CBS/Paramount sues to stop Axanar

[F. King Daniel]

Didn't the judge rule right before the settlement that Alec Peters had personally profited from Axanar, and thus the Star Trek IP?

 

[Steve Roby]

"I am not a lawyer. I will now write a thousand words where I apply what I think is common sense to my guess about what the facts of the case are and my limited understanding of how the law works. I will refuse to follow links to reliable sources because I've read a bunch of stuff on websites I won't name. I will ask questions that have been definitively answered in the sources I won't look at. I will expect my opinion to be taken seriously."

Moving away from legal issues...

I had a great English teacher in grade 11, Bruce Sainchuk. His class was about how to write essays on literature. It boiled down to three key things: have a point, make it, back it up. I wish more people had taken a class from a teacher like him.

 

[Campe]

"...I will now write a thousand words..."

If only we could be so lucky.

Seriously, brevity is really something that could be utilized in this conversation.

 

[Mr. Nova]

If only we could be so lucky.

Seriously, brevity is really something that could be utilized in this conversation.

Stephen King could take lessons in bloviation...

 

[Mr. Nova]

Truth is, some of @JRTStarlight's points are correct. The guidelines probably would have come to pass anyway, eventually, given the "arms race" that was escalating. And I do believe some of them are more stringent than needed, particularly the ones on episode length and serialization. But I also believe that CBS/P were right in in trying to curtail some of the more egregious violations to keep fan films from diluting their brand. They do need to keep a "safe zone" to protect those who legitimately purchase a license to sell their products. CBS is a business to A) make money by B) entertaining fans. If this means making sure that fan films are made to be of lower quality to distinguish them from licensed products, that is not just their right, but their responsibility.

 

[Squiggy]

In the United States of America, one is innocent until proven guilty, legally speaking. That's the law.

That's the standard for the judicial system. Private citizens are free to judge anyone whenever they want. If someone gives you an OVERWHELMING MOUNTAIN OF EVIDENCE proving their guilt, we're free to think they're guilty - because common sense. We're not bound by the same rules that courts must abide when it comes to evidence.

We can't help it that Peters is too stupid to release a budget saying he not only paid himself, but others, defended that action online many many times, and only did a 180 when his new budget was introduced as evidence.

Also, by the Gods of Kobol... self edit.

 

[Professor Zoom]

Yes, but that is not a criminal act. Apparently all that effectively means is they've placed themselves in a position where the IP owner can then decide if they wish to insist the IP user refrain from one or more unacceptable actions or not. If they insist they stop, but the IP users refuse, the IP owner can then sue or not sue or in some other manner seek legal redress. Unless something else is going on apart from copyright infringement, and for purposes of this discussion, there is not, then they cannot bring criminal charges like theft for a civil case. Continuing to call it theft when it's not is, what was that word again, provocative.



Your insistence they are guilty of a criminal act such as, specifically theft, for a civil law matter suggests an unwillingness to accept copyright infringement doesn't deal with criminal matters.



It's just a thought. Supposed I could prove I had a donor ready to donate a million bucks to my fan film, but your groundless and public accusation I was a thief gave him second thoughts and he backed out. That represents damages. He is later even willing to testify that is why he backed out. Suppose further the IP owner was willing to say they did not care about my fan film and had no intentions of stopping it. Sounds like slander to me. But like I said, I'm not a lawyer.

I never said it was a criminal act. It doesn't mean it's not stealing.

 

[Noname Given]

Correct me if I'm wrong. I don't believe there is anything illegal about creating a fan film, distribution of said film would be another issue.

Technically, AS LONG AS said film is for your own personal use and enjoyment; and you don't show the finished film publicly - yes.

BUT: As soon as you post it on Youtube or share it in any other way, or take it and show it at a film festival. <--- At that point, it's 100% illegal.

 

[Squiggy]

Borrowing your friend's car: Legal.
Taking your friend's car: Illegal.
Taking your friend's car even though he said you could borrow it a couple of years ago and you take it anyway: Illegal.
Taking your friend's car after he explicitly told you in The Wrap that you can't take it: Illegal


(The comment's on Axanar's page regarding The Wrap article are hi-larious: " Yes, we use several characters from Star Trek and we are clearly set in that universe. We just try to minimize that.")

 

[dmac]

I know it sounds like 20/20 hindsight but anyone that has known me for long would say I sound like a broken record. If you have that awesome of a script and you're spending well over a millions dollars, why make Star Trek when you could make Axanar? Unless there is no awesome script and Star Trek was only used to suck in the donors.

 

[muCephi]

There are so many points along Axanar's path where a single act of excellence would have turned the corner: a dazzling script; recognizing the gift given by professionals when they say they will support your dream; acknowledging to yourself the gift of being warned repeatedly before being sued; just doing some boring hard work by sending the perks; spending the money on the film; saying YES to the unbelievable windfall moment when JJ and Justin expressed support (even if in ignorance), and riding that wave to a cleanup of the disaster; on and on and on and on.

Instead all there is, is appetite for profit, censorship, crapping out on hard work, manipulating emotions of fans in a walled garden and donors in misleading campaigns, and trying to convince a Federal judge that copyright doesn't apply to those who love an IP.

I really think discussion of the future of fan films and guidelines needs to leave Axanar behind. Purge Axanar from the talking points. Any discussion that tries to use Axanar as a debating point will collapse into a morass of quicksand because of the rot at the core of the conduct.

 

[Sgt_G]

Borrowing your friend's car: Legal.
Taking your friend's car: Illegal.
Taking your friend's car even though he said you could borrow it a couple of years ago and you take it anyway: Illegal.

Taking your friend car, getting stopped by the police only to have your friend call and say "No harm, no foul, Officer. I'm not pressing charges": Still technically illegal even tho you got away with it. <<<<< This is where most / almost all fan films fit.

 

[jespah]

The actual law? Well, I never claimed to be a lawyer, or asserted a definite belief I was absolutely right about this because of some vast experience I have with copyright law or anything. For the record, I'm not a lawyer, and I have virtually no experience with copyright law. However . . .

Me? I am a lawyer (retired). I'll comment as I go and then I am off to do weekend stuff.

....

If the IP owner knows about the breaches and chooses to tolerate the breaches, that is actually tacit or implied consent. It's still not permission, but it is implied consent.

Nope, that's not black letter law. It's actually a minority opinion but judges don't generally buy it. See: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1107&context=yjolt

If an IP owner gives guidelines that suggest they won't sue if one conforms to them, that is further or stronger tacit or implied consent. They are still not, however, explicit permission, or legally granted rights to use the IP, since the IP owner always reserves the right to sue.

Actually, the guidelines are a kind of semi-'safe' harbor in the sense that copyright violators get an indication of what might be tolerable but are also given no guarantees that it will be 100% of the time. Basically, the guidelines really just say to violators - this is where the sore points are. Press on these at your own risk.

If the IP owner does not know, however, I think you'd be right that this would not be tacit permission by the IP owner, but as a pragmatic matter, under the law, one is legally allowed to use another's IP unless or until the IP owner tells them to cut it out, and even then they might be able to legally persist unless or until a legal injunction is served upon their ass. One just has to bear in mind this risky behavior leaves one open to a law suit and whatever penalties that may be forthcoming should they be found guilty.

Nope. Actually, the burden of proving fair use (which is an affirmative defense) is on defendants. See: https://ilt.eff.org/index.php/Copyright:_Fair_Use#Burden_of_Proof

....

Copyright law is a system of protections wherein IP owners have legal remedies to those who have transgressed upon their legal rights, and may be repeatedly transgressing upon their legal rights. But since it is not incumbent upon them to exercise those rights, consistently, uniformly, or otherwise, one may assume they have the IP owner's tacit approval, but should always be prepared to find the IP owner might choose to exercise their property rights at a moment's notice. If one is prepared to take that risk, I don't think they are even being immoral, and they certainly aren't breaking the law, but are knowingly stepping out of bounds to a place where the IP owner may, or may not, reasonably exercise their legal rights.

Nope, it's still not 'tacit approval' no matter how many times and ways (and words) you use to say that.

If the IP user actually first gives notice to the IP owner of their intent to use the IP, this would strengthen the moral position, certainly, but wouldn't really affect their legal one. If the IP owner provided guidelines for "accepted use" of the IP and implied or explicitly stated they would not sue under those conditions, I think one's moral stance would be assured, and even though legal certainty they wouldn't be sued still does not exist, I'd say legally they have tacit permission and good faith belief they were doing nothing wrong, morally or legally.....

See above. The guidelines aren't approval. They are not a license - and the guidelines actually say:

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.

See: http://www.startrek.com/fan-films

Like I said, it's really just coming out and saying these specific points are where we know there are problems - so if you proceed, it's at your own risk. But there may be others the IP holders have not thought of yet, and the issuing of guidelines does not mean they are waiving any rights at all. The guidelines, actually, are a courtesy, which the IP holders never had to issue.

Back to weekend stuff.

 

[JRTStarlight]

So, you're not a lawyer. Why don't you ask one of the actual lawyers here on this board, such as @jespah ??

I didn't ask them since I didn't know there were any lawyers actively here. And while I tend to refrain from asking a professional for professional advice or services without first offering to pay them, as that almost seems rude, I would think any interested lawyers here might volunteer such information unbidden if and when they felt like it. But that's up to them. If doing so, however, it might help if they identified themselves as an expert (possibly not only as a lawyer but one specializing in copyright law, for example, as opposed to something like a lawyer, even though they might fail to mention they only specialize in maritime law). If they have the sorts of credentials that are relevant, I'm usually more than happy to benefit from their expert opinion, sure, if they volunteer it.

Of course, you also realize in these litigious and adversarial circles, not even all lawyers always agree, even when they share the same specialty, but I'm usually more than happy to listen to them or follow specific links they may provide, assuming it is not just a link to the Library of Congress or a massive Law Library or documents that could take me hours and hours to read, and where they expect me to "figure it out" and might even suggest I'm a lazy ass for not having already done so. I like useful and relevant hyperlinks with helpful and friendly one-sentence descriptions of what they are, and I typically follow them when they're offered and typically read them if they are under a few pages long. What I don't find all that helpful are paragraphs telling me some information is out there - just go look for it, duh - as if the only possible information out there that I could possibly dig up would never be contradictory to other sources that also out there, let alone contrary to what they actually expected me to find.

Seriously, brevity is really something that could be utilized in this conversation.

Brevity is often difficult when discussing in-depth complex topics, unless you're already preaching to the choir. "Then, yeah, man. Right on," is about all you need. But if you haven't joined the choir, brevity often invites the potential for greater misunderstandings rather than actually providing clarification.

While I appreciate your post since I think you meant it kindly and I thank you for it, many currently remarking on the length of various posts here do not seem as well intentioned as yours, or seem in any way to be honest attempts to help so much as complain and berate. That, actually, doesn't inspire me to do anything but comment further on that or how unhelpful I might find it, so if anything, it's adding to the length of the thread. Not that they shouldn't do that if that's what they feel compelled to do and the most relevant way they can find to contribute.

That's the standard for the judicial system. Private citizens are free to judge anyone whenever they want. If someone gives you an OVERWHELMING MOUNTAIN OF EVIDENCE proving their guilt, we're free to think they're guilty - because common sense. We're not bound by the same rules that courts must abide when it comes to evidence.

That's pretty much exactly what I said. It was Professor Zoom who seemed intent on a more exacting legal definition by repeated claims as to what "The Law" actually says. As for common sense, I think if an IP owner gives guidelines and suggests they won't sue if you stay within them, most people would think it was fine to make a fan film like that. And legally, again perhaps with that common sense mind set, one might also lack "Mens rea" or the "guilty mind" element often necessary to show one intended to commit a crime, without which both the law, and common sense, would strongly suggest there is no crime. Of course, what all that might "suggest" and what is taken as common sense, unfortunately, may bear little resemblance to what is actually legal - which explains why lawyers are fairly necessary, particularly good ones who are deep thinkers and can see a dozen moves ahead to know the law might have to be written such so what at a glance looks stupid is really designed to avoid the shit storm down the road.

But I worry that after you quote me, you then go one to discuss again what Peters did or his case, almost as if it was part of that discussion I was having or should flow from MY quote, so I'm not sure what to think or if you felt I made some comment about Peters there when I wasn't even talking about him.

Also, by the Gods of Kobol... self edit.

As you may have surmised, I'm not a particularly religious man. By your command.

I never said it was a criminal act. It doesn't mean it's not stealing.

Stealing seems like a criminal act. It suggests a criminal act to me. But at this point, this has turned into a semantic argument, which, for all we know, doesn't arise because of genuine differences of opinion on the topic, but one born of different understandings of the words used, what they mean, which connotations were intend, or which of many definitions of "stealing" we are attempting to employ at the moment. To split these hairs that finely would only take many more posts, expert legal opinions, careful analysis of various dictionaries, and considerably more tolerance than some seem willing to extend to my general willingness to have a protracted discussion about such matters.

 

[dmac]

There are so many points along Axanar's path where a single act of excellence would have turned the corner: a dazzling script; recognizing the gift given by professionals when they say they will support your dream; acknowledging to yourself the gift of being warned repeatedly before being sued; just doing some boring hard work by sending the perks; spending the money on the film; saying YES to the unbelievable windfall moment when JJ and Justin expressed support (even if in ignorance), and riding that wave to a cleanup of the disaster; on and on and on and on.

Instead all there is, is appetite for profit, censorship, crapping out on hard work, manipulating emotions of fans in a walled garden and donors in misleading campaigns, and trying to convince a Federal judge that copyright doesn't apply to those who love an IP

I really think discussion of the future of fan films and guidelines needs to leave Axanar behind. Purge Axanar from the talking points. Any discussion that tries to use Axanar as a debating point will collapse into a morass of quicksand because of the rot at the core of the conduct.

I didn't care for Prelude from day one, it only plagiarized some of the core concepts from the latter Trek series and the writing doesn't hold up very well in the Trek Universe. Does that make it bad? No, just rehashed material.
Actually Prelude would have attracted my interest with different uniforms, newly rendered ships and all the Star Trek references removed. Working in the Star Trek universe, Gath wins. Where is the mystery, perhaps a 30 minute victory parade?

In an Axanar Universe Garth could lose and we move on to a rag tag fleet (Now where have I heard that before?) struggling to survive and drive the "Alien Race" out. He could win but at such a cost he loses his command. The possibilities wouldn't be predefined.

Back to weekend stuff.

Don't forget the pie!

 

[JRTStarlight]

Nope, that's not black letter law. It's actually a minority opinion but judges don't generally buy it. See: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1107&context=yjolt

Then it is at least sometimes taken, lest judges would never buy it? 50+ pages in that link. Hmmm. Yes, from that I can see most anything short of actually granting a license isn't legal consent, but if the only line worth any distinction at all is legal consent, I fail to grasp the point of having terms like "tacit" or "implied" consent at all. Isn't this saying tacit consent and implied consent are the same as NO consent? I think there must be a difference, but I didn't get it. I would think the difference is, or should be, tacit or implied consent means you can do it (make your fan film) but you must accept the risk and very real possibility the owner may stop you in your tracks. If you're fine with that, proceed . . . at your own risk. This is very different from legal consent when the owner couldn't reasonably change their minds later.

It says, "If a copyright holder has given affirmative consent to a use of her work, then the use is permitted as authorized." But it seems anything short of a legal license will not be taken as affirmative consent. I think it's reasonable to assume that giving guidelines and telling others they won't sue if they remain within those guidelines to be implied consent. That is, it is implied they won't sue, but not guaranteed they won't sue. I understand legally how this doesn't mean explicit or legal consent, and they haven't given up their right to change their mind or that they couldn't sue later, but to claim a person is being a thief and stealing if they make a fan film despite staying within the guidelines doesn't seem right to me. As a lawyer, how would you characterize a fan film producer who stays within the owner's given guidelines, accepts the fact he may be sued anyway at any time should the owner decide to do so, and is more than willing to take the risk? As a thief? As somebody who is actively and knowingly stealing?

Nope. Actually, the burden of proving fair use (which is an affirmative defense) is on defendants. See:

https://ilt.eff.org/index.php/Copyright:_Fair_Use#Burden_of_Proof

"To bring a copyright infringement lawsuit, a copyright holder must establish ownership of a valid copyright and the copying of constituent elements of the work that are original. The copyright owner must also establish both (a) actual copying and (b) improper appropriation of the work. The copyright owner, as plaintiff, bears the burden of establishing these three elements of the prima facie case for infringement."

I wasn't speaking of "fair use" there or a defense since this is stuff prior to any legal action, IIRC, but earlier when I said a defendant would get a chance to refute the claims of copyright infringement, if their defense of no wrongdoing was the assertion it was "fair use," then the burden of proof would be on them to prove that, yeah.

Nope, it's still not 'tacit approval' no matter how many times and ways (and words) you use to say that.

As long as tacit/implied approval is not taken to mean the same as legal/explicit approval, I'm not seeing the problem. I think we mostly agree since your semi-'safe' harbor example is exactly what I mean by that. Of course, if "tacit approval" has some legal ramifications or meaning beyond implied permission to proceed at your own risk, which is not the same as guaranteed permission without risks, it still escapes me. Sorry. It might even be obvious, but I don't get it yet.

The guidelines aren't approval. They are not a license - and the guidelines actually say, "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.

Exactly. I am not using the words "tacit approval" to mean legal approval, guaranteed approval, licensed approval, legal authorization, or anything like that. I'm using them to mean the same as you defined semi-'safe' harbor. You can do it, but you must proceed at your own risk since the owner ALWAYS reserves the right to stop you or sue you later if they decide they don't like what you did.

Back to weekend stuff.

Thanks for your help. Enjoy your weekend.

 

[Potemkin_Prod]

I really think discussion of the future of fan films and guidelines needs to leave Axanar behind. Purge Axanar from the talking points. Any discussion that tries to use Axanar as a debating point will collapse into a morass of quicksand because of the rot at the core of the conduct.

I agree completely. The discussion of the future of fan films should address various approaches to working within the guidelines, not how one production fucked it up BADLY for the others (or more specifically claims that they didn't).

PS: And I just blocked someone for the first time in at least a couple of years.

 

[feek61]

50+ pages in that link. Hmmm.

Almost the length of one of your posts!!!!! lol

I kid, I kid!!

 

[Matthew Raymond]

Well, you are coming in and taking something that isn't yours to begin with...

Except that's not what's happening. It's more like they charges money to see their toys, then let people make their own similar toys for years, only to get upset with everyone in the neighborhood when one person started selling knock-off toys. (If this sounds silly, it's because this is what happens when you over-analyze a metaphor.)

Fanfilms are breaches of copyright regardless of the IP owner knowing it or not. Not suing is not tacit permission. Not suing is just not suing.

This presumes people understand the nuances of copyright law. Most don't. CBS and Paramount exploit this ignorance so they can benefit from the community's creativity, while reserving the greatest possible legal flexibility for themselves. As much as I wouldn't want to see it happen, a blanket ban would be more honest.

This whole situation reminds me a lot of how Blizzard Entertainment handled the Starcraft modding community, BTW...

And if there is any thought that there couldn't possibly be brand confusion, think again. This CNN broadcast used footage from Renegades when discussing the coming of Discovery. Ewps. See:
http://www.cnn.com/videos/tv/2015/11/03/exp-cbs-launching-new-star-trek-tv-series-online.cnn

Wow, that's staggeringly inept of them. They actually labelled it as coming from "CBS" too. (To be fair, though, I don't think there was a lot of Discovery footage back then. They may have just need B-roll and someone screwed up the labeling. It's not like some of them would know Star Trek from Dark Matter.)

I never said it was a criminal act. It doesn't mean it's not stealing.

Weren't people complaining in this very thread about how "draconian" was inflammatory language. It seems hypocritical to use equally extreme language that, in a legal context, is demonstrably not the same as copyright infringement. Why do you feel the need to take a page from the MPAA handbook by framing a civil act as if it were a criminal one? Is not an argument based on an obligation to obey the law and respect for the rule of law sufficient?

 

[Professor Zoom]

Except that's not what's happening. It's more like they charges money to see their toys, then let people make their own similar toys for years, only to get upset with everyone in the neighborhood when one person started selling knock-off toys. (If this sounds silly, it's because this is what happens when you over-analyze a metaphor.)

it's more like they charged money for people to see their toys--which people were THRILLED to do, and then, those people decided to make their own toys very smilier to the ones they first paid for. The owners looked the other way, until one of them people fucked it all up, so the owners decided to set some ground rules to play with the toys for free.

This presumes people understand the nuances of copyright law. Most don't.

Ignorance isn't really a great excuse.

CBS and Paramount exploit this ignorance so they can benefit from the community's creativity, while reserving the greatest possible legal flexibility for themselves. As much as I wouldn't want to see it happen, a blanket ban would be more honest.

Why would CBS and Paramount NOT give themselves the greatest amount of legal flexibility. It's theirs. They have spent 100s of Millions of dollars on Star Trek. Shouldn't they control it how they see fit?

Perhaps a blanket ban would be more honest, but, rather than do they, they have decided to let fans have fun and make movies in the Star Trek universe for free.

Weren't people complaining in this very thread about how "draconian" was inflammatory language. It seems hypocritical to use equally extreme language that, in a legal context, is demonstrably not the same as copyright infringement. Why do you feel the need to take a page from the MPAA handbook by framing a civil act as if it were a criminal one? Is not an argument based on an obligation to obey the law and respect for the rule of law sufficient?

I'm not sure how else to describe people taking something that doesn't belong to them and using it for their own ends.