AP to Appeal Court: "It IS Fair Use". Appeal Court: "No it's not. Go Away." AP to Supreme Court: "It IS Fair Use!" Supreme Court: *Crickets*
CBS/Paramount sues to stop Axanar
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AP to Appeal Court: "It IS Fair Use". Appeal Court: "No it's not. Go Away." AP to Supreme Court: "It IS Fair Use!" Supreme Court: *Crickets*
What a steaming pile of <wishful thinking>
This Washington Post columnist has written previously on (and favorably toward) Axanar. And even though he admits "the prima facie case of copyright infringement is pretty strong," he still weighs in on Axanar's behalf regarding fair use:
While the writer goes on to condemn the judge's narrow consideration of (and dispensing with) Axanar's supposed transformativeness only in terms of parody and criticism, he goes on to claim that Axanar is nonetheless transformative in some *other* way — yet neglects to enlighten us as to what way that might be.
He also completely neglects (as most media have done) Axanar's blatant commercial use of Star Trek IP. Read and see what you think.
«The court went awry, I believe, in holding additionally that the defendants “are not entitled to the fair use defense,” a holding that illustrates much that is wrong with copyright law these days.
To begin with, the fair use defense, involving a complicated balancing of defendant’s motives and purposes, the effect of the defendant’s use on the market for the original work and any number of other relevant factors, is hardly ever appropriate for disposition on summary judgment; there’s too much fact-finding required.
But more to the point, “Axanar” uses copyrighted material for a transformative purpose — creating a new and original work of art. It is not a substitute, in the market, for the original; if anything, it enhances the value of the original.»
To begin with, the fair use defense, involving a complicated balancing of defendant’s motives and purposes, the effect of the defendant’s use on the market for the original work and any number of other relevant factors, is hardly ever appropriate for disposition on summary judgment; there’s too much fact-finding required.
But more to the point, “Axanar” uses copyrighted material for a transformative purpose — creating a new and original work of art. It is not a substitute, in the market, for the original; if anything, it enhances the value of the original.»
While the writer goes on to condemn the judge's narrow consideration of (and dispensing with) Axanar's supposed transformativeness only in terms of parody and criticism, he goes on to claim that Axanar is nonetheless transformative in some *other* way — yet neglects to enlighten us as to what way that might be.
He also completely neglects (as most media have done) Axanar's blatant commercial use of Star Trek IP. Read and see what you think.
Well then you ought to love this
http://fanfilmfactor.com/2017/01/09...t-go-all-the-way-to-the-supreme-court-part-2/
Thanks for the link! I enjoy the way Mr. Lane writes (now as opposed to when he was writing on the production's site which was often aggressive and... mean, and in the case of that delightful little parody he worked on with the creator Mark Largent where he told his public Mr. Largent liked and really supported the production, which Mr. Largent then -immediately- came to 'this' thread and denied the accuracy of Mr. Lane's statement, stating he did the parody for a laugh and is not an official supporter of this production) ---
uh, apparently a bit of irritated stream of consciousness typing for a minute there....
Let me try this again.
I enjoy Mr. Lane's style of writing on fff as opposed to the way he wrote on the production site. I do not need to agree with (and mostly do not) much or anything he writes of course to enjoy his writing style. And certainly never take his information at his word because I research most everything I read from him. But he does make me smile, sometimes even get tickled at some of the little things he says like "Well, drat" and "Darn…shutting up now" and "Well, I can’t argue with that last point". Stuff like that.
And were I not to have been doing my own investigations on this whole thing for over a year now, and were I not to have found oh so much about the defendant (what he seemingly just can't filter himself from saying and changing and being verbally vile, etc.), the production, and Everything about this whole thing. And were I to have not read Mr. Lane previously, noting disregard, disdain, falsehood, and spin, I can see where one might take Mr. Lane at his word in fff.
But I have, so I don't. So in the above linked blog he brings up what appears on the surface to be a good point addressed in the 2010 paper by Ned Snow: Judges Playing Jury:
Constitutional Conflicts in Deciding Fair Use on Summary Judgment
I would enjoy hearing @jespah, @Smoked Salmon, @oswriter, @carlosp -and anyone else- address the content of Mr. Snow's paper from your own knowledge of any courts beginning to, I dunno, be taking this to heart or something. Because I'm quite interested in whether Ms. Ranahan might see 'a' possibility of effecting law in just this type of small way no matter the outcome for the client in the end. (with the stipulation Ms. Ranahan & W&S are indeed defending this client with all their skill and intent) Which would indeed be the feather in her resume cap that I have always presumed was W&S and Ranahan's reason for taking this case.
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The only way anyone could support AP is to ignore his direct financial benefit. I don't know how a person could do that at this point, but it happens. 
Bravo to our esteemed Madame Chief Justice who chimed in with a solidly written and argued addendum that covers the exact issue of commercialism! I wonder if the author will respond?
What the what?! It's transformative because it's merely a new and original work of art?! What the fuckity WHAT?
With that "reasoning" Warner Brothers could make a new Star Wars movie, with the name, worlds, style, tone, etc, take an obscure character and claim it's fair use.
What the what?
IMO, there opens a vast "professional-fan film/book/etc." industry in the future worldwide, attached to every valuable property, bypassing IP rights, if Axanar is allowed to stand as a precedent.
Raising over a million off of Trek and putting most of it into studio infrastructure for future non-Trek business forced the issue.
Copyright is at issue, but I believe the corruption of crowdfunding+fake nonprofit claims to leech off of valuable IP is the real bee sting that can't be ignored by IP owners.
Here's an article critical of the Snow piece on which Jonathan Lane relies so heavily. Note the following about Snow's thesis:
«Snow opposes the use of summary judgment to decide fair use (except, perhaps, where the defendant is the movant).»
Guess what, Jonathan. The defendant WAS the movant; Axanar ASKED the judge to rule on fair use in summary judgment. So much for your Get Out of Jail Free card.
Interestingly, Snow himself weighs in on the comments thread. The critique is well worth the read. http://copyrightsandcampaigns.blogspot.com/2009/08/article-criticizes-deciding-fair-use-on.html?m=1
Aw, thanks @MikeH92467 !
@ThankYouGeneR - regarding the Snow article. A few things:
And to go back to my first point, the Snow article is a bit disingenuous because he never mentions the Copyright Act of 1976, e. g. where the defense theory of fair use was codified in the first place. Ignoring it does not mean it goes away. Basically what happened was, the matter was considered to be settled by statute and the courts adopted a standard of judge's making fair use decisions. And, because this is often done under the auspices of summary judgment, that kinda would happen anyway.
Is it a question for the Supreme Court? Not in the Axa case, no. However, it might be something for the top court to clarify at some later date. But this is not going to be the test case for that.
Thanks for askin'!
@ThankYouGeneR - regarding the Snow article. A few things:
- The treatment of fair use changed in 1976 because fair use was codified in the Copyright Act of 1976. https://www.law.cornell.edu/uscode/text/17/107 Hence the matter was mainly taken out of jurors' hands because the rule had been clarified.
- Actually, defense asked the court to rule on fair use in their own summary judgment motion. See: defense summary judgment, here: http://www.semanticshenanigans.com/axanar-defense-summary-judgment-motion/ See also their proposed order, at the same URL.
And to go back to my first point, the Snow article is a bit disingenuous because he never mentions the Copyright Act of 1976, e. g. where the defense theory of fair use was codified in the first place. Ignoring it does not mean it goes away. Basically what happened was, the matter was considered to be settled by statute and the courts adopted a standard of judge's making fair use decisions. And, because this is often done under the auspices of summary judgment, that kinda would happen anyway.
Is it a question for the Supreme Court? Not in the Axa case, no. However, it might be something for the top court to clarify at some later date. But this is not going to be the test case for that.
Thanks for askin'!
A very interesting read. Thanks so much for finding this. It seems this is another bit of the Ned Snow paper story that Mr. Lane hadn't realized was there or thought pertinent. Mr. Snow's comments were worth the read as was the critique, just as you said.
Thanks for bein' there for me to ask. And this is another bit of the Ned Snow paper story that Mr. Lane hadn't realized was there or thought pertinent.
And I do take your argument that (after reading his paper) I also note he does not mention mention the Copyright Act of l976. Curious. And his paper (a very interesting read by the way) should, I believe anyway, have included it; whether condemning it or arguing its merit in today's copyright climate. I would have considered his arguments to the Copyright Act of 1976 to hold merit of consideration were he to have spoken to them. His paper was a very interesting read aside from that omission.
He does specifically (pg 63) reference Mr. A.R. Miller's work when writing "when courts declare that no issues exist for a jury to determine when in fact such issues do exist." And does 'specifically' quote Mr. Miller: "if no ‘genuine issue of material fact’ exists and the the movant is entitled to judgment ‘as a matter of law,’ pretrial disposition does not raise questions of constitutional dimensions"
-and- since the movant, the defense, specifically asked the court for a summary judgement regarding fair use, as both you and Carlos point out, as does the legally filed Defense Request For Summary Judgment ---
I now wonder why the defense requested it. But request they did, and at this time it seems are therefore entitled to the ruling on fair use they requested if the court sees fit to comply. Was the defense determining to accept the ruling on what they asked if it was to their benefit and call Seventh Amendment foul if it was decided against them? Were they asking the court to do something they thought unconstitutional or something? Mr. Lane's blog seem to imply this since he is publicly asserting the ruling to tread on the defendants' 7th Amendmt constitutional rights.
That the defense most certainly specifically requested the judgment on fair use and therefore were in fact entitled to it if it suited the court to give it seems to me to nullify Mr. Lane's assertion of a right to a Seventh Amendment constitutional question appeal.
Much thanks to both of you for the information you gave me to look at!
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It is telling to me that a paper that purports to offer two centuries of history on fair use neglects the very salient change in the the legal precept with its incorporation into statute as part of the Copyright Act of 1976, as opposed to its former status as mere common law. Such an omission makes me skeptical of the argument propounded by Prof. Snow and, by extension, Jonathan Lane.
One thing to bear in mind is that just because Jonathan writes something in his blog doesn't mean it evinces Erin Ranahan's actual legal strategy. I believe he really does consult with some other unknown lawyers who deign to feed into his and Axanar's delusions of grandeur. The fact they remain nameless is similarly telling. With anonymity goes the lack of accountability.
I don't think the Winston legal team went into the summary judgment motion with the idea that the process threatened some imagined Seventh Amendment protection. Ranahan has made use of summary judgments in copyright and trademark cases before, so it's not likely she hasn't taken advantage of that process in the past. This new wrinkle raised by Jonathan is simply wishful thinking in the face of the ever-narrowing odds Axanar faces.
In the 90s, everyone came down on every website. I was into Simpsons wavs at the time (Jesus fuck that's a dated admission), and sometime in the mid-90s Fox sent C&Ds to countless websites hosting them.
It was a brave new world and the to the suits in LA there wasn't much difference between a website hosting hoyvinmayvin.wav and a guy with a card table full of bootleg movies.
I'm not the one to address this as, with the exception of libel cases, we only have jury trials in criminal cases so it's not a issue for us. In fact, I have long been an advocate of judge decided cases as I don't think juries are reliable in the modern age. For me, it's entirely normal and expected for a judge to make a finding of fact. I suppose it boils down to whether or not the forum of summary judgment allows a finding of fact in spite of the Seventh Amendment. I'd have to see the case law to have a view on that. But it seems from a quick Google that the process of summary judgment has been said to be constitutional by the US Supreme Court, and I personally don't see how a court can say that without accepting that a judge has to make at least some finding of fact for the summary judgment process to operate effectively.
Where Ranahan is concerned, if she is professional then her client's best interests come before glory. I am concerned that the longer this case is dragged out the worse it gets financially for Peters. So she needs to have a pretty strong argument to advise her client that the risk is worth taking.
Oh, to be a fly on the wall for meetings between Ranahan and Peters.
I think the possibility exists that Ranahan is advising Peters that the risk isn't worth taking and he's telling her to go ahead anyway.
"Forward, the Light Brigade!"
I think the possibility exists that Ranahan is advising Peters that the risk isn't worth taking and he's telling her to go ahead anyway.
"Forward, the Light Brigade!"
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