roycalbeck (roycalbeck) wrote,

Malcomson v. Topps: ENDGAME

The 9th Circuit Court of Appeals has ruled that Scott Malcomson's "Eridani Light Horse History" is a contribution to the Battletech property.

Absent a work-for-hire contract or transfer-of-copyright agreement, Malcomson remains the copyright holder in his contribution, which is now recognized as part of Battletech.

Although both Malcomson and Topps argued in their filings that Malcomson would be a co-owner in the entire property if he were recognized as a co-author in it, the 9th Circuit disagreed.

Malcomson's confirmation as a Battletech contributor appears to have been based on the following:

1) Statements by two website administrators (Warner Doles, Jason Knight) that Malcomson's work had been published to the website's "canon universe information" area, as well as a statement by Randall Bills that if something were "canon", that meant it had been "adopted as the official version of the Battletech universe".

2) The site's "Terms and Conditions of Use", which stated that the site was "owned and operated by WizKids LLC and its affiliates" at the time of publication.

3) A lengthy letter from Jason Knight, which included critical admissions of mishandling Malcomson's work, including that the company had not ordered or suggested that Malcomson's work be removed from the site or repudiated from canon.

"That decision was MINE," Knight wrote, alleging that Malcomson's inclusion of material from the 1987 "Mercenary's Handbook" amounted to plagiarism. This was despite the common tendency for re-use of previous Battletech material in other official publications, one such example being the 1999 "ComStar Sourcebook". In that book, Randall Bills wrote a version of the ELH history which also re-used some of the same material Knight was complaining about. Knight provided no explanation for how Malcomson's work would differ from Bills' in terms of plagiarism, except to assert "insider information" for which he provided no details.

Knight stated that he removed Malcomson's work anyway in what he called a "DCMA takedown", a direct assertion that Malcomson was violating the company's copyrights. But the company demonstrated no such belief. To the contrary, Knight admitted, a company representative ordered him to re-accredit Malcomson for his work during a server rebuild following a crash in 2005 ("and this was done"). Malcomson had already been accredited on the site's Credits page in 2002.

He also affirmed that WizKids had at least "minimal oversight" over the website, that the use and operation of the site was conducted with WizKids' permission, and a number of other things that solidly established the company held liability for the site's operations --- to include the publication of Malcomson's work.

Interestingly enough, although Knight called for Topps' legal counsel to bring Malcomson up on criminal charges of "plaugiarism and theft" --- which Topps ignored --- he also stated that Malcomson's work had originally been plagiarized (his term was "copypasta'd") by WizKids to begin with.

Currently, Malcomson's co-ownership of the entire Battletech property has been denied on basis that he did not show that he met the "three factors" of a previous 9th Circuit case [Aalmuhammed v. Lee].

However, his recognition as a contributor to the property, and his retention of copyrights in those contributions, means he is empowered to create, publish and profit from new Battletech works, so long as they are specifically derivative of his contribution.

As the contribution was an extensive historical outline of one of Battletech's most famous and enduring mercenary units, with a history spanning centuries of the game-universe timeline, he is exploring possible new Battletech products for development on this limited basis. Projects under consideration include a BattleForce-style MMO, new sourcebooks filling gaps in previous Battletech history and events, and possibly a line of novels presenting a "3052 Alternative Timeline" focused on ELH cooperation with ComStar.

No, there will be no "furries". That would be silly. And besides, only the Star-League era Canopians got into hybridized genetics (see original Periphery Sourcebook). It's LosTech at best. Malcomson previously published an article, stating otherwise, expressly to yank the chains of certain people who were giving him grief over drawing a cartoon unicorn as a Battletech character.

The US Supreme Court does not hear arguments about errors in law committed by lower courts. It is primarily concerned with resolving conflicts between lower court decisions, preferably related to weighty matters of substance. A mere allegation by Malcomson that the 9th Circuit erred would not be enough to sustain a petition for certiorari, the first step to having the case appealed further.

Fortunately for Malcomson, the 9th Circuit's recent decision arguably conflicts with the 9th's own express definitions in Aalmuhammed v. Lee, the 7th Circuit's extensive statements on submissions and copyrights relative to corporate copyright holders in Gaiman v. McFarlane, and the US Supreme Court's similarly-extensive doctrine regarding the definition of an author in cases such as Feist Communications and Sarony.

As the arguments presented by both Topps and Malcomson for co-ownership in the entire Battletech property revolved around whether or not he was a co-author, and were denied on grounds which actually redefine how to determine who IS an author, his co-ownership claim may ultimately be upheld as being in agreement with Topps' own assertions.
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