Dear oh dear. If I had a dollar for every time...
CBS/Paramount sues to stop Axanar
- Thread starter Richard Baker
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I wonder, actually, if this opens up Kickstarter to be sued by the donors. Kickstarter put it up on their website. They are getting a cut. Shouldn't that make them responsible to do a degree of due diligence? Shouldn't they check to see if someone has a license?
Is it not reasonable of the donors to assume that Kickstarter would only put up legal projects?
We were discussing this earlier in the thread. I think this is where regulation of crowdfunding should come into pay, and of course right now there is none. There is no current regulatory duty to perform due diligence so they can hide behind their terms of service.
In my country, if the donors sought to claim from Kickstarter then then KS could bring in Peters as what is known as a part 20 defendant, which is where a defendant brings in a third party on the basis that the third party should indemnify them for any loses, in this case arising out of the fact that Peters, by agreeing to their terms, used their service deceptively. I believe similar third party proceedings exist in American litigation procedure.
Wow. Kickstarter. I suspect THEY are the real assholes in all of this. It's not just the fan films, but, it's EVERYTHING they have allowed that they shouldn't... and they are collecting on each and every donation. And nicely protected.
Evil.
Bring on the regulation!
OR... Could CBS/Paramount sue them? They are neither donors or project creators, so they aren't signing any terms of service.
For what? Failure to do due diligence? I think that's difficult given their potential defence to any claims, which is that Peters agree to their terms on a false basis. If there was a regulation that compelled them to do due diligence then it would likely be different, but I think it's notable that the first time the Federal Trade Commission launched a case (the much discussed Chevalier case) it was against the creator, not Kickstarter, and this was because it was ultimately the creator who has the duty to fulfil the project contract with the donors.
Well they are in a roundabout way, from the point of view that it's their service and they're saying "you can only use us on X, Y, Z basis". So obviously they commit to operating by their own terms of service.
Trademark? Copyright? I don't know. Because, obviously, Kickstarter some smart lawyers.
Indie Go Go and Kickstarter DID profit--even the Peters definition of profit--off of CBS/Paramount IP.
What Kickstarter has created--basically--is a legal way to steal money from someone else's IP. Ugh.
Yes, but that's where the regulation would come in, because right now they would say their earnings are legitimate because it was Peters who didn't have IP consent and lied to them by agreeing to their terms, so he should indemnify them against any claims, just as he should indemnify them against any donor claims.
No. No they haven't. It was Peters who agreed to their terms, terms which required him to confirm he has permission from the IP holder, which he didn't. Now, you can say that maybe there should be a regulation that they should have to monitor projects for IP breaches, but you can't say it's their fault that Peters lied to them. It's like saying a lawyer or doctor shouldn't have his bill paid because his client gave false instructions.
I quit any thoughts of donating through Kickstarter or indiegogo a long time ago.
Isn't it legitimate? They don't just have to say it. It sounds, by the way you are describing, it IS legitimate.
Ok, I shouldn't say they are STEALING it... and it certainly sounds legal, or at least they have protected themselves very well legally. But, it feels--and yes, the law shouldn't be about feelings--but it FEELS wrong. I mean, they are profiting from the IP just as Peters did. The thing that protects them (and their profit) is that they can say: he lied to us, we didn't know it was not his.
Which... is kinda bullshit.
Legal bullshit. But... bullshit.
Oh, I still donate from time to time. But, never to something that clearly isn't a projects to sell/build/whatever.
And mostly to friends.
FACT CHECK After a federal magistrate's ruling, Axanar claims a 'big win' for them and a slap-down for CBS/Paramount. AxaMonitor fact-checks each part of Alec Peters' portrayal of the 'victory' in court.
That's the Carol Publishing case, @oswriter, which Paramount won in 1998, I believe. Represented by Jonathan Zavin, the lead attorney for CBS/P in the Axanar case.
Friends don't force friends to donate on a platform that's a breeding ground for fraud and deceptive practices.(nothing to do with Axanar in my comment) Maybe they have done something about it in the last few years, I wouldn't know.
Ranahan is trying to make both points — fair use and inequitable treatment of fan films. You see such possibly contradictory defenses in copyright cases — namely, "We did NOT infringe, and even if we did it's not fair to single US out. Waahhhh!"
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Neil, I love you so much.Did someone say "Cash"?
Neil
It's legitimate in the sense it's what Peters agreed to and that they were assured by him he had permission.
No, because they aren't.
Why? They never made him deceive them. They are an agency service that takes a commision, nothing more, nothing less. If an employment agent puts a candidate in touch with an employer and that employer hires the candidate, is it the agent's fault if the candidate lied about his CV and gets sacked, wasting the employer's time? No - because the agent was deceived.
Obviously this situation should not cloud honest projects, but the nature of how it all works should nonetheless open some eyes. Kickstarter isn't the one promising a return on donations/consideration. The project creators are.
You guys are such drachma queens.
That's called pleading in the alternative, which is what any good lawyer does to protect their client's position.
I wouldn't know about that. I'm just a euro......
I've always felt Kickstarter and Indiegogo had some exposure because of the DMCA 'safe harbor' provision, which holds that platforms can't be sued for having infringing material on their servers as long as they have a procedure for copyright holders to have the material removed. Kickstarter absolves itself from responsibility by putting the onus on the project to attest that it has the intellectual property rights to carry out their project. Essentially, Axanar didn't tell the truth if it subscribed to Kickstarter's terms of service.
Under the DMCA the onus for complaining about infringing material is on the copyright holder, not the online platform. CBS/P failed to issue a takedown notice with Kickstarter (or later with YouTube), which is likely part of the reason why Ranahan wants those internal communications where studio execs discuss what to do about fan films.
The theory behind DMCA's 'safe harbor' provision is that it's unfair to require the platforms to ensure there's no infringing material — it's simply too burdensome. The takedown process is supposed to provide a quick remedy. However, if the platform *does* know about specific infringing material, then they do open themselves up to liability. Indiegogo surely knew about this because it actively courted Peters' business for the second Axanar crowdfunding campaign. Kickstarter could make the case it didn't know for Prelude, but it surely knew about Axanar because it too courted Peters for that second campaign. Focusing that much attention on the project would've been impossible without reading Risks part of each campaign — both point out that Axanar was unlicensed.
However, again, CBS/P didn't assert their rights, nor did they have to. For all those who think of them as greedy, soulless corporations, people should take note that they could've shut down the crowdfunding campaigns and didn't. It's only when Axanar stepped over a line that they took action, and only against Axanar, not against the crowdfunding platforms.
And while some may find the substance of the fan film guidelines draconian, you can't make that claim about the crowdfunding limits. $100,000 total for two combined episodes is a LOT of money. As a point of reference, Prelude at 20 mins. in length cost about $123,000 to make, and it's the most expensive fan film on a per-minute basis ever.
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