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  1. #1

    Default Chapterhouse Motion to Dismiss

    On March 3rd, 2011, Chapterhouse Studios submitted a motion to dismiss. I'll post a bit of commentary about the content this weekend.

  2. #2
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    Quel surprise?
    I'M RATHER DEFINATELY SURE FEMALE SPACE MARINES DEFINERTLEY DON'T EXIST.

  3. #3

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    It isn't surprising that the motion was made, but the reasons are very interesting and the cited precedent is enlightening. The motion forces Games Workshop to make a tough choice. Again, I'm at work so I'll comment on the content this weekend when I have more time.

    If anyone else has comments about it, I'd love to hear them.

  4. #4

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    double post
    Last edited by weeble1000; 03-04-2011 at 03:26 PM. Reason: double post

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    Zut Alors!
    I'M RATHER DEFINATELY SURE FEMALE SPACE MARINES DEFINERTLEY DON'T EXIST.

  6. #6

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    Hi all.
    What does the 'motion to dismiss' mean?
    Are they going to settle out of court?
    Or are they forcing GW to refine thier claim and be more specific?

    I have not got a clue about (American) legal terms?

    Any clarification would be apreciated...

    TTFN

  7. #7

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    Motion to dismiss is essentially in this case the presentation of preliminary evidence and case precedent that would suggest there is no case to answer and that it should be thrown out of court. If chapter house is successful it basically bends GW over and pulls down there pants.
    http://badtouchsbasement.blogspot.com/

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    Come on, Weeble, the weekend has passed!

  9. #9

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    I'm sorry that I haven't posted until now. I was hit by the trifecta of DOW II: Retribution, Mardi Gras, and my mother-in-law. However, I have now played through the IG campaign, I've sobered up from carnival, and my wife took her family down to New Orleans today.

    Okay, so what is a motion to dismiss? Harry is correct that it means Chapterhouse Studios does not believe that the claim has a remedy in law, i.e. there's no reason for the case to be in court because there's nothing the court can do about it. For example, a case can be dismissed because of a failure to state a valid claim. If there's no law that says there's a remedy for what you claim, you can't ask the court to hear the claim. Another example would be the statute of limitations. The law says that you can't file certain claims after a certain period of time, so if you file such a claim past that date, there's no legal remedy that you can seek even if you have a valid claim.

    A motion to dismiss is different from a motion for summary judgment in that it says the case shouldn't be in the courtroom in the first place whereas a motion for summary judgement asks the court to rule on something as a matter of law. This basically means that the motioning party feels that given the available evidence, even if you look at it in the light most favorable to the opposing party, a ruling in favor of the motioning party would be inevitable. This could mean, for example, that no reasonable jury would find in favor of the opposing party on the particular issue in question. This distinction is only important because the Chapterhouse motion to dismiss also briefly brings up potential summary judgement.

    So let me take you through this document a little bit.

    By the way, it is important to note that this is a motion to dismiss the copyright infringement claims. But, as I've said before, the copyright claims are the meat of the complaint. This motion doesn't discuss the trademark infringement claims. The claims are different, distinct, and have nothing to do with one another.

    The first thing to consider is what the stated grounds for dismissal are.

    This is a motion to dismiss due to lack of specificity. In brief, Chapterhouse is saying that Games-Workshop's complaint does not specifically state which Chapterhouse products are causing what kind of damage to which claimed copyrights.

    There are laws that require a complaint to be specific [Rule 12(b)(6) discussed in section II subsection A on pages 2-3 of the motion], and there are a lot of good reasons for those laws. The basic idea is that if you don't tell me what you are accusing me of, I can't intelligently respond to the allegations. There are also issues of discovery. If you don't tell me specifically what you are claiming, I have no way to focus pre-trial discovery. This necessarily wastes the court's time, my time, my attorney's time, and costs everyone lots of money that we would otherwise not have to spend.

    Because this is a motion to dismiss due to lack of specificity, it also states that as an alternative to dismissing the case, the plaintiff (Games Workshop) should be required to further define its claims of copyright infringement. This means that Chapterhouse is saying that as the complaint stands, the case should be dismissed, but Games Workshop could be given the opportunity to define its claims.

    Okay, so the motion argues that "The Complaint fails to state a prima facie case of copyright infringement because it neither specifies the works it claims are infringed, nor adequately alleges the manner in which Defendant’s works infringe those works."

    The short answer: Games Workshop accuses all 106 of Chapterhouse Studios's products of infringing all of its copyrights without specifically identifying the copyrighted works, what portions thereof are infringed, what specific product(s) infringe those portions, and finally what manner in which they are infringed.

    It is worth noting here that a prima facie case simply means that the plaintiff has presented sufficient evidence for all of the essential facts of the case such that it merits being taken to court. A case does not necessarily need to stand solely on this evidence, nor does it need to be strong enough to withstand refutation. You just need to show that the necessary facts exist. In a copyright infringement case, I believe it is sufficient to claim ownership of a copyright and identify the infringing product. If you can't point to a thing you own and point to the thing that you say copies it, you can't possibly have a case.

    On a related point, there's a good reason for these requirements beyond making sure you don't waste the court's time. You aren't allowed to use a complaint as a fishing expedition. That is, you need to show that you have sufficient cause for action because if you don't have cause, you shouldn't be allowed to use pre-trial discovery to find that cause. Simply put, I'm not allowed to make unsupportable accusations in order to get special access to all of your private files, documents, communications, etc.

    I'll break down the above quote in the manner of the motion.

    First, Chapterhouse says that Games Workshop does not properly specify the works at issue. As the motion indicates, "The requirement to plead ownership of particular works limits the universe of possible infringed works, without which a defendant cannot be certain what it is alleged to have done." Simply put, I need to know what I'm accused of copying. Chapterhouse says that Games Workshop "fails even to identify many of the works it apparently claims have been infringed. For example, although it alleges that all of Chapterhouse Studios’s products infringe its “sculptural works” (Compl. ¶ 31), it does not identify even a single sculptural work in which it claims a copyright. Instead, Plaintiff simply alleges that it produces “army figures. . . and a wide range of accessories,” which are purportedly protected by copyright. Compl.
    ¶ 12."

    Chapterhouse also says that although Games Workshop identifies several literary works (including game manuals and a novel) it fails to identify what portions of those works have been infringed, which is also required by law. Further, Games Workshop "does not limit its allegations to those works: it implies that there are myriad other such works, that it fails to identify, that are infringed by Chapterhouse Studios’s products. Compl. ¶ 12."

    Instead of specifying what portions of the works are infringed, Chapterhouse says Games Workshop argues that each of Chapterhouse Studios's 106 products is "'derived from . . . Games Workshop’s copyrighted works' (Compl.¶ 30)" As I've said previously, Games Workshop is making blanket claims that all of Chapterhouse's products are derivative works. Later in the motion the derivative claims are specifically attacked.

    Next, Chapterhouse argues that the copyrights claimed to be owned by Games Workshop are unprotectable as a matter of law. That's serious business and I think this is one of the most significant sections of the motion.

    The short answer: Chapterhouse argues that Games Workshop's lack of specificity necessarily limits its claims to "familiar general themes" embodied in an expansive, open-ended universe. Chapterhouse cites the very relevant precedent of FASA (Battletech) v Playmate Toys (Exosquad) in which the court ruled that such claims are unsupportable and not subject to copyright.

    Chapterhouse argues that Games Workshop only identified familiar, general themes as the purportedly infringed "works" and argued that relying on this is fatal to a copyright claim. In support of this argument, Chapterhouse cited the very interesting precedent of FASA Corp. v. Playmate Toys, Inc. (1994), arguing that "the Court addressed strikingly similar copyright allegations by a gaming company against a rival." FASA v Playmate involved BATTLETECH (FASA) accusing Playmate's Exosquad action figures of infringement.

    Chapterhouse argues that Games Workshop alleges that all of Chapterhouse Studios's products "'are derived from and bear the unique characteristics and expressions of Games Workshop’s copyrighted works, including unique expressions created and set forth in great detail in Games Workshop’s background published works described above.' Compl. ¶ 30. But Games Workshop concedes its games are 'not [played] . . . with defined game places [sic], but in an open-ended world. . . .' Compl. ¶ 9. This 'open-ended world' is described in terms both vague and familiar." Chapterhouse further argues that in the FASA v Playmate precedent, the plaintiff, "brought copyright claims, but did not identify 'concrete details pertaining to the [imagined] universe.' Id. at 1351." Chapterhouse says that the Court recognized that these "familiar general themes" were unprotectable and quoted the Court's ruling and further cited statute 17 U.S.C § 102(b):

    "insofar as FASA's copyright infringement claim is predicated on the assertion that ‘[t]he Exosquad lives in a futuristic, interstellar, battle dominated environment significantly resembling the futuristic, interstellar, battle dominated BATTLETECH universe,’ that aspect of the claim must fail because it rests on familiar general themes which are unprotectible elements.” Id. at 1352; see 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”) (emphases added)"

    Next, Chapterhouse argues that Games Workshop does not adequately state a claim for infringement based specifically on any of the exclusive rights of a copyright owner. That is, Games Workshop did not state how the works were infringed. This is fairly straightforward, although Chapterhouse cleverly cited precedent in a very strategic manner, which I will discuss in more detail later. The idea is that you have to know how you are infringing in order to have proper notice under Rule 8. It's related to knowing which of your products are accused of infringing what works.

    Games Workshop did accuse Chapterhouse of infringing its exclusive right to produce derivative works, but Chapterhouse attacked that claim directly, arguing that Games Workshop has failed to adequately plead such a claim. This is a little complicated, but the idea is that the statute of derivative work is very specific and requires specificity in the claim.

    In order to be a derivative work, a product must either be in a form specifically mentioned in the statute (a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation) or it must "recast, transform, or adapt" another work. Chapterhouse cited precedents which state that a work is not derivative "simply because it is 'based on'...preexisting works," and that "[a] work is not derivative unless it has been substantially copied from the prior copyrighted work."

    Based on this precedent, Chapterhouse argues that Games Workshop, "merely alleges that Chapterhouse Studios’s products are 'derived from' and 'inspired by' Plaintiff’s works. Compl. ¶¶ 30, 34." Chapterhouse Studios argues that this does not meet the legal definition of a derivative work. "To the extent Plaintiff relies on a theory that any work having anything whatsoever to do with another is ipso facto a derivative work, its allegations fail at the pleading stage. This 'but-for' interpretation of the derivative works right has no basis. Even if it were assumed, for the sake of argument, that Chapterhouse Studios’s products were 'inspired by' Plaintiff’s alleged works, inspiration is not infringement."

    Interestingly, Chapterhouse also argues that any derivative claim is implausible on its face because the only works directly mentioned in any way by Games Workshop are literary works. Chapterhouse argues that it is implausible to argue that a sculptural work of art (which constitutes all 106 of Chapterhouse Studios's products) is "recast, transformed, or adapted from" a literary work. In essence, you can't "recast" a novel into a sculpture, transform a novel into a sculpture, or adapt a novel into a sculpture. The implication is that this is especially true given that Games Workshop did not specify which portion of the identified works are infringed. One must then assume, for example, that the "Soul Drinkers" novel in its entirety has been recast into Chapterhouse's super-heavy walker, the only product specifically mentioned in the complaint.

    On a final note, Chapterhouse Studios discussed the implications of the alternative to dismissal: requiring Games Workshop to define its claims. "Chapterhouse Studios also believes that Plaintiff’s copyright claims, if properly defined, may well be susceptible to early determination. The Seventh Circuit uses the 'ordinary observer' test to determine infringement, and requires a side-by-side comparison of the works at issue." (emphasis added)

    Chapterhouse Studios is suggesting that the court may be able to "separate the wheat from the chaff" by directly comparing accused products with allegedly infringed works and making summary judgement based on "'whether, as a matter of law, a reasonable jury could find...that the two works are substantially similar.'"

    As this post is super long, I'll save my opinions about the implications of the motion for a later post.
    Last edited by weeble1000; 03-09-2011 at 11:39 AM.

  10. #10
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    Weebs (aka CHS lovechild)

    I am actually genuinely glad that somebody is posting this, because no one could give a tinker's cuss about this, particularly when the firm is putting out GK, but I am interested in this case.

    Presumably, as GW did not fold in the face of CHS getting free lawyers, I suppose they intend to max this out, therefore, they will wait to see if the court agrees and dismisses on the lack of specifity, if the court does they could go to default of trying to be more specific. If the court doesn't it is game on. Obviously the court will take into acount the guilty looking acts of changing products that used GW TMs as names, into generic names such as maxmini would, and also the removl of things like a Doom of Malantai when GW released their own.
    I'M RATHER DEFINATELY SURE FEMALE SPACE MARINES DEFINERTLEY DON'T EXIST.

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