Regarding damages: isn't there statutory? Are those affected by "unwillful" infringement?
CBS/Paramount sues to stop Axanar
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Regarding damages: isn't there statutory? Are those affected by "unwillful" infringement?
Ba-ZING!
Bizarre is right. Let's take apart this gem from LFIM:
The "most liberal circuit" characterization is not based on fact. It's a longstanding trope of the conservative media that is largely based on the Ninth Circuit's reversal rate in the Supreme Court. This actually has more to do with the disproportionate number of cases heard by the Ninth Circuit--which covers nine states and includes about 20 percent of the U.S. population--than the ideological biases of the judges.
One consequence of the Ninth Circuit's size is that it has 29 full-time judges, far more than any other circuit (the next largest has only 17). There are also "senior judges" who continue to work part-time. Right now there are 25 full-time judges, 19 part-time judges, and 4 full-time vacancies. Additionally, retired Supreme Court Justice Sandra Day O'Connor occasionally sits in on Ninth Circuit cases.
The way appeals courts work is that cases are usually heard by randomly selected three-judge panels. So there's currently a pool of 45 potential judges who could be assigned to a potential Axanar appeal (Axappeal?), not including any potential Trump appointments to fill the four vacancies. And while it's true a majority of these judges were appointed by Democratic presidents, that does not in and of itself guarantee a "liberal" panel for a particular case.
Second, LFIM's assertion that the Ninth Circuit is "pro-artists' rights" is based on absolutely nothing. The Ninth Circuit enforces the same copyright laws as every other circuit. And if the court were "pro-artist," wouldn't that favor stronger copyright protections? Perhaps LFIM meant to say the Ninth Circuit was "anti-corporation," which isn't true either, but calling it "pro-artist" is, as Madam Justice @jespah would say, semantic shenanigans of the highest order.
Now let's talk some hard numbers. LFIM claims, "Even if we were to lose at trial, an appeal would likely be very positive for us." The truth is that appeals generally don't favor the party appealing. The Administrative Office of the U.S. Courts actually tracks this stuff, and according to the most recent figures--appeals decided between July 1, 2015, and June 30, 2016--the Ninth Circuit only reversed the trial court's decision in 16.3 percent of "other private civil" cases. That refers to appeals in civil cases where the federal government or a prison inmate was not a party. Now, this is actually a higher reversal rate than most circuits, but it still means there's a roughly 85 percent chance the Ninth Circuit will affirm a jury verdict in C/P's favor.
Finally, in his statement today, LFIM touted Erin Ranahan's "5-0 record" before the Ninth Circuit. I've been trying to dig up those five cases. So far I've found four cases where she was listed as counsel, but in none of them was she "counsel of record," i.e. the lead attorney who actually argued the case. And two of those four cases were voluntarily dismissed before the Ninth Circuit issued a decision.
The two cases I found where Ranahan was listed--again, not as the lead attorney--don't really shed much light on how the Ninth Circuit would respond to an Axappeal. The first case, UMG Recordings, Inc. v. Shelter Capital Partners, involved the application of the safe harbor provision under the Digital Millennium Copyright Act. The second case, Graham-Sult v. Clainos, dealt with misappropriation of intellectual property. In both cases Ranahan's client supported affirming, not reversing, the district court. That's critical because, as I noted above, affirmances are statistically much more likely than reversals. And in Graham-Sult, the Ninth Circuit actually reversed on one issue, against the position advocated by Ranahan's client.
It will always be spun even if they lose. The whole martyr-act, after all.
Can I use your research in an AxaMonitor followup?
I laughed at Klausner's "stayed true to...canon down to excruciating details". Sounds like a fun judge.
Even that's debatable, considering their choice to go from tacticle buttons to LCARS and the nuTrekisms in the ship designs and FX. It's all Trek in look and feel but not period-accurate.
That will be a tough sell. The emails he'd sent alone show that he had a minimal awareness of what infringement was and how to avoid it. It's going to be interesting times ahead.
Also, cheers for that info. It settles some curiosity I had on the ruling
However there is a problem. He could claim non-willful up until the lawsuit was filed. At that point be knows C/P are not happy with what he is doing. However, be plows on releasing trailers and this and that. His actions AFTER the lawsuit show a willful disregard.
However, C/P are trying to get a lot of stuff that happend after the lawsuit was filed thrown out so they could help. However, I think stuff like Terry and Christian's testimony and some of the podcasts will doom him,
You don't have to be canon to infringe on copyright.
Disagree. CBS/Paramount made their legal issues quite public in August 2015, and Peters acknowledged reading the article in which they made their statement — four months before the suit was filed. He willfully ignored their plainly stated warning.
Sure. Here's a link to the U.S. Courts statistics I cited regarding the Ninth Circuit's civil appeals reversal rate.
Ah, cool, thanks!
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Personally, I think that's the detail that's going to kick him in the aft the hardest. He knew. He acknowledged that he knew. He did it anyway. There's your "willful."
Truly interesting. Thank you for examining this.
Were I to be an attorney (I'm not of course), but were I to be one, and I was second or third chair in an appeal proceeding that ended up being overturned, could I not responsibly and honorably count that overturn on my own scorecard of overturns too? Like, say, if the Plaintiffs in this suit prevail, cannot Mr. Grossman, Zavin and Ms. Jason all three responsibly and honorably count this win on all three of their scorecards even though there is only one lead attorney among them?
The judge certainly blew my prediction of a summary judgment out of the water. Anyway, it looks to me like he carefully crafted that ruling to pretty much kill any potential appeals, except, maybe, the fair use argument. Interesting use of Trek references, whichsuggests to me that while he is treating the case very seriously he is taking AP very lightly.
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Yep. I also see the trek references as a way of intimating to the defense that this judge is not coming at this case from a position of ignorance. He knows all about Star Trek, and all that entails, so pulling fast ones on him would be ill-advised. Just my two bits on that one.
Netflix I think kills him. it is one thing to say all the other fan films did this or that and I was just going to release it on youtube for free, but he tried to sell his services to Netflix to make star trek stuff for them. That is blatantly willful and nothing anybody else had done.
When did it start being shuttlecraft instead of buses? Have I missed a memo somewhere?
I see what you did there, bravo!
But seriously, it is an interesting way to show how he is not being snowballed by all the twists and turns of this case.Good point. So trying to claim "vulcans are just like elves so can't be copyrighted" isn't going to work.
In a 2010 case, Lanard Toys Limited v. Novelty, Inc., the Ninth Circuit said a jury can infer willful infringement when a defendant recklessly disregards or is willfully blind "to facts that would have caused a reasonable person to know [] that they were infringing valid copyrights." I think a reasonable person would know that selling a purported "fan film" to a commercial distributor (that also distributes the copyrighted works) is infringement. Indeed, just about all of the non-film marketing (e.g., the coffee) should fall within the Ninth Circuit's definition of willful infringement.
The other thing that springs to mind--and I don't think this has actually been introduced into evidence--is Dave Galanter's statements that LFIM tried to get him to write an Axanar book under a pseudonym to get around his exclusive contract with CBS.
I'd love it if Klauser is such a super-fan that he donated to Axanar a couple of years ago and is pissed he hasn't gotten his perks.
Fuck recusal.
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