New efforts!

[Mister Hassenpheffer]

Bingo, if it took 7 years then I might start to worry that City of. might not come back. This whole deal has taught me the meaning of waiting. Jut as you have said two years is nothing, and going by the website I posted the effort is about half way done.
I think people need to learn to relax, not worry about doom and gloom about this attempt. Just my 2 cents.

Waiting is good...

Waiting for good things is better.

I hate waiting.

[LadyVamp]

In a nutshell, lawsuits are very expensive and Marvel won't want to start with a lawsuit.  Lawsuits affect the company financial statements in a way that makes investors nervous.  Both companies that is.  They consume resources that could otherwise be used more productively.  They do not have an ROI.

Here's what would happen:

Marvel thinks Arcana's MMO is infringing on Marvel's IP rights.  Their lawyers send a C&D telling her that she has some content that is like Marvel's IP.

A) Arcana send the info to her lawyer who will send a letter back to Marvel telling them to state specific examples of IP violations.  Marvel's legal team will then send back examples.  They will likely send their trolls into her game and look at everything and note anything that even remotely could be construed as Marvel's property.

Upon receiving such examples, Arcana would then work with a patent lawyer who would then dismiss probably 90% of it as different enough not to infringe (yes several rounds of talk with Marvel will happen here).  The remaining 10% will be sent to Arcana's architects to be changed enough so that Marvel could not longer claim IP violations.  The game would get patched, and everyone rolls along happy.

OR

B) Marvel's MMO isn't doing as well as Arcana's and she knows it.  So Arcana offers to sell her MMO to Marvel.  Marvel sees the opportunity to make money and buys.  Marvel walks away with a better MMO they can modify however they see fit.  And, Arcana walks away with a few million in her back pocket.

Arcana's point is you cannot live your life believing that you have to somehow survive a lawsuit from somebody as power as Marvel/DC/IBM/Microsoft/Disney/Ford.  I'm sure you get the idea.  Her company is more likely to go under due to running a foul of some government agency than a massive lawsuit from some corporation.

The only people who need to worry about such things are those who make counterfeits.  They are breaking the law: they will get the billion dollar lawsuits filed against them.

[MM3squints]

Big corporation just don't hire people off the streets when they need them, they have lawyer on staff. Marvel when they sued they were not part of Disney (Marvel V NCSoft 2005, Disney bought Marvel back in 2009) Disney is notorious in taking out anyone that infringes in their IP with ruthless efficiency. From small business to even day care, nothing is off the table for Disney

https://www.theselfemployed.com/law/disney-threatened-sue-daycare-centers/

http://www.justanswer.com/intellectual-property-law/6mk7s-sued-disney-copy-right-infrigment.html

Notice the last guy website no longer exists. The only exception to this I know of is Disney didn't go after Hamas for using a Mickey Mouse character in a show called "Tomorrow's Pioneers" where he used to spread Antisemitism. (I swear I made this exact post awhile back in this thread)

From a perspective from someone in the crafting industry they explain why Disney is trigger happy

http://www.freshstitches.com/disney-crafting-lawsuits-copyright-infringement/

With all the potential negative PR, is there a negative outcome on their stocks for such incident? Nope, they are actually sailing high at 92.56, .06% higher at the end of trading. The reason why they are doing is like them any other companies that hold IPs are supported by investors are those investors know these organizations don't have hawks for lawyers, but screaming eagles in order to protect their interest and to squeeze as much money for their IP. That is their ROI the assurance their investment is protected and the IPs of their investment won't generate money or be used in a scope outside of their organization.

The reason the case was won on NC side was sue to Marvel staffers creating the examples used for evidence:

http://www.gamespot.com/articles/ncsoft-secures-partial-victory-in-marvel-lawsuit/1100-6120231/

"Defendants [NCsoft and the game's developer, Cryptic Studios] argue that the specific exhibits and corresponding portions of Plaintiff's [Marvel's] Second Amended Complaint should be stricken as 'false and sham' because the allegedly infringing works depicted in the exhibits and referred to in the pleading were created by Plaintiffs themselves. For [that] reason, the court agrees."

Now using this as a test case and it can be Disney that sues, you think they won't just hire some intern to patrol the starting zones or fan sites for IP infringement? I wouldn't doubt it. After the cases there were still cases of you finding W0lver1n3 or something like that. Couldn't Marvel then come after them for that? In this article it states the settlement is no disclosure, but I'm sure a comprehensive enforcement and customer service policy was a factor. To top it off, the community in itself was pretty good in reporting violations. Could be people remembered the lawsuit and didn't want the chance of another one. Could be they thought copying an existing IP lacked creativity and wanted to stop it. When you see those names pop up, how long will they retain that name? Not so long. Whatever the reason was, not just NCSoft, but the community of CoX enforced the law.

https://www.cnet.com/news/ncsoft-happy-with-marvel-settlement/


Also I don't know why you are trying to defend Arcana, I'm sure she can defend herself.

[Arcana]

Big corporation just don't hire people off the streets when they need them, they have lawyer on staff. Marvel when they sued they were not part of Disney (Marvel V NCSoft 2005, Disney bought Marvel back in 2009) Disney is notorious in taking out anyone that infringes in their IP with ruthless efficiency. From small business to even day care, nothing is off the table for Disney

https://www.theselfemployed.com/law/disney-threatened-sue-daycare-centers/

http://www.justanswer.com/intellectual-property-law/6mk7s-sued-disney-copy-right-infrigment.html

Notice the last guy website no longer exists. The only exception to this I know of is Disney didn't go after Hamas for using a Mickey Mouse character in a show called "Tomorrow's Pioneers" where he used to spread Antisemitism. (I swear I made this exact post awhile back in this thread)

I can think of a more relevant example: Escape from Tomorrow.  Disney is notorious for going after direct infringement, but they are strategic about it.  Generally speaking they only go after things they believe they benefit from going after, or can get away without large blowback.  In the case of Escape from Tomorrow, the prevailing idea is that Disney felt that there was no point in going after a movie that few people would actually see, because that would only trigger a Streisand effect on it.  It could even ironically encourage other people to replicate the phenomenon.

Also, it is worth noting, because this keeps coming up, that the first article links to a situation involving Trademarks.  It appears to be something that people still keep getting confused about, but while copyright rights can be selectively asserted, trademark rights cannot.  If Disney fails to pursue a trademark infringement suit against a known infringer, that can be used to legally assert they are abandoning their trademark protection by any and all future infringers.  Trademark is all or nothing.  You protect them, or you lose them.  That's not true for copyright.  Copyright and Trademark protection are based on entirely different legal bases.  They fundamentally have nothing to do with each other, but people (even lawyers) consistently conflate them.

In the Marvel vs NCSoft suit, the presiding judge practically had to remind Marvel's lawyers that their trademark infringement claims were invalid on their face because NCSoft never committed an act that violated their trademarks, and the actions of their players couldn't possibly do that either.  To prove trademark infringement, Marvel would have to claim that NCSoft explicitly used an actual Marvel trademark to advertise the game, or NCSoft created an environment explicitly promoting players to advertise businesses within the game using Marvel trademarks, which of course is ludicrous.  Marvel's theory was basically this: NCSoft advertises the game as allowing players to create comic book superheroes, they create tools that allow players to create characters that could infringe on Marvel trademarks, so they are advertising a tool whose primary purpose is to create trademark infringing works, therefore they are directly contributing to trademark infringement.

The judge seemed to think the lawyers should consider remedial law classes.  Note also: the link you used to note that part of the reason for some of Marvel's claims being dismissed was due to them creating the actual evidence was all related to trademark infringement (the article states so).  That's because their trademark infringement claims were all theoretical: they couldn't obviously point to any players actually using Marvel trademarks in a business setting which is the only way to violate a trademark.  They had to posit that it was possible in theory by doing it themselves.

Making the infringing works themselves would not be directly fatal to another one of their claims: specifically the copyright claim that City of Heroes substantial and primary purpose was to allow other people to create copyright infringing works.  There, creating the works themselves would only serve to illustrate the capabilities of the game, not form the basis of the infringement claim itself.  That claim survived the motion to dismiss (but would have almost certainty been lost at trial).

[MM3squints]

Out of curiosity is there a source of the judges ruling on the matter? All I can find is the companies settled, and one of the reason was because Marvel employees made the duplicates using CoH, but the terms were not disclosed and what you wrote is just the argument of the NC Soft lawyer made on the case:

https://www.eff.org/cases/marvel-v-ncsoft

I'm actually curious if this case set a precedence to protect future potential MMOs. I tried different phrases to trying to lookup what you stated on this case and how the judge seemed to think the lawyers should consider remedial law classes, cause that would be actually funny to read on an arbitration.

[LadyVamp]

Also I don't know why you are trying to defend Arcana, I'm sure she can defend herself.

First, I'm not defending Arcana.  I was using her as an example small business owner since she herself made a comment a few posts back about going out of business.  Arcana knows her stuff and doesn't need anyone's help defending herself.

Second, I have personal experience with super sized corp taking on little guy corp.  My father's company to be exact.  All of 25 employees.  He designed a sticker for his products that a large corp felt infringed on one of their many trademarks.  In this case, that company would none other than GM.  They didn't file the killer lawsuit you are so afraid of, MM3squints.  They sent him a C&D, he hired a patent attorney to research.  The attorney's findings?  Yep.  He did indeed make a sticker that looked too much like the one that went with the Corvette at that time.  Massive lawsuit?  Nah.  He changed the design and sent a letter back to them telling them he would stop using the design GM thought belonged to them.  Problem solved.

That's about all that will happen.  Those massive lawsuits you're so afraid of happening when two companies can't come to an agreement aren't all that common.  They always happen when neither will back down and usually when each has patents, TMs, and copyrights that support their position.  Then it becomes a game of invalidating patents, TMs, and copyrights.  It takes many years to complete and costs millions.

[Arcana]

Out of curiosity is there a source of the judges ruling on the matter? All I can find is the companies settled, and one of the reason was because Marvel employees made the duplicates using CoH, but the terms were not disclosed and what you wrote is just the argument of the NC Soft lawyer made on the case:

https://www.eff.org/cases/marvel-v-ncsoft

I'm actually curious if this case set a precedence to protect future potential MMOs. I tried different phrases to trying to lookup what you stated on this case and how the judge seemed to think the lawyers should consider remedial law classes, cause that would be actually funny to read on an arbitration.

I checked the EFF link and they do appear to at least contain the district court order which partially granted NCSoft's motion to dismiss (it is near the bottom, March 9, 2005).

Summarizing the motion:

Part 4: Court rules that Marvel trademarked the actual words "Captain America" and now tries to claim that trademark protection extends to any and all depictions of the character Captain America.  Court rules that is an "unsubstantiated" broadening of trademark protection.  In other words, Marvel made that up.  Therefore, this claim is dismissed (i.e. tossed out).

Part 5,6,8,9: Court rules that Marvel's claim that NCSoft contributed to trademark infringement by enabling users to make infringing works fails to state a legal claim because the legal requirement is that users actually use the infringing marks in a business setting.  Marvel makes no such claim which is mandatory for the claim of trademark infringement, so this claim is dismissed for having not really stated an actual valid claim.  This basic legal principle struck four separate claims.

In the same ruling, the court refused to dismiss the following claims:

* Direct copyright infringement - this claim states that NCSoft "directly copied and/or reproduced" protected Marvel characters such as Captain America and Wolverine.
* Contributory copyright infringement - this claim basically states that CoH players copied Marvel characters and NCSoft knew or should have known about this and taken action to delete them
* Vicarious copyright infringement - this claim basically states that NCSoft made money allowing players to copy Marvel characters
* Direct infringement of common-law trademark- this claim basically states that NCSoft attempted to confuse people into thinking that their business (City of Heroes) was in some way related to Marvel's business by using a depiction (Statesman) that resembles Captain America enough to cause people to think the two businesses were similar or related.

Refusing to dismiss only states that the claim is legally sufficient to go to trial, and makes no presumption about the likelihood to prevail at trial. 

I suspect both sides knew that the first and last ones were going to be the weakest for Marvel and the hardest to prove legal liability.  It is really only the second one that appears to have teeth (the third is loosely related).  I recall statements about the settlement at the time stating that while details would not be disclosed, the settlement explicitly did not require NCSoft to substantively change the game in any way.  That suggests to me that the only likely significant part of the settlement was some vague promise to police the player community reasonably well to reduce infringement.  Also worth noting: the lawsuit wasn't one-sided: NCSoft countersued for a couple of things and those counter-claims also survived motions to dismiss.  So Marvel did have something to lose in this lawsuit also: settling wasn't just a question of giving up their claims unilaterally.

Also worth highlighting in the March 9 motion to dismiss was the court's specific language comparing at least part of Marvel's suit to prior cases regarding "false and sham pleadings" and also citing the legal precedent to dismiss a claim where there is either "a lack of a cognizable legal theory" (i.e. the claim is nonsensical) or "the absence of sufficient facts alleged under a cognizable legal theory (i.e. the claim is baseless).

[Arcana]

Second, I have personal experience with super sized corp taking on little guy corp.  My father's company to be exact.  All of 25 employees.  He designed a sticker for his products that a large corp felt infringed on one of their many trademarks.  In this case, that company would none other than GM.  They didn't file the killer lawsuit you are so afraid of, MM3squints.  They sent him a C&D, he hired a patent attorney to research.  The attorney's findings?  Yep.  He did indeed make a sticker that looked too much like the one that went with the Corvette at that time.  Massive lawsuit?  Nah.  He changed the design and sent a letter back to them telling them he would stop using the design GM thought belonged to them.  Problem solved.

That's kind of almost mandatory under the law.  If you're being a nice guy, you have to inform someone they are infringing on a trademark and give them a chance to stop.  Conversely, if you are evil you have to inform someone they are infringing because if they continue to do so after notification they are now liable for knowingly infringing, which kicks in (I believe) treble damages.

I mentioned in the previous post that NCSoft countersued Marvel.  One of the countersuit claims was that Marvel created infringing characters then sent NCSoft a legally invalid cease and desist notice - invalid because Marvel itself created the content and therefore by definition it couldn't be "infringing" - Marvel granted permission to make them.  This means NCSoft had an avenue to countersue Marvel for abusive behavior under the DMCA, for a knowingly abusive take down notice against an internet service provider.

Marvel specifically did this because they wanted to "trap" NCSoft into "knowing infringement" because their take down notice constituted official notification their game hosted infringing content.  But it may have opened them up to legal counterattack.  All in all, Marvel's lawyers were almost absurdly incompetent in this case.  They could have signed up, walked around, found an infringing character, and reported that.  Sheesh, in late 2004 how hard would that have been?  But nope, both their actions and their legal pleadings looked to me, as a non-lawyer, as the works of the village idiot.

[adarict]

Second, I have personal experience with super sized corp taking on little guy corp.  My father's company to be exact.  All of 25 employees.  He designed a sticker for his products that a large corp felt infringed on one of their many trademarks.  In this case, that company would none other than GM.  They didn't file the killer lawsuit you are so afraid of, MM3squints.  They sent him a C&D, he hired a patent attorney to research.  The attorney's findings?  Yep.  He did indeed make a sticker that looked too much like the one that went with the Corvette at that time.  Massive lawsuit?  Nah.  He changed the design and sent a letter back to them telling them he would stop using the design GM thought belonged to them.  Problem solved.

That's about all that will happen.  Those massive lawsuits you're so afraid of happening when two companies can't come to an agreement aren't all that common.  They always happen when neither will back down and usually when each has patents, TMs, and copyrights that support their position.  Then it becomes a game of invalidating patents, TMs, and copyrights.  It takes many years to complete and costs millions.

There is one big difference between your personal experience, and the scenario that was being discussed, unless your father's whole business was making stickers.  The scenario that was being discussed, revolved around a company who had a potentially infringing product as its primary business/product.  In your father's case, a cease and desist simply meant replacing the design with something else.  If you are making a game as the main product of your company, and that game is found to be infringing, there is a good chance that you will be out of business.  Either because you are unable to change the game enough to satisfy the demands of the C&D, or because making those changes would turn your product into something other than what your customers had signed up for.  Since complying with the C&D would essentially put you out of business, it is possible that you might fight back, at which time the other company may decide it is worth the money to sue you into oblivion.  They don't have to actually follow through with the suit.  The threat of it against a much smaller company is likely to force capitulation.  If you didn't fold, the larger company may not have any real downside.  Yes it is expensive, but unless they think their claim is tenuous, in the end they win, and the court costs are likely going to be born by the smaller company.


On the other hand, I have zero experience in any kind of law.  There are probably nuances that I have no clue about.  It just seems that you are comparing two completely different scenarios and expecting the results to be equivalent.  I know in the realm of law, sometimes things are very counter-intuitive, and there are all kinds of loopholes, and some of the precedents can seem pretty out there to the uninitiated, such as myself.

[MM3squints]

[MM3squints]

[Arcana]

[hejtmane]

I see we are now talking the old lawsuit now and I guess nothing has changed no game back and looks like it not going to happen anytime soon.

[MM3squints]

I see we are now talking the old lawsuit now and I guess nothing has changed no game back and looks like it not going to happen anytime soon.

Nope, but if it makes you feel any better I feel we actually had this conversation couple hundred pages back. So basically we are talking about the same stuff over again, but with more ideas thrown into it. Personally I find debates interesting and it dose pass the time while I wait for Civ 6 to come out. Nothing is better when you do have Aracna as a sparing partner. Especially in this case, as Aracna stated, she's not a lawyer, and I sure as hell am not one, but everything is based on the interpretation of the evidence provided.

[Vee]

[MM3squints]

You keep using that word "implement"... ah nm, too much here to even bother.

Only used it once, and ya I know I meant to use implicate. I wonder why that word just became a tick.

[Vee]

I was trying to figure out what word would make what you were saying true, but decided I didn't know any word that would.

[Arcana]

Only used it once, and ya I know I meant to use implicate. I wonder why that word just became a tick.

I think the word you're looking for is "incorporate."  Vee incorporated me into her example.  I don't think she intended to implicate me with her example.

[MM3squints]

I was using it in terms of bringing in. Googling the word, it dose have a negative context so let just go with incorporate

[Vee]

I think the word you're looking for is "incorporate."  Vee incorporated me into her example.  I don't think she intended to implicate me with her example.

You mean Lady Vamp.

But in any event there's no word starting with I or any other letter I'm aware of that'd make using someone's name in an example to make one point the equivalent of defending said person's arguments on other points.