Chapterhouse Motion to Dismiss

[TSINI]

Sacre Bleu!!

[weeble1000]

So my previous post was an unbiased presentation of the content of Chapterhouse's motion to dismiss. As the document is publicly available, please feel free to read it. The document isn't very long, but the above post pretty well lays out the content of the motion (technically the memorandum in support of the motion).

Now I'd like to offer my personal opinions about the strategic importance of this motion as well as how I think it will impact the case going forward.

In short, it was a very good move on the part of Winston and Strawn. A motion to dismiss is neither extraordinary nor unexpected, but it was argued well, argued for the right reasons, and well timed.

Why is a motion to dismiss a good idea at this point? First, it is a strong shot across the bow. Mr. Moskin (lead attorney for the plaintiff) was well aware that Winston and Strawn is representing the defendant before this motion was filed. He had notices of appearance and an extension request. However, less than a week before Chapterhouse is supposed to provide a response, which one might expect to be a blanket denial of all claims, the court gets a motion to dismiss instead. This is a strong indication of two things. First, Chapterhouse isn't paying Winston and Strawn. Second, Chapterhouse is going to fight this thing. What this communicates to Mr. Moskin is that he's in for a world of crap.

Moskin is a brand new hire at Foley and Lardner, having made a lateral move from another large firm, White and Case in 2009. Inside of Mr. Moskin's first year at Foley and Lardner, he's managed to take a small case for a relatively inconsequential client that was supposed to be a quick scare 'em and settle deal and turn it into a knock down drag out fight with one of the largest IP law firms in the country. He's costing his client more money than it had expected and he's making the firm look bad. It doesn't help that Moskin's reputation in Chicago isn't the best and that the court is well aware that he's been attempting to intimidate the crap out of a small defendant with no money. Further, Winston and Strawn's strategic citation of precedent helps to characterize Moskin and his firm in this light, but more on that in a bit.

Alright, so that's the timing, but what about the content? Why is a motion to dismiss based on lack of specificity a good idea? First and foremost, it directly attacks the character of Games Workshop's complaint. One of the themes inherent in the motion is that Games Workshop is attempting to use the threat of litigation in order to leverage favorable settlements. This position allows Winston and Strawn to come right out and say that the complaint has no basis; that it's a ridiculous waste of the court and Chapterhouse's time as it currently stands. All 106 of Chapterhouse's products, only one of which is specifically referred to, are essentially claimed to infringe every copyright that Games Workshop has. As the motion puts it, "Which of the Plaintiff's alleged works is this product alleged to have infringed? How? Must Defendant take discovery concerning the entire universe of Plaintiff's copyrights?"

No judge wants to see something like this. The law is clear about the need to provide a short, concise statement of claims and there's reams of precedent directed towards this point. But speaking of precedent, Winston and Strawn was very careful about which precedent it cited and the content of those citations. In support of this point, Winston and Strawn cites that "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." And Winston and Strawn further cited notable copyright authority Bill Patry, "decrying, 'blunderbuss complaints...used as leverage to obtain settlements,' and stating that, for example, 'if plaintiffs know 669 sound recordings have been infringed, they owe a duty of fair notice to specify each one.'" (emphasis added)

In addition to being on point precedent, these citations help to build the impression that the plaintiff is aggressively attempting to intimidate the defendant and has not been treating the defendant with much in the way of fairness or respect. This would be evident to the judge absent these citations, but the point is that Winston and Strawn knows what it is doing and has a clear angle in which it is approaching this case.

Arguing lack of specificity also allows Winston and Strawn to attack the principle concept that embodies Games Workshop's case and its legal strategy in general: derivative infringement based on generalized, wide-sweeping, open-ended copyrights. The motion includes not one, but two sections specifically devoted to this particular issue. Furthermore, the motion brings up the wonderfully on point precedent of FASA v Playmate Toys. Again, the thing to take away from this is that Winston and Strawn knows what it is doing and it is serious about aggressively litigating this case. Not only is this an excellent argument to the Court, but it sends a clear message to the Plaintiff that Chapterhouse is not intimidated and that it intends to aggressively respond to Games Workshop's complaint in a way that has the maximum potential to both erode the strength of Games Workshop's copyrights and its ability to pursue similar litigation in the future.

In this way, the motion is less a firm stance and more of a punch back. Without a doubt, neither Mr. Moskin nor Games Workshop were expecting this. Moskin's partners are wondering what the hell he's been doing to get into it with Winston and Strawn and Games Workshop is likely wondering how in the hell its copyrights are being attacked.

Finally, and most significantly, a motion to dismiss based on lack of specificity will not get the case thrown out. Certainly, that is a potential result, but only if the court does not give Games Workshop the opportunity to define its claims, which it will. But this is exactly where Chapterhouse Studios wants Games Workshop to go. Even before a an initial pleading, Games Workshop is now going to be required to define its claims or have the case thrown out.

Of course, if the case were dismissed on the basis of this motion it wouldn't be prejudicial, meaning that Games Workshop wouldn't be barred from making the same or similar claims in the future, but that's not the point. The point is that Games Workshop will be forced to define its copyright infringement claims. This means going line by line, section by section, artwork by artwork, and model by model specifying the how and why of infringement. This will potentially, in and of itself, narrow Games Workshop's copyrights before they are even tested in court and before they are refuted by Chapterhouse.

Bear in mind that Chapterhouse still hasn't responded to the complaint. The point of this motion is that a response is impossible based on the lack of specificity. Just imagine, for example, Games Workshop doing a "side by side" comparison of the Chapterhouse super-heavy walker and...what? What model, artwork, or description will Games Workshop put side by side with the super heavy walker? It isn't a mistake that Winston and Strawn suggested to the court that once specificity is obtained from Games Workshop that the Court can "separate the wheat from the chaff." The suggestion is that the Court will be able to rule out infringement as a matter of law on most claims before they even get to a jury.

All of this puts Games Workshop and Mr. Moskin in an uncomfortable position. The Plaintiff now faces the possibility of having to narrow its copyright claims and erode the underlying logic of its legal strategy (which, if you remember, is one of the stated reasons why the company is doing well).

Of course, Games Workshop will probably respond with some cursory definitive description, but Winston and Strawn will likely respond by simply renewing its motion to dismiss and then a real fight will ensue. All the while Games Workshop is being forced to keep paying Foley and Lardner in order to try and preserve something of its copyright claims for trial. This also means that even if Games Workshop negotiates a settlement with Chapterhouse Studios, any definition of its claims would be a matter of public record and therefore freely available to any further potential defendants.

This is why this motion to dismiss is a significant and well-crafted move on the part of Chapterhouse Studios. Chapterhouse has everything to gain as a result of this motion and Games Workshop is forced to make tough choices about how to proceed with this lawsuit.

[wittdooley]

Gee... there's no way that they'll use the Flesh Tearers shoulder pads as an example.

I hope Chapterhouse loses badly.

[Old_Paladin]

How about they put up a broadside?
Those railguns are essentually identical; they can also explain how the numerical designation is stolen from their published ideas (as in the heavy walker is a prototype of the class 14, mark 1 combat rig; as that's what the number actually mean). And if you try and say the 'super-heavy walker' isn't tau, then why does it have rules on how to use it in a Tau army, with Tau weapons and Tau special rules?

Like I've said before, cannot produce an original physical object based directly upon another parties copywrited ideas. I cannot sell an "L-wing starfighter" that clearly based upon starwars and give it a place in the expanded universe domain. I cannot sell a 'Halo boardgame' and say "show me where Microsoft has produced said boardgame." I cannot mass produce an 'Lycanthrope Walker' that looks like a modified ghost on a pair of legs, colour it metalic purple, try and sell it to Halo fans and say "this is totally original, and based upon no ones works."
Once an idea has been actually expressed in any form (writings, drawings, physical objects); it becomes your property. Other people do NOT get to make money by expressing it in a different medium without the original producers concent. This is why when Tolken only wrote a book, other people weren't allowed to make art collections, video games, miniatures/figurines, mock weapons, etc. without the permission of his estate.

Or how about GW just shows the 'Nid dex and turn to the page with the 'Doom of Malantai'; as chapterhouse, once again, has it listed (with full name) on their news page. In this instance, it's literally like me trying to sell tablet technology and calling it an Ipad or Kindle.

[eldargal]

You mean the GW Flesh Tearer pad with a 12 tooth gear and integral blood drop, compared to CHS shoulder pad with 8 teeth and an optional blood drop, ideal for other purposes? Etcetera.

There are also signfificant differences between the Tau railgun and th guns on the CHS walker, if one bothered to look closely. A vague similarity is not enough to sue a company.

[Old_Paladin]

Well, since we both touch upon it; lets look at the two aspects: Appearance and Context.
You say that since they don't look perfectly identical, there is some leeway.
The problem was their context and intent with the marketing.
They didn't make something that just looked similar, or something that was kind of close and allowed it to be used for several things.
It was blatantly meant to be stolen from GW. They actually called the shoulder pad a "Flesh-tearer's Shoulderpad"; it's clear that is was meant to be. Then they changed the name after the fact to try and cover their butts.

So the argument goes from "look there are slight differences in design" to "we meant to steal their ideas and we just happen to be crappier modelers then the guys from GW and Forgeworld."

Of course the guys from chapterhouse don't say steal, they probably say 'borrowed' or 'were influenced by'
Just like they were 'influenced' by H.R. Giger and totally ripped off his original masterpiece of gothic/bio-mechanical horror, in space!
Which just further illustrates that they take ideas from others to make a buck (maybe 20th Century Fox, or Giger should also be notified about the case...).

[eldargal]

But 'ripping off', which is a meaningless phrase anyway (do you mean exact copy, taking inspiration, plagiarism, incorporation of elements etc.) is not illegal, only out and out copying is illegal, in general. GW Tyranids are inspired by Giger, as are CHS sculpts which are intended to be used with GW Tyranids. Is CHS 'ripping off' GW/Giger? No. Is GW ripping off Giger? No. Fact is this sort of thing has been the basis of all artistic and cultural development in the West since the ancient Greeks.

[harrybuttwhisker]

Intent only really comes into the law when it comes to restitution. The physical item itself would have to be found to infringe in its own right first of all. Then when deciding damages would they taken into account the intent to do fiscal damage when working out the punitive part of the settlement. The item in question would be compared against the item it's is allegedly infringing, in a vacuum by the "layman test" though they don't really use laymen anymore.

This is why specificity is so important as it's what gives the "layman" something to base a decision upon.

[Aldramelech]

Games Workshop has never had an original idea in its history, just about everything they bloody produce was thought up by someone else, people in glass houses should not throw stones..........................

Weeble1000, can I just say thanks for taking the time to type all this out for us and keeping us up to date, TBH its now the only reason I'm visiting BOLS these days.

[weeble1000]

First of all, I agree with Eldargal, Harrybutwhisker, and Aldramelech and I think they are correct.

Old Paladin,

A Tau Broadside model would be an extremely poor choice to use for a side by side comparison with Chapterhouse's super-heavy walker. First and foremost this is because works of art like paintings and sculptures are typically considered in their entirety. That is, you don't cherry pick what part of Plaintiff's sculpture A is infringed by what part of Defendant's sculpture B. In the sense that these works of art have meaning, it is typically considered to be communicated in the totality of the design. This is one technical reason why Games Workshop's infringement claims concerning the Chapterhouse shoulder pads may become subject to summary judgement, to the extent that a work that is just a shoulder pad is not at all similar to a work that is a genetically enhanced armored soldier that incorporates a similar shoulder pad.

The above example is just an extreme case. Games Workshop sells individual shoulder pads, the shoulder pad "bits" are molded separately from the rest of the model, etc. I personally believe that any comparison of shoulder pads will fail to satisfy infringement because of the fact that most of the works are unprotectable functional elements.

Speaking of functional elements, even if you considered the Tau Broadside railgun and the Chapterhouse super heavy walker rail gun side by side, you would still have several problems. First, there's the issue of the nature of the copyright. What makes the Tau railgun different from other railguns or even other sci-fi guns? That is what defines Games Workshop's copyright.

But if you go out on a limb and assume that the whole thing is unique, you still have problems with functional elements. One could argue that the vast majority of the railgun design is made up of functional elements. Look at some real railguns, or railgun patents, or other fictional railguns and you can easily point out aspects of the Tau railgun that are necessary to its function as a railgun.

If I remember correctly, you also can't combine elements of multiple works in order to establish copyright infringement. A single work could infringe multiple copyrights in theory, but you can't establish infringement based on a combination of different works. Each work, to my understanding, is a distinct copyright (to the extent that it is copyrightable) and infringement must be found separately for each one.