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Unlikely. I've never seen a case where that argument has carried any weight. I haven't been involved in any copyright cases in a while though, so maybe there's been something in the last couple years. I'd need to see a transcript of such a case to find it plausible.
If you're an IP attorney, Storm Raven lemme ask:
Would knowing failure to pursue copyright infringement impact the ability to win a judgment of recovery for that specific infringement? (In other words, if you know I'm pirating movies from your studio and you make no move to stop me for six months -- say, even to the point of an internal memo stating, "Nah, not worth the effort" -- at which point I stop of my own accord, can that knowing failure keep you from getting any recovery from me if you change your mind?)
Because this seems to me to be pretty plausible, in the realm of equity, if not law. (Both of which, of course, courts can consider.)
__________________ Jeff Wilder, San Francisco Bay Area If your sig is longer than your posts, your sig is too
long. Nobody reads it, they just get annoyed by it. And if you bore me, you lose your soul to me. - Belly
Maintenace of the contract and fees from those companies. Someone has to manage that. I'd think this would have been obvious.
The contracts have already been executed, so "maintenance" is likely trivial, if anything. Managing the fees is simple bookeeping, which they probably have people on staff for. It is almost impossible to imagine a scenario in which the marginal costs of the accounting work involved are not completely trivial.
__________________ I don't know if I would consider being smashed into a pulp by a giant mace to be a "good result".
I am a lawyer. I have handled some trademark issues, and a few copyright matters, but not for a while (I work for the government these days, and copyrights are not so much of an issue for us). But:
Quote:
Would knowing failure to pursue copyright infringement impact the ability to win a judgment of recovery for that specific infringement? (In other words, if you know I'm pirating movies from your studio and you make no move to stop me for six months -- say, even to the point of an internal memo stating, "Nah, not worth the effort" -- at which point I stop of my own accord, can that knowing failure keep you from getting any recovery from me if you change your mind?)
Probably not. The only legal theory I could think of that might prevent you from recovering in these circumstances are laches, and that isn't normally applicable in cases where a statute of limitations in in place. I know of more than one case in which a plaintiff allowed a defendant to run up a fair amount of potential damages and then stepped in - that didn't prevent the plaintiff from recovering.
If the plaintiff gives the defendant some sort of concrete basis for believing their copying is okay, that might run against them (it would then depend on whether they gave implied consent), but that would require some sort of actual communication between the copyright holder and the infringer, not merely a lack of action by the copyright holder.
What you are trying make out here is analogous to a case for adverse possession - if you live on a piece of property under some sort of colorable claim for a long time without the true owner taking action against you, then you end up owning it. But adverse possession cases are hard to make, the duration needed is usually twenty years or more. The courts simply don't like squatters very much, and don't have a lot of sympathy for copyright infringers.
Disclaimer: I am not offering legal advice to anyone online. Not only am I probably not licensed in the jurisdictions most of you are living in, I do not know any of the specific facts of any case you may be dealing with. Anyone relying upon what I say in this thread to take actions does so at their own risk. The information I am providing here is for general educational purposes, and based upon my own experiences and research. If you have actual legal questions, go and conslut directly with a lawyer in your home jurisdiction.
__________________ I don't know if I would consider being smashed into a pulp by a giant mace to be a "good result".
Last edited by Storm Raven; 10th April 2009 at 07:21 PM..
If you have actual legal questions, go and conslut directly with a lawyer in your home jurisdiction.
Lemme tell ya, there are some lawyers in my firm I would love to conslut with.
__________________ Jeff Wilder, San Francisco Bay Area If your sig is longer than your posts, your sig is too
long. Nobody reads it, they just get annoyed by it. And if you bore me, you lose your soul to me. - Belly
Probably not. The only legal theory I could think of that might prevent you from recovering in these circumstances are laches, and that isn't normally applicable in cases where a statute of limitations in in place.
I'm not exactly doubting you, but according to my old Remedies outline, laches can not only be asserted when there's a statute of limitations, but the laches period can actually be "much shorter" than the statute of limitations.
Now it's possible that this is specifically different with respect to copyright law. It's also possible I made a horrible Remedies outline. It's also possible I should stop wasting my time and get something constructive done today.
__________________ Jeff Wilder, San Francisco Bay Area If your sig is longer than your posts, your sig is too
long. Nobody reads it, they just get annoyed by it. And if you bore me, you lose your soul to me. - Belly
I'm not exactly doubting you, but according to my old Remedies outline, laches can not only be asserted when there's a statute of limitations, but the laches period can actually be "much shorter" than the statute of limitations.
Laches can be applied in a situation where a statute of limitations exists, and if it does, then it is almost certainly shorter than the SoL. But courts (in my experience) don't like to apply laches under those circumstances, finding that it usurps the authority of the legislature in many cases. I'm not saying you couldn't make a laches argument, just that you'd likely face a very uphill battle if you did.
__________________ I don't know if I would consider being smashed into a pulp by a giant mace to be a "good result".
I'm afraid I only had the time to read the first 17 pages of this thread (two days ago), so someone may have already suggested this idea. If not, I'm confident enough that I'm right to post and accept public ridicule if I'm not:
This morning it occurred to me that the probable reason for WotC pulling their pdfs is that they no longer have an effective watermarking system. Other than the visible watermark with email and order #, etc., their lawsuit reveals the (previously hidden) existence of another watermark of the account number embedded in a pixel in each pdf. Now that they have had to reveal this through the lawsuit, they need to come up with a different watermarking scheme so pirates can't completely scrub the pdfs that are sold.
If this is correct, then those of us who legitimately bought pdfs and only bought pdfs of RPG material lost our access because WotC (and RPGNow) depended on "security through obscurity". Hopefully they will quickly come up with a better design that doesn't depend on secrecy and re-release the pdfs. They can contact me if they need some help with that design.
Why would they pull old (non-watermarked) pdfs too? Probably they have decided to only provide watermarked versions of any pdfs from now on. Hopefully they will discount them to reflect the reduced utility to the consumer of having a watermark.
The real question this brings up is: what are the other publishers who insist on watermarks going to do right now if their watermarks are now completely removable because WotC revealed the secret part of the watermark in their lawsuit? If I were a publisher depending on a secret to ensure the security of the watermark, I would be pretty mad that WotC revealed it. Then again, I wouldn't be surprised if most publishers didn't know the secret either. Do all the watermarked pdfs at RPGNow use the same system? I would be surprised if they didn't.
Of course, this doesn't eliminate piracy. If that was the only secret about the watermark system, all the watermarked WotC pdfs sold up to now can now be completely stripped of their watermarks. However, stopping pdf sales and coming up with a new watermark system is the only thing that can be done about it now, particularly if the secret had to be revealed in the lawsuits.
There would be no reason whatsoever to take down both the 4e and older edition materials, if they simply wanted to stop selling the older editions.
-O
I object that first, there is no reason to pull the plug on older materials if the real issue is the piracy of 4e PDFs.
We are told WotC is exploring new ways in which to deliver these online formats. Fine.
If later we see 4e materials reappearing in online format delivered via DDI or other WotC venues, and if, at the same time, we do not see older editions' materials resurface, or very selectively so, your argument here will have lost its appeal.
I object that first, there is no reason to pull the plug on older materials if the real issue is the piracy of 4e PDFs.
We are told WotC is exploring new ways in which to deliver these online formats. Fine.
If later we see 4e materials reappearing in online format delivered via DDI or other WotC venues, and if, at the same time, we do not see older editions' materials resurface, or very selectively so, your argument here will have lost its appeal.
The problem i also have with the whole thing is simply that WotC looks like they act first, think second and communicate sometimes later. And when they communicate, they simply do not offer enough informations for the community to satisfy their desire for information.
Sorry, but we do not live in the 80s anymore. Where is the problem to just make the lawsuit ready, let no new pdfs get published, think about a new way of delivery and when present - start the new delivery system? Where is the problem in easily communicating the when, how and why to your really loyal userbase before it happens (in a civilized time frame)? Don't tell me its a matter of time. Really - i am not believing that. And neither should anyone else imho.
I simply believe that people are making the wrong choices without really thinking things through. Thats sad and hurts.
I really know how hard it is to communicate something to the masses (having a mmo CM background) if the folks above don't give you the OK for the informations the community desires, but that doesn't change my view at the receiving end as a customer here. I respect Scott Rouse and think that his job is really hard and hope he gets payed well enough to the stuff he does, but i really want that to change. Thats like a communication crisis and the longer we don't get any information the bigger it gets imho. And thats a thing that really pisses me off as i know that the whole thing that happened could have gotten another spin with the right way of telling folks how it goes, why it got the point and how itwill go on in the future. But that needs facts which WoTC isn't really good at. Thats really one level with Funcom. Sorry.
Last edited by Shadowsong666; 10th April 2009 at 10:18 PM..
Reason: typomania..yeaha!
How many PDFs are purchased(and in that vein, how much money WotC makes off of them) compared to how many are pirated illegally. If pirated copies are significantly more common than legitimately purchased ones, I don't see where WotC had any real choice here. The issue is competition. They essentially are in competition with free pirated copies of themselves. If the ratio is really bad, they are in an untenable position.
Yes, we all acknowledge piracy is rampant, and it hurts publishers, retailers and legitimate consumers like. But it is unfortunately, a fact of modern life.
I certainly don't fault WotC for pursuing litigation. BUT, with this new stance, they're currently not even giving themselves a CHANCE to compete in the growing PDF market.
For example, I have been buying older edition PDF's (mostly Planescape, DarkSun and Ravenloft stuff I wasn't able to get when they were in print); I only need a few items to complete my collections, but now that seems like an impossibility to do legally for the time being...
That said, I'd dispute that it's more than just numbers at stake.
Beyond the sheer numbers, other factors WotC should consider include:
1) Fan backlash, including alienation of the "PDF-only" gamers, a growing market.
2) Retailer backlash. How is Paizo/DTRPG, etc., supposed to react to this quite-sudden 180 degree shift in policies?
3) Public perception (this ties in to to #1 above.)
4) Company reputation- And this is something that was ALREADY, it seems to me, on shaky ground (IE: The Dragon/Dungeon debacle from a few years ago, the GSL fiasoco, and the DDI still being a hot mess almost a YEAR after 4E debuted..)
Last edited by ShadowDenizen; 10th April 2009 at 11:10 PM..
The contracts have already been executed, so "maintenance" is likely trivial, if anything. Managing the fees is simple bookeeping, which they probably have people on staff for. It is almost impossible to imagine a scenario in which the marginal costs of the accounting work involved are not completely trivial.
I dunno, I'll have to take your word for it.
For me, if this were a way to eliminate the competition to D&D from D&D I'd think we would see some move towards taking down the clones.
OGL protects the outshoots of D&D, so it is doubtful that WotC could do that.
Yes, I agree.
But its about intent. If they were into bone headed moves to eliminate D&D competing with D&D would they not do the next bone headed thing and go after them? They have not.
I think people might be missing the big picture here. What we are lacking here is numbers. How many PDFs are purchased(and in that vein, how much money WotC makes off of them) compared to how many are pirated illegally. If pirated copies are significantly more common than legitimately purchased ones, I don't see where WotC had any real choice here. The issue is competition. They essentially are in competition with free pirated copies of themselves. If the ratio is really bad, they are in an untenable position.
I don't follow. If the ratio was, to use completely made up numbers, 3 legit copies for every 4 pirated copies, how is Wizards helped by the ration going to 0 legit copies for every 4 pirated copies? Or, to be more realistic (or cynical), 0 legit for 5 or 6 pirated.
It's when one uses hyperbole to equate the design of a new game system to that of being forcably terminated from a job.
It insinuates that WotC set out to intentionally lose you as a customer. The decision to no longer be their customer due to the creation of 4E is your own.
The more apt hyperbole would be that you quit being a customer. Actually, that's not even hyperbole and is more appropriate for these boards per the moderator's instructions.
No, no it wouldnt at all, be more apt that one quit being a customer. And its not quite right to say one has been fired as a customer either.
Its akin to GW currently. 4e and GW's newest move its more approriate to say that we(that is the folks that have been around since beginning or near begining, say roughly 30+) are not the target audience anymore.
That would be entirely approriate to say. And perhaps fairly accurate. *shrug* And much like in GW, you can be of the target audience and like and enjoy the product.(for example, my wife and some of her friends LOVE Twilight, but their not the author's target audience.)
If you want a pdf borrow your friends book, scan it and send WotC some cash in a plain brown envelope. If you don't want the pdf and do want the book, buy it. If you want the pdf but don't want to pay for it, download Pathfinder.
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