CBS/Paramount sues to stop Axanar

[Noname Given]

True, however AP has been scoping out the "fair use" defense so if that defense is used wouldn't "willful infringement" be a given?

Just because AP claims 'Fair Use' it doesn't mean squat. If clear willful infringement is shown (and it has been many times over); AP attempting to cling to 'fair use' won't do a thing. And again, settlement conferences aren't hearings. The Judge/Mediator is going to lay it on the line and pretty much tell it like he sees it (as most with any legal knowledge of law and how civil proceedings work have been mentioning here.)

The mediator won't sugar coat anything. I think the one thing that will torpedo any settlement (unless he really does have a functioning brain in his skull) is Alec peters ego. At this point Alec Peters should realize CBS/Paramount:

- Will NEVER strike a deal that allows 'Axanar' to be made. NOT because they're 'scared of how good it will be...'; but rather because they DON'T want to give the impression of: "Hey use our IP without permission and make a big enough stink in public and we'll settle with you and give permission."

- Will never strike a deal that allows Alec Peters to see/keep any type of financial or real gains from his unauthorized use of the Star Trek IP. Again, the last thing C/P want is to leave the impression of: "Use our IP illegally and in the end you'll still come out ahead..."

Hell, I'll bet anyone on the case from W&S WILL try to get Alec Peters to take any settlement that doesn't leave him on skid row in a cardboard box because at this point, Erin Ranahan honestly realizes if this gets to trial how open and shut it will be in CBS/Paramount's favor. Honestly to anyone with even cursory knowledge of copyright law; the arguments in her motions are embarrassing. She'll have a much success with them as she did in her Motion to Dismiss that was not only 100% denied; the Judge even used some interesting phrasing to indicate how much of a laugh he got from reading it.

 

[muCephi]

Ayup.

The Terry McIntosh deposition will be in the books by then although the parties might not have had enough time to digest 3 Tb (per Terry M. himself) worth of data before the conference.

So Terry would not have sent in the data earlier?

That doesn't sound like Mr Peters. If Alec Peters had an approach like the one you describe here he probably wouldn't have got into this mess in the first place.

But he might become desperate enough to copy from TrekBBS. Then he could say he never actually called critics here "haters".

 

[muCephi]

The Judge/Mediator is going to lay it on the line and pretty much tell it like he sees it ...

"It is curious how often you humans manage to obtain that which you do not want."

 

[Jedi_Master]

Hell, I'll bet anyone on the case from W&S WILL try to get Alec Peters to take any settlement that doesn't leave him on skid row in a cardboard box because at this point, Erin Ranahan honestly realizes if this gets to trial how open and shut it will be in CBS/Paramount's favor. Honestly to anyone with even cursory knowledge of copyright law; the arguments in her motions are embarrassing. She'll have a much success with them as she did in her Motion to Dismiss that was not only 100% denied; the Judge even used some interesting phrasing to indicate how much of a laugh he got from reading it.

I don't believe they are aiming for Judge Klausner. I think, as @carlosp has postulated, they are aiming for the Appeal Court.

Andddddd... if Ranahan "realized" how much of a lost cause this whole debacle is, than she has a strange way of showing it.

 

[trynda1701]

If Sam Beckett leaps into AP at the last minute, then I predict the expression, "Oh, boy!" will go on the record.

Don't give him a get-out clause!!!

 

[Noname Given]

I don't believe they are aiming for Judge Klausner. I think, as @carlosp has postulated, they are aiming for the Appeal Court.

Andddddd... if Ranahan "realized" how much of a lost cause this whole debacle is, than she has a strange way of showing it.

^^^^
No, it shows she HAS some integrity AS a lawyer. She signed on and is doing her best at a zealous defense of her client. But at this point I would have to think that deep down, she knows what the result (even if/when they proceed through the appeals process) will ultimately be.

 

[Jedi_Master]

^^^^
No, it shows she HAS some integrity AS a lawyer. She signed on and is doing her best at a zealous defense of her client. But at this point I would have to think that deep down, she knows what the result (even if/when they proceed through the appeals process) will ultimately be.

Sooooo, she should attempt to persuade him to accept a settlement, but if he won't she should fling every bit of poo at CBS/P she can find?
Because at this point her voluminous filings, esoteric objections, and simple pig-headedness hasn't impressed me.

 

[Noname Given]

Sooooo, she should attempt to persuade him to accept a settlement, but if he won't she should fling every bit of poo at CBS/P she can find?
Because at this point her voluminous filings, esoteric objections, and simple pig-headedness hasn't impressed me.

Yep (and that's why many people can't be a good lawyer.) Unless you as a lawyer find something really egregious that would truly prevent you from providing the best defense you can, that's what you do. If you honestly think (with regards to a settlement) that it's the best settlement you're going to get; and if you 'lose' it'll be far worse - you do what you can to convince said client to accept it.

If they don't (for whatever reason); you're still required to represent them and do the best you can to make the client's case; or somehow make the other side (because of all you're doing in court) come back with a better settlement that your client will ultimately accept.

But in the end I stick by what I've said in that CBS/Paramount will never agree to a deal that allows AP to make/show Axanar, or allows Alec Peters to come away with any financial or real property benefit as a result of his unauthorized use of the Star Trek IP. My take on Alec Peters is that his ego is such that as long as the above holds true - he'll NEVER accept a settlement and would rather go down fighting until he's exhausted all avenues of Trial and Appeal.

Ultimately, time will tell.

 

[CaptGrumpy]

If Sam Beckett leaps into AP at the last minute, then I predict the expression, "Oh, boy!" will go on the record.

Could AP be the reason Sam never leaped home? Trying to prevent another IP theft?

 

[carlosp]

Just because AP claims 'Fair Use' it doesn't mean squat. If clear willful infringement is shown (and it has been many times over); AP attempting to cling to 'fair use' won't do a thing. And again, settlement conferences aren't hearings. The Judge/Mediator is going to lay it on the line and pretty much tell it like he sees it (as most with any legal knowledge of law and how civil proceedings work have been mentioning here.)

I agree with most of what you've theorized except for the "fair use don't mean squat" bit. As an affirmative defense against willful infringement the defense gets a chance to make its case on that basis. Magistrate Judge Eick may well give the parties his estimate of how well Axanar stands up to the four-factor fair use balancing test but if either side rejects his advice then it's off to summary judgment land, where the fair use argument lives to fight another day.

 

[Noname Given]

I agree with most of what you've theorized except for the "fair use don't mean squat" bit. As an affirmative defense against willful infringement the defense gets a chance to make its case on that basis. Magistrate Judge Eick may well give the parties his estimate of how well Axanar stands up to the four-factor fair use balancing test but if either side rejects his advice then it's off to summary judgment land, where the fair use argument lives to fight another day.

My point for that is: Given the totality of what Axanar Productions/Alec Peters has done here (which L&L will have ample eviidence of) - there's NO WAY the 'Axanar Works' pass the 'Fair Use' test - and I don't think Judge Klausner s going to unilaterally expand 'Fair Use' in this case and as long as a Jury follows the existing law (which I'm sure L&L will make sure any Jury instructions adhere to the law should we get that far); Erin Ranahan can indeed claim 'Fair Use' all she wants; but it won't fly. (Hell, even if they attempt to claim "Hey - 'Prelude to Axanar' and the 3 minute Vulcan scene are parodies.." -- yeah, jwith everything else that Alec Peters and others have said which will be brought out in a court trial -- just no.)

But, again, time will tell.

 

[oswriter]

My point for that is: Given the totality of what Axanar Productions/Alec Peters has done here (which L&L will have ample eviidence of) - there's NO WAY the 'Axanar Works' pass the 'Fair Use' test - and I don't think Judge Klausner s going to unilaterally expand 'Fair Use' in this case

The longer this goes on, the more of a farce it becomes. I don't see any way AP's fair use argument isn't cut off at summary judgment. Here's how the Supreme Court described fair use in a 2003 decision:

[T]he "fair use" defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U.S.C. § 107, the defense provides: "[T]he fair use of a copyrighted work, including such use by reproduction in copies . . ., for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The fair use defense affords considerable "latitude for scholarship and comment," and even for parody.

The important words here are "scholarship and comment." The 11th Circuit's decision in Suntrust Bank v. Houghton Mifflin, Inc. is probably what AP is going to hang his hopes on. In that case, an author released an unauthorized novel based on the events of "Gone With the Wind." The copyright holder sued for infringement. The 11th Circuit said the new work--called "The Wind Done Gone" was protected under fair use because it offered a critical analysis of the original copyrighted work and was not just a continuation:

TWDG is more than an abstract, pure fictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW. [Author Alice] Randall's literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War.

The Court noted that Randall's use of GWTW's copyrighted elements was essential so that she could "make war against it." That's a far cry from AP, who has billed Axanar as a continuation of the "canon" Trek universe.[/quote]

 

[urbandefault]

AP billed his Axanar Productions/Ares Studio project as (paraphrased) a way for fans to get the Star Trek they want, the way they want it.

That should be plenty of ammunition to show clear intent to infringe, and destroy any fair use claim.

 

[ThankYouGeneR]

^^^ Indeed. And I will continue to hope so!

 

[Ion]

Dunno, I figured this quote from their kickstarter would be enough to hang most of their "non willful infringement" and possibly "fair use" arguments:

Risks and challenges

There are always risks and challenges when making a film - actors dropping out, locations and/or sets not available, unforeseen costs, equipment trouble, etc. In addition, "Star Trek" is a licensed property of CBS and so they have the final say in any Star Trek venture. However, the Axanar team has dealt with CBS and knows the landscape that must be navigated. Every member of the Axanar team is a professional who has proven their skills on other projects and films.

They say very clearly that they know that they are using someone else's property. That would constitute willful in my book.

 

[Yanks]

That doesn't sound like Mr Peters. If Alec Peters had an approach like the one you describe here he probably wouldn't have got into this mess in the first place.

I've been saying this since day one of this mess.

 

[muCephi]

That doesn't sound like Mr Peters. If Alec Peters had an approach like the one you describe here he probably wouldn't have got into this mess in the first place.

I've been saying this since day one of this mess.

True. But I think it might speed up *someone's* evolution if an arbitration judge tells him he is almost certainly facing a half dozen 150k penalties. If that is the advice given, perhaps there could be a change.

 

[carlosp]

True. But I think it might speed up *someone's* evolution if an arbitration judge tells him he is almost certainly facing a half dozen 150k penalties. If that is the advice given, perhaps there could be a change.

Well, one could argue that Peters has already been told that, effectively, by the plaintiffs' legal complaint and the court's rejection of the defense's two dismissal motions, so I don't think it's likely a magistrate judge's opinion will do much more to sway him. But I could be wrong (and wouldn't mind being wrong). I'm with @oswriter, though; I think this is likely to be adjudicated by Klausner at the summary judgment stage, but then it may be time to move to appeals court land, which is the sound Peters started to make a month ago. So the fat lady ain't singin' any time soon.

"Even if we were to lose at trial, an appeal would likely be very positive for us."
— Alec Peters, Axanar producer, Sept. 8, 2016​

 

[Professor Zoom]

As a total side note, I'm fascinated and amused that Kickstarter, at least for now, shut down David Gerrold's Suess/StarTrek money grab.

Don't mess with the Suess.

 

[oswriter]

I'm with @oswriter, though; I think this is likely to be adjudicated by Klausner at the summary judgment stage, but then it may be time to move to appeals court land, which is the sound Peters started to make a month ago.

Indeed, nothing that's happened in the past few months has changed the projected path of the storm, as it were. The most likely outcome remains summary judgment in favor of C/P followed by an appeal of that decision to the 9th Circuit. It buys AP time--a couple of years perhaps--but there's no outcome where the feature film gets made. At this point he's trying to fight to a stalemate.