My thanks to Hannes and the administrators, who agreed to post this update. This is a summary of what’s happened in the last month, in an effort to clear up the misinformation going around, and keep the community informed on this important issue.
On January 19th, Wizards announced on their website the filing of a civil lawsuit against me, for “unauthorized display of a prototype”. For those of us who frequent the Rumor Mill, the meaning of that was clear. At the same time, MTGSalvation’s service provider was sent a DMCA notice from Wizards, which was basically an order to remove a handful of discussions in the forums or face legal action. MTGSalvation’s ownership quickly complied.
On January 24th, my wife was served with the legal documents. Wizards' attorneys have accused me of copyright infringement, contributory copyright infringement, trade secret violation, unjust enrichment, and breach of contract. They are also making similar charges against unnamed individuals (“John Doe” 1 through 10).
Many posts, emails, PMs, and IMs have been made on this topic. In fact, the forum threads that sprouted just after the announcement combined to make up the fastest growing conversation in MTGSalvation history. I haven’t been able to until now, but I want to give my personal thanks to everyone who has revealed their thoughts, ideas, and support. It was the support that helped me focus during a confusing time. I know there are a great many people, tens of thousands in fact, who are carefully watching the issue. Many have signed a petition, prerelease events were cancelled, and boycotts are in place across the globe. Hundreds of letters and emails have been sent to Wizards protesting their actions. Many people see this as a very real attack on the fans of Magic and therefore on the game itself.
It was during this time that I met Jay Shergill, a lawyer with a keen interest in copyright and trademark issues, as well as an avid and long-time player and collector of Magic. Jay had known of me for some time, although I was just getting to know him. After discussing the issues at hand (over a few online games of Extended pauper Magic) he agreed to take my case. That was fortunate for me for a few reasons. One, Jay is familiar with MTGSalvation, Magic, and myself, and hasn’t needed much time at all to get up to speed on the facts. Two, he’s interested in and capable of handling the type of lawsuit Wizards has brought forth. Hasbro (Wizards parent company) is one of the largest and most influential gaming companies in the world. They’ve hired one of the largest and most powerful law firms in the US. Neither defending myself without a lawyer, nor paying hundreds of dollars an hour for my defense, are conceivable options.
Most importantly, Jay has said that he believes enough in my case to work pro bono, as in "for free." That means that his hourly fee will be waived and I’ll only be responsible for the costs of the case. He has already given me several thousand dollars worth of his time.
We filed an "answer," a legal term meaning a reply, to the lawsuit on February 13th. The very next day, and even though my answer had been sent on time, Wizards' attorneys filed a motion for default judgment and a proposed order for the Judge to sign asking the court to grant:
• An award of $90,000 USD
• Attorneys' fees and costs
• Interest on those amounts
• An injunction preventing me from discussing Wizards' not publicly available materials
Wizards' attorneys' motion is yet to be approved.
A lot more has happened in this case, but these are the highlights. In describing what's happened so far, I've tried to draw a distinction between Wizards and their attorneys. I truly believe that Wizards are a good group of people who work on this game because they love it. However, the attorneys they have hired are asking for $90,000.00 plus whatever legal bills they've racked up and interest on that amount. I’m a psychiatric nurse, working part time and supporting a wife and two little boys. I can't even afford to pay my own attorney, let alone pay for Wizards' massive law firm.
If anyone from Wizards is reading this article, please ask your attorneys to be reasonable. I would have happily discussed your concerns person to person, without the need for a costly and detrimental lawsuit. I'm hoping that you'll agree to talk about these issues and resolve them. For everyone else, please continue to write to Wizards and ask them to contact me and resolve this. They know I don’t have any money, and in having their attorneys bankrupt my family and I, they will gain little and lose much.
I’ve been told that anyone is able to look up and read copies of the motions filed in this (or any) case I just don’t know exactly how that’s done. If you know how, feel free to do so! I’m sorry for the complexity of this information. I tried to present it in as clear and understandable a manner as I could. Additionally, I’m willing to answer all questions, so please post them here or contact me privately.
Daron
A collector, trader, buyer, seller, enthusiast, and player of the game of Magic.
R_E: I'd like to personally offer my support for you in resolving this issue. No magic fan in his or her right mind could ever see what you have done as being detrimental to the game we all love, and I sincerely hope that WotC and Hasbro will work something out with you that won't hurt you or your family. The entire magic community has your back, and we thank you for all you have done, and for keeping us informed.
Good luck!
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What in the name of all that's holy are you smoking????
All the best, R_E. Sad to see the sum of costs that's being shoved in your face, but don't worry. I believe that no bad will come to those who have not done wrong. You will have my support.
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Pleased to hear about Jay Shergill. Good to be reminded not all lawyers are evil.
And, of course, good luck.
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Thats pretty much balls R_E. Sorry to hear its going down like this. Its been a long time since i studied copy right law but i still dont get why their doing this.
Section 504: Remedies for infringement: Damages and profits sub parts "c" {2}
In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
I would think your only looking to prove that your working under defination (ii) as a not for profit broadcasting entity. And that you didnt know you were doing anything, as you have said, no one from Wizards has even spoken to you about this situation.
And lets face it when it all comes down to it, we're talking about little pieces of cardboard with pictures on it. More than likely you can get the judge to simply laugh it out of court. Most people in the real world still dont take things like this seriously. If the owners of Diamond Comics can have a monopoly strangle hold on the comic industry ((marvel and DC)) than its still not taken very seriously in the other formats either.
But like i said its been along time since i've studied copy right law, and that was only in college for a while.
'unjust enrichment'... First off, you're only selling stuff you buy from them, so any money you gain would in turn gain them money.
On a more serious note... does that mean they think you're selling a product that doesn't exist yet? o.O
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Possibly the last remaining member of the Banana Clan (+1)
Banana of the Month Feb '05 Cool stuff here.
All our support!! I for one will continue my well written letter campaign to WotC... I really think that in this case, well thought out, non-agressive leter writing, is probobly they only way to prove to WotC that the Magic community is so furious over this...
All my respect to R_E and his lawyer who is obviously an honest and hardworking lawyer (a rare find)....
KEEP UP THE GOOD FIGHT BOYS!!!! Were Behind You 100%!!
Please, accept that Magic costs money to play, and drop it. A playset of Baneslayers>playset of duals. New Jace>Force of Will. Etc... Not to mention, Legacy is so wide open, that it's easy to build a deck that can perform reasonably well without very many "money staples" at all.
How can they cite you for "breach of contract?" Did you ever sign a NDA with them?
I don't think WotC has any case here, and they know it. That's why they didn't bother to contact you first hand and why they filed for a default judgment. They're trying to sneak this whole thing through.
Hang in there, Daron. Not only do I believe you'll win, but I believe you have the grounds to countersue after you do.
'unjust enrichment'... First off, you're only selling stuff you buy from them, so any money you gain would in turn gain them money.
On a more serious note... does that mean they think you're selling a product that doesn't exist yet? o.O
Wizards' attorneys have alleged: "As a result of Defendants' aforementioned acts, Defendants have been unjustly enriched."
In common language, they're not being specific about what it is they think I've done to become richer as a result of discussing their cards.
In fact, they've asked the Judge to order me to never discuss any magic card, not yet in print or in print, ever again.
EDIT:
Quote from Shade »
How can they cite you for "breach of contract?" Did you ever sign a NDA with them?
I've never signed a non-disclosure agreement with Wizards. They're accusing myself and the John Doe Defendants of breach of contract. Since they are claiming they don't know who the John Doe Defendants are, they have to accuse me and them of all of the same actions.
On a more serious note... does that mean they think you're selling a product that doesn't exist yet? o.O
actually, i'm beginning to doubt that 'copyright infringement' is the proper term for the case... he isn't selling something that's been produced, and he isn't under a nondisclosure contract. this has been repeated many times, but R_E isn't doing anything illegal. it's his contacts that have been acting illegally (breaching contracts and whatnot).
In fact, they've asked the Judge to order me to never discuss any magic card, not yet in print or in print, ever again.
Hm. I can see the "not yet in print" part, but isn't the second part a complete and utter violation of freedom of speech?
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I've never signed a non-disclosure agreement with Wizards. They're accusing myself and the John Doe Defendants of breach of contract. Since they are claiming they don't know who the John Doe Defendants are, they have to accuse me and them of all of the same actions.
They are REALLY reaching here. It baffles me that they think they have any case at all.
As soon as I saw this, I thought: They must be kidding. No man with a common sense could want this.
I add my voice to yours, Daron.
Please, any people of Wizards who are reading this: Be reasonable. What you want to accomplish by crushing a family man? You want to destroy a man's life because of little pieces of paper? You know that the amount of money is absurd with regard to his position.
The game...your game...is people. With no people, nobody will play it.
If you will continue with this ridiculous issue, you will kill Magic, for good.
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WotC is asking for so much because they want to have room to negotiate a settlement later. They know they have no chance in hell. As long as Daron is willing to wait out WotC on this thing and not crack, he's got 'em. Daron did nothing wrong, and as long as he remembers that, he has them beat.
actually, i'm beginning to doubt that 'copyright infringement' is the proper term for the case... he isn't selling something that's been produced, and he isn't under a nondisclosure contract. this has been repeated many times, but R_E isn't doing anything illegal. it's his contacts that have been acting illegally (breaching contracts and whatnot).
Copyright infringement does not require that a person make money off of the thing infringed. No contracts or money needed.
Quote from Bizkit_Overlord »
Hm. I can see the "not yet in print" part, but isn't the second part a complete and utter violation of freedom of speech?
Yes, it is. Wizards' attorneys are basically claiming that US copyright law may apply to Canadians, but the first amendment does not. They are asking for the Judge to stop Daron from:
"directly or indirectly infringing Plaintiff's rights under federal or state law in copyrighted trading cards (including artwork and text), whether now in existence or later created..."
Quote from Shade »
IMO, you have nothing to worry about.
I'm very sorry to say that this is not the case. Wizards' attorneys have asked the judge to not consider our responses and just make Daron pay $90,000 plus their attorneys' fees. If we had not filed a response, they would have gotten it, too.
Quote from Shade »
WotC is asking for so much because they want to have room to negotiate a settlement later. They know they have no chance in hell. As long as Daron is willing to wait out WotC on this thing and not crack, he's got 'em. Daron did nothing wrong, and as long as he remembers that, he has them beat.
Again, this is not the case. They have not approached Daron informally about settlement. They've just asked the judge for $90,000 plus everything mentioned in Daron's post. This is absolutely not a negotiation tactic. They've filed a motion for a default order. They have basically asked the judge to declare them the winner of the law suit and make Daron give them $90,000.
Please, any people of Wizards who are reading this: Be reasonable. What you want to accomplish by crushing a family man? You want to destroy a man's life because of little pieces of paper? You know that the amount of money is absurd with regard to his position.
The game...your game...is people. With no people, nobody will play it.
If you will continue with this ridiculous issue, you will kill Magic, for good.
Wizards doesn't care about one man and his family. One person also doesn't make the game. Sure RE did a lot of things for the MTG Community in terms of rumors, but I am sure as hell not all the people who play MTG are going to quit if they do stomp him down to nothing. I am sure it will be a little handful if anything but then they will be sucked back into it. They are a business. They have to do whatever it takes. Survival of the Fittest. I don't mean to be rude but that is how it is. That is life. Real life.
WotC is asking for so much because they want to have room to negotiate a settlement later. They know they have no chance in hell. As long as Daron is willing to wait out WotC on this thing and not crack, he's got 'em. Daron did nothing wrong, and as long as he remembers that, he has them beat.
Exactly.
@RE: Offer them $10, all information you have on people leaking stuff (which amounts to about nothing), and agree not to discuss cards that have not yet seen print, and do so publicly by posting the offer here, before they act on it. If they ridicule you for it, then you know they're unfairly out for blood. And if they take it, I'll even pay the ten bucks for you.
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Hey all... I'm retired, not dead. Check out what I'm doing these days (and beg me to come back if you want):
Wizards doesn't care about one man and his family.
When possible, we've tried to separate out what Wizards have done versus their attorneys. We believe that Wizards does care about their players and will ask their attorneys to be reasonable.
Quote from Annorax »
@RE: Offer them $10, all information you have on people leaking stuff (which amounts to about nothing), and agree not to discuss cards that have not yet seen print, and do so publicly by posting the offer here, before they act on it. If they ridicule you for it, then you know they're unfairly out for blood. And if they take it, I'll even pay the ten bucks for you.
By filing their Motion for Default Judgment, Wizards' attorneys have indicated they are not interested in settling this case. They are have asked for $90,000 and attorneys' fees, not $10 and a compromise. If they were interested in a compromise, they would have sent an e-mail to Daron before they filed a lawsuit.
Good luck with your case. I don't follow the Rumor Mill, but it seems that WOTC is trying to quash any "leaks" of their cardsets that are soon to come out. Unfortunately, they don't realize the damage this is doing to their fanbase. If boycotts of prereleases aren't a big red flag for them, I don't see what can be done to stop their madness.
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Truth is my mission, and Logic and Reason are my weapons. - Rush Limbaugh
This reminds me of a case I was reading about where Microsoft sued some kid for selling an unopened copy of Windows on ebay. The kid was a college student at the University of Akron and he won vs the biggest computer software company in the business. So take heart, he didn't even HAVE legal representation and he forced them to back down. I wonder if you can counter sue once they realize how full of crap these charges are?
On January 19th, Wizards announced on their website the filing of a civil lawsuit against me, for “unauthorized display of a prototype”. For those of us who frequent the Rumor Mill, the meaning of that was clear. At the same time, MTGSalvation’s service provider was sent a DMCA notice from Wizards, which was basically an order to remove a handful of discussions in the forums or face legal action. MTGSalvation’s ownership quickly complied.
On January 24th, my wife was served with the legal documents. Wizards' attorneys have accused me of copyright infringement, contributory copyright infringement, trade secret violation, unjust enrichment, and breach of contract. They are also making similar charges against unnamed individuals (“John Doe” 1 through 10).
Many posts, emails, PMs, and IMs have been made on this topic. In fact, the forum threads that sprouted just after the announcement combined to make up the fastest growing conversation in MTGSalvation history. I haven’t been able to until now, but I want to give my personal thanks to everyone who has revealed their thoughts, ideas, and support. It was the support that helped me focus during a confusing time. I know there are a great many people, tens of thousands in fact, who are carefully watching the issue. Many have signed a petition, prerelease events were cancelled, and boycotts are in place across the globe. Hundreds of letters and emails have been sent to Wizards protesting their actions. Many people see this as a very real attack on the fans of Magic and therefore on the game itself.
It was during this time that I met Jay Shergill, a lawyer with a keen interest in copyright and trademark issues, as well as an avid and long-time player and collector of Magic. Jay had known of me for some time, although I was just getting to know him. After discussing the issues at hand (over a few online games of Extended pauper Magic) he agreed to take my case. That was fortunate for me for a few reasons. One, Jay is familiar with MTGSalvation, Magic, and myself, and hasn’t needed much time at all to get up to speed on the facts. Two, he’s interested in and capable of handling the type of lawsuit Wizards has brought forth. Hasbro (Wizards parent company) is one of the largest and most influential gaming companies in the world. They’ve hired one of the largest and most powerful law firms in the US. Neither defending myself without a lawyer, nor paying hundreds of dollars an hour for my defense, are conceivable options.
Most importantly, Jay has said that he believes enough in my case to work pro bono, as in "for free." That means that his hourly fee will be waived and I’ll only be responsible for the costs of the case. He has already given me several thousand dollars worth of his time.
We filed an "answer," a legal term meaning a reply, to the lawsuit on February 13th. The very next day, and even though my answer had been sent on time, Wizards' attorneys filed a motion for default judgment and a proposed order for the Judge to sign asking the court to grant:
• An award of $90,000 USD
• Attorneys' fees and costs
• Interest on those amounts
• An injunction preventing me from discussing Wizards' not publicly available materials
Wizards' attorneys' motion is yet to be approved.
A lot more has happened in this case, but these are the highlights. In describing what's happened so far, I've tried to draw a distinction between Wizards and their attorneys. I truly believe that Wizards are a good group of people who work on this game because they love it. However, the attorneys they have hired are asking for $90,000.00 plus whatever legal bills they've racked up and interest on that amount. I’m a psychiatric nurse, working part time and supporting a wife and two little boys. I can't even afford to pay my own attorney, let alone pay for Wizards' massive law firm.
If anyone from Wizards is reading this article, please ask your attorneys to be reasonable. I would have happily discussed your concerns person to person, without the need for a costly and detrimental lawsuit. I'm hoping that you'll agree to talk about these issues and resolve them. For everyone else, please continue to write to Wizards and ask them to contact me and resolve this. They know I don’t have any money, and in having their attorneys bankrupt my family and I, they will gain little and lose much.
I’ve been told that anyone is able to look up and read copies of the motions filed in this (or any) case I just don’t know exactly how that’s done. If you know how, feel free to do so! I’m sorry for the complexity of this information. I tried to present it in as clear and understandable a manner as I could. Additionally, I’m willing to answer all questions, so please post them here or contact me privately.
Daron
A collector, trader, buyer, seller, enthusiast, and player of the game of Magic.
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Good luck!
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And, of course, good luck.
(I'm on on this site much anymore. If you want to get in touch it's probably best to email me: dom@heffalumps.org)
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MTGSalvation Articles: 1-20, plus guest appearance on MTGCast #86!
<Limited Clan>
Section 504: Remedies for infringement: Damages and profits
sub parts "c" {2}
I would think your only looking to prove that your working under defination (ii) as a not for profit broadcasting entity. And that you didnt know you were doing anything, as you have said, no one from Wizards has even spoken to you about this situation.
And lets face it when it all comes down to it, we're talking about little pieces of cardboard with pictures on it. More than likely you can get the judge to simply laugh it out of court. Most people in the real world still dont take things like this seriously. If the owners of Diamond Comics can have a monopoly strangle hold on the comic industry ((marvel and DC)) than its still not taken very seriously in the other formats either.
But like i said its been along time since i've studied copy right law, and that was only in college for a while.
Still mate i hope all goes well
On a more serious note... does that mean they think you're selling a product that doesn't exist yet? o.O
Possibly the last remaining member of the Banana Clan (+1)
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Cool stuff here.
All my respect to R_E and his lawyer who is obviously an honest and hardworking lawyer (a rare find)....
KEEP UP THE GOOD FIGHT BOYS!!!! Were Behind You 100%!!
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I don't think WotC has any case here, and they know it. That's why they didn't bother to contact you first hand and why they filed for a default judgment. They're trying to sneak this whole thing through.
Hang in there, Daron. Not only do I believe you'll win, but I believe you have the grounds to countersue after you do.
Wizards' attorneys have alleged: "As a result of Defendants' aforementioned acts, Defendants have been unjustly enriched."
In common language, they're not being specific about what it is they think I've done to become richer as a result of discussing their cards.
In fact, they've asked the Judge to order me to never discuss any magic card, not yet in print or in print, ever again.
EDIT:
I've never signed a non-disclosure agreement with Wizards. They're accusing myself and the John Doe Defendants of breach of contract. Since they are claiming they don't know who the John Doe Defendants are, they have to accuse me and them of all of the same actions.
.
actually, i'm beginning to doubt that 'copyright infringement' is the proper term for the case... he isn't selling something that's been produced, and he isn't under a nondisclosure contract. this has been repeated many times, but R_E isn't doing anything illegal. it's his contacts that have been acting illegally (breaching contracts and whatnot).
Hm. I can see the "not yet in print" part, but isn't the second part a complete and utter violation of freedom of speech?
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And good luck R_E, we are with you.
They are REALLY reaching here. It baffles me that they think they have any case at all.
IMO, you have nothing to worry about.
I add my voice to yours, Daron.
Please, any people of Wizards who are reading this: Be reasonable. What you want to accomplish by crushing a family man? You want to destroy a man's life because of little pieces of paper? You know that the amount of money is absurd with regard to his position.
The game...your game...is people. With no people, nobody will play it.
If you will continue with this ridiculous issue, you will kill Magic, for good.
Let this great clan rest in peace (2001-2011)
I'll try to field as many questions as I can.
Copyright infringement does not require that a person make money off of the thing infringed. No contracts or money needed.
Yes, it is. Wizards' attorneys are basically claiming that US copyright law may apply to Canadians, but the first amendment does not. They are asking for the Judge to stop Daron from:
"directly or indirectly infringing Plaintiff's rights under federal or state law in copyrighted trading cards (including artwork and text), whether now in existence or later created..."
I'm very sorry to say that this is not the case. Wizards' attorneys have asked the judge to not consider our responses and just make Daron pay $90,000 plus their attorneys' fees. If we had not filed a response, they would have gotten it, too.
Again, this is not the case. They have not approached Daron informally about settlement. They've just asked the judge for $90,000 plus everything mentioned in Daron's post. This is absolutely not a negotiation tactic. They've filed a motion for a default order. They have basically asked the judge to declare them the winner of the law suit and make Daron give them $90,000.
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Exactly.
@RE: Offer them $10, all information you have on people leaking stuff (which amounts to about nothing), and agree not to discuss cards that have not yet seen print, and do so publicly by posting the offer here, before they act on it. If they ridicule you for it, then you know they're unfairly out for blood. And if they take it, I'll even pay the ten bucks for you.
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When possible, we've tried to separate out what Wizards have done versus their attorneys. We believe that Wizards does care about their players and will ask their attorneys to be reasonable.
By filing their Motion for Default Judgment, Wizards' attorneys have indicated they are not interested in settling this case. They are have asked for $90,000 and attorneys' fees, not $10 and a compromise. If they were interested in a compromise, they would have sent an e-mail to Daron before they filed a lawsuit.
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