Games Workshop v Chapterhouse Studios - Post Trial Events

[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!

you mean this guys

[url]http://en.wikipedia.org/wiki/Bono[/url]

??

[Psychosplodge]

you mean this guys

[url]http://en.wikipedia.org/wiki/Bono[/url]

??

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.