Harmony Gold legal case discussion thread

[pheonixstorm]

CGL doesnt have a defense team. If there is a settlement then HG doesn't lose. PGI would have to take this to a jury trial for HG to lose.

And please people read this thread on what part of the cost for CGL will be. I posted about it on p6
https://bg.battletech.com/forums/index.php?topic=61621.msg1420068#msg1420068

[Colt Ward]

My post was not about a defense team, just a defensive strategy that is pretty basic- all debaters are taught to sever the links, which from what I read is PGI's main defense.  IE, these are not related to HG's property so all further claims are void.

[Nightlord01]

My post was not about a defense team, just a defensive strategy that is pretty basic- all debaters are taught to sever the links, which from what I read is PGI's main defense.  IE, these are not related to HG's property so all further claims are void.

Unfortunately Colt, unless CGL can convince the judge that they should be let back in, the case will be one sided. Certainly the judge could still rule against HG if they presented an argument that was nonsensical, incorrect by law, or if they fail to prove their claim, BUT CGL cannot counter argue, cannot submit evidence to dispute a claim and all claims will be taken at face value provided there is some evidence claiming it.

There is where it becomes a failed defensive strategy, you simply cannot mount a defence, so you have to rely on your opponents offensive not making it past basic proof standards.

Using your debating analogy, even if the other team didn't prepare any arguments, your team simply didn't turn up, so the other team would need to get the subject wrong to lose.

[klarg1]

My post was not about a defense team, just a defensive strategy that is pretty basic- all debaters are taught to sever the links, which from what I read is PGI's main defense.  IE, these are not related to HG's property so all further claims are void.

It's possible, but betting it all that PGI would take it to court for resolution is a big bet. A substantial majority of cases are settled, rather than litigated before a jury, and PGI is a business. CGL had to suspect that, regardless of any pre-trial posturing, there was a good chance that PGI would take any sufficiently favorable settlement to avoid the cost of a trial.

I have known businesses that had explicit strategies of taking certain cases to trial no matter what, but they were in a different industry, and the companies were much larger. Legal fees for two or three court cases could never have bankrupted them. (and those cases were over patent, rather than copyright)

[ANS Kamas P81]

Alternatively, Harmony Gold could put in its settlement that they won't go after anyone for those 41 character designs anymore, at which point...well, their settlement would abrogate their complaint against CGL.  But that's pie-in-the-sky hopefulness.

[monbvol]

Alternatively, Harmony Gold could put in its settlement that they won't go after anyone for those 41 character designs anymore, at which point...well, their settlement would abrogate their complaint against CGL.  But that's pie-in-the-sky hopefulness.

Which HG would never do and I don't see PGI being able to force it in a legal way.

[Horseman]

Gents, this is going into circular wild guessing again. Perhaps let's put further theories off until there's some concrete new material to discuss?

[ANS Kamas P81]

Gents, this is going into circular wild guessing again. Perhaps let's put further theories off until there's some concrete new material to discuss?

A position I support.  My comment was trying to show that 'just because it's in settlement doesn't mean DOOOOOOOOOOOOM or anything, wait to see what's actually being agreed to.' 

[Charlie 6]

Which HG would never do and I don't see PGI being able to force it in a legal way.

True, but I think folks are potentially overlooking the judge's role in the process which is to maintain or set precedent as required.  I find it hard to believe a judge wouldn't ask the question, "of what is this defendant in default of or for what are you to be awarded damages if you have settled with the primary defendant?"

Also, were there any monies exchanged when HBS settled?  If so, I missed it and if not why would the assumption be that PGI has to pay?

Anyway, just a thought.

[ColBosch]

True, but I think folks are potentially overlooking the judge's role in the process which is to maintain or set precedent as required.  I find it hard to believe a judge wouldn't ask the question, "of what is this defendant in default of or for what are you to be awarded damages if you have settled with the primary defendant?"

While the judge could intervene, it is very unlikely here. District cases do not set strong precedents, especially when a default is involved. If the settlement between HG and PGI does not end the case, then the next step will be to have HG present the court with what they feel is proper damages. The judge will then accept or modify that amount (but won't outright deny it) and issue a court order to IMR to pay it. It'll be hard for HG to show actual damages and punitive rewards are nearly unheard of in copyright cases. But it will include HG's lawyers' fees.

Also, were there any monies exchanged when HBS settled?  If so, I missed it and if not why would the assumption be that PGI has to pay?

We don't know, and there is no way for us to know. Private agreements between privately-owned companies (as opposed to companies on the stock market) are not a matter of public knowledge. All they had to do is tell the court that they had come to an agreement, and they did.

A position I support.  My comment was trying to show that 'just because it's in settlement doesn't mean DOOOOOOOOOOOOM or anything, wait to see what's actually being agreed to.' 

As far as IMR/CGL is concerned, this is doom. I was not being facetious when I said they need a miracle here. Barring PGI interceding on their behalf and HG agreeing to it, IMR is on the hook for a substantial amount of money here and has no good way to contest it.

[monbvol]

While the judge could intervene, it is very unlikely here. District cases do not set strong precedents, especially when a default is involved. If the settlement between HG and PGI does not end the case, then the next step will be to have HG present the court with what they feel is proper damages. The judge will then accept or modify that amount (but won't outright deny it) and issue a court order to IMR to pay it. It'll be hard for HG to show actual damages and punitive rewards are nearly unheard of in copyright cases. But it will include HG's lawyers' fees.

Best case scenario here is that Judge Zilly would only award partial profits of any material the offending images are found in and legal fees.  With everything that has happened so far in this case and the still relatively recent major expenses IMR/CGL has made on top of having to redo the art again, even this amount does not seem to bode well despite how theoretically/relatively small it is.

Worst case could demand all income, not just profits, from any material with the offending images and legal fees.

We don't know, and there is no way for us to know. Private agreements between privately-owned companies (as opposed to companies on the stock market) are not a matter of public knowledge. All they had to do is tell the court that they had come to an agreement, and they did.

I still see no evidence that a settlement was reached between HBS and HG.  As I understand things if there was one it would have had to been reviewed by the courts and there is no such entry on PACER.

As far as IMR/CGL is concerned, this is doom. I was not being facetious when I said they need a miracle here. Barring PGI interceding on their behalf and HG agreeing to it, IMR is on the hook for a substantial amount of money here and has no good way to contest it.

Yeah this isn't good.  As outlined above I don't know how PGI can force HG to let IMR/CGL off the hook since there is no joint defense or power of attorney, at least not in a legally binding manner.

The damages I do expect to not be all that big, but the legal fees?  I completely agree IMR/CGL looks to be on the hook for those and after a year plus that is not going to be a trivial number.

[pheonixstorm]

ut it will include HG's lawyers' fees.

But how much is the question. They defaulted. Does this mean they are on the hook for all fees or only those related to what HG would have to pay out up to that point? I never could find a legal answer from all my searching...

[Sartris]

But how much is the question. They defaulted. Does this mean they are on the hook for all fees or only those related to what HG would have to pay out up to that point? I never could find a legal answer from all my searching...

I’m guessing anything greater than 0% is not healthy for CGL’s operating budget

[abou]

Alternatively, Harmony Gold could put in its settlement that they won't go after anyone for those 41 character designs anymore, at which point...well, their settlement would abrogate their complaint against CGL.  But that's pie-in-the-sky hopefulness.

Which HG would never do and I don't see PGI being able to force it in a legal way.

In all honesty, why wouldn't that be in the settlement? I imagine that would at least be PGI's starting position and something that can be negotiated away. However, it is probably more viable that we think, because look at what can happen if this goes to trial and HG loses:

1. HG loses the ability to go after anyone for the 41 anyway, but also can see hefty legal fines and suffer a humiliating defeat that very publicly damages them to other companies... companies such as Sony Pictures. Legally, they know this is a possibility or they wouldn't be in settlement talks. It would literally take anyone with the funds to go to court and win this.

2. Due to their recent arbitration with Tatsunoko, they potentially lose all access to Macross as an exploitable source material in 2021 anyway. How actually soured that relationship is, we don't know, but it is possible. So then what would be the point of wringing out a bit of money from the dried rag that is CGL only to lose the license for something you are fighting for in under three years anyway?

However, if it is included in the settlement, maybe no one pays anyone anything and everyone just goes about their business. PGI's stance based on the emails that were shared in the case and what has been said has been, "We want to work this out for everyone." Even Brent and Loren at last year's GenCon said the same thing. HG doesn't pay any big fines and maybe they get a case of Coca Cola or whatever. They don't suffer monetary loses or lose major face to other potential business partners.

I understand that is an unlikely scenario, but it would be a happy-ish way out for everyone.

[monbvol]

As I understand it, if IMR/CGL does wind up being the last defendant standing they would indeed due to default be on the hook for all legal fees incurred by Harmony Gold.  With lawyers charging in the hundreds of dollars per hour and a year plus of not just court appearances but also drafting/responding to motions, it is not going to be an insubstantial amount of money.

In all honesty, why wouldn't that be in the settlement? I imagine that would at least be PGI's starting position and something that can be negotiated away. However, it is probably more viable that we think, because look at what can happen if this goes to trial and HG loses:

1. HG loses the ability to go after anyone for the 41 anyway, but also can see hefty legal fines and suffer a humiliating defeat that very publicly damages them to other companies... companies such as Sony Pictures. Legally, they know this is a possibility or they wouldn't be in settlement talks. It would literally take anyone with the funds to go to court and win this.

2. Due to their recent arbitration with Tatsunoko, they potentially lose all access to Macross as an exploitable source material in 2021 anyway. How actually soured that relationship is, we don't know, but it is possible. So then what would be the point of wringing out a bit of money from the dried rag that is CGL only to lose the license for something you are fighting for in under three years anyway?

However, if it is included in the settlement, maybe no one pays anyone anything and everyone just goes about their business. PGI's stance based on the emails that were shared in the case and what has been said has been, "We want to work this out for everyone." Even Brent and Loren at last year's GenCon said the same thing. HG doesn't pay any big fines and maybe they get a case of Coca Cola or whatever. They don't suffer monetary loses or lose major face to other potential business partners.

I understand that is an unlikely scenario, but it would be a happy-ish way out for everyone.

If PGI can really force that kind of concession then there is no need for them to settle at all as that'd be the same as HG admitting they don't have the copyrights in the first place.

[abou]

If PGI can really force that kind of concession then there is no need for them to settle at all as that'd be the same as HG admitting they don't have the copyrights in the first place.

True, but then you would not have to pay the legal fees up until then hoping for reimbursement. Also the fact that we are still several months out from the first court date. This way at least HG is not at risk of Rule 11 sanctions.

[monbvol]

True, but then you would not have to pay the legal fees up until then hoping for reimbursement. Also the fact that we are still several months out from the first court date. This way at least HG is not at risk of Rule 11 sanctions.

Which(rule 11 sanctions) would be a slap on the wrist compared to agreeing to such a concession.

[victor_shaw]

As I understand it, if IMR/CGL does wind up being the last defendant standing they would indeed due to default be on the hook for all legal fees incurred by Harmony Gold.  With lawyers charging in the hundreds of dollars per hour and a year plus of not just court appearances but also drafting/responding to motions, it is not going to be an insubstantial amount of money.

If PGI can really force that kind of concession then there is no need for them to settle at all as that'd be the same as HG admitting they don't have the copyrights in the first place.

Unless IMR/CGL challenges the default their case was over when they defaulted.
The judge is not going to award HG lawyers fees based on the amount spent fighting against PGI.
This does not mean IMR/CGL is off the hook, since HG can claim filing fees, but they can't use their case with PGI as the money that IMR/CGL has to pay.

Example: you can sue 10 parties, and have all but one default. then have a 3 year legal battle with the last settling the case with no legal fees payed and try to get it for the other nine. A judge would never go for this.

Whither HG has the copyrights or not is not that important to a settlement. As they have to prove nothing for both sides to agree on a settlement. Now if I where PGI I would ask for the following.
1. A promise from HG that they will not sue PGI for any copyrights outside of direct images from Robotech again.
2. That all legal fees are paid for by their own parties.
3. That the case would be dropped in its entirety.
4. Agree to Dismissal with prejudice.
5. An statement in writing that HG hold no copyrights to the Macross images.

But that just me  >:D

[Raeven]

Something else to consider, HG is on the trailing edge of their license expiring.  HBS likely settled with HG so HBS could get HBS BattleTech out without legal pressures on it. 

I have the feeling that PGI has put HG in the same position that HBS was in, in regards to the Robotech movie.  It takes a few years to make a movie and with the License deadline looming, HG may have decided that they no longer have the luxury of waiting for the court to make a judgement if they want to get a movie made, and may choose to settle the entire lawsuit to make it go away. 

I'm still of the belief that their lawyers have realized they didn't have an argument against HBS and that PGI put them up against the ropes in proving they have the copyrights they claim to have.  Both together puts their entire case on shakey ground.

[pheonixstorm]

HBS likely settled with HG so HBS could get HBS BattleTech out without legal pressures on it.

BattleTech was going to be released even if the case was headed to trial. HG had NOTHING on HBS as HBS did not create the art or mechs used in MWO nor was is going to be a part of the released product. It was pretty clear from the beginning that HG was dragging HBS in just to play up the old FASA settlement and needed a reason to do so. The only legal pressure the case caused for HBS was not being able to release the game with the Marauder, Warhammer, Archer, etc.

Back before HBS was dismissed the company publicly stated the game would ship regardless or what was happening with the case.

[Raeven]

I'm sure that's true, but the timing of the dismissal was rather convenient for HBS for there not to have been some sort of settlement to get the case dropped.

[MoneyLovinOgre4Hire]

Sometimes coincidental events are actually the result of coincidence.

[Horseman]

In all honesty, why wouldn't that be in the settlement? I imagine that would at least be PGI's starting position and something that can be negotiated away. However, it is probably more viable that we think, because look at what can happen if this goes to trial and HG loses

Because it affects interactions between HG and third parties who are not a party to the settlement. HG would neither agree to that nor does PGI have any reason to expect them to.
PGI might make a demand of this kind, but only limited to PGI and parties PGI licenses to.

I have the feeling that PGI has put HG in the same position that HBS was in, in regards to the Robotech movie.  It takes a few years to make a movie and with the License deadline looming, HG may have decided that they no longer have the luxury of waiting for the court to make a judgement if they want to get a movie made, and may choose to settle the entire lawsuit to make it go away.

This lawsuit does not in any way impact the movie's development.
HG is not producing that movie themselves, anyway, they only licensed the rights to Sony Pictures.

[abou]

Lior posted a video on his thoughts regarding settlement discussion. Unfortunately, it is not as optimistic as I had hoped for PGI. Not that it is bad, but it is what it is.

https://youtu.be/YiWjKXroQf0

[victor_shaw]

Lior posted a video on his thoughts regarding settlement discussion. Unfortunately, it is not as optimistic as I had hoped for PGI. Not that it is bad, but it is what it is.

https://youtu.be/YiWjKXroQf0

After watching the video. I would not put much stock in what he had to say.
1. He is making the assumption that Both PGI and HBS where the ones to ask for the settlement and not HG. In both cases we have no idea who asked for the settlement.
2. He makes the false claim that it was because PGI and HBS games would be delayed if they did not settle. Which we know to be untrue as HBS had said Battletech was coming out either way, and to the best of my knowledge Mechwarrior online is already out.
3. He makes the claim that this was ti avoid a long drawn-out lawsuit that could take years, which is something HG would not wanted due to the time crunch on the Robotech licensing agreement.

[monbvol]

*nod*

Especially since I can find no evidence that an actual settlement was reached between HBS and HG, just that they both agreed that the case could be dismissed with prejudice as far as HBS and HG were concerned.

Still though there is a certain logic to what he says about PGI being in the business of making video games, not drawn out legal battles and that being a reasonable motive for settling instead of continuing the case and SidAlpha touched on why as well and it does make sense why PGI could actually want to settle.

All in all there's too much hints of something being afoot that we don't know about in full detail that has shifted the dynamics of the case.

[ColBosch]

If there had been a settlement between HG and HBS, there would at least be mention of it. There is not. HG dropped their case, plain and simple.

[monbvol]

*nod*

Which is why I'm getting so annoyed at how often the idea of a settlement having happened between HBS and HG constantly coming up.

Especially since HBS could pass the buck to PGI and HG had to know it.

It has been suggested to me that perhaps IMR/CGL are partially trying to pass the buck as well but I don't think they can as Topps does not have the kind of interaction/oversight needed nor is the source of the offending artwork.

[DOC_Agren]

So if there is an agreement between HBS and HG, will it need the judge to sign off on it correct, even if it is sealed agreement?

[ColBosch]

So if there is an agreement between HBS and HG, will it need the judge to sign off on it correct, even if it is sealed agreement?

YES.

Holy crap, yes. It would've been entered as a sealed document for the judge to enter into the official record, just like the old FASA/Harmony Gold settlement agreement. Without being entered into the record, it would not be enforceable. We would know it existed, just not what it contained.