CBS/Paramount sues to stop Axanar

[muCephi]

@muCephi, can you cite any legal or business case where consistently enforcing your own guideline or rule resulted in legally mandated fixed penalties for all offenders? It seems like you're arguing a legal theoretical. Furthermore, why would that amount be so low that you couldn't turn a profit from it? In this hypothetical scenario where a settlement or verdict sets a precedent worldwide, wouldn't CBS/Paramount go after the offenders with the deepest pockets first, thus setting the fixed penalty as high as possible?
...
That argument would have been difficult for STC, let alone Axanar. They never had a prayer. If it were that easy to win such a fair use case, someone would have set a precedent for them to follow a long time ago.

The only point of reference I have is from study of patent defense for my own business purposes. I read about claim jumper companies who assess that you are of a category that will settle if they jump you, because you can't possibly stop their overseas large scale operations, only cut a deal.

It was argued here recently that fan films should be treated "fairly" with respect to whether or not CBS/P would sue for this or that action outside the guidelines. I infer that if this were to be CBS/P policy, they would need to tell everyone what action would be taken various sorts of transgressions. How else could a fan film have a 'fair' shot at territory outside the guidelines if they didn't know the consequences in advance?

Would CBS/P ever do this? I argued not. But entertaining the idea of "fairness" by hypothesizing they would do so, I suggest that it looks a lot like what goes on with patent claim jumpers.. jumpers have a good idea what the cost will be to act first and seek permission later, so they do it.

Sure, its all hypothetical.

That's why so many of us here on Trek-BBS, both actual lawyers and simply laymen alike, questioned Ms. Ranahan's approach to the case. Nothing in her legal arguments made any sense in light of black-letter law, and there didn't seem to be any support from court precedents.

Yes, it didn't make sense. She did it anyway. A nice summary of the plethora of arguments and their flattening one by one by the judge:

http://trekmovie.com/2017/01/04/judge-denies-axanar-its-fair-use-defense/

Was that fair use "Hail Mary" actually the lawyer's idea, though?

from http://www.winston.com/en/thought-l...-star-trek-copyright-lawsuit-with-law360.html :

Ms. Ranahan notes that her defense may incorporate the fair use doctrine based on her growing understanding of the case.

“Their use of the [copyrighted] material is really minimal, and the film involves so much of their own creativity,” she said,” “But fair use is always going to be an adventure.”​

 

[Matthew Raymond]

The only point of reference I have is from study of patent defense for my own business purposes. I read about claim jumper companies who assess that you are of a category that will settle if they jump you, because you can't possibly stop their overseas large scale operations, only cut a deal.

Although both copyright and patents involve licenses, I'm not sure they're comparable with regard to how they're litigated. For instance, I think how much money you received for prior licensing fees carries more weight under patent law.

It was argued here recently that fan films should be treated "fairly" with respect to whether or not CBS/P would sue for this or that action outside the guidelines. I infer that if this were to be CBS/P policy, they would need to tell everyone what action would be taken various sorts of transgressions. How else could a fan film have a 'fair' shot at territory outside the guidelines if they didn't know the consequences in advance?

I'm not sure why you thing CBS/Paramount would have to tell people what the consequences would be beyond suing them, because most fan film producers would go bankrupt before the case ever got to trial. I think that "fair" refers to uneven enforcement and general confusion as to who will be sued under what circumstances, not the dollar amount that they'll sue you for.

Would CBS/P ever do this? I argued not. But entertaining the idea of "fairness" by hypothesizing they would do so, I suggest that it looks a lot like what goes on with patent claim jumpers.. jumpers have a good idea what the cost will be to act first and seek permission later, so they do it.

If the vast majority of copyright cases are settled out of court under a nondisclosure agreement, and the amount they're suing for is sky high, I don't see how the hypothetical claim jumpers would know what the cost of a license would be.

 

[Steve Roby]

Most of those guidelines seem designed to hamstring amateur efforts and force them to make lower quality fan fiction, even if higher quality fan fiction could be made at no profit.

Sure. CBS has the right to do that. As far as their shareholders and licence-holders are concerned, CBS has the responsibility to do that.

This is not something new. Thirty years ago a fanzine writer/publisher, Janet Walker, went to a print shop to produce a quality bound trade paperback edition of one of her fanfic novels, instead of the usual copy shop job that couldn't be confused for an official novel. Paramount, the rights holder at the time, advised her to knock it off. She complied and wasn't sued. The problem was the quality. She was producing something that was getting close to the point where the casual consumer might not realize it was a fan production. If that was allowed to continue, why would Pocket pay a licence fee to publish Star Trek novels?

They may even be specifically designed to get in the Axanar team's face for punitive reasons.

If the judge's rulings were anything to go by, and CBS really wanted to be punitive, they wouldn't have settled, they would have gone to court. Axanar was not victimized. Things could have gone much, much worse for Axanar.

But opinions do vary.

Facts don't. The facts were not on Axanar's side.

 

[JRTStarlight]

Just as copyright owners must retain the right to sue or not sue, unless they actively give license to another to do what they wish, they must also retain the right to decide how much or what to sue for and can't really set a fixed penalty for fixed infractions. Though it might be nice to have clearly stated parameters that "suggest" they won't sue if one remains confined to those parameters, I'm sure they would retain their right to change their mind and sue if an unforeseen reason should arise.

To suggest they might, for example, sue you for $1,000 for every minute or fraction thereof that your feature is over 15 minutes long could result in one reasoning their 20-minute feature is worth the $5,000 penalty and then proceed based upon that notion, but in the end, the IP owner would still have the option to not sue, or sue for $5,000, or sue for more, or prohibit the work entirely if they felt like it, regardless of what they implied, for whatever reason, and no matter how much money you already dumped into your project. And it would serve you right for not bothering to get a license from them first.

Sadly, short of giving or selling an actual license to someone, which might also have clearly stated parameters lest one feel they could do or say anything, the IP owners will and must always retain their rights to ignore, curtail, or prohibit non-owners from doing as they will with the owner's IP.

Nevertheless, while owners must retain these rights, it is not legally incumbent upon them to always enforce them, or enforce them fairly or uniformly. I can certainly understand choosing not to enforce them when doing so would cost more in time, money, or goodwill than refraining from legal action, but I think it's just bad form and unprofessional when they selectively sue one but not another if they have actually suggested or explicitly given some guidelines.

Sure. CBS has the right to do that. As far as their shareholders and license-holders are concerned, CBS has the responsibility to do that

That assumes that doing so would be financially better for the shareholders. It might not be, in which case not suing would be the more responsible action. And again, the fact they could have legally slammed Axanar harder doesn't disprove what they did was punitive, or how they will selectively enforce their guidelines couldn't possibly be punitive, too. To be pettier than they were might end up costing them more in goodwill, so it's not reasonable to conclude they weren't being petty or punitive at all.

Some facts are not on Axanar's side, this is true, particularly legal ones, but again, I'm not saying CBS and Paramount are legally in the wrong. I'm saying they are being less than fair. If you equate everything that is legal to that which is fair, or everything that is illegal to that which is immoral or wrong, then that's just a whole other conversation.

Like I said, you want a guarantee of fair, I think your best bet is to buy ahead of time a license for the project and run it past the IP owners first, then sign a contract. Otherwise, you are at their mercy.

LOEB: Still no sign of legal movement, Zavin.
ZAVIN: We've damaged ourselves. Our goodwill reserve is gone.
LOEB: But it is our duty to crush the IP owner's enemies.
ZAVIN: I do not trust that Ranahan person.
LOEB: We are legally in the right Zone. They will not enter. If you refuse, permit me the glory of the kill, Zavin.
ZAVIN: We will sue, but on my order.

 

[JD]

Holy shit dude, is somebody paying you by the word or something?

 

[feek61]

Holy shit dude, is somebody paying you by the word or something?

Really, there is no way I have time (or desire) to read a novel post: ever!

 

[MikeH92467]

I'm quite sure this guy could have read every post in this thread in the time it took to write these meandering passive/aggressive treastises. Oh, that's right, his time is too valuable to find out why people have the opinions they do, but he has plenty of time to lecture on us on why we're all too dumb to understand what's really going on.

 

[JRTStarlight]

No one is paying me by the word, but I'm pretty sure you already know that. If board rules allowed multiple back-to-back posts, I suspect more frequent but far shorter posts would be the norm for me, but I have been warned that more than one post in a row from the same poster might be considering spamming by a MOD here and was asked not to do it. So be it.

I'm quite sure this guy could have read every post in this thread in the time it took to write these meandering passive/aggressive treastises. Oh, that's right, his time is too valuable to find out why people have the opinions they do, but he has plenty of time to lecture on us on why we're all too dumb to understand what's really going on.

You don't want to read something, it's simplicity itself to skip over it. Really. It is. Try it. You can save even more time by not commenting on it. Honest. But if you'd rather take time to belittle it, or belittle me, that, too, is your call, but I would hope a website designed to exchange ideas via text messages would be a friendly place to do that and not turn into a hostile environment since you, what, feel compelled to read everything everyone writes and I'm giving you a ton of compulsory work? That just can't be the case, can it?

No, I couldn't possibly have read over 1,500 pages of text in the few short hours of time I have actually spent on this discussion. But I'm reasonably sure you don't actually care about that. Sorry you feel I'm being passive/aggressive, or that I feel my time is too valuable to find out why some people hold certain opinions. I assure you, that is not the case, and I have read every post here since I arrived, and have gone to many of the offered links and read the material there, as well. You don't know how I feel about my time, and you don't know what I think about other people's intelligence here, and telling others you know better than I about how I feel or what I think hopefully should be sufficiently suggestive to anyone to form their own opinion about what is true in that regard.

But I honestly can't imagine why you have come to that conclusion, either, just because I'd rather not read over 1,500 pages of text to find out why you were so sure I'd change my mind about how I felt if I just did that first. On this one page alone, some have expressed the sentiment reading a fraction of a single such page is already too laborious a task for them. I actually understand that. I genuinely do. But I don't let it bother me since I'm fairly certain anyone here knows how to skip over a post they don't want to read, so it's not like anyone is being forced to read any of my posts. Exactly why one might feel reading over 1,500 pages would be a snap and I could have already done that genuinely escapes me, assuming they can easily understand why another wouldn't necessarily want to read a single post longer than a few paragraphs. But if you just want to make such assertions but don't want to justify your own assertions, fine. Don't. That, too, should be easy.

While I have only felt obliged to actually correct one person here when they misstated something I said, or when they erroneously said I concluded something I hadn't, even then I have never thought anyone here was too dumb to understand anything I have said, or couldn't understand what was going on. I am sorry if I have ever made you feel dumb, or ever made you feel that you lacked understanding or sufficient intellect to grasp anything said here. I assume, of course, that others here haven't secretly confided in you that is how I made them feel and that you aren't just their spokesman about that who has been chosen by committee to speak to me on their behalf. Or maybe you have taken that task upon yourself for them since you already know what they think and how they feel, too.

But I do think you might actually understand how much your comments have hurt my feelings. I'm not suggesting you should necessarily care, or that you've hurt my fragile feelings horribly, mind you, such that I am now a basket case, but it is the first example of open hostility I have felt here on the Trek BBS board, Mike. So, well done?

 

[Astra]

just because I'd rather not read over 1,500 pages of text to find out why you were so sure I'd change my mind about how I felt if I just did that first.

A few pages back someone listed all the things that Axanar have done differently than other fan films, and which got us so upset that we have already spent a year and a half and 1500 pages on this topic. And I have been here from the beginning and read it all. It was a very emotional and upsetting time for me as I was worried about the ramifications for other fan films.

For me, it comes down to a single Yes or No question. Are you okay with the fact that they gained over a million but only used it on personal expenses and to build private business (and continue to do so even though they agreed legally not to) and never gave the fans the promised goods, like an actual movie or even just the patches? If you are okay with that, then nothing will change your mind and we can end this discussion probably.

 

[Mytran]

... I'm not sure some of those guidelines are even legal. Who are they to say a professional actor can't work where or on what they want, unless those actors are under CBS/Paramount contracts prohibiting them from doing so? If they are SAG members, they must be paid, even if it's the minimum, and beyond that, even just reimbursing those professionals, or amateurs for that matter, for travel expenses or feeding them or giving them temporary lodgings all could be construed as a profit or financial gain if you want to get picky.

The guidelines are not legal rulings and never pretended to be. At no point does any of them say "break this guideline and you will be sued". Therefore, any talk of the guidelines not being legally enforceable is missing the point. If a fan film were to be sued it would not be on the grounds that they'd paid a Trek actor to appear, it would be for the same basic reason as Axanar - copyright infringement. This is something that every fan film does by their very nature and something that (in theory) could result in a court case for each and every one.

And yet it's only happened to one, the same one that for the first 2 years of its existence refused to even call itself a fan film. Hmmmm

 

[Matthew Raymond]

For me, it comes down to a single Yes or No question. Are you okay with the fact that they gained over a million but only used it on personal expenses and to build private business (and continue to do so even though they agreed legally not to) and never gave the fans the promised goods, like an actual movie or even just the patches? If you are okay with that, then nothing will change your mind and we can end this discussion probably.

There's one teensy-weensy problem: This question's a straw man. I have yet to see anyone express the opinion that Axanar's actions are even remotely okay.

There definitely seems to be a sort of "if you're not with us and CBS you're with Axanar" false dichotomy going on in this board, and I think it's blocking out a lot of constructive conversations, particularly about the guidelines.

 

[feek61]

There definitely seems to be a sort of "if you're not with us and CBS you're with Axanar" false dichotomy going on in this board, and I think it's blocking out a lot of constructive conversations, particularly about the guidelines.

No, you are completely wrong; there is a lot of history here that you apparently are unaware of. The members here know Alec Peters very well from years of interactions and him posting on this board (before he was banned). We are wise to his shenanigans so it's more about knowing him than just being on one side or the other.

 

[Matthew Raymond]

No, you are completely wrong; there is a lot of history here that you apparently are unaware of. The members here know Alec Peters very well from years of interactions and him posting on this board (before he was banned). We are wise to his shenanigans so it's more about knowing him than just being on one side or the other.

With all due respect, I think you just proved my point. Every conversation anyone tries to have around here about the guidelines or CBS's enforcement thereof devolves into "you have no idea how bad Alec Peters really is".

 

[Jedman67]

With all due respect, I think you just proved my point. Every conversation anyone tries to have around here about the guidelines or CBS's enforcement thereof devolves into "you have no idea how bad Alec Peters really is".

Well no. Every conversation here is about how Axanar openly flouted the "unwritten" constraints of fan films in general (not specifically Trek); how Axanar blew way past its fundraising goals and literally spent every penny of its donations on everything but making a fan-film.
That some of this was predicted by people who have an up-close and personal experience with Peters is only icing on the cake.
Axanar (Peters) refused to listen to warnings by CBS representatives who told him, several times, that they were crossing big lines and needed to change their act.
I don't believe the lawsuit contained an injunction against producing the Axanar feature - it only listed all the copyright violations.

 

[muCephi]

With all due respect, I think you just proved my point. Every conversation anyone tries to have around here about the guidelines or CBS's enforcement thereof devolves into "you have no idea how bad Alec Peters really is".

Are there good threads on the bbs that are about the guidelines directly?

I guess the entanglement might be around CBS/P motives. Someone says its petty or unfair, then someone says yes but we can't know because the Axanar multimillion dollar grab triggered everything, and then someone says Axanar did nothing wrong, etc.

How to wash Axanar out of it? Perhaps consensus on those threads not to spiral off into Axanar when it comes up, but focus on an Axanar-free future.

Except perhaps in this thread Maybe add one more: Triskelion for Axanar Debate.

 

[Matthew Raymond]

Are there good threads on the bbs that are about the guidelines directly?

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I guess the entanglement might be around CBS/P motives. Someone says its petty or unfair, then someone says yes but we can't know because the Axanar multimillion dollar grab triggered everything, and then someone says Axanar did nothing wrong, etc.

That seems about right, although at this point I think that last part happens mostly in people's heads. I suspect the true, hardcore Axanar supporters left the site before I ever came on the scene, though. I'm still a relative newcomer.

How to wash Axanar out of it? Perhaps consensus on those threads not to spiral off into Axanar when it comes up, but focus on an Axanar-free future.

We could put "[Axanar-Free]" at the beginning of thread titles, and the first person in the thread to mention Axanar or Alec Peters in any context is declared to be Hitler.

 

[feek61]

With all due respect, I think you just proved my point. Every conversation anyone tries to have around here about the guidelines or CBS's enforcement thereof devolves into "you have no idea how bad Alec Peters really is".

Quite frankly it would be foolish to ignore years of history.

 

[Matthew Raymond]

Quite frankly it would be foolish to ignore years of history.

So, by that reasoning, would any conversation about rockets necessitate a through discussion of the moral character of Wernher Von Braun?

 

[feek61]

Dude, you make no sense. AP has a proven track record of deception and lying; I have no reason to believe he has changed his behavior from what I read almost daily from him. To ignore those facts would be ignorant. I have nothing against Axanar except the leader of it is a liar: period.

 

[Matthew Raymond]

Dude, you make no sense. AP has a proven track record of deception and lying; I have no reason to believe he has changed his behavior from what I read almost daily from him. To ignore those facts would be ignorant.

This is not about ignorance. This is about relevance. Going back to my example, you're basically arguing the equivalent of the idea that we can't have a conversation about Apollo without acknowledging that the chief architect of the Saturn V rocket was a former member of the Nazi party who invented and oversaw the construction of missiles used against our ally Britain and constructed using slave labor. One does not need to bring this up to talk about various aspects of the Saturn V rocket, even though von Braun is the man most directly responsible for its existence.

Similarly, it is entirely possible to have a meaningful conversation about the guidelines without rehashing AP's role in how they came to be every other message.

I have nothing against Axanar except the leader of it is a liar: period.

I don't care. Hate him as much as you want. Just don't make him the topic of conversation even when he's not.