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CBS/Paramount sues to stop Axanar

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The thing I've been trying to wrap my head around is how Kickstarter and Indigogo get away with their role in these fundraisers for creators who clearly do not have the copyrights to make the projects that they're making. Their position seems to be that they are merely tools and that their agreement is with the creators using their sites. They are not parties to the "contract" between the creators and the backers (donors). When a creator opens a KS they are declaring to KS that they have all the legal rights to make their project. Presumably KS's position is that they are relying on the creators to be truthful, and that they can't investigate every single creator and project that signs up for a new fundraising campaign prior to allowing those campaigns to go forward. Further it seems that KS will only investigate a case of copyright infringement if the owner of the copyright files a complaint with KS claiming infringement. Obviously, CBS/P did not do that so the campaigns have been allowed to go forward.

So basically, KS knows full well that every single one of these fan productions are copyright infringers and are...well...not being entirely truthful with KS when they enter into the KS user agreement, but KS simply turns a blind eye as long as no one complains. With regard to Indigogo, as I understand it they actively pursued Axanar's business away from KS knowing full well that Axanar did not own or have proper license to the copyrights for their project. How exactly do they get away with that? Has anyone ever tested their position in court I wonder, or is that just one more element of the wild wild west nature of crowdfunding currently? Axanar was crystal clear to their donors that they did not hold the copyrights for their project so the donors have no recourse to claim fraud on that front. But KS clearly does not as a matter of ordinary course and routine enforce its own terms and conditions, so I wonder if the donors would have a viable cause of action against KS on that point? Hmmm...
 
TribbleTrouble1 said:
The thing I've been trying to wrap my head around is how Kickstarter and Indigogo get away with their role in these fundraisers for creators who clearly do not have the copyrights to make the projects that they're making.
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They're pretending like they're youtube, if the copyright holder tells them to take it down they will. Otherwise, if they can make a few bob...
 
Kickstarter used to require projects to go through an approval process, but when the volume got too much to keep up with they installed the "report this project" and did away with approvals.

Question is: do nobody click that button? Or did someone alert KS, and they simply let it go because "hey, other fan films."
 
SuperSpaceMan said:
You can. But there are limits to how Much (percentage) of ones wages one can garnish
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Of course - wages aren't going to garnished so much that someone or their children starve.

TribbleTrouble1 said:
The thing I've been trying to wrap my head around is how Kickstarter and Indigogo get away with their role in these fundraisers for creators who clearly do not have the copyrights to make the projects that they're making. Their position seems to be that they are merely tools and that their agreement is with the creators using their sites. They are not parties to the "contract" between the creators and the backers (donors). When a creator opens a KS they are declaring to KS that they have all the legal rights to make their project. Presumably KS's position is that they are relying on the creators to be truthful, and that they can't investigate every single creator and project that signs up for a new fundraising campaign prior to allowing those campaigns to go forward. Further it seems that KS will only investigate a case of copyright infringement if the owner of the copyright files a complaint with KS claiming infringement. Obviously, CBS/P did not do that so the campaigns have been allowed to go forward.

So basically, KS knows full well that every single one of these fan productions are copyright infringers and are...well...not being entirely truthful with KS when they enter into the KS user agreement, but KS simply turns a blind eye as long as no one complains. With regard to Indigogo, as I understand it they actively pursued Axanar's business away from KS knowing full well that Axanar did not own or have proper license to the copyrights for their project. How exactly do they get away with that? Has anyone ever tested their position in court I wonder, or is that just one more element of the wild wild west nature of crowdfunding currently? Axanar was crystal clear to their donors that they did not hold the copyrights for their project so the donors have no recourse to claim fraud on that front. But KS clearly does not as a matter of ordinary course and routine enforce its own terms and conditions, so I wonder if the donors would have a viable cause of action against KS on that point? Hmmm...
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This is an issue. I had suggested this in a blog post, to implead IGG. CBS/Paramount may very well be either waiting on Axanar to do this or waiting until the case is done. It does put Axanar into a kind of rock and a hard place. Do you implead IGG (possibly also KS, but the theory stronger against IGG is stronger)? The IP infringement lawsuit is a known, real quantity, whereas possible future crowdfunding ventures are nebulous at best. It's matter for AP and his defense team to consider.
 
Winston & Strawn lawyer to represent moviemaker funded by 'Star Trek' fans

Axanar's defense hinges on two key legal points, Ranahan said: fair use and waiver. Fair use doctrine allows works to be reproduced without obtaining permission under certain circumstances related to the nature of the work, how much is copied and how it affects the work's market value. The issue of waiver arises because Paramount and CBS, which own the "Star Trek" copyrights, have historically tolerated fan-generated work not produced for profit, including a short film put out by Axanar Productions.

Representing the fan film company for free was a smart business decision, said Ray Niro, an intellectual property litigator in Chicago who represents plaintiffs.

“I would guess that there's a business judgment made that it will open up opportunities for 'bono' work later,” he said.
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http://www.chicagobusiness.com/arti...represent-moviemaker-funded-by-star-trek-fans
 
Dennis said:
The issue of waiver arises because Paramount and CBS, which own the "Star Trek" copyrights, have historically tolerated fan-generated work not produced for profit, including a short film put out by Axanar Productions.
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ah, the main lever. You didn't stop them after Prelude even though you knew how they were doing it...
 
Dennis said:
Winston & Strawn lawyer to represent moviemaker funded by 'Star Trek' fans
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If that is indeed their defense strategy, I just don't see how Fair Use applies since it seems clear that it is a derivative work and not at all transformative. The implied waiver argument is interesting but seems like a stretch as well since the plaintiffs are well within their rights to pick and choose when they feel it is necessary to defend their copyrights from infringement. It's going to be fascinating to see how this whole thing unfolds.
 
Albinator said:
The "waiver" defense had me intrigued, so I looked it up, and it only applies to cases of Trademark Infringement, as I suspected. Another person who is conflating it with copyright.
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That quote is from Ranahan herself so I doubt she's making that mistake. She must think she has an argument. Whether or not it has any merit remains to be seen I guess.
 
Oh great. So the defense is just as flimsy and stupid as we all predicted and Axanar is using all other fan-films as a shield. If this copyright waiver thing is legit, then aren't they just begging CBS to stop "tolerating" IP violators?
 
TribbleTrouble1 said:
That quote is from Ranahan herself so I doubt she's making that mistake.
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Im starting to wonder, because it's been well-established everywhere-- and i've known copyright attorneys and had this discussion for work-- that copyrights can be selectively enforced. I even looked up the waiver defense, and all references are in regard to trademark.

Fascinating to say the least.
 
Franklin said:
This is all true, but I'd think a judge would want to know why CBS chose to enforce its copyright in this case.
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The only place I can see the answer even making a difference is in terms of damages awarded. I can imagine a successful argument where damages are lessened due to a reasonable expectation of "implied consent", even if none such existed. Dunno how that would actually fly in legal terms, though.

Franklin said:
Two non-lawyers going back and forth over law together. What can go wrong? :lol:
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Y'know, this point of view actually bothers me.

Speaking for those of us in the USA, we're citizens of this country. We are bound by the laws here. We are not only allowed to discuss and debate the law, we should be encouraged to do so! In some ways, it's your duty as a citizen to be critical of the law.

There is nothing that says that one must be "educated" in law to care about it, have an opinion about it, or have an interpretation of it. Nor should there be. You just need to be aware that the judges who adjudicate it might see it differently -- and their opinion tends to be a bit more binding. :)

Now, giving legal advice to someone who may run afoul of the law? Don't do that, because you may be liable for giving them bad advice that sees them lose their case. Or if you're in legal trouble yourself? Then you get help from an actual expert, because they do this for a living, and will almost certainly know things you don't, including how the courts are likely to interpret the law.

That does not mean that you can't have your own opinion, or debate that opinion with others.

But laughing at people for having an opinion and expressing it because they don't happen to be lawyers? I find that disturbing. Debate with them sure; try to prove them wrong, that's healthy. Trying to convince them that they shouldn't debate it as an academic exercise because "they're not legally trained"? That's counterproductive.

Don't mean to dump on you about this personally, Franklin; I've just seen this general sentiment too often, and you were the one that triggered my rant. I do know you meant it in jest. :)

Dennis said:
Winston & Strawn lawyer to represent moviemaker funded by 'Star Trek' fans
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Even assuming the "waiver" defense has merit, I'd be willing to bet it would fall apart on the distribution of funds via salaries. As far as I can tell, it's always been assumed that you cannot make money on Star Trek or you'll run afoul of CBS and Paramount.
 
Harcourt F. Mudd said:
Oh great. So the defense is just as flimsy and stupid as we all predicted and Axanar is using all other fan-films as a shield. If this copyright waiver thing is legit, then aren't they just begging CBS to stop "tolerating" IP violators?
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If they do use that defense--even if it doesn't work--I wouldn't be surprised if a lot of IP holders cracked down on fan works of all types.
 
Companies would have to hire armies of lawyers just to blanket the world with C&D's, takedown notices and infringement filings, if enforcement became "all or none."
 
Indeed. Eventually someone would bring enough fuckery to test the waters everywhere, and in this case it had to be a Star Trek fan film. Well, shit.
 
Coloratura said:
Indeed. Eventually someone would bring enough fuckery to test the waters everywhere, and in this case it had to be a Star Trek fan film. Well, shit.
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I still feel like this is a slam-dunk and won't change much, unfortunately.

I would love to see the fair use defense fly. It could potentially legitimize entire genres of fan films. I really don't think it's going to, though.

The waiver thing? I'd be very surprised if that flies. It basically amounts to: "But your honor, he let Joe drive his car. That means he'll let anybody drive his car!"
 
Perhaps their waiver defense is more "implied consent." It had been publicly known that there were rules that would allow a fan-film to remain safe from prosecution, and they will claim to have followed them.

Even if they indeed had, I don't see how that flies in the eyes of the law, but I guess we'll find out soon enough.
 
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