CBS/Paramount sues to stop Axanar

[Mudd]

This thread is the best central clearinghouse for information on the Axanar debacle, since carlosp and jespah both post here.

 

[DrCorby]

I think the whole issue is that it doesn't matter what everyone else did, or what Axanar called itself. To the law, willful is a binary thing; it's either willful or it isn't. Stuff like calling the production "professional" goes to how willful it was, but that's largely irrelevant. In the damages phase, I don't believe that things like Alec's Netflix ambitions are excluded, and stuff like that is damaging enough.

I'm not saying I'm agreeing with any of this, mind you. This is just my guess as to what the judge is thinking.

I think Axanar's goal of being a "professional" production speaks directly to it being specifically designed to compete directly with CBS/P's IP. To make it look just like the preceding professionally-produced Star Trek productions. So it would be clearly similar to existing Star Trek, indistinguishable to a lot of fans and most regular viewers. So they would watch Axanar, and demand more, happily produced by LFIM. Clearly, an express intent to aggressively infringe. That was LFIM's goal. All part and parcel to the big overall lie.

To paraphrase writings far superior to my own -- by your own words shall ye be judged.

And while I'm on a biblical bent -- So let it be written. So let it be done. /Yul Brenner

 

[CaptGrumpy]

="DrCorby, post: 11883909, member: 18151"So let it be done. /Yul Brenner

So mote it be

 

[Steve Roby]

His blog may not contain factual inaccuracies, but it's clearly designed to make Peters look bad by analysising pretty much everything he says.

How very dare you, Carlos! Quoting and thinking about what Alec says and staying factually accurate. Beyond the pale. Harrumph.

 

[Mudd]

desperate to see Peters fall on his sword.

That's not what that expression means.

 

[Ion]

Clearly, an express intent to aggressively infringe. That was LFIM's goal. All part and parcel to the big overall lie.

That's the point I'm trying to make though: I don't think the law and the judge actually care about his intent. It's only whether he understood that he was breaking the law and did it anyway that's at issue. Or at least, that's how I understood it based on the set of tests for willful infringement that @oswriter posted way back somewhere in this thread. Anything else would just cloud the issue.

I agree with you that in the grand scheme his attitude is an important factor in what a lot of us feel the outcome should be, but the lawsuit itself I think has a much narrower focus. At least, that's my read so far.

As always not a lawyer (by training or otherwise), so YMMV.

 

[Noname Given]

="DrCorby, post: 11883909, member: 18151"So let it be done. /Yul Brenner

So mote it be

Holy Moses!

That's the point I'm trying to make though: I don't think the law and the judge actually care about his intent. It's only whether he understood that he was breaking the law and did it anyway that's at issue. Or at least, that's how I understood it based on the set of tests for willful infringement that @oswriter posted way back somewhere in this thread. Anything else would just cloud the issue.

I agree with you that in the grand scheme his attitude is an important factor in what a lot of us feel the outcome should be, but the lawsuit itself I think has a much narrower focus. At least, that's my read so far.

As always not a lawyer (by training or otherwise), so YMMV.

IMO - Alec Peters intent would be a factor in whether the infringement was 'willful infringement' under the law. If this were only a matter of 'knowing he broke the law, and did it anyway' - the e-mails he sent to John Van Critters at CBS trying to expose copyright violations of other Star Trek fan film groups; would show he knew he was breaking the law.

 

[Ion]

IMO - Alec Peters intent would be a factor in whether the infringement was 'willful infringement' under the law. If this were only a matter of 'knowing he broke the law, and did it anyway' - the e-mails he sent to John Van Critters at CBS trying to expose copyright violations of other Star Trek fan film groups; would show he knew he was breaking the law.

This is what I'm basing my theory on:

Here's how the Ninth Circuit recently described the standard for "willful" infringement:

To prove `willfulness' under the Copyright Act, the plaintiff must show (1) that the defendant was actually aware of the infringing activity, or (2) that the defendant's actions were the result of `reckless disregard' for, or `willful blindness' to, the copyright holder's rights.

IMO, that's pretty straightforward. I suppose a case could be made for intent feeding into 'reckless disregard', but without a definition of what that exactly means from the court's perspective, I'm hard pressed to comment. Given that it's either/or, though, I think he's already sunk on the first point.

I do feel that his intent should come into it when damages are assessed. It just reads to me like the judge is trying to limit that avenue.

This, of course, all assumes that the jury finds "objective similarity" or whatever it was, which I don't doubt they will.

 

[Potemkin_Prod]

I'm concerned that "willfullness" is going to be the determining factor for the matter. Yes, he was warned verbally in person and in the trades that CBS/P would vigorously defend their copyrights, and yes, he chose to proceed. That's pretty much cut and dried in my eyes, but whether or not a jury will see it that way...? I'm uncertain.

 

[Steve Roby]

In other news, is something going on with the @startrekaxanar account on twitter? I'm blocked, and I'm not sure I was before. I've also seen people comment that a lot of others have been unfollowed.

 

[DrCorby]

That's the point I'm trying to make though: I don't think the law and the judge actually care about his intent. It's only whether he understood that he was breaking the law and did it anyway that's at issue. Or at least, that's how I understood it based on the set of tests for willful infringement that @oswriter posted way back somewhere in this thread. Anything else would just cloud the issue.

I agree with you that in the grand scheme his attitude is an important factor in what a lot of us feel the outcome should be, but the lawsuit itself I think has a much narrower focus. At least, that's my read so far.

I think we're on the same page. It just seems to me that his clear intent to use CBS/P IP demonstrates his willful infringement, very clearly. He knew where the line was, and deliberately, with malice aforethought, blazed across it. It just seems (to me) to be a clear marker to build that case. But then, there are so many...

 

[ThankYouGeneR]

In other news, is something going on with the @startrekaxanar account on twitter? I'm blocked, and I'm not sure I was before. I've also seen people comment that a lot of others have been unfollowed.

I read your post and googled twitter startrekaxanar and this came up to explain.
"We cleared out all our follows because of so much spam! If you follow us, and want a follow back, just Tweet us! We will follow you back! We unfollowed EVERYONE because otherwise it would have taken forever!"
https://twitter.com/StarTrekAxanar/status/819711469520457728

 

[carlosp]

Straw man arguments, no, not at all, and while my review of his history may have been inaccurate even Carlos admits about that he had an issue with Peters from the outset of this case. His blog may not contain factual inaccuracies, but it's clearly designed to make Peters look bad by analysising pretty much everything he says. For instance, where and the "truth or fact" explorations on his blog for every move Loeb and Loeb make? There aren't. You don't need to lie to still promote a bias.

Look, I'm ok nobody's side, albeit that much view of Peters is such that I end to fall on the anti-Axanar side. But I just want honesty and I think it's disingenuous to pretend that there aren't people on the anti- Axansr side who are desperate to see Peters fall on his sword.

And is that what you're accusing me of?

I would love to fact check Loeb & Loeb's, CBS' and Paramount's public statements. But guess what? They've made none. They follow the rule of "don't discuss pending litigation." A rule Alec Peters seems constitutionally unable to follow; witness the birth of AxaMonitor.

And for the record, my single communication with Loeb was their letter demanding I remove my article that used material that had been inadequately redacted in one of their motions. My response to them ("no") was as throughly detailed and researched as any of my critical articles about Axanar. Both edges of my sword are sharp.

 

[Sgt_G]

Both edges? Surely you've heard Ambassador Kosh say: "Understanding is a three edged sword: your side, their side, and the truth."

 

[OtherGene]

Hinman and Peters are both posting. Of course there's drama.

There's a lot of legal action being threatened.

I'm not convinced either of them will follow up on their threats.

 

[Mudd]

There's a lot of legal action being threatened.

I'm not convinced either of them will follow up on their threats.

They do mirror one another in that respect.

 

[fireproof78]

Both edges? Surely you've heard Ambassador Kosh say: "Understanding is a three edged sword: your side, their side, and the truth."

It looks like this:

 

[muCephi]

That's the point I'm trying to make though: I don't think the law and the judge actually care about his intent. It's only whether he understood that he was breaking the law and did it anyway that's at issue. ...

I do get this analytical point. If a determination of 'willful' is *defined* by the law for copyright infringement *only* as whether knowledge of copyright existed and violating action was subsequently taken, this is a lower bar than anything taking intent into consideration.

If this is the case, this would be what the judge would instruct the jurors to use as their their criteria, as well. And then Axanar is so ashes. There's no doubt they did violate the law. And there's no doubt that the studios can selectively enforce.

I think the ambiguity enters because of the history of fan films which were permitted.

The studios might risk a nullification of their rights if jurors do not see why Axanar is a raw money grab by comparison to other, permitted fan films of the past. Without this being underlined, some jurors might see it as some sort of targeted suppression of the little guy "because they were too good" or the like.

IMO the studios do not need to explicitly cite Axanar's "professional" goals to show the money grab. In the course of establishing that there was a financial benefit to the defendants, they can document that x of their money went to salaries, a studio facility for retail purposes, union dues, business perks, rent-free housing of another business, etc.

Just put the list of benefits up on a poster and leave it there during the trial, saying the information presented will show the benefits were acquired from illegal use of studio IP. When Alec says 'yes but I paid it back' or 'yes but the studio doesn't make a profit', or 'yes but we said we'd spend it on a studio in the kickstarter' (my favorite), or 'yes but others do it', etc., the weaselly nature of these deflecting claims will not stand against the fact that he *tried* to spin a permanent business out of it.

I think it would be pretty hard for a jury to have a concrete list of skimmed money uses, and also maintain during deliberations that this is a fan film. Even if the jury's mandate is to rule on substantial similarity, the list, even as a sidebar, will put "poor innocent Axanar" ideas to rest.

Also, there are multiple copyright violations and efforts to initiate violations, not just one (merchandising, book efforts, preparation of a license document paying Axanar for use of the game pieces after studios explicitly said they wouldn't sublicense, etc.).

 

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[ThankYouGeneR]

Am trying to understand the why of this twitter thing the production account is doing. I don't have a twitter account and only understand the basics.

Can whomever a twitter account belongs to delete every tweet to and from them at their discretion? Like say, could I unfriend my 109K followers and delete alllll the tweets whether I was the tweeter or it was my Friended tweeters? So like erase everything and make the account a clean slate?

I'm pretty sure I understand the restart with the unFriending. To bring order to chaos, right? And get the account populated with actual Friends? Whereas in the beginning of the account the blowback, the magnitude of the Star Trek magnifying glass on Everything, then this lawsuit just wasn't foreseen. Then everything turned into this whole thing. With, like fandom has been known for for 50 years... all the dissecting every single flaw in every single ST episode, series, movie, authorized and fan produced. And each and every person responsible for every single word in the scripts. Every showrunner, writer, director, producer who doesn't do it the way sections of us wanted. Tear to shreds any actor we might not like, dissect and discuss everything anyone who worked on Star Trek has said or done in their lives outside of ST, every DUI, arrest, breakdown, weight gain, et cetera........... you know, just doing what fans who wish to have always done with Star Trek done by anyone.

And for a long time the account was a promotional kind of account to get the word about the production to a really wide a twitter audience. Probably? Everybody's happy, things are great, it's great, he's great, the world of Star Trek is great.

But like with all Star Trek productions, authorized or fan, everybody in fandom can an opinion. And those of us who wish to can get very loud about our opinions. Both our likes and our dislikes.

Then this new Star Trek production and producer starts being looked at with the same Star Trek magnifying glass used on allllll Star Trek productions; official or fan. And this ST magnifying glass that's been used on everything Star Trek for 50 years..... was and still is not tolerated by this producer. Who responded in the least effective way imaginable to mitigate and get past it. He goes on the attack.

And how did that turn out?

The lawsuit, the questions, the research, the demands, the anger, the responses to the questions and/or points of fact. Stuff like that. Which turns the twitter account into an access point to the production after the production's Facebook went private because 'it' had ceased to be effective for promoting the production & Works when it all stopped being all 'everything is grreaaattt'.

The production is facebooking the twitter account now too, right? Like they did the production's website comments sections too.

So I get the unFriending thing from the production/producer's POV. Only the like minded will be reFriended. That will bring order to chaos like it did with Facebook and the production website. Order.

My main question I guess is can a twitter account delete every single tweet and start all over with a clean slate?