Difference between revisions of "Eridani Light Horse lawsuit"

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In what colloquially became known as the '''Eridani Light Horse lawsuit''' among the [[BattleTech]] fan base, plaintiff [[Scott Malcomson|Scott "Calbeck" Malcomson]] unsuccessfully sued [[Topps, Inc.]] for joint ownership of the BattleTech intellectual property.
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==External Links==
 
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''The following link was material written by Scott Malcomson and published by WizKids LLC to its official Battletech website "ClassicBattleTech.com" in August of 2002.
 
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  * http://web.archive.org/web/20020804162508/www.classicbattletech.com/ELH.html
 
  
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In October 2001, WizKids LLC (listed in the site's legal documentation of the time as its primary owner and operator, in partnership with unnamed "affiliates") published a version of this work which had originally been developed 'on spec' by Malcomson and FASA Corporation in 1996.  According to later court testimony provided in writing by former website administrator Jason Knight, Malcomson's work had been "copypasta'd" from his personal website by someone working for ClassicBattleTech.com.  Although a portion of the site had been set aside for fan-fiction and art, the material was incorporated into the site's official online database for articles pertinent to various in-game factions.
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The dispute was rooted in a piece of fiction pertaining to the history of the [[Eridani Light Horse]] (ELH) [[mercenary unit]] written by Malcomson that had been published online on what was then the official BattleTech website for a time; many circumstantial details remained disputed.
  
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This version of the work did not include credit to Malcomson for his contributions, but it did include an illegal claim of copyright for WizKids regarding the article in its entirety.
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==Background==
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===Scenario Pack draft===
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In the early 1990s, BattleTech fan Scott Malcomson contacted [[FASA]] with the proposal to write a novel centering on the Eridani Light Horse. This was a high-profile mercenary unit within the BattleTech universe that, however, had very little information about it published at that point. FASA declined the proposal, but suggested Malcomson should write a scenario pack centering on the unit 'on spec', which meant FASA retained the option to reject the work even after Malcomson submitted his completed manuscript. Malcomson subsequently submitted a manuscript in 1993. The work on this submission continued into 1996, with several letters concerning its content exchanged between Malcomson and FASA; FASA determined not to publish the submission in September 1996.<ref name=CO>According to the "Background" as established in court documents pertaining to the case, specifically the court order dated 1/28/10[https://docs.justia.com/cases/federal/district-courts/arizona/azdce/2:2008cv02306/418129/69/]</ref>
  
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* http://web.archive.org/web/20020601201927/http://www.classicbattletech.com/ELH.html
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FASA ceased active operations in January of 2001, and the BattleTech IP was transferred to [[WizKids LLC]], who in turn licensed the rights to what was now branded as [[Classic BattleTech]] to [[FanPro]]. WizKids was bought by Topps, Inc., in 2003.
  
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On discovery of the plagiarism, Malcomson lodged a complaint with the site's webmaster of the time, receiving an apology in response followed by a request to continue using the work.  As the 'on spec' material used had been a working draft, and was thus both incomplete and riddled with typographical errors, Malcomson provided a finished version which WizKids published without complaint in the same fashion as it had the first.  This time, Malcomson was not only credited on the article's page, but also in the website's formal "Credits" section.
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===Roy Calbeck character===
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In BattleTech [[canon]], one Sergeant [[Roy Calbeck]] had been named as a [[Galleon]] tank commander with the [[71st Light Horse Regiment]] of the ELH in the original 1987 [[Mercenary's Handbook]] but had virtually no other information published about him.
  
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* http://web.archive.org/web/20020806094813/http://www.classicbattletech.com/credits.html
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Calbeck became a high profile character in the ELH history as written by Malcomson, where the 71st was effectively annihilated in a disastrous battle on [[Orkney]] against [[Clan Jade Falcon]] and [[Clan Steel Viper]], with Roy Calbeck the only survivor after the Clan forces returned to massacre the wounded.
  
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This material remained on the website, presented as official Battletech fiction, until May 2005 when it disappeared from the site without notice or explanation.
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Malcomson adopted the Roy Calbeck character, using "Calbeck" as his online handle and also as his alter ego and [[w:Fursona|Fursona]].
  
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Nor was any forthcoming.  Malcomson's inquiries on the site's forums were met with a denial from site admin Jason Knight (who had taken over in 2003, a year after publication) that the article had never been considered official.  Knight proceeded to attack Malcomson as a plagiarist himself. Malcomson warned on several occasions that continued defamation of his work and character would result in legal action. He attempted to communicate with WizKids, but after receiving no response wrote a formal notice of concern via registered mail addressed to the company's legal department. He repeated the effort after several months, and then finally called WizKids directly, only to be informed that all legal affairs were handled by WizKids' owner of the time, The Topps Company.
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===Website===
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As of 2001, BattleTech fan [[Warner Doles (person)|Warner Doles]] maintained a private website named classicbattletech.com that was well known and much used by the fan base. In 2001 WizKids/FanPro adopted classicbattletech.com as the official Classic BattleTech website.
  
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No later than October 2001 this website, already listing WizKids LLC as its primary owner and operator at the time, featured a History section for the ELH, among others. The text in this section had been written by Malcomson (implicitly, it had been part of the aforementioned submission), but he was not initially credited or mentioned on the website. Notably, although a portion of the site had been set aside for fan fiction and art, the material in question was incorporated into the site's official online database for articles pertinent to various in-game factions.<ref>An [http://web.archive.org/web/20020115112120/http://www.classicbattletech.com/ELH.html archived version of the page dated 15 January 2002] gives the history section in question, with WizKids, LLC and FanPro, LLC copyright disclaimers at the bottom of the page</ref> The history sections for other factions were apparently all taken directly from canonical BattleTech publications.
  
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Topps, having ignored Malcomson's previous communications, continued to ignore them again.  When Topps declared in November 2008 its intent to sell WizKids (and likely with it Battletech), Malcomson had been attempting communications for over a year.  Faced with continuing defamation from Knight and various persons affiliated with him, Malcomson filed suit against Topps to assert not only the validity of his contributions to the property, but his possession of copyright specific to his own original elements.  Unable to afford a lawyer, Malcomson represented himself _pro se_.
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While the court documents do not dwell on the origin of the text, according to Malcomson a web admin testified that it had been "copypasta'ed" from Malcomson's own private website,{{cn}} incidentally suggesting Malcomson had himself published it online there first.
  
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Only at this point did Topps communicate with Malcomson, and then only to state it would not discuss the matter with him except by litigation.  This extended to a decision by Topps, during the case, to refuse a court order that the company meet with Malcomson for "face-to-face good-faith negotiations".
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It remains unclear if the original ELH history write-up was uploaded to the website before or after it became the official Classic BattleTech website.
  
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On discovery of this, Malcomson lodged a complaint with the site's webmaster and threatened legal action,<ref name=CO/> allegedly receiving an apology in response followed by a request to continue using the work.{{cn}} Malcomson then submitted a revised version of his work which was subsequently used instead of the initial ELH history text;<ref name=CO/> the exact circumstances remained disputed.<ref name=CO/> This time, Malcomson was credited for the ELH writeup on the article's page and in the website's formal "Credits" section.<ref>[http://web.archive.org/web/20020804162508/www.classicbattletech.com/ELH.html Archived version of the credits page dated 4 December 2001], explicitly crediting Scott "Calbeck" Malcomson for the Eridani Light Horse write-up</ref>
  
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During the case's discovery process, Malcomson found old records from his 'on spec' agreement with FASA showing three important pieces of data:
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Following this, there was a disagreement and eventually a falling-out between the parties. The text in question (the revised version) was removed from the website in August 2005.<ref name=CO/>
  
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* FASA had guaranteed that if they did not cut him a contract for use of his work, he was free to rework it for sale to other companies.  While he held (and claimed) no copyrights in Battletech's original elements, he did retain rights to all original elements he had created.
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==Lawsuit==
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Malcomson apparently believed that the publication of his work in the canonical section of the official homepage, under WizKids' aegis and with WizKids's and FanPro's copyright notes, meant that his work had deliberately been adopted into BattleTech canon. The dispute escalated to the point where Malcomson, who engaged in [[w:Furry fandom|"Furry"]] fandom, further insisted, possibly jokingly, that an expanded version of the story should be considered canon where the Roy Calbeck character from BattleTech had a near-death experience and literally became an anthropomorphic unicorn (which went beyond the original text at the center of the argument).
  
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* He had been required to create the material with the intent that it "merge cleanly into the game universe", which established his own original intent to create a joint work.
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In 2008, he sued Topps, Inc. seeking a declaration of co-ownership of the entire BattleTech property with Topps. This claim was based on having contributed to the work of BattleTech as a whole in the sense of co-authorship; to this end he claimed that a piece he had written had been deliberately adopted and published as official BattleTech canon, which the defendant denied.
  
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* Randall N. Bills, Battletech's Continuity Editor at the time WizKids published Malcomson's work, had also been one of the Line Developers FASA had assigned to work with Malcomson, and thus knew the original intent of the work when WizKids decided to publish it as official Battletech material.
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Malcomson, appearing [[w:Pro se legal representation in the United States|''pro se'']], lost the lawsuit on a technicality because he failed to comply with procedural rules, but the court still made it clear that they considered the claim meritless ("Nevertheless, even if the Court takes Malcomson's unsupported factual arguments as true, Malcomson's claim for joint ownership of the BattleTech property is without merit. [...] Even if the Court were to credit the unsupported facts that Malcomson alleges in his briefing, however, Malcomson's claim for joint ownership fails on the merits.").<ref name=CO/> Essentially, the ELH history piece in question was considered too insignificant compared to the rest of BattleTech to be grounds for claims of co-authorship or joint ownership. Many factual claims remain disputed, as they were not technically proven or disproven over the course of the lawsuit.
  
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Malcomson believed, on this basis, that he might have a claim as co-author in Battletech, and amended his existing suit before the court to reflect this.  Again, Topps moved to have the case dismissed as without merit, but the court declined to eject it.  If Malcomson could prove he was a joint co-author to the property as a whole, he would have a right to develop, publish and profit from new derivative material.
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The appeal was denied and the Supreme Court refused to hear the matter.
  
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The [[BattleTech Line Developer]] clarified that the ELH history as written by Malcomson and (partially) published via classicbattletech.com for a time is not considered [[canon]].{{cn}}
  
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'''KNIGHT'S CONFESSION'''
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==External Links==
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* [http://web.archive.org/web/20020804162508/www.classicbattletech.com/ELH.html ELH History in question] (classicbattletech.com, archived)
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Also during discovery, Malcomson received an email from Jason Knight himself as a CC: attachment to an extensive statement Knight had sent to Topps. In it, Knight repeatedly attacks Malcomson both personally and professionally, while making various denials about WizKids' responsibility for anything having to do with the website or Malcomson's work.
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* [https://docs.justia.com/cases/federal/district-courts/arizona/azdce/2:2008cv02306/418129/69/ Court order granting summary judgement in favor of Topps]
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* [http://cdn.ca9.uscourts.gov/datastore/memoranda/2011/11/28/10-15540.pdf Denial of appeal]
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At the same time, however, Knight continually made statements which deeply implicated WizKids --- for example, the statement that Malcomson's work had been "copypasta'd" (his term). Knight immediately offered excuses for this, despite not having been involved in the site's operation until the following year, and having no idea who copied Malcomson's work to begin with. Other unintentionally-incriminating statements:
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* [http://www.plainsite.org/dockets/275w6r2yc/supreme-court-of-the-united-states/scott-malcomson-petitioner-v-topps-inc/ Denial of Supreme Court hearing]
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* WizKids had provided the site's legal documentation, affirming that "this website is owned and operated by WizKids LLC and its affiliates" was the site's operating agreement at the time of publication.
 
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* WizKids exercised oversight and veto power over the site's contents.
 
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* A company representative had actually directed Knight, during a rebuild of the site, to re-accredit Malcomson's work ("and this was done").
 
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* Subsequent to that order, Knight somehow confused Malcomson's work with material from the 1987 Mercenary's Handbook. When Knight realized the two were different, he concluded (without input from anyone at WizKids) that Malcomson's work was an act of "theft and plaugarism" (sp). Rather than being directed by WizKids or FanPro to remove the material, he removed it himself, whereupon he proceeded to attack Malcomson's work in the site's public forum.  All of this ignored the company's existing directive regarding the work.
 
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Topps did not enter Knight's testimony into evidence, but Malcomson did. It is likely that these series of statements ultimately led the Ninth Circuit Court of Appeals to assert that Malcomson had indeed made "periodic written contributions to a small portion" of the Battletech property.
 
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'''"THE STATEMENT OF FACTS"'''
 
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Although it has been claimed by Topps that Malcomson provided no "statement of material facts", just such a document appears in the body of his Motion for Summary Judgment, a common means in federal courts of doing so. Because this did not meet an Arizona Revised Rule requiring that the statement of material facts be filed as its own separate document, the court declared that Malcomson had not filed such a statement at all. The court further ignored Malcomson's citation of Federal Rules of Civil Procedure, which state clearly that such an error (non-willful failure to comply with a local Revised Rule regarding requirements of form) could not be used as a basis for judgment.
 
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Having chosen to ignore Malcomson's statement of facts, the court then declared it was relying on Topps' claims to interpret Malcomson's. Topps proceeded to make numerous claims, including on Malcomson's behalf, many of which he had never asserted. Topps's allegations often provided nothing in support, beyond the allegations themselves, but were accepted at face value in "absence" of Malcomson's own countering claims.
 
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'''THE JUDGMENT'''
 
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The Arizona District Court, in finding for Topps, did so as a matter of having eliminated Malcomson's own testimony, replacing it with Topps' own unsubstantiated claims.  The core of its decision was that Malcomson had failed to show his work met the "three-factor test" for joint-work claims, established by the Ninth Circuit in Aalmuhammed v. Lee.
 
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The Ninth Circuit affirmed on the same basis of Malcomson not meeting the three-factor test, simultaneously stating that Malcomson had indeed made "periodic written contributions to a small portion of a popular science fiction gaming franchise".  The District Court opinion also asserted that Malcomson's works were a contribution, even while denying that they sufficed to support a joint-work claim against the property as a whole.
 
  
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Although Topps has since asserted that Malcomson has no claims of copyright in his work whatsoever, and that none of his works are contributions to the property at all, Malcomson himself has accepted the decision of the Ninth Circuit.  He currently holds that he is a contributor to "a small portion" of the property, and that since he was never signed to a work-made-for-hire agreement, these contributions made in collaboration with WizKids exist as jointly-created material.
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==References==
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<references/>
  
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While he did not succeed in his bid to establish co-authorship in the property as a whole, it seems that in the end he got what he originally requested and then had to sue for --- simple recognition as a contributor to Battletech.
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[[Category:Battletech Media Franchise]]

Revision as of 20:52, 16 September 2023

In what colloquially became known as the Eridani Light Horse lawsuit among the BattleTech fan base, plaintiff Scott "Calbeck" Malcomson unsuccessfully sued Topps, Inc. for joint ownership of the BattleTech intellectual property.

The dispute was rooted in a piece of fiction pertaining to the history of the Eridani Light Horse (ELH) mercenary unit written by Malcomson that had been published online on what was then the official BattleTech website for a time; many circumstantial details remained disputed.

Background

Scenario Pack draft

In the early 1990s, BattleTech fan Scott Malcomson contacted FASA with the proposal to write a novel centering on the Eridani Light Horse. This was a high-profile mercenary unit within the BattleTech universe that, however, had very little information about it published at that point. FASA declined the proposal, but suggested Malcomson should write a scenario pack centering on the unit 'on spec', which meant FASA retained the option to reject the work even after Malcomson submitted his completed manuscript. Malcomson subsequently submitted a manuscript in 1993. The work on this submission continued into 1996, with several letters concerning its content exchanged between Malcomson and FASA; FASA determined not to publish the submission in September 1996.[1]

FASA ceased active operations in January of 2001, and the BattleTech IP was transferred to WizKids LLC, who in turn licensed the rights to what was now branded as Classic BattleTech to FanPro. WizKids was bought by Topps, Inc., in 2003.

Roy Calbeck character

In BattleTech canon, one Sergeant Roy Calbeck had been named as a Galleon tank commander with the 71st Light Horse Regiment of the ELH in the original 1987 Mercenary's Handbook but had virtually no other information published about him.

Calbeck became a high profile character in the ELH history as written by Malcomson, where the 71st was effectively annihilated in a disastrous battle on Orkney against Clan Jade Falcon and Clan Steel Viper, with Roy Calbeck the only survivor after the Clan forces returned to massacre the wounded.

Malcomson adopted the Roy Calbeck character, using "Calbeck" as his online handle and also as his alter ego and Fursona.

Website

As of 2001, BattleTech fan Warner Doles maintained a private website named classicbattletech.com that was well known and much used by the fan base. In 2001 WizKids/FanPro adopted classicbattletech.com as the official Classic BattleTech website.

No later than October 2001 this website, already listing WizKids LLC as its primary owner and operator at the time, featured a History section for the ELH, among others. The text in this section had been written by Malcomson (implicitly, it had been part of the aforementioned submission), but he was not initially credited or mentioned on the website. Notably, although a portion of the site had been set aside for fan fiction and art, the material in question was incorporated into the site's official online database for articles pertinent to various in-game factions.[2] The history sections for other factions were apparently all taken directly from canonical BattleTech publications.

While the court documents do not dwell on the origin of the text, according to Malcomson a web admin testified that it had been "copypasta'ed" from Malcomson's own private website,[citation needed] incidentally suggesting Malcomson had himself published it online there first.

It remains unclear if the original ELH history write-up was uploaded to the website before or after it became the official Classic BattleTech website.

On discovery of this, Malcomson lodged a complaint with the site's webmaster and threatened legal action,[1] allegedly receiving an apology in response followed by a request to continue using the work.[citation needed] Malcomson then submitted a revised version of his work which was subsequently used instead of the initial ELH history text;[1] the exact circumstances remained disputed.[1] This time, Malcomson was credited for the ELH writeup on the article's page and in the website's formal "Credits" section.[3]

Following this, there was a disagreement and eventually a falling-out between the parties. The text in question (the revised version) was removed from the website in August 2005.[1]

Lawsuit

Malcomson apparently believed that the publication of his work in the canonical section of the official homepage, under WizKids' aegis and with WizKids's and FanPro's copyright notes, meant that his work had deliberately been adopted into BattleTech canon. The dispute escalated to the point where Malcomson, who engaged in "Furry" fandom, further insisted, possibly jokingly, that an expanded version of the story should be considered canon where the Roy Calbeck character from BattleTech had a near-death experience and literally became an anthropomorphic unicorn (which went beyond the original text at the center of the argument).

In 2008, he sued Topps, Inc. seeking a declaration of co-ownership of the entire BattleTech property with Topps. This claim was based on having contributed to the work of BattleTech as a whole in the sense of co-authorship; to this end he claimed that a piece he had written had been deliberately adopted and published as official BattleTech canon, which the defendant denied.

Malcomson, appearing pro se, lost the lawsuit on a technicality because he failed to comply with procedural rules, but the court still made it clear that they considered the claim meritless ("Nevertheless, even if the Court takes Malcomson's unsupported factual arguments as true, Malcomson's claim for joint ownership of the BattleTech property is without merit. [...] Even if the Court were to credit the unsupported facts that Malcomson alleges in his briefing, however, Malcomson's claim for joint ownership fails on the merits.").[1] Essentially, the ELH history piece in question was considered too insignificant compared to the rest of BattleTech to be grounds for claims of co-authorship or joint ownership. Many factual claims remain disputed, as they were not technically proven or disproven over the course of the lawsuit.

The appeal was denied and the Supreme Court refused to hear the matter.

The BattleTech Line Developer clarified that the ELH history as written by Malcomson and (partially) published via classicbattletech.com for a time is not considered canon.[citation needed]

External Links

References

  1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 According to the "Background" as established in court documents pertaining to the case, specifically the court order dated 1/28/10[1]
  2. ↑ An archived version of the page dated 15 January 2002 gives the history section in question, with WizKids, LLC and FanPro, LLC copyright disclaimers at the bottom of the page
  3. ↑ Archived version of the credits page dated 4 December 2001, explicitly crediting Scott "Calbeck" Malcomson for the Eridani Light Horse write-up

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