When the draft is reinstated, they're gonna have an interesting time claiming CO status.
CBS/Paramount sues to stop Axanar
- Thread starter Richard Baker
- Start date
- Status
When the draft is reinstated, they're gonna have an interesting time claiming CO status.
Luckily, I am exempt from Military service if they bring in a draft or national service in the UK... Not that I don't have the greatest respect for those in the military
Just updated this on AxaMonitor's article on the new motion to dismiss:
FAIR USE DEFENSE
The motion appears to be setting up an eventual fair use defense on this basis:
"To the extent any of the elements Plaintiffs are complaining about are actually protectable, Defendants intend to vigorously defend their use (if any) as a fair use. Without a film, the Court cannot evaluate the purpose and character of Defendants’ film, whether its nature is transformative or a parody, and the amount and substantiality taken (if any)."
Under U.S. copyright law, these are three of the four factors courts must weigh when determining whether infringement constitutes fair use.
THE DEFENSE OMITS THE MOST IMPORTANT FACTOR IN DETERMINING FAIR USE
Notably, the motion omits the fourth factor: commercial impact of the infringing use, which the Supreme Court ruled “is the single most important element of fair use”, and “must take account not only of harm to the original but also of harm to the market for derivative works.”
Interestingly, the first motion to dismiss supported its 'unripe fruit' claim by asserting Axanar had no finished script, storyboard, reels and other preproduction materials on which to judge whether it was infringing or exercising fair use citing a case, Walt Disney Productions v. Filmation Associates.
However, Axanar has publicly released many photographs or videos of a finished script, storyboards and other preproduction materials. Neither the Filmation case nor the claim of no preproduction materials appears in the second dismissal motion. Instead, it focuses largely on the script undergoing rewrites and its reliance on Star Trek elements the defense claims cannot be protected under copyright.
FAIR USE DEFENSE
The motion appears to be setting up an eventual fair use defense on this basis:
"To the extent any of the elements Plaintiffs are complaining about are actually protectable, Defendants intend to vigorously defend their use (if any) as a fair use. Without a film, the Court cannot evaluate the purpose and character of Defendants’ film, whether its nature is transformative or a parody, and the amount and substantiality taken (if any)."
Under U.S. copyright law, these are three of the four factors courts must weigh when determining whether infringement constitutes fair use.
THE DEFENSE OMITS THE MOST IMPORTANT FACTOR IN DETERMINING FAIR USE
Notably, the motion omits the fourth factor: commercial impact of the infringing use, which the Supreme Court ruled “is the single most important element of fair use”, and “must take account not only of harm to the original but also of harm to the market for derivative works.”
Interestingly, the first motion to dismiss supported its 'unripe fruit' claim by asserting Axanar had no finished script, storyboard, reels and other preproduction materials on which to judge whether it was infringing or exercising fair use citing a case, Walt Disney Productions v. Filmation Associates.
However, Axanar has publicly released many photographs or videos of a finished script, storyboards and other preproduction materials. Neither the Filmation case nor the claim of no preproduction materials appears in the second dismissal motion. Instead, it focuses largely on the script undergoing rewrites and its reliance on Star Trek elements the defense claims cannot be protected under copyright.
Discovery is gonna be Alec's Queen Bitch Whore. Ugly as even referencing this image from his own pen is. Ask, and ye shall receive.
Especially the emails via subpoena of ISP backups pre-lawsuit that inadequate responses to CBS will engender, *and* the email records of any staff turned studio witness (said emails Axanar can't touch).
It will likely be the rampant overreaching podcasts statements, only a hundred times more obvious and specific.
And if I were CBS/P, I would be very intently looking for anyone who might be able to produce, on their email server, any script attached to a notice of 'final', sent by the Axanar management.
They are nuts to let discovery happen.
Especially the emails via subpoena of ISP backups pre-lawsuit that inadequate responses to CBS will engender, *and* the email records of any staff turned studio witness (said emails Axanar can't touch).
It will likely be the rampant overreaching podcasts statements, only a hundred times more obvious and specific.
And if I were CBS/P, I would be very intently looking for anyone who might be able to produce, on their email server, any script attached to a notice of 'final', sent by the Axanar management.
They are nuts to let discovery happen.
Last edited:
I am a bit unclear how the fair use sentence and the 'absence of a film' sentence form a cohesive argument. They seem like two separate arguments in one paragraph.
Just read it.
Wow. This is pretty devastating:
"The motion, in part, is defendant’s attempt to claim ignorance and therefore avoid “willfulness” and higher damages. This seems to be the song they intend to sing. “We didn’t know and couldn’t possibly know” is their defense. Even if there is a copyright violation, we didn’t know. They even suggest that it is too complicated for the Plaintiffs to know which copyrights so how could Axanar have known?"
So basically, Star Trek's copyrights are too complicated for lawyer-by-training Alec Peters and World's Biggest Star Trek fan and entertainment industry professional Robert Meyer Burnett to figure out?
Hey, I'm just quoting!
Seriously, though, this is how they're arguing:
- Hey! We didn't steal nuthin'. The stuff that's gonna be in our movie that's also in your movies, tv shows, books, games and toys, is stuff anybody can use! Back off!
- Hey! Even if some stuff that we stole happens to be yours, it's totes OK because reasons! Back off!
- Hey! We haven't even taken your stuff yet, so you can't be mad! Who cares if we told everyone we planned to take it and got them to give us a million bucks because we said so?! Back off!
- There are three perfectly good reasons why it's OK for us to take your stuff. Also, we've left out a fourth reason that may not be so good for us to mention out loud. Back off!
I'm going to try to keep this relatively short and simple and put into perspective the size of Axanar's audience. Right now, there are 7.125 billion people on Earth. The United States' population is 318.9 million. China, by comparison, has 1.357 billion. The State of California has 38.8 million people as of 2014. The State of Wyoming, the smallest state populus wise has about 584,000. Brecksville, Ohio (never heard of it either) has a population of 12,000, a little higher than the number of donors Axanar claims to have.
To compare, the 10,000 donors does not register as a meaningful percentage point in a global population, nor in the population of the United States or China. It starts to register as 0.03% of California's population and 1.72% of Wyoming. It is 83.3% of Brecksville, Ohio's population.
To put that into comparison with the estimated 27 million domestic tickets sold for Star Trek Into Darkness per Box Office Mojo (which, yes, I realize is not a completely apt comparison, but it does give some perspective), it is 0.38% of the global population, 8.5% of the U.S. population, 70.36% of California's population, 46.7476 times the population of Wyoming and 2,275.05 times the population of little Brecksville, Ohio.
In other words, while I respect the fact that there are 10,000 fans who have donated to Axanar and they want to see it, they have to realize that using this as a number that shows a significant presence is just not a good argument.
One last fun little stat: Axanar's number of donors? 0.0370% of domestic tickets sold to Into Darkness.
To compare, the 10,000 donors does not register as a meaningful percentage point in a global population, nor in the population of the United States or China. It starts to register as 0.03% of California's population and 1.72% of Wyoming. It is 83.3% of Brecksville, Ohio's population.
To put that into comparison with the estimated 27 million domestic tickets sold for Star Trek Into Darkness per Box Office Mojo (which, yes, I realize is not a completely apt comparison, but it does give some perspective), it is 0.38% of the global population, 8.5% of the U.S. population, 70.36% of California's population, 46.7476 times the population of Wyoming and 2,275.05 times the population of little Brecksville, Ohio.
In other words, while I respect the fact that there are 10,000 fans who have donated to Axanar and they want to see it, they have to realize that using this as a number that shows a significant presence is just not a good argument.
One last fun little stat: Axanar's number of donors? 0.0370% of domestic tickets sold to Into Darkness.
Yup. That'll work, considering they have in their kickstarter risk statement the admission that they were violating CBS/P IP...
Yeah but they have 10K supporters and they are the saviors of Trek and, and, and Alec won't back down because no one tell Lord Garth no.
Jespah, if CBS answers the motion before May 9, can they ask that the meeting they were scheduled to have on that day, still take place? Can CBS ask for discovery to prove their point?
Also known as the "I didn't know any better" defense or, as it's taught in law school, the "five-year-old" gambit.
But don't take my word on it. I'm not a trained lawyer. Just a journalist by training and practice.
Ah yes. The hater/unaccomplished loser ploy reminiscent of a petulant adolescent. I could be wrong on this but repetitively using thought-stopping cliches as a public relations strategy on your part Alec might not be the way to go, however it does say so much about the supposed "professional" quality you've assured everyone is the core of the Axanar business model.
Last edited:
They better hope like Hell that there is no documentation from the August meeting between Peters and two execs from CBS mentioned in The Wrap article from August 2015. If there is, it will pretty much sink Peters.
They better hope like Hell that there is no documentation from the August meeting between Peters and two execs from CBS mentioned in The Wrap article from August 2015. If there is, it will pretty much sink Peters.
I can't imagine that a company like CBS would send two execs to meet with someone who is infringing on their IP--likely when they have already decided a lawsuit will be necessary--and not document what was discussed in some way.
Anyhow, whatever the PR guy says, I wouldn't be surprised if it came out that CBS tried multiple times to discretely correct problems with Axanar and was ignored.
That doesn't seem like much of a defense at all on Alec's attorneys part. What a foot bullet.
In my experience of viewing quite a few trials in criminal and civil courts, the "I'm too stupid to know better" defense doesn't work very well. Not to say it never works, but it might not do well with someone who so loudly proclaims his legal education.
- Status