CBS/Paramount sues to stop Axanar

[OtherGene]

"Awwwe this is a dumb old game anyway. I"m taking my toys and going home!"

That's it in a nutshell, isn't it?

With added 'I didn't want to play in the first place, despite soliciting over a million dollars to help me play, to state that I intended my first effort to be a calling card to enable me to play with the cool kids, to attempt to get Netflix to let me play for them for money and to continually tell dissenters that I knew how to play, I was a professional and that if they didn't understand that they were under achieving haters who didn't know anything about playing".

I think I just broke the 'play' metaphor.

 

[Smoked Salmon]

Jonathan Lane is still refusing to post my comments on Fiction Fantasy Factor. I think he hates the very notion of being called out by someone with legal training....albeit I must admit I did try and gloat a bit yesterday after pretty much having everything I've said about this case vindicated by the judge.

The next step will be the trial. I've long said, including in the earlier pages of this thread, that there were two overwhelmingly obvious elements to this case that you don't need to be a lawyer to consider. One must always consider what the overriding objective of IP law is, as because of this I have repeatedly said that the only real test you need to apply in the case was common sense. Does it look like a duck walk like a duck, and so on. One does not need to be a lawyer to know the answer is yes. This has been referred to trial on the basis of American procedure and authority, but I am willing to bet my house on the jury making a finding of fact that it is substantially similar to Star Trek as any other decision would be perverse. If this were a case in the English courts the judge would make the finding of fact on this issue, and I have little doubt of what that finding would be.

Peters has been finished by this order. If I were his lawyers I would be advising him that in all likelihood his only chance lies in an appeal...but even then such an appeal would have to be rooted in US case law and a novel argument in that respect as I cannot personally see how any appellate court would permit the wholesale use of a major brand and set a precedent for that same.

Anyone still supporting Peters at this stage is, frankly, of questionable mental standing. People like Burnett, Gerrold and Lane should flee the sinking ship now if they have any sense.

 

[Smoked Salmon]

Did he get paid when he was the "Star Trek Archivist" or was it unofficial? Cos if he was, doesn't that count as being in the film business?

How is in in the film business? It's not a creative role. There is no involvement in production or financing of the same.

 

[Smoked Salmon]

The reported statement from Mike Bawden...

"Alec told me earlier today, it’s just a lawsuit. It’s just business. It was essentially a hobby for him. He didn’t work in the film business before Axanar, and if he loses this case, he likely won’t work in the film business afterward. That’s not a sinking ship; it’s just status quo.

...just made me go "Huh!?" Just a lawsuit, just business? To misquote Star Wars "the Kool-Aid is strong with this one!" Who thinks like that?

A ridiculously stupid remark, especially given Peters' love of himself and his trumpet blowing over how good a businessman he is.

A good businessman doesn't hijack other brands. A good businessman would know, as basic business common sense, that you get permission first.

What's more, unless Peters is somehow a multi millionaire and we don't know about it, this is more than "just business". When all is said and done, it is conceivable that he could face a bill of anything between $1m-$3m, taking into account damages, costs, interest and any residual claims (such as the donors). So if he can pay off all that and still be in pocket, I guess he's achieved more than we thought, which would then make you wonder why Propworks went bankrupt.

 

[OtherGene]

I wonder if CBS is reading any of this?

You asked this question exactly one year ago today!

To answer it, yes I think they were

 

[Smoked Salmon]

You asked this question exactly one year ago today!

To answer it, yes I think they were

Ha ha. Kismet.

 

[BillJ]

People like Burnett, Gerrold and Lane should flee the sinking ship now if they have any sense.

It is simply too late at this point. Burnett has likely ruined his career already, and I doubt Gerrold and Lane really have anything to lose.

 

[oswriter]

Peters has been finished by this order. If I were his lawyers I would be advising him that in all likelihood his only chance lies in an appeal...but even then such an appeal would have to be rooted in US case law and a novel argument in that respect as I cannot personally see how any appellate court would permit the wholesale use of a major brand and set a precedent for that same.

I've been reviewing Ninth Circuit rulings in copyright cases for the past couple of years, and I haven't found a scenario where the court has overturned a jury verdict for the plaintiff. When the Ninth Circuit does reverse, it's usually on a dismissal or summary judgment in favor of the defendant. Indeed, I don't even think the Ninth Circuit will bother with oral argument in this case. I would expect an unpublished order affirming the verdict.

 

[Smoked Salmon]

I've been reviewing Ninth Circuit rulings in copyright cases for the past couple of years, and I haven't found a scenario where the court has overturned a jury verdict for the plaintiff. When the Ninth Circuit does reverse, it's usually on a dismissal or summary judgment in favor of the defendant. Indeed, I don't even think the Ninth Circuit will bother with oral argument in this case. I would expect an unpublished order affirming the verdict.

I think the problem is that people see this like a sport. They judge it by how many times this or that has happened. Peters is right now banging on about how his lawyer his a 5-0 record in the appellate courts. But so bloody what? About ten years ago I had a 95% success rate in my main field of practice for instance, but most of that is because my advice is such that cases don't reach court unless they need to. But what of the other 5%? There's always those that you lose. Sometimes it's unjust, but most often it's legally correct. Point is that trends mean nothing. What's more, the more cases you do the more you lose. My success rate is probably more like 90% now because I'm no longer saying I've done 100 cases and won 85 of them, I have to calculate three times as many. It's a bit like being a football manager. So Ranahan has done 5 cases in the appellate courts. And? What about when she gets to 25? 30? Still no losses? Peters is an idiot if he bases his decisions on that, and Ranahan is flat out negligent if she advises her client to fight based on her record (or at least would be in my country).

This case is about the law and only the law (at least it should be from the court's point of view). Records mean nothing. Hell, if you are doing the research and the precedents are as you say then the result should be clear, albeit it is not about how many times a finding has been in someone's favour, but rather the legal reasoning behind each of those decisions should set out clearly why this will fail on appeal as well as at first instance.

 

[Smoked Salmon]

It is simply too late at this point. Burnett has likely ruined his career already, and I doubt Gerrold and Lane really have anything to lose.

Why?

Burnett hadn't "ruined" his career before this.

Gerrold was respected in fan circles.

Lane was/is a nobody who wants to be someone who has immediately tarred himself with dog shit.

Surely they all have something to lose?

 

[jespah]

I think the problem is that people see this like a sport. ... What's more, the more cases you do the more you lose. ....

Bingo. Long-term experience means more opportunities for losses. It also means taking on riskier matters with more novel arguments. I would be a lot happier with a lawyer with more trips to the circuit court even if they were not perfect. That would tell me the lawyer was more experienced. And I would look at their losses and try to figure out why they'd happened - because novel theories can fall flat or maybe you just plain don't have that strong a case but you can't convince your client to just stop and take his/her lumps and be done with it.

 

[Smoked Salmon]

Bingo. Long-term experience means more opportunities for losses. It also means taking on riskier matters with more novel arguments. I would be a lot happier with a lawyer with more trips to the circuit court even if they were not perfect. That would tell me the lawyer was more experienced. And I would look at their losses and try to figure out why they'd happened - because novel theories can fall flat or maybe you just plain don't have that strong a case but you can't convince your client to just stop and take his/her lumps and be done with it.

For me it's all about the risk element for the client. I mean, I've had cases where I know as I sit here now that the argument was legally correct, but it doesn't mean a judge will be open to it, or that the client is willing to put down thousands of pounds on that risk.

I believe we have a duty to the client to communicate risk as much as possible, and much of that involves explaining to the client the ins and outs of any course of action, not just dressing up the possibility of success. I'm very concerned about this 5-0 nonsense that Peters has come out with, albeit I'd like to bet that he's cherry-picking what he wants to hear from the advice he is getting.

 

[oswriter]

I'm very concerned about this 5-0 nonsense that Peters has come out with, albeit I'd like to bet that he's cherry-picking what he wants to hear from the advice he is getting.

Alright, so I did some digging into this 5-0 record. Based on reported decisions and the Ninth Circuit's docket records, I did come across five cases where Ranahan was listed as an attorney.

• Graham-Sult v. Clainos, Ranahan and her firm represented a group of defendants in a lawsuit alleging a number of things including copyright infringement. While a Ninth Circuit panel affirmed large portions of the trial court's decision in favor of the defendants, it actually reversed the dismissal of the copyright infringement claim, meaning Ranahan and her colleagues lost that part of the appeal.
• UMG Recordings v. Shelter Capital Partners, Ranahan and her firm successfully defended a website accused of copyright infringement by Universal Music Group. The Ninth Circuit affirmed the trial court's decision to grant summary judgment to the defendants. The decision was based on the Digital Millennium Copyright Act, which is not applicable to the Axanar case.
• American Bullion, Inc. v. Regal Assets, LLC. This was a false advertising case that did not involve copyright infringement. Ranahan entered an appearance in the case nine days before the parties agreed to dismiss the appeal.
• Henderson v. The J.M. Smucker Company. This was another false advertising case (actually, a denial of a class action certification) that was dismissed before the Ninth Circuit heard formal arguments.
• Nafal v. Carter. This was a lawsuit brought against several dozen defendants over alleged copyright infringement in a Jay-Z song. Ranahan defended a foreign company that was one of the defendants dismissed from the case early in the proceedings. Although the Ninth Circuit affirmed the trial court's decision granting all defendants summary judgment, it appears Ranahan did not actively participate in this appeal.

If this is what LFIM is hanging his "5-0 record" claim on, it's exceptionally weak. Ranahan was not the principal attorney in any of these appeals. And in the three cases actually decided by the Ninth Circuit, Ranahan's client had prevailed in the lower court. As I noted the other day, you're statistically far more likely to win an affirmance than a reversal in an appeals court.

 

[Smoked Salmon]

Alright, so I did some digging into this 5-0 record. Based on reported decisions and the Ninth Circuit's docket records, I did come across five cases where Ranahan was listed as an attorney.

• Graham-Sult v. Clainos, Ranahan and her firm represented a group of defendants in a lawsuit alleging a number of things including copyright infringement. While a Ninth Circuit panel affirmed large portions of the trial court's decision in favor of the defendants, it actually reversed the dismissal of the copyright infringement claim, meaning Ranahan and her colleagues lost that part of the appeal.
• UMG Recordings v. Shelter Capital Partners, Ranahan and her firm successfully defended a website accused of copyright infringement by Universal Music Group. The Ninth Circuit affirmed the trial court's decision to grant summary judgment to the defendants. The decision was based on the Digital Millennium Copyright Act, which is not applicable to the Axanar case.
• American Bullion, Inc. v. Regal Assets, LLC. This was a false advertising case that did not involve copyright infringement. Ranahan entered an appearance in the case nine days before the parties agreed to dismiss the appeal.
• Henderson v. The J.M. Smucker Company. This was another false advertising case (actually, a denial of a class action certification) that was dismissed before the Ninth Circuit heard formal arguments.
• Nafal v. Carter. This was a lawsuit brought against several dozen defendants over alleged copyright infringement in a Jay-Z song. Ranahan defended a foreign company that was one of the defendants dismissed from the case early in the proceedings. Although the Ninth Circuit affirmed the trial court's decision granting all defendants summary judgment, it appears Ranahan did not actively participate in this appeal.

If this is what LFIM is hanging his "5-0 record" on, it's exceptionally weak. Ranahan was not the principal attorney in any of these appeals. And in the three cases actually decided by the Ninth Circuit, Ranahan's client had prevailed in the lower court. As I noted the other day, you're statistically far more likely to win an affirmance than a reversal in an appeals court.

I think you're misinterpreted my comment. I'm not doubting her 5-0. I'm doubting that she is leading Peters on with "we'll still win" style advice. I think he is choosing to adopt the parts of her advice that suit him....either that or she is a terrible lawyer, by English standards anyway.

 

[oswriter]

I think you misinterpreted my comment. I'm not doubting her 5-0. I'm doubting that she is leading Peters on with "we'll still win" style advice. I think he is choosing to adopt the parts of her advice that suit him....either that or she is a terrible lawyer, by English standards anyway.

I wasn't interpreting anything you said. I was already looking into the record and trying to verify LFIM's claims. I agree that Ranahan is presumably not "leading" him on. I actually think she's done a commendable job under the circumstances.

 

[KennyB]

I was waiting on someone to look into that 5-0.......I did the other day and just shook my head. I was SOOOOOOO shocked LFIM exaggerated the facts. Completely unlike him. Even if it had been true, statistically she's due for a loss.

 

[Smoked Salmon]

. I agree that Ranahan is presumably not "leading" him on. I actually think she's done a commendable job under the circumstances.

How?

 

[oswriter]

How?

You know what, I'm tired of arguing with you. You seem to have a problem with me, and frankly, I've said my peace, so I plan to ignore you going forward.

 

[Smoked Salmon]

You know what, I'm tired of arguing with you. You seem to have a problem with me, and frankly, I've said my peace, so I plan to ignore you going forward.

I don't have a problem with you at all. We all talk about the case from our respective experience. But you should have the humility to admit that being someone who researches case law, legislation and procedure does not mean you have a clue about what it is to conduct litigation. You are, for instance, in no position to determine how good a lawyer Ranahan is based on your public knowledge of the case because you have no idea of the advice that has been imparted to her client, what elements of that advice has been listened to and her client's instructions in that regard.

You are, with respect, a barrack room lawyer.

 

[Ion]

A good businessman doesn't hijack other brands. A good businessman would know, as basic business common sense, that you get permission first.

I disagree there.

Have a look around at the major lawsuits going on in the tech world. Hell, just look at the various Apple v. the World actions for some representative examples. For a lot of businesses, lawsuits are business as usual, and "IP theft" is not at all uncommon. They'll get away with whatever they can, and consider the judgements to be less expensive than doing things the "right" way.

Whether it's ethical or not is another question entirely.