As expected, both the Axanar defense team at Winston & Strawn and the CBS/Paramount legal team at Loeb & Loeb filed their brief supplements to their recent 60-page Joint Stipulation document to compel discovery that was filed on September 29th. The deadline for adding anything to the original filing was the end of business last Friday, and things came right down to the wire!
Y’see, both sides wanted to get the last word in, so each waited as long as possible to file their supplemental memorandum. But in the end, Winston & Strawn waited just a teensy bit longer and managed to adjust their filing slightly to address a couple of the points that the plaintiffs included in their supplement.
I’ll tackle the filings in the order they were submitted to the court, with the plaintiffs up first. Here’s a link if you want to read the full plaintiffs’ supplemental memorandum. It wasn’t all that long. Granted, the court limits the length of these supplemental filings to no more than five pages, but Loeb & Loeb only needed a mere one and a half pages, and they pretty much just restated what they’d said in the previous filing:
- Many of the documents the defendants are asking for do not exist.
- The plaintiffs already agreed to deliver the requested information and documents.
- The defendants refused to meet and confer (remember this one for later, folks!).
- The defendants requests are overly broad and burdensome (going back 50 years!) and in many cases not even particularly relevant.
- Whether or not the studios chose to sue any other fan films is irrelevant to a copyright infringement violation lawsuit.
It’s understandable that the plaintiffs’ attorneys didn’t add much to what they’d already said, since the defense hadn’t really said anything new since the motion was filed. But had the defense filed their supplemental memorandum earlier in the day on Friday, the plaintiffs might have had a LOT to respond to! (In this case, the early bird lost the worm.)
The plaintiffs did add one new item, however. In the week since the joint stipulation motion to compel discovery was filed, depositions were taken from witnesses for the plaintiffs (CBS/Paramount employees). The plaintiff lawyers pointed out that their witnesses had been very cooperative, answering every question except one (was the revenue from the recent Star Trek Beyond film what the studio was expecting?). Among the questions the witnesses answered were items dealing with the information that team Axanar is seeking to compel in discovery.
In other words, “We’ve been good and told them everything they want to know…why do we also need to show them stuff?”
Okay, now for the bombshells as we cover the defense’s supplemental memorandum. It’s a somewhat longer read, as Axanar lead attorney Erin R. Ranahan used all five pages fully (and even had to sneak her signature onto a sixth page…which I am told is usually allowed).
And here’s where the bombshells started going “boom.”
The first “bombshell” was more of an anti-bombshell, and it came at the end of the document when the Axanar defense team withdrew their motion with respect to documents related to copyright ownership. Apparently, the plaintiffs delivered some additional documentation after the deadline agreed to by both parties…and also after the defense had submitted their request for that information in their motion to compel. In other words, the plaintiffs sneaked it in late and, in so doing, forced the defense to wind up with some egg on their faces. I’m told that tricks like these aren’t unheard of in litigation, and indeed, Winston & Strawn had a little trickery of their own by waiting until the very last minute to file their supplement so they could respond to the plaintiffs’ supplement and not vice-versa.
Anyway, the important thing is that it now appears that CBS and Paramount do, indeed, own the rights to Star Trek…dashing the somewhat devilish dreams of folks like me who were hoping for a startling revelation that the studios DON’T own Star Trek after all.
Now, I should point out that the Axanar legal team didn’t actually say they were stipulating that the studios own Star Trek outright, so it’s not necessarily a dead topic. But for those of you still holding out hope for a shocker in the courtroom, don’t bet the farm on it. Had there been some kind of smoking gun to exploit, the defense would likely have filed an immediate motion for summary judgement and dismissal of the case based on the plaintiffs having no standing to sue. This didn’t happen, so let’s assume that the studios own Star Trek.
Then what were the bombshells, you ask? Let’s take a look…
BOMBSHELL #1: PARAMOUNT HAS PRODUCED ZERO E-MAILS!!!
Please forgive the three exclamation points(!!!), but I personally find this inconceivable…and yes, that word does mean what I think it means. The plaintiffs (specifically Paramount) had already agreed to produce e-mails, even those e-mails sent to and from J.J. Abrams and to and from Justin Lin regarding Axanar and other fans films. Whether or not the plaintiffs feel these e-mails are relevant to the case, they previously agreed to produce the e-mails and never did.
This led the defense team to include within the supplemental memorandum the words “stonewalled” and “run the clock.” Although the plaintiffs argue that they’ve agreed to deliver certain requested documents, the agreed-upon delivery date passed many weeks ago, and the documents weren’t delivered. And this did Axanar lead attorney Erin Ranahan write in the second sentence of the filing:
But Plaintiffs’ productions do not actually include many of the documents they have agreed to produce, and with discovery about to close, there is no time to delay in hopes that Plaintiffs will finally comply with their agreements and discovery obligations.
This also led into the first attempt by the defense to use the plaintiffs’ attorneys’ own words (or lack thereof) against them. In both the original Joint Stipulation document and the plaintiffs’ supplemental memorandum, the plaintiffs never disputed that a calculation of actual financial damages would be relevant before the court could determine what statutory damages could be awarded. In other words, if Alec Peters caused the studios to lose millions, then the judgment could be millions. If he only cost them thousands or tens of thousands, then a million dollar award would be inappropriate.
And indeed, the studios even stated in their first filing (the Joint Stipulation document on page 49) that they may actually base what they demand on their own damages:
If Defendants are held liable for copyright infringement, Plaintiffs may seek the profits obtained by Defendants, Plaintiffs’ damages, or statutory damages.
Do the studios expect the court to just take their word for it that they lost millions without producing documentation to back it up? Guess again. And if the defense is to challenge that claim of millions in lost revenue, then by gum, they need to see the paper trail that led to that calculation! (Did I just say “by gum”?)
Next up, the defense hit back on the claim that the defense requests for documentation is overly broad and burdensome. Says who? Or rather, put in more legal terms:
Plaintiffs have not articulated any specific burden in producing any of the information at issue, making the evaluation of any proportionality claim under the Federal Rules impossible.
I like “Says who?” better. Anyway, as happened back in January when CBS and Paramount claimed that Axanar violated “thousands of copyrights,” the defense came back to challenge them for painting with such a broad brush. The defense typically says, “No shortcuts in this case, Loeb & Loeb! If you want to make a claim that’s too general, you’d better be prepared to back it up.” Let’s see if they can or do.
BOMBSHELL #2: PLAINTIFFS’ WITNESSES WERE UNPREPARED FOR QUESTIONS
This was one of those places were the late bird absolutely got the worm. Having waited for the plaintiffs to file last Friday, the defense saw the new “Hey, we played nice and answered all their questions (but one) like good little witnesses” that the Loeb lawyers included in their filing. This allowed the defense to response to the plaintiffs’ claim by including the following:
Plaintiffs’ corporate representatives, particularly that for Paramount, were unprepared and unable to answer questions on many of the topics that the parties had specifically agreed upon in advance of the depositions.
So the two sides had talked first, agreed on what was going to be asked, and when the time came for depositions, the witnesses couldn’t answer the questions. This makes turning over documents and e-mails even more necessary for the defense…if the witnesses aren’t providing the requested information verbally. And it’s an important point to argue in front of the magistrate judge, as both parties will be trying to make themselves look as sympathetic as possible while vilifying the other side. This scrimmage might go to the defense.
And then there was this little gem:
In any event, Plaintiffs provide no explanation or authority supporting their apparent position that putting up a corporate representative for deposition somehow excuses a party from producing unquestionably relevant documents.
That one might seem minor, but it’s pretty huge, folks. Both sets of attorneys want to appear as learned and competent as they can in front of the judge. The plaintiffs included their point about their witnesses answering questions at deposition apparently as a way to justify not producing any more documentation for discovery. But the above sentence from the defense is no less than a smack-down. It’s true; there is no place in law that states that producing a witness excuses the production of documents during discovery. Were the plaintiffs’ lawyers trying to put one over on the judge? The defense’s response kinda implies that without actually saying it openly.
BOMBSHELL #3: PRESIDENT GERALD FORD HAS NOTHING TO DO WITH DISCOVERY
Okay, maybe that’s not a bombshell, but it does shoot a big torpedo in one of the plaintiff’s major arguments–both during discovery and also during the case itself if/when it goes to trial. But what the heck does former president Gerald R. Ford have to do with Axanar?
As usual, glad you asked!
Both the defense and the plaintiff reference the same Supreme Court case: Harper & Row Publishers v. Nation Enterprises. This 1985 case was a significant one regarding copyright infringement and fair use, and it resulted ultimately in a verdict for the plaintiff. It dealt with a memoir entitled A Time to Heal that former President Gerald R. Ford had written and sold the rights to Harper and Row publishers. Now, for those of you who don’t remember much about Gerald Ford, that’s not surprising, as he didn’t do much that the public cared about…except for one thing: he issued a presidential pardon for Richard Nixon. The man behind the Watergate scandal who had been forced to resign the presidency would never go to trial thanks to Gerald Ford pardoning the disgraced president. And many Americans wanted to know why Ford did it.
The answer came in Ford’s memoir… about 300-400 words out of a 500-page book. Harper had made a lucrative deal with Time magazine to publish several excerpts from the book, but before Time could publish it, a competitive magazine known as The Nation published verbatim just that 300-400 word excerpt (the only really good part!) without Ford’s permission. Time pulled their offer, costing Harper $12,500 (about $28,000 in today’s dollars)…Time had already paid a deposit of another $12,500 upfront.
Harper sued The Nation for that $12,500 on the grounds of copyright infringement. The Nation argued for fair use on account of Nixon being a public figure and his reasons for pardoning Nixon being a vital piece of historical information.
The verdicts bounced back and forth. At first, the Federal judge awarded damages to the plaintiff. Then an appeals court overturned the verdict, citing fair use. And finally, the Supreme Court reversed that, determining that The Nation’s infringement led directly to Time cancelling their publishing contract, which was tangible financial harm.
There’s actually quite a bit of ammunition in this case for both the studios AND team Axanar. The defense used this case in their previous motion to compel discovery to argue that the fourth element of fair use was the most important for a court to consider: whether or not (and/or by how much) Axanar might have financially damaged Star Trek. And this explains the defense’s repeated requests for financial documents dealing with Star Trek, how much it hass cost to make over the years, how much it’s earned, and how the studios have determined Axanar‘s harm to their property.
The plaintiffs, meanwhile, used the following argument three times in their previous filing:
As the Supreme Court held in Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 568 (1985), for the plaintiff to negate the element of market harm, it “need[s to] only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work…This inquiry must take account not only of harm to the original but also of harm to the market for derivative works.” Moreover, “[i]f the defendant’s work adversely affects the value of any of the rights in the copyrighted work (in this case the adaptation [and serialization] right) the use is not fair.”
This means that if Axanar has any potential to harm the market for Star Trek or its derivative works, then the production shouldn’t count as fair use. If Alec Peters loses the case, this will likely be the reason why, folks…which is why I’ve spent so much time talking about Gerald Ford.
But wait, it’s not over yet! There might still be a way out of this trap for team Axanar. Wanna know how? Tune in tomorrow for Part 2…
For more analysis of the Axanar motion to compel discovery, please feel free to read my previous 2-part blog (if you haven’t already, that is).