Fair enough, though I'd argue there are a number of others who haven't really made a secret of it, and at least one other that has made it very obvious.
Anyway, getting into semantics so moving on.
CBS/Paramount sues to stop Axanar
- Thread starter Richard Baker
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Anyway, getting into semantics so moving on.
It's all good.Fair enough, though I'd argue there are a number of others who haven't really made a secret of it, and at least one other that has made it very obvious.
Anyway, getting into semantics so moving on.
Productions such as Intrepid have only strengthen my enjoyment of fan films
This bank (studio) is nonprofit because we don't charge depositors (donors) for maintaining an account (seeing a video). What we do with their money not spent on account (video) costs, be it manufacture and sell stolen goods at a markup, run a for profit business based on the value of the skimmed captial, etc., well none of that is 'charging' anyone for the account (video) service we (feebly) offer to them, so the whole operation can't possibly be for 'profit'.
Oh, and "no withdrawals".
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September 28, 2016
Nice call
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So you're saying that the terms of service, publicly available, don't impact donors? Sorry, but I can't agree with that. They are compelled to read the terms of service upon sign up, as is common with most websites.
What money has he extracted from Kickstarter?
I guess English courts must be different from yours then, because I've seen many such cases. Misrepresentation is a key element of civil law when it comes to contractual relationships. Bottom line it, Kickstarter's terms make it clear that they consider the relationship between donor and provider to be a contractual one. Both donor and provider have to agree to the terms in order to use the service.
Leaving aside the issue of just how few people bother to read any kind of clickthrough TOS/EULA type deal...
I don't have the time at the moment to read the whole thing (have to travel tomorrow, and I really shouldn't be replying at all
), but section 9 seems to be what you're referring to. In it, you promise that you won't post material you don't own the IP for. That contract, however, is with Kickstarter -- not with your potential donors. So Kickstarter may have a remedy they could apply against Peters/Axanar (account closure, most likely), but it really has no relevance to the donors. It's about covering Kickstarter's butt if anyone wants to sue them for copyright infringement.More importantly, you cannot presume that everyone has the same contract with Kickstarter (no matter how likely that is). Your contract as a donor is between you and Kickstarter. Alec's contract as a
TL;DR: Your agreement to follow the Kickstarter TOS cannot in any way bind Alec Peters. He's not a party to that agreement between you and Kickstarter.
Perhaps as importantly, I didn't see anywhere in there (in an admittedly quick skim) where Kickstarter agreed to ensure that all campaigns will be vetted for IP ownership. Like most TOSes, this is a pretty one-sided document.
None. They would have to find a way to prove that he intended to defraud them. As I said, it's thin. I can't figure out an angle there.
You're extending Kickstarter's potential remedies to the donors, which I doubt would really fly.
Alec, as near as I can tell, may have misrepresented himself to Kickstarter. I don't doubt that he's misrepresented himself to the donors about a lot of things (*cough*perks*cough*). But on the specific matters that brought this discussion up -- that he doesn't own the Star Trek IP, and that he was building a professional studio on donor money -- those are right there in black and white in the campaign docs for donors to read.
To look at it another way: you go to court and say "judge, the kickstarter terms say I can't post IP I don't own. I should've been able to assume that he owns the IP for Star Trek"; Alec responds with "but judge, I said it right here in the campaign that we don't own the IP"... Is the judge going to find Alec guilty of fraud for pretending that he owns the IP? I'd think his direct statements in the campaign are going to trump the Kickstarter TOS -- which (from Alec's point of view) is an agreement between Alec and Kickstarter that you're not a party to.
IANAL (American, European, or otherwise), so correct me if I'm wrong there.
If donors go after Alec on a civil level, they're going to have to have their ducks in a row. I don't doubt that he's got a thousand different dodges lined up. Do I personally think that he's a fraudster with respect to Axanar? Eh, maybe now. I don't think this started out that way, which makes it all the harder to prove. Toward the end, however, I do think he's gotta have done something that's actually illegal (copyright litigation aside).
The guy is definitely misusing donor money. It's just that proving it to a sufficient legal level where it would matter is going to be very difficult.
"I didn't bother to read it" is not a defence.
I can't agree with this. Whether or not there is a contractual relationship between the provider and Kickstarter does not negate the contractual relationship between donor and provider. As per section 4 of their terms...I don't have the time at the moment to read the whole thing (have to travel tomorrow, and I really shouldn't be replying at all
"Kickstarter provides a funding platform for creative projects. When a creator posts a project on Kickstarter, they’re inviting other people to form a contract with them. Anyone who backs a project is accepting the creator’s offer, and forming that contract.
Kickstarter is not a part of this contract — the contract is a direct legal agreement between creators and their backers."
The contract between provider and donor is a classic type of contract. The donors are giving consideration in exchange for something. To claim that isn't a contract is bizarre. Donors don't fund Kickstarter or expect any kind of return from them. They do it with the providers.
Again, anything between Kickstarter and the rights holder is separate from Peters and the donors, as is it's relationship with Peters as a platform. At most they can be said to have acted for an agent for Peters. But that doesn't mean that Kickstarter somehow acts as a barrier between donor and provider, as that's simply not true. Whatever relationship Kickstarter has with either the donors or Peters, it doesn't mean that it prevents a contract existing between donor and provider.
Wrong, for the reasons I have stated above.
Why should they be vetting projects? If you agree to their terms of service and then they find themselves sued because of your actions they can then seek an indemnity from you on the basis that you lied to them about having consent to use the IP....and that being so doesn't somehow wash away any separate agreement between Peters and donor.
You have a situation here where Peters has specifically agreed to the Kickstarter terms of business. Those terms of business state:-
"You won’t submit stuff you don’t hold the copyright for (unless you have permission)."
Peters agreed to those terms knowingly without having permission. What's more he continued to seek and receive funds after specifically being told by CBS/Paramount that permission wasn't given in a press statement, and failing to secure explicit permission in a meeting with them in person. He intentionally used the service when he knew he had no permission from the IP holder and simply pointing to other fan films that were also doing it, as he has done, is not good enough excuse for using Kickstarter in the absence of those permissions in my opinion.
Peters use of the service and his promotion of the project through it is done on the basis that he has the IP holder's permission. When a donor signs up to Kickstarter they are presented with the terms and asked to agree. Saying "they might not bother to read them" is not an excuse given that they indicate they accept them in order to use the service.. Think of Kickstarter as a shop window. When you buy something from a shop you don't contract with the shop window, or any other form of advertising, do you? You contract with the person insider selling the goods. What if the person advertises those goods in the window as genuine and a customer buys them only to discover they are counterfeit? Who are you going to complain to? The person who sold you the goods or the window? Kickstarter is an advertising and promotion platform. It bring contracting parties together for a commission, in much the same way as an employment agent or a real estate agent might.
Like I say, I am extending nothing. I am saying that it is entirely possible for the donors to have a contract with Peters entirely separate from any relationship or claim that either might have against Kickstarter.
And? That doesn't mean he hasn't still breach the KS terms of service. Not all donors will read "campaign documents". They will however all be required to accept the KS terms of service. How many small sum donators do you think read the "campaign documents"? How many do you think just watched the video and though "I want more of that"? Plus, I'd argue that while Peters did not say he had permission he effectively made the case that he had implied permission by pointing towards toleration of other fan films as evidence for being able to do his. What's more from August 2015 the question of permission was explicitly clear and no lounger ambiguous, and he carried on using Kickstarter to raise funds anyway. Hell, he continued to crowd fund even after the law suit. So even if you argue there was no breach when he started using KS (which I would disagree with), one certainly had occurred by August 2015.
Like I say, Peters basically made the case he had implied permission....and no that would not "trump" the KS terms of service for the reasons I said above. If he didn't have permission he should not have used the KS platform full stop. He didn't have permission but then proceeded to use a service that required him to have it, knew he needed to have it to use that service and then accepted money from people. If anything the "campaign documents" show he knowingly used the service without the required permission. You can't simply sit there and say "oh well, it's Kickstarter's problem for not checking" when Peters himself told them he had permission when he clicked "I agree to your terms"!!
Well, I'd say that the issues we are discussing aren't too much of a problem for the donors because of the contract that exists between them and Peters. They paid him in return for a completed movie. If the litigation makes that impossible then he has failed to fulfil that contract and they are entitled to their money back on the basis of breach. Criminality, etc doesn't reality matter where that's concerned and the failure to deliver is a straightforward and less complex breach. In order to claim their money back they only need show such a breach...and it is likely that this litigation will create just that situation. I think misrepresentation, fraud and criminality only really come into play on a practical level if the breach of contract is not as cut and dried. But, like I say, I think the reality is that the donors won't even need to explore that, even if it has been found to occur, because they only need to demonstrate his failure to deliver to legally be entitled to their money back, which the outcome of the trial will likely give them if they are patient until next year (unless by some miracle he still gets to make the film).
Of course, whether Peters has the money to repay all donors is another matter entirely.......
As expected, Lane is just beside himself in his latest blog post. His cognitive dissonance is truly something to behold (I would also argue that he's not looking at things through rose colored glasses as much as he is one of RMB's whiskey glasses...........)
As someone mentioned on Facebook...
"......further review shows that in every case where Axanar stated they wanted everything over the whole 50 year history, the financials, C&D notices, ect they only got 2009 forward. Stuff that CBS/P was ALREADY WILLING to hand over if they had just narrowed the scope."
http://fff.trekbloggers.com/2016/10...e-rules-in-axanars-favor-regarding-discovery/
As someone mentioned on Facebook...
"......further review shows that in every case where Axanar stated they wanted everything over the whole 50 year history, the financials, C&D notices, ect they only got 2009 forward. Stuff that CBS/P was ALREADY WILLING to hand over if they had just narrowed the scope."
http://fff.trekbloggers.com/2016/10...e-rules-in-axanars-favor-regarding-discovery/
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Hey guys, if a bunch of you give me some money I’ll make something really cool.
Don’t know about the others but here’s some money. Go make it.
(Time passes, the cool thing hasn’t been made)
Hi, can I have my money back.
No.
What!?
OK, you can have it back but only under the condition that you don’t tell any of the others who gave me money, and you promise not to complain about me not making the cool thing.
.....
Is that basically what’s been going on now…. It’s been a while since I’ve been following any of this.
Don’t know about the others but here’s some money. Go make it.
(Time passes, the cool thing hasn’t been made)
Hi, can I have my money back.
No.
What!?
OK, you can have it back but only under the condition that you don’t tell any of the others who gave me money, and you promise not to complain about me not making the cool thing.
.....
Is that basically what’s been going on now…. It’s been a while since I’ve been following any of this.
On the Axanar end more or less. The legal side of things is a bit more involved (but that's why there's Axamonitor)
This is why I hope some regulation hits crowdfunding, and soon (but it'll have to wait, at least here in the US, until after the election)."I didn't bother to read it" is not a defence.
I can't agree with this. Whether or not there is a contractual relationship between the provider and Kickstarter does not negate the contractual relationship between donor and provider. As per section 4 of their terms...
"Kickstarter provides a funding platform for creative projects. When a creator posts a project on Kickstarter, they’re inviting other people to form a contract with them. Anyone who backs a project is accepting the creator’s offer, and forming that contract.
Kickstarter is not a part of this contract — the contract is a direct legal agreement between creators and their backers."
The contract between provider and donor is a classic type of contract. The donors are giving consideration in exchange for something. To claim that isn't a contract is bizarre. Donors don't fund Kickstarter or expect any kind of return from them. They do it with the providers.
Again, anything between Kickstarter and the rights holder is separate from Peters and the donors, as is it's relationship with Peters as a platform. At most they can be said to have acted for an agent for Peters. But that doesn't mean that Kickstarter somehow acts as a barrier between donor and provider, as that's simply not true. Whatever relationship Kickstarter has with either the donors or Peters, it doesn't mean that it prevents a contract existing between donor and provider.
Wrong, for the reasons I have stated above.
Why should they be vetting projects? If you agree to their terms of service and then they find themselves sued because of your actions they can then seek an indemnity from you on the basis that you lied to them about having consent to use the IP....and that being so doesn't somehow wash away any separate agreement between Peters and donor.
You have a situation here where Peters has specifically agreed to the Kickstarter terms of business. Those terms of business state:-
"You won’t submit stuff you don’t hold the copyright for (unless you have permission)."
Peters agreed to those terms knowingly without having permission. What's more he continued to seek and receive funds after specifically being told by CBS/Paramount that permission wasn't given in a press statement, and failing to secure explicit permission in a meeting with them in person. He intentionally used the service when he knew he had no permission from the IP holder and simply pointing to other fan films that were also doing it, as he has done, is not good enough excuse for using Kickstarter in the absence of those permissions in my opinion.
Peters use of the service and his promotion of the project through it is done on the basis that he has the IP holder's permission. When a donor signs up to Kickstarter they are presented with the terms and asked to agree. Saying "they might not bother to read them" is not an excuse given that they indicate they accept them in order to use the service.. Think of Kickstarter as a shop window. When you buy something from a shop you don't contract with the shop window, or any other form of advertising, do you? You contract with the person insider selling the goods. What if the person advertises those goods in the window as genuine and a customer buys them only to discover they are counterfeit? Who are you going to complain to? The person who sold you the goods or the window? Kickstarter is an advertising and promotion platform. It bring contracting parties together for a commission, in much the same way as an employment agent or a real estate agent might.
Like I say, I am extending nothing. I am saying that it is entirely possible for the donors to have a contract with Peters entirely separate from any relationship or claim that either might have against Kickstarter.
And? That doesn't mean he hasn't still breach the KS terms of service. Not all donors will read "campaign documents". They will however all be required to accept the KS terms of service. How many small sum donators do you think read the "campaign documents"? How many do you think just watched the video and though "I want more of that"? Plus, I'd argue that while Peters did not say he had permission he effectively made the case that he had implied permission by pointing towards toleration of other fan films as evidence for being able to do his. What's more from August 2015 the question of permission was explicitly clear and no lounger ambiguous, and he carried on using Kickstarter to raise funds anyway. Hell, he continued to crowd fund even after the law suit. So even if you argue there was no breach when he started using KS (which I would disagree with), one certainly had occurred by August 2015.
Like I say, Peters basically made the case he had implied permission....and no that would not "trump" the KS terms of service for the reasons I said above. If he didn't have permission he should not have used the KS platform full stop. He didn't have permission but then proceeded to use a service that required him to have it, knew he needed to have it to use that service and then accepted money from people. If anything the "campaign documents" show he knowingly used the service without the required permission. You can't simply sit there and say "oh well, it's Kickstarter's problem for not checking" when Peters himself told them he had permission when he clicked "I agree to your terms"!!
Well, I'd say that the issues we are discussing aren't too much of a problem for the donors because of the contract that exists between them and Peters. They paid him in return for a completed movie. If the litigation makes that impossible then he has failed to fulfil that contract and they are entitled to their money back on the basis of breach. Criminality, etc doesn't reality matter where that's concerned and the failure to deliver is a straightforward and less complex breach. In order to claim their money back they only need show such a breach...and it is likely that this litigation will create just that situation. I think misrepresentation, fraud and criminality only really come into play on a practical level if the breach of contract is not as cut and dried. But, like I say, I think the reality is that the donors won't even need to explore that, even if it has been found to occur, because they only need to demonstrate his failure to deliver to legally be entitled to their money back, which the outcome of the trial will likely give them if they are patient until next year (unless by some miracle he still gets to make the film).
Of course, whether Peters has the money to repay all donors is another matter entirely.......
KS courted AP and Axa, so they had to have had some clue about what was happening. After all, on their IGG fundraising page, Axa says:
Emphasis mine. And I didn't have to hunt for that. It's there on the front page, just below the two videos.
So KS knew even before they started courting AP and Axa (at least they should have known) that the production had no license.
KS is, as you correctly stated, a kind of advertising/delivery system.
However, because they knowingly violated their own Terms of Use, and actively courted the business of a known (admitted!) IP infringer, I have a lot of trouble with KS coming out smelling like a rose (and keeping their cut of the $$) at the end of all of this. Although, that's highly likely to be what happens.
Donors get stiffed out of a movie, out of perks (although admittedly some are being shipped now - a couple of years late - presumably to pat donors on the head and get them to shaddap), and out of money. AP gets a judgment against him or has to pay court costs or, even if he wins, his life is certainly taken up by this stuff.
And KS gets to keep their share of the moola. But they feel awfully complicit in all of this, and that's what is sticking in my craw.
I expect the Federal Trade Commission will eventually make an attempt to regulate crowdfunding, at least with respect to potentially "false and misleading" claims made by project sponsors. But as @jespah said, that won't happen until after the election. For one thing, the FTC is down two commissioners and the next president will need to fill those vacancies and designate a new chair.
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The Senate has to confirm those - correct?
I wonder if through discovery of Axanar, and the settlement, CBS will have some smoking guns to turn around and sue Kickstarter and Indie Go Go. Especially if one pursued Axanar. Both companies cleared profited from the IP.
Could they claim "We didn't know it was stolen"?
Kickstarter when it started manually reviewed each project before it went up.
Oops, I forgot to add these:
Blog post
http://www.gandtshow.com/g-t-show-257-jad-branet/
YouTube (Semantic Shenanigans segment starts at about 31 minutes in):
Also, would anyone be interested in a separate topic (probably in General Trek) about Semantic Shenanigans? I don't want to look like I'm spamming the boards so it would need some responses, if anyone is interested. Thanks - and thank you for your kind support.
Blog post
http://www.gandtshow.com/g-t-show-257-jad-branet/
YouTube (Semantic Shenanigans segment starts at about 31 minutes in):
Also, would anyone be interested in a separate topic (probably in General Trek) about Semantic Shenanigans? I don't want to look like I'm spamming the boards so it would need some responses, if anyone is interested. Thanks - and thank you for your kind support.
Thanks, that's very kind of you.
Yup. I've been off the FTC beat a long time now, so I don't know exactly why the two vacancies have gone unfilled. Unlike Supreme Court seats, there's historically been few serious confirmation problems with the FTC, in part because the President must name at least two members of the other party (out of the five total seats).
Who knows? Basic obstructionism, most likely. The point in asking was that - considering the current polls - there is a chance that the Senate majority and the President will be in the same party, thus a lot of those empty seats will be filled, which means the FTC might be "back on the beat" in a few months.
Yeah, but that's the GOP - IE They don't want to be seen as doing ANYTHING for an outgoing President not of their party. Hence no confirmations of any POTUS named positions period.
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