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CBS/Paramount sues to stop Axanar

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Ion said:
I wouldn't personally expect it to be a successful argument because two wrongs don't make a right. That everyone else was also willfully infringing, doesn't mean in any way that Axanar wasn't.
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Personally I think there is merit to such an argument given how far projects like Continues and Renegades have gone.

The counter to that is that Peters was warned via a public statement that his project wasn't authorised and he continued anyway.
 
Ion said:
My guess would be that it goes to whether the violation was "willful" or not, which would significantly affect the statutory damages if I'm recalling correctly. If they can successfully argue that "Hey, everyone else was doing it, so we had a reasonable expectation it was alright," then perhaps they can say it wasn't willful.

Or at least, that's what I think they're thinking.

I wouldn't personally expect it to be a successful argument because two wrongs don't make a right. That everyone else was also willfully infringing, doesn't mean in any way that Axanar wasn't.
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I think Alec had it in his head that since Axanar wasn't in Trek Canon, it belonged to whoever claimed it. How or whomever planted that concept in his head, I haven't a clue. What becomes legally willful is up to higher powers than me.
 
Smoked Salmon said:
Personally I think there is merit to such an argument given how far projects like Continues and Renegades have gone.

The counter to that is that Peters was warned via a public statement that his project wasn't authorised and he continued anyway.
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I think there's no merit because he noted in the Kickstarter that he didn't own the IP, which means that he was fully aware of the violation at the time at which he committed it, and thus it was intentional. I don't see how it can be anything other than willful when you openly acknowledge that you're doing something you're not allowed to do.

Unless there's another legal test for "willful" that I'm unaware of (which would hardly be a stretch given how complex the law is)?

That said, I could see it as a mitigating factor in whatever damages are awarded if the plaintiffs prevail. The argument that "everyone was getting away with it without any issues, so the court should go easy on the first prosecuted offender" is at least reasonable.

Doesn't change that I want the book thrown at the guy, but that's more due to the various other shenanigans that are not necessarily copyright related.
 
Ion said:
That said, I could see it as a mitigating factor in whatever damages are awarded if the plaintiffs prevail. The argument that "everyone was getting away with it without any issues, so the court should go easy on the first prosecuted offender" is at least reasonable.
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That's why they could ask for statutory damages. Which is per violation, not for the whole thing.
 
oswriter said:
Why am I not surprised that AP wouldn't look for an open source software solution to his "digital fulfillment" needs?
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I suspect they wanted to create a fully proprietary platform, because they pitched on Kickstarter creating a new media company based on people "funding only what they want to watch". I believe its pretty easy for a developer to pitch "write from scratch" as the best way to do this (even if they intend to use some open source elements), when talking with people who are not well informed. But if they wanted a proprietary platform, they sure messed up, apparently leaving it to trust that somehow a volunteer effort would just be donated to them and thus not making any agreement about ownership.

carlosp said:
Like anyone who is an eyewitness to an event, they are likely to have feelings, ideas and opinions about what they experienced. Those are valid things to report on a news article.
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I am a bit confused here. I believe the parties to a lawsuit are not permitted to disclose deposition contents unless they cite them in court. Is the deponent free to disclose the questions asked of them?

oswriter said:
From @carlosp's latest:

Here's what I'm wondering: How much of AP's existing public statements--podcasts, Facebook and Twitter posts, et al.--did his lawyers review before taking on this case?
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How much Trek has Mr. Shatner watched? :cool:

oswriter said:
Just wondering, in what respect *is* he a good client? :p
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Well, someone at W&S will get to meet JJ Abrams. That has to count for *some*thing. :guffaw:

urbandefault said:
What kind of behind the scenes drama do you suspect is going on in regards to AP's failure to produce emails (and possibly other documents)?
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latest
 
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Ion said:
Unless there's another legal test for "willful" that I'm unaware of (which would hardly be a stretch given how complex the law is)?
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Here's how the Ninth Circuit recently described the standard for "willful" infringement:
To prove `willfulness' under the Copyright Act, the plaintiff must show (1) that the defendant was actually aware of the infringing activity, or (2) that the defendant's actions were the result of `reckless disregard' for, or `willful blindness' to, the copyright holder's rights.
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Even if AP could prove that he was not "actually aware" that he was infringing--i.e., he just did what the other fan films did and assumed it was okay--the breadth and scope of Axanar's activities would still likely fall within the definition of "reckless disregard." In other words, even if you could excuse the crowdfunding and hiring professional actors, the actual selling of merchandise seems like it would be enough to demonstrate reckless disregard for the copyright holder.
 
Ion said:
I think there's no merit because
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Of course you don't, because you have no legal training and you want to see Peters fail.

But when I talk of merit, I do not necessarily mean they will succeed. I mean that there is an argument to advance.
 
Sgt_G said:
Given his public comments here on Trek-BBS and in his own blog/Facebook/Twitter/etc. going back two-plus years before the lawsuit was filed against him, he's going to have a heck of a time trying to convince anyone with half a brain that he was "unaware it was wrong".
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I agree, but it doesn't nonetheless mean he can't argue he thought that because others were infringing the IP with no action, he was led to believe he could do as well.

I'm not saying he would win such an argument, but I think that there is at least some scope to argue it, because the fact is that other productions were using professionals and were coming very close to merchandising themselves, and the studio didn't stop them.
 
Smoked Salmon said:
Just because something is actionable at discretion doesn't mean mitigation of damages is irrelevant. You're conflating cause of action with remedy. The studio has to establish wilful infringement to claim that upper level of damages. If Peters can show that he was unaware he was doing anything wrong those damages may be reduced...and the argument in that respect is that the other infringers were allowed to continue, crowd fund and pay professionals without action, thus leading Peters to believe he could do what he did.

In other words, just because the studios aren't compelled under law to bring a claim each and every time, it doesn't mean the duty to mitigate is washed away.
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Smoked Salmon said:
>snip< Second, even if they lose on fair use, they will have a duty to try and mitigate the level of damages ordered against Peters & Co, and in such circumstances the fact that the studio hasn't gone after productions like New Voyages might come into play and might be an argument that impacts the level of damages.
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I suppose that does explain why AP tried throwing other fan film productions under the bus.
 
Smoked Salmon said:
I agree, but it doesn't nonetheless mean he can't argue he thought that because others were infringing the IP with no action, he was led to believe he could do as well.

I'm not saying he would win such an argument, but I think that there is at least some scope to argue it, because the fact is that other productions were using professionals and were coming very close to merchandising themselves, and the studio didn't stop them.
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There's also the fact that CBS waited a very long time--after AP conducted multiple crowdfunding campaigns over a couple of years--before taking action. Given the lengthy publicity campaign AP conducted (i.e., the podcasts) and his prior working relationship with CBS officials, including Van Critters, it's not as if the studio was caught flat-footed. AP could plausibly argue his actions were not intentional or reckless based on the fact CBS waited so long to make its objections known.
 
Smoked Salmon said:
Just because something is actionable at discretion doesn't mean mitigation of damages is irrelevant. You're conflating cause of action with remedy.
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This also isn't an "all or nothing" case. There are different aspects of the litigation where AP has a stronger case than others. For example, I think there's a decent argument to be made that "Prelude," standing on its own, is fair use. It's presented in a different style--i.e., documentary--than most existing "Star Trek" properties; it mostly features original characters; and it is arguably a social commentary on war.

I'm not saying it's a great case for fair use--or even one that can survive summary judgment--but it is not a meritless argument.
 
oswriter said:
This also isn't an "all or nothing" case. There are different aspects of the litigation where AP has a stronger case than others. For example, I think there's a decent argument to be made that "Prelude," standing on its own, is fair use. It's presented in a different style--i.e., documentary--than most existing "Star Trek" properties; it mostly features original characters; and it is arguably a social commentary on war.

I'm not saying it's a great case for fair use--or even one that can survive summary judgment--but it is not a meritless argument.
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Indeed. That's the gist of what I've been trying to say.
 
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