Wizards of the Coast vs. Daron Rutter: An Update

[rancored_elf]

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.

[squidgey]

Good luck with the case. For what it's worth you have the support of a community.

[Galvatron]

interesting to say the least especcially the copyright issue

[oarick]

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!

[Spaz350]

Hang in there, man, we're with you! I can't believe they want so much money from you, it's unreasonable.

[Icejelly]

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.

[Danny]

It's good that you found that Jay guy. But the payment is unfairly large.

Best of luck.

[bateleur]

Pleased to hear about Jay Shergill. Good to be reminded not all lawyers are evil.

And, of course, good luck.

[SnoopDoggAtog]

My prayers and thoughts are with you, and hopes for a fair and sensible resolution to your struggle.

[Kamin_Majere]

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.

Still mate i hope all goes well

[Solace]

'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

[Consume_Spirit_CDS]

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%!!

[Shade]

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.

[rancored_elf]

Originally Posted by Solace

'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:

Originally Posted by 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.

[Feuerdrache]

Originally Posted by Solace

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).