Battletech Lawsuit Update Thread

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Calbeck
07/19/09 04:18 AM
72.208.241.173

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A growing number of Battletech fans have learned that there is an ongoing lawsuit between myself and Topps, Inc. regarding ownership of the Battletech copyrights.

For those who don't know the details, here they are:


WORKING WITH FASA
FASA President Sam Lewis asked me to submit an outline for an Eridani Light Horse Scenario Pack in 1993. I did so, and I worked with FASA through 1996 on developing the project. Ultimately, they elected not to continue development, but didn't outright reject it either. It sat in FASA's slush pile for several years until the company was folded and Battletech was moved to WizKids.



PIRACY AND RECONCILIATION
Starting in 2001, WizKids enlisted Warner Doles' fansite ClassicBattleTech.com to be the official "Classic Battletech" website. It began distributing Battletech properties owned by WizKids, such as the original House sourcebooks, and the site's Terms of Service stated it was "owned and operated by WizKids LLC".

One of the big draws to the site was the Historical section, which included official Battletech fiction about various factions. And there, for the Eridani Light Horse, was the seven-page capsule history I'd compiled and expanded upon for the Scenario Pack during the '90s.

Problem: WizKids didn't own it. Neither had FASA, which had engaged me "on speculation" as opposed to under a "work for hire" contract. They'd never obtained the rights to my original material, much less the rest of the work which had been an authorized compilation according to US copyright law.

But they were presenting it as a canon part of the Battletech game universe.

I contacted WizKids via the website to notify them of the copyright infringement, and they were very apologetic and polite about the situation. They also asked if they could keep using it. Since they were being polite and apologetic, I decided to forgive the infringement and gave permission, so long as I was credited with the work. And since the original seven-page work had been a working draft never meant for publication and sorely out of date, I provided a new version with more than twice the content and a lot more detail.

At this point, everything was hunky-dory. I was happy, they were happy, no one got sued. WizKids, even after being bought out by Topps in mid-2003, continued to use my work as canon through August 2005.



TOPPS/WIZKIDS RENEGES
My work then disappeared from the site without notice or comment. I inquired as to what was going on, but no one would respond. I had written up and was discussing a third version of the ELH History on the ClassicBattleTech.com boards with a number of fans of the work, including several forum moderators, and no one said anything negative...until a new version did appear on the site and it wasn't mine.

Suddenly the position of the mods reversed. My work was now, supposedly, not canon, and furthermore never had been. I was told the deal I had made with WizKids in 2002 had never been legitimate...but no one at WizKids itself was saying this, or at FanPro. Only the volunteer forum mods did, and only one of them pointed to unnamed "senior WizKids staff" as telling them so.

If the mods were simply repeating what they'd been told by someone in authority, that would have re-opened WizKids to the original charges of copyright infringement --- but I had no evidence that anyone at WizKids supported the forum mods in what they were saying. All communications to WizKids, whether by email, phone or certified mail, went unanswered.



DEFAMATION
Meanwhile, fans of the game occasionally inquired as to whether or not my work was legitimate --- it remained mirrored on various fansites, and I had kept the original seven-page version on a personal site I hadn't updated since last millenium.

The CBT forum moderators continued to tell people that my work had never been a legitimate part of Battletech, and since it was the official Battletech site, their word was accepted as though it had been handed down from WizKids or its affiliates. I routinely attempted to defend my rights as an author, and the moderators responded with personal insults and threats of banishment from the site. Meanwhile, WizKids continued to ignore requests for clarification.

In August 2007, Catalyst Game Labs' Operations Manager Mr. Stansel-Garner made a formal statement in response to yet another of these blow-ups --- CGL did not consider any material which was not in physical print, and which was no longer on the website, to be canon.



LAWSUIT BASIS
Mr. Stansel-Garner's policy didn't, however, address whether or not my work ever HAD been canon, which was the whole point. I decided that this amounted to a formal and authorized person effectively(if not officially) backing the position of the forum mods.

Which meant not only my original work had been pirated by WizKids, but also the second version I submitted as part of the 2002 deal, and both works had been allowed for use through fraud.

I filed formal copyright for my work, a prerequisite for filing charges, and informed WizKids of my intent to sue if a settlement could not be arranged. WizKids continued ignoring me.



COPYRIGHT OFFICE DELAY
The US Copyright Office declared a four-month backlog. After four months, they declared the backlog was eight months. After that, it became twelve. During the wait for the filing to go through, I kept writing WizKids with reminders and requests for settlement. All were ignored.



LOREN COLEMAN'S INTERVENTION
Out of the blue, in May 2008, Loren Coleman called me up. Expressly stating he was not representing any party, but only acting as an individual out of love for the game, he wanted to know what was going on. I told him. He offered to act as an informal go-between for me and WizKids, and we hammered out some basic terms for settlement.

WizKids, according to Loren, expressed surprise that I would consider settling for so little --- the right to write the final version of the Eridani Light Horse History, and be formally accredited for it, under contract, without payment. They were willing to settle on those terms.

But I realized that, save for the formal contract, this was essentially the same deal I'd had with WizKids in 2002. I'd been hammered with personal abuse by people who were distinctly accountable to WizKids and its affiliates --- they could have been at the least reprimanded for their actions, but weren't. And WizKids had ignored all attempts at communication for nearly two years. I didn't think they deserved quite so generous a settlement.

So I said I would sign on to the terms IF I were given copyright, or at least joint copyright, to a single Battletech character: Roy Calbeck. He appears in no Battletech publications except my own work, and as "Sergeant, Galleon Light Tank, Veteran" in the original Mercenary Handbook. It would be hard to find a character less significant to the franchise, but I'd adopted him as an online person in the early '90s. He held sentimental value for me.

WizKids balked, cut off communications, and we were back to Square One. They didn't even give a counteroffer.



THE FILING
In November 2008, Topps announced the shutdown of WizKids. It seemed Battletech was up for sale, and if it did sell to another company before I could file my case, it would add another layer of complications. I made my filing against Topps in December and then pressured the Copyright Office to finish the copyright filing. They said the backlock was now up to sixteen months. I asked if they would like to tell the judge that. They promised to expedite it.

Topps responded to the lawsuit filing by saying they had no idea what works I was talking about, but that they were sure I had no copyrights in them at all. They filed a "shotgun boilerplate" defense of some twenty different generic claims, some of which actually contradicted each other.

Note that, by the time this case was actually filed, Topps had already taken the sale of both Battletech and Shadowrun off the table in its discussions with Catalyst Game Labs. Shadowrun has also never been mentioned or involved in the suit in any way.

This suit also has nothing to do with electronic game rights, which were purchased from FASA by Microsoft long before my deal with WizKids. Neither Mechwarrior 5 nor "Living Legends" are in any way affected by this filing.



DISCOVERY PROMPTS CHANGE IN LAWSUIT GOAL
In order to prepare for the February 2009 case management meeting, at which both parties were expected to begin the discovery process, I went through all my boxes of old records looking for anything that might be pertinent...and found the original 1996 FASA Submission Guidelines. Up to this point, I'd thought I was a "Contributor to a Collected Work", as defined under United States Code Title 17. This definition meant I held no copyright in anything related to Battletech except my own original stuff.

http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000201----000-.html

But the Guidelines said something else --- that the act of developing my work in conjunction with FASA's line developers amounted to an intent to "merge your work cleanly into the game universe". In terms of copyright law, merging multiple works from multiple authors together, with the intent they become part of a unified whole, creates a Joint Work.

Normally, FASA controlled its Battletech rights in one of two ways: simply not publishing something, or engaging its author in a "work for hire" contract otherwise. "Work for hire" means your copyrights become property of the company in exchange for the job, which is pretty standard in the writing business when creating something for someone's existing property.

But FASA'd never cut me a contract, "work for hire" or otherwise. Neither had WizKids, when they adopted my work as a canon part of the Battletech background fiction. Nor did WizKids, or any of its affiliates, impose any other sort of terms or state at any time that my work had never been part of the Battletech canon.

They'd merged my work cleanly into the game universe...creating a Joint Work encompassing the whole of Battletech. Under US copyright law, a Joint Work is held equally by all parties involved. Percentage of contribution doesn't matter a whit, unless there's a signed contract between the parties saying otherwise.

http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000101----000-.html

WizKids had effectively opened themselves to a claim on my part of co-ownership of the entire set of Battletech rights they owned as of June 2002...but I'd been completely ignorant of that fact, having forgotten the Submission Guidelines' terms, until forced to sue in order to obtain resolution.

Had WizKids just given me the joint rights to a character which didn't matter to any significant fiction in the franchise, I'd have ignorantly signed over my co-rights to the entire kit and caboodle. Good thing for me, I suppose.

I promptly filed an Amendment to my original Complaint claiming co-ownership, and it was allowed by the court.



THE CHAIN OF AUTHORITY
Further solidifying the case was the fact that WizKids' Battletech Line Editor was Randall Bills...the same guy who I'd worked with at FASA when he was a Battletech Line Developer. It was his job to know of the terms listed in the Submission Guidelines.

Bills had enlisted Warner Doles to run ClassicBattleTech.com for WizKids...Warner pointed publically to Randall making him "part of the team". And the website, as mentioned above, claimed in its Terms of Service that it was owned and operated by WizKids itself.

This made Warner's electronic publication of my work, having been authorized to make such publications on behalf of WizKids (including the PDF versions of the original House Sourcebooks), an act of WizKids itself as a corporate entity.



WHEW!
So there you have it. It's a complicated case. It should have been wholly unnecessary, had WizKids taken any of the outs they were given.

They could have overridden the forum mods' personal bashing, affirmed my credentials, and I'd have gone away.

They could have settled for the price of getting free work from me and allowing joint rights to a character no one but me cares about.

They could have engaged me in a "work for hire" contract in the first place when they decided my work was good enough to represent the official history of the Eridani Light Horse, or at the least put up some kind of disclaimer noting it as fanfic as opposed to presenting it as canon.

Or, at the very least, they could have elected not to pirate my work in the first place and use their own. Two of the forum mods have made public statements that my work was lifted either from my original 1996 submission to FASA, or "copy-pasta'd" from my personal website. Mind you, they claim that the theft was justified because my work contained a lot of material collated from previous Battletech products --- ignoring the fact that FASA had allowed the use, and ignoring US copyright laws stating that collations equate to original works even if they include no new material.

So now I'm making a claim to co-ownership of the whole thing...I haven't been allowed to settle for anything less, and I can't claim less in court without undermining my own case ("if you co-own the whole of the property, why are you only claiming part?").

The case will be decided, one way or the other, in December. Updates will follow, until this is done, as appropriate.


Edited by Calbeck (07/19/09 05:39 AM)
Calbeck
07/19/09 04:47 AM
72.208.241.173

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DISCOVERY PROCESS

The formal discovery phase is now complete, with both sides having presented all documents they know of which they expect to use in court either for offense or defense. I requested Topps present all records of communication between myself and WizKids and its affiliates between 2001 and 2007.

Topps has now formally stated they don't have that information and have no idea where to get it. What that means is, the 330+ records I've already submitted will likely go uncontested as being THE record of communications regarding my work during that period.

These include statements, public and private, by ClassicBattleTech.com forum mods asserting that my work was pirated and that, moreover, the piracy was justified on belief that I "stole" it to begin with. One says that they were told these things by "senior WizKids staff". Other key statements include Warner Doles' 2005 assertion that my work had been published on the site as canon. More generic records show my work appearing on the site as early as October 2001, my being accredited as its author in June 2002, and the appearance of the second version, with accreditation, in August of that year.

Topps has produced nothing so far in response to any of this, and it doesn't look like they expect to.

What HAVE they provided so far?

A copy of the Eridani Light Horse entry in the original Mercenary Handbook from 1987, and documentation about an earlier court case concerning this work between myself and FASA. FASA had filed that case in response to a belief I'd stated that they had partially plagiarized my work for a novel called "Grave Covenant" (I later withdrew that claim after speaking to the author, Mike Stackpole, about it and realizing he'd come up with the same ideas independently).

The first bit doesn't help them: my work, being the Eridani Light Horse Scenario Pack, came later, and was developed in conjunction with FASA Corporation. Everything I used from previous publications such as the "Mercenary Handbook" was used with permission. My work also contained original elements that appear in no other Battletech material. If they're going to claim plagiarism, it's going to fall flat.

As to the court documentation, I never heard a decision from the court on the issue one way or the other. Both filings, from myself and FASA, are in the records, but no decision from the court is there. I had believed FASA simply dropped the case, and it looks from this like that's what they did.

The documentation itself, however, is rather damning of FASA. It includes a court transcript of FASA President Morton Weisman, in telephone conversation with me, admitting that FASA had made certain commitments in regards to the ELH Scenario Pack.

It also includes a lengthly essay from Mike Stackpole, FASA's best-selling author with several books having hit the New York Times' Bestseller List, excoriating FASA's business and financial practices as disorganized to what could arguably be called a criminal level. He states FASA owed him over $100,000 at one point due to incomplete accounting methods, as well as the fact that they routinely bilked other authors who got paid only because Mike withheld from collecting on his own royalties.

For his part, Mike said he excused this because he expected it from a game company, and because he loved Battletech enough that he didn't want to push the issue. But in the end, he vowed not to write any more novels for FASA --- and to my knowledge, he didn't.

What does this do for my case?

It helps establish a pattern of disorganization and malfeasance regarding the treatment of Battletech's authors. Since the key people at FASA were also later the key people at WizKids, the pattern becomes inclusive, instead of stopping at FASA's borders. Indeed, one of the excuses made for my poor treatment, by some of the witnesses named in this case, is that better authors with more publications to their credit were treated far worse.



EARLY NEUTRAL EVALUATION

I wanted a magistrate judge assigned to evaluate the merits of fact and law...the judge, while agreeing it was within his power to do so, declined to allow it. His reasoning was that we were almost at the end of the discovery phase, which he personally considered to amount to a deadline for such a review. He acknowledged that there's nothing in the law which says such a deadline exists...it's simply his position on the matter. Topps' insistence that there can be no settlement which acknowledges I own copyright in anything related to Battletech further settled his mind, in that the entire point of ENE is to provide a basis from which the parties may elect to arrive at a settlement.



CONFIDENTIALITY AGREEMENT

Topps again insisted on a Confidentiality Agreement which I felt was far too sweeping in scope. I pointed out that the existing Federal Rules already allow for a process regarding protected information. The judge largely agreed, requiring Topps to create a list of documents they felt were protected so I could review it.

I was expecting a long list...but Topps only sent one entry, and it doesn't seem to be at all related to the case. It's doesn't even have anything to do with any business I conducted with FASA or WizKids.

So I called Topps' legal counsel to ask about it, and we ended up briefly discussing their position that Jordan Weisman did not own the rights to Battletech. Instead, it's claimed, FASA and then WizKids owned the rights.

But Weisman founded and owned both companies. And corporations don't own copyrights unless those rights are assigned. Topps' legal counsel insisted that Weisman had NEVER owned the rights, either.

Because the question of who (or what) DID own the rights is kind of central to this case, I'm in process of contacting Jordan Weisman to see what he has to say on the matter.


UPDATE: Jordan did originate the game, but apparently transferred his rights to FASA Corporation during the '80s. Making the question thus: is an agreement still valid if it is made in relation to an intellectual property, said property being transferred from one company (FASA) to another (WizKids), if both companies are owned by the same person (Jordan Weisman)?

I've called up a couple of lawyers to consult on that particular conundrum. In the end, it would affect whether or not FASA's commitment to "merge your work cleanly into the game universe" still applied when WizKids published my work.

It might still not matter since even without the specific statement of intent, the actual action of WizKids was to publish my work as canon --- which merged it into the game fiction. How far that would reach, though, would be another question entirely. Would it cover the whole game universe? Just that part which appeared on CBT.com? Or what?


Edited by Calbeck (07/19/09 05:57 AM)
FrabbyModerator
03/14/10 07:53 AM
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Quote:

The case will be decided, one way or the other, in December. Updates will follow, until this is done, as appropriate.



I'll admit to being curious here. It's been three months since December... no update yet?
CrayModerator
03/14/10 06:35 PM
173.168.115.68

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I recommend asking on CBT.com's Masters of the Universe forum, preferably without mentioning I recommended you do so. I'm not sure what I could say without pissing off Herb, though I could summarize the result in two words.

If you're feeling motivated, the result is a matter of public record. I don't have the details on the court case, though, not with BTechUnits.com down.
Mike Miller, Materials Engineer

Disclaimer: Anything stated in this post is unofficial and non-canon unless directly quoted from a published book. Random internet musings of a BattleTech writer are not canon.
FrabbyModerator
03/15/10 09:03 AM
79.224.152.174

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A few helpful people PMed me with the relevant info. To sum it up, Calbeck apparently lost because of a formal issue, but would have lost anyways because his claims were ultimately considered to be without merit even if he had not made any formal mistakes. Guess that's settled then.

http://scholar.google.com/scholar_case?case=1058314781312857617&q=malcomson+topps&hl=en&as_sdt=2002
Rodon
03/15/10 11:09 AM
68.47.123.9

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Settled yes, fair? No.
FrabbyModerator
03/15/10 11:44 AM
79.224.152.174

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Why do you hold it to be not fair?

Mind you, I don't have strong feelings for nor against Calbeck. I certainly don't hate him or his case. But from what he posted in this thread I felt that he had a fairly weak position in his claim to co-ownership to the entire franchise to begin with, and certainly no right to the character (name) of Roy Calbeck whom he fleshed out but did not initially create himself.
I'm not surprised by the outcome. A few things are not mentioned which I thought might be relevant, but I am not accustomed to the procedures of US litigation. I think the reasons given for the ruling are sufficiently plausible. What sort of surprised me is the lengths to which the court went to make it abundantly clear that the claim was without merit.

In my profession have seen a lot of people pursuing lawsuits out of spite, as a matter of principle rather than out of an interest in the matter. They usually lose the ability to see their problem in proportion and tend to turn a minor issue into an unwinnable personal crusade (the pursuit of which invariably drains the individual in all respects, for no gain whatsoever). The inability to adequately deal with a slight problem, to accept what they perceive as wrong, can ruin an entire life.
I think Calbeck fell into the trap of convincing himself that he was right. I can totally see where he's coming from (he probably did have a point in the beginning), but from a certain point onwards he should have dropped the matter - only he was unable to. It was too important to him. Thus he ended up defending an untenable legal position.
GiovanniBlasini
03/17/10 03:49 AM
64.183.4.46

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Quote:

I recommend asking on CBT.com's Masters of the Universe forum, preferably without mentioning I recommended you do so. I'm not sure what I could say without pissing off Herb, though I could summarize the result in two words.

If you're feeling motivated, the result is a matter of public record. I don't have the details on the court case, though, not with BTechUnits.com down.




Site should hopefully be back up tomorrow or Thursday - in a way, migrating it to my place after our hosting weirdness/issues is helping me practice for a couple of my Microsoft certifications (this is my first web server).

That said...we didn't really have much more to say about the resolution of the case there, either.
Member of the Pundit Caste
"Which side are we on? We're on the side of the demons, Chief. We're evil men in the gardens of paradise, sent by the forces of death to spread devastation and destruction wherever we go. I'm surprised you didn't know that." -- Col. Saul Tigh, BSG2003
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