, bit stores, etc. Reminds me of Paladium Books, but worst.

[Deadlift]

I dislike CH due to the shonky nature of his sculpts, and the dude's general 'my poop don't stink' attitude, as demonstrated on Dakkadakka on numerous occasions....

See I swing the other way here, whilst I don't like the sculpts that CH have put out much and personally think they shouldn't have gone as far as they did with copying GWs IP, I do have respect for the chap from CH who has posted here on occasion. To be fair at least he has tried communicating with us as the online community which as we know GW will not. I love GWs products for the most part though and no amount of 3rd party producers can convince me they produce better models than GW. They just don't.

I would like to know though just how much (if any) effect this case has had on GWs release schedule. It's sure as hell been releasing stuff thick and fast in the last 12 months and if this is a partial result of this case then us as the consumers have benefitted greatly.

[AirHorse]

I would like to know though just how much (if any) effect this case has had on GWs release schedule. It's sure as hell been releasing stuff thick and fast in the last 12 months and if this is a partial result of this case then us as the consumers have benefitted greatly.

Totally agree with this! Regardless of the fact that I think GW should be allowed to protect their IP, I think we can all agree that the recent releases have been brilliant, and that surely has to have been a result of this case!

[Mr Mystery]

If indeed it has been an influence (far as I'm aware, it's anecodtal evidence both ways on this one!)

[Battleworthy Arts]

As much as I like to see GW get a lesson handed to them... Im not sure I like this one. I don't like the precedent it sets, and Chapterhouse definitely qualifies as "cheap knock-off" stuff.

[weeble1000]

Hold the phone. There's a new surprise.

Donald R. Steinberg (http://www.wilmerhale.com/don_steinberg/) is on the case.


Donald Steinberg is the chair of the firm’s Intellectual Property Department, a member of the firm’s Management Committee, and a member of the Intellectual Property Litigation Practice Group and FinTech Group. He joined the firm in 1994.

This is no joke. Donald Steinberg being on the case is a really big deal. Here is a Law 360 article about Don (http://www.law360.com/articles/62659/ip-practice-wilmerhale-). And Here is another one (http://www.law360.com/articles/102896/q-a-with-wilmerhale-s-donald-steinberg) that is a Q&A with him.

The first article says of the Broadcom v Qualcom litigation "The WilmerHale team working the case was led by William Lee, Donald Steinberg and others, and in February, the jury returned a verdict of non-infringement on all claims."

William F. Lee is WilmerHale's managing partner and a veritable legend in IP litigation. When I mentioned that WilmerHale represented Apple, it was Mr. Lee who was on the case.

This is really big news. Really big. This case had profile before, but I think it is about to become high profile in mainstream IP litigation.

[Denzark]

Unless you have some pornographic attraction and serious fanboi level knowledge of the lawyers of the IP world, the fact that CHS has managed to retain Caspar D. Kugelwanger III as counsel, isn't going to mean that much. It is reasonable to assume the multi-million pound company wouldn't hire any geek off the street, so the fact some internet lawyer like weeby tries to tell us that CHS new lawyers has made the legal situation the equivalent of like putting Mike Tyson in the ring with Troy Verne, is fairly irrelevant to the common man.

[weeble1000]

Well, Denzark, that's not what I said. All I said was that Don Steinberg being on the case is a big development, and it is.

The man is the chair of the intellectual property group of WilmerHale. He is on the firm's management committee. He has been involved in some of the most seminal intellectual property cases of the past 20 years. Donald Steinberg has a reputation that speaks for itself. I linked you a news article on a mainstream legal news website that was just a Q&A with Don Steinberg, because a question and answer with the man is by itself newsworthy.

Think what you want about the case, but as we sit here today, a man whose presence on a case makes news is now representing the defendant. You don't have to know anything at all about US IP litigation to understand why that is something significant.

[Bigred]

Blood of Kittens jumps onboard:

It ain’t over for Games Workshop and… (http://bloodofkittens.com/blog/2013/10/22/network-news-games-workshop-and/)

...It had been assumed that if anyone was going to file an appeal it would be GW, but now all the evidence points to Chapterhouse making the move. The evidence for this move comes from Chapterhouse having a new top flight firm jumping in: WilmerHale. To put things in perspective this is the 14th most profitable law firm in the US, and is constantly ranked top 20 by fellow American lawyers. The lawyers selected from WilmerHale specialize IP cases, having dealt with cases ranging from cell phones to patents on medical devices. These lawyers are used to dealing with complex IP issues, and my intuition says a firm like this doesn’t jump in, unless they saw broad implications if GW was left to win even a few trademarks. This case now has the potential to set some serious precedents, because we are just about to enter the legally nebulous 3D printing revolution and being at the fore front of developing case-law on these complicated issues is worth it for all the firms involved....

Here's the Council who is taking on Chapterhouse's appeal (http://www.wilmerhale.com/don_steinberg/):


Donald Steinberg is the chair of the firm’s Intellectual Property Department, a member of the firm’s Management Committee, and a member of the Intellectual Property Litigation Practice Group and FinTech Group. He joined the firm in 1994.

Practice

Mr. Steinberg’s practice focuses on advising clients on intellectual property matters, obtaining patent and trademark protection, and intellectual property litigation.

With patent advice and prosecution, Mr. Steinberg’s clients include designers and developers of analog, digital and mixed signal devices; computerized database and searching systems; operating systems; networking systems; electromechanical devices; internet-based applications and medical devices.

Mr. Steinberg has experience with patent and copyright litigation in the federal courts, involving various aspects of computer software and hardware, computer networking, electronic devices, wireless communications, video compression, semiconductor manufacturing and computer security. His recent experience includes being part of the teams that:


filed an amicus brief in the Federal Circuit in the In re Bilski case, and was one of two amici that participated in oral argument;
obtained summary judgment of non-infringement, and a summary affirmance by the Federal Circuit of a patent relating to electronic image storage systems;

obtained a jury verdict of non-infringement of two patents relating to video compression, with the trial court also finding the patents unenforceable for failure to disclose them to a standards-setting organization and finding the case exceptional, findings affirmed by the Federal Circuit.

With trademark matters, Mr. Steinberg’s clients include a variety of computer software and networking systems companies, as well as clients in a variety of other fields, including management consulting and consumer products. He has extensive experience before the Trademark Trial and Appeal Board, including successful trials of opposition and cancelation proceedings involving medical devices and games.

Honors & Awards

Recognized as a Massachusetts leader in the intellectual property field in each edition since 2005 of Chambers USA: America’s Leading Lawyers for Business

Named a "New England Super Lawyer” (formerly "Massachusetts Super Lawyer”) in the 2004-2013 editions of Boston Magazine

Selected by peers for inclusion in the 2013 and 2014 editions of The Best Lawyers in America for his communications law, litigation: intellectual property, patent law and copyright law practices

Selected as a 2013-14 "IP Star" by Managing IP magazine, a guidebook that identifies leading lawyers in the United States

[DrLove42]

Its ridiculous CHS are appealing. They won basically everything except for the models that were blatantly copied.

No offense to anyone from America, but your legal system is batsh** insane

[weeble1000]

Its ridiculous CHS are appealing. They won basically everything except for the models that were blatantly copied.

No offense to anyone from America, but your legal system is batsh** insane

Pardon me if I do not consider the right to appeal, which you also enjoy, to be batsh** insane. This is a pretty fundamental tenant of justice in a constitutional democracy. You get at least one shot, mandatory, at an appeal. Thereafter, the Courts can decide whether the issue is important enough.

Chapterhouse's decision to exercise that right (if it decides to do so) is not a reflection on the merits of that aspect of the system.

[darthpuyang]

Its ridiculous CHS are appealing. They won basically everything except for the models that were blatantly copied.

No offense to anyone from America, but your legal system is batsh** insane

yup you got it, when there is profit to be made, these people are just relentless

[DrLove42]

Pardon me if I do not consider the right to appeal, which you also enjoy, to be batsh** insane. This is a pretty fundamental tenant of justice in a constitutional democracy. You get at least one shot, mandatory, at an appeal. Thereafter, the Courts can decide whether the issue is important enough.

Chapterhouse's decision to exercise that right (if it decides to do so) is not a reflection on the merits of that aspect of the system.

Right to an appeal in itself is not insane. It is, as you say a fundamental requirement of the system

That you'd consider needing an appeal when you basically won last time, and most right minded people think you don't have a case anyway.....thats insane

[Mr Mystery]

I am going to laugh my bollocks clear off if/when GW win this one.

Chapterhouse. Akin to the Wikileaks of the nerd world....

[DrLove42]

I am going to laugh my bollocks clear off if/when GW win this one.

Chapterhouse. Akin to the Wikileaks of the nerd world....

Not really. Wikileaks has the moral high ground some times...

[Rev. Tiberius Jackhammer]

That you'd consider needing an appeal when you basically won last time, and most right minded people think you don't have a case anyway.....thats insaneIs it really that surprising that some people disagree with you on this really subjective matter, and that people who strongly believe in their legal stance (remember, CH obtained legal counsel before they produced any miniatures) want to defend that stance?

[Psychosplodge]

That you'd consider needing an appeal when you basically won last time, and most right minded people think you don't have a case anyway.....thats insane

What do you expect? It's a country founded by people that didn't like following the rules...

[weeble1000]

Right to an appeal in itself is not insane. It is, as you say a fundamental requirement of the system

That you'd consider needing an appeal when you basically won last time, and most right minded people think you don't have a case anyway.....thats insane

So now we've come around to the idea that Chapterhouse "basically won" the lawsuit?

A decision to file an appeal (and Chapterhouse has not yet filed a notice of appeal, mind) involves risk assessment, just like deciding to defend a suit, take settlement positions, file a lawsuit, argue positions, etc. etc. We do not know what Chapterhouse's risk assessment is, so bear that in mind.

Chapterhouse did lose on some issues. Generally, if the risk of losing ground you have already gained is low, and the prospect of succeeding in an appeal is high, the risks might be acceptable compared to the potential rewards. If the prospect of losing ground you have gained is high, and the risk of succeeding an appeal is low, the risks might be unacceptably high compared to the value of what you might gain and the likelihood of achieving it.

That's just basic risk assessment, and you do it every day. I drove my car to work today, which involves risk. The risk of an accident is pretty low, and the risk of significant bodily harm even lower. I have mitigated that risk with auto, health, and life insurance, and I can further minimize the risk by driving responsibly. What I stand to gain is pretty significant, as I otherwise do not have a means of getting to my office. It is really important for me to drive to work, so today I took that risk.

Put yourself in Chapterhouse's shoes. Try a little empathy. I'm not trying to be patronizing, I mean it seriously. Imagine that you agree with Chapterhouse's positions, which understandably might be hard, but you can read the briefs to get an idea about how the defense views the case. Imagine what Chapterhouse's interests might be, both short term and long term. Then think about the potential risks and rewards of an appeal, keeping in mind that Games Workshop may decide to file an appeal even if you do not. Seriously, give it a try.

[daboarder]

Oh it was quite deliberate!

Bonio...like him out of U2. Yeah. The pretentious, self righteous little...oh hello language filter! :p

you mean this guys

http://en.wikipedia.org/wiki/Bono

??

[Psychosplodge]

you mean this guys

http://en.wikipedia.org/wiki/Bono

??

The tax exile that tells poor people to donate more money to the poor while living a millionaire lifestyle?

[daboarder]

That's the one

[RuneBrush]

First time I've replied to any posts on here (long time lurker). Are the new law firm doing this pro-bono too? If not then am I just being very cynical in this news occurring at the same time CHS would be getting the money through from their kickstarter?

[Herzlos]

They must be pro-bono, the kickstarter money likely wouldn't be enough to pay for the new legal team, since it's probably only about a week's rate.

I imagine they are stepping up to represent what they see as an easy win that'll set some new precident; gaining them some kudos and using some of their pro-bono allowance.

[weeble1000]

First time I've replied to any posts on here (long time lurker). Are the new law firm doing this pro-bono too? If not then am I just being very cynical in this news occurring at the same time CHS would be getting the money through from their kickstarter?

Herzlos is right. There's no way Chapterhouse could afford to pay two partners, two associates, and however many paralegals from WilmerHale.

Also note that a new lawyer from Winston is on the case, who specializes in appellate work. Unless WilmerHale is in just for the post-trial motion practice (which is unlikely), the firm joined the case to do an appeal, should Chapterhouse decided to appeal. Remember, neither party has filed a notice of appeal, although Chapterhouse has said earlier in the thread that it intends to appeal. This is not terribly unusual, as judgment is not final.

The case went to trial, the jury rendered a verdict, the Court entered preliminary judgment consistent withe the jury verdict, and now the parties are renewing motions for judgment as a matter of law, seeking to alter the Court's judgment. When the Court rules on those motions, the case will effectively be over, and the parties will have 30 days under the Federal Rules of Civil Procedure to file a notice of appeal.

That is the lay of the land right now, with the addition of motions for costs filed by both parties (not fees, just trial costs), and a joint status report regarding injunction.

The injunction part is important. The Court has already entered preliminary judgment of $25,000.00 in damages, but the Court is also responsible for equitable relief, which is what the injunction is about. The injunction could prevent Chapterhouse from engaging in certain practices, like selling products found to infringe GW's copyrights. The injunction dispute is about interpreting the jury verdict, which is rather difficult to do as the verdict form provides very little data. The verdict form only had two questions for each claim (Infringement [yes/no] and Fair Use [yes/no]). Wrapped up into those questions are a great deal of fact findings which, combined with rulings by the Court, could mean a lot of different things.

For example: If GW claimed that Chapterhouse's product and website photo in combination constituted an act of infringement, what is the proper injunction? Is Chapterhouse not allowed to sell the product, is Chapterhouse not allowed to display the image, is Chapterhouse not allowed to sell the product on its website in combination with the allegedly infringing image?

This case is a can of worms, and if it goes up on appeal, it could get very messy and potentially very embarrassing for Judge Kennelly.

[daboarder]

Always love to see american protectionism at work.....oh hello there free markets, what was that, no this is a one way street.....

[lattd]

The proper injunction is to remove all infringing products, if that means pictures have to be removed and products removed that's how far it goes, not sure how that's hard?

[weeble1000]

The proper injunction is to remove all infringing products, if that means pictures have to be removed and products removed that's how far it goes, not sure how that's hard?

That's certainly a way it could go, but the potential difficulty comes from the nature of the claims, the verdict form, and the Court's rulings. You see, Games Workshop's claims were all...let's say cafunctitated. The Court's rulings were at times vague or contradictory, and the verdict form is rather unspecific.

The products may very well not infringe, if you take my meaning, because the claims made by Games Workshop generally involved both the product and the website photos. Now, the Court allowed GW to make that argument, and I think it is reasonably clear that Judge Kennelly considered the website photos to be part of the products.

But, if the photos are part of the products and part of what makes the products infringing, do the products cease to be infringing when not paired with the photos? In such a case, they would not be the same as the accused product, and in many cases Games Workshop specifically referred to the colors of the website photos when making its case of copyright infringement. The actual products have no color. Do the products only infringe when colored in similar ways to the coloring of Games Workshop's painted versions of its own uncolored products? Does a painted miniature constitute a separate work of art? Does a photograph of a painted miniature constitute yet even another separate work of art? Keep in mind that even a derivative work is a separate and distinct work of art, simply one that is also owned by the holder of the root copyright.

If such is the case, is it appropriate to prevent Chapterhouse from selling the unpainted products paired with images of the products unpainted and unassembled? The verdict form did not break out those various issues, and would have if the Court had accepted the defendant's proposed verdict form. But the Court described said verdict form as "cruel and unusual punishment." Yet for each individual claim, the proposed verdict form was very analogous to what one typically uses in a copyright infringement case. Only, most copyright infringement cases do not involve 160+ claims. Is it appropriate to limit a verdict form based solely on the number of claims involved, rather than the questions of fact at issue?

Bear in mind that Games Workshop asserted no physical exemplars of any of its products (when such products were actually extant), even thought the Court ruled that Games Workshop needed to produce the "best available exemplar" of its allegedly infringed works. The Court said that if it was three dimensional, Games Workshop needed to produce a three dimensional exemplar, which Games Workshop did not do. In other words, Games Workshop may only have, according to the Court's own rulings, asserted its images of the painted products. There's no way to know how the jury addressed those issues of fact, because the verdict form only says Infringement (yes/no) Fair Use (yes/no). One is not supposed to go about trying to interpret what a jury probably did. One only knows the verdict the jury rendered, which is encompassed solely in the verdict form.

Games Workshop could also have accused only the unpainted, unassembled Chapterhouse products, but GW chose not to do so. GW made that choice. If GW had accused only the unpainted, unassembled products, this specific issue would not exist and it would be abundantly clear that the actual, physical products infringe. Again, GW made that choice and the Court chose to accept GW's verdict form. GW also chose to assert as many claims as it did. These are all choices GW made, and the complexity of the case is solely the result of GW's efforts to make it complex and ambiguous.

Look, the case is just not as simple as you'd like it to be. I'm not saying what the injunction is likely to be, but considering the potential factors involved in determining an appropriate injunction exposes some of the intricacies of the case and the serious questions that are raised by them, which have extreme implications beyond this case.

[weeble1000]

Always love to see american protectionism at work.....oh hello there free markets, what was that, no this is a one way street.....

Do please remember that GW benefited from being able to judge its copyright ownership under US law. Had the Court chosen to apply UK law, GW would probably not have had even half of the copyrights it asserted against Chapterhouse.

Facts, they are a @&$%#.

[lattd]

Erm how do you get that ? English copyright is easier to prove than American copyright, as you do not have to register it you just have to show you came up with that expression of the idea first. Please stop saying UK law there is no such thing, you have the English and welsh judicial system and then the Scottish and Irish systems.

[weeble1000]

Erm how do you get that ? English copyright is easier to prove than American copyright, as you do not have to register it you just have to show you came up with that expression of the idea first. Please stop saying UK law there is no such thing, you have the English and welsh judicial system and then the Scottish and Irish systems.

A: Copyright laws are not very different between Berne Convention countries. Nowhere that I know of requires registration of a copyright. That's pretty fundamental, so you might want to look into that in a bit more detail.

B: The issue is with what qualifies for copyright protection in England. Toys qualify for design right protection, but not copyright protection. Essentially anything mass-produced for consumption as something other than art does not fall under English copyright law, whereas is can in the US. An extremely qualified expert on the matter, Professor Lionel Bently of Cambridge, who advised the drafting of intellectual property laws opined that as mass-produced toys, many of the works asserted by GW would not fall within copyright protection. As Design rights last for 5 years, and can be renewed a few times to something like 15 years (I do not know the specifics), and because GW does not have any such registrations, most of the products GW asserted would, under English law, likely qualify for absolutely zero protection and could be freely copied by anyone.

So, yes, under US law, GW enjoyed far greater protection than it would have if English law had controlled. That's how I get that.

[lattd]

Except there is unregistered design rights and copyright for an sculpture which these are arguably are, so I still believe they have better protection under English law, you can register copyright in America and it's valued more than unregistered copyright where as in England copyright just exists.

[weeble1000]

Except there is unregistered design rights and copyright for an sculpture which these are arguably are, so I still believe they have better protection under English law, you can register copyright in America and it's valued more than unregistered copyright where as in England copyright just exists.


A copyright registration gets you nothing except the ability to collect statutory damages, and only because the public is on notice that your work exists. A registered work is not "better" or "more protected." A registered work in the US just opens up the possibility if stach damages. It is entitled to the exact same protection as an unregistered work. You can still get lost profits, unjust enrichment, and equitable relief. Nothing else is different. A registered work does not even establish a presumption of validity, scope, etc. it only establishes a presumption of a date of creation and ownership.

[Mike Dunford]

Weighing in a bit late - I've been tracking the case closely, but the 2L course load is pretty intense, so I haven't had as much of a chance to either talk hobby or work on projects much lately.

FWIW, here's my current background: 2nd year student (of 3, so at about the halfway mark) at a decent law school. I'm focusing on IP law both as an area I want to practice in after graduation (science degree, so patent bar eligible) and on an area that I enjoy studying (so I'm taking IP classes, working as a research assistant for an IP-focused faculty member, and on a competition team that participates in national trademark law contests). I'm NOT a lawyer, but I do know a little bit about what's going on with this case.

This case is a complex one, and there's a lot here. I've discussed the case with my faculty advisor, and she's strongly urging me to use the case as the subject for a lengthy academic paper I have to write next semester. In other words, she agrees that there is a great deal in this case that is of potential academic and legal interest. And that was her advice before Don Steinberg and WilmerHale entered the case.

I don't think that weeble and I are in full agreement on the overall strength of the CHS case, but he's right when it comes to the complexity and the likely lifespan of this case. Based on everything that we've seen so far, it appears that the jury verdict marked the end of the beginning of this case, not the beginning of the end. There are a large number of complex issues that are left outstanding. Given the entry of high-powered counsel on the CHS team, it is almost unimaginable that this will not go to appeal. (When and if it does, I suspect that both sides are hoping that Judge Posner will be one of the Circuit Judges assigned to the case.)

But - as weeble correctly noted - there's still a lot that will have to happen before this case gets to the point of the appeal:

1: There are pending motions for costs from both sides. Given the governing law, CHS is extremely unlikely to prevail on their motion for costs. However, their agressive pursuit of costs may, when combined with their opposition to the GW motion for costs, either reduce or eliminate CHS's likely liability there. This is important, because the costs (not attorneys' fees, but witness expenses, transcript fees, and so forth) that GW is seeking dwarf the $25,000 that they were awarded. If GW wins the costs motion, I believe it may be possible that CHS's right to appeal might be conditioned on their ability to post a bond that includes that total, which may be difficult for them to do (and which I do not foresee pro bono counsel doing on their behalf).

2: There are pending JNOV motions from both sides. JNOV motions are rarely granted, but this case might (just conceivably) be one of the exceptions. Portions of the jury verdict are difficult to reconcile with other parts of the jury verdict unless the jury either misunderstood the law. One example of this is the SM shoulder pads. The jury found infringement of some of the most basic and unadorned shoulder pads, but outright non-infringement on a number of shoulder pads with designs. It's tough to see how that combination of verdicts is consistent with a copyright holder's rights over derivative works.

3: The injunction still needs to be finalized. This is important to determine what CHS can and can't do in the short term, and will create issues on appeal.

4: It is possible that the trial court may order another round or two of attempts at mediation before the case moves to appeal, but I think that's unlikely. It's relatively obvious that both sides have strong incentives to not settle at this point. Chapterhouse would normally have a fairly strong motive to settle right now, but most of that motive is removed by the pro-bono representation. They're not shelling out the massive - truly massive - attorneys' fees that are being expended on their behalf at this point, and even the relatively low liability resulting from the jury verdict could have huge effects on their viability moving forward. GW, meanwhile, can't settle for anything that would let Chapterhouse continue to produce the products that were found to infringe without risking opening the floodgates.

[Mike Dunford]

GW included a screenshot from this thread in papers filed earlier today in the case - the post where Chapterhouse announced that they were intending to appeal. I'll try to upload it to Scribd in the next day or so.

[weeble1000]

GW included a screenshot from this thread in papers filed earlier today in the case - the post where Chapterhouse announced that they were intending to appeal. I'll try to upload it to Scribd in the next day or so.

And in typical GW fashion, it is grossly misleading and out of context. GW argued that Chapterhouse stated an intention to appeal, thus admitting that it lost the case and would be otherwise forced out of business. In support of that, GW sliced up a screen shot of just a one sentence confirmation about the intent to appeal in answer to someone's question without including the preceding post which described why Chapterhouse intended to appeal.


The Jury in this case, seems to have given GW some "winners" to appease them, that is how our side saw it, and there was a large amount of issues that the courts caused pertaining to evidence that should have been in front of the jury as well. This is why we are appealing.

So, yea, grossly misleading. That's GW. Drum up an argument, flash something real quick, hope the Court is too lazy to look at it closely, withhold documents until you get caught, then do it again. The appellate court will have a field day.

[Mike Dunford]

And in typical GW fashion, it is grossly misleading and out of context. GW argued that Chapterhouse stated an intention to appeal, thus admitting that it lost the case and would be otherwise forced out of business. In support of that, GW sliced up a screen shot of just a one sentence confirmation about the intent to appeal in answer to someone's question without including the preceding post which described why Chapterhouse intended to appeal.

I respectfully dissent. I probably would not have put things exactly the same way that GW did in the reply (but it's worth pointing out that GW did not say that the verdict was going to force CHS out of business). Nevertheless, the basic point is sound. If you announce an intent to appeal, you probably did not prevail at trial.

I would personally have stopped short of assigning motive to the announcement that there would be an appeal. (As an aside, it would not shock me if the attorneys have a discussion with their client about the perils of making public announcements about filings that have yet to happen in the next couple of days.) But my reservation is simply because I don't think the motive is all that relevant - the fact of the announcement is enough. That the appeal is planned is enough, in and of itself, to show that there is a problem with Chapterhouse declaring themselves the prevailing party.


So, yea, grossly misleading. That's GW. Drum up an argument, flash something real quick, hope the Court is too lazy to look at it closely, withhold documents until you get caught, then do it again. The appellate court will have a field day.

On this? The 7th Circuit will have a field day if Chapterhouse prevails on its costs motion. Aside from that, not so much.

[weeble1000]

On this? The 7th Circuit will have a field day if Chapterhouse prevails on its costs motion. Aside from that, not so much.

By have a field day I meant the case as a whole, wherein GW generally played a little 'loose' to put it mildly, and the Court's rulings were similarly...loose. Like not granting summary judgment on a claim when a 30(b)(6) deponent that is the sole witness on copyright infringement says, "This thing is a copy of our idea, that's the best I can come up with." Stuff like that.

[Mike Dunford]

By have a field day I meant the case as a whole, wherein GW generally played a little 'loose' to put it mildly, and the Court's rulings were similarly...loose. Like not granting summary judgment on a claim when a 30(b)(6) deponent that is the sole witness on copyright infringement says, "This thing is a copy of our idea, that's the best I can come up with." Stuff like that.

Would you mind pointing me to the claim you're talking about? I'm at the brain-leaking-from-ears part of the semester right now, and I'm having a hard time finding it on my own.

That said, denial of summary judgment is non-appealable after trial on the merits. (The theory is that if the plaintiff genuinely fails to produce evidence to support each required element of the claim at trial, the appropriate post-trial remedy is a JNOV motion followed by appeal.) Even if the district judge erred in not granting summary judgment, it's highly unlikely that CHS' legal team will raise that as an issue on appeal.

That's not to say that the appeals court won't review some of the issues that were initially raised in the denied summary judgment motions. I fully expect, for example, that there will be a fairly in-depth review of the district court's treatment of the fair use defense and/or how the court handled functionality concerns regarding the trademark arguments. But that review will take place in the context of the appeal of the judgment, not as an appeal of the summary judgment denial, and sufficiency of evidence will be reviewed based on the total presented to the jury, not on what was produced for the SJ motions.

[Mike Dunford]

There was a bunch of movement in this case yesterday. Judge Kennedy denied both parties' motions for new trial or judgment as a matter of law. He also denied both parties motions for costs, which is a very big win for Chapterhouse. Finally, he entered an injunction against Chapterhouse based on the one that the parties submitted earlier.

I'm in finals period, and won't have a chance to read or pull the documents until tomorrow, but will posts links once I do. I'll double-check this later, but I believe this sets the stage for an appeal, and expect that we will probably see Chapterhouse (assuming that they still plan on appealing) file their notice of appeal shortly.

[Mike Dunford]

Chapterhouse filed its notice of appeal earlier this week. Their opening brief is due in early February, and I'll post a copy sometime shortly thereafter.

ETA: For those of you who might be interested in how the case is likely to affect the aftermarket industry in the coming years, the appeal will be worth watching. I'm still not entirely certain what the issues on appeal will be, but it's clear to me that the attorneys working for Chapterhouse see the potential for something important to come out of the case.