CBS/Paramount sues to stop Axanar

[Warped9]

I am a bit surprised that a fan production meeting all the guidelines and not materially different from others could be picked out for a lawsuit solely based on the studios' whim.

CBS/P can shut anyone down at any time at their discretion. The guidelines simply advise that anyone meeting the guidelines to the letter is most likely safe from action from CBS/P at the present time. They could change their minds later depending on any number of considerations. On the flip side the guidelines do not say they will automatically go after someone who does not follow the guidelines to the letter. From that we can deduce that things are not much different than previously and I think this will be more broadly realized as individuals "push the envelope" (so to speak) to see what will be tolerated. CBS/P, through John Van Citters, has already stated that CBS/P would express any concerns with a polite phone call first, likely a C&D letter second and then hardball action as a last resort. This will allow any potential violator to clean up their act before things get unpleasant.

I think the real intent behind the guidelines is to put folks on notice to scale back their aspirations. And not necessarily quite as restricted as the guidelines appear to suggest.

 

[jespah]

Thanks so much for that clarification. Like many people I keep forgetting that 'freedom of speech' is defined within specific contexts.

I am a bit surprised that a fan production meeting all the guidelines and not materially different from others could be picked out for a lawsuit solely based on the studios' whim. For example, a protected class as is often recognized in civil rights and government contracting. Alec may not be a protected class, but what if the studios sued a production made by a company that proclaims itself to be of a (sometimes, in some circumstances) protected class, where their production was otherwise faultless wrt/ the guidelines? Could the studio be open to accusations of discrimination in a commercial relationship?

Do you mean (for instance), say, an all-Asian fan production? Race is a protected class in the United States. But that still doesn't entitle the production to exist at all. This isn't an employment situation, it's not housing, etc. It's making a film. It's not a protected activity like requesting reasonable accommodations is, with reference to employment. And again, it's not a free speech issue because the IP holders aren't the Federal government.

 

[oswriter]

Do you mean (for instance), say, an all-Asian fan production? Race is a protected class in the United States.

Well, I suppose you could argue Klingons are a protected class...

 

[urbandefault]

Depending on the outcome, the guidelines could change in a big way.

"AP won the right to make Axanar, but that's the end of fan films. Thank you, and good night."

So if CBS/P win, fans will think they got screwed. If LFIM wins, fans will know they got screwed, and without so much as a peck on the cheek.

 

[Jedi_Master]

Even in the extremely unlikely event that CBS/P does not prevail, the guidelines were created specifically to prevent another Axanar from ever appearing. So Alec loses his steady employment anyway.

 

[muCephi]

In general, yes, I refer to protected classes the way antidiscrimination clauses appear in various laws.

These protections are extended into some sorts of commercial transactions, although the extent to which they could overlap things like these guidelines I am not sure.

The guidelines explicitly say that the studios will not take action on works that meet the guidelines: "CBS and Paramount Pictures will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines." While the studios reserve their rights to change the terms, and say that it isn't a license, they make this explicit statement at the start.

Because of this, the guidelines seem like more than just "a range of activities we might be willing to overlook, but no guarantees". They seem like a statement which could be held against them in court like a contract (for example, like a warranty binds an IP owner to a consumer (an IP owner can be sued for a defective product design if the manufacturer hasn't indemnified the owner, and held to the terms of the warranty, and the warranty is published without the IP holder knowing who the consumers will be)). In this case, the "warranty" is what the IP holder will NOT do, but it seems analogous. IANAAEBT, but its an impression I have I am wondering about.

And because the guidelines are such a strong statement, I wonder whether a provable intent of picking out particular people or groups for selective lawsuits over compliant projects could trigger any wider legal consequences for the studios.

 

[carlosp]

Well, I suppose you could argue Klingons are a protected class...

I think you mean Klass.

 

[urbandefault]

Because of this, the guidelines seem like more than just "a range of activities we might be willing to overlook, but no guarantees". They seem like a statement which could be held against them in court like a contract (for example, like a warranty binds an IP owner to a consumer (an IP owner can be sued for a defective product design if the manufacturer hasn't indemnified the owner, and held to the terms of the warranty, and the warranty is published without the IP holder knowing who the consumers will be)). In this case, the "warranty" is what the IP holder will NOT do, but it seems analogous. IANAAEBT, but its an impression I have I am wondering about.

But wasn't it stated that the guidelines were subject to change without notice, or something to that effect?

Seeing as fan films are using the IP at no cost to them, there would be no warranty or implied protection regardless of stated guidelines. Legalese is a complicated language, that much is certain.

 

[muCephi]

But wasn't it stated that the guidelines were subject to change without notice, or something to that effect?

Seeing as fan films are using the IP at no cost to them, there would be no warranty or implied protection regardless of stated guidelines. Legalese is a complicated language, that much is certain.

I am using the concept of warranty as an analogy. The owner is voluntarily offering that they will comply with certain terms towards those who use their products, without knowing who those users will be. It may not be a legally perfect parallel (its not a commercial transaction) but it seems similar to me. The studios offer that they will not object to or sue those who follow the guidelines. Its a very cut and dried statement. There may be some sort of legal framework under which such a statement can be held as legally binding. Even a simple verbal agreement can take this form: "sure, you can borrow my lawn mower, just bring it back by 8pm". I believe this can be argued as a verbal contract.

I guess they could change it at their discretion (see below), but until their changed terms are announced I don't see how they could say they are out from under their current offering. They have told fans they will not sue if certain conditions are met. I would think that this is more than just a suggestion. But I might be wrong.

Also notice that this statement from the end of the guidelines says that these terms do not represent a waiver of any rights "with respect to fan fiction made outside of these guidelines". To me this opens the possibility of interpreting the guidelines as a waiver of rights for productions which meet the guidelines, until the terms are changed. But again I might be wrong.

"CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion. These guidelines are not a license and do not constitute approval or authorization of any fan productions or a waiver of any rights that CBS or Paramount Pictures may have with respect to fan fiction created outside of these guidelines."​

 

[jespah]

It's not a contract; it's not a meeting of the minds. On the fans' side, it's adhesion, in that they had no bargaining power. On the IP holders' side, it's rather difficult to contract away your right to sue. Basically, the guidelines are exactly that - guidelines. They provide a line in the sand and they give a framework and direction.

Further, the issues of warranty, sales, etc. are covered in the US by The Uniform Commercial Code. The UCC is good in Federal court and 49 states. Louisiana is weird and civil law-based (as opposed to common law), but they do apply similar rules to transactions involving goods. The UCC doesn't apply to services or the sale of land, but it does apply to any goods transactions that might be wrapped up with them, e. g. if I sell you my lawnmowing service and a lawnmower, the UCC applies to the sale of the mower but not to my awesome ninja edging skills.

Anyway, the point I'm making is that an analogy to warranties and contracts is not a straight line at all.

It's a little bit more like covenants, I believe. Is it enforceable in court? Probably, for the most part. I imagine a few bits of it here and there could fall if really pressed. But it's not a contract and not a covenant not to sue. It's just ... guidelineroonies.

 

[muCephi]

It's not a contract; it's not a meeting of the minds. On the fans' side, it's adhesion, in that they had no bargaining power. On the IP holders' side, it's rather difficult to contract away your right to sue. Basically, the guidelines are exactly that - guidelines. They provide a line in the sand and they give a framework and direction.

Further, the issues of warranty, sales, etc. are covered in the US by The Uniform Commercial Code. The UCC is good in Federal court and 49 states. Louisiana is weird and civil law-based (as opposed to common law), but they do apply similar rules to transactions involving goods. The UCC doesn't apply to services or the sale of land, but it does apply to any goods transactions that might be wrapped up with them, e. g. if I sell you my lawnmowing service and a lawnmower, the UCC applies to the sale of the mower but not to my awesome ninja edging skills.

Anyway, the point I'm making is that an analogy to warranties and contracts is not a straight line at all.

It's a little bit more like covenants, I believe. Is it enforceable in court? Probably, for the most part. I imagine a few bits of it here and there could fall if really pressed. But it's not a contract and not a covenant not to sue. It's just ... guidelineroonies.

Thanks, that's really interesting. So if I said you could borrow my lawnmower till tomorrow, and then immediately reported you as having stolen it, you couldn't defend yourself? Or this is not similar either?

 

[oswriter]

I am using the concept of warranty as an analogy. The owner is voluntarily offering that they will comply with certain terms towards those who use their products, without knowing who those users will be. It may not be a legally perfect parallel (its not a commercial transaction) but it seems similar to me. The studios offer that they will not object to or sue those who follow the guidelines. Its a very cut and dried statement. There may be some sort of legal framework under which such a statement can be held as legally binding. Even a simple verbal agreement can take this form: "sure, you can borrow my lawn mower, just bring it back by 8pm". I believe this can be argued as a verbal contract.

What you're describing is basically "promissory estoppel." This is a concept in contract law that states, "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." In simpler terms, promissory estoppel can allow you to enforce a promise even if there is no consideration, as there would be with a traditional contract.

So could a hypothetical defendant invoke promissory estoppel to enforce the fan film guidelines? The problem I see is that the guidelines are not directed at anyone in particular. Promissory estoppel usually involves making a promise to a specific person. For example, let's say I own the largest franchisor of Jumja sticks in the Bajoran system. You own a Klingon restaurant on Deep Space Nine. I promiise that if you sell your restaurant and lease a new space I will grant you a franchise. You go and do that but then I change my mind and don't give you the franchise. Under promissory estoppel, the Bajoran magistrate could order me to pay damages for the expenses you incurred based on your reliance on my promise.

Now, if I go out and raise a bunch of money for a Star Trek fan production that complies with the guidelines and the studios still sue me, is that the same thing? The studios did not make a promise directly to me. They merely issued a general statement of policy regarding how they plan to enforce their own copyrights going forward. The clear, unambiguous language of the guidelines states that it is not a license. So I don't think I could plausibly argue detrimental reliance to establish promissory estoppel; I am basically proceeding with my fan production at my own risk.

 

[jespah]

Thanks, that's really interesting. So if I said you could borrow my lawnmower till tomorrow, and then immediately reported you as having stolen it, you couldn't defend yourself? Or this is not similar either?

Oh my, I had to dig way back for that one (I sound like the legal version of Casey Kasem - and this law is going out to all you lovers out there, and is dedicated to Judge Learned Hand) - that is the tort of conversion!

 

[muCephi]

What you're describing is basically "promissory estoppel." This is a concept in contract law that states, "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." In simpler terms, promissory estoppel can allow you to enforce a promise even if there is no consideration, as there would be with a traditional contract.

So could a hypothetical defendant invoke promissory estoppel to enforce the fan film guidelines? The problem I see is that the guidelines are not directed at anyone in particular. Promissory estoppel usually involves making a promise to a specific person. For example, let's say I own the largest franchisor of Jumja sticks in the Bajoran system. You own a Klingon restaurant on Deep Space Nine. I promiise that if you sell your restaurant and lease a new space I will grant you a franchise. You go and do that but then I change my mind and don't give you the franchise. Under promissory estoppel, the Bajoran magistrate could order me to pay damages for the expenses you incurred based on your reliance on my promise.

Now, if I go out and raise a bunch of money for a Star Trek fan production that complies with the guidelines and the studios still sue me, is that the same thing? The studios did not make a promise directly to me. They merely issued a general statement of policy regarding how they plan to enforce their own copyrights going forward. The clear, unambiguous language of the guidelines states that it is not a license. So I don't think I could plausibly argue detrimental reliance to establish promissory estoppel; I am basically proceeding with my fan production at my own risk.

thanks, that is interesting. I browsed a bit about estoppel. There is a version called "equitable estoppel", where a party cannot take an action contrary to their prior assertions of fact, such that it prejudiced those who relied on that assertion (if I am reading it correctly), e.g. http://www.duhaime.org/LegalDictionary/E/EquitableEstoppel.aspx . Could someone try to use this?

for example:

"The doctrine rests upon principle that when a person by his acts causes another to change his condition to his detriment, person performing such acts is precluded from asserting a right which he otherwise might have had."​

I'm not fishing around here for some loophole, I am just curious. I don't need to take over the thread... The statement to fans seems so clear and definitive, and the end of the document even says that the guidelines do not constitute waiver of rights if you violate the guidelines (why would this distinction even be necessary if no waiver of rights is occurring even within the guidelines?). It does not say "is not likely to sue", it says "will not sue".

 

[muCephi]

Oh my, I had to dig way back for that one (I sound like the legal version of Casey Kasem - and this law is going out to all you lovers out there, and is dedicated to Judge Learned Hand) - that is the tort of conversion!

hm, I was focused on the idea that myself as the owner of the asset granted an implied forbearance against suing you for theft during the authorized period, when I said you can borrow it.

I think oswriter described this situation and said he did not think it applied to the guidelines because the guidelines are not between specific parties on both sides. I guess this is why I imagined warranties might point to something, since they seem like a promise where one of the parties is not known initially.

 

[oswriter]

There is a version called "equitable estoppel", where a party cannot take an action contrary to their prior assertions of fact, such that it prejudiced those who relied on that assertion (if I am reading it correctly), e.g. http://www.duhaime.org/LegalDictionary/E/EquitableEstoppel.aspx . Could someone try to use this?

I think you'd run into a similar problem as promissory estoppel: There's no underlying contract that binds the studios. Equitable estoppel is designed to prevent a party from avoiding a contractual obligation. For example--and this is taken from an actual California case--Company A signs an employment contract with Mr. X. The contract states that any dispute arising under the contract must be settled through binding arbitration (i.e., the employee is waiving his right to sue the employer in court). Company A then assigns the contract to Company B, which repudiates the agreement and fires Mr. X.

Mr. X then sues Company B in court. The court holds that under equitable estoppel, Mr. X is required to submit to arbitration, even though Company B was not a party to the employment contract. The reason for this is that Mr. X's claims arise from the contract itself. He therefore cannot avoid his freely chosen obligation just because a third party is involved.

Now, the C/P guidelines do state the studios will "will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines." But this is a unilateral promise, not part of a contract. So promissory estoppel might be applicable--emphasis on "might"--but equitable estoppel would not.

 

[muCephi]

I think you'd run into a similar problem as promissory estoppel: There's no underlying contract that binds the studios. Equitable estoppel is designed to prevent a party from avoiding a contractual obligation. For example--and this is taken from an actual California case--Company A signs an employment contract with Mr. X. The contract states that any dispute arising under the contract must be settled through binding arbitration (i.e., the employee is waiving his right to sue the employer in court). Company A then assigns the contract to Company B, which repudiates the agreement and fires Mr. X.

Mr. X then sues Company B in court. The court holds that under equitable estoppel, Mr. X is required to submit to arbitration, even though Company B was not a party to the employment contract. The reason for this is that Mr. X's claims arise from the contract itself. He therefore cannot avoid his freely chosen obligation just because a third party is involved.

Now, the C/P guidelines do state the studios will "will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines." But this is a unilateral promise, not part of a contract. So promissory estoppel might be applicable--emphasis on "might"--but equitable estoppel would not.

Thanks so much for the explanation. It is interesting.

 

[urbandefault]

I am using the concept of warranty as an analogy.

I know.

ETA: The above discussion of estoppel made my eyes droopy, but I understand the concept.

The point, I think, is that there is no contract with any fan production. The guidelines are just that, and CBS reserves the right to change at any time. Since there is no explicit consent from CBS, no fan film maker would have standing to sue.

And that's from my completely uneducated layman point of view.

 

[muCephi]

I know.

ETA: The above discussion of estoppel made my eyes droopy, but I understand the concept.

The point, I think, is that there is no contract with any fan production. The guidelines are just that, and CBS reserves the right to change at any time. Since there is no explicit consent from CBS, no fan film maker would have standing to sue.

And that's from my completely uneducated layman point of view.

Its interesting, but perhaps its because its the first time for me looking at it

btw, I looked for a disambiguator for ETA. Its pretty amazing: http://acronyms.thefreedictionary.com/ETA

I gather "edited to add", but I like "Elvis Tribute Artist" better. And they are creating potential problems saying it also means "Exact Time of Arrival".

 

[ZapBrannigan]

I haven't read the 1137 pages of this thread, so I apologize if this is a redundant thing to say, but rather than estoppel, is there any use here for the legal concept of an easement?

By not enforcing their exclusive rights to Star Trek for so long, and allowing so many people to make fan films, maybe CBS created an easement that they cannot now just snatch away.

Edit: Nope. CBS doesn't have that problem.
http://io9.gizmodo.com/10-things-everyone-gets-wrong-about-intellectual-proper-1679011301

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