Re: settlement, hasn't Peters been saying there would be a settlement for six months or more now?
CBS/Paramount sues to stop Axanar
- Thread starter Richard Baker
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Actually, he has used language like "we are currently negotiating a settlement" or "we have offered settlement terms" or other weasel words, BUT this is the first time he has warned his "fans" that they will need to "manage their expectations."
^^^
Sorry, that just NOT how copyright law is written. (And that's WHY C/P didn't sue under trademark law.) If he really wanted to Alec Peters could have found and hired a lawyer and filed a lawsuit alleging Trademark abandonment because C/P allowed fans to make and release fan films for over a decade; and he'd actually have a stronger argument there; but he didn't.
There's no such thing as 'tacit permission' under copyright - either you have a formal official agreement with the IP holder; or you don't; and if you don't you're in violation.
Copyright SPECIFICALLY ALLOWS selective enforcement with no penalty to the IP holder under the law.
Like a Traffic Ticket situation, where you weren't the only person in a group of cars speeding and a cop pulled you over and gave you the ticket -- then going in front of the Judge saying:
"Well, OTHERS were speeding too; but the officer pulled ME over and just gave me a citation.."
ISN'T a defense that will get you out of paying the fine. You were guilty and the cop gave you a citation - you're going to have to pay.
Jury nullification here is unlikely because Civil rules are different in that the Jury HAS to follow the law in rendering a verdict. If the Jury was in such a state after deliberations the Judge would likely declare a mistrial, and it would be up to CBS/Paramount to decide if they want to file again and do another trial. (In that case it would be interesting to see if W&S would continue in their Pro Bono defense.)
What the Jury could do is give a 'real' damage award of one dollar, but Axanar would still be on the hook for statutory damages and the Jury could not go below the minimum allowed there.
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I find the terminology interesting, as it implies they will still get something out of the deal in terms of making a film.
It would be interesting if they managed somehow to get a settlement that allows them to make a 15 minutes Axanar within the fan film guidelines.
Personally though, I reckon this is Peters' code for filing off the serial numbers...and it remains to be seen how many "fans" will be satisfied with a product that's not Trek and he'd presumably have to start from the top down since everything done so far is entirely built around Trek. The one consistent fan justification I have seen for funding this project has been that it is TOS era Trek. Take that away and what have you got? That would then raises the question of whether or not he would be delivering what they paid for.
As I stated up thread, it isn't a defence, but it is relevant to mitigation of damages.
I think maybe AP is ready to take Senator Aiken's advice re the Vietnam War: "Say 'we won' and go home."
They could've produced a 15 minute Axanar this year if they'd wanted to and had the money to. They also could've filed off the serial numbers and produced something this year if they'd wanted to and had the money to.
Remember it's Alec Peters claiming the sides are 'close'. The same guy who said the partial Ex Parte motion denial was a 'small victory' - despite the fact when you read it, it's anything but. The case COULD settle (and if Alec Peters is smart he'll take whatever CBS/Paramount offer); but I suspect his ego will get the better of him in the end.
Yes, I realise they could. But from the point of view of donor placation and funding, it's in Peters' interest to make the full film. It could be that it's only now that his lawyers are seeing the evidence adduced in the discovery process and are telling him it's looking increasingly unlikely he will win.
I guess we'll have to wait and see.
Donor placation and funding? Not sure. I wonder if the narrative he's forced down their collective throats, that the film would've been made and all their dreams completed were it not for CBS/Paramount, I wonder if that's had such an effect where there will be no angry villagers with pitchforks at the gates when this all goes sour. Certainly, reading some of the supportive comments from that camp I'd be surprised. I maintain that the only thing Peters could lose which he gives a crap about is his studio/warehouse. Everything else, donors, patches, the movie etc is simply collateral.
You are right. My small familiarity with the law is colored by my lens as a writer and filmmaker. I know the difference between style and content. I know expert testimony would demolish "documentary style" = "actual documentary." That doesn't mean that an attorney wouldn't use such an argument, requiring the other side to rebut it.
I'm still going to roll my eyes, though. You can't take that from me.
Wouldn't dream of it.
Both of you, please stop pounding this joke.
Which probably means he knows he's screwed. Maybe they'll haul him away in Sheckles (I know Jespah used this pun before, but I only steal from the best)
We're only doing it for the lure of the lira, the glitter and glory of the Guinea, the romance of the ruble, the feel of the franc, the heel of the deutschmark, the cold, antiseptic sting of the Swiss franc, and the sunburned splendor of the Australian dollar!
Regarding "settlement" talks, I'd point out that in many cases a settlement means: "I agree to give you everything you want, and in exchange you stop suing me."
To venture a guess as to how a hypothetical Axanar settlement might work: AP agrees to an injunction prohibiting him from ever making anything Trek-related again. He turns over all existing inventory of infringing merchandise (i.e., patches). The studios forego damages but require AP to pay their legal fees and costs.
To venture a guess as to how a hypothetical Axanar settlement might work: AP agrees to an injunction prohibiting him from ever making anything Trek-related again. He turns over all existing inventory of infringing merchandise (i.e., patches). The studios forego damages but require AP to pay their legal fees and costs.
Unless there's a clause in the bankruptcy law that I'm not aware of that would make such fees exempt from being discharged (quite possible...Jespah...anyone?) I would guess that such a settlement would be well into six figures and beyond AP's resources, leading to a bankruptcy declaration. Of course, in Florida homes are exempt from being seized and sold in a bankruptcy settlement....
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