Running with that, the whole "If you give a mouse a cookie.........." thing seems to describe LFIM pretty well
CBS/Paramount sues to stop Axanar
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Running with that, the whole "If you give a mouse a cookie.........." thing seems to describe LFIM pretty well
From the last paragraph in Lan's "article":
Funny, several hundred words of nothing is how I feel about every one of Lane's posts.
I just manually type the @ - as in @ThankYouGeneR - and then after three or four letters or so, I get a drop-down showing me options in case there's more than one site member with a similar name.
Onto the remainder. Very close!
- Suit is filed
- Defense tries to settle; plaintiffs say no
- We go through discovery and motion practice. All along, the parties have, most likely, been trying to settle. And those can be really informal talks, e. g. you see your opponent in court for some wholly unrelated matter and ask, "Hey, what'll it take to clear the __ case?"
- Court also pushes for settlement and schedules some dates. At least the first one is absolutely mandatory. As for the others officially scheduled by the court, those can be because:
- The court thinks it will settle if the parties just spend some time on the matter or
- The court thinks someone (possibly just defense, but it could be both sides) just needs to hear the facts of life and their likelihood of prevailing before they will knuckle under and settle or
- The court is busy and is trying to get this one cleared as it's going to clog up the court and other cases need to be heard. Technically, that is not supposed to be a reason, but judges are nothing if not practical, and they want easy to settle matters to be gone.
- Other things are scheduled including the last date for motion practice (today!)
- Either or both parties move for summary judgment. Or possibly neither one does, but that is highly unlikely. Also, look for amicus to be filed and that means the language people - forgive me but I have forgotten their actual, full name.
- Summary judgment is opposed, possibly in the form of a motion or just a regular response. Motion is argued, supporting documents are filed. This is the record for any appeals.
- IF defense wins on s/j, plaintiffs will appeal. Look for amicus to be filed by other major IP holders such as Disney.
- IF plaintiffs win on s/j, defense will probably appeal although it's a question as to what the pro bono agreement is between Axa/AP and W & S. At some point, this becomes overly expensive and burdensome for W & S. Or they just might want to call someone else in to handle the appeal (there are firms which pretty much only handle appellate practice). Look for amicus by the language people (yes, there could be a second amicus by them, past at the motion hearing stage).
- Appeals from either side go to a Ninth Circuit judicial panel.
- Anyone who wants to appeal further appeals for a hearing en banc (not necessarily guaranteed, BTW). Same parties as before.
- Anyone wanting another appeal will petition for Supreme Court certiorari. The US Supreme Court most likely won't grant that, so the decision of whichever highest court has decided is the one that will stand. Denial of certiorari is essentially a kind of back-door affirmation of the lower court's decision.
- Any material (note that word here, folks) issues of fact might be remanded for a trial. Immaterial factual issues (e. g. did Ms. Kingsbury start working on a Tuesday or a Wednesday? Nobody gives a damn about that) will be ignored.
- Anyone who wants to appeal further appeals for a hearing en banc (not necessarily guaranteed, BTW). Same parties as before.
- Remanding for trial will, of course, result in a trial, as would be the case if nobody moved for s/j or a motion was denied and then not appealed, and the matter was not settled in the meantime.
- Settlement discussions can and will go on at any time, including during appeals, during any trial, when waiting for a verdict if it comes to that, and even, potentially, after verdict or after appeal.
I find all this very interesting. Over here an application for summary judgment is usually only brought by the Claimant/Plaintiff (with the Defendant normally making an application for no case to answer) where a case is obviously and clearly without merit. In other words the other party doesn't have a leg to stand on. If dismissed an appeal would only rest on a point of law, which is pretty unheard of in an application for summary judgment in England. But this seems to be tactical games, and I don't see how it can be said that either side is totally without merit. Is it just an exercise in procrastination in the hope that one side throws in the towel (as you hint on above)?
Or overlooks a necessary revoicing of a key point, or proposes something that can be browbeaten as a distraction, etc., etc.
Towel plus trying to make law. Even if Ranahan loses horribly, e. g. not only is the motion denied but the court essentially sows the ground around her with salt, some of her words could end up in the opinion or in a future opinion. A small amount of kudos for her and the firm, if nothing else.
Mouse? Don't you mean "give a rat a cookie?"
So it's like Pirates of the Caribbean?
Norrington: "You are, without doubt, the worst pirate I've ever heard of."
Sparrow: "But you have heard of me."
Not sure if it's the reason why but remember that there was CBS's lawsuit and then Axanar's counter-suit.
You give a mouse enough cookies and eventually he fattens up and turns into a rat.
Fan Film Factor, as the only online source of lawsuit news "approved" by Alec Peters, neatly sidesteps the "direct financial benefit" part of the legal complaint and how that plays into the four-factor fair use analysis and determination of infringement.No mention in SL's article of direct financial benefit on AP's part.
Was it intentional, willful omission? Do we have to prove it in a court of law?
Further, Lane is correct that a determination of "willful" vs. "innocent" infringement doesn't absolve the defendants from having infringed but it does have an effect on how much may be awarded in damages. Lane spends a lot of time explaining how Peters couldn't possibly have willfully infringed, especially since all the other kids were doing it.
The legal standard for willfulness, however, doesn't revolve around what infringement other people may have committed, just the infringement you did.
I examine Lane's take on the case in this AxaMonitor analysis.
So a first instance summary judgment determination gets to be a precedent? Or do you mean simply due to the publicity....which I would've thought is assured now anyway.
Yes, indeed. I just find it rather bold that either party can say there is a case of no merit. If I recall, Axanar's counterclaim is essentially a default claim on the basis that CBS/P fail...which means I would have though they have to believe their defence is rock solid to succeed on a summary judgment application,.
Not even precedent (although I'm sure she would like that). I was thinking more of obiter dicta but yeah, there's the press, too.
Not sure what obiter dicta means, but as I understand a judge working on unfamiliar ground may choose to look wherever they wish to find similar cases. For instance I seem to recall in press freedom cases, American courts going to Common Law rulings overseas to see how other judges ruled and their reasoning for their rulings in similar cases. It's not quite the same thing as precedent, but when you find yourself ass-deep in a legal swamp, I guess any guidance is better than none. OF course, I could have that entirely wrong. If so, I hope Madam Chief Justice Jespah will set the record straight.
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